author: By the Court :

text:
    The Bellaire Stove Co. v. The Midland Steel Co.

      Contract settled by correspondence — Order given in pursuance thereto — Cannot change the contract, when.

    All the terms of a contract being definitely settled by correspondence, an order given by one of' the parties pursuant thereto should not be regarded as changing the contract, unless such change clearly appears to be intended.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Belmont county.
    The Steel Company brought suit in the court of common pleas to recover of the Stove Company on the following account:

      8032 482 shts, 10xl5%x21%, weight 6,390
    508 “ 12xl6%x27ys, “ 6,909
    477 “ 14xl8%x32%, « 6,193
    503 “ 16xl9y8x36, “ 6,005
    449 “ 18x211/4x40%, “ 5,339 — 30,796
    Price..............$3.30, amount $1,016 27
    Less freight, 30,100 lbs. @ 12c........ 36 12
    Stove Body. Total.......,.......$ 980 15
    The case coming on for trial upon issues joined, it appeared that the controversy arose out of a contract entered into by the correspondence following:
    Muncie, Ind., 2-27th, ’99.

      Bellaire Stove Co., Bellaire, Ohio:

    Gentlemen — Replying to your letter, of the 25th inst., beg to state we make a specialty of very fine polished body steel for oak stoves, being soft, smooth and a solid even color throughout the sheet. We, also, guarantee it to stand beading without scaling. Our price on this stock in No. 18 gauge would be $3.30 delivered.
    Soliciting your order, we are, yours truly,
    Midland Steel Company,
    (Signed) R. J. Beatty.
    Muncie, Ind., 3-9th, ’99.

      Bellcdre Stove Works, Bellaire, Ohio:

    Gentlemen — We received your inquiry about ten days ago for price. We quoted you a very favorable figure for our polished oak stove body material. We are today sending you sample. Please examine same and see if you cannot give us your order, as we are entirely sure we are offering you material you could not buy elsewhere.
    Yours truly,
    Midland Steel Company,
    R. J. Beatty. (Signed)

      Bellaire, O., 3-17, 1899.

      Midland Steel Go.:

    Will accept proposition on 18 iron; will want five thousand bodies. Will mail sizes. Wire answer.
    (Signed) Bellaire Stove Co.
    Muncie, Ind., March 17, 1899.

      Bellaire Stove Go., Bellaire, Ohio:

    We have hooked your order for five thousand oak stove bodies.
    (Signed) Midland Steel Co.
    Muncie, Ind., March 23, 1899.

      Bellaire Stove Go., Bellaire, Ohio:

    Gentlemen — We received your telegram on the 17th accepting our quotation and advising that you would require 5,000 bodies. You also stated that you would mail sizes. Up to this writing we have not received them. As this is an extremely busy time of the year would suggest that you send these sizes in at once so as to give us as much time as possible to get them out.
    Yours truly,
    (Signed) Midland Steel Company.
    Bellaire, O., March 27, 1899.

      The Midland Steel Go., Muncie, Ind.:

    Gentlemen — Please ship us 200 each of the following sizes May 1, 200 June 1, 200 July 1, 200 August 1, and 200 September 1:
    No. 10 — 15%x21%.
    No. 12 — 16%x27%.
    No. 14 — 18%x32%.
    No. 16 — 19i/8x36.
    No. IS — 21^4x40%. •
    Tours very truly,
    The Bellaire Stove Co.,
    H. Roemer, Sec. and 'Treas.

      Muncie, Ind., 3-29th, ’99.

      Bellaire Stove Works, Bellaire, Ohio:

    Gentlemen — Receipt is hereby acknowledged of your order of the 27th inst., calling for 5,000 sheets polished stove body steel. We note you call for shipment of 1,000 sheets Aug. 1st. We would have to make this shipment with the quantity for July 1st, as we will be closed down during the month of July on repairs, stock taking, etc. Same will receive our best attention and you will get very fine material.
    Yours truly,
    Midland Steel Company,
    (Signed) R. J. Beatty, President.
    Other correspondence conducted after the controversy arose, in no way affects the terms of the contract. Prior to the conclusion of this correspondence plaintiff had sent to the purchaser a sample of 18 gauge iron but none of any other gauge. The plaintiff, construing the numbers prefixed to the sizes given in the defendant’s letter of March 27,1899, as indicating gauges, or thickness, instead of sizes, of plates, shipped a quantity of material of the gauges of 10,12, and 11, which being too thick for the defendant’s use, were not accepted. The plaintiff offered testimony to show that it is customary to prefix numbers indicating gauges to sizes, and that others accustomed to dealing in the same articles would have interpreted the letter of March 27, 1899, as it did. That evidence was excluded. The court instructed the jury that the correspondence constituted a contract which it was its duty to interpret and that by the contract so entered into the defendant became bound to accept and pay for 18 gauge sheets and none other. The verdiet and judgment in the common pleas were for the defendant, a motion for a new trial being overruled.
    The motion was upon the three grounds following:
    First — For error of law occurring at the trial and excepted to by the plaintiff.
    Second— For error of the court in rejecting testimony offered by the plaintiff.
    Third— The court erred in its charge to the jury.
    This judgment was reversed by the circuit court for error in overruling the motion for a new trial.

      Mr. George Duncan and Mr. O. L. Weems, for plaintiff in error.

      Messrs. Driggs & Heinlein and Mr. J. A. Gallagher, for defendant in error.
   By the Court :

It is not to be supposed that either the learned judges of the circuit court or counsel for plaintiff in error deny the duty of the court to determine the meaning of a contract into which the parties have entered, or that they regard evidence of usage as competent to vary the unambiguous terms of a contract. Their view appears to be that the trial judge erred in regarding the contract as too clear to be affected by evidence of usage and in giving to it the conclusive effect which required a verdict for the defendant. Attention to the negotiation of the parties seems fully to justify the view of the contract which was taken by the trial judge. The vendor furnished a sample of an 18 gauge sheet and none other. It gave the price of that gauge and none other. The purchaser’s communication of March 17, 1899, was a definite acceptance of the proposition for sheets of that gauge, leaving nothing for future determination or information except the sizes of the required sheets. That communication and the vendor’s letter of March 23d, show that in the minds of both the gauge was fully determined, and that nothing remained to be done except for the purchaser to furnish information as to the sizes required. Nor did the letter of March 27th modify the terms of the contract so definitely settled. By its express terms it was but a compliance with the vendor’s request and the purchaser’s promise to furnish the “sizes” of the sheets desired.

Judgment of the circuit court reversed and that of the common pleas affirvied.

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


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Johnson v. The North British & Mercantile Insurance Co.

      Agent of fire insurance company — Not presumptively authorized to receive notice of cancellation of policy, when — Assent of would-be principal of no effect — Where act done by one professing no authority of agent and having none — Law of agency.

    1. One engaged in a general fire insurance business, representing a number of companies, may be authorized by an owner desiring to keep his property insured, to accept for him the company’s notice of cancellation of an existing policy and thereupon to write the risk in another oompany. Such authority may bo directly given, or may be inferred from a course of dealing between the parties involving such transactions. But there is no presumption that the agent to procure a policy of insurance has authority, after he has procured and delivered it. to the insured, to receive notice of cancellation and discharge the policy.

      2. Ratification of an act done without authority can be effectual only where the act is done by one professedly acting in the name of the party sought to be charged as principal, or for his benefit. And where the one who does the act neither has nor professes to have authority to represent another, the subsequent assent of such other to be bound as principal has no operation.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Belmont county.
    The action below in the common pleas of Belmont was by plaintiff in error, Isaac Johnson, against the defendant in error, the North British & Mercantile Insurance Company, upon a fire policy covering dwelling-house, barn, household goods and farming utensils. A jury being waived, the cause was submitted to the court on the pleadings and an agreed statement of facts. The pertinent facts are as follows: .
    1. July 1, 1897, one W. O. Chappell was the general agent at Barnesville, Ohio, for several insurance companies, including the Hartford of Hartford, Connecticut, and the defendant, the North British.
    2. On the day named, Johnson, who was then the owner of and lived upon a farm near Atlas, Belmont county, on the street in Barnesville, applied to Chappell for insurance on his farm buildings and contents. He was told the rate of premium, and promised to call at Chappell’s office, but did not do so.
    3. On the next day Chappell went to Johnson’s farm to secure the insurance. They had a general consultation in which Chappell told Johnson what companies he represented, asked Johnson in what company he wished to be insured. Johnson answered that it made no difference to him, but to place him in some good company. Johnson paid Chappell ten dollars on account of premium, which was to be $13.50. The insurance was then finally agreed upon.
    4. July 5th, Chappell issued and mailed to Johnson policy number 20065 in the Hartford, and notified the company. The written description and printed parts were similar to that of the policy in suit. Johnson duly accepted and held the policy until after the fire.
    5. The Hartford Company, by letter received by Chappell on the 20th, directed him to cancel its policy, and accordingly, on July 28th, Chappell went to Johnson’s to take it up and cancel it. Not finding Johnson at home he requested a son, a lad of about sixteen, residing on the farm with his father, to tell his father to come to his (Chappell’s) office that week and bring the policy; that he desired to change the insurance to another company. The son never informed his father of the request. Johnson never had, until after the fire, any notice or knowledge that the company desired, or that Chappell was directed, to cancel the policy.
    6. On July 29th Chappell wrote the company that he had been to Johnson’s home to get their policy, and cancel it, but that Johnson was not at home, and that he left instructions with his son for its return.
    7. On July 28th Chappell wrote on his policy ledger a cancellation of the Hartford policy, and wrote the policy in suit in the North British in all respects similar to the Hartford policy, save that it was not to take effect until the third day of August following. At the same time he entered the North British policy upon his policy register, and made his daily report of the same to the Company.
    8. August 4th, a fire occurred and the barn building and contents described in both policies were totally destroyed.

      9. August 5th, Chappell, having heard of the fire, went to Johnson’s house. Having been absent from home for four days he did not'know whether Johnson had surrendered the Hartford policy, and wanted to ascertain as to it. Johnson was ill and could not be seen. Learning this, Chappell asked a son, a man about twenty-four years of age, for the policy, stating that he must have it, but did not state that he had placed the insurance in another company, nor that the policy had been ordered canceled. The young man then delivered the policy to Chappell. Johnson had no knowledge that the policy had been so delivered nor had the son authority to deliver it.
    10. Some time after the fire, Johnson called at Chappell’s office to get the Hartford policy, but Chappell not being in, returned home without receiving it. At that time he had no knowledge that any other policy had been written. The policy in suit was delivered to Johnson August 10th. No part of the ten dollars paid by Johnson was returned to him, nor was there any offer on the part of the Hartford Company, or any of its agents, to return the same. He did not ask as to its return, nor did he pay or offer to pay any of the premium for the North British policy.
    11. Johnson never had, at any time before the fire, notice in any way that his policy in.the Hartford had been ordered canceled.
    12. In dealing with each company Chappell charged himself with the full amount of the premium.
    13. August 7th, Chappell notified the defendant company of the loss, and the company responded that its state agent Bell had been instructed to attend to adjustment. Bell thereupon went to Atlas to adjust the loss and then learned from Johnson of the issuing of the Hartford policy, which was the first notice he or the company had of that fact. Johnson at the time supposed Bell was the adjuster of the Hartford Company. Thereupon the defendant company being informed by Bell of the previous issuing of the policy to Johnson in the Hartford, denied liability for the loss.
    14. September 27th, Chappell sent $11.47 to the defendant company in payment of the premium on the policy, which sum was returned by the company.
    15. The policy issued by the Hartford Company contained the following stipulation, regarding cancellation, viz. :
    “This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice, it shall retain only the .pro rata, premium.”
    16. The policy of the North British Company (the one in suit) contained the following provision regarding other insurance, viz.:
    “This entire policy unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, -whether valid or not, on property covered in whole or in part by this policy.”
    17. No other provision was endorsed on said policy or added thereto regarding other insurance, nor was any other agreement of any kind made upon the subject.

      The court found the issues for the plaintiff and assessed the damages at $903.86, for which judgment was rendered against the defendant. This judgment was reversed by the circuit court on the ground that the finding and judgment of the common pleas is not Sustained hy the evidence as shown by the agreed statement of facts and that the same is contrary to law. The plaintiff brings error.

      Mr. Thomas A. Logan and Messrs. Petty & Grew, for plaintiff in error, cited the following authorities :

      Palm v. Insurance Co., 20 Ohio, 529; Krumm v. Insurance Co., 40 Ohio St., 225; Machine Co. v. Insurance Co., 50 Ohio St., 549; Assurance Co. v. Benner, 56 Ohio St., 748; Insurance Co. v. Shoemaker, 1 O. S. C. D., 48; 22 W. L. B., 315; Dibble v. Assurance Co., 70 Mich., 1; Ruggles v. Insurance Co., 114 N. Y., 415; Ellis v. Insurance Co., 50 N. Y., 402; Toy Manufacturing Co. v. Insurance Co., 52 N. W. Rep., 866; Putnam v. Insurance Co., 123 Mass., 324; Pitney v. Insurance Co., 65 N. Y., 6; Insurance Co. v. Lambert, 26 Ore., 199; Northrupp v. Insurance Co., 48 Wis., 420; Insurance Co. v. Hartwell, 123 Ind., 177; Schauer v. Insurance Co., 88 Wis., 561; Ostrander on Ins. (2 ed.), 169; Standard Oil Co. v. Insurance Co., 64 N. Y., 85; Stone v. Insurance Co., 105 N. Y., 543; Ikeller v. Insurance Co., 53 N. Y. Supp., 323; Karelsen v. Fire Office, 122 N. Y., 545; Hamm Realty Co. v. Insurance Co., 83 N. W. Rep., 41; Pollock v. Cohen, 32 Ohio St., 514; Serviss v. Stockstill, 30 Ohio St., 418; Cincinnati v. Anchor White Lead Co., 44 Ohio St., 243; Clarke v. Insurance Co., 21 Ins. L. J., 281; Insurance Co. v. Nill, 114 Pa. St., 248; McAlister v. Insurance Co., 101 Mass., 558; Grace v. Insurance Co., 109 U. S., 278; Frank v. Jenkins, 22 Ohio St., 604; Christy
      v. Douglas, Wright, 485; Whitehead v. Insurance Co., 102 N. Y., 143; Wilson v. Forder, 20 Ohio St., 89; 1 Joyce on Ins., Secs. 463 and 642; Mitchell v. Fire Association, 48 Minn., 278.

      Messrs. Driggs d Eeinlein, for defendant in error, cited the following authorities:

      Kimball v. Insurance Co., 17 Fed. Rep., 625; Goddard v. Insurance Co., 108 Mass., 56; Insurance Co. v. Young, 90 U. S. (23 Wall.), 85; Trustees v. Insurance Co., 28 N. Y., 153; Strong v. Insurance Co., 37 Wis., 625; Eliason v. Henshaw, 17 U. S. (4 Wheat.), 228; 1 Joyce on Ins., Sec. 636; Hermann v. Insurance Co., 100 N. Y., 411; Rothschild v. Insurance Co., 41 Am. Rep., 303; Grace v. Insurance Co., 109 U. S., 278; Van Wein v. Insurance Co., 52 N. Y. Sup. Ct., 494; Stilwell v. Insurance Co., 72 N. Y., 385; Insurance Society v. Insurance Co., 84 Va., 116; White v. Insurance Co., 120 Mass., 330; Rody v. Insurance Co., 53 Wis., 157; Van Valkenburg v. Insurance Co., 53 N. Y., 465; 1 Joyce on Ins., Secs. 636, 637, 638, 639; Insurance Co. v. Nill, 114 Pa. St. 248; McAlister v. Insurance Co., 101 Mass., 558; 3 Joyce on Ins., Secs. 2457 and 2458; Sun Fire Office v. Clark, 53 Ohio St., 414, 427; Insurance Co. v. Kelly, 24 Ohio St., 345; Insurance Co. v. Railroad Co., 28 Ohio St., 69; 3 Joyce on Ins., Sec. 2487; O’Leary v. Insurance Co., 100 Iowa, 173; Insurance Co. v. Fellowes, 12 Re., 584; 1 Disn., 217; 1 Joyce on Ins., Sec. 463; Mitchell v. Fire Association, 48 Minn., 278; Bigelow on Estoppel (2 ed.), 419; Bocock v. Pavey, 8 Ohio St., 270; Davis v. Insurance Co., 95 Wis., 542; White v. Insurance Co., 120 Mass., 230; Insurance Co. v. Hartwell, 100 Ind., 566; Broadwater v. Insurance Co.,
      34 Minn., 465; Quong Tue Sing v. Insurance Co., 86 Cal., 566; Grace v. Insurance Co., 109 U. S., 278; Body v. Insurance Co., 63 Wis., 157.
   Spear, J.

That the agreed premium had not all been paid, nor any part of it directly to the North British Company, and that the North British policy was not delivered to Johnson before the fire, are believed not to stand in the way of a recovery, for neither was a condition precedent to the taking effect of the policy. British Ins. Co. v. Lambert, 26 Ore., 199; Machine Co. v. Insurance Co., 50 Ohio St., 549.

But one of the defenses interposed, and the one specially insisted upon, is that the plaintiff at the time of writing the policy in suit and at the time of the fire, had insurance on the same identical property, for the same identical amount as specified in the policy in suit, in violation of the contract respecting other insurance, and that if the policy sued on be otherwise valid, it is rendered void by reason of the facts here stated.

This proposition is met by the plaintiff with a denial that there had been any violation of the terms of the policy sued upon because the policy in the Hartford company had been canceled prior to the issuing of the North British policy. That the Hartford company endeavored to obtain a cancellation of its policy admits of no denial, and the question is whether or not that effort was effectual. It is contended by plaintiff that it was: 1. Because under the contract between Chappell and Johnson, he became the agent of Johnson for the purpose of keeping the property insured for three years in a good company, which gave him authority to do whatever was necessary to secure that object, and the cancellation of one policy (the company refusing to carry it) and the writing of another were necessary acts in the performance of that duty, and hence the act of Chappell in that behalf was in law the act of Johnson. 2. And if this be not so, yet when Johnson, being apprised of all the facts, elected to claim under the North British policy, that was an election to treat the Hartford policy as rescinded and of no effect; that it was, in other words, a ratification of the act of Chappell in canceling the Hartford policy.

Agency of Chappell. It is not doubted that the legal effect of the transaction was to make Chappell the agent of Johnson to procure for him a policy of insurance on his property for three years in a good company. This office he might properly undertake to perform, inasmuch as its performance did not conflict with his duties to the companies which he represented. He could not serve two masters whose interests were incompatible, but he could properly serve both parties so long as the duties were consistent. British Ins. Co. v. Lambert, supra; Northrup v. Insurance Co., 48 Wis., 420; Insurance Co. v. Hartwell, 123 Ind., 177; Schauer v. Insurance Co., 88 Wis., 561. Hence he might be regarded as the agent of Johnson in procuring a policy in any of the companies he represented, and the authority might be held to go further than this if warranted by the facts. Indeed it has been so often held that an insurance agency, representing several companies, with authority to act on applications and issue policies, as well as to cancel the same in proper cases, may also act as the agent of the insured in waiving notice of cancellation, and in accomplishing the delivery of a new policy when substituted for the one canceled, that the proposition may be regarded as settled law. And it has .been also held that “such agency may be established by a long course of conduct and uninterrupted custom, without express authority being conferred either in writing or by parol.” Hamm Realty Co. v. Insurance Co., 80 Minn., 139; Schauer v. Insurance Co. supra. But the disputed question in the case at bar is, do the facts justify the conclusion that authority to accept notice of cancellation for Johnson was given? Certainly it is not to be inferred from any long course of dealing, for it does not appear that the parties had between them but the one transaction. Nor do the facts found disclose any actual intention to clothe Chappell with power to act for Johnson beyond the procuring of the policy. It does not appear that the minds of the parties, or either of them, was directed to that matter. Not a word was said on the subject. Indeed the conduct of Chappell would imply that he did not, at the time, suppose that he had authority to act for Johnson in the matter of cancellation. The distinct finding is that, on receiving direction to cancel the Hartford policy he “went to Johnson’s to take it up and cancel it,” but did not get. the policy, Johnson being absent, and then wrote the company that “he had been to Johnson’s home to' get their policy and cancel it but Johnson was not at home,” etc. If he had understood that he had authority to waive the five days’ notice for Johnson and consent to the cancellation, it is hardly probable that he would have delayed acting upon it for eight days (from the 20th to the 28th), or would have then informed the company of his failure to see Johnson and procure the policy, or would have neglected to inform it of his act in writing a cancellation on his policy ledger. The meat of the question then is whether the agency of Chappel to procure insurance for Johnson is presumed to continue for the purpose of canceling the policy procured by him, or receiving notice of such cancellation? We think that, both on reason and authority, the question must be answered in the negative. An agent to procure a contract has no power to discharge it implied from the original authority merely, for authority to make a contract can not be held to imply authority to destroy it. And the rule is well established that where one is specially employed to procure insurance on certain property the agency terminates with the procurement of the policy. See, among many authorities, the following: Grace v. Insurance Co., 109 U. S., 278; Kehler v. Insurance Co., 23 Fed. Rep., 709; Insurance Co. v. Sammons, 110 Ill., 166; Assurance Soc. v. Insurance Co., 84 Va., 116; Insurance Co. v. Will, 114 Pa. St., 248; Broadwater v. Lyon Ins. Co., 34 Minn., 465; Quong Tue Sing v. Assur. Corp., 86 Cal., 566; Von Wein v. Insurance Co., 52 N. Y. Sup. Ct., 490; Rothschild v. Insurance Co., 74 Mo., 41; Stillwell v. Insurance Co., 72 N. Y., 385; Hermann v. Insurance Co., 100 N. Y., 411; Body v. Insurance Co., 63 Wis., 157; Lumber Co. v. Insurance Co., 95 Wis., 542.

Attention is called by counsel for plaintiff in error to the unreported case of Germania Fire Ins. Co. v. Shoemaker, 1 O. S. C. D., 48, error to the circuit court of Hancock county, decided by this court October 29, 1889, adversely to the company. In that case the owner applied to the agent for two policies, leaving it to the latter to select the companies. He selected the German and the Kenton, but expressed doubt whether the latter would accept, and it was then arranged between them that the policies should be written in the two companies, but if the Kenton should refuse, then that policy should be canceled and an equally good one should be substituted; and the two policies were then written and delivered. The Kenton, on' being notified, did refuse, and that policy was thereupon canceled, and a policy written in the Germania, also represented by the agent. The agent thereupon mailed a postal card to the insured advising of the cancellation and of the writing of the Germania policy, which card was received by the latter before the fire. It is entirely clear that this decision cannot aid the counsel’s contention.

The provision of the Hartford policy respecting cancellation required five days’ notice to the insured, which notice was not given. Unless the act of Chappell, in writing a cancellation on his policy ledger binds Johnson, it is difficult to see why. the Hartford policy did not continue in force until the fire. '

Did the election of Johnson to sue on the North British policy have the effect to ratify the act of Chappell in entering a cancellation of the Hartford policy on his policy ledger, and if so, could that ratification affect the defendant Company? We think this question, also, must receive a negative answer. Assuming, without holding, that such election to sue would in any case be a sufficient ratification, in the present case Chappell did not purport to act for Johnson, nor assume to have authority to do so. To cause an unauthorized act to be validated by subsequent ratification, it must appear to have been done in the name of, or for the benefit of, a principal. That a ratification is effectual only when the act is done by one professedly acting as the agent of the party claiming to have been the principal, is held in Mitchell v. Fire Assn., 48 Minn., 278. See also Joyce on Ins., Sec. 463; Huffcut on Agency, 30; Mechem on Agency, Sec. 127, and authorities cited; and Wharton on Agency, Sec. 62.

Another consideration deserves attention. At the time the claimed ratification took place the rights and liabilities of the parties had, by the terms of the contracts themselves, become fixed, and whether, in any case, intervening rights of third persons could be injuriously affected by subsequent ratification, it is not too much to say that to have that effect the intent to ratify, and the sufficiency of the ratification, should be clearly shown. Ordinarily the ratification relates back to the time of the act ratified, but in Pollock v. Cohen, 32 Ohio St., 514, it is held that: “Where, however, intervening rights have been acquired by a third party, such intervening rights cannot be injuriously affected by the ratification,” citing Wharton, Secs. 77, 78; Paley’s Agency, 345; Taylor v. Robinson, 14 Cal., 396; Wood v. McCain, 7 Ala., 800; Fiske v. Holmes, 41 Me., 441; Parmelee v. Simpson, 72 U. S. (5 Wall.), 81. Whether the principle announced in Pollock v. Cohen, supra, is or not controlling under the circumstances of this case, we are satisfied that, upon all the facts, the plea of ratification cannot avail the plaintiff in error.

Our conclusion is that the Hartford company’s notice to Chappell of its desire to cancel the policy was not notice to Johnson, and inasmuch as the company had not availed itself of its right to cancel by proper notice to the insured, the policy remained in force at the time of the fire. This contention being determined against the plaintiff we see no escape from the conclusion that the Hartford policy constituted other insurance on the property within the meaning of the clause in respect to that matter in the policy in suit, and that the existence of a contract of other insurance without complying with the provisions of the policy of the defendant Company rendered its policy void at its election, and that, having elected, on first being informed of the facts, to treat the contract as void, the Company cannot be held. Insurance Co. v. Railroad Co., 28 Ohio St., 69; Sun Fire Office v. Clark, 53 Ohio St., 414.

Judgment affirmed.

Burket, Davis and Shauck, JJ., concur.


author: Bukket/J.

text:
    City of Canton v. Shock et al.

      THparian rights — Municipality a riparian proprietor — May -use water needed from stream -flowing by — Lower proprietor on same stream no legal cause for complaint — When water insufficient for both, each entitled to reasonable use — Neither to exclude the other — Equitable division of use, question for jury.

    1. An incorporated municipality situated on a natural flowing stream, is, in its corporate capacity, a riparian proprietor, having the rights, and subject to the liabilities, of such proprietor.
    2. Such municipality so situated has the right to use out of such stream all the water it needs for its own proper purposes, returning to the stream the water not consumed in such use.
    3. Such municipality so situated, may supply water to its inhabitants for domestic use, returning to the stream the water not consumed; and a lower proprietor who uses the water of the same stream for power, has no legal cause for complaint against such upper proprietor for so using the water of the stream.

      i. Where there are upper and lower proprietors upon a natural running stream, both having manufactories propelled by the water of the stream, and the water is insufficient to fully supply the needs of both, each one has a right to the reasonable use of the water, considering all the circumstances.

      5. In such cases the water of the stream should he so divided and used that each proprietor shall hear his fair proportion of the loss caused by the shortage of water, considering all the circumstances of the case.
    6. Such municipality so situated, has no right to materially diminish the flow of water in such stream, to the injury of a lower proprietor, by supplying water from the stream to persons outside of such municipality, or to be transported away from such city, or by supplying to manufactories for power purposes more than a reasonable share of the water, considering all the circumstances.
    7. In case of difference between such proprietors as to the use of water for power purposes, the question should be left to a jury to say whether under all the circumstances the party complained against has used more than his fair proportion of the water of the stream.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Stark county.
    The city of Canton is a municipal corporation and is situated between the east and west forks of Nimishiller creek, the forks meeting at or near the south line of the city and thus forming that creek. The entire natural drainage of the city is toward, and into these two forks of the creek, which is a natural watercourse.
    The city has established its system of water-works on the west branch of the creek, on a lot of land adjoining said branch, and it takes its water supply from said creek, and from certain wells near the same, and from Myers’ lake nearby. The city uses so much of the water supply thus passing through its waterworks, as it needs for its use as a city, and supplies its inhabitants with water for domestic, commercial and manufacturing- purposes, at a price fixed by the city, so as to produce an income about sufficient to pay the expenses of said water-works.

      The defendants in error own a water-power grist mill located on the creek a short distance down stream south of the city, and have used the water of the creek for many years — over fifty — as power to run their mill, and until about the year 1887 there was sufficient water to supply both the city and the mill, but as the city grew and extended its water-works, it used larger quantities of water, and thereby the supply to the mill became reduced to such an extent that in dry seasons of the year, there was not sufficient water to run the mill all the time, and it became necessary to shut down at nights.
    Thereupon in the year 1898, the defendants in error, plaintiffs below, commenced an action against the city in the court of common pleas, seeking to recover damages from the city for thus using the water, and thereby diminishing the supply to the mill. The city claimed to be a riparian owner and entitled to make such use of the water of the stream as it had made, and that the plaintiffs below had no greater right to the use of the water to run their mill, than the city and its inhabitants had to use the waters of the creek above the mill, for domestic, commercial and manufacturing purposes.
    Upon the trial of the case these questions were put in issue by the pleadings and evidence. Thereupon the court charged the jury as follows:
    “On the question of the right of the city to take this water for the purposes named, the defendant claims that substantially all the water diverted by it from the creek in question, and which was not returned to said creek, was used for the purpose of supplying the inhabitants of the city and a small portion of territory adjoining thereto, with water for domestic, sanitary, agricultural and manufacturing purposes. That said stream does now and for many years has passed in and through the corporate limits of said city. That it owns the premises upon which its pumping station is situated, and has lines of pipe proceeding from said creek and pumping station, and passing through the city to supply said persons, and that it is in a sense, a riparian owner, located on said stream, and it claims that the inhabitants of said city so supplied by it, have the rights of riparian owners in said stream; that is to say — the right to use the same for domestic, agricultural, sanitary and manufacturing purposes; and I am requested by defendant counsel to say to you as matter of law that if these facts are true, and if the water so drawn from said stream and not returned to it so as to be effective for plaintiffs’ water power, was substantially all consumed by the citizens of said city and territory adjoining thereto, for the purposes and uses aforesaid, and if their uses were reasonable in manner and extent; then the city would not be liable to the plaintiffs, although such use might so diminish the volume of said stream, that at certain times of the year it would cause a substantial diminution of plaintiffs’ water power.
    “I say, I am asked by defendant’s counsel to so instruct you, but I cannot so instruct you as matter of law. On the contrary, I say to you as a matter of law, that the undiminished flow of a natural private stream, such as the one in question, is conceded to be, is the right of every riparian owner, yet this right is limited to this extent; that each riparian owner may without subjecting himself to liability to another lower riparian owner, use of the stream whatever is needed for his own domestic purposes and the watering of stock. The defendant, the city, cannot be considered a riparian owner within the scope of this exception.”
    The city saved exceptions to this part of the charge and to the charge as a whole.
    A verdict was. returned in favor of plaintiffs below, motion for new trial overruled, judgment entered on the verdict against the city, and a bill of exceptions allowed, signed and made part of the record.
    The circuit court affirmed the judgment, and thereupon the city filed its petition in error here, seeking to reverse the judgments below.

      Mr. Ed. L. Smith, city solicitor, and Messrs. Lynch, Day & Day, for plaintiff in error. ¡
    We believe the following propositions of law are indisputable: That in order to generate power or for other artificial purposes there is no ownership or property in the waters of a flowing stream in the sense that there is ownership of land or chattel property. As to running streams the interest or right for such purposes pertains only to its use. All riparian owners have a right to use and consume the waters of a stream for domestic, sanitary and agricultural purposes even though such use would debar a lower riparian owner of any use of such stream. The primary use of waters of a stream is to satisfy the natural wants of mankind and such use is paramount to the right of other riparian owners to use the same stream to supply their artificial wants; for example, the running of a mill. This proposition is supported by the following authorities. Washburn on Easements, 330-1; Angelí on Water Courses, Secs. 128-9.
    There may have been a time, when there were few villages or towns on the banks of the smaller streams, that the courts were inclined to protect these water rights for mill powers; for then such streams were supplying abundant water for such powers as well as for the domestic purposes of the inhabitants on the borders of the streams, but as the country became more densely populated and the flow of the smaller streams from natural causes gradually diminished, the use of the water for one or the other of such purposes was necessarily curtailed. There has been no time when the courts have held that the owners of mill powers on streams have superior, or, we submit, equal rights to the use of the water for power with the natural rights of such inhabitants to use it for domestic purposes. Now when the country has become more thickly settled and villages and towns are building up on the borders of the streams, and it is absolutely necessary for the inhabitants to be supplied with good and wholesome water for domestic purposes, they must be protected in their natural rights, as against mill owners who attempt, in this age of cheap steam power, to maintain old imaginary rights to the use of the Avater for power for their mills as against such natural rights, and surely when such inhabitants combine and pump the water for such use through pipes and reservoirs and charge themselves for the use of the water, only in a sufficient amount to pay the expenses of the pumping and of keeping their water-works and mains in proper working condition, they must not be classed as vendors and water companies doing business for commercial purposes. Jones on Easements, Sec. 747; Barre Water Co. v. Carnes, 65 Vt., 626.
    The theory of natural rights for which we contend is nowhere better stated than in Mayor v. Commissioners, 7 Pa. St., 348.

      The question was again considered by the Supreme Court of Pennsylvania in Philadelphia v. Collins, 68 Pa. St., 106; City of Elgin v. Hydraulic Co., (85 Ill. App., 182) Engineering Record of November 18, 1899; Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34; Haupt’s Appeal, 125 Pa., 211.
    The distinction between public and private streams is more as to the mode of access than as to the use of the water thereof. Public streams are public highways open at all times to access to all persons, but to private streams access must be had at public highways or by lands adjacent to the stream; but as to the ownership of the water there is no distinction, for in neither case is there any private ownership of the water, but in both case's, access having been obtained, the right to use the water is the same. St. Anthony Co. v. Water Commrs., 168 U. S., 349; Lee v. Lee, 50 N. W. Rep., 33.
    The old notion of riparian rights was that the riparian owner was entitled to the flow of the stream undiminished in quantity and unimpaired in quality, but there are many recent decisions to the effect that what has heretofore been regarded as sacred rights must to a certain extent give way to the public welfare. '
    In support of this proposition are the following authorities: Pennsylvania Coal Co. v. Sanderson, 113 Pa., 126; Commonwealth v. Russell, 172 Pa., 506, Maryfield v. Worcester, 110 Mass., 216; Morse v. Worcester, 139 Mass., 389.
    These cases are in a measure departures from the ancient rule, but are based upon modern conditions and public necessity and show the direction the courts are moving in defining the right in the flowing stream, between municipal corporations, where the water is sought to be used to supply the natural wants of its inhabitants, and a lower riparian owner desiring to use the water for power purposes.
    Not only did the court fail to recognize the rule laid down by the authorities herein cited but went to the extent' of preventing the jury from considering the question as to whether the city, in the use it was making of the waters of the stream, was using it in a reasonable manner and to a reasonable extent.
    That this is a proper question to be submitted to the jury is sustained by the following authorities: Jones on Easements, Sec. 752; McElroy v. Goble, 6 Ohio St., 187; Wadsworth v. Tillotson, 15 Conn., 365; Hazeltine v. Case, 46 Wis., 391; 4 Ill., 494.

      Messrs. Webber é Turner and Mr. A. A. Thayer, for defendants in error.
    The question is: Is a municipal corporation, through which flows a natural, private stream, a riparian owner, in such sense that it may divert all the waters of the stream, for the use of its inhabitants, without compensating lower proprietors, who have been injured thereby?
    This question has been so often answered in the negative by the courts, and voluminously considered by text writers, that the simple citation of authorities should be sufficient to settle it. We select from a large number at hand, the following: Emporia v. Soden, 25 Kan., 588; Garwood v. Railroad Co., 83 N. Y., 400; Frobel v. New York, 164 N. Y., 522; Plumleigh v. Dawson, 1 Gilman, 544 (41 Am. Dec., 199); Elliott v. Railroad Co., 10 Cush., 191 (57 Am. Dec., 85); Tiedeman on Munic. Corps., Sec. 354; Dillon on Munic. Corps., Secs. 597, 607; Gould on Waters, Sec. 245; Mills on Eminent Domain, Sec. 79; Lewis on Eminent Domain, Sec. 62; Coal & Iron Co. v. Tucker, 48 Ohio St., 41.
   Bukket/J.

As this is an action against the city for damages, no question as to eminent domain, or appropriation of private property for public uses, is involved in the issue, the controlling issue being as to whether the city, as a municipal corporation, is a riparian proprietor having the right to use the waters of the creek for its own purposes, and to supply them to its inhabitants for the ordinary purposes of life, and as to whether the right to use water from a stream by one riparian proprietor for manufacturing purposes, such as running a grist mill, is inferior or equal to the right to use the water from the same stream by an upper proprietor for domestic purposes.

It is urged by counsel for defendants in error, that a municipality situated on a natural water course, is not in its corporate capacity, a riparian proprietor, and that only those inhabitants whose lots or lands border on the stream are such proprietors, and some cases are cited which seem to take that view of the law.

Other cases are decided upon the theory that such municipality is itself, in its corporate capacity, a riparian proprietor, and entitled as such to riparian rights in the stream upon which it is situated. Barre Water Co. v. Carnes, 65 Vt., 626; Mayor v. Commissioners, 7 Pa. St., 348; Philadelphia v. Collins, 68 Pa. St., 106; Jones on Easements, Sec. 747, and cases cited in a note to the section.

In this state the question remains undecided by this court, and therefore is an open one, and we are at liberty to follow such rule of decision as is supported by sound reason and the weight of authority.

It was held by this court at this term in City of Mansfield v. Balliett, 65 Ohio St., 451, that a city situate on a stream is liable in its corporate capacity to a lower proprietor for polluting the water of such stream by running the sewage of such city and its inhabitants into such stream. This case holds the city in its corporate capacity, and as an upper proprietor, liable to a lower proprietor for polluting the water of the stream; and if the city is liable, not only for its own acts, but also for the acts of its inhabitants, in flowing sewage into the stream, it must be upon the principle that as upper riparian proprietor, it has violated its duty toward a lower riparian proprietor on the same stream, and that therefore the city in its corporate capacity is a riparian proprietor on the stream, and must bear the burdens of.such position.

While the inhabitants own their lots individually, the city owns the streets, the fire department and all other public property and public works, and in its corporate capacity, provides for the convenience and welfare of its inhabitants, as to streets, flue protection, lighting and supplying water, and in such, and other like matters, the city overshadows the individuals, and stands in its corporate capacity as a single proprietor extending throughout its entire limits, and entitled as such to all the rights and subject to all the liabilities of a riparian proprietor on the stream upon which it is situated.

Sound reason, the weight of authority, and the present advanced state of municipal government, rights and liabilities, require that a municipality should be held and regarded, in its entirety, as an individual entity, having in its corporate capacity the rights, and subject to the liabilities, of a riparian proprietor, and we so hold in this case.

The bringing of the action against the city for damages is of itself an implied admission that the city in its corporate capacity, is an upper proprietor, liable for the wrongful diversion or use of the water of the stream upon which it is situated. Being-charged with the liability of such upper proprietor, as conceded by bringing the action and as was rightly held in the Mansfield case, it must also be accorded the rights and benefits of such proprietor.

As such proprietor, the city uses the water of the stream, through its water-works, in extinguishing fires, sprinkling streets, and other public purposes, and supplies water to its inhabitants for domestic use, and manufacturing purposes.

Being an upper riparian proprietor, it follows as a matter of law that it has the right to use out of the stream all the water it needs for its own purposes, returning to the stream all that is not consumed in such use; not however, transporting the water, as was done in Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34, nor diverting the water as was done in Wheatley v. Chrisman, 24 Pa. St., 298.

The right of an upper proprietor to use the water of a stream for manufacturing purposes, is at least equal to the right of a lower proprietor on the same stream to use the water for a like purpose, and so long as the upper proprietor uses the waters reasonably and returns all the water not consumed in the use, back into the stream, the legal rights of the lower proprietor are not invaded.

There being no right of property in the water of a natural flowing stream, the only right being to the use of the water as it flows by the lands adjoining the stream, it follows that as the water comes first to the upper proprietor, he may use it reasonably for power purposes, returning to the stream all that is not consumed in the use, .and that the right of the lower proprietor attaches only to the use of the water that comes to his premises after passing and so serving the purposes of the upper proprietor.

As the right of the city to supply water to manufactories within its bounds for power purposes is only equal to the right of a lower proprietor to use water for the same purpose, jlie question arises in this case as to the rights of the parties to use the water of the stream for such purposes. The question is a difficult one both in theory and application, as the different sizes of streams, and different circumstances, have caused courts to make different holdings, but the combined result of the cases, seems to be that where there is not sufficient water in a stream to supply fully the needs of all the proprietors on the stream for power purposes, no one has the right to use all the water and thereby deprive those below him from the use of any; nor can those below rightly insist that those above shall use no water for power and thereby save it all for those below. Each should use the water reasonably, and so as to do as little injury to the others as circumstances will permit. As a loss must fall upon one or the other of such^proprietors, neither should be compelled to bear the whole loss, but the water should be so divided and used that each one may bear his reasonable proportion of the loss, and that in case of difference between upper and lower proprietors in such cases the question should be left to the sound judgment of a jury, under proper instructions, to say whether the party complained against has used for power purposes, under all the circumstances, more than his just proportion of the water of the stream. Evans v. Merriweather, 3 Scam. (Ill.), 492.

This being so, the city of Canton, in supplying water to its inhabitants for power purposes, had the right to use the water of the stream to a reasonable extent only, and so as to do as little injury as might be, under all the circumstances, to the lower proprietor, each party bearing an equitable share of the loss caused by the shortage of water. Dry seasons are not caused by either party, but are the act of God, and each party must bear the losses resulting to him therefrom.

From the earliest dawn of history to the present time, the primary use of water has been for domestic purposes, and its secondary use for the purposes of power. People on the upper stream have the right tb quench their thirst, and the thirst of their flocks and herds, even though by so doing the wheels of every mill on the lower stream should stand still. Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34, 41. And the same right in the use of water as to quenching thirst, extends to all uses for domestic purposes; and the rights of a lower proprietor to the use of the waters of a stream for power purposes, is subject to the superior right of all upper proprietors for domestic purposes, and must yield thereto.

All water powers on a stream are established subject to the superior right of all upperproprietorstouse water out of the stream for domestic purposes, and if the upper proprietors have grown so large, or become so numerous as to consume most, or all of the water, the lower proprietors have no cause of complaint, •because it is only what they should have reasonably expected in t-he growth and development of the country, and subject to which contingency they established their water powers.

In addition to taking water from the stream for its own uses, and supplying the same to its inhabitants for domestic and manufacturing purposes, the amended petition avers that the city supplied water to its inhabitants for commercial purposes. If this means only that the city received pay for the water, so supplied, and thereby made the water an article of commerce, the averment is of no force. The city having the right to supply water to its inhabitants for domestic and manufacturing purposes,. it can make no difference in that right, that the supply is for pay, rather than for nothing. The injury, if any, to the lower proprietor arises from the taking of the water, and not from the pay received therefor.

It is also averred in the amended petition that the city supplies water to people outside of the city, for domestic, commercial and manufacturing purposes. If such supply to outsiders, or to be transported away from the city for commercial purposes, is sufficient in quantity to materially injure defendants in error, taking into consideration the size of the stream and water supply, the city to that extent is exceeding its right as a riparian proprietor.

The general rule is well stated by Paxson, J., in Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34, 41, as follows: “The principle established by a long line of decisions is that the upper riparian owner has the right to the use of the stream on his land for any legal purpose, provided .he returns it to its channel uncorrupted and without any essential diminution; that in all such cases the size and capacity of the stream is to be considered, and that any interruption of, or interference with, the rights of the lower riparian owner is an injury for which an action will lie, unless too trifling for the law to notice.”

The obligation to return the water to the stream without “any essential diminution” means that the water not consumed in the use, or “legal purpose,” must be returned to the stream, or an opportunity given for it to flow back into the stream by the ordinary channels. It cannot be' lawfully diverted, or transported, so as to prevent it from flowing back into the stream.

The city having no right to materially diminish the flow of the water in the stream to the injury of defend-, ants in error, by supplying water to outsiders, or for commercial purposes to be transported to other parts, or to supply to its inhabitants for power purposes an unreasonable quantity as above pointed out, it follows that if the city has materially diminished thé flow of the water in the stream, by so supplying water to outsiders, or for transportation, or unreasonably for purposes of power, that it is liable to respond in damages to the party injured thereby; but for the water consumed by the city for its own purposes, or so supplied to its inhabitants for domestic use, even though it received pay therefor, it is not liable.

The water taken by the city from the stream for its own use, and so supplied to its inhabitants, is taken by virtue of its rights as a riparian proprietor, and not by virtue of the right of eminent domain, and therefore no compensation need be made therefor.

The general rule that a lower proprietor is entitled to the natural flow of a stream undiminished in quantity, subject to the lawful use of the water by upper proprietors, has been referred to with approval by this court in several cases: Columbus & H. Coal & Iron Co. v. Tucker, 48 Ohio St., 41; City of Mansfield v. Balliett, 65 Ohio St., 451. In the Mansfield case there was no question involved as to the volume or quantity of water, the only question being as to the liability of the city for polluting the waters of the stream, and the right of the lower proprietor to recover damages for such pollution. The case of Columbus & H. Coal & Iron Co. v. Tucker, supra, was also by a lower proprietor against an upper one, for damages for polluting the waters of a stream.

' The question as to the pollution of the waters of a stream in this state seems to be fairly well settled by these two Ohio cases, but they do not determine the relative rights of upper and lower riparian proprietors, as to the use of the waters of a stream, as was' so strongly urged by counsel for defendants in error.

The court'of common pleas erred in its charge to the jury as to the city being an upper riparian proprietor, and as to its right to use water out of the stream for its own purposes, and as to its right to supply water from the stream to its inhabitants for domestic and manufacturing purposes. The real and only question upon which a liability could be founded, viz., whether the flow of the water in the stream was materially diminished, to "the injury of the lower proprietors, by the supplying of water by the city to people outside of its limits, or to be transported away from the city for commercial purposes, or by an unreasonable supply of water for power purposes, seems to Lave been overlooked, and no charge requested or given on that subject.

The circuit court erred in affirming the judgment of the common pleas. Both judgments will be reversed, and the cause remanded for further proceedings.

Judgments reversed.

Spear, Davis and Shauck, JJ., concur.


author: Price, J.

text:
    The State of Ohio v. Courtright.

      Indictment for perjury — To ivarrant conviction — Must be at least one witness to corpus delicti — With corroborating witness or circumstantial evidence — Evidence.
    It is a general rule, that to warrant a conviction under an'in: dictmenf for perjury, there should be at least one witness to the corpus delicti, or the falsity of the matter assigned as perjury, and that the testimony of such witness be corroborated, either by another witness, or by circumstantial evidence sufficiently strong to satisfy the jury beyond a reasonable doubt of the guilt of the accused. ,
    (Decided February 25, 1902.)
    Error to the Circuit Court of Jackson county.
    At the February term of the court of common pleas of Jackson county, for the year 1900, the defendant in error was indicted by the grand jury for cohabiting in a state of adultery with one Amanda Butcher. He was placed on trial at a subsequent term, and in making out his defense, he became a witness in his own behalf, and in his testimony under oath, denied all the acts of illicit intercourse charged in the indictment; but he was found guilty and sentenced accordingly.
    By another grand jury he was indicted for the crime of perjury, in that he gave false testimony on the former trial wherein he denied the acts of adultery. On the trial for perjury, no witness was produced by the state who testified to the falsity of the matter assigned as perjury, but the state rested its case for conviction, on circumstantial evidence, at the close of which the defendant asked the court to direct a verdict of acquittal. This request was denied, and the defendant introduced his testimony. He was found guilty and sentenced to a term of imprisonment, from which error was prosecuted in the circuit court.
    The grounds of error relied on, and which were sustained by the court, are in substance:
    1. That the. trial court erred in refusing to direct a verdict for the accused, at the close of the testimony of the state.
    2. The court erred in the charge to the jury.
    . The circuit court reversed the judgment of the trial court, and remanded the case for new trial and further proceedings. The state now prosecutes error in this court to reverse the circuit court, in order that the sentence may be carried into execution.

      Mr. A. E. Jacobs, prosecuting attorney for Jackson county, for plaintiff in error, cited the following authorities :

      Beach v. State, 32 Tex. Crim. Rep., 240; Plummer v. State, 35 Tex. Crim. Rep., 202; Crusen v. State, 10 Ohio St., 258; Wharton on Crim. Evidence, Sec. 38-7; United States v. Woods, 39 U. S. (14 Pet.), 430; Bouvier, Title Corpus Delicti; 1 Greenleaf on Evidence, Sec. 257; Commonwealth v. Parker, 2 Cush., 212; Queen v. Muscot, 10 Mod., 193; State v. Raymond, 20 Iowa, 582; Underhill Crim. Evidence, Sec. 469; Hughes on Crim. Law and Proced., Sec. 1660.

      Messrs. McGhee & Willis, for defendant in error, cited the following authorities :

      Commonwealth v. Parker, 2 Cush., 212; Iowa v. Raymond, 20 Iowa, 582; Underhill Crim. Evidence, Sec. 468; Hughes on Crim. Law, Sec. 1650; 2 Bishop’s New Crim. Proced., Secs. 927, 928, 932; Greenleaf on Evidence, Secs. 257 and 258; Galloway v. Indiana, 29 Ind., 442; 2 Starkie on Evidence, 262; Roscoe’s Crim. Law, (8 ed.); 3 Russell Crim. Law, 791; 3 Rice Crim. Evidence, 791; Commonwealth v. Butland, 119 Mass., 317; Wharton’s Crim. Law (9 ed.), Sec. 1319; Montana v. Gibbs, 10 L. R. A., 749; Williams v. Commonwealth, 91 Pa. St., 493; Crusen v. State, 10 Ohio St., 258; Sec. 7296, Rev. Stat.; United States v. Woods, 39 U. S. (14 Pet.), 430.
   Price, J.

It is conceded in argument and also shown by the record, that on the trial of the defendant in error on the indictment for perjury, the state produced no witness who testified that the matter assigned as perjury was false, but relied for conviction wholly on circumstantial evidence to contradict the sworn statements at the former trial, as well as to make out every other element of perjury. And the absence or lack of such direct or principal witness to the falsity of such sworn statements was the ground of the motion to direct an acquittal in the trial court.

The same question was again raised by exception to the charge of the court, and the two points will be considered together, because, the reason which prompted a refusal to direct a verdict for the accused is found in the instructions given the jury.

Looking to the charge of the court we find two im consistent views of the law laid down for the guidance of the jury. Each of these views is wrong. One is too strong in favor of the accused, and follows the older English and American authorities, while the other view is opposed to all the authorities, both old and new, and was very prejudicial to the defendant in error. The jury were first told by the court that: “It is a rule of criminal law in the trial of perjury, that you cannot find a man guilty of perjury upon the testimony of one witness alone, bnt it must be corroborated by another witness, or if not by another witness, then by circumstances which are practically equivalent to the testimony of another witness. That is to say, if there is only one witness in the case, who testified to that effect, and the defendant having testified to the contrary in the former trial, that is oath against oath, and there can be no preponderance; and not only that, but to overcome the presumption of his innocence, and to satisfy the jury beyond a reasonable doubt as to the falsity of the statement which he is charged to have made, it must be established by one witness who must be corroborated and sustained by another witness, or, by circumstances which practically amount to the same thing.”

This language shows the necessity for the one direct witness, and in this respect is correct; but it places the standard of corroborating proof too high as we shall presently see. The corroborating facts and circumstances are not required .to be equal or tantamount to the second witness. Crusen v. State, 10 Ohio St., 258. This part of the charge, as before stated, was too broad and in favor of the accused; and while he has no occasion to challenge its soundness, it is a subject of just complaint, that the next paragraph of the same charge is not only utterly inconsistent with this, but is also in violation of established rules and principles of practice. In the later paragraph the court wholly abandons the first position taken, and dispensed with the necessity for at least one direct witness to the corpus delicti, or falsity of the former testimony, and the jury were told that the lack of this direct witness might be supplied by circumstantial evidence, which should be corroborated by other circumstantial evidence.

Here is a part of what the court said on this subject : “Now, upon this point it is probably true that no witness has testified positively direct to any act of intercourse, but witnesses undertake to detail circumstances and conduct from which the state or prosecution undertakes to say that acts of intercourse took place between these parties.

“Upon this the court says to you, if the witness details conduct or relates a set of circumstances from which the only reasonable conclusion of the jury would be that intercourse must have taken place, in the event that that conduct or circumstance is true, then the witness who testified to that conduct or circumstance from which the jury would necessarily infer intercourse, must be corroborated by another witness or by circumstances which amount to the same thing.”

Prom the language it is clear that the trial court not only dispensed with the essential one witness to the falsity of the former sworn statement — the corpus delicti — which was said to be the requisite in the first paragraph quoted, but it is now said that the place of such witness may be supplied by evidence of .“conduct or a set of circumstances from which the only reasonable conclusion of the jury would be that intercourse must have taken place;” and that “in the event that that conduct or circumstance is true, then the witness to that conduct or circumstance from which the jury would necessarily infer intercourse, must be corroborated by another witness, or by circumstances which amount to the same thing.”

It will be observed that the court stated a higher degree of corroboration than is required, and it was done at the sacrifice of the more weighty matter of the law that requires at least one witness to the falsity of the matters assigned as perjury; and the jury was instructed in substance, that the office of the one witness may be filled by a witness who testifies as to conduct of the accused, or to a set of circumstances from which guilt might reasonably be inferred, and that if this witness to conduct or set of circumstances is corroborated by a witness who details other, or, it may be the same conduct or circumstances, the accused may be convicted of perjury.

The same error is amplified in the remainder of the charge which we will not quote, but its substance is that the jury might convict of perjury on evidence wholly circumstantial. It has been urged in argument for the state, that on account of the inherent difficulty of proving adultery except by circumstantial evidence, and that on the trial for perjury the same difficulty exists in obtaining a witness to the falsity of the sworn statement wherein the defendant denied all adulterous intercourse, the rule should be relaxed in this case. This suggestion may be answered by the fact that the law permits conviction of adultery, as it does of nearly all other crimes, on purely circumstantial evidence, when it is connected and sufficiently strong to carry conviction beyond a reasonable doubt. B.ut owing to the frailties of human memory, it is possible, notwithstanding such evidence, that the actual illicit intercourse never occurred, and that the accused may have truly so stated as his own witness; so that when he is called upon to meet the charge of perjury in giving such denial of his guilt, his sworn statement to that effect still stands as his evidence, and in addition thereto is the legal presumption of innocence of the perjury, which requires the state to do much more than reintroduce the circumstantial evidence upon which he was tried for adultery.

To convict of some great crimes, more or stronger evidence is required than to convict of others. Of such enormity is the crime of treason, that by express statute, unless the accused confess in open court, he shall not be convicted except by the testimony of two credible witnesses to the same overt act laid in the indictment. (See Revised Statutes, Sec. 7298.)

And perjury has always been regarded as an unnatural and heinous crime, because of its tendency to jeopardize person and property and even life, and it may be that our legislature recognized the well established rule which we hold in perjury cases, when it enacted section 7296 of the Revised Statutes, which is: “In trials for seduction under promise of marriage, and on indictments under section 7024, no conviction shall be had on the testimony of the person offended against, unsupported by other evidence to the extent required as to the principal witness in cases of perjury ”

Therefore, we consider that when one is charged with the grave crime of perjury, it is but a just safeguard that more than purely circumstantial evidence shall be adduced to establish the corpus delicti, and we hold it to be the general rule that the falsity of the matter assigned as perjury must be testified to by at least one witness, and that he be corroborated by another witness, or by facts and circumstances which will operate as a sufficient corroboration. We do not mean by this to say that the guilty knowledge and corrupt motive attached to perjury must be shown by a living witness. These elements of the crime may be established by sufficient and competent circumstantial evidence.

Until now this court has not been called upon to pass directly on the question before us, but in Crusen v. State, 10 Ohio St., 258, the view we favor seems to have been fairly recognized. The court say in that case: “On a trial under an indictment for perjury, it is not error for the court to charge the jury that corroborative evidence, in addition to the testimony of one reliable witness, need not be of sufficient force to equal the positive testimony of another witness, or such as would require a jury to convict in a case where a single witness is sufficient; but it (corroborative evidence) must be such as gives a clear preponderance to the evidence in favor of the state, and in view of this rule, establishes the falsity of the oath on which perjury is assigned beyond a reasonable doubt.”

. It was not m dispute in the case cited that one witness swearing directly to the corpus delicti was necessary; but the controversy was over the degree of other proofs requisite to corroborate the direct witness.

Our investigation has led to an examination of the authorities and cases cited by counsel, and many others pertinent to the subject under review, and they all point to one rule as to proof of corpus delicti. A result of a review of the decided cases is found in Bishop’s New Criminal Procedure, Vol. 2. Sec. 927: “A peculiarity of this offense (perjury) relates to the number and corroboration of witnesses. The doctrine is that, since the testimony alleged to be perjured was delivered on oath, such oath as well as that of the contradicting witness should be regarded on the trial for the perjury. And where the evidence, thus viewed, presents only ‘oath against oath,’ it will be insufficient. Whence it became the old rule that two witnesses, directly contradicting what the defendant testified to, are indispensable to a conviction for perjury. But evidently where there is only one witness directly to the alleged falsity of the swearing, there may be something in the case, or brought forward by a witness who cannot speak to the main charge, indicating with reliable distinctness, which of the two contradictory oaths is false. Hence, by the modern rule it is sufficient, either that there are two witnesses, or that the testimony of the one witness is corroborated or sustained by other facts appearing in the case or testified to by other witnesses.” The latter rule is fully sustained as the only relaxation of the former more stringent rule requiring two witnesses to the corpus delicti.

Indeed we find no case or other authority that sustains the contention of the state; not even a case cited by its counsel. We were referred to section 468 of Underhill on Criminal Evidence, and this is what that author says: “According to the earlier cases, no conviction of perjury could be had unless the falsity of the evidence given under oath was proved by the direct evidence of two witnesses, the evidence of the second witness being required to overcome the presumption of innocence which the law indulged in favor of the accused. Such is not the law now. The accused may be convicted on the evidence of one witness, which, however, must in all cases be corroborated. The corroboration need not be equivalent or tantamount to another witness. But it must be clear and positive and so strong, that with the evidence of the witness who testifies directly to the falsity of the defendant’s testimony, it will convince the jury beyond a reasonable doubt. The direct evidence of the witness may be corroborated by circumstantial evidence. * * * ”

However, chief reliance is placed by the state on United States v. Wood, 39 U. S. (14 Pet.), 430, and we have carefully examined that case, but it does not aid the cause of the state. The most that can be properly claimed for it is, that it provides an exception to the general rule, but we are of opinion that it does not even do that. There, the defendant was indicted under the revenue collection laws then in force, for the crime of perjury, alleged to have been committed by him in swearing or making oath as to the cost of the goods imported and contained in his invoice of the goods purchased of his father in England. On the trial he claimed no conviction could be had without the testimony of a living witness as to the falsity of his oath to the documents. Instead of such a witness, the court permitted documentary evidence to be given, consisting of an invoice book and thirty-five letters from the defendant to his father, by which documents counsel for the government claimed it was shown that the defendant well knew the cost of the goods when he made the false oath of a much lower price. His own written statements — the letters signed by him — were, in one sense, living and direct witnesses to his perjury. They were in the nature of written admissions of guilt. And the court in that case, instead of adopting a different rule, clearly recognized the one so well settled, and said: “The cases in which a living witness to the corpus delicti of a defendant in a prosecution for perjury may be dispensed with are: ‘all cases where a person charged with a perjury by false swearing to a fact directly disproved by documentary, or written testimony springing from himself, with circumstances showing corrupt intent; all cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath, the oath being proved to have been taken; in cases where the party is charged with taking an oath contrary to what he must necessarily have known to be the truth, and the false swearing can be proved by his own letters relating to the fact sworn to* or, by other written testimony existing and being found in the possession of the defendant, and which has been treated by him as containing the evidence of the fact recited in it.’ ”

If the Wood case can he construed into an exception, it is such an exception as proves the general rule.

The judgment of the circuit court was right and it is affirmed.

Judgment affirmed.

Williams, C. J., Buricet, Davis and Shauok, JJ., concur.


author: Davis, J.

text:
    The Cleveland City Railway Company v. Osborn.

      Action to recover for personal injury — Plaintiff must prove act , of culpable negligence, when — Passenger injured by sudden stopping• of street car — To avoid collision — Damnum absque injuria.

    I In an action to recover for personal injury occasioned by negligence of tlie defendant, tbe plaintiff cannot recover by merely proving an act of the defendant which was the proximate cause of the injury; but to authorize a recovery, the plaintiff must also show that such act resulted from culpable negligence by the defendant.
    2. Where a passenger on a street railway car was thrown from the car and injured by the sudden stopping of the car in the effort to avoid a collision, and by the shock of a collision which was not brought about by the negligence of the defendant, it is damnum absque injuria.

    (Decided February 25, 1902.)

      Error to the Circuit Court of Cuyahoga county,
    The defendant in error was a passenger on one of the cars of the plaintiff in error going westward toward the center of the city of Cleveland. The train was composed of two cars, a grip car and a trail car, which were propelled by a cable at a speed not to exceed ten or twelve miles per hour. Defendant in error sat in a single seat on the right hand (north) of the gripman who was operating the car, and to her right was an arm connecting the back of the seat with an upright post supporting the roof of the car. A bakery wagon was proceeding along Superior street, north of the car track and going in the same direction as the train on which was the defendant in error. Dunham avenue is a street running south from Superior street, but it does not cross Superior street. Just before' reaching Dunham avenue, an east-bound train passed on the south track and bells were rung; but the attention of the driver of the bakery wagon was directed to the east-bound train so that he did not observe the west-bound train, on which was the defendant in error, and he drove upon and across the north track, directly in front of the west-bound train, intending to go into and along Dunham avenue. The gripman in charge of the west-botínd train, in his efforts to avoid a collision with the bakery wagon, caused the train to be suddenly stopped, but it did nevertheless collide with the wagon, whereby the defendant in error, as she alleges in her petition, Avas violently thrown from the car to the curb of the street and severely injured. There, was testimony tending to show that the defendant in error rose from her seat and jumped from the car. The jury returned a verdict for the plaintiff in the sum of $1,200, and judgment was rendered therefor, which was affirmed by the circuit court. This proceeding is to reverse the judgments of the circuit and common pleas courts.

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

      Messrs. Foran é Daioley, for defendant in error.
   Davis, J.

The defense that the defendant in error contributed to her injury by jumping off the car must have been rejected by the jury; and the jury must be presumed to have based its verdict for the defendant in error upon a finding that she was thrown from the car by the sudden stopping of the train and by the shock of the collision; for that was the only claim set forth in the petition and supported by any evidence adduced in her behalf. If such a finding discloses actionable negligence on the part of the plaintiff in error, the judgment below should be affirmed, otherwise it must be reversed.

It must be conceded that the proximate cause of the injury to the defendant in error was the sudden stopping of the car, whether the stop was caused by the act of the gripman, or by the collision, or by both together; but the plaintiff in error still is not liable if the sudden stopping, or the collision, was not in a legal sense by its fault. There is no evidence that the collision was occasioned by negligence of the plaintiff in error. The presumption which may be raised from the fact of the collision itself is negatived by the admitted circumstances. The bakery wagon was proceeding in the same direction as the train and suddenly turned across the track, going toward Dunham avenue. The driver of the wagon was watching the east-bound train and did not see the west-bound train. He did not hear the ringing of the bells when the two trains passed each other just east of Dunham avenue. In this emergency which unexpectedly occurred without his fault, the gripman was bound not only by the duty which he owed to the driver of the wagon, but that which he owed to the passengers behind him, to avoid a collision if possible. With his utmost efforts he only partially succeeded. The horse and driver escaped injury and the wagon was slightly injured. In the effort to avert that which might have cost the life of the driver of the wagon, and perhaps serious injury to the passengers on the car, the defendant in error was, if the finding of the jury -was right, thrown from the car and injured. If the gripman had not tried to avoid the collision and the defendant in error had been injured while sitting in the car, the plaintiff in error would have been liable. Now it is claimed that because he did endeavor to avert the collision, he did it too vigorously and that the plaintiff in error should pay for a result which was unusual and which could not have been anticipated. It is true that the plaintiff in error was required to exercise toward the defendant in error, as a passenger, the highest practicable degree of care, or, to state it in another way, the highest degree of care possible under the circumstances ; but we are sure that the gripman did no more than he ought to have done, and we are not able to conceive what else he could have done under the circumstances. The jury was not authorized to infer negligence from the proven facts. The judgment of the lower court presents the anomaly of requiring of one the strict performance of an act as a legal duty, yet requiring it at his peril. One cannot do right and do wrong at the same time. ■ The injury to the defendant in error, as she puts it before the court, was a pure accident, without the elements of negligence or culpability. It is damnum absque injuria.

[The name of Judge Minshall is found with the concurrences of the above case owing to the fact that it was decided previous to his retirement from the bench February 9th. — Reporter.]

It follows from what has been said that the trial judge committed an error when he refused the request of the plaintiff in error, that he should instruct the jury that, under the testimony in this case, it was their duty to return a verdict for the defendant.

The judgments of the circuit court and of the court of common pleas are

Reversed and judgment is rendered for plaintiff in error.

Minshall, C. J., Burket, Spear and Shauck, JJ., concur.


author: Shauck, J.

text:
    The City of Cincinnati v. Lewis, Auditor.

      Lands owned ~by municipality — Not exempt from taxation — Unless used, in municipal function — Same ivhen lands leased — Municipal law.

    The ownership of lands by a municipal corporation does not bring them within any statutory exemption from taxation unless they are used in the exercise of a municipal function, and-this is true although they are leased, by the municipality and the money realized is applied to a public purpose.
    (Decided February 25, 1902.)
    Error to the Circuit Court-of Hamilton county.
    The city of Cincinnati brought suit in the court of common pleas to enjoin the collection of taxes on certain real estate owned by it and described in its petition. The- cause having been determined in the court of common pleas, was appealed to the circuit court where it was submitted on the following agreed statement of facts:
    1. That part of the property which is described in the petition, which is now upon the tax duplicate of the county of Hamilton, and on the forfeited list, was appraised for taxation and duly listed therefor by the decennial appraiser of 1890, and the value as returned by him was equalized by the county and state board of equalization, and placed upon the tax duplicate of Hamilton county. That taxes have been charged thereon since 1890, which have not been paid by the plaintiff, and said property became delinquent and subsequently became forfeited to the state of Ohio, in accordance with the statutes.
    2. That the property described in the petition was purchased by the city of Cincinnati from Jacob Markley in the year 1872, for the purpose of erecting thereon water-works for the city of Cincinnati; but said water-works was never erected thereon and no buildings were erected thereon by the city. That said property is in Anderson township, Hamilton county, Ohio, and is not within the corporation limits of said city.
    3. The property described in the petition before conveyance to the city of Cincinnati was used as a farm. That since on or about the year 1888, to and including the time of the filing of the petition in this case, on January 29, 1897, the said property was in the possession of Jacob Yogel, who rented the same from year to year, and who paid to the city of Cincinnati annually, as rental for said property, as follows:
    For the year 1890, $150; for the year 1891, $145; for the year 1892, $120; for the year 1893, $120; for the year 1894, $120; for the year 1895, $120; and for the year 1896, $60; that said sums were paid to the water department of the city of Cincinnati, and into the water fund of the city, and used in the maintenance of the water department of the said city. That said property was subrented by Yogel to other persons, and was used by him and them for farming purposes, and the city of Cincinnati did not use the same for any purpose other than to derive therefrom the revenues above set out.
    Upon the facts so agreed to by counsel the circuit court held the property to be taxable and dismissed the petition of the city.

      Mr. Charles J. Hunt; Mr. Wade H. Ellis and Mr. John V. Campbell, for plaintiff in error.
    The exact question raised in the case at bar was answered by this court in the case of Zumstein v. Coal and Mining Co., 54 Ohio St., 264.
    The general proposition that the property of a municipality is not subject to taxation unless the purpose to tax is clearly shown by the act of the legislature, is well settled, and is tersely stated by Dillon in his work on Municipal Corporations (4 ed.), Sec. 773. Mayrhofer v. Board of Ed., 89 Cal., 114; Low v. Lewis, 46 Cal., 549; People v. Saloman, 51 Ill., 37; Directors of the Poor v. School Directors, 42 Pa. St., 21; Nashville v. Smith, 86 Tenn., 213; Cooley on Taxation, 130; Klein v. New Orleans, 99 U. S., 149; United States v. Railroad Co., 84 U. S. (17 Wall.), 322; Wharf Co. v. Galveston, 63 Tex., 14; People v. Board of Assessors, 111 N. Y., 505; West Hartford v. Commissioners, 44 Conn., 360; Negley v. Henderson (City), 55 S. W. Rep., 554; Covington v. Commonwealth, 39 S. W. Rep., 836; Covington v. Commonwealth, 173 U. S., 231.

      The rule in these Kentucky decisions has been criticised by Dillon in his work on Municipal Corporations, Sec. 774 and note.

      Mr. Gideon G. Wilson, county solicitor; Mr. Otway J. Gosgrave and Mr. Oliver B. Jones, assistant county solicitors, for defendants in error.
    It is contended that under this eighth paragraph of Sec. 2732, Rev. Stat., the property described in the petition is exempt from taxation. We contend that said property, never having been and not now being “used exclusively for public purposes,” cannot be exempted from its proper burden of taxation.
    It has been held that the constitution is imperative in requiring all property not exempt to be taxed, and that its provisions preclude any other exemption than those indicated. Zanesville v. Richards, 5 Ohio St., 589.
    All property must bear an equal and just proportion of the burden of taxation. Debolt v. Insurance and Trust Co., 1 Ohio St., 563; Bank v. Bond, 1 Ohio St., 622; Telegraph Co. v. Mayer, 28 Ohio St., 521.
    All laws exempting any of the property in the state from taxation, being in derogation of equal rights, should be construed strictly. Cincinnati College v. State, 19 Ohio, 110; Lee v. Sturges, 46 Ohio St., 153 ; Library Association v. Pelton, 36 Ohio St., 253.
    The fact that the income derived from rents or parts of a building not used is devoted exclusively to the objects and purposes of the association, and not used for the benefit or profit of its members, can make no difference.
    The law looks to the property as it finds it in use, not to what is done with its accumulations. Humphries v. Little Sisters of the Poor, 29 Ohio St., 201.

      A municipal corporation may hold property in either one of two capacities, if for the purpose of municipal government, or as necessary and useful for that purpose, it is not taxable; if it is used by the city or enjoyed by it in a social or commercial capacity as a private corporation and for its own profit, it is taxable. Cooley on Taxation, 173; Dillon on Municipal Corporations, 571.
    As we have seen, both the constitution and the statutes of Ohio provide that the matter of exemption is determined by the use to which the property sought to be exempted is put. All public property is not exempted from taxation, but only such public property as is used exclusively for any public purpose.

    This court has so held in a number of cases. Kendrick v. Farquhar, 8 Ohio, 189; Gerke v. Purcell, 25 Ohio St., 229; West Hartford v. Water Commrs., 44 Conn., 360; People v. Hess, 157 N. Y., 42.
    The Supreme Court has construed the limits of such exemption. The case of People v. Chicago, 124 Ill., 636, is very similar in its facts to the case at bar. Sanitary District of Chicago v. Martin, 173 Ill., 243; Mitchellville v. Supervisors, 64 Iowa, 554; Trustees v. Bohler, 80 Ga., 159; Brodie v. Fitzgerald, 57 Ark., 445; School District v. Howe, 62 Ark., 481; School District v. Board of Improvements, 65 Ark., 343.
    The decisions in Kansas are also strong upon the question under consideration. Washburn College v. Commissioners, 8 Kan., 344; Sec. 1, Art. 11, of the constitution of the state of Kansas; Stahl v. Educational Assn., 54 Kan., 542; St. Mary’s College v. Crowl, Treas., 10 Kan., 442; United Brethren v. Commissioners, 115 N. C., 489; First M. E. Church v. Chicago, 26 Ill., 482.

      The law in Louisiana is to the same effect. New Orleans v. Judah Congregation, 15 La. An., 389; State v. Board of Assessors, 35 La. An., 668; Mulroy v. Churchman, 60 Iowa, 717; Indianapolis v. Grand Master, 25 Ind., 518; Louisville (City) v. Commonwealth, 1 Duvall (62 Ky.), 295; Negley v. Henderson (City), 55 S. W. Rep., 554; Covington v. Commonwealth, 39 S. W. Rep., 836.
    . We believe that a careful examination of all of the decisions upon these exemptions throughout the different states will sustain our position that it is the immediate use to which the property is put that determines whether or not it is exempt from taxation, and any exemption allowed is only when the property itself is used for governmental purposes or for the purpose of education, charities or eleemosynary institutions, that it is exempt from taxation, and if property is owned by a city and used for other than governmental, such as this property, which is used for farming purposes, or if property owned by a church or other charitable organizations is used for the purpose, of producing revenue, which may be ultimately devoted to the purposes of the organizations, that property is not exempt from taxation.
    To this effect we cite the following cases:

      New Orleans v. St. Patrick’s Hall Association, 28 La. An., 512; State v. Board of Assessors, 34 La. An., 574; Redemptionists v. Commissioners, 50 Md., 449; Appeal Tax Court v. St. Peter’s Academy, 50 Md., 321; St. James Institute v. Salem, 153 Mass., 185; Salem Lyceum v. Salem, 154 Mass., 15; Williams College v. Williamstown, 167 Mass., 505; First Christian Church v. Beatrice (City), 39 Neb., 432; People ex rel. Y. M. C. A. v. Sayler, 32 N. Y. App. Dec., 197; People ex rel. Catholic Union v. Sayler, 32 N. Y. App. Dec., 203; Sunday School Union v. Philadelphia, 161 Pa. St., 307; Philadelphia v. Barber, 160 Pa. St., 123; Benevolent Society v. Kelly, 28 Oregon, 173, where the authorities are exhaustively collected; Mundy v. Van Hoose, 104 Ga., 292, citing Ohio cases; Academy v. Exeter, 58 N. H., 306; Yale University v. New Haven, 71 Conn., 316; Fitterer v. Crawford, 157 Mo., 51 (57 S. W. Rep., 532).
   Shauck, J.

From the numerous cases cited in the briefs of counsel it appears to be the general rule that property owned by a municipality and not used in the actual exercise of its municipal functions is subject to taxation. This is for the obvious reason that where the systems of taxation are similar to ours the tax collected is not for the benefit of a municipality alone, but also for that of the state and county. Nevertheless it must be admitted that the conclusions reached upon the subject have been much influenced, if not actually controlled, by the different policies defined by the constitutions and statutes of the several states, it being everywhere conceded that the municipal ownership of property offers no impediment to taxation if that is provided for by law. The policy of this state has its foundation in section 2 of article 12 of the constitution which describes the property which shall be taxed as well as that which may, by general laws, be exempted from taxation: “Laws shall be passed, taxing by uniform rule * * * all real estate and personal property; but * * * public property used exclusively for any public purpose, * * * may, by general laws, be exempted from taxation.” That the public ownership of property was not alone thought sufficient to exempt it from taxation is made obvious by the requirement that an exclusive use for a public purpose shall coincide with such ownership. In the performance of the duty thus imposed upon it, the general assembly has enacted sections 2731 and 2732 of the Revised Statute^, By the former section it is enacted that “all property, Avhether real or personal, in this state, and whether belonging to individuals or corporations, * * * shall be subject to taxation except only such as may be expressly exempted therefrom.” The exempted property is described in the several subdivisions of the latter section. The seventh subdivision provides for the exemption of “all fire engines and other implements used for the extinguishment of fires, together with the buildings used exclusively for their safe keeping.” The eighth subdivision, which is much relied upon as providing for the exemption of this property, is as follows: “All market houses, public squares or other public grounds, town or township houses or halls used exclusively for public purposes, or erected by taxation for public purposes, notwithstanding some parts thereof may be leased under and by virtue of section 2566 of the Revised Statutes of Ohio, and all works, machinery, pipe-lines and fixtures belonging to any town and used exclusively for conveying water to such town, or for heating or lighting the same, and any unpaid taxes assessed against any property comprised in this subdivision, with any penalty thereon, is hereby remitted.” The property Avhich may be leased under section 2566 is a public building or a part thereof, and that provision can have no application to the present case. The description of municipal property which is exempt from taxation indicates with unmistakable accuracy that the exemption is to extend to such property only as is actually employed in the exercise of municipal functions. If this conclusion were doubtful it would nevertheless be required by the established rule that all exemptions from taxation are to be strictly construed.

[This case was decided previous to the retirement from the bench of Judge Minshall. — Reporter.]

The question here presented was not decided nor considered in Zumstein v. Coal & Mining Co., 54 Ohio St., 264.

Judgment affirmed.

Minshall, C. J., Williams, Burket, Spear and Davis, JJ., concur.


text:
    Browne, Assignee, etc. v. Wallace, Assignee, etc. et al.

      Notice of intention to appeal — By one in fiduciary capacity — Requirements of statute — Section GJfiS, Rev. Stat.

    To perfect an appeal under Revised Statutes, Sec. 6408, by a party in a fiduciary capacity who appeals in the interest of the trust, a separate written notice to the court of an intention to appeal is necessary. A recital in a journal entry of an intention to appeal, or that the party gives,' or has given, notice of an intention to appeal, is not a compliance with the statute.
    (Decided March 11, 1902.)
    Error to the Circuit Court of Hamilton county.

      Mr. F. W. Browne, for plaintiff in error.

      Messrs. WiTby & Wald and Mr. Guy W. Mallon, for defendants in error.
   By the Court :

As the right of appeal exists only by virtue of the statutes, in order to give the appellate court jurisdiction the statutory provisions must be strictly followed. When the person appealing is a party in a fiduciary capacity who has given bond within the sítate, and who appeals in the interest of the trust, he shall be allowed the appeal without giving bond, “by giving written notice to the court of his intention to appeal within the time limited for giving bond.” Revised Statutes, Sec. 6108. The statute requires a formal toritten notice to the court so that it may be filed as a paper in the case and be made a part of the complete record, showing why the court did not require a bond for appeal. This section does not provide that the notice may be entered in the first instance on the records, as in appeals from the court of common pleas to the circuit court. Revised Statutes, Sec. 5227. In this case the court of insolvency on motion confirmed a sale made by the defendant in error as assignee of the Norwood Park Company, and ordered a deed to be made to the purchaser, to all of which the plaintiff in error as assignee of the Erwin Lime Company excepted. To the journal entry confirming sale as aforesaid the following statement is appended: “And thereupon the said F. W-. Browne, as such assignee of the Erwin Lime Company, gives notice of his, intention to appeal this cause, and the court find that the said assignee, F. W. Browne, has given bond in this court as such assignee, and is entitled to such appeal without giving bond.” This is merely a journalized statement of what took place in the court of insolvency. The entry recites that the plaintiff in error “gives notice;” but no such notice appears in the record, nor is found among the papers of the case. It does not appear that the notice given was a written notice, and it only inferentially appears that it may have been a notice to the court. This is not a compliance with the statute; and the judgment of the circuit court, affirming the judgment of the court of common pleas dismissing the appeal, is therefore

Affirmed.

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