text:
    No. 14178.
    Crites et al. v. The Pillmore-Anderegg Co.
    Decided January 19, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. A. O. Barnes and Mr. A. H. Johnson, for plaintiffs in error.

      Messrs. Musser, Kimber & Huffman; Mr. J. A. H. Meyers and Mr. G. B. Thompson, for defendant in error.
   Judgment reversed. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; for the reason that, on the measure of damages the trial court erred in its general charge and in directing the jury not to consider the cost of installation and maintenance of the machines in controversy; the measure of damages having been fixed by the contract, to-wit: the loss sustained thereunder by the plaintiff below for its breach, less the diminution in the reasonable cost of installation and maintenance.

It is therefore considered by this court that the verdict be, and the same is, set aside and a new trial granted at the cost of the defendant in error.

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


source: Caselaw Access Project

license: Public Domain

text:
    No. 14183.
    The Cincinnati Traction Co. v. Riskey.
    Decided January 19, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Paxton, Warrington & Seasongood and Mr. Robert S. Marx, for plaintiff in error.

      Messrs. Bode & Jung, for defendant in error;
   Judgment affirmed.

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


text:
    No. 14314.
    The Cincinnati Traction Co. v. Greve.
    Decided January 19, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Kittredge & Wilby and Mr. R. E. Simmonds, Jr., for plaintiff in error.

      Mr. Harry H. Friedman; Mr. Jacob S. Hermann and Mr. Thomas L. Michie, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14593.
    The City of Cincinnati v. Filser.
    Decided January 19, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Walter M. Schoenle, city solicitor; Mr. Constant Southworth and Mr. Coleman Avery, assistant city solicitors, for plaintiff in error.

      Mr. Geoffrey Goldsmith and Mr. Guido Gores, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14000.
    The Scioto Valley Traction Co. v. Kadel, Admr.
    Decided January 26, 1915.
    Error to Circuit Court of Ross county.

      Messrs. Daugherty, Todd & Rarey, for plaintiff in error.

      Mr. Lyle S. Evans and Mr. James I. Boulger, for defendant in error.
   Judgment affirmed.

Nichols, C. J'., Donahue and Wanamaker, JJ., concur. Jones, J., not participating.


text:
    No. 14052.
    Gregg v. The Toledo, Bowling Green & Southern Traction Co.
    Decided January 26, 1915.
    Error to Circuit Court of Hancock county.

      Mr. Charles J. O’Connor and Messrs. Robeson & Yount, for plaintiff in error.

      Mr. E. V. Bope, for defendant in error.
   Judgment affirmed.

Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., dissents.


text:
    No. 14150.
    The Village of Franklin v. The Ohio Electric Railway Co.
    Decided January-26, 1915.
    Journal entry: It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; and the court finds from the facts conceded by the pleadings in the case that the plaintiff is entitled to the relief prayed for in its petition.
    It is further ordered and adjudged that the cause be remanded to the court of appeals with instructions to enter judgment in accordance with the above finding. — Reporter.
    Error to Court of Appeals of Warren county.

      Mr. Arthur Bryant, for plaintiff in error.

      Mr. W. C. Shepherd, for defendant in error.
   Judgment of the court of appeals reversed and judgment for plaintiff in error.

Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.


text:
    No. 14192.
    Arbuckle v. The American Belting Co.
    Decided January 26, 1915.
    Error to Court of Appeals of Mahoning county.

      Mr. E. H. Moore; Mr. S. M. Strain and Mr. Chas. J. Jackson, for plaintiff in error.

      Messrs. Arrel, Wilson, Harrington & DeFord, for defendant in error.
   Judgment of the court of appeals vacated. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, vacated because the court finds that the court of appeals did not acquire jurisdiction of the said cause, there never having been any final order or judgment in the court of common pleas.

It is further ordered and adjudged that this cause be remanded to the court of common pleas with instructions to proceed according to law to assess the amount of damages in favor of the plaintiff against the defendant.

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


text:
    No. 14193.
    The Cincinnati, Milford & Loveland Traction Co. v. Cincinnati & Columbus Traction Co. et al.
    Decided January 26, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Thorne Baker and Mr. Charles W. Baker, for plaintiff in error.

      Mr. Gideon C. Wilson; Mr. C. B. Matthews; Mr. Harry T. Klein; Mr. Thorne Baker and Mr. Charles W. Baker, for defendants in error.
   Judgment affirmed.

Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur. Nichols, C. J., not participating.


text:
    No. 14196.
    Mignery v. Olmstead, Admr., et al.
    Decided January 26, 1915.
    Error to Court of Appeals of Williams county.

      Mr. John H. Schrider and Mr. Edward Gaudern, for plaintiff in error.

      Mr. Charles A. Bower sox and Mr. R. L.
      Starr, for defendants in error.
   Judgment affirmed.

See journal entry.

It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed; this court being of the opinion that while the trial court erred in the admission of the testimony of the heirs of the decedent yet this testimony was not prejudicial for the reason that plaintiff in error having selected his remedy when he prepared and presented his claim against the estate of James Mignery, deceased, he could not maintain an action upon the instrument in question for the land.

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


text:
    No. 14286.
    Riter v. Shirk, Admx.
    Decided January 26, 1915.
    Error to Court of Appeals of Hancock county.

      Mr. Jacob Line; Mr. C. B. Dwiggins and Messrs. Franks & Franks, for plaintiff in error.

      Messrs. Price & Price; Messrs. Blackford & Blackford and Messrs. Stickle & Cessna, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14647.
    The Cincinnati Traction Co. v. Pierman.
    Decided January 26, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Miller Outcalt, for plaintiff in error.

      Messrs. Philip & S. C. Roettinger, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14648.
    The Cincinnati Traction Co. v. Beebe, Admr.
    Decided January 26, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Kinkead & Rogers, for plaintiff in error.

      Mr. W. P. Hohmann and Mr. Thomas L. Michie, for defendant in error.

   Judgment affirmed.

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


text:
    No. 13872.
    The Dayton Gas Co. et al. v. Gottschall, a Taxpayer, et al.
    Decided February 2, 1915.
    Error to Circuit Court of Montgomery county.

      Messrs. McMahon & McMahon and Mr. Frank S. Breene, city solicitor, for plaintiffs in error.

      Mr. L. W. James and Mr. Earl H. Turner, for defendants in error.
   Judgment" affirmed.

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


text:
    No. 14017.
    Coffee v. The Alliance Bank Co.
    Decided February 2, 1915.
    Error to Circuit Court of Stark county.

      Messrs. Bow, Amerman & Mills and Mr, David Fording, for plaintiff in error.

      Messrs. Hart & Koehler, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 14200.
    Geist v. Ehrich.
    Decided February 2, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Mr. Dorr E. Warner, for plaintiff in error.

      Mr. William Rockwell and Messrs. Wing, Myler & Turney, for defendant in error.
   Judgment reversed. Judgment for plain-

tiff in error. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said court of.appeals be, and the same hereby is, reversed:

The court finds that the residence building to be constructed on the property involved is permissible under the covenants of the deed, under the authority of Hunt v. Held, decided by this court June 23, 1914 [90 Ohio St, 280],

The court further finds that the erection of such building, being more than fifteen feet from the Warren Road street line, is also permissible under the covenants of the deed of defendant in error.

And coming now to render the judgment that the court of appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas in said cause be and the same is hereby affirmed.

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


text:
    No. 14201.
    Schilling v. Turnbull.
    Decided February 2, 1915.
    Error to Court of Appeals of Stark county.

      Mr. Everett L. Mills; Mr. Oscar M. Abt and Mr. Walter S. Ruff, for plaintiff in error.

      Mr. Charles C. Upham and Mr. John C. Welty, for defendant in error.

   Judgment affirmed.

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


text:
    No. 14202.
    Taylor v. Geyer, Exr., et al.
    Decided February 2, 1915.
    Error to Court of Appeals of Muskingum county.

      Mr. Harry C. Shepherd, for plaintiff in error.

      Mr. E. F. O’Neal, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur. Nichols, C. J., not participating.


text:
    No. 14204.
    Hamilton v. Raub.
    Decided February 2, 1915.
    Error to Court of Appeals of Ma-honing county.

      Mr. E. H. Moore; Mr. S. M. Strain and Mr. Chas. J. Jackson, for plaintiff in error.

      Mr. J. H. C. Lyon; Mr. I. B. Miller and Mr. Geo. Swanston, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthais, JJ., concur. Wanamaker, J., not participating.


text:
    No. 14208.
    Karlinger v. The Gund Brewing Co.
    Decided February 2, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Howell, Roberts & Duncan, for plaintiff in error.

      Mr. M. P. Mooney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14215.
    The Citizens Savings Bank & Trust Co. v. Robison, Admx.
    Decided February 2, 1915.
    Error to Court of Appeals of Butler county.

      Messrs. Andrews & Andrews, for plaintiff in error.

      Mr. Patrick Gaynor, for defendant in error.
   Judgment affirmed on authority of Darst v. Phillips, 41 Ohio St., 514.

Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur. Nichols, C. J., not participating.


text:
    No. 14495.
    The Bankers Surety Co. et al. v. The State, ex rel. Cline, Prosecuting Attorney.
    Decided February 2, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Goulder, Day, White &• Garry and Messrs. Smith, Taft & Arter, for plaintiffs in error.

      Mr. Cyrus Locher, prosecuting attorney; Mr. Frederick W. Green and Mr. G. A. Howells, assistant prosecuting attorney, for defendant in error.
   Judgment modified and affirmed as modified. See journal entry.

It appearing that the plaintiff in error A. K. Spencer as treasurer of Cuyahoga county, Ohio, was entitled by statute to receive the five per cent penalty added to the delinquent personal tax list as and for his compensation for the collection thereof as treasurer the court find that the judgment is excessive to the extent of five per cent, of the total sum collected, and that the judgment of the common pleas court in favor of the defendant in error and against the plaintiffs in error should have been for three thousand four hundred eleven dollars and fifty cents ($3,411.50) and that the excess of the judgment over and above that amount is contrary to law, it is, therefore, ordered, considered and adjudged that said judgment of the common pleas court of Cuyahoga county be, and the same hereby is, modified by reducing it to the sum of $3,411.50 with interest thereon from the date of the judgment in the common pleas court of Cuyahoga county, to-wit: December 27, 1912, and as so modified the same is affirmed.

It is further ordered and adjudged that each party to this action pay their own costs in this court, taxed at $........and in the court of appeals of Cuyahoga county, taxed at $.........

Johnson, Donahue, Wanamaker and Matthias, JJ., concur.


text:
    No. 14496.
    Spencer et al. v. The State, ex rel. Cline, Prosecuting Attorney.
    Decided February 2, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Smith, Taft & Arter and Messrs. Goulder, Day, White & Garry, for plaintiffs in error.

      Mr. Cyrus Locher, prosecuting attorney, for defendant in error.
   Judgment modified and affirmed as modified. See journal entry.

It appearing that the plaintiff in error A. K. Spencer as treasurer of Cuyahoga county, Ohio, was entitled by statute to receive the five per cent penalty added to the delinquent personal tax list as and for his compensation for the collection thereof as treasurer the court find that the judgment is excessive to the extent of five per cent, of the total sum collected, and that the judgment of the common pleas court in favor of the defendant in error and against the plaintiffs in error should have been for three thousand four hundred eleven dollars and fifty cents, ($3,411.50) and that the excess of the judgment over and above that amount is contrary to law, it is therefore, ordered, considered and adjudged that said judgment of the common pleas court of Cuyahoga county be, and the same hereby is, modified by reducing it to the sum of $3,411.50 with interest thereon from the date of the judgment in the common pleas court of Cuyahoga county, to-wit: December 27, 1912, and as so modified the same is affirmed.

It is further ordered and adjudged that each party to this action pay their own costs in this court, taxed at $........and in the court of appeals of Cuyahoga county, taxed at $.........

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


text:
    No. 14704.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. Buxton, Admr.
    Decided February 2, 1915.
    Error to Court of Appeals-of Hamilton county.

      Mr. Morison R. Waite and Mr. John R. Schindel, for plaintiff in error.

      Messrs. Schorr & Wesselmann and Mr. Thos. L. Michie, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14218.
    Goodall v. The Cincinnati, Hamilton & Dayton Railway Co.
    Decided February 9, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Scott Bonham, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Judgment reversed.

Cause remanded for new trial. See journal entry:

It is ordered and adjudged by this court, that the judgment of the said court of appeals in so far as final judgment is rendered in favor of The Cincinnati, Hamilton & Dayton Railway Company and against Charles W. Goodall, dismissing his petition be, and the same hereby is, reversed.

It appearing further that the judgment of the court of appeals necessarily involves the weight of evidence the judgment of said court reversing the judgment of the superior court of Cincinnati is affirmed, and this cause is remanded to said superior court of Cincinnati for further proceedings and trial according to law.

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


text:
    No. 14220.
    Aetna Insurance Co. et al. v. The Hocking Valley Railway Co.
    Decided February 9, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. J. W. Mooney and Mr. G. E. Bibbee, for plaintiffs in error.

      Messrs. Wilson & Rector, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14225.
    Marshall et al. v. Marsters.
    Decided February 9, 1915.
    Error to Court of Appeals of Trumbull county.

      Messrs. Gillmer, Gillmer & Gillmer, for plaintiffs in error.

      Messrs. Hine, Kennedy & Manchester, for defendant in error.
   Judgment affirmed on authority of Lamb v. Rickets, 11 Ohio, 311.

Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., dissents.


text:
    No. 14227.
    Mellinger et al. v. Mellinger.
    Decided February 9, 1915.
    Error to Court of Appeals of Columbiana county.

      Mr. K. L. Cobourn, for plaintiffs in error.

      Mr. S. W. Ramsey, for defendant in error.
   Judgment of the court of appeals reversed and that of the common pleas affirmed.

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


text:
    No. 14228.
    Harvuot v. Stone.
    Decided February 9, 1915.
    Journal entry: It appearing that there is no error apparent in the record of the trial court in this cause prejudicial to the plaintiff in that court, and that the„ question of negligence of the defendant, if any, and that the question of contributory negligence on the part of the plaintiff, if any, was fairly submitted to the jury in that court, it is ordered and adjudged by this court that the judgment of the court of appeals be, and the same hereby is, reversed, and the judgment of the common pleas court affirmed. — Reporter.
    Error to Court of Appeals of Hamilton county.

      Mr. C. J. McDiarmid and Mr. Frank M. Coppock, for plaintiff in error.

      Messrs. Hosea & Knight, for defendant in error.
   Judgment of the court of appeals reversed and that of the common pleas affirmed.

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


text:
    No. 14230.
    The Northern Ohio Traction & Light Co. v. Cutler, Admx.
    Decided February 9, 1915.
    Error to Court of Appeals of Portage county.

      Messrs. Rowley, Mather & Eagleson and Mr. A. S. Cole, for plaintiff in error.

      Mr. C. B. Newton and Mr. B. S. Johnson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14240.
    The Cincinnati Northern Railroad Co. v. The Van Wert Lumber Co. et al.
    Decided February 9, 1915.
    Error to Court of Appeals of Van Wert county.

      Mr. H. N. Quigley; Mr. L. J. Hackney and Mr. H. G. Richie, for plaintiff in error.

      Mr. H. L. Conn, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur. Matthias, J., not participating.


text:
    No. 14256.
    The Adena Railroad Co. v. Morgan.
    Decided February 9, 1915.
    Error to Court of Appeals of Belmont county.

      Messrs. Squire, Sanders & Dempsey and Mr. Gordon D. Kinder, for plaintiff in error.

      Mr. George Thornburg, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14436.
    Bergin et al. v. McCabe.
    Decided February 9, 1915.
    Journal entry: It appearing to the court that the certificates of stock were delivered to the Dennison National Bank as collateral security for a loan of money then and there made by the bank to the owner of the stock prior to the commencement of the suit in attachment, and prior to the issue and service of garnishee process therein, and at a time when the bank and the owner of the stock had full right and authority to make and enter into the contract in reference thereto; and it further appearing that by the terms of the contract of pledge of this stock as collateral security for the repayment of money then loaned that the Dennison National Bank was authorized and empowered upon default in the payment of the debt, to secure which the certificates of stock were pledged, the bank had the right and authority to sell said stock and apply the proceeds thereof to the payment of said debt, yielding and paying to the owner of the stock the surplus, if any, over and above the amount of such indebtedness, the court finds that the attachment proceeding brought thereafter and the garnishee process issued and served upon the corporation issuing the certificates of stock could not and does not affect the right of the Dennison National Bank under its • contract with the owner made at a time when no other person had any interest or rights in said stock, or the certificates evidencing the ownership thereof, and that no other or further interest could be reached therein, except the surplus after paying the debt due the bank, and that the creditors of the pledgor could not by any process acquire any more rights in the stock, the certificates of which were pledged with the Dennison National Bank, than the owner of the stock had at the time of the commencement of the attachment proceedings; and it not appearing that the Dennison National Bank exceeded its authority in making such sale or that said sale was fraudulently made, the purchaser thereunder acquired full and perfect title in and to said stock and the certificates evidencing the ownership thereof, free and clear of all claims or liens sought to be acquired by attachment and garnishee process after the contract of pledge was made.

      Error to Court of Appeals of Tuscarawas county.

      Mr. J. F. Greene, for plaintiffs in error.

      Mr. W. B. Stevens, for defendant in error.
   Judgment of the court of appeals reversed and that of the common pleas affirmed.

It is, therefore, ordered and adjudged that the judgment of the court of appeals be, and the same hereby is, reversed and the judgment of the common pleas court is affirmed. — Reporter.

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


text:
    No. 14212.
    Patch, Admr., v. Norton et al.
    Decided February 16, 1915.
    Error to Court of Appeals of Geauga county.

      Mr. R. H. Patchin and Messrs. Piole & Hole, for plaintiff in error.

      Messrs. Alvord ■& Blakely and Mr. Wm. G. King, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14233.
    Rauh v. The State, ex rel. Unverferth, Prosecuting Attorney.
    Decided February 16, 1915.
    Error to Court of Appeals of Putnam county.

      Mr. J. S. Ogan, for plaintiff in error.

      Mr, Timothy S. Hogan, attorney general;
      Mr. A. A. Slaybaugh, prosecuting attorney; Messrs. Handy & Unverferth and Mr. J. W. Smith, for defendant in error.
   Judgment modified and affirmed as modified.

The court find that in ascertaining' the amount for which the court of common pleas should have rendered judgment in favor of the plaintiff against the defendant the court of appeals correctly found that the sum of $376.75 should be added to the judgment, but this court finds that the item of $22, referred to in the report of the referee, should have been deducted from the amount of the judgment rendered by the court of common pleas.

It is, therefore, ordered and adjudged by this court that the judgment of the court of appeals be, and the same is hereby, modified in this, to-wit: that the amount of said judgment as found by said court of appeals be, and the same is hereby, reduced in the sum of $22 as of the date of the entry of said judgment of the court of appeals.

It is further ordered and adjudged that as thus modified the judgment of the said court of appeals be, and the same is hereby, affirmed.

It is further ordered that the costs in this court be paid one-half by each of said parties.

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


text:
    No. 14246.
    Hamilton v. The Peoples National Bank of Zelienople.
    Decided February 16; 1915.
    Error to Court of Appeals of Ma-honing county.

      Messrs. Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      Mr. Wylie McCaslin and Mr. S. D. L. Jackson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14253.
    The State, ex rel. Unverferth, Prosecuting Attorney, v. Talbot.
    Decided February 16, 1915.
    Error to Court of Appeals of Putnam county.

      Mr. A. A. Slaybaugh, prosecuting attorney; Messrs. Handy & Unverferth, and Mr. J. W. Smith, for plaintiff in error.

      Messrs. Bailey & Leasure, for defendant in error.
   Judgment reversed on authority of State, ex rel. Maher, v. Baker, 88 Ohio St., 165.

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


text:
    No. 14274.
    Rhoades, Exrx., v. Secor et al.
    Decided February 16, 1915.
    Error to Court of Appeals of Lucas county.

      Messrs. Rhoades & Rhoades, for plaintiff in error.

      Messrs. Smith & Beckwith and Mr. Rathbun Fuller, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14275.
    Brown v. Chapman.
    Decided February 16, 1915.
    Error to Court of Appeals of Muskingum county.

      Mr. Harry C. Shepherd, for plaintiff in error.

      Mr. E. E. Power, for defendant in error.
   Judgment affirmed on authority of Mc-Allister v. Hartsell, 60 Ohio St., 69.

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


text:
    No. 14281.
    Monti, Admr., v. The Steubenville & East Liverpool Railway & Light Co. et al.
    Decided February 16, 1915.
    Error to Court of Appeals of Jefferson county.

      Mr. J. W. Porter and Mr. P. P. Lewis, for plaintiff in error.

      Messrs. Miller & Miller, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14284.
    The Norwood National Bank v. Curtis et al.
    Decided February 16, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. George E. Mills and Mr. Otis H. Fisk,t for plaintiff in error.

      Messrs. Pogue, Hoffheimer & Pogue, for defendants in error.
   Judgment affirmed on authority of Osborn v. McClelland, 43 Ohio St., 284.

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


text:
    No. 14285.
    The Norwood National Bank v. Curtis et al.
    Decided February 16, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. George E. Mills and Mr. Otis H. Fisk, for plaintiff in error.

      Messrs. Pogue, Hoffheimer & Pogue, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14686.
    Bayer et al. v. Stein.
    Decided February 16, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Reece & Reece, for plaintiffs in error.

      Messrs. Kelley & Hauck; for defendant in error.
   Judgment affirmed.

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


text:
    No. 14219.
    Sturr v. The City of Cincinnati.
    Decided February 23, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Scott Bonham, for plaintiff in error.

      Mr. Alfred Bettman and Mr. Walter M. Schoenle, city solicitors; Mr. Coleman Avery; Mr. Constant Southworth and Mr. Mitchell Wilby, assistant city solicitors, for defendant in error.
   Final judgment of the court of appeals reversed and judgment of court of appeals reversing judgment of common pleas affirmed. Cause remanded.

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


text:
    No. 14264.
    Sessions, Admr., v. Rickly.
    Decided February 23, 1915.
    Error to Court of Appeals of Franklin county.

      Messrs. Ricketts & Cope and Mr. J. M. Sheets, for plaintiff in error.

      Mr. E. L. DeWitt, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14293.
    Blackburn, by etc., v. Ellis et al.
    Decided February 23, 1915.
    Error to Court of Appeals of Mahoning- county.

      Mr. Charles Koonce, Jr., for plaintiff in error.

      Mr. S. M. Thompson, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14297.
    Wilson et al. v. Yaekle.
    Decided February 23, 1915.
    Error to Court of Appeals of Franklin county.

      Mr. John W. Wilson and Messrs. Pugh & Pugh, for plaintiffs in error.

      Messrs. Gumble & Gumble and Messrs. Huggins, Huggins & Hoover, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14302.
    The Second National Bank of Bucyrus, Ohio, v. Deible et al.
    Decided February 23, 1915.
    Error to Court of Appeals of Crawford county.

      Messrs. Finley & Gallinger, for plaintiff in error.

      Messrs. Kean & Adair; Mr. Edward Vollrath and Mr. W. C. Beer, for defendants in error.
   Judgment affirmed.

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


text:
    14303.
    Gill v. The Columbus Railway & Light Co.
    Decided February 23, 1915.
    Journal entry: This court finds that the fact (as shown by the special findings of fact made by the jury in connection with the general verdict) that plaintiff had alighted from the car of the defendant and had started toward the curb at the time he was assaulted by the employe of the defendant was not conclusive as matter of law, that the plaintiff had then ceased to be a passenger of the defendant, but the issue on that question as made by the pleadings was one of fact to be determined by the jury from all the evidence under proper instructions of the court, and this court, therefore, finds that the court of appeals erred in rendering final judgment in said cause in favor of the said railway and light company.
    Error to Court of Appeals of Franklin county.

      Messrs. Lents; Karns, Linton & Hengst, for plaintiff in error.

      Messrs. Booth, Keating, Peters & Pomerene, for defendant in error.
   Final judgment of the court of appeals reversed and judgment of court of appeals reversing judgment of common pleas affirmed. Cause remanded.

This court further finds that inasmuch as the entry of the judgment by the court of appeals does not state the ground upon which it reversed the judgment of the court of common pleas in favor of the plaintiff below against said defendant company and that from the record the court of appeals may have found that the verdict was against the weight of the evidence, which would have been a valid reason for reversing the judgment of the court of common pleas, but not for its entry of final judgment in the case.

It is, therefore, ordered and adjudged by this court that the judgment of the court of appeals be, and the same is hereby, reversed. And coming now to render the judgment which the court of appeals should have rendered on its finding, it is ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed, and this cause is remanded to the court of common pleas for further proceedings according to law. — Reporter.

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


text:
    No. 14306.
    The Beach Cliff Co. v. Volk, by etc.
    Decided February 23, 1915.
    Error to Court of Appeals of Cuyahoga county.

      Messrs. Stearns, Chamberlain & Royon, for plaintiff in error.

      Mr. T. S. Dunlap, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14309.
    The Board of County Commissioners of Summit County et al. v. The Northern Ohio Traction & Light Co.
    Decided February 23, 1915.
    Error to Court of Appeals of Summit county.

      Messrs. McCarty & McClintock, for plaintiffs in error.

      Messrs. Rowley, Mather & Eagleson, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.


text:
    No. 14313.
    Chambers et al. v. The City of Akron.
    Decided February 23, 1915.
    Error tó Court of Appeals of Summit county.

      Mr. William T. Spear; Mr. William E. Pardee; Mr. E. H. Nesbitt and Mr. J. V. Welsh, for plaintiffs in error.

      Mr. Jonathan Taylor, city solicitor, and Mr. S. D. Kenfield, assistant city solicitor, for defendant in error.
   Judgment affirmed on authority of Crawford v. Village of Delaware, 7 Ohio St., 460, and City of Akron v. Huber, 78 Ohio St., 372.

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


text:
    No. 14320.
    Parker v. Hintz.
    Decided February 23, 1915.
    Error to Court of Appeals of Sandusky county.

      Mr. Jesse Vickery, for plaintiff in error.

      Mr. D. A. Heffner, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14321.
    Schroth, Admr., et al. v. Noble et al.
    Decided February 23, 1915.
    Journal entry: It appearing from the record that the owner of the property described in the petition died intestate; that the same is non-ancestral property and descends under paragraph 6 of Section 8574, General Code, to the next of kin of the blood of the intestate; that the “next of kin” as used in this statute refers to those persons who take intestate property under the statutes of descent and distribution {Steel, Admr., v. Kurts, 28 Ohio St., 191, approved and followed); that each paragraph of Section 8574, General Code, must be read in connection with all the other paragraphs for the purpose of determining who are next of kin of the blood of the intestate; and that in Section 8574, General Code, relating to the descent and distribution of non-ancestral property, the whole blood is preferred to the half-blood (Stembel v. Martin, 50 Ohio St., 495, and Lyon et al. v. French et al., 70 Ohio St., 466, affirming Lyon v. Lyon, 24 C. C, 498, 1 C. C, N. S., 246, approved and followed).

      Error to Court of Appeals of Seneca county.

      Mr. Geo. E. Schroth; Mr. Willis Bacon; Mr. Mark L. Leister; Mr.' Walter K. Keppel and Mr. Florence Cronise, for plaintiffs in error.

      Mr. Charles E. Derr; Mr. Milton Sayler and Messrs. Ragan & Ragan, for defendants in error.
   Judgment of the court of appeals reversed and that of common pleas court affirmed on authority of Stembel et al. v. Martin et al., 50 Ohio St., 495, and Lyon et al. v. French et al., 70 Ohio St., 466, affirming Lyon et al. v. Lyon et al., 24 C. C.,498.

It is, therefore, considered and adjudged by this court that the judgment of the court of appeals be, and the same hereby is, reversed, and this court coming now to render the judgment that the court of appeals should have rendered, it is ordered, adjudged and decreed that the judgment of the common pleas court be, and the same hereby is, affirmed. — Reporter.

Donahue, Newman, Jones and Matthias, JJ., concur. Johnson and Wanamaker, JJ., dissent.


text:
    No. 14325.
    The Julian & Kokenge Co. v. Holmes, Recr.
    Decided March 2, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. J. L. Kohl, for plaintiff in error.

      Mr. Orville K. Jones and Mr. Joseph W. O’Hara, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14326.
    Musser et al., Exrs., v. The City Hospital of Akron.
    Decided March 2, 1915.
    Error to Court of Appeals of Summit county.

      Messrs. Musser, Kimber ■& Huffman, for plaintiffs in error.

      Mr. A. H. Commins; Mr. P. B.t

      Treash and Mr. C. C. Benner, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.


text:
    No. 14332.
    Duncan, Recr., v. Bredbeck et al., Partners as G. H. Bredbeck & Co.
    Decided March 2, 1915.
    Error to Court of Appeals of Ottawa county.

      Messrs. Young & Young, for plaintiff in error.

      Mr. Chas. H. Graves and Mr. A. L. Duff, for defendants in error.
   ' Judgment affirmed.

Nici-iols, C. J., Johnson, Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14342.
    Lyon, Jr., Admr., v. D. Lamond & Son.
    Decided March 2, 1915.
    Error to Court of Appeals of Lawrence county.

      Mr. Wm. J. Ma-honey and Mr. T. N. Ross for plaintiff in 'error.

      Messrs. Johnson & Jones, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Newman and Matthias, JJ., concur. Jones, J., not participating.


text:
    No. 14356.
    Bigham et al. v. Harlan, Exr.
    Decided March 2, 1915.
    Error to Court of Appeals of Morrow county.

      Mr. Lee Elliott; Mr. Geo. W. Sharp and Mr. Benj. Olds, for plaintiffs in error.

      Messrs. Harlan & Wood, for defendant in error.
   Judgment reversed.

See journal entry.

It appearing from the facts found and determined by the court of appeals that the testatrix held said estate coming from her deceased husband, Samuel Geller, in a trust capacity, and the conditions of said trust were that at the decease of the testatrix one-half of said estate should go to the relatives of Samuel Geller and one-half to the relatives of Nancy A. Geller and that it was the intention of said testatrix to devise the one-half of her said estate to the relatives of her deceased husband and the one-half to the relatives of said testatrix and that the issue of the deceased legatees should take the legacies devised to them, all in accordance with her obligations under the trust.

The court, therefore, finds that the issue of any deceased legatees are entitled to the legacy bequeathed to their respective parents. It is, therefore, ordered and adjudged by this court that the judgment of said court of appeals be, and the same is hereby, reversed, and this causé is remanded to the said court of appeals with instructions to enter its judgment and decree directing the said executor to distribute the funds of said estate in accordance with the above finding of this court and otherwise according to law.

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


text:
    No. 14366.
    McCord v. McCord et al.
    Decided March 2, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. W. A. Hicks and Mr. Frank E. Wood, for plaintiff in error.

      Messrs. Robertson & Buchwalter, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14176.
    The Inter-State Steamship Co. v. Guarrino et al.
    Decided March 9, 1915.
    Error to Court of Appeals of Ashtabula county.

      Messrs. Holding, Masten, Duncan & Leckie, for plaintiff in error.

      Mr. Herman J. Nord; Mr. J. E. Pilmer; Mr. C. W. Dille and Messrs. Reed & Eichelberger, for defendants in error.
   Judgment of the court of appeals reversed and that of common pleas affirmed.

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


text:
    No. 14177.
    The Union Dock Co. v. Guarrino et al.
    Decided March 9, 1915.
    Error to Court of Appeals of Ashtabula county.

      Messrs. Reed & Eichelberger, for plaintiff in error.

      Mr. Herman J. Nord; Mr. J. E. Pilmer; Mr. C. W. Dille and Messrs. Holding, Masten, Duncan & Leckie, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14357.
    Brown v. Lanning.
    Decided March 9, 1915.
    Error to Court of Appeals of Morrow county.

      Messrs. Spear, Mills, Knight & Godfrey and Messrs. Harlan & Wood, for plaintiff in error.

      Messrs. Owen ■& Carr and Mr. J. W. Barry, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14358.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. The City of Sidney.
    Decided March 9, 1915.
    Error to Court of Appeals of Shelby county.

      Messrs. Waite & Schindel, for plaintiff in error.

      Mr. C. C. Hall and Mr. D. F. Mills, city solicitor, for defendant in error.
   Judgment affirmed on authority of L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St., 414, and Wabash Railroad Co. v. Defiance, 52 Ohio St., 262.

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


text:
    No. 14362.
    Dement et al. v. Daniel et al.
    Decided March 9, 1915.
    Error to Court of Appeals of Lawrence county.

      Messrs. Anderson & Robison, for plaintiffs in error.

      Messrs. Johnson & Jones, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman- and Matthias, JJ., concur. Jones, J., not participating.


text:
    No. 14372.
    Billman et al. v. The Fourth National Bank of Dayton, Ohio, et al.
    Decided March 9, 1915.
    Error to Court of Appeals of Montgomery county.

      Messrs. Van Deman & Pickrel, for plaintiffs in error.

      Messrs. Gottschall & Turner; Messrs. McKemy & Cline and Messrs. Munger & Kennedy, for defendants in error.
   Judgment affirmed.

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


text:
    No. 14377.
    Lee et al., Partners as Hong Fook & Co., v. Thoma.
    Decided March 9, 1915.
    Error to Court of Appeals of Hamilton county.

      Mr. Louis H. Capelle and Mr. Wm. Thorndyke, for plaintiffs in error.

      Messrs. Worthington, Strong & Stettinius; Mr. W. A. Hicks and Mr. Jas. R. Jordan, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14380.
    McCowen et al. v. Ryan et al.
    Decided March 9, 1915.
    Error to Court of Appeals of Seneca county.

      Messrs. Wagner & Knepper and Messrs. Dore & Dore, for plaintiffs in error.

      Mr. William D. Pence, for defendants in error.
   Final judgment of the court of appeals reversed and judgment of court of appeals reversing judgment of common pleas affirmed. Cause remanded.

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


text:
    No. 14414.
    The Cincinnati Traction Co. v. Hargrave.
    Decided March 9, 1915.
    Error to Court of Appeals of Hamilton county.

      Messrs. Kinkead & Rogers, for plaintiff in error.

      Messrs. Moulinier, Bettman & Hunt, for defendant in error.
   Judgment affirmed.

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


text:
    No. 14733.
    The Cincinnati Traction Co. v. Pierce.
    Decided March 9, 1915.
    Error to Court of Appeals of Hamilton' county.

      Messrs. Kinkead & Rogers, for plaintiff in error.

      Messrs. Snyder & Dickerson and Mr. Thos. L. Michie, for defendant in error.
   Judgment affirmed.

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


author: Jones, J.

text:
    The Adena Railroad Co. et al. v. The Public Service Commission of Ohio.

      Railroads — Charter—Common carriers — Public utilities commission —Order to furnish passenger service.

      A railroad company, organized under the general laws of the state, whose charter declares its purpose of “building, acquiring, owning, leasing, and maintaining a railroad to be operated by steam or other motive power,” is amenable to the control of the railroad (now public utilities) commission in so far as its property or its traffic is intrastate; and under such a charter the company, as a common carrier, in addition to its obligations as a carrier of freight, may be required by such commission to provide reasonably adequate passenger service and facilities, if the circumstances warrant and the corporation is reasonably able' to comply with such order.
    (No. 14340
    Decided March 16, 1915.)

      Error to the Court of. Appeals of Franklin county.
    The Adena Railroad Company, organized under the general laws of the state of Ohio as a railroad company, on March 4, 1901, obtained a charter from the state, which provided for a capitalization of $1,000,000, and, “Third: Said corporation is formed for the purpose of building, acquiring, owning, leasing, operating and maintaining a railroad to be operated by steam or other motive power having for its termini the village of Adena, Jefferson county, Ohio, and Martin’s Ferry, Belmont county, Ohio, * * * and to have, exercise and enjoy all other powers, rights, privileges, immunities, and franchises of a railroad company under the laws of the state of Ohio.”
    The company acquired rights of way between Adena, in Jefferson county, and Neffs, in Belmont county, a distance of about twenty miles, and in 1904 completed its road between those points.
    On July 5, 1911, one James T. Bentley filed a complaint before the railroad commission of Ohio ■against The Adena Railroad Company and its lessee, The Wheeling and Lake Erie Railroad Company, and Worthington as receiver, alleging that no service had been established for the transportation of persons or passengers and that no adequate freight service had been established for the carriage of freight in less than carload lots, and praying for the establishment of two passenger trains per day in each direction and for the establishment of reasonable and adequate freight service for the transportation of freight in less than carload lots.
    Testimony was taken before the commission, which found that the defendants failed to provide reasonable and adequate passenger service and freight service for freight in less than carload lots between Adena and Neffs, and ordered them to provide the following service and facilities to the public residing along the company’s line: . First, by operating daily, except Sunday, a train for passengers, leaving Adena at some convenient hour in the morning and another at some convenient hour in the afternoon, each to arrive at Neffs as soon after leaving Adena as a proper running schedule would permit, and stopping at the stations between Adena and Neffs, when signaled so to do, to receive and discharge passengers. Second, by operating daily, except Sunday, a train for passengers, leaving Neffs at some convenient hour in the morning and another leaving Neffs at some convenient hour in the afternoon, under the same conditions. Third, that reasonably adequate freight service should be provided for traffic offered in less than carload lots at stations, by operating a train carrying freight shipments in less than carload lots, daily, except Sunday, between Adena and Neffs, and Neffs and Adena.
    Thereupon the defendants, under authority then given them by statute, filed their action in the common pleas court to vacate and set aside the order of the commission, on the ground that the service fixed in such order was unreasonable and in violation of the federal and state constitutions. The common pleas court found against the plaintiff companies and dismissed the petition. An appeal was then taken to the court of appeals, where the case was heard on substantially the same testimony tendered before the commission.
    The court of appeals made substantially the same order as the commission and dismissed the petition, but reserved the right, upon application of the plaintiffs, to open up the judgment and rehear the question as to the reasonableness of the order as to the second daily passenger train at the end of six months after the service had been installed, and upon such rehearing to make such order as the justice of the case required. From this order error was prosecuted to the supreme court.
    After such error proceedings were begun the public utilities commission of Ohio, the successor of what was formerly known as “the railroad commission” and later “the public service commission,” by leave of this court, filed an answer to the petition in error, in which it was alleged that since the hearing in the court of appeals, upon a motion for new trial and application for rehearing under the reservation in judgment entered by that court, the court of appeals, upon the evidence in the original hearing and supplementary evidence offered in relation to the result of the operation of the passenger service installed upon said Adena railroad, found that said order, in so far as the same required the operation of a second daily passenger train, was unreasonable and unjust, and ordered that one passenger train a day, in either direction, should be run at convenient hours, and further reserved the power in the commission to make such additional orders in respect to passenger service as might thereafter be just and proper under changed conditions.

      Messrs. Henderson, Livesay & Burr; Messrs. Squire, Sanders & Dempsey and Mr. Robert F. Denison, for plaintiffs in error.

      Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee; Mr. George Thornburg; Mr. Herbert W. Mitchell and Mr. Charles C. Marshall, for defendant in error.
   Jones, J.

What might have been the duties and obligations of the railroad company as a common carrier, had its charter specifically declared its purpose to carry 'freight only, or whether such an authorization would be valid, it is not necessary here to determine. Its declared purpose, under its incorporation, was to build, acquire, own, lease, operate and maintain a railroad to be operated by steam or other motive power. It was thus organized under the general laws of the state, and assumed all the functions and became saddled with all the obligations of a common carrier of freight and passengers. By its charter it obtained the special powers and privileges granted railroad corporations, including the right of eminent domain. Having the undoubted power, under its charter, to perform the functions of a common carrier of passengers, it became amenable to the state’s control in relation to that specific duty. Its obligations are mutual and correlative. Since the railroad company under its franchise could insist upon its right to carry passengers, the state could also insist upon the performance of that duty by the carrier within reasonable limits. By authority of law supervisory and regulatory duties over common carriers, were imposed upon the commission under the provisions creating that body. It is provided by Section 504, General Code, that “Each railroad shall furnish reasonably adequate service and facilities.”

Section 535, General Code, provides that if, upon investigation, the commission finds that any service in connection with the transportation of passengers is unreasonable or that any service is inadequate, it may fix reasonable service to be imposed and followed in the future. These and other kindred sections recognize the commission’s governmental agency and control over railroads as common carriers, and make no distinction between them as carriers of passengers or commodities.

By its incorporation, under the general laws, the corporation assumed the performance of duties for the benefit of the public generally as a common carrier. Scofield v. The L. S. & M. S. Ry. Co., 43 Ohio St., 571; State v. The Hazelton & Leetonia Ry. Co., 40 Ohio St., 504; 4 Elliott on Railroads (2 ed.), section 1392.

That it has held itself out to the public, for a period of time, as a carrier of freight only, does not impinge upon the right of the state to compel .the exercise of its franchise, if that right existed at the time of the grant and was not affected by subsequent legislation.

The cases cited by plaintiffs in error are not in conflict with the right of the state regulation and control of common carriers. These cases were decided before the modern plan of commission control had been adopted by many of our commonwealths, and they go no further than to hold that the carrier’s duties are measured by the public needs and limited by the reasonable exercise of its franchise. Unless otherwise provided by law, these duties are not absolute but relative, and depend in each instance upon varying conditions, involving the public service on the one hand and reasonable regulation upon the other. These questions have .been confided by the state to the commission, which had full power to determine, upon the evidence, whether reasonably adequate service, including passenger service, had been furnished. This included also the determination of the question whether under the circumstances the railroad was able to furnish such service and whether the public needs reasonably demanded it.

The principle is stated by Mr. Justice White in the case of Atlantic Coast Line Rd. Co. v. North Carolina Corp. Commission, 206 U. S., 1: “As the duty to furnish necessary facilities is coterminous with the powers of the corporation, the obligation to discharge that duty must be considered in connection with the nature and productiveness of the corporate business as a whole, the character of the services required, and the public need for its performance.”

We hold, therefore, that under the charter herein obtained at least a relative duty was imposed upon the corporation to maintain a passenger service if the evidence justified the commission in finding that the same was reasonably necessary-in order to provide adequate service to the public and did not otherwise violate a constitutional right by imposing a burden upon the company heavier than it could sustain. Inasmuch as the evidence upon which the court of appeals based its finding upon the rehearing is not before us at this time, it is obvious that we cannot consider whether the order made by that court was reasonable or other-' wise.

The judgment of the court of appeals is affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaker and Matthias, JJ., concur.


author: Johnson, J.

text:
    The Hocking Valley Railway Co. v. The Public Utilities Commission of Ohio et al.

      Railroads — Public utilities commission — Provision fixing rate— Distinguished from order requiring service — Reasonableness of order — Loss by compliance — Interurban service — Burden of proof — Franchises—Consideration therefor — State regulation— Order not violative of federal constitution, when — Error proceedings — Stipreme court — Record examined, when.

    1. A provision, whether made by statute or order of a commission, which fixes rates for the carriage of passengers or freight by a railroad company is to be distinguished from an order which requires it to furnish a particular facility or perform a duty imposed by reason of the exercise of rights and franchises which it has acquired from the state; the fact that some loss would result from compliance with the latter does not in and of itself conclusively establish the unreasonableness of the order, but is an important element to be considered with all the other facts bearing on that question.

      2. In a proceeding before the public utilities commission to compel a railroad company to continue, on a portion of its road, an interurban service which it has voluntarily established and maintained for many years, during which the personal and business relations of the people of the communities served, relying on the continuance of such service, have become adjusted thereto, the burden of showing a state of facts which justify the discontinuance of the service is on the company.
    3. The franchises, rights and privileges of a railroad company are granted because of the public nature of the business carried on by it; the resulting benefits to the public constitute the consideration of the grant, and the company while exercising such rights and franchises is subject as to its state business to state regulation, either by direct statutory provision or by an administrative body authorized to act.
    4. An order of the public utilities commission requiring a railroad company to continue an interurban service on a portion of its road, under the circumstances of this case, is not unlawful or unreasonable and is not a denial of due process of law or the equal protection of the laws or a taking of property without compensation.

      5. In the < .onsideration of a petition in error filed in this court to reverse, vacate or modify an order of the public utilities commission on the ground that it is unlawful or unreasonable, the court will examine the entire record to determine whether a finding of facts made by the commission is so involved with ■ and dependent on questions of law as to be in effect a decision of the latter.
    (No. 14738
    Decided March 16, 1915.)
    Error to the Public Utilities Commission.
    John E. Hayes and certain other citizens residing in the vicinity of Jackson and Wellston, in Jackson county, Ohio, filed their complaint before the public'utilities commission. The petition sets forth in detail the interests and lines of business in which the different complainants respectively are engaged, each showing that his business is of such a character as to be closely related to and dependent upon the transportation facilities referred to thereafter in the complaint.
    It is alleged that the defendant in the year 1896 established a line of railway between Hamden, in Vinton county, through the city of Wellston and the villages of Glen Roy and Coalton to the city of Jackson, in Jackson county, a distance of about fifteen miles, and placed in operation upon said line of railroad electric cars propelled by electric motors; that certain franchises were given by Wellston and Jackson to operate said cars over certain streets in said cities and that from about 1896 the company continued to operate electric cars between the points above referred to up to the time of the filing of the complaint, and was then doing so; that said electric-car service is used by the complainants and the traveling public in general for means of transportation to and from their residences and places of business in said cities and villages and at numerous points at and near the line of service so established; that at all times since the date of establishment the company has maintained and operated a line of railway and the electric-car service, and that the general • public, recognizing such service and with the full expectation and understanding that the same would be continued, has established residences and business places and occupations at various points along said line of electric-car service and expended large sums of money in establishing the same, and that the workmen employed in and about such places of business so' established use the electric cars for transportation to and from their work.
    It is alleged that the defendant had a schedule in operating electric cars on the railroad, that the company had given notice of its intention to discontinue the operation of electric cars and that if the service is discontinued it will leave the traveling public in the cities of Wellston and Jackson and in the villages of Glen Roy, Coalton and Hamden without sufficient and adequate service for the purpose of reaching their various places of business and residences.
    In the answer it is admitted that the defendant has for some time maintained electric-car service for the transportation of persons and property; that on said line of railway, from Hamden through the towns named to Jackson, the defendant has heretofore operated electric cars and that said electric-car service has been used by the complainants and other persons; that the schedule set forth in the petition is the one upon which the cars were operated; that the defendant intends to discontinue the operation of said electric cars and the supplying of electricity for light and power purposes.
    Further answering, it is alleged that in the spring of 1896 what was known as the Wellston and Jackson Belt Railway was completed and came under the supervision of the defendant. The defendant since said time has provided steam service on said road for handling freight and certain through passenger-train service between Jackson, Dundas and Logan, where connections were made with the main lines. At about said time electric service was introduced for the handling of local passenger traffic between Jackson and Wellston and was later extended to Hamden. About the year 1910 a marked falling off in the number of passengers carried on the electric lines was noticeable, due to the almost complete exhaustion of coal in the several mines adjacent to said line. Said decrease in patronage continued throughout the subsequent years and was augmented by the removal from Jackson county of large numbers of men formerly employed about the mines, and said electric service is operated solely for the convenience of' a few commercial travelers or other people making trips to and from Wellston and Jackson; that steam service on said road will answer all requirements of the traffic; that the board of directors of defendant has resolved to discontinue the use of electric-car service and to install a service of cars operated by steam to furnish facilities equal to that provided by the defendant on any other of its lines within the staté; that the operation of said electric-car service for the last three or four years has resulted in a loss, and that electric service is not necessary and steam service is all that is required.
    The cause was heard upon evidence by the commission and on June 24, 1914, the commission, after a finding of facts hereinafter set out, made the following order:
    It is, therefore, ordered that defendant be and it is hereby notified, directed and required to establish and furnish the same interurban passenger service for the benefit and use of the public on its leased properties between Jackson and Hamden on the schedule for such service that was in effect at the time of the filing of this complaint, or upon some other schedule equally efficient.
    These proceedings are brought to reverse this order of the commission.

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee; Mr. Clarence D. Laylin; Mr. E. E. Eubanks and Mr. A. E. Jacobs, for defendants in error.
   Johnson, J.

The judicial article of the constitution, as recently amended, after defining the original and the appellate jurisdiction of this court, provides that it shall have “such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law.” ■

Section 33 of the act of April 18, 1913 (103 O. L., 804), to create the public utilities commission, provides in effect that such jurisdiction may be invoked by petition in error, and that a final order of the commission shall be reversed, vacated or modified if the court is of opinion that the order was unlawful and unreasonable. In order to give full validity to the proceedings and orders of the utilities commission, it was necessary that some adequate provision for their judicial review should be made; because if an administrative order results in the taking of property, such as the company claims results in this case, the defendant must not be denied the right to show that as matter of law the order was so arbitrary, unjust or unreasonable as to amount to a deprivation of property in violation of the constitution. Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S., 418.

The legislature is not required to -confine such revisory jurisdiction to this court, but would be authorized by Section 4 of Article IV of the Constitution to confer it on the courts of common pleas. By the provisions of the public utilities act all of the powers of the public service commission are conferred on its successor. Full provision is made in Section 524 et seq., General Code, for notice to the defendant of the filing of the complaint and of the time and place of hearing. Full opportunity is given it to be heard and to show that the order asked for is unlawful or unreasonable. It has the benefit of. compulsory process to require the attendance of witnesses to testify under oath and to secure the production of documents. Provision is made for the taldng of depositions and for a certified transcript of all the evidence, findings and orders. On petition in error here it leaves for consideration the contention that the record shows that the order of the commission was unlawful or unreasonable.

The court in Oregon Rd. & N. Co. v. Fairchild, 224 U. S., 510, 528, where a similar administrative order was under consideration, say: “This necessitates an examination of the evidence, not for the purpose of passing on conflicts in the testimony or of deciding upon pure questions of fact, but, as said in Kansas City Railway Co. v. Albers Commission Co., 223 U. S., 573, from an inspection of the ‘entire record, including the evidence, if properly incorporated therein, to-determine whether what purports to be a finding upon questions of fact is so involved with and dependent upon such questions of law as to be in substance and effect a decision of the latter,1’ ”

Various grounds are set out in the petition in error in this case on which it is claimed that the orders complained of are unlawful and unreasonable. They are comprised in the contentions of the company hereinafter referred to. It is urged that the findings and orders are against the manifest weight of the evidence. The findings, as shown by the entry of the commission, are: That the defendant has, since 1896, operated electrically propelled cars and furnished an interurban passenger service to the public over its leased properties between Jackson and Hamden, Ohio, a distance of about fifteen miles, and at the time of the filing of the complaint said service was being rendered substantially on the schedule set out therein; that by reason of the establishment and maintenance of said service by defendant, large numbers of individuals, firms and corporations were influenced in the establishment, location, maintenance and operation of their business enterprises, and the personal and business relations of the various communities, individually and with each other, were and have become and are now adjusted to and in accordance with the service so furnished; that public convenience, welfare and necessity require that defendant continue to furnish the service; that the defendant has not shown that the furnishing of the service would entail any financial loss upon it or that the service has not been, or will not be, remunerative.

We have carefully examined all of the evidence and considered it in the light of the conflicting claims of the parties with reference to it, and we are not able to say that the findings of the commission are against the evidence.

It is clearly shown that during the eighteen years while the service was continued, the personal and business relations of the communities served became adjusted in the manner set forth.

It is conceded by counsel on both sides that the order made by the commission does not require that the interurban service be maintained by means of electricity. No particular motive power is made the criterion of compliance by the defendant with the order of the commission. The question of motive power is thus left for the determination of the defendant itself. Therefpre, the only question left relates to the validity of the order requiring the company to furnish interurban service. The defendant contends that the regular steam-train schedule between the points named will supply all the needs of the community and that to operate interurban service would be a source of constant and increasing financial loss to it. Its position is that it will have performed its duty when it shall install a service of cars which will furnish transportation facilities equal to that provided by it on any other of its lines in the state, and that the order of the commission requires the defendant to discriminate unlawfully and unreasonably in favor of the points named.

As to the sufficiency of the proposed substitute service, the witness Sellers, whose testimony disclosed that he was well acquainted with the entire situation, testified that it would depend on the nature of the service and whether the substituted service would make stops of the character that were made by the already established service. To the same effect was other evidence in the case.

It is important that an adequate conception should be had of the meaning of the term “interurban service.” It is obvious that the commission used the term as meaning a service consisting of cars or trains which are run more frequently than any through steam-passenger service, and also a service in which frequent stops are made, so that patrons need not walk far along the line to arrive at the nearest stopping place. Such a service is to be distinguished from the ordinary passenger trains of steam railroads in that the latter do not stop except at regular stations located in cities or villages, which are at intervals much greater than the stops which the evidence shows were made by the defendant on the portion of its line involved in this proceeding. The question is, therefore, presented whether, in view of the fact that the personal and business relations of these communities had become adjusted, to the kind of transportation service known as interurban service as distinguished from ordinary steam service, all of which had been done by residents in those communities, who had relied upon the fact that the defendant had voluntarily entered the field and had offered to furnish and had furnished the particular service referred to, the defendant can now withdraw or discontinue the service, while still retaining its corporate franchises and rights, without itself assuming the burden of making a showing- of facts which justify the withdrawal or discontinuance. It is a matter of common knowledge that the business and personal relations of the people of the country necessarily become adjusted to its transportation facilities, and that these constitute a very important factor in determining the direction and scope of the development of particular sections.

It is not shown that there is any special franchise provision or any contract by which the defendant expressly agreed to render the service in question. Therefore, the order of the commission must find its validity, if at all, by reason of the fact that the defendant is a public utility, incorporated and organized under the laws of the state, and that while exercising the rights and privileges accruing to it as such, it has by its acts and conduct created the situation found by the commission to exist; and that from this situation a duty is imposed upon it which it cannot disregard in the absence of such a showing on its part as above indicated.

It is well established that the benefits which result to the public constitute the consideration for the grant by the state of the franchises, rights and privileges held and exercised by a railroad company, and that their acceptance by the company imposes on it the obligation to operate the railroad which it was incorporated to construct, when constructed, and of doing so in the manner and for the purposes contemplated in its charter. One of the obligations thus imposed is to so operate its trains that they will reasonably serve the needs of the public.

The court in Atlantic Coast Line Rd. Co. v. N. Car. Corp. Commission, 206 U. S., 1, said: “The elementary proposition that railroads from the public nature of the business by them carried on and the interest which the public have in their operation are subject, as to their state business, to state regulation, which may be exerted either directly by the legislative authority or by administrative bodies endowed with power to that end, is not and could not be successfully questioned in view of the long line of authorities sustaining that doctrine.”

In Gates v. Boston & N. Y. Air Line Rd. Co., 53 Conn., 342, it is said: “It is true that the charter is permissive in its terms, and properly no obligation rests upon the corporation to construct the railroad * * * when that option has been made, and the corporation * * * has commenced to operate the road under the granted powers, thereby inducing the public to rely, in their personal and business relations, upon that state of affairs; by so accepting and acting upon the chartered powers a contract exists to carry into full effect the objects of the charter. * * * Having exercised these powers the corporation has no right against the will of the state to abandon the enterprise.”

The defendant, however, contends substantially that in spite of the state of facts shown in the record, as to the adjustment of the community relations to the service, the conditions in the communities had so changed at the time the complaint was filed that the present needs do not require that the service be maintained; that electric service, considered as a separate operation, is conducted at a loss and that the enforced continuance of the service would be a discrimination against other communities served by the defendant which would not enjoy similar advantages. Defendant offered testimony tending to show that it would be necessary to install new equipment at considerable expense, which could be operated only at a loss if it is required to continue the electric service.

So far as the matter of the electric service is concerned, that is eliminated by the concessions of counsel on both sides that such service is not required by the order of the commission. So far as the changed conditions and the lessening demands are concerned, the witness Connors, called by the defendant, testified that there had been a decrease in the number of passengers, but was not able to give the extent to which this had gone. He stated that it was true, in a general way, but said “I haven’t the figures, but if estimates will answer I can give an estimate, if not I will get the figures.” It was then suggested by a member of the commission, which suggestion was agreed to by the witness, that a detailed statement showing the condition in relation to the traffic, which would disclose the facts with reference to the matter testified to by the witness, should be produced. Counsel for the commission state in their brief and at the bar that the statement was never furnished and that the general statement by Mr. Connors was all the testimony touching the subject, and we find no denial of that statement in the brief of opposite counsel. We have not found in the record anything to contradict this claim.

It is undoubtedly true that the question whether or not the interurban service is a paying service should be considered with respect to its bearing on the question whether the public necessities require such service. The presumption is that where there is such a condition and such demand for the service as to amount to public necessity, the rendering of the service would not result in loss. The finding of the commission was that the defendant had not shown that the furnishing of the service will entail loss upon it, and the finding was that the public convenience, welfare and necessity require the continuance of the service.

Much testimony was offered touching this question, and, as already indicated, we are not able to say from an analysis of it that the finding- of the commission was not sustained by the evidence.

Under the state of facts shown by the testimony and found by the commission the presumption is that there is a present necessity for the continuance of the service which has been in existence for about eighteen years, in the absence of a showing by the defendant to the contrary.

In Colorado & Southern Ry. Co. v. Railroad Commission, 54 Colo., 64, the company discontinued the service over a certain division, about sixteen miles in length, on the ground that because of heavy grades and curves operation of trains was attended with severe loss. On the other hand, it appeared that deprivation of this service inflicted greater loss on the people of the community affected. On this point the court say: “At the time it purchased the South Park System it purchased other lines * * * . It has not surrendered its franchise, and continues in the enjoyment of all its corporate rights. It does not claim that the service ordered [by the commission] is more than sufficient to accommodate the traffic between Denver and Leadville. In such circumstances, the question of loss must be considered in connection with its duties and the productiveness of its corporate business as a whole.” At page 94 of the opinion it is said: “Of course, that a service ordered will entail a loss is a circumstance to consider in determining the reasonableness of the order; but a common carrier cannot successfully complain that a loss will thus be occasioned when it appears that the ordered service requires nothing more than necessary transportation facilities.”

In Atlantic Coast Line Rd. Co. v. N. Car. Corp. Commission, supra, the carrier was ordered by the commission to-arrange its schedule so that one of its passenger trains would make connections with a certain passenger train on another line at a given point. The company contended that on account of other connections made by the train in question that train could not be operated so as to make the required connection, and that thus the order would require the operation of an additional train. The company objected to this on the ground that the public convenience did not require the additional facility and, second, that it would entail a daily pecuniary loss.

It will be observed that in that case the requirement was that facilities additional to those already in existence be furnished, while here the order requires the maintenance of existing service or its equivalent. The court sustained the commission and held that its order was not inherently unjust and unreasonable because the running of Such train would impose some pecuniary loss on the company.

Mr. Justice White said: “This proposition is based on the hypothesis that the order, by necessary intendment, directed the Coast Line to operate an additional train, although such train could not be operated without a daily pecuniary loss. * * * The contention is that the fact that some loss would result from the requirement that the extra train be operated, in and of itself, conclusively establishes the unreasonableness of the order.”

After conceding that if a scheme of maximum rates was imposed by state authority, as a whole adequately remunerative, and yet that some of such rates were so unequal as to exceed the flexible limit of judgment which belongs to the power to fix rates, that is, transcended the limits of just classification and amounted to the creation of favored class or classes whom the carrier was compelled to serve at a loss, to the detriment of other class or classes upon whom the burden of such loss would fall, such legislation would be so inherently unreasonable as to constitute a violation of the due- • process and equal-protection clauses of the fourteenth amendment, the court further say: “Let it also be conceded that a like repugnancy to the constitution of the United States would arise from an order made in the exercise of the power to fix a rate when the result of the enforcement of such order would be to compel a carrier to serve for a wholly inadequate compensation a class or classes selected for legislative favor even if, considering rates as a whole a reasonable return from the operation of its road might be received by the carrier. Neither of these concessions, however, can control the case in hand, since it does not directly involve any question whatever of the power to fix rates * * * but is concerned solely with an order directing a carrier to furnish a facility which it is a part of its general duty to furnish for the public convenience. The distinction between an order relating to such a subject and an order fixing rates * * * is apparent. This is so because as the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although by doing so as an incident some pecuniary loss from rendering such service may result. It follows, therefore, that the mere incurring of a loss from the performance of such a duty does not in and of itself necessarily give rise to the conclusion of unreasonableness * * *. Of course, the fact that the furnishing of a necessary facility ordered may occasion an incidental pecuniary loss is an important criteria to be taken into view in determining the reasonableness of the order, but it is not the only one. As the duty to furnish necessary facilities is coterminous with the powers of the corporation, the obligation to discharge that duty must be considered in connection with the nature and productiveness of the corpo-. rate business as a whole, the character of the services required, and the public need for its performance.”

In Missouri Pacific Ry. Co. v. Kansas, ex rel., 216 U. S., 262, the principle announced in the Atlantic Coast Line case was reaffirmed. The Missouri Pacific case involved an order which directed the railroad company to run a regular passenger train over its line instead of a mixed passenger and freight train. The company objected that the service could not be rendered without a loss. The court say: “When the controversy here presented is properly analyzed, the first and pivotal question arising is whether the order complained of did anything more than command the railroad company to perform a service which it was incumbent upon it to perform as the necessary result of the posses-sion and enjoyment of its charter powers.” It was also held that the order was not, even if such train is run at a loss, a deprivation of property without due process of law or a taking of property for public use without compensation, nor was such an order an unreasonable exercise of governmental control.

It must not be overlooked that a requirement, whether made by a statute or by the order of a commission, which denies a railroad company ' proper compensation for the carriage of passengers or freight, is entirely different from an order which compels the railroad company to perform duties to the public which are imposed upon it by reason of its exercise of the franchise, rights and privileges which it has acquired from the state.

We think it must be conceded that in a case of this character it would not be necessary for the defendant, in order to justify a withdrawal of the service, to show that such a service entails a pecuniary loss upon its railroad operated as a whole. There is a distinction between withdrawal from a service of this character and from such a service as is offered to all other communities served by the carrier. Where there is a special service, such as the interurban service involved in this case, the loss, if it were shown on the particular operation, is entitled to consideration in the manner above indicated.

We are not constrained to think, however, that this rule should have conclusive effect in connection with the facts shown in this case. Here the public needs were created and grew up in view of the voluntary action of the defendant itself. The finding of the commission is that the public necessity still exists. An unusual and abnormal situation was developed under the lead of the defendant. The moving by the people away from central points to places scattered along the line of the defendant, and all of the things pointed out in the testimony and the findings, being done while the people relied upon the continuance of the voluntary service by the defendant, present a situation which clearly estops it from invoking the rule above stated.

Counsel for the railroad company urge that the case of Delaware, L. & W. Rd. Co. v. Van Sanwood et al., 216 Fed. Rep., 252, declares the principles which should rule this case. It was there held that where a railroad company discontinued two trains a day each way and was ordered by the service commission to restore them, and it appeared that the people residing in the terminal cities were amply served without it, the question of the right of the commission to order the trains restored depended on whether the convenience and necessities of the residents of certain small intervening towns demanded the restoration and operation of the trains in question, and that where two steam trains a day each way were run, which reasonably served the convenience and supplied the reasonable necessities of four small intervening points, the residents of which also had the convenience of a through interurban trolley line, complainant would be considered as having performed its whole duty to the public and could not be compelled by the public service commission to operate two trains over the road each way per day at a net loss of over $3,000 per annum. After showing that a number of trains were run each day between the points named in the complaint, the gross receipts of each day and the existence of a trolley line between some of the points, the court recites the gross revenues of the defendant prior to the existence of the trolley line. It is said in the opinion : “It seems to' me that when steam trains enough are run between the city of Oswego and the city of Syracuse to accommodate and serve the necessities of the people of those cities and the intervening city of Fulton, and two steam trains per day each way are run which reasonably serve the convenience and supply the reasonable necessities of the four small intervening points, and these people also have the convenience of the trolley line as described, the complainant has performed its whole duty to the public.”

We think that the situation in this case is so substantially different from the situation described by the court in the case referred to as to clearly distinguish it.

The order complained of will be affirmed.

Order affirmed.

Nichols, C. J., Wanamaker and Matthias, JJ., concur.

Jones, J., not participating.