author: Shauck:, C. J.

text:
    The Salem Iron Company v. Hyland et al.

      Operation of oil wells — Conducted adjacent to stream — Salt water floioing into stream — Injunction of lower riparian owner will not lie, when.

    Although from the operation of oil wells conducted with care on lands adjacent to a flowing stream, salt water in sufficient quantities to make the water of the stream unsuitable for the generation of steam may by gravity be carried into the stream, such operation will not be enjoined at the suit of a lower riparian owner who has been accustomed to use the waters of the stream, for the generation of steam, if it appears that the plaintiff may obtain water suitable for the purpose from another convenient source, or that the water • of the stream may at a reasonable and ascertainable expense be made suitable therefor.
    (No. 8986
    Decided April 3, 1906.)
    Error to the Circuit Court of Columbiana county.
    Plaintiff brought suit in the court of common pleas for a perpetual injunction to restrain the defendants from the further alleged pollution of the waters of Cherry Pork of Beaver Creek, a stream of flowing water from which it had long been accustomed to obtain water for its boilers and for other purposes incident to the operation of its iron furnace; the alleged pollution being by pumping into said stream large quantities of water so heavily impregnated with salt as to render the water of the stream unsuitable for said use, and to injure the pastures growing upon the plaintiff’s land at times of overflow by said stream.
    From the final judgment of the court of common pleas an appeal was taken to the circuit court where the cause was tried de novo and the record made which is here for review. The circuit court rendered a final judgment in favor of the defendants. The facts are stated in the opinion.

      Mr. J. B. Carey; Mr. J. B. Morgan and Messrs. Billingsley, Clark £ DeFord, for plaintiff in error,
    cited and commented upon the following authorities:

      Jones v. Conn, 39 Ore., 30; 64 Pac. Rep., 855; 65 Pac. Rep., 1068; 87 Am. St., 634; Sandwich v. Railway Co., 10 Ch. Div., 707; 28 Am. & Eng. Ency. Law, 954; 28 Am. & Eng. Ency. Law (1 ed.), 968; Wood on Nuisances, sec. 427; Manufacturing Co. v. DeLane Co., 10 R. I., 106; 14 Am. Rep., 658; Mansfield v. Balliett, 65 Ohio St., 451; Rhodes v. City of Cleveland, 10 Ohio, 160; Crawford Co. v. Hall, 60 L. R. A., 889; Cooper v. Williams, 5 Ohio, 391; Coal & Iron Co. v. Tucker, 48 Ohio St., 42; Crawford v. Rambo, 44 Ohio St., 279; 21 Am. & Eng. Ency. Law, 689; Butler v. Peck, 16 Ohio St., 334; 2 Shearman & Redfield on Negligence, sec. 736; Strobel v. Salt Co., 164 N. Y., 303; 58 N. E. Rep., 142; 79 Am. St., 643; Coal Co. v. Sanderson, 113 Pa. St., 126; 6 Atl. Rep., 453; Barnard v. Sherley, 135 Ind., 547; 41 Am. St., 454 ; 34 N. E. Rep., 600; 35 N. E. Rep., 117; Robb v. Carnegie, 145 Pa. St., 338; 27 Am. St., 694; 22 Atl. Rep., 649; Stevenson v. Coal Co., 210 Pa. St., 112; 59 Atl. Rep., 818; 203 Pa. St., 316; 52 Atl. Rep., 201; Dwight v. Hayes, 150 Ill., 273; Robb v. LaGrange, 158 Ill., 21; Barrett v. Cemetery Association, 159 Ill., 385; Barton v. Union Cattle Co., 28 Neb., 350; Platt Bros. v. Waterbury, 72 Conn., 531; Chapman v. Rochester, 110 N. Y., 273; Amsterdam Knitting Co. v. Dean, 56 N. E. Rep., 757; Fernald v. Woolen Co., 82 Me., 48; 7 L. R. A., 459; Mann v. Willey, 64 N. Y. Supp., 589; 168 N. Y., 664; 61 N. E. Rep., 1131; Lawson v. Wooden Ware Co., 59 Wis., 393; 48 Am. Rep., 528; Corning v. Iron & Nail Factory, 40 N. Y., 199; Wood on Nuisances, secs. 441, 777; Stines v. Dorman, 25 Ohio St., 580; 16 Am. & Eng. Ency. Law, 355; Water Co. v. Strawboard Co., 57 Fed., 1000; Drake v. Coal Co., 24 L. R. A., 64; Lentz v. Carnegie Brothers & Co., 145 Pa., 612; Young v. Distillery Co. (appeal case), House of Lords (1893); Beach v. Iron & Zinc Co., 33 Atl. Rep., 289; Callen v. Electric Light Co., 66 Ohio St., 166; Schaaf v. Railway Co., 66 Ohio St., 215; Merrifield v. Lombard, 13 All., 16; 90 Am. Dec., 172; Keppel et al. v. Coal & Navigation Co., 200 Pa., 649; 50 Atl. Rep., 302; Holsman v. Bleaching Co., 14 N. J. Eq., 335; Proprietors of Mills v. Water Supply Co., 149 Mass., 478; 4 L. R. A., 272; sec. 6925, Rev. Stat.

      Mr. James O. Troup; Mr. Chas. D. Dickinson and Mr. George J. Wolf, for defendants in error,
    cited and commented upon the following authorities:
    8 Am. & Eng. Ency. Law (2 ed.), 689, 694, 697; Sedgwick op Measure of Damages (7 ed.), 164; Hale on Damages, 64 (Hornbook Series); Watkins v. Rist, 31 Atl. Rep., 413; McCord & Hunt v. Iker, 12 Ohio, 387; Goodall v. Crofton, 33 Ohio St., 275; Grey v.
      Railway Co., 1 Grant’s Cases, 412; 19 L. & E., 639; 23 Am. & Eng. Ency. Law (1 ed.), 435; art. 1, sec. 19, Constitution of Ohio; Williams v. Railroad Co., 18 Barb., 222; Mazetti v. Railroad, 3 E. D. Smith, 98; Commonwealth v. Reed, 10 Casey, 275; Vaugn v. Railway Co., 3 H. & N., 742; s. c. 5 H. & N., 678; Railroad Co. v. Yeiser, 8 Pa. St., 366; Turnpike Co. v. Railroad, 54 Pa. St., 345; Railroad v. Yerger, 73 Pa. St., 121; Coal Co. v. Sanderson, 113 Pa. St., 141; Hatch v. Railroad Co., 18 Ohio St., 92; 2 Kent’s Commentaries, 339; 21 Am. & Eng. Ency. Law (2 ed.), 737; Booth v. Railroad Co., 140 N. Y., 277; 22 Am. & Eng. Ency. Law (2 ed.), 916; Thorpe v. Railroad Co., 27 Vt., 149; Bridge Co. v. Gilmore, 4 Circ. Dec., 366; 8 C. C. R., 659; People v. Warden, 144 N. Y., 529; Prentice on Police Powers, 193; Culver v. Ragen, 8 Circ., Dec., 125; 15 C. C. R., 228; Wheeler v. Fisher Oil Co., 9 Dec., 294; 8 N. P., 309; Water Co. v. Oil Co., Pittsburg Legal Journal, 259 (1890); Barnard v. Sherley, 135 Ind., 574; Young v. Distillery Co. (appeal case), H. L., 691; Beach v. Iron & Zinc Co., 54 N. J. Eq., 65; Coal & Iron Co. v. Tucker, 48 Ohio St., 42; Mansfield v. Balliett, 65 Ohio St., 451; Strobel v. Salt Co., 164 N. Y., 303; Iron Co. v. Dye, 87 Ala., 470; Mann v. Mining Co., 49 App. Div., 454; Robb v. Carnegie, 145 Pa. St., 338; Stevenson v. Coal Co., 201 Pa. St., 112; Drake v. Coal Co., 24 L. R. A., 64; Hughes v. Anderson, 68 Ala., 280; 16 Am. & Eng. Ency. Law (2 ed.), 360; McCoy v. Bank, 5 Ohio 548; Hulse v. Wright, Wright (Ohio), 61; McCord & Hunt v. Iker, 12 Ohio, 387; Goodall v. Croften, 33 Ohio St., 271; sec. 6925, Rev. Stat.
   Shauck:, C. J.

The circuit court did not state its conclusions of fact separately from its conclusions of law, and it is not onr duty to consider conflicting evidence for the purpose of determining its probative value. The case we are to consider is, therefore, to be taken as favorably to the defendants as is justified by admitted allegations of the pleadings and any substantial evidence supporting their averments where issues of fact are joined. Thus stated the material facts are:

Plaintiff is the owner of forty-eight acres of land upon which for about thirty-five years it has maintained and operated a blast furnace for the manufacture of pig iron. Upon the premises are dwelling-houses used as habitations of employes and their families. The residue of the land is devoted to pasturage. A part of the equipment of the furnace consists of fourteen boilers used for the generation of steam consuming for that purpose 200,000 gallons of water daily. This water since the erection of the furnace has been procured from the Cherry Fork of Beaver Creek which runs through the company’s land, the water, in its natural state, being nearly free from impurities, and suitable for the generation of steam. The defendants had prospected for and found a valuable bed of petroleum near the source of Cherry Fork, and above the property of the iron company, which they had commenced to operate in the usual way, and without negligence, by pumping the oil and the salt water with which it is always commingled in the Ohio field into tanks, permitting the oil to rise to the surface, and drawing the salt water from beneath it, thé water finding its way by gravity to the stream. No other mode of operating for petroleum is known. The extent to which the water of the stream is charged with salt when it reaches the property of the plaintiff varies with the stage of the water in the stream, but it is at all ordinary stages sufficient to increase the foaming of the water in the boilers when heated, to raise its boiling point, to increase the demand for fuel for the generation of steam and to diminish perceptibly the efficiency of the furnace. It is practicable for the plaintiff to obtain water for the furnace at other and convenient sources at a moderate and ascertainable expense, and the addition of a small amount of oil to the water of the stream after it receives the water of the oil wells of the defendants would materially diminish the foaming and lower its boiling point.

It is impossible for the defendants to develop the mineral resources of the land without doing all the things <with which they are charged.

'■ The single question for. our determination is whether, upon such a state of facts, a court of equity should perpetually enjoin the prosecution of the enterprise of the defendants in view of the injury which it unavoidably inflicts upon the plaintiff. In the affirmative it is urged that in the development of the resources of their land the defendants, in violation of the plaintiff’s constitutional rights, are taking its property for a private use and without compensation. Some highly figurative uses of the phrase, taking of property, tend to mislead the mind as to its true meaning. Here is no attempt to assert dominion over the property of the plaintiff or to exclude it from possession. It .is truthfully said that in the present action the plaintiff is asserting a property right, but it is a property right incident to the ownership of the soil. The parties to the action are riparian proprietors upon the same stream. Neither is the owner of the water, or any portion of the water, in the stream. The complaint is, not that the defendants are taking the property of the plaintiff, bnt that exceeding their rights as riparian owners, they are making a nse of the stream which abridges the rights of the plaintiff to its injury. In its nature the plaintiff’s action is for the creation and maintenance of a nuisance. That an injury to a property right of this character cannot be legalized by the legislature does not affect the form of relief which should be awarded on account of an invasion of the right. The protection of rights in property is the purpose for which courts of equity most frequently exercise their jurisdiction, and it is with reference to the protection of such rights that the familiar rule is usually stated and applied, that equity will intervene only when legal remedies are inadequate. Within this limitation a court of equity will enjoin a continuous or recurring nuisance when it is of such a nature that there can be no complete and adequate redress at law, and it should be conceded that to the adequacy of the legal remedy it is essential that the case be of such a nature that full indemnity may be recovered without a multiplicity of suits. It is said, and truly, that the equitable remedy of injunction is now more favored than formerly, but this means only that the propriety of the remedy is more appreciated and that courts of equity are more insistent that the legal remedy shall be in all respects adequate to justify the refusal of the injunction upon that ground. It does not mean that courts of equity have forgotten that they áre administering a supplemental system, designed and administered for the purpose of supplying the deficiencies of the law, or that this limitation upon their jurisdiction is immutably fixed by that purpose. Separate analysis of the numerous cases cited by counsel for tbe plaintiff and considered in our examination is not practicable. . Most of them are distinguished by obvious differences in the facts of the cases, or in the remedy sought. This js not an action for damages. The defendants are conducting a lawful business with care. They are conducting it at the only place where it can be conducted. Such injury as is done to the plaintiff is unavoidable. No injury to the health of the public or the employes of the plaintiff results. If the conduct of the defendants is without right, and a more appropriate rule of damages should not be suggested in an action at law, the recovery of a sum of money sufficient to pay the expense of obtaining water from another source would fully indemnify the plaintiff and relieve it of further injury without additional litigation. Cases which take no account of considerations such as these are not in harmony with the beneficient purposes for which the system of equity was established.

There is no such thing as an equitable nuisance. If the plaintiff bas no cause of action at law in tbe present case it can have none in equity, and the jurisdiction of the courts of equity must be determined by the usual test respecting the adequacy of the legal remedy. That nuisances áre frequently enjoined results from the fact that they are frequently, if not usually, of such a nature as to present one of the recognized grounds of equitable jurisdiction, that is, that the injury is irreparable by the processes of the law or that a multiplicity of suits would be required at law to obtain redress.

The case does not require us to consider whether the plaintiff may recover at law, or whether in a case otherwise within the grounds of this form of relief, an injunction should be denied because less injury would result to the plaintiff from denying than to the defendant from allowing it.

Judgment affirmed.

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


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    The Bigalow Fruit Company v. Armour Car Lines.

      Foreign corporation doing business in this state — Requirements and exemptions — Sections 148c and 148d, Revised Statutes— Foreign corporation furnishing refrigerator cars for transportation — Not entitled to comply with section 148c, when— Not exempt from process of attachment, when.

    1. A foreign corporation whose business is furnishing refrigerator cars and ice therefor, for transportation purposes partly within this state and partly without and across this state, is a “transportation or other corporation engaged in Ohio in interstate commerce business,” within the meaning of section 148o, Revised Statutes.
    2. Such corporation is not subject to the provisions of section 148c, Revised Statutes, nbr entitled to comply with its requirements; and a voluntary compliance with that section by such corporation, will not bring the corporation within the proviso of section 148d, Revised Statutes, so as to exempt it‘from process of attachment upon the ground that it is a foreign corporation or non-resident of this state.
    (No. 9069
    Decided May 1, 1906.)
    Error to the Circuit Court of Cuyahoga county.
    In the court of common pleas the plaintiff in error brought a civil action against the defendant in error for the recovery of money and sued out an order of attachment against the defendant, the Armour Car Lines, on the ground that the defendant was a foreign corporation engaged in transportation and interstate commerce business. The defendant moved to discharge the attachment on the ground that this averment was untrue and because the defendant had complied with sections 148c and 148c?, Revised Statutes. The. court of common pleas refused to discharge the attachment and rendered judgment for the plaintiff in error. All of the evidence on the motion is embodied in a bill of exceptions. On. petition in error the circuit court reversed the order of the common pleas court and discharged the attachmenfffor the reason that having complied with the requirements of section 148a •the Armour Car Lines was not subject to attachment on the ground that it was a foreign corporation engaged in interstate commerce. This proceeding in error is brought to reverse the judgment of the circuit court.

      Messrs. Higley & Maurer, for plaintiff in error,
    cited and commented upon the following authorities:

      Pickard v. Car Co., 117 U. S., 34; Pullman So. Car Co. v. Nolan, 22 Fed. Rep., 276; American Refrigerator Transit Co. v. Hall, 174 U. S., 70; Union Refrigerator Co. v. Lynch, 177 U. S., 149; Toledo Commercial Co. v. Manufacturing Co., 55 Ohio St., 217; Missionary Society v. Ely et al., 56 Ohio St., 405; Rumsey v. Lentz, 59 Ohio St., 189; Wetzell v. Richcreek, 53 Ohio St., 62; Gamble v. Railroad Co., 63 Ohio St., 352; secs. 148c, 148d, 5521 and 6710, Rev. Stat.

      Messrs. Brewer, Cooh & McGowan, for defendant in error,
    cited and commented upon the following authorities:

      Finley v. Whitley, 46 Ohio St., 524; Armour Car Lines v. Bigalow Fruit Co., 26 O. C. C., 496; Toledo

      Commercial Co. v. Manufacturing Co., 55 Ohio St., 217; Kaeiser v. Railroad Co., 18 Fed. Rep., 151; 17 Am. & Eng. Ency. Law (2 ed.), 51, 62; Hopkins v. United States, 171 U. S., 579; Pullman Southern Car Co. v. Nolan, 22 Fed. Rep., 278; Pickard v. Pullman Southern Car Co., 117 U. S., 44; Pollock v. Speidel, 27 Ohio St., 94; American Refrigerator Transit Co. v. Hall, 174 U. S., 70; Union Refrigerator Co. v. Lynch, 177 U. S., 149; Sands v. Improvement Co., 123 U. S., 288; Navigation Co. v. United States, 148 U. S., 312; Bridge Co. v. Railroad Co., 37 Fed. Rep., 567; Railroad v. Pennsylvania, 15 Wall., 232; Railroad v. Fuller, 17 Wall., 560; Bowman v. Railroad Co., 125 U. S., 479; secs. 148c, 148d, 5521 and 6710, Rev. Stat.
   Davis, J.

The defendant in error" is a corporation organized under the laws of New Jersey and having its principal office in that state. The first question presented by the record is whether the defendant in error is, within the meaning of section 148c, Revised Statutes, a “transportation or other corporation engaged in Ohio in interstate commerce business.”

The undisputed evidence contained in the bill of exceptions, discloses that the defendant in error, besides its home office in New Jersey, has branch offices ‘ ‘ scattered throughout the country; ’ ’ that one class of business in which it is engaged is “furnishing cars for its own business” and another class is “furnishing cars or refrigeration for fruit shipments;” that in 1901 it was operating what was then known as the “Fruit Growers’ Express;” that in that year it issued a schedule of rates for refrigeration between various points in different states; that it sometimes made specific contracts with shippers and sometimes contracted with railroads to furnish cars, receiving mileage therefor and reserving,to itself all duties relating to icing and refrigeration; that the charge for refrigeration was usually collected for the defendant in error by the railroad companies; that the shipper determined the point to which the car should be sent; that sometimes the cars transported produce between points in this state, sometimes from points outside of this state to points inside of the state and sometimes from points outside of this state across’ this state and into other states; and that in the year 1901 its principal office'in this state was at Cincinnati and that it had a representative there who had charge of handling, business which originated and terminated within this state, “as well as general charge of watching the movements of fruit business from one state to another.” From these undisputed facts a majority of this court have no hesitation in holding that the defendant in error is a foreign corporation engaged in Ohio in interstate commerce business. It is made very manifest by these facts that the defendant’s business is not even primarily intrastate but interstate; that its business within this state is only incidental to its general business of furnishing car’s and refrigeration for transportation between points in many of the states.

Now what is the effect of this finding on this case? The defendant in error insists that it is immaterial; for the reason, as it is contended, that compliance with sections 148c and 148(7, Revised Statutes, exempted the defendant in error from attachment. The argument is, that the sale of ice within this state is not interstate commerce; and that if part of the business of a foreign corporation was interstate commerce and part was not, a formal compliance with the statute would be sufficient to exempt the corporation from attachment, as provided in sections 5521, 148c and 148<7, Revised Statutes. This argument seems to ignore the fact that while ice may have been nominally sold in this state, yet that in most instances it was put into the cars of the defendant in error to be transported within or without the state, as occasion might require; and it also assumes as true, a proposition which is not true, namely, that if a part of the business of the defendant in error was not interstate commerce, for that réason it was not engaged in interstate commerce, although a large 'part of its business was indisputably interstate commerce. If it is a foreign corporation engaged in interstate commerce in whole or in part, for there is no distinction made in the statute as to parts, it is not subject to, nor entitled to the privileges of, section 148c; and therefore it cannot comply with section 148c so as to obtain exemptions from attachment. A mere voluntary compliance with this section, by a corporation which is not within its purview, is an empty and meaningless form.

The proviso of section 14&d that such foreign corporations as comply with section 148c shall not be subject to attachment, does not let in the defendant in error; for the defendant in error is not within the terms of section 148c and was not entitled to comply with it: therefore its compliance therewith in form is a nullity and confers no immunity upon it.

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

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


author: Speab, J.

text:
    Hoiles v. Riddle, Admr., et al.

      Time of commencing actions — Statute of limitations — Sections J/976 and J/981, Revised Statutes — Debt based upon a contract not in' writing — Decease of the' debtor — Statute does not begin to run until appointment of administrator, when.

    The statute of limitations, (sections 4976 and 4981, Revised Statutes), does not begin to run against a debt based upon a contract not in writing which becomes due by reason of the decease of the debtor, until the appointment of an administrator or executor on the estate of such debtor, and due notice thereof.
    (No. 9121
    Decided May 1, 1906.)
    Error to the Circuit Court of Columbiana county.
    An action was comttienced, August 29, 1903, by Amanda Hoiles, (plaintiff in error) in the court of common pleas of Columbiana against Lodge Riddle as administrator of Robert Watson, deceased, to recover a money judgment in the sum of $3,310.00 and interest, against him as such administrator, and William C. Watson, who claims to be an heir of the deceased, and Jacob Freshley, who claims to hold title to certain lands by purchase from the estate. The plaintiff’s claim had been presented to the administrator for allowance, but because of a written requisition on him by the defendants Watson and Freshley, accompanied by a statutory bond, was, on August 6, 1903, rejected.
    In her petition plaintiff declared upon an alleged contract made by plaintiff’s father with Robert Watson, deceased, in the year 1863, when plaintiff was an infant two years of age, her mother being deceased, by which, upon the consideration that plaintiff’s father would relinquish and surrender the control and possession of plaintiff, and her services, society and care to said Robert Watson and his said wife, they were to take plaintiff, adopt her, keep, clothe and provide for her, give her their own name, and thereafter treat her as their own child; and said Robert Watson further agreed, upon the same consideration, that he would give her all the personal property he owned or possessed at his death, which property she was to have and receive at his death if he survived his wife, Mary Watson, but if his wife survived him, then plaintiff was to have and receive said property at the death of his said wife. Immediately, and in pursuance of the contract, plaintiff’s father did relinquish her to said Robert and Mary Watson, and they did receive her and did give her their own name, by which until her marriage she was always known, but did not adopt her by statutory adoption.
    Robert Watson died April 26, 1895, leaving a last will by the terms of which he gave all his estate to his wife Mary. At the time of his death he was possessed of personal property of the value of thirty-three hundred and ten dollars no part of which was ever received by plaintiff.
    Mary Watsoñ died September 12,1899, leaving no will.
    No administration was taken out on the estate of Robert Watson until April 6, 1903.
    The defendants Watson and Freshley each filed a demurrer to the petition on the grounds: 1. That it does not state a cause of action; and, 2, that more than six years have expired from the time the cause of action, if it ever existed, accrued, and that it was barred by the statute of limitations. These demurrers were sustained and the ease dismissed by the common pleas and this judgment was affirmed by the circuit court. The plaintiff brings error.

      Mr. William H. Spence, for plaintiff in error,
    cited and commented upon the following authorities:

      Sharkey v. McDermott, 91 Mo., 647 (4 S. W. Rep., 107); Thomas v. Freese, (Ky. App.), 51 S. W. Rep., 150; Van Duyne v. Vreeland, 12 N. J. Eq., 142; Shahan v. Swan, 48 Ohio St., 25; Kilbreath v. Gaylord, Admr., 34 Ohio St., 305; Holt v. Lamb, 17 Ohio St., 374; Carpenter v. Denoon, 29 Ohio St., 379; Koltenbrock v. Cracraft 36 Ohio St., 585; Treasurer v. Martin, 50 Ohio St., 197; Tobias v. Richardson, 26 O. C. C., 81; In re Bullard’s Estate, 116 Cal., 355 (48 Pac. Rep., 219); Marsteller v. Marsteller, 93 Pa. St., 350; Riner v. Riner, 166 Pa. St., 617 (31 Atl. Rep., 347); Parks v. Norris, 101 Mich., 71 (59 N. W. Rep., 428); Mills v. Mills, 43 Kan., 699 (23 Pac. Rep., 944); Brenner v. Quick, 88 Ind., 546; Baird v. Reynolds, 99 N. C., 469 (6 S. E. Rep., 377); Benjamin v. DeGroot, 1 Den. (N. Y.), 151; McCullough v. Speed, 3 McCord (S. C.), 455; Sorrels v. Trantham, 48 Ark., 396 (4 S. W. Rep., 281); Murry v. East Ind. Co., 5 Barn. & Ald., 204 (7 E. C. L., 118); 2 Woerner’s American Law of Administration (2 ed.), 918; 1 Rockel’s Ohio Probate Practice, sec. 608, p. 523; 19 Am. & Eng. Ency. Law (2 ed.), 220; Wood on Limitations, sec. 117; Railway Co. v. Richards, 152 Ill., 59; Zuck v. McClure, 98 Pa. St., 541; 7 Am. & Eng. Ency. Law (2 ed.), 152; Bishop on Contracts, secs. 1274, 1277, 1278, 1279; Westropp v. Westropp, 7 Circ. Dec., 14 (13 R., 244); Hill v. Jamieson, 16 Ind., 125; Kent v. Kent, 62 N. Y., 560; Riddle v. Backus, 38 Ia., 81; Howar v. Snyder, 9 Ky. Law, 358; Sword v. Keith, 31 Mich., 247; Updike v. Ten Broeck, 32 N. J. Law, 105; Carr v. McCarthy, 70 Mich., 258; Wooldridge v. Stern, 42 Fed. Rep., 311; Harper v. Harper, 57 Ind., 547; Keithler v. Foster, 22 Ohio St., 27; 1 Rockel’s Ohio Probate Practice, sec. 64; secs. 6005 and 6014, Rev. Stat.

      'Messrs. Craine & Snyder, for defendant in error Freshley,
    cited and commented upon the following authorities:

      Loren v. Hillhouse, 40 Ohio St., 304; Todhunter v. Stewart, 39 Ohio St., 181; Granger’s Admr. v. Granger, 6 Ohio, 35; Bauserman, Admr. v. Charlott, 46 Kan., 480; Kulp v. Kulp et al., 51 Kan., 341; Blume v. Hartman, 115 Pa., 32; Arnold et al. v. Blabon, 147 Pa., 372; Appeal of Chas. S. Keyser, 124 Pa., 80; Estate of David Light, 136 Pa., 211; Poirier v. Gravel, 88 Cal., 79; Wolf v. Marsh, 54 Cal., 228; Davis v. Hart, 123 Cal., 384; Jenkins v. Stetson, 9 All., 128 (91 Mass., 128); Ackerman v. Hilpert, 108 Ia., 247; Hardy v. Riddle et al., 24 Neb., 670; Barton v. Bank, 122 Ill., 356; Hull et al. v. Deatly’s Admr., 7 Bush, 687; DeKay v. Admrs. of Darrah, 14 N. J. Law, 288; Railroad v. Brantley’s Admr., 21 Ky. L. R., 473; Bauserman v. Blunt, 147 U. S., 647; McDonald v. Hovey, 110 U. S., 619; secs. 4979, 4981, 4986 and 6005, Rev. Stat.

      Mr. David Fording, for defendant in error Watson, filed no brief.
   Speab, J.

The entire petition is not reproduced in the statement because it was practically conceded at the argument, and such seems to have been the view of the circuit court, that the petition states a •cause of action unless the plea of the statute of limitations is fatal to it. But it is insisted by counsel that the cause of action, if one existed, accrued not later than the time of the decease of Robert Watson, and more than six years having elapsed before commencement of suit, the claim is outlawed, and such was the opinion of the majority of the learned circuit court, as appears by the report of the case, 26 O. C. C., 363, opinion by Cook, J. The opinion pertinently inquires: What is required by a creditor who seeks to enforce a claim under a contract made' in this state which accrued at the death of the debtor? Can he remain idle for an- indefinite period although no administration be taken out upon the estate by the next of kin, or is it the duty of the creditor to be diligent in having an administrator appointed in order to save his claim from the bar of the statute? In this case plaintiff in error took no steps whatever to save her claim until April 6, 1903, a period of nearly eighteen years. If the rule is that the statute did not begin to run until an administrator was appointed then claims of this nature would never become stale, as in suits at law the statute alone con- ■ trols as to whether a claim is stale or not. A party might wait, as in this case, until all the witnesses to the contract but one, who was interested as a father, were dead, and then have an administrator appointed and commence Action. Section 6005, Revised Statutes, gives authority to the probate court, where the next of kin are incompetent, or unreasonably neglect to take administration to appoint a creditor, or some person whom the court may think fit. So that it was plaintiff’s privilege to cause letters to be issued and then commence her action. This opportunity was neglected until long after the statute had run against her claim, and she ought not now to be heard. Concretely stated the holding is that in such case the statute runs from the time the creditor should have had an administrator appointed and not from the time letters were in fact issued. Divers authorities are cited by the learned judge which are believed to support these views. These with others, will be found in the reporter’s notes.

One member of the court, Burrows, J., maintained a contrary view. He held in substance that the decision by the majority is not based upon any statute which meets the circumstances of this case, but the broad claim is made that the commencement of the period of limitation is not co-existent with the time when the right to bring an action, in fact exists in favor of the creditor, but when by proper steps he might, by other proceedings, have procured the right to bring his action. In other words, the statute is to be judicially amended so that its bar becomes effective after six years from the time the cause of action might have been made to accrue and not from the time it in fact did accrue. It seems plain that, unless our courts are to be governed by the statutes of other states, we have merely to decide whether the statute of limitations begins to run when the right to sue is perfect, or when such right does not exist but may be brought into existence by the act of the creditor. The prbper answer to this question is that in the absence of a positive provision of the law depriving a creditor of his right to have payment, or exonerating the debtor from the duty of 'making payment, it is not the duty and not within the power of the courts to add to the statute of limitations by attaching a condition to the right to prosecute an action which is not found in the statute itself; that to do so would be to exercise legislative rather than judicial power. The general statutes limiting the time when actions may be commenced do not make provision for the enforcement of claims against the estates of decedents; and proceedings for the latter purpose are governed by,the law regulating the settlement of estates. It is not contended that the claim of the plaintiff below is barred by any provision relating to the settlement of estates; nor is it claimed that there is any provision of statute which in terms meets the circumstances of this case, but only that it is barred by section 4981 of the Revised Statutes. To engraft upon the statute the condition contended for would be simply a judicial amendment or supplement to the •statute. One feature of the general policy of our statutes is indicated by the terms of section 4989, where it is provided that when a cause of action accrues against a person who is out of the state, or where he leaves after the cause accrues, the time he is absent shall not be counted. In a suit involving absence it should be as reasonable to say, in case it should be made to appear, that, although the debtor was himself absent, yet all the time of such absence he had property within the state reachable by attachment, that fact should require the court to hold that the case presented an exception to the application of the general rule as it is to hold in this case that the failure by the plaintiff to have an administrator appointed takes the case out of the general rule and defeats the plaintiff’s right to a recovery.

We find ourselves in agreement with this view of the dissenting judge. Let us start with a clear understanding of the exact issue. The inquiry is not what rule should apply in a case where the cause of action has already accrued, and the question to be answered is simply what will suspend tbe operation of the statute, but what rule is to apply where the right to maintain an action has not yet accrued. In cases involving the first inquiry interposition is .asked of the court to arrest the operation of a statute already in full effect; in the other to breathe life into a statute as yet without vitality. This distinction, in our judgment, eliminates from consideration Granger’s Admr. v., Granger, 6 Ohio, 35, and a large number of cases from other states cited and relied upon in support of the judgment below, some of which may be particularly referred to further on. Statutory provisions which are invoked to defeat the plaintiff’s claim are: section 4976 of the Revised Statutes, to the effect that civil actions can only be commenced within the periods prescribed in this chapter after the cause of action accrues, and 4981 which limits the right to commence an action to six years upon a contract not in writing. When, therefore, did the cause of action in this case accrue? When did it arise¶ When did it first exist? It seems to be conceded on all hands that it did not accrue prior to the death of Robert Watson. We cannot. conclude that it accrued at the moment of the decease of Robert Watson because to do so would be to ignore or overturn a fundamental rule of law, to-wit: that in order to give a right of action there must be a party in existence capable of suing and one capable of being sued, and, as an inevitable consequence of this principle if it be applicable, the action cannot accrue and the statute cannot begin to run, until there are in existence a person who may be plaintiff and one who may be made defendant. We understand that this as a general rule is conceded, and yet it may not be amiss to call attention to two Ohio eases in which the rule has been distinctly announced. Taylor v. Thorn, 29 Ohio St., 569, 574; Treasurer v. Martin, 50 Ohio St., 197.

-It is true, as insisted by counsel for defendants in error, that in a number of states the courts have held that where it is within the power of a claimant to have a personal representative appointed, a reasonable, time only in which to secure such appointment is allowed, after which the statute will run, but in a large proportion of these cases, if not all of them, the cause of action had accrued before the decease of the debtor, and the statute was, therefore, running at the time of such decease. Those cases present the question of what will suspend the operation of the statute after it has commenced to run and not what will start it to running. Bauserman, Admr. v. Charlott, 46 Kan., 480, is of this character. Charlott’s judgment, which was the basis of his action, had been obtained long before the death of the judgment debtor, and the statute of limitations was then running. The statute of Kansas in force permitted the judgment creditor, in case the widow or next of kin neglected to take out letters for fifty days after the death of the decedent, to. obtain such letters for himself, or some other person, and the court held that the statute continued to run notwithstanding the decease of the debtor, and the statutory limit having expired, the debt was barred. We have a different case.' Two other decisions of the same court more nearly resemble our case in principle. In Carney v. Havens, Admr., 23 Kan., 82, opinion by Brewer, J., (now of the United States Supreme Court), the holding is that “where services are performed under a single and entire contract, in the absence of stipulations to the contrary, payment is not due until the services are fully performed and the contract completed, and if, pending such a contract, the party employed to render the services, dies, the statute of limitations does not begin to run on the claim for compensation until by the appointment of an administrator or executor, there is some one authorized to collect and receive the compensation.” This ruling was followed in Mills v. Mills, 43 Kan., 699, where the holding is that “where a cause of action upon an agreement does not accrue until after the death of one of the parties, the statute of limitatipns will not begin to run on the claim of the estate of the deceased upon such agreement until an administrator or executor authorized to collect or enforce the payment of the claim has been appointed.” These cases are not disapproved in Bauserman v. Charlott, supra, but it is distinctly stated in the opinion that “it is not necessary at this time to re-consider any of the former decisions of this court.” But more than this. It is, we think, a mistake to assume that the statute of Kansas respecting the appointment of administrators is in all essential respects similar to ours. That statute, as above shown, enjoins upon the widow or next of kin a duty to procure administration within fifty days from the death of the decedent. No such duty is enjoined by our statute. By section 6005, if the widow and next of kin are incompetent or evidently unsuitable, or if they neglect without sufficient cause to take administration, the court may appoint a creditor, or any competent person, but there is no limit defined by statute unless it is found in section 6014, which provides that administration shall not be originally granted as of right after the expiration of twenty years from the death of the deceased. It would seem not unreasonable to a.ssume that tbe language of tbe Kansas statute implies a different intent from that to be gathered from the sections of our statute bearing on the subject.

But there is still another view of this situation. The holding of the circuit court is really put upon an equitable ground, a ground in the nature of .an estoppel. The plaintiff, says the court, has been guilty of laches, in that she failed to avail herself of the means within her power to preserve her claim. May not this criticism apply also to the parties of the other side, Watson the heir, and Preshley the purchaser? Did they not omit to do that which they might easily have done to protect their titles? By the procurement of letters of administration, and due notice, Watson could easily have caused the statute to begin to run against the plaintiff’s claim, and Preshley could easily have refused to buy until that had been done, and we think it reasonable, to assume that the law in this respect is as likely to have been known by these men as that the law with respect to the appointment of an administrator was known to the plaintiff, a woman. Prom a business standpoint it was negligence on the part of these men to take the chances with respect to their titles, and it would seem not unfair in matching up equities to leave them where they have put themselves. Of course, however, it is understood that we are dealing with a suit at law and not with an equitable action, and as the majority opinion itself says, “in suits at law the statute of limitations alone controls as' to whether a claim is stale or not. ” ■

' There is to be found, here and there, language in decisions and by text authors which would imply that the judgment of the writers is opposed to the conclusion we have reached and which is herein-before announced. But we think such is not the trend of judicial opinion, and we cite in support of this statement additional authorities: Angell on Lim., chap. 7; Wood on Lim., sec. 6; Murray v. East India Co., 5 B. & A., 204; Andrews v. Hartford R. R. Co., 34 Conn., 57; Hobart v. Turnpike Co., 15 Conn., 145; Bullard, In re, 116 Cal., 355; Marsteller v. Marsteller, 93 Pa. St., 350; Riner v. Riner, 166 Pa. St., 617; Parks v. Norris, 101 Mich., 71; Baird v. Reynolds, 49 N. C., 469; McCollough v. Speed, 3 McCord, 455; Benjamin v. DeGroot, 1 Denio, 151; Sorrels v. Trantham, 48 Ark., 386.

Our conclusion is reached only because we are of opinion that the court is without authority to supplement the statute, and not because we think the statute wish in this respect. Indeed we are inclined tó agree with the declaration of the learned judge of the circuit court in his report of the case, supra, and with a like expression of the court in Riner v. Riner, supra, that the present condition of the statute leaves a way open by which estates may be imposed upon, and are of opinion that an amendment providing that, in a case like the present, the statute shall commence to run from the death of the decedent, or within a fixed time thereafter, would be in the interest of justice. But this is for the general assembly and not for the courts.

The judgment will be reversed and the cause remanded with direction to overrule the demurrer to the petition and for further proceedings according to law.

Reversed.

■■’Price, Crew, Summers and Davis, JJ., concur.


author: Summers, J.

text:
    Emmert v. City of Elyria.

      Improvements of streets by municipality — Section 1536-215. Revised Statutes — Ordinance shall contain character of materials, when — Restrictions as to municipal contracts— Section 1536-205, Revised Statutes — No contract for expenditure of money, until money is in treasury to credit of proper fund — Exceptions in favor of street improvement contracts', when — Requirements as to sale of bonds, etc. — Municipal law.

      1. A statement in an ordinance, providing for the improvement of a street by paving, that the paving material shall be asphalt, brick or other material as may thereafter be determined, meets the requirement of section 55 of the municipal code, ,(1536-215, Revised Statutes, Bates 5th ed„), that the ordinance' shall contain a statement of the general nature of the improvement and the character of the materials which may be bid upon therefor.
    2. Sections 45 and 45a of the municipal code (1536-205 and 1536-205a, Revised Statutes, Bates 5th ed.), providing in substance that no contract involving the expenditure of money shall be entered into unless the auditor of the corporation shall first certify to council that the money required for the contract is in the treasury to the credit of the fund from which it is to be drawn and not appropriated for any other purpose and that a contract entered into contrary to such provision shall be void and that the money to be derived from lawfully authorized bonds or notes sold and in process of* delivery shall be deemed in the treasury and In the appropriate fund, do not apply to contracts for street improvements, when bonds have been authorized by the municipality to be issued to pay the entire estimated cost and expense of the improvement.
    (No. 9685
    Decided May 1, 1906.)
    Error to the Circuit Court of Lorain county.
    The plaintiff in error, a resident taxpayer of the city of Elyria, brought suit in the court of common pleas to enjoin the city from paying to the Barber Asphalt Paving Company the balance due it on .a contract for paving one of the avenues of said ■city.
    As grounds for the relief he avers that the ■ordinance for the improvement was defective in that it did not provide the kind of material to be used in the making of the improvement; that the certificate of the auditor that the money necessary for the improvement was in the treasury to the credit of the proper fund and unappropriated for any other purpose was not filed with the council before the passage of the resolution and ordinance authorizing said improvement nor before the contract for said improvement was entered into by the city; that there was no money in the treasury to the credit of said fund nor had any bonds or notes been sold at the time of entering into the contract.
    Plaintiff further averred that if it should appear that at any time the auditor had certified to the •council that there was money in the treasury to the ■credit of said fund for the purpose of constructing .said improvement such certificate was false and untrue and was fraudulently made by the procurement of the paving company to acquire an undue advantage over and with the intent to defraud the •city out of the money named in the contract.
    The city answered denying the facts stated as .grounds for the relief prayed for.
    The Asphalt Company also denied these facts and .averred that in response to an invitation from the ■city for bids it filed with said city a bid for making the improvement, that its bid was accepted, that prior to entering into the contract the auditor of the city filed with the council of the city a certificate, certifying that the money required by the contract was in. the treasury of the city to the credit of the improvement fund for said avenue and not appropriated to any other purpose, and that said certificate ,was immediately recorded as required hy law, and that before the making of said contract the city procured from its city solicitor an opinion that it had a right to enter into said contract and that the paving company, relying upon the fact of the filing and recording of said certificate and of said opinion of the city solicitor and believing that all of the acts of the city were had and done in áccordance with law, entered into said contract in good faith and thereáfter furnished the materials and labor and constructed said improvement in all respects in accordance with its contract and to the satisfaction and acceptance of said city and fin so doing expended a large amount of money of which there remained unpaid and due it under said contract the sum of $22,000, and that it would be inequitable and unjust in the city to refuse payment according to the terms of its contract and that if it was not permitted to do so the city would have the improvement without .paying for it, and thus a great wrong and injury would be done the paving company; that the work was done with knowledge of all the facts by the plaintiff and that he did not bring the suit until the work had been done and that he and the city were estopped to deny the obligation on the part of the. city.
    The plaintiff denied the averments of the answers.
    The court of common pleas found that the contract price of the improvement was, in round numbers, $58,000; the part to be paid by the city $30,000, and that $36,000 of the contract price had been paid and that $22,000 remained due and that plaintiff was entitled to an order restraining the payment of so much of the balance due as is tlie part to be paid by the city in proportion to the contract price, to-wit, the sum of $11,000 and enjoined the payment of that amount.
    The case was appealed to the circuit court. That court made the following findings of fact:
    “I. That on the ninth day of August, 1904, the city solicitor of said city was requested by plaintiff to bring this action; but said solicitor failed, neglected and refused so to do.
    “II. That on and from time to time after the twenty-second day of March, 1904, all proceedings required by law were duly had by said city for the making of the improvements described in the petition, save that (a) the council of said city never determined what hied of material should be used for paving said street otherwise than to determine by resolution, duly passed and approved, that it should be asphalt, brick or other material as might thereafter be determined, and to direct by ordinance that the board of public service of said city contract with the lowest and best bidder for said improvement; and in accordance therewith said board thereafter determined to use asphalt; (b) the certificate of the auditor of said city, that the money necessary for said improvement was in the treasury to the credit of the proper fund and unappropriated for any other purpose was filed with the clerk of the council and also in the office of the board of public service of said city on the same day that, and immediately before, said contract was let, and not before that time, and that on the day of said filing of said certificate and letting of said contract, all proceedings of council with respect to said improvement had already been had, and said council was not in session on the day of the filing of said certificate.
    “III. At the time said certificate was filed there was no cash in the proper fund and unappropriated in said treasury for said improvement, but bonds of said city wherewith to provide such cash had been duly authorized. Said bonds had not been sold nor were there any notes of said city then sold and in process of delivery, and said facts were all well hnown to all the defendants; who, however, in good faith, and pursuant to the advice of the solicitor of said city, proceeded with said improvement, believing that their proceedings were lawful.
    “IV. Plaintiff, when said contract was let, was present and protested against said action, but thereafter paid a portion of the assessment levied on his property to pay the cost of said improvement, and he forebore to bring this action until said contract was fully executed and the improvement completed.
    “V. $36,000 has been paid and $22,000 is unpaid on said contract;” and concluded as matter of law that the plaintiff by his laches was estopped to deny the due authorization of the use of asphalt as the material for said improvement and that all of the other proceedings of the city were regular and lawful and dismissed the plaintiff’s petition at his cost.
    Error is prosecuted to this court.

      Mr. D. J. Nye, for plaintiff in error,
    cited and commented upon the following authorities :

      City of Findlay v. Pendleton, 62 Ohio St., 80; Bond v. Village of Madisonville, 1 Circ. Dec., 581; 2 C. C. R., 449; City of Lancaster v. Miller, 58 Ohio St., 558; State ex rel. v. Hoffman, 25 Ohio St., 328;
      Drott v. Village of Riverside, 2 Circ. Dec., 565; 4 C. C. R., 312; McCloud & Geigle v. The City of Columbus, 54 Ohio St., 439; Bridge Co. v. Campbell Com., 60 Ohio St., 406; City of Wellston v. Morgan, 65 Ohio St., 219; Gas & Water Co. v. City of Elyria, 57 Ohio St., 374; Comstock v. Village of Nelsonville, 61 Ohio St., 288; State ex rel. Yeatman, 22 Ohio St., 546; Cincinnati v. Holmes, Admr., et al., 56 Ohio St., 112; Newton v. City of Toledo, 8 Circ. Dec., 607; 18 C. C. R., 756; Toledo v. Newton, 52 Ohio St., 649; McGrew v. Village of Elmwood Place, 6 Circ. Dec., 106; 17 C. C. R., 676; Lewis, Aud. v. Symmes et al., 61 Ohio St., 471; City of Columbus v. Agler, 44 Ohio St., 485; Wright, Treas. v. Thomas, 26 Ohio St., 346; Knorr ex rel. v. Miller et al., 3 Circ. Dec., 297; 5 C. C. R., 609; 27 W. L. B., 64; Hensly v. City of Hamilton et al., 2 Circ. Dec., 114; 3 C. C. R., 201; Railway v. Smith, 29 Ohio St., 291; Brown v. Merrick County Commissioners, 18 Neb., 355; Braman et al. v. City of Elyria, 26 O. C. C., 731; 5 C. C. R., N. S., 387; Mt. Vernon v. State, 71 Ohio St., 428; secs. 45, 55 and 125, Municipal Code; secs. 1777, 1778, 2415 and 2702, Rev. Stat.

      Messrs. Hopkins, Bole, Cobb & Newcomb; Mr. W. B. Johnston; Mr. E. G. and Mr. H. C. Johnson; Mr. F. M. Stevens; Mr. Roscoe J. Mauck and Mr. D. B. Sharp, for defendant in error,
    cited and commented upon the following authorities:

      Moore v. Mayor, 73 N. Y., 238; s. c. 29 Am. Rep., 134; State v. Hoffman, 25 Ohio St., 328; Braman v. City of Elyria et al., 26 O. C. C., 731; 5 C. C. R., N. S., 387; Brown v. Merrick County Commissioners, 18 Neb., 355; 2 High on Injunctions, 985, sec. 1260; 1 Spelling’s Injunctions and Other Rem., p. 570, sec. 682; Bank v. Mayor, 7 Ohio, pt. 2, 35; Hitchcock v. Galveston, 96 U. S. S. C., 341; City of East St. Louis v. East St. Louis G. & C. Co., 98 Ill., 415; 38 Am. Rep., 97; Tone v. Columbus, 39 Ohio St., 281; Mt. Vernon v. State, 71 Ohio St., 428; secs. 1536-205, 1536-205a, 1536-676, 1693 and 2702 (sec. 45, Municipal Code), Rev. Stat.
   Summers, J.

Municipal corporations are agencies of (¿he state. Section 6, article 13 of the constitution, provides: “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 power. ’ ’

In obedience to this mandate laws have been enacted under which our municipalities play their very important parts in carrying on the government of the state. The first general act was passed in May, 1852 (50 O. L., 223). The matter then was. comparatively insignificant. This act authorized them to contract and, in addition to certain enumerated powers, to exercise such other powers as are incident to municipal corporations of like character. A limited power of taxation was conferred and power to borrow a limited amount of money in anticipation of the revenues of the current fiscal year, and the council was explicitly enjoined not to “authorize any order or appropriation of money, when there is not in the city treasury money unappropriated sufficient to pay such appropriation,” and it was provided that “any appropriation otherwise made or authorized, shall be held and deemed utterly void, and of no effect against said corporation,” and that “no money shall be appropriated by the council except by ordinance.” The next general act of importance is the municipal code of 1869 (66 O. L., 145). This act specifies various purposes for which taxes might be levied and the rate for each, and provided that “the council shall not make appropriations nor contract debts for the ordinary purposes of the corporation, exceeding the amount of taxes and revenue from other sources for the current year,” and that “all services rendered and performed, and all supplies furnished for the corporation, shall, as far as practicable, be rendered, performed and supplied in pursuance of contracts to be authorized by the council, through some appropriate officer or department of the corporation.” It is patent from these provisions that the legislative policy respecting its municipal agencies in the matter of their ordinary living expense was pay as you go. That these provisions were not sufficient to effect that policy is apparent from the law passed in 1874 (71 O. L., 80) to authorize the City of Cincinnati to borrow one million dollars to pay its floating debt. Construing this act in the State ex rel. v. Hoffman, Auditor, 25 Ohio St., 328, 333, Gilmore, J., says: “Notwithstanding the provisions of the code against going in debt for ordinary purposes, beyond the revenues of the current year, they seem to have been wholly inadequate, and a floating debt of a million dollars had been by some means saddled upon the city. It is plain that such a debt could not have been in existence if the annual expenditures for ordinary purposes had been kept within the revenues of each current year. It may be inferred that this result had probably been brought about partly through the instrumentality of contracts not very definite in their terms respecting what was to he done, or the price to he paid for it, and partly through contracts entered into and performed, without there being money on hand to pay the expense, and requiring expenditures greater than the current annual revenues would meet. ’ ’

He then points out the remedy provided by the act. “Prom the taking effect of this act, no ordinance or other order for the expenditure of money shall be passed by the city council, or any board, or any officer, or any commissioner having control over the moneys of the city, without stating specifically in such ordinance or order the items of expense to be made under it, and no such ordinance or order shall take effect until the auditor, of said city shall certify to the city council there is money in the treasury especially set apart to meet such expenditure, and that all expenditures greater than the amount specified in such ordinance or order shall be absolutely void, and no party whatever, shall have any claim or demand against said city therefor; nor shall the city council, or any board, or any officer, or any commissioner of said city, have any power to waive or qualify the limits fixed by such ordinance or order, or fasten upon said city any liability whatever for any excess of such limits, or release any party from an exact compliance with his contract under such ordinance or order.” This is the so-called Worthington law and it was carried into the revision of 1880 as section 2699. However, it applied only to Cincinnati and in 1876 its remedial provisions were given general application by the enactment of the so-called Burns law, in part comprised in sections 1693 and 2702, Revised Statutes. These provisions were more than limitations upon the power of the municipalities to contract, they prescribed the mode in which an obligation on the part of the city might be ■created and the mode prescribed was the measure of the power' to contract. Applying these provisions, it has been held that in a suit on a contract against a municipality an averment of an observance of them is essential to the statement of a cause of action, that in the absence of the strict observance of them no liability is incurred by the municipality, that an implied liability on the municipality cannot be created by its receiving.or retaining the benefit of performance of such a contract by the other party and that it is not estopped by the acts of its agents or officers, for the reason that these provisions are intended for the protection of the citizen, and that persons dealing with its officers are presumed to know the extent of their authority. City of Lancaster v. Miller, 58 Ohio St., 558; Buchanan Bridge Co. v. Campbell et al., 60 Ohio St., 406; Comstock v. The Incorporated Village of Nelsonville, 61 Ohio St., 288; City of Wellston v. Morgan, 65 Ohio St., 219.

But, because a municipality is not legally liable to pay for a public improvement, it does not follow that it is not under a moral obligation to do so or that a court because it will not enforce payment will enjoin it. The contract for paving this street is not ultra vires. If invalid it is so merely because the contract was made before the bonds to provide the money to pay for it were sold. Now that the work has been done in accordance with the contract and the bonds have been sold and the money to pay for it is in the treasury, it is right that it should be paid for and a court of equity ought not, unless its failure to do so would defeat the purpose of the law, prevent the municipality from doing what equity and fair dealing would exact from an individual.

But in the view taken of the statutes a disposition of the case upon these considerations is not necessary. Under the new municipal code (96 O. L., 20) these sections (1693 and 2702) are repealed. The substance of 2702 is comprised in section 45 of the code (1536-205, Revised Statutes, Bates 5th ed.). Section 1693 is not re-enacted because under the code council is relieved of administrative matters and such duties are imposed on a board of public service. Section 55 of the code provides that if council decides to proceed with the improvement an ordinance for the purpose shall be passed and that it shall contain a statement of the general nature of the improvement and the character of the materials thereof. It appears from the finding of facts that council determined that the paving material should be asphalt, brick or other material as might thereafter be determined. This meets the requirements of the statute. Prior to the adoption of the present code it was provided as to some cities that the kind of materials should not be determined until after bids had been received, the reason being that it promoted competition and tended to prevent collusion among bidders.

Section 2702 is comprised in section 45 of the code with some additional restrictions and a number of important exceptions, suggested by experience, among them this “provided, further, that such requirement shall not apply to street improvement contracts extending for one year or more,” and in 1904 (97 O. L., 44) this section was supplemented by section 45a which reads as follows: “money to be derived from lawfully authorized bonds or notes sold and in process of delivery shall for the purpose set forth in section 45 of this act be deemed in the treasury and in the appropriate fund.” What is meant by “street improvement contracts extending for one year or more” does not clearly appear, whethei it has reference to the period in which the work is to be done or to that in which the payments are to be made. Section 2702 contained this exception: “provided, further, that in cities of the second grade of the first class, contracts for street improvements extending for a period of one year .upon which payments are to be made from time to time, as the work progresses, material is furnished, or service performed, such cities are authorized to enter into such contracts if the estimated expenditure thereunder does not exceed the taxes levied for such purposes during the term of the contract, and in such cases the certificate of the auditor as herein provided shall not be required other than to state the amount of the levy. ’ ’

Prior to the adoption of the new code section 2273 provided that all cities, excepting those of the third grade of the first class and those of the first grade of the second class, should pay not less than one-fiftieth of the cost and expense of improvements and that the amount to be paid shall be certified to the county auditor and that when so certified it should be considered as money in the treasury in compliance with section 2702. Section 2274 provided that cities, excepting those of the first grade of the first class and of the second class, should levy a tax in addition to that specified in section 2273 for the estimated cost of so much of the improvement as might be included in street intersections and that the levy might be made after the contract had been let or the improvement had been completed. As to Cincinnati and Toledo it was provided by section 2275 that tbe part to be paid by them might be included in any bonds issued for the improvement and be paid by them in like manner as by other property owners. Other special exceptions were made and the tendency of legislation was to exempt such improvements from the requirement that the money be in the treasury before the contract was entered into.

In Comstock v: The Incorporated Village of Nelsonville, supra, it is held that, in the absence of an exception, section 2702 applied to so much of the cost of the street improvement as was to be paid by the city out of a levy and that it did not apply to so much as was to be paid by special assessment, for the reason that the payment that was to be made by the city was included in the general levy which was subject to limitation. As the general law then was, ,the city was not authorized to provide for its part by a levy extending over a number of years and by bonds issued in anticipation of the collection of the levy. Section 51 of the code provides that bonds may be issued in anticipation of the collection of assessments and that the assessment may be payable in one to ten installments, and section 53 provides that any city or village is authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon, and in section 95 it is provided that municipalities shall “have power to issue bonds in anticipation of special assessments, and such bonds may be in sufficient amount to pay the estimated cost and expense of the improvement,” so that it would seem to follow now that a municipality may issue bonds in sufficient amount to pay the estimated cost and expense of an improvement and may levy taxes in addition to all other taxes authorized by law, 'to pay the bonds issued and sold to pay its part of the cost of the improvement, that sections 45 and 45a do not apply to improvements for which the city has authorized bonds to be issued to pay the entire estimated cost and expense.

Having found that these sections are not applicable, their interpretation is not necessary.

Judgment affirmed.

Shauck, C. J., Crew, Spear and Davis, JJ., concur.


author: Crew, J.

text:
    Lambright, Admr. v. Lambright et al.

      Administrator of estate — Has right to retain out of distributive share of heir — Amount of the debt owing to estate by such heir — Debt due from a creditor or heir is an asset of the estate, when — Settlement of estates — Laws of administrators and executors.

    1. The administrator or executor of a decedent’s estate has the right and it is his duty to retain out of the distributive share of an heir or legatee, or out of the sum due a creditor, an amount equal to the debt owing by such heir, legatee or creditor to the estate; and this right and duty exists whether the heir, legatee or creditor was indebted to the deceased before his death or contracted a liability to the estate thereafter.
    2. A debt due from an heir, legatee or creditor to an estate is an asset of such estate, and where the distributive portion of such heir or legatee or the claim of such creditor, is equal to or greater than his debt to the estate, the administrator or executor should charge himself with, and account for, the full amount of the same.
    (No. 8983
    Decided May 1, 1906.)

      Error to the Circuit Court of Wyandot county.
    The facts are stated in the opinion.

      Messrs. Garter & Goodrich and Mr. D. D. Clayton, for plaintiff in error,
    cited and commented upon the following authorities:

      Shields v. Odell, 27 Ohio St., 398; James v. West, 67 Ohio St., 28; Rossman v. McFarland, 9 Ohio St., 369; Martin, Admr. v. Train, 3 Circ. Dec., 344; 6 C. C. R., 49; Slagle v. Entrekin, 44 Ohio St., 637; Watts v. Watts, 38 Ohio St., 480; secs. 6181 and 6187, Rev. Stat.

      Mr. L. B. Beed and Messrs. Carey 'S Parker, for defendants in error,
    cited and commented upon the following authorities:

      Ward v. Barrows, 2 Ohio St., 241; Coombs v. Lane, 4 Ohio St., 112; Reynolds v. Schweinefus, 27 Ohio St., 311; Watts v. Watts, 38 Ohio St., 480; Stayner’s Case, 33 Ohio St., 481; Ramsey v. McGregor, 13 Dec. Re., 578; 1 C. S. C. R., 327; Slagle v. Entrekin, 44 Ohio St., 639; Woodward v. Curtis, 10 Circ. Dec., 400; 19 C. C. R., 15; Raab’s Estate, 16 Ohio St., 274; McAfee v. Phillips, 25 Ohio St., 374; Kinsella v. DeCamp, 8 Circ. Dec., 352; 15 C. C. R., 494; Braiden v. Mercer, 44 Ohio St., 339; Shroyer v. Richmond, 16 Ohio St., 455; Faran v. Robinson, 17 Ohio St., 243; Garver v. Tisinger, 46 Ohio St., 56; McCoy v. Allen, 6 Circ. Dec., 659; 9 C. C. R., 607; Allen v. McCoy, 57 Ohio St., 641; McGaughey v. Jacoby, 54 Ohio St., 487; Martin v. Train, 3 Circ. Dec., 344; 6 C. C. R., 49; Rockel’s Ohio Probate Practice, sec. 734; sec. 6187, Rev. Stat.
   Crew, J.

On the seventh day of September, 1898, letters of administration on the estate of Michael Lambright deceased were by the probate court of Wyandot county, Ohio, duly issued to the plaintiff in error, Frank Lambright — a son of decedent — who thereupon accepted said trust and duly qualified as administrator of said estate. At the time of his appointment and qualification as such administrator, Frank Lambright was insolvent. It is admitted on the record, that Michael Lambright at the time of his death was liable as surety for his son Frank Lambright on certain obligations then outstanding and unpaid, in the sum of $1,137.18 and that these several obligations, on which Michael Lambright was surety, were afterwards paid off and satisfied by Frank Lambright as administrator, out of‘the funds of the estate of said Michael Lambright. On January 30, 1899, Frank Lambright as administrator filed in the probate court of Wyandot county his first partial account. In this account he charged himself with cash received to the amount of $7,919.37 and claimed credit for sundry disbursements made by him amounting to $6,588.82, leaving in his hands for distribution, as shown by this account, $1,330.55. He did not in this account charge himself with, or account for the $1,137.18, his debt to the estate, which had been paid by him out of the funds of the estate, although he claimed and was allowed by the probate court a credit for the amount so paid. In addition to this credit of $1,137.18, said administrator claimed and was allowed, in said account, further credits as follows: “To amount paid Frank Lam-bright bn his claim as per order of Probate Court, $654.17.” “To amount paid Frank Lambright, administrator’s commission, $273.40.” “To amount paid Frank Lambright for expenses, $25.00,” and to amount paid Frank Lambright on his distributive share $178.00. Thus it will be seen that out of the above sum of $7,919.37 cash actually received by him and with which he charges himself in said account, Frank Lambright retained or paid to himself out of the moneys of the estate, the sum of $1,130.57. No exceptions having been filed thereto this account was approved and settled by the probate court March 6, 1899. January 14, 1901, said administrator filed a second account which was approved and confirmed February 4, 1901, no exceptions at that time having been filed thereto. Thereafter, and within eight months, to-wit, on March 7, 1901, the defendants in error, as heirs at law of Michael Lambright, deceased, filed in the probate court of Wyandot county their exceptions to said account, alleging therein among other grounds of exception the following: “There is manifest error in said account, said administrator has not embraced in his inventory or returned as assets the sum of $1,137.18 due from him to the estate.” Hpon the hearing, this exception was sustained by the probate court, and thereupon, at his request, leave was given the administrator, Frank Lambright, to file a supplemental account. Thereafter, on March 19, 1901, he filed what he denominated a “supplemental and final” account, charging himself therein _ with said sum of $1,137.18, omitted from his former account. This supplemental account was, without exception or objection from the administrator, approved, confirmed and settled by the probate court on May 13, 1901, and said administrator was ordered to distribute according to law, the balance in his hands belonging to said estate, amounting to $1,283.26. On February 25, 1902, said administrator filed another account which he entitled “final account,” in which he charged himself as follows: “To amount received from William Lambright on account, due said estate since last account herein was filed $10.00.” And then, for the purpose of procuring the correction of an alleged mistake in his supplemental account filed March 19, 1901, he appended the following statement:

“Said administrator in justice to his sureties on his bond, here makes an explanation and correction in the item of $1,137.18 charged to him in his supplemental account herein filed on the nineteenth day of March, 1901, the explanation of which was given in his first account filed herein, but omitted by mistake and inadvertence in said supplemental account. Said explanation more fully stated is as follows: Said decedent, Michael Lambright, at the time of his death, was jointly and severally liable with the said Frank Lambright in the sum of $1,137.18, which sum this administrator did not owe the estate at the time of the decedent’s death nor at the time he qualified by giving bond as such administrator; and which sum for that reason did not become assets of said estate for which his said sureties were or are liable.
“Said Frank Lambright, as such administrator, should have charged himself in said supplemental account with the balance as shown, by said supplemental account, to-wit: $1,283.26, less the said sum of $1,137.18 which difference is here charged, to-wit: . $146 08
“Total amount for which said administrator and his bondsmen as such are liable less the credits hereinafter claimed, $156 08
‘ ‘ Said Frank Lambright was at the time of the death of said decedent and has ever since that time remained, and now is, insolvent; and is unable to pay the said joint indebtedness of said decedent and himself. * * *
“Frank Lambright owes said estate the sum of $1,137.18 which sum was paid by the administrator on claims upon which the said Michael Lambright was surety for him, the said Frank Lambright is wholly insolvent. This item is the item charged to said administrator in his supplemental account filed March 19, 1901.”

To this account exceptions were filed by the defendants in error which were sustained by the probate court, and said administrator was held to be properly charged in his supplemental account with said item of $1,137.18. An appeal was taken by the administrator to the court of common pleas, where, on the hearing of said exceptions it was found and adjudged by that court, “that said account is in all respects correct and according to law; that as stated therein, a mistake or error was made in said executor’s account immediately preceding this account, designated as a “Supplemental Account,” in the sum of $1,137.18; that said sum represents a debt owing by said executor to said estate, but that said debt from him to such estate did not exist at the time he qualified by giving bond as such executor; that such debt accrued by reason of his having paid debts out of the funds of the estate for which the estate was liable as surety for him; that at the time of making such payments, he was and ever since has been insolvent and wholly unable to pay such debts, that said sum of $1,137.18, should not have been charged against said executor as money in his hands in said Supplemental Account, and that the exceptions to this account should be overruled, to which the exceptors then and there excepted. ’ ’

Error was prosecuted to the circuit court where the finding and judgment of the court of common pleas was reversed. And the circuit court proceeding to render such judgment as the court of common pleas should have rendered, found from the undisputed facts that said Frank Lambright as administrator, should be charged with said sum of $1,137.18 and rendered judgment accordingly. To obtain a reversal of this judgment of the circuit court the administrator brings the present proceeding in error.

The record in this case, upon the facts stated, presents for our consideration the question, whether or not Frank Lambright as administrator, was properly charged by the circuit court with the item of $1,137.18 as assets in his hands to be accounted for and distributed by him according to law.

It is conceded to be the general rule, tlqat the indebtedness of a legatee or distributee constitutes assets of the estate which it is the duty of the executor or administrator to collect, whether such .legatee or distributee was indebted to decedent before his death, or became indebted to the estate thereafter. It is however, in the present ease, contended by counsel for plaintiff in error, that inasmuch as Frank Lambright at the time of his appointment and qualification as administrator of his father’s estate, was not then actually indebted to said estate, but only became debtor thereto, in the manner above stated, after his appointment as administrator, that therefore, he being then insolvent, such indebtedness did not become an asset of the estate in his hands to be accounted for by him .as so much cash received, and may not properly be so charged against him and that to so charge him, would work injustice and operate as a fraud on the sureties upon his administration bond. How much of force and reason there might be in this claim, if the administrator were not himself a beneficiary and distributee of Michael Lambright’s estate to an amount equal to or exceeding the amount owing by him to said estate, we need not determine. It is undeniably the law of Ohio that an administrator or executor has the right and it is his duty, in the due administration of his trust, to retain out of the distributive share of an heir or legatee, and to hold and set off against the claim of a creditor indebted to the estate, an amount, — if so much there be, as shall equal the indebtedness of such heir, legatee or creditor to the estate; and this right and duty exists whether the heir, legatee or creditor was indebted to decedent at the time of his death or contracted a liability to the estate thereafter, in either event the right of the heir or legatee to participate in the distribution of the estate, or of the creditor to be paid his claim, is subject and subordinate to the debt of such distributee or creditor to the estate, and the latter, in so far as there are assets in the hands of the administrator applicable thereto, must first be paid and satisfied. And the duty and obligation resting upon the administrator or executor under such circumstances to withhold and apply, — to the extent of the debt, — the amount that would otherwise have been payable to the heir, legatee or creditor, is in no manner controlled or affected by the solvency or insolvency, of such heir, legatee or creditor. In the present case, as we have seen, Frank Lambright was both an heir of and debtor to, the estate he was administering. He used of the assets of said estate in payment of an obligation, or debt of his own, on which his father was surety, the sum of $1,137.18. With this amount, so used and applied by him, he did not charge himself in his account, until compelled thereto by the judgment of the probate court. His accounts show that during his administration of the trust estate he retained and paid to himself, as distributee and otherwise, out of the assets in his hands as administrator, sums aggregating in amount more than $1,150.00 and took credit in his accounts, as against the estate, for the amount so retained or paid to himself. Thus it will be seen that said Frank Lambright had in his hands, as due him from the estate, an amount in excess of that necessary to pay off and cancel his debt of $1,137.18 due the estate. This being true it was Ms duty as administrator to so apply and use it and to account for and charge himself with, said sum of $1,137.18 as assets of the estate in his hands to be distributed according to law. This conclusion is clearly supported by the following authorities: McGaughey, Admr. v. Jacoby, 54 Ohio St., 487; James v. West, Admr., 67 Ohio St., 28; Woerner’s American Law of Administration, sec. 564; Henry v. Fiske, 11 R. I., 318; Gosnell, Trustee, v. Flack and Hoffman, Admrs., 76 Md., 423; New v. New, 127 Ind., 576; Baily’s Estate, Jackson’s Appeal, 156 Pa. St., 634; Sanchez v. Forster, 133 Cal., 614; Ramsour, Exrx. v. Thompson and Ramsour, Exrs., 65 N. C., 628; Tinkham v. Smith, Admr., 56 Vt., 187; Taylor v. Jones, 97 Ky., 201. It is suggested in argument, in the brief of counsel for plaintiff in error, that the adjudication and settlement by the probate court, of the first account filed by Prank Lambright as administrator, — no exception having been filed thereto,— was and is, as between the parties to the present controversy, final and conclusive. This claim we think is sufficiently answered by the provision of section 6187, Eevised Statutes, the language of which is as follows: “and upon every settlement of an account by an executor or administrator all his former accounts may be so far opened as to coirect any mistake or error therein; excepting that any matter of dispute between two parties which had been previously heard and determined by the court shall not be again brought into question by either of the same parties without leave of the court.” We are unanimously of the opinion that the judgment of the circuit court in this case charging Prank Lambright as administrator, with said sum of $1,137.18 as assets in his hands was right and the judgment is accordingly

Affirmed.

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