author: Summers, J.

text:
    Pittinger v. The City of Wellsville.

      No municipal debt shall be incurred — Unless appropriations made by cotmcil therefor — And money in the treasury — Section 43, • Municipal Code — Board of Public Service can not employ janitor, when.

    The policy of our statutes respecting municipal corporations is that no debt shall be incurred for the ordinary expenses of the corporation unless an appropriation to meet it has been made by the city council, and the city auditor or clerk has certified to the city council that the money is in the treasury; and in the absence of such certificate, as required by Section 43 of the Municipal Code, the board of public service is without authority to employ a janitor for the city building, and a person so employed can not recover from the city for his services.
    (No. 9649
    Decided February 5, 1907.)

      Error to the Circuit Court of Columbiana County.
    On May 21, 1903, the plaintiff in error was employed by the month by the board of public service of the City of Wellsville as janitor of the city building of that city, and he rendered such services until July 1, 1903. Not receiving payment he sued the city and recovered judgment in the justice’s court. The city appealed the case to the court of common pleas, where a general demurrer to the plaintiff’s ¿mended petition was sustained and his petition was dismissed. On error the judgment was affirmed by the circuit court and error is prosecuted in this, court.
    In addition to the foregoing facts it appears from the second amended petition that a large part of the city building is leased or let to the United States for a postoffice and to private persons for various purposes, and that the hall in the building is let for entertainments, and that the revenue from the building is paid into the city treasury and exceeds the wages of plaintiff as janitor. It further appears that the council of the city did not authorize the board of public service to employ a janitor and had not appropriated any money for that purpose, and that the city auditor had not certified that there was money in the treasury to pay for such services.

      Messrs. Smith & Lonvs, for plaintiff in error.
    The directors of public service haye the power and it is their duty to appoint or employ a janitor of the city building without being first authorized or directed by council to do so.

      This is shown clearly by Sections 139, 141 and 145 of the Municipal Code, Vol. 96, Ohio Laws.
    Section 143 provides that the directors can not make any contract over $500, except for a person employed in the department, unless first authorized by council. But they have power without such authority to make employment contracts or any contract for less than $500 without being first authorized by council.
    The directors of public service may employ persons in their department without the auditor making the certificate mentioned in Section 45 of the Municipal Code- that the money to pay for the same is in the treasury to the credit of the proper fund.
    When Section 45 is read in connection with Sections 143 and 145 it is clear that the provisions of Section 45 do not apply to such employments.
    It is averred that it was necessary to employ plaintiff in order^ for the city to carry out its contracts with its tenants. This being the case, his employment was an indebtedness incurred by the city by its leases; it bound itself in these lea'ses to incur this expenditure, and the employment of plaintiff was not incurring any new liability, but was a liability caused by the rental contracts, and really was a carrying out and performing those rental contracts under which the liability to employ and pay a janitor was incurred.
    The construction of these sections as claimed by the defendant would cause more evil than it could remedy, and would not be in harmony with the general rules for the interpretation of statutes. Bishop’s Written Laws, Section 92; Lessee of Burgett v. Burgett, 1 Ohio, 469.

      It is our claim that by the very terms of Section 45 it does not apply to contracts for employment of persons necessary to be employed to execute the powers and duties of the directors of public service. But if this section was as general in its nature and as free of expressed exceptions as was the Burns law, Section 2702, Revised Statutes, it would still not apply to the employment of officers and workmen whose services are necessary to .carry out the essential powers of the corporation or to preserve the property of the corporation.
    The fact that there had been no ordinance passed appropriating the money among the different objects for which the corporation has to provide is no defense.
    In regard to the claim that the plaintiff can not receive pay for the services he -has rendered on account of the money not having been appropriated among the several objects for which the corporation has to provide as required by Section 43, we answer that at the time plaintiff was employed the time had not yet come when such appropriations could legally be made; and in this emergency must all the powers of the municipality be suspended.
    If it had been the intention of this section that no contract should be valid unless within the appropriation, it would have been so provided in Section 43 as it is in Section 45. It is merely a direction to the officers not to expend or pay any money not covered by these semi-annual appropriations.
    It was not meant as a limitation on the power to contract, but as a direction to the officers to keep the expenditures within the appropriation. United States v. Kirby, 74 U. S., 482.
    We think the same common sense will sanction ■the action of the board of public service in employing a man to carry out the contracts of the city with its tenants, and thus avoid damages, and to preserve and care for the building and keep it fit to be occupied, especially when, by the peculiar situation caused by the law, no appropriation had been or could be made, and by reason thereof the auditor could not make the proper certificate, even though the money was actually in the treasury.
    These statutes under consideration do not apply to the necessary running expenses of the corporation. It was frequently so held by the circuit and common pleas courts of Ohio under. Section 2702, Revised Statutes. Lima Gas Light Co. v. City of Lima, 4 C. C. R., 22; City of Findlay v. Parker 17 C. C. R., 294; City of Columbus v. Bohl et al., 13 Ohio Dec., 569; State, ex rel., v. City of Massillon, 24 C. C. R., 249; City of Cincinnati v. Honnigfort et al., 32 Bull., 32; Smith v. Inhabitants of Dedham, 144 Mass., 177; Grant v. City of Davenport et al., 36 Ia., 396; Reynolds v. City of Waterville, 92 Me., 292; Wade et al. v. Oakmont Borough et al., 165 Pa. St., 479; City of Valparaiso et al. v. Gardner, 97 Ind., 1.
    Where the' general provisions of a statute conflict with the more specific provisions of another, or are incompatible with its provisions, the latter is' tó be read as an exception to the former. City of Cincinnati v. Holmes, Admr., et al., 56 Ohio St., 104; State, ex rel., v. McGregor, 44 Ohio St., 628; Commissioners v. McComb et al., Exrs., 19 Ohio St., 320; Labrie v. Manchester, 59 N. H., 120; Wilson v. City of Cincinnati, 19 Bull., 10, afterwards affirmed by the Supreme Court without report; State, ex rel., v. City of Massillon, 24 C. C. R., 249.
    It would be contrary to public policy to endanger the public property by making it imperative to employ help who would not be sure of compensation. Elliott v. Kalkaska Supervisors, 58 Mich., 452, 25 N. W. Rep., 461.
    As a business proposition the plaintiff’s salary would be paid out of the rents derived from the building. The expense of the building would be paid from its receipts. The money from which his salary would be paid not being money derived from taxation the restrictive provisions of Sections 43 and 45 do not apply. Kerr v. City of Bellefontaine et al., 59 Ohio St., 446, Comstock v. Village of Nelsonville, 61 Ohio St., 288; Elster v. City of Springfield, 49 Ohio St., 84.
    The defendant received the services rendered by plaintiff. These services were necessary for the protection of the building and to carry out the city’s contracts with its tenants, and it should not now be allowed to set up these statutes under consideration to escape paying this just debt.

      Commissioners v. Baltimore Short Line Railroad Co., 37 Ohio St., 205; Wilder v. Commissioners, 41 Ohio St., 601. The doctrine of estoppel applies to municipal corporations. City of Mt. Vernon et al. v. State, ex rel., 71 Ohio St., 428.

      Mr. Charles Boyd, city solicitor, for defendant in error.

      The powers of such a board as this are to be strictly construed. It is only such powers as are expressly conferred and such as may arise by fair implication because essential to carry out the express powers. State, ex rel., v. Boyden, Auditor, 6 Ohio Dec., 511, 4 N. P., 322; Bloom v. City of Xenia, 32 Ohio St., 461; City of Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374; Buchanan Bridge Co. v. Campbell et al., 60 Ohio St., 406; City of Lancaster v. Miller, 58 Ohio St., 558; City of Wellston v. Morgan, 65 Ohio St., 219; Comstock et al. v. Village of Nelsonville et al., 61 Ohio St., 288; 13 Am. & Eng. Ency. of Law, p. 1039.
    Any acts a city council may -assume to perform, not fairly within the powers conferred on it by statute' are ultra vires. City of Alton v. Aetna Ins. Co., 82 Ill., 45.
    There is no implied municipal liability in Ohio. City of Wellston v. Morgan, 65 Ohio St., 219.
    Section 1693, repealed in 1902 by the code, is still substantially re-enacted in section in this, that no ordinance or resolution involving the expenditure of money, etc., shall be passed by council except in the manner directed in Section 122, Ohio Code, page 315, Ellis’ Code.
    Section 122 supersedes old Section 1693 and was changed so the various boards could do business in pursuance to the appropriation of money by council.
    This is the only way a corporation can contract. Lima Gas Co. v. City of Lima, 4 C. C. R., 22, Section 212,’Code.
    Certainly, when the restrictive statutes of Ohio are considered, this board must act in accordance with the appropriation ordinances passed by council. To do otherwise would be municipal anarchy. Section 41, Ohio Code, Ellis, 167; Ampt v. City of Cincinnati, 5 N. P., 98.

      Stem v. City of Cincinnati, 6 N. P. 15 and 13 Laning Common Pleas Decisions 200, construing old Section 1693, which was somewhat similar, it was uniformly held that the appropriations must be detailed and specific. Ellis, 169, footnote 2. Section 17, Ohio Statutes, unrepealed.
    Section 45, Code, Ellis, 171, also commonly known as the Burns law, provides that before any obligation is incurred the auditor must certify that the money required is in the treasury.
    Neither of these statutes have been complied with according to the petition; the money has never been appropriated as required by law, the council has refused to sanction the employment of a janitor, and the auditor has not certified the money is in the treasury.
    In the case of State, ex rel. O’Leary, v. Salem, etc., reported only in 10 O. C. D., 398, Cuyahoga county, it was held that even under a statute conferring certain powers to a department to make appointments, that a janitor is not an officer of the city, but an employee, the same as a laborer on the streets or an engineer in the water works. We think that possibly an officer of the city elected by the people pursuant to state law could compel the council to appropriate him his salary, hut not so as to other debts -contracted by the departments. State, ex rel., v. Jennings et al., 57 Ohio St., 415.
    If this service board can decide what is necessary, and such decision shall be final, and if they can employ one janitor without an appropriation, then why not employ one hundred and so on indefinitely; and on the same theory, if the roof should leak why not put on a new one, why not remodel the building, why not paint it, or do anything they deem necessary, and set aside the statutes made in order to compel a reasonable tax rate? Kerr v. Village of Bellefontaine et al., 13 C. C. R., 24; State, ex rel., v. Eshelby, etc., 2 C. C. R., 468; City of Findlay v. Parker et al., Trustees, 9 O. C. D., 710; Ellis, 173, footnote.
    As we understand the cases generally hereafter cited is has been uniformily held that these restrictive statutes applied to funds raised by taxation. Kerr v. Bellefontaine, 59 Ohio St., 446; Comstock et al. v. Village of Nelsonville et al., 61 Ohio St., 288.
    So employment of a street superintendent at a weekly salary is not authorized unless at the time of employment money to pay for such employment was in the treasury and so certified. State, ex rel., v. Hoffman, Auditor, 25 Ohio St., 328.
    The same applied to employment of a superintendent over the construction of a town hall. Drott v. Village of Riverside, 4 C. C. R., 312.
    So employment of an attorney. Bond v. Village of Madisonville, 2 C. C. R., 449; City of Findlay v. Pendleton et al., 62 Ohio St., 80; Easton v. Village of Hyde Park, 6 N. P., 257.

      Uhrig v. Village of Reading, 11 Ohio Dec., 704, held that the Burns law,- or old Section 2702 (now Section 45 of the Code), applied to the appointment of deputy marshals by the council.
    The monejr must be certified in the treasury.
      City of Lancaster v. Miller, 58 Ohio St., 558; Buchanan Bridge Co. v. Campbell et al., Comrs., 60 Ohio St., 406; Comstock et al. v. Village of Nelsonville et al., 61 Ohio St., 288; City of Wellston v. Morgan, 65 Ohio St., 219.
    None of the rents from the city hall are collected by the service board, but go direct to the sinking fund trustees to be disposed of by them as other moneys. Section 112 and 216, Code.
    So a fund could never be created as was the case under the old laws applicable to water works and gas trustees under which many decisions have been made. Therefore, the money spent must come from appropriations and from money raised directly by tax.
    The tax limit for municipal purposes exclusive of sinking fund must not exceed ten mills, except when greater levy is allowed by vote of the people. ,Our city comes under the ten mills class. Sections .32 and 33 Ohio Code, Ellis, 157. Such statutes are strictly construed. Mays v. City of Cincinnati, 1 Ohio St., 268.
    Section 35 provides that the department shall report an estimate to the mayor before the first Monday in March, which estimate shall be itemized. Ellis, 160. This provision has been held mandatory. Ampt. v. City of Cincinnati et al., 5 N. P., 98; Stem v. City of Cincinnati et al., 6 N. P., 15. The service board has no power to borrow money and how can they have power to contract debts? They are not even trustees of an express trust, and can not maintain a law suit. Kerlin Bros. v. City of Toledo, 10 Ohio Dec., 508. No provision has been made for paying debts made by overdrawn funds. Section 2701, or the refunding bond statute, has been construed as follows: Bonds can not be issued to meet
    deficiencies in any department of the city. Hermann et al. v. City of Cincinnati, 9 C. C. R., 357 (affd. 52 Ohio St., 676); Altaffer et al. v. Nelson, Mayor, et al., 18 C. C. R., 145; City of Cincinnati v. Guckenberger, 60 Ohio St., 353; Newton v. City of Toledo et al., 18 C. C. R., 756 (affd. 52 Ohio St., 649); Keehn v. City of Wooster et al., 13 C. C. R., 270.
    • It therefore seems plain that where no obligation is made for the payment no obligation of any kind can be contracted or incurred in any manner, and even a recital on a bond can be subjected to attack, and the purchaser is charged with notice as a reference to many decisions will plainly show.
    Section 145 of the Code, giving the service board ■power to remove its employees at any time, had for its object the keeping of this department within appropriations and allows it the right to remove its employees, or janitors, as in this case, at any time.
    Section 139 says the service board shall be the chief administrative' board of the city. They are therefore not the board which dictates the legislation of the city, but only supervises and directs such work as council may authorize. This is made very clear when we read old Section 1678 unrepealed, Ohio Statutes.
    Section 141,- page 351, Ellis Code, defines the powers of this board.
    Further showing that the service board does not manage all of the city -building, will say that in this city the jail, fire department, and mayor’s office, which are located in this building, are certainly under control of the safety board. Ellis, 362, footnote 1.
    Further, the service board can not sell this building, nor rent it, nor lease it in any manner. Section 24, Ohio Code.
    Nor do they collect the rents from this building. Section 112 and 216, Ohio Code.
    The foregoing show plainly that the service board are merely supervisors of this building and it seems clear to me that they must manage in the way council shall direct, and are powerless to act without legislation from council.
    In State, ex rel., v. Philbrick, etc., 13 Ohio Dec., 158, the whole controversy in the foregoing case seems to our minds to be fully discussed by Judge Williams, and be held, after a very able review of the Ohio authorities, that Section 2702 or Section 45, Ohio Code, or the “Burns Law,” did apply to all the running expenses of the city, and any expenditures made not in accordance with such statute are void.
    Counsel for plaintiff has argued at great length that such limitations 'as Section 45 of the Code are not mandatory. They cite Defiance Water Co. v. City of Defiance et al., 12 O. F. D., 299, yet the Supreme Court of the United States refused to hear an appeal in this case, and this court in 68 Ohio St., 520, speaking of the same case, says, page 521, “It is clear that a cause of action to enjoin the performance of the contract accrued as soon as the parties attempted to enter upon it” for the reason that the “Burns Law,” or Section 45 of the Code, as it now stands, did apply. Smith on Municipal Corporations, Section 873.
   Summers, J.

It is provided by Section» 141 of the Municipal Code of 1902 that the directors of public service shall have, the management of “all public buildings and other property of the corporation not otherwise provided for herein.” Section 145 provides that they “may employ such superintendents, inspectors, engineers, harbor masters, clerks, laborers, and other persons, as may be necessary for the execution of the powers and duties” of their department, and that they shall fix the compensation and bond of all persons appointed or employed by them, and that no person shall be removed except for cause satisfactory to said directors or a majority of them.

The principal contention is whether a liability on the part of the city may be incurred under these facts without an appropriation to meet it and without the filing with the city council of a certificate of the city auditor that money therefor is in the city treasury. Section 45 is as follows: “No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of 111011639 be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is 110 auditor, the clerk thereof, shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated .for any other purpose, which certificate shall be filed and immediate^ recorded; and the sum so certified shall not thereafter be considered unappropriated until the corporation is discharged from the contract, agreement or obligation, or so long as the ordinance, resolution or order is in force; and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed, contrary to the provisions of this section shall be void, and no party whatever shall have any claim or demand against the corporation thereunder; nor shall the council, or a board, officer, or commissioner of any municipal corporation, have any power to waive or qualify the limits fixed by such ordinance, resolution or order, or fasten upon the corporation any liability whatever for any excess of such limits, or release any party from an exact compliance with his contract under such ordinance, resolution or order; nor shall any member of the council, board, officer or commissioner of the corporation, have any interest in the expenditure'of money on the part of the corporation other than his fixed compensation; and a violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation and render him liable to the corporation for all sums of money or other thing he may receive contrary to the provisions of this section, and if in office he shall be dismissed therefrom; provided, however, that the council of any city may authorize and the council of any village may make (subject to the provisions of Sections 2491 and 3551 of the Revised Statutes of Ohio) a contract with any person, firm or company for lighting the streets, alleys, lands, lanes, squares and public places in the municipal corporation, or for furnishing water to such corporation, or for the collection and disposal of garbage in said corporation, or for the leasing of the electric light plant and equipment, or the water works plant, or both, of any person, firm or company therein situated, for a period not exceeeding ten years, and the requirement of a certificate that the necessary money is in the treasury shall not apply to such contract; provided further, that such requirement shall not apply to street improvement contracts extending for one year or more, nor to contracts made by the board of health of any municipality, nor to contracts made by any village for the employment of legal counsel.”

This section comprises Sections 2699 and 2702 of the Revised Statutes (Bates’ 3d Edition). The latter part of it, omitting the provisos, is a literal copy of Section 2699, known as the Worthington law, and the former part is a copy of Section 2702, known as the Burns law. Prior to the enactment of the Worthington law it was provided by Section 656 of the Municipal Code of 1869 that “the council shall not make appropriations nor contract debts for the ordinary purposes of the corporation, exceeding the amount of taxes and revenues from other sources for the current year.” This, however, wholly failed to prevent municipalities from becoming deeply in debt for their ordinary expenses, and hence the occasion for the Worthington and Burns laws. The former applied only to. Cincinnati and was under consideration in State, ex rel., v. Hoffman, Auditor, 25 Ohio St., 328. The facts in that case are very similar to those in the present case. The board of improvements employed a superintendent of street improvements at stipulated wages per week, and after he had performed a week’s service the board made a certificate in his favor authorizing the city áuditor to issue to him a warrant on the city treasury for the amount of his wages. The auditor refused to issue the warrant on two grounds: 1. That at the time of the employment and service of the relator there was no money in the treasury set apart to meet the expenditure; and 2. That he had not so certified to the city council, and it was held that he properly refused the warrant, notwithstanding after the employment the money had come into the treasury and then was set apart to meet the expenditure.

Section 2702 applied to all municipal corporations and was more specific than Section 2699.

The provisions of the new code do not indicate a relaxation of the legislative policy in this respect, but, if anything, an intention to make it more efficient.

Section 35 provides that on or before the first Monday in March of each year the several officers boards and departments of the municipality shall report an itemized estimate to the mayor and auditor of the municipality of the amount of money needed for their respective wants for each month of the incoming year. Practically the same thing is required by Section 37, and by Section 38 the mayor is required on the first day of April each year to submit to council an annual budget, and by Section 39 the council is required after examining and revising the budget to determine by ordinance the percentage to be levied for the purpose therein specified, and after its submission to the board of tax commissioners the council is, by Section 40, annually on or before the first Monday in July to certify to the auditor of the county, the rate of taxes by it levied. It is provided that the ordinance “shall specify distinctly each and every purpose for which the levy is made and the per cent, thereof,” and by Section 41 it is provided that the corporation treasurer shall keep a separate account with each fund for which taxes are assessed (?) (levied), and “unless expressly otherwise provided by law, all money collected or received on behalf of the corporation shall be promptly deposited in the corporation treasury in the appropriate fund,” and “unless otherwise provided by law no money shall be drawn from the treasury except upon the warrant of the auditor pusuant to an appropriation by council”; and by Section 43 it is provided that “in all municipal corporations the council shall make, at the beginning of each fiscal half year, appropriations for each of the several objects for which the corporation has to provide, out of the moneys known to be in the treasury, or estimated to come into it during the six months next ensuing from the collection of taxes and all other sources of revenue. All expenditures within.the following six months shall be made with and within said appropriations and balances thereof.” Section 17, Revised Statutes, provides that an officer or agent of a municipal corporation, who is charged or intrusted with the construction, improvement, or keeping in repair of any building or work of any kind, or with the management or providing for any public institution, shall not make any contract binding or purporting to bind the municipal corporation, to pay any sum of money not previously appropriated for the purpose for which such contract is made, and remaining unexpended and applicable to such purpose, unless such officer or agent has been authorized to make such contract; and if any such officer or agent make or participate in making a contract without such appropriation or authority, he shall be personally liable thereon, and the municipal corporation in whose name or behalf the same was made shall not be liable thereon. These provisions not only clearly indicate an intention but expressly provide that the necessities of the municipality shall be estimated and itemized and that funds to meet them shall be appropriated and that the. expenses incurred shall be limited to the funds appropriated.

The fact that the management of all public buildings and authority to employ the persons necessary to effect that purpose are vested in the directors of public service, and the fact that expenses for the compensation of persons employed therein are excepted from the requirement of Section 143 that certain expenditures in their department must be authorized by ordinance, do not give them an absolute discretion, but their authority to incur a liability on the part of the city is subject to the limitation that funds to meet the liability have been appropriated and that the auditor has certified that the money is in the treasury.

The fact that the certificate of the auditor is required by Section 45 to be filed with the council and not with the board does not imply a legislative intention to limit the requirement of that section to expenses incurred by council. Section 44 requires that the auditor and treasurer monthly shall make up and forward to the mayor a statement of the balances in all funds, but it will not be contended that because the statement is' sent to the mayor rather than to the board and officers that expend the funds that they are not concerned about a balance. At the time the original section was enacted the council in nearly all of the municipalities exercised administrative as well as legislative power. .Moreover the section expressly applies to boards and officers as well as to council.

The appropriations authorized by Section 43 are not limited to money already in the treasury but to that estimated to come into it from the collection of taxes and all other sources of revenue during the six months next, ensuing. If the requirement for the auditor’s certificate works an inconvenience it may be, in view of the authority conferred by Section 43 to make appropriations of money estimated to come into the treasury, that the code should be so amended as to except from the requirement all expenditures provided for by the appropriations, so as that, for the purpose of the certificate, money estimated to come into the treasury, in the existing fiscal half year, from the collection of taxes and all other sources of revenue, shall be deemed to be in the treasury. And if it is desirable that the certificate be filed and recorded in the department in which the expense is to' be incurred rather than with the city council that is a matter that may be easily provided for by legislation.

There is room for much improvement in the statutes relating to municipal corporations, and while perhaps it is not desirable that bills shall' be drawn by those whose duty it may be to interpret them when thejr become laws, yet the public interest may excuse if not require that the need be at least suggested. Moved by such considerations, it may be said that there have been instances in which the councils of municipalities have provided for a larger police force, a larger fire force than was needed, and that they have been embarrassed because no way seemed to have been provided by which the expenses of the departments might be reduced so as not to be in excess of the appropriations which they thought proper to' make, and it is suggested that it might be well to prescribe a way and to require that in the appropriations made by the council at the beginning of each fiscal half year the amount allowed for the payment of salaries and wages of men in these departments shall be expressly appropriated.

Reference is made to decisions that certain contracts or expenses were not. subject to the requirement of the Burns law. It is sufficient to say that to prevent injustice or absurd consequences •they are based upon the ground that the legislature must have intended an exception, or on the ground that though within the letter they were not within the reason of the law, arid, since no such consequences will follow a literal interpretation of the law in the present instance and in view of the fact that in the present section many such consequences have been anticipated by the provisos, it would not be profitable to review them.

The case so far has been considered upon the implied admission that the rooms in the building have been leased or let by the city council and that the rentals have been paid into the city treasury. Section 2566, Revised Statutes (Bates’ 3d Edition), which was not repealed by the Code, provides: “When there is a public hall, erected by taxation, in any city of the second class or village, and the building or any part thereof may not be needed for public business, the council shall lease the building or part thereof as the case may be, for private offices, lectures, or like purposes,” and' that the money received for rents shall be forthwith paid into the treasury of the municipal corporation. Section 24 of the code provides: “No contract for the sale or lease of any real estate shall be made unless authorized by an ordinance ■approved by the votes of two-thirds of all members elected to council, and by the board or officer having the supervision or management of said real estate,” and Section 26 provides that the money arising from the sale or lease of any real estate shall be paid into the treasury; and it is stated that the mayor’s office, the fire department and the jail also occupy this building. Whether or how these various provisions may be reconciled it is not now necessary to determine, for the reason ■that it seems clear that the rentals are required to be paid into the city treasury, and, that being so, the expense of a janitor could not be incurred .until there had been an appropriation and a certificate, whether the power of employment was in the board of public service or in the council.

Judgment affirmed.

Si-iauck, C. J., Price, Crew, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Grew, J.

license: Public Domain

text:
    The City of Mt. Vernon v. Mochwart, Clerk.

      Fines received by clerk of common pleas cpurt — For violations of Section 4364-20, Revised Statutes — Must go to county treasury under Section 6802, Revised Statutes — For violations of Section 4364-20, Revised Statutes — Must go to municipal treasury under Section 4364-20^, Revised Statutes.

    1. Fines received by the clerk of the court- of common pleas from persons indicted and convicted in that court for a violation of the provisions of Section 4364-20, Revised Statutes, or for a violation of the municipal local option law, must, under Section 6802, Revised Statutes, be paid by him into the county treasury.
    2. Fines imposed by a municipal court against persons prosecuted and convicted therein for a violation, either of Section 4364-20, Revised Statutes, or the municipal local option law, must, when collected, be paid into the treasury of the municipal corporation wherein such fine was imposed, agreeably to the provisions of Section 4364-20^, Revised Statutes.
    (No. 9940
    Decided February 5, 1907.)
    Error to the Circuit Court of Knox County.
    On May 9, 1905, the City of Mt. Vernon, by J. B. Graham, city solicitor, filed its certain petition in the court of common pleas of Knox county, Ohio, against George EL Mochwart as clerk of courts of said county — which petition — omitting the caption and verification — was in the words and figures following, to-wit:
    “Plaintiff is a city, duly organized under the laws of the state of Ohio, and the defendant is the clerk of the courts of Knox county, Ohio, duly elected and qualified as such clerk.
    “Under and by virtue of the local option law, known as the Beal Law, passed April 3, 1902, by the legislature of the state of Ohio, a special election was held in the said city of Mt. Vernon, on the-day of March, 1903, to determine whether or not the sale of intoxicating liquors as a beverage within said city should be prohibited, at which election a majority of the votes were cast against the sale of intoxicating liquors as a beverage, and thirty days thereafter, by the terms and provisions of said law, to-wit, on the-day of April, 1903, it became and was unlawful to sell intoxicating Jiquors as .a beverage within said city of Mt. Vernon.
    “Thereafter and within two years after the said - day of April, 1903, while the law against the sale of intoxicating liquors as a beverage was in full force within said city, there were a number of prosecutions, upon indictments returned by the grand jury of Knox county, in the court of common pleas of Knox county, Ohio, against several persons for the violation of said law, by selling intoxicating liquors as a beverage within the city of Mt. Vernon, Ohio, and which resulted in the conviction of said several persons, and said court 'in passing sentence against said defendants assessed a large amount of fines against said defendants.
    “That of the fines so assessed a large sum, to-wit, $700.00 or $800.00 and possibly more, has been paid to the defendant, George H. Mochwart, as clerk of said courts.
    “That by the provision of said law said fines should have been paid to the treasurer of the city of Mt. Vernon, Ohio, and demand has been made by the city auditor of said city upon the defendant that he pay over to the treasurer of said city said' sums collected by him and all fines collected by him for the violation of said law within the city of Mt. Vernon, Ohio, and that defendant has refused'and still refuses to pay the same to the treasurer of said city and claims that said fines are payable to the treasurer of Knox county, Ohio.
    “Wherefore plaintiff prays that defendant may be temporarily restrained and enjoined from paying said fines or any part thereof to the county treasurer of said county and that on final hearing said injunction may be made perpetual, and that he may be ordered to pay over all fines in his hands or that may be paid to him on any judgment* rendered by the court of common’pleas against any person or persons for the violation of said liquor law within said city of Mt. Vernon, to the treasurer of the city of Mt. Vernon, Ohio, and for such other relief as may be just and equitable.”
    To this petition the defendant, George H. Mochwart, filed a general demurrer. This demurrer was sustained by the court of common pleas, and the city of Mt. Vernon, not desiring to plead further, its petition was thereupon dismissed. On error, this judgment of the court of common pleas, sustaining said demurrer and dismissing plaintiff’s petition, was affirmed by the circuit court. The city of Mt. Vernon prosecutes the present proceeding to obtain a reversal of the judgments thus rendered by the circuit court and the court of common. pleas.

      Mr. William M. Koons and Mr. Rollin Mclntire, for plaintiff in error.

      Mr. L. C. Stillwell, for defendant in error.
   Grew, J.

In this case all objections as to the form of the petition herein filed by the city of Mt. Vernon — a copy of which petition is set out in the above statement of facts- — -were expressly waived in the courts below, and are not now insisted upon in this court. Upon the record as here presented, the sole question we are asked to determine is: What disposition is the defendant in error, as clerk of the court of common pleas of Knox county, required to make of the money received by him from fines imposed upon persons indicted and' convicted in said court for violations of the law familiarly known and designated as the “Beal municipal local option law”; is the money so received to be paid by him ifito the treasury of the county, agreeably to the provisions of Section 6802, Revised Statutes, or must it, because of the provisions of Section 4364-20^-, be paid by him into the municipal treasury of the city of Mt. Vernon? The correct answer to this question depends doubtless upon the interpretation and effect proper to be given to the provisions of Section 4364-20J3 a copy of which section is hereinafter set out. To ascertain the true intent and meaning of this section and the effect proper to be given its provisions, it will be necessary, or at least helpful, to consider briefly certain other parts and provisions of the so-called Beal municipal local option law, as well as the provisions of Sections 6802 and 1536-643, Revised Statutes. Section 4364-20, now, by incorporation or adoption, one of the sections of the Beal law, but which originally was Section 11 of the Dow law, contains a provision for the closing on Sunday of all places where intoxicating liquors are on other days sold or exposed for sale, except regular drug stores— and prescribes the penalty for violations of such provision; for the first offense a fine, and for each subsequent offense a fine, or imprisonment, dr both. This clause of'the section extends to and is operative in all places and territory within the boundaries of the' state of Ohio, whether the same be within or without a municipal corporation. And one who violates this provision may be prosecuted therefor by indictment in any county of the state wherein such violation occurs. By a subsequent clause of this section it is provided: “And any municipal corporation shall have full power to regulate the selling, furnishing or giving away of intoxicating liquors as a 'beverage’ and places where intoxicating liquors are sold, furnished or given away as a 'beverage’ except as provided for in Section 4364-20C of this act.” This clause of the section provides merely fot municipal regulation, and the power thereby delegated must be exercised, if at all, by ordinance or ordinances passed for that purpose by the proper municipal authorities ; and the violation of any such ordinance would not subject or render liable, the person violating the same, to indictment by a grand jury, but the offender for such offense must be prosecuted and punished in the proper municipal court. Again, the act contains a further provision authorizing the holding of a special municipal election for the purpose of determining whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of the municipality, and if a majority of the votes cast at such election shall be in •favor of prohibiting the sale of intoxicating liquors -as a beverage, then from and after thirty days from the date of holding said election it shall be unlawful, within the limits of such corporation to sell, furnish or give, away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished for beverage purposes. Any violation of this provision is made a misdemeanor, the first and second violations thereof being punishable by fine, and all subsequent violations by both fine and imprisonment. Thus it will be seen that this act requires the closing of saloons on Sunday — provides for municipal local option — and permits municipal regulation. There are, therefore, at least three sources within the provisions of the act, from which funds may be derived by way of fines —two for violations of the statute itself,, the third for violation of an ordinance passed under authority of said statute; the former may be prosecuted either in the court' of common pleas, or the municipal court, but the latter can be prosecuted only in the municipal court of the corporation wherein the violation occurs. Section 6802, Revised Statutes, which is a general law, provides: “An officer who collects any fine shall, unless otherwise required by law, within twenty days after the receipt thereof, pay the same into the treasury of the county in which such fine was assessed, to the credit of the county general fund, and shall take the treasurer’s duplicate receipts therefor, and forthwith deposit one of the same with the county auditor.” Section 1536-643, Revised Statutes, which is retained as one of the sections of the municipal code, provides: “All fines and forfeitures which may be collected by the mayor, or which may in any manner come into his hands, and all moneys which may be received by him in his official capacity, other than his fees of office, shall be by him paid over to the treasurer of the corporation weekly; and at the first regular meeting of the council in each and every month, he shall submit a full statement of all such moneys received, from whom and for what purpose receiyed, and when paid over; but all fines, penalties and forfeitures collected by him in ■ state cases shall be paid by him over to the county treasurer monthly.” It is conceded that whatever doubt and uncertainty there may be in the present case, as to whether the county or municipal treasury is the rightful depository for the fines. received and held by the defendant in error, it is such only, as arises from the language employed in Section 4364-20°', which is one of the sections of the Beal municipal local option law, and reads as follows: “Money received from fines and forfeited bonds collected under the provisions of this act shall be paid into the treasury of the municipal corporation wherein said fine was imposed or bond forfeited, and shall be applied to such fund or funds as the council of said corporation may direct.” It is claimed by counsel for plaintiff in error that by force of the provisions of this section, all fines imposed for a violation of Section 4364-20, Revised Statutes, or any of the provisions of the municipal local option law, must be paid into thé treasury of the municipal corporation wherein said fine is imposed, whether such fine be one imposed by the court of common pleas, or by the municipal court. In other words, the claim is, that the proper disposition to be made of fines imposed' under this act, is determined solely by the locus of the court imposing the fine without regard to whether the prosecution is in a state court for the violation of a state law, or is in the municipal court for the violation of either the state law or an ordinance of the municipality. While this contention of counsel finds some warrant in a literal interpretation of the language of said section, such we think is not the meaning of the section when its language is interpreted, as it must be, in connection with, and in the light of, other cognate provisions of the Revised Statutes. Nor do we think that any such result as that which would necessarily follow from the construction contended for, was ever anticipated or intended by the legislature. If it be the correct interpretation of this section that all fines collected under the provisions of the municipal local option law are to be paid into the .the treasury of the municipal corporation wherein such fines are imposed, it follows that for a violation of said act, if the prosecution be by indictment in the court of common pleas, the fine imposed must be paid by the clerk of said court into the municipal treasury at the county seat; although the offense for which such fine is imposed may have been committed in a distant part of the county, or within some other municipality of the county, or in case of an illegal sale, or the keeping open of a saloon on Sunday, the offense may not have been committed within the limits of any municipal corporation. Certainly a construction that leads to such unreasonable and unjust consequences ought not to be adopted, if the purpose of the legislature may reasonably be effectuated by a different construction more nearly in harmony with other provisions of the statutes as to the disposition to be made of fines collected in ¡criminal cases. The fundamental inquiry in all judicial construction being to ascertain the intention of the legislature and the object to be attained by the particular enactment, these considerations will control the literal interpretation of the language used in the act itself. And where the meaning of a statute is doubtful, the construction most agreeable to reason and justice should be adopted as the one most probably embodying the intention of the law makers. In the present case, in support of their claim as to the proper interpretation and construction of Section 4364-20°', it is suggested by counsel for plaintiff in error as a reason for the enactment of said section, that municipalities which avail themselves of the provisions of the municipal local option law, thereby forfeit or lose the benefits which they might otherwise receive from the tax imposed upon the traffic in intoxicating liquors under the Dow law, and that it was the purpose of the legislature in enacting this section to put into the municipal treasury of such municipalities all fines imposed and collected for a violation of the municipal local option law, by way of compensation to them for the loss of said Dow tax. This suggestion might be somewhat persuasive if the statute provided that the fines or forfeitures should be paid into the treasury of the corporation wherein the violation occurred, but such is not the language of the enactment; the provision is, that the same shall “be paid into the treasury of the municipal corporation wherein said fine was imposed or bond forfeited.” And it may very well, and very often, occur, that a fine will be imposed for a violation of this act by a court or magistrate sitting in a municipality where the municipal local option law is not in force, in which case, if the construction contended for by plaintiff in error is to prevail, the fine imposed would be paid into the treasury of a municipality that would have lost nothing because of any surrender of its right to collect the Dow tax. These are facts and. conditions which it must be presumed were known to, and considered by, the legislature at the time of the enactment of Section 4364-20^. But for the enactment of Section 4364-200- all fines collected for violations of the municipal local option law, including fines collected for violations of the law as to Sunday sales, and requiring Sunday closing, would have to be paid into the county treasury, whether such fine was imposed and collected in the court of common pleas, or in the mayor’s, or other municipal court. To correct and relieve against this apparent injustice the legislature by the enactment of Section 4364-20^- intended, we think, to make provision that where the prosecution for any such violation is instituted and carried on in the municipal court, by the municipal authorities, that the municipality should have the benefit thereof, and that the fine imposed as a result of any such prosecution should he paid into the treasury of the municipality wherein such prosecution is had and said fine imposed, the same as in prosecutions for violations of a municipal regulation adopted under favor of this act. That the legislature did not intend more than this ■is made apparent, we think, by the fact that it did not amend, or repeal either Section 6802 or Section 1536-643, Revised Statutes, but left the same in full force and effect, except, perhaps, in so far as the last clause of Section 1536-643 is by implication modified by the provisions of Section -4364- 20g. We are of opinion,' therefore, that where a fine is imposed by the court of common pleas in a prosecution instituted in that court, for a violation of either the municipal local option law, the law prohibiting the sale of intoxicating liquor on Sunday, or the law requiring the closing of saloons on Sunday, such fine must, when collected, be paid into the county treasury. But where a fine is imposed and collected by a municipal court for a violation of either of said laws the same must be paid into the treasury of the municipal corporation wherein such fine was imposed.

Judgment affirmed.

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


author: Price, J.

text:
    Long et al. v. The Board of Commissioners of Miami County et al.

      Payment of counsel assigned in felony cases — Section 7246, Revised Statutes — Amount allowed by county commissioners — No appeal from their allowance, when.

    1. Under the provisions of Section 7246, Revised Statutes, the amount of compensation to be paid by the county to attorneys for defending indigent prisoners, under appointment by the trial court, is such sum or sums, as the commissioners of such county, in the exercise of their discretion, may allow, subject to the limitations mentioned in said section, although the trial court may approve a different amount.
    2. The allowance of such compensation resting in the discretion of the county commissioners, subject to the limitations specified in said section, no right of appeal from their determination to the court of common pleas, exists in favor of the attorney or attorneys who may be dissatisfied with such allowance.
    (No. 10205
    Decided February 5, 1907.)

      Error to the Circuit Court of Miami County.
    The plaintiffs in error, George S. Long and Jacob A. Davy, at the January term of the court of common pleas of Miami county held in 1905, were appointed by that court to defend Ford White, an indigent person, who was indicted for murder in the first degree.' The cause came on for trial and was tried at the April term of the same year, and in the preparation for, and in the trial itself, these attorneys rendered .valuable services for the accused. Some time after the case had been tried the trial court fixed compensation for the attorneys in the sum of $500 each. The clerk of the court certified said amounts of compensation to the commissioners of the county, who refused to allow the amounts so certified, but made the allowance $350 each for said compensation.
    The attorneys were not satisfied with these sums, gave notice of appeal to the court of common pleas, and subsequently filed their petition on said appeal against the board of commissioners, setting up the action of the trial court in fixing their compensation and likewise the action of the board of commissioners in cutting it down, and prayed for judgment for the original amounts certified by the clerk of the court of common pleas.
    The commissioners filed the following motion to the petition: •
    “Now comes the defendants, the board of commissioners, and enter their appearance herein for the purpose of this motion, and for that purpose only, and for the purpose of protesting the jurisdiction of the court in this case, and move the court to dismiss this petition for the reason that this court has no jurisdiction of the subject-matter under consideration in this case.” This motion was duly signed by counsel for the commissioners.
    The court of common pleas overruled the motion, and the commissioners refusing to further plead, the court rendered judgment in favor of the plaintiffs in error for $500 each, with costs of the proceeding. From these judgments, the commissioners prosecuted error to the circuit court and the case was heard on the motion overruled by the court of common pleas. The circuit court sustained the motion and dismissed the petition. Error is prosecuted here to reverse the judgment of the circuit court.

      Messrs. Long & 'Kyle and Messrs. Davy & St. John, for plaintiffs in error, cited and commented upon the following authorities:

      Commissioners v. Osborn et al., 46 Ohio St., 271; Commissioners v. Ranney et al., 13 Ohio St., 388; 14 Am. & Eng. Ency. Law, 879 and 970; Ex parte Black, 1 Ohio St., 30; State, ex rel., v. Moore, 42 Ohio St., 108; Shelby, Auditor, v. State, ex rel., 63 Ohio St., 541; State, ex rel., v. Nash, Governor, 66 Ohio St., 612; State, ex rel., v. Coleman et al., etc., 64 Ohio St., 377; People, ex rel., v. Supervisors of Dutchess, 9 Wend., 508; State, ex rel., v. Justices of Holt County Court, 39 Mo., 521; Act of March 7, 1831, Swan’s Statutes, edition of 1841, 1726; Act of March 4, 1844, 42 O. L., 28; Act of February 29, 1904, 97 O. L., 25; Sections 894; 896, 6741, 7196 and 7246, Revised Statutes.

      Mr. A. B. Campbell, prosecuting attorney, and Messrs. E. H. & R. A. Kerr, for defendants in error, cited and commented upon the following authorities:

      Commissioners v. Ranney et al., 13 Ohio St., 388; Commissioners v. Osborn et al., 46 Ohio St., 271; Trustees v. White et al., 48 Ohio St., 577; Act of March 4, 1844, 42 O. L., 28; Act of March 3, 1875, 72 O. L., 46; Act of April 11, 1877, 74 O. L., 81; Sections 896, 7196, 7245 and 7246, Revised Statutes.
   Price, J.

The diligence of plaintiffs in error has placed before us the various statutes respecting compensation to counsel for indigent prisoners from the year 1831 down to the present time, and they claim that their consideration affords support to their construction of the present statute. If they have correctly compiled those statutes, there was no provision for compensating such counsel prior to the act of March 4,. 1844, and according to its provisions, it was not “lawful for the county auditor to audit or allow any account, bill or claim hereafter presented by any attorney or counselor at law for services performed under the provisions of the 14th section of the act, entitled ‘An act to regulate the mode of procedure in criminal cases/ until said account, bill or claim shall have been examined and allowed by the county commissioners of the proper county, and the amount so. allowed for such services certified by the said county commissioners.” By that act the compensation for attorneys was vested wholly in the commissioners. See O. L. Vol. 42, p. 28.

The next legislation was the act amending said Section 14, passed March 14, 1862, and the section as amended expressly provided that counsel should receive no compensation. See 59 O. L., 26.

The next act was passed on the first day of February, 1866, and it amended the former, act, so as to provide against the county auditor “auditing or allowing any account, bill or claim hereafter presented by an attorney or counselor at law, for services performed under the provisions of this section, until said account, bill or claim shall have been examined and allowed by the county commissioners of the proper county, and the amount so allowed for such services certified by said commissioners; provided, that no such account, bill or claim shall in any case exceed one hundred dollars.” See 63 O. L., 6.

The foregoing was amended April 18, 1870, 67 O. L., 96. By that amendment it was provided that “it shall not be lawful for the county auditor of any county in this state to audit or allow any account, bill or claim hereafter presented by an attorney or counselor at law for services performed under the provisions of this section until said account, bill or claim shall have been examined and allowed by -the court before whom said trial is had, and the amount so allowed for such services certified by the court; provided, that no. such account, bill or claim shall in any case, except in cases of homicide, exceed one hundred dollars.” This amendment vested the allowance wholly in the trial court, with no limit in cases of homicide, and a limitation of $100 in other cases.

On March 3, 1875, the section was so amended as to restore to the commissioners exclusive authority to fix the compensation, and provided that in any case of homicide the amount should not exceed one hundred dollars, and in other cases the amount should not exceed fifty dollars. See 72 O. L., 46.

There was an amendment passed April 11, 1877, but the exclusive authority of the commissioners over the .question of compensation was not changed. See 74 O. L., 82. In the process of codification the section so frequently amended became section 7246, Revised Statutes, and it now reads in part: “Counsel so assigned in any case of felony shall be paid for their services by the county, and may receive therefor, in any case of murder in the first or second degree such compensation as the court approves, in any case of manslaughter not exceeding one hundred dollars, and in any other case of felon}'- not exceeding fifty dollars; but the auditor shall not draw an order on the treasurer for the payment of any such counsel until his account for such services has been presented to and qllowed by the commissioners.”

The legislature in wording this section did not seem to have taken advantage of clear language used in former enactments on the same subject, but used words in such slip-shod manner, that it seems to have required litigation to have their meaning determined. The lower courts differed on the construction, and the question comes to this court — what does the section mean? Has the court power to make the allowance, independent of the commissioners? Or, is its authority merely one of approval, the final authority abiding in the county commissioners ?

It is worthy of notice that during the long period in which the legislature, from time to time acted upon this subject, there is but a single instance in which it clothed the trial court with the absolute power to fix the compensation of counsel appointed to defend indigent persons, and that was in the act of April 18, 1870, above quoted, in which no mention whatever is made of the county commissioners. It provided that * * * “it shall not be lawful for the county auditor of any county in this state to audit'or allow any account, bill or claim hereafter presented by an attorney or counselor at law for services performed under the provisions of this section, until said account, bill or claim shall have been examined and allowed by the court before whom said trial is had and the amount so allozved for such services certified by said court.” But the power of the court was not unlimited, for it was further “provided, that no such account, bill or claim shall in any case, except cases of homicide, exceed one hundred dollars.” It is also worthy of notice, that prior to the provision as amended by the present statute, none of thé amendments provided that the court should in any way participate with the commissioners in determining the compensation of such counsel. And hence it is, that we are unable' to account for the mongrel growth we find in the present section.

However, it will be observed that in the act of 1870 the account, bill or claim for services could not lawfully be audited or allowed by the county auditor, until it had been examined and allowed by the court, * * * and the amount- so allowed certified by the court. The words “examined” and “allowed” were used in all former amendments, whether the duty was exercised by the court as in the one instance, or by the commissioners in all the others. And when we look to the language of the present section, we find that the part to be performed by the court is differently described. It says: “Counsel so assigned in any cases of felony shall be paid for their services by the county, and may receive therefor in any case of murder in the first or second degree such compensation as the court approves.” The talismanic words, “examined” and “allowed” are absent. The word “approves” is not the equivalent of “allowed” or of the word “fixed,” which is sometimes used to express a similar sense. The word “approve” seems to relate for its object to something made, done or said by another. If the legislature intended by this section so worded, to invest the trial court with exclusive power to determine what compensation should be paid by the county in such cases, it has been unfortunate in the use of our common language. It rather appears to us that the trial court is authorized to suggest the amount which should be paid — to approve of a certain sum that should be paid, relying on the commissioners to respect and give proper weight to the opinion of the court. But that the act of approval by the court is final on the subject, we think is clearly denied by the balance of the section. It fixes a limit of $100 in any case of manslaughter, and in any other case of felony $50. Hedging again on the whole subject, the act proceeds to say: “But the auditor shall not draw an order on the treasurer for the payment of any such counsel, until such account for services shall- have been presented to, and allowed by the commissioners.”

This clause is very weighty, for without the order or warrant of the county auditor it would be most difficult to obtain payment. The language prohibits the giving of any such order until the bill has been presented to and allowed by the commissioners. They thus hold the key to the public purse, and if they* do not unlock it, the approval of the court is an empty ceremony.

Nor can we see that the action of the commissioners is subject to the approval of the court before it becomes- effective. So that it seems to us that the court is permitted, and perhaps authorized, to express an opinion as to what the compensation of attorneys should be for defending in cases of murder in the first or second degree, but the commissioners are not required to adopt it, and they are empowered to examine and make the allowance, and until they do so, the county auditor can not draw an order for its payment, and there can be no payment without such order.

We can assign no reason for the misleading phraseology of the present section, and we now gladly surrender it without further comment.

What is the result of our construction? The amount of the compensation is vested in the discretion of the county commissioners, and their decision is final. The attorneys in the present case had no right of appeal to the court of common pleas, and that court should have dismissed the appeal. For not doing so, the circuit court properly reversed the judgment of the court of common pleas and dismissed the petition.

Judgment affirmed.

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


author: Si-iauck, C. J.

text:
    The Commissioners of Ross County v. The Scioto Valley Traction Company. Same v. Same.

      Interurban railroads — Not under provisions of act of April 25, 1904 — Interpretation of law.

    An interurban railroad for the operation of cars by electricity and by the tractive friction resulting from their own weight is not within the act of April 23, 1904 (97 O. L., 546), “to provide how railroad and highway crossings may be constructed.”
    (Nos. 9590 and 9591
    Decided February 5, 1907.)
    Error to the Circuit Court of Ross County.
    The two cases relate to the crossing by the defendant of two highways of Ross county, which are under the control of the Board of Commissioners. of that county. The records to be reviewed were made in.the circuit court where the causes were tried on appeal. Plaintiffs are the Board of Commissioners of Ross County, having statutory authority and control over the highways in question. The defendant is a corporation organized for the construction of an interurban railroad from the city of Columbus, in Franklin county, to the city of Chillicothe, in Ross county. The object of the suits was to enjoin the defendant from constructing its road across said highways at grade. Issues of fact having been joined the cause was submitted to the court upon an agreed statement of facts. The material facts so agreed upon are to be found in the opinion.

      Mr. Peter J. Blosser, prosecuting attorney, and Mr. Albert Douglas, for plaintiffs in error.
    It seems to be substantially admitted by counsel on each side that the question presented by the record in this case is whether the first and second sections of the act of April 25, 1904 (97 O. L., 546), prohibit the defendant in error from crossing with its railroad the public highway named in the amended petition “at grade.”
    The language of this act is certainly clear and explicit. In terms it applies to all “railroads”; and the description of this defendant’s road contained in the agreed statement of facts, clearly brings it within all definitions of the word “railroad.” But defendant insists (1st) that this act, though general in .its terms, applies only to “steam railroads”; and (2d) that the record discloses that its railroad is not a steam railroad, but an “interurban” railroad.
    The charter of the defendant company provides that:
    “Said corporation is formed for the purpose of constructing, operating and maintaining a railroad with electricity or other lawful motive power with single or more tracks, with such side tracks, switches, turnouts, offices, depots, shops, telegraph lines, telephone lines, poles, wires, devices and all other necessary appliances for the operation of a railroad with electricity as motive power, or for the operation of a railroad with any other lawful power which said company may hereafter adopt or use.”
    This charter further provides for the transportation of passengers, packages, express matter, mail, baggage and freight over the said railroad. It provides that the termini of the road shall be Columbus and Chillicothe, with branches to Lancaster and Washington C. H., through the counties of Franklin, Pickaway, Fayette, Fairfield and Ross.
    We submit that clearly under this charter whatever motive power the company may have elected to begin with, they may at any time, with a roadbed so constructed upon a private right of way, equipped with rails seventy pounds to the yard, laid at “standard gauge” — in other words an equipment as clearly designed as possible for locomotive and ordinary cars, change the motive power to steam.
    We submit that the court will look, in order to determine what kind of a railroad this is, to its articles of incorporation, and will not hear parol testimony to vary the powers granted to this corporation by the state, upon its. own motion and description of the same. State, ex rel., v. Interstate Savings Investment Co., 64 Ohio St., 318; In re Avon Beach & Southern Ry. Co., 16 Ohio Dec., 94.
    We contend: (1st) That the charter of this corporation consists of the statutes of Ohio authorizing its formation, together with its own articles of incorporation; (2d) That this charter is the measure of its powers; (3d) That it is estopped to deny the powers conferred by its charter; and (4th) That no parol testimony is admissible to contradict, explain or modify the plain language of its charter. State v. Washington Social Library Co., 11 Ohio, 96.
    The charter of a corporation “is the measure of its powers.” Am. & Eng. Ency. of Law (new edition), Vol. 7, p. 695, and notes. Am. & Eng. Ency. of Law, Vol. 7, p. 701, and notes. Its charter consists of the statutes under which it was formed, together with the articles of incorporation. Am. & Eng. Ency. of Law, Vol. 7, p. 708.
    See, as reflecting upon this question: Bartholomew v. Bentley et al., 1 Ohio St., 37; Straus et al., v. Eagle Ins. Co., 5 Ohio St., 59; White’s Bank v. Toledo Fire & Marine Ins. Co., 12 Ohio St., 601.
    “The powers of a corporation and the purpose for which it is organized, must be determined by the articles of incorporation;” and parol testimony to show that it was organized for a different purpose is not competent. In re Fuller Laundry Co., 82 N. W. Rep., 673; Craig v. Benedictine Sisters’ Hospital Assn., 93 N. W. Rep., 669.
    The articles are the sole criterion determining the intention of the incorporators and the purpose for which the corporation was organized. Converse v. Morgan et al., 95 N. W. Rep., 767; McLeod v. Lincoln Medical College, 96 N. W. Rep., 265; Meen v. Pioneer Pasteurizing Co., 97 N. W. Rep., 140; In re Nicholson, 37 La. Ann., 346.

      The terms and provisions of the articles of incorporation duly executed and filed can not be varied or limited by parol evidence. 3 Elliott on Evidence, Section 1947. Citing: City of Kalamazoo v. Kalamazoo Heat, Light & Power Co., 124 Mich., 74; Stedman v. Eveleth, 6 Metc., 114; Dooley v. Cheshire Glass Co., 15 Gray, 494.
    But we further insist that even if this court thought it permissible jior this defendant company to show that it was using and intended to use electricity as a motive power, nevertheless this court, under the circumstances of this case, will hold that the act in question should be applied to such a “railroad” as the agreed statement of facts discloses the defendant’s railroad to be.
    Some confusion has arisen, or may arise, owing to the fact that for fifty or sixty years of the legislative history of the state there was but one sort of “railroads” known among men; and that during the last few years other varieties of the same genus have appeared, such as street railroads, and what have become known as “trolley lines,” “traction lines,” “interurban roads,” “electric roads” and other designations.
    It is obvious that so long as the Legislature is dealing with the steam railroads only, many acts would be passed which would in their very nature have very little or no application to these or other sorts of roads mentioned above.
    Hence there has occurred among the decisions of this and other courts a number of cases in which it was reasonable and necessary to hold that certain language and acts of the legislature ex vi termini applying to “railroads” were applicable to steam railroads only.

      A number of such cases have been cited and insisted upon in this case, the dicta of which may seem to support the contention made by opposing counsel in the court below, that the word “railroad,” as used by our legislature,, always means steam railroad. We refer to the following: Massillon Bridge Co. v. Cambria Iron Co., 59 Ohio St., 179, construing an act passed in 1874. Green v. Woodland Ave., etc., Street Railroad Co., 62 Ohio St., 67; Cincinnati, etc., Elec. Street Railroad Co. v. Lohe, Admr., 68 Ohio St., 101.
    The above cases cited by opposing counsel in the court below comprise all the decisions of this court, relating to this question, which have come to our attention or which we are able to find; and we do not deem it necessary to review the dicta or the rulings of lower courts upon questions involving a distinction between steam and other railroads.
    Here is a company operating a railroad, built upon a private right of way, in every respect like the best standard gauge steam railroads of the most modern type; on which, as is common knowledge, are run machines weighing twenty to thirty tons, sixty feet long, at a speed of from 50 to 60 ¡miles an hour; in every regard as dangerous to the travel upon intersecting highways as an express train upon a steam railroad. And here is a statute not undertaking to disturb vested rights but to regulate the crossings of railroads thereafter to be constructed, so as to avoid the dangers and the nuisance of grade crossings. Furthermore we have here a crossing peculiarly dangerous in itself, as the record shows, and so located as to constitute, if maintained at grade, a particularly dangerous crossing; and on the other hand we have a statute, the language of which, the policy of which, the justice of which, and the good sense of which, all appeal to the court as meeting the exigencies of this case.
    This defendant company can acquire neither by grant of this plaintiff by estoppel nor otherwise any vested right to maintain a public' nuisance. Lake Shore & Michigan Southern Ry. Co. v. City of Elyria, 69 Ohio St., 414; New York & New England Ry. Co. v. Village of Waterbury, 55 Conn., 19, 10 Atl., Rep., 162; Woodruff et al., Comrs., v. New York & New England Ry. Co., 59 Conn., 63, 20 Atl. Rep., 17; 7 Am. & Eng. Ency. Law, 711.

      Messrs. Daugherty & Todd, for defendant in error.
    Will the construction of these grade crossings constitute a public nuisance?
    If the statutes of this state give the defendant the right to construct its railway across public highways at grade, then such grade crossings can not be a public nuisance per se, since that which the law authorizes can not be a public nuisance. Northern Transportation Co. v. City of Chicago, 99 U. S., 635; Pennsylvania v. W. & B. Bridge Co. et al., 18 How., 421; Miller v. Mayor of New York, 109 U. S., 385.
    Assuming for the present that the defendant’s railway is of the class known as electric interurban railways, or street railways, there can be no doubt that full authority is conferred upon it by the statutes of Ohio to construct grade crossings. Section 3443-8 and 3443-9, Revised Statutes.

      If, then, the defendant’s railway crossing these highways constitutes a public nuisance, it can only be because of the peculiar facts and conditions surrounding and connected with these particular crossings. On this point wé contend that if the highways are left in a reasonably safe condition for travel in the ordinary mode, they are free from nuisance. City of Troy v. Brady, 67 Ohio St., 65; Village of Cardington v. Admr. of Fredericks, 46 Ohio St., 442; City of Zanesville v. Fonnan, 53 Ohio St., 605; City of Circleville v. Sohn, 59 Ohio St. 285; City of Cincinnati v. Fleischer, Admr., 63 Ohio St., 229.
    Has the defendant lawful authority to construct the tracks óf its railway across these public highways at grade?
    It is apparent from this action of the board of commissioners that the right was granted the defendant by the authorities in charge of these highways to construct its road over said highways at grade.

    It is argued, however, by counsel for plaintiff, that this act of the board of commissioners is void for want of lawful authority in the board of commissioners to grant such right. This argument is based upon the provisions of the act of the General Assembly, passed April 25, 1904, 97 O. L., 546.
    Does this act apply to defendant’s road? The defendant claims that its road is of the class designated by the statutes of Ohio as an electric interurban street railroad.
    The question thus presented is, does the act above quoted relate to and govern the construction of defendant’s road over said highways? If it does, we freely concede that the commissioners of Ross county were without power to authorize the construction of grade crossings over said highways, while, if it does not, we contend the commissioners had lawful power to authorizé such grade crossings.
    It has frequently been held by this court that the word “railroad,” when used in the statute, without any qualification as to the kind of road intended, will be limited to the class of railroads known as steam railroads; in other words, that the term “railroad” used in the statute is not generic, pertaining to all classes of railroads, but ¡special, including only steam railroads. Massillon Bridge Co. et al. v. Cambria Iron Co., 59 Ohio St., 179; Cincinnati, etc., Street Railroad Co. v. Lohe, Admr., 68 Ohio St., 101; Green v. Woodland, etc., Street Ry. Co. et al., 62 Ohio St., 67; Cleveland & Eastern Railroad Co. v. Somers, 24 C. C., 67; C. Y. & H. Electric St. Ry. Co. v. C. H. & I. R. R. Co. et al., 21 C. C., 391; Dayton & Union Ry. Co. v. Dayton & Muncie Traction Co., 26 C. C., 1.
    The statutes under which the company is organized should, in themselves, be decisive of the entire matter, regardless of the decisions. Section 3443-8, Revised Statutes.
    The title of this act, taken from Bates’ Annotated Statutes, latest edition, is “Construction, etc., of street railroads outside of municipalities,” and it is apparent from the act itself that it is the one under which the Scioto Valley Traction Company is operating. Section 3443-11, a statute in pari materia with the other one just quoted, gives such companies power to lease, purchase or make traffic arrangement with any other street railroad company. These two statutes should be construed together, and in so doing, why should the word “other” be used if the railroads already spoken of were not street railroads? Section 3443-13, another statute in pari materia.

    Section 347-/ alludes to one railroad company, or an electric railroad company crossing at grade. If the word “railroad” comprehended all companies operating in the state, why should the word “electric” be used?
    In the same act, but in another part thereof, railroad companies are defined so that it can readily be seen that the legislature treated them as separate and distinct in their characteristics.
    Section 3443-10 gives interurban railroad companies the right of eminent domain; this, steam railroad companies have had for years, and one is scarcely justified in presuming that the legislators are so careless and regardless of the rules of good English as to grant a certain power to those already possessing it in expressly the same degree. Bloom v. Richards, 2 Ohio St., 402.
    We contend, first, that a company can not be lawfully incorporated in this state to operate both a steam railroad and a street railroad; that is to say, that corporations can be formed in Ohio for one main purpose only. State ex rel. v. Taylor, Secretary of State, 55 Ohio St., 67.
    If steam railroads and street railroads are two separate and distinct classes of roads, then a corporation formed for the purpose of constructing and operating a railroad. of one class could not, at the same time, lawfully be organized to construct and operate a road of the other class, as this would necessarily imply the organization of a corporation for two distinct purposes. The act of April 25, 1904, 97 O. L., 546, is unconstitutional .•
    Should the court find that the act of April 25, 1904, applies to defendant’s railway, and for that reason defendant has not lawful authority to construct its road at grade over the highways described in the petition, we would contend that this act is unconstitutional and void.
    1. It confers legislative and administrative power upon the Court of Common Pleas. Queen City Telephone Co. v. City of Cincinnati, 73 Ohio St., 64; Village of Fairview v. Giffee, 73 Ohio St., 183.
    2. It is taking property without due process of law.
    Even if it be urged that such highway crossing can not be constructed across the right of way and tracks of an existing railway without first appropriating the right so to do, this would not meet the situation. Norwood v. Baker, 172 U. S., 270.
   Si-iauck, C. J.

On the 5th day of September, 1904, the commissioners by resolution entered on their journal, authorized the Traction Company to construct and operate its road over these highways. The resolution contemplated grade crossings and it contained the express provision that over or under crossings should not be required. On the 8th of February, 1905, they passed another resolution to rescind that by which such permission had been conferred, reciting in the preamble to the latter resolution that the former had been passed through mistake and misunderstanding, and that the crossings would be extremely dangerous to the traveling public. To the latter resolution there was appended an order that the company should not cross any highway in Ross County except in the manner provided in the original franchise, or in such manner as might be thereafter granted. In the meantime the company had gone forward in acquiring its right of way and with the construction of its road; and it is not contended that the latter resolution is effective to revoke any authority which had been effectively conferred by the former. The question presented, as counsel agree, is whether the company is within the act of April 25, 1904, 97 O. L., 546, its construction being for the operation of its cars by electricity conducted upon a third rail, and its cars being in fact so operated. The scope of the act is indicated by its first section, which provides that “except as in this act elsewhere provided, all crossings hereinafter constructed, whether of highways by railroads or of railroads by highways, shall be0 above or below the grade thereof.” Other sections of the statute provide the method by which crossings may be authorized at grade by the Court of Common Pleas.

Obviously the word “railroad” needs not to be used in a strained or unnatural sense to include an interurban road operated by electricity. And in this connection counsel for the plaintiffs naturally advert to the decisions in which manifest resemblances have been recognized between the companies which depend for the movement of their cars upon their own tractive friction and those which for that purpose employ locomotives for their tractive power. It is, however, an approximately correct generalization to say that the legal likenesses have been found in the relations which the different companies as common carriers of passengers and freight sustain to . their patrons and their relations to their employes. And it remains to inquire whether in the provisions which the legislature has made for the safety of those who are participating in the common use of crossings and highways and the tracks of common carriers it has preserved a distinction on account of the motive power or the tractive methods employed by the carriers. A substantial basis for such distinction is found in the greater weight and momentum of trains drawn by locomotives in comparison with cars for whose propulsion reliance is had upon the tractive friction produced by their own weight, and the promptness with which the latter may be stopped. We may with propriety advert to the substantial character of this difference, but only as an aid in determining whether the legislature has thought it sufficient to justify the distinction in question. The amendments of varioüs statutes upon the subject of railroads and street railroads which are cited in the brief of counsel for the defendant show that in the opinion of the legislature the former term does not include roads of the latter description, and that other terms must be employed to subject roads of different classes to the same statutory provisions.

The case of The Massillon Bridge Co. et al. v. The Cambria Iron Co., 59 Ohio St., 179, involved the interpretation of Sections 3207 and 3208, Revised Statutes, relating to the construction of railroads. It was there held upon considerations which appear to be as applicable here that the word “railroad” does not include street railroads, and by the judgment in the case an interurban' road was regarded as a street railroad within the legislative meaning. That case was decided November 29, 1898, and by its subsequent acts the legislature has indicated its satisfaction with that interpretation. Even the act here relied on was passed at a later date, employing terms which according to that interpretation would not apply to the defendant. It is admitted that existing legislation authorizes the commissioners of a county to permit “street railroads outside of municipalities” to run upon and along highways. From the exercise of this authority it would result that the Traction Company might enter upon these highways from one side and at a point more or less remote leave them upon the other. No considerations appear which would justify the conclusion that the legislature intended that to such roads as the- defendant grade crossings, if oblique, should be permitted, and if direct forbidden.

Judgment affirmed.

Crew, Summers and Davis, JJ., concur. Spear, J., did not participate.


text:
    No. 9576.
    The Stewart Iron Co., Limited, v. Israel, Receiver.
    (Decided October 2, 1906.)
    Error to Circuit Court of Knox County.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Messrs. Waight & Moore, for defendant in error.
   Judgment reversed and judgment for plaintiff in error. Ground stated in journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court be and the same hereby is reversed for error in affirming the judgment of the court of common pleas of said county, and the finding and the judgment of said court of common pleas is hereby set aside and reversed. And this court proceeding to render the judgment said court of common pleas should have rendered upon the admitted and undisputed facts, orders and adjudges that the.said plaintiff recover from the said defendant, as receiver of The Coxey Steel & Silica Sand Company, the sum of $5,842.81, with interest from June 20th, 1904, together with its costs, for the reason that the forbearance of the iron company in the matter of deliveries did not terminate the contract, and that when the receiver refused to make requisition for' the remainder of the iron the company was entitled to what it had lost at the time the iron was sold.

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


text:
    No. 9578.
    The Cincinnati Northern Railroad Company v. The T. S. Gilliland Grain Co.
    (Decided October 2, 1906.)
    Error to Circuit Court of Van Wert County.

      Mr. A. L. Clark, Mr. S. O. B,ayless and Mr. L. T. Hackney, for plaintiff in error.

      Mr. W. H. Dailey, for defendant in error. .
   Judgment affirmed.

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


text:
    No. 9580.
    Norfolk & Western Railway Co. v. Vallery.
    (Decided October 2,-1906.)
    Error to Circuit Court of Pike County.

      Mr. S. L.: Patterson-and Messrs. Bannon & Ban-non, for plaintiff in error.

      Mr. S. D. McLaughlin and Mr. /. A. Eylar, for defendant in error.
   Judgment affirmed.

• Price, Crew, .'Summers, Spear and Davis, JJ., concur. ¡


text:
    No. 9588.
    City of Akron v. The Northern Ohio Traction & Light Co.
    (Decided October 2, 1906)
    Error to Circuit Court-of - Summit County. ••
    Mr. Clyde F.' Beery and Mr. S. D. Kenfield, for plaintiff in error. . .

      Messrs. Rogers, Rowley, Bradley & Rockwell, for defendant in error.
   Judgment affirmed for reasons stated in the opinion of the circuit court (27 C. C., 536).

Shauck, C. j., Price, Crew, Summers,-Spear and Davis, JJ., concur.


text:
    No. 9630.
    The Lake Erie & Western Railroad Co. v. Tierney.
    (Decided October 2, 1906.)
    Error to Circuit Court of Allen County.

      Mr. John B. Cochrum; Messrs. Richie & Richie and Mr. W. H. Leete, for plaintiff in error.

      Messrs. Cable & .Parmenter, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9745.
    The State, ex rel Burns et al., v. Dirlam.
    (Decided October 2, 1906.)
    Error to Circuit Court of Richland County.

      Messrs. Cummings, McBride & Wolfe, for plaintiffs in error.

      Mr. W. S. Kerr and Mr. H. P. Davis, for defendant in error.
   Judgment affirmed on the ground that the defendant in error acted within his discretion.

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


text:
    No. 9767.
    Hageman v. The State of Ohio.
    (Decided October 2, 1906.)
    Error to Circuit Court of Erie County.

      Mr. John Ray, for plaintiff in error.

      Mr. Roy H. Williams, prosecuting attorney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9790.
    Hazen, Admx., v. The Stark Electric Railroad Co.
    (Decided October 2, 1906.)
    Error to Circuit Court of Stark County.'

      Messrs. Craine & Snyder, for plaintiff in error.

      Messrs. Webber & Turner, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9866.
    The Baltimore & Ohio Railroad Co. v. Johnson, Admx.
    (Decided October 2, 1906.)
    Error to Circuit Court of Mahoning County.

      Messrs. Arrel, McVey, Rowland & Harrington, for plaintiff in error.

      Mr. D. F. Anderson, for defendant in error.
   Judgment reversed and cause remanded for a new trial. Ground stated in journal entry.

It is considered and adjudged by this court that the judgment of the court of common pleas in this case be and the same hereby is reversed for error in refusing to give in its charge to the jury the sixth request made by the defendant company below, which request is found on page 185 of the printed record.

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


text:
    No. 9918.
    The Cleveland Electric Railway Co. v. Stanton.
    (Decided October 2, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Messrs. Hart, Canñeld & Croke, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10349.
    The State, ex rel. Smith, v. Stewart, Chief Deputy State Supervisor of Elections, et al.
    (Decided October 5, 1906.)
    Mandamus.

      Mr. Charles Darlington and Mr. M. A. Broad-stone, for relator.

      Messrs. Hayes & Swain; Messrs. Smith & Clevenger; Mr. Lawrence K. Langdon and Messrs. Thorpe & Miller, for respondents.
   Demurrer sustained and petition dismissed.

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


text:
    No. 9322.
    The Lake Shore Electric Railway Company v. Berndt.
    (Decided October 9, 1906.)
    Error to Circuit Court of Wood County.

      Mr. James O. Troup and Mr. T. H. Hogsett, for plaintiff in error.

      Mr. L. K. Chambers and Messrs. Baldwin & Harrington, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9620.
    Eberling et al. v. Cole.
    (Decided October 9, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. 0. W. Broadwell; Mr. L. Z. Tanney and Mr. B. J. Sawyer, for plaintiffs in error.

      Mr. Walter C. Ong, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9686.
    McManus et al. v. Wyssbrod et al.
    (Decided October 9, 1906.)
    Error to Circuit Court of Hancock County.

      Messrs. Phelps & David, and Messrs. Blackford & Blackford, for plaintiffs in error.

      Messrs. Poe & Poe, for defendants in error.
   Judgment' affirmed.

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


text:
    No. 9812.
    The State of Ohio v. Osmond.
    (Decided October 9, 1906.)
    Error to Circuit Court of Mahoning County.

      Mr. Wade H. Ellis, attorney-general; Mr. W. R. Graham and Mr. W. H. Miller, for plaintiff in error.

      Mr. W. N. Anderson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9841.
    Erie Railroad Co. v. Vincent.
    (Decided October 9, 1906.)
    Error to' Circuit Court of Mahoning County.

      Messrs. Hine, Kennedy & Robinson, for- plaintiff in error.

      Mr. W. N. Anderson and Mr. Frank Jacobs, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 9875.
    The State, ex rel. Brumfield, Treasurer, v. Weidner, Auditor.
    (Decided October 9, 1906.)
    Error to Circuit Court of Richland County.

      Mr. Van C. Cook, for relator in error,

      Mr. C. H. Huston, for respondent in error.
   Judgment affirmed.

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


text:
    No. 9894.
    Shackle v. The Ohio River & Western Railway Co.
    (Decided October 9, 1906.)
    Error to Circuit Court of Noble County.

      Mr. Fred L. Rosemond, for plaintiff in error.

      Mr. D. S. Spriggs and Messrs. Pomerene & Pomerene, for defendant in error.
   Judgment affirmed.

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

Price, J., not participating.


text:
    No. 9920.
    The State, ex rel. Henderson, v. Williams et al.
    (Decided October 9, 1906.)
    Error to Circuit Court of Champaign County.

      Mr. E. L. Bode; Mr. H. F. MacCracken and Mr. L. D.- Johnson, for relator in error.

      Mr. George Waite and Mr. C. B. Heiserman, for respondents in error.
   Judgment affirmed.

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


text:
    City of Washington C. H. et al. v. Jackson et al.
    (Decided October 9, 1906.)
    Error to Circuit Court of Fayette County:

      Messrs. Harper & Harper; Mr. H. Jones; Mr. John Logan and Mr. Lee Rankin, for plaintiffs in error.

      Messrs. Post & Reid; Mr. H. H. Sanderson and Mr. Mills Gardner, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9999.
    O'Maley v. The Buckeye Lime Co.
    (Decided October 9, 1906.)
    Error to Circuit Court of Ottawa County.

      Mr. O-, S. Brumhack and Mr. Scott Stahl, for plaintiff in error.

      Messrs. Smith & Baker, and Mr. W. C. Wierman, for defendant in error.
   Judgment affirmed.

Crew, Summers and Davis, JJ., concur.


text:
    No. 10053.
    City of Toledo et al. v. Marlow et al.
    (Decided October 9, 1906.)
    Error to Circuit Court of Lucas County.

      Mr. Charles S. Northup, city solicitor, and Mr. Orion W. Nelson, for plaintiffs in error.

      Mr. Martin S. Dodd and Mr. Frederick J. Flagg, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8899.
    Belle v. City of Glenville et al.
    (Decided October 16, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. Arnold Green, for plaintiff in error.

      Mr. C. M. White, city solicitor,- and Messrs. Squire, Sanders & Dempsey, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9779.
    Bullock v. Bullock, Exr.
    (Decided October 16, 1906.)
    Error to Circuit Court of Greene County.

      Mr. M. J. Hartley, for plaintiff in error.

      Mr. M. A. Broadstone and Mr. T. L. Magruder, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9886.
    The Board of Education of Vaughnsville Special School District v. The State, ex rel. Griffiths.
    (Decided October 16, 1906.)
    Error, to Circuit Court of Putnam County.

      Messrs. Handy & Unverferth, for plaintiff in error.

      Mr. B. L. Griffiths and Messrs. Bailey & Bailey, for defendant in error.
   Judgment reversed and original petition dismissed, the case depending upon the constitutional validity of a statute now repealed and costs only involved.

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


text:
    No. 9891.
    Baker, Admx., v. The Lake Shore & Michigan Southern Railway Co.
    (Decided October 16, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. C. W.' Dille, Mr. E. J. Pinney and Mr. C. W. Noble, for plaintiff in error.

      Messrs: Cook & McGowan, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9931.
    Boyer v. Boyer et al.
    (Decided October 16, 1906.)
    Error to Circuit Court of Montgomery County.

      Messrs. McMahon & McMahon and Mr. P. H. Rue, for plaintiff in error.

      Messrs. Kennedy, Munger & Kennedy and Mr. , W. H. Griffith, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9939.
    Richards, Receiver, v. Burson.
    (Decided October 16, 1906.)
    Error to Circuit Court of Plancock County.

      Messrs. Axline & Betts; Mr. Smith W. Bennett and Mr.. Patterson A.‘Reece, for plaintiff in error.

      Mr. Jacob Line, for defendant in error.
    Judgment reversed. Ground stated in journal entrjr.
   It is ordered and adjudged by this court that the judgment of said circuit court be and the'same is hereby reversed, and this court proceeding to render the judgment which the circuit court should have rendered reverses the judgment of the court of common pleas on the ground that said court of common pleas erred in directing the jury to render a verdict for the defendant, Sarah E. Burson, there being evidence before the jury tending to prove each material allegation in the petition put in issue by her answer. It is the further opinion of this court that said Sarah E. Burson, as a former policy-holder, if .she was a policy-holder in said association, was not a necessary party to the action in which the receiver was appointed and the assessment made. This cause is remanded to the court of common pleas for new trial and further proceedings according to law.

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