author: Minshall, J.

text:
    Parsons v. City of Columbus.

      Assessments for local improvements—Constitutional law—Powers of municipality.

    1. The courts of the state have no power to declare a statute conferring the power of assessment on municipal corporations of a certain grade and class, for the improvement of their streets, invalid, on the ground that the statute does not adequately restrict the power so as to prevent abuse. The duty imposed by section 6, article 13, of the constitution, is, in this regard, addressed to the conscience and judgment of the legislature, and is not the subject of judicial correction.
    2. The act passed May 11, 1886, known as the “ Taylor Law,” authorizing cities of the first grade, of the second class, to improve their streets in a certain manner, and with certain material (83 Ohio Laws, 140), and the act amendatory thereto, passed March 21, 1887 (84 Ohio Laws, 176), are valid statutes.
    3. A property holder on a street cannot, by voluntarily making an . improvement in the street, suitable to his own convenience, pre- ' elude the city, through its council, from improving it in a manner authorized by statute, and required by the wants of the public and others upon the same street.
    (Decided June 20, 1893.)
    ERRor to the Circuit Court, of Franklin county.
    The facts are stated in the opinion.

      Harrison & Olds, for plaintiff in error.
    I. The act of the general assembly under color of which the council ordained said part of Town street to be “surfaced with asphalt,” did not authorize the passage of the ordinance. The ordinance derives no support from the act. The nature and extent of the power are clearly defined. The power given is to provide for the paving of unpaved streets. The act gives to the council no power to pave a paved street.
    II. Merely spreading over the surface of a street already actually paved with “permanent material,” and which is in good condition for use as a public street, is not paving such street, within the meaning of said act. It follows as a corollary that the ordinance directed a thing to be done which was not contemplated nor provided for in the act. It is evidently not within the terms of the power granted. Wistar v. Philadelphia, 80 Pa. St., 505.
    Nothing is better settled than the words of a statute assuming to grant the authority to levy local assessments will not be extended by construction; for, as against the corporation asserting the authority, the construction is strict, and nothing in its favor will be intended, except such matters as are clearly implied upon the express words of the statute. Zanesville v. Richards, 5 Ohio St., 589; Walker v. District of Columbia, 12 Cent. Rep., 408; City v. Murphy, 3 S. E. Rep., 326; Read v. City of Toledo, 18 Ohio, 161; Heine v. Levee Co., 19 Wallace, 655; Vances. Little Rock, 30. Ark., 439; Caldwell v. Rupurt, 10 Bush., 182; R. R. Co. v. Alexandria, 17 Gratt., 176; State v. Hoboken, 33 N. J. L., 280; Chamberlain v. Cleveland, 34 Ohio St., 551, 561, 562; Griswold v. Pelton, 34 Ohio St., 482; Matter of Second Ave. Church, 66 N. Y., 395; Niklaus v. Conklin, 118 Ind., 289.
    III. The ordinance directing that the cost and expense of surfacing with asphalt the roadway of that part of Town street described in the ordinance, be assessed upon the property abutting thereon, is unauthorized and void, as imposing a local assessment for work which is for the general public benefit; that is, to give a smoother surface to the street, and thereby make a pleasure drive for the general public, the street being already in good condition for use as a public highway. Hammett v. Philadelphia, 65 Pa. St., 146; In the Matter of Canal Street, 11 Wend., 155; Creighton v. Munson, 27 Cal., 613; Chamberlain v. Cleveland, 34 Ohio St., 551; Hare, Am. Const. Raw, 305, 308, 310.
    When the street has once been opened and put in a condition for public use, the power is exhausted; or, to speak more accurately, there is no such local or peculiar advantage from subsequent alterations or repairs as will justify the imposition of the cost on the adjacent lands, and it must consequently be defrayed by the community as a whole.
    For like reasons, while the owner of an abutting lot may be required to grade his sidewalk in conformity to the grade ■of the street as originally established, he is under no obligation to raise it subsequently for the purpose of bringing it to a level with the roadway.
    IV. If spreading a coat of asphalt over the surface of said part of Town street, is “paving” the same, within the meaning of said act of May 11, 1886, then the general assembly, by passing that act, violated section 6, article XIII, of the constitution of this state, for the reason that the act confers upon the council of the city of Columbus authority which constitutes “abuse of the power” of assessment, in that it authorizes the council to levy special assessments to defray the cost of placing an additional pavement upon the surface or top of an existing pavement in any street, although the latter pavement is in good condition for use as a public street, and such additional pavement is wholly unnecessary. Whenever the power of assessment is given to cities, said provision of the constitution requires the grant to be so restricted as that no authority can be exercised under it which will constitute an abuse of the power of assessment, and thus deprive the citizen of the protection which is guaranteed to him bj^ said section of the constitution. To hold that an act of the general assembly which empowers cities to exercise the power of assessment under such circumstances, and in such a way as to constitute an abuse of the power, when the constitution expressly restrains the general assembly from doing so, must be flatly absurd. Malloy v. City of Marietta, 11 Ohio St., 638; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St., 165; Section 6, of article XIII, of the constitution; Foster v. The City of Kenosha, 12 Wis., 616; People v. Mahaney, 13 Mich., 498; Cooley, Constitutional Limitations, (5th ed.) 93, 99; Varney v. Justice, 6 S. W. Rep., 457.

      Paid Jones, city solicitor, and John J. Stoddard, for defendant in error.
    I. Two facts in this case are manifest: First—that the city never undertook to improve this portion of Town street prior to 1888—the former improvement was made by plaintiff. Second—That the city never attempted to levy an assessment on plaintiffs property abutting on this portion of the street for street improvement purposes, prior to the making of the improvement under the Taylor law. It would be against public policy to hold that an abutting property holder by his own act in making such an improvement on the street as he might elect, deprived the city of its power of assessment.
    The language of this law is very broad. It would have been impossible for the legislature to have used language more comprehensive. It in no wise places a restriction upon the power of the city to determine what streets and' avenues shall be paved. Any street or avenue may be paved under this law, whether new or old, whether paved before or not.
    There is a distinction between this case and an ordinary case of repaving. The cases that have arisen where the authority of the corporation to repave was'questioned, arose where the city removed one pavement and replaced it with another. The weight of authority is decidedly in favor of the power of municipal corporations to repave and to assess the costs of the last pavement on the abutting property owners. Williams v. Detroit, 2 Mich., 560; Sheley v. Detroit, 45 Mich., 431; Wilkins v. Detroit, 46 Mich., 120; McCormick v. Patchin, 53 Mo., 33; Gurner v. Chicago, 40 Ill., 165; Kokomo v. Mahon, 100 Ind., 242; Jelliff v. Newark, 48 N. J. L. (19 Vroom), 101; Municipality v. Dunn, 10 La. An., 57; Farrar v. St. Louis, 80 Mo., 379; Estes v. Owen, 90 Mo., 113; Gall v. Cincinnati, 18 Ohio St., 563.
    II. It is alleged in the amendment to the petition that the Taylor law is a “ special act conferring corporate powers,” and is therefore in conflict with article XIII, section 1, of the constitution. This question has been so frequently before this court, and is so thoroughly understood by the bench and bar, that it is unnecessary to spend time discussing it here.
    III. The plaintiff claims that the Taylor law is in conflict with article II, section 16 of the constitution in that it amends several sections of the Revised Statutes but does not contain the section so amended nor does it repeal the sections amended. The same question was raised in the case of the State of Ohio ex rel. the Attorney General v.
      Wall et al., decided at the April term of this court, 1890.
    IV. It is alleged that the Taylor law is in conflict with article XIII, section 6 of the constitution, because it does not restrict the power of assessment. It is not necessary to restrict the power of assessment in all laws providing for municipal assessment, in order to make them harmonize with this provision of the constitution. Only in those laws in which there may be an abuse of the power of assessment is it necessary to place a restriction. It would be vain to place a restriction in law, providing for an assessment, in which there would be no abuse of the power of assessment. The power of assessment under the Taylor law cannot be abused. It is not necessary to limit the power of assessment in a case where there can be no; abuse of it. The assessment that is exacted by this law is taken from the real estate, over which the owner has absolute dominion, and is transferred to the street in front of the property, in which the owner has a special property interest.
    But there are limitations upon the power of assessment under this law. The cost of the improvement of but one street can be assessed upon the real estate abutting on that street.
    Another restriction placed upon the power of assessment under this law is found in the provision that the city is limited to the collection of one-eighth of the assessment during any one year. The assessment must be distributed over at least eight years. It may be more.
    A corporation is also required to adopt a resolution by a two-thirds vote, declaring the necessity of making such an improvement; it is also required to pass an ordinance by a like vote, providing for the improvement. The corporation must give the property owners written notice of its intention to make the improvement. It must publish the resolution and ordinance in a newspaper of general circulation in the corporation. These are all restrictions upon the power of assessment. Maloy v. The City of Marietta, 11 Ohio St., 636; Hill v. Higdon, 5 Ohio St., 243.
    This provision of the constitution is directory only. It is not necessary in the organization of municipal governments to satisfy this provision of the constitution, that all. laws providing for assessments should contain a limitation upon the power of assessment. If some of the laws contain a limitation—those under which there is liable to be an abuse of power—this provision of the constitution is satis- . fied.
   Minshall, J.

On May 11, 1886, the legislature passed an act known as the “Taylor Raw,” conferring authority upon the councils of cities of the first grade, of the second class, “to cause any .of the streets or avenues or parts thereof of said city to be paved with granite or other stone block, asphalt or other permanent material, * * * and to provide that said improvement shall be paid for and assessed upon the property abutting on the same in accordance with the various provisions of this supplement and in accordance with the various provisions of law enacted, or hereafter enacted, applicable thereto, and not inconsistent with this act,” and, for the payment of the cost and expense, further authorized the issuing of the bonds of the city, to be paid from assessments on the property authorized to be assessed, “to extend over a period of at least eight years, to be provided in the ordinance directing the improvement.”

The act was amended March 21, 1887, by a provision that section 2270, Revised Statutes, should not apply to improvements under this act. 83 Ohio Raws, 140; 84 Ohio Raws, 176. On March 26,1888, the city council of Columbus—a city of the first grade, of the second class—(State v. Wall, 47 Ohio St., 499), having taken the necessary preliminary steps, passed an ordinance for the improvement of Town street from Parsons avenue to Parsons’ east line, by surfacing the roadway with asphalt, and resetting the curb, the payment of the cost of the improvement by the issuing of bonds, and for the assessment of an amount to meet the bonds equally upon the property “fronting or abutting” on the improvement “by the foot front.”

On May 5, 1888, the action below was commenced by the plaintiff, George M. Parsons, in the court of common pleas, to enjoin the making of the improvement proposed by the ordinance, on the ground that the improvement was not authorized by the law—that part of the street having, as averred, been already improved by himself in a substantial manner, with “round cobblestones,” laid in sand, and pounded solid, on a foundation that had been suitably prepared. A demurrer having been sustained to the petition, it was amended by making various constitutional objections to the validity of the act of the legislature, to which a demurrer was also sustained. A supplement was then filed, setting up the completion of the work, the making of the assessments on his property, and asking that their collection be enjoined. A demurrer to this was also sustained, and an appeal taken to the circuit court, where the same rulings were made on the different pleadings, and the petition dismissed. These rulings are assigned for error here.

It seems very clear to us that the improvement that had been made in Town street by the plaintiff prior to the act authorizing cities of the grade and class of Columbus to improve any of their streets and avenues, or parts thereof, with granite or other stone-blocks, or with asphalt or other permanent material, did not preclude the city from so improving the part of Town street that had been improved with cobblestone by the plaintiff. So far as appears from the petition, the improvement made by the plaintiff was a voluntary act on his part, and could not, therefore, estop the city, through its council, from making an improvement of the character provided for by the act of May 11, 1886, and assessing the cost thereof on the property abutting on the improvement. However substantial this improvement may have been, it was for the council to determine, in the exercise of the authority given by the act, whether it ansswered the requirements of the public at this time, and whether the street should be improved with the material, and in the manner, authorized by the act. It' cannot be allowed that one property holder on a street can, by voluntarily making an improvement in the street, suitable to his own convenience, preclude the city from improving it in a manner required by the wants of the public and others upon the same street. The control of the streets is placed in the city, to be exercised for the public convenience; and no citizen can, by any act of his own, impair the authority so conferred.

The ground on which the validity of the act of May 11, 1886, is principally challenged, is that it contains no restriction on the power of assessment conferred by it, as required by the constitution. That instrument provides (article 13, § 6) that: “The general assembly shall provide for the organization of cities and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers.” Many of the other states have provisions in the fundamental law of each, substantially, if not identically, the same as our own; and the language of our own seems to have been copied from that of the state of New York. The injunction, it will be observed, applies as well to the power of taxation, of borrowing money, of contracting debts, and loaning their credit, as to the power of assessment, and is no more imperative in the one case than in the others. It has engaged the attention of some of our ablest courts and judges, and all, with a remarkable concensus of opinion, have held that, while it is a most salutary provision, it is addressed to the conscience and judgment of the legislature, and is not a subject for “judicial correction.”

Judge Dillon, after quoting the language in the constitution of the state of New York, and observing that it is substantially contained in the constitution of several of the states, says: “This obviously enjoins upon the legislature the duty of providing suitable and proper restrictions upon the enumerated powers; but in what these restrictions shall consist, and how they shall be imposed, are subjects left to the discretion or sense of duty of the legislative department, with the exercise of which the courts cannot interfere.” 1 Dill. Mun. Corp., § 50. Judge Cooley adopts the same construction, his language being that: “These requirements, however, impose an obligation upon the legislature, which only its sense of duty can compel it to perform. It is evident that if the legislature fail to enact the restrictive legislation the courts have no power to compel such action.” Cooley, Const. Rim. 636. See, also, Cooley, Tax’n, 845. The following are some of the cases in the other states in which this provision in the constitution of each has been construed, and held not to confer any power of judicial correction. Bank of Rome v. Village of Rome, 18 N. Y., 38, affirmed in re Village of Rhinebeck, 82 N. Y., 621; People v. Mahaney, 13 Mich., 482, opinion by Cooley, J. ; Hines v. City of Leavenworth, 3 Kan., 186; City of Newton v. Atchison, 31 Kan., 151, 1 Pac. Rep., 288; State v. City of Madison, 7 Wis., 688; Weeks v. City of Milwaukee, 10 Wis., 242.

In Foster v. City of Kenosha, 12 Wis., 617, the Supreme Court of Wisconsin has been regarded as holding a somewhat opposite view. But all that the court there decided is that the legislature cannot confer an unlimited power upon a city to raise monejr by taxation; it must be limited to municipal purposes, and because, in the judgment of the court, the statute it was then considering conferred such unlimited powers, it was held invalid. The case stands alone, and has been virtually overruled by the Supreme Court of the United States in City v. Lamson, 9 Wall., 477, on the ground that it is inconsistent with the previous decisions of the same court, cited supra. 1 Dill. Mun. Corp., § 50.

But, so far as the case before us is concerned, we need not go beyond the former decisions of this court. Hill v. Higdon, 5 Ohio St., 243; Railroad Co. v. Connelly, 10 Ohio St., 159; Maloy v. City of Marietta, 11 Ohio St., 636; Walker v. City of Cincinnati, 21 Ohio St., 14, 46.

It cannot be said that the act in question contains no restrictions upon the power granted to cities of the first grade, of the second class. The power granted is to improve their streets and alleys in a certain manner, and to assess the cost of the improvement upon property abutting upon the same in accordance with its provisions, and “the various provisions of law now enacted * * * and not inconsistent with this act.” Now, there are manjr provisions in the law regulating “ assessments in general,” not inconsistent with the act, and therefore applicable to improvements made under it. The necessity of the improvement, when deemed necessary, must be declared by resolution, and twenty days’ written notice of its passage must be given to owners of property abutting upon it, and the resolution must then be published for not less than two weeks in some newspaper of general circulation in the corporation. Section 2304, Revised Statutes. As the cost of the improvement is, by the act, to be assessed upon “abutting property,” no improvement can be made under it “ without the concurrence of two-thirds of the whole number of the members elected to the council,” unless two-thirds of the owners to be charged petition in writing therefor. Section 2267. And for a like reason, by section 2264, the council must, by ordinance, set forth specifically the lots and lands to be assessed, which, by section 1695, must be published in some newspaper of general circulation in the corporation before going into effect. By the act itself, assessments are confined to “ abutting property;” the bonds issued to pay for the improvement must be made, by the ordinance directing the improvement, to extend "over a period of at least eight years;” and the assessments shall be made payable in equal installments to meet the bonds. It then appears that the power of assessment conferred by this act is subject to many restrictions contained in the act itself, and in the general law on the subject of assessments, that are applicable to it. They may not be as adequate to the prevention of abuses as they should be, but such inadequacy “lays no foundation for judicial correction.” Hill v. Higdon, supra. In Maloy v. City of Marietta, the validity of an assessment for a street improvement under the towns’ and cities’ act of May 3, 1852, and its amendments, was questioned on the ground that the legislature, in granting the power, had not so restricted it as to prevent abuse; the principal objection being that it contained no limitation upon the amount that might be assessed. Judge Peck, in delivering the opinion, doubting whether, if the act conferred an unrestricted power, courts could for that reason hold the statute invalid, and citing the language of Judge Ranney in Hill v. Higdon, said: “Be this as it ma3?, the section, while it imposes the duty, leaves to the legislature the power to determine the mode and manner of the restriction to be imposed.” And the requirement of the act, that no improvement, the costs of which are to be assessed upon the owners of abutting propertjq shall be made without the concurrence of two-thirds of the members elected to council, or unless two-thirds of the owners to be charged petition therefor in writing, was held to be a restriction; and, whether adequate or not, the court said, “Further remedy must be left where, we conceive, the constitution has placed it—in the prudence and sagacity of the law-making power.” To this we may add what is said by Judge Scott in Walker v. City of Cincinnati: “It is very clear that this constitutional mandate cannot be enforced according to judicial discretion and judgment. In the very nature of the case, the power which is to impose restrictions so as to prevent abuse must determine what is an abuse, and what restrictions are necessary and proper.”

Importance is attached to language used by Judge White in Cincinnati v. Oliver, 31 Ohio St., at page 374, “That the granting of the assessment, and the duty of restricting its exercise so as to prevent abuse, are made inseparable by the express provision of the constitution.” This is not questioned. But as to where the duty rests, and whether subject to judicial correction, were not presented nor considered in the case.

It is also claimed that Maloy v. City of Marietta, should be overruled, as wrongly decided, and inconsistent with Chamberlain v. Cleveland, 34 Ohio St., 551. We do not think that it was wrongly decided', and the claim that it is inconsistent with Chamberlain’s case is a misapprehension of that case. The question there considered and passed on by the court was not the validity of the statute, but the validity of the proceedings had under it. The proceedings were held invalid for want of conformity to the law, in apportioning the assessment, and the cause remanded for the making of a new one.

Other objections have been made to the validity of the statute; but, after carefully considering them, we find none that would warrant the court in holding the law to be unconstitutional.

Judgment affirmed.

Dickman and BuriíET JJ., dissent from the first and second propositions of the syllabus.


source: Caselaw Access Project

author: Minsharr, J.

license: Public Domain

text:
    Haviland et al. v. City of Columbus et al.

      Assessments for local improvements—Application of front-foot rule.

    1. Iu assessing th& cost of a street improvement on abutting property by the front foot, regard must be had' to what is the real front of the property. This is a question of fact, to be determined by the manner in which it was laid out, or in which it has been built upon, and used and occupied, by the owner.
    2. If a lot abuts lengthwise on the improvement, but fronts breadth-wise on another street and not on the improvement, the lot should be deemed as fronting breadthwise on the improvement, and be assessed for the number of feet on the improvement that it would have in such case, and no more.
    (Decided June 20, 1893.)
    Error, to Circuit Court, Franklin county.
    This case was argued and submitted with that of Parsons v. City of Columbus, and a number of others, on the questions made as to the validity of the statute known as the “ Taylor Law; ” and these questions, having been considered and determined in the report of that case, will not be further considered here. The facts distinguishing it from that of Parsons, and requiring a separate report, are stated in the opinion.

      E. L. De Witt and C. S. Cherington, for plaintiffs in error.

      Paul Jones, city solicitor, for defendants in error.
   Minsharr, J.

The action below was commenced in the court of common pleas, where it was disposed of on a demurrer to the petition, and appealed to the circuit court. The circuit court, as had the common pleas, sustained a demurrer to the petition, and rendered judgment in favor of the city. The error assigned is the ruling of the court on the demurrer, and rendering judgment for the city.

It is averred in the petition that the plaintiffs were the owners on March 18, 1889, of lot No. 11, of Nelson’s addition to the city of Columbus, situated on the northeast corner of Main street and Miller avenue, fronting 37^- feet on Main street, and extending the same width northwardly along and abutting on Miller avenue 75 feet; that on March 19, 1889, the city council, by ordinance, directed the improvement of Miller avenue from Main to Broad street, under the “Taylor Raw,” and thereafter the improvement was made as directed by the ordinance, and on November 4, 1889, the council, by ordinance, assessed the entire cost and expense of the improvement on the abutting property by the foot front, including the property of plaintiffs, which was assessed $4.49 per foot for its entire length on the avenue, with a credit of a few cents per foot, the aggregate amount assessed, after deducting the credit, being $725.75; that the lots “abutting and properly fronting upon the improvement of the avenue—not lying lengthwise—have a frontage of from 32 to 33 feet on the avenue, and a depth of 150 feet; and that those in the blocks of lots next and near the plaintiffs have a frontage of 32.40 feet, and a depth of 150 feet. They claim the law to be invalid, and further say that under it their lot should only have been assessed “ for such a frontage” .on the avenue as it would have had,, were it of the average depth of lots in the neighborhood, that is, 150 feet; whereas it has been assessed without regard to the depths of lots or lands, and whether they lie lengthwise, or properly front on the improvement, and wholly without regard to the benefits conferred; that they took no part in promoting the improvement; that the assessment has been placed on the tax duplicate, and the treasurer threatens and intends to collect the same,—and asks that it be enjoined.

Section 2264, Revised Statutes, applicable to the “Taylor Raw,” provides, among other things, that: “In all cases where an improvement of any kind is made of an existing street, alley, or other public highway, the council may decline to assess the costs and expenses * * * or any part thereof * * * on the general tax list, in which event such costs and expenses, or any part thereof, which may not be so assessed on the general tax list, shall be assessed by the council on the abutting, and such adjacent and contiguous, or other benefited lots and lands in the corporation, either, (1) in proportion to the benefits which may result from the improvement, or (2) according to the value of the property assessed, or (3) by the foot front of the propertjr bounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made.” The council in this case adopted the mode of assessing by “the front foot.” It is evident) as we think, from the reason and language of the statute, that in so doing it must, in assessing a particular lot abutting on the improvement, have regard to what the front of the lot is. It may abut, and yet not front, on the improvement, for its full length, or any part of it. Hence, where it lies lengthwise on the improvement, as does the lot of the plaintiffs, it should be determined, as a question of fact, whether its full length is its front, or not. If, as a matter of fact, it fronts breadthwise on another street, as we understand from the petition the lot of the plaintiffs does, then, that the system of assessing by the front foot may have a uniform operation upon all the property assessed, it should be deemed or regarded as fronting breadthwise on the improvement, and the assessment on the lot should be for the number of feet it would then have; that is to say, in the case of the plaintiffs, 37-|- feet, and no more.

It may be said that this is assessing according to a fiction. Admit this to be true, and still it must be remembered that equity many times resides in fictions, and that they have frequently been resorted to for the purpose of working out justice against the hard lines of the law. But, at any rate, the city cannot be heard to complain: For if we were to apply the strict letter of the statute to the mode of assessing adopted in this case, by the foot front, it might well be questioned whether it could assess a dollar on a lot that does not in fact front, although it may abut, on the improvement. The authority is to assess, not by the abutting, but by the front foot. Abutting property may, as will be seen by reference to the above section, be assessed in three differ-eat modes—in proportion to benefits, according to valuation, or by the front foot; so that, strictly speaking, no lot could be assessed by the front foot unless it fronted, as well as abutted, on the improvement.

Whatever mode may be adopted for apportioning an assessment for the cost of an improvement, the principle of the rule must apply with uniformity to the property of all who are assessed. Here the principle of the rule adopted is that an improvement upon a certain street benefits the property on it in proportion to the frontage of each lot. While this method may not be as equal in theory as that by a valuation, or as that of an apportionment according to benefits, in practice it is found to be more equitable than either, because of the difficultjr of applying the principle of the other methods so as to attain equality. But to make it just and equitable it must conform to the principle upon which it is adopted— assessment by the front foot, not by the abutting foot, merely. This must, in each case, be a question of fact, and can in most instances be easily determined. Tots usually front breadthwise, and not lengthwise, on a street. But a lot may be built upon, used, and occupied with reference to a street on which it lies lengthwise, and in such case, for the payment of an improvement on the street, should be assessed for its full length, where the mode of apportionment adopted is by the front foot. Where it does not front, but lies lengthwise, upon the improvement, its real front must be taken as the length of the frontage thereon, as to exonerate it entirely would be to carry a principle beyond the limits of reason, for every lot abutting on a street improvement must, as a general rule, be benefited to some extent by it, and should, therefore, upon the principle of equality, be made to contribute proportionately to the cost of the work.

Judgment reversed, and cause remanded to the circuit court, with direction to overrule the demurrer to the petition, and such further proceedings in accordance with this opinion as may be required by law.


text:
    Cherington v. City of Columbus et al.

      Assessments for public improvements.

    Section 2283, Rev. St., is not applicable to assessments for improvements made under the Taylor law, as amended March 21, 1887 (84 Ohio Laws, 176).
    (Decided June 20, 1893.)
    Error to Circuit Court of Franklin county.

      E. L. De Witt and C. S. Cherington, for plaintiff in error.

      Paul Jones, city solicitor, for defendant in error.
   Minshall, J.

This case, in addition to the questions presented in that of Haviland v. City of Columbus, and the validity of the statute, presents the question whether under the “Taylor Raw,” as amended, thes ame lot can be assessed for the improvement of two different streets or avenues, within the period of five years, in such amounts that the maximum assessment fixed by section2270, Revised Statutes, is exceeded. The facts, as averred in the petition are these: On March 26, 1888, an ordinance was adopted to improve Town street in front of Cherington’s lot, No. 18, and on October 29 his lot was assessed for the improvement the sum of $279.84. The assessed valuation of the lot for taxation was $240. On May 7, 1888, an ordinance was passed for the improvement of Ohio avenue, on which his lot lay lengthwise, and on December 17, 1888, it was assessed for this improvement by the foot front, amounting to $1,011.65. Section 2283, Revised Statutes, provides that “special assessments,'whether by the feet front or otherwise, shall be so restricted that the same territory shall not be assessed for making two different streets or avenues, within a period of five years, in such amounts that the maximum assessment therein provided will be thereby exceeded.” The limitation referred to is contained in section 2270, Revised Statutes, fixing the limit at 25 per centum of the value of the property as assessed for taxation. The statute authorizes a city of the first grade, of the second class, to improve any of its streets or avenues in the mode and manner therein provided; and by the amendment of March 21, 1887, it is declared that section 2270 should not apply to any improvement “ ordained” under that act. It is then quite plain that the provisions of section 2283, relative to, and based upon, section 2270, are not applicable to the “Taylor Taw.”

But as the lot of the plaintiff in error is assessed by the front foot for the improvement on Ohio avenue, on which it abuts lengthwise, it is, for the reasons given in Haviland v. City of Columbus,

Reversed and remanded to the circuit court, with direction to overmle the demurrer to the petition, and for further proceedings in accordance with opinion in Haviland v. City of Columbus.


author: Hickman, J.

text:
    Conrad v. Everich et al.

      Decree for alimony—Lien upon real estate.

    In an action by the wife, for divorce and alimony, a decree for alimony in money payable in gross will operate per se as a lien upon the lands of the husband in the county where it is rendered, and may be enforced by levy of execution upon such lands, when they have been conveyed by the husband after the rendition of such decree.
    (Decided June 20, 1893.)
    Error to the Circuit Court of Muskingum county.
    The facts are stated in the opinion.

      Charles A. Beard, for plaintiff in error.

      W. H. Ball, for defendants in error.
   Hickman, J.

The original action was commenced in the court of common pleas of Muskingum county, by the plaintiff, Minerva Conrad, against the defendants, Sarah E. Everich and W. H. Bolin, as sheriff of that county. The object of the suit was, to enjoin the sale under execution of certain lands and tenements in Zanesville, Ohio, described in the plaintiff’s petition, which had been levied upon by the sheriff, to satisfy a claim for alimony in favor of Sarah E. Everich. As disclosed by the record, the undisputed facts that give rise to the only question before us for determination, are as follows:

At the Jannary term, 1889, of the court of common pleas of Muskingum county, Sarah E. Everich obtained a divorce from her husband, James S. Everich, in an action for divorce and alimony, wherein the court, having ordered the delivery to her of certain articles of personal property of which she was the owner, further ordered, adjudged and decreed that James S. Everich pay to her additional alimony in the sum of one thousand dollars, and in default of such payment within five days thereafter, that execution issue therefor ; and further, that he pay the taxed costs of the action, and that execution issue therefor in default of payment. Neither the petition in the action nor the decree for alimony, described, mentioned, or referred to any lands or tenements; and the decree for alimony was simply for the gross sum of one thousand dollars in money, and was not, by its terms, made a charge upon any real estate.

On March 14, 1889, Mrs. Everich caused an execution to be issued against the property of James S. Everich, to satisfy the judgment for alimony and costs, and the same was levied by the defendant, W. H. Bolin, as sheriff, upon certain personal property, but, no levy thereof was made on any lands and tenements, and the same was duly returned into the office of the clerk of the court on May 4, 1889. The personalty levied on was sold for $48.20, for which a credit was given on the execution; and on August 1, 1889, a second execution was issued, and levied on the lands and tenements described in the petition, which the sheriff caused to be appraised and duly advertised and offered for sale.

On the 10th day of July, 1889, the plaintiff, being fully informed of the decree for divorce rendered at the January term, 1889, of the court of common pleas, purchased the lands and tenements so levied on, from James S. Everich, who, on that day, conveyed to her in fee simple the purchased premises.

At the time of the purchase of the property, there was a mortgage thereon which had been executed by James S. Everich and Sarah E. Everich, when husband and wife; and by the terms of the contract of purchase, the plaintiff was to assume the payment of that mortgage as part of the consideration of the conveyance to her. A release of the mortgage was accordingly obtained, by the plaintiff executing with her husband, to the mortgagee, a new mortgage on the property for the amount originally secured.

As prayed for in the plaintiff’s petition, the court of common pleas perpetually enjoined the defendants from selling or offering for sale, by virtue of the judgment for alimony, the lands and tenements levied on, and advertised for sale under execution.

On petition in error by Sarah E. Everich, the circuit court reversed the judgment of the court of common pleas, and remanded the cause for a new trial. By this proceeding in error, the plaintiff, Minerva Conrad, seeks to reverse the judgment of the circuit court.

Upon the facts as thus stated, the question is presented, whether the judgment in favor of Mrs. Everich' for one thousand dollars in gross, as alimony, was, per se, a lien on the lands of James S. Everich in Muskingum countj’. If such lien was thereby created, the claim for alimony must take precedence of any rights under the deed executed to the plaintiff subsequently to the rendition of the judgment.

It is urged in behalf of the plaintiff, that in Olin v. Hungerford et al., 10 Ohio, 268, decided in 1840, it was held that, a decree for alimony, to be paid in installments, does not operate as a lien upon the real estate of the defendant unless made a charge thereon by the decree itself. The decree in question in that case was rendered in 1831, and its effect was determined in accordance with the statute in force at the time of its rendition. By the act then in operation, the court in their discretion might grant alimony, where the evidence justified such decree. 2 Chase’s Stat. 1409. The statute did not make the decree a lien on real estate; nor was the effect of the decree, as to alimony, declared; nor was the mode of enforcing its payment designated. But the power to grant alimony having been conferred, some mode of enforcing its payment incidentally followed. And the court, while adopting the practice of enforcing collection by execution, considered it an exercise of legitimate power to make its decree a charge upon real estate, and such had been its practice in cases where it was deemed proper. It is true that, by section 7 of the act of March 14, 1831, “directing the mode of proceeding in. chancery,” 3 Chase’s Stat. 1692, it was provided that, “ decrees in chancery shall from the time of their being pronounced, have the force, operation and effect, of a judgment at law.” But the court, in the above cited case, did not recognize a sufficient analogy to hold, that a decree in a divorce case, which allows alimony to the wife, and which is a statutory proceeding throughout, is in the nature of a decree in chancery; and was of the opinion, that there could be no more propriety in calling the proceedings in a divorce case proceedings in chancery, than there would be in calling proceedings for the partition of real estate, under the statute regulating 'that subject, proceedings in chancery. By the amendatory act, however, concerning divorce and alimony, passed March 1, 1834(32 Ohio E. 37), it was enacted, “that all proceedings in cases of divorce shall be as in chancery.” But, the court in Olin v. Hungerford et al., supra, did not regard this statute as fixing the force and effect of decrees in cases of divorce, but only as providing the proceedings in order to arrive at such decrees. And hence, in delivering the opinion, the court uses the language: “Even under this statute, should we hold that a decree for a gross sum to be paid the wife would operate as a lien, it does not follow that the same principle would hold where, as in the present case, it was for the payment of specified sums annually during the joint lives of the parties.” It is manifest, therefore, that the court did not pass upon the question now before us, whether a decree for alimony payable in gross operates as a lien upon the lands of the husband in the county where it is rendered; but, as involving a difference of principle, the court signified that in respect to being a lien upon real estate, a distinction might be drawn between a decree for alimony payable in gross, and a decree payable in installments.

In Kurtz v. Kurtz, 38 Ark., 119, the court speaks of the embarrassment and inconvenience incurred by making future payments of alimony a lien upon real estate, as too obvious for discussion; but remarks that, “as for all sums ordered to be paid at once, and for which execution may issue, they are already general liens, without being so expressed.” As, in our view, a decree for a gross sum to be paid the wife for alimony would, in itself, operate as a lien, we do not think it necessary to inquire, how far a decree for alimony payable in installments, is thereby obviously distinguishable in regard to its operative effect as a lien upon real estate.

By the adoption of the code of civil procedure, the distinction between actions at law and suits in equity, and the forms of all such actions and suits, theretofore existing, were abolished; and in their place, but one form of action, called a civil action, was instituted. Prior to the adoption of the code, judgments at law and decrees in chancery were made liens by statute on the lands of the debtor in the county. But, the final determination of the rights of the parties in action is now denominated a judgment; and a' lien of judgment attaches to the lands and tenements of the debtor, within the county where the judgment is entered, from the first day of the term at. which judgment is rendered. Revised Statutes, sections 5310, 5375. This definition of a judgment is broad enough to comprise all final judgments and all final decrees. Within the meaning of the statute, a final determination of the rights of the parties in an action for divorce and alimony, in which a sum in gross is ordered to be paid as alimony, is in its nature a judgment; and if so, we discover no good reason why it should not become a lien upon lands as other judgments. In section 5697, of the Revised Statutes; the award of alimony is designated a “judgment.” It is enacted by section 5703, that the court shall, on petition for alimón}', * * * “give judgment in favor of the wife for such alimony out of her husband’s real and personal property as is just and equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or in installments.” The statute thus, to all intents and purposes, authorizes a money judgment as and for alimony, with the same force and effect, in itself, as any ■other judgment for the payment of money.

It is contended in argument that alimony is not a debt, and if not, that it is difficult to see how it is a lien unless expressly made so by the court. But, in Lockwood v. Krum, 34 Ohio St., 1, it is well said by Boynton, J., in delivering the opinion of the court: “The claim for alimony rests on the common law obligation of the husband to support the wife in a manner suitable to his condition and station in life during the existence of the marriage relation. And this obligation is as binding after the commission, by the husband, of a marital offense entitling the wife to a divorce, as before. 'In respect to such obligations she may well be held to be a creditor of the husband.” In Chase v. Chase, 105 Mass., 385, it was held that a judgment for alimony in the case of a divorce a viñado, or from bed and board, creates a debt of record in favor of the wúfe, and that she is entitled, as a creditor, to impeach a conveyance made by him with intent to defraud her. It is said by the Supreme Court of the United States, in Barber v. Barber, 21 How., 582, 595, that when the court having jurisdiction of her suit, allows the wife from her husband’s means, by way of alimony, a suitable maintenance and support, “it becomes a judicial debt of record against the husband; and is as much a debt of record, until the decree has been recalled, as any other judgment for money is.” And if the duty of the husband to provide proper maintenance and support for his wife, before' and after a decree of divorce, is not technically a debt, it is, nevertheless, a paramount obligation springing out of a sacred relation, which, when it has passed into judgment, should, as such, carry with it the well known binding force that attaches to judgments at law.

We have examined the adjudications in the several states to which our attention has been called, and we think that reason and the weight of authority favor the conclusion, that a decree of divorce awarding alimony to the wife in a gross sum, creates a lien on the husband’s real estate.

In the case of Lawton's Petition, 12 R. I., 210, it was held that an allowance of alimony in the sum of one hundred dollars per annum during the wife’s natural life, or until the further order of the court, to be paid semi-annually, did not constitute a lien, payment not having been secured by an express charge on the real estate. But, in that state, judgments are not liens upon real estate except under levy of execution, and decrees for alimony are not an exception unless they become so by being specially charged upon lands.

In Frakes v. Brown, 2 Blackf., 295, the wife obtained a divorce, and a judgment for the sum of five hundred and fifty dollars as alimony. By virtue of a fieri fiadas issued upon this judgment, the land in question was sold, and Brown, the complainant, was the purchaser. In a bill in chancery, the complainant prayed that a conveyance of the land made by the husband to the defendant, Frakes, might be set aside as fraudulent and void. In the opinion Brackford, J., says: “It is said, that real estate is not liable on a decree for a divorce and alimony. The answer to this is, that here is a judgment against the husband for a certain sum of money, rendered by a court having jurisdiction of the cause; and that every judgment of this kind is, by statute, a lien on real estate. It is not for this court to look beyond the judgment in the case before us. It must be considered as having the same effect as all other judgments for the payment of money, whilst it stands unreversed and remains unsatisfied.” The statute by which judgments became a lien on real estate, was the general enactment: “Judgments in the circuit courts, are hereby made liens on the real estate of the defendant or defendants, from the day of the rendition thereof, in the county where such judgment may be rendered.” Rev. Raws of Ind. (1824), 192.

In Keyes v. Scanlan, 63 Wis., 345, the complaint set out, that the plaintiff recovered a judgment for divorce against her husband, and that the sum of three hundred dollars alimony, and costs of suit, were adjudged in her favor. Section-'2367 of the Annotated Statutes of Wisconsin, provides, that upon the failure to pay the alimony adjudged to the wife, “the court may enforce the payment thereof by execution or otherwise, as in other cases.” In construing this language, the court say: “There are very satisfactory reasons for saying that the divorce judgment stood upon the same footing as ordinary money judgments, and became a lien upon the real estate of the debtor liable to execution, as soon as docketed.” Further citations are unnecessary. These and similar cases illustrate the principle, that a judgment for a gross sum should be none the less a lien on real ■estate, because rendered for alimony in a divorce proceeding.

In our opinion, the circuit court did not err in holding that the plaintiff, Minerva Conrad, could not maintain her action to restrain the sheriff from the sale of the premises acquired by her after the judgment for alimony was rendered, and that such judgment became a lien on the premises, which Mrs. Everich could enforce by a levy of execution, and a sale to satisfy it.

Judgment affirmed.


author: By the Court.

text:
    Steering Wrench Co. et al. v. Amstutz.

      Corporations—Stockholders—Agreement by, to contribute to pay debts of—How en forced—Pleading.

    1. An agreement entered into by solvent shareholders of an embarrassed corporation, that they will severally contribute to raise a fund to pay the corporate liabilities, creates a valid obligation; and, if the share to be contributed by each is not expressly fixed by the terms of the. agreement, each should contribute in the proportion that the number of shares of stock owned by him bears to the shares held by all the contributors.
    2. Where, in such case, one of the shareholders agreed that, as part of his contribution, he would cancel and surrender a promissory note held by him against the corporation and a part or all of the other contributing shareholders, for a corporate debt, and such other contributors have performed the agreement on their part, they and the corporation'may set up the contract in bar of a recovery in an action brought upon such note.
    3. Where facts sufficient to defeat the plaintiff’s right of recovery appear in an answer, it is error to sustain a demurrer to it, however uuskillfully the material facts may be arranged with reference to each other, or with reference to other and immaterial facts.
    (Decided June 20, 1893.)
    Error to the Circuit Court of Wayne county.
    Defendant in error brought an action in the Court of Common Pleas of Wayne county, on' a promissory note, against The Sterling Wrench Company, the maker, and a number of its stockholders, as guarantors thereof.
    The plaintiffs in error set up in bar of a recovery on the note the following amended answer:
    “ The defendants now come and on leave of court file this, their amended answer, and say that said Sterling Wrench Co. is incorporated as stated in the petition, and that said note was executed as stated in the petition.

      “ The defendants further say that on or about the first day of April, 1887, the said plaintiff was a member and stockholder of The Sterling Wrench Co., together with said defendants herein, and that at said time The Sterling Wrench Co. was greatly embarrassed and in debt in the sum of about $30,000, which said $30,000 was made up of this note sued upon in the petition, and other notes on which plaintiff was a joint maker in the sum of about $3,000. That on or about the first day of April, 1887, the said Sterling Wrench Co. and said defendants herein, together with the plaintiff, as sureties, having theretofore executed and delivered their joint note to the Phcenix National Bank of Medina for the sum of about $3,000, with accrued interest, and the said note then being due and not paid, the plaintiff herein and the defendants, all being members and stockholders oí The Sterling Wrench Co., called a meeting to devise plans for liquidating their indebtedness and avoiding litigation by suits then threatened to be brought against The Sterling ^rench Co., the plaintiffs and the defendants herein; that at said time all of said thirty thousand dollars indebtedness was then due; that plaintiff was liable, as a joint maker with the defendants herein on said note, to the Phcenix National Bank of Medina. That said defendants were indebted to him in the sum of about $2,000 as represented by the note set out in the petition; that at said date the plaintiff and one Steiner were the only members of and stockholders of said company who had advanced any money to said company individually ; that said Steiner, as payee, had a note of even date and of like amount of the note sued upon herein, made and executed by the same defendants.
    “ That at said date it was mutually agreed, in order to save The Sterling Wrench Co. and the defendants herein from the threatened law suit on said notes, aggregating about $30,000, and to save said defendants and the plaintiff herein from the threatened law suits for the collection of said $3,000 note made to the Phoenix National Bank of Medina, as aforesaid, which said note was one of the notes included in said aggregate debt of $30,000, that if the plaintiff and said Steiner would surrender, cancel and hold for naught their said notes made to them and 'Signed by the same payers which signed the note set out in the petition, the stockholders of said company, who were liable for said debts, agreed to pay off and liquidate all outstanding debts and to pay the note to the Phcenix National Bank of Medina, of which said plaintiff was a joint maker, and relieve plaintiff from further responsibility, if he, the said plaintiff, would no longer seek to hold said defendants herein on the note set out in the petition. And that said John C. Steiner then and there also agreed that he would not hold his note, which is like the note set out in the petition against said defendants herein, as a valid claim, if said stockholders of said Sterling Wrench Co. would liquidate the debts of said company in the manner aforesaid.
    “That at the date aforesaid, the company being indebted in the sum of about $80,000 as aforesaid, many of the stockholders of said company being totally irresponsible for their debts and owning a large amount of the capital stock of said company, the said plaintiff herein and the said John C. Steiner, Daniel Amstutz, C. E. Steiner, Joseph Ross, Jacob Krause, Christian Krause, A. A. Burkholder, Ered Amstutz, John Amstutz and Joseph Amstutz, being the only responsible members of said compan}*-, owned about 55 per cent, of the capital stock of said company. That it was' then and there mutually agreed by plaintiff and the defendants that if the said plaintiff and the said John C. Steiner would cancel their debts, which is the note set out in the petition aiid said note held by said John C. Steiner, heretofore described herein, being an indebtedness against the said company and said defendants, and contribute the same as a part of their aliquot share towards liquidating the whole of said indebtedness; that thereupon the said plaintiff and the said John C. Steiner did agree and accept the terms hereinbefore mentioned ; that John C. Steiner has wholly and fully carried out the terms of his said agreement, and has caused his said note to be canceled by way of contribution to the payment of said debts. And as addition thereto paid his aliquot proportion to the amount of about $5,000, including said note, and has fully liquidated his share of the indebtedness as he had then and there agreed to do pursuant to said agreement and understanding with the plaintiff and said stockholders of said company, and, in pursuance to said agreement said stockholders who were responsible and relied upon the promises of the plaintiff to contribute said note and such further sum of money as would be necessary for the plaintiff to fully liquidate his share of the indebtedness of said corporation, did pay off and fully liquidate said note for which plaintiff was liable as a joint maker to the Phoenix National Bank of Medina, Ohio. That said defendants herein, said stockholders of said company, would never have advanced money to liquidate said note on which the said plaintiff herein was liable as a joint maker to the Phoenix National Bank of Medina, if they had not fully believed that said plaintiff would perform his part of said agreement. That in consideration of the promise of the plaintiff, said defendants herein did stop the threatened suits about to be commenced against said company, these defendants and the plaintiff, which they would not have done, if they would not have relied wholly upon the promises of the plaintiff to contribute said note as he has agreed to do and the further sum necessary on the part of plaintiff to be contributed to liquidate said indebtedness, for which he was also liable with the defendants herein. The defendant further says that all of said stockholders did contribute towards the liquidation of said indebtedness as they had agreed to do, and relied upon the statements and agreement of the plaintiff, which they would not have done had they believed that the plaintiff would not perform his part of the agreement to be performed by him; and, by reason of the plaintiff not fulfilling his portion of said agreement, his proportionate share of said debts of said company, for which he was liable, as a joint maker, are as yet unliquidated. That the plaintiff was at the time he made the said agreement, and is now, and ever since has been able financially to pay and liquidate his proportion of said indebtedness as he agreed to do, and that the pretending to hold said note as a valid claim against defendants herein is in fraud of the rights of the defendants herein, and is by reason of the premises merely a sham and pretended claim of liability due him from the defendants, and it has been fully liquidated and paid in the manner aforesaid, and the defendants therefore pray, by reason of the premises and the facts set forth herein, that said note sued on be ordered to be delivered up to be canceled, and that in default of canceling the same the order and decree of this court stand for such cancellation. And by reason of the premises and the facts stated the defendants deny each and every allegation in the petition not admitted to be true.”
    To this answer a demurrer was interposed and sustained. No further pleadings were had, and judgment was rendered against the plaintiffs in error for the amount due on the note; this judgment having been affirmed by the circuit court, the cause was brought here for review.

      Yocum & Taggart and John McSweeny, Jr., for plaintiffs in error.

      Johnson & Taylor, for defendant in error.
   By the Court.

An inspection of the amended answer will disclose an attempt to set forth an agreement, by the terms of which the defendant in error was to cancel and surrender the promissory note upon which this action was founded; the statement of the terms of the alleged agreement wants precision and clearness, while the acts of performance on the part of the plaintiffs in error, as well as the breach of the contract by the defendant in error, is still more obscurely stated, and the mind is left in doubt whether the answer is the product of an inartistic and careless effort to set forth a bona Jide defense, or an artful attempt to arrange facts insufficient for that purpose so as to give them the appearance of constituting a valid defense. That doubt in this case, as in all cases where the contrary purpose is not fairly apparent, should be resolved in favor of an' honest purpose; and under the liberal rules for the construction of pleadings, favored by the code of civil procedure, the answer should be held sufficient if it contain the necessary facts, however awkwardly they may be stated.. The amended answer when tried by this test we think is sufficient. It shows, among other things, that the defendant in error was a solvent stockholder of The Sterling Wrench Company, a body corporate under the laws of the state; that the corporation, although its insolvency was not averred, was embarrassed by a heavy debt, which was due, and actions for its collection threatened; that the defendant in error was personally liable as a joint maker of a note representing $3,000.00 of this debt; that all of the solvent stockholders of the concern, including the defendant in error, agreed among themselves to pay off its entire debt; the defendant in error agreeing to cancel and surrender the note in suit as a part of the aliquot share to be contributed by him for that purpose. This was an original contract made by and between parties financially interested in the success of the concern, to accomplish a lawful object beneficial to each of them. Even if the mutual promises were not sufficient considerations for each other to make them binding obligations, while wholly executory, yet, after full performance by some of the contracting parties, those so performing could maintain an action upon the contract against those in default.

If claim should be made that the contract was too indefinite to support an action, in that it did not fix the aliquot share to be contributed by each shareholder, towards paying the debt, reply may be made that in the absence of an express stipulation in respect thereto, it would be held that each party should contribute such proportion of the entire debt as his stock bore to the stock of all the contributors. That inquiry, however, is not important Here, because it is averred, and the demurrer admits, that the whole amount, except the share of the defendant in error, has been contributed, and it also appears that the share of the defendant in error is at least equal to the note in suit; for the answer alleges that he was to contribute the amount of the note in suit, as a part of his aliquot share.

The full performance, by the other contracting parties, of their obligations under the contract, is expressly averred it being stated in direct terms that they “did stop the threatened proceedings; ” * * * “ that all of said stockholders did contribute towards the liquidation of said indebtedness as they had agreed to do; ” * * * that they “ did pay off and fully liquidate said note,” * * * upon which the defendant in error was liable as a joint maker, and that “ by reason of the plaintiff not fulfilling his portion of said agreement, his proportionate share of said debts of said company, for which he is liable as a joint maker, are as yet unpaid.” If this is true, the contracting parties, other than the defendant in error, have fully performed their part of the agreement, and all the debts of the concern are paid except some portion of that which he was to pay. If these facts are true, and the demurrer admits their truth, the conditions upon which the defendant in error was to cancel and surrender the note in suit have been fully performed, and their performance constitutes a good equitable defense to an action founded thereon.

Judgment reversed, and cause remanded Jor further proceedings.


text:
    Blakeslee v. Hughes, et al.

      Libel—Defense—Justification—Evide:ice—Co7npetency of.

    The plaintiff’s action was for a libel; the defense was justification. On the trial of the action in the court of common pleas, that court, over the defendant’s objection, permitted the plaintiff to give in chief to the jury, evidence of his good character. The circuit court, solely on account of this ruling of the couit of common pleas, reversed the judgment, and remanded the cause íor a new trial. Held: That the circuit court did not err.
    (Decided June 20, 1893.)

      Error to the Circuit Court of Defiance county.
    The plaintiff in error brought an action in the court of common pleas of Defiance county to recover damages for an alleged libelous article that the defendants in error caused to be published in a newspaper reflecting on his character for honesty and veracity. The defendants filed separate answers in the action, setting up the circumstances of a transaction which they claimed established the substantial truth of the publication. Upon the trial the plaintiff in error introduced to the jury in chief, over the objection of the defendants in error, evidence of his character for “truth, veracity, honesty and fair dealing.” The jury rendered a verdict in his favor, upon which the court of common pleas gave him judgment. This judgment was reversed by the circuit court, on the ground that the court of common pleas erred in permitting the plaintiff in error to give, in chief, evidence of his good character; to reverse this judgment of the circuit court, the present proceedings were instituted.

      Harris & Cameron and Thompson & Far low, for plaintiff in error.

      Coulter & Griffin, J C. Ryan and Hill & Hubbard, for defendants in error.
   By the Court.

The law presumes the plaintiff’s character to be good. 1 Hilliard on Torts, sec. 63.

Notwithstanding this, some courts and authors hold, that in actions of slander and libel the plaintiff may confirm the presumption by evidence. 3 Sutherland on Damages, 655; Shroyer v. Miller, 3 W. Va., 158.

Contention is also made that as the law only presumes an average character, the plaintiff should be permittecf to establish, if he can, a character superior to that, in order to enhance the amount of his recovery. Claim is further made that the defendant in this class of cases is not injured by the plaintiff, introducing evidence of his good character in- chief, because it only tends to establish what the law would presume in the absence of the objectionable evidence. The force of this latter contention- would be greatly increased if the evidence of good character actually introduced tended to establish a character of the same degree of excellence that the law would presume, if no evidence should be given, and if it could be certainly known the plaintiff’s good character was no more forcibly presented to the minds' of the jury by the favorable opinions of his neighbors, delivered under oath in their presence, than it would have been by a silent presumption of law. At best, the contention that the plaintiff in that class of actions should be allowed to establish by evidence a character superior to that presumed by law, cannot be harmonized with the other claim that there is no error'in allowing it to go to the jury, because it only establishes what the law presumes.

Without entering into' any discussion of the principles involved in this question, w'e think the rule forbidding the introduction of such evidence in chief, has prevailed in this state from an early period in its judicial history. The rule is plain and of easy application, works no substantial injustice, and no sufficient reason has been adduced to justify its being overturned.

Judgment affirmed.


author: Burket, J.

text:
    Schuck v. State.

      Intoxicating liqtiors—Keeper of place where sold—Duty on “ election day"—What is an “election day”—Section 6948, Revised Statutes, construed.

    The “election day” mentioned in section 6948, Revised Statutes, is a whole day of twenty-four hours; and the keeper of a place where spirituous, vinous or malt liquors are habitually sold and drank, is required to keep such place closed during the whole twenty-four -hours of the day of any election.
    (Decided June 20, 1893.)
    Motion for leave to file petition in error to reverse the judgment of the Court of Common Pleas of Wayne county.
    The defendant below, George Schuck, was indicted in the court of common pleas of Wayne county, under section 6948, Revised Statutes, for failing to keep his bar-room, where he sold intoxicating liquors, closed on election day, the 8th of November, 1892. A plea of not guilty was entered by him. Upon the trial of the case he was found guilty, and adjudged to pay a fine of twenty-five dollars, and be imprisoned one day. A motion for a new trial was made and overruled, and exceptions taken. A motion is now filed in this court for leave to file a petition in error to reverse the judgment of the court of common pleas.

      McClure & Smyser and II. R. Smith, in support of the motion.

      A. D. Metz, Prosecuting-Attorney, contra.
   Burket, J.

It seems to be conceded that the defendant is guilty as charged in the indictment, unless the court below erred in its charge to the jury as to what constitutes, “election day” under the statute, section 6948.

The part of the charge complained of, is as follows: “Now, if you find from the evidence in the case that the 8th day of November, 1892, was a day designated by law upon which either national, state, or county officers were to be elected, I say to you that the eighth day of November means the whole of that day, and election day means the whole day of the eighth day of November; that is, that the day begins at midnight at twelve o’clock, and continues until midnight at twelve o’clock. It is the full day of' twenty-four hours, and that day does not consist of only twelve hours, from six o’clock in the morning until six o’clock in the evening. If you should find that after six o’clock in the evening, the defendant kept his bar-room open contrary to the provisions of this act, or failed to-keep it closed—if you should find that after six o’clock, after the polls were closed, at any time before midnight of that day, he failed to keep his bar-room closed, then he would be guilty.”

Section 6948 reads as follows: “Whoever sells, or gives away, any spirituous, vinous, or malt liquors on any election day, or, being the keeper of a place where any such liquors are habitually sold and drank, fails on any election day to keep the same closed, shall be fined not more than one hundred dollars, and imprisoned not more than ten days.”

The words in the original act passed on this subject were, “on the day of any election.” Those words and the words of the present section mean one and the same thing —a whole day of twenty-four hours.

We think, therefore, that the court of common pleas-was right in its construction of this section of the statute, and also in its charge to the jury.

The evident intention of the legislature in the enactment of this statute was, that intoxicating liquors should not be sold or given away, on election days, and that places where liquors are habitually • sold and drank should be ■closed on such days, during the whole day of twenty-four hours.

No other construction can fairly be given to the statute as it now stands, and if it is desirable to have its operation confined to the twelve hours during which the ballots are cast, the appeal must be to the legislature, and not to the courts. Leave refiised.