author: Summers, J.

text:
    Mutual Life Insurance Company of New York v. The State of Ohio.

      Tax upon foreign insurance company — Section ¿745, Revised Statutes, construed.

    Section 274S, Revised Statutes, does not require a foreign insurance company to pay to the state, annually, two and one-half per centum on the business done by it within the state, or of the net amount of premiums received by it from the state, but only such per centum of the net amount of premiums received by it in the state.
    (No. 11379
    Decided January 26, 1909.)
    Error to the Circuit Court of Franklin county.
    The facts are stated in the opinion.

      Mr. Janies McKeen and Messrs. Arnold, Morton & Irvine, for plaintiff ill error.
    Premiums sent by Ohio policyholders to the home office of plaintiff in error, and there received by it, are not “received by it in the state,” and are not subject to taxation under Section 2745, Revised Statutes.
    The general assembly has chosen the. simple and certain way of defining the premiums upon which laxes shall be paid when it says such as are “received in the state.” The premiums having been received in the state, that is, have been paid to an agent or at an office of the company in the state, the place of payment and receipt are definitely fixed, and the means of determining the accuracy of the company’s reports are to be found within the state, viz., by examination of the agents’ and branch office records. People v. In

      surance Co., 27 Hun. 188; State v. Insurance Co., 106 Tenn., 282.
    The Tennessee Act of 1897, Chapter 2, Section 5, provides that insurance companies shall pay a tax of “two and one-half per cent, on gross premium receipts in this state.”
    These are the only decisions of which we have any knowledge construing premium taxation statutes which seem to be applicable to the case at bar, and the principles there announced are opposed to the contentions made for the state. Building & Loan Assn. v. Norman, Auditor, 98 Ky., 294, and Insurance Co. v. Hendricks, Supt., 41 Misc. (N. Y.), 479, are persuasive of the construction of Section 2745, Revised Statutes, contended for by plaintiff in error.
    In giving construction to the section the rule must be observed, that, where there is ambiguity in a statute with respect to -whether a tax, or public burden of that nature, is imposed, or authorized to be imposed, it should receive that construction which is most favorable to the citizen or subject sought to be charged with the burden. Cooley on Taxation (3 ed.), 453; Pretzinger v. Sunderland, Treas., 63 Ohio St., 132; Cincinnati v. Connor, 55 Ohio St., 82; Rice v. United States, 53 Fed. Rep., 910; United States v. Wigglesworth, 2 Story, 369.
    In Powers v. Barney, 5 Blatch., 202, Mr. Justice Nelson said, “duties are never imposed upon the citizens upon vague or doubtful interpretations.”
    The revenue laws are not to be so construed as to extend their meaning beyond the clear import of the words used. United States v. Watts, 1 Bond, 580.
    Statutes which impose restrictions upon trade or common occupations, or which levy an excise or tax upon them, must be construed strictly. Sewall v. Jones, 9 Pick., 412; Pegues v. Ray, 50 La. An., 574; Moseley v. Tift, 4 Fla., 402; Barnes v. Doe, 4 Ind., 132; Cahoon v. Coe, 57 N. H., 557; Paving Co. v. Watt, 51 La. An., 1345; Brown v. Commonwealth, 98 Va., 366; Supervisors v. Tallant, 96 Va., 723; Turnpike Road Co. v. Thomas, 3 S. W. Rep., 907; Rice v. United States, 53 Fed. Rep., 910.
    It is interesting to note the history of Section 2745, Revised Statutes.
    Previous to the act of April 29, 1902 (95 O. L., 290), insurance companies in Ohio were not required to pay the tax to the state. The act of March 27, 1894 (91 O. L., 91, which had been previously amended several times), provided that “every agency of an insurance company incorporated by the authority of any other state or government, shall return to the auditor of each county in which such company does business, or from which it collects premiums, on or before the first day of May, annually, the amount of the gross premium receipts of such agency for the previous calendar year in such counties.”
    By the act of April 29, 1902 (95 O. L, 290), the section was so amended that the company is required to report all premiums “received by it in the state” and to pay the tax thereon directly to the state, in lieu of the provision under which returns were made by the agents of the premiums received by them at their respective agencies, and upon which the tax was paid to the respective counties. It is clear* that the general assembly intended to limit the taxes to the premiums actually received in the state, as was the rule under this section previous to the amendment of April 29, 1902.

      Mr. U. G. Denman, attorney general; Mr. Smith W. Bennett and Mr. J. M. Sheets, for defendant in error.
    The tax enacted is a tax on the privilege of doing business in the state of Ohio. Insurance Co. v. Bowland, Treas., 196 U. S., 611.
    In giving a construction to any statute, the court must consider its policy, and give it such an interpretation as may appear best calculated to advance its object by effecting the design of the legislature. Wilber v. Paine, 1 Ohio, 251.
    It is the duty of courts in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can be presumed to have been within the legislative intent. Moore v. Given, 39 Ohio St., 661.
    These rules of construction are elementary, and need no further elaboration.
    The object and purpose of enacting Section 2745, Revised Statutes, was to raise revenue for the state, and it has resulted in 'an annual income to the state of over $1,000,000.
    Should the court give this section the construction contended for by counsel for plaintiff in error, it would place it within the power of the foreign insurance companies doing business in the state to avoid the payment of any excise tax whatever and thereby make the state more than a million dollars poorer annually.
    We are* willing to accept the conclusion of the court in People v. Insurance Co., 27 Hun, 188, that the words “premiums received on business done in the state,” are properly understood to embrace only premiums on property situated in this state.
    So in life insurance, “business done by it in said state,” embraces premiums received on the lives of persons resident of this state.
    The tax, as already suggested, is not on the gross premium receipts, but is a tax on the privilege of doing business in Ohio. The gross premium receipts furnish merely the tapeline by which the privilege tax is measured.
    The principle here involved is exactly the same as that involved in the act (Sections 2780-17 to 22, Kevised Statutes), taxing express, telegraph, telephone companies, etc., at the rate of one per cent, of their gross annual receipts for the privilege of doing business in the state of Ohio. Express Co. v. State, 55 Ohio St., 69.
   Summers, J.

This was a suit by the state to recover from the defendant, now plaintiff in error, a life insurance company organized under the laws of New York, a tax of two and one-half per centum on the premiums received by it, for the five years 1901 to 1905, both inclusive, at the home office in the city .of New York directly from policyholders resident in the state of Ohio and not paid to any agent of the company in the state of Ohio. No question is made as to the tax upon the premiums received by it in the state

The court of common pleas overruled a demurrer to the petition and entered judgment against the company, and on error the judgment was affirmed.

By Section 3604, Revised Statutes, insurance companies organized under the laws of other states, or by act of congress, are required to obtain from the superintendent of insurance a license to do business in this state, and by Section 2745, Revised Statutes, foreign insurance companies are required to pay to the state annually two and one-half per centum of the amount of premiums received by them in the state during the preceding year as a tax upon the business done by them within the state.

The part of the section to be interpreted reads as follows:

“Every insurance company, incorporated by the authority of any other state or government shall, in its annual statement to the superintendent of insurance, set forth the gross amount of premiums received by it in the state during the preceding calendar year, without deductions for commissions, return premiums on considerations paid for reinsurance, or any deductions, whatever; and shall, also, therein set forth, .in separate items, return premiums paid for cancellations and, also, considerations received from other companies for reinsurances in this state, during such year.
“The superintendent of insurance shall examine such report of every such company, and if he finds the same correct, shall, prior to the month of November in each and every year, compute an amount of two and one-half per centum on the balance (of) on such gross amount after deducting such return premiums and considerations received for reinsurances as shown by the next preceding annual statement, and charge (the) to same to such company as a tax upon the business done by it within said state for the period as shown by said annual statement.”

Counsel for the state contend that the tax is not a tax on the premiums but a tax on the privilege of doing business in the state, and that the premiums received by the company for business done in the state, whether received in the state or at its home office, indicate the amount of business done in the state and constitute the basis for determining the amount of the tax. The general assembly might have exacted a per centum of the value of the business done in the state as a tax for the privilege, and then it might be necessary to determine what is business done in the state, or it might have provided that the tax should be a per centum of thé premiums received by the company from business done in the state, or it might have made the amount of the tax determinable on some other basis, but it has not done so, but has expressly provided that the company shall pay two and one-half per centum of the gross amount of premiums (less the specified deductions) received by it in the state. The fact, if it be a fact, that there is no apparent reason why the amount of premiums received in the state, rather than the amount of premiums received from the state, should be the basis of the amount of the tax, or the fact, if it be a fact, that the adoption of the former basis rather than the latter will afford an opportunity to evade the tax, does not empower the courts to change the statute. There is nci ambiguity in the statute, and if there was, the rule is that “statutes imposing taxes and public burdens of that nature are to be strictly construed; and where there is ambiguity which raises a doubt as to the legislative intent, that doubt must be resolved in favor of the subject or citizen on whom the burden is sought to be imposed.” City of Cincinnati v. Connor, 55 Ohio St., 82-91; Pretzinger v. Sunderland, Treasurer, 63 Ohio St., 132-139; Cooley on Taxation, 454. If the statute needs amendment the remedy is with the general assembly. The conclusion is supported by an examination of the changes in the statute. As the section read in the Revised Statutes of 1880, and as it was prior to the amendment of April 29, 1902 (95 O. L., 290), the agency of such company in the several counties was required to return to the county auditor the amount of the premium receipts of the ageñcy and the company was required to pay to the county a tax upon that amount at the same rate that was levied upon other personal property.' The basis of the tax was the premium receipts of the agencies, and not the premium receipts of the company from the state. In 1902 the section was changed so as to require the company to report the premiums received by it in the state and to pay to the state a per centum of that amount. There is nothing in the amendment of 1902, or in the subsequent amendments, to indicate an intention to change the basis of the tax, but the manifest purpose was merely to divert the revenue from the county treasuries to the state treasury, which was effected by requiring the companies to report to the superintendent of insurance premiums received by it in the state, in lieu of the requirement that the agencies in the respective counties should report to the county auditors the premium receipts of the agencies. Whether the amount of premiums received in the state, rather than from the state, was made the basis of the tax upon an assumption that that was the extent of the business done in the state, or from oversight, or for convenience in bookkeeping, or for other reasons, is, as already suggested, so far as it may affect our determination, merely idle conjecture.

The judgments are reversed, the demurrer sustained and the cause remanded.

Reversed.

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


source: Caselaw Access Project

author: Crew, C. J.

license: Public Domain

text:
    In re Assignment of Kraus.

      Exemption in lieu of homestead — Assignor foregoes selection of property — Right to exemption not abandoned, when — May be enforced against proceeds of sale.

    Where an assignor for the benefit of creditors is induced to and does, forego the selection of specific articles of personal property under his claim for exemption in lieu of.a homestead, because of representations made to him by the assignee that he would have to wait until the property was sold and an order of court obtained, and that he would then be paid his exemption, actual selection, under such circumstances, is waived or excused, and the want of it cannot be held to be an abandonment or forfeiture of the assignor’s right to claim and have his exemption out of the proceeds of sale of the assigned property, upon formal demand made therefor before distribution.
    (No. 10566
    Decided January 26, 1909.)
    Error to the Circuit Court of Cuyahoga county.
    The facts are sufficiently stated in the opinion.

      Messrs. Hart, Canfield & Croke, for D. V. Green, assignee.
    Section 5441, Revised Statutes, provides that husband and wife living together, residents of Ohio, and not the owners of a homestead may in lieu thereof hold exempt from levy and sale real or personal property to be selected by such person, his agent or attorney at any time before sale, not exceeding five hundred dollars.
    In Kelley v. Duffy, 31 Ohio St., 374, Judge Mcllvaine says, that it is quite certain that as against the general creditors, the debtor did not intend to abandon his rights to any exemption to which under the law he was entitled. This is shown by his reserving the right in the deed of assignment, and the court held that the exemption should be allowed.
    In Kuhn v. Nieberg, 40 Ohio St., 631, Nieberg assigned for the benefit of his creditors in the probate court, reserving all property which he might be entitled to under the exemption laws of the state. The appraisers did not set off any property tc be exempt to him in lieu of a homestead, the assignee did not set off any property, the assignor made a motion in the court that he be allowed the sum of five hundred dollars to be paid out of the proceeds of the sale. The court sustained the motion and ordered the allowance to be made. From that order the assignee appealed to the court of common pleas, which affirmed the judgment of the probate court, and the circuit court and supreme court affirmed the probate court.
    Where the assignor has demanded his exemption in lieu of a homestead and has reserved his rights to the exemption in the deed, and has made his formal application within a reasonable time after the surplus has been ascertained and before distribution, he has done all he could towards claiming any exemptions. In re Assignment of Bremer, 4 O. D., 80.
    No assignment for the benefit of creditors shall be construed to include or cover any property exempt from levy or sale, unless in the assignment the exemption is expressly waived. Schuler v. Miller, 45 Ohio St., 325.
    Property which, the law reserves from the demands of creditors does not in law pass to the assignee in insolvency. Thompson on Homestead, Section 834.
    If the exemption is reserved by deed of assignment the whole effect of the reservation is that he does not part with it, and the amount of the exemption must be paid by the assignee in money after the conversion of the property. Mulford v. Shirk, 26 Pa. St., 473; Mercer v. Cunningham, 53 Ohio St., 360; Saylor v. Simpson, 45 Ohio St., 141; Havens v. Horton, Jr., 53 Ohio St., 342.
    The fact that the laws exempting the family homestead and other property from sale to pay the debts of an improvident debtor is a salutary and humane policy and should receive such construction as will accord the benefit of the enactment. Gibson v. Mundell, 29 Ohio St., 523.
    When all homestead exemptions are reserved in the deed of assignment, and there is a mortgage on the premises against which no exemptions can be allowed and he asks for an exemption in lieu of a homestead, the claim is one against the money. Insurance Co. v. Waters, 65 Ohio St., 163.
    The policy of our courts is to construe the exemption laws, so as to give them the effect, if possible, of being in favor of the homestead right. Conley v. Chilcote, 25 Ohio St., 320; Chilcote v. Conley, 36 Ohio St., 545; Sears v. Hanks, 14 Ohio St., 298; In re Assignment of Bell, 12 O. C. D., 731.
    The policy of the law is that the exemption law is designated for the benefit of debtors, it should be so construed as to effectuate it, and not thwart its object and policy. In re Assignment of Bremer, 3 O. N. P., 12.
    No bankrupt should be deprived of his exemptions by narrow and strict interpretation of laws, which were passed for his .benefit and prompted by wise and humane public policy. In re Falconer, 110 Fed. Rep., 111.

      Messrs. Hamilton & Smith, for Israel Bialosky, exceptor.
    Selection by the debtor must precede any obligation upon either the appraisers or the assignee to set aside exemptions in lieu of homestead and this selection must be made before sale. Sections 5441 and 6348, Revised Statutes; Carpenter v. Warner, 38 Ohio St., 416; Butt v. Green, 29 Ohio St., 761; Frost v. Shaw and Birchard, 3 Ohio St., 274.
    A general demand for exemption without a selection or at least an offer to select is not sufficient to entitle the debtor to exemptions out of the proceeds of the sale of such property. Butt v. Green, 29 Ohio St., 668.
    The order made by the insolvency court authorizing the assignee to pay said $500.00 to the assignor in lieu of homestead exemptions was without jurisdiction and void.
    The right to be heard upon a motion filed in probate court for exemptions is fundamental; such an order is one affecting the property rights of every creditor and when made without notice is void. Mooney v. Fogg, 19 C. C., 327.
   Crew, C. J.

The essential facts of this . case are not in dispute, and so far as they are pertinent to the present inquiry, are: that on November 14, 1902, Fred. Kraus, by deed of voluntary assignment for the benefit of creditors, conveyed all of his property, except such as was by law exempt from execution, to one D. V. Green, as his assignee. On the following day, November 15, 1902, said deed of assignment was filed with the court of insolvency of Cuyahoga county, and thereupon said assignee duly qualified and took possession of all of the assignor’s property, which was of the appraised value of eight hundred and twenty-nine dollars and thirty-two cents, and consisted of personal property only. In said deed of assignment the assignor, in express terms, excepted and reserved therefrom “such property as is by law exempt from execution.” At the time of said assignment, the assignor, Fred. Kraus, was a resident of the state of Ohio, a married man living with his family, and neither he nor his wife was the owner of a homestead. On the day of the assignment the assignor demanded of the assignee his exemption in lieu of a homestead, and again within a few days thereafter he made a second demand therefor. Both these demands, which were orally made, were at the time disregarded and ignored by the assignee, and Kraus was told he would have to wait until the property was sold, and neither said assignee, nor the appraisers appointed by the court to appraise the property assigned, allowed or set off to said assignor before sale any property as and for his exemption in lieu of a homestead. Thereafter, the assignee, by .order of the insolvency court, sold all of said property at private sale for the sum of eight hundred and fifty dollars. Shortly after said sale and before the distribution of any part of the proceeds thereof, the assignor, Fred. Kraus, filed in said insolvency court, his formal written demand and application asking that said assignee be required to set apart and pay to him five hundred dollars as his exemption in lieu of a homestead. This application was, on March 31, 1903, granted by the court and said assignee, out of the money in his hands, was ordered to pay to said assignor the sum of five hundred dollars, which he did. Thereafter, on September 16, 1903, D. V. Green, as assignee, filed in said court of insolvency his first partial account, and in said account credited himself with the five hundred dollars so paid by order of the court to said Fred. Kraus, assignor. To this account exceptions were filed by Israel Bialosky, an attachment creditor, who excepted, among other things, to this item of five hundred dollars paid by the assignee to said Fred. Kraus as and for his exemption in lieu of a homestead. On the hearing of said exceptions the court of insolvency found and adjudged that the order of said court theretofore made, directing' the assignee to pay over to the assignor said sum of five hundred dollars in lieu of his homestead exemption, was made without notice to said creditor, Israel Bialosky, and was void. The court also further found and adjudged that the assignor not having made selection and had set off to him before sale, specific personal property to the value of five hundred dollars in lieu of his homestead exemption, forfeited his right to such exemption and was not entitled to receive said sum of five hundred dollars out of the proceeds of the sale of said property;- and thereupon the court sustained said exception and charged, said assignee in his account with the five, hundred dollars so paid to Kraus, assignor, and ordered the assignee to account for the same as money in his hands subject to distribution among the creditors of the estate of said assignor. On appeal to the court of common pleas a like judgment was rendered by that court, and this latter judgement was subsequently affirmed by the circuit court. To obtain a reversal of these judgments the present proceeding in error is prosecuted by D. Y Green, assignee. The judgment of affirmance by the circuit court was erroneous, and should be reversed, unless upon the facts above stated the court of common pleas was right in its conclusion of law that the failure of Kraus, the assignor, to make selection, and to actually have set off to him before sale property to the amount and value of five hundred dollars, was a waiver or abandonment of his right to thereafter demand or have such exemption out of the proceeds arising from the sale of the assigned property. While it is undoubtedly the law in Ohio that the statutory right to hold exempt from levy and sale in lieu of a homestead real or personal property not exceeding' five hundred dollars in value, is a personal privilege that may be waived by the person entitled to exercise such right, by his voluntary and intentional failure or neglect to make his demand and selection at- the proper time, or in a reasonable manner, yet this court has uniformly held, -that the right to exemption being a valuable right, and one grounded upon the principles of a' wise and humane public policy, that the statutes granting exemptions should be liberally, construed, and that no mere technicality should be permitted to defeat the right. In the present case the right of Kraus, assignor, to his statutory exemption in lieu of a homestead, unless waived or abandoned, is not controverted; and that he never knowingly or intentionally ■ waived or abandoned such right is, we think, clearly shown and established by the undisputed facts as they appear of record in this case. In his deed of assignment, while unnecessary for him so to do, Kraus, assignor, expressly reserved his exemption. Thereafter, and before sale, he twice made demand for his exemption of Green, assignee, and was told by the latter: “I have no money, you will have to wait till I sell the stock and the court makes an order, then I will pay you your exemption.” Green, the assignee, testifies, that when Kraus demanded his exemption, “I said to him I could not do it, I could not do anything until I got an order from the court, and when everything was disposed of then I could pay him the money, provided the court made me do so, that is what I told him.” Thus, in effect, Kraus was, at the time he demanded his . exemption, informed and advised by the assignee that the same could not then be allowed to him, but that he must wait until after the sale of die property, and until such time as the court should make an order directing its payment, and then it would be paid to him. His right to the exemption being clear, and the same not having been waived or abandoned and demand therefore having been seasonably made by the assignor, it became and was the duty of the assignee to have the same appraised, set off and allowed to him before sale. Having failed in this it would indeed be a harsh rule, and one wholly inconsistent with the spirit and humane purpose of our exemption laws, that would under such circumstances deny to the assignor the right to claim and have such exemption out of the proceeds of sale, upon his formal demand made therefor while said proceeds are yet in the hands of the assignee undistributed. The rule requiring selection by the claimant of the exempt property, must have a reasonable interpretation, and where one entitled to his exemption seasonably demands the same of the officer or person whose duty it is to have such exemption set off and allowed to him, and the officer or person charged with this duty, either purposely, or through mistake and unintentionally, by his conduct, or by statements anck representations made to the claimant, so deceives or misleads the claimant that the latter is thereby reasonably induced to forego his right to make selection of the specific property to which he is by law entitled, actual selection, under such circumstances, is waived or excused, and the want of it can not be held to be an abandonment or forfeiture of the claimant’s right. We are of opinion, therefore, that in the present case, upon' the undisputed facts, Fred. Kraus, the assignor, was entitled to receive and hold exempt out of the proceeds of the sale of the assigned property five hundred dollars in lieu of a homestead. This sum having been paid to him, as and for such exemption, by D. V. Green, assignee, the latter was entitled to have credit in his account for the amount so paid, and the exception to this item of the account should have been overruled and such credit allowed.

Judgment reversed.

Summers, Spear, Davis, Shaucic and Price, J'J., concur. ,


author: Price, J.

text:
    The Village of Carthage v. Diekmeier.

      Municipal corporation improvement of streets — Separate contracts for respective streets — Certificate of clerk that money required is in treasury — But specifying no amount — Not hi compliance with Section 2702, Revised Statutes — Municipal law.

    1. Where a municipal corporation, by sale of its bonds, creates a fund for the improvement of certain streets, and takes the necessary steps to receive and accept bids and to contract separately for the improvement of each of said streets, the following certificate filed by the clerk of the corporation at the time the bid is accepted and contract executed, to-wit: “I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement and not appropriated for any other purpose sufficient to pay for the same. L. Hall, Village Clerk,” — is not in compliance with Section 2702 (old number), Revised Statutes, in that it is not certified that a specified sum of money required for the contract to improve the street “is in the treasurj’- to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose.”
    2. Where the above defect in the certificate is discovered before the execution of the contract, and the clerk of the corporation, in the presence of the municipal council and with its knowledge and consent, amends the certificate by inserting therein, although in- figures, the sum of money required for the con'tract» and the certificate so amended is filed and recorded as required by said section, and the contract then executed, said certificate is a limitation on the amount to be paid on the contract for that street, beyond which the corporation is not liable to the contractor.
    (No. 10746
    Decided February 2, 1909.)
    Error to the Circuit Court of Hamilton county.
    The defendant in error sued the Village of Carthage to recover for the work done and material furnished in the improvement of Linden street, and in his petition he pleads the preliminary resolutions and other acts of the village council which led to .the execution of a contract for said work; that after its performance the work was duly accepted, and that only part payment has been made and he prays judgment for the balance due him. The whole amount due, he says, was $4,268.19, and that he has been paid $1,928.50, leaving due a balance of $2,339.69 with interest.
    The village admits that an issue of bonds had been made to pay for said improvement and also the improvement of other streets, and admits the passage of certain resolutions and ordinances preliminary to the contract with the plaintiff below, and admits the amount paid as alleged. Some averments of the petition are denied, and it is then plead that there is no right of a recovery because of the absence of the certificate of the village clerk as required by Section 2702, Revised Statutes. Issue was- joined by reply and case tried to a jury, who returned a special verdict covering pH the issues, in the case, and as it presents all the facts upon which the judgment below was rendered, we insert it here.

      “We, the jury, duly impanneled and sworn in the above entitled cause,0 being directed by the court to give a special verdict, in writing, upon' all the issues of this cause, do find the facts as established by the evidence herein as follows:
    “No. 1. The defendant, The Village of Carthage, is a municipal corporation organized under the laws of the state of Ohio and situated in Hamilton county in' said state. *
    “No. 2. The defendant, prior to June 7, 1900, took the necessary action for the issuing of bonds of the village in the sum of $40,000 for the improvement of the streets, which said action resulted in the creation of a fund in the treasury of said village on June 7, 1900, amounting to $40,480. Said fund of $40,480 was on August 10, 1900, and up to and including the date of the filing of the petition in this case on February 21, 1903, the only fund in the treasury of the said village raised for the purposes and available for (he payment of any portion of the street improvements in said village.
    “No. 3. Between April 9, 1900, and August 10, 1900, the council of the defendant village took the necessary action and passed the necessary proceedings for the improvement of eighteen streets of the village, being all the streets of the village with the exception of four or five, for the purpose of improving said streets by constructing a combined cement purb and gutter on each street and macadamizing the roadway, including excavation, macadamizing, graveling, setting crossings and laying the cement curb and gutter. It was provided in the proceedings for such improvements that the cost of the cement curb and gutters in each instance should be assessed against the abutting property owners.
    “No. 4. Between the ninth day of April, 1900, and the tenth day of August, 1900, the council of the Village of Carthage took the necessary steps by passing proper resolutions and ordinances to improve Linden street in said village by grading, graveling and macadamizing the same, and by constructing combined cement curb and gutter thereon, and setting crossings and rolling the same; and said council duly adopted plans and specifications for the construction of said Linden street, or avenue, and attached to said specifications was an estimate of the engineer of said village showing approximate quantities to be used on said street as follows: excavation — cubic yards, 600; gravel (unscreened) — cubic yards, 350; macadam' — cubic yards, 800; combined curb and gutter' — lineal feet, 4100; crossing stone — lineal feet, 200; rolling — square yards, 6300.
    “In said specifications it was provided: ‘The quantities named on the estimate are approximate and will not govern the final estimated
    “No. 5. On Tuesday evening, August 7, the council passed eighteen resolutions awarding the various street improvements to the lowest bidder in each instance, and among others was the resolution awarding the contract for the improvement of Linden avenue to the plaintiff, Henry Diekmeier, at the rates named in his bid and heretofore found as a fact in this case. None of said resolutions, including the Linden avenue resolution, had any certificate attached thereto, showing that there was any money in the treasury sufficient to pay the village portion of said improvement.
    “No. 6. The legislative proceedings of council for the making of these improvements took place at the same time, that is to say, while the proceeding of each street was kept separate, the action on the eighteen various streets was taken on the same evening in each instance as each respective ordinance or resolution was passed.
    “No. 7. On Friday night, August 10, a special meeting of the council of defendant village was held, at which time the action of the council on Tuesday night, August 7, in passing a resolution to contract was rescinded. Eighteen new resolutions to contract were presented. The first one read to the council by the clerk of the village was for the improvement of Linden avenue, as follows:
    “Resolved, That the bid of H. Diekmeier for the improvement of Linden street from Wall street tc Fifth street be, and the same is hereby accepted, and that a contract be entered into with the said H. Diekmeier and with an indemnity company as surety, authorized to do business in the state of Ohio, in the sum of $1000, for the faithful performance of the contract, and the additional sum of $2000, to keep the combined curb and gutter m repair at his own expense for the period of five years for the full completion of said improvement according to the plans and specifications and his proposal therefor, at the following rates, namely:

      Excavation, per cubic yard..............$0 16
    Gravel, per cubic yard.................. 60
    Macadam, per cubic yard................ 1 65
    Combined curb and gutter, per lineal foot 50
    Crossings, per lineal foot................ 50
    Rolling, per square yard................. 03
    “And the said bid being the lowest aggregate cost of said improvement. The contract price of said improvement to be paid in cash within ten days after the sale of the assessment bonds issued to pay for the same,' and that ninety days time be allowed to complete the work from date of contract, and the mayor is hereby authorized and instructed to sign and execute .such contract on behalf of the corporation.
    “Done this tenth day of August, 1900, in the council chamber, in the Village of Carthage.
    “(Signed) C. H. Ansted, Mayor.
    “Attest: L. Hall, Clerk.
    “I hereby certify that there is money in the ■village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement, and not appropriated for any other purpose, sufficient to pay for the same.
    “(Sd.) L. Hall, Village Clerk.
    “No. 8. At the conclusion of the reading of the resolution and certificates as above found, an objection was made by the solicitor that the certificate contained no specified amount set apart for the improvement of Linden avenue, and theretipon, • the engineer, E. F. Layman, gave the amounts to the clerk and gave him $2,030 as the amount for Linden avenue, which said amount the said clerk placed upon the certificate in figures, and thereafter the resolution was passed.
    “No. 9. The length of said street was- 2762.56 feet, and the width of the pavement between the curbs was 30 feet, the width of the same between the combined curb and gutter was 27 feet and 4 inches; and by the specifications adopted by said council, it was provided that the roadway of said street should be constructed by spreading thereon a layer of good, sound, hard limestone, eight inches in thickness, broken into fragments measuring not more than four inches nor less than three inches in any direction and upon the top of such layer a further layer four inches in thickness of good, sound, hard limestone; then Love-land boulders broken into fragments as nearly regular as possible, none of said fragments measuring more than two inches in any direction.
    “No. 10. In said specifications the right was reserved to the said Village of Carthage to increase or diminish" or omit entirely any of the work therein set forth, but any such action on the part of the village should not vitiate or annul the said specifications or any contract that might be •made in accordance with the same, but on the contrary such contract should remain in full force and effect, subject only to the proviso that the value and amount of all such omissions should be deducted from the amount which would otherwise be due, and that the value and amount of all other modifications, alterations and substitutions should be either deducted from or added to the amount which would otherwise be due, and that any increase in the amount of work should entitle the said Henry Diekmeier to a reasonable extension of the time for the completion of the work.
    “No. 11. That the words ‘Amount certified to,’ were not upon said certificate at the time said resolution referred to in No. 8 was read and adopted by council, nor at the time of the signing of the contract by the plaintiff and the village.
    “No. 12. That the figures ‘$2030’ were upon said certificate at the time said resolution referred to in No. 8, special verdict herein, was read and adopted by council, and at the time of the signing of the contract by the plaintiff and the village.
    “No. 13. Thereafter, and about the thirteenth or fourteenth day of August, 1900, the said Henry Diekmeier, the plaintiff, and the Village of Carthage, the defendant, by C. H. Ansted, its mayor, by virtue of the authority conferred on said mayor by said resolution, and acting thereunder; entered into a contract whereby the said Henry Diekmeier agreed to furnish all material, and do all the work of whatever kind necessary to complete in every respect, in a good and substantial manner, ready for use, the improvement of Linden street, from Wall street to Fifth street, in the manner hereinbefore described and required in said specifications for the prices named in said bid of Henry Diekmeier, and hereinbefore set out, and said Henry Diekmeier agreed to complete said work in accordance with the said plans and specifications, and the said Village of Carthage covenanted and agreed, upon the production of a certificate from its engineer, showing the completion of said work in strict accordance with the contract to pay the said Henry Diekmeier the sum shown by said certificate to be due for work and material furnished thereunder, and the- specifications and proposals of Henry Diekmeier.
    “No. 14. On the same day on which the contract mentioned in Section 9 hereof was made the said Henry Diekmeier and the said Village of Carthage entered into a certain supplementary contract, whereby the said Henry Diekmeier agreed that he would re-dress and relay so much of the old crossing stones on said Linden street as might be ordered by the said council of said village for the sum of 25 cents per lineal foot, and that he would furnish and set gutter flagging, wherever so ordered by said village council for the sum of 50 cents per lineal foot, and would pave on each side of said flagging to the width of one foot with good, sound limestone paving to the depth of nine inches, for the sum of $1.65 per, cubic yard, and do additional limestone paving at the rate of 70 cents per square yard, and that the terms and conditions of said supplementary contract should be in all other respects subject to the terms and conditions of the original contract for the improvment of Linden street.
    “The only proceedings of the council after entering into this supplémentary contract was a resolution accepting a written proposition of Henry Diekmeier.
    “There was no certificate ever filed by the clerk showing any money in the treasury for the purposes of a supplementary contract.
    “No. 15. The plaintiff, Henry Diekmeier, did not know at any time after entering into said contract that there was no sum available or subject to appropriation by said council for the payment of additional labor or material, either or both, for the improvement of said street.
    “No. 16. The contract for the improvement of Linden avenue, under the resolution awarding the same to Henry Diekmeier, was signed on behalf of the village and Henry Diekmeier on or about August 13 or 14, 1900.
    “No. 17. After the delivery of said certificate, the council of said village caused the said Linden street to be inspected by the committee of improvement of said council and the members of said council, of which committee Louis J. Helfferich was chairman; and said council, finding that said work had been completed in a substantial and workmanlike manner and in accordance with the plans and specifications and to the satisfaction of said council, accepted the same.
    “No. 18. The council of the defendant village knew before the final estimate was submitted that the work on Linden avenue was exceeding or would exceed the approximate estimate contained in the plans and specifications.
    “No. 19. The council of the village never took any action increasing the quantities of the work to be done or the material furnished on the improvement of Linden avenue over the amount contained in the approximate estimate, included in the plans and specifications, hereinbefore set forth, and no sum or sums of money in addition to the $2,030 was ever appropriated by the council or certified by the clerk of the village for the payment of any part of the cost of the improvement of Linden avenue, which was to be paid for by the village.

      “No. 20. The work shown to have been done in the final estimate hereinbefore set forth was done in good and workmanlike manner.
    “No. 21.- The plaintiff, Henry Diekmeier, entered upon the performance of said contract and constructed the said Linden street in conformity with the plans and specifications therefor, and the directions of the engineer of said village, and completed the same on or before the first day of January, 1901; and thereafter, E. P. Layman, the duly elected, qualified and acting engineer of said village, being the engineer mentioned in said contract, and being the proper engineer to give the certificate of the completion of the work required thereby, executed and delivered his final estimate for the cost of improving Linden street from Wall street to Fifth street in the words and figures following :
    “Final estimate of cost and expense of improving Linden street from Wall street to Fifth street:
    ‘Carthage, Ohio. H. Diekmeier, Contractor
    Excavation, 697 cu. yds., at. . . .$0 16 $ 111 52
    Macadam, 2028 cu. yds., at 1 65 3346 20
    Gravel, 365 cu. yds., at.. 60 219 00
    Rolling, 6560 sq. yds., at. .' 03 196 80
    Crossing, 632.41 ft., at.... 50 316 20
    Gutters, old, 153.7 ft., at... 25 38 43
    Paving, 57.2 sq. yds., at. . . 70 40 04
    Curb and gutter, 4443.51 ft., at 50 2221 75
    ‘Total amount due contractor......$6489 94
    Advertising, $40; serving notices, $10. . 50 00
    E. F. Layman, engineering, 4 per cent. . 259 60
    $6799 54

      ‘Less amount to be assessed against property:
    Curb and gutter, 4443.51 ft., at 50 cents ...........$2221 75
    Advertising and serving notices ................ 50 00
    Engineering .............. 88 87
    ‘Balance to be paid by village. . . .$4438 92
    Total amount due contractor.......... 6489 94
    Less 5 per cent, retained for one year. . . 324 50
    Net amount due.....................$6165 44
    ‘Total 'frontage, 2762.58 feet. Rate per foot, $.85450.
    ‘The above work has been completed according to the specifications and contract.
    ‘E. F. Layman, Village Engineer.’
    ‘June 14, 1901.’ (Copy.)
    and that thereby there was produced to the council of said villag'e the certificate of said engineer, showing the completion of the work in strict accordance with the contract, and showing that there was due for the work and material furnished under said contract, the sum of $4268.19, and likewise showing that the work provided for in said supplemental contract had been completed in strict accordance therewith, and that the sum due for work done and material furnished under said supplemental contract was $78.47.
    “No. 22. And thereupon we, the jury, find that if upon the' foregoing facts, the court shall be of opinion that the plaintiff is entitled as a matter of law to recover for the work done under said original contract, the amount which said plaintiff is entitled to recover is the sum of $2261.22, which sum we, the jury, find in favor of the plaintiff; and if upon the facts hereinbefore found, the court shall be of opinion that the plaintiff as a matter of law is entitled to recover for the work done under said supplemental contract, the amount due therefor is the sum of $78.47, for which sum we, the jury, find in favor of the plaintiff; and that there is to be added to said several sums the interest thereon from the seventeenth day of June, 1901, to the second day of January, 1906, being the first day of this term. We further find that the amount of the $2261.23 with the interest added is in the sum of $2693.04, and further find that the amount of $78.47 with the interest added is in the sum of $99.65, and that the total amount of both including interest is • in the sum of $2792.69. B. F. Lewis, Foreman.”
    The court rendered judgment for the plaintiff on this verdict. Error was prosecuted to the circuit court, where the judgment was so modified as to exclude the work done and material furnished under the supplementary contract, for which there was no certificate' of the village clerk, and the judgment after said reduction was affirmed. The village prosecutes error to reverse both judgments.

      Mr. Frank F. Dinsmore, and Mr. Samuel W. Bell, for plaintiff in error.

      Messrs. Archer & Osier and Mr. Jerome D. Creed, for defendant in error.
   Price, J.

In the year 1900 the Village of Carthage became ambitious for better streets, and necessary action was taken by its council to create a fund for their improvement; and this was done by the issue and sale of bonds in the total sum of $40,000, which, with the premium received thereon, aggregated, $40,480. The sum was placed in the treasury on or about the 7th day of June, 1900, and the same was in the treasury on August 10, 1900, and when the contract involved in this litigation was entered into. The city had no other fund for such improvements. Prior to August 10, 1900, the village took the necessary steps and passed the necessary proceedings to improve certain eighteen streets of the village, that number being a large majority of its streets. Linden avenue, made prominent in this record, is one of them. Up to this time there had been no allotment of any particular sum to any one of such streets, but the gross fund stood committed, so far as necessary, to the improvement of all of them. But by finding 7 Linden avenue came first in the examination and acceptance of bids for its improvement, for it is said that the legislative proceedings of the council for the eighteen streets took place at the same time. The proceedings as to each street were kept separate from the proceedings relating to each of the others. Separate resolutions were adopted and separate ordinances as to each were passed.

Another important fact has been found, -that the village engineer, as one of the preliminary steps in the proceedings, under the instructions of the council and guided b)r plans and specifications adopted for that purpose, made an approximate estimate of the quantities of materials to be used on Linden avenue, and we presume the same is true of- each of the others. . These estimates for Linden avenue are in finding 4 returned by the jury. There were plans and specifications with approximate- estimate, and while it may be true that at that time there was no statute requiring a preliminary or approximate estimate, one was on file and subject to the inspection of all bidders, just as were the plans and specifications.

Oh the approximate estimate of quantities of material to be used, the bid of Diekmeier was made at the figures contained in the 7th finding, and his bid being the lowest, the same was accepted, and the mayor was instructed to execute a contract on behalf of the village. This instruction was in the form of a resolution adopted August 10, 1900. There was then due, under the law, a certificate of the village clerk under Section 2702 (old number), Revised Statutes. If not due and essential when the resolution was adopted, it certainly was requisite to a valid contract with the bidder that the section be complied with when the contract was executed on the 13th or 14th of August of that year. The section referred to then provided: “No contract, agreement or other obligation involving the expenditure of- money shall be' entered into, nor shall any ordinance resolution or order for' the appropriation or expenditure of money be passed by the council, or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is no auditor, the clerk thereof, shall .first certify that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certification shall be filed and immediately recorded; and the sum so certified shall not thereafter be considered unappropriated until the corporation is discharged from the contract, agreement or obligation, or so long as the ordinance, resolution, or order is in force; and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed, contrary to the provisions of this section shall be void.”

The contractor claims that such a certificate was on file and recorded before his contract was litered into, and the jury state its character in the 7th finding as follows: “I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement, and not appropriated for any other purpose, sufficient to pay for the same. L. Hall, Village Clerk.” The jury finds (No. 8) that at the conclusion of the reading of the resolution and certificates an objection was made by the village solicitor because the certificate contained no specified amount set apart for the improvement of Linden avenue, and thereupon the engineer gave the amounts to the clerk, and gave him $2,030 as the amount for Linden avenue, and the clerk placed that amount on the certificate in figures, and after that was done the resolution to accept Diekmeier’s bid was passed.

The use of the word “certificates” in the finding just referred to, and the statement that the engineer gave the clerk the amount as $2,030 for Linden avenue, indicates that there was on hand a certificate for each of the eighteen streets in similar form and substance, and that the engineer was ready to supply the amount allotted to Linden avenue without delay. Thus corrected the certificate was left on file, and doubtless recorded.

It is not expressly found by the jury that Diekmeier was present, either in person or by a representative, nor is it found that he was not present and had no knowledge of the proceedings. It was not only his privilege but his duty to be present when matters of such prime importance were under consideration by the council. He was vitally interested in what might be done with his bid and it was incumbent upon him to see that he was not entering upon a contract barren of legitimate fruits. He was required at his peril to see that a legal certificate was on file.

It is said by his counsel, that placing the figures $2,030 on the face of the certificate in the lower left-hand corner could have no more force or effect than if endorsed on the back thereof. We can not subscribe to the statement and thus belittle the effect of the action of the clerk. The dollar mark followed -by the figures 2,030 Indicates so much money, and it would so indicate to the minds of ordinary men. The placing of them on the certificate was a public transaction, when their absence was noted and criticised. They were on the face of the instrument and in that condition filed and recorded. A computation at the price bid on the material -shown in the approximate estimate of the engineer, plus cost of advertising and fees of engineer, makes the precise sum of $2,030. All this was done two or three days prior to the formal signing of the contract. It was a paper and a record of which the bidder must take notice, and .the presence of the added figures — added publicly in the meeting of council — could -convey no other information than that they expressed a limit on the fund allotted for Linden avenue.

But how will the case stand if we discard those figures and deal with the original certificate? Diekmeier knew that the fund — $40,480—raised by the sale of bonds, was the sole fund for the improvement of eighteen streets. Lie was a bidder and afterwards a contractor for the improvement of several of them Had he any reason to believe that under the certificate as first drawn, he had the entire sum of $40,480 appropriated to his contract for Linden avenue ? What would become of the appropriation of money for the other contracts?

It is contended that the certificate without the figures is according to the language of the statute, and therefore .sufficient; that the statute does not require a definite sum to be certified as being in the treasury, but that it is- a compliance to certify that there is enough in the treasury unappropriated to other' purposes, to meet the obligation or contract. If there was but a single contract or expenditure in contemplation, the claim might be tenable in such an instance, but this we do not decide. But in the present case it appears there were eighteen resolutions, including the one here involved, adopted at the same council meeting. The bids accepted were separate for the different streets, and separate contracts were executed for such streets. The estimated quantity óf material at the price bid for Linden avenue amounted to $2,030. The claim in suit was more than double that amount. If that should be a standard for the other contracts as the outcome of their performance, the cost of improving the eighteen streets would at least be double the $40,480. The brief of defendant in error admits that the excess charges on all the streets is $16,000 to $18,000.

But we are dealing with the meaning of the section requiring the certificate. After the words of prohibition and the duty of filing and recording the certificate, and their effect, it provided: "and the sum so certiñed shall not thereafter be considered unappropriated until •the corporation is discharged from the contract, agreement or obligation, or so long as the ordinance, resolution or order is in force; and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed, contrary to the provisions of this section shall be void.”

Whatever may be the correct view as to the meaning of this statute where a single contract is let, it seems to be a reasonable construction that there be a definite sum certified for each contract where there are several of the same species entered into at the same time to be paid from a theretofore gross fund. It would seem conducive, if not necessary to the safety of each contractor, that a definite sum be certified, because it is on the perlormance of that act by the village clerk that money to discharge the obligation is set apart and appropriated, and which “shall not thereafter be considered unappropriated,” etc. The two branches of the section must be construed together and when so construed, the entire section given its proper operation. Governed by this rule, we can not say that the original certificate in question was drawn in compliance with said statute, and while in case of a single contract in contemplation, to be satisfied from a single fund, such a certificate might be sufficient, (but we do not so decide), it is quite clear to us that when the statute is to be applied to the subject-matter where several different streets are to be improved for which purpose separate contracts are let on different separate bids, the certificate should contain a specified sum set apart for each' of such contracts. Such must have been the construction entertained in the Linden avenue contract; or rather the resolution authorizing the contract, for the jury found (No. 8) that when the resolution had been read, the solicitor made the objection that the certificate of the clerk contained no specified amount for the improvement of Linden avenue, whereupon the engineer gave the clerk the amount to be inserted for that avenue, and it was placed on the face of the certificate in figures, and after that the resolution was adopted. These acts of the engineer and clerk can not be safely discarded by the contractor, for in doing so, he must rely on a document which was not drawn in compliance with law, and his whole claim would be illegal and void. Under the facts of this case as to the nature and number of contracts awarded at the same time, the original, certificate did not conform to the statute, and the contractor would be without remedy. But with the figures added to the face of the instrument, $2,030 was the sum certified and to that extent the village set apart from the gross fund the amount to cover the Linden avenue improvement. We are told this amount has been paid before suit was brought, and the suit is to recover over $2,260 in excess of that amount.

It is urged for the contractor, that he did not bid a gross sum for improving Linden avenue, but bid for material according to quantity and for certain labor at so much per yard or foot, and so on, and therefore with only the approximate estimate for a basis, it would not be known in advance what should be certified, as the final estimate might exceed the first in a material degree. In addition to this claim it is argued, that the mayor and council visited the work as it progressed, and that some or all of them became aware that the quantities of material being used were far in excess of the approximate estimate, and that the engineer fully understood this.

Again, it is said in the brief that finding 10 in the special verdict shows that “in said specifications the right was reserved to the said Village of Carthage to increase or diminish or omit entirely any of the work therein set forth, but any such action on the part of the village should not vitiate or annul the said specifications or any contract that might be made in accordance with the same, but on the contrary such contract should remain in full force and effect, subject only to the proviso that the value and amount of all of such omissions should be deducted from the amount which would otherwise be due, and that the value and amount of all other modifications, alterations and substitutions should be either deducted from or added to the amount which would otherwise be due, and that any increase in the amount of work should entitle the said Henry Diekmeier to a reasonable extension of the time for the completion of the work.”

In connection with this, we call upon finding 19, which reads: “The council of the-village never took any action increasing the quantities of the work to be done or the material furnished on the improvement of Linden avenue over the amount contained in the approximate estimate, included in the plans and specifications hereinbefore set forth, and no sum or sums of money in addition to the $2,030 was ever appropriated by the council or certified by the clerk of the village for the payment of any part of the- cost of the improvement of Linden avenue, which was to be paid for by the village.” This finding shows that so far as the council is concerned, it never took part in any of the acts which, under finding 10, would increase the amount to which the contractor would otherwise be entitled. And it is an answer to the comment, that while individual members of the council and the engineer, may have had knowledge that greater quantities of material were being used, and therefore more work required than contemplated in the approximate estimate, and while individually, they may have encouraged such expenditure, the council took no action and incurred no liability and did nothing officially to bind the corporation.

If the bidder knew that the approximate estimate made in advance of the contract was not required by law, he knew also that one could be made in order to furnish a guide in making bids; and if it was suspected as being too low in quantities according to the plans and specifications, he was not required to follow it and bid, but insist on a correct estimate -being made.

Moreover, it was not within the power of the council or the village engineer to increase the liability of the corporation beyond the amount for which the certificate had been filed and thereby nullify Section 2702. That would be striking down rather than obeying the statute. No mere final estimate of the engineer, no matter if it is correct in its terms, can increase the corporate liability, neither did the acceptance of the work by the public authorities accomplish that • result. If the contractor found he was deceived by the estimate as to quantities and work, and that the improvement could not be made on such terms, he should have acted promptly and had legal and proper action taken to relieve the dilemma rather than proceed blindly or willingly, expecting that the law and action of council would be relaxed so he could get full compensation by putting another and unexpected burden upon the taxpayers.

No longer can it be said that the contractor need not look to the legal phases of his negotiations with a municipal corporation. He must- be active in protecting himself. This doctrine was announced in McCloud & Geigle v. City of Columbus, 54 Ohio St., 439; and clearly stated in Lancaster v. Miller, 58 Ohio St., 558. It is there held, not only that the terms of a statute regulating the execution of a contract whereby public money will be expended, must be followed, but where the statutory requirements have been omitted, the corporation will not by the acts of its officers be estopped to set up such omissions as a defense to an action brought against it on such contract. The strictness of the rule is justified in the opinion of the court on page 575. Among other things, it is there said: “Contracts made in violation of these statutes should be held to impose no corporate liability. Persons who deal with municipal bodies for their own profit' should be required at their peril to take notice of limitations upon the powers of those bodies which these statutes impose.”' The next paragraph of the opinion is also in point here, but space is not ours for its present quotation.

.The same principle pervades Buchanan Bridge Co. v. Campbell et al., 60 Ohio St., 406; also Comstock v. Nelsonville et al., 61 Ohio St., 288. The third section of the syllabus in that case is: “Whether the certificate required by said Section 2702 has been filed and recorded or not, must be ascertained by each contractor for himself at his peril. In the absence of such certificate, when required, no liability arises against the municipality, even though the contractor has fully performed his contract.”

This court has adhered to the doctrine so often announced, in City of Wellston v. Morgan, 65 Ohio St., 219. If there was anything left in doubt or obscure in the former cases, it surely has been made plain and emphasized in the latter case. There are other decisions, but these are sufficient to establish the law of this jurisdiction.. It seems to us that the present is a proper case for the application of the doctrine of the above cases. To hold otherwise would put it in the power of a contractor to exhaust the people’s money on a few streets, and . leave the others wholly unimproved.

We presume the village refused to pay in excess of the $2,030 certified, and having paid that amount, the plaintiff in error is entitled to judgment on the special verdict. We reverse the judgments of the lower courts and render judgment in favor of plaintiff in error.

Judgment reversed.

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


author: Siíauck, J.

text:
    The Alma Coal Company v. Cozad, Treasurer.

      Imposition upon private property — Against owner for benefit of another — Prohibited by constitution — Act of April 18, 1904, construed.

    1. The provisions of the constitution forbid not only the taking of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another.
    2. The act of April 18, 1904 (97 O. L., 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a- line fence for the sole benefit of the adjoining proprietor.
    (No. 11221
    Decided February 2, 1909.)
    Error to the Circuit Court of Vinton county.
    The coal company filed its petition in the court of common pleas alleging in substance, that it is the owner of a tract of land in Vinton towiiship, Vinton county, Ohio, and that one W. H. Allen is the owner of an adjoining tract; that in the year 1906 said Allen being desirous of having his his lands enclosed, filed his application with the' trustees of the township asking them to view the line dividing his lands from those of the plaintiff and assign to each the share of a partition fence to be constructed and maintained by him. That the trustees complied with that request and ordered Allen to build one-half of said fence and the plaintiff to build the other half; that the plaintiff refused to comply with that order, and that' thereupon the portion so allotted to it was caused to be built and the expense thereof certified to the auditor of the county to be charged upon the tax duplicate against the lands of the plaintiff, and that the defendant, the treasurer, said charge having been made, now threatens to collect the same as a lien upon said lands. Plaintiff further alleges that its lands and all of them are wild, uncultivated and unfenced, and that it has no desire or intention to improve, fence or cultivate any portion thereof, and that said fence is of no value or benefit to it whatever. It alleges that there is no authority whatever for said imposition upon its lands, or upon it, and prays that the defendant be enjoined from the collection thereof. To this petition a demurrer was sustained in the court of common pleas and the petition dismissed. In the circuit court the judgment of the court of common pleas was affirmed.

      Mr. J. M. McGillivrciy, for plaintiff in error.
    The statutes, if they are to be construed as authorizing that which is here complained of, are unconstitutional for the following reasons:
    a. They are in contravention of Section 19 of Article I, Constitution of Ohio, in that they take from plaintiff its private property, without consent and for a private use.
    b. They are in contravention of Section 16 of said Article I, Constitution of Ohio, and of Article V of the amendments to the Constitution of the United States, in that they deprive plaintiff of property without due process of law, and prevents it having a remedy at law for an injury done.
    That the money required in this case to pay the assessment is private property will not be questioned, and, if it be found to be taken for a private use it will doubtless be conceded as falling within the inhibition of Section 19, Article I, Constitution of Ohio. Railroad Co. v. Keith et al., 67 Ohio St., 279.
    The use of the money involved in this action, as appears from the petition, was for the construction of a fence on the line between Allen and the plaintiff, although it is not set forth whether it operates to help make an enclosure for Allen or not.
    From the standpoint that it does make an enclosure for Allen, then our money is taken to build a fence for Allen’s benefit; without our consent and without any benefit accruing to us.
    In Shaver v. Starrett, 4 Ohio St., 599, the constitutionality of the law in relation to township roads was under consideration, and the language of Thurman, C. J., the eminent jurist writing the opinion, sounds a warning against legislation of that character assailed in this action.
    In Reeves v. Treasurer, 8 Ohio St., 345, the court merely held that the drainage of lands, on the application of a single person, with no provision as to public interest, convenience or welfare, was a private matter and that private property could not be taken in its location and construction, even though it be based upon the idea that the taking was compensated by benefits derived from the ditch.
    The act of April 30, 1869, which provided by Section 4 that if the. probate judge was satisfied that said levee or embankment is necessary for the protection of any such lands, or the welfare of such citizens, or any of them, he should appoint viewers and proceed as provided in the location and construction of said levee, was held to be unconstitutional, for the reason that “the public welfare is not within the purview of the act, either in express terms, or by implication.” Smith v. Railroad Co., 25 Ohio St., 91.
    The prosperity of each individual conduces, in a certain sense to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men. McQuillen v. Hatton, 42 Ohio St., 204.
    Police power has been defined many times. State, ex rel., v. Wegener, 77 Minn., 483; 8 Cyc., 863; Lake View v. Cemetery Co., 70 Ill., 191; Black on Constitutional Law, (2 ed.), 334.

      Mr. James W. Darby, prosecuting attorney, for defendant in error.
    A true conception of the difference between the right of eminent domain, and the police power of the state leads to the solution of the legal problem involved in this action. Cooley on Constitutional Limitations (5 ed.), 649, 706; Commonwealth v. Alger, 7 Cush., 53; Pollard’s Lessee v. Hagan, 3 How., 212.
    From these definitions it appears, that the property to be appropriated, under the right of eminent domain must be tangible corporeal property, something that can be taken for the use of the public; taxes, assessments, damages, etc., are not such property. Cooley on Constitutional Limitations (5 ed.), 671.
    In this action as disclosed by the petition of the plaintiff there was no tangible corporeal property taken — not a foot of land nor an atom of personalty; it follows then, in the light of the foregoing definitions and decisions, and cases cited, that .it was not a case for the exercise of the right of eminent domain and therefore Section 19, Article I, Constitution of Ohio and Article V of the amendments to the Constitution of the United States do not apply.
    In the case of Nichols v. Turner et al., 10 C. C., N. S., 509, the court construes this partition fence law and holds it constitutional, and says on page 511, “Further the repeal of Section 4241, taking away the power of either party to remove his part of the fence is important as tending to show, that enclosure or non-enclosure should thereafter not have any effect and that thereafter there should be no 'devil’s lanes.’ ”
    This partition fence law does deal more with the landowner than with the lands, and that makes the law a police regulation. J?he doing away with the “devil’s lapes,” which has always been a very fruitful source of litigation, neighborhood quarrels and controversies, as well as an unsightly monument attesting bad blood and ill-will of the adjoining landowners to the shame and disgrace of the community, is a sufficient reason for enacting and enforcing this partition fence law as a wholesome police regulation. It distinctly falls within the definition of police power,_ which is very broad in its scope.
    It was once the policy in Ohio for domestic animals to run at large; fences then were to protect crops against stock rightfully running at large; but with the ever increasing population of the commonwealth, conditions have changed, and now the stock must be kept up, and with this changed policy necessarily comes the right to regulate as a police power, the fencing of lands and especially the fence between adjoining landowners, that the rights and obligations of each may be defined and limited and the peace, good order, and tranquillity of the neighborhood may be preserved.
   Siíauck, J.

Statutes regulating the construction and maintenance of. fences between the lands of adjoining proprietors when used by both for the purpose of enclosing their lands, have long been in'operation in this state, and their provisions and effect have become quite familiar. But the judgment below in the present case implies the Ariew, that by the act of April 18, 1904, (97 O. L., 138) the general assembly has thought itself empowered to enact that one must submit to an imposition for the construction of his neighbor’s fence, even though his own lands are not otherwise enclosed and he makes no use whatever of the fence to whose construction he is required to contribute, and has no intention whatever of making such use thereof, and that by the act referred to the general assembly has exercised that authority. Some doubt as' to the intention of the legislature will survive a careful analysis of the statute. The first section, as amended by Ihe act referred to, being Section 4239, Revised Statutes, provides, “That the owners of adjoining lands shall build, keep up and maintain in good repair all partition fences between them in equal shares, unless otherwise agreed upon between them, which agreement must be in writing and. witnessed by two persons * * Section 4242 provides that, “If any party neglects to build or repair a partition fence, or the portion thereof which he ought to build, or maintain, the aggrieved party may complain to the township trustees,” etc. Section 4243 provides that if he fails upon notice, to construct said portion, the trustees shall, upon the application of the aggrieved party, sell the contract to the lowest responsible bidder to furnish the labor and material and build such fence according to. the specifications to be proposed by the trustees, after advertising the same, etc. There are other provisions for reporting to the county auditor the cost of the proceeding', and the cost of the erection of the designated portion of the fence, for the record thereof, etc., and an express provision that they shall be collected as other taxes are collected. The act contains no definition of a partition fence which Avould necessarily include a fence constructed and maintained by one proprietor for his sole use and not used by the other in the enclosure of his lands. It would naturally be expected that an intention to inaugurate so radical a departure from previous legislative policies and so manifest a disregard of the commonly accepted views as to the rights of landowners, would be indicated by the use of language of an unequivocal character. The statute of the state had long applied by appropriate terms to a partition fence “dividing the enclosures of two or more persons.” But some purpose must have prompted the amendment of the statute now under consideration, and no conjecture as to that purpose seems more probable than that made by the courts below. No other explanation of the amendment occurs to us or is suggested by counsel. But whatever the intention in fact of the general assembly, as indicated by the terms of the act, may have been with respect to this question, constitutional considerations seem to forbid the interpretation of the act which is implied in the proceedings of the township trustees and in the judgment under review. The powers of the imagination will be exhausted in vain to find a member of society who will be benefited by the imposition which is sought to be made upon the plaintiff, except Allen, the adjoining proprietor who desires to enclose his land. In pursuing inquiries of this character we need not be seriously concerned about forms if we correctly comprehend the substance of things. In the contemplation of the Bill of Rights, a legislative act to transfer title to a portion of the plaintiff’s lands- to its neighbor by compulsion, and without consideration, would not differ from one to assess its lands to an equivalent extent for his exclusive benefit. It would be neither more reprehensible npr less availing.

Upon this aspect of the case two propositions a.re urged in support of the judgment below. It •is said that the act construed as it was in the circuit court, is not an exercise of the right of eminent domain, but only the exercise of the power of levying a tax or assessment, and that these are essentially different powers. That differences between them exist is obvious, and that they are sometimes important is true, but that they are of no importance whatever in the present inquiry is made clear by three propositions which are elementary in constitutional law. In the exercise of the right of eminent domain, property can be taken for a public use only. A special assessment can be made only in consideration of a special benefit conferred upon the owner of the property assessed or upon the property itself. The power to levy a general tax may be exercised only for the carrying out of governmental purposes which constitute the only function of the state. Enough upon this subject has been said in Reeves v. The Treasurer of Wood County et al., 8 Ohio St., 333, and Railroad Co. v. Keith et al., 67 Ohio St., 290.

In support of the judgment below we have the definite proposition that the act, as there construed, is a legitimate exercise of the police power which is confessedly within the constitutional grant of legislative power to the general assembly. Again the vain longing for conceptual definition of the police power is intensified. Counsel are obviously embarrassed by the realization that to the valid exercise of this power it is indispensable that every invasion of a private right must be vindicated by a consideration of the public weal. To meet that requirement, it is suggested that the purpose of the amended legislation is to prevent the occurrance of “devil’s lanes,” which are supposed to provoke neighborhood animosities, and in which live stock, especially horned cattle, are liable to be restrained and injured. Such lanes, instead of being provocative of neighborhood animosities, are indicative of such animosities already in a very high state of development. It v/ill be quite apparent that this conjecture falls far short of helpful suggestion when it is realized that such a lane can not possibly occur when the lands of one of the adjoining proprietors remain wholly without fence.

We do not follow counsel in the present case”, nor the circuit court, in a case cited, in a consideration of the extent of the lands within the state whose owners might be subjected to a like imposition under like circumstances in the view taken of this statute in the courts below. The larger it might appear to be, the more effectively it would divert attention from the really important aspect of the. case. In the opinion of those who framed and adopted our constitutions, and in accordance with the observation and experience of those who have happily enjoyed their protection, private rights in property are subject only to the limit of the public use or the public benefit. In determining the limits of the rights so vested and secured, surveyors’ instruments can not be profitably employed. The record informs us that the plaintiff in the orderly mode appointed seeks relief from a forbidden imposition. Further information is unnecessary. The experiences of courts which have departed from principles of obvious soundness, because the particular cases in which such departures were permitted were not otherwise important, have not been so happy as to invite repetition.

The judgments of the circuit court and common pleas court will be reversed and the demurrer to the petition will be overruled.

Judgment reversed.

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