author: Crew, J.

text:
    The Kelly Island Lime and Transport Co. v. Pachuta, Admx.

      Employer not liable to one servant—For negligence of another servant—When both are in common service—And one does not control the other—Laborer in limestone quarry injured by blast —No warning by other workmen—Law of master and servant..

    1. An employer is not liable to one servant in his employ for the: negligence of another servant, when both are engaged in a common service and no power of control is given to the one over-the other, where the negligence complained of consists only im the nonperformance of some act or duty incidental to the general! employment and to the proper and safe conduct and prosecution of the business in which both are engaged.
    2. P was employed by the plaintiff in error as a laborer in its limestone quarry. S and O were employed as workmen in the same quarry; neither had any authority or control over the other,, but the three were all under the immediate direction and control of the same foreman, and were all engaged in the same common, enterprise and common business, viz.: that of quarrying and getting out limestone. In working and operating said quarry, one: of the methods adopted for breaking up and getting out the-stone was that of “battery blasting.” S was charged with the duty of preparing and firing these battery blasts and of giving-notice and warning to the other workmen in the quarry whenever such blast was about to be exploded. O assisted S in the preparation of these battery blasts, and it was the custom for one or the other of these men to give warning or notice. P, while working in said quarry, was, because of the failure to give him proper warning, struck by a stone thrown out by the explosion of a battery blast and received injuries from which he died. Held: That they were fellow-servants, and that the negligence of S in failing to give P warning, was the negligence of a fellow-servant for which the employer is not liable.
    (No. 8219
    Decided February 2, 1904.)
    Error to the Circuit Court of Ottawa county.
    This action was originally brought, in the court of common pleas of Ottawa county, by the defendant in error, Anna Pachuta, as administratrix of the estate' of her deceased husband, John" Pachuta, against the plaintiff in error, The Kelly Island Lime & Transport Co., to recover damages for the alleged wrongful death of her said husband, caused, as she averred in her petition, by the negligence of said company.
    The trial in the common pleas resulted in a verdict, and judgment in favor of the plaintiff—the defendant in error here—for $3,000. This judgment was affirmed by the circuit court. Other facts sufficiently appear in the opinion of the court.

      Messrs. Squire, Sanders & Dempsey and Mr. S. P. Alexander, for plaintiff in error, cited and commented, upon the following authorities:

      Railway Co. v. Ranney, 37 Ohio St., 669; Railway Co. v. Stevens, 20 Ohio, 432; Railway Co. v. Keary, 3 Ohio St., 202; Kumler v. Railway Co., 33 Ohio St., 150; Railway Co. v. Devinney, 17 Ohio St,, 198; Railway Co. v. Lavalley, 36 Ohio St., 221; Wellston Coal Co. v. Smith, 65 Ohio St., 70; Railway Co. v Webb, 12 Ohio St., 475; Railway Co. v. Feller, 11 Circ. Dec., 799; 21 C. C. R., 605; Mooney v. Belleville Stone Co., 4 Am. Neg. Rep., 195; Knutter v. Telephone Co., 67 N. J. L., 646; Cullen v. Norton, 126 N. Y., 1; Hermann v. Port Blakely Mill Co., 71 Fed., 853; Ocean Steamship Co. v. Cheney, 86 Ga., 278; Davis v. Southern Pacific Co., 98 Cal., 19; McLean v. Mining Co., 51 Cal., 255; Lindvall v. Woods, 41 Minn., 212; Baron v. Navigation Co., 91 Mich., 585; Kielley v. Silver Min. Co., 3 Sawyer, 500; Railway Co. v. Shields, 47 Ohio St., 387; Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St., 560; Fletcher v. Rylands, L. R. 1 Exch., 265; 1 Thompson on Neg., sec. 769, pp. 13, 16; 20 Am. & Eng. Ency. Law, 97; Am. & Eng. Enc. Law, pp. 957, 958; 12 Am. & Eng. Enc. Law, 946.

      Mr. William, Gordon and Mr. John F. MoOrystal, for defendant in error, cited and commented upon the ■following authorities:

      Railway Co. v. Shields, 47 Ohio St., 387; Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St., 560; Fletcher v. Rylands, L. R. 1 Exch., 265; Railroad Co. v. Stevens, 20 Ohio, 432; Railway Co. v. Keary, 3 Ohio St., 202; Dickson v. Ranken, 1 Am. Ry. Cas., 569; Railway Co. v. Lavalley, 36 Ohio St., 225; Coal & Mining Co. v. Admr. of Olay, 51 Ohio St., 557; Wellston Coal Co. v. Smith, 65 Ohio St., 74; Railway Co. v. Webb, 12 Ohio St., 475; Railway Co. v. Fellers, 11 Circ. Dec., 799; 21 C. C. R., 605; Mooney v. Belleville Stone Co., 4 Am. Neg. Rep., 195; Kielley v. Silver Min. Co., 3 Sawyer, 500; Gardner v. Railway Co., 150 U. S., 349; Hermann v. Port Blakely Mill Co., 71 Fed. Rep., 853; Western Coal Co. v. Ingraham, 70 Fed. Rep., 219; Northwestern Fuel Co. v. Danielson, 57 Fed. Rep., 915; Pullman’s Palace Car Co. v. Harkins, 55 Fed. Rep., 932; The Frank & Wille, 45 Fed. Rep., 494; Gas Co. v. Schelies, 61 Ohio St., 298; Black’s Law & Prac. in Acc. Cas., 217, 218; 1 Thompson on Neg., sec. 769; 12 Am. & Eng. Enc. Law, pp. 511, 946; 20 Am. & Eng. Enc. Law, p. 97.
   Crew, J.

At the time of the injury to John Pa'Chuta which resulted in his death, and gave rise to this action, he was employed by the plaintiff in error as a quarryman in its limestone quarry at Marblehead, in Ottawa county, Ohio. He had been in the employ of, and had worked for said company for about twenty years and for about nine years had been employed in the company’s quarry at Marblehead. There Were in this quarry two ledges of rock, an upper ledge known and designated in the evidence as the “flux ledge” and a lower ledge known as the “limestone ledge” or “lower rock ledge.” These ledges were from nine to twelve feet in height and the upper or flux ledge, which was furthest south, was about five hundred feet distant from the lower or limestone ledge. ■At the time he was injured, the deceased, John Pa■chuta, -with other workmen, was working upon this lower or limestone ledge and was engaged in quarrying and breaking up and removing stone from said quarry. The method employed in this quarry for loosening and getting out the stone was that of blasting,—holes were drilled short distances apart along these ledges of rock, these holes were loaded or charged with powder or dynamite and the charge was then exploded by means of an electric battery. This was called “battery blasting,” and the usual effect of such blast was to sever the edge of the ledge of rock along which the blast was placed, from the main body, after which the rock so severed or blown off was broken up by the workmen into smaller pieces, and when so broken up and prepared it was then taken to the kiln for burning, or to railroad cars for shipment. The blasting at this quarry was, and for several years had been in the immediate charge of one John Schaffer, whose duty it was to superintend the preparation and firing of these “battery blasts” and to give warning and notice to the other workmen,in the quarry when a blast was about to be fired that they might seek a place of safety before such blast should be discharged. Schaffer had as an assistant in the preparation* and firing of these battery blasts a man by the name of Onko, and in obedience, to instructions issued by the general quarry foreman, Mr. Fillabaum, it was. usual for one or the other of these two men—Schaffer or Onko—after a blast had been prepared and was ready to be discharged, to give notice to the other workmen in the quarry that a blast was about to be fired, and this they did, according to the custom of the quarry by going near to such other workmen and calling out the word “fire,” after which sufficient time was allowed them to get under cover or to withdraw to a place of safety before the blast was discharged. Schaffer, who in the language of the quarry was known as the “powder man,” had no authority or control over Pachuta or the other workmen employed in said quarry; but Schaffer, Onko and Pachuta were each and all of them directly and immediately under the same foreman, Mr. Frank W. Fillabaum. On the day of, and immediately prior to, the injury received by Pachuta,. which resulted in his death, a number of holes had been drilled in the upper or flux ledge of said quarry and these holes had been loaded with dynamite. After the blast had been so prepared, Schaffer sent Onko to the lower ledge to notify the men then working there, one of whom was Pachuta, that a blast was about to be discharged. Onko went along the lower ledge and gave the usual warning by calling out, “fire”; several of the workmen heard the warning and withdrew to a place of safety; others claimed they did not hear it. Pachuta, who is not shown to have heard the warning, remained where he was then at work, and when the blast was discharged he was struck by a stone thrown out by said blast and received injuries, from the effects of which, four days later, he died. To recover damages for causing his death, this action was brought by his administratrix against the plaintiff in error, The Kelly Island Lime & Transport Co., she alleging in her petition that his death was caused by, and resulted from, negligence on the part of said company. While acts of negligence other than that of a failure to give notice were charged by defendant in error, in her petition, no claim was made that the company did not exercise due care in the selection of its servants, nor is there any charge that such servants were incompetent, and upon the undisputed facts of this case no right of recovery exists in her favor, and- no liability on the part of plaintiff in error is shown, unless such right exists and such liability arises from a failure to give notice or warning to Pachuta that a battery blast was about to be exploded. Assuming then, as we do in this case, that from the evidence, the jury was authorized to find that no such notice was given him and that the death of Pachuta resulted from, and was in consequence of, the failure of Schaffer to give, or cause to be given, proper notice of the intended discharge of said blast, the only question we have thought it necessary to consider upon this record, is whether such neglect and failure upon the part of Schaffer, is in law imputable to the plaintiff in error, The Kelly Island Lime & Transport Co., who was the common employer of Schaffer, Onko and Pachuta, and whether such company is liable for, and legally chargeable with, the results of such negligence.' The determination of this question, involves a consideration of the question as to whether or not Schaffer, Onko, and the deceased, John Pachuta, were fellow-servants. The general rule that a common master cannot be made responsible for injuries resulting to a servant from the negligence of a fellow-servant, is a principle now well established in almost all jurisdictions. This rule in Ohio was recognized and announced by this court almost half a century ago in the case of Railroad Co. v. Keary, 3 Ohio St., 201, and has since been followed by a long and uninterrupted line of decisions to the same effect.

It remains then only to determine whether under the rule in Ohio, defining and prescribing who shall be deemed and held to be fellow-servants, John Pachuta was a fellow-servant, engaged in a common employment, with the parties Schaffer and Onko, who had charge of the battery blast at the time Pachuta was injured.

At the time of the accident these persons were all engaged in the common employment of getting out stone from this quarry—Schaffer and Onko in blasting the stone off from the ledges, and Pachuta after it was so blown off, in breaking it up into smaller pieces and thus preparing and making it ready for the kiln, or for shipment. Although working in different parts of the same quarry their work was in connection with each other and had relation to the same common end, that of getting out the stone, and their co-operation was necessary to bring about that result. They were all employed by, and were serving the same master, neither was in a position of subordination to, or subject to the order and control of the other, but they were each and all of them under the immediate control and authority of the same foreman, Frank W. Fillabaum, and were all engaged in the same general work. In Ohio the test to be applied in determining whether á particular servant is a vice-principal- or a fellow-servant, except in certain cases where the rule has been modified by statute, is whether or not he has been placed by his employer in a position of control or authority over his co-employe. That this, rather than the nature and character of the work being done, is the controlling and governing test in this state, would seem to be well settled by the following authorities: Railroad Co. v. Keary, 3 Ohio St., 201; Railway Co. v. Lewis, 33 Ohio St., 196; Railway Co. v. Ranney, 37 Ohio St., 665. In Railroad Co. v. Keary, we find the following syllabus:

“But a principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service, and no power or control is given to the one over the other. They stand as equals to each other, and are alone liable for the injuries they may occasion.
“But when the failure occurs in that branch of the service committed by the principal to the subordinate servants, it is their fault, and not that of their employer, and a breach of their obligations, and not his; and where they enter the service with a knowledge that several are to be engaged, each takes upon himself the hazards of the employment including that of negligence by fellow-servants, and public policy requires that they should be interested in exercising supervision over each other.”

In Railway Co. v. Lewis, supra, Day, J., in the opinion, says, at page 199: “A master, whether an individual or a corporation, is responsible to his servants for his own negligence, but not for that of their fellow-servants. This is the general rule, subject, however, to the modification recognized in the jurisprudence of this state, that where one servant is placed in a position of subordination to, and subject to, the orders and control of another servant of a common master, and the subordinate servant, without his fault, is injured through the negligence of the superior servant while both are acting in the common service, the master is liable therefor. P., Ft. W. & G. Ry. Co. v. Devinney, 17 Ohio St., 197; Berea Stone Co. v. Kraft, 31 Ohio St., 287.”

Again, in the case of Railroad Co. v. Margrat, 51 Ohio St., 130, Judge Bradbury, in discussing the question of who are fellow-servants, at page 141, says: “Was the engineer in charge of this locomotive a fellow-servant of Margrat for the consequences of whose negligence the company was not liable to the latter? Margrat and the engineer in charge of the locomotive that struck him were in the employment of the same master. The former was a brakeman on one train, while the latter was an engineer on another train of the same company. Neither had been clothed with authority over the other, therefore the relation of superior and subordinate between them had not existed in fact. In the absence of such relation, their common employer would not be liable to either for injuries received through the negligence of the other, unless the rules of law upon the subject heretofore announced' by this court have been abrogated.”

In the light of these authorities, upon the undisputed facts in this case, the conclusion that Schaffer, Onko and Pachuta were fellow-servants, is inevitable. It is, however, contended in this case, by counsel for defendant in error, that because of the nature of the work, a duty was by law imposed upon the master. The Kelley Island Lime & Transport Co., in respect to furnishing a safe place for its workmen, and that the duty so imposed included the duty and obligation to give notice and warning to such workmen, whenever a blast was about to be discharged in said quarry. That this duty on the part of the master was an absolute duty and that it could not be delegated by the master so as to absolve him from liability in case of the failure to perform such duty by the person to whom the same might he delegated. We need not here enter upon a discussion of the rule as to the liability of an employer for failure to furnish a “safe place,” inasmuch as such rule can have no application to a case such as we are now considering. In this case the deceased, John Pachuta, at the time he was injured was working in an open quarry, engaged with other workmen, in getting out, quarrying and removing stone therefrom. The.quarry itself was not an unsafe place, and if it became so it was only by reason of the negligence of a fellow-servant engaged in a common employment with decedent and during the progress, and while performing a part of, the work incident to such common employment. To such condition of facts the rule of “safe place” can in Ohio have no application. Railroad Co. v. Webb, 12 Ohio St., 475; Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 542; Gullen v. Horton, 126 N. Y., 1. In support of the claim that the dangerous character of the work and' thé obligation of the master to maintain a safe place, imposed upon the plaintiff in error the absolute duty of giving actual notice to the workmen in the quarry before the discharge of each battery blast, counsel for defendant in error cite us to the case of Mooney v. Belleville Stone Co.-a New Jersey case— found in American Negligence Reports, vol. 4, page 195, where it is held upon a state of facts very similar to those in the case at bar, that the giving of warning was a duty owed by the employer to the employes, and the failure of the foreman of a gang of workmen, to perform this duty carefully, was imputable to the defendant as employer. This case is directly in point But the rule therein laid down can not, we think, be taken and accepted as the law in Ohio. In holding the master liable in this cáse, the New Jersey Court of Appeals, does so upon the theory that the duty of the master to maintain a “safe place” is imperative and absolute; and that such duty is violated and the master made liable if through the negligence of a fellow-servant, because of his failure to give proper warning,, the place is made temporarily dangerous and unsafe,, by the doing of that which in the prosecution of the-particular business, was usual and necessary to be done, and the doing of which was but a part of, and incidental to, the proper conduct and management of such business itself. In other words, the court in effect holds, that the obligation and duty of the master-is that of a guarantor or insurer. Such is not the law in Ohio. Hence the doctrine of this case can have no-application in this state. Railroad Co. v. Webb, 12 Ohio St., 475; Railroad Co. v. Fitzpatrick, 42 Ohio St., 318. Further, the New Jersey rule for determining the liability of a master, and as to who are fellow-servants, is not the same as the rule in Ohio. In New Jersey, the character of the work being performed is-, the governing test—Knutter v. N. Y. and N. J. Telephone Co., 67 N. J. L., 646—while in Ohio the question of control is the test to be applied.

In the case at bar, the only negligence shown, being the negligence of a fellow-servant of the decedent, John Pachuta, the master, The Kelly Island Lime &. Transport Co., can not be held liable for the results, of such negligence. The plaintiff in error was, upon the record, entitled to have judgment in its favor, and its motion to arrest the case from the jury, and for-judgment, should have been sustained.

Judgment reversed and judgment for plaintiff in error.

Spear, Davis, Shatjck and Price, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Lewis, Auditor of Hamilton County, v. The State ex rel. Kramer.

      Assessing realty and new structures—Section 2?53? Revised Statutes —Remodeled and improved old parts of building—To be valued and assessed—Property owner not entitled to notice of increase-assessment—Section 2804, Revised Statutes—Board .of equalisation and powers of same.

    1. Under the provisions of section 2753, Revised Statutes, an annual assessor, at the time of taking the lists of personal property, is. required to make and return a list of all new structures of any kind and affix a value thereto, if the value thereof- exceeds $100;: and where the owner of a building, 'during the preceding year,, has remodeled and reconstructed it internally, and has also reconstructed with new material some or all of its walls, so as to. substantially enhance the value of the premises, such new parts, and the remodeling and improvement of the old may be listed, valued and returned by the assessor as new structures withim . the meaning of said section.
    2. The owner of the premises is not entitled to notice of the increase; so made, of the taxable value of his property; and the annual board of equalization may review and increase the valuation so returned by the assessor without notice to the owner under section 2804, Revised Statutes.
    (No. 8425
    Decided February 2, 1904.)
    Error to tibe Circuit Court of Hamilton county.
    The action in the lower court was in mandamus, wherein the defendant in error prayed for a writ commanding the auditor of Hamilton county to correct his tax list as to certain errors set out in the petition and that he be required by the writ to- call the attention of the commissioners of said county to such errors, to the end that the commissioners may cause to be refunded to the relator the amount of taxes erroneously charged and collected. The relator’s property is in the city of Cincinnati, and the relator alleges that the valuation thereof for- taxing purposes. in the year 1899, was in the sum of $5,440, and that Lewis, auditor, in making the tax list and duplicate for the year 1900, listed the same property for taxation at $6,890, being an increase in valuation in the sum of $1,450. The relator charges that the increase was so made by the auditor in consequence of an addition made in that sum by order of the board of supervisors of Cincinnati, acting as the annual board of equalization of said city for the year 1900, and without notice of any kind to him, and that erroneous taxes on the property were collected in December, 1900, in the sum of $18.84. The said errors have been called to the attention of the auditor, and he has been requested to call the attention of the commissioners thereto, with a view of obtaining a refunder of the taxes paid.
    In answer to the petition of relator, the auditor, in substance says, that during the year prior to April, 1900, the relator placed a new structure upon the real estate, by remodeling, altering and almost entirely rebuilding the structures thereon, and that the assessor of the ward in which the premises are situate, fixed and returned the valuation of the new structure at $1,100, allowing a deduction of $250 for the destroyed portion of the old structure, leaving the addition of the valuation at $850, and that this amount was returned by the assessor for the year 1900. The answer further relates that after the assessor’s'returns had been made, the board of supervisors of the city, acting as an annual board of equalization, considered said return, viewed the new structure so made, and found the same to be of the value of $1,450 and ordered the sum to be added to the valuation of the premises. In compliance with the order, the auditor entered the increase on the tax duplicate for the year 1900, and charged the regular taxes against the same. 'The auditor claims that the increase was properly made and that he was justified in refusing to call the attention of the commissioners thereto. He also alleges that the relator had full knowledge of the increased valuation for the year 1900, and that he voluntarily paid on this increased valuation, but the relator denies this in the reply.
    The court of common pleas found for the relator, Kramer, and granted the writ of mandamus so prayed for. The case was taken to the circuit court on appeal, where the facts were agreed upon between the parties and which appear in the opinion.
    On these, the circuit court found for the relator and granted the writ of mandamus.
    The auditor, Lewis, prosecutes error in this court to obtain a reversal of the judgment of the circuit court.

      Messrs. Ampt, Ireton, Gollins & Behoenle, county solicitors, for plaintiff in error.

      Mr. Dan Thew Wright, for defendant in error.
   Price, J.

The relator, Kramer, relies on the provisions of section 1038, Revised Statutes, as the ground for his action in mandamus. So much of that section, as is necessary to quote in this proceeding, may be stated as follows:

“The auditor shall, from time to time, correct all errors which he discovers in the tax list and duplicate * * * in the amount of such taxes or' assessments * * * and if at any time the auditor discovers that any erroneous taxes or assessments have been charged and collected in previous years, he shall call the attention of the county commissioners thereto, at any regular or special session of the board; and if the commissioners find that taxes or assessments have been so erroneously charged and collected, they shall order the auditor to draw his warrant on the county treasurer, in favor of the person or persons paying the same, for the full amount of the taxes or assessments so erroneously charged and collected, and the county treasurer shall pay the same out of any surplus or unexpended funds in the county treasury * * * but no taxes or assessments shall be so refunded, except such as have been so erroneously charged and collected in the five years next prior to the discovery thereof by the auditor.” * * *

His amended petition is framed with the view of -Compelling the auditor to perform a certain specific duty imposed by the foregoing section, and the lower court, following the averments of the petition thereunder, ordered the auditor to call the attention of the commissioners of Hamilton county to the erroneous taxes that had been charged and collected against relator’s property on account of an addition to its valuation illegally made.

The auditor had refused to call the attention of the commissioners to the errors of the duplicate complained of and to enforce the performance of this alleged duty is the purpose of the action.

Under the section quoted, if the auditor complies with the request, before suit, or with the writ after suit, and calls the attention of the commissioners to the supposed grievances, and that board finds “that taxes or assessments have been so erroneously charged and collected, they shall order the auditor to draw his warrant on the county treasurer, in favor of the person or persons paying the same, for the full amount of the taxes or assessments so erroneously charged and collected, and the county treasurer shall pay the same out of any surplus or unexpended funds in the county treasury * * *.”

Another clause of the above section is worthy of notice. “ '* * * and if at any time the auditor discovers that any erroneous taxes or assessments have been charged and collected in previous years, he shall call the attention of the. county commissioners thereto at any regular or special session of the board, and if the commissioners find,” etc. It would seem that before the auditor is required to give information to the board, errors of the kind mentioned must be discovered by him. In this case, the auditor strenuously ■asserts there are no such errors, and therefore he had discovered none. Hence he had no information in that respect to impart to the commissioners. Insisting that no errors are on the duplicate against relator and that he has discovered none, we observe the use of the extraordinary writ of mandamus to compel him to discover them and give information thereof to the ■commissioners. It will be claimed, however, that he ‘discovers that which he ought to discover.

One or more members of this court doubt the right to the remedy in mandamus in such a case, and the reasons for the doubt are quite forcible. But, inasmuch as this court in Lewis, Auditor, v. State ex rel. Mullikan, 59 Ohio St., 37, entertained the remedy by mandamus upon allegations somewhat similar to those made here, invoking the aid of the same section of the statute (section 1038, Revised Statutes), we have concluded to dispose of the controversy as the parties have made it.

What are the grievances of the relator, Kramer?

The facts agreed upon are, that he owns a lot and "building in Cincinnati fronting twenty-eight feet on north side of Court street. The building originally was a three-story brick. In the year 1899 he changed, and remodeled it by taking out the entire front and rear walls and replacing them with new walls. The new walls were constructed of two thicknesses of brick, the outside brick being new, and the inside being old brick, taken from old walls. The front wall was faced with new buff pressed brick. On the floors-above the ground floor, new bay-windows were constructed, two on each floor extending four feet over the sidewalk. Before the change the ground floor' was divided into two store rooms, with a central hall and stairway between them. The upper floors were' divided into ten living rooms, five on each floor. As. reconstructed these floors were made into sixteen living rooms, being divided into four flats of four rooms, each—being eight rooms on each floor. A new roof was constructed on the entire building, and new kitchen plumbing was put on each floor for the use-of each flat The new roof and plumbing is worth more than $100.

In the year 1900, the annual assessor for the ninth ward, where the premises are situate, returned these' improvements as a new structure at a valuation of $1,100, but allowed a deduction of $250 for the destroyed portion of the building, making a net addition of $850 to be added to the valuation of the property as it then stood on the duplicate. When the-board of supervisors, acting as an annual board of equalization, came to consider the returns of the annual assessors, including the return in controversy, and after viewing the premises, found the improvements to be of the value of $1,450 for taxation, and increased the assessor’s return $600 and ordered that. $1,450 be added to the valuation on the duplicate for the year 1900 -which addition was made by the auditor. No notice was served on Kramer of this added valuation under section 2804, Revised Statutes. Kramer paid the taxes in December, 1900, on the new valuation without protest. So much for the facts.

The action of the annual assessor above described! and the proceedings of the board increasing the assess- or’s return in the sum of $600 are both assailed and branded as not only erroneous but illegal, and the circuit court ordered the auditor, because of these errors, .to “call the attention of the commissioners thereto,” in order that the taxes which Kramer had paid on the increased valuation may be restored to him.

Counsel for the parties, in oral argument and in their briefs, have discussed the various statutory provisions made for the listing of property and collection of taxes; also for the correction of the tax lists and tax duplicates, so that errors of omission and commission may be corrected. But we decline to assume the unnecessary burden of construing all such provisions. It is sufficient to say, that while it is to be lamented, that our system of statutes relating to the subject of taxation is not made clearer and more harmonious, it does appear that in its various provisions, the legislature has intended to reach, for purposes of taxation, the property of every citizen, whatever its form may be, and which is not by law exempt, to the end that all shall bear their just share of the public burdens.

In this case, the action of the annual assessor,_ is said to be justified by section 2753, Revised Statutes. For the purposes of this case, we quote it in part:

“At the time of taking the lists of personal property the assessor shall also take a list of all real property which shall have become subject to taxation .and is not on the tax list, and affix a value thereto, •according to the rules prescribed for district assessors in assessing real estate; and he shall also make -and return a list of all new buildings or other structures of any kind of over $100 in value, the value of which shall not have been previously added to, or in■cluded in the valuation of the land on which such ¡structures have been erected, specifying the tract or lot of land on which each of such structures has been •erected, the kind of structure and the value which, in his opinion, has been added to such tract or lot by the erection thereof * *

It is further provided in this section that if the assessor ascertains that any structure of any kind, orchards, timber, or ornamental trees have been destroyed by fire, flood, cyclone, or storm, the value of which is over one hundred dollars, and which have been included in the valuation of the preceding year, he shall determine how much less valuable the tract •or lot has been rendered, and make due return thereof.

It will be observed in the part of the section quoted, that the assessor, in performing his duties, in relation to new buildings and any other structure, shall proceed according to the rule prescribed for district assessors in assessing real estate, and one of the rules is found in section 2793, Revised Statutes, as follows: '“For the purpose of enabling the assessor to determine the value of buildings and other improvements, he is hereby required to enter, with the consent of the ■owner or occupant thereof, and fully to examine all buildings and structures of whatever kind, which are by this title either liable to or exempt from taxation.”

In the case at bar, no “new buildings” were found 'by the assessor, nor what can properly be called “ad•ditions” to existing buildings.

The case turns on what meaning we attach to the words “other structures of any hind/’ as found in section 2753. We are aided in arriving at this meaning by section 2730, Revised Statutes, which is: “In this title the terms ‘real property’ and ‘land’ shall be held to mean and include not only land itself, whether laid . out in town lots or otherwise, with all things contained therein, but also, unless otherwise specified, all buildings, structures, and improvements, and fixtures of whatever kind thereon * *

Section 2753 follows in the same title. The “structure” if not over one hundred dollars in value, escapes return, so that minor improvements and repairs are not to be valued. The “structure” contemplated must be of a substantial character, such as to attract attention and show a marked change in the appearance and -condition of the property, rather than such change as •occurs in making incidental and necessary repairs. The “structure” need not be a “new building,” or an addition to an existing building, as an “addition” is generally constructed on the ground and annexed to the original building, or placed on top of the same.

Kramer made substantial changes in his building, as we have seen. Preserving the outlines, dimensions and shape, he made new front and rear walls, using new material for the purpose; in the front more costly and ornamental brick, and constructing bay-windows in the front of the upper stories, thus adding convenience and beauty to the entire building. He remodeled the upper floors and made four flats having in all sixteen rooms.

Did all this constitute a “structure of any kind” within the meaning of the statute? This word certainly is not confined to a structure .independent of arty other existing building or structure, for such meaning would render the word inoperative.

The Century Dictionary defines the word structure as follows: “A fitting together, adjustment, building, erection, a building, edifice, structure. 1. The act of' building or constructing; a building up. 2. That which is built or constructed; an edifice or building of any kind; in the widest sense, any production or piece-of work artificially built up, or composed of parts joined together in some definite manner; any construction.”

The Standard Dictionary gives a similar definition^ Taking the latter branch of the definition, we have no-difficulty in reaching the conclusion that the changes-made, and new work and material placed in the building by Kramer constitute a “structure” within the-meaning of that word as used in the statute.

The conclusion is made somewhat clear by the subsequent language of the section, where the annual assessor is required to note the destruction of structures, orchards, timber, etc., by fire, storm, and cyclone, and fix the proper deduction to be made from the former valuation, and return the same to the auditor, so that the owner may have the benefit of a corresponding reduction of valuation.

It has been suggested that in section 2803, Revised Statutes, provision is made for circumstances like the present wherein the auditor is clothed with authority to act. It reads in part:

“In all cases where any county auditor shall discover, or have his attention called to the fact, that ány assessor in any previous year shall have omitted to return, or shall in any future year omit to return any lands, town lots, or any improvements, structures or fixtures thereon, subject to taxation, situated within. his county, * * * it shall he the duty of said auditor to ascertain the value thereof for taxation, as near as may he, and to enter said lands, town lots or improvements, upon the duplicate,” etc.

In our judgment, this section adds argument in favor of our construction of section 2753, because it is plain that the duty as to such structures, improvements, etc., rests primarily on the annual assessor, and it is on his omission of duty, that the auditor may proceed and place such property on the duplicate, and fix its taxable value.

In short, all provisions of the tax laws aim at a proper return of all species of property for taxation, that is not lawfully exempt, and demonstrate that the state, through its various agencies, is a very industrious tax gatherer.

Another proposition urged against the charges made against Kramer on the duplicate is, that he received no notice of the increase in valuation of his property, made either by the assessor, or the addition thereto made by the annual board of equalization. This board, after viewing the premises, added $600 to the return made by the annual assessor, and this too without notice to Kramer under section 2804, Revised Statutes. This is one of 'the facts agreed upon.

There is no provision that requires the assessor to give notice of an addition that he may make to former valuation. It was the duty of Kramer to list the new structure, and if he did not do so, the assessor could do so while visiting the owner for the purpose of ascertaining what he owned that is subject to taxation. Does the statute (section 2804) require the annual board of equalization to give notice to the property owner before it can increase the valuation? As bearing upon the question we quote from the section: “Said board shall have power to hear complaints, and to equalize the valuation of all real and personal property, moneys, and credits within the county, * * *; provided, that said board shall not reduce the value of the real property of the county below the aggregate value thereof as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures over the value of those destroyed, as returned by the several township assessors for the current year; provided, further, that eoscept us to new structures, and structures destroyed, and lands and lots brought onto the tax list since the preceding decennial state board of equalization, the annual county board shall not increase or reduce the valuation of any real estate, except upon reasonable notice to all persons directly interested, and an opportunity for a full hearing of the question involved * *

It is quite obvious from the above language that as to new structures, and certain other property described, no notice to Kramer was necessary, and the annual board, whose time of meeting is fixed by statute, may increase the value placed on new structures by the annual assessor without previous notice to the owner of the property.

The new structure in question was not in existence at the preceding decennial valuation, but came into existence during the running of the decennial period, and it would seem that from the tenor of section 2804, there is no inhibition against the annual board adding the value of a new structure without notice to the owner. It was his duty to have listed the structure himself, and the board was undertaking to perform an omitted duty.

In Glenn et al., Exrs., v. Raine, Auditor, 55 Ohio St., 682, this court affirmed the judgment of the superior court of Cincinnati at general term, whérein a question very similar to ours was decided. See 30 W. L. B., 30. In that case, Hunt, J., speaking for the court, sums up the controversy as follows: “There is nothing in the law requiring the board of equalization, before it reviews the action of the ward assessor in the matter of new structures, to serve notice on the owner. No such construction has been given our tax legislation, and a careful examination of the law shows no provision which requires it to be done * *

A careful reading of that case convinces us that the principle there announced, met the approval of this court in Glenn v. Raine, Auditor, 55 Ohio St., 682.

On the whole case as it appears in the record, we hold that the circuit court erred in awarding mandamus, and its judgment is reversed, and the petition of the relator is dismissed.


text:
    Lewis, Auditor of Hamilton County, v. The State ex rel. Harris, Exrx., etc.
    (No. 8426
    Decided February 2, 1904.)
    Syllabus same as in case 8425.—[Reporter.
    Error to the Circuit Court of Hamilton county.
   This case was heard and submitted with the preceding case, No. 8425.

In the circuit court the parties agreed upon the facts, which show that Harris owned two lots with separate buildings thereon, and that each of these properties was changed, remodeled and improved in the year 1899, and that the improvements were as radical and substantial as in the preceding case. The annual assessor for the year 1900 added $1,000 to the valuation of one property because of its improvements, and $750 to the other and so made his return to the auditor. The annual board of equalization confirmed the addition and ordered it placed on the duplicate which was done.

The owner received no notice of the increased valuation under section 2804, Revised Statutes.

For the reasons given in the principal case (8425), and which we need not repeat here, the judgment of the circuit court is reversed and the petition of relator dismissed.

Judgment reversed.

Spear, Davis, Shauck and Crew, JJ., concur.

Burket, C. J., not sitting.


text:
    The P. C. C. & St. L. Railway Co. v. The City of Greenville.

      Appropriation of property by municipal corporation—For opening streets across railway tracks and lands—Section 2233, Revised Statutes—Railway company may seek relief in court of equity, when—Court may restrain proceedings for compensation assessments—Court procedure—Municipal law.

    1. Where a municipal corporation exercises the power to appropriate for the purpose of opening or extending streets or alleys acro»s railway tracks and lands held or owned by a railway company, under section 2233 and cognate sections, Revised Statutes, and is about to file in the probate or common pleas court, an application for the assessment of compensation to the holder or owner of such railway property, the company may resort to a court of equity by filing a petition against the municipality, alleging sufficient facts to show that such extension of the streets or alleys will unnecessarily interfere with reasonable use of said tracks and other property to be affected, and the court may upon such petition, restrain further proceedings for the assessment of compensation until the claim of the company may be judicially determined.
    2. The petition involved in this case states a cause of action for the relief therein prayed for.
    (No. 8192
    Decided February 2, 1904.)
    Error to the Circuit Court of Darke county.
    The action commenced in the court of common pleas, is for an injunction against the City of Green-ville, to prevent it from extending Wayne and Harrison avenues in said city across the tracks, side tracks, yards and other property of the railway company. Facts are alleged in the petition tending to show that the extensions proposed will unnecessarily interfere with the reasonable use of said property by the railway company; and that the city has passed a resolution to appropriate for the extensions, a part of the said railroad property, and is about to apply to court for the assessment of compensation. Other averments are noticed in the opinion.
    The petition prays for an injunction against the city taking any steps for the purpose of having compénsationi assessed for the property appropriated, and that the city be enjoined from taking possession of the premises and from interfering with the plaintiff’s use of. the same, and that its rights be declared paramount to the rights of the city.
    General equitable relief is prayed for.
    The City of Greenville, by its solicitor, demurred to this petition on the ground that it does not'state facts sufficient to constitute a cause of action against the city and does not state facts sufficient to warrant the court in granting the relief prayed for.
    The demurrer was sustained by the court and petition dismissed, and upon appeal the circuit court rendered a like judgment. Thereupon the railway company filed its petition in error in this court, seeking to reverse the judgment of the circuit court.

      Messrs. Anderson, Bowman & Anderson and Mr. G. B. Heiserman, for plaintiff in error, cited and commented upon the following authorities:

      Railway Co. v. Fostoria, 4 Circ. Dec., 602; 7 C. C. R., 293; Giesy v. Railway Co., 4 Ohio St., 326; Railway Co. v. Dayton, 23 Ohio St., 510; Danis v. Davis, 11 Ohio St., 391; Clapp v. Banking Co., 50 Ohio St., 537; Railroad Co. v. Belle Centre, 48 Ohio St., 273; United States v. Jones, 109 U. S., 518; secs. 524, 2238, 2239, 2241, 2245, 2246, 2247, 2248, 2249, 2250, 2251, 2252, 2253, 2254, 2260, Rev. Stat.

      Mr. Guy G. Baker, city solicitor; Mr. D. L. Gaskill and Mr. J. M. Bickel, for defendant in error, cited andi commented upon the following authorities:

      Railway Co. v. Dayton, 23 Ohio St., 510; Railroad Co. v. Belle Centre, 48 Ohio St., 296; Woods’ Railway Law, 670; Railroad Co. v. Railroad Co., 66 Ill., 174; Railroad Co. v. Gas Co., 63 New York, 326; Haff v. Fuller, 45 Ohio St., 497; 1 High on Injunctions, 644; Railroad Co. v. Patterson, 37 Md., 125; 57 Md., 267 Spelling on Injunctions, par. 284; McDonald v. Payne, 114 Ind., 359; Connor v. Railroad Co., (Ky.) 19 S. W. Rep., 597; Lanterman v. Railroad Co., 28 N. J. Eq., 1; Adams v. Harrington, 114 Ind., 66; Railway Co. v. Fostoria, 4 Circ. Dec., 602; 7 C. C. R., 293; Railway Co. v. Fostoria, 56 Ohio St., 726; In re Application of City of Buffalo for Appointment of Commissioners, 64 N. Y., 547; Railway Co. v. Akron, 13 Dec., 411; Railroad Co. v. Hyde Park, 6 Dec., 327; 4 N. P., 296; Railroad Co. v. Toledo,, 5 Dec., 306; 7 N. P., 285; act of May 3, 1852 (50 O. L., 223); act of April 28, 1873 (70 O. L., 175); secs. 2232, 2233, 2237, 2238, 2252, 2254, Rev. Stat.
   Price, J.

The questions involved in this proceeding are of more than ordinary interest, and deserve a careful review. The petition is elaborate with description of the property of plaintiff, the date óf it» acquirement, and the serious inroads about to he made-upon it and its proper use. It is fruitful of apprehensions of impending danger to its property, and spreads before us for consideration the nature and extent of its possessions and rights in the city of Greenville which will surely he affected and inevitably injured if the defendant in error is allowed to> proceed with the work of appropriation.

It is alleged that the council of the city of Green-ville has passed an ordinance which, by its terms, appropriates portions of the plaintiff’s premises, for the extension of Wayne and Harrison avenues across the railway property, tracks and yards, the Wayne street extension to ' be sixty-six feet in width; and that the. railway company acquired’ the premises so to be crossed long prior to the establishing of either of said avenues, and that it had located and constructed its station and .yards so as to be able to transact its bush ness conveniently and safely, and at the same time accommodate the public. It has constructed and for many years maintained upon its premises its main railway track and three side tracks with the necessary switches and yards, and upon the same land has erected and maintained its freight depot, stock-pens and weighing scales, all of which are in daily use, and absolutely necessary for the transaction of its business. The side tracks, switches and yards are used by the plaintiff to shift cars and make up trains to deliver to and remove from the station at Greenville, loaded and empty cars, and the side tracks are usually wholly occupied by freight cars, a large number of which are required to carry on the company’s business, and that the side tracks and switches at the points of threatened extension are so arranged that •daily a large number of vehicles and teams are driven upon the premises for the purpose of carrying away freight, or bringing in freight for shipment to other points.' It also appears by averment, that other and sufficient streets have heretofore been extended across the company’s lands to amply accommodate the traveling public, and that the company has no other grounds or lands which can be used or occupied for its business, and that none can be secured, within the •city limits. If the proposed extensions are made, the petition says, the railroad yards will be cut into three sections of about 300 feet each in length, and that to manage and make up its trains it will be impossible to comply with the laws of Ohio with reference to blockading of street crossings, and its property will thereby be rendered valueless to the company for the uses to which it is now devoted.

The petition then says that the appropriation of said property and the extension of said avenues will unnecessarily interfere with the reasonable use of the plaintiff’s property for railroad purposes, and it will be prevented from the full and free exercise of its rights and privileges under the law. There are other .averments in the petition which we need not at present set out. The company would have the city enjoined from making the extensions. Both of the lower courts held the petition bad on demurrer, and we are asked to determine whether their judgments shall stand. The questions raised by the demurrer as stated by counsel are: 1. Is the petition sufficient to entitle the plaintiff to an injunction? 2. Has the plaintiff an adequate remedy at law?

There is no doubt of the power of a municipal corporation to lay out and establish streets or alleys across railroad tracks and lands, if one condition fixed by the law is not broken. The easement or right of a railroad company acquired by appropriation in the exercise of the right of •eminent domain, or its tracks and lands acquired by purchase for railroad purposes, may alike be .subjected to the use of a municipal corporation in the form of streets and alleys, if done in accordance "with the provisions made by our general assembly on the subject. Appropriations by municipal corporations are not governed or controlled by the general statute for the appropriation of private property by corporations, as found in sections 6414 to 6453, Revised Statutes, inclusive. That there should be no-doubt about this, section 6453 expressly provides that “The provisions of this chapter shall not apply to proceedings by state, county, township, district or-municipal authorities, to appropriate private property for public uses, or for roads or ditches;- * * Therefore we may lay aside the rules of procedure-provided in those sections and look to the municipal code as the sole authority for the appropriation of' property by municipal corporations.

It begins in section 2232, Revised Statutes, and thereby “Each city and village may appropriate, enter-upon and hold real estate within its corporate limits; for the following purposes, but no more shall be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied: 1. For opening, widening, straightening and extending streets,, alleys and avenues; also for obtaining gravel or other-material for the improvement of. the same * * Then follows in detail the numerous purposes for which appropriation may be made. In April, 1873, the municipal code was so amended that the section as amended and now section 2233, Revised Statutes, reads: “The power to appropriate may also be exercised for the purpose of opening or extending streets or alleys across railway tracks, and lands held or-owned by railway companies, * * * where such appropriation will not unnecessarily interfere with the reasonable use of the property so crossed by any such improvements * *

The next inquiry is, how may it, the municipal corporation, appropriate? This is answered by section 2235, Revised Statutes, which is in part: “When it is deemed necessary by any municipal corporation to appropriate private property as hereinbefore provided, the council, board of legislation, or other legislative body, as the case may be, shall order by a yea and nay vote, of which due record shall be made and kept, a resolution prepared declaring such intent, defining therein the purpose of the appropriation, and setting forth a pertinent description of the property designed to be appropriated; and immediately upon the introduction of such a resolution, and before the passage of the same, the mayor of the corporation shall cause written notice of such resolution to be given to the owner or owners of every piece of property sought to be appropriated, or to his, her or their authorized agent. * * * And such written notice shall be served by an officer of the corporation designated for the purpose, and return made by such officer in the same manner as is provided by law for the service of summons in civil actions; * * * and no action shall be taken upon such resolution until all the owners of property sought to be appropriated shall have had notice as herein provided; and on the passage of such resolution the yeas and nays shall be taken and entered on the record of the proceedings of the council or legislative body, * * When the resolution has thus been acted upon, passed and recorded, the municipal power has been exercised, and the appropriation made. The further proceedings are for compensation to the owner whose property has been appropriated. The next step therefore is under section 2236, which is that: “Upon the passage of the resolution by the requisite majority, appli cation in writing shall be made to the court of common pleas of the proper county, or to a judge thereof’ in vacation, or to the probate court of the county,, which application shall describe as correctly as possible the property to be taken, the object proposed,, and the name of the owner of each lot or parcel of the-property.”

The next section provides for notice and its service.. Section 2238, gives the scope of inquiry preliminary to calling a jury: “If it appear to the court or judge-that such notice has been served five days before the-time of the application, or has been published as provided in the preceding section, and that such notice is; reasonably specific and certain, the court or judge-may set a time for the inquiry into and assessment, of compensation, by a jury of twelve men * * *.”' Section 2239 provides in substance that, if the application be in the common pleas, and that court is not ins session on the day fixed for the inquiry and assessment of compensation, the judge “shall hold a special’ term of court for the purpose of hearing and determining such inquiry and assessment, and shall direct a. jury to be summoned for the purpose of making such inquiry * * Following this is the method of’ obtaining the jury and the order of proceedings at, the trial. Where, in all these provisions, is there a. forum in which can be determined, the condition to the exercise of power to appropriate in such cases;; to wit, that “such appropriation will not unnecessarily interfere with the reasonable use of the property so crossed by any such improvements,” as found in section 2233? This fact must be found somewhere-in order that the municipality may extend “streets or-alleys across railway tracks and lands held or owned by railway companies.” No doubt exists that the inquiry may be made before the village or city council where the resolution to appropriate is pending, and the notice to the holder or owner of such railroad, property is required in order that objections to the appropriation may be made before the passage of the-resolution. But is such, opportunity, or remedy, if it be one, exclusive? Is it adequate? Let us see. The-council has no authority to call or summon or swear-witnesses. No issue can be made up before it on the-important question. The statute makes no provision for any finding by the council on the subject, and none-for recording such finding if one should be made. Neither error or appeal will lie as to its decision. In no sense can the hearing before the council be called a judicial trial, for it has none of its essentials. Nor can it be regarded as a remedy at law of any kind to. settle the question whether the appropriation will or-will not “unnecessarily interfere with the reasonable-use of the property so crossed by any such improvements.” Before the council, the railway company-may object and give its reasons for the objection, and urge the interference with the reasonable use of its. property. This privilege cannot be called an “adequate remedy at law.” The council is a legislative-body and possesses no judicial functions.

But counsel for defendant in error state on page eight of their brief that the right to appropriate - under the condition fixed by section 2233, can be determined in the probate or common pleas court where-the application is filed as provided in section 2236. The brief says: “Upon a hearing in such a suit, brought by the city an answer may be filed by the railroad company and the same questions may be heard, and determined by the court in which the appropriation proceedings are brought; and the statute gives, the railroad company the right of appeal, or the right. (to prosecute error.” This paragraph is full of as-, sumption. We have said that in proceedings to appropriate for streets and alleys, etc., by municipal corporations, the council makes the appropriation by resolution, and when that is properly done, the next .step is the filing of an application in one of the courts, In order to have compensation to the owner made by .a jury in a constitutional manner. The application may be filed in the probate court, which, on such subjects, has merely statutory jurisdiction. And if it Ibe filed in the court of common pleas, it still is a ¡special proceeding and strictly regulated by statute.

There is no provision by which the railway company has a right to file an answer to the application in cither of the courts. Answer to what? The application would contain the proceedings before the council, including the resolution to appropriate and the .giving of the preliminary notices, and a pertinent description of each parcel of property appropriated, ¡and ask for the impaneling of a jury to assess compensation. An “answer” to such application would present no issue on the right to appropriate. The court, on such an application, makes no order of appropriation, if the statute is followed, because section 2238 provides that, “If it appear to the court or judge (that such notice has been served five days before the time of the application, or has been published as provided in the preceding section, and that such notice is reasonably specific and certain, the court or judge ■may set a time for the inquiry into and assessment of *compensation by a jury ” etc. Nor is there any authority for filing a cross-petition by the railway company setting up the unnecessary interference with its property. No provision is made for the making nr trial of ¡such an issue, and the court is without authority to render a judgment upon such issue if made. In practice, counsel may instance a case or cases, where some such pleadings were allowed to be filed against the application, and an inquiry made under it We cannot find any authority for it even by implication from the statutory provisions on the subject Even if, in the exercise of the discretion of the court, such an answer or cross-pleading can be filed, it cannot be respected as a remedy, much less an adequate remedy at law. A party has no adequate legal remedy if it exists wholly in the discretion of a court. To be adequate and legal it should be one that he can invoke without let or hindrance, as the assertion of his rights.

But counsel for defendant in error assert that this court has affirmed Toledo & Ohio Central Ry. Co. v. The City of Fostoria, 4 Circ. Dec., 602; 7 C. C. R., 293, where a contrary view was taken. The affirmance without report appears in Railway Co. v. Fostoria, 56 Ohio St, 726. Inasmuch as the opinion of the circuit court in that case has been the source of some confusion, we have examined the printed record filed in this court, and which was the subject of review in 56 Ohio St., supra. Resolutions to appropriate railroad property for extension of streets had been passed by the council of Fostoria, and applications filed in the probate court under the provisions of the statute. Notices were given and assessments of compensation had by a jury and verdicts confirmed. Appeal was taken to the court of common pleas, where the court entered upon a preliminary hearing as to the passage of the resolution by the necessary vote; the sufficiency of the notice for the hearing of the application ; and as to whether the extension of the streets would unnecessarily interfere with the reasonable use of the railroad property. The entry shows that the court heard evidence and arguments, and thereupon, found generally for the railway company, and adjudged that it go hence and recover costs. The city took the case on error to the circuit court on petition in error and a bill of exceptions containing the evidence adduced on the hearing. The circuit court, as shown by its judgment entry, found in substance, that the common pleas erred: (1) In finding that the notice of the application for assessing damages was insufficient. (2) In holding that the ordinance for the appropriation was not passed as alleged in the application. (8) The court erred in finding that the appropriation would unnecessarily interfere with the reasonable use of the property by the railway company. And for these errors the judgment of the court of common pleas was reversed, and the case remanded for trial. The railway company prosecuted error in this court to reverse the judgment of the circuit court, and its petition in error assigned specially the above findings upon which the court of common pleas was reversed. On this' condition of the record, this court affirmed the judgment of the circuit court in general terms and without report. Looking to the third ground of reversal as found by the circuit court in the entry, the record does not inform us whether that court held that the court of common pleas lacked jurisdiction to pass on that question; or that the evidence in support of the holding was insufficient. An" examination of the briefs and record shows that the right of the court of common pleas to. adjudicate that question was not mooted or discussed, and the judgment entry does not show that the circuit court passed upon it. It may have based its finding upon the ground that the court of common. pleas found against the decided weight of the evidence, and the .affirmance by this court may have been on. the ground that it would not review the point on the weight of the evidence. The same remark may be made as to the findings of the common pleas on the evidence as to the sufficiency of the notice of the application and as to the passage of the ordinance of appropriation.

There is nothing in the record of that case which was filed in this court, to indicate that the circuit court held, that as one of the preliminary questions, the probate or common pleas court, has jurisdiction to hear and determine whether or not the opening or extension of a street across the property of a railway company, will unnecessarily interfere with the reasonable use of its property. And this court in reviewing that record, determined no such question, but affirmed the judgment of the circuit court on the case as presented in the record, and not as discussed in the published opinion in Railway v. Fostoria, 4 Circ. Dec., 602; 7 C. C. R., supra.

This investigation of that record may illustrate the value of an unreported case as authority.

Recurring now to the case before us, we are of opinion that the petition contains facts, which, if established, will strongly tend to show that the extension of the two avenues will unnecessarily interfere with a reasonable use of the tracks, yards and depot of the plaintiff company; that it asserts that the city has ample streets in that vicinity to accommodate the public, and that the extensions will irreparably injure the plaintiff, for which it cannot be compensated in money. If allowed to proceed and assess compensation and the company should appeal or prosecute error, by making the deposit and giving a bond as pro-Tided in section 2258, Revised Statutes, the municipal corporation may take and hold the condemned property. This statute, with the facts alleged in the petition, we think furnish sufficient warrant for a court of equity to entertain the plaintiff’s case, and restrain further proceedings to assess compensation until the issue of unnecessary interference with the property of the company has been heard and determined.

The judgment of the circuit court is reversed, demurrer overruled and cause remanded for further proceedings.

Judgment reversed.

Burket, C. J., Speak, Davis, Shauck and Crew, JJ., concur.


author: Shauck, J.

text:
    Schumacher v. McCallip et al.

      Trust companies—No legal capacity to act as administrators—Sections 3821c and 382if, Revised Statutes, are unconstitutional and void—Under section 26, article 2 of constitution—Common pleas court may review order of probate court, when—Court jurisdiction—Constitutional law.

    1. Trust companies are without capacity to receive and exercise appointments as administrators of the estates of deceased persons because the legislation evincing an intention to clothe them with such capacity (sections 3821c, 3821/, Revised Statutes) is void, being of a general nature and not of uniform operation throughout the state as is required by .section 26, article 2 of the constitution.
    2. The court of common pleas has jurisdiction to review an order of the probate court denying the right to administer the estate of a deceased person which section 6005, Revised Statutes, confers upon the next of kin, if a suitable person.
    (No. 8291
    Decided February 2, 1904.)
    Error to the Circuit Court of Franklin county.

      The will of the late Cotton H. Allen having been admitted to probate in Franklin county, it became necessary for the probate court to appoint an administrator, with the will annexed, of his estate. Application for such appointment was made by Sarah C. McCallip, his sister, as next of kin. An application was also made by Mary M. Schumacher, plaintiff in error, for the appointment of the State Savings Bank & Trust Co. as administrator. The probate court, upon the evidence adduced, found that Mrs. McCallip is the next of kin, but that she was unsuitable for the discharge of the trust and, therefore, denied her application. It appointed the trust company to administer. A bill of exceptions was signed, showing the evidence upon which the court based its finding against Mrs. McCallip and a petition in error was filed by her in the common pleas court for the reversal of the order appointing the trust company, as well as of the order refusing her appointment. The court of common pleas reached the conclusion that the trust company was not entitled to administer, and that the probate court had erred upon the evidence submitted to it, in finding that Mrs. McCallip is not a suitable person to administer, and reversed both orders of the probate court. Upon a petition in error filed in the circuit court, that court affirmed the judgment of the court of common pleas in reversing the order appointing the trust company, and reversed the judgment of the court of common pleas in reversing the order refusing the appointment of Mrs. McCallip.

      Messrs. Bargar & Bargar, for plaintiff in error, and Messrs. Booth, Keating & Peters, and Mr. W. H. Jones, for The State Savings Bank & Trust Co.

      Sections 524 and 6005, which are general laws of the state, confer power upon probate courts to appoint trust companies as administrators, and upon such companies to accept such appointments, without regard to sections 3821d and 3821/.
    Under the general laws of the state, without reference to any laws granting to trust companies the power to act as administrator, corporations, such as the defendant, are included as one of the classes of “persons” who may be appointed under section 6005.
    Section 4947 expressly declares that in the interpretation of Part Third, Revised Statutes, the word “person” includes a private corporation. Section 6005 is included in Title II, Part Third, and the rule of construction declared in section 4947 applies to it. Therefore, by the express language of section 6005, all probate courts have had the power since 1854 to appoint corporations as administrators and executors. Insurance Co. v. Hard, 59 Ohio St., 256; Gas Light & Coke Co. v. Avondale, 43 Ohio St., 257; Carder v. Commissioners, 16 Ohio St., 353; Deringer’s Admr. v. Deringer’s Admr., 5 Houst. (Del.), 416; Minnesota Loan & Trust Co. v. Beebe, 40 Minn., 7; Johnson v. Johnson, 88 Ky., 275.
    It follows, even if sections 3821d and 3821/ be unconstitutional, that probate courts still have the power under sections 524 and 6005 to appoint trust companies administrators and such companies have the power to accept such appointments under the general laws applicable to corporations and the specific provisions of section 3821c.
    But section 3821/ is not unconstitutional. It is a law regulating the jurisdiction of probate courts, and such jurisdiction may be conferred upon one probate court and not upon another, under and by virtue of the provisions of section 8, article 4, of our present constitution. Under the specific provisions of that section the legislature has power to confer. jurisdietion upon any probate court in the state, whether the same jurisdiction be conferred upon probate courts in other counties or not. Section 8, article 4, after specifying what jurisdiction every probate court in the state shall have, provides, “and such other jurisdiction, in any county or counties, as may be provided by law.” Giesy v. Railway Co., 4 Ohio St., 308; Kelley v. State, 6 Ohio St., 269; Railway Co. v. O’Harra, 48 Ohio St, 343; Gill V. Sealbridge, 9 Circ. Dec., 554; 17 C. C. R., 390.
    Section 3821c has a uniform operation throughout the state, and, therefore, does not contravene section 26, article 2, of the constitution. Section 3821<2 does not dispense with the giving of bond by trust companies. Clark’s Estate, 195 Pa. St., 520; Bank & Trust Co. v. Wright, 58 S. W. Rep., 755.
    Section 3821d does not grant special privileges or immunities to trust companies as distinguished from individuals. State v. Woodmansee, 46 N. W. Rep., 970; Cooley’s Const. Lim., p. 486.
    The amendatory provisions of the act of April 12, 1900, do not contravene section 26, articlé 2, of the constitution. It should constantly be borne in mind that the provisions of section 3821d added by the act of April 12,1900, do not confer power on the company to accept, but prescribe the conditions under which that power may be exercised.
    The state has the right, in the exercise of its police power, to regulate the business of banks and trust companies for the protection of the public. This power ought to be, and is, unrestricted and in its exercise the state may prescribe conditions for doing business which may amount to an interference with the right, of such a company to carry on its business and may go even so far as to exclude it altogether.
    We submit that the inherent police power of the state is broad enough to permit the legislature to classify corporations engaged in such business as it sees fit, either by location or volume of business, for the purpose of requiring them to give security for the faithful performance of their obligations. The validity of such classification has long been sustained in this state. State v. Brewster, 39 Ohio St., 653; McGill v. State, 34 Ohio St., 228; State v. Powers, 38 Ohio St, 54; Bronson v. Oberlin, 41 Ohio St., 476; State v. Toledo, 48 Ohio St., 112; State v. Jones, 11 Circ. Dec., 497; Street Ry. Co. V. Street Ry. Co., 3 Circ. Dec., 493; 6 C. C. R., 362.
    It is not material in this case whether the so-called local provisions of section 3821d are constitutional or not. Bank v. Hines, 3 Ohio St., 1, 35; Gibbons v. Catholic Inst., 34 Ohio St., 289; Railroad v. Commissioners, 31 Ohio St., 338.

      Messrs. Arnold, Morton & Irvine and Mr. B. W. McCoy, for The Ohio Trust Co.
    Section 3821f of the Revised Statutes, in that it limits the powers conferred by section 3821c to safe deposit and trust companies in certain counties, is in conflict with article 2, section 26, of the constitution, ^requiring all laws of a general nature to have a uniform operation throughout the state. Hixson v. Burson, 54 Ohio St., 470; Kelley v. State, 6 Ohio St., 269; McGill v. State, 34 Ohio St., 245; Cincinnati v. Steinkamp, 54 Ohio St., 284; Platt v. Craig and Jones v. State ex rel., 66 Ohio St., 75.
    Section 3821c, as enacted May 16, 1894 (91 O. L.,, 255), is complete in itself, separable from section 3821/, as amended April 12, 1900 (94 O. L., 133), and its validity is unimpaired by the unconstitutionality of section 3821/.
    If the invalid and unconstitutional part of a statute may be separated from the valid and constitutional enactment and leave a complete statute in itself, and if it may be concluded that the constitutional and unconstitutional provisions are not so inseparably connected in subject-matter and so related to each other as to give rise to the presumption that the legislature would not have enacted one without the other, the-.courts will hold void that provision which violates the constitution, and sustain the remainder of the statute. Cooley’s Const. Lim., p. 178; Railroad Co. v. Commissioners, 31 Ohio St., 338; State v. Dombaugh, 20 Ohio St., 167; Bowles v. State, 37 Ohio St., 35; Gibbons v. Catholic Institute, 34 Ohio St., 289; Treasurer v. Bank, 47 Ohio St, 503; Piqua v. Zimmerlin, 35 Ohio St., 507; Gager v. Prout, 48 Ohio St., 89; Black’s Interp. of Law, p. 96.

      Mr. Edward L. Taylor; Mr. J. W. Mooney and Mr. Edmund Smith, for Mrs. McCallip.
    Sections 524-6005 do not confer power upon probate courts to appoint trust companies administrators, and upon such companies to accept such appointments. Straus et al. v. Eagle Ins. Co., 5 Ohio St., 60.
    Section 3821/, as enacted on the twelfth day of April, 1900 (94 O. L., 133), deprived the probate court of Franklin county of the power to appoint trust companies to administer estates. Forest City Land Co. v. Gallagher et al., 25 Ohio St., 208; Slingluff et al. v. Weaver et al., 66 Ohio St., 621.
    Sections 3821c, 3821d, 3821f contravene section 26,, article 2, of this state. State ex rel. v. Buckley, 60 Ohio St., 273; State v. Nelson, 52 Ohio St., 88; Cass v. Dillon, 2 Ohio St., 607; Lehman v. McBride, 15 Ohio St., 573; Ex parte Falk, 42 Ohio St., 638; State v. Bargus, 53 Ohio St., 94; State ex rel. v. Brown, 60 Ohio St., 462; Cincinnati v. Steinkamp, 54 Ohio St., 295; State ex rel. v. Ellet; 47 Ohio St., 94; Hixson v. Burson, 54 Ohio St., 482; Kelley v. State, 6 Ohio St., 269; Ohio ex rel. v. Covington, 29 Ohio St., 102.
    Sections.3821c, 3821d, 3821c and 3821/ are invalid on account of the illegal classification of municipalities. Classification by the legislature of cities by means of population is not authorized by the constitution. This court is familiar with its recent decisions. State ex rel. v. Jones, 66 Ohio St., 453; State ex rel. v. Beacom, 66 Ohio St., 491.
    The power of certain probate courts to appoint and the power of trust companies to accept the appointment of executor or administrator in certain counties is by section 3821/ to depend upon the classification of cities by population. If the statutes creating the classification of cities by population are illegal, then there is no means left by which to determine which probate courts of the state shall have power to appoint trust companies to administer estates.
    In the consideration of these questions we are not unmindful of the rule that statutes are not to be set aside on mere doubts as to their constitutionality. However, in this connection it is proper that we should note the language of the court in the case of State v. Davis, 55 Ohio St., 22.
    Section 3821d dispenses with the giving of bond by trust companies and grants special privileges or immunities to trust companies as distinguished from individuals. It has never, in the history of this court as shown by the reported cases, been held, that a judgment and order of a probate court like the one in question in the case at bar, arising under the statutory rights given to the next of kin to administer estates by section 6005, Eevised Statutes of Ohio, could not be reviewed on error by the common pleas court. Todhunter v. Stewart, 39 Ohio St., 181.
    The Todhunter case has never been overruled either (directly or impliedly, nor modified nor doubted, nor disapproved, nor abrogated by legislative enactment. Therefore, the order' of the probate court refusing to appoint Sarah 0. McCallip administratrix de bonis non of the estate of her brother, Cotton H. Allen, is re-viewable on error. Section 6707, Eev. Stat.; Missionary Society v. Ely, 56 Ohio St., 405; 19 Ency. Pl. & Pr., 832.
    The order made in this case refusing to appoint Sarah C. McCallip is about as -final an order as can well be conceived of, so far as her rights are concerned.
    Surely the right of the defendant in error to administer the estate of her deceased brother is a specific legal right given her by section 6005, Eevised Statutes, as next of kin of the deceased. It is manifestly such a right as may be enforced and protected by law, being such, it is a substantial right, as designated by section 6707, of the statutes. Armstrong v. Brewing Co., 53 Ohio St., 467; Railway Co. v. Sloan, 31 Ohio St., 1.
    The circuit court of Franklin county, in this same case, in a former order made by the probate court, affirmed the finding of the common pleas court by Williams, J., in which it reviewed and reversed an order of the probate court refusing to appoint Sarah C. McCallip, administratrix de bonis non of the estate of Cotton H. Allen, deceased. In re Estate of F. Ulhorn, 4 Circ. Dec., 526; 12 C. C. R., 765.
    In the January term of this court, 1900, the case of Monger v. Jeffries, 62 Ohio St., 149, was decided, and it was on the authority of that case that the circuit court decided the case at bar. But the Monger case in no sense reverses the rule laid down in the Tod-hunter case, and is not decisive of the question here involved. In that case the court had under review, the discretion vested in the probate court by section 6017, Revised Statutes, in removing administrators and trustees for unfaithful administration. The rule governing section 6005 was established twenty years ago by the Todhunter case, and has stood up like a stone wall all that time and still stands; while the rule laid down in the Monger case, stood for only two years, for it has now been abrogated by statute. So also has the rule in the case of Ebersole v. Schillerf Admr., 50 Ohio St., 701.
   Shauck, J.

The plaintiff in error and the State Savings Bank & Trust Co. insist that the probate court had authority to appoint the trust company as administrator, and that the court of common pleas and circuit court erred in adjudging that its appointment was void. In support of that view it is said that the authority is derived from sections 524 and 6005, Revised Statutes, which are of uniform operation. The former of these sections, following the provisions' of the constitution, vests in the probate court exclusive jurisdiction to grant and revoke letters of administration and to control the conduct, and settle the accounts, of executors and administrators. It does not attempt to define the qualifications of administrators. The two sections, being in pari ma teria, should obviously be construed together. The latter section prescribes the order in which competent persons are entitled to administer: First, husband or widow of the deceased; second, the next of kin of the deceased; third, a creditor of the deceased; and, fourth, an appointment from the other classes failing, “such other person as it shall think fit; provided, however, that letters of administration shall not be issued upon the estate of an intestate until the person to be appointed has made and filed an affidavit that there is not, to his knowledge, any last will and testament of the alleged intestate.” Not only does the latter section confer no authority for the appointment •of the trust company, but, by prescribing an indispensable condition, with which a corporation can not comply, it forbids the conclusion that such authority is conferred by either section. Apart from this consideration, the view suggested conflicts with the •established and very familiar doctrine that corporations have only such authority as is vested in them by the law of their creation.

Another consideration urged in favor of the validity of the appointment of the trust company is, that it is justified by sections 3821c, 3821d and 3821/, Revised Statutes, subsequently enacted for the purpose of authorizing such corporations, among other things, to exercise the functions of administrators and other trustees. The pertinent provisions are found in the first and last of the three sections cited. The general grant of authority contained in section 3821c is, “to accept and execute all such trusts of every description as may be committed to such company by any person or persons, or any corporation, by grant, assignment, devise, or bequest, or which may be committed or transferred to, or vested in said company, whether the same be to act as executor, administrator, assignee, guardian, receiver or trustee, or in any other trust capacity, by order of any court of record or probate court, in the county in which such company is located, and its principal business is transacted.”

Section 3821/ is as follows: “The provisions of sections 3821c, 3821d and 3821e relating to the power of the probate judge to appoint any such company to act as executor, administrator, assignee, guardian,, receiver or trustee, shall apply to probate courts in all counties containing a city of the first class, and to all probate courts in counties containing a city of the second class, containing by the last preceding-federal census a population of less than 33,000.” The constitutional validity of this legislation is denied because, being upon a subject of a general nature, it is not of uniform operation throughout the state,,' as is required by section 26, article 2, of the constitution. In support of the validity of the legislation,, it is contended that its object is to grant jurisdiction; to the probate court, and that being within the provisions of section 8, article 4 of the constitution, which, in defining the jurisdiction of that court, provides for “such other jurisdiction, in any county, or-counties, as may be provided by law,” the subject is; released from the operation of section 26 of article 2. But it is obvious that the purpose of this legislation was not to confer upon the probate court jurisdiction to appoint administrators, for that had been conferred upon it by the constitution of 1851, and the laws which were at once enacted pursuant to it, and it has been in that court continuously until the present time. The obvious purpose of the legislation is to-confer upon the corporations named authority to receive and exercise the appointments therein mentioned, including that of administrator. The qualifications of administrators, being as universal as the administration of estates, should be admitted to be a subject of a general nature. It does not seem necessary to repeat what has been said upon that subject in recent decisions. It is further urged that section 3821/ gives to these provisions a uniform operation throughout the state, because it extends them to every county which contains a city of the first class or a. city of the second class having a population less than 33,000. Of this section nothing need be said except that it is the perversion of a classification which is. void, even for the purposes for which it was contrived. Its value is that of a counterfeit bill purporting to. have been issued by an insolvent bank.

We are also asked to adopt the view that the power in question is conferred upon trust companies by section 3821c, and that that section is of uniform operation throughout the state, and that we may give it effect by wholly rejecting section 3821/. Manifestly that would be to legislate by judicial interpretation by giving to an act of the general assembly an operation which the legislative department had never intended. A brief has been filed in the present case on behalf of the Ohio Trust Co., which desires to exercise powers of this character. It presents the view that section 3821/, in its present form, is a later enactment than the preceding sections and since it is-void for repugnancy to section 26 of article 2, the repealing section annexed to it is not effective to repeal former legislation. That the repeal of a valid act in a void act intended to supersede it may itself' be void, is familiar doctrine. But in order that it may be effective for one who invokes it, it is indispensable that the authority or right which , he claims. must have been given by the former valid act. In recognition of this requirement, counsel cite the. act of April 17, 1882 (79 O. L., 101), which contained no ¡section equivalent to section 3821/. The obvious purpose of that act was to enlarge the powers of such corporations as these but it contained no terms suggestive of the legislative intention to endow them with capacity to administer the estates of deceased persons. ,Such capacity can not be inferred from authority to ¡act as testamentary trustee in “the care and management of property” and to act as depositaries for administrators and others occupying positions of trust. The next act cited as meeting the requirements of this doctrine is that of April 28, 1891 (88 O. L., 407). •Conceding that this act contains terms appropriate to confer upon these corporations the capacity now •claimed, its operation was defined and limited by section 3821/ then enacted as a part of the same statute, the section then giving to the act even a more restricted operation than does the section in its present form. An analysis of all the legislation upon the subject leads to two conclusions, either of them fatal to the claim that the trust company has capacity to administer: 1, the legislature has never attempted to clothe corporations with capacity to act as administrators in Franklin county; 2, it has not, by a valid ■act, authorized them to act in that capacity anywhere. We do not follow counsel to the 'consideration of the ■alleged benefits to result from clothing corporations with such powers. Such considerations are, in the ■first instance at least, for the general assembly. Until it shall attempt to exercise such power by enacting a ■statute which affects every constituency, and thus «engages the attention and interest of every senator and member, the judicial consideration of its power will be premature.

By a cross-petition in error, Mrs. McCallip seeks the reversal of the judgment of the circuit court against her. The probate court had found upon the evidence that she is the next of kin of the decedent, but that she is not a suitable person to administer the estate. On her petition in error, presenting the evidence upon which the probate court had reached the conclusion that she is not a suitable person to act as administrator, the court of common pleas found that the conclusion was not justified by the evidence, and reversed the order of the probate court in that regard. The circuit. court reversed the judgment of the court, of common pleas in favor of Mrs. McCallip,, and proceeding to render the judgment which it thought the court of common pleas should have rendered, it dismissed the petition in error which she had filed' in the court of common pleas. This, of course, implies the opinion of the circuit court that the court of common pleas was without jurisdiction to review the order of the probate court denying the right which the statute confers upon the next of kin, if a suitable person. The conclusion of the circuit court is said to be authorized by Monger v. Jeffries, 62 Ohio St., 149, and the cases which are there cited. But that case, and two of those which it cites, related to the conclusiveness of an order of the probate court removing an' administrator previously appointed. The third case cited related to the conclusiveness of. an order ■ of the probate court respecting the appointment of a trustee in insolvency. None of them involved . the effect of statutory prpvisions conferring the right to administer, such as is conferred upon the next of kin by section 6005, Eevised Statutes. The ' effect of that section upon tbe conclusiveness of an order of tbe probate court denying tbe right to administer, wbicb it confers, was tbe precise subject of consideration in Todhunter v. Stewart, 39 Ohio St., 181, where it was held that an appeal from such order might be taken to tbe court of common pleas. Tbe case is authority for tbe conclusion that an order of tbe probate court, denying tbe right of administration wbicb the statute confers upon tbe next of. kin, is reviewable.

Tbe judgment of tbe circuit court affirming tbe judgment of tbe court of common pleas against the right of tbe trust company to administer should be affirmed, and its judgment reversing tbe judgment of the court of common pleas in favor of Mrs. McCallip should be reversed.

Judgment accordingly.

Spear, Davis, Price and Crew, JJ., concur.