Volume 103 — Ohio State Reports, New Series

The plaintiff in error, Samuel T. Haas, was indicted by the grand jury of Geauga county under Section 12433, General Code, for the crime of arson.

This case came on for trial to the court and jury in the court of common pleas of Hamilton county, Ohio, upon the issues joined by the petition and answer. At the close of the plaintiff’s testimony, the defendant, plaintiff in error here, moved the court for a directed verdict, which was overruled. At the close of all the testimony, the motion was renewed, and thereupon the plaintiff, defendant in error here, also moved the court for an instructed verdict in his behalf.

Victor D. Miller sued the plaintiffs in error in the court of common pleas of Cuyahoga county to recover damages for personal injury.

The New Bremen-Minster Gas Company and J. F. Arnold filed with the commission their joint application for leave to withdraw natural gas service and facilities therefor from the municipalities of New Bremen and Minster, both in Auglaize county, invoking the authority vested in the commission by Sections 504-2 and 504-3, General Code.

These causes come to this court on error from the court of appeals of Cuyahoga county, having originally been prosecutions for unlawfully keeping a place where intoxicating liquors were sold in violation of law, contrary to Section 13195, General Code. The affidavits in each of the cases are the same both in form and substance, and all of the alleged violations occurred in the city of Cleveland in Cuyahoga county.

<p>Public highways — Erection of monument or marker — Designating Lincoln Highway — Additional inscription of dedication to highway official — Uses inconsistent with public grant — Abutting owners — Additional servitude, ingress and egress — Constitutional law — Taking private property without compensation — Section 13421-4, General Code — Destroying monument or marker.</p>

<p>Municipal corporations — Sale of real estate■ — Section 3698, General Code — Employment of auctioneer — Section jópp, General Code — Validity of ordinance.</p>

In Mandamus. The above captions represent original cases in mandamus, identical in nature, filed in this court and submitted together, upon the petitions and answers, and the evidence in the form of deposition.

The petition filed, in the court of common pleas of Gallia county alleged that the defendant, the director general of railroads, was, on the 15th day of August, 1918, operating The Hocking Valley Railway Company, one line of which railway extended from Gallipolis in Gallia county, Ohio, east-wardly; that the city of Gallipolis has a population of six thousand inhabitants, and that within said city and near the eastern corporation line of the city the Hocking Valley railway…

<p>Error to the Public Utilities Commission.</p>

<p>Error to the Public Utilities Commission.</p>

<p>Error to the' Court of Appeals of Cuyahoga county.</p>

<p>Error to the Public Utilities Commission.</p>

<p>In Mandamus.</p> <p>This is an original action brought in this court by the tax commission of Ohio against the county auditor and the members of the board of county commissioners of Clark county. In the petition the relator avers that such investigations, proceedings and orders were had by the defendant, the county auditor, and his predecessor in office, that he found the real estate in each taxing subdivision of Clark county to be assessed at its true value in money for the tax year 1921, and such finding was duly submitted .to the county commissioners of said county as required by law; that the board of county commissioners upon hearing, after due notice thereof, found and determined that all the real estate in each tax subdivision of said county was not assessed for taxation purposes at its true value in money, and ordered that a general or horizontal decrease of said assessment so submitted by the county auditor of 10 per cent, of the total value be made, and that the assessment list or duplicate in all subdivisions be changed by reducing all of the real estate valuations 10 per cent, of the total valuation; that the county auditor, unless otherwise ordered by the court, will proceed to apply and put into effect the order of the county commissioners, which it is' averred will result in a loss of a large amount of taxes which would otherwise be due the county-and state for the year 1921; and that the county commissioners refuse to make any change in their said order or take any action in the premises, and the county auditor refuses to comply with the demand of the relator that he should ignore that part of the order of the board of county commissioners making such 10 per cent, decrease. The, relator therefore prays for a writ of mandamus requiring the county commissioners to set aside and vacate their action complained of, or that the county auditor be required to ignore.that part of the commissioners’ order making such reduction and be required to proceed with the reassessment of said real estate as required by law.</p> <p>The answer contained four defenses: (1) A general denial. (2) That the tax commission has an adequate remedy at law. (3) That the matters set up in the petition of the relator were formerly adjudicated in an action in the court of appeals of Clark county, wherein it is alleged the relator in this action was in privity with the defendant William C. Mills, as county auditor, which action was one in mandamus against the board of county commissioners, involving the same question herein presented, and that the court of appeals in that action found and adjudged the demurrer of the board of county commissioners to the petition of William C. Mills, county auditor, to be well taken and sustained the same and entered final judgment in favor of the commissioners, dismissing the petition of the relator in that case, and that such judgment of the court of appeals has'not been reversed or modified and is still in full -force and effect. (4) That by virtue of the order made by the county commissioners’ the real estate of Clark county is listed at its true value in money.</p> <p>A general demurrer was filed to each separate defense stated in the answer, and thereby arose the issue of law presented to this court for its consideration.</p>

<p>Error to the Court of Appeals of Hamilton county.</p> <p>Franklin Alter and George T. Alter, plaintiffs below, brought suit in the court of common pleas of Hamilton county under favor of .Section 10858, General Code, against Robert S. Alter, Lucien W. Alter, Blanche Alter, Elizabeth T. Alter, Rebecca W. Alter and The Union Savings Bank and Trust Company, Clifford B. Wright and Walter B. Hofer, Trustees, under the will of Franklin Alter, deceased, in which will the plaintiffs and defendants other than the trustees were named as legatees. All parties excepting the trustees were children of the decedent. The will was executed on the 14th day of August, 1909, the testator died on February 27, 1916, and his will was probated March 16, 1916. Plaintiffs prayed for a construction of the will, in which prayer the defendant beneficiaries, by their answers and cross-petitions, joined.</p> <p>The provision of the will upon which construction is sought is as.follows:</p> <p>“Item 6. I give, devise and bequeath all the rest, residue and remainder of my property, real, personal and mixed, including all lapsed or void legacies and devises, if any, to The Union Savings' Bank and Trust Company, a corporation organized under the laws of Ohio, at Cincinnati, Ohio, and to Clifford B. Wright and to Walter B. Hofer, both of Cincinnati, "Ohio, in trust nevertheless for the' period of ten years from the date of my death, for the following uses and purposes: To be held, managed, controlled and invested, and from time to time as need be, reinvested by my said Trustees, or their successors in said trust, as hereinafter provided, for the period of ten years from and after my death, for the benefit and advantage of my eight children, namely Franklin Alter, George T. Alter, Henry T. Alter, Robert S. Alter, Lucien W. Alter, Blanche Alter, Elizabeth T. Alter, and Rebecca W. Alter, it being my wish that my estate shall be so managed and invested that it will produce a sure and regular income rather than hazard in what may promise a great gain. From the income of my estate, my said Trustees or their said successors in said trust, shall, after paying all the expenses incident to said trust, pay to each of my said children, the sum of Twenty-Five Hundred Dollars ($2,500) per annum for said period of ten years from my death. Should the net income of my estate be insufficient’for any reason to pay each of my said children said sum of Twenty-Five Hundred Dollars per annum as aforesaid, then in that event my said Trustees or their successors in said trust, shall pay to each of my said children an equal and proportionately less amount. Should the net income of my estate be more than sufficient to pay each of my said children said sum of Twenty-Five Hundred Dollars per annum, such excess shall go in augmentation and become a part of the principal of- my estate. My Trustees shall.accept no order on said annual payments from any of my said children, nor shall said annual payments or any part thereof be in any way pledged or hypothecated by any of my said children. In the event of the death of any particular child of mine before or after my death, leaving issue, my Trustees shall pay annually to its issue, share and share alike, but per stirpes, the same amount or portion of the net income of my estate as its parent would have received if living, as above provided. In the event of the death of any child of mine whether before or after my death, leaving no issue or leaving issue, all dying before the period of final distribution herein, the income which would have been or which was theretofore payable to such child or such issue, shall go in augmentation and become a part of the principal of my estate.</p> <p>“I hereby authorize and empower said The Union Savings Bank and Trust Company, with the consent in writing of its co-trustees if they be living and after their death, resignation or disability without such consent, to sell and convey any of the property, real, personal or mixed, which may be the subject of this trust within said period of ten years from the date of my death, and to reinvest the proceeds of such sales with the like consent in writing of its co-trustees, and after their death, resignation or disability, without such consent, in and upon the following securities, to-wit: In the stock of any National Bank in any State of the United States, but not more than Ten Thousand Dollars ($10,000) par value in the stock of any one such bank; in first mortgage on unincumbered real estate in any State of the United States, provided, that the amount loaned be not more than sixty per cent, of the market value of the real estate together with valid insurance on the improvements, if any; in bonds of the United States Government and in approved state, county, township or municipal bonds; in the purchase of real estate or in what are known as ground rents in any city of the United States having a population of over fifty thousand inhabitants, or' in and upon any securities in which said The Union Savings Bank and Trust Company is authorized to invest trust funds by law; with full power upon the like consent in writing of its co-trustees and after their death, resignation or disability without such consent, to vary or transpose such stocks, funds, securities and real estate or interests therein, into or for others of any nature hereby authorized, with power to lease with the like consent in writing of its co-trustees and after their death, resignation or disability without such consent, any real estate with or without the privilege of purchase, and with the like consent in writing of its co-trustees and after their death, resignation or disability without such consent to repair, or alter any old improvements or to erect and build any new improvements.</p> <p>“I direct, however, that my Trustees shall sell and dispose of my stock in The American Tool Works' Company, of Cincinnati, Ohio, within one year after my death,- unless my Trustees shall unanimously agree that it would be. for the best interest of my estate to hold said stock and continue my interest in said The American Tool Works Company, for a period of three years after my death, then in that event, I direct that said stock be sold and disposed of at 'the end of the last mentioned period; when said stock is so sold the proceeds derived therefrom shall be reinvested by my Trustees as part of the principal of my estate.</p> <p>“It is my will that said The Union Savings Bank and Trust Company shall have the active control and possession of the personal property of my estate. In the event of the resignation and disability of said The Union Savings Bank and Trust Company or in the event of the resignation, disability or death of the said Clifford B. Wright and Walter B. Hofer, it is my will that no successor in trust be appointed, unless there be no surviving Trustee whatever, when the court under whose supervision this trust is administered shall appoint a successor in trust; and I hereby confer upon the survivor or survivors, successor or successors of said Trustees, the power and discretion hereby conferred upon'any or all of said Trustees.</p> <p>“I hereby expressly relieve the purchasers at any sales by said Trustees or the lessees or tenants of said Trustees from looking to the application of the purchase or rent moneys respectively or from being answerable for the misapplication thereof. While I have authorized and empowered said The Union Savings Bank and Trust Company to do certain acts as herein above with the consent in writing of its co-trustees, I hereby relieve the purchaser of. any personal property from being answerable for the existence of such written consent, and the sale by The Union Savings Bank and Trust Company of such personal property shall be deemed conclusive evidence that such written consent was given; it being merely as far as the sale of personal property is concerned my wish that such written consent be. obtained and not that its obtaining be essential to the validity of such sale.</p> <p>“At the end of ten years after the date of my death, I hereby authorize, direct and empower my Trustees and Executors, to convert my entire estate then remaining into money, except as hereinafter provided, and for that purpose, I authorize and empower my Trustees and Executors to sell all my real estate then undisposed of and to convey the same by good and sufficient deeds to the purchaser or purchasers thereof. When my estate is so converted into money, I direct that my Trustees and Executors, after the payment of all costs and expenses incident to the administration of my estate, shall pay the same out subject to the advancements made by me as hereinafter set forth, as follows:</p> <p>“One-eighth part thereof to my son Franklin Alter, and his heirs.</p> <p>, “One-eighth part thereof to my son George T. Alter, and his heirs.</p> <p>“One-eighth part thereof to my son Henry T. Alter, and his heirs.</p> <p>“One-eighth part thereof to my son Robert S. Alter, and his heirs.</p> <p>“One-eighth part thereof to my son Lucien W. Alter, and his heirs.</p> <p>“One-eighth part thereof to my daughter Blanche Alter, and her heirs.</p> <p>“One-eighth part thereof to my daughter Elizabeth T. Alter, and her heirs.</p> <p>“One-eighth part thereof to my daughter Rebecca W. Alter, and her heirs.</p> <p>“In such final distribution, however, of my estate, my said Trustees and Executors shall be authorized to distribute and pay over is [in] kind and not convert the same into money, any stocks, bonds, notes, claims or other rights in action belonging to my estate to those of such distributees above named, as will receive the same, as provided by statute. In the event and for the purpose of such distribution in kind, my Trustees and Executors shall, immediately after my death select three judicious and disinterested appraisers to value all such stocks, bonds, notes, claims or other rights in action, and the values so fixed by said appraisers shall govern my Trustees and Executors in making such distribution in kind.</p> <p>“I hereby charge my son, George T. Alter, with the sum of Thirty-seven Thousand Dollars ($37,-000) heretofore advanced him by me, two thousand dollars ($2,000) of which shall be deducted from his first annual payment of twenty-five hundred dollars ($2,500) from the income of my estate, and thirty-five thousand dollars ($35,000) of which shall be deducted from his share on final distribution after the end of ten years from my death.</p> <p>“I also charge my son Franklin Alter with the sum of two thousand dollars ($2,000) and my son Henry T. Alter with the sum of five' hundred dollars ($500) and my son Robert S. Alter with the sum of five hundred dollars ($500) heretofore advanced them respectively by me, the said sums to be deducted from' their respective shares on final distribution after the end of ten years from my death. No interest shall be charged upon any of said sums so advanced my sons.</p> <p>“It is my intention under this will, that after the payment of my debts and expenses of administration and the payment of the legacies and provisions made for my wife as set forth in the first five items of this will, all the residue of my estate shall be held in trust and annual payments be made my children from the income as herein provided, for the period of ten years from my death, and that after the expiration of said ten years, my estate be finally distributed equally among my eight children and their heirs respectively, subject to the advancements heretofore made by me as above and herein set forth.”</p> <p>The plaintiffs and the other children of the deceased sought construction of these provisions with the immediate purpose of securing a direction of the court to the trustees to pay them out of the income such sums' in addition to the $2,500 per an-num, provided for in the will, as their present circumstances and conditions might appear to the court to require.</p> <p>The petition further stated that the trustees, under the terms of the will directing them to dispose of testator’s stock in The American Tool Works Company within one year after his death, by the unanimous agreement of all the trustees, or within three years after his death, in any event, were threatening to sell the stock in The American Tool Works Company, and-further averred that at the time of the death of the testator The American Tool Works Company was a corporation organized under the laws of the state of West Virginia; that during the year after testator’s death a corporation was formed under the laws of the state of Ohio, known as The American Tool Works Company of Ohio; and that immediately after the formation of the Ohio corporation the trustees caused all the interests of Franklin Alter, the testator, in The American Tool Works Company of West Virginia to be transferred and sold to The American Tool Works Company of Ohio. The petition in addition to praying for a construction of the will prayed for an injunction restraining the trustees from selling or otherwise disposing of the stock in The American Tool Works Company of Ohio.</p> <p>The court of common pleas, on the pleadings' and the evidence, entered a decree finding among other things that the plaintiffs and the other children of the decedent, under the circumstances, were each entitled to receive in addition to the $2,500 per annum provided by the will the sum of $3,500 per annum. The cause was appealed and heard upon the pleadings and the evidence, and the court of appeals held, one son having died, that each child of testator had a vested estate in the one-seventh part) of the entire estate bequeathed to the trustees, which could be encumbered, alienated and devised, and further held that since the date of the will “exigencies have arisen in respect to Franklin Alter, and George T. Alter * * * non-existent at the date of said will * * * which were not anticipated by the testator,” and provided for the payment to Franklin Alter and Geqrge T. Alter, each, six thousand dollars per annum, but made no provision for an increased per annum payment to the other children.</p> <p>Case No. 16835 is here upon a petition in error by The Union Savings Bank & Trust Company and Walter B. Hofer, surviving trustee, and Case No. 16836 is here upon a petition in error by Robert S. Alter and Lucien W. Alter.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The plaintiff, George F. Hart, brought suit in the court of common pleas against the defendant, A. M. Andrews, and others, upon a petition alleging in substance:</p> <p>That A. M. Andrews, a resident of Chicago, Illinois, and others, in order to induce the plaintiff to become a subscriber in .a certain syndicate which was being formed by the defendant Andrews and others, made certain representations regarding the value ,of stocks the syndicate intended to purchase, and regarding the company which issued this stock ; that these representations were false at the time, and were known by the defendant Andrews to be false, but that the plaintiff, having no means of ascertaining these facts, relied on the statements of the defendant Andrews and entered into an agreement with the defendant and others, in reliance upon these representations, and paid to them the sum of $7,500.</p> <p>The plaintiff further alleges in the petition that said statements were false, and that if they had been true the stock purchased by him would have been worth $25,000, “but that in fact, the value did not exceed thirty-five hundred dollars ($3,500.00) and that he was therefore damaged to the extent of twenty-one thousand, five hundred dollars ($21,500.00) for which amount he prays, judgment.” (All of which appears from defendant in error’s brief.)</p> <p>An affidavit for attachment is duly made under Sections 10253 and 10254, General Code, without bond, upon the specific ground that “said A. M. Andrews is a non-resident of the state.”</p> <p>A motion to discharge this attachment was overruled by the common pleas court of Cuyahoga county, and exceptions taken. Error was prosecuted to the court of appeals of Cuyahoga county, and that court reversed the judgment below.</p>

<p>Error to the Court of Appeals of Lorain county.</p> <p>The original action, Cause No. 16734, was begun by Herman C. Newman in the common pleas of Lorain county to subject certain land held by the defendants in error to a lien in his favor.</p> <p>The petition alleges that the property was conveyed to-Theo Elizabeth Newman on or about the 30th of April, 1918, and was thereafter conveyed by her to McKeehan, as trustee, to hold for her benefit.</p> <p>The petition alleges that within thirty days prior to the date of the deed to Theo Elizabeth Newman, her husband, Edward E. Newman, since deceased, requested the plaintiff to advance to him the sum of $5,000 for the express purpose of buying the real estate, and that the said Edward E. Newman did thereupon covenant and agree with the plaintiff that if the real estate was so purchased by the use of the plaintiff’s: money he would cause a mortgage to be duly executed in favor of and delivered to the plaintiff, covering said real estate as security for the money; that relying on the promise of said Edward E. Newman the plaintiff did advance the $5,000 as requested, and as a preliminary step to the giving of the security agreed upon before the real estate was purchased said Edward E. Newman executed and delivered to the plaintiff his promissory note for the sum of $5,000, dated April 1, 1918, payable one year after date; that said Edward E. Newman purchased said real estate, using the $5,000 so advanced by the plaintiff for that purpose, and caused the title to the same to be taken in the name of Theo Elizabeth Newman, his wife; that the latter paid no consideration whatever for such real estate and took the title of the same at the request of and for the benefit of said Edward E. Newman, well knowing that the plaintiff had advanced the' money with which it was paid, and knowing the obligation of Edward E. Newman to the plaintiff in regard to it; that Edward E. Newman did in fact partially prepare the mortgage in plaintiff’s favor, covering the real estate and other real estate the purchase price of which was likewise advanced by the plaintiff to Edward E. Newman, and was about to carry out his agreement with the plaintiff when his death occurred on the 25th of December, 1918; that defendant Theo Elizabeth Newman now refuses to recognize the right and interest which plaintiff has in the premises and is about to dispose of the same; and that the assets of said Edward E. Newman are wholly insufficient to satisfy plaintiff’s claim against the estate, or any considerable part thereof, and plaintiff has no adequate remedy at law.</p> <p>The petition prays that the real estate be decreed to be subject to a lien in plaintiff’s favor in the sum of $5,000, with interest, and for such other equitable relief as is proper.</p> <p>The answer of the defendant Theo Elizabeth Newman admits that McKeehan holds the legal title, as trustee, for her, subject to a lien in his favor of $1,000, and that said real estate was conveyed to her on or about the date alleged and that she conveyed the same to McKeehan, trustee; it admits that Edward E. Newman was her husband and that he died on December 25, 1918, and that the estate left by him was insufficient to pay the plaintiff’s claims in full. Not intending to deny that plaintiff holds a promissory note of the said Edward E. Newman for the amount and of the date alleged, defendant denies all the other allegations not expressly admitted.</p> <p>The answer of the defendant McKeehan sets forth that the transfer of the real estate t him as trustee was made for the purpose of preserving the status quo while the controversy concerning the matter now in dispute was being investigated. He sets up a lien for $1,000, and denies the other allegations of the petition. In cause No. 16734 the court of appeals found in favor of the defendant, and rendered judgment accordingly.</p> <p>In Cause No. 16770 the same parties were plaintiff and defendants, and the petition in that ,case alleged that some months after the transaction set up in the petition in No. 16734 the said Edward E. Newman, desiring to buy an adjoining piece of property to the one referred to in 16734, made an arrangement with his father by which his father loaned him $4,900 for that purpose, and that Edward E. Newman agreed at the same time that if the plaintiff would advance the said $4,900 he would cause a mortgage to be executed and delivered to plaintiff for the full sum of both loans, to-wit, $9,900, covering both pieces of real estate; and the petition contained the same allegations touching the transaction as were contained in the other petition and the answers were to the same effect.</p> <p>In Cause No. 16770 the court of appeals found on the issues in favor of the plaintiff and entered its decree fixing the lien - on the property for the amounts claimed.</p>

<p>Error to the Court of Appeals of Lake county.</p> <p>This was an action filed in the court of common pleas of Lake county against the county commissioners of Lake county for damages for personal injuries received by the plaintiff, Edna Weiher, a minor, while riding in an automobile upon a state road between Willoughby and Painesville. Said road is paved with- brick, beginning a short distance east of Painesville, and had evidently become out of repair, and at the time of the injury complained of was being repaired by the state highway department.</p> <p>The petition alleges that at the west terminus of that portion of the road which was being repaired the roád was obstructed and made impassable by a wall of bricks piled five or six tiers high across the entire width of the paved portion of the road to form a barrier to obstruct the use of the road for all traffic at that point. It is not charged that the defendants erected the barrier, ■ but it is charged that they knew or should have known of the existing obstruction. No light was placed upon the barrier, neither was any watchman stationed there to warn persons of its existence, and these acts are charged as negligence’ on the part of the county commissioners. ' ,</p> <p>Plaintiff received her injuries while riding along the road at about 1:30 o’clock on the morning of June 4, 1918, and the Obstruction was not seen in time to stop the machine. The driver attempted to avoid it by turning off the road, which resulted in the machine being overturned and the plaintiff severely injured. __</p> <p>An answer was filed and the case called for trial, and upon the plaintiff being placed on the witness stand and asked a few formal questions the defendants objected to the introduction of any further testimony on the ground that the petition failed to state a cause of action against the board of county commissioners. The court sustained the objection, and the plaintiff not desiring to further plead the petition was dismissed and judgment rendered against her for costs.</p>

<p>Office and officer — Township trustees — Personal liability — Trustees sign warrants in blank — Clerk fills in blanks and misappropriates funds — Failure to require itemised • bills — Parties defendant — Waiver of misjoinder.</p>

<p>Insurance — Automobile public liability — Reciprocal or inter-insurance contracts — Section 9556-1, General Code — Limited to fire insurance companies — Mutual fire insurance companies — Section 9607-2, General Code — Kinds of insurance authorised — Mandamus.</p>

The plaintiff below, John T. Wilcox, brought suit in the common pleas court to enjoin the collection of a part of the paving assessment charged against his property by the village of Edgerton, claiming that such assessment was in excess of the 33 1-3 per cent, of the value of the property assessed after said improvement had been completed. Upon hearing in the court of common pleas the value of the property was found to be $5,000.

<p>Error to the Court of Appeals of Mahoning county.</p> <p>The facts áre stated in the opinion.</p>

<p>In Quo Warranto.</p>

<p>Error to the Court of Appeals of Hamilton county.</p> <p>This was an action brought by the city of Cincinnati in the court of common pleas of Hamilton county seeking an injunction to restrain the defendants from submitting to the electors of the city at a special election a certain ordinance proposed by initiative petitions.</p> <p>The petition in the court of common pleas avers the corporate capacity of the city and that the defendants are duly qualified and acting members of the board of deputy state supervisors of elections of Hamilton county; that on March 4, 1921, certain initiative petitions proposing an ordinance were filed by certain parties named, with the city auditor of the city, said parties claiming to be a committee designated for that purpose, and the petitions purporting to contain 22,271 signatures, the petitioners setting forth that they were proceeding in the manner required by law to secure the submission of said ordinance to the voters. A copy of the initiative petition and the ordinance proposed is set forth in the petition for injunction. A copy of the proposed ordinance is as follows:</p> <p>“Amendment to Ordinance No. 253-1918, passed August 23, A. D. 1918, proposed by initiative petition to be submitted directly to the electors of the City of Cincinnati, State of Ohio:</p> <p>“Be it ordained by the people of the city of Cincinnati, State of Ohio:</p> <p>“Sec. (1). That The Cincinnati Street Railway Company and The Cincinnati Traction Company, their successors and assigns, be and they are hereby ordered to extend the tracks of the said East End route as follows:</p> <p>“Beginning at the intersection of Eastern avenue and Stanley avenue; thence in a southerly direction along and in the center of said Stanley avenue and along the Interurban Railway Terminal Company tracks; thence along the said I. R. T. tracks in an easterly direction to the corporate limits of the City of Cincinnati opposite entrance to the Coney Island Company park.</p> <p>“Said companies are hereby ordered to construct, maintain and operate along said route and along said I. R. & T. tracks, double tracks, including all poles, wirés, cross-overs, switches, loops, wyes, overhead electric construction, and appliances necessary for the continuous operation of said electric street railway extension. The said companies are further ordered’ to bring whatever condemnation proceedings or other proceedings as may be necessary either in or out of court for the purpose of securing such rights of way as may be necessary over the said route and over the said I. R. T. tracks.</p> <p>“The said companies are to operate cars of the usual standard type now operated or which may be operated in the future by the said companies over any of their other present routes, and further the said companies are ordered to operate said cars at an interval of not less than one-half hour apart.</p> <p>“Said companies are ordered to commence the construction of said extension within thirty (30) days after the passage of this ordinance and to complete said extension to the corporate limits of the City of Cincinnati opposite the entrance to the Coney Island Park as aforesaid in not to exceed three (3) months from the beginning of said work, the location of the tracks and appurtenances and the manner of construction to be approved by the director of public service.</p> <p>“That the -aforesaid extension shall be known and the cars thereof marked California Line.</p> <p>“This grant shall be subject to each and all the terms and conditions of the resolution adopted by the Board of Administration of the City of Cincinnati on August the 13th, 1896,-granting an extension of time, etc., to the Cincinnati Street Railway Company and subject to each and all the terms and conditions of Ordinance No. 253-1918, passed by the Council of the City of Cincinnati, August 23, 1918, and further providing that said Ordinance No. 253-1918, shall remain in full force and effect and shall in no way be changed by this ordinance except as shall be necessary for the carrying out of this initiative ordinance.</p> <p>“This grant shall further be subject to all the resolutions and ordinances of the City of Cincinnati, and the General Street Railway Ordinances of the City of Cincinnati, and as provided by law.” The petition further avers that on August 13, 1896, the board of administration of the city of Cincinnati, under and by virtue of the act passed by the general assembly on April 22, 1896, known as the Rogers law, adopted a resolution extending the term of the franchise of the Cincinnati Street Railway Company for a period of fifty years from and after the date of the passage of the act, and that the resolution provided the terms and conditions upon which said extension was granted to said street railway company; that in Section 2505<i of the Rogers law it is provided as follows, “And provided further that the municipal corporation in which such street railroad is situated shall have the power at the end of twenty years from the passage of this act, and every fifteen years thereafter, to fix the rates of fare, car license fees and percentage tax on gross earnings, transfers and all other terms and conditions on which such railroad is operated in said city. The said term shall be fixed by the Board of Administration, if there be such a board, and if there be none, then by the common council or legislative body of the municipal corporation, and must be approved and confirmed in the manner which at the time may be required for other acts of such municipal corporation;” and that immediately upon the adoption of the resolution said street railway company accepted the same in writing, and by reason of this adoption and written acceptance the same resulted in a valid and binding contract between the city and the company, its successors and assigns.</p> <p>Plaintiff says that said ordinance No. 253-1918, which is sought to be amended by the proposed initiative ordinance, constitutes and is the revision authorized to be made by the council of the city at the end of twenty years from the passage of the Rogers law and said resolution. Then follows the title of ordinance No. 253-1918, passed August 23, 1918, referred to.</p> <p>It is further averred that it is provided in Section 15, Article II of the Constitution of Ohio, providing for legislation by initiative petition, that the full text of the proposed law shall be set forth in' such petition; that in Section 16, Article II of the Constitution, it is provided that no law shall be revived or amended unless the new act contains the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed; and that in Section 4226, General Code, it is provided that “No by-law or ordinance, or section thereof, • shall be revived or amended, unless the new by-law or ordinance contains the entire by-law or ordinance, or section revived or amended, and the by-law or ordinance, section or sections so amended shall be repealed.”</p> <p>It is further averred that the ordinance in the initiative petition seeks to amend the ordinance No. 253-1918 without containing in full the entire text of the ordinance which it seeks to amend and revive, etc.; that by reason of these facts said initiative petitions are insufficient in law to warrant the defendants in submitting the proposed ordinance to the electors of the city.</p> <p>It is further averred that the ordinance so proposed by initiative petition seeks to require the extension of the East End street railway route in the city of Cincinnati, from the intersection of Eastern avenue and Stanley avenue, in an easterly direction to the corporate limits of the city of Cincinnati, opposite the entrance to the Coney Island Park, and it is averred that at a prior election in November, 1920, a similar ordinance was presented to the electors and defeated. It is averred that the submission of the ordinance at a special election would cost at least fifty thousand dollars and that it would be a wastage of public funds.</p> <p>It is further averred that the owners of more than one-half of the feet front of the lots and lands abutting on the streets and public ways on which it is proposed to extend said railway have not consented in writing to the construction of same, nor has the city planning commission of Cincinnati approved its construction, extension or operation; that because of the facts above alleged said initiative petitions áre null and void.</p> <p>It is further averred that the defendants threaten to and will unless restrained by the court submit the proposed ordinance to the electors of the city at a special election to be held on the fifth Tuesday after the filing of the petition, and will use and expend the public moneys of the city for defraying the cost and expenses of holding said election, to the irreparable injúry of the city.</p> <p>Wherefore the plaintiff prays the injunction as stated.</p> <p>The defendants demurred to the petition on the ground that the court had no jurisdiction of the subject' of the action, that the action was not brought within the time limited by the-law for the commencement of such actions, and that the petition did not - state facts sufficient to constitute a cause of action.</p> <p>The court of common pleas overruled the demurrer, and entered judgment for the plaintiff. The cause was appealed to the court of appeals, and that court sustained the demurrer and dismissed the petition of the plaintiff.</p>

<p>Error to the Court of Appeals of Richland county.</p>

<p>In Mandamus.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the Court of Appeals of Franklin county.</p> <p>Frederick Jaeger brought suit against the defendant in error in the court of common pleas of Franklin county seeking to enjoin the erection of a certain building by the defendant, which the petition alleges is being erected in violation of the building code of the city of Columbus, Ohio, to his irreparable injury. The petition is as follows:</p> <p>“For his petition herein, plaintiff says that he is the owner of lot No. 86 in Magrew and Floffman’s second amended addition to the city of Columbus, Ohio, as the same is numbered and delineated on the recorded plat thereof, of record in Plat Book No. 2, pp. 200, 201, recorder’s office, Franklin county, Ohio; and that plaintiff is now, and has been for several years last past, using and occupying said propérty, including the residence and other buildings thereon, as a home for himself and family.</p> <p>“The defendant, Max M. Topper, is the owner of lot No. 85 in said addition, which, until the changes and alterations hereinafter set forth, were undertaken by the defendant, was occupied, together with the residence and other building's thereon, by defendant as a home for himself and family.</p> <p>“The residence so situated on the lot so owned by plaintiff is a single residence. The residence on the lot so owned by defendant was formerly a single residence.</p> <p>• “The defendant is proceeding to, and will, unless enjoined by the court, change, alter and add to the dwelling so situated upon the lot so owned by him so as.to make the same a residence or tenement house, as defined by the housing code of the city of Columbus, Ohio, in paragraphs 1 and 2 of Section 2 thereof, the intention of defendant being to so change, alter and enlarge said residence as to make of the same a four apartment residence or tenement house, with the purpose of renting the same, from and after the time such changes, alterations and additions are completed, to at least four families, each occupying one of the apartments so constructed or made out of the dwelling on said property as above described, with additions thereto, as aforesaid.</p> <p>“Plaintiff further says that there is an outer court extending from Bryden Road in said city, on which said lots front and abut, along the lot line between the real estate so owned by plaintiff and the real estate so owned by defendant, and back the entire line of the residences situated on said two lots, prior to the date of the attempted alterations of, and additions to his said property by defendant, and which will now extend, if said changes, alterations and additions so being made by defendant are permitted, to the rear of the building now being constructed, or which defendant is intending to construct, on his said property.</p> <p>“Plaintiff 'further says that the residence on the property so owned by defendant, and situated thereon, prior to the date defendant attempted to make said alterations, changes and additions, was built prior to the adoption of the present housing code of the city of Columbus, Ohio, within which all.of said property is situated, to wit, prior to the sixth day of March, 1911, and that said dwelling was, when built, situated within one foot, of the east lot line of the premises so owned by defendant. That the court between said two buildings, as above described, did not, and does not now, comply with the provisions of said housing code. That the alterations, changes and additions which defendant is making in and to his said building violate the provisions of said housing code, and are contrary to law, in that:</p> <p>“(1) The same violate said housing code in that the building now being constructed by defendant on said real -estate so owned by him,- including the alterations, changes and additions made in and to the old building thereon, will not permit or provide for an outer court six feet or more in width. Plaintiff avers in this connection, that the defendant is constructing, or attempting to construct, a new building on said property (which is an addition to and an extension and enlargement of the old building thereon), in such manner and way that the east wall thereof is within twenty inches of the east line of said lot, instead of six feet, as provided by said housing code.</p> <p>“(2) The same is in violation of Section 4 of said housing code which provides that:</p> <p>“ ‘No tenement house or dwelling house hereafter erected shall at any time be altered so as to be in violation of any provision in this ordinance. And no tenement house or dwelling house erected prior to the passage of this ordinance shall at any time be in violation of those provisions of this ordinance applicable to said tenement house or dwelling house.’</p> <p>“(3) The same violates Section 13 of said housing code, which provides that:</p> <p>“ ‘The sizes of all courts in tenement houses or dwelling houses hereafter erected shall be proportionate to the height of the building. No court' which is used to provide the lighting and ventilation required by this title shall be less in any part than the minimum sizes prescribed in this section. The minimum width of a court for a tenement house two stories in height shall be ten feet and such width shall increase two feet for each additional story. The minimum width of a court for a dwelling house shall be five feet for a two-story building and such width shall increase one foot for each additional story. The length of an inner court shall never be less than twice the minimum width above described. When a court is located on the lot line a portion of such court, not to exceed one-half, may be located on the abutting premises, provided there'is filed with the county recorder an easement, duly executed and acknowledged by the owner of such abutting premises, binding himself, his heirs, administrators and' assigns, to keep such portion of the adjoining space unbuilt upon and available for light and air as will make the combined courts not less in size than the minimum dimensions prescribed above, or provided such abutting premises has already built upon it and within twelve feet of the lot on which the building is proposed to be erected, a building of permanent character, located such a distance from the lot line as will leave an open court of the minimum dimensions above specified, and this fact be made to appear in the application for permit. When the first floor of a building is used for other than residence purposes, a court therein may start from the floor of the second story, and may be not less than six feet in width if the building is only two stories in height, and two additional feet in width for each additional story. Proper access to the bottom of such court shall be provided and any skylight at the bottom of such court shall be so arranged as to be easily cleaned.’</p> <p>“Plaintiff says that the new building now being erected on said lot by defendant does not provide for an outer court as above described, but on the contrary, provides for a court as applied to the old building, on the real estate of defendant, of twenty inches, and for the new building being erected by defendant thereon, of twenty inches, and no more.</p> <p>“(4) The same violates Section 15 of said Housing Code, which provides:</p> <p>“ ‘No court shall be covered by a roof or skylight, but every court shall be at every point open. from the bottom thereof unobstructed.’</p> <p>“Plaintiff says. that the new construction or building so planned and contemplated, and now being attempted by, defendant violates said section of said code, in that it extends a cornice over said court, at the top of said building so being constructed by him, and thereby prevents the same, or will prevent the same, from being as required by said section of said housing code.</p> <p>“Plaintiff further says that said property, both of plaintiff and defendant, is situated in one of the best residential sections of the city ■ of Columbus, Ohio, and that said section of said city is built up with, and occupied by, residences of the best and highest grade; that if the defendant is permitted to build as above stated, on his said lot, either in the way of erecting new buildings hereon, as he is attempting to do, as above stated, or in changing the ,old dwelling situated on said lot, as he is intending and attempting to do, as above stated, plaintiff’s property will be irreparably damaged, in that it will result in obstructing the court between his said residence and the property of defendant, will shut off the light and air from his said home, will render it less valuable as a place of residence because it will make it darker, improperly ventilated, and less healthful; and will correspondingly damage the value thereof.</p> <p>“Plaintiff further says, that he and his predecessors in title in the ownership of the property so owned by him, have never executed and acknowledged an easement as to said open court as provided in Section 13 of said housing code.</p> <p>“Wherefore, plaintiff prays. that the defendant may be temporarily restrained from building or attempting to build, either by constructing' thereon or by altering the old buildings on said lot, so owned by him, any structure which will violate in any way any of the provisions of said housing code, as above set forth; and that, upon final hearing of this action, he may be permanently enjoined from doing each and all of the things above complained of, and for all other and further relief in the premises.”</p> <p>Defendant filed a general demurrer to the petition, which was sustained by the court of common pleas, and judgment was entered for the defendant, dismissing the petition.</p>

<p>Error to the Court of Appeals of Perry county.</p> <p>A petition seeking the straightening, widening and deepening of Rush Creek, a living stream of water running through Perry and Fairfield counties, was filed with the joint board of county commissioners of Perry and Fairfield counties February 8, 1913. It was signed by thirty-four persons. The prayer of the petition was granted and the ditch improvement was constructed. An assessment of $704.79 for the location and construction thereof was levied against the lands of the plaintiff in error, and this action was brought to enjoin the collection of that assessment.</p> <p>In the court of common pleas an injunction was granted. The case was thereupon appealed to the court of appeals, which court modified the judgment of the common pleas, holding valid $250 of the assessment levied and enjoining the collection of the remainder thereof.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The action for personal injury against the municipal corporation of East Cleveland was tried to a court and a jury, resulting in a verdict and a judgment against the city.</p> <p>Motion for a new trial was overruled, and error prosecuted to the court of appeals, where the judgment was affirmed.</p> <p>The petition in error, accompanied by the record, is filed in this court, predicated upon alleged errors at law in the trial of the case in the court of common pleas, concurred in by the court of appeals.</p> <p>The plaintiff below, Marie Wald, on the 5th day of June, 1917, was marketing. She came out of a delicatessen shop at No. 12606 Superior avenue, on the south side of the street, and started north across the sidewalk, with a market basket in one hand or arm and leading her small child with the other.</p> <p>She saw her husband on the other side of the street, and for that, or some other reason, determined to cross to the other side, although there was at that place no crosswalk or street intersection. Arriving at the edge of the pavement or sidewalk, she stepped off, and in some manner fell and was severely injured.</p> <p>The sidewalk was cement, and extended from the store front or building line, in a gradual and easy surface grade, to a line coincident with the point where she stepped off. At this point there was a perpendicular drop of 7\ inches, then a horizontal smooth surface or step 13 inches in width, and then another perpendicular drop of 5f inches to the paved roadway.</p> <p>The surface of the sidewalk in each direction from the portion in front of the shop was a continuation of the same apparent plan or grade. It appears that some distance east of the place where the accident occurred the outer edge of the sidewalk and the surface of the so-called step merged or joined, on the same horizontal plane.</p> <p>The charges of negligence made in the petition are that the cement walk in front of the shop was constructed in a careless and dangerous manner; that the sidewalk in front of the premises, at its easterly end, was flush and even with the curb; that it was so negligently and dangerously constructed that in front of the premises where the accident occurred it was 8 inches higher than the top of the curb; that a 12-inch step was constructed, which was not visible to one leaving the premises at No. 12606 Superior avenue to cross the said sidewalk and street; that the ordinance of the city establishing the grade of sidewalks provided that the top surface of the walk at all points should coincide with a liné beginning at the curb line at the established curb grade, and extending to the street line at right angles to the curb line with a rise of three-eighths of an inch to the foot; that the established grade of the sidewalk at the time and place of the accident was at the height of the present curb; that the sidewalk at the place of the accident was in an unsafe and dangerous condition for travel and was a nuisance; and that the city wholly failed and neglected to repair the sidewalk and to remove the dangerous obstruction and depression or to guard the same by a barricade or signal light.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The plaintiff in error brought suit in the municipal court of Cleveland against the defendant in error to recover the value of certain advertising which it published for the defendant in error.</p> <p>In its statement of claim the plaintiff alleged that the defendant was a corporation under the laws of Ohio, operating in Cleveland a moving-picture theater known as the Standard; that on. or about the 3d of December, 1918, the plaintiff éntered into a contract with the defendant to .furnish advertising space and publish advertising matter for the defendant in the Cleveland News, a newspaper owned and published by plaintiff; that by the terms of the contract the plaintiff agreed to insert the advertisement in the News in the space of twenty or more inches each week during the year beginning September 10, 1918, and ending September 9, 1919; and that defendant agreed to furnish copy for publication, subject to the approval or revision'of the plaintiff’s editorial department, and pay for its publication at the rate of 13¿ cents per line daily, payable at the end of each month. Plaintiff averred the rate of 13| cents per line daily was a reduced rate made to defendant in consideration of defendant entering into a contract and agreeing to advertise for the period of one year in the space of twenty or more inches each week;. that' on or about the 28th of March, 1919, the defendant refused to furnish plaintiff further advertising copy for publication in accordance with the contract; that defendant used 6806 lines of advertising between the 10th of September, 1918, and the 28th of March, 1919, which was at the reasonable, fair and actual value of $1701.50, computed at the rate of 25 cents per line, the rate actually earned for advertising used during such period of time at the current rates for advertising in the columns of the Cleveland News; and that plaintiff has paid $918.81, leaving a balance of $782.69, for which judgment is asked.</p> <p>In its answer the defendant admitted the making of the contract, but denied that the rate of 13 J cents per line was a reduced rate in consideration of entering into a contract for a period of one year for the space of twenty inches or more each week, and denied that it refused to furnish copy. It denied that $1701.50 was the value of said advertising, and admitted that it had paid the sum of $918.81, which was in full of all the advertising published.</p> <p>In a third defense the defendant averred that the contract was on the 28th of March, 1919, by mutual agreement of the parties, terminated as of that date.</p> <p>For a fourth defense the defendant claimed breach of the contract by plaintiff because of the provision in the contract that the publication of copy last furnished “shall continue until new copy is given,” and averred that plaintiff disregarded this provision of the contract and published nothing at all after said date, although it had such copy, and that defendant did on or about March 29, 1919, tender to plaintiff proper copy of an advertisement for publication and that plaintiff refused to publish the same and thereby breached the contract.</p> <p>In its reply the plaintiff denied all these defenses, and, as to the last defense, admitted its refusal to accept and publish the copy furnished March 29, 1919, because the editorial department of the plaintiff’s paper had not approved but had rejected said copy, in accordance with the terms of said contract, because such publication would reflect injuriously upon the credit of plaintiff’s newspaper as an advertising medium.</p> <p>This refusal continued and there was no further copy furnished or advertising published.</p> <p>The cause was tried to a jury and a verdict rendered in favor of the plaintiff, and the judgment entered on this verdict by the municipal court was reversed by the court of appeals, on error.</p>

<p>Error to the Court of Appeals of Hamilton county.</p> <p>Marguerite E. W. Smith brought suit for divorce against George Vivian Smith in the court of common pleas of Hamilton county. Smith was duly served with summons, but filed no pleading in the case and did not appear at the trial of it in person or by counsel. On March 19, 1920, the cause came on regularly for hearing before Judge Charles W. Hoffman. Oral evidence was offered by the plaintiff at the hearing and no defense or evidence was offered by the defendant; and “at the conclusion of the hearing of the evidence in said case, Judge Charles W. Hoffmann, as Judge of the Court of Common Pleas, Hamilton County, Ohio, announced and rendered his decision, granting a decree of divorce to the plaintiff, Marguerite E. W. Smith, on the said 19th day of March, 1920, from the defendant George Vivian Smith.”</p> <p>These facts are set forth in a petition for a writ of mandamus filed in the court of appeals of Hamilton county as an original suit by George Vivian Smith, the relator.</p> <p>Relator further averred in his petition in mandamus that the decree of judgment of divorce rendered by said Judge Charles W. Hoffman in said case on the 19th of March, 1920, was not spread upon the records and journals of the court of said Judge Hoffman.</p> <p>The petition then states that knowing that the decree had been granted to the plaintiff in the divorce proceeding, the relator, acting in good faith, was married on the 24th of March, 1920, at Elyria, Ohio.</p> <p>The petition further avers that on the 23d of June, 1920, the relator filed a motion to have said decree entered, and tendered a decree in writing decreeing a divorce to said Marguerite E. W. Smith, and that said motion came on for hearing on the 29th of June and was argued by counsel, whereupon the said Judge Hoffman against the protest of the relator dismissed and refused to enter said decree in said case, which was then pending in the court of common pleas; and relator alleges.that he has no other remedy in law or equity, and, therefore, prays for a writ of mandamus to compel Judge Hoffman to enter of record a decree of divorce as of the date of March 19, 1920.</p> <p>By his answer the defendant judge admits the filing by Marguerite E. W. Smith of the petition for divorce against the relator; that the relator was personally served and was in default for demurrer or answer to said petition. He further admits that on or about the 19th of March, 1920, the case came on for hearing before the defendant, as judge of said court; that oral evidence was offered by the plaintiff, and that the defendant made no defense and offered no evidence. The answer contains this further allegation:</p> <p>“Further answering this defendant denies that he announced or rendered a decision in said case No. 173511 granting a decree of divorce to the plaintiff Marguerite E. W. Smith from4said George Vivian Smith on the 19th day of March, 1920.</p> <p>“This defendant admits that on the 23d day of June, 1920, said George Vivian Smith filed a motion in said Court of Common Pleas, Division of Domestic Relations, asking that a divorce be,entered in favor of Marguerite E. W. Smith against the said George Vivian Smith; that said motion was held by the Court to be not well taken and was overruled.</p> <p>“Defendant for further answer says that on the 18th day of June, 1920, Marguerite E. W. Smith in open Court made an oral application to withdraw said cause No. 173511 from further consideration by the Court and for leave to dismiss her action at her costs; that said motion so made came on for hearing and arguments by counsel, and the Court being fully advised in the premises found the same to be well taken arid granted same and that on the 29th day of June, 1920, the Court ordered, adjudged and decreed that said cause No. 173511 in which the* said Marguerite E. W. Smith was plaintiff and George Vivian Smith was defendant be, and the same was dismissed.”</p> <p>The answer further alleges that the relator excepted to the judgment of the court dismissing the cause, and denies that relator has no further remedy at law.</p> <p>On the hearing of the mandamus proceeding in the court of appeals the defendant judge of the court of common pleas moved for a judgment on the pleadings. This motion was sustained by the court of appeals, and this proceeding is brought to reverse that judgment.</p>

<p>Error to the Court of Appeals of Franklin county.</p> <p>This action was begun in the court of common pleas of Franklin county, Ohio, by present defendant in error, Alonzo J. Douds, against present plaintiff in error, the Hartford Life Insurance Company, for an accounting of excess assessments alleged to have been demanded and collected of plaintiff by defendant, for a money judgment for the amount so found due, and for an order restraining defendant from demanding and receiving an amount in excess of $2.68 per assessment per $1,000 of insurance, and for an order restraining defendant from forfeiting or lapsing the certificate of insurance for non-payment of excessive assessments.</p> <p>The suit is based upon a policy of insurance issued by the defendant company to the plaintiff, a copy of which policy is attached to the petition and made a part thereof and reads as follows:</p> <p>“EXHIBIT A.</p> <p>“Certificate of Benefit not to</p> <p>“Membership. exceed $1,000.</p> <p>“No.- Age 45.</p> <p>“Safety Fund Department.</p> <p>“Sample Policy.</p> <p>“The Hartford Life and Annuity Ins. Co. “of Hartford, Connecticut.</p> <p>“In consideration of the representations, agreements and warranties made in the application here-for, and of the Admission Fee paid; and of the sum of Ten Dollars, to be paid to said Company, to create a Safety Fund, as hereinafter described, and of Three Dollars per annum, for expenses, to be paid as hereinafter conditioned and of the further payment, in accordance with the conditions hereof, of all Mortuary Assessments, does hereby issue this Certificate of Membership in its Safety Fund Department to Alonzo J. Douds, with the following agreements:</p> <p>“That "said Company will deposit said sum of Ten Dollars, when received, with the Trustee, named in a contract made with it (of which a copy is printed hereon), as a Safety Fund in trust for the uses and purposes expressed in said contract; and shall at the expiration of five years from July 1, 1879, if said Safety Fund shall then amount to Three Hundred Thousand Dollars, or whenever thereafter said sum shall be attained, make a semi-annual division of the net interest received therefrom by it, pro rata among all the holders of Certificates in force in said Department at such times,, who shall have contributed, five years prior to the date of any such .division their stipulated proportion of said Fund, by applying the same to the payment of their future dues and assessments; and that, whenever said Fund shall amount to One Million Dollars all subsequent receipts therefor shall be divided by the said Company in like manner as the interest. Said Company further agrees that if at any time, after said Fund shall have amounted to Three Hundred Thousand Dollars, or after five years from January 1, 1880, if that amount shall not have been attained before that date, it shall fail by reason of insufficient membership, or, shall neglect if justly and legally due, to pay the maximum indemnity provided for by the terms of any Certificate issued in said Department and such Certificate shall be presented for payment to said Trustee by the legal holder thereof, accompanied by satisfactory evidence, as hereinafter provided, of its failure to pay, after demand upon it within the time herein stipu-latéd for limitation of action, then it shall be the duty of said Trustee to at once convert said Safety Fund into money and divide the same (less the reasonable charges and expenses for the management and control of said Fund) among all the holders of Certificates then in force in said Department, or their legal representatives, in the' proportion which the amount of each of their Certificates shall bear to the amount of the whole number of such Certificates in force; and that in such event it shall file with said Trustee a correct list under oath, of the names, residences and amounts of the Certificates of all members entitled to participate in such division. The evidence referred to above to be either certification by said Insurance Company’s President or Secretary that a claim is justly and legally due and that payment thereof has been demanded and refused, or the duly attested copy of a final judgment obtained thereupon in any court of competent jurisdiction, satisfaction of which has been neglected or refused for the period of sixty days from this date. And said Company further agrees that so long as any Certificate of Membership in the Safety Fund Department shall remain in force, said Fund shall be in no wise chargeable or liable for any use or purpose except as above mentioned.</p> <p>“Upon the death of the member aforesaid while this Certificate is in force, all the conditions hereof having been conformed to by said member, and on the receipt by the President or Secretary of said Company of satisfactory proofs of such death, an assessment shall be made upon the holders of all Certificates in force in said Department at the date of such death, according to the table of graduated assessment rates, given hereon, as determined by their respective ages and the number of such Certificates in force at the date of such death, and the sum collected thereon (less ten cents per each member assessed for cost of collection) shall be paid — provided, however, that in no case shall the payment upon this Certificate in the event of such death exceed One Thousand Dollars .(less Fifteen Dollars as a post mortem contribution to said Safety Fund, if the deceased member shall not have fully contributed therefor as hereinbefore required, together with any balance due said Company) — to his estate, otherwise to his legal representatives within ninety days after the receipt of such proofs, upon presentation and surrender of this Certificate. All such payments to be made at the Home Office of said Company in lawful money of the United States.</p> <p>“And said Company further agrees that such Mortuary Assessment shall be in no wise chargeable or liable for any use or purpose other than for the payment’of Death Claims, except as above mentioned.</p> <p>“This Certificate is Issued by the Company and Accepted by the Member Upon the Following Express Conditions and Agreements:</p> <p>“1. Application Made Part of Contract. — The application on the faith of which this Certificate issues is hereby referred to and made part of this contract.</p> <p>“2. Of Payments. — The person to whom this Certificate is- issued agrees to pay to said Company Three Dollars per annum for expenses on the first day of the month after date of issue, and at every anniversary thereafter, so long as this Certificate shall remain in force; or by monthly or other pro rata installments of the same in advaiice for periods of less than a year. And also agrees to pay said Company, upon each Certificate that shall become a claim, an assessment in accordance with the Table of Graduated Assessment Rates, as printed hereon, within thirty days from day on which notice bears date. And further agrees to pay said Company the sum of, Ten Dollars towards Safety Fund, within sixty days from the date of this Certificate, which will entitle the holder hereof to all the advantages under said fund, as set forth in the agreement with the Trustees aforesaid, a copy of which is printed hereon and hereby made a part of this contract; all such payments to be made direct to said Company. But with the written permission of said Company attached hereto, said payment required to be made towards the Safety Fund, or any part thereof, may be postponed and made payable at such other times as shall be named in such permission: And, while the whole or any portion of such payment shall remain unpaid, said Company may apply any sum standing to the credit of this Certificate towards such payment.</p> <p>“3. Conditions of Acceptance. — The holder of this Certificate further agrees and accepts the same upon the express condition that if either the monthly dues, assessments, or the payment of the Ten Dollars towards the Safety Fund, as herein-before required, are not paid to said Company on the day due, then this Certificate shall be null and .void, and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid for protection while the Certification was in force, either from said Company or the Trustee of the Safety Fund; and that if a legal and just claim to benefit, under the terms of this Certificate, shall arise before said Safety Fund shall have accumulated to Three Hundred Thousand Dollars, or before January 1, 1885, and the sum collected on the assessment to be made in such event shall be paid over, as hereinbefore stipulated; or such claim shall arise after said Fund shall have accumulated to said amount, or after January 1, 1885, and this Certificate shall be fully settled and surrendered; or if any final division from said Safety Fund, as herein-before provided, shall be made by the Trustee thereof on account of this Certificate, then, in such cases, all liability of said Company and of its Safety Fund, on account of this Certificate, shall cease.</p> <p>“4. Mode of Giving Notice. • — • A printed or written notice, directed to the address of the member, as it appears at the time on the books of the Company, and deposited in the post office at Hartford, or delivered by an agent of the Company, shall be deemed a legal and sufficient notice for all purposes hereof. A transcript of the books of said Company, certified by the Secretary, showing such facts, shall be taken and accepted as conclusive evidence of the mailing of such notice, and of the facts aforesaid, as set forth in such transcript.</p> <p>“5. Change of Residence of Address. — In case of change of residence, post office address, occupation, or name of the member, or his or her legal representatives, it is agreed on the part of the member that notice thereof in writing shall at once be given to the Secretary of the Company. In case of failure to do so, the Company may proceed for all purposes as if no such change had been made.</p> <p>“6. Prohibitions. ■— If the member named in this Certificate shall be personally engaged in blasting, submarine operations, mining under ground, manufacturing poisonous or explosive chemicals, ‘breaking’ or ‘coupling’ on, and ‘making-up’ of, railroad trains, trading or living among savage tribes or nations, or shall be engaged in military or naval service (except in time of peace) without, in each of these cases, having first obtained the written consent of said Company, or shall use alcoholic or narcotic stimulants so as to produce intoxication sufficient to impair his or her health, or to produce delirium tremens, or to cause his or her death, or shall die by self-destruction — feloniously or otherwise— or while intoxicated, or from effects of drunkenness, or in consequence of a duel, or of keeping or visiting unlawful or disreputable resorts, or the violation or attempted violation of the laws of any Nation, State, Province or Municipality, or if there has been any concealment, misrepresentation, or false statement or statement not true made in the application on which this Certificate issues; or if the conditions herein shall not be in all respects observed and performed by the party to whom this Certificate issues; then, and in all such cases, this Certificate shall be null and void, and of no effect, and no person shall be entitled to damages, or the recovery of any moneys paid thereon.</p> <p>“7. Travel and Residence. —• The member herein named is at liberty to travel by railroad, sea, lake, or river, by all trains, first-class steamers, or sailing vessels, and to visit or reside in any portion of the world other than the residence named in the application herefor, where inhabited and civilized, and free from epidemics, wars, or internal dissensions.</p> <p>“8. Limitation of Action.'— It is expressly understood and agreed that no action shall be maintained, nor recovery had, for any claim upon or by virtue of this Certificate, after the lapse of one year' from the death of said member; and if no suit or proceedings for such recovery be commenced within one year from the date of death of said member it shall be deemed a waiver, on the part of all parties concerned, of all rights or claims under or by virtue of this Certificate, and as conclusive evidence against the validity of such claim, and this Certificate shall be null and void, and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid thereon. And it is further expressly agreed, in case any suit or proceeding shall be commenced for the recovery of any claim under this Certificate after the lapse of one year from the death of said member, or when the claim is otherwise illegal or fraudulent, that the person or persons so commencing suit or proceeding, on failure to obtain judgment therefor, shall pay to said Company the sum of two hundred dollars, as its reasonable attorney fees and damages, which sum shall be taxed as costs in the case, and shall be collected as other costs in the suit are collected.</p> <p>“9. Debts and Liens. — It is further agreed that this Certificate shall be charged with any and all amounts that may be owing from the member or beneficiary herein, or their assigns, to said Company at the time of the payment of this Certificate, and the Company reserves a lien thereon to secure the payment of any such indebtedness, and the-right to deduct and withhold the amount of any such account or indebtedness in payment thereof. And that in case any Country, State, or Municipality in which the member or his legal representative may reside shall levy a tax to be paid by said Company on account of any moneys collected hereon, said member agrees to pay the amount of such tax to said Company in addition to the payments herein-before named, as part of the payments needed to hold this Certificate in force, upon notice and demand by said Company, either in connection with the payments of assessments and annual dues ox-otherwise, as said Company may from time to time elect.</p> <p>“10. Assignments. — This Certificate shall not be assigned or transferred, unless notice and copy of this assignment be given to said Company, nor, unless a claim hereunder,- made by an assignee, be subject to proof of interest.</p> <p>“11. Powers of Agents. — Agents of the Company can not alter or waive any of the conditions of this Certificate, nor issue permits of any kind, and they are not authorized to make axiy indorse-ments hereon, nor to receive money or assessments, dues, or Safety Fund deposits maturing and payable after the issue of this Certificate.</p> <p>“In Witness whereof, the said Hartford Life and Annuity Insurance Company have, by their President and Secretary, signed and delivered this contract, at Hartford, Conn., this 2nd day of May, one thousand eight hundred and eighty-three.</p> <p>“(Signed) T. R. Foster,</p> <p> “President. </p> <p>‘[Seal]</p> <p>“(Signed) W. A. Cowles, Ass. Secretary.</p> <p>“(Agents of the Company are not authorized to make any indorsements on this certificate.)</p> <p>“Trustee’s Contract.</p> <p>“This agreement, made and entered into this thirty-first day of December, A. D. 1879, by and betweeii the Hartford Life and Annuity Ihsurance Company, a corporation organized under the laws of the State of Connecticut, and located in the City of Hartford in said State, party of the first part; and the Security Company, a like corporation also located at said Hartford, party of the second part; witnesseth:</p> <p>“Whereas, The party of the first part purposes to issue to persons contracting therefor, Certificates of membership in a special department of its business to be known as the Safety Fund Department, and, in .consideration of the sum of ten dollars to be received on each one thousand dollars of the amount of each and every such Certificate for the purpose of creating a Safety Fund, to insert therein sundry agreements with such persons in the following words; to-wit:</p> <p>“ ‘That said Company will deposit said sum of ten dollars, when received, with the Trustee, named in a contract made with it (of which a copy is printed hereon), as a Safety Fund in trust for the uses and purposes expressed in said contract; and shall at the expiration of five years from July 1, 1879, if said Safety Fund shall then amount to three hundred thousand dollars, or whenever thereafter said sum shall be attained, make a semi-annual distribution of the net interest received therefrom by it, pro rata among all the holders of Certificates in force in said department at such times, who shall have contributed five years prior to the date of any such division their stipulated proportion of said Fund, by applying the same to the payment of their future dues and assessments; and that, whenever said Fund shall amount to ‘one million dollars all subsequent receipts therefor shall be distributed by the said Company in like manner as the interest.</p> <p>“ ‘Said Company further agrees that if at any time, after said Fund shall have amounted to three hundred thousand dollars, or after five years from January 1, 1880, if that amount shall not have been attained before that date, it shall fail by reason of insufficient membership, or, shall neglect if and legally due, to pay the maximum indemnity provided for by the terms of any Certificates issued in said department, and such Certificate shall be pré-sented for payment to said Trustee by the legal holder thereof, accompanied by satisfactory evidence, as hereinafter provided, of its failure to pay, after demand upon it within the time herein stipulated for limitation of action, then it shall be the duty of said Trustee to at once convert said Safety Fund into money and distribute the same (less the reasonable charges and expenses for the management and control of said Fund) among all the holders of Certificates then in force in said department or their legal representatives, in the proportion which the amount of each of their Certificates shall bear to the amount of the whole number of such Certificates in force; and that in suGh'event it shall file with said Trustee a correct list, under oath, of the names, residences and amounts of the Certificates of all members entitled to participate in such division. The evidence referred to above to be either certification by said Insurance Company’s President or Secretary that a claim is justly and legally due and that payment thereof has been demanded and refused, or the duly attested copy of a final judgment obtained thereupon in any court of competent jurisdiction, satisfaction of which has been neglected or refused for a period of sixty days from this date.</p> <p>“ ‘And said Company further agrees that so long as any Certificate of membership in its Safety Fund Department shall remain in force, said Fund shall be in no wise chargeable or liable for any use or purpose except as above mentioned.’</p> <p>“Now, Therefore, the party of the first part, in consideration of the covenants and agreements hereinafter contained on the part of the party of the second part and in accordance with its agreement with its Certificate holders, as hereinbefore recited, does hereby appoint the party of the second part Trustee as aforesaid and covenants and agrees with it and its successors in said trust to deposit with said Trustee, as soon as received, the sum of ten dollars on each thousand dollars of the amount of each and every Certificate of membership issued by it in the aforesaid department until said Fund shall amount to one million dollars, to be by said Trustee held in' trust and accumulated as hereinafter agreed, and the income thereof, less the reasonable compensation and expense of said trust, to be paid over to the party of the first part, as hereinafter provided, to be used by the party of the first part in accordance with the hereinbefore recited agreements: And when said Trustee shall pay the income, as above, to the party of the first part, or, shall make any other payments from said Fund, as required by the terms' hereof, the liability of said Trustee on the amount so paid shall cease; it being understood and agreed that said Fund belongs to the party of the first part, .subject to the expressed trusts herein provided.</p> <p>“And the party'of the second part, for itself and its successors, in consideration of such deposits and of a reasonable compensation for its services, and the necessary expenses of managing said trust, covenants and agrees with the party of the first part and its successors and with each of the holders of the aforesaid Certificates that it will receive, hold, manage and dispose of all said deposits made with it by said Insurance Company, principal and income, in accordance with the uses and purposes specified in the hereinbefore recited agreements of the party of the first part with its Certificate holders; and shall at all reasonable times exhibit to the party of the first part all the securities and investments composing said Trust Fund; and shall render true statements of the account of said funds and the income thereof to any person entitled to request the same by reason of an interest therein; said party of the first part hereby agreeing to keep the party of the second part correctly informed of the names, addresses, numbers and amounts of'Certificates of all persons thus entitled.</p> <p>“That, as often as the sum composing such Fund shall be in amount sufficient to purchase one thousand dollars, par value, of United States Bonds, said Trustee shall make investments of such funds therein and register the same in its name as Trustee of the Safety Fund of the said Insurance Company, and, provided no default by the party of the first part as hereinbefore recited shall occur, shall accumulate said Fund and the income thereof (less the reasonable compensation and expenses), for five years from July 1, 1879, or until such time thereafter as such Fund shall amount to three hundred thousand dollars, par value, of the securities purchased for said Fund, when- the party of the second part will pay over to the party of the first part, semi-annually thereafter, all the further income from said Fund (less the accruing and unpaid compensation and expenses), to be by the party of the first part used for the purposes mentioned in the hereinbefore recited agreements: And, unless such default shall occur, will thereafter add to the principal of said Fund the deposits thereafter received from the party of the first part, exclusive of the income therefrom, until the whole Fund shall amount in such securities at their par value, to one million dollars: And-in the event of the failure or neglect mentioned in the hereinbefore recited agreements, will convert said Fund into money and distribute the same in accordance with the hereinbefore recited agreements, as soon as can reasonably be done after the necessary information of the proper persons and their shares shall have been obtained: Said party of the first part hereby agreeing to put the party of the second part in possession of the information required for the making of a proper distribution thereof as agreed with its Certificate holders.</p> <p>“All payments required hereby to be made to the party of the first part to cease upon the aforesaid failure or neglect of the party of the first part; and all payments required herein to be made to the Certificate holders by the party of the second part to be made at the office of said Trustee or of the successor in said trust.</p> <p>“The necessary expenses connected with the management of said Fund shall be limited to the ordinary commissions for purchasing or selling and transfer or' transmission of the hereinbefore mentioned securities, together with the cost of the stationery and postage used in replying to requests for information of the condition of said Fund and the actual cost of any judicial action needed to determine the legal status of said Fund: All other expenses to be included in and covered by such reasonable charge as shall be made for the compensation of the trusteeship, to be determined by the amount of time and labor involved in the execution thereof.</p> <p>“It is hereby mutually understood and agreed by both parties hereto that all the hereinbefore recited agreements of the party of the first part with the Certificate holders shall constitute the uses and purposes of the trust expressed herein. And it is hereby further understood and agreed that at such time as it shall be shown that all Certificates of membership issued by the party of the first part in its Safety Fund Department, have been legally settled and surrendered to it, or properly canceled in accordance with their terms, it shall be held and considered that the uses and purposes of said trust have been fully accomplished by said Insurance Company, and the balance of said Fund, if any, shall be paid over to the party of the first part.</p> <p>“And it is further understood and agreed that if said party of the second part shall, for any cause, fail to perform its duties as such Trustee as herein-before specified, or if, by reason of financial embarrassment of the party of the second part, or other cause, it shall be deemed expedient to remove said trust from its hands, then a new Trustee may be appointed, by the mutual nomination of said Insurance Company, and the then Insurance Commissioner of the State of Connecticut, to succeed to said trust, with all the duties and obligations herein imposed upon said original Trustee, and said party of the' second part shall surrender said Fund to such successor.</p> <p>“In Witness Whereof, the party of the first part has affixed hereunto the corporate seal of said Insurance Company and caused these presents to be signed by its President and Secretary.</p> <p>“And the party of the second part has hereto affixed its corporate seal and its President and Treasurer have hereunto set their hands.</p> <p>“Done in duplicate at Hartford in the State of Connecticut the day and year first above written.</p> <p>“Hartford Life and Annuity Ins. Co.,</p> <p>“By E. H. Crosby, President, and “[Seal.] “Stephen Ball, Secretary.</p> <p>“Security Company,</p> <p>“By Robert E. Day, President, and “[Seal.] / “William L. Matson, Treasurer.</p> <p>“Table of Graduated Assessment Rates for Death Losses for Every $1000, of a Total Indemnity of $1,000,000.</p> <p>Age Rate Age Rate Age Rate</p> <p>15 to 21 $0.65 35 $0.97 48 $1.35</p> <p>. 22 .67 36 1.00 49 1.40</p> <p>23 .69 37 L03 • 50 1.47</p> <p>24 .71 38 1.06 51 1.54</p> <p>25 .73 39 1.09 52 1.63</p> <p>26 .75 40 1.12 53 1.72</p> <p>27 .77 41 1.14 54. 1.81</p> <p>28 .79 42 1.16 55 1.92</p> <p>29 .81 43 1.18 56 2.03</p> <p>30 .83 44 1.20 57 2.15</p> <p>31 .85 45 1.22 58 2.32</p> <p>32 .88 46 1.25 59 2.50</p> <p>33 .91 47 1.30 60 • 2.68</p> <p>34 .94</p> <p>“These rates decrease in proportion as the total indemnity in force increases above one million dollars in amount, and are calculated so as to cover the usual expense for collecting.</p> <p>“Received of The Hartford Life and Annuity Insurance Company, of Hartford, Conn.,........... in full for all claims under this Certificate, No..... on the life of............, deceased.</p> <p>“................t, Beneficiary.</p> <p>“................., Beneficiary.</p> <p>“Witness......................</p> <p>[back of policy]</p> <p>“This Company has no agents authorized to receive money on Assessments, Dues, or Safety Fund.</p> <p>■ “No. 34501.</p> <p>“Safety Fund Department.</p> <p>“Certificate of Membership.</p> <p>“Benefit not to exceed $1000.</p> <p>“Issued by The</p> <p>“Hartford Life and Annuity Insurance Co.</p> <p>“Hartford, Conn.</p> <p>“Name, Alonzo J. Douds.</p> <p>“Agent,......................</p> <p>“Read carefully all the conditions of this certificate.</p> <p>“No person should be a party to a contract without knowing all its conditions. ,</p> <p>“After an Agent has delivered this Certificate, and collected the Admission Fee, no other payment connected with the indemnity under this Certificate must be made to the agent without the production of a receipt signed by the Company’s .Secretary.</p> <p>“Always give Number of this Certificate in writing</p> <p>to</p> <p>“Home Office.</p> <p>“E. J. Thomas, Gen’l Agent.</p> <p>' “Know All Men by These Presents, That the undersigned beneficiar.... named in the within Certificate, issued to..............in consideration of .................have sold, assigned and conveyed to............of County of............State of ............and to h. . heirs and assigns forever, all................right, title, and interest in the within Certificate of Membership, subject to the terms and conditions thereof.</p> <p>“I hereby constitute the said assignee or assignees its attorney, in my name, but to h.... own use, to take all legal measures which may be proper to keep in force said Certificate and finally collect all amounts due and to become due thereunder, with power of substitution.</p> <p>“Witness my hand and seal this........day of ............18....</p> <p>“.....................(Seal.)</p> <p>“If more than one beneficiary, they can sign below.”</p> <p>The petition in the common pleas court alleged that in 1898 the plaintiff reached the age of sixty years and that thereafter he was compelled to pay assessments in excess of the rate of $2.68, in violation of his contract of insurance. He therefore prayed as hereinbefore stated.</p> <p>To this petition, after demurrer and the overruling of the demurrer, the defendant answered, saving the question of jurisdiction, averring that it was conducting a department of life insurance upon the mutual or assessment plan, and that the policy of insurance in question was issued under such plan, and averring that instead of issuing a separate call upon each death claim defendant had .adopted the plan of quarterly assessments covering a number of death claims, averring that more than seventy assessments had been levied against the plaintiff, since he reached the age of sixty, and averring that the policy provides that “The rates decrease in proportion as the total indemnity in force increases above one million dollars;” defendant in its answer further avers that the assessment rate provided for in the certificate is the rate of assessment at each age therein stated to be levied for each individual loss of $1,000 upon the basis of one million dollars of outstanding insurance, and that -if the total insurance in force at the time of the levy of such assessment exceeds the sum of one million dollars the rate of assessment is to be proportionately decreased, and that where there is more than one death loss of $1,000 to be assessed for at the time of the levy of such assessment the rate and amount of such assessment is accordingly increased by the number per thousand dollars of such death losses. Defendant further avers that at the time of each of the assessments complained of in the petition the insurance in force was largely in excess of one million dollars and varied in amounts at the time of each assessment ; that at each assessment there was in excess of one death loss of $1,000 to be assessed for, and that the number of deaths so to be assessed for at the time of such assessment varied; that an inquiry as to the proper rate of assessment involved and required the ascertainment of the total amount of insurance or indemnity in force at the time each assessment was levied, as well as the number of deaths for which each assessment was levied; that such an accounting would require a complete and exhaustive visitation of the affairs of the defendant at its home office in Hartford, Connecticut, over a period cover - ing some eighteen years, and would be an interfei ■ 'ence with the internal management of defendant; that the payment of the assessments in excess of a rate of $2.68 by plaintiff were voluntary payments on the part of plaintiff; and that a large portion of the alleged causes of action set forth in the petition did not accrue within the six years next before the commencement of the action and are therefore barred by the statute of limitations.</p> <p>A reply was filed. The questions for the trial court were the jurisdiction, the interpretation of the contract of insurance, the amount of assessments paid in excess of the table of rates contained in the contract, the voluntariness of the payments and the application of the statutes of limitations,</p> <p>Upon motion the cause was referred to Honorable George B. Okey, to take an accounting and make report to the trial court.</p>

<p>Error to the Court of Appeals of Franklin county.</p>

For all practical purposes, as viewed by this court, these cases are substantially identical in principle, and vary so slightly as to the evidence that they will be decided together, as théy were argued together. The plaintiffs in error, Harry Black and Ward Logan,' were police officers on duty in the city of Akron on Saturday night, May 17, 1919.

This action was brought by The A. Bentley & Sons Company against the board of county commissioners of Clark county, wherein judgment was sought for $11,744.03, a balance claimed to be due on the contract price for the construction of a memorial building.

This cause originated in the court of common pleas in an action for partition. On final distribution of the fund, present plaintiffs in error attempted to charge the defendants in error with advancements made to the latter by one Albert Morris, deceased. The trial court found that such advancements were made, and out of the funds held for distribution charged the defendants with certain sums severally advanced to them by the decedent.

This action was begun in the court of common pleas of Jefferson county by Theodore Krnich to restrain the defendants from collecting from plaintiff the sum of $579.69, tax for trafficking in intoxicating liquors subsequent to the 1st day of June, 1919.

In Mandamus. This is an original action in mandamus. Relator is the county school superintendent of Ashtabula county. Defendant is the county auditor. The petition avers the appointment of relator as such superintendent on the 13th day of March, 1918, by the county board of education, under Section 4744 et seq., General Code, for a three-year term, at a salary of $3000 per annum.

The submission in the above casé was for the purpose of reviewing the judgments of the two lower courts for errors áppearing on the face of the record. It was an action- for personal injury, which resulted in the death of plaintiff’s decedent, a boy ten years of age, the killing of the horse which he was driving, and the destruction of the vehicle, by defendant’s passenger train, at a grade crossing in the city of Columbus, Ohio, near the west corporation line.

<p>Error to the Court of Appeals of Knox county.</p>

In Quo Warranto. This is an original action in quo warranto.

The Lima Gas Light Company filed with the Public Utilities Commission of Ohio a schedule of rates for the use of artificial gas, to become effective October IS, 1920. Prior to that date the city of Lima filed its complaint with the commission alleging that the proposed rates would be unjust and unreasonable and would provide more than was sufficient to give a proper return on the investment pf the utility.

The 'incorporated village of Hicksville filed a petition against Warren PI. Blakeslee, E. F. Armstrong, C. C. Battershell, Fred Clemmer, B. F. Griest, Charles D. Hilbert and William Purdy, alleging that the defendants other than Purdy were at the time of the transactions set forth in the petition the duly qualified and acting members of the village council of the village of Hicksville.

The plaintiff in error, William H. Bitner, was prosecuted in the police court of the city of Springfield, Clark county, Ohio, under an affidavit charging him with having in custody with intent to sell milk from which a part of the cream had been removed, and with not having the vessel containing it marked as prescribed by the penal statutes of Ohio.

This was a proceeding brought by Albert F. Knepper, as one of the executors of the will of William F. Knepper, deceased, to procure the construction of the will of said deceased. The petition set forth that the plaintiff and the defendant, Guy H. Knepper, were duly appointed executors of said last will and testament of the deceased, and contains a copy of the will which is as follows: “In the Name of the Benevolent Father of All.

<p>Criminal law — Charge to jury — Alibi — Reasonable doubt and burden of proof.</p>

In Mandamus. This is an original action in mandamus instituted in this court against Louis J. Huwe, treasurer of Hamilton county, E. S. Beaman, the auditor, and Charles F. Bauer, Martin Daly and A. E. Mitten-dorf as the commissioners of said county. The issue for our determination is made by a demurrer to the amended petition.

One John E. Gingery died on October 30, 1919. The common pleas and probate courts of Henry county having been combined under the provisions of Section 7, Article IV of the Ohio Constitution, Adda A. Heckerman, a daughter of the decedent, applied for letters of administration in the probate division of the'common pleas court, and on November 13, 1919, the Henry county court appointed her as administratrix of the decedent.

In Mandamus. This is a proceeding praying a writ of mandamus commanding the defendant auditor of Cuyahoga county to issue his warrant on the treasurer of the county requiring him to perform certain enumerated duties, imposed upon him by law.

In Mandamus. This is an original suit in mandamus, filed in this court March 18,1921.

The defendant below was charged by affidavit before the “Mayor’s court of the Village of Berea, County of Cuyahoga, Ohio,” in substance as follows : “That on or about the 18th day of December, A. D., 1920, in the County of Cuyahoga, State of Ohio, one Harry Marcinski, did then and there possess intoxicating liquor; that the possessing of intoxicating liquor as aforesaid by the said Harry Marcinski, was then and there prohibited and unlawful and contrary to section 3,” etc.…

<p>Error to the Court of Appeals of Pickaway-county.</p>

Charles Drake, prior to March 16, 1918, was employed by The American Railway Construction Company, and on or about that date, while engaged in the course of the duties of his employment as a section man and construction worker, was injured and killed. The American Railway Construction Company had complied with the workmen’s compensation law by paying the required premium into the state insurance fund.

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The defendant in error brought an action in the municipal court of Cleveland, Ohio, asking damages in the sum of $1037 for the loss of a trunk and contents left by him with the hotel company for storage under circumstances hereinafter stated. The cause was tried to the court without the intervention of a jury. The plaintiff recovered a judgment in the trial court for the sum of $500, which judgment was affirmed by the court of appeals on error. Error is now prosecuted to this court.</p> <p>As a basis for recovery Safier, an agent for the Triangle Film Company, alleged in his amended statement of claim that from April to August, 1917, he was a guest each week at the hotel of the defendant for a period of about four days; “that each week, when leaving the said Hotel for his business duties in other cities, the said plaintiff did call upon the officers, agents and employes of said defendant, to take the trunk and contents thereof, — belonging to plaintiff, — from the respective room and quarters occupied by plaintiff, to the usual, customary and designated place, in said Hotel, used and designed for the keeping and storage of trunks and the contents thereof.”</p> <p>He then averred that each week the defendant removed the trunk from his room to its customary place of keeping and storing trunks, giving him a receipt therefor, and that each week upon his return and again registering at the hotel the defendant upon delivery of the receipt would place the trunk in the room he was to occupy. Each time upon departing he would pay his bill, and nothing was asked or paid for storage of the trunk. About August 1, 1917, having been absent for three or four days from the hotel, he again returned, presented his receipt and was then informed by the defendant that the trunk and contents had been lost. He further alleged that the defendant neglected to take proper and reasonable care for the safekeeping of said trunk and contents and that it was guilty of gross negligence in that respect.</p> <p>The defense of the hotel company amounted to a general denial. The only witnesses in the case were the plaintiff himself and the assistant manager of the hotel. The evidence was undisputed that Safier was a guest at the hotel each week from April to August and that the trunk was lost. The plaintiff testified that in April, 1917, the first week that he was a guest at the hotel, he went to the assistant manager and stated to him, “I have a trunk in my room and don’t know how long I will be in town; I may be here once again, and may be here an indefinite period.” The plaintiff further testified: “I says, ‘Have you any way that you can take care of a trunk, or have I got to take this trunk in the small towns with me and bring it back with me?’ He says, ‘No, we have a big storage room, we will give you a’check for it, and when you come back give your check to the porter and get your trunk back.’ ” He also testified that each week, when leaving the hotel, the porter came up to his room and gave him a check for the trunk; that at the time he went away just previous to the loss of his trunk the usual procedure was followed; that upon his return, after discovery of the loss, he surrendered the check to the assistant manager; that he then asked the assistant manager what he would have to show that,he gave him the trunk check and, that the assistant manager answered “our head porter will give you a receipt for it;” and that the head porter, a Mr. Gibo, thereupon gave him a receipt for the check, which receipt read as follows: “Received from Morris Safier check for trunk No. 2600 left for storage at Hotel Statler. F. Gibo. 8/28/17.”</p> <p>The assistant manager testified that they had two storage rooms in the hotel for the storage of property of guests. He was asked: “Now, people who bore the relation that Mr. Safier did as traveling man, whatever that relation may be, from April to August, 1917, where were their trunks put after they checked out until they re-registered, did you have some special place for them?” And he answered: “If they were put in storage — if we got a storage check for them they were put in either 369 or the fourteenth floor.”</p> <p>The undisputed testimony discloses that Safier returned to the hotel each week from April to August, registering and staying at the hotel from three to four days each week, and spending the balance of the week in adjacent cities.</p>

<p>Error to the Public Utilities Commission of Ohio.</p> <p>This was'a proceeding before the Public Utilities Commission brought by the complainants in error against The Dillonvale & Smithfield Railroad Company, The Wheeling & Lake Erie Railroad Company, The New York Central Railroad Company and The United States Coal Company.</p> <p>The complaint alleged that The Dillonvale & Smithfield Railroad Company is a corporation organized in 1901 as a common carrier -from its connection with the tracks of The Wheeling & Lake Erie Company about one-half mile east of Dillon-vale, Ohio, thence northwardly a distance of about twenty-two miles; that it has constructed about four miles of railroad from its connection at Dillonvale to Bradley, at which place the coal mine openings of The United States Coal Company are located and the Bradley Store Company conducts a general merchandise business; that the other defendants, the Wheeling & Lake Erie and the New York Central companies, operate trains over the road of the Dillonvale & Smithfield railroad from Dillon-vale to Bradley under an existing lease; that the coal company, a corporation, owns the capital stock of The Dillonvale & Smithfield Railroad Company and the terminal facilities on said railroad at Bradley and access to and from the public highway; that Bradley is a village of about six or seven hundred people, and Dillonvale has a population of about two thousand, and that these complainants live and do business in and about Bradley and Dillonvale and have for shipment a large amount of goods and merchandise from Bradley and Dillonvale to and from points on the connecting lines of the Wheeling & Lake Erie and the New York Central'roads; that the right of complainants is denied by defendant companies to ship or transport or receive shipments over the lines of the defendant companies, or either of them, though often requested to furnish such service; that there has been established and now is a full line of rates or rate schedules established to and from Bradley over said Dillonvale & Smithfield company’s line and complainants have also been willing to comply with any rule or schedule with reference thereto; that the complaint is filed on behalf of complainants and the public generally and that by reason of the unlawful acts of the defendants the complainants and the public who desire to ship and'receive freight at Dillonvale and Bradley arb compelled to haul by wagon or truck from the vicinity of Bradley and Dillonvale, a distance of about eight miles, or to Smithfield station, a distance of about five miles. Wherefore, the complainants pray an order requiring the defendant companies to furnish shipping facilities and permit shipments to be made over their roads by the complainants and the public.</p> <p>The answer of The Dillonvale & Smithfield Railroad Company admits that it is a corporation organized under the laws of Ohio for the purpose of constructing and operating a railroad through and along the coal lands of the defendant coal company, the southern terminus being at or near Dillon-vale and near the main line of the Wheeling & Lake Erie company; that the railroad as constructed is about miles in length from the southern terminus to a point in Crow Hollow; that said line of railroad is operated by the Wheeling & Lake Erie company under an agreement made between the parties; and that the capital stock of the defendant, with the exception of shares owned by directors, is owned by the coal company. The other allegations of the complaint are denied.</p> <p>The answer of The New York Central Railroad Company admits that the Dillonvale & Smithfield company owns about four miles of road from Dil-lonvale to Bradley; admits that this defendant and the Wheeling & Lake Erie company operate trains over said tracks by virtue of contracts with the owner; admits that certain freight rates published by this defendant are in effect to and from Bradley on traffic carried over the Dillonvale & Smithfield tracks; and denies the other'essential allegations of the petition.</p> <p>The answer of The Wheeling & Lake Erie Railroad Company admits that it is a corporation under the laws of Ohio engaged in operating a line of railroad within the state as a common carrier and that by virtue of an, operating agreement it operates locomotives and cars over a certain track owned by the Dillonvale & Smithfield company, extending from a point of junction with the road of this company at Dillonvale to a point in Crow Hollow, about 2-J miles. It refers to the tariffs of this defendant on file with the public utilities commission of Ohio for a correct statement of the freight rates to and from the village of Bradley. The other allegations of the complaint are in substance denied.</p> <p>The answer of the coal company admits that The Dillonvale & Smithfield Railroad Company is a corporation organized under the laws of Ohio for the purpose of constructing and operating a line of road through and along the coal lands of this defendant, said road having its southerly terminus at or near the town of Dillonvale and near the line of The Wheeling & Lake Erie Railroad Company; that the capital stock of said railroad company, with the exception of the shares owned by the directors, is owned by this defendant coal company; that the road has been constructed as stated in the other pleadings; and that the line of railroad is operated by The Wheeling & Lake Erie Railroad Company under an agreement with said company. The other allegations of the complaint are denied.</p> <p>The matter was submitted to the commission upon the pleadings and evidence (much of which was in the form of depositions), on consideration whereof the commission found that the testimony did not disclose sufficient demand for the operation of regular transportation service'on the line of the Dillonvale & Smithfield railroad and the maintenance of stations at Dillonvale and Bradley to warrant the imposition of the expense of the maintenance of such facilities and service; that discrimina-tions had been practiced against certain receivers and shippers of freight located along the line of the Dillonvale & Smithfield railroad, in that said line of railroad had been used for the transportation of certain merchandise consigned to consignees in which the defendant, The United States Coal Company, is beneficially interested, while a similar service had been refused to other shippers and receivers of freight similarly situated; and the commission ordered that the three defendant railroad companies and the coal company be thereby notified to cease and desist from handling of shipments of merchandise from any receiver or shipper of freight' located along the line of the Dillonvale & Smithfield road so long as such, service is not available to all receivers and shippers of freight similarly situated, and further ordered that the prayer of complainants’ petition be, and is hereby, denied.</p>

<p>In Quo Warranto.</p> <p>The pleadings in this case are somewhat lengthy, and voluminous testimony has been taken under the direction of a master commissioner. We deem it unnecessary to enter upon an extended statement of the pleadings or an elaborate discussion of the testimony, because it is believed that the following undisputed facts are the basis of the controversy.</p> <p>The Western Reserve Finance Company is a corporation under Ohio laws, having issued and outstanding 3617 shares of stock. By its regulations its principal office is located at room 206 Ely' Block, Elyria, Ohio. Its regulations further provide that annual meetings of stockholders shall be held at 7 o’clock, P. M., on the second Tuesday in January each year, at the principal office of the corporation, special meetings to be' held at the same place as the annual meeting and to be called at any time by the president, or in his absence by the vice-president, or by the directors. Such meetings shall be called when requested by stockholders holding twenty-five per cent, or more of the capital stock. Notice of the time and place of qll annual and special meetings shall be mailed by the secretary to each stockholder ten days before the date the’reof. A quorum for the transaction of business at any meeting shall consist of a majority of shares of stock issued and outstanding, though less than a quorum may adjourn the meeting to a future time. Among the duties devolving upon the secretary by the regulations is that of issuing to all stockholders notice of stockholders’ meetings. The regulations provide for nine directors, divided into three classes, each to serve for a period of three years, three to be elected each year, and prior to the meeting of January, 1921, this provision in the regulations had been faithfully observed. Prior to that ■meeting cumulative voting had never been practiced in this corporation. There had been some dissension in the corporation and it was desired at this meeting by certain minority stockholders to exercise the right of cumulative voting in order t'o have representation on the board. The minutes of the meeting show that it was proposed by the presiding officer to elect three directors, one at a time, but that there was opposition to this method, which, after some discussion, resulted in a motion to adjourn the meeting at the call of the secretary, who should in the meantime ascertain from counsel the proper and legal method of procedure. The minutes also show that during the discussion the question was asked as A0 how the stockholders would be notified of the adjourned meeting and that the secretary stated that ten-days notice would be given to all stockholders and that the call would be-issued as soon as the proper method of election should be determined. The motion to adjourn was then submitted to vote and 2538 shares were voted in favor of adjournment and 907 shares against it, there being only 3584 shares represented at the meeting. Thereafter, without waiting for the secretary to, reconvene the adjourned meeting, two stockholders published in the Grafton Citizen, a newspaper published in .Grafton, Lorain county, a call for a meeting of stockholders to be held at 7 o’clock, P. M., February 8, 1921, at the office of T. A. Conway, room 401 Ely Block, Elyria, Ohio, for the election of directors and the transaction of other lawful business. No other notice was given of that meeting and at the time and place appointed it was attended by four stockholders, owning 88 shares of stock and holding proxies for 884 additional shares, making the total number of shares represented at the meeting 972. At that meeting nine directors were chosen each receiving 972 votes. Thereafter a majority of those elected at that meeting met on February 17, 1921, and elected the usual corps of officers for the corporation. On February 14, 1921, the secretary mailed to each stockholder a written notice of the. adjourned session of the annual meeting to be held on February 25, 1921, at 7 o’clock, P. M., at the office of the company, 206 Ely Block, Elyria, Ohio. At that meeting eighteen stockholders were present in person, owning 1119 shares, and proxies were presented for 2393 additional shares, making the total number of shares represented 3512. At that meeting a full corps of directors was elected, each receiving 3512 votes. This is a quo warranto suit originally filed in this court to inquire by what right the members of the board of directors elected at the meeting on February 25, 1921, claimed to hold their offices.</p> <p>The inquiry has been much simplified by a stipulation made during the course of taking testimony, as follows: “The claim of Relator to have the directors named in the petition inducted into office is based on the election of- directors at the stockholders’ meeting held on February 8, 1921, and if the Court should find that a valid election of directors did not take place at said meeting, then relator will concede that the defendants constitute the legal board of Directors of The Western Reserve Finance Company.”</p>

<p>Error to the Court of Appeals of Athens county.</p>

<p>Physician and patient — •Malpractice — Cause of action accrues, when — Statute of limitations — Section 11225, General Code.</p>

<p>Error to the Court of Appeals of Richland county.</p>

<p>Error to the Court of Appeals of Lucas county.</p>

<p>In Quo Warranto.</p>

<p>Error to the Court of Appeals of Montgomery county.</p>

<p>Rehearing — Divorce and alimony — Jurisdiction to award alimony — Challenged in contempt proceeding — Collateral attack.</p>

<p>Error to the Court of Appeals of Crawford county.</p>