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    State ex rel. Attorney-General v. Shearer et al.

      Special school districts— When law creating, not of a general nature — Section 26 of article 2, of the constitution, construed.

    1. A law is not necessarily of a general nature by reason simply of its being upon a general subject.
    2. Special legislation upon a subject-matter in its nature local, is not prohibited by section 26 of article 2, of the constitution, which provides that “ all laws of a general nature shall have a uniform operation throughout the state,” notwithstanding the subject-matter is the subject of a general law.
    3. The subject of dividing territory into school districts, is, in its nature, local.
    Hence, the formation of a special school district from territory within the limits of a township, by special act, is not in conflict with section 26 of article 2, of the constitution. The State v. Powers, 38 Ohio St. 54, overruled.
    (Decided February 5, 1889.)
    Quo Warranto.
    The proceeding is instituted for the purpose of ousting the defendants from the exercise of the duties and functions of a board of education. They justify under an act of the general assembly passed April 14, 1888, (85 Ohio L. 541), entitled “ an act to establish a special school district in Osnaburg township, Stark county, Ohio.”
    The first section of the act describes the territory embraced within the special school district, which is to be called “ Maple-ton Special School District.” The second section provides that the special district “ shall be entitled to receive its proportionate share of school funds levied for incidental expenses, in accordance with the enumeration of the year 1887, of school children entitled to attend school; said funds being those now collected within the township or county treasuries, and shall be governed by such laws as now are, or may hereafter be, in force in relation to special school districts.”

      David K. ■Watson, attorney-general, for relator.

      Baldwin & Shields, for defendants.
   Spear, J.

The single ground for ouster is that the act constituting this special district is void in that it contravenes sec. 26 of article 2, of the constitution, which is : All laws of a general nature shall have a uniform operation throughout the state.”

If this objection is made clearly to appear, then it is the •duty of the court to so pronounce, and to grant the prayer of the petition. But if any doubt exists, it is the • duty of the court to uphold the act.

• The precise question is: Is this act one of a general nature; or is it, on the other hand, a local enactment? That it is competent for the general assembly lo pass local and special laws, is not questioned, nor is it believed that that body may not pass local laws in regard to subjects upon which it has already passed a general lawi As to certain subjects, other clauses of the constitution prohibit the passage of special acts, but the subject of schools is not one. Nor does it follow that a law which is local and special in the object to be accomplished, and in the form it has been made to assume, must be declared a general statute merely because the same result might have been reached by means of a general law. And, although a law be upon a general subject, it is not necessarily, a law of a general nature. The subject may be general while the purpose of the act may be special and local.

Of this character was the act brought in review in The State v. The Judges, 21 Ohio St. 1. The purpose of the act was to limit the compensation of the county treasurer, auditor, recorder, sheriff, probate judge and clerk of the county of Hamilton, and to have fixed by the judges of the court of common pleas of that county, the compensation of all deputies, clerks, etc., employed by those officers. The matter of fees to be paid county officers had been, long before, made the subject of a general statute which fixed fees for those officers throughout the state, and the subject was clearly a general one, yet this court held that the act in question was not a law of a general nature, but was intended to provide for a condition of things in its nature local to that county.

Of like character was an act passed March 24, 1876, the purpose of which was to regulate the police force in the city of Cincinnati, through a board of police commissioners, to be appointed by the governor. The constitutionality of the act was considered in Ohio v. Covington, 29 Ohio St. 102. This court held the act to be local and special in its nature, and therefore not in conflict with section 26 of article 2, of the constitution, although all the matters embraced were subjects of legislation by general law.

In McGill v. The State, 34 Ohio St. 228, this court reviewed the act of May 7, 1877, prescribing the manner of selecting juries in Cuyahoga county. It was not doubted that the matter of the selection of juries was a general subject in which the people of the state at large were interested, and that, since the organization of the state, it had been provided for by general laws; so that the law which provided a special mode of selecting juries in that county, was one treating of a general subject already embraced in general laws, making provisions applicable to all counties of the state, yet this court held that the act was not a law of a general nature, requiring uniformity of operation throughout the state, but ■ that it was designed to meet a special want in a particular county, and was not in conflict with the constitution.

It follows that if the act in question in this case can, consistent with the subject-matter and the provisions of the act itself, reasonably be regarded as one local in its nature, rather than general, the court’s duty to maintain it is clear. Nay, unless it clearly appears that it is general in its nature, and not local, it must be sustained. The form of the act, and the manner of its publication, show that it was intended as a special, local law, and we are to conclude that, in the judgment of the general assembly, there was sufficient reason, in the condition of things existing within the territory affected, to warrant provisions by special law. This special district is composed of territory of Osnaburg township, the territory of which, as we gather from the record, theretofore comprised one township district. The change contemplated by this enactment, was to create in that township a special district, the schools in which were to be controlled by a board of education, as schools in other special districts are.

In the general laws upon the subject of schools we find that section 3890 of the Revised Statutes, which in terms provides for township districts, also recognizes that a portion of a township may be a special district, and provision is made elsewhere in the statute for constituting such special districts. Sub-districts and joint sub-districts, are also provided for, and provision for consolidation of these districts is made. The idea pervading the'statute, as to this feature is, that the needs of the people of the different townships will be different ; that, while in one the education of the youth may be reasonably attained by constituting the whole territory into one district, in an adjoining township the same object can be better attained by dividing the territory into sub-districts, or by carving out of the territory of the township a portion into a special district, or, by reason of changed conditions, by the consolidation of sub-districts. This implies that the question of whether territory in a given locality shall be formed into one kind of a district, or another, will be determined by considerations of local convenience, and that no division by a rule which shall be fixed, arbitrary, and uniform, will meet the requirements of all sections. It is foreseen that changes will be necessary from time to time, and power is given to •boards of education to initiate such changes, and the same may •be brought about in any of the several localities without reference to or disturbance of, neighboring districts not geographically affected, or the schools within them. Clearly, then, in the judgment of the framers of the general law, divisions of territory into districts, is a matter of local concern, •and this policy has obtainad from a time long anterior to the .adoption of the present constitution. And that it has been the policy since is evidenced not only by the terms of the general law, but by the passage of more than one hundred and forty special acts creating and changing the boundaries of school districts.

The case of The State v. Powers, 38 Ohio St. 54, is cited as an authority controlling this case, and, if followed, it is prob.able that the relator’s contention must be sustained. It may not be out of place, however, to note a distinction between the enactment under review in that case, and the one we are •considering. The defendants, Powers and others, assumed to •act as a board of education of a special school district comprising an entire township, and created by consolidation of a village district within the township, with the remainder of the territory, which theretofore had comprised a township district; and the board was to be chosen, two from the territory comprising the village district, two from that comprising the township district, and two from the township at large. In •the opinion, special emphasis is laid upon the fact that under the general law there is no authority for extending the government of village ■ districts over the sub-districts of townships, or for consolidating village and township districts, in the manner provided in the special act, nor authority for organizing a board of education as therein provided. Without stopping to discuss the importance of this objection, attention is called to the fact that the act under review is open to no like objections, as it undertakes simply to do directly, by special act, what by the general statute, may be done in another way, viz.: create a special school district within the territory of a township, leaving the remainder of the territory to continue ás a township district.

But we do not incline to rest a decision of the case upon this distinction, and frankness requires that we consider the holding in the case cited, as to its other features. The opinion gives prominence to the clause of section 7, of article 1, of the constitution, which makes it “the duty of the general assembly to pass suitable laws to encourage schools, and the means of instruction,” and of section 2, of article 6, which requires that body to “ make such provision, by taxation or otherwise, as, with the income arising from the school trust fund, will secure a thoi'ough and efficient system of common schools throughout the state,” and draws the inference “that the subject 'of common schools is thus declared to be one of a general nature.” “ These schools,” continues the opinion, “ are sustained in part by a trust fund, in which every section, as well as every individual of the state, has a common interest. This is not all; the interest of every section and every individual is to be secured by a thorough and efficient system of schools, and, as if it were to guard against such special and local legislation as we find in this statute, it is expressly declared that such system shall extend ‘ throughout the state.’ ”

It may be conceded that the subject of common schools is one of a general nature. But does it, therefore, follow that everything that relates to common schools must be provided for by a general law? Obviously this would be impracticable. Nor is it apparent that the right of every section and of every individual to enjoy the benefit of the trust fund is more affected by a change of districts caused by a special law than by one brought about by means authorized by a general law. We agree that the trust fund is for the benefit of those who are to be educated. Hence, it is the duty of the general assembly, in obedience to the mandate of the constitution, to make such provision as will give the best attainable opportunity to the student for availing himself of the advantages secured by the fund thus created. If, in the judgment of the general assembly, this can be better done by special legislation with respect to the division of particular territory, than by a general rule,, it is difficult to see that such special provision is inconsistent with the spirit of the requirement, or that it interferes with the general design for providing means for instruction. The means by which territory may be divided into districts does not seem to inhere in the idea of a “ system of schools; ” it does not belong, as an attribute or quality, of such “ system.” Nor can we perceive that the forming of a special school district, as in this act provided, interferes with the working of the “ system of common schools.” Except the discussion 'in the opinion we are considering, this clause has not, so far as we are aware, received judicial notice or construction, and it is, perhaps, not necessary to attempt extended construction here. We may, however, with propriety, venture the suggestion that the “ system” provided for does not necessarily imply a fixed territorial division into districts. A “system” might be established by general rules fixing the character and grading of the schools, the scope of the education intended to be given, the character of the officers who shall control, and the-powers with which they shall be clothed, together with suitable provision for raising the necessary means to meet the general expenses, and for an equitable division of the funds so procured. These are general features, capable of being reasonably made uniform' throughout the state, while the question of division of territory, like that of the erection of school houses, and the procuring of apparatus and other property necessary for the use of the schools, would seem to be so far of local concern merely that special necessities might safely be left to be provided for by special enactments. The kind of school that shall be maintained, and the character of the education which may be received, are of general common concern, to be made uniform in order that the youth of the state may, as far as. practicable, be enabled to receive equal benefit from the trust fund and from the “system” established, while the pi’ecise place where these oppox-tunities shall be afforded sx’e, in their natux-e, local and tx’ansitory, and as to them it woxxld appear not to be necessary to control them absolutely by a rule which would be uniform in its operation throughout the state.

Upon the general subject here discussed, some light is thrown by the decisions of other states. The constitution of the state of California has a provision (section 11, of article 2), identical with section 26 of article 2 of our constitution. In People v. Railroad Co., 43 Cal. 398, the court gives a construction to the clause referred to in consonance with the views hereinbefore expressed, and distinctly holds that whether a law is of a general or special nature depends, in a measure, upon the legislative purpose discoverable in its enactment,” and “ that the constitution does not prohibit a special act, because the subject with which it deals might have been the subject of a general law.”

The constitution of the state of Kansas (section 17 of article 2), has a like provision, which is construed in The State v. Hitchcock, 1 Kansas, 178, and in Beach v. Leahy, Treas., 11 Kansas, 23. See also, Gentile v. The State, 29 Indiana, 409; The State v. Tucker, 46 Indiana, 355; The State v. Court of Boone Co., 50 Missouri, 317; The State v. Court of New Madrid, 51 Missouri, 83, and Commissioners v. Shields, 62 Missouri, 247. See also, Ruffner v. Commissioners, 1 Disney, 196.

The decision in The State v. Powers, supra, was made by a majority of the court-, two of the judges dissenting. For the judgment of the concurring judges (as well as for that of their equally learned associates who did not concur,) we entertain the very highest respect, and it is with great reluctance that we feel compelled to announce a conclusion not in harmony with’their decision. But we are of opinion that the case was not correctly decided, and inasmuch as a large number of -school districts in the state have been formed by local enactments similar to the one under review here, and are now existing by virtue of the authority thus given, we feel it our duty to pronounce the law as we believe it to be; especially as it is not apparent that any practical inconvenience will result from such course.

Our conclusion is that the act in question is not clearly in conflict with the constitution, and that the prayer of the petition should be refused.

Petition dismissed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

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    Rolling Mill Co. v. Corrigan.

      >Gantributanj negligence — Application of the doctrine to children— What is “ ordinary care," when applied to infants — Degree of care required of them — Duties of employers to infant employes — What does not amount to contributory negligence an the part of the latter.

    1. In the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them, is that degree of care which children of the same age, of ■ordinary care and prudence, are accustomed to exercise under similar circumstances.

      '% Persons who employ children to work with, or about dangerous machinery, or in dangerous places, should anticipate that they will exercise only such judgment, discretion and care as is usual among children of the same age, under similar circumstances, and are bound to use due care, having regard to their age, and inexperience, to protect them from dangers incident to the situation in which they are placed; and as a reasonable precaution, in the exercise of such care in that behalf, it is the duty of the employer, to so instruct such employes concerning the dangers connected with their employment, which, from their youth and inexperience they may not appreciate or comprehend, that they may, by the exercise of such care as ought reasonably to be expected of them, guard against and avoid injuries arising therefrom.
    .'3. Such employe, who has-not been so instructed, and who, while in the discharge of his duty as he understands it, suffers an injury in consequence of the employer’s negligence, may maintain an action against the employer therefor, notwithstanding, that, by reason of his youth and inexperience, and the failure of the employer to properly instruct him, he did some act, in the perfosmance of his duty according to the judgment and knowledge he possessed, which contributed to the injury, but which he did not know, and was not advised, would be likely to injure him.
    (Decided February 26, 1889)
    Error to the Circuit Court of Cuyahoga County.
    The plaintiff below, John Corrigan, an infant under the age ■of fourteen years, by his guardian Thomas Corrigan, commenced his action in the Court of Common Pleas of Cuyahoga County, .against The Cleveland Rolling Mill Company, to recover ■damages for a personal injury, which he suffered while cmployed by the company in its mill, and which, he charges was. caused by the company’s negligence. His petition, after stating the appointment of the guardian, the incorporation of the-defendant, and that in his employment he was placed by the-defendant, under the control and direction of its foreman, alleges that he was “ by the defendant, through its foreman, negligently and carelessly placed in a very dangerous and hazardous-place and position, and then and there, by the defendant carelessly and negligently ordered and directed to engage in a very hazardous undertaking and business; that is to say, the plaintiff' was so ordered, put and placed by the defendant, carelessly and negligently as aforesaid, at defendant’s rolling mill in a narrow and limited space in dangerous and hazardous proximity to dangerous moving and complicated machinery, revolving wheels and shafts, on one of which shafts a long loose belt was by the defendant carelessly and negligently suffered and allowed to be, become and continue hanging and swinging in irregular motions and movements, effected by the revolution and revolving motion of the said shaft ou which it was» so hanging; and by the defendant, through its said foreman,, carelessly and negligently, plaintiff was ordered, required and directed to then and there turn the steam engines of the defendant on and off so as to start, stop and regulate the motion of the same, in order to do which, plaintiff had to reach up-above his head to turn the stop valve or faucet there being, and so effect the purpose aforesaid, under and in obedience to-said orders and directions. And plaintiff says that in so-doing, and in order thereto, it became and was necessary for him to stand in dangerous proximity to said revolving shaft-on which said belt was so hanging anl moving, and in dangerous proximity to said belt, so that said place, business, situation and circumstances then and there attending the execution of said order and direction so given and made as aforesaid, as well as the execution thereof, was extremely dangerous- and hazardous to him, the plaintiff, the defendant well knowing and being in duty bound to know the same; while the-plaintiff, by reason of his extreme youth, tender years and inexperience, had not the opportunity nor capacity to in■spect the situation, nor in any degree to apprehend, understand or comprehend the premises, danger or dangerous n'ature ■of the situation aforesaid, and was ignorant thereof, which the defendant well knew, and was in duty bound to know; and while the plaintiff was executing said order and direction given by the defendant, and in obedience thereto (the defendant having carelessly and negligently neglected to advise or ■caution the plaintiff in the premises or any part thereof,) and while the attention of the plaintiff was so necessarily engaged in said business, acting in obedience to said order and direction, and without any fault on his part, but by and through the negligence of the defendant, and by reason thereof, the left foot, limb and leg of the plaintiff were unavoidably caught in said belt, and thereby turned to and brought against said revolving shaft last named, and run over and turned around the same, under and by said belt and revolving shaft, and so the bones and the flesh thereof crushed, mangled and broken many times from his foot to his knee, and the plaintiff shocked, ■strained and injured in his body and limbs, so thatthé plaintiff became and was by reason thereof, a long time sick, sore, lame and diseased, his said limb necessarily had to be and was amputated, the plaintiff permanently injured and crippled for life, put to great suffering and anguish, was compelled to suffer and has suffered the expense of-dollars in trying to cure himself, and is otherwise injured, to his damage in the sum ■of ten thousand dollars.”
    The answer admits that the plaintiff was by the defendant placed under the control of its foreman, by whom the plaintiff “ was directed to attend to the turning on and off of the steam at a steam engine of defendant’s, so as to start and stop it, in order to do which he had to reach up and turn the stop valve or faucet; and that he was so engaged on the day of receiving said injury; that in performance of said duty it was necessary for him to stand near a shaft of said engine, which revolved when the engine was in motion, and that at the time the injury occurred a short belt was hanging loose upon said shaft; that his leg was crushed by said shaft so that it had to be amputated.”

      The answer denies the other allegations of the petition, and avers that “the injury to John Corrigan occurred solely through his own fault and negligence, and without any fault,, negligence or want of due care on defendant’s part.”
    The cause was tried to a jury, and the only exceptions taken in the progress of the case, as disclosed by the record, appear therein as follows :
    “ And the jury thereupon (on December 15, 1886,) retired, and afterwards (on December 17, 18.86,) came into court and stated that they had not agreed, and requested further instruction from the court, and made their request in writing as follows:
    “ If we find that the defendant did not use that care, caution and judgment that their relations to the plaintiff required in placing the plaintiff in a position that resulted in his injury, and that the boy contributed thereto ignorantly, then can we find for the plaintiff?
    “The Court. I.will say to you upon this subject, gentlemen, it was the duty of the plaintiff to use ordinary care and prudence; just such care and prudence as a boy of his age, of ordinary care and prudence, would use under like or similar circumstances. You should take into consideration his age, the judgment and knowledge he possessed. If not understanding all the dangers and hazards of the situation in which he was placed by the foreman, and you find it was a dangerous and hazardous situation in which to place a boy of his age, judgment and experience, it was the duty-of the foreman to instruct him in respect thereto, that he might conduct himself so as to guard against such peril; and if he was injured by reason of the neglect or carelessness of the defendant, and John Corrigan, by reason of his youth and want of judgment as to the perils of the position, did some act in the discharge of his duty as he understood it, which also contributed to the injury, and which he did not know to be likely to injure him,, and had not been properly advised and instructed thereto by the foreman, he is entitled to recover.
    “And thereupon defendant excepted to the charge given to the jury on the occasion of their return into court asking further instructions as aforesaid. And thereupon the jury retired, and afterwards returned a verdict for plaintiff, and assessed his damages at $5,000.00; and thereupon defendant filed its motion for anew trial of this cause, which motion the-court on consideration overruled; to which overruling of said motion, the defendant thereupon excepted.”
    Judgment having been rendered on the verdict, and affirmed by the circuit court, the Rolling Mill Company filed its petition in error in this court to reverse both judgments.

      Williamson, Beach & Gushing, for plaintiff in error.
    The court erred in the statement of the duty resting on the plaintiff, and in instructing the jury that defendant’s duty toward plaintiff should be measured by the amount of judgment which plaintiff actually possessed. Sullivan v. India Mfg. Co., 113 Mass. 396; Fones v. Phillips, 39 Ark. 17 ; 26 Am. Law Reg. 737; It was error to leave to the jury to decide whether Corrigan’s act, which contributed to his injury, was done by him, “ in the discharge of his duty, as he understood it.” Breese v. State, 12 Ohio St. 155; Bain v. Wilson, 10 Ohio St. 15. The answer of the court to the question of the jury was wrong and misleading, because it left it to the jury as an open question, whether Corrigan did or did not know his contributing act to be likely to injure him. Ciriack v. Woolen Co., 148 Mass. 182; Nagle v. Railroad, 88 Pa. St. 30; Achtenhagen v. Watertown, 18 Wis. 332 ; Connell v. Miller, 19 Law Bull. 22.

      Robison & Rogers, for defendant in error.
    If defendant knew, or had reason to apprehend special dangers from his acts or omissions, or had greater capacity for understanding the harmful results likely to flow from his conduct than the injured person had, he will be liable, notwithstanding acts or omissions on the part of the injured person, that with equal knowledge of the danger, or capacity to comprehend it would have been contributory negligence. 4 Am. & Eng. Ency. p. 40, par. 19, and cases there cited; Railroad v. Fitzpatrick, 31 Ohio St. 479. And he may recover for injuries resulting from dangers that, by reason of youth, immaturity and inexperience, he was unable fully to apprehend, and the perils of which had not been explained to him. Railway Co. v. Whipple, 18 Pac. Rep. 730; Baker v. Railway, 35 N. W. Rep. 836; W. & A. R. Co. v. Young, 7 S. E. Rep. 912; Coombs v. Cordage Co., 102 Mass. 572; Glover v. Dwight Mfg. Co., 18 N. E. Rep. 597; Atkins v. Merrick Thread Co., 142 Mass. 431; Jones v. Mining Co., 66 Wis. 268; Whitelaw v. Railway, 16 Lea. (Tenn.) 391; McGowen v. La Plata Co., 9 Fed. Rep. 861; Wood on Master & Servant, secs. 349-50.
   Williams, J.

The only questions presented in this case, :are those arising upon the special instructions given by the ■court in response to the request of the jury. These instructions, the plaintiff in error contends, are erroneous in their entirety, and in detail.

First, it is claimed that the court erred in the statement of the plaintiff’s duty, in the opening proposition of the charge, wherein the jury were instructed that “it was the duty of the plaintiff to use ordinary care,” which the court defined to be, “just such care as boys of that age, of ordinary care and prudence, would use under like circumstances,” and that the jury “should take into consideration the age of the plaintiff, and the judgment and knowledge he possessed.” We have found no decision of this court upon the subject of the contributory negligence of infants, or the measure of ■care required of them. Elsewhere the decisions are conflicting. Each of three different rules on the subject, has found judicial sanction. One rule requires of children, the .same standard of care, judgment and discretion, in anticipating and avoiding injury, as adults are bound to exercise. Another wholly exempts small children from the doctrine of contributory negligence. Between these extremes, a third, and more reasonable rule, has grown into favor, and is now supported by the great weight of authority, which is, that a child is held to no greater care, than is usually possessed by children ■of the same age. Authors and judges, however, do not always employ the same language in giving expression to the rule. In Beach on Contributory Negligence, sec. 46, it is thus expressed: . “An infant plaintiff, who, on the one hand, is not so young as to escape entirely all legal accountability, and on the other hand, is not so mature as to be held to the responsibility of an adult, is, of course, in cases involving the question of negligence, to be held responsible for ordinary care, and ordinary care must mean, in this connection, that degree of care and prudence which may reasonably be expected of a child.” The decisions enforcing this rule, that children are to be held responsible only for such degree of care and prudence as may reasonably be expected of them, taking due account of their age and the particular circum•stances, are very numerous. “ It is well settled,” says Mr. Justice Hunt in Railroad Company v. Stout, 17 Wal. 657, “ that the conduct of an infant of tender years is not to be j udged by the same rule which governs that of an adult. * * * The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case, by the circumstances of that case.” In Sherman & Redfield on Negligence, sec. 73, it is said to be “ now settled by the overwhelming weight of authority that a child is held, as far as he is personally concerned, only to the exercise of such care and discretion, as is reasonably to be expected from children of his own age.” Another author says, “a child is only bound to exercise such a degree of care as children of his particular age may be presumed capable of exercising.” Whittaker’s Smith on Neg. 411.

This rule appears to rest upon sound reason as well as authority. To constitute contributory negligence in any case, there must be a want of ordinary care, and a proximate connection between such want of care and the injury complained ■of; and ordinary care, is that degree of care, which persons of ordinary care and prudence, are accustomed to use under similar circumstances. Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. Hence ordinarily prudent men, reasonably expect that children will exercise only the care and. prudence of children, and no greater degree of care should be required of them than is usual under the circumstances, among careful and prudent persons of the class to which they belong. We think it a sound rule, therefore, that in the application of the doctrine of contributory negligence to children, in actions by them or in their behalf for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults, and, while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them, is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise, under similar circumstances.

That portion of the charge of the court under discussion, is in substantial conformity to this conclusion. The care and prudence which a boy of the plaintiff’s age of ordinary care and prudence “would use under like and similar circumstances," as expressed in the charge, is such care as “is reasonably to be expected from a boy of his age," or “ which boys of his age usually exercise,” as the books express it. No different effect is given to the charge, of which the plaintiff in error can complain, by the direction to the jury, to take into consideration, the age of the boy “and the judgment and knowledge he possessed." This did not diminish the degree of care x-equired by the previous portion of the instruction.

It is next insisted, that the court erred in charging the jury, that it was the duty of the defendant’s foreman to instruct •the plaintiff in regard to the dangers of his employment. The paragraph of the charge is as follows:

“ If not understanding all the dangers and hazards of the situation in which he was placed by the foreman, and you find it was a dangerous and hazardous situation in which to place a boy of his age, judgment and experience, it was the duty of the foreman to instruct him in respect thereto, that he might conduct himself so as to guard against such peril.”

This portion of the charge was pertinent to the case. The answer admits that the plaintiff, at the time of his injury, was employed by the defendant in the rolling mill, and placed under $he control of its foreman, who directed him to attend to the turning on and off of the steam at the steam engine; to do which, he had to stand near a shaft of the engine, which revolved when the engine was in motion, and reach up to turn the stop-valve, which was necessary to put the machinery in motion, or stop it. It further admits, that, at the time the injury occurred, a belt was hanging loose upon the shaft, and that the plaintiff’s leg was crushed by the shaft. It was shown by the evidence, that the plaintiff was less than fourteen years of age, and had been engaged at that employment, but a few days; and that he was placed there by the foreman in the midst of rapidly moving and noisy machinery; that his employment required his constant attention to regulate the speed of the. machinery, and that the belt, which hung suspended on the shaft near him, was given such motion by the shaft, that it would come near him and in close proximity to his face; and while the machinery was in motion, the plaintiff’s foot in some way became entangled in the hanging belt, by which means the injury was produced. There was also evidence tending to prove the other allegations of the plaintiff’s petition. The defendant’s foreman, who placed the plaintiff in the position where he received his injury, must have known of the loose hanging belt on the shaft, which could easily have been removed in a few moments and without expense. It is evident that he knew the situation in which he placed the plaintiff, was one of danger, which he might, with a small amount of trouble on his part, have pointed out and explained to the plaintiff.

The almost universally accepted doctrine is, that the care to be observed to avoid injuries to children, is greater than that in respect to adults. That course of conduct, which would be oi’dinary care when applied to persons of mature judgment and discretion, might be gross, and even criminal negligence, toward children of tender years. The same discernment and foresight, in discovering defects and dangers, can not' be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them.

Judge Cooley in his work on Torts, (p. 652), says on this subject: •

The master may also be guilty of actionable negligence in exposing persons to perils in his service which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most frequently in the employment of infants. It has been repeatedly held that the case of an infant is no exception to the general rule which exempts the master from responsibility for injuries arising from the hazards of his service. But while this is unquestionably true as a rule, it would be gross injustice, not to say absurdity, to apply in the case of infants the same tests of the master’s culpable negligence which are applied in the case of persons of maturity and experience. It may be ordinary caution in one case ■ to apprise the servant - of the danger he must guard against, while in the case of another, not yet beyond the years of thoughtless childhood, it would be gross and most culpable, if not criminal, carelessness for the master to content himself witli pointing out dangers which were not likely to be appreciated, or if appreciated, not likely to be kept with sufficient distinctness and caution in mind, and against which, therefore, effectual protections ought to be provided. The duty of the employer to take special precautions in such cases, has sometimes been very emphatically asserted by the courts.”

The law “ puts upon a master, when he takes an infant into his service, the duty of explaining to him fully the hazards and dangers connected with the business, and of instructing him how to avoid them. Nor is this all; the master will not have discharged his duty in this regard unless the instructions and precautions given are so graduated to the youth, ignorance, and inexperience of the servant as to make him fully aware of the danger to him, and to place him, with reference to it, in substantially the same situation as if he were an adult. If the master, or his vice-principal, orders the infant servant to perform a duty in a manner attended with peculiar hazard, and the servant is injured while so doing, the liability of the master is not an open question.” Thompson on Neg. 978.

In Sullivan v. India Manufacturing Co., 113 Mass. 396, it is said that, “It may frequently happen that the dangers of a particular position for, or mode of doing work, are great, and apparent to persons of capacity and knowledge of the subject, and yet a party from youth, inexperience, ignorance, or general want of capacity may fail to appreciate them. It would be a breach of duty on the part of a master to expose a servant of this character, even with his own consent, to such dangers, unless with instructions or cautions sufficient to enable him to comprehend them, and to do his work safely, with proper care on his own part.”

It is distinctly held in Whitelaw v. Railroad Company, 16 Tenn. 391, that it is the duty of the master, to give such warning, advice and “instructions to a youthful and inexperienced employe as would enable him, with the exercise of ordinary care, to perform the duties of his employment with safety to himself.” See also, Jones v. Florence Mining Co., 66 Wis. 268.

It may be safely laid down as a general rule, supported by authority, that persons, who employ children to work with, or about dangerous machinery, or in dangerous places, should anticipate that they will exercise only such judgment, discretion and care, as is usual among children of the same age, under similar circumstances, and are bound to use due care, having regard to their age and inexperience, to protect them from the dangers incident to the situation in which they are placed; and as a reasonable precaution, in the exercise of such care in that behalf, it is the duty of the employer, to so instruct such employes, concerning the dangers connected with their employment, which, from their youth and inexperience they may not appreciate or comprehend, that they may, by the exercise of such care as ought reasonably to be expected of them, guard against and avoid injuries arising therefrom.

It is finally urged that there was error in that portion of the charge, by which the jury were instructed that if the plaintiff was injured in consequence of the defendant’s negligence, and he, “ by reason of his youth, and want of judgment as to the perils of his position, did some act in the discharge of his duty as he understood it, which also contributed to his injury, but which he did not know to be likely to injure him, and he had not been properly advised and instructed in regard thereto,” he could recover.

It is first insisted, that the court, having informed the jury in what event the plaintiff was entitled to recover, they should also have been instructed under what circumstances the defendant would be entitled to the verdict. But since the attention of the court does not appear to have been called to this oversight, if it be one, and no request was made by counsel for such instruction, if the charge given is otherwise unobjectionable, the mere omission to give the further instruction referred to, is not sufficient ground for reversing the judgment.

This proposition of the charge is sustained by the authorities already cited, and is clearly within the doctrine of Coombs v. New Bedford Cordage Company, 102 Mass. 572.

“ The question in such cases,” says the Supreme Court of Massachusetts, “is not of due care’on the part of the plaintiff, but whether the cause of the injury was one of which he knowingly assumed the risk, or one of which, by reason of his incapacity to understand and appreciate its dangerous character, or the neglect of the defendants to take due precautions to effectually inform him thereof, the defendants were bound to indemnify him against the consequences.”

But, if it be a question of due care on the part of the plaintiff, the conclusion must be the same ; for a plaintiff’s right to recover, is not affected by his having contributed to the injury, if he was without fault in doing so. When it is shown that the defendant has been negligent, and his negligence has caused the plaintiff’s injury, the latter is entitled to recover, unless it appear that he has been negligent in respect to the matter complained of, and might have avoided the consequences of the defendant’s negligence. His conduct, contributing to his injury, must, to defeat his action, amount to at least ordinary negligence, that is, want of ordinary care. Hence, notwithstanding the plaintiff below may have ignorantly contributed to the injury he sustained, if he was not guilty of negligence in so doing, he might, nevertheless, maintain his action. It is not apparent how, in the case stated in the instruction to the jury, the plaintiff could be in fault, unless his extreme youth and inexperience be a fault. Ignorance may be a misfortune, but when it is not willful, and no duty arises to be informed, with the means of information at hand, it is not negligence of which the person charged with the duty of giving proper instructions on the subject, which he failed to perform, can complain or take advantage.

The instruction negatives any inference of negligence; for according to it, to enable the plaintiff to recover, it was necessary for the jury to find, that he did not know that the act which he did, that contributed to his injury, was likely to injure him, and that this want of knowledge was owing to his age and lack of judgment, and the failure of the defendant to properly instruct him; and that the act so done by him, was in the discharge of his duty as he understood it. If, as al-» ready seen, it is 'the duty of persons employing children in dangerous situations, to properly instruct them concerning the dangers, which on account of their youth and inexperience they may not understand, it would seem to follow, as a necessary conclusion, that such employe, who has not been so instructed, and who, while in the discharge of his duty as he understands it, suffers an injury in consequence of the employer’s negligence, may maintain an action against his employer therefor, notwithstanding that, by reason of his youth and inexperience, and the failure of the employer to properly instruct him, he did some act, in the performance of his duty according to the judgment and knowledge he possessed, which contributed to the injury, but which he did not know, and was not advised would be likely to injure him.

When the whole instruction is taken together, wherein the jury were at the outset advised, that it was the duty of the plaintiff to use ordinary care, it is obvious they could not well have been misled.

Judgment affirmed.


author: Dickman, J.

text:
    Cincinnati v. Seasongood.

      Street improvement — Special assessment — Retroactive law.

    A municipal corporation having through its proper boards and officers passed a resolution and ordinance to improve a street, in its assessment' of the cost and expense of the improvement upon the abutting property, it should be governed by the ‘law in force at the time of the passage of its improvement ordinance, with respect to the manner of assessment and the rights and liabilities of the owners of abutting property.
    (Decided February 26, 1889.)
    Error to the Circuit Court of Hamilton County.
    Adolph J. Seasongood and Louis Seasongood, executors of Jacob Seasongood, and Louis Heidelbach, executor of Phillip Heidelbach, the defendants in error, brought their action in the court of common picas, against the city of Cincinnati, -and E. O. Eshelby, Comptroller of Cincinnati, to enjoin the collection of an assessment for a street improvement claimed to be excessive. The original petition reads as follows :
    “ The plaintiffs say that the city of Cincinnati, defendant, is a city of the first grade and first class under the Municipal Laws of Ohio, and that E. O. Eshelby is the Comptroller of said city.
    “ They are the executors of Jacob Seasongood, deceased, and of Philip Heidelbach, deceased, as stated in the caption, whose estates are jointly the owners of the following property: being a lot on the S. E. Cor. of Third and Main streets, Cincinnati, between Pike street and a point on Third street, 252 feet east of Smith street, and lying lengthwise on Third street 104.50 feet, and 36 feet '8 inches in width.
    “ Plaintiffs further say that on June 15th, 1885, the said city, by its board of Public Works resolved that it was necessary to improve said Third street between Butler street and a point on Third street 252 feet east of Smith street with granite blocks, one-hálf the expense to be paid by said city, and one-half to be paid by the owners of property bounding and abutting thereon, by an assessment to be levied by the foot front, and if not paid in cash, to be paid in ten equal annual installments with interest thereon, under an act entitled ‘An Act supplementary to Section 2293, Revised Statutes of Ohio/ passed April 25, 1885, according to plans and profiles referred to in said resolution as being on file in the office of the Engineer of said city, said portion of Third street having been previously improved under the direction of said city, at the ex.pense of abutting owners with bowlders, and being at the time thus improved, and in use by the public.
    “On the 26th day of October, 1885, the Board of Public Works of said city, on behalf of said city, passed an ordinance after due publication of said resolution, to improve said part of Third street, omitting the square between Pike and Butler, with granite blocks according to the terms of, and in pursuance of) said resolution of June 15, 1885, and in said ordinance it -was provided that the expenses of said improvement including interest on bonds, if they be issued, shall be assessed per front foot upon the property abutting thereon, according to the laws and ordinances on, the subject of assessments, and on----day of September, 1886, after due advertising for bids, the said city entered into contract for the improving of said street between the points named, to-wit: from Pike street to a point on Third street, 252 feet east of Smith street, according to the terms of said resolution (with the square between Pike and Butler omitted), and the ordinance, and said improvement was so made and completed and was accepted by said city on August 3d, 1887.
    “The total cost of said improvement was $115,081.56, one-half of which was paid by the city, and one-half, $57,540.78 was assessable upon the property of the abutting owners, which cost includes advertising and engineering in addition to the contract price. The actual number of feet frontage is 8988.61 feet.
    “ On August 12,1887, the Board of Public Affairs passed an assessing ordinance on the abutting property for the collection of one-half of the costs, and assessed each front foot of actual frontage $6.401521 per foot) if paid in cash, or if paid in installments then for one-tenth of said assessment with interest on the deferred installments at 5 per cent, per annum per foot front.
    “Plaintiffs further say that in making said assessment and in apportioning the amount of the abutting property of plaintiffs, the assessment was made upon the entire lengthwise actual frontage of said lots without first fixing the front of said lots to the usual depth of lots by the average of two blocks, so as to be a fair average of the depth of lots in the neighborhood, and the assessment, as now made, is on the full lengthwise frontage of said lots.
    “ Plaintiffs further say that the assessable frontage of their lot, when fixed according to the average of lots, would be 60.2 feet instead of 104.50 feet; and that the assessable frontage of the part of Third street improved would be in all 8891.14 feet instead of 8988.61 feet, the basis adopted by said city. And that the rate of the cash assessment per foot front would be $6.4717 instead of $6.401521 as fixed by the assessing ordinance, and that the cash assessment of plaintiffs would be as revised $393.60 instead of $668.96, and the assessment on the ten year plan would be less in the same proportion if revised accordingly.
    “ Plaintiffs further say that the defendants insist upon the collection of said assessment as now made and apportioned to their lot, and they refuse to change or amend it orto receive any assessment or installment unless the full amount is paid; and defendants say that unless the full amount is paid as assessed and apportioned they will add a penalty thereto, and for the purpose of collecting the same by summary process and by sale of their property, they will certify the assessment to the auditor of the county, who .will place it upon the tax duplicate of the county with penalty, and will so force their collection by the sale of their property unless restrained therefrom by the injunction of this court which is the plaintiff’s only remedy.
    “ Wherefore, plaintiffs pray for a perpetual injunction against defendants, restraining them from collecting or attempting to collect any part of said assessment in excess of $393.60, and for all other proper relief.”

      To this petition there was a general demurrer, which the court overruled. The defendants not desiring to plead further, and the cause being submitted to the court upon the pleadings, the court found the allegations of the petition to be true, “ and that the assessable frontage of plaintiffs’ lot at the south-east corner of Third and Main streets, Cincinnati, for the improvement of Third street with granite, is 60 1-5 feet instead of 104.50 feet as now assessed ; and that the cash assessment of plaintiffs’ lot should have been $393.60, instead of $668.96.”
    It was therefore ordered, adjudged and decreed that the assessment of plaintiffs’ lot in excess of $393.60 and interest on the several installments, if said sum be paid in installments, “be and the same is declared void;” and that the defendants be perpetually enjoined from collecting or attempting to collect any part of said assessment in excess of the sum named if paid in cash, or including the interest thereon if paid in installments, and that said assessment be revised accordingly.
    On petition in error by the defendants, the circuit court affirmed the judgment of the court of common pleas, and to reverse such judgment of affirmance this proceeding is instituted.

      Horstman, Hadden, Foraker & Galvin, for plaintiffs in error.

      W. M. Ampt and F. C. Ampt, for defendants in error.
   Dickman, J.

The improvement of Third street in the city of Cincinnati, which gave rise to the special assessment under consideration, was made under the act of April 25, 1885 (82 Ohio L. 156), which authorizes the Board of Public Works in cities of the first grade of the first class, to cause any of the streets, avenues or highways of such city to be improved with granite block, asphalt pavement or other material. The enabling statute provides, that one-half of the cost of any such improvement shall be paid by the city at large, and that one-half of the entire cost of such improvement shall be assessed upon the parcels of land bounding or abutting upon the improvement, in the manner provided by law. And in making such improvement, the Board of Public Works is to have and exercise all the powers and perform all the duties of council, in the prosecution of the work or furnishing materials therefor, the making and levying assessments therefor, and the enforcement and collection thereof.

On June 15, 1885, the Board of Public Works of Cincinnati, in compliance with the provision of the statute, declared by resolution the necessity of improving a part of Third street with granite blocks; and on October 26, 1885, in behalf of the city, passed an ordinance to make such improvement in accordance with the terms of such resolution. The ordinance provided, that one-half of the expense of the improvement should be assessed per foot upon the property abutting thereon, according to the laws and ordinances on the subject of assessments. In the year 1886, the city entered into a contract for improving the street, and the improvement was completed and accepted on August 3, 1887.

At the times when the resolution declaring it necessary to improve, and the ordinance to improve were passed, and also when the contract for the improvement'was made, the law governing special assessments, enacted March 27, 1884 (81 Ohio L. 86) provided as follows:

Section 2269. * * * If there is land not sub-divided into lots, the council shall fix the value of the lots or the value of the front of such land to the usual depth of lots by the average of two blocks, one of which shall be next adjoining on each side, and if there are no blocks so adjoining, the council shall fix the value of the lots or lands to be assessed so that it will be a fair average of the assessed value of other lots in the neighborhood; and if in making a special assessment by the foot front, there is land bounding or abutting upon the improvement not sub-divided into lots, or if there be lots numbered and recorded, bounding or abutting on said improvements and lying lengthwise of said improvements, the council shall fix, in like manner, the front of such land to the usual depth of lots, so that it will be a fair average of the depth of lots in the neighborhood which shall be subject to such assessment.”

This statute was amended March 11, 1887 (84 Ohio L. 72), by omitting from the section the clause, “ or if there be lots numbered and recorded, bounding or abutting on said improvements and lying lengthwise of said improvements.” After such amendment-: — on August 12, 1887 — an assessing ordinance was passed to defray the cost of the improvement. In levying the assessment, and in apportioning the amount to the lot of the defendants in error, the assessment was made upon the entire lengthwise frontage of the lot on Third street, without first fixing the front of the lot to the usual depth of lots by the average of two blocks, so as to be a fair average of the depth of lots in the neighborhood. Under the statute as amended March 11, 1887, the assessable frontage of the defendants’ lot was held to be 104.50 feet, and the cash assessment $668.96, whereas, under the operation of the act of March 27, 1884, the assessable frontage would have been -only 60.2 feet, and the cash assessment $393.60 only.

The material question, therefore, presented in this cause by the petition and demurrer is, under what law should the assessment have been made; whether the act of March 27, 1884, which was in force prior to and at the time of the passage of the ordinance to improve, should have been applied, or the law as amended March 11, 1887, after the passage of the ordinance to improve, but prior to the passage of the assessing ordinance.

The law contemplates that before the ordinance to make the improvement is passed, there shall be certain preliminary proceedings. Such ordinance is the resultant of those proceedings, and evidences the final determination of the property-owners, through their public agents, to assume whatever burdens may be entailed upon them by the law in force when the improvement ordinance is passed. To enable the city to determine whether it is best to undertake the improvement — to afford persons interested an opportunity to be heard, and if desired, to protest or submit objections to the work, the necessity of the improvement is to be declared by resolution, and notice of the resolution brought home to the abutting owners. Plans and profiles are to be prepared and placed on file for public inspection; a careful estimate is to be made of the cost of the work; and the owners of lots or land abutting upon the proposed improvement are afforded an opportunity of filing their claims for damages. At the expiration of the time limited for filing claims for damages, the council is to determine whether it will proceed with the improvement or not, and whether the claims for damages shall be judicially inquired into.

Having determined to make the improvement, it is provided by amended section 2264 of the Revised Statutes (78 Ohio L. 259), that the costs and expenses of the improvement, or any part thereof, which may not be assessed on the general tax list, shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the feet front of the property abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained.” It is evident from the language of this section, that the property to be assessed, and the mode of assessment, whether by benefits, by valuation, or by the foot front, are to be determined by ordinance before the improvement is made ; and the assessment is to be in the mánner, and subject to the restrictions prescribed by the statute in force at the date of the improvement ordinance.

Although special assessments, when made according to law, become a lien from the date of the assessment, upon the respective lots or parcels of land assessed, the owner will not be liable, under any circumstances, beyond his interest in the property assessed, at the time of the passage of the ordinance or resolution to improve. — Rev. Stats, sec. 2286. At the date of the ordinance to improve, the defendants in error could not have been held liable on more than 60.2 feet — the frontage of their land as measured on Third street to the usual depth of lots. That was the extent of their assessable interest at the time the ordinance to improve was passed, and the passage of the ordinance is the date fixed by the statute to which their personal liability on the assessment is to be referred.

It is reasonable to presume that the passage of the ordinance to improve the street, was not without reference to existing rights and liabilities. The ordinance was doubtless passed in full view of the law as it then stood in regard to special assessments. It embodied the scheme of the street improvement, and in passing it the Board of Public Works could not have contemplated any assessments other than those which were then authorized by statute. The assessment was only in aid of the improvement scheme as declared in the improvement ordinance, and did not enlarge or diminish the rights or liabilities of the defendants at the date of the passage of such ordinance. By virtue of the law then in force, they were obligated to pay an assessment on the basis of 60.2 feet of frontage, but under an amendment of the same law after the passage of the improvement ordinance it is claimed they became liable on 104.50 feet. In our view, under the prior act they became vested with a substantial right of which they could not be deprived by the operation of the subsequent law.

Under the constitutional prohibition, the general assembly has no power to pass retroactive laws. Art. II, sec. 28. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to-transactions or considerations already past must be deemed retrospective or retroactive. Society for Prop. of Gospel v. Wheeler, 2 Gallison, 105. Puffendorf says: A law can be repealed by the law giver; but the rights which have been acquired under it while it was in force, do not thereby cease. It would be an act of absolute injustice to abolish with a law all the effects which it had produced.” Droit de la Nat. L. 1, c. 6, § 6. There is nothing in the language of the act of March 11, 1887, passed after the ordinance to improve, which gives it other than a prospective operation; and it can not by judicial construction be made to act retrospectively to the impairment or destruction of vested rights. In our view, if the property of the defendants is not to be assessed in the mode or manner prescribed by the act of March 27, 1884, a vested right acquired under existing laws is taken away, and a new obligation is created, and a new liability imposed by an amendatory statute operating not only retroactively, but contrary to the equity and justice of the ease.

It is á general rule, that retrospective laws which conflict with a state constitution, or which tend to divest vested rights of property, are void, and courts will always struggle to give laws a prospective construction or interpretation. Sedgwick on Stat. and Const. Construction, 346, 2 Ed.

Houston v. McKenna, 22 Cal. 550, is an ¡Illustrative case of constitutional analogy, although a case in which by giving a retroactive effect to the law, the obligation of the contract would have been impaired. The plaintiff, in November, 1860, entered into a contract for the improvement of streets in San Francisco under the law of 1859, which provided that for payment an assessment should be levied upon the adjacent lots in proportion to their respective values. Before the completion of the work the amendatory act of 1861 was passsed, providing for an assessment in payment of such contracts according to the street frontage of each lot. It was held, that the provisions of the law of 1859 respecting the mode of assesssment was part of the contract, and that the assessment, though made after the amendatory act, must be in the mode prescribed by the old law. Crocker, J., in delivering the opinion of the court, says: “The act of 1861 changes the rights of the plaintiff and the liability of the property and its owners, by changing the extent of that liability — making some to pay more and others a less sum than they would have been liable to pay under the act of 1859. Such a result can only be avoided by giving the act of 1861 a pros-, pective effect — that is, limiting its application to those contracts made after it took effect. It is a well settled rule of law that statutes should not receive a retroactive construction, unless the intention of the legislature is so clear and positive as by no possibility to admit of any other construction.”

We are not without adjudicated cases in Ohio and elsewhere, which go far to establish the rule, that the rights and liabilities of abutting owners growing out of special assessments for street improvements, are fixed by the law existing when the improvement is ordered.

In Douglass v. Cincinnati, 29 Ohio St. 165, the council in March, 1875, declared by resolution the necessity of the improvement. The ordinance directing the improvement was passed, it seems, during that year. In January, 1876, the •council passed an ordinance assessing the cost of the improvement by the foot front, on the several lots of land abutting on the improved street. On November 8, 1875, Mrs. Douglas, the owner of an abutting lot at the time of the preliminary proceedings, conveyed to Corry that part of the abutting lot which fronted on the street, retaining the part which was in the rear of the strip conveyed. Mrs. Douglas set up by way of defense, that at the date of her conveyance to Corry, the ordinance assessing the cost of the improvement had not been passed ; °and that the part of the premises not so conveyed did not abut on the street, and was not subject to the lien created by the assessment. But it was held, that what constitutes abutting property liable under the municipal code to be assessed for the improvement of a street, is to be determined by the situation of the property at the time of the passage of the ordinance directing the improvement; and that the subsequent proceedings were merely 'the carrying out the scheme of improvement provided for in the ordinance

In Spangler v. Cleveland, 35 Ohio St. 469, it was held that where an assessment is per foot front, and is based upon an estimate of the cost, and a certain number of feet frontage, and the cost of the work falls below such estimate, the court, in reducing such assessment to the actual cost, and in fixing the cost per front foot, should not deduct from the frontage actually assessable when the improvement was ordered, any part thereof subsequently appropriated by the municipal corporation for streets. In other words, the lot-owners were liable according to the feet front assessable when the work was ordered, and not according to the frontage as afterward reduced by appropriation.

Our attention has been called to the case Griswold v. Pelton, 34 Ohio St. 482, in which the court in considering the effect of sections 542 and 543 of the municipal code, uses the language, “These sections were in force at the time the assessing ordiñance was passed, and govern the rights of the parties in this controversy, in respect to the limitations named, to the protection of which the plaintiff is clearly entitled.” In that case, the ássessment was confined to the front of the land to the usual depth of lots. The limitation of the assessment to twenty-five per cent, of the value of the property assessed after the improvement is made, was in force when both the improvement and assessing ordinance were passed. And as to the main point of contention, that the assessment should not be in accordance with section 543 — as amended after the improvement ordinance was passed — which authorized a levy each year of an amount of the special assessment not exceeding ten per cent, of the value of the land after the improvement is made, it will be observed, that the question was chiefly as to the mode of payment or number of installments, and not, as in the case at bar, whether the amount of the assessment should be increased beyond what it would have been if levied at the time the ordinance of improvement was passed.

Entertaining as we do the opinion that the defendants in error acquired a vested right under the act in force at the time of the passage of the improvement ordinance, which, by virtue of the constitutional inhibition, could not be impaired or taken away by the subsequent amendment and repeal of the act, we deem it unnecessary to consider whether the various steps in council and before municipal board, with respect to a street improvement, constitute a pending proceeding within the meaning of section 79 of the Rev. Stats., which could not be affected by such repeal or amendment of the law. But we may refer to the case Raymond v. Cleveland, 42 Ohio St. 522, in which it is held, upon forcible reasoning, that the successive steps to make an assessment or re-assessment for a street improvement, constitute a proceeding within the following saving clause of section 1539 of the Revised Statutes : No suit, prosecution, or proceeding shall be in any manner alfected by such change, but the same "shall stand or proceed as if no such change had been made.”

For the aforegoing reasons, we have reached the conclusion, that the judgment of the circuit court should be affirmed, but without regard to the question, whether there was a contract on the part of the state — which the city in its governmental capacity represents — with the property owners, that the law would not be changed as against them; or whether a contract obligation arose between the property owners and the city after the passage of the ordinance directing the improvement to be made.

Judgment affirmed.


author: Minshalu, J.

text:
    Woolley et al. v. Paxson et al.

      Devise to children as a class, one or more of whom predecease testator — Construction of ? 5971 B. S.

    1. The provision of the statute of wills providing against the failure of a devise to a child or other relative of a testator by the death of the devisee in the life of the testator, (£ 5971 Rev. Stat.) applies to a devise to “children” as a class.
    2. P. executed his will in 1868 and died in 1884. Among other objects of his bounty, there were living at the date of the will, his wife, his son Isaac and four children of the latter, James, Michael, Almira (intermarried with W.) and Nancy (intermarried with C.), all of whom were adults. He devised all his estate to his wife for life, and directed that, at her death, the land should be converted into money arid, with other funds arising from his estate, divided into four equal parts, one of which he directed to be invested in lands and conveyed to his son Isaac for life, remainder to his children in fee-simple. The wife, his son Isaac and the latter’s two daughters, Almira and Nancy, died before the testator — the daughters intestate, but each leaving issue surviving the testator. Held: That under the provisions of the statute then in ' force relating to a devise to a child or other relative of the testator (63 Laws, 47 § 56), incorporated in § 5971 Revised Statutes, the surviving issue of each of the two daughters of Isaac take the share of the devise to Isaac’s children, which the deceased mother would have taken, had she survived the testator.
    (Decided February 26, 1889.)

      Error to the Circuit Court of Green County.

      Brown & Antrim, for plaintiff in error, A. L. Woolley, guard.
    The rule, that the intent of the testator, when it can be ascertained, shall govern in the construction of wills, is too well established to require the citation of authorities. For some purposes a will is considered to speak from the date of its execution, and for others from the death of the testator. Jar. on Wills, vol. 1, p. 591. It appears to be a well settled rule, that for the purpose of ascertaining the objects of gifts, the will speaks from its date or execution. Id. p. 597.
    According to these rules who were the objects of the gift of the testator in this case? The children (without qualification) of Isaac Paxson. Who were the children of Isaac Paxson? James, Michael W., Nancy E. and Almira.
    Had the testator died on the 23rd day of January, 1874, would anyone doubt that his intention was that James, Michael W., Nancy E. and Almira should all participate in the distribution of his bequest ? We think not.
    If, then, under those circumstances the intention of the testator, as expressed in the will, was that James, Michael W., Nancy E. and Almira were all objects of his gift, can the construction of the will be changed by the fact, that instead of dying on the 23rd of January, 1874, the testator’s lease of life was extended to December 12th, 1884, while Nancy E. and Almira, two of the objects of the gift, departed this life prior to that date ?
    We hold that the intention of the testator having once been ascertained, is not affected by lapse of time or change of circumstances.
    Almira Woolley, being a child of Isaac Paxson, and therefore a devisee under the will, we insist that notwithstanding the fact that she died prior to the testator, or even if she had died prior to the making of the will, her issue, Pearl Woolley, having survived the testator, shall take the estate devised in the same manner as said Almira would have done if she had survived the testator. Rev. Stats., sec. 5971.

      Whatever may have been the rule at common law in regard to survivors alone sharing in the distribution, the above statute is explicit in its provisions that a bequest shall not fail or pass to others if the legatee leave issue surviving the testator.

      W. A, Paxson, for defendants in error.
    In the construction of a will, the rule in Ohio is found in Townsend’s Ex’rs v. Townsend, 25 Ohio St. 477, and followed in numerous cases, latest in point of time, McKelvey v. McKelvey, 43 Ohio St. 217.
    What is the intention of the testator, (1) as to his property, (2) as to the distribution of it ? His first intention was, as gathered from the will, to convert his whole estate into money, and upon that money basis, make an equal distribution between the four beneficiaries named, viz: Julia A. Stroop, Geo. Varner, Ezeriah and Isaac Paxson, with the additional proviso, that the shares of the latter two should be re-invested in real estate for their benefit “ during life, afterward to their children.” There is no ambiguity there; the direction is plain and cannot be mistaken. The only thing necessary for the court to determine then, is what did the testator mean when he said “to Isaac, afterward to his children?” The intention must be ascertained from the words contained in the will, and if the words are technical they must be taken in their technical sense. Is the word children a technical word ? If so, what is its technical meaning? Webster defines it : “Plural of child ; a son or daughter; a male or female descendant in the first degree.” The word heirs is a flexible term, and may mean descendants or ascendants, but the word children can never be held to include grand-children if there are any children answering that description. This is a universal rule as laid down in Wharton, Jarman, Redfield, and all the standard authors on the subject, both English and American, and is so held by all courts, a very full.list of authorities being found in the case of Cummins v. Plummer, 48 Am. Reps. 167. See also Bimnel v. Evans, 26 Ohio St., where this court has held the words heirs and children when used in the same will, to mean children to the exclusion of legal heirs who were not children. The very last clause in the decision in the case of Hamilton v. Rodgers, 38 Ohio St. 258, is as follows, viz.: “ The estate will pass to. and vest only in the person answering the description of the will at the time of distribution.” See also Sinton v. Boyd, 19 Ohio St. 34; 4 Kent. Com. sec. 345 ; Jar. Wills, v. 2, p. 692 ; 2 Red. Wills, 239; 2 McCord, Chan. R. 214 — 445; 1 Hills’ Chan. 311.
    The defendants base their sole right to this estate upon sec. 5971, Rev. Stat. Ohio. Let us construe this statute and the will in the light of the well established authorities. The first question is, how do these children take, by descent or by purchase? The second question is, when does their title vest ? and third, can they take under this will ? As to the first question, they could not take by descent from Isaac, their grandfather, for two reasons, viz.: 1st, he would only have had a life estate had he survived the testator, 2nd, he had no vested interest, (they could not take by descent from their mothers, for they had no vested interest) and there was therefore nothing to descend. This estate is a remainder, made so by the terms of the will. It is a well known rule, that “ A remainderman always takes by purchase, and never by descent.” 2 Washburn Real Prop. 540.
    See also 15. page 554; Richey v. Johnson, 30 Ohio St. 288; Needles v. Needles, 7 Ohio St. 445; Gilpin v. Williams, 25 Ohio St. 295 ; 31 Ohio St. 144; 32 Ohio St. 109 ; 4 Kent’s Com. 314; 2 Wash. Real Prop. 554; 4 Kent’s Com. 328 ; Id. 330-345.
    Upon the time wdienthis estate vests, I desire to submit the following authorities without further comment or question than to say that it is the universal rule, that where the time of distribution is deferred, there can be no prior vesting of an estate, and only those answering the description at the time of distribution will be entitled to take, non obstante Revised Statutes : 3 Jar-man, 696, fluctuating class; 2 Redfield, 10 to 20, class, children; 15 N. Y. Rep. 322; 1 Hill’s Chan. 311; 2 McCord, Chan. 445, 214, 258; 2 Redfield on Wills, 226, 236, 9, 40, et seq; 2 Jarman, 692, 700; 3 Vesey, 289; 2 Redfield on Real Prop. 561 ; Id. 603; 4; Smith v. Block, 29 Ohio St. 497 : 4 Kent, 206, 7; 1 Fern on Rem. 5; 2 Washburn Real Prop., sec. 230, p. 552, and sec. 261, p. 388; Richey v. Johnson, 30 Ohio St. 298 ; Hamilton v. Rodgers, 38 Ohio St. 256; Bunell v. Evans, 408, 10; 2 Redfield on Wills, 226, 243, expressly.

      Charles Darlington, for plaintiffs in error, Euphemia and Maggie Caulfield.
    Reply to brief of W. A. Paxson.
    The common law rule is as claimed by counsel for defendant in error.
    But the iniquity and injustice of such a riile, and its perversion of the testator’s intention were long since felt, acknowledged, and the rule changed by statute. The alteration of the common law in this respect was first had in England, and is found in the 33d section of the Act of 1 Viet. C. 26. As this section has been in substance reenacted in a large number of our states, Ohio included, it may not be amiss to look at the construction placed upon it by the English courts so far as they have been called upon to do so. Johnson v. Johnson, 3 Hare, 162 ; Winter v. Winter, 5 Hare, 312.
    We are not, however, without some authorities to guide us in the construction of this statute.
    In the case of Moore v. Diman, 5 R. I. 121, the facts were very much like those of the case at bar; and under a statute substantially like ours, a conclusion was reached by the Supreme Court in harmony, with the conclusion drawn from our own statute. See also, Jar. Wills, p. 75 ; 8 Ves. 375 ; 10 East. 503; 4 Madd. 495 ; 7 Metc. 30.
    Right in line with the Rhode Island case is the case of Moore v. Weaver, 16 Gray, 305, in which the same will is construed under a similar statute in Massachusetts, and a like conclusion reached.
    In Missouri, under a similar statute, a like conclusion has been reached. Jamison, Ex. v. Hay et al., 64 Mo. 546; Guitar v. Gordon, 17 Mo. 408.
    The court of last resort in the state of Georgia, has likewise given a similar' construction to a somewhat similar statute. Cheny, Ex. v. Selman, 71 Ga. 384.

      Kentucky has taken the same view of a similar statute. Yeates et ux. v. Gill, 9 B. M. 203.
    “ In the case of a legacy to a legatee for life, with remainder to another legatee, if the tenant for life dies before the testator, the remainder over takes effect upon the death of the testator.” Williams on Executors, vol. 2, bottom page, 1219.
   Minshalu, J.

The original suit was brought by the executor of Aaron Paxson, deceased, to obtain a construction of an item of the will, about which he was embarrassed in the execution of his trust. The testator first devised all his estate to his wife for life, and then, after making certain other provisions, by the eighth item, on which the questions arise, he first directs his executors (we give the substance quoting only those parts where the language is material) on the death of his wife to convert his lands into money, and to divide the proceeds and other funds arising from his estate, into four equal parts, one of which he then' gives to his daughter Julia A. Stroop “ if she be living, or to her heirs if she be dead at the time the same is ready to be paid ; ” he then gives a like share and upon the same terms to the son of his daughter Ivey Varner. He then disposed of the other two shares as follows: One is to be invested in land as soon as practicable by his executors, and “conveyed” to his son Ezeriah Paxson “for the term of his natural life and to his children in fee-simple afterwards.” The other is, in like manner, to be invested in land as soon as possible, and “ conveyed ” to his son Isaac Paxson “for the term of his natural life afterwards to his children in fee-simple.” And in the selection of lands so to be purchased for his sons Ezeriah and Isaac and their respective children, he directed that his executors should be guided as far as practicable by the choice and wishes of his respective sons; and directed the money to be kept at loan on interest properly secured, until the investment should be made.

The facts on which the questions as to the construction of the devise arise, were found by the court. From this finding it appears that the will was made in 1868, and the testator died in 1884; that at the time of the making of the will Isaac was living, and had also four children living, two sons, James and Michael, and two daughters, Almira intermarried with Alexander L. Woolley, and Nancy intermarried with John Caulfield ; that Isaac, his mother, wife of the testator, and his two daughters, Almira and Nancy, all died before the testator; and that the two daughters both died intestate, leaving issue that survived the testator, to-wit: Pearl Woolley, an infant daughter and only child of Almira, and Euphemiaand Maggie Caulfield, infants and only children of Nancy. The court also found that it will be for the interests of all concerned, Isaac being dead and no purchase having as yet been made, for the executor to sell the land and distribute the proceeds according to the terms of the will.

The two sons James and Michael, who survived the testator, claim that as the surviving children of their father, Isaac, they are entitled to the entire devise made to his children. On the other hand it is claimed that the issue of Almira and Nancy each take the share which the mother would have taken, under the devise to the children of Isaac, had she survived the testatator. If no change had been made by statute in the rule adopted by courts for the construction of a devise to children as a class, the construction claimed by the surviving sons must prevail, however unjust it may seem. Hawk. Wills, ch. 7. But a provision of our wills-act, introduced in 1840 (Swan's Stat. 1841 p. 999), amended in 1886, (S. & S. 934), and, as amended, embodied in § 5971, Revised Statutes, reads as follows :

Sec. 5971. When a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator; or if such devisee shall leave no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to, and vest in such residuary devisee surviving the testator, unless a-different disposition shall be made or required by the will.”

The court below, under the provisions of this statute, construed the will in favor of the claim of the issue of Almira and ■Nancy. On error the circuit court reversed the j udgment of the common pleas. We think, however, that the common pleas was right, and that its judgment should have been affirmed.

The rule as to the lapsing of devises and legacies that prevailed before the statute, defeated, in most cases, the intention of the testator. He generally made his will with reference to the objects of his bounty as they existed at the time and as though his will took effect at the date of its execution— not apprehending that a lapse would occur in case any of them should die before himself, unless some express disposition should be made in anticipation of such event. The statute was passed to remedy such disappointments, and should receive a liberal contraction, so as to advance the remedy and suppress the mischief. It among other things provides that where a devise is made to a child or other relative of the testator, who dies before the testator, the issue of such object of his bounty shall take the portion devised to such child or relative. Nothing is more just and conformable to the probable intention of the testator in every instance. The fact that the child or rclatve is not mentioned by name should not defeat the application ofthe statute, where the language applied to the facts, as they were at the execution of the will, designates a child or relative as an object of the testator’s bounty, with as much certainty as if it were mentioned by name. At the time the testator made this will his son Isaac had four children living. They were all adults and their names well known to him ; and the devise that he makes is, to Isaac for life and then to his children in fee-simple. This, in the light of the circumstances, must be taken in a distributive sense, and is a devise to each of Isaac’s children of the fee-simple in remainder, as definitely as if it had been to each by name. For, as observed by Vice-Chancellor Malins in Re Porter's Trusts, L. R. 8 Eq. 52, there can be no substantial difference between a gift, for instance, to six children named, and a gift to children simply, there being six. The real objects of the gift are in such cases easily ascertainable by parol testimony.

It is not, however, claimed that the individuals constituting Isaac’s children were, at the date of the will, indefinite, and .so, incapable of taking as individuals under its provisions, but that the devise was to them as a class, and must be construed, under the rules applicable to such devises, not as a devise to each of the children, but to such of them as should survive the testator. The ground of this rule was that no one can be a ■devisee or legatee until the will takes effect by the death of the testator. But any argument drawn from this rule proves too much; for’, if applied according to its r ’ason, it would abrogate the statute, as no object, however definitely described, ■can take in this sense, until the will ceases by the death of the testator, to be ambulatory. It was upon this ground that a devise to one by name who predeceased the testator, was held to lapse. The fact that in the latter case the extinguished or lapsed legacy went to the residuary legatees, or to the heir, where there were no such legatees, whilst in the case of the death of a member of a class it went to the survivors, supplies no reason for excluding the application of the statute where the devise is to a class. It was not because the extinguished legacy or devise was disposed of by the law in one way rather than another, that the statute was adopted, but because it did not go to the issue of the deceased devisee, as the testator in .all probability supposed it would. In other words, it was not designed to prevent the failure of a legacy by the death, of the legatee before the testator, that were impossible, but to make a new disposition by law of such legacy, where the testator had himself failed to do so, in anticipation of the possible ■death of any one of the chosen objects of his bounty before himself, where such object was a child or other relative of his. Hence the only question that can arise in the construction oi a will under this statute is, whether it, as a matter of fact, contains a devise of real or personal estate to a child or other reh ative of the testator, which such devisee would have taken had he survived the testator; if so, then by the express language ■of the statute, the issue of such devisee surviving the testator, shall take the estate devised in the same manner as the devisee would have done if he had survived the testator,” unless-a different disposition shall be made or required by the will. Now, it is a settled rule that in a devise to children as a class,, each member who survives the testator, then takes a vested interest in the devise : Hawk. Wills.. 68; and this is so-though the devise is not immediate, subject, however, in such-case to the liability to be partially divested by children subsequently coming into existence before the period fixed for enjoyment. Hawk. Wills, 71; Schouler Wills, § 562. Hence, as under a devise to a class each member who survives the testator, would, independent of the statute, take an aliquot part of the devise as a tenant in common with the other survivors, therefore, under the statute in such case, the issue of a deceased member of the class surviving the testator, must take what the deceased would have taken had he survived.. Any other construction would render the statute nugatory in a large class of cases to which its provisions are by its terms-directly applicable.

It seems this is the first case that has been presented to this court requiring a construction of this statute. But statutes similar to our own have been adopted in most, if not all of the states of the Union. These, whilst differing in detail, in general provide, that if such devisee or legatee die before the testator, leaving issue who survive the testator, such issue shall take the estate as the devisee or legatee would have done, in case he survived the testator; and it has generally been held in these states, that the statute applies to a devise to a class as-well as to a désignated individual. Moore v. Dimond, 5 R. I. 121; Moore v. Weaver, 16 Gray, 305; Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Mo. 546 ; Cheney v. Selman, 71 Ga. 384; Yeates v. Gill, 9 B. Mon. 203.

But two cases ar.e found in which a different view seems to have prevailed. Gross’s Estate, 10 Pa. St. 360; Young v. Robinson, 11 Gill & J. 328. The only reason assigned in the former case is that, The act was intended to prevent a vested-legacy from lapsing by death, which,” the court adds, “ can not apply here, as the legacies did not vest at all until the-death of the testator.” Now, it is strange that it did not suggest itself to the mind of so good a court, that no legacy vests until the death of the testator, and that such a construction •would work a virtual repeal of the statute. Moreover, our statute is general in terms; it is not limited to vested devises only, but applies to any “devise of real or personal estate to a child or relative of the testator; ” and, whether vested or contingent, it is. declared, that where such devisee predeceases the testator, the surviving issue of such deceased devisee ■“ shall take the estate devised in the same manner as the devisee would have done if he had survived the testator.” The decision in Young v. Robinson is placed on the ground that the object of their statute is “ to provide for such cases of legacies and devises as by the rules of law lapsed or failed to take effect by the death of the devisee or legatee in the life of the testator,” — the statute of Maryland providing that the devise “ shall not lapse or fail of taking effect ” by the death of the devisee in the life of the testator, but shall have the same effect to transfer the title in the property mentioned as if such devisee had survived the testator. This decision is placed on .a mistaken notion of the essential element of a lapsed legacy. Every legacy is said to lapse that fails by reason of the death of the legatee in the life of the testator. Bro. Law Die. “ Lapse,” 304. The disposition made by the law, in the absence of any statutory provision, is not material. It went to the residuary legatees or devisees, if there were such, and if not, it went to the heir, or where the failure occurred in a devise to a class, by the death of one of the members, it went to the survivors; but whether it went to residuary legatees, or to the heir, or to the survivors of a class, did not affect the essential character of the extinguished gift — it was, properly speaking, a lapsed legacy or devise in either case. The statute of Kentucky, like that of Maryland, also contains the negative clause “ shall not lapse,” and in Yeates v. Gill, supra, it was contended that it did not apply to a devise to “ children,” as in such case there can be no lapse so long as there are survivors of the class. But the court rejected this view, and said • .“ We are of the opinion that this statute was intended to promote equality in the distribution of estates, and to sub-serve the probable intention of testators under a change of circumstances not expressly provided for only (as might be presumed), because express provision was not understood to be necessary ; and it should be construed liberally for the effectuation of those objects.” It will be observed that our statute contains no such negative words; it simply affirms that the issue of such deceased devisee surviving the testator, shall take what the deceased would have taken, had he survived; and, as before observed, under our statute the construction is solved by determining whether, in that event, he would have taken as a devisee under the will.

It is also argued that the issue can not take because the devise to the children of Isaac is, as claimed, a contingent one, that is to say, depends not only upon their surviving .the testator, but also the wife of the testator, to whom was given a life estate in the whole property, and, to the determination of which estate, the gift to the father for life as well as the remainder to the children was postponed. To this it may be answered: (1) That the vesting in interest of the devise is not made to depend by the will upon any condition whatever; the devise is absolute — no adverbs of time nor words of survivorship being used, and therefore must be construed as a gift vesting in interest if not in possession at the death of the testator. Hawk. Wills, 71; Linton v. Laycock, 33 Ohio St. 128 ; Schouler on Wills, § 560, 562. (2) As heretofore shown, the statute applies to contingent gifts as well as to vested ones. And (3) that by the death of Isaac the tenant for life and of his mother, in the life-time of the testator, both of these prior life-estates were eliminated from the will, and the devise to Isaac’s children was thereby accelerated so as to take effect at the death of the testator, not only as an estate in interest, but also in possession ; so that, if the inchoate devise was contingent at the date of the will, by reason of the creation of these life-estates, it ceased to be such before the death of the testator. By the extinction of these life-estates the devise to Isaac’s children took effect at the death of the téstatelas an immediate devise to the survivors and the issue of such as had deceased, in the same manner, and with like effect, as if no inchoate prior estates had been created at the date of the will. 2 Williams’ Exr’s, 1219. If money from whatever source arising, be directed to be laid out in the purchase of land to be settled in any manner, equity will regard the persons on whom the lands are to be settled as already in the possession of their estates.” Will; Real. Pr. 164.

The fact that before the death of the testator, his wife and his son Isaac had died, so that there were no prior intervening estates postponing in any way the bequest to Isaac’s children, renders the decisions in Richey v. Johnson, 30 Ohio St. 288, and in Hamilton v. Rodgers, 38 Ohio St. 242, on which much reliance seems to be placed by counsel for defendant in error, wholly inapplicable here and their examination unnecessary.

It is also claimed that the form of the bequest to his daughter Julia A. Stroop, and to the son of his daughter Ivey Varner, indicate an intention on the part of the testator, that the survivor only of the. children of Isaac should take, and so as to his son Ezeriah’s. But we think that the form of the former devises can shed very little light upon his intention as to the latter. In the first two instances the bequest to each, as well as to the heirs of each, is necessarily contingent, until the time for distribution arrives. For example, the designated share is to be paid Julia “if she be living, or to her heirs if she be dead at the time the same is ready to be paid,” clearly indicating that “ heirs ” are to take by substitution, should the mother die before the time of payment arrives. If she survives that time, she takes absolutely, and the conditional gift over to the “ heirs ” is gone. In the latter instances the gift is to each son for life, and then to his children in fee-simple, without any condition as to either estate. The death of the father simply accelerates the enjoyment of, but does not create or vest the devise to the children.

Judgment of the circuit court reversed, arid that of the common pleas affirmed.

Owen, C. J., and Williams, J., dissent.