author: Bradbury, J".

text:
    Railroad Company v. Morey.

      Railroad Company — Jurisdiction of courts over — Row acquired — Section 5027, Revised Statutes, construed — Rvidence—Negligence—When one is liable for negligence of employee of independent contractor.

    1. Section 5027, Revised Statutes, prescribing the counties within which a railroad company may be sued, relates solely to the jurisdiction of the person, and it is not necessary that the petition should state that its road passes into or through the county where the action is brought; a railroad company, like a natural person, submits itself to the jurisdiction of the court by appearing for any other purpose than to object to such jurisdiction.
    2. Where a written proposition is made by one party, which, after a parol modification of some of its terms has been made, is accepted by the other party in parol, such written proposition is the best evidence of so much of the resulting contract as it contains.
    3. One who causes work to be done is not liable, ordinarily, for injuries that result from carelessness in its performance by the employees of an independent contractor to whom hfe has let the work, without reserving to himself any control over the execution of it. But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employee alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable though the negligence is that of an employee of an independent contractor.
    (Decided March 25, 1890.)
    Error to tbe Circuit Court of Fayette county.
    The defendant in error, George A. Morey, brought, in the Court of Common Pleas of Fayette county, an action against The Southern Ohio Railroad Company, plaintiff in error, to recover damages claimed to have been sustained by him on account of himself and horse falling into a ditch that the plaintiff in error had caused to be dug and left unguarded, across Water street, in the town of Washington, in said county, on the night of November 9, 1885.
    The record discloses that tbe plaintiff in error, at the time of the accident, owned and operated a railroad which ran through said town of Washington, and occupied part of said Water street, with its tracks, and owned and occupied a depot situate on lots owned by it, that were adjacent to said street. That the ditch causing the injury had been dug during the day, the night of which, the accident occurred, for the purpose of laying tiling for a drain from the depot above mentioned) that the ditch was dug entirely across that part of said street which was, or could be, used for travel; that it was from four to six or seven feet deep, about two and one half feet vide at the top, and about two feet wide at its bottom, and the earth from it thrown out two or three feet high on both sides; that the night was very dark, and the ditch left wholly unguarded. That the defendant in error having no knowledge that the ditch had been dug, and without fault on his part, fell into it, together with his horse, and thereby received the injuries of which he complained, and that the ditch was, in fact, dug by a man employed by the firm o*f R. P. Willis & Son, who did the plumbing work for the depot.
    The main contention between the parties at the trial was whether this plumbing was done under such an independent contract as would exonerate the railroad company from liability for the negligence of the contractor and his immediate servants.
    The defendant in error recovered a judgment in the court of common pleas, which the circuit court affirmed, and this proceeding was brought to reverse 'both judgments.
    Any further statement of the facts requisite to a decision of the case, will be found in the opinion.

      W. O. Henderson, (with whom were C. W. Fairbanks and Pavey Pavey,~) for plaintiff in error.
    I. This was an action against a railroad company. It was permissible for the plaintiff to bring his action “in any county through or into which such road or line passes.” Rev. Stat., sec. 5027; otherwise, see Rev. Stat., sec. 5026; Bliss on Code Pleading, secs. 282, 284. The question as to jurisdiction was raised by the demurrer. The court will not take judicial notice of the location. Bolton v. Cleveland, 35 Ohio St. 319, 321; Brune v. Thompson, 2 D. & G. 110.

      II. The facts admitted by the pleadings, and the proof offered and introduced by the plaintiff to make out his case, do not show, or tend to show, that the defendant caused the ditch in question to be dug and permitted it to remain without any covering. These are substantial facts, and without proof to support them the plaintiff was not entitled to a verdict or judgment. Randall v. Turner, 17 Ohio St. 262; Ins. Co. v. McGookey, 33 Ohio St. 555; Davis v. Hines, 6 Ohio St. 473; Baker v. State, 31 Ohio St. 314, 317; Clark v. Fry, 8 Ohio St. 358, 361.

      Van Deman Chaffin, for defendant in error.
    I. Jurisdiction was waived by the demurrer, motion and the joining of issue and trial. Smith v. Hoover, 39 Ohio St. 249; Thomas v. Penrich, 28 Ohio St. 55; O’Neal v. Blessing, 34 Ohio St. 33.
    II. There was no error in excluding evidence. Courtright v. Staggers, 15 Ohio St. 511; Grandolfo v. State, 11 Ohio St. 114.
    III. There was no error in the charge of the court. The proprietor cannot shield himself behind an independent contractor in a case like the one at bar. Shear. & Redf. on Neg., sec. 84; Field’s Lawyer’s Briefs, Yol. 4, pp. 633, 646, 647; Wharton on Neg., secs. 180, 4, 5, 6, 7, and 8; Addison on Torts, 260, 261; 4 Waite’s A. & D., p. 730, 735, 736 Lowell v. Railway Co., 34 Am. Dec. 36; Storrs v. City of Utica, 72 Am. Dec. 439; Wilson v. White, 51 Am. Rep. 269; Water Co. v. Ware, 16 Wall. 485; 1 Thompson on Negligence, 329, 354; Wood on Nuisances, sec. 248; Carman v. Railway Co., 4 Ohio St. 399; Gwathney v. Railway Co., 12 Ohio St. 97; Shindlebeck v. Moore, 32 Ohio St. 274; Circle-ville v. Neuding, 41 Ohio St. 465; Patterson’s R. A. L. 157; Shear. & Redf. on Neg., secs. 451, 452; R. S. Ohio, sec. 4748; Railway Co. v. Van Dorn, 1 C. C. R. 292; Tiffin v. McCormack, 34 Ohio St. 638; Hughs v. Railway, 39 Ohio St. 461; Banning v. Banning, 12 Ohio St. 437; Way v. Langley, 15 Ohio St. 392.
   Bradbury, J".

Plaintiff in error contends that section 5027 Revised Statutes prescribing the counties within which a railroad company may be sued, renders the action local, and to give the court jurisdiction of it, the petition must show that the railroad runs through or into the county where the action is brought, aud that if it does not so appear, the defect can be reached by a general demurrer. In this view we do not concur. “ The division of personal actions into local and transitory is not known in Ohio.” Genin v. Grier, 10 Ohio 209. This doctrine is as applicable to our present method of procedure as it was to that in use in 1840, when it was announced by this court. Section 5027 provides that: “ An action against.... a railroad company, may be brought in any county through or into which such road .... passes.” This section, like the other sections of chapter five of the code of civil procedure, that merely prescribe the county in which a defendant may be sued, relate only to the jurisdiction over the person. Neither a railroad company nor other corporation, nor even a natural person, is bound to appear in an action in obedience to a summons served out of the prescribed count)»-. It is a privilege, however, that is personal, and may be waived; and this court has uniformly held, that a defendant by appearing in court, and, without objecting to its jurisdiction over his person, invoking any action in the cause, waives this privilege, and submits his person to the jurisdiction of the court. Harrington v. Heath, 15 Ohio 483, 487-8; Gilliland v. Sellers, 2 Ohio St. 223; Wood v. O'Ferrall, 19 Ohio St. 427; Thomas v. Penrich, 28 Ohio St. 55; Fitzgerald v. Cross, 30 Ohio St. 450; O'Neal v. Blessing, 34 Ohio St. 33; Handy v. Insurance Co., 37 Ohio St. 366; Elliott v. Lawhead, 43 Ohio St. 171.

The plaintiff in error not only appeared without objecting to the jurisdiction of the court of common pleas over its person, but moved to strike from the petition certain averments deemed by it to be objectionable, and on that motion being overruled, filed a general demurrer to the petition, which being in turn overruled, it filed an answer and went to trial upon the merits. It thus, in the most ample manner, submitted its person to the jurisdiction of the court.

After the plaintiff below had introduced his evidence, counsel for the railroad company moved the court to arrest it from the jury, and to direct a verdict in its favor, on the ground that it did not tend to prove the facts in issue. This rúotion was overruled and this ruling is now before us for review. The only controverted averment of the petition which it is contended the evidence did not tend to prove, is that which states that the plaintiff in error, defendant below, caused the ditch to be dug. That the plaintiff in error owned the lots upon which the depot stood, and used and occupied the depot, was averred in the petition and not denied by the answer; the evidence of the plaintiff below showed that the ditch was dug for the purpose of draining the depot, and that the agent of the railroad company was present and knew that it was being done. This we think not only tended to prove that the railroad company caused the ditch to be dug, but was sufficient to establish that fact prima facie at least. One observing a ditch freshly dug and extending from a valuable building to a lower level, on being informed that it was to be used for the purpose of draining-the building, would be fully justified in inferring from those facts that the owner of the building caused the ditch to be dug.

The plaintiff in error, in attempting to show that the ditch was dug by an independent contractor, for whose negligence it was not responsible, offered evidence tending to prove that it was dug by R. P. Willis & Son, gas fitters and plumbers, of Springfield, Ohio, in putting the water-closets, urinals, etc., in the depot. It was shown that this firm had submitted to the railroad company a written proposition, containing the terms on which they would perform the work, and that, with two parol modifications, it was accepted in parol by the railroad company and the work awarded to them. Counsel for the railroad company then attempted to prove by parol this entire contract. To this objection was made by counsel for plaintiff below, on the ground that the written proposition, in so far as it contained the terms of the contract, was the best evidence thereof; this view was adopted by the court and the parol evidence excluded. In this there was no error. A contract may rest partly in writing and partly in parol; and in that case, while the part resting in parol must of necessity be proved by parol, nevertheless, the writing itself is the best evidence of the part thereof which it contains. This proposition rests not only upon principle, but is supported by numerous authorities, only a limited number of which need to be cited. 2 Parsons on Cont., 553; Sewing Machine Co. v. Anderson, 23 Minn. 57; Thurston v. Ludwig, 6 Ohio St., 1-8.

The record discloses a number of other questions that counsel for the railroad company propounded to its witnesses, but, except in two instances, the testimony the witness was expected to give does not appear at all, and in the other two only inferentially as follows: “ The defendant proposing to prove that R. P. Willis & Son had never done any work for defendant, as its agent or servant, asked the following question of John S. Willis: Did you ever do any work for The Ohio Southern Railroad Company, as the agent or servant of said company?”

This question was objected to by counsel for plaintiff below and ruled out by the court, to which exception was taken. Conceding that the introduction to the question sufficiently states what counsel expected to prove by the witness, yet there was no error in the ruling of the court, for the question was leading in form; but had it been free from fault in this respect, yet. the evidence to be given in response to it, as indicated by the introduction, was not competent. It was not the province of the witness to state whether or not the firm of R. P. Willis & Son was the agent or servant of the railroad company in what they did, that depended upon the contract under which thej'- operated. It was competent for the witness to state the terms of the contract in so far as they could be established by parol, but the relation which they bore to their employers was a question for the jury, under proper instructions from the court.

The only serious question in the case is presented by charges given or refused by the court.

The court among other things charged the jury as follows :

“ If the necessary or probable effect of the performance of the work would be to injure third persons, or create a nuisance, then the defendant is not relieved from liability, because the work was done by a contractor over which it had no control in the mode and manner of doing it.”

To this the plaintiff in error excepted.

The question is here presented whether the owner of real estate, who causes work to be done in relation to it, the probable consequences of the performance of which will be to endanger others or to create a nuisance, can shift from himself all responsibility for these probable consequences by letting the work to an' independent contractor over whom he reserves no control ? Will a sound public policy permit this to be done ? If so, then we may expect the prudent proprietor, when he has work to be done which involves these probable consequences, to provide for its performance by a carefully guarded contract by which he retains no control over it whatever.

The case of Clark v. Fry, 8 Ohio St. 358, is relied upon by counsel for plaintiff in error. In that case the owner of a lot in the city of Toledo, being about to construct a building on it, let the contract for its construction to a builder and yielded to him during the entire period covered by the construction the exclusive possession and control of the premises. The plan of the building and the contract for its construction contemplated an excavation for an area extending six feet into the street, which was about eighty feet wide, and the record leaves it in doubt whether the excavation extended out to the traveled sidewalk or not, and it nowhere appears that it caused any material interruption of or inconvenience to transit along the street by the public. The excavation was made by a sub-contractor, and Fry, without fault, fell into it, receiving injuries therefrom, for which he brought suit. Clark set up the contract in defense of the action, under that state of facts. The trial court charged the jury that the excavation was unlawful and created a nuisance, for which Clark was liable. This was held to be error. The question involved in that part of the charge in this case now under consideration, was not discussed by the court in Clark v. Fry, supra. The court there, indeed, laid down the rule, that where the thing to be done under the contract was unlawful or necessarily injurious to third persons, the employer as well as the employee would be liable for an injury resulting therefrom, but there was nothing in the issues made by the pleadings or in the charge of the court that presented the questions which are raised by the charge of the court now under review. That one upon whom the law devolves a duty cannot shift it over upon another so as to exonerate himself from the consequences of its non-performance is, we think, quite clear. S. & R. on Neg., secs. 174-176 ; Railroad v. Van Dorn, 1 Circuit Ct. Rep. 292; Wood’s Master & Servant, sec. 816; Wharton on Negligence, see. 185. And we think it equally clear that the law devolves upon every one about to cause something to be done, which will probably be injurious to third persons, the duty of providing that reasonable care shall be taken to obviate those probable consequences. In this class of cases the doctrine of respondeat superior has no application, his liability is based upon the principle that he cannot set in operation causes dangerous to the person or property of others, without taking all reasonable precautions to anticipate, obviate and prevent these .probable consequences. This doctrine was recognized by Judge Mc-Ilvaine in Hughes v. Railroad Co., 39 Ohio St. 476, in the following language: “ The employer cannot relieve himself from liability, by contracting with others for the performance of work, where the necessary or probable effect of the performance of the work would injure third persons.” Carman v. Railroad Co., 4 Ohio St. 399; Circleville v. Neuding, 41 Ohio St. 465; Bower v. Peate, 1 Queen’s Bench Division, 321.

•The court also charged the jury as follows:

“ The making of an excavation across a public highway, which materially interferes with public travel, is an unlawful act, unless authorized by proper authority, and this, because such excavation creates a nuisance. If the defendant caused such an excavation to be made, it cannot shield itself from liability if injury resulted to persons traveling upon such highway, because they had the excavation made by independent contractors over whom they had no control, unless it caused all reasonable precautions to be taken to prevent such injury.”

This proposition also is claimed to be in conflict with rule laid down by the court in Clark v. Fry, supra. This may be true if it is so regarded as the enunciation of a general proposition applicable to all excavations made in a public highway, or even to all ditches dug across them; but the doctrine of Clark v. Fry, is not to be extended beyond the facts upon which it rests.. Since that case (Clark v. Fry, supra) arose, the legislature has declared it to be an offense to obstruct a highway, street or alley. Section 6921, Revised Statutes. Notwithstanding this statute, however, we. do not want to be understood as holding, that in all cases where an excavation is made in a highway, street or alley, it necessarily constitutes a nuisance. The issues in the case before us, however, were widely different from those in Clark v. Fry, supra, as was the extent and character of the excavation. In the case before us the only question, except as to the amount of damages, submitted to the jury, was whether or not the railroad'company caused the excavation to be made. The record discloses that no contention was in fact had over any other material fact. That the ditch causing the accident extended entirely across the highway was not disputed, and from its depth and width it could not be otherwise than highly dangerous to every one who might in the night time pass along the street across which it was dug, and the language of the court must be construed in connection with the undisputed facts, the issue being tried and the evidence material to it. There was evidence tending to show that the plan of the work prepared by the engineer of the railroad contemplated that the drain would cross the street at this particular point. The ditch was dug in the usual way and the agent of the defendant at Washington had. full knowledge of the place where and the manner in which it was being dug. The chief engineer who let the contract testified that he did not at the time know of the existence of the street. This was no excuse; he was bound to take notice of public highways; but it is a strong circumstance tending to show that the railroad company caused the ditch to be dug and left exposed in the manner in which it was in fact done; it was supposed by them to be on their own premises, and that no duty rested on them toward travelers who might intrude themselves there. On no other theory can the indifference of all who were concerned in digging the ditch and leaving it exposed be explained. It would have been criminally careless in them to have left over night in a highway, known by them to be such, a pitfall so dangerous as this was shown to be.

There was evidence, therefore, from which the jury could find that the railroad caused this ditch to be dug in the particular manner that the work was done, and if the jury so found, it was liable for the consequences, whether it did so by its own servants or by the hand of an independent contractor.

“ A ditch cannot be dug in a public street and left open and unguarded at night without imminent danger of such casualties. If they do occur, who is the author of the mischief ? Is it not he who causes the ditch to be dug, whether he does it with his own hands, employs laborers or lets it out by contract ? If by contract, then I admit that the contract- or must respond to third parties, if his servants or laborers are negligent in the immediate execution of the work. But the ultimate superior or proprietor first determines that the excavation shall be made, and then he selects his own contractor. Can he escape responsibility for putting a public street in a condition dangerous for travel at night by interposing the contract which he himself has made for the very thing which creates the danger ? I should answer this question in the negative.” Comstock, J., in Storrs v. City of Utica, 17 N. Y. 108; Chicago v. Robbins, 2 Black, 418.

“ Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely tlie result of the wrongful acts of the contractor or his workman, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contract- or agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.” Robbins v. Chicago, 4 Wall. 657.

There was no error in the charge.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    City of Cincinnati v. Sherike.

      Municipal Corporations — Public Improvements — When Property Owner Entitled to Damages — Practice.
    1. The provision contained in section 2327 of the Revised Statutes, that the proceedings with respect to public improvements by municipal corporations “ shall be strictly construed in favor of the owner of the property assessed, or injured, as to the limitations on assessment of pri vate property, and compensation for damages sustained,” requires that a strict construction be placed upon those proceedings by which it is sought to deprive the owner of his right to damages for property taken for, or injured by the improvement; and in order to create a forfeiture or bar of his claim, it must appear that the conditions upon which such forfeiture or bar depends, have been strictly performed.
    2. Section 2304 of the Revised Statutes requires that, “ when it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days written notice of its passage to the owners of the property abutting upon the improvement,.....who may be residents of the county, and publish the resolution not less than two nor more than four consecutive weeks, in some newspaper published and of general circulation in the corporation.” In cities of the first grade of the first class, the power to serve and publish such notice, was in 1884 vested in the board of public works, now in the board of public affairs. The duty enjoined by section 2315 upon the owner of abutting property who claims damages by reason of the improvement, is, that he shall file his claim with the clerk of the corporation “ within two weeks after the service or completion of the publication of the notice mentioned in section 2304;” and if he fail to do so, he shall be deemed to have waived the same, and be barred from receiving damages. Held : To bar the property owner of his damages, the requirements 'of section 2304 with respect to the notice, must be strictly complied with. It is essential that the notice given him of the passage of the resolution declaring the necessity of the improvement, be a written notice, served or authorized by the proper board.
    3. Where, in a proceeding to assess damages under section 2318 of the Kevised Statutes, the municipal corporation makes the owner of property abutting upon the improvement, who bad filed bis claim for damages with the clerk of the corporation, a party to the application for the jury therein provided for, and submits the assessment of his damages to the determination of the jury, and a verdict is returned in his favor for the amount proven, the corporation cannot then, in that proceeding, defeat his right to the damages so assessed him, on the ground that he waived the same, and is barred from receiving damages, by reason of his failure to file his claim within the time prescribed by law.
    (Decided March 25, 1890.)
    Ekror to the Circuit Court of Hamilton county.
    The Common Council of the city of Cincinnati, on the 81st day of March, 1884, adopted a resolution, on the recommendation of the board of public works, declaring it necessary to improve Hunt street, in said city, by grading, setting curbs and crossings, flagging and paving gutters, and macadamizing the roadway, in accordance with certain plans, profiles and specifications; the expense of said improvement, to be assessed per front foot, upon the property, bounding and abutting thereon. The defendant in error, Frederick Sherike, who was then, and thereafter continued to be, the owner of a lot of land bounding and abutting upon the improvement as proposed, claiming that he would sustain damages by reason of the improvement, filed his claim in writing with the clerk of the corporation, setting forth the amount of the damages claimed, with a general description of the property, to which, he claimed, the injury would accrue. A number of other persons, owning property abutting upon the contemplated improvement, also filed like claims for damages. On the 27th day of February, 1885, the council duly passed an ordinance to improve Hunt street, as specified in the resolution previously adopted, declaring the necessity for such improvement. The ordinance provided that the damages to the owners of abutting property who had filed claims for damages by reason of the improvement, should be determined before commencing the improvement, and directed the city solicitor to proceed to have the amount of the damages ascertained without delay. On the 28th day of November, 1885, the solicitor filed in the Court of Common Pleas of Hamilton county his written application for a jury to inquire into and assess the damages.
    A jury was duly impaneled, evidence was given by the defendant in error, and the other claimants, tending to prove the amounts of their damages respectively, and a general verdict was returned by the jury, assessing the damages of the defendant in error, and of each of the other claimants. The verdict, so far as it relates to the defendant in error, is as follows:
    “ We, the jury impaneled and sworn in this proceeding to inquire into and assess in each case separately, the actual damages to the property of the respective defendants described in the petition, to be occasioned by the improvement of Hunt street, under Ordinance No, 8604 of the Common Council of Cincinnati, passed February 27, 1885, to the grade established by ordinance of said city, passed April 24, 1874, and including the right of an easement in the lands of said defendants, respectively, abutting and immediately contiguous to said street, necessary for the purpose of making thereon a sloping fill, sufficient to afford lateral support to said street, when improved as aforesaid, do find and assess the said actual damages to the property of said respective defendants, described in the petition, to be as follows, to wit:
    “ To Frederick Sherike, premises being 105 feet front, on the west side of Hunt street, by 150 feet deep, the sum of eight hundred ($800) dollars.”
    The following special verdict was also returned by the jury, viz.,
    u Special verdict as to the property of Frederick Sherike. Questions to be answered by the jury:

      1. ’ When was Frederick Sherike served with notice of the passage of the resolution to improve ?

      A. Upon the 22d day of May, 1884.
    2. When did Frederick Sherike file his claim for damages for his property ?

      A. Upon the 5th day of March, 1885.
    3. What, if any, will be the amount of actual damages to the property of Frederick Sherike by the grading of Hunt street, to grade established by the ordinance of April 24, 1874?

      A. Eight hundred dollars.”
    Upon the motion of the city, the court vacated the general verdict so far as it related to the- defendant in error, for the reason, as stated in the record, that his case was fully covered by the special verdict; and rendered judgment against him on the special verdict, on the ground, that it appeared therefrom, that his claim for damages was not filed within the time allowed by law, that is, within two weeks after the 22d day of May, 1884. To this action of the court the defendant in error duly excepted, and his bill of exceptions in that behalf was allowed, which purports to set out all of the evidence and proceedings. The bill of exceptions shows that defendant in error, among other things, gave evidence to prove the amount of his damages, and tending to prove that the actual damage to his premises by reason of the improvement, would amount to eight hundred dollars.
    The only evidence offered by the city is stated in the bill of exceptions as follows :
    “ Thereupon the plaintiff, to maintain the issue on its part, offered testimony showing that the defendant Frederick Sherike was served with notice of the passage of the resolution to improve Hunt street upon the 22d day of May, 1884.
    “ And that said defendant filed his claim for damages for his property upon the 5th day of March, 1885.”
    Sherike prosecuted error to the circuit court, where the .judgment of the court of common pleas was reversed, and judgment rendered in his favor for the damages assessed him by the verdict; and the city, by this proceeding, seeks to have the judgment of the circuit court reversed, and that of the common pleas affirmed.

      Sorstman, Sadden, G-alvin §■ Van Sorn, for plaintiff in error.

      Baker & Goodhue, for defendant in error.
   Williams, J.

The claim of the plaintiff in error is, that at the hearing in the court of common pleas, before the jury impaneled to assess the damages upon the claims filed with the city clerk, by the owners of property abutting on the proposed improvement, the evidence proved, and the jury found, that on the 22d day of May, 1884, the defendant in error was served with notice of the passage,' by the city council, of the resolution declaring the necessity for the improvement, and his claim for damages was not filed with the city clerk until the 5th day of March, 1885 ; and, as it thus appeared, that more than two weeks intervened between those dates, his right to the damages awarded him by the verdict of the jury, for the injury that would be occasioned to his abutting property, by reason of the improvement, was waived and forfeited.

This claim is based upon the provisions of sections 2304 and 2315 of the Revised Statutes, which are as follows :

Section 2304. “ When it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days written notice of its passage to the owners of the property abutting upon the improvement, or to the persons in whose names it may be assessed for taxation upon the tax duplicate, who may be residents of the county, and publish the resolution not less than two nor more than four consecutive weeks, in some newspaper published and of general circulation in the corporation; provided, that in case of sewers, the twenty days’ written notice to the owners of abutting property, or to the persons in whose names the abutting property is assessed, shall not be required; and, provided, that when there is no newspaper published in such village, written notice shall be posted in twelve public places in the village; and all plans and profiles relating to the improvement shall be recorded and kept on file in the office of the city civil engineer or clerk, and open to the inspection of all parties interested; and council may appoint a person to serve the notice provided for by this section, who shall make a return of the time and manner of such service, and verify the same by affidavit which shall be filed with the clerk of the corporation, and the same, or a certified copy thereof,shall be prima facie evidence of the service of the notice as therein stated; provided, that in cities of the first grade of the first class, the power to serve and publish such notice shall be vested in the board of city commissioners, provided for in the second chapter of this division.”

Section 2315. “ An owner of a lot, or of land, bounding or abutting upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, shall, within two weeks after the service or the completion of the publication of the notice mentioned in section 2304, file a claim in writing, with the clerk of the corporation, setting forth the amount of the damages claimed, together with a general description of the property with respect to which it is claimed the injury will accrue; an owner who fails to do so shall be deemed to have waived the same, and shall be barred from filing a claim or receiving damages ; and this .provision shall apply to all damages which will obviously result from the improvement, but shall not deprive the owner of his right to recover other damages arising, without his fault, from the acts of the corporation, or its agent; provided, that if subsequent to the filing of such claim, the owner sells the property, or any part thereof, the assignee shall have the same right to damages which the owner would have had without the transfer.”

The rule by which these sections are to be construed, is found in section 2327, which provides, “ Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded; but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.”

The last clause of this section, plainly requires, that a strict construction be placed upon the proceedings by which it is sought to deprive the owner of his right to damages for property taken for, or injured by, the improvement; and, therefore, in order to create a forfeiture of his claim for damages, it must appear that the conditions upon which such forfeiture depends, have been strictly performed. The duty enjoined by section 2315, upon the owner of property abutting upon the improvement, who claims that he will sustain damages by reason of the improvement, is, that he shall file with the clerk of the corporation, his claim for damages, within two weeks after the service or completion of the publication of the notice mentioned in section 2304; and it is only when he fails, for the period specified, after such notice-has been given, to so file his claim, that he shall be deemed to have waived the same, and be barred from receiving damages. Hence, to establish the bar, and create the forfeiture, the requirements of section 2304, with regard to the notice, must be strictly complied with.

That section requires, as we have already seen, that when it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days ivritten notice of its passage, to the owners of property abutting upon the improvement, who may be residents of the county, and publish the resolution, not less than two, n'or more than four consecutive weeks in some newspaper published, and of general circulation in the corporation; and by the last clause of the section it is provided, that in cities of the first grade of the first class, the power to serve and publish such notice shall be vested in the board of city commissioners. At the time these proceedings were had, section 2231, as amended March 8,1880, (77 Ohio L. 35), was in force, which conferred upon the board of public works, the powers and duties pertaining to the board of city commissioners.

In order to make the failure of an abutting property owner to file his claim, a bar to his right to the damages done his property by the improvement, it is essential that the notice given him of the passage of the resolution declaring the necessity of the improvement, be a written notice, and- served, or at least authorized by the proper authority. The record does not show that either of these requisites were complied with, in the case before us. The most that was established by the evidence and special verdict, is, that Sherike was “ served with notice,” which falls short of showing a strict compliance with the requirements of section 2304.

We are of opinion, therefore, that, if it was competent for the city, on the trial before the jury, to contest the claim of the defendant in error, upon the ground that it was barred, by reason of his failure to comply with the statute, the facts necessary to establish the bar, are not shown by the evidence, or special verdict.

We are also of opinion, that when, in a proceeding to assess damages, under section 2318 of the Revised Statutes, the municipal corporation makes the owner of property abutting upon the improvement, a party to the application for the jury, and submits the assessment of his damages to the jury, it cannot, after a verdict is returned in his favor, defeat his recovery, on the ground that his claim is barred by reason of his omission to file his claim with the clerk of the corporation within the time prescribed by section 2315. The benefits of that section, like the bar of the statute of limitations, may be waived, by failure to insist upon it at the proper time, or in the proper mode.

If the city of Cincinnati desired to controvert the right of the defendant in error to have any damages assessed him, because he did not file his claim within the proper time, it should have done so, by declining to file the claim out of time, or excluding it from the application for the jury, or dismissing it before submission to the jury. It chose, however, to file the claim, include it in the application, and submit the amount of damages to the determination of the jury; and the judgment of the circuit court for the damages assessed by the verdict was not erroneous.

Judgment affirmed.


author: Minshall, C. J.

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

      Statute of Limitations — Absence from state — Occasional presence in — Construction of § 4989, Revised Statutes.

    1. Where a person, who is a non-resident of this state and absent from it when a cause of action accrues against him in favor of another in this . state, afterward, and during the period of the limitation, occasionally comes into this state, such presence in the state will not set the statute .of limitations to running in his favor, although the plaintiff might, at such times, by the exercise of ordinary diligence, have commenced an action against him.
    2. Under the provisions of section 4989, Revised Statutes, presence of the defendant in the state, for the full period of the time limited for bringing an action, either continuously or in the aggregate, is necessary to constitute a bar of the action-.
    (Decided March 25, 1890.)
    Error to the Circuit Court of Washington county.
    On January 6,1881, Joseph F. Stanley commenced suit in the Court of Common Pleas of Washington county against the administrator of Timothy Stanley, deceased, and his heirs, the claim having been disallowed by the direction of the latter.
    The petition contained a number of causes of action, eight of which accrued in the years 1866 and 1867, and would have been barred but for the following averments' contained in the petition:
    “ That when the cause of actions accrued to this plaintiff, on each and every of said eight counts set forth in this plaintiff’s petition against the said Timothy T. Stanley, the said Timothy T. Stanley was absent from the county of Washington, and absent from the state of Ohio; that he then resided in the state of West Virginia, and so remained absent continuously from the state of Ohio before the accruing of the cause of action in this petition in favor of the plaintiff and against the said Timothy T. Stanley, until his death in the state of West Virginia, on or about the 16th of February, 1878.”
    This the defendant sought to avoid by the following answer:
    “ 2. They admit that at the time the causes of action set up in the 1st, 2d, 3d, 4th, 5th, 6th, 7th and 8th counts in the petition are said to have accrued to plaintiff, said Timothy T. Stanley was absent from Washington county, and absent from the state of Ohio, and that he then resided in the state of West Virginia, but these defendants deny that he so remained absent continuously from the state of Ohio before the accruing of said cause of action until his death. That they admit that on August 1, 1866, said Timothy T. Stanley departed this state, and went to the state of W est Virginia; but they deny that he remained continuously in said state of West Virginia until his death, and these defendants aver that after said August 1, 1866, and after the causes of action set up in the 1st, 2d, 3d, 4th, 5th, 6th, 7th and 8th counts of the petition herein, are said to have accrued to plaintiff, and more than six years prior to the presentation of the claim in the petition set up by the plaintiff to said administrator, said Timothy T. Stanley came into said state of Ohio, openly and notoriously, and became subject to the process of the courts of said state, all of which plaintiff at the time well knew. And these defendants further say that during said period of time said plaintiff resided in said Washington county, and state of Ohio; that during said period of time said Timothy T. Stanley came frequently into said Washington county, and remained several days therein, ■with the knowledge of plaintiff; that during said pei’iod of time said Timothy T. Stanley was at the house of plaintiff in said Washington county for several days with the knowledge of plaintiff, and was subject to tbe process of tbe courts of said county.”
    The plaintiff demurred to this answer on the ground that it did not state facts sufficient to constitute a defence to the action. The demurrer was overruled and exception taken. The plaintiff then filed a reply controverting the averments. The case was tried to a jury upon the various issues of fact made by the pleadings, and a verdict rendered for the defendants. On the trial the court charged the jury as follows :
    “ If the jury find from the evidence upon the issue made in the pleadings upon the question of the statute of limitation, that after the accruing of the cause of action set up in the petition, or before the accruing of all of said causes of action, the decedent, Timothy T. Stanley, removed to the state of West Virginia about August, 1866, and that he remained there continuously until his death, about the month of November, 1878, then the statute of limitation would not run against said causes of action set up in said petition, and be no bar to a recovery by the plaintiff in this action.
    But if the jury find that during said time, from August, 1866, until the date of his death, about November, 1878, the said. Timothy T. Stanley returned frequently, openly, occasionally and notoriously to the county of Washington, in the state of Ohio, the place where the contracts in the petition were made, and the place where said plaintiff during said times resided, and the said plaintiff did know, or would have known by ordinary diligence, of the frequent presence in said Washington county and state of Ohio of said decedent, Timothy T. Stanley, and could have, by ordinary diligence, obtained service of summons in said county of Washington, and state of Ohio, upon said Timothy T. Stanley, in an action founded upon the causes of action set up in the petition, then the statute of limitation would run against said demands mentioned in said petition, and the same would be a bar to a recovery by the plaintiff in this action.”
    This was excepted to at the time, and, with the ruling on the demurrer, was made the ground of a motion for a new trial. The motion was overruled, and judgment entered upon the verdict, to reverse which this proceeding in error, is prosecuted.

      S. S. Knowles, for plaintiff in error.
    The law of limitations is governed, and is to be controlled' by. the legislation of the state, and the judicial construction' of such legislation at the time of the transaction. Rev. Stat., sec. 49892 S. & C. 950 and note; 14 Ohio, 204; 109 Mass., 40; 10 Shep. M. Me. Rep., 156, and Statute- of Maine, sec., 99; 59 N. H. 151; Wood on Lim., sec. 247 and cases there cited; 43 Miss., 212; 6 Kan., 74; 45 Dana, 337; 118 Mass., 337; 17 Mass., 180; Davis v. Field, 56 Vt. 426.

      A. D. Follett, for defendant in error.
    The statute begins to run when the debtor comes into the state. The language of the statute is plain and simple. There is no occasion for refinement of construction. It simply means what it says. Some states require residence — some require the debtor to be in the state the statutory period after coming into it. None of these requirements appear in our statute. Angell on Lim., sec. 206; Waite’s A. & D., Vol. 7, pp. 276, 277; 109 Mass., 140; Fowler v. Hunt, 10 Johns, 464; Cole v. Jessup, 10 N. Y. 103.
   Minshall, C. J.

The question in this case arises upon the defense in the answer to which the demurrer was sustained. The defense was intended to avoid the effect of .the averments in the petition as to the absence of the decedent from the state at the time the plaintiff’s causes of action accrued, and his continued absence thereafter until the time of- his death. The question requires a construction of the following section of the Revised Statutes, relating to the statute of limitations:

“ Sec. 4989. If, when a cause of action accrues against a person, he is out of the state, or has absconded, or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.”

It is necessary to observe that it is not claimed in the defense to which the demurrer was overruled, that the causes of action to which it was pleaded, or any of them, arose in the state of West Virginia, the residence of the deceased, or were to be performed there. Such averments were made as separate grounds of defense, and were met by denials. The gist of the defense to which the demurrer was interposed, is that, although the decedent resided in the state of West Virginia when the causes of action accrued, yet he frequently came into this state, and within the jurisdiction of the courts of the county in which the plaintiff resided, after the causes of action accrued, and more than six years before the action was commenced; and that these occasions were attended with such circumstances of notoriety, that the plaintiff could, with the exercise of ordinary diligence, have obtained service upon him. The defense admits that the deceased was a non-resident of the state at the time the causes of action accrued; but it is claimed, that if, at any time thereafter, he came into the state so that the plaintiff might have commenced his action, the statute began to run, and continued to do so, though he may have departed the state the next day, and have remained out of it the residue of his life.

We do not so construe this statute. Where a defendant is out of the state when a cause of action accrues against him, our construction is, that the statute does not begin to run until he comes into the state. It then begins to run against him, and if he remain in the state, it will be barred in the period limited, from that time. But if, after he comes into the state, he again depart from it, the running of the statute is suspended during his absence. It is not necessary that we should determine in this case, whether absence upon business — the defendant continuing a resident of the state— is sufficient, or whether it must be limited to absence as a non-resident of the state, for it is admitted that the decedent was a resident of the state of West Virginia, and his absence* therefore, referable to that fact.

The design of the statute is to give to the plaintiff the full period of the limitation, in available time, for the commencement of his action; so that, in ascertaining this period, the time the defendant is out of the state, is not computed as any part of the time given him in which to commence his action. This is in close analogy to the Roman law which, in like cases, counted only the available days, tempus utile, on which activity was possible, in ascertaining whether an action was barred by limitation or not; and days on which the action was hindered by the absence of the defendant, were excluded from the computation of the term. Poste’s Gaius, 255.

This is the only rational construction that can be placed on the statute, and makes it consistent with itself. Thus in the second clause it is provided, in so many words, that if after the cause of action accrues, the defendant depart from the state, “ the time of his absence.....shall not be computed as any part of the period within which the action must be brought.” It could not then have been intended by the legislature that, where a defendant was absent from the state at the time a cause of action accrued, his return to the state would not only set the statute to running in his favor, but that it would continue to run, whether he remained in the state or not.

The first clause provides for the case where the defendant is absent from the state when the cause of action accrues; the second for the case where he departs from the state after it has accrued. In the first, the statute begins to run when he comes into the state; in the second, it ceases to run, and is suspended, until he returns to the state. The purpose, then, of the statute is perfectly plain: Presence of the defendant within the state, so that he may be sued, avails in his favor; absence from the state, whether at the accruing of the action or afterwards, suspends the running of the statute.

This is the first time the precise question seems to have arisen in this court, so that none of its previous decisions afford any light in determining it. But most of the other states have statutes of limitations with provisions similar in this regard to our own, which have been frequently construed by their courts; and the general result of these decisions is, that when a defendant is absent from the state when a cause of action accrues against him, his occasional, or frequent visits to the state, will be of no avail to him under a plea of the statute of limitations, however open and notorious his visits may have been, unless he has been in the state, and the jurisdiction of its courts, for the full period limited by the statute, either continuously or in the aggregate.

The statute of the state of Maine is substantially the same as our own; and there, in a suit on a promissory note, which the defendant claimed was barred, he offered to show that though he lived in the Province of New Brunswick, he was frequently in the state to the knowledge of the plaintiff. But the court said: “The defendant was absent from and resided out of the state when the cause of action accrued, and has not since resided within it, though he may have occasionally been within its limits,” and it was held that he could not avail himself of the bar of the statute. Hacker v. Everett, 57 Maine, 548. We cite, in this connection, and to the same effect, Milton v. Babson, 6 Allen 322; Lane v. National Bank, 6 Kan. 74; Smith v. The heirs of Bond, 8 Ala. 386; Chenot v. Lefevre, 3 Gilm. (Ill.) 637; Bell v. Lamprey, 57 N. H. 168; Bassett v. Bassett, 55 Barb. 505; and Bennett v. Cook, 43 N. Y. 537. In the last case the defendant resided in Jersey City, but did business in New York city, and was there some eight or ten hours each day. He pled the statute. But the court said: “ If the statute runs at all during the presence of a non-resident within the state, such presence must, in any view of the case, amount in the aggregate to six years to render the defense available.” And in Bassett v. Bassett, it is said: “ The object of the exception in the statute was to give the creditor the whole of the six years’ residence in the state within which to commence his action. He is not obliged to follow the debtor to another state; nor is he called upon to watch him to ascertain whether he comes into the state for a temporary purpose, so long as his residence is elsewhere.”

Our conclusion then is, that, under the provisions of section 4989, Revised Statutes, the statute of limitations does not run in favor of a defendant to a cause of action whilst he is absent from the state; and this principle is not affected by the fact that the defendant may have been absent from the state, when the cause of action first accrued against him; for whenever he departs from the state, after having come into it, the running of the statute is suspended from that time and during his absence, whether the cause of action first accrued whilst he was in, or whilst he was absent from the state.

Judgment reversed, and cause remanded with direction to sustain the demurrer to the second defense in the additional answer, filed June 18, 1884, and for further proceedings.


author: By the Court.

text:
    The State ex rel. v. Berry.

      Municipal Corporations — Election of Councilmen.

    A city council is, under the provisions of the constitution, section 21, article 2, and section 16*79 Revised Statutes, the exclusive judge of the election of its own members.
    Whether its determination may be reviewed on error, quere.

    (Decided April 15, 1890.)
    Error to the Circuit Court of Hamilton County.

      John O. Schwartz, Emery Garrison and. Hf. B. Wilson, for plaintiff in error.

      Tapie, Moos ¿f* McOabe, for defendant in error.
   By the Court.

The proceeding below was a suit in quo warranto .on the relation of the prosecuting attorney of the county against Willis M. Berry, the petition averring, that he has usurped and unlawfully holds and exercises the office of a member of the council of the village of Westwood in the county, and asking that he be ousted therefrom by the judgment of the circuit court. A demurrer to the petition was sustained and petition dismissedwhich is assigned for error here.

The constitution of the state (art. ,2, sec. 21), provides that, “ The general assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted;” and section 1679, Revised Statutes, provides that, “ The council, and when of two branches, each branch, shall be the judge of the election, returns, and qualifications of its own members, shall determine the rule of its procedure, and keep a journal of its' proceedings, and may compel the attendance of absent members in such manner and under such penalties as may, by ordinance, be prescribed.”

Held: That under the provisions of the constitution, the power conferred by this section upon the “ council ” of a municipal corporation to determine the election of its own members is exclusive, and cannot be determined by a proceeding in quo warranto, or in an}1- other mode than as provided in this section. State ex rel. v. Harmon, 31 Ohio St. 250.

Whether the determination of the council in a contested election of one of its members, may be reviewed on error, is not presented in this case, and is not decided.

Judgment affirmed.


text:
    Blythe v. The State.

      Homicide — Jury may view scene of felony — Presence of accused — Not error when accused refuses to attend.

    It is not error for the jury to make a view of the place where a felony is claimed to have been committed, under the order of the court and in charge of the sheriff, where the privilege is awarded the accused to accompany the jury, though he may refuse to attend the view.
    (Decided April 22, 1890.)
    Motion for leave to file a petition in error to the Circuit Court of Hamilton county.

      Hart Pugh, for plaintiff in error.

      John O. Schwartz, Pros. Atty., for defendant in error.
    The plaintiff in error Charles Blythe, was indicted and put upon his trial in the Court of Common Pleas of Hamilton county on a charge of murder in the first degree. After the jury to try him, had been empanneled and sworn, the prosecuting attorney moved the court to send them, under the charge of the sheriff, to view the premises where the homicide had been committed. To this the plaintiff in error objected, which objection the court overruled, directed the view to be made, and gave to the plaintiff in error permission to accompany the jury, if he desired to do so. To this action of the court, he at the time excepted. Thereupon, the jury in charge of the sheriff viewed the premises, the plaintiff in error, by advice of counsel declining to accompany them. This action of the court he now asks to be held error to his prejudice. .
   By the Court.

A view of the place where the homicide occurred is expressly authorized by section 7283, Revised Statutes, which makes no provision for the defendant on trial to accompany the jury when it is made. Section 7301 Revised Statutes, prescribes that, except in cases of misdemeanors, no one charged with an offense shall be tried in his absence.

This section does not require the actual presence of the accused in court at all times during his trial, but prescribes that one out of the jurisdiction or control of the court, cannot be tried for a felony, and notwithstanding this section (7301 Revised Statutes), one on trial for a felony and not in actual custody may pass in and out of the court room, and remain absent for considerable periods of time, without rendering the progress of the trial during his absence erroneous. Therefore, if a view such as is authorized by section 7283 Revised' Statutes, be a part of the trial within the meaning of section 7301 Revised Statutes, yet, as the court of common pleas expressly granted to plaintiff in error, permission to accompany the jury when the view was taken, which privilege, under advice of counsel he declined to accept, he must be deemed to have voluntarily absented himself, and thereby waived his right and privilege to be present when the view was taken. The court of common pleas, having granted him the privilege to accompany the jury, was not bound to compel him to accept it.

Judgment affirmed.


author: Dickman, J.

text:
    Carlisle v. Hetherington.

      Constitutional Law — Free Turnpike Loads.

    1. Where, upon each side of a proposed free turnpike road, unconnected therewith, and within less than two miles thereof, there runs an unimproved state or county road, and the road commissioners fix the bounds of the turnpike road to the full extent of one mile on each side of the same, section 4786 of the Bevised Statutes, so far as it provides that, in taxing territory between the turnpike road and the state or county roads, extra taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads, is not in conflict with section 2, of article 12, of the constitution, which, with certain specific exceptions, requires all real and personal property to be taxed by a uniform rule, and according to its true value in money.
    2. For the purpose of defraying the expenses of constructing and maintaining a free turnpike road, a special taxing district of one mile on each side of such road, may be established under the above section of the Revised Statutes, and the bounds of such district may be reduced, where an unimproved state or county road, unconnected with the turnpike road, runs upon either side thereof, within less than two miles.
    (Decided April 29, 1890.)
    Error to the Circuit Court of Highland county.
    The plaintiffs in error, George Carlisle, John Carlisle, sen., John Carlisle, jun., John Ballentine and G. M. Ballentine, filed their petition in the Court of Common Pleas of Plighland county, against E. O. Hetherington, as treasurer of said count}!-, which petition reads as follows:
    Plaintiffs say, “That the commissioners of Highland county, Ohio, assuming to act under and by virtue of title 7, chapter 7, of the Revised Statutes of Ohio, on the 5th day of February, A. D. 1883, authorized and granted the road improvement known as the Prospect Church and Gall’s Hill Free Turnpike No. 50.
    . “ That on the same day said county commissioners duly appointed Addison Gall, George Murphy and James A. Burnett as road commissioners therefor to do and perform all and singular the duties required of them by law.
    “ That said road commissioners duly qualified and entered upon the discharge of their duties, and on the 7th day of March, 1883, returned to the board of county commissioners their report and a map and profile of Free Turnpike No. 50, laying out and establishing said road and fixing and establishing the bounds of the same to the full extent of one mile on each side of said free turnpike, reporting to said county commissioners all of the real and personal property of these plaintiffs, among others as hereinafter set forth, within one mile on the north side of said Free Turnpike No. 50, as taxable for the construction and maintenance of the same.

      “ That said report was duly filed in the office of the Auditor of áaid county on the-day of-, A. D. 188-.
    “ That the commissioners of Highland county, Ohio, on the 7th day of March, A. D. 1883, made an order and duly entered it upon their journal, directing the auditor of Highland county, Ohio, to levy on the grand duplicate for the purpose of constructing and maintaining Free Turnpike No. 60, a tax upon the real and personal property of these plaintiffs, among others, within one mile on the north side of said Free Turnpike No. 60, of ten mills on the dollar for each and every year for the period of eight years.
    “ That afterward, to wit: on the 6th day of May, 1884, said county commissioners duly extended said levy three years at the rate of ten mills on the dollar for each and every jrnar of said extension, making the whole time of said levy heretofore made eleven years at the rate of ten mills on the dollar for each and every year of said eleven years. That the auditor thereupon, as aforesaid, ordered duly levied the aforesaid tax on the grand duplicate for the purpose of constructing and maintaining Free Turnpike No. 60 against all of the lands and personal property of these plaintiffs, among others, lying and being on the north side of Free Turnpike No. 60, and within one mile of the same.
    “ That said tax, levied as aforesaid, thereupon became a lien, and a- cloud upon the title of the plaintiffs to the aforesaid premises and property. Plaintiffs say, that there was a certain unimproved county road, leading from Hillsboro to Marshall, running on the north side of Free Turnpike No. 60, and within less than two miles of the same, and unconnected therewith.
    “ That said county road is now occupied by the road improvement known as the Marshall Free Turnpike No. 64. And plaintiffs say, that said road commissioners appointed to view, lay out and establish Free Turnpike No. 50, never reported to the county commissioners that the extra taxes levied within the established bounds of said Free Turnpike were insufficient to make a good and substantial road. That no petition to extend the bounds of Free Turnpike No. 50 was ever signed by a majority of the land owners, resident or non-resident owning lands, beyond half the distance from Free Turnpike No. 50 to the hereinbefore mentioned unconnected county road, and that the commissioners of Highland county never made an order to extend the bounds of said Free Turnpike No. 50, but that only the one order was ever made.
    “ Plaintiffs say that on the 5th day of March, 1887, certain persons, to wit: Mary J. Templin, Nancy Moore, Smith Moore, Chas. Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin brought an action, No. 4519, in the Common Pleas Court of Highland county, Ohio, against J. M. Hiestand, as treasurer of Highland county, Ohio, to perpetually enjoin said J. M. Hiestand, as treasurer of Highland county, Ohio, and his successors in office, from collecting from said plaintiffs in said action, or their legal representatives, any and all extra taxes levied against their lands and personal property that lay beyond one half the distance from Free Turnpike No. 50 to the Hillsboro and Marshall County Road (then and now occupied by Free Turnpike No. 54), and within one mile of said Free Turnpike No. 50, for the purpose of constructing and maintaining said Free Turnpike No. 50.
    “And plaintiffs say that the aforesaid plaintiffs in the aforesaid action No. 4519, in their petition in said action, set out and averred, among other matters and things, that the aforesaid Hillsboro and. Marshall road was at the time of the laying out and establishment of Free Turnpike No. 50, an unimproved county road, running within less than two miles of Free Turnpike No. 50, as laid out and established, and was unconnected therewith. And plaintiffs say that the court upon a full and final hearing of said action No. 4519 found, among other matters and things, that the Hillsboro and Marshall road, at the time of the laying out and establishment of Free Turnpike No. 50, was an unimproved county road, running within less than two miles of Free Turnpike No. 50, and was unconnected therewith, and on the north side thereof, and that the said Mary J. Templin, Nancy Moore, Smith Moore, Chas. Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin, under and by virtue of title 7, chapter 7 of the Revised Statutes of Ohio, were entitled to a division of territory between the Hillsboro and Marshall County Road (then and now occupied by the Marshall Free Turnpike No. 54), and said Free Turnpike No. 50, and that the extra taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against all the lands and personal property of the said Mary J. Templin, Nancy Moore, Smith Moore, Charles Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin, that lay beyond one half the distance from Free Turnpike No. 50 to said Hillsboro and Marshall County Road, were illegal and void. And the court decreed and ordered that the said J. M. Hiestand, as treasurer of Highland county, Ohio, and his successors in office, be perpetually enjoined from collecting from any of the aforesaid plaintiffs in the aforesaid action No. 4519, or their legal representatives, any and all extra taxes levied as aforesaid for the purpose of constructing and maintaining Free Turnpike No. 50, against any of their lands or personal property that lay beyond one half the distance, from Free Turnpike No. 50 to the aforesaid Hillsboro and Marshall County Road. Plaintiffs say that said decree and order of said court has never been set aside and is now of existing and binding force against E. O. Hetherington, as treasurer of Highland county, Ohio, and his successors in office. That under and by virtue of said decree and order of said Court of Common Pleas of Highland county, the said Mary J. Templin, Nancy Moore, Smith Moore, Chas. Templin, Ella Templin, Lewis Templin, Emily Templin and Stella Templin, and their legal representatives, are forever relieved from any and all liability for the payment of any and all extra taxes levied for the construction and maintenance of Free Turnpike No. 50 against their following described lands and personal property that were and are within one mile of said Free Turnpike No. 50, on the north side thereof, but beyond one half the distance from said Free Turnpike No. 50 to the Hillsboro and Marshall County Road (now occupied by Marshall Free Turnpike No. 54).
    “And plaintiffs say that the taxes levied as aforesaid against the lands and personal property of the aforesaid plaintiffs in civil action No. 4519, that are exempt from taxation by virtue of the aforesaid decree and order of the Court of Common Pleas of Highland county, Ohio, were levied against the following lands and personal property of the aforesaid plaintiffs, that lay and are within one mile of said Free Turnpike No. 50, and were and are within the reported bounds of said Free Turnpike No. 50, as reported by the road commissioners therefor to the board of county commissioners March 7, 1883.
    “Namely, against 89 acres and 120 poles of land belonging to the aforesaid plaintiff in action 4519, valued on the tax duplicate at $1,220 and the buildings thereon at $290, and against the personal property of Mary J. Templin, one of said plaintiffs, said 89 acres and 120 poles of land, being a part of a tract of 110 acres and 120. poles of land at the time of the making of the aforesaid decree of the Court of Common Pleas of Highland county, Ohio, standing on the tax duplicate in the name of N N. Templin.
    “ Plaintiffs say that there is a certain unimproved county road leading from the Furnace Road to the New Limestone State Road; that the same runs on the south side of, and within less than two miles of Free Turnpike No. 50, and is unconnected therewith.
    “And plaintiffs say that on the 1st day of February, 1888, Wm. E. Chrisman brought an action, No. 4705, in the Common Pleas Court of Highland county, Ohio, against J. M. Hiestand, as treasurer of Highland county, Ohio, to perpetually enjoin the said J. M. Hiestand as treasurer of Highland county, Ohio, and his successors in office, from collecting from him, the said Wm. E. Chrisman, or his legal representatives, any and all extra taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against his lands and personal property that lay within one mile of Free Turnpike No. 50, but beyond' one half the distance from said Free Turnpike No. 50 to the unimproved county road leading from the Furnace Road to the New Limestone State Road. And said Wm. E. Chrisman in his petition in said action No. 4705, averred that the aforesaid road, leading from the Furnace Road to the New Limestone State Road, was an unimproved county road, running on the south side and within less than two miles of Free Turnpike No. 50, and was unconnected therewith, and plaintiffs say that the said court upon a full and final hearing of said action No. 4705, found, among other matters and things, that said road leading from the Furnace Road to the New Limestone State Road was an unimproved county road, running on the south side of Free Turnpike No. 50, within less than two miles of the same, and was unconnected therewith, and that the said Wm. E. Chris-man was under and by virtue of the provisions of title 7, chapter 7, of the Revised Statutes of Ohio, entitled to a division of territory between said county road, leading from the Furnace Road to the New Limestone State Road, and said Free Turnpike No. 50, and that the taxes levied for the purpose of constructing Free Turnpike No. 50, against the lands and personal property of Wm. E. Chrisman, lying and being beyond one half the distance from Free Turnpike No. 50 to the aforementioned county road, were illegal and void.
    “ And said court decreed and ordered that the said J. M. Hiestand, as treasurer of Highland county, Ohio, and his successors in office, be perpetually enjoined from collecting from said Wm. E. Chrisman, or his legal representatives, any and all extra taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against his lands and personal property lying and being beyond one half the distance from Free Turnpike No. 50, to the aforementioned county road leading from the Furnace Road, to the New Limestone Road, namely, on all the lands and personal property of the said Wm. E. Chrisman, against which taxes were levied as aforesaid for the purpose of constructing and maintaining Free Turnpike No. 50. And plaintiffs say that the extra taxes levied as aforesaid for the aforesaid purpose, were levied against the lands and personal property of Wm. E. Chrisman, among others, that were and are within one mile of said Free Turnpike No. 50, on the south side thereof and were reported as within the bounds of said Free Turnpike by the road commissioners therefor.
    “ And plaintiffs say that the said Wm. E. Chrisman and his legal representatives, under and by virtue of said decree and order of the court- of common pleas in case No. 4705, are forever relieved from any and all liability for taxes levied for the purpose of constructing and maintaining Free Turnpike No. 50, against his lands and personal property aforesaid.
    “ Plaintiffs say, that said decree and order of said court in action No. 4705, has never been set aside, and is now of existing and binding force against E. O. Hetherington, as treasurer of Highland county, Ohio, and his successors in office. Plaintiffs say that there was reported for taxation and the levy made for the aforesaid purpose on their lands and personal property as follows: On the lands of George Carlisle on 6 acres and 30 poles of land in Massie’s survey 6401, and on 19 acres of land in Massie’s survey 6401. On the lands and personal property of John Carlisle, sen., on 111 acres in Means’ surveys 2739 and 3015, and on 92 acres and 80 poles in Means’ surveys 2739 and 3015, and on 100 acres in H. Massie’s survey 6041, and on 30 acres in J. Clemson’s survey 2769, and on personal property valued at $4,865. On the personal property of John Carlisle, jun., valued at $2,522. On the lands and personal property of John Ballentine on 162 acres in J. Clemson’s survey 2769, and on 14 acres in J. Clemson’s survey 2759, and on his personal property valued at $1,044, and on the personal property of G. M. Ballentine valued at $1,651.
    “ Plaintiffs say that they own no lands or personal property subject to taxation for the purpose of constructing and maintaining Free Turnpike No. 50, and that all extra taxes levied as aforesaid for the aforesaid purpose against their aforesaid lands and personal property are illegal and void. Plaintiffs say that they never signed any petition for said' Free Turnpike.
    “ And plaintiffs say that the uniform operation of the provisions of title 7, chapter 7, of the Revised Statutes of Ohio, in their application to the laying out, establishment and construction of Free Turnpike No. 50, and to the levying of extra taxes for constructing and maintaining the same, in this instance is broken, and that the extra taxes levied as aforesaid, for the aforesaid purpose, within the reported hounds of said Free Turnpike No. 50, are not levied by an uniform rule, as required by sec. 2, article 12 of the constitution of the state of Ohio, and that the application, in this instance, of the provisions of title 7, chapter 7, of the Revised Statutes of Ohio, to the laying out, establishment and construction of Free Turnpike No. 50, and to the levying of extra taxes for constructing and maintaining the same, is in violation of the requirements of sec. 2, article 12, of the constitution of the state of Ohio, that requires that all taxation be by an uniform rule, and is unconstitutional and void. Plaintiffs say that E. O. Hetherington was duly elected as treasurer of Highland county, Ohio, and is now the duly qualified and acting treasurer of said Highland county, and that the grand duplicate for the years 1887 and 1888 are now in his hands as treasurer as aforesaid, wherefore he is made party defendant.
    “ That the said E. O. Hetherington, as treasurer as aforesaid, threatens and will proceed to collect the extra taxes levied as aforesaid, for the aforesaid purpose, against the aforesaid lands and personal property of these plaintiffs, unless restrained by lawful authority.
    “And plaintiffs say that the collection of the aforesaid extra taxes levied for the aforesaid purpose, against their aforesaid lands and personal property from these plaintiffs, or any of them, during any or all the years, of the time of the aforesaid levy and extensions heretofore made, or that may hereafter be made, will work great and irreparable injury to these plaintiffs, and that they are without remedy at law.
    “ Wherefore plaintiffs pray that the said E. O. Hetherington, as treasurer of Highland county, Ohio, be temporarity restained from collecting from these plaintiffs, or any of them, any and all extra taxes levied as aforesaid for the aforesaid purpose, against any and all of their aforesaid lands and personal property.
    “ And that upon a final hearing of this action, E. O. Hetherington, as treasurer of Highland county, Ohio, and his successors in office, be perpetually enjoined from collecting from these plaintiffs, or any of them, or their legal representatives, any and all extra taxes, heretofore, or that may be hereafter levied against any of their aforesaid lands and personal property for the purpose of constructing, maintaining or repairing Free Turnpike No. 50, and for all further and proper relief, and their costs in this action.”
    To this petition there was a general demurrer. The demurrer was sustained, and the plaintiffs not desiring to plead further, judgment was rendered for the defendant. The circuit court, on petition in error, affirmed the judgment of the court of common pleas, and this proceeding is instituted to reverse such judgment of affirmance.

      Brock & Lytle, for plaintiffs in error.

      Newby & Morrow, for defendant in error.
   Dickman, J.

The road commissioners, in laying out and establishing Free Turnpike No. 50, established the bounds of the same to the full extent of one mile on each side thereof, and reported to the county commissioners all the real and personal property of the plaintiffs, among others, within one mile on the north side of the free turnpike as taxable for its construction and maintenance. On the north side of the free turnpike, and unconnected therewith, there was an unimproved county road, within less than two miles thereof; and on the south side of the free turnpike, within less than two miles thereof, and unconnected therewith, there was also an unimproved county road. For the purpose of constructing and maintaining the free turnpike, the auditor of the county, in compliance with an order of the county commissioners, levied a tax on the grand duplicate, against all the lands and personal property of the plaintiffs, among others, lying and being on the north side of the free turnpike, and within one mile of the same.

The tax was levied under the law regulating “ one mile assessment pikes,” embraced in sections 4774 to 4828 inclusive, of the Revised Statutes, section 4786 of which provides as follows : “ Extra taxes,, when levied as hereinbefore provided, shall be on real and personal property within one mile on each side of the free turnpike road, except.....that when any road improvement, or free turnpike road, built and completed under any of the turnpike laws, begins or terminates in the proposed free turnpike, or where any of such roads, or any toll-road, or unimproved state or county road, being unconnected with the same, runs upon either side of such proposed road, within less than two miles, then the taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads.”

It is contended that, by this section of the statutes, a special taxing district was created, of one mile on each side of the free turnpike road, and for the purpose of constructing and maintaining such road, extra taxes should be levied, if at all, on all- the real and personal property within the district; but, as the section provides that where an unimproved county road, unconnected with the turnpike road, runs upon either side thereof within less than two miles, such lands and personal property as lie beyond one half the distance of such roads, shall be exempt from taxation, though within the one mile taxing district; and as, by reason of such provision, all property in the taxing district is not taxed by a uniform rule, according to its true value in money, section 4786, in its application and operation in the present case, is in violation of section 2, of article 12, of the constitution. In this section, the constitution recognizes and enforces the principle of equality and uniformity in the imposition of public burdens, and when a taxing district is carved out for defraying the cost and expenses of a local improvement, all property within the district must be taxed by a uniform rule, except the specific property which the section provides may, by general laws, be exempted, from taxation.

What territory shall constitute the district for the purpose of taxation, may be provided for by the general assembly, in the exercise of its legislative power. It has been decided in Bowles v. The State, 37 Ohio St. 35, that the legislature, in the exercise of the general power of taxation, may create a special taxing district without regard to municipal or political subdivisions of the state, and may levy a tax on all property within such district, by a uniform rule, according to its true value in money, for the purpose of defraying the expenses of constructing and maintaining public roads therein.

The general assembly, by general law, in section 4786 of the Revised Statutes, has provided, that when extra taxes are levied for the purpose of constructing, improving and repairing a free turnpike road, the levy shall be on real and personal property within one mile on each side of such road, except that where an unimproved state or county road, unconnected with the same, runs upon either side of the proposed free turnpike road, within less than two miles, the taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads. The statute thus-provides for a taxing district of one mile in width on each side, coterminous with the turnpike, but subject to be contracted in width, wherever along the line of the turnpike an unconnected and unimproved state or county road runs within less than two miles. The language of the statute describes the taxing district, in designating the distance within which extra taxes are to be levied on lands on each side of the turnpike, and marks out the limits of such district where an unimproved state or county road runs at less than a certain distance.

The plaintiffs’ action rests upon the ground that the entire boundaries of the taxing district must embrace one mile of territory on each side of the free turnpike, and that the section of the statute under consideration, instead of narrowing the bounds of the district, where an unimproved state or county road runs within less than two miles, exempts from taxation, the lands and personal property lying beyond one half the distance between the county road and turnpike, although actually lying within the one mile taxing district. But in laying out and establishing a free turnpike road, the taxing district, in our view, may extend one mile on each side thereof, or a mile on one side and less than that distance on the other side; or on the same side of the turnpike, the limits of the district may be one mile at one point, and less than one mile at another point, as the conditions are found to exist which are provided for in the statute. The exemptions specified in section 4786, supra, are designed, we think, to contract the bounds of the taxing district according to the facts and circumstances of the case, and not to exclude from taxation any real or personal property that may lie within a district constituted in accordance with the statute. The road commissioners having exceeded their power, by extending the limits of the taxing district, and bringing within its bounds lands and personal property which could not be properly included therein, the want of uniformity in levying the extra tax within the district must be referred, not to an infirmity of the statute, as being repugnant to the constitution, but rather to a failure to comply with the requirements of the statute.

In section 4779 of the Revised Statutes, there is a proviso that the words “ bounds ’ of the road,” wherever used in the chapter entitled “ One-Mile Assessment Pikes,” shall be held to include so much land on either side of such road as may be charged with the extra tax levied for its construction and maintenance. The bounds of the road are thus made to represent the limits of the taxing district. But, section 4787 of the Revised Statutes provides : “ If the road commissioners report to the county commissioners that the extra taxes levied' within the bounds of the road are insufficient to make a good and substantial road, the county commissioners, if in their opinion the public interest requires it, may order the road commissioners to extend the bounds of the free turnpike road to one mile on either side of the same, when a majority of the resident 'land owners owning land within the bounds 'of the territory proposed to be extended sign a petition therefor.” It is evident that this language of the section has reference to a taxing district of which a portion, at least, may be less than one mile in width on one or both sides of the free turnpike, but which may be enlarged to. the width of one mile, when the extra taxes levied within the bounds of the road prove inadequate to make a good and substantial road.

At the time of the laying out and establishment of Free Turnpike No. 50, there was on the north side of the same, the unimproved county road leading from Hillsboro to Marshall ; and on the south side thereof; the unimproved county road leading from the Furnace Road to the New Limestone State Road — each county road being unconnected with, and within less than two miles of the turnpike. The bounds of the turnpike, or taxing district created for its construction and maintenance, could not be extended beyond one half of the distance of the turnpike from the respective county roads, except under the exigency stated in the statute. The lands and personal property that lay beyond one half the distance, not being within the boundaries of the turnpike, would not be taxable as property in the district, by the uniform rule of the constitution.

The decision in Fields v. Commissioners of Highland County, 36 Ohio St. 476, has been "cited in behalf of the plaintiffs. That case is not in conflict with, but rather in confirmation of the views which we have herein advanced. It was an action to enjoin the commissioners of Highland county from taking further steps towards the establishing of certain turnpike roads, under the act of March 20, 1879, entitled “An act to authorize the commissioners of certain counties to locate and construct turnpike roads.” Revised Statutes, §§ 8047-8057 inclusive. For the purpose of aiding in the construction of such roads, section 6 of the act authorized an additional levy annually, of not more than two mills on the dollar of valuation, on the grand duplicate of taxable property in the county, from year to year, until the completion of the road or roads. The proposed establishment of the roads in controversy was for county purposes, and the taxing district was therefore bounded by the county lines. Cooley on Tax., 2d ed., 141. It was contended that a large number of acres of land in the county had already been assessed for the construction of a large number of turnpikes in the county, and should, by virtue of the provisions of section 7 of the act, be exempt from bearing any of the burden of taxation necessary to the construction of the roads about to be located and established. The validity of the act was assailed, and was held to be in violation of the constitution, because lands in the same taxing district were, by the act, relieved from taxation, by reason of having been previously assessed. In the opinion, Boynton, C. J., says: “In our opinion it is clearly in conflict with section 2, article 12, of the constitution, which, with certain specific exceptions, requires all real and personal property to be taxed by a uniform rule, and according to its true value in money. ‘ Equality of burden is the principle of the constitution.’ There is to be ‘no rule that exempts some property and casts the burden of government upon the rest.’ Exchange Bank of Columbus v. Hine, 3 Ohio St. 43. This, section 7 of the act expressly does. Lands before assessed for similar improvements are exempted from taxation to the extent of the assessment previously made, and the burden from which such lands are thus relieved, is cast on the remaining property of the county.”

Finding no error in the record, the judgment of the circuit court is accordingly

Affirmed.