author: G-ilmore, J. Okey, J.,

text:
    Longworth et al. v. The City of Cincinnati et al.
    2. In making a street improvement, by a city, under the provisions of sections 199, 544, and 576 of the municipal code, the expense of building a wall that is necessary for the protection of the street, which is built partly on the street, and partly on adjoining property, with the consent of the owners, may be assessed upon the property abutting on the improvement.

      '2. Where the surveying and engineering of such improvement were performed by the chief engineer of the city and his assistants, who were officers appointed for a definite period, at a fixed salary, which the law required to be paid out of the general fund of the city, the reasonable cost to the city, of such surveying and engineering, can not be ascertained and assessed upon the abutting property, as a necessary expenditure for the improvement.
    :3. If a superintendent, of such an improvement is necessary, and one is employed by the city for that particular improvement, the amount paid by the city, for his services, may properly be included in the assessment.
    4. The cost of lateral and cross drain-pipes, which are necesary to make the improvement in a good and workmanlike manner, may properly be assessed upon the abutting property, as an item of necessary expenditure in making the improvement.
    Motion, by plaintiffs in error, for leave to file petition in error, to reverse the judgment, in part, of the Superior Court of Cincinnati; and motion, by defendant in error, for leave to file cross-petition in error, to reverse the judgment, in part, of the same court in the same case.
    The matters in controversy between the parties grow out of the improvement of Colerain avenue in the city of Cincinnati, between Central avenue and Center street, a distance’ of more than two miles. The improvement was let to contract, and completed in the year 1877, at a cost of more than $70,000 ; and by ordinance a special tax of about $5.87 per front foot, upon all the real estate bounding and abutting on the avenue, was assessed to pay the expense of the improvement. ’
    All the proceedings on the part of the city in making the' improvement of the avenue, and in making the assessment, were regular and proper. The original action was brought, in the superior court by the plaintiffs, Joseph Longworth and many others, who are owners of real estate abutting on the avenue, against the city, the auditor of the city, and the county auditor, defendants, to enjoin the certifying and. collection of the assessment, on the property of the plaintiffs. In their petition, the plaintiffs allege that a number of designated items of the expense of the improvement were improperly included in the assessment. On the trial some of these items were admitted by the city to be, in whole or in part, improperly included in the assessment, and on the part of the plaintiffs it was admitted that certain items of expense of which they had complained in their petition,, were properly included in the assessment. Only the items of expense that are in controversy between the plaintiffs and the city need be noticed.
    The plaintiffs contend, and the city denies, that the following items of expense were improperly included in the-assessment.

      First. The expense of building a stone wall along a portion of the east side of the avenue, where it was very close to the Miami and Erie canal, at a cost of $10,864.41.

      Second. The expense of engineering and surveying, amounting to $1,046.10.

      Third. The expense of superintending the performance of the work, being $695.31.

      Fourth. The cost of certain lateral and cross drain-pipe used in making the improvement, amounting to $4,256.24.
    On the trial, at the request of counsel, the court made a finding of facts and of law separately; the facts as found, applicable to the items above specified, being as follows:

      First. “ That in such assessment there was included the sum of $10,864.41. for building a stone wall along a portion of the east side of Colerain- avenue, where said avenue runs very close to the Miami and Erie canal.
    “ That Colerain avenue was originally a turnpike, and after the corporate limits of the city of Cincinnati were extended, said turnpike was purchased by the city and became a public street, and on the 31st day of May, 1872, the grade of said avenue was established by the common council of Cincinnati.
    “ That for a distance of more than 1,600 feet said avenue runs along very close to the west side-of the Miami and Erie canal, said canal having been constructed at this point along the side of a hill, and being about fifteen feet above the grade of said avenue. That at the time said turnpike became the property of the city, there was a stone wall along that part of the east side of said turnpike, where the same runs near to the canal, which, at the time the resolution and ordinance to improve said avenue were passed, was in a ruinous condition.
    “ That the board of improvements of Cincinnati was notified by property owners, on the west side of said avenue, and opposite said wall, that the old wall was in a ruinous condition, and that, in the event of a break, they would hold the city liable in damages.
    “ That the making of the improvement to the established grade of said avenue, and to the full width, rendered it necessary to cut down the old road-bed somewhat, and to cut further into the canal bank, and also to remove the old wall.
    “ That it was impossible to improve said avenue between •Central avenue and Center street, unless this wall, so assessed for, was first built, and that the improvement of said avenue made it necessary to build this wall to keep the canal from breaking through onto the street, and overflowing the neighborhood.
    “ That this wall was built for the most part off the. street, and stands on property belonging to the State of Ohio, or to private persons, the consent of the owners to so placing the wall having been first obtained; the face of the wall for most of its length being on the east line of said avenue, only a portion of it being within the street lines. , That the approximate estimate of the cost of the improvement of said Colerain avenue, which was attached to the resolution declaring the necessity for such improvement, contained, among other items, the following, viz: ‘ masonry, rubble and curbstone, 1,800 perch @ $5, $9,000,’ and the resolution declaring the necessity for the improvement declared that it was necessary to improve said avenue, ‘ by grading, curbing, flagging gutters, bowldering the roadway, and constructing the necessary culverts, drains, or retaining walls (such improvements beiug recommended by the board of public works), in accordance with the plans and profiles on file in the office of the chief engineer of the board of public works, and specifications on file in the office of the board of public works.’
    “ That there were no plans or profiles on file, open to inspection, at the time of the passage of. such resolution, or of the ordinance ordering the same, showing the size or location of any such wall; that the nature of the soil and the size of the wall required, could not be known until the excavation was commenced.”

      Second. “ That in such assessment there was included the sum of $1,046.10 for surveying and engineering.

      “ That all the surveying and engineering done on said avenue was done by the chief engineer of the board of public works and his assistants.
    “ That said engineers were all in the regular employ of said defendant, the city of Cincinnati; at a fixed salary, paid out of the general fund of said city.
    “ That such sum of $1,046.10 was arrived at in the following way: The cost per hour to the city of Cincinnati of ■each engineer, at the rate paid him for a salary, was ascertained, and then, for each hour any such engineer was necessarily employed on such improvement, the cost-to,the ■city of employing him, ascertained as above, to-wit, a proportional part of such salary, was charged against the improvement of said avenue, and included in said asessment.”

      Third. “ That in such assessment there was included the sum of $695.31 for superintending.
    “ That this sum was paid out by the city of Cincinnati in ■employing superintendents to superintend this particular improvement, and that such superintendents are not in the regular employ of the city, and were hired by the city as needed to oversee work, and to prevent any misconduct on the part of the contractor, and see that the work.was prop.•erly done according to contract.”

      Fourth. “ That in such assessment there was included $4,256.24 the cost of certain lateral and cross drain-pipe, which, in the opinion of the board of public works of the •city and of the chief engineer, were necessary to make the improvement in a good and workmanlike manner.”
    Upon the findings of fact, the court, as conclusions of law, found that the first, third and fourth items of expense as above stated, were properly included in the assessment against the property of the plaintiffs ; and that the second item was improperly included in the assessment, and a decree was entered accordingly.
    On petition in error filed by the plaintiffs below, and cross-petition in error filed by the city of Cincinnati, in the Superior Court of Cincinnati in general term, the findings and decree of that court, in special term were affirmed.

      By these proceedings the plaintiffs below seek the reversal of the judgment of the court below as to the first, third, and fourth items of expense, and the city, one of the defendants below, by cross-petition in error, seeks the reversal of the judgment as to the second item of expense.

      Coffin § Mitchell, and Cole § Cox, for Longworth:
    I. Before the city authorities can improve a street they must pass a resolution to improve, and all plans and profiles relating thereto must be recorded and kept on file in the office of the city civil engineer, or clerk, open to the inspection of all parties interested. See Municipal Code, § 563, as amended; 67 Ohio L. 81; S. & S. 803, § 28; p. 834,. §§ 130, 131; Peck’s Municipal Code, 197, 198, and notes.
    This resolution is a condition precedent. 27 Ohio St. 325.
    1. The resolution in this case does not include the stone wall along the canal bank. The resolution refers to and limits the improvement to the plans and profiles on file. The plans and profiles do not set out this wall, nor relate to it.
    2. This wall is not strictly a retaining wall. Retaining walls are built to prevent the earth from sliding upon a street. This wall was built to keep the water in the canal. It is a retaining wall to the canal, and not to the street; and hence, property owners upon the street should not be-specially assessed for the cost of the wall.
    3. It is not an improvement of the street. It is not a part of the street. It is necessary, if necessary at all, whether a street is there or not. It is an independent improvement, and, as such, if made by the city, should be-ordered by resolution, and the expense paid out of the-general fund. See § 539 (as amended'- April 18, 1870), 67 Ohio L. 80; 69 Ohio L. 59; 70 Ohio L. 126; § 563 of the Municipal Code; 18 Ohio St. 85; 24 Ohio St. 126; 18 Ohio, 161.
    II. The salary of the engineer forms no part of the expense of this improvement. The engineer was employed at a fixed salary, and, unless there is express authority to-divide up and apportion and charge his salary among the various works in which he must be employed, it can not be-done. Jonas v. City, 18 Ohio, 323; § 544 of the Municipal Code; 18 Ohlo, 161; 22 Ohio St. 584. The same is true-of the salary of the superintendent.

      Bates, Perkins 8; Goetz, for the city:
    I. Section 576 of the municipal code designates how-payment for the cost of making street improvements may be made. Section 544, what items of expense may be included in the assessment. It is undoubtedly the meaning-of section 544 that the expense of everything is to be included in the assessment.
    The services of an engineer were necessary in making an improvement of the kind in question, and the cost and expense of that officer may be properly included in the assessment. But it is said this is not so in this case, for the engineer was in the employ of the city at a fixed salary.
    The finding of facts show that the item for engineering was arrived at by charging against the improvement the time each engineer was employed on it at the rate paid him for a salary by the city.
    The engineers’ salaries are paid out of the general fund of the city, and when the cost of engineering, arrived at as above, on any improvement, is collected by assessment, it is paid back into the general fund.
    The court below said we could not charge for this item because the work is done by salaried officers.
    We say, under the course of proceedings adopted by the city, these engineers are not paid out of the general fund for all their time. Eor so much of their time as is spent on local improvements they are paid by assessment just as fully as though they had been hired for that particular improvement. True, their pay is advanced from the general fund, but it is paid back from the assessment. It can make no difference to the property-owner whether he pays for the engineering iu this way, or for an engineer hired for the particular purpose.

      If the city finds that, by buying drain-pipe by the 100,-000 feet, it can get better pipe at a less price than if the pipe be bought by the 1,000 feet, and hence buys large quantities and keeps it always on hand, using some for general purposes, and when it is wanted for local improvements, furnishes it to the contractor at the reduced price, and then assesses for it, surely, the property-owner ought not to complain.
    The only question for the property-owners in the case of either the charge for engineering or drain-pipe is, were the charges fair and reasonable 'i

    II. As to the cost of superintendency, under section 544 of the municipal code, this item is properly included in the assessment. The amount included in the assessment is the amount paid out by the city in hiring a man to superintend this particular improvement. He was not and is not in the employ of the city, and it was a necessary expense.
    III. As to the charge for building the wall between the canal and the street.
    This wall was a part of the improvement. The cost of it was a necessary expenditure for the making of the improvement of Colerain avenue ; and the general rule that a grant of power to do a specific thing carries with it power to do all things necessary to carry into execution the power granted, applies: The city having the power to improve the street, had the power to do all things necessary for that purpose.
    The objection that there were no plans or profiles on file for the wall is answered by the fact that the only plans and profiles necessary for building a wall, are working plans and profiles, and, as the findings show, it could not be determined before the work was commenced how large and just where the wall must be.
   G-ilmore, J.

The questions raised by the petition in error, and that raised by the crvss-petition in error, will be considered in the order in which they arise on the record.

First. Did the court in special and general term err in holding, as matter of law, that the cost of the stone wall,, along the canal, was properly included in the assessment?

It is claimed by counsel for plaintiffs in error, First, that the 19th clause of section 199 of the municipal code empowered the city to build the wall in question as an improvement to the canal, the expense of which, under section 601, could have been assessed and collected in the manner pointed out in chapter 49 of the code; and that the wall ought to have been built under the provisions of the sections named; but, that, regarding it as the building of a-wall for the improvement of the canal, the provisions of chapter 49, relating to special assessments to pay the expense of such an improvement, has not been complied with, and,, hence, the expense can not be assessed and collected.

If this claim is held to be untenable, then, in the second place, it is claimed that under sections 5 and 10 of the act of May 8, 1861 (S. & S. 63, 65), it was the duty of the lessess of the public works of the state to rebuild the wall.

But if wrong in both these respects, it is claimed, in the-, third place, that it may fairly be held to be a “ levee” or “ embankment,” mentioned in section 539 of the code, the cost of which shall be paid by the city out of the general fund. In any event, it is, in the fourth place, claimed that the building of the wall was a separate and distinct improvement from the grading, bouldering macadamizing, etc., a street, and is not one of the “ necessary retaining walls,”’ nor any other “ necessary expenditure” for the improvement of the street.

The record furnishes no predicate for these claims or either of them. The force they possess in this case, if any, rests solely upon the assumption, that either the city or lessees of the public works of the state had power to build the wall under the sections of the statutes cited, and that from this, it will conclusively follow that the city was not authorized to build the wall as a part of the improvement of Colerian avenue.

Eor the purposes of the argument let it be conceded that the assumption is true, and it will not necessarily follow that the conclusion is sound. The city may have had the power to build the wall in either of the modes suggested by ■counsel, and also in the mode that it was built. If so, it would simply be empowered to do the same thing by different methods, and it would be clothed with a discretion as to which it would adopt. In such a case, if one of the methods was adopted, all the powers conferred upon the •city by that method could be exercised and carried into •effect, notwithstanding the existence of the other methods by which the same thing might have been done in a different way ; and the fact that it may have been the duty •of the state or its lessees to have built the wall, would constitute no limitation upon the power conferred upon the •city, in reference to the same thing.

Then the controlling question on this point is: Was the •city authorized to build the wall in question as a part of the improvement of the Colerian avenue?

The 18th clause of section 199 of the municipal code -confers power upon the city, in general terms, to make the improvement. Section 544 provides that the cost of the improvement shall include the expense of construction, •enumerating many items specially,li and any other necessary ■ expenditure.” Under this latter clause, the determination ■ of what constitutes the “ necessary expenditure ” of a given improvement, is devolved upon the city council.

In deteiunining whether items of non-enumerated expenditure are or are not necessary, the council is clothed with discretionary power, and where action has been had • it will not be presumed that this discretion has been abused. But in addition to this, on the trial, the court found, among • other things, the fact to be “ that it was impossible to improve said avenue between Central avenue and Center street unless this wall, so assessed for, was first built; and that the improvement of said avenue made it necessary to ■ build said wall,” etc. There being no question as to the power of the city to make the improvement, this finding • of fact, in connection with the other findings of fact on this ■.point, clearly shows that this wall was an item of necessary expenditure ill making the improvement, and, hence, that the cost of it was properly included in the assessment.

It is further objected, that the resolution declaring the improvement to be necessary, does not include this wall, nor do the plans and profiles set it out. This objection is technical, rather than substantial. The ordinance did declare that it was necessary to improve the avenue “ by grading, curbing, flagging gutters, bowldering the roadway, .and constructing the necessary culverts, drains, or retaining walls,” etc. Section 563 only requires the “ plans and profiles relating thereto,” to be recorded. We do not under.■stand that this would require the specifications of every item of expense to be set out. It was, however, stated that retaining walls were necessary, and estimates for masonry were made and filed. If the strictness insisted upon was applied to this case, it would have been impossible to have proceeded with the improvement, for the size •of the walls could not have been known or estimated in .advance. The finding of the court, on this point, is as follows : “ The nature of the soil, and the size of the walls required, could not be known until the excavation was •commenced.”

We think this objection is not sufficient to entitle the plaintiffs to the injunction asked for.

Second. Did the courts below err in holding that the charge for engineering was improperly included in the assessment, as assigned for error iu the cross-petition ? Notwithstanding section 544 does provide, that the costs of the improvement of a street, includes “the expense of the preliminary and other surveys,” yet we think that this has reference only to cases in which the engineer doing the work was employed for that special purpose, and does not apply to work done by engineers appointed for a definite period of time, at fixed salaries, under the provisions of .section 4 of the act of March 17, 1876 (73 Ohio Laws, 44). The finding of fact shows that the work wras done by the ■chief engineer of the board of public works and his assist.ants, all of- whom were in the employ of the city, at fixed salaries, and paid out of the general fund of the city; and also shows the manner of arriving at the amount that was charged and assessed for this improvement.

It is sufficient to say, that when the salaries of these engineers were paid from the general funds of the city, as required by law, that was the end of it, unless there was some law expressly authorizing the charge and assessment that was made iu this case, for the purpose of reimbursing the city for the amount so paid; and, inasmuch as there is no such law, the courts did not err in holding that the charge was improperly included in the assessment.

Third. Did the court err in holding that the charge for “ superintending” was properly included in the assessment?

The difference between the superintendent and the engineer in this case is, that the former was not a salaried officer, while the latter was. This appears from the finding of fact on this point. The 4th ■ section of the act of March 17, 1876, does not require superintendents to be appointed for a fixed period, and where they are not so appointed, there is no provision for the payment of their services when employed under special contract, as in this case. We suppose that, under section 544 of the code, the proper city officers could, in their discretion, if they deemed it necessary, employ a superintendent for this particular work, and thereby incur the expense agreed to be paid for his services; and we see no reason why this expense would not constitute a proper and necessary expenditure in the construction of the improvement. If so, then a charge for such services would constitute a necessary item of expenditure in the construction of the work, and was properly included in the assessment.

Fourth. Did the court err in finding that the cost of laying drain-pipe along the avenue was properly included in the assessment ?

This point is not insisted upon in argument by counsel for plaintiff in error; and we need only say that it clearly appears, from the finding of fact, that these lateral and cross drain-pipes, as laid, “ were necessary to make the improvement in a good and workmanlike manner,” and the cost thereof was, therefore, properly included in the assessment.

There are no errors apparent on the record.

Okey, J.,

dissenting. The court properly hold that there-can he no assessment for services of the civil engineer, because he is an officer paid by salary from the city treasury but the court further hold, erroneously, as I think, that an assessment may be made'for services of the superintendent.,, who is merely an assistant civil engineer, employed temporarily and locally, and paid a compensation of three dollar’s a day out of the city treasury. There is no distinction in principle between these items of expense, for the engineer and superintendent were alike officers with respect to this improvement. Nor do I think the cost of the wall was-properly included in the assessment. True, the language, “ any other necessary expenditure,” is broad; but it is a-grave mistake to suppose the legislature intended to invest municipal corporations with unlimited power to improve-avenues, and assess the cost on the abutting property. There is a limit somewhere; and, in my opinion, that limit is much exceeded when the cost of a work, like the wall in question, which is only partly within the avenue improved,, is assessed on the abutting property; for it was plainly the-duty of the state and the city to keep’ the wall in repair.

The principle has, in substance, been recently incorporated into our legislation, that in making local assessments, the statutes providing therefor must be strictly construed, except as to matters of form. 75 Ohio L. 326, § 60. That provision does not apply here, because the assessment was made before the statute was passed. But it is a principle existing independently of that act, that statutes relating to such assessments must be strictly construed. Oooley on Taxation, 209; Burroughs on Taxations, 471; Dillon on Mun. Corp. § 55, lb. ch. 19. And that principle, I think,, has been disregarded in this case.

. Motion overruled.


source: Caselaw Access Project

author: Boynton, J.

license: Public Domain

text:
    The Valley Railway Company v. Bohm et al.
    1. Section 16 of the general Incorporation Act (1 S. & C. 279), authorizes a railroad corporation, when necessary in the construction of its road to cross any stream of water, to divert the same permanently from its “ present location or bed.”
    ;2. Where the diversion of a stream of water from its existing bod or course becomes necessary in tho location and construction of a railroad, the power to appropriate land on or through which to construct a new channel for such stream, is conferred by section 10 of said act.
    ■8. Where lands lying outside of the railway are sought to be appropriated for the purpose of obtaining therefrom materials for the construction of such railway, as authorized by section 10 of said act, the petition should disclose the use for which such lands are sought to be appropriated.
    Error to the Court of Common Pleas of Cuyahoga •county.
    The plaintiff, a corporation created under the laws of the ■state and authorized to construct and operate a-railroad, instituted proceedings in the probate court of said county for the appropriation of certain real estate to the use of its road. The petition alleges that said railroad “ has been •permanently located .across the following parcel of land, ■situate in the township of Newburg, in said county of ■Cuyahoga, and being part of lot No. 272 (two hundred and •.seventy-two), which land is owned in fee simple by Bern-hard Bohm, a resident of said county of Cuyahoga; that the said parcel of laud herein appropriated and hereinafter ■.specifically described is bounded on the westerly, southwesterly and southerly sides thereof by the Cuyahoga river bed, low-water mark; that as said railway is located, and where it is necessary to construct it, it crosses said stream -twice within the space of-rods, and that such crossings can only be made by means of expensive bridges, which would if permanently built cost necessarily not less -than thirty-eightthousand dollars; that there is no possible method of avoiding the building of such bridges except by running around the curve of said stream on the westerly bank thereof, thus increasing the length of said railway not less than-rods, and thus making a sharp curvé in said railway greatly to its detriment, or by diverting the channel of said stream as hereinafter proposed.
    “ The said railway company attaches hereto as a part of its petition of appropriation a diagram and survey of the land herein sought to be appropriated, and marks the same, ‘ Exhibit D.’
    “ The said railway of petitioner so located as aforesaid across the said parcel of land is indicated by red lines, and the right of way therefor of the width of eighty feet has been granted to the said railway company by the said Bohm.
    “ Petitioner represents that in order to construct said railway on the route on which it is located it is necessary and indispensable to divei’t the stream from its present channel, and to cut a new channel for the same directly across the said parcel of land owned by the said Bernhard Bohm, and to use for such new channel a strip of land of the width of one hundred feet, in the form and at the place indicated and marked ‘New Channel’ on said ‘Exhibit D,’ and that the laud owned by said Bohm, southwesterly of said railway, extending to the bed of the stream in the present channel will thus be cut off from the main tract with which it is connected (which is a tract in all of 40J acres) and will be so impaired in value that petitioner proposes to appropriate the same, together with the land to be occupied for the new channel, and that the whole of the same is in fact necessary to said railway company in making and maintaining the proposed channel and in protecting its said railway.”
    The petition described the land sought to be appropriated, which included all in the bend of the river as well as that desired for a new channel, and concluded as follows:
    “ Petitioner represents that it has attempted to agree with the said owner of said land upon the compensation to be paid therefor, and for the diversion of said stream as aforesaid, but is unable to agree upon the same, or to agree upon any land to be used for diverting said stream.
    „ “ The said railroad company prays that the said property and the right to divert the said stream as aforesaid may be appropriated for the said purposes of its said railway, and that process be issued against the said Rohm, and such proceedings to condemn the same maybe had as are authorized by law; and it hereby proposes, when said channel shall be changed, to, without unnecessary delay, place the said stream in such condition as not to impair its former usefulness.”
    The following diagram “Exhibit D” shows the relative position of the railroad, the river bed, and the proposed new channel:

    The proceedings in the probate court resulted in an order for the condemnation of the property and the assessment of compensation to the owner. On error the court of common pleas reversed the judgment of the probate court, and dismissed the petition.

      James Mason and W. J. Boardman for plaintiff in error:
    As to the authority to appropriate laud for the purpose ■of constructing thereon a channel into which to divert a ■stream of water crossed by a railroad in its construction.
    The powers conferred upon a corporation are such as are expressed and such as are necessary to carry into effect the ■express powers. Straus v. Insurance Co., 5 Ohio St. 59; Pierce on R. R. L. 13 ; Babcock v. Railroad Corp., 9 Met. 553.
    We claim that by the legislation of our own state, authority is, both expressly and by implication, conferred upon railroad corporations to appropriate land for the purpose •stated. § 10 of the statute, 1 S. & C. 277; § 16, S. & C. 279.
    The question of power to divert a stream and appropriate land for that purpose is determined by the fact whether such diversion is necessary or not in the construction of the railroad. Rodgers v. Bradshaw, 20 Johns. 735 ; Babcock v. Railroad, 9 Met. 553; Brainard v. Clapp, 10 Cush, 6; State v. Commissioners, 3 Zabr. 510; 11 Humphreys, 348; 1 Redf. on Railways (5th ed.), 252, 253, 341; Wright v. Scott, 34 Eng. L. & E. 1; Railroad v. Kip, 46 N. Y. 546; Giesy v. Railroad, 4 Ohio St. 308 ; Railroad v. Daniels, 16 Ohio St. 390 ; Waterbury v. Railroad, 27 Conn. 146; Cott v. Railroad, 36 N. Y. 214 ; Railroad v. Magruder, 34 Md. 80 ; Green v. Railroad, 58 N. Y. 152.

      R. P. Ranney and J. E. lngersoll, for defendants in error:
    The plaintiff does not allege that it needs any of the land in question for its track; nor for depot grounds; nor for any of those purposes for which the statute has especially provided that it may appropriate lands. It plainly proposes to take part of the track for the purpose of laying out upon it a river bed for a navigable river, a highway, .and then says that “the land so cut off from the main track of defendant’s land will be so impaired in value that it proposes to appropriate the same.” In other words, to .appropriate it because it is of so little value to the owner !

    The main question in this case is upon the right of the plaintiff to appropriate this land.

      It is fairly the question whether power has been conferred upon railroads to use the right of eminent domain in such a case as this presents. And the case is such as they have set out in their petition ; it can not be made any more favorable to the railroad than the petition presents it.
    The act of May 1, 1852, conferring power on corporations (found in Swan & Or., 277, § 10), specifies the purposes for which a railroad may appropriate.lands, and this land is not asked for, for any of the purposes there specified. In fact, the plaintiff’s counsel do not claim, as we understand them, that their case comes within the tenth section or any of its provisions, but they are driven to the position that the sixteenth section (p. 279) confers the right.
    The attempt to make the sixteenth section provide for and confer authority to exercise a particular power additional to what is conferred in section ten, calls for an interpretation which is not favored, if, in fact, it be ever allowed. By section ten the legislature undertook to define-the case in which the power iu question may be exercised ; and when the sixteenth section is reached, something else is provided for, to-wit, the emergency of crossing a road or stream of water; and power is given for what ?
    ■ The plaintiffs say, to do an act of the character which, the tenth section defines, although it is not embraced in that tenth section. W e allege that the power given is not designed for an appropriation of land, but only for a temporary diversion of the road or stream.
    This section says you may divert the stream or road, but you shall, without unnecessary delay, “ place it in such condition as not to impair its former usefulness.”
    A railroad company has no power to appropriate lands for the location of a highway. 19 Ohio St. 808 ; 11 "Wend. 140.
    The stream in question is a navigable stream and a public highway.
   Boynton, J.

Section 16 of the general incorporation act (1 S. & C. 279), provides, that “ It shall be lawful for such corporation, whenever it may be necessary in the construction of such road to cross any road or stream of water, to divert the same from its present location or bed; but said corporation shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness.”

This provision confers power to divert the road or stream* coupled with the duty imposed to place the same, after diversion, in such condition as not to impair its previous usefulness. The requirement is not to restore to its former place or condition, but to such condition as not to affect, materially, its utility. It is to be left in such condition, how much soever it may be diverted from its former course, that the right .to its public or private enjoyment, where such right exists, shall not be materially disturbed or interfered with. Little Miami R. R. Co. v. The Commissioners of Greene Co., 31 Ohio St. 338. Subject to the performance of this condition, the power or right to divert the same is coextensive with the public necessity which calls for its exercise. The meaning assigned to the language of this section, by counsel for the defendant, confines the right to divert the stream or highway, to a use merely temporary in its character. This we think far too restricted; so much so, that, if adopted, it, to a greater or less extent, would result in defeating the obvious design of the statute. The diversion may be temporary or permanent, as the public needs or necessities require. If intended to be permanent, and a necessity exists therefor, power to appropriate land for a new channel or bed required to enable the company to comply with the duty to place the stream in such condition as not to impair its usefulness, is found in section 10 of the same act. The language of that section is as follows : “ Such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much, thereof as may be deemed necessary for its railroad, including necessary side-: tracks, depots and workshops and water-stations, materials for construction, except timber, a right of way over adjacent lands, sufficient to enable such company to construct and repair its road, and a right to conduct water, by aqueducts, and the right of making proper drains.”

Here is clear and express authority to enter upon the land’ of another, and appropriate so much thereof as may be deemed necessary for the railroad; and, if deemed necessary, in the construction of the road, to occupy an existing river bed, or to divert the course of the stream, and this can only be done by supplying a new channel for the river or stream, the appropriation of land upon which to construct the new channel through which to carry the water, is, to all intents and purposes, and within the meaning of this provision' of the statute, an appropriation of the land for the railroad.

In New York; an act of the legislature relating to canals authorized the canal commissioners to enter upon and occupy any lands which might be necessary for the canal improvements. It became necessary, in making such improvements, to occupy a part of a turnpike road; and it was held, that the canal commissioners might appropriate land for a new road, to take the place of that part of the turnpike so taken for canal'purposes. Rogers v. Bradshaw, 20 John, 735.

In delivering the opinion in that case, the Chancellor said: “ If the turnpike road was unavoidably encroached on by the canal, and another road was indispensable at that place, before the canal was commenced, and the land was necessary for the road, it would seem to follow as a clear logical deduction, that the land taken was necessary for the prosecution of the improvements intended by the act.” In People ex rel. v. Railroad Co., 58 N. Y. 152, the New York Court of Appeals, in commenting on a statute requiring the company, laying its road across or upon- a public highway, to restore the same to such condition as not unnecessarily to impair its usefulness, said : “ The duty of restoring imposed, carries with it the power to restore, and in the exercise of that power, all other needful auxiliary powers given by the statute may also be exercised; and of these is the power to-take lands compulsorily, when necessary for the purpose of the incorporation of the company. So that the whole scope of the statute shows the legislative intent, in a case of necessity, land may be compulsorily acquired for the purpose of extending the original limits of a highway, or of entirely removing it to a neighboring place.” This case goes much further than is necessary in the present case, to sustain the power to condemn land for the new channel.

In view of the two sections above quoted, we think the company is fully authorized, where its road is located across a stream of' water, to appropriate land for a new channel into which to turn the stream, when necessary in the construction of its road. To the extent that riparian rights are appropriated, compensation therefor should be made. This conclusion, however, does not result in the reversal of the judgment of the court below. The company had the right to appropriate only what the public necessity required; the necessity to be determined according to the principles settled in Giesy v. The C. W. & Z. R. R. Co., 4 Ohio St. 308. The petition alleges that the right of way for the railroad, of the width of eighty feet, has been granted to the eompanj7, by Bohm, the owner. Counsel for the plaintiff stated in argument, that at the time the petition was drawn, it was supposed that such right of way had been granted, but that, subsequently, and prior to the trial in the probate court, it was ascertained that such was not the fact, and that, consequently, damages were awarded to the defendant for all the land. If this is so, the petition should have been amended. We must look to the record for the facts, and treat the uneontroverted averments of the petition as true, so far at least as to estop the plaintiff from denying them. Hence, the roadway having been, as we must assume, acquired by purchase, the petition only shows a necessity for the appropriation of land for a new channel for the river, and this it particularly describes. But the company also seék to condemn the land lying in the bend of the river, entirely'outside of the roadway, and remote from the place of the proposed new channel, and state the necessity therefor, as follows :

“That the land owned by said Bohm, southwesterly of said railway, extending to the bed of the stream in the present channel, will thus be cut off from the main tract with which it is connected (which is a tract in all of 40J acres), and will be so impaired in value that petitioner proposes to appropriate the same, together with the land to be occupied for the new channel, and that the whole of the same is, in fact, necessary to said railway company in making and maintaining the proposed channel, and in protecting its said railway.”

The 10th section of the act authorizing the creation of railroad corporations above recited defines the uses for which the land of another may be condemned. So much thereof may be taken as may be deemed necessary for the railroad, including necessary side-tracks, depots, work-shops and water-stations, and materials for construction, except timber, a right of way over adjoining land to enable the company to construct and repair its road, and the right to-conduct water by aqueducts and drains. The land appropriated must be capable of being made subservient to some of the uses here named, and be so intended, or it can not be taken at all. It is not pretended that the land lying in the river bend is necessary or desired for any of the purposes here mentioned, except to furnish material for construction. And if appropriated for such purpose a compliance with the provisions of section 2 of the act of April 28, 1872 (69 Ohio L. 88), prescribing the mode of procedure to effect the appropriation, would seem to require such purpose to be definitely stated. That section requires the petition to contain, among other things, a specific description of each parcel of property, and rights, sought to be appropriated, and the use-to which the same are to be'applied, together with the necessity for such appropriation. Both the necessity for, and the use to which the land lying in the river bend was to be applied, were left, by the petition, in the present case, too-much in doubt. It did not apprise the owner with sufficient certainty whether the fee of the land outside of the roadway was sought, or a lesser interest or estate. Ordinarily,, where land lying without the roadway is appropriated for the sole purpose of supplying materials for construction,, the title to the same, with the right to its possession and enjoyment, subject to the paramount right of the company to enter and remove the material, remains in the original owner.

Hence, to enable the court to determine the necessity of the appropriation, and to secure to the land-owner the just and fair value of the interest taken, when lands are condemned for construction purposes merely, the petition should be so specific in its description of the use intended as to leave no doubt as to the extent of the interest sought to be acquired.

Judgment affirmed.


author: Okey, J.

text:
    Williamson v. Nicklin et al.
    A judgment rendered by default, before the expiration of the day named' in the summons for answer, may be reversed on error, and such rendition is not a mistake, neglect, or omission of the clerk within the meaning of sections 528 and 529 of the civil code.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Clarke county.
    On Thursday, January 20, 1876, Henry S. Williamson filed in the Court of Common Pleas of Clarke county a petition against John B. Nicklin and others, in which he asked for a judgment against them, on a promissory note, for one thousand dollars, with interest at eight per cent, from October 1, 1874. A summons, issued on the same day, directed to the sheriff of that county, contained the statement that unless the defendants answered by Saturday, the 19th day of February, the petition would be taken as true and judgment would be rendered accordingly. The writ was served on the defendants personally, on Friday, January 28th. The first term of the court of common pleas for that county, in that year, commenced on January 17th. During the same term, on Thursday, February 17th, the plaintiff caused judgment to be rendered in his favor, by default, for $1106.66, with interest at eight per cent, from February 1st. In 1877, the district court, on petition of Nicklin and his co-defendants, reversed the judgment. Henry S. Williamson having died, the judgment was revived in the name of William Williamson, his executor, who now asks leave to file in this court a petition in error to reverse the judgment of reversal.

      Wolfe $ GHllett, for plaintiff in error.

      Keifer $ White and J. 11. Littler, for defendants in error.
   Okey, J.

The ground of reversal relied on is, that the only remedy of the defendants in the judgment was a proceeding in the court of common pleas, under the code of civil procedure, 'to vacate the judgment; and, therefore, that the district court was not warranted in rendering a judgment of reversal.

The civil code provides that the defendants shall be required, in the summons, to answer “ at a time stated therein;” that the summons “shall be returnable on the second Monday after the day of its date;” and that “ the answer or demurrer by the defendant shall be filed on or before the third Saturday . . . after the return day •of the summons.” (Secs. 57, 59, 108.) The summons having been issued on Thursday, January 20th, was returnable on Monday, January 31st, and the third Saturday thereafter was February 19th. The summons was in all respects in proper form; the last day for answer was correctly stated; and service was regularly made; but judgment was taken by default on Thursday, February 17th, when properly it could not have been rendered until Monday, February 21st.

The civil code also provides (74 Ohio L. 115, sec. 584), that a court of common pleas shall have power to vacate or modify its own judgment, after the term at which it was rendered, for, among other causes, mistake, neglect, or omission of the clerk, or irregularity in obtaining it; that a mistake, neglect, or omission of the clerk shall not be ground of error until the same has been presented to, and acted upon in the court where it occurred (sec. 528); and that rendering judgment before the action stood for trial, according to the provisions of this code, shall be deemed a clerical error (sec. 529). It provides, furthermore, that a proceeding to correct a mistake or omission of the clerk, or irregularity in obtaining a judgment, shall be by motion ; and that a motion to vacate a judgment because of' its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term. (Sec. 535.)

If these provisions stood alone, there would be much force in the objection of the plaintiff’ in error, notwithstanding the general language of the code, that a judgment rendered by the court of common pleas “ may be reversed, vacated, or modified by the district court, for errors appearing on the record.” (Sec. 513.) But it will appear from other sections of the code, that the provisions relied on by the plaintiff in error have no application to this case. The sections referred to (306, 307, and 308) require that at least twelve days before the first day of each term, the-clerk shall make a trial docket, on which the actions shall be set for particular days, in the order in which the issues are, or, according to the provisions of the code, should have been made up, and the cases shall be so arranged on the docket that those set for each day shall be tried as nearly .as may be on that day; that in actions for the recovery of money, in which a jury shall not be required to assess the •damages, j udgment may be entered at any time during the teirm, after the defendant is in default for want of an answer , that actions shall be triable at the first term after the issues are or, by the times fixed for pleading, should have been made up; that when, by the times fixed for pleading, the issues are or should have been made up -during a term, the action shall be triable at that term; and that “ when the issues are or should have been made up, •either before or during a term of court, but after the period for preparing the trial docket of such term, the clerk, if required by the court, shall place such actions on the trial •docket of that term.” (2 S. & C. 1034, 1035; 66 Ohio L. 42.)

Prom these provisions it is manifest that this case never ■stood for trial in the court of common pleas; that it had' no plac<? on the trial docket; that as the last day for answer had not expired, it could rightly have no place on that docket; that the provisions invoked by plaintiff in ■error, as to the rendition of judgment before the case stood for trial, have relation to eases in which the day for auswer has expired; and that to render judgment, under the cir■cumstances disclosed in this record, was not merely an irregularity, to be only corrected by motion in the court of ■original jurisdiction, but an error, to correct which the jurisdiction of the district court was properly invoked. Whether the court of common pleas could, at a subsequent term, have set aside the judgment, we need not determine.

Motion overruled.


author: McIlvaine, J.

text:
    Tabler v. The State of Ohio.
    1. The presumption that a married woman who commits a criminal act in the presence of her husband acts under his coercion, is only prima facie; and when it is shown that she acted voluntarily, and not by coercion, she is liable to a prosecution.
    2. On a trial, under an indictment for foeticide containing two counts, in one of which it is charged that the crime was committed by means of an instrument, and in the other, by administering a drug, it is not error for the court to refuse to charge that if the destruction of the foetus was the combined effect of the instrument and the drug, and was not caused solely by either, there can be no conviction.
    3. A general verdict of “guilty” upon such indictment is not bad for repugnancy
    Eeror to the Court of Common Pleas of Logan county.
    At the November term, 1877, of the Court of Common Pleas of Logan county, the plaintiff in error, who was jointly indicted with her husband, under the act of April 18,1867 (64 Ohio L. 135), for the crime of destroying a vitalized foetus, was convicted and sentenced to imprisonment in the penitentiary.
    The indictment contained two counts: in the first of which it was charged that the foetus was destroyed by using a certain instrument, and in the second, by using certain poisonous drugs.
    Upon the separate trial of the plaintiff' in error, the state offered evidence tending to prove that the foetus was destroyed by means of the instrument, as charged in the first •count, also by means of the drug, as charged in the second count, and also by the combined effects of the use of the instrument and the drug.
    The evidence also tended to prove, that before the plaintiff in error committed the acts charged against her, she was told by her husband to go ahead, that she might as well havé the money as anybody else; that the plaintiff in error, with her husband, lived in the house where the alleged crime was committed, that at the time of its commission the husband was about the house, but not in the room where the acts were done by the wife. All the testimony in the case related to the same foetus.
    There was also testimony offered tending to prove that all the acts and doings charged against the plaintiff in error were' done by her voluntarily, and not by the coercion of her husband.
    The court refused to charge the jury, as follows: “If the defendant was a married woman, and did the acts alleged in the indictment when her husband was present at the doing of such acts, the law presumes she acted under his coercion and she can not be convicted, even though, in fact, she voluntarily did the acts.”
    The court also refused to charge the jury as follows: “ If the abortion was the result of drugs and instruments combined, and was not solely the result of either, the defendant can not be convicted under this indictment.”
    By a general verdict, the plaintiff' in error was found guilty as she stood charged in the indictment.
    After verdict, a motion for a new trial, on the grounds that the verdict was “ against the law, and against the evidence, and against the charge of the court, and that the court erred in refusing to charge the jury as requested by the defendant, and erred in charging the jury, and for other errors apparent in the proceedings,” was overruled.
    To all matters now alleged for error, exceptions were properly taken by plaintiff in error.

      William Lawrence, for plaintiff in error:
    There are three grounds for reversing the sentence :
    I. The court of common pleas erred in holding that a party guilty of killing a vitalized fcetus, by the combined agency of an instrument and poisonous drugs, can be convicted without an indictment charging such means, but on an indictment with two counts, one charging a killing by an instrument, and another by drugs.
    This is decided in Com. v. Brown, 14 Gray, 410; Wharton Crim. Law, §390; Com. v. Eaton, 15 Pick. 273 ; a work on Criminal Abortion, by Storer & Heard, Boston, 1868.
    Each couut of an indictment must contain all the allegations requisite to constitute a crime. 1 Ohitty Crim. Law, 249, 640: 2 Stra. 845; 1 Salk. 384; 1 Cowp. 276.
    The right of the accused to have, in each count of the indictment, a complete charge of crime, and description of the means by which it is accomplished, is secured (1) by the principle of the common • law and the constitution,, which require it to state “ the nature and cause of the accusation ” (art. 1, §10); (2) by the common-law rules as to certainty in criminal pleadings; (3) by those which define-variance, and require that the allegata et probata shall correspond ; and (4) by the common-law principle and constitutional provision, which give security against being “ twice put in jeopardy for the same offense ” (art. 1, § 10), and by the doctrine of res adjudieata.

    „(1), (2). As to certainty in stating the “ nature and cause of the accusation.” Greenwood v. State, 4 Ohio, 387 ; Hess v. State, 5 Ohio, 1-12 ; Anderson v. State, 7 Ohio, pt. 2, 250; Davis v. State, 7 Ohio, pt. 1, 205 ; Lougee v. State, 11 Ohio, 68 ; Lamberton v. State, 11 Ohio, 282 ; Dillingham v. State, 5 Ohio St. 280; Fonts v. State, 8 Ohio St. 98-114; Roscoe Crim. Ev. 99, 651; 1 Wharton Crim. Law (5th ed.), 285, 629 ; Cowp. 683; 5 Mod. 96; 2 Bishop Crim. Pro. (2d ed.), 514, 517, 659.
    (3) . As to variance. 1 Bishop Crim. Pro. (2d ed.), §§ 485, 886, 514, 517, 659 ; 2 Bishop Crim. Pro. 395, 514, 517, 559 ; 1 Bishop Crim. Law (6th ed.), 1052, etc.; Roscoe Crim. Ev. 651; 1 G-reenl. Ev. 65 ; 1 Chitty Crim. Law, 293; 2 Russel Crimes, 711; 1 Stark. Ev. (5th Am. ed.), 374; 1 Wharton Cr. Law (5th ed.), 592, etc., 629; Archbold Crim. Pfac. and PI. (Waterman’s notes), 88.
    (4) . Twice in jeopardy. 1 Bishop Crim. Law (6th ed.), 1048-1070 ; State v. Behimer, 20 Ohio St. 572-576.
    The verdict is legally and physically impossible; that the complete, perfected crime of killing a foetus was by means of an instrument, and that the same foetus was, at the same time, completely killed by a poisonous drug! Of this it may be said, as in State v. Gray, 21 Mo. 492 : “ This is an impossibility. It is, on its face, false, and must be bad.”
    II. The court of common pleas erred in holding that a married woman may be convicted of this crime, on proof that the acts constituting it were done in the presence of her husband.
    1. This is so on authority. Davis v. State, 15 Ohio, 72 ; Rex v. Price, 8 Car. & P. 19; Rex v. Knight, 1 Car. & P. 116; Com. v. Trimmer, 1 Mass. 476; Anon., 2 East P. C, 559; Rex v. Tolfree, 1 Moody, 243; Reg. v. Matthews, 1 Den. C. C. 596; Temp. & M. 337 ; Rex v. Archer, 1 Moody, 143; S. C., 2 Eng. Crown C. 146; Com. v. Neal, 10 Mass. 152; Roscoe Crim. Ev. 879; Hale’s Pleas Crown, ch. 47; 4 Black. Com. 28; 1 Greenlf. Ev. §28; 1 Hawk. cb. 1, §§ 1, 2; 1 Wharton Cr. L. (5th ed.), 71, 72; 1 Russel on ■Crimes, by Greaves, 18-25, note. The wife is excused if within the range of the husband’s influence, without an actual presence. Com. v. Burk, 11 Gray, 437 ; Com. v. Welch, 97 Mass. 593; Note to Rex v. Knight, 1 Car. & P. 116; Connolly’s case, 2 Lewin, 229 (in this case, the indictment ■charging a joint act by husband and wife, the husband’s presence, actual or constructive, is conclusively averred by ■the state, aud no proof otherwise is required); Com. v. Trimmer, 1 Mass. 476; King v. Archer, 2 Eng. Crown Cases, 146 ; 1 Moody, 143.
    2. This is so on reason in Ohio. The statute recognizes the influence of the husband over the wife, and requires that deeds for the conveyance of real estate shall be acknowledged before an officer, “ separate and apart from her husband.” 29 Stat. 346; 1 S. & C. 463, § 2. She is incapable of contracting, and is generally, for all legal purposes, deemed to have no separate existence. It is not the business of courts to change this policy.
    III. The verdict is bad, for repugnancy in its finding.
    1. It finds the physical and legal impossibility, that the •same foetus was entirely killed by an instrument, and then -entirely killed by administration of drugs. A verdict, as its derivation imports, must — verum dicit — speak truth. This, in all cases, is due to the reputation of parties accused, to the law, and to truth. And so the law requires. 1 Bishop Crim. Pr. (2d ed.), 1005 ; Archbold Crim. Pl. and Ev. (13th Bond, ed.), 146 ; 1 Chitty Crim. L. 637, 248 ; Co. Lit. 226-228; Hawk. B. 2. c. 47 ; 4 Black. 360 ; Bac. Abr., Verdict.
    Chitty says : “ The law will not admit of absurdity and contradiction in legal proceedings.” Crim. Law, 231, 232 ; Hawk. P. C. c. 25, § 62 ; Bac. Abr., Indictment, G-. 1; Burn’s Just., Indictment; 9 Cro. C. 0. 41; 2 Leach, 660. Hence, if three be charged with conspiracy or riot, a verdict •of guilty as to one, and not guilty as to two, is repugnant, legally impossible, and invalid. 1 Chitty Crim. Law, 641. In such cases as this, the verdict should specify the count on which the jury find guilty, and on the other find not guilty. Wilson v. State, 20 Ohio, 29; Schoonover v. State, 17 Ohio St. 297; Bailey v. State, 4 Ohio St. 440; Hurley v. State, 6 Ohio, 399.
    2. This is a legal right of the accused, so that if a new trial be granted on a verdict of guilty on one count, a verdict of not guilty on the other may bar a second prosecution as to that. 1 Bishop Crim. Law (6 ed.), 1004, 1005; Campbell v. State, 9 Yerger, 333; State v. Kittle, 2 Tyler, 471; Esmon v. State, 1 Swan. (Tenn.), 14; States. Kattleman, 35 Miss. 105 ; State v. Dark, 8 Blackf. 526 : Lithgow v. Com., 2 Va. Cas. 297; State v. Martin, 30 Wis. 216; State v. Belden, 33 Wis. 120; State v. Hill, 30 Wis. 416; People v. Gilmore, 4 Cal. 376; State v. Smith, 53 Mo. 39; State v. Malling, 11 Iowa, 39; State v. Ross, 29 Mo. 32; Major v. State, 4 Sneed, 597 ; Slaughter v. State, 6 Humph. 410; Livingston v. Com., 14 Grat. 592; State v. Flanigan, 6 Md. 167; State v. Tweedy, 11 Iowa, 350. The general rule should not yield to exceptional cases. Jarvis v. State, 19 Ohio St. 585; Leslie v. State, 18 Ohio St. 390; State v. Stanton, 1 Ired. 424; State v. Com., 3 Hill (S. C.), 239;
      State v. Behimer, 20 Ohio St. 578; Bailey v. State, 26 Ga. 579 ; Mitchell v. State, 8 Yerg. 514.
    3. It will be necessary in many cases with a view to determine the punishment or penalties. Buck v. State, 1 Ohio St. 61.

      H. G. Dickinson, also for plaintiff' in error.

      G. W. Emerson, and Isaiah Pillars, attorney-general, for the state:
    I. The presence of the husband is only prima facie evidence of coercion, and the presumption may be rebutted. 1 Bishop Crim. Laws, 362 (6 ed.); Eoscoe Grim. Ev. 985-(7 ed.); 1 Wharton Crim. Law, 75 (7 ed.).
    “If, in fact, the woman was not only the active one, but acting from her own free and uncontrolled will, then, although he was present, she is to be convicted.” 1 Wharton, sec. 362 (7 ed.), and cases there cited; Eussel on Grimes (3 Eng. ed.), 120.
    The logical sequence of the law, as claimed by plaintiff, would be that no married woman ever could be convicted, or even indicted, for any crime committed by her in her husband’s presence, actual or constructive, which is not true. 1 Bishop, 363; 1 Wharton, 67; 15 Ohio, 82.
    “ In crimes that are mala in se and prohibited by the law of nature, as murder and the like, there is not even a presumptiou of coercion.” 4 Blaekstone Com. 29.
    II. The unlawful killing of the foetus is the substance of the crime charged, and the manner of the killing, whether by instruments or drugs, is simply matter of description.
    As to variance between the indictment and evidence, the Ohio criminal code provides: “ When there appears to be a variance between the statement in indictment and the evidence, in the name or description of any matter or thing whatsoever, such variance shall not be deemed ground for an acquittal, unless the court before which the trial is had find that such variance is material to the merits of the case, or may be prejudicial to the defendant.” Crim. Code (Laws, 1877, p. 334), part 4, title 2, chap. 4, sec. 5; 22 Ohio St. 203.
    There was no such finding by the court below, and in fact there was no prejudice to the defendant whatever.
    The preceding section of the code further provides that no indictment shall be deemed invalid “for any defect which does not tend to prejudice the substantial rights of the ■defendant upon the merits.” Ohio L. 1877, p. 334, sec. 4.
    The courts are bound to carry out the spirit of the above provisions.
    If the use of the instruments was not the sole cause of the ■death of the foetus, but only contributed thereto, by combining with some other cause, even although death would not have occurred without the joint operation of both ■causes, yet the one who used the instruments would be guilty just the same as if the instruments had been the sole cause of the death. The same would be true as to the use of drugs. 2 Bishop Crim. Law, 637-639 (7 ed.), and cases there cited; Commonwealth v. Fox, 7 Gray, 585; 2 Wharton, 941.
    With much stronger reason and justice would the above apply, if the same person produced both causes by the joint operation of which death ensued.
    In any event either count of the indictment would be good.
    One good count will support a general verdict of guilty, other counts being bad. Stoughton et al. v. State, 2 Ohio St. 563.
   McIlvaine, J.

Did the court err in refusing to charge as requested, that if the alleged criminal acts were committed by the wife in the presence of her husband “ the law presumes she acted under his coercion, and she can not be convicted, even though in fact she voluntarily did the acts ? ”

It is well settled in this state, that it is not error to refuse to charge a proposition as requested, if as a whole it does aiot state the law correctly. Inglebright v. Hammond, 19 Ohio, 337; French v. Millard, 2 Ohio St. 44; Walker v. Devlin, 2 Ohio St. 593; Eckels v. The State, 20 Ohio St. 508.

As a general rule, it is a good defense, where a married woman is charged with crime', to show that the alleged criminal act was committed by her under the coercion of' her husband. And we have no doubt, the offense charged against the plaintiff in error was within the rule. And further, it is a presumption of law, that, in cases within the-rule, where the act of the wife is done in the presence of her husband, it is done under the constraint and coercion * of the husband. But such presumption is only prima facie. It may be rebutted; and when it is shown that she acted voluntarily, although the husband was present, she is liable' to punishment, as if she were a feme sole.

It was a part of the proposition which the court below refused to give, that the plaintiff in error was not liable for an act done in the presence of her husband, although in fact she acted voluntarily and not by the coercion of the husband. The refusal was proper, as such doctrine is not only contrary to reason, but is opposed by the great weight, if not the entire current, of authorities. 1 Whar. Crim. Law, 71 1 Bishop’s Crim. Law, § 358 et seq; Roscoe’s Crim. Ev, 985 ; 11 Cox’s Crim. Cases, 99; 113 Mass. 71.

The next question is, Did the court err in refusing to charge that “ If the abortion was the result of drugs and instruments combined, and was not solely the result of either, the defendant can not. be convicted under this indictment?”

The statute makes foeticide, by administering a drug, or by using an instrument, a crime; and makes no express provision where the destruction of the foetus results from their combined effect. It by no means follows, however, that,, where the destruction of the 'foetus results from their combined operation, no crime under the statute, is committed. Each of the counts in this indictment charged the samefoeticide. In the first it was charged to have been caused by means of an instrument, and in the second, by means of a drug. That these counts were properly joined is not disputed. Whether a third count, charging the destruction of the foetus by the combined use of an instrument and a drug, would have been good, may be seriously doubted; no such means being named in the statute: but if good, it conclusively shows, that under one or both of the counts of this indictment a conviction might be had, upon proof that the foeticide was the result of the combined effects of both causes. It is only necessary now, however, for us to show, that it was not essential to a conviction under either of the counts, that the destruction of the foetus was caused solely by the means described in such count.

Let us suppose that the indictment had contained only the first count charging the crime to have been committed by the use of an instrument, and that the testimony had shown that the health of the foetus or mother had been impaired by drugs administered by the plaintiff' in error or by some other agency, and that under such circumstances the instrument had been used by her so as to destroy the foetus in its enfeebled condition, or to hasten its destruction in case the drug had produced a mortal sickness; it can not be doubted, that a conviction, under such count, would have been proper, although the destruction was the combined result of the instrument and the drug, or in other words, was not caused solely by the use of the instrument.

And mutatis mutandis, if the indictment had contained only the second count.

The views here expressed are fully sustained by all the authorities which treat of the subject of combined causes. See 1 Hale’s P. C. 428 ; 2 Alabama, 275 ; 2 Allen, 136; 3 Cush. 181; 2 Bish. Cr. Law (6th ed.), §§ 638, 639.

Thus it is made quite clear, that the court properly refused to charge, that if the abortion was not solely the result of one or the other of the causes named, there could be no conviction under- the indictmenr.

It is also contended, on behalf of the plaintiff' in error, that the verdict is bad for repugnancy. The argument, in support of this point, is that the truth of the “ verdict is a physical and legal impossibility; that the same foetus was entirely killed by the use of au instrument, and then entirely killed by the administration of drugs.”

We have already shown that it was not essential to conviction, that the fcetus should have been destroyed solely by the means described in one or the other of the counts. The gravamen of the charge, in each count, was the unlawful destruction of a vitalized fcetus, not the employment of a particular means for that purpose. In contemplation of law, each of said counts charged a distinct and substantive offense. And, further, in contemplation of law, the general verdict was a response to the counts severally. So, that, technically, there is no repugnancy in the verdict. The alleged inconsistency is not found upon the face of the verdict, nor upon the indictment and verdict when construed together. The sole suspicion of repugnancy arises on the fact set forth in the record, that there was no evidence in the case tending to show that more than one fcetus was destroyed; but all the testimony related to one fcetus.

Now, the point under consideration is not that the verdict was against the evidence. That question was settled by the overruling of the motion for a new trial, and we do not have the evidence before us. The question is, is the verdict repugnant? This question must be answered by reference to the several counts and the verdict; and from them no repugnancy is apparent.

Indeed, it is difficult to understand how it is possible that a general verdict of “ guilty” can be repugnant, where the several counts in the indictment are not only properly joined, but also are of such a character, that it would be an abuse of discretion to compel the prosecuting attorney to elect upon which the trial should proceed. We have not seen, and doubt whether there can be found, a case where the same criminal transaction is set out in different counts, for the purpose of securing a correspondence between the allegations and the proofs, in which a general verdict has’been held to be repugnant, although the circumstances of the transaction, as stated in the different counts, be wholly irreconcilable.

The fact that it appeared in the testimony that both counts related to the same feticide required the court to pronounce but one sentence. This was done, and the plaintiff in error has not been prejudiced. It may be said that this view is technical. So it is, but technical rules should be adhered to when justice is thereby promoted and no injury inflicted.

It is quite clear, from this record, that the plaintiff iu error was guilty of the unlawful destruction of a vitalized fetus, and that its destruction was the combined effect of two causes, both of which were put in operation by the plaintiff' in error, and justice requires that she should suffer the penalty, and this is done by strict adherence'to the forms of criminal procedure. 18 Ohio St. 444; 5 Wheat. 184; 1 Harris (Pa.), 634; 3 Wharton, O. L., § 3182.

Judgment affirmed.


author: Gilmore, J.,

text:
    The State of Ohio ex. rel. Beverstock et al. v. Merry, Auditor, etc.
    1. Under section 22 of the act to regulate tlie fees of jurors, etc. (73 Ohio L., 134), jurors are to be allowed compensation for days spent in whole or in part in going to and returning from court, and for days of attendance during the term, whether impaneled or not; and the cleric is not authorized, in addition to such days, to certify that the jurors are entitled to compensation for days as to which they were discharged and not in attendance.
    2. The certificate of the clerk is not conclusive, and if he certifies for days in excess of the number for which the jurors are legally entitled to compensation, the auditor may refuse to issue orders on the county treasurer for such excess.
    Application for a peremptory mandamus.
    Prom tbe alternative writ which was issued from this court, and the answer thereto, together with an agreed statement of facts, which is made- part of the record, it appears that the relators were regular petit jurors, at the May term, 1877, of the Court of, Common Pleas of Erie county, which began on the 21st of May and terminated on the 16th of June in that year. Some of the jurors came in pursuance to the command of the original venire facias, and were present on the first day of the term, and others- came as commanded by a second venire, subsequently issued by order of the court. All the jurors were finally discharged by the court on the 16th of June, on which day the clerk issued to the relators a certificate showing that seven of them had served at the term as regular jurors twenty-four days, and were entitled to forty-eight dollars each (exclusive of mileage, about which no questio'n is made); that four had served twenty-one days, and were entitled to forty-two dollars each, and that one had served twenty days and was entitled to forty dollars. The judge holding the court certified on the -back of the certificate that the computation of time, as therein made, was in accordance with the rules laid down and practiced by the Court of Common Pleas of Erie county, and approved the same.
    The clerk’s certificate includes, in favor of each juror, every day except Sundays, from the time he appeared in court in pursuance of the command of the venire, until he was finally discharged. On presenting the clerk’s certificate to the defendant, who then was and still is auditor of Erie county, he refused to draw orders on the treasurer of the county in favor of the relators respectively, for the sums named in the certificate, for the reasons, among others, that during the term the court adjourned from the 24th to the 28th of May, and the relators, who were then in attendance as jurors, were discharged, and were not present during said adjournment.
    On the 28th of May all the relators appeared as jurors, and on that day each and all of them were discharged by the court from further attendance in said court, as jurors, until Monday, June 4,1877, and during the time they were so discharged they were not present in court, and did not serve as jurors. But the defendant did find the fact to be-that five of the relators had served as jurors for seventeen days each; two- for sixteen days each; four for fourteen days each, and one- for twelve days, and issued orders on the treasurer of the county in favor of each, respectively, for the sum of two dollars per day for the time so served by each, which orders the relators each received and receipted for under protest.
    The object of this proceeding is to compel the defendant,, as auditor, to issue orders on the treasurer in favor of each of the relators, for the full amount stated to be due them in the certificate of the clerk, as approved by the court.

      E. B. King, for the relators.

      L. J. Critehfielcl, for the respondent.
   Gilmore, J.,

Were the jurors legally entitled to receive, as compensation, the full amount certified to be due to-them, respectively, by the clerk ? ■

In order to determine this question, we must look to the law regulating the fees of jurors, etc. (73 Ohio Laws, 134), which, among other things, provides, “that each petit juror shall be allowed the sum of two dollars for each and every day he may serve,” etc.

By what rule is the clerk to determine what constitutes days of service, within the meaning of the sentence quoted?

It is certain that no inflexible rule can be prescribed, the enforcement of which would not, in some instances, do injustice to jurors; and this should be avoided if possible in all cases. On the other hand, injustice should not be done to the public, by allowing jurors compensation for every day from, and including, the day they first appeared in court, until they were finally discharged at the close of the term, in many instances embracing several weeks, without reference to whether they were required by the court to be in attendance or not, and when, in fact, they may have been discharged and at home for a number of consec'utive days at a time, attending to their private affairs, and. not incurring expenses usually incident to their attendance at the county seat.

No rule should be adopted, therefore, which will operate to the prejudice of jurors on the one hand, or of the public on the other; and we think that the following general rule will constitute such a guide, that injustice, in either respect, will rarely be done by following it, viz: Jurors should he allowed compensation for every day spent in going to and returning from court, and for every day they are in attendance at the county seat as jurors, whether they are impaneled or not; fractions of a day to be counted as an entire day in estimating compensation.

It follows that where, as in this case, jurors are discharged from attendance by order of the court for several consecutive days at a time, during the term, the clerk is not authorized to cei’tify that the jurors are entitled to compensation for the days they were so discharged, and not required to be in attendance.

In the second place, we will examine into the effect of the clerk’s certificate, upon the rights of the relators, and the duty of the auditor, when the certificate was presented to him. On the part of the relators, it is contended that this certificate vests in them an unqualified right to the amount certified in their favor respectively, and that it is, therefore, conclusive upon the auditor.

On this point, the statute above cited is as follows: “And the compensation of each juror shall be certified by the clerk of the court, and the compensation so certified shall be paid by the county treasurer on the order of the county auditor,” etc. Under this clause of the law, the clerk is authorized to certify the compensation of each juror, and nothing more. But, as shown by the facts set out in the statement of the ease, and as above found, he, without authority, included in his certificate compensation to each juror for seven days, at two dollars a day, in excess of the •days each juror had served during the term.

In order to determine whether such false certificate was -conclusive upon the auditor, reference must be had to section 12 of the act prescribing the duties of county auditors (67 Ohio L. 105), which provides as follows: “ The county auditor shall issue orders on the county treasury for all moneys payable out of said treasury (except moneys due the state, which shall be paid out upon the order of the ' auditor of state), whenever the proper order or voucher is presented therefor, and shall keep a register of all such orders,, showing the number, date of issue, the amount drawn for, in whose favor, and on what fund; but he shall not issue an order for the payment of any claim against the county unless the same be allowed by the county commissioners,, except in eases where the amount due is fixed by law, or is allowed by some other officer or tribunal authorized by law to allow the same.”

This was not a claim against the county that was to be- • allowed by the county commissioners, or any other officer or tribunal authorized by law to allow the same; and hence the qualified allowance of the claim by the judge holding the court, added nothing to the validity of the certificate, for the allowance was unauthorized.

It was a case, therefore, in which the per diem of the jurors was fixed by law, and before certifying the compensation the clerk was bound to ascertain correctly the number of days éach juror had served during the term. "When this was done it was the duty of the clerk to certify accordingly.

If the clerk, in performing this duty, acted under an erroneous view of the law, or under a mistake of fact, or purposely misstated the facts, and certified a greater number of days than they had served, or a greater amount of compensation than was due to the jurors respectively, it is clear that as to the excess in either respect, the act of the clerk was unauthorized and illegal, and such excess did not constitute a valid claim in favor of the jurors against the county, and hence ought not to have been paid. When the certificate was presented to the auditor, it seems that he must have-had knowledge of its falsity in respect to the number of days each juror had served, and refused to issue orders on. the county treasury for the excess, but did issue orders to each juror for the .amount that was legally due, which orders were accepted and receipted for by them respectively under protest. We all think that the auditor acted in the line of his duty in doing what he did in this case. And inasmuch as the relators have no title to the excess, we think the clerk’s certificate is not of such a conclusive •character as to estop the defendent from showing the facts in relation, to the nature of the claims of the relators in answer to their demand for a mandamus to compel him to issue orders on the treasury for such excess. Keller v. Hyde, 20 Cal. 593; High’s Ex. Rem. § 360; People v. Lawrence, 6 Hill, 244.

Peremptory writ refused.