author: Jones, J.

text:
    The State, ex rel. Taylor, v. Cowen.

      Highway commissioner appointment — Repeal and reenactment of highway laws—Office of commissioner not abolished — Appointment of commissioner by governor — Section 171, Cass highway law (106 O. L., 623)—Power of removal — Authority for appointment anticipating vacancy — Section 12, General Code — No abandonment of tenure of office, when.

    1. Where, in the codification and reenactment of the state highway laws, the legislature, though expressly repealing the existing highway laws, has at the time of such repeal substantially reenacted former sections of the existing highway law relating to the state highway department and to the state highway commissioner, and has not expressly abolished the latter office but continued the same in force with the same title, tenure and salary, and with substantially the same functions which it theretofore possessed, such office will not be considered as having been abolished by such repeal, but as continuing and undisturbed.
    2. Section 171 of the Cass highway law (106 O. L., 623), authorizing the governor to appoint a state highway commissioner for a term of four years, “unless sooner removed by the governor,” does not grant the power of removal at- pleasure; but such removal must be made in conformity to existing law expressly providing for the method of such removal.
    3. Under Section 12, General Code, the governor and senate may appoint in anticipation of an official vacancy. But such vacancy must occur during the official lifetime of such appointing authority.
    4. Under the facts disclosed, there was no abandonment by the respondent of his official tenure beginning June 17, 1915, under the appointment of May 27, 1915, nor is he estopped from claiming title thereunder.
    (No. 15570
    Decided April 19, 1917.)
    In Quo Warranto.
    The relator, Alexander R. Taylor, asks for a judgment of ouster and induction. The office involved is that of state highway commissioner, to which both parties hereto claim title. On March 9, 1915, Frank B. Willis, Governor of Ohio, appointed Clinton Cowen to fill the unexpired term of one James R. Marker, which term would have expired on June 16, 1915. This appointment was confirmed by the senate. On May 27, 1915, Cowen was reappointed to the office of state highway commissioner, and a commission issued to him for a term of four years beginning June 17, 1915. This appointment, also, was confirmed by the senate on May 27, 1915. Under each of these appointments the respondent gave bond in the sum of $10,000. On August 31, 1915, Cowen was reappointed to the office of state highway commissioner for a term beginning September 4, 1915, and ending September 3, 1919. This appointment was made by Governor Willis. On September 1, 1915, Cowen gave bond under such appointment in the sum of $20,-000. On September 7, 1915, the respondent wrote the attorney general for advice relating to the legal effect of the Cass highway law, and especially as to whether that law created a new highway department requiring officials and employes of the state highway department to be appointed thereunder. The attorney general answered in an official opinion, holding “that said bill does not create a new highway department and does not require a reappointment of all officers and employes now serving under said department, except as required by existing civil service law.”
    On December 29, 1916, Governor Willis caused to be placed upon the general record in his office the following order: “It appearing that on August 31, 1915, an attempt was inadvertently made to appoint, subject to the advice and consent of the Senate, Clinton Cowen of Hamilton county, to the position of State Highway Commissioner for a supposed term of four years, ending September 3, 1919, and that no vacancy then existed in said position or has since occurred, said attempted appointment is withdrawn and a commission issued pursuant thereto is cancelled.” And upon the appointment record in his office the governor caused the following entry to be made: “Error — see general record under date of December 29th, 1916.”
    On March 21, 1917, Cowen’s appointment of August 31, 1915, was sent to the senate by Hon. James M. Cox, the succeeding governor, and on the same day Governor Cox appointed the relator .to the office of state highway commissioner “for the unexpired term of Clinton Cowen, term ending on September 3, 1919,” and on the above-named date the senate refused to confirm Cowen’s appointment of August 31, 1915, but confirmed the appointment of the relator. The respondent under each of his appointments took the formal oath of office and commissions were duly issued to him. Under his appointment of March 21, 1917, the relator took the oath as provided by law and gave bond in the sum of $20,000.

      Mr. Joseph McGhee, attorney general; Mr. Clarence D. Laylin; Mr. Frank Davis, Jr.; Mr. John F. Kramer and Mr. James I. Boulger, for relator.

      Messrs. Dinsmore & Shohl, for respondent.
   Jones, J.

Under the conceded facts the respondent must establish his tenure under the appointment of May 27, 1915, which was for a term of four years from June 17 following. The relator contests Cowen’s title to office for four reasons: First, that the Cass highway law by expressly repealing the highway laws in force at the time of Cowen’s appointment on May 27, 1915, superseded the former law, and that the office was thereby abolished; second, that by virtue of the Cass highway law the state highway commissioner is subject to removal at the pleasure of the governor; third, that Cowen by his acceptance of the unconfirmed appointment of August 31, 1915, abandoned his former tenure and is now estopped from claiming otherwise; and, fourth, that an appointment by the governor may not be made in anticipation of a vacancy.

Did the Cass highway law abolish the office of state highway commissioner ?

The two earlier appointments of the respondent were made under the highway laws in force at the time. (Section 1178 et seq., General Code; 102 O. L., 333.) The Cass highway law (JOó O. L., 574) expressly repealed the forme-- Highway laws and became effective by its terms on September 6, 1915. From the fact that a reappointment of Cowen was made on August 31, 1915, and that the appointee qualified under that appointment, it is conceivable that both the governor and the appointee apprehended that a new appointment should be made to conform to the provisions of the Cass highway law. However, it is manifest that after the rendition of opinion by the attorney general, in answer to Cowen’s letter of September 7, 1915, to the effect that a reappointment was not required under the Cass highway law, the appointing power considered his appointment of August 31, 1915, as ineffectual and void, since the record discloses that he caused an entry to be made revoking that appointment. While the Cass highway law, which is in effect a codification of the highway laws of the state, changes the former law in many respects, there is substantially no change with reference to the appointment, term, salary and duties of the state highway commissioner. With reference to the latter the reenacted statute is substantially in haec verba as it existed prior thereto. While the Cass highway law expressly repealed the former highway laws it neither in terms abolished the office in question nor provided for a supersession of the duties thereby imposed.

The construction placed upon the Cass highway law by the relator would be tantamount to the abolishment of the officer, leaving the office intact. Had the legislature in passing the Cass highway law been content to rest upon the repeal of the former law, undoubtedly the office would have been abolished; but, when, although expressly repealing the existing statute, it at the same time reenacted the former sections of the repealed law relating to the state highway department and to the state highway commissioner, and continued the latter in force, with the same title, tenure and salary, and with substantially the same functions attached to the office as it theretofore possessed, expressed in substantially the same identical terms, it thereby neutralized the repeal and continued the .office in force. (1 Lewis’ Sutherland on Statutory Construction, 2 ed., Section 238.) In the construction of legislation of this character the legal principle has become well established that when the amendatory or reenacted law substantially reenacts the existing law, the latter is held to be in effect continuous and undisturbed, and in contemplation of law the amendatory measure is not a repeal but merely a reaffirmance of the former law. In re Allen, 91 Ohio St., 315, and In re Hesse, 93 Ohio St., 230.

The question is, What was the legislative intent? “To abolish an office the intention of the competent authority to abolish such office must be clear.” 29 Cyc., 1368, and authorities cited.

In Kirker v. Cincinnati, 48 Ohio St., 507, it appears that by legislative action the board of public improvements of Cincinnati was abolished and the board of city affairs established, but clothed with the same functions as the former board of public improvements. In a per curiam the court said: “The act did not in a legal sense create a new office. The board of city affairs was clothed with the same functions as the board of public improvements. If then, as can hardly be questioned, the identity of an office is to be determined by the functions that belong to it, the board of city affairs is, in law, the same as the board of public improvements.”

Section 171 of the Cass highway law (106 O. L., 623) provides that the governor shall appoint a state highway commissioner who shall serve for the term of four years, “unless sooner removed by the governor.” It is contended by the relator that this clause of the section gives the governor the right to remove the commissioner at pleasure. In view of our recent constitutional provision, and laws also recently enacted to conform thereto, we cannot give that clause the construction claimed. The clause, “unless sooner removed by the governor,” does not explicitly grant the power of removal, but rather recognizes its constitutional and statutory exercise. In 1912, by an amendment to the constitution, Section 38, Article II, was adopted as follows:

“Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law; and this method of removal shall be in addition to impeachment or other method of removal authorized by the constitution.”

Pursuant to this constitutional amendment the legislature on April 16, 1913, passed an act (103 O. L., 851) providing for the removal of officials for the causes and by the methods provided in that act, and as the Cass highway law was passed on May 17, 1915, it was undoubtedly the intention of the legislature that removals should be made under the existing law and constitution and not at the pleasure of the governor. This construction should be adopted in order to harmonize this section of the Cass highway law with the provisions of the constitution and existing laws relating to the removal of officials.

It is contended that the governor has no authority to anticipate a vacancy, and that he can appoint only after a vacancy actually occurs. The question, therefore, arises whether the governor on May 27 could legally appoint Cowen to fill a vacancy which would not occur until June 16 following. Section 12, General Code, is as follows:

“When a vacancy in an office filled by appointment of the governor, with the advice and consent of the senate, occurs by expiration of term or otherwise during a session of the senate, the governor shall appoint a person to fill such vacancy and forthwith report such appointment to the senate. If such vacancy occurs when the senate is not in session, and no appointment has been made and confirmed in anticipation of such vacancy, the governor shall fill the vacancy and report the appointment to the next session of the senate, and if the senate advise and consent thereto, such appointee shall hold the office for the full term, otherwise a new appointment shall be made.”

In the absence of laws prohibiting or expressly providing that appointments of this character may be made only after the vacancy occurs, it has generally been held that the appointing power has. full authority to anticipate vacancies in its appointments. This legal principle, however, is limited, in that such vacancies, whether by resignation or .expiration of term, must occur during the life of the appointing power. The latter cannot saddle upon its successors appointees whose official terms are to begin thereafter. If the anticipated vacancy occurs during the official tenure of the appointing body (in the instant case the governor and the senate), in that event such body has full authority to malee such appointment if it is not otherwise lawfully forbidden. (Mechem on Public Offices, Section 133; State, ex rel. Ives, v. Choate, 11 Ohio, 511; State, ex rel. Eberle, v. Clark, 87 Conn., 537; State, ex rel. Childs, v. O'Leary, 64 Minn., 207, and State, ex rel. Whitney, v. Van Buskirk, 40 N. J. L., 463.) Furthermore, it would seem that Section 12, General Code, above quoted, recognizes the legal power of appointment and confirmation in anticipation of vacancies. The language there used is that if “no appointment has been made and confirmed in anticipation of such vacancy,” the governor may fill the vacancy and report the appointment to the next session of the senate.

Whether Cowen abandoned his official tenure under the appointment of May 27, 1915, is a question of fact which must be gleaned from the record. Under that appointment he gave a valid bond in the sum of $10,000 and duly qualified thereunder. However, under his later appointment of August 31, 1915, he gave a new bond in the sum of $20,000 for a term beginning September 4,1915, and ending September 3, 1919. The Cass highway law became effective by its terms on Monday, September 6, 1915. Evidently the official action and the execution of the bond were undertaken under the belief that the act became effective on September 4, 1915, the ninety-day referendum period after the act had been filed with the secretary of state. However that may be, this record clearly discloses that Cowen did no act explicitly disavowing his former tenure, or that could be construed otherwise than as an honest endeavor to conform to official action while maintaining his legal right to his May appointment if that should prove to be valid.

As affecting the question of abandonment, the attitude of Cowen, the governor, and his official adviser, the attorney general, taken shortly after the time the Cass highway law became effective, should receive the highest consideration. ' As heretofore stated that law took effect on Monday, September 6, 1915. On the next day the respondent directed a letter to the attorney general in which he asked specifically whether the Cass highway law created a new highway department effective September 6, 1915, and, furthermore, whether all the officials and employes of the state highway department must be appointed under the new law. The fact that Cowen took this early method of obtaining his official status shows that he had no intention of abandoning his official status under his appointment of May 27, 1915, if it proved to be valid. And the fact that his official adviser, the attorney general, on September 21, 1915, advised him that the office of state highway commissioner- was not abolished, and that a new highway department was not created, discloses beyond peradventure that both the governor and his appointee from that time on did not regard the office as abolished, and consider the appointment of August 31,' 1915, invalid; because after this opinion was rendered, and undoubtedly in conformity thereto, the August appointment was revoked by the governor. The effect of Cowen’s execution of a new bond in conformity to the requirements of the new law, and for the new term provided in the latter appointment, cannot ipso facto be held to act either as an abandonment or as an estoppel to claim under the May appointment, under the facts proven in this case.

Under the facts stipulated and conceded in the pleadings we therefore hold that the respondent is entitled to the office in question, and judgment for his ouster therefrom is refused.

Judgment of ouster refused.

Nichols, C. J., Wanamaker, Newman, Matthias, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Newman, J.

license: Public Domain

text:
    The Cincinnati Crushed Stone & Gravel Company v. The Public Utilities Commission of Ohio et al.

      Railroads — Switch connection ordered by utilities commission — On application of shipper—Commission not authorized to require applicant—To reimburse another shipper, when.

    Where application is made by a shipper to the public utilities commission for a switch connection with a railroad siding, which siding is on the right of way of, is owned by and under the absolute control of the railway company, the commission, in ordering a switch connection with such ’ siding and in fixing the terms and conditions upon which such connection shall be made, has no authority to require such applicant to reimburse another shipper on account of expenses voluntarily incurred by the latter incident to a change of location of the siding and to re-arrangement of the tracks of the railway company.
    (No. 15369
    Decided May 15, 1917.)
    Error to the Public Utilities Commission.
    The Queen City Crushed Stone & Sand Company, one of the defendants in error, is a corporation engaged in the business of crushing stone and dealing in gravel and sand, and for that purpose acquired and owns a tract of land in Clermont county, Ohio, along the line of the railroad of The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, one of the defendants in error herein. The line of railroad in that locality runs in a northerly and southerly direction. On June 3, 1916, the Queen City Company applied to the Public Utilities Commission of Ohio for a switch connection with the siding located immediately west of the west-bound main track of the railroad. The Railway Company filed an answer to this application in which it represented that the track or siding with which a switch connection was requested had been located in its present position at the cost and expense of The Cincinnati Crushed Stone & Gravel Company, the plaintiff in error herein, which company denied the right of the Railway Company to permit the connection to be made as prayed for in the complaint, and had notified the Railway Company that it was prepared to take all necessary legal steps to defend its rights and vested interests in said track or siding. The Railway Company asked that the Cincinnati Company be made a party defendant, and averred that a complete determination of the matters and things involved in the controversy could not be had without the presence of the Cincinnati Company as a party therein. That company was made a party defendant, its appearance was entered, and it was represented by counsel at the hearing before the Commission.
    Immediately north of the property of the Queen City Company is a tract of land owned by the Cincinnati Company, on which is located and is in operation its plant for crushing stone and washing gravel. The latter company owns also a tract of land lying immediately south of the property owned by the Queen City Company. The tract of land now owned by the Queen City Company was formerly owned by one Mary A. Walton and her children. Prior to January 1, 1915, the Cincinnati Company had a switch or spur track from its plant extending southeasterly through the Walton tract to its own tract of land on the south, where there were a number of short tracks or switches, used by the railroad for yard purposes, from which there was a single connection with the main westbound track of the railroad. The right of the Cincinnati Company to use the Walton tract terminated in 1915 and that company was required to vacate those premises and to remove its switch tracks therefrom. That company then being without switching facilities made application to the Railway Company for a switch connection with its plant. At that time the west-bound main track of the railroad, running in a southerly direction, was immediately east of the properties of the Cincinnati Company and the Walton tract. Between the west-bound and the east-bound main tracks was a siding more than one-half mile in length and connecting the west-bound with the east-bound main track. For some reason, what is known as a trailing-point switch connection could not be made with the west-bound main track. A facing-point switch connection could have been made, but such connection is “a very objectionable feature from the standpoint of railroading.” The Railway Company also objected to a switch track crossing its west-bound main track to the siding between the two main tracks. In March, 1915, under an agreement entered into by the Cincinnati Company and the Railway Company, the siding which had been constructed between the main tracks was taken out from its then location by the latter company and placed on its right of way along the west side of the west:bound main track and next to the properties of the Cincinnati Company and the Walton tract. A switch or spur-track connection was then made with the plant of the Cincinnati Company direct with this siding. This siding is approximately 2,700 feet in length and connected with the west-bound main track at a point near the north line of the north tract of the Cincinnati Company, and runs in a southerly direction, connecting with the west-bound main track at a point opposite the other tract of the Cincinnati Company, lying south of the Walton tract. In making this change in the location of the siding it was necessary to reconstruct the yard on the south tract, to move the west-bound main track a short distance to the east, to construct a crossover between the two main tracks, and to lay and to use about 300 feet of entirely new rail and track. The total cost of this work, amounting to $5,500, was paid for by the Cincinnati Company.
    In 1916 the Walton tract was purchased by the Queen City Company, and in March of that year, when it was ready to develop the property and construct its plant, it made a request of the Railway Company for a switch connection. On May 18, 1916, the Cincinnati Company addressed a letter to the Railway Company, a copy of which was sent to the Queen City Company. In that letter the Cincinnati Company denied the right of any person to use the siding, or the right of the Railway Company to grant any such use or permit a connection therewith. It insisted that it owned exclusively the siding, under its arrangement with the Railway Company; that it had built and paid for it, and that it had acquired an indefeasible right for railroad purposes in the siding and so much of the right of way as it is built upon. It insisted further that even if the Railway Company were disposed to grant to the Queen City Company a connection with this siding, the Railway Company would have no power to do so without refunding to it, the Cincinnati Company, the amount of money it had expended directly and incidentally in the construction of this, siding and its dependent spur tracks, approximating $19,000. ■ The Cincinnati Company further insisted that if the Railway Company should be unwilling to make this refunder, it would “have no right, and it would be unlawful, and inequitable, and a case of rebating and discriminating between shippers if it permitted such connection without requiring The Queen City Stone and Gravel Company to pay full one-half share of the money so expended.” It seems that upon the hearing of this matter before the Commission the contentions of the Cincinnati Company as expressed in its letter were abandoned, and the only claim made was that before a connection be ordered there should be paid to it one-half of the $5,500 expended by it in placing the siding at its present location.
    The matter was heard by the Commission upon the pleadings and the evidence and the arguments of counsel. It made an order that the Railway Company locate and construct a switch from the premises of the Queen City Company to its line of railway and connect the switch therewith so as to permit the passage of cars with facility, the Queen City Company to deposit with the Railway Company, upon such terms and conditions as govern similar applications, a sum sufficient to pay the cost of installing and connecting the switch. The Commission refused to order the Queen City Company to pay the Cincinnati Company one-half of the $5,500 or any part thereof. Applications for a rehearing were filed by the Cincinnati Company and by the Railway Company, which were denied. Plaintiff in error has filed a petition in error in which it aslcs that the order of the Commission be reversed, vacated and set aside, or modified according to the equities as they may appear to this court.

      Messrs. Jelke, Clark & Forchheimer, for plaintiff in error.

      Mr. Orville K. Jones and Mr. Joseph W. O'Hara, for defendant in error, The Queen City Crushed Stone & Sand Company, and Messrs. Henderson & Burr, for defendant in error, The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.
   Newman, J.

Before the Queen City Company filed its application with the Public Utilities Commission it made a request of the Railway Company for a switch connection. Plaintiff in error thereupon addressed a letter to the Railway Company, a copy of which was furnished the Queen City Company, in which it contended that it owned exclusively the siding in question, had acquired an indefeasible right in it for railroad purposes, and that the Railway Company had no right or power to make any connection with this siding. No such claim, however, was made before the Commission, nor is it made here, the sole contention of plaintiff in error being that the Queen City Company, as a condition precedent to having a switch connection with the siding, should be ordered to. pay it, plaintiff in error, one-half of fifty-five hundred dollars, the amount expended by it on account of the change of location and the work done in connection therewith. The Railway Company recognizes the right of the Queen City Company to a switch connection with its siding, but is of the opinion that plaintiff in error should be reimbursed on account of the money expended by it.

Counsel for plaintiff in error insist that the physical layout of the tracks as they existed prior to 1915 is immaterial and that the entire matter should be considered as a “clean slate” as of January 1, 1915, with no switch tracks or connection with any of the properties abutting upon the railroad. They lay great stress upon the statement of the superintendent of the railroad, made before the Commission, which in substance is that if the main-track layout were the same as it was prior to January 1, 1915 — that is, a middle siding between the two tracks with no sidetracks leading to either the plaintiff in error or the Queen City Company — and the latter company were to make application for a switch, the Railway Company would require of it a layout very similar to that which was made and paid for by plaintiff in error. In other words, the expenditure made by plaintiff in error would have been made instead by the Queen City Company.

It is to be presumed that had the Queen City Company or any other company made a request for a switch connection, the Railway Company would have made the same requirement that it made of plaintiff in error. But it does not follow that the Queen City Company would have complied with such a requirement. It would have had the right to make and might have made application to the Public Utilities Commission, and there may have been found a more simple and less expensive method of providing switching facilities for the applicant.

But be that as it may, in our view, the Commission was not concerned with conditions existing prior to the filing of the application by the Queen City Company. That company was asking for a switch connection with a siding established on the right of way of the Railway Company. It was owned by the Railway Company. It was under its control absolutely. It appears that it was used for a passing siding, and, according to the testimony of the superintendent of the railroad, where a sid-> ing is used as such it cannot be used for any other purpose without the permission of the railroad company through its train dispatcher. Plaintiff in error had no interest in or right to the siding other than the right to use it in connection with its switch or spur track in the handling of its business, permission having been first obtained from the Railway Company. It is true that the cost of the change of the location of the siding and the rearranging of the yard was paid for by plaintiff in error, but that was done voluntarily under a private agreement entered into by that company. Its provisions had been fully complied with and the matter was a past transaction. We do not see how it could be the subject of inquiry on the part of the Commission. When application was made by the Queen City Company the siding was the property of the Railway Company, and a part of its sys-. tern. It was wholly immaterial whether the cost incident to the change of the location of the siding was paid for by the Railway Company or by plaintiff in error. When the cost incident to the change of the location was paid by plaintiff in error, it did not reserve or pretend to reserve to itself any control or interest therein other than the mere right to use it for the purpose we have mentioned. We do not see, therefore, upon what theory it could expect to dictate the terms upon which another shipper should enjoy the use of property owned by and absolutely under the control of the Railway Company. In dealing with 'the Railway Company, plaintiff in error did so with full knowledge that other shippers might demand a switch connection. It might have protected itself so that it could. have been in a position to compel a future applicant to bear a portion of the expense incurred by it. It failed to do this and there is certainly no authority on the part of the Commission to require the applicant, the Queen City Company, to do so.

In a proceeding such as the one before us, our jurisdiction is fixed by law. Unless it appears, from a consideration of the record, that the final order made by the Public Utilities Commission is unlawful and unreasonable, the order cannot be disturbed. We are constrained to hold that the Commission was correct in the order made by it.

Order affirmed.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: By the Court.

text:
    The Cincinnati Street Railway Co. et al. v. The City of Cincinnati.

      Franchises—Repair of viaduct by city — Liability of street railway for cost—Conditions of franchise grant—Interpretation of agreement with municipality.

    (No. 15159
    Decided May 15, 1917.)
    Error to the Court of Appeals of Hamilton county.

      Mr. George H. Warrington and Mr. Joseph Wilby, for plaintiffs in error.

      Mr. Charles A. Groom, city solicitor, and Mr. Constant Southworth, assistant solicitor, for defendant in error.
   By the Court.

On August 13, 1896, the board of administration of the city of Cincinnati passed resolutions consolidating and extending various lines of the street railway system of that city. This grant was accepted by the street railway company. One of the routes involved and provided for in the resolutions was known as the Seventh street route, passing over what is known as the Liberty street viaduct. Prior to 1896 horse cars had been used over this route and viaduct.

Section 18 of the terms and conditions of the grant provided as follows: “Whenever the City of Cincinnati and the County of Hamilton, or either, through its authorized officers, shall desire to reinforce the Liberty Street viaduct, situated on Liberty street between Garrard and State avenues, so that it will be safe for the operation of heavy vehicular travel or electric cars over the entire structure, the said The Cincinnati Street Railway Company shall be required to pay $7,000 towards defraying the expenses thereof.”

On March 31, 1903, by act of the city and street railway company, the portion of the Seventh street route passing over the viaduct was abandoned, and shortly thereafter the street car tracks thereon were removed and never thereafter used by the street railway company. About the year 1907 the city reconstructed Liberty street viaduct, making no provisions for street railway tracks thereon, nor for safeguarding the. structure for the operation of electric cars. Thereafter it brought suit for the sum of $7,000, the sum named in Section 18, above quoted. The legal question involved, to-wit, the construction of said Section 18, was presented in various forms by counsel for the street railway company. Both of the lower courts decided in favor of the city, whereupon, on order of certification, error is prosecuted to this court.

The claim of the plaintiffs in error is that Section 18 provides only for a conditional obligation of payment upon the part of the street railway company, which is not to be fulfilled until the viaduct is reinforced so as to be safe for the operation of electric cars over the entire structure. The city contends that under the terms of the grant the street railway company is liable when the city has reinforced the viaduct so as to be safe for the “operation of heavy vehicular travel.”

An inspection of the record discloses that the resolutions granting the franchise comprise about thirty pages of the printed record. The grant contained many conditions, among others stipulations for relaying certain city sidewalks, repaving street intersections, and, in two instances, for the payment of stipulated pecuniary amounts as a partial consideration for the grant. The payment of the $7,000 named was part of the consideration for the entire grant, but conditional upon the determination of the city to reinforce the viaduct either for heavy vehicular travel or for electric cars.

We are unable to see any reason for the construction of this grant. The word “or” therein, as found in the phrase “heavy vehicular travel or electric cars,” is used clearly in the disjunctive sense. While this word is frequently construed to read “and,” where the natural and documentary sense requires such a construction, we are nevertheless clearly of the opinion that in this case it cannot be thus utilized, for the reason that by so doing it would not only alter vital conditions of the contract but would nullify the purpose of the city evident by its incorporation in the resolutions. When the grant was made the city no doubt had in contemplation the fact that there might be no franchise over or user of the Liberty street viaduct by the operation of electric cars. In fact such proved to be the case, for the record discloses that in 1903 that part of the line was abandoned. Accordingly this provision may have been inserted in the grant in order to meet such a contingency, and to provide that in such event the obligation of payment should rest upon the street railway company in case the viaduct was reconstructed so as to make it safe for vehicular travel only. The terms contained in Section 18 we,re for the benefit of the city, which reserved the right to determine whether it should, and in what manner it might, reinforce the Liberty street viaduct; and, therefore, if any ambiguity did arise in the construction of that section, the construction should be resolved in favor of the city.

Judgment affirmed.

Wanamaker, Newman, Jones and Matthias, JJ., concur.

Nichols, C. J., and Donahue, J., dissent.


author: Donahue, J.

text:
    The State, ex rel. Linden, v. Davis, Mayor.

      City charter of Cleveland — Judicial powers of mayor — Determination of sufficiency of petitions — Against prohibiting sale of intoxicating liquors — Section 6142, General Code.

    1. The charter of the city of Cleveland specifically reserves to the mayor of the city the judicial powers conferred upon mayors of municipal corporations by the general laws of the state.
    2. Section 6142, General Code, is a valid exercise of the power conferred upon the general assembly by the constitution of this state, and vests in the mayors of municipal corporations jurisdiction to hear and determine the sufficiency of petitions filed with them under the provisions of that section.
    (No. 15530
    Decided June 26, 1917.)
    In Prohibition.
    On the 27th day of February, 1917, the relator, Carl P. Linden, filed in this court a petition praying that a writ issue prohibiting the defendant, Harry L. Davis, as mayor of the city of Cleveland, Ohio, from exercising any further jurisdiction whatsoever in connection with the hearing of a petition filed with him under the provisions of Section 6142, General Code, against prohibiting the sale of intoxicating liquors in a residence district in the city of Cleveland, described in said petition.
    The petition avers that under the charter of the city of Cleveland there is no office of mayor as contemplated in Section 6142 of the General Code of Ohio, and that the said Harry L. Davis as mayor of said city under the provisions of said charter has no judicial powers derived from the constitution, or from the laws of the state, or from said charter; that the said Harry L. Davis as such mayor has no jurisdiction to hear and determine matters and points at issue in connection with said petition and has no jurisdiction to make a finding and determination thereon, but that notwithstanding his want of jurisdiction he has conducted a hearing on said petition and will make a finding and determination on the matters in connection with said petition, unless prohibited by ah order of this court; and that if he should find the petition sufficient, the relator, and other qualified electors similarly situated, would have no adequate remedy at law.
    Upon this petition an alternative writ issued.
    The respondent for answer admits the recitals in the relator’s petition as to the filing with him as mayor of the city of Cleveland of a petition against the prohibition of the sale of intoxicating liquors as a beverage in a residence district in the city of Cleveland, described in such petition, admits the proceedings had thereon, and denies the further allegations of the petition.
    No evidence except the charter of the city of Cleveland was offered by either party, and the cause was submitted to the court upon the pleadings and this charter.

      Mr. Charles M. Earhart and Mr. J. A. White, for relator.

      Mr. W. S. Fitz Gerald, director of law; Mr. Ven Svarc and Mr. George W. Shaw, for defendant.
   Donahue, J.

The charter of the city of Cleveland does not divest its mayor of any of the authority conferred upon him by the laws of the state of Ohio. On the contrary, it is specifically provided, in Section 72 of the charter, that the mayor shall “exercise such powers and perform such duties as are conferred or required by this charter or by the laws of the state.” This language is certainly clear and unambiguous,- but this is supplemented by Section 2, which provides that “the enumeration of particular powers by this charter shall not be held or deemed to be exclusive but, in addition to the powers enumerated herein, implied thereby or appropriate to the exercise thereof, the city shall have, and may exercise all other powers which, under the constitution and laws of Ohio, it would be competent for this charter specifically to enumerate.”

The title of the office of mayor is not changed by the charter. Even if it were, Section 191 of the charter provides that the powers conferred and the duties imposed upon any officer, commission, board or department of the city under the laws of the state, shall, if such office or department is abolished by this charter, be thereafter exercised and discharged by the officer, board or department upon whom are imposed corresponding functions, powers and duties thereunder. Under this provision, even if the office of mayor had been abolished, and' another office created having corresponding functions, powers and duties of a mayor, the incumbent of such office would have the powers conferred and the duties imposed by the laws of the state upon the mayors of other cities of the state not having adopted a charter. Flotron v. Barringer, 94 Ohio St., 185, and Ide v. State of Ohio, 95 Ohio St., 224.

The further questions presented by the pleadings and the evidence are fully disposed of in Heininger v. Davis, Mayor, ante, 205, submitted prior to but considered by this court in connection with this case. Under the provisions of Section 6142, General Code, the defendant has full jurisdiction to hear and determine the question of the sufficiency of the petition filed with him, and the writ of prohibition prayed for in the relator’s petition must be refused.

Writ refused.

Nichols, C. J., Newman, Jones, Matthias and Johnson, JJ., concur.