author: Shauck, J.

text:
    The Toledo Railway and Terminal Co. v. The Lima and Toledo Traction Co. The Toledo, Fostoria & Findlay Railway Co. v. The Pennsylvania Co.

      Tracks of steam and electric cars may cross, hozo — Act of April 23, 1904 (97 O. L., 548), Sections 3333-1 and 2, Revised Statutes —Junior company carniot choose place of crossing — Costs shall be equitably apportioned — Weight of evidence not considered— Enforcement of interpretation of statute.

    1. The act of April 23, 1904 (97 O. L, 548, Sections 3333-1 and 2, Revised Statutes), in the cases to which it applies defines the policy of the state to be that the tracks of steam and electric cars may' cross at grade only in cases of necessity.
    2. The junior company may not defeat the operation of the act by voluntarily choosing a place of crossing at which the grades cannot he separated when there is a practicable place of crossing at which the grades may be separated.
    3. The act requires that the cost of constructing and the expense of maintaining the crossing defined by the court shall, by its order, be equitably apportioned among the parties interested.
    4. Although this court will not consider the weight of evidence in such case, it will in a proceeding in error to the circuit court examine the record to see that the order of the circuit court is in accordance with a proper interpretation of the statute.
    (Nos. 10958-11211
    Decided December 1, 1908.)
    Error to the Circuit Court of Lucas county.
    Error to the Circuit Court of Wood county.
    These cases began in the court of common pleas by applications to that court to define the mode in which the junior company should construct its road in crossing that of the senior company, the applications being made under favor of the act of April 23, 1904 (97 O. L., 548). The applications having been heard and determined in the court of common pleas, an appeal was, in each case, taken to the circuit court as authorized by the concluding provision of the first section of the act. In that court it was found, in each case, that it is reasonable and practicable to avoid a grade crossing, and an order was made for the separation of the crossings, The Lima and Toledo Traction Company being required to construct its track beneath that of the senior company, and The Toledo, Fostoria & Findlay Company to cross- the tracks of the Pennsylvania Company by an overhead structure, and in each case the character of the structure was indicated by specifications which are admitted to be sufficiently clear and complete. In both cases the court ordered that the initial costs of construction and the expenses of maintenance be borne equally by' the two companies. In the latter case the findings of the circuit court, four to ten inclusive, raise a question which is peculiar to that case.
    “Fourth. That the section line road between sections eight and nine in Lake Township, Wood County, Ohio, is a public highway, and that The Toledo, Fostoria & Findlay Railway Company has procured from the Commissioners of Wood County, Ohio, by an order duly entered upon the journal of said commissioners, the right to use the said section line road called ‘The Loop Road/ for the construction and operation of its said -line of electric interurban railway from the village of Pernberville to the north line of Wood County, Ohio, and one’ of the requirements of the grant is that the electric road shall conform to the present level of the public highway, wherever the tracks are laid in the highway, which, at this point, crosses The Pennsylvania Company’s road at grade. The electric line is constructed upon private right of way the greater part of the distance from Pemberville to Walbridge and turns into the highway about thirty rods from the proposed intersection of The Pennsylvania Company’s tracks.
    “Fifth. At the time of the filing of the application herein, and at the date of the hearing, The Toledo, Fostoria & Findlay Railway Company and The Pennsylvania Company had not agreed upon the manner and mode of crossing the tracks of The Pennsylvania Company by the tracks of The Toledo, Fostoria & Findlay Railway Company, the electric line, and The Pennsylvania Company has declined and now resists the installation of a grade crossing.
    “Sixth. At the proposed point of intersection of the two roads, The Pennsylvania Company’s lines run in a northwesterly and southeasterly direction, so that the section line road called ‘The Loop Road’ does not cross the railroad tracks at a right angle, but at an angle of about thirty-five degrees, and a grade crossing at this point would be highly dangerous.
    “Seventh. It is entirely reasonable and practicable to present and avoid a grade crossing at the point of the proposed intersection, and it is entirely practicable and reasonable that the grades be separated by the construction for the electric line of an overhead crossing. It is not practicable or reasonable to construct an undergrade crossing of the tracks of The Pennsylvania Company. Such crossing would bring the tracks of the electric road below high water mark, and the water would interfere with the operation of the road at that point.
    “Eighth. To carry the crossing overhead within the limits of the highway at this point would be destructive in part of the uses of the road; the structure would necessarily occupy about twenty-two feet of the width of the road for a distance of about one thousand feet, and would necessarily be immediately in front of a large number of dwellings and store buildings and would impair the access of the proprietors thereof to the public highway.
    “It would be practicable from an engineering standpoint to construct and operate an overhead crossing at this point within the limits of the highway, but the damage to private property therefrom would be so great, and the prevention of such crossing by the public authorities or others by legal process would be so probable, that, if there were no other point near by at which an overhead crossing could be constructed and operated conveniently, it would not be reasonable and practicable to prevent and avoid a grade crossing.
    “Ninth. That at points within a distance of six hundred feet easterly from said highway and railway crossing, it is reasonable and practicable to obtain a right of way for, and to construct and operate an overhead crossing with proper approaches, for said electric railroad over said Pennsylvania Company’s tracks, and such crossing need not have any greater curvature or heavier grades than the grades and curves of said electric line of The Toledo, Fostoria & Findlay Railway Company at other points upon its line.
    “Such overhead crossing is the mode that will do the least practicable injury to the rights of The Pennsylvania Company.
    “Tenth. That the form of construction herein ordered is practicable and reasonable, and that it is fair and just to divide the expense as herein adjudged.”
    The following order followed the findings of fact in that case:
    “Upon the foregoing facts, the court orders, adjudges and decrees that a grade crossing of the tracks of The Pennsylvania Company by the track of The Toledo, Fostoria & Findlay Railway Company shall be, and the same hereby is, prevented, except as to the temporary crossing as hereinafter provided; that the track of the said The Toledo, Fostoria & Findlay Railway Company shall cross the -tracks of The Pennsylvania Company by an overhead structure composed of a steel span skew bridge and the necessary approaches thereto; that said approaches shall be constructed by an earthen fall of sufficient width for a single track, and the steel bridge or span shall be supported by concrete abutments at either end, of the necessary size and style, and said bridge shall be built of steel of sufficient, width for a single track and have sufficient strength to sustain the weight of the traffic to be carried with a proper allowance as a factor of safety; said steel structure to weigh approximately' one hundred and fifty thousand pounds; and the lowest parts of said bridge to clear The Pennsylvania Company’s tracks at least twenty-one feet.
    “It is further ordered, adjudged and decreed that the cost of the necessary right of way for said overhead structure and fill from the point where such right of way leaves the highway to the point where it returns to the highway, and the cost of constructing said entire fill and structure shall be borne equally by both coiaapaaiies.
    “That the cost of future maintenance of said entire overhead crossing, including approaches, ties and rails, shall be borne alone by said The Toledo, Fostoria & Findlay Railway Company, its successors and assigns, except the maintenance of the bridge span and abutments, which shall be forever maintained at the equal joint expense of both companies, their successors or assigns.
    “It is further ordered, adjudged and decreed that the temporary grade crossing heretofore installed and now in operation under the previous order of this court be permitted and allowed to remain in place and to be operated by said electric line, without any prejudice whatever to any of the rights of said The Pennsylvania Company, for a period of six months from the date of this decree, and the operation thereof shall cease and said crossing shall be removed not later than the first day of July, A. D. 1908, and upon the failure of said The Toledo, Fostoria & Findlay Railway Company to entirely remove said temporary crossing, on or before the said first day of July, A. D. 1908, said The Pennsylvania Company is hereby authorized to, and it shall, remove said crossing, restoring its tracks to the same condition which they were in prior to the installation of said crossing', unless an extension of time for such removal be granted by this court or by the supreme court.
    “It is further ordered, adjudged and decreed that the original cost of the installation of said temporary grade crossing, including the cost of laying and removing so much of the track in the highway as must be abandoned if overhead crossing shall be constructed (but not including the cost of any materials thereof except the cost of the bridge over the creek in the highway) be borne and paid equally by both of said companies.
    “It is further ordered, adjudged and decreed that each company shall pay one-half of the costs of this proceeding, taxed at $......, and in default thereof within sixty days from this date that execution issue for the collection thereof.”

      In case number 10958 it made- the following order upon that subject:
    “It is further ordered that said structures may be built and the necessary work incident thereto may be done by plaintiff and the total cost thereof including the expense of removing said piling; of temporary supports for track of defendants; and earth filling as above provided and relaying of defendant's track and all other material and labor necessary to complete said structures and crossing shall be borne and paid one-half by plaintiff and one-half by the defendants; and shall be a first lien and charge against the property of the respective parties and the assets of said receivership. It is further ordered that the plaintiff and defendants shall share equally the cost of maintaining said crossing and structures. Ordered further that the costs of this proceeding be paid one-half by plaintiff and one-half by defendants.”

      Mr. F. W. Stevens and Messrs. Seiders & Cunningham, for The Toledo Railway & Terminal Company, plaintiff in error.
    In a proceeding by a junior company to appropriate property of a senior company to be used in common as a railroad crossing at grade, the senior company cannot recover the cost of complying with those police regulations, although it can recover compensation for the property and such consequential damages, not provided for by the act of 1860, as are the direct and proximate consequences of such appropriation. Railway Co. v. Railway Co., 30 Ohio St., 604.

      The same distinction is well and clearly pointed out in the case of Railway Co. v. Commissioner, 127 Mich., 219, which was decided largely on the reasoning in Railway Co. v. Railway Co., 30 Ohio St., 604.
    The principle that, where a new way or road is opened or made across a way or road already existing and in use, the owner of the new way must bear all the expenses of putting the old way in condition to be used, in the absence of a statute imposing the burden, or a part of it, on the owner of the old road or way, is well stated in the case of Dyer County v. Railroad Co., 87 Tenn., 712.
    It is a well settled rule of the common law resting upon the most obvious considerations of fairness and justice, that, where a new highway is made across another one already in use, the crossing must not only be made with as little injury as possible to the old way, but whatever structures may be necessary to the convenience and safety of the crossing must be erected and maintained by the person or corporation constructing or using the new way. Railway Co. v. Baltimore, 46 Md., 425 ; Canal & Banking Co. v. State, 4 Zabriskie, 62; Rex v. Kerrison, 3 Maule & Selwyn, 532; Rex v. Inhabitants of Lindsay, 14 East, 316; People v. Railroad Co., 67 Ill., 118.
    But the expense of making a structural change in the property of the defendants in order to adapt it to the new conditions created by the crossing relates to construction, not to operation, and must be paid for by the plaintiff, unless some statute imposes a part of the expense on the defendants. This is well supported by the authorities. Railway

      Co. v. Troy, 68 Ohio St., 510; Kansas City v. Railway Co., 102 Mo., 633; Railway Co. v. McGrew, 104 Mo., 282; Butchers Assn. v. Commonwealth, 163 Mass., 386; Railway Co. v. Wolf, 137 Ill., 360; Rumsey v. Railroad Co., 133 N. Y., 79; Kersey v. Railroad Co., 133 Pa. St., 234; Plymouth v. Railroad Co., 102 N. W. Rep., 947.

      Messrs. Smith & Beckzvith and Messrs. Cable & Paymenter, for The Lima & Toledo Traction Company, defendant in error, filed a brief.
    ■ Messrs. Ross & 'Kinder, for The Toledo, Fostoria & Findlay Railway Co., plaintiff in error.
    Interurban railroads are by the statutes of Ohio classed as street'railroads. Bates’ Revised Statutes, Section 3443-8-13.
    From a careful examination of the course of legislation on the subject of railroads and street railroads, it appears that the legislation as to each has been carefully kept separate, and the statutes as to railroads do not apply to street railroads unless made to do so by clear reference. Bridge Co. v. Iron Co., 59 Ohio St., 179; Greene v. Railway Co., 62 Ohio St., 67; Railroad Co. v. Lohe, Admr., 68 Ohio St., 101; Commissioners v. Traction Co., 75 Ohio St., 548.
    No specific route or location being fixed for the road, it could by its proper officers select the particular location or route for its railway. 23 Am. & Eng. Ency. Law (2 ed.), 685; Railroad Co. v. Ralston, 41 Ohio St., 573.
    It is generallv held that where a railroad company to which has been given the power to choose its particular route between designated termini has exercised its discretion in this regard its power of choice is exhausted and it cannot subsequently change its location or route without express legislative authority. 23- Am. & Eng. Ency. Law (2 ed.), 690.
    When the charter of a railroad company merely fixes a few points through which the road is to pass from its commencement to its terminus, leaving- the location of the road between the points specified to the discretion of the corporation, the railroad company having once located the road, their power to re-locate and for that purpose to appropriate the property of an individual has ceased. Railroad Co. v. Naylor, 2 Ohio St., 236.
    Since that decision the power has been given by statutes to steam railroads by the provisions contained in Sections 3272 and 3273, but there is no such provision applicable to street railroads. The act under which this proceeding is brought (97 Ohio Laws, 548) provides. that where it becomes necessary outside the limits of a city or village for the track of one railroad to cross the track of another railroad and such roads do not agree it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party to ascertain and define by its decree the mode of such crossing. The circuit court is controlled by the same provisions. The court will notice that it is the mode of crossing and not the point of crossing which the court or a judge thereof is authorized to fix and determine.

      Messrs. Marshall & Fraser, for The Pennsylvania Company, defendant in error.
    The opposition of the Pennsylvania Company to the installation of the grade crossing, as evidenced by its position in this case, arises from no feeling of hostility to the constructing line, nor from any desire to oppose their progress or development, but it is the result of sad and expensive experience gained by the operation and maintenance of these death traps in every part of the country. This company did more than any other person or institution to write upon the statute books of Ohio a measure that' would place it within the power of some responsible department of our state government to stay the further construction of these crossings, and the company feels that its efforts in this regard were warranted and sustained by the awakening- public sense of the real danger of such methods of construction, and the fact that such crossings are unnecessary.
    This company stands ready to assume the burden of paying its fair proportion of the expense necessary to the separation of this and other crossings and has for some time pást, and will in the future, consistently oppose the construction of any grade crossing where it can be prevented.
    If grade crossings are to be permitted to be constructed, in the face of the statute, from any consideration of economy, in dollars and cents, this company declines to be a party thereto and declines to assume any responsibility therefor.
    The only possible way in which grade crossing accidents can be avoided is to separate the grades and forever eliminate the possibility of human negligence at such points. It is from this knowledge that the policy of the company to oppose grade crossings has arisen.
    Briefs were also submitted by Mr. George H. Warrington; Mr. W. C. Shepherd; Messrs. Shotts & Millikin, and Mr. Charles Darlington, representing other parties interested in similar cases.
   Shauck, J.

The act under whose favor these proceedings were had is as follows:

“Section 1. That where it becomes necessary, outside the corporate limits of a city or village, for the track of a steam, street, electric or interurban railroad company to cross the track of another steam, stree.t, electric or interurban railroad company, unless the manner of such crossing shall be agreed to between such companies, it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party, to ascertain and define by its decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning or operating the road which is intended to be crossed; andf if in the judgment of such court or such judge thereof, it is reasonable and practicable to avoid a grade crossing, it shall'by its process prevent a crossing at grade; but in determining the mode of such crossing, no grade shall be required to exceed the established maximum or ruling grade governing the operation by motive power of that division or part of the company on which the improvement is to be made, without the consent of the company; nor shall either company’s tracks he required to be placed below high water mark.

“The court shall, in its order, equitably apportion the initial expense of such construction or crossing and the expense of maintenance thereof among the parties interested. Any party feeling itself aggrieved by the decision of said court shall have the right of appeal as in other civil cases.

“Section 2. Nothing in this act shall prevent any railroad company from laying additional tracks at existing crossings.”

The validity of the act is not questioned. Indeed, it is not left in doubt since the decision of this court in Lake Shore and Michigan Southern Ry. Co. v. The Cincinnati, S. & C. Ry. Co., 30 Ohio St., 604. It is an exercise of the police power of the state for the protection of the lives and limbs of those who operate trains and electric cars, and of those who travel upon them. A consideration of the interests of carrying companies may not have contributed to the passage of the act, but those interests are sufficiently guarded. The brief filed on behalf of the Pennsylvania Company is attractive because of its insistence that it and all other carriers shall be required to perform fully the enjoined duty to employes and to the public. In view of the longevity of corporations and the durability of bridges of modern construction, and the damages which result from the many collisions occurring at grade crossings, the attitude of that company may also be entirely consistent with the most comprehensive view of its own interests.

While the act is not, in all respects, so complete, or so clear, as to entitle it to be regarded as a model for future legislation, the provisions involved in these cases are quite clear. The act plainly declares the policy of the state to be against crossings at grade. That conclusion necessarily results from the provision that the court shall prevent grade crossings whenever it is reasonable and practicable to do so. The court is expressly required to apportion ratably among the parties interested, both the costs of constructing the crossing and the expenses of maintaining it. In this respect it applies the principle of former legislation which was interpreted and approved in the case above referred to. We cannot say that the equitable apportionment of these costs and expenses must necessarily be their equal apportionment as was ordered in the present cases. But here was no evidence tending to show that their equal apportionment would be inequitable, and the court followed the natural presumption that the separation of the grades would result to the equal benefit of the parties interested, and that they should contribute equally to the accomplishment of the purposes for which the statute was enacted. In all respects which are material to any question here presented, the act is substantially the same as that enacted in the state of Pennsylvania in the year 1871. The act has been repeatedly construed and applied bj' the supreme court of that state consistently with its obvious purpose to put an end to grade crossings in the cases to which it applies. Indeed, the frequency with which that court has reiterated the same views can be explained only by the persistency of the courts of first instance in that state in finding that it was not practicable to. avoid grade crossings, thus calling upon the supreme court to intervene to the end that the obvious purpose of the statute might be permanently realized, and that its provisions might not be evaded by artifice or by improper interpretation.

It is true that the legislature has not seen fit to authorize the intervention of the courts to determine the matter of crossings, except in cases where the companies are unable to agree with respect thereto, and counsel for The Toledo Terminal Company insist that the courts were with-, out jurisdiction in the case to which it is a party, because the inability of the companies to agree does not appear. The statute does not require a disagreement leading to violence. A sufficient disagreement appears in the briefs before us and in the divergent views respecting their rights which were presented in the courts below.

Counsel for The Toledo, Fostoria & Findlay Railway Company urge that the order of the circuit court in the case to which it is a party, is erroneous, because the company had a right to locate its road in the highway with the consent of the commissioners of the county, that the court could not order an overhead crossing in the highway where, according to its own finding, it would be a source of interruption to public travel, and that the court was without power to change the place of crossing. ' Paraphrased, the proposition seems to be, that the junior company may defeat the operation of the statute by voluntarily choosing a place of crossing at which it will not be practicable to separate the grades. The circuit court» very properly concluded that the conditions which would forbid an overhead crossing must not be voluntarily chosen by the company, and it enjoiried' the crossing at grade, because practical opportunities for an overhead crossing were at hand. The point was so disposed of in the Perry Co. Railroad Extension Company v. The N. & S. Valley Railroad Company, 150 Pa. St., 194.

Though we are not charged with the duty of weighing conflicting evidence for the purpose of determining its weight, we have examined the records in these cases to see that the proceedings of the circuit courts are in accordance with the provisions and purpose of the statute, that their findings of fact are sustained by substantial evidence, and that they support the orders which the courts made.

Judgments affirmed.

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


source: Caselaw Access Project

author: Price, C. J .

license: Public Domain

text:
    Turner v. The Pope Motor Car Company and The Baker Motor Vehicle Company.

      Plaintiff cannot dismiss his action — After final submission to court— Section 5314, Revised 'Statutes — Court procedure.

    1. Under favor of subdivision one (1) of Section 5314, Revised Statutes, the plaintiff cannot as a matter of right dismiss his action after the final submission of the case to the court.
    2. Where the plaintiff has introduced his evidence and rested, and each of the defendants has moved the court for a directed verdict on the ground that the plaintiff has failed to make a case for the jury, upon which motions the cause has been submitted to the court and its conclusions thereon announced, the plaintiff has not the right to dismiss the action without prejudice to a future action.
    (No. 10508
    Decided December 1, 1908.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error was plaintiff in the court of common pleas, and in his amended petition sets out the grounds of complaint against the two defendants, who are now defendants in error. The scene of his injuries was the Cleveland Driving Park, and he alleges that the Cleveland Automobile Club had leased the park for the purpose of holding a contest of speed of different automobiles, which contest was to be, and in fact was, held on the 5th day of September, 1903. The public was invited to attend and witness the races. Upon this park is a race-track separated from the rest of the grounds of said park by an inside and outside fence, in order to keep patrons off the track and in a place of safety.
    Among the contestants at the entertainment, the plaintiff says, The Pope Motor Car Company entered and contested one of their automobiles, called a “ Waver ly,” and that The Baker Motor Vehicle Company entered and contested one of its automobiles called the “Baker.” On the day announced these companies started said automobiles in contest around the race-track, and that while in said contest, they so carelessly and negligently operated their respective automobiles, and drove them at so high a rate of speed, that they lost control of the cars and they collided; and that by reason of the collision, the automobile owned and entered by The Baker Motor Vehicle Company was hurled with frightful force and velocity across the track, which the car left, and crashed through the outside fence surrounding said track and into the crowd of spectators witnessing said entertainment.
    The plaintiff says he was then standing at a safe place outside of said track and fence among the spectators, when the Baker motor car left the track, which was about four hundred feet from the judges’ stand, and it struck the plaintiff, knocked him unconscious, threw him high in the air, broke his collar-bone, dislocated his shoulder, cut a big gash in his leg-, etc. He alleges that as a result of said injuries, he suffered great bodily pain, and has been permanently injured for life, all because of the carelessness and negligence of said companies, which plaintiff specifies as -negligent in so guiding their automobiles around the track in the speed contest that they collided while moving at a high rate of speed.
    He then avers that for want of knowledge of the construction and operation of automobiles, he is unable to more definitely state what part of the automobile defendants used in steering or operating it. He prays for damages in the sum of fifteen thousand dollars.
    The defendants answered separately. Each admits its corporate capacity under the statutes of Ohio.
    The Baker Motor Vehicle Company admits the holding of the speed contest on the day and at the place named in the petition; admits that its co-defendant, The Pope Motor Car Company, entered one of its autos, called the “Waverly” to contest with one owned by The Baker Motor Vehicle Company called the “Baker.” It then denies all and singular the allegations of negligence made against it and charges that if plaintiff received injuries at the time mentioned, his own negligence contributed thereto directly.
    The Pope Motor Car Company made special answer, that its place of business is in Toledo, Ohio, and that it has no place of business in Cuyahoga county; that its president, chairman of its board of directors, or trustees, or other chief officers, or its cashier, treasurer, secretary, clerk, or managing agent, are not within Cuyahoga county, and never have at any time been therein; that it has no office or place of business in Cuyahoga county, and has no person in charge of an office or place of business therein; that it has no property or debts owing to it in said county, nor has it at any time been found in said county; that the summons in this case was not served in Cuyahoga county upon any of the several officers named in the statute, but that service was made on it in Lucas county.
    As a second defense the answer denies that it jointly or otherwise carelessly operated any automobile so as to injure plaintiff.
    The case came on for trial at the April term of the court of common pleas for the year 1906, and the plaintiff introduced his evidence and rested. Thereupon a motion was made on behalf of The Baker Motor Vehicle Company to direct a verdict for that defendant.
    Mr. Holding, on behalf of The Pope Motor Car Company, moved “to arrest the testimony from the jury and to direct a verdict first, on the ground that there had been no proof that The Pope Motor Car Company had any machine in-this race; and upon the further ground that there has been no negligence shown as against it in any particular.”
    Whereupon the court announced: “This motion is sustained as to The Pope Motor Car Company for default of proof of its having entered a car. That must be sustained. There is nothing to show that this car was operated by anybody in the employ of The Pope Motor Car Company and that it owned the car. I find, there is no negligence shown against either of these companies, and the motion as to both will be sustained.”
    Thereupon counsel for plaintiff asked for a moment of consultation before anything further was said or done in the case, which was granted by the court. Whereupon counsel for plaintiff returned to the court room and said to the court: Mr. Ong: “I am perfectly satisfied from this deposition and from the claim made here that The Pope Motor Car Company did not enter this car and did not control it. I think there is no doubt about that, but it now develops that a local company, unknown to us until we appeared in this trial, did enter and control it. I have no objection to the granting of this motion as to The Pope Motor Car Company, because they did not enter and control it, but I do not want that motion granted as to the Baker Company, because this plaintiff has a right to bring his action against the party that did enter and control jointly with the Baker. And I am asking that as to the Baker, this action may be dismissed without prejudice.” The question of dismissal was then discussed by the court, who announced that he would consider and pass upon the matter at the opening of court the following morning. When court convened, counsel for plaintiff said that, “before any other order is made or found, plaintiff dismisses this case as to both defendants without prejudice.” The statute was cited and question argued to the court. The jury was then called and Mr. Ong, for the plaintiff, said: “If the court pleases, before any direction to the jury is given in this case, the plaintiff dismisses the same as to both the defendants without prejudice.”
    The court refused to enter said action dismissed, and directed the jury'to return a verdict for the defendants, which was done. The plaintiff, saved exceptions to the rulings of the court. A motion for new trial was overruled and judgment rendered on .the verdict, which judgment was affirmed by the circuit court.

      Error is prosecuted here to reverse both judgments.

      Mr. D. D. Hurlbut and Mr. Walter C. Ong, for plaintiff in error, cited and commented upon the following authorities:

      Railroad Co. v. Thiebaud, 12 O. F. D., 254, 45 W. L. B., 241; 6 Ency. Pl. & Pr., 840; Harris v. Beam et al., 46 Ia., 118; Mullen v. Peck, 57 Ia., 430; Morrissey v. Railway Co., 80 Ia., 314; Oppenheimer Bros. v. Elmore, 109 Ia., 196; Vertrees’ Admr. v. Newport News, etc., Co., 95 Ky., 314; Railway Co. v. Metalstaff et al., 101 Fed. Rep., 769; Fuel & Iron Co. v. Menapace, 64 Pac. Rep., 584; Gassman v. Jarvis, 94 Fed. Rep., 603; Howe v. Harroun, 17 Ill., 494; Section 2844, Revised Statutes of Iowa; Section 639, Revised Statutes of Missouri, 1899; Section 914, Revised Statutes of United States; Sections 3764 and 5314, Revised Statutes of Ohio.

      Messrs. Goulder, Holding '& Masten and Messrs. Marshall & Fraser, for The Pope Motor Car Co., defendant in error, cited and commented upon the following authorities:
    • Ellis & Morton v. Insurance Co., 4 Ohio St., 646; Dick v. Railroad Co., 38 Ohio St., 392; Railroad Co. v. Dryden, 17 Ivans., 278; Beaumont v. Herrick, 24 Ohio St., 446; Section 5314, Revised Statutes.

      Mr. H. H. McKeehan and Messrs. Hoyt, Dustin & Kelley, for The Baker Motor Vehicle Co., defendant in error, cited and commented upon the following authorities:

      McArthur v. Schultz, 78 Ia., 364; Drummond v. Railroad Co., 109 Fed. Rep., 531; Cahill v. Railway Co., 74 Fed. Rep., 285; Ellis & Morton v. Insurance Co., 4 Ohio St., 628; Oscanyan v. Arms Co., 103 U. S., 261; Huntt v. McNamee, 141 Fed. Rep., 293; Railroad Co. v. Dryden, 17 Kans., 278; State ex rel. v. Scott, 22 Neb., 639; Crowley v. Chamberlain & Co., 6 Dec. Re., 982; Building Co. v. Dalton, 68 Neb., 38; Beaumont v. Herrick, 24 Ohio St., 445; Section 5314, Revised Statutes.
   Price, C. J .

The plaintiff in error asserts and discusses two points of error for either of which he claims the judgment of the circuit court should be reversed.

(1) That the court of common pleas erred in sustaining the motions of the defendants for a verdict in their favor at the close of the plaintiff’s evidence, especially did it err in directing a verdict for The Baker Motor Vehicle Company, there being sufficient evidence to warrant a recovery against it.

(2) That the trial court erred in so directing a verdict for defendants, after the plaintiff had dismissed his action as to both defendants.

One of the answers made to the first point is, that the bill of exceptions considered by the circuit court does not purport to contain all the evidence adduced at the trial, and for that reason that court could not review the case on the weight of the evidence. There is much force in this position, for the record is silent on the subject. It contains the connected testimony of the several witnesses called for the plaintiff, and then the record is: “Thereupon plaintiff rested his case with the understanding that they could call Doctor Copeland when he came in to testify as to the nature and extent of plaintiff’s injuries.” There is no other reference as to what the bill contains, and it does not affirmatively appear that it contains all the evidence introduced. But if we. look at the judgment entry of the circuit court, it may well be inferred that it considered the bill of exceptions, for it says: “This cause came on to be heard upon the pleadings and the transcript of the record in the court of common pleas and was argued by counsel, and on consideration of all the assigned errors, the judgment of the said court of common pleas is affirmed.” One of the errors assigned and to which the judgment responds is: “Said court (common pleas) 'erred in directing the jury to return a verdict for the defendants in error.” Therefore, there is nothing in the record to show that the lower court refused to review the case on the weight of the evidence, but the language of the judgment indicates the contrary. If that court had refused to consider the case on the weight of the evidence, it could find its justification in the absence of the important certificate or record declaration, that the bill contains all the evidence introduced at the trial. If it rightfully considered the bill as to the sufficiency of the evidence, the question is made, did the trial court err in directing a verdict for defendants? To meet the entire position of plaintiff in error, and on account of the conflicting claims made by counsel, we have examined the evidence involved in the motions for verdicts, and we are not persuaded that error was committed in sustaining them. In argument, counsel for plaintiff below conceded that the evidence failed to make a case against The Pope Motor Car Company, and consent was offered that the court direct a verdict in its favor. As to The Baker Motor Vehicle Company, the same counsel opposed a directed verdict, “because,” as the record shows, “this plaintiff has a right to bring his action against the party that did enter and control (the other car) jointly with the Baker. And I am asking that as to the Baker this action may be dismissed without prejudice.” It does not appear that counsel relied on the sufficiency of the evidence as to The Baker Motor Company.

The plaintiff’s evidence tended to prove that an automobile race was being conducted at the driving park — a ten mile race on a one mile track; that The Baker Motor Vehicle Company entered and controlled the car which injured the plaintiff, who was a spectator or patron of the contest. The other car, then supposed to be controlled by the other defendant, The Pope Motor Car Company, on the fourth or fifth round of the race, ran into, or collided with The Baker Motor Vehicle Company’s car, the result of which was that the latter turned directly across the track and through the fence between it and the spectators on the ground, thus striking Turner and doing him great bodily injury. There was nothing to show why the car was forced in that direction, or what did it. If it was disabled by the collision and put beyond control of its driver, it would seem to be the fault of the driver of the other machine. There is nothing definite or satisfactory in the evidence as to how or why the car ran upon the plaintiff, and it did not tend to establish the material allegations of negligence made in the amended petition. Hence, if the circuit court did weigh the evidence, we are not convinced that it erred in its conclusions. Indeed, counsel for plaintiff appeared cognizant of the weakness of his case, for he insisted on his right to dismiss the action without prejudice as to The Baker Motor Vehicle Company, while he was willing that the court might direct a verdict in favor of The Pope Motor Car Company.

(2) The second point involves an important question of practice, inasmuch as the plaintiff in error, under the provisions of Section 5314, Revised Statutes, sought to dismiss without prejudice to a future action. The section reads, in part: “An action may be dismissed without prejudice to a future action — 1. By the plaintiff before the final submission of the case to the jury, or to the court, when the trial is by the court.”

In considering this statute, it is well to recall the status of the case when the right to dismiss was asserted. The plaintiff had rested his case. Immediately each defendant moved the court to direct a verdict in its favor. The record is silent concerning arguments on the motions. Next in order is the decision of the court: “The motion is sustained as to The Pope Motor Car Company for default of proof of its having entered a car. That must be sustained. There is nothing to show that this car was operated by anybody in the employ of The Pope Motor Car Company, and that it owned the car. I find there is no negligence shown against either of these companies, and the motion as to both will be sustained.” As to The Pope Motor Car Company, it is clear that the motion was promptly sustained, and that was directly followed by the finding that no negligence had been shown against either of the companies, and that as to both the motion “will be sustained.” The court had reached and announced its conclusion, and while the words are, “will be sustained,” we think they mean that the decision was then made. No further consideration of the motions was intimated. The way to decision was clear. Neither argument or time to further deliberate was hinted at, or deemed necessary. After the court had thus taken and announced its position, counsel asked a moment for consultation, which was allowed, and at its expiration, as seen in our statement of this case, he expressed his willingness that the motion for verdict in favor of The Pope Motor Car Company be sustained, but as to the other defendant, the decision should be different. Then counsel said: T am asking that as to the 'Baker’ this action may be dismissed without prejudice.”

The subject or the proposed dismissal was then discussed by counsel, upon the conclusion of which the court recessed until the next morning. On convening of court, counsel again took up the subject, and said: “The plaintiff * * * dismisses this case as to both defendants without prejudice,” and cited the statute on the subject, and the right to so dismiss was again argued. The court refused to enter the dismissal, but directed the jury to return a verdict for the defendants.

There was no request to withdraw a juror and continue the case; no leave to amend the pleadings or make new parties defendant; and no request that the case be opened up for further testimony or proceedings. The case had already been submitted to the court on the motions for verdicts, and on them the trial was to the court who had heard and determined them, and the time had gone by for the plaintiff to exercise the* right of dismissal. The cause had been submitted to the court and its judgment invoked. If the court had the power to exe'rcise discretion on the subject, we cannot find that the discretion was abused in refusing to enter the dismissal at so late a stage in the proceedings.

Other states have similar code provisions as to the right of dismissal of an action, and decisions of the highest courts of some of such states are cited in the brief of plaintiff in error. Holding the light of the foregoing facts before us, we will examine those cases.

First in order is Harris v. Beam et al., 46 Ia., 118. The head-note reads: “A case is not finally submitted to the jury, within the meaning of Section 2844 of the code, until they have been directed to proceed to the consideration of their verdict, and it may be dismissed without prejudice after the completion of the charge of the court.” The suit was upon a bond of which the plaintiff claimed to be the owner. After the evidence was introducecl and the arguments of counsel were concluded, the court, in substance, instructed the jury that plaintiff had introduced no proof that he was the owner of the claifii sued on, and the verdict must be for the defendant. Thereupon the plaintiff offered to dismiss his action. Defendant objected, the objection was overruled and the action was dismissed. In deciding the case on appeal, the supreme court of that state said: “In every case finally submitted there must be some moment of time in which the condition of being finally submitted is assumed. Ordinarily there is no difficulty in determining whether or not a case has been submitted. But the difficulty increases with the approach to the time which marks the line of demarcation between a case finally submitted and one not finally submitted, and becomes greatest when that precise time is reached. If the last word of the court’s charge to the jury had not been read, it would probably be conceded that no final submission had occurred. But as the charge had been fully read, it is claimed nothing further remained for court or counsel to do, and that the cause was finally in the hands of the jury. This case presents the question, perhaps, in the most difficult light of which it is susceptible.” The court then discusses Hays v. Turner, 23 Ia., 214, and continues: "But that is not a parallel case. In that case the trial was by the court. The court .had found the facts and had announced the conclusions of law and was about to pronounce judgment. The cause had been finally submitted to the court, and the court had acted upon it to.the extent of finding and settling both the facts and the law. The case was in the same position as a cause tried by jury after the return of the verdict. It is quite clear that in that case it was too late for the plaintiff to dismiss.” We. think Hays v. Turner, supra, an authority here, for there had been a submission of the cause to the court and on the all-important motions for verdiets. The court had found the facts and announced its conclusions of law in this case, and the formal return of a verdict to comply with the judgment of the court was not essential to a final submission. The evidence had been demurred to and the demurrer sustained, and it remained for the jury to obey that judgment and concur with the court.

Mullen v. Peck, 57 Ia., 430, is another case cited. That was a trial by jury and it presents a situation very different from the case at bar, but follows the doctrine of Harris v. Beam et al., supra.

In chronological order, while it is not cited by plaintiff in error, we find McArthur v. Schultz, 78 Ia., 364, which is part of the pronounced law of that state. On page 366, the court says of the third proposition involved: “It only remains to say whether upon the record, as shown in appellant’s abstract, the court erred in permitting the plaintiff to dismiss at the time he did. The case was fully tried and submitted on November 20, and on November 21 the plaintiff was granted leave to withdraw all his claim except ten dollars interest on the incumbrance, without prejudice. Code, Section 2844, provides that actions may be dismissed-‘by the plaintiff before the final submission of the case to the jury, or to the court, when the trial is by the court.’ This is construed to be equivalent to a denial of a right to dismiss after such submission. (Certain cases cited.) If we were, to consider the judge’s certificate, it only shows that upon the final submission of the cause plaintiff’s attorney reserved the right to dismiss without prejudice, in the event the court decided against him. Such a practice cannot be sustained.”

The case of Morrissey v. Railway Co., 80 Ia., 314, seems to be the strongest case in support of the contention of plaintiff in error. It is there held that: “Under Section 2844 of the code, providing that a plaintiff may dismiss his action ‘before the final submission of The case to the jury, or to the court, when the trial is by the court/ plaintiff had a right to dismiss after the defendant had moved for an order for a verdict on plaintiff’s evidence, and the court had intimated that it would sustain the motion, but had made no entry to that effect, and had not yet directed the jury to return a verdict; for as yet there was not a final submission of the case.” And Harris v. Beam, supra, is cited as authority. We cannot concur in the reasoning of the court, where it is said on page 315: “Surely the submission of the motion was not a submission of the case to the court, for whether the motion was overruled or sustained, it remained to submit the case to the jury for verdict.” The fallacy of such conclusion is in attaching ultimate importance to the verdict of the jury in such a case. We again say, that the finding and judgment of the court on the motion is the determining authority and the directed verdict is compliance with the forms of practice.

In Oppenheimer Bros. v. Elmore, 109 Ia., 196, the subject was again considered and former rulings followed. The court says on page 198: “Defendant’s counsel have cited a number of cases from the Supreme Court of Kansas, holding that the action of the trial court under such a statute is discretionary, and will not be interfered with on appeal. We have adopted a different rule, and, as it is a rule of practice our own decisions must govern.”

Chicago, M. & St. P. Ry. Co. v. Metalstaff et al., 101 Fed. Rep., 769, decided by U. S. Court of Appeals of the eighth circuit, and cited by plaintiff in error, simply holds that the federal courts will usually conform to the rules of practice established by the courts óf the state in which the- federal court is sitting, and that it followed the practice of the courts in Missouri as to the time a plaintiff might dismiss his action. The Court of Appeals declared no rule of its own, but followed the long settled practice in that state.

To the same effect are Colorado Fuel & Iron Co. v. Menapace, 64 Pac. Rep., 584; Gassman v. Jarvis, 94 Fed. Rep., 603; and Howe et al. v. Harroun, 17 Ill., 494, cited in brief of plaintiff in error. On the same line is Vertrees’ Admr. v. Newport News Co., 95 Ky., 314.

But there is an array of cases where adverse holdings are made. Kansas is a code state, and its statute touching the point here at issue is similar to our own. In St. Joseph & Denver City R. R. Co. v. Dryden, 17 Kans., 278, Brewer, J., stated the question to be, whether the district court abused its discretion in refusing to open up a case and permit the plaintiff to offer further testimony after it had sustained a demurrer to the evidence. The court refused permission, and then the plaintiff moved for leave to dismiss the action without prejudice, but the court overruled the-motion and rendered judgment in favor of defendant for costs. Among other things the court say, on page 280: “Where a demurrer to the evidence is sustained, the case is ready for judgment. It has been finally submitted to the court, and the plaintiff has no more right to dismiss than he has after a verdict is rendered. The case is decided, and the plaintiff has no right to avoid that decision by a dismissal.”

In State v. Scott, 22 Neb., 628, it is held: (1) that under the practice of that state (code provision), “the plaintiff cannot as a matter of right dismiss an action after the final submission of the case to the court.” (2) “Where a cause was submitted to the court on a demurrer to the petition and a decision rendered sustaining the demurrer, but no opinion filed, and afterwards and before the preparation of the opinion, the plaintiff attempted to dismiss the action, to which the defendant objected: held, that the attempt to dismiss was unavailing, and that the cause having been finally submitted, final judgment in the case would be rendered.” The provision of the Nebraska code is the same as in this state. In fact, the court say in the opinion, page 639, that it was, “Copied verbatim from Section 372 (old number) of the Ohio code,” and refers to its construction as found in Beaumont et al. v. Herrick, 24 Ohio St., 446, of which we will speak again. In Bee Building Co. v. Dalton, 68 Neb., 38, the Supreme Court of Nebraska again passed on the question. Dalton sued the Bee Building Company to recover damages for a personal injury. A jury was empanneled to try the issues, and the plaintiff having submitted his case, defendant moved the court to direct a verdict in its favor on .the ground that there was neither averment or proof of an actionable wrong. The motion was sustained, but before the peremptory instruction could be given, the plaintiff asked that the case be dismissed without prejudice, and his request was granted by the trial court. The supreme court held this to be error. In the opinion by Sullivan, C. J., is found a forceful statement of the law of that case. On page 40, it is said: “The contention of counsel for plaintiff is that the trial was to the jury and that there could be no submission of the case until the jury had complete authority to deal with it. This argument is plausible, but we cannot believe that it is sound. It is true,- a jury was empanneled, but it is equally true that the case was tried by the court, and not by the jury. The case was submitted on. an issue of law and the determination of that issue eliminated the jury and ended the controversy. After it had been adjudged that the plaintiff had no case, and that there was no issue of fact to be decided, the direction, reception and recording of a verdict would have been mere ceremonial acts. These acts would, we know, be in accordance with conventional procedure; they would satisfy the requirements of judicial formalism,' but they would be .as useless and idle, and almost as absurd, as the archaic practice of withdrawing a juror in order to secure a continuance. To direct a jury to return a verdict in favor of the defendant would have been to command the triers of fact to ratify a decision already made by the court upon a question of law. When the legislature, in Section 430, spoke of ‘the final submission of the case to the jury,’ it must have had in mind the submission of a disputed question which might be resolved by the jury in favor of either party. In this case there was no issue of fact: the court so decided. * * * . In every such case, the judgment rests not on a decision of a question of fact, but wholly and exclusively upon the decision of a question of law. When it was determined that the plaintiff had failed to 'make a case, the court might, without taking from the jury a meaningless verdict, have proceeded at once to render judgment in favor of defendant. To be sure', the procedure would not be according to established usage, but it would be legal and logical and in harmony with modern methods of transacting business. * * * Indeed, the very essence of a decision sustaining a demurrer to evidence is a denial of the litigant’s claim that he is entitled to a jury trial.”

As to what constitutes a final submission of a case to the jury under certain circumstances, see Drummond v. L. & N. R. Co., 109 Fed. Rep., 531. Also, Huntt v. McNamee, 141 Fed. Rep., 293; Cahill v. Railway Co., 74 Fed. Rep., 285.

Many cases might be added to the list, but in our judgment they are not necessary. But coming home to our own state, we find at least one case which supports the judgment under review: Beaumont et al. v. Herrick, 24 Ohio St., 445. It was there held: (3) “Where a case is submitted to the court on a demurrer to the answer, the ground of the demurrer being that the answer does not contain a defense, and the demurrer is overruled, the plaintiff cannot, without the leave of the court, dismiss his action without prejudice. The submission of the case on the demurrer is a final submission of the case within the meaning of Section 372 of the code, unless leave is obtained to reply or amend. (4) Whether, in such case, after the overruling of the-demurrer, the plaintiff should have leave to reply, or to amend his petition, is a matter resting in the sound discretion of the court. If the exercise of such discretion is reviewable on error in any case, it can only be where the record shows, in view of all the circumstances under which the court acted, an abuse of discretion, resulting in a denial to the party of a fair trial.” Omitting the long statement of that case, it is sufficient to say here, that the original petition was filed in the court of common pleas, and afterwards a demurrer was sustained to an amended petition on the ground that it did not show a cause of action, and the petition was dismissed. The case was taken on appeal to the district court, and there another amended petition was filed. The defendant answered and plaintiff demurred to the answer. The demurrer was overruled and the petition dismissed. On overruling of the demurrer, application was made to amend the petition by setting up additional matter. The court refused the leave asked. Plaintiff’s counsel then represented to the court that the demurrer to the answer was filed in good faith and asked leave to reply to the answer. This was refused. Thereupon plaintiff asked leave to dismiss the action without prejudice which was also refused. Error was prosecuted in this court to reverse the judgment dismissing the petition. On that branch of the case, White, J., on page 457, says: “We see no error in this refusal of the court. The submission of the case on the demurrer was a final submission of the case within the meaning of Section 372 (old number) of the code, unless leave was obtained to reply or amend. Without additional pleading, the legal consequence of the overruling of the demurrer was a judgment of dismissal.” The court then discusses the action of the court in refusing leave to amend or reply, and found no error.

To recognize in our practice the claim that is made by plaintiff in error, would give a plaintiff the right, when he fails to make a case, and it is so decided, to thwart the contest on his own evidence, dismiss without prejudice, and again bring the defendant into some court to answer a similar demand, with all- the attendant costs; and if it can be done once, it may be done a second or third time, thus prolonging the expensive and annoying litigation. This system of practice should not be encouraged and we therefore think it our duty to affirm the judgment of the circuit court.

Judgment affirmed.

Si-iauck:, Summers, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    Mirick v. Gims, Treasurer, etc. Sunday Creek Company v. Woodworth, Treasurer, etc., et al.

      Section 2833, Revised Statutes, as amended April 4, 1906 — Makes dog tax lien on real estate — In part unreasonable and unconstitutional — Constitutional lavs.

    Section 2833, Revised Statutes, as amended and took effect April 4, 1906 (98 O. L., 87), so far as it requires the levy of the per capita tax on dogs upon the real estate upon which the dogs may have been kept and harbored, and the collection thereof as other taxes upon real estate, notwithstanding the owner of' such real estate had no knowledge that the dogs had been harbored thereon and was not consenting thereto, is an arbitrary and unreasonable exercise of police power not required by the general welfare and therefore unconstitutional and void.
    (Nos. 11329 and 11576
    Decided December 22, 1908.)
    Error to the Circuit Court of Scioto county.
    Error to the Circuit Court of xMhens county.
    Mirick, who is a non-resident owner of land situate in. Scioto county and who alleges that he has continuously resided in Washington, D. C, ever since he acquired title to such land, brought suit in the Court of Common Pleas of Scioto county to enjoin the collection of a tax assessed against his real estate for three dogs charged against him upon the tax duplicate. He averred that he was not the owner of any dogs in Scioto county; did not harbor any dogs on his said real estate; did not permit or suffer any one else to do so; and did not know of any dogs being kept on said premises until his tax bill was presented; and denied that any dogs were kept on his premises. He averred that when said tax was assessed upon his real estate, the said premises were in possession and under the control of one McCall his lessee and that he did not make or change the lease of said land since the passage of the statute under which said tax was assessed. A demurrer to the petition was overruled and after an answer by defendant, alleging that the tax was levied upon a certain three dogs kept and harbored on the estate, a trial was had in the court of common pleas and that court dismissed the plaintiffs petition and rendered judgment against him for costs. This judgment was subsequently affirmed by the circuit court.
    The Sunday Creek Company, which is a corporation engaged in the business of mining, shipping and selling coal, filed its petition in the Court of Common Pleas of Athens ■ county to restrain the collection' of a tax for dogs assessed upon its lands and amounting to $336. It alleged that such tax was assessed under and by virtue of Section 2833, Revised Statutes of Ohio; that it is the owner of about three hundred dwellings on its premises, which are rented to miners and others in its employ and with express notice and orders that no dogs shall be kept or harbored thereon, or on the close adjacent thereto, or elsewhere on plaintiff’s premises; and that if any dogs have been kept or harbored on said premises by any of its tenants, the same has been done without the knowledge or consent of the plaintiff and against its orders and protest. It alleged that it was not the owner of any dogs listed for taxation, nor that it had ever had any interest in any of them. A demurrer to the petition was sustained and the plaintiff not electing to plead further the petition was dismissed at plaintiff's costs. On appeal to the circuit court the demurrer was sustained and the same judgment rendered.

      Messrs. Evans & Crawford, for Mirick, plaintiff in error, cited and commented upon the following authorities:

      Holst v. Roe, 39 Ohio St., 340; Plessy v. Ferguson, 163 U. S., 550; Mugler v. Kansas, 123 U. 5., 623; Lawton v. Steele, 152 U. S., 133; Holden v. Hardy, 169 U. S., 366; Reduction Co. v. Sanitary Works, 199 U. S., 306; In re Jacobs, 98 N. Y., 98; Connolly v. Sewer Pipe Co., 184 U. S., 540; McGehee on Due Process of Law, 217, 218, 228, 235, 252; Railway Co. v. New York, 199 U. S., 16; Monroe v. Collins, 17 Ohio St., 666; Wasson v. Commissioners, 49 Ohio St., 623; Bank v. Hines, 3 Ohio St., 1; Hill v. Higdon, 5 Ohio St., 246; Anderson v. Brewster, 44 Ohio St., 576; Zanesville v. Richards, 5 Ohio St., 590; Dagett v. Hudson, 43 Ohio St., 548; Mullen v. Peck 49 Ohio St., 447; Freund on Police Power, Section 434; Section 2, Article XII, Constitution of Ohio; Section 10, Bill of Rights ; Amendment 5 to Constitution of United States; Section 1, Amendment 15 to Constitution of United States: Article II, Ordinance óf 1787.

      Mr. Harry W. Miller, prosecuting attorney, for Gims, Treasurer, defendant in error, cited and commented upon the following authorities:

      Holst v. Roe, 39 Ohio St., 340; Mullen v. Peck, 49 Ohio St, 447; Anderson v. Brewster, 44 Ohio St, 576.

      Mr. W. O. Henderson and Messrs. Grosvenor, Jones & Worsted, for Sunday Creek Company, plaintiff in error, cited and commented upon the following authorities:

      Holst v. Roe, 39 Ohio St, 340; Weller v. State, 53 Ohio St, 77; 1 Tiedeman on State and Federal Control, 13, 15, 800; 8 Cyc, 864; Beebe v. State, 6 Ind, 501, 63 Am. Dec, 391; Smiley v. MacDonald, 42 Neb, 5, 47 Am. St. Rep, 684; Railroad Co. v. State, 47 Neb, 549, 53 Am. St. Rep, 557; Railroad Co. v. Commissioners, 1 Ohio St, 77; Palmer & Crawford v. Tingle, 55 Ohio St, 423; Cleveland v. Construction Co., 67 Ohio St, 197; State v. Schmuck, 77 Ohio St, 438; Trout v. Marvin, 62 Ohio St, 132; Anderson v. Brewster, 44 Ohio St, 576; Mullen v. Peck, 49 Ohio St, 447; Benhoff v. Weaver, 14 C. C, 370; 74 O. L., 178; Sections 1, 3 and 19, Article I, Section 26, Article II, and Sections 2 and 5, Article XII, Constitution of Ohio; - Sections 1034, 2754 and 2833, Revised Statutes.

      Mr. I. M. Foster, prosecuting attorney, for Woodworth, Treasurer, et al, defendants in error, filed no brief.
   Davis, J.

These cases are alike in the particular that in both the landowner claims -to have had no knowledge of the fact that dogs were kept or harbored on his premises; and they chailenge the validity of the statute which charges the tax upon the land notwithstanding the owner may not have had such knowledge. They differ somewhat in the claim that, in the one case, the real estate was leased before the enactment of the present statute and that the land has never since been within the possession or control of the owner; and that, in the other case, if dogs were kept and harbored on the land, it was done contrary to the express orders of the owner.

It may be and - is conceded, at least for the purposes of this case, that a tax on dogs having for its object the protection of the sheep industry, is within the legitimate .exercise of the police power. Holst v. Roe, 39 Ohio St., 340. The question which is raised in these cases is a narrower one. Here, it is not whether dogs may be taxed for such a purpose; but whether the tax may be made a charge on the land where the dogs are kept, when they -are kept there without the knowledge or consent of the landowner.

There is no express limitation in the constitution of this state upon that branch of legislative power which is commonly called police power. Such limitations as are recognized arise by construction from the nature of the power itself and from the declaration of pights contained in Article I, as well as the limitation contained in Section 28 of Article II; and in considering these the first clause of Section 20,- Article I, must not be overlooked, viz: “This enumeration of rights shall not be construed to impair or deny others retained by the people.”

The police power is an attribute of sovereignty and has its origin, purpose and scope in the general welfare, or as it is often expressed, the public' safety, public health and public morals. These terms indicate its field, yet its boundaries are necessarily vague and indefinable. The broad discretion thus vested in the state is fraught with dangers to the personal and property rights of private persons; and therefore the courts have always asserted the right to restrain the exercise of the power to the extent that private rights may not be arbitrarily or unreasonably infringed. Such cases are within the rights reserved by the Bill of Rights and are therefore the unconstitutional, or rather extra-constitutional, exercise of police power and void.

Section 2833, Revised Statutes, was amended into its present form and took effect from April 4, 1906. 98 O. L., 87. Here for the first time appears in our statutes a provision that a “per capita tax on dogs” shall be collected, not from the owner or the. keeper and harborer of the dogs, but from the owner of the land on which they are kept or harbored. The statute provides, “which per capita tax shall be levied upon and entered against the real estate upon which said dog is kept or harbored and collected as are other taxes upon real estate,” etc. There does not appear to be any way of avoiding, by construction, the conclusion that by this enactment the landowner, and the landowner alone, must bear' the penalty, although he may not be the owner, or keeper or harborer of the dogs and may be ignorant of their existence, and even though he may have done all in his power to prevent the occurrence of such an offense; yet the real offender is subjected to no penalty at all, unless the payment of a trifling property tax, measured by the value of the dogs, is a penalty. Thus the property of an innocent person may be taken without notice and without due process of law, to recompense an injur)'- to another, committed by a third person who holds no relation to the landowner except that of tenant under a lease. While we recognize and approve the doctrine that every man holds his property subject to the condition that he must so use it as not to injure others, we are not persuaded to accept the view that the general welfare, or even the protection of a favored class of industries, justifies such drastic legislation as this appears to be. To us it seems to be inequitable, arbitrary and unreasonable, unnecessarily infringing upon the natural and inalienable rights of citizens, and therefore void.

The case of Mirick might be disposed of on another ground. His land at and before the passage of this act was under lease and in the control of tenants, and has been so ever since. If there were no other sufficient objection to the statute, it could not apply to Mirick’s case without a violation of Section 28, Article II, of the constitution.

The judgments of the circuit courts and those of the courts of common pleas are

Reversed.

Price, C. J., Shauck, Crew, Summers and Spear, JJ., concur. Summers, J., does not concur in the judgment in the Sunday Creek case.


author: Spear, J.

text:
    Vernon, Administrator, v. Harper et al.

      Death of principal contractor — Does not deprive sub-contractor— Of right of lien, when.

    The death of the principal contractor during the completion of a contract for the improvement of a village street, which contract was thereafter completed by the administrator, does not deprive a sub-contractor who has furnished material which has gone into the work, of his statutory right to a lien upon the fund arising from the contract.
    (No. 10500
    Decided December 22, 1908.)
    Error to the Circuit Court of Athens county.
    The controversy between the parties in the courts below was determined upon a demurrer filed by the plaintiff in error, administrator, to the answer of the defendant in error, George H. Harper, and like demurrer to the answer of defendants in error Rumer '& Blyth. Those demurrers were sustained by the common pleas and judgment entered against the answering defendants, and that judgment was reversed by the circuit court. This court is asked to reverse this latter judgment and affirm that of the common pleas.
    The pleadings present this question: Can a material man (a sub-contractor) who, under a contract with the principal contractor, has furnished material for the completion of the principal contractor’s contract for the paving of a village street, obtain a lien on the fund which has accrued by virtue of the contract between the village and the principal contractor, the latter having died during the progress of the work, and the same having been completed to the acceptance of the village by his administrator ? And if he can, should the money be paid into the hands of the administrator to be paid out by him to the persons entitled thereto ?

      Mr. L. A. Koons and Messrs. Grosvenor, Jones & Worstell, for plaintiff in error.
    Assuming that these cross-petitioners have a lien on the fund in the hands of the village, we contend that the money should be paid into the hands of the administrator and be, by him, paid out to the ones legally entitled. Sections 6090 and 6091, Revised Statutes; Kilbourne v. Fay, Exr., 29 Ohio St., 275; Linghler v. Kraft, Admr., 3 N. P., N. S., 653.
    ' We contend that under our statutes, logically construed, no preference to any creditor can be obtained after the death of the debtor, under the mechanics lien statutes, or otherwise. Hoff’s Appeal, 102 Pa. St., 218.
    Unless there is some statutory authority to the contrary, the moment a man dies the time for securing a lien or preference on his property is past. Kilbourne v. Fay, Exr., 29 Ohio St., 275. An executor or administrator may take notice only of those liens which “a creditor, or other person shall have upon the personal estate of the deceased during his life time.” Section 6091, Revised Statutes.
    It follows that any statute giving a post mortem lien on a dead man’s effects must be in derogation, not only to the common law but to the above statute as well; and must come with such unmistakable clearness in its demands as to satisfy the rules of strict construction applied to statutes in derogation of the common law, and such as seek to supersede the unequivocal terms of other statutes.
    By all the' rules of construction if the legislature had intended any other section or sections of this chapter than Section 3192 to extend to executors or administrators of deceased contractors, or others, it would have said so in terms equally explicit.
    In order that mechanics liens may be taken after the death of the debtor the statute must explicitly provide for that. Foster v. Stone, 20 Pick., 542.
    A mechanics lien cannot be taken after the death of the debtor. Severance v. Hammatt, 28 Me., 511; Gauss v. Hussmann, 22 Mo. App., 115; Bergin v. Braun, 15 O. D., 383.
    By Section 3198 the principal contractor is entitled to notice of the filing of the affidavit with the owner, etc., and unless within five days he dispute the claim he is taken to be assenting to its correctness, and no objection can thereafter be entertained. Here the owner has to participate in the very important matter of deciding in a rather summary way both upon the amount and validity of the claim made; and, is it intended that an administrator can be substituted for the contractor? The contractor would likely know, the administrator would.be just as likely not to know whether the claim is valid or invalid, right or wrong. Certainly a very material difference, and, one that may have induced the legislature to make the exception already noted as to the executors and administrators of owners'.

      Messrs. Lewis & Sayre and Messrs. Ivers & Danford, for defendants in error.
    The contract that we are considering was not a contract for personal services and therefore did not terminate upon the death of the principal contractor. Beach on Modern Law of Contracts, Section 231.
    Where the contract with the deceased is executory and the personal representative can sufficiently execute all that the deceased could have done, he may do so and enforce the contract. Beach on Modern Law of Contracts, Section 774; Parsons on Contracts, Section 131.
    The estate of a deceased person is bound by his contracts if they are carried out. McKeown v. Harvey, 40 Mich., 226.
    When the contract between contractor and subcontractor is made, the sub-contractor’s right in the owner’s money is a mere possibility, but if three things, the completion of both contracts and the service of the itemized statement on the owner —are performed, then the law divides the money in the hands of the owner, transfers it from the contractor to the sub-contractor and makes the owner liable to the sub-contractor, not to the contractor, to the amount of the sub-contractor’s claim. Bullock v. Horn, 44 Ohio St., 425.
    If Harper and Rumer & Blyth complied with the law so as to have any rights under Sections 3193 et seq., they are contending in this case for money which is due them from the Village of Glouster, money which is their own and with which the administrator of Vernon has nothing to do. The money they earned is in the village treasury, due them, and not the estate of Vernon. There is no lien in the case. By act of the law, this money was transferred to the sub-contractors and the estate of Vernon has no interest in it whatever. Bullock v. Horn, 44 Ohio St., 425.
   Spear, J.

The first question is answered when •proper construction is given to certain sections of our statute relating, to liens, being sections 3193, 3194, 3198, 3200 find 3203 of the Revised Statutes. These sections, so far as pertinent to this case, provide that any sub-contractor who has furnished material for the construction of a street provided for in the contract between any public authority and a principal contractor, and under a contract between such sub-contractor and the principal contractor, may at any time thereafter, not to exceed four months from the delivery of such material, file with the board or officer a sworn and itemized statement of the amount and value of such material furnished; thereupon such board or officer shall retain subsequent payments froni the principal to secure such claims; the board or officer shall, or the lien claimant may, furnish the principal contractor with a copy thereof within five days, and if such principal contractor shall fail within five days to notify in writing the board or officer of his intention to dispute the claim he shall be considered as assenting to its correctness, and thereupon subsequent payments shall be applied pro rata upon such claim. If the head contractor shall neglect or refuse to pay within five days after, his assent to ,or adjustment of the claim, the amount thereof and costs incurred to the subcontractor, the board or officer shall pay when due the whole or pro rata amount thereof out of payments subsequently falling due, and on failure within ten days the sub-contractor furnishing material may recover in an action for money had and received the whole or pro rata amount of his claim not exceeding the balance due the principal contractor. If by collusion or fraud the board or officer pay in advance the payments due under the contract, he shall be liable to the subcontractor for the amount due on such contract on the date of filing of the sworn account the same as if no payment had been made.

It is not claimed that there was a literal compliance with the requirements of the statute with respect to furnishing the original contractor with a copy of the verified account of the sub-contractors. There could not have been. The original principal contractor was dead. The claim is, and the record shows that the uncompleted contract between the original contractor and the village was completed by the administrator, the plaintiff, and that the material furnished by the sub-contractor was furnished in pursuance of their agreement with the principal contractor and was accepted byr the administrator and went into the completion of the job thus being conducted to a súccessful termination by the administrator. And the notice, with copy of the sworn account, was in due time served on the administrator, having first been served on the village authorities, and the amount or justice of the accounts has never been and is not now disputed. This, it is claimed, was a sufficient compliance with the statute to entitle the sub-contractors to the benefit of the statutory lien, and it was so held by the circuit court. We are of opinion that this claim is well founded. The policy of the state with respect to the claims of laborers and material men to be compensated for their work and material out of the structure to which their work and material have contributed is indicated by the statute as to liens and has been clearly defined in a number of decisions in this and other courts. The statute should be liberally construed in order to carry out the purpose of the general assembly in its enactment, the legislation being highly remedial in character. This policy is fully elaborated in Bullock v. Horn, 44 Ohio St., 420, and need not be enlarged upon here. In an earlier case, Williams, Admr., v. Webb, 2 Dis., 430, it is held that: “The death of the owner of property before a lien has been taken does not interfere with the rights of or prevent the necessary steps to secure a lien by the person performing labor or furnishing materials.” It is further held that, although the statute in terms provides that the account shall be verified by the person performing the labor or furnishing the material, yet that the oath may be made b)^ an agent of the party entitled to the lien, Gholson, J., observing in the opinion that, “While we might be disposed to accede to the general proposition that such statutes should not be extended beyond what their terms clearly import, yet this does not require us to stick to the letter.” See also Foster v. Stone, 20 Pick., 542, and Bergin v. Braun, 15 O. D., 382.

So in the case at bar we are not required to stick to the letter. The contract was an executory one which the administrator might properly complete. (Gray v. Hawkin’s Admx., 8 Ohio St., 450.) In doing so he acted as principal contractor, stepping into the shoes, for all practical purposes, of h'is decedent. And as such principal contractor he did finish the work with the aid of these men who furnished the material, they acting in good faith in compliance with their contract with the deceased. Their contribution to the work, thus accepted by the administrator, enabled him to complete his decedent’s agreement with the village. To all intents and purposes they complied with the spirit and purpose of the statute. To deny them the advantage of their outlay would be to stick in the bark, to permit the mere letter to override and defeat the plain spirit and purpose of the statute.

The second question seems to present no difficulties. The fund arising from the completion of the paving contract should not be paid to the administrator. It was brought within the jurisdiction of the court of common pleas by the answer of the village iii^tlie.. nature of an interpleader. That court has all the parties before it with full jurisdiction to determine all their rights and render final judgment, and there is no reason for paying money over to the administrator which belongs to the sub-contractors and which they have a right to receive undiminished by any fees or cost of any kind on the part of the administrator.

The judgment of the circuit court will be affirmed and the cause remanded to the court of common pleas of Athens county to carry into effect the judgment of the circuit court and this judgment, and the cause to be there proceeded in conformably to the said judgment of the circuit court and of this opinion.

Judgment affirmed.

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