Volume 72 — Ohio State Reports, New Series

<p>Trust created by will — Not terminated until trust accomplished, when — Remainder of estate to be equally apportioned— Among children of testator — But to be invested for them and not paid over — Power of devisees to will their bequests— In case of death of devisee without toill — Children of devisee to take, how — If no children, devise to go to original testator’s children — Question of title of original testator’s devisees —Law of wills and distribution of property..</p> <p>1. A trust created by will, the provisions of which are not repugnant to law or contrary to public policy, will not be decreed terminated where the objects of the trust have not been fully accomplished and their accomplishment has not been made impossible.</p> <p>2. The will of Edward Harwood provided that, the remainder of his estate (two-thirds) should be equally apportioned amongst his children, but should not be paid over to them, but be safely invested for their hehoof; and the annual income arising to each child be subject to her control, whether married or unmarried, and in no instance should the husband of any such child have any power or control over the principal or interest of such share; nevertheless, each to have power and authority to will and devise her portion of said inheritance in such manner as she shall see fit. In case of either dying without leaving a will her portion to be equally divided between h'er children who may survive her, or if she have no children surviving her, then the said portion to be paid to the testator’s children who may survive her, share and share alike. The children referred to were three daughters, one of whom has since deceased. Held:</p> <p>(а) That under this will the children of the testator took absolute title to the income but only an estate for life in the corpus of the estate, with power in each to finally dispose by will of the portion devised for her benefit, and with remainder in the children surviving such child, and, failing those, in the surviving children of the testator in case the corpus should not be disposed of by will</p> <p>(б) The will did not create a marital trust to be ended as to each daughter upon the decease of her then living husband.</p> <p>(c) Two of the children referred to in the will still living, the trust has not been subserved, but is an existing trust, and will continue as to each daughter during her life.</p>

<p>Christian Science treatment for a fee — Is practicing medicine within the meaning of the statutes — Regulating medical'practice — Such statute is not interference with right of conscience — Prohibitory legislation is constitutional, when— Section T of bill of rights — Police power of state — Freedom of worship — Constitutional law.</p> <p>1. The giving of Christian Science treatment, for a fee, for the cure of disease, is practicing medicine within the meaning of the statutes regulating such practice in this state.</p> <p>2. The statute making it a misdemeanor to give such treatment for a fee is not an interference with the rights of conscience and of worship, conserved by section 7 of the hill of rights, and is not on that ground unconstitutional.</p> <p>3. Legislation prohibiting anyone from treating a disease for a fee, excepting such persons as have prescribed qualifications, is a valid exercise of the police power of the state, and is constitutional.</p> <p>4. The act regulating the practice of medicine in this state exacts reasonable qualifications and excludes no one possessing them, and it is not void as discriminating against Christian Scientists in that it prescribes that anyone possessing certain qualifications may practice osteopathy and does not make especial provision for those who wish to practice Christian Science.</p>

<p>Property held by an executor or administrator of an estate— Cannot be attached or garnisheed, when — Section 55S1, Revised Statutes.</p> <p>1. Property or money held by the executor or administrator of an estate in his representative capacity, cannot be reached by attachment or garnishee process in an action against the heir or legatee before an order of distribution has been made.</p> <p>2. The provisions of section 5531, Revised Statutes, neither apply to nor authorize the service of process of garnishment on an executor or administrator.</p>

<p>Quo "Warranto.</p> <p>On leave granted for that purpose, the attorney general of the state brought this suit in quo warranto, challenging the right of The Toledo Home Telephone Company to occupy the streets, alleys, and other public ways of the city of Toledo with its poles, wires, etc., for the operation of a telephone system. The relator charges that the defendant company has abused its corporate -powers and authority, and has misused its franchises and privileges, and has usurped franchises, rights and privileges, not conferred upon it by law. The petition is quite voluminous, and many of its averments are omitted as not being material to the present controversy. It is sufficient to say in this statement, that on or about the twenty-third day of February, 1901, the telephone company presented to the council of the city of Toledo, for its adoption, an orr dinanee prescribing the mode of the use of the streets, alleys and other public ways of the city in the construction and operation of a telephone system which required the erection of poles, stringing of wires, etc. This ordinance was not passed by the council, and after waiting its action for considerable time without results, application in writing was made by the company to the probate court of Lucas county, alleging in substance that the city and the telephone company could not agree on the mode of using the streets, alleys and other public ways, for the construction and operation of the telephone poles, wires, etc., and the probate court was asked to determine the mode of such use, under the provisions of the statute on that subject. This written application was styled The Toledo Home Telephone Company v. The City of Toledo, and it contains an outline of what was desired and included the following as the schedule of rates to be charged the patrons of the company within the limits of the city: “Forty-four dollars per year for each business telephone on an individual wire with metallic circuit, within the city limits, subject to a reduction of one dollar per quarter, if paid quarterly in advance. Twenty-six dollars per year for each residence telephone on an individual wire with metallic circuit wherever located within the city limits, subject to a reduction of fifty cents per quarter if paid quarterly in advance. ’ ’</p> <p>The probate court, acting on the application, made an order which was spread upon its journal, prescribing the mode and manner in which the streets, alleys, and other public ways should be- used by the poles, wires, etc., of the telephone company in constructing and operating its system of telephones, and also carried into the order the schedule of rates to be charged its patrons above given. In due time the company filed in said probate court its written acceptance of the terms of the order, made the money deposit, and gave the bond required by the order.</p> <p>The petition in this case, after reciting the foregoing facts and the proceedings in the probate court, proceeds to allege, that “The Toledo Home Telephone Company, ever since the first day of September, 1903, eontinnonsly * * * offended against the laws of this state, grossly abused and misused its corporate authority, franchises and privileges and rights conferred upon it by law, and has unlawfully assumed and usurped franchises and privileges not granted to it, and has claimed the right to exercise and has exercised franchises, privileges and rights in contravention, and especially in the following particulars, to-wit:</p> <p>“First: That said defendant company did, on or about the first day of September, 1903, without any warrant or authority whatsoever, notify its subscribers that from and after said first day of September, 1903, it would charge for the use of its telephones, from new subscribers, the higher rate hereinafter set forth.</p> <p>‘ ‘ Second: That after said first day of September, 1903, as the contracts of old subscribers expired, it announced and insisted that it would require such subscribers to enter into new contracts for the-use of its telephones at such higher rate, to-wit, in the following sums: Fifty-two dollars per year for each business telephone on an individual wire with metallic circuit, wherever located within the city limits, subject to a reduction of one dollar per quarter if paid quarterly in advance. Thirty-two dollars per year for each residence telephone on an individual wire with metallic circuit * * * subject to a reduction of fifty cents per quarter if paid quarterly in advance.</p> <p>‘ ‘ Third: That said defendant # * * has established, charged, demanded and collected such increased rate for the use of its telephones for new subscribers, and from old subscribers whose contracts have expired after Septembér 1, 1903,. at said increased rate * * * and that said company refuses to enter into any new contracts * * # ' at any other rate * *</p> <p>The relator demands that the defendant show its right to so increase its rates, and that it be ousted from the continuance of the wrongs and offenses stated.</p> <p>The telephone company answered the petition at great length, but did not deny the rates fixed in its application to the probate court, and carried into its order which was accepted by the company. Nor did it deny that it had increased the rates as charged in the petition. But it denies that it has abused or misused its corporate authority, or its franchises, rights and privileges; and denies that it has usurped any franchise, right or privilege not granted to it, but on the contrary has complied with each and all provisions of law applicable to it.</p> <p>The answer proceeds to say in substance that when the company filed its application in the probate court and when that court made its order fixing the rates for telephones, it had prepared plans for an exchange of sufficient capacity to accommodate 3,000 subscribers and no more, and which was the extent of patronage then contemplated, and that on that basis it submitted the. rates contained in its application ; that thereafter its subscribers rapidly exceeded that number, requiring an exchange of much larger capacity, entailing large expense for its construction and operation; that its list of subscribers, when this suit was filed, was,about 7,000, and that at the first rates charged the service demanded could not be furnished. It is also alleged that there is a competing company in operation in Toledo without any restriction as to rates, and that if restricted to the rates approved by the probate court, it cannot enlarge its capacity and give the service demanded of it; and that the patrons of the company are satisfied with the increased rates because of the enlarged capacity and improved service.</p> <p>The answer finally pleads that the probate court “did not have the right or power to fix the rates which this defendant might charge its patrons, and that to enforce said rates would deprive defendant of its corporate rights and powers without any consideration therefor, and would cripple defendant in the exercise of .its corporate powers, and prevent it from carrying out and performing its duties to its patrons and to the public. ’ ’</p> <p>The case is submitted to the court on a general demurrer to the answer.</p>

The plaintiff, Annie J. Allen, filed a petition in the court of common pleas praying for a construction of the will of her late husband, Boutelle E. Allen, joining as defendants the executor thereof and the devisees and legatees therein named, the judgment here to be reviewed as rendered in said cause by the circuit court on appeal.

<p>Street railway company — Power to lease or purchase — Consolidation of companies — Sections 2505a and 2505b, Revised Statutes — Acts of May 1, 1891, and April 22, 1896, are valid— Laws of a general or special nature — Law of corporations— Constitutional law.</p> <p>1. The act of the general assembly entitled “An act to amend and supplement sections 2505a and 25056 of the Revised Statutes of Ohio, as enacted May 1, 1891, and amended April 18, 1892,” passed April 22, 1896 (92 O. L., 277), is constitutional, it being a law of a general nature which operates uniformly throughout the state and upon every individual corporation of the classes therein defined.</p> <p>2. A temporary act may be either general or special; and an act of a general nature which operates uniformly throughout the state and upon every individual corporation of the classes therein, defined, but which is by its terms limited in operation to a specified period of time, is a temporary general statute.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>Plaintiff’s actions below against these several defendants were begun in the superior court of Cincinnati, October 20, 1902. The petition in the first case named is as follows:</p> <p>“The plaintiff, Samuel A. Stevens, brings this action on behalf and for the benefit of himself and all others similarly situated and interested.</p> <p>“Plaintiff says that the defendant is a corporation organized and transacting business under the laws of the state of Ohio.</p> <p>“Plaintiff alleges that he delivered to the defendant company the sum of fifty (50) cents, upon a gaming and lottery contract under and pursuant to the terms of which contract, sums of money, uncertain in amounts, are offered as prizes, conditional and wholly dependent upon the happening of the uncertain event that the persons making the first, second, third and other nearest correct guess or guesses of the exact total vote cast for secretary of state of Ohio, at the November election, 1902, shall be entitled to receive said first, second, third and other prizes; that under the terms of said contract all persons making a guess were required to deposit with said defendant the sum of fifty (50) cents; that twenty-four (24) cents of said sum is retained by said defendant as the price of subscription to a newspaper belonging to said defendant; that the remaining twenty-six (26) cents of said sum is deposited with the sum to be paid out in prizes, as aforesaid; that under the terms of said contract, the person making the nearest guess, as aforesaid, shall receive one-tenth (1-10) of said prize fund deposited as aforesaid; to the second nearest, one-twentieth (1-20) of said fund as aforesaid; to the third nearest as aforesaid, one-fortieth (1-40) of said fund; to the fourth and fifth nearest each one-eightieth (1-80) of said fund as aforesaid; to the one hundred next nearest one-fifth (1-5) of said sum as aforesaid; the same being divided equally between said one hundred next nearest; to the two hundred next nearest one-fifth (1-5) of said sum, the same to be divided equally; to the four hundred next nearest, one-fifth (1-5) of said sum, the same to be divided equally; to the one thousand next nearest one-fifth (1-5) of said sum, the same to be divided equally.</p> <p>‘ ‘ That under the terms of said contract there were offered in all one thousand seven hundred and five prizes; that the amount of said prizes is conditional upon the happening of the uncertain event, to-wit, the number of persons who may make a guess; that all and each of said prizes offered, as aforesaid, is conditional and wholly dependent upon the uncertain event that the guess of plaintiff or some other persons who has paid defendant money and made a guess in whose behalf and for whose benefit the plaintiff prosecutes this suit, is nearer the exact total number of votes cast, as aforesaid, than the guesses of other- persons who have likewise entered into said gaming contract with defendant.</p> <p>“Plaintiff alleges that the defendant company received said sum of fifty (50) cents from plaintiff to the plaintiff’s use, and that there is now due the plaintiff from defendant the sum of fifty (50) cents.</p> <p>“Plaintiff further alleges that he is one of a large number of persons who have delivered money to the defendant under the terms and conditions of said gaming and lottery contract, and that all of said persons have delivered money to said defendant under the same terms and conditions under which plaintiff delivered said sum of fifty (50) cents to said defendant; that each and all of said persons and plaintiff have a general interest in and common right to the money or fund thereby accumulated in the hands of the defendant company; that said defendant company, in pursuance of said gaming and lottery contract, has accumulated a large fund of money amounting to about $200,000 or more, that said fund is composed entirely of payments and contributions by the plaintiff and all the other' persons in whose behalf this suit is prosecuted; that said fund equitably belongs to all said persons who have made guesses and paid money to the defendant under said gaming contract; that the persons who have made said guesses and entered into said contract with the defendant are very numerous, and their names are unknown to plaintiff, and it is impracticable to bring them before the court.</p> <p>“Plaintiff alleges thát the defendant, unless enjoined from so doing, will dissipate said fund by distributing the same as prizes, and to pay the expenses of continuing of said unlawful contest or otherwise, and that said fund will be wholly lost to this plaintiff and the class represented by him, and for whose benefit he sues, which will cause to them and each of them, irreparable loss and damages and occasion a multiplicity of lawsuits, and the plaintiff and each of said persons interested in said funds as aforesaid, are without adequate remedy at law.</p> <p>“Wherefore plaintiff prays that it be ordered, adjudged and decreed that the plaintiff recover from the defendant the sum of-fifty (50) cents; that each member of the class on whose behalf this action is prosecuted, recover from the defendant the amount paid to said defendant; that the defendant be declared a trustee of the fund hereinbefore mentioned, and be enjoined from dissipating it by distributing it as prizes, and by way of expenses or otherwise; that a full and complete accounting of said fund be ordered; that a receiver be appointed to take possession of said fund; that a referee be appointed to determine the names of the aforementioned class, and the amount paid defendant by each, and for such other and further relief as this court may. deem proper. ’ ’</p> <p>That against the Commercial-Tribune differs from the other in the allegation respecting the' subscription and the event on which the prizes are tó be paid, the amounts thereof, and the source from which payments are to be made. The uncertain event is the total vote to be cast for the secretary of state of Indiana at the election November 4, 1902, and the prize alleged to be promised to be given to the one coming nearest a correct guess of the total vote the sum of five thousand dollars, and others in the order of nearness down to two dollars, there being offered in all fourteen hundred and ninety prizes, all to be paid from the Company’s own funds.</p> <p>The uncertain event named in the petition against the Enquirer Company is the total vote cast for the secretary of state of Ohio at the election November 4, 1902, and there is no allegation respecting a subscription. The one making the nearest a correct guess of the total vote to be awarded twelve thousand dollars, and others in the order of nearness down to five dollars, there being offered in all four thousand and eighty-seven prizes; these also to be paid from the Company’s funds.</p> <p>To these several petitions demurrers were filed, of which the following is a copy:</p> <p>“The defendant demurs to the petition for that: 1. The court has no jurisdiction of the subject of the action. 2. The petition does not state facts sufficient to constitute a cause of action.”</p> <p>With the petitions there were also filed motions for the appointment of a receiver and a referee.</p> <p>Upon hearing the motions were overruled and the demurrers sustained. Thereupon, the plaintiff not desiring to further plead, the petitions were severally dismissed and judgment entered- for defendant. Error being prosecuted to the general term of the superior court the judgments of the special term were affirmed. The plaintiff brings error.</p>

<p>Error to the Circuit Court of Trumbull county.</p> <p>On the twenty-sixth day of June, 1903, the plaintiff in error, The Pittsburgh, Cleveland & Toledo Railroad Company, hereinafter referred to as the plaintiff, filed in the probate court of Trumbull county its petition against the defendants in error, Sarah K. Tod et ah, hereinafter referred to as the defendants, to appropriate certain property therein described upon which to construct a branch railroad.</p> <p>August 14, 1903, the probate judge, as required by section 6420, Eevised Statutes, heard the preliminary questions and determined them for the plaintiff.</p> <p>September 9, 1903, the jury returned a verdict assessing compensation and damages, and on the same day the defendants filed a motion for a new trial, setting forth as grounds therefor not only alleged errors on the trial, but also that on the preliminary hearing plaintiff had offered no evidence tending to prove its right to make the appropriation and that the probate judge had erred in finding and determining that the plaintiff had such right.</p> <p>On September 10, 1903, twenty-seven days after the preliminary hearing and before the motion for a new trial had been passed upon, the defendants filed a bill of exceptions containing the evidence offered on the preliminary hearing.</p> <p>September 24,1903, the motion for a new trial was overruled and judgment entered confirming the verdict, and the defendants filed a bill of exceptions containing all of the evidence, that offered on the preliminary hearing as well as that offered on the trial.</p> <p>On September 26, 1903, forty-one days after the preliminary hearing, but less than thirty days after the judgment of confirmation, the defendants filed a petition in error in the court of common pleas.</p> <p>The plaintiff filed two motions in the court of common pleas; one to strike the petition in error and the bill of exceptions from the files on the ground that the hill was not taken and signed according to law, and the other to strike from the petition in error so much thereof as related to the preliminary hearing.</p> <p>The court of common pleas, without passing on either motion, affirmed the judgment, and the defendants prosecuted error in the circuit court.</p> <p>In the circuit court plaintiff filed a motion similar' to its second motion in the court of common pleas.</p> <p>The circuit court overruled this motion and found that the probate judge erred in determining that the plaintiff had the right to appropriate, for the reason that there was no evidence offered on the hearing before him tending to prove that the president and directors of the plaintiff had acknowledged and filed with the secretary of state a certificate as required by section 3280, and that the probate court had on this ground erred in entering a judgment of confirmation, and that the court of common pleas had erred in affirming the judgment of the probate court, and reversed and set aside the judgments and the determination of the probate judge and the verdict of the jury and remanded the cause to the probate court “for a new preliminary hearing to be proceeded in according to law and the rights of said parties thereto.”</p> <p>Plaintiff prosecutes error in this court.</p>

<p>Policy of life insurance — Not to take effect until first premium paid — Agent of company issues policy to himself — Son-in-law of agent, stranger to the policy — Furnishes money to agent to pay premium — Agent does not account to the company for premium — Agent’s wife, the beneficiary, cannot recover on the policy.</p> <p>1. Where a policy of life insurance contains the provision that the policy “shall not take effect until the first premium shall have been paid to and accepted by the company or an authorized agent,” — the payment of such premium, unless waived, is necessary to put said policy in force.</p> <p>2. H., who was agent of a life insurance company, procured from said company the issuance to himself of a policy of insurance on his own life, which policy contained the above clause or provision as to prepayment of the first premium. Upon the delivery of said policy, H., being unable to pay said first premium, D., his son-in-law, who was a stranger to said policy, for the purpose of paying said premium for H., furnished or paid to H., himself, as agent for said insurance company, the amount due from the latter to said insurance company as and for said first premium. This transaction was without the knowledge or consent of the insurance company and no part of the money received by H. was ever accounted for or paid over by him to said insurance company.</p> <p>Held: H. could not act for himself and for his principal in the same transaction, and the payment to and receipt by him pf the money from D. was not a payment of the premium to the insurance company or its authorized agent, apd such payment was not a compliance with the condition of the policy and did,not bind the company or put said policy in force.</p>

<p>Error, to the Circuit Court of Fayette county.</p> <p>The plaintiff in error was plaintiff in each of the lower courts, and in her amended and supplemental petition filed in the court of common pleas, asked a recovery against the defendant as administrator of the estate of William. E. Willis on an account to be taken according to tbe averments of tbe petition. Tbe claim set up arises out of the provisions of tbe last will and testament of James M. Willis and tbe alleged wrongs and default of William E. Willis, executor of said will, who is also now deceased and of whose estate tbe defendant in error is administrator.</p> <p>Tbe following is a copy of tbe material part of the will of James M. Willis, as it appears in tbe amended and supplemental petition:</p> <p>“Item 8. I give and devise to my said son, James W. Willis, tbe sum of six thousand dollars ($6,000) for tbe purpose of being expended in general improvements on said 350 acres so devised to him. But whatever part of the said sum I may expend on said farm or pay to him to be expended thereon in my lifetime and take bis receipt therefor or charge to him on account, is to be taken and considered as ad-' vancements upon said sum of $6,000 and to be charged against tbe same by my executors in tbe settlement of said sum of $6,000. This item has no connection with said dwelling bouse and barn provided for in Item 7. All I may advance to him for tbe purpose of this item, if over tbe sum of $6,000, is to be considered under Item 9 below.</p> <p>“Item 9. All tbe balance and residue of my estate I give and bequeath to my three children, namely, William E. Willis, James W. Willis and Laura B. Willis, as follows:</p> <p>“One-third part thereof to my son, William E. Willis.</p> <p>“One-third part thereof to my daughter, Laura B. Willis.</p> <p>“The remaining one-third part I will and direct my executors hereinafter named, whom I nominate and appoint trustees for that purpose,, to invest in good first mortgage real estate securities.in Fayette county, Ohio, and pay the net annual proceeds thereof to my said son, James W. Willis, for and during -his natural life. The said six thousand dollars devised to my said son, James W. Willis, in Item 8 of this codicil, for the purpose of determining the residue provided for in this item, is to he considered a part of said residue and the sum to be retained and invested by said trustees is the one-third of the whole residue, including said $6,000 so to be paid to my said son for general improvements of said land. That is to say, my son, William R. Willis, and my daughter, Laura B. Willis, are each to have a sum equal to one-third of said residue and the said sum of $6,000 and my son, James W. Willis, to have the sum of $6,000 as above provided, and the said trustees to have a sum equal to each of William R., Laura B. less said sum of $6,000. If the said sum should be more than $6,000 as provided in Item 8, that excess to be considered. At the death of my son, James W. Willis, the principal of said money as devised to said trustees for the use of James W., I devise to the heirs of the body of my said son, James W. Willis, if he should have issue of his body. But if he should die without issue, then and in that case I will and devise said sum to the heirs of the body of my said son, William R. Willis, and my daughter, Laura B. Willis, one-half to each, but if my said daughter should die without issue, then I devise the whole of said funds to the heirs of the body of my son, William R. Willis. ”</p> <p>William E. Willis,- now deceased, was appointed by the will as one of its executors and relieved of giving a bond, and after the probate of the will he ■accepted the appointment and duly qualified, but .gave no bond.</p> <p>The testator, James M. Willis, departed this life ■on or about the sixteenth day of August, 1888.</p> <p>The substance of the other material facts contained in the amended petition appear in the opinion.</p> <p>The court of common pleas sustained a general ■demurrer to the amended petition and tendered judgment against the plaintiff, who took the case on ■appeal to the circuit court, where the demurrer was again sustained and judgment rendered that the defendants go hence without day and recover their •costs to be taxed. This proceeding is to obtain a reversal of the judgment of the circuit court.</p>

<p>Act of April 19, 1898 — Defining trusts and prohibiting them— Is a valid act — Authorizing punishment and imprisonment— Valentine-Stewart law — Constitutional law.</p> <p>The act of April 19, 1898, defining trusts and prohibiting them under penalties (93 O. L., 143) by a valid exercise of the police power, authorizes the punishment by fine and imprisonment of a person who is an active member of, and assists in carrying out the purposes of, an association formed to prevent competition in the sale of an article of merchandise.</p>

<p>Error to the Circuit Court of Ashtabula county.</p> <p>The plaintiff brought suit against The Protected Home Circle, alleging that the defendant entered into a written contract with his wife, Nell A. Tisch, the material parts.of which contract are as follows:</p> <p>MONTHLY PAYMENT.</p> <p>No. 15334. $.78 $1,000.</p> <p>The Protected Home Circle.</p> <p>SHARON, PENNA.</p> <p>Incorporated under the General Laws of the State of Pennsylvania, August 7, 1886.</p> <p> Benefit Certificate. </p> <p>This Certificate Witnesseth, That the Supreme Circle of the Protected Home Circle, in consideration of the representations and declarations made in the application of Nell A. Tisch, of Rock Creek, state of Ohio, for benefit membership therein, which application is filed in the office of the Supreme Secretary as part of this contract, and 78-100 dollars as the first monthly payment upon the same, on or before the delivery hereof, and a like amount to be paid by her to this Supreme Circle at the beginning of each month after the receipt of these presents, such payment to be made within thirty days after becoming due, and in case such payment is not made before the expiration of said thirty days this benefit certificate shall become null and void, and may not be thereafter revived except upon the filling out of and acceptance by the Supreme Accountant of a reinstatement blank furnished by the Supreme Circle, does promise and agree to pay to P. P. Tisch, husband, or the legal representatives of the member to whom this benefit certificate is issued the sum of one thousand dollars, pursuant to the provisions of the laws of the order governing the benefit fund and relating to the granting and payment of benefit certificates within ninety days after the receipt by the Supreme Circle of satisfactory evidence of the death of the member to whom this benefit certificate is issued, provided, always, that said member shall be in good standing in this order at the time of death. * * *</p> <p>I accept this certificate oh the conditions above named.</p> <p>Nell A. Tisch,</p> <p> Signature of Holder. </p> <p>Signed and delivered in our presence,</p> <p>C. E. Perris, President.</p> <p>H. L. Miller, Secretary.</p> <p>Rock Creek Circle No. 154, P. H. C.</p> <p>In witness whereof, the said Supreme Circle of the Protected Home Circle has caused its corporate seal to be hereunto affixed and these presents to be subscribed by its President and Secretary, at Sharon, Penna., this first day of August, A. D., one thousand eight hundred and ninety-four.</p> <p>(Seal of the Protected Home Circle)</p> <p>P. D. Stratton,</p> <p> Supreme President. </p> <p>J. W. Mason,</p> <p>(Local Circle Seal) Supreme Secretary.</p> <p>The petition alleged that the said Nell A. Tisch paid all dues according to the agreement and performed all other conditions to be performed by her, and at her death was in good standing in the order; that the plaintiff had made satisfactory proof of her death, and that more than ninety days elapsed after the delivery of the proof before the beginning of the-action, bnt that the defendant refuses to pay the sum due thereon; and asking judgment for the sum of one-thousand dollars with interest from December 20r 1900.</p> <p>The answer of defendant, after sundry admissions- and denials, alleges that it issued the said benefit certificate to the said Nell A. Tisch in consideration of the representations, declarations and statements contained in a written application of Nell A. Tisch, signed by her, which application is made a part of said benefit certificate and is so made by the terms of said application and by the terms of said benefit certificate; that the said application, among other things, contained the following agreement, to-wit: “I agree-to make punctual payment of all dues and monthly payments for which I may become liable and conform in all respects to the laws, rules, and usages of the order now in force or which may hereafter be-adopted by the same.” Attached to the report of the medical examiner and referred to and made part, of said answer was an agreement signed by. said Nell A. Tisch, which was in part as follows: “I do hereby agree that compliance on my part with-all the laws, rules, regulations and requirements,, now in force or that may hereafter be enacted by the association, is the express condition upon which I am to be entitled to participate in the beneficiary fund to the amount named in the constitution and laws of the association.” The said answer also-set out certain parts of the charter under which the-defendant was incorporated, as follows:</p> <p>“Article IV. The term for which said corporation shall exist shall be -unlimited.</p> <p>“Article V. Said corporation shall have power to institute a Supreme, and such State, District and Local Circles as may he deemed necessary in accordance with its constitution and laws; also to draft a constitution and laws for their government which shall determine the time, place and manner of the election of officers, their number, names and terms of service; the reception of members, their rights, privileges, obligations, duties, dues, fees and penalties; the right to control all funds raised for the prosecution of its work in accordance with its laws, to determine the qualifications of its own members, and also the right to have and use a common seal.</p> <p>“Article VI. The business, property and affairs of the said corporation shall be under the general control and management of a board of directors and such other officers as may be provided for in the bylaws, as provided in the act of assembly and to be chosen as therein provided.”</p> <p>And also the constitution and laws of the defendant which were in force at the date of the application by Nell A. Tisch as aforesaid, which are as follows:</p> <p>“Constitution and Laws or The Protected Home Circle.</p> <p>“ARTICLE I. COMPOSITION AND DIVISION.</p> <p>“Section 1. Composition. The Protected Home Circle shall be composed of all of its members, duly received and in good and regular standing.</p> <p>“Section 2. Division. This Order shall be divided into Supreme and Local Circles, whose powers, privileges, obligations and duties are set forth under their respective constitutions herein contained.</p> <p>“Constitution op the Supreme Circle.</p> <p>“ARTICLE II. NAME, JURISDICTION, POWERS, ETC.</p> <p>“Section 1. Name. This body shall be called The Supreme Circle of the Protected Home Circle.</p> <p>“Section 2. Jurisdiction. This Circle shall have jurisdiction over all such Local Circles as may be instituted through its influence, and governed by its laws, wherever located, and the term of its existence shall be perpetual.</p> <p>“Section 3. Powers. This Circle shall have power to institute such Local Circles as may be deemed necessary in accordance with the constitution. Also to draft constitutions and laws for their government, which shall determine the time, place, and manner of their meetings and the election of their officers; their number, name and terms of service; the reception of members, their rights, privileges, obligations, duties, dues, fees and penalties. The right to control all funds raised for the prosecution of its work in accordance with its laws; to determine the qualifications of its own members, and also the right to have and use a common seal.</p> <p>“Section 4.' Membership■. The membership of this Supreme Circle shall comprise the original incorporators, during their membership in the order, and such faithful Deputy Supreme Presidents and other members of the order as shall be chosen by a two-thirds vote of the members present at any annual meeting, together with such regular representatives as are provided for in section 5 of this article.</p> <p>“Section 5. Representatives. Each Local Circle comprising one hundred (100) or more beneficial members shall he entitled to send one (1) male representative to the Supreme Circle, who, when he has received the degree of protection according to the ritual adopted by this body, whose provisions are hereby made authoritative, and in which all of the official business of the Supreme Circle must always he transacted, shall he entitled to a seat in the Supreme Circle, participate in its discussions and have the same privileges as any other member of the Supreme Circle except tó vote for the officers and such amendments to the constitution as refer to the election of officers; and when he shall have served his Circle by his personal presence as its representative for three consecutive years he shall, by virtue of such service, become a member of the Supreme Circle with the same rights of voting, holding office, etc., as any other member or representative, except mileage and per diem..</p> <p>“ARTICLE X. BY-LAWS AND AMENDMENTS.</p> <p>‘ ‘ Section 1. By-Laws. This Supreme Circle may, at any regular session, adopt such by-laws, rules of order and order of business as may he found necessary for its government and control, and change the same by a two-thirds vote of the members.</p> <p>“Section 2. Amendments. This constitution, and the constitution of Local Circles, may he altered or amended only by the Supreme Circle at a regular annual session. ’ *</p> <p>And that at the tenth regular and first biennial session of the Supreme Circle of the Protected Home Circle held in pursuance of the laws»of the Protected Home Circle in the city of Detroit, in the state of Michigan, on May 18, 19 and 20, 1897, section 13 of article 11 of the constitution and laws of the Protected Home Circle was amended so as to provide and read as follows:</p> <p>“article si. benefit certificates.</p> <p>“Section 13. Suicide. The benefit certificate issued to a member shall be void and all benefits thereunder shall be forfeited in case the insured shall die by suicide, felonious or otherwise, sane or insane, or by his own hand, sane or insane. Provided, that in such case there shall be refunded to the beneficiary named in said certificate the amount of all payments made, together with interest thereon at the rate of 3 per cent, per annum.”</p> <p>It was also alleged that the proofs of the death •of the said Nell A. Tisch, as submitted, signed and sworn to by the plaintiff and attending physician, show that her death was caused by a pistol shot fired purposely by herself, with suicidal intent.</p> <p>The reply of the plaintiff admits the proofs attached to the answer to be a correct copy, and admits that the suicide by-law, as set forth in the answer, was passed by the Supreme Circle at its meeting in Detroit in 1897 as alleged in the answer; admits that the death of said Nell A. Tisch was caused by a pistol shot fired by her own hand with suicidal intent, and denies every other allegation, and statement in the answer. For further reply the plaintiff says that when said Nell A. Tisch so fired said shot she was insane and irresponsible, and that at the time said application was made and said benefit certificate accepted by said Nell A. Tisch there was no rule, bylaw, or other provision of the Protected Home Circle making said certificate void if death should be by-suicide. It is also alleged in the reply that no notice or knowledge of any change or attempt to change the rules, by-laws or constitution of the defendant in regard to suicide or other matters mentioned was ever given the insured in her lifetime or to the plaintiff until after her death, and no consent or agreement to change said contract was ever given by the holder of said benefit certificate or by the beneficiary named in the same. It is also alleged in'the reply that at the meeting of the said Supreme Circle held in Canton, Ohio, May, 1895, which was after the issuing of said benefit certificate, said Supreme Circle changed section 2 of the constitution and laws of the Protected Home Circle mentioned in the answer to read as follows: ‘1 This order shall be divided into Supreme, Grand and Local Circles, whose power, privileges, obligations and duties are set forth under their respective constitutions herein named,” and changed sections 2, 3 and 5 of article 2, quoted in the answer, to read as follows:</p> <p>“Section 2. This Circle shall have jurisdiction over all such Grand and Local Circles as may be instituted through its influence, and governed by its laws wherever located, and the term of its existence shall be perpetual.”</p> <p>“Section 3. This Circle shall have power to institute such Grand and Local Circles as may be deemed necessary in accordance with the constitution.” (Balance of the section the same as quoted in answer.)</p> <p>“Section 5. Every Grand Circle shall be entitled to send one beneficial member as a representative to the Supreme Circle for the first five hundred members or less, and an additional representative for each additional one thousand members over and above.the first five hundred as shown by the books of the Supreme Circle on the fifteenth of December preceding the session of the Grand Circle, which representative shall have the same rights of voting, holding office, etc., as any other member of the Supreme Circle while serving as such representative; provided that after the membership of any Grand Circle’s jurisdiction reaches 5,500, the basis of representation over and above that shall be one additional representative for each additional 2,000 members; and provided this amendment does not change the relation of any who are already members of the Supreme Circle.</p> <p>“Section 7. Representation in the Grand Circle. Every Local Circle within the jurisdiction of a state, province or territory, and comprising twenty-five or more beneficial members, shall be entitled to send one representative to the Grand Circle and one additional representative for each additional one hundred members above the first hundred, such representative to be a beneficial member.”</p> <p>It was also alleged that the Supreme Circle which met at Detroit in May, 1897, and which passed the suicide by-law, was entirely composed and made up in accordance with section 4 as quoted in the answer and section 5 as changed at Canton and not according to said section as it was then said benefit certificate was issued. Also that by the terms of article 5 of the charter of said association, the power to enact constitutions and laws for the government of all circíes instituted by said association is vested in the corporation, and that at the time said application was made and said benefit certificate was issued and accepted by said Nell A. Tisch, and at all times since said date the corporation has been composed of all its members duly received and in good and regular standing. It is denied in the reply that any amendment to the laws, rules, regulations or usages of the defendant in regard to suicide was ever made, passed or adopted by said corporation in any other way or manner than as stated in the answer.</p> <p>The defendant demurred to the reply for the reason that the facts stated therein are not sufficient in law to constitute a defense to the answer of the defendant. This demurrer was sustained by the court of common pleas, and the plaintiff not desiring to plead further, and both parties waiving a jury, the cause was submitted to the court upon the pleadings and the exhibits attached thereto, viz., the benefit certificate and the application and without any further evidence. On consideration of which the court found the issues joined in favor of the defendant and that the plaintiff is not entitled to recover thereon any other amount than the amount paid by her upon said certificate, with interest at three per cent, to-wit: the sum of eighty-five dollars, and rendered judgment , accordingly.</p> <p>Motion for a new trial was made and overruled, and a bill of exceptions taken, and upon a petition in error in the circuit court the judgment of the common pleas court was affirmed, and this proceeding is prosecuted to obtain a reversal of the judgments of both the lower courts.</p>

<p>Contest to set will aside — As lost or spoliated will — After probate record introduced by defendant — Burden remains upon plaintiff to establish will — Shifting of the burden of proof — Not error for court to charge that burden is upon plaintiff, when —Law of wills — Question of evidence.</p> <p>1. In the trial of a contest to set aside a will admitted to prohate by the probate court as a lost or spoliated will, after the probate record has been introduced by the defendant, the burden remained upon the plaintiff to establish that the will so admitted to probate and record is not the last will of the deceased, and such burden does not shift to the defendant upon proof by the plaintiff tending to show that the will was, shortly before his death, in the custody of the testator and could not be found among his effects shortly after his decease.</p> <p>2. In such case, where the allegation of the petition is that the paper so admitted to probate and record is not the last will of the deceased; that the testator in his lifetime revoked his will by destroying it, and that said will was not lost or spoliated after his decease, and the ■ proof of the plaintiff tended to show only that the testator did himself destroy the will and that it was in his custody shortly before his decease and could not be found shortly after, it is not error for the trial court, as part of a charge which in all other respects gives correct rules of law applicable to the case made by the evidence, to charge the jury that the burden is upon the plaintiff to establish that the paper writing is not the testator’s last will, and that the plaintiff must establish, by a preponderance of the evidence, that the testator did during his lifetime destroy the will with the intention of revoking it.</p>

<p>Siding constructed by a railroad company to a factory — At the expense of and for the benefit of the factory — May not be maintained by the railroad, when — License revocable • at option of licensor — Law of contracts.</p> <p>A siding or switch constructed by a railroad company from its road to a manufactory at. the expense and over the land of the latter, solely for its benefit and for the sole purpose of affording it facilities for receiving and shipping freight, and under a written agreement silent as to the length of time it is to remain, may not be maintained by the railroad company against the objection of the owner of the manufactory; the agreement, so far as the right of the railroad company is concerned, being merely a license revocable at the option of the licensor or his grantee.</p>

<p>Error to the Circuit Court of Stark county.</p> <p>Catharine Loftis, who was the wife of the defendant in error, John Loftis, on May 9, 1898, purchased from the plaintiff in error, the Pennsylvania Company, at its ticket office in Alliance, Ohio, an excursion ticket from Alliance to Columbus and return. The ticket issued to her was a special excursion coupon ticket containing four coupons, and was in form as follows:</p> <p> </p> <p>After procuring the ticket she -boarded an excursion train at Alliance on the Pennsylvania lines and entered upon her journey to Columbus. The Pennsylvania Lines extended only from Alliance to Orr-ville. When the excursion train reached Orrville the coaches of said train, including the one in which said Catharine Loftis was a passenger, were switched to the track of the Cleveland, Akron & Columbus Railway, a connecting line, over which line they were then run from Orrville to Columbus. As the train was entering the city of Columbus it was, by reason of the spreading of the track, derailed, several of the coaches were overturned and broken and several of the passengers were injured, one person being killed. Among those injured was Catharine Loftis. Thereafter, to-wit, on April 22, 1902, her husband, John Loftis, the defendant in error herein, brought an action in the court of common pleas of Stark county, Ohio, against the plaintiff in error, the Pennsylvania Company, to recover damages for the loss of the services of his said wife, Catharine Loftis, and to recover for doctor bills incurred and paid by him for her in consequence'of the injuries sustained by her in said accident. The petition filed by him in said action contained the following averments with respect to the contract to carry, alleged to have been made by the Pennsylvania Company with said Catharine Loftis, to-wit:</p> <p>On or about the eighth day of May, 1898, one Catharine Loftis, then and now the wife of this plaintiff, entered into a contract with the defendant, whereby the defendant, in consideration of the sum of two dollars ($2.00), to it paid, thereby agreed to accept said Catharine Loftis as a passenger on its cars and convey her as snch passenger the entire distance, from the city of Alliance, Ohio, to the city of. Columbus, Ohio, and return, Over the lines of the defendant,, the Pennsylvania Company, and said 0 Catharine Loftis was to. he conveyed the entire route in the cars of the defendant without any change of cars whatever.</p> <p>On or about the eighth day of May, 1898, in pur-. suance of said contract, said Catharine Loftis, purchased and paid the defendant for a ticket for the entire trip from Alliance, Ohio, to Columbus, Ohio, and return, over the defendant’s lines, and on said date Catharine Loftis took passage in defendant’s cars as designated by the defendant for the purpose of said trip, and the defendant thereupon undertook to convey plaintiff from said city of Alliance to said city of Columbus and return in its cars, and over its lines.</p> <p>For answer, the Pennsylvania Company, after admitting its corporate capacity and that it was a common carrier of passengers, denied each and every other allegation in plaintiff’s petition contained. The case was submitted to a jury and resulted in a verdict and judgment in favor of the plaintiff, John Loftis, for $300. This judgment was affirmed by the circuit court. To reverse this judgment of affirmance the Pennsylvania Company prosecutes error.</p>

<p>Error to the Circuit Court of Stark county.</p>

On and before the eighth day of September,' 1900, the defendants in error were the owners and in possession of a brown horse (gelding), called Fred S., and known as a race horse by that name, which the owners alleged was worth the sum of $1,200.

<p>Stream, of water — In city corporation — Used for open sewer for twenty-one years — Effect of rights, of riparian owners— Municipal corporations.</p> <p>When a part of a stream of water, being wholly within a municipal corporation so that none but its residents are thereby affected, is generally devoted to the purposes of an open sewer for more than twenty-one years, as against a riparian owner who contributes to and acquiesces in such use, it becomes charged with a servitude authorizing its like use by other riparian owners. (Mansfield v. Balliett, 65 Ohio St., 451, distinguished.)</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>This is an action to recover damages for injuries to the defendant in error by falling into a defectively covered coal hole in a sidewalk. At the close of the plaintiff’s testimony in the court of common pleas, on motion by the counsel for the city, the court directed the jury to return a verdict for the defendant, which was accordingly done and judgment was rendered on the verdict for the defendant, the plaintiff in error here. On the trial the plaintiff offered to prove by a witness, one Mary Pauli, that, a few days before the plaintiff was injured, the witness fell into the same placé and was hurt, and that a policeman came along and she called his attention to the hole. When the witness was asked to state the conversation with the policeman and what took place at that time, the counsel for the city objected and the court sustained the objection and instructed the jury to disregard whatever the witness had said in relation to a policeman. The plaintiff’s counsel stated that if permitted the plaintiff expected to prove that a policeman came there just after the witness got out of the hole, and ■ she told him that she stepped on the cover of that hole and that it tipped up and slid out of place and she fell in the hole; and that thereupon the policeman went into the building in front of which the coal hole was and a man came out with him and was shown the coal hole with the cover off, by the policeman, and by him was told that he must make it secure, and that the man said to the policeman that he could not fasten it because the fastening was broken. Thereupon the plaintiff offered in evidence rule No. 150 of the rules and regulations of the police force of the city of Cleveland, counsel for the defendant conceding in open court that the said rule was one of the rules and regulations of the police force of the city of Cleveland and that it was in force on June 25, 1895. Said rule is as follows:</p> <p>“He shall note all street and sidewalk obstructions, all defects therein from which accidents may occur, removing them when practicable, and when necessary, and no light is furnished, place a good and sufficient light, so that obstructions can be plainly seen; all places for which temporary permits are granted for building, or when openings or excavations are being made, and not suffer them to be continued without the proper permits being granted, authorizing the same, and shall cause suitable accommodations to be provided for the public travel; all coal holes being left exposed or insecure; all street lamps not lighted at proper time or too early extinguished, when not clean, or not giving sufficient. light; all wooden buildings erected contrary to law, or any building defectively built or becoming unsafe; or where any noisome, dangerous or unwholesome trade is carried on; and all nuisances, or violations of the health ordinance; and all other matters relating to the safety, health or convenience of the public, or to the interests of the city, and in all cases of complaint by citizens, with residence of. complaint, shall make report thereof. ’ ’</p> <p>The defendant objected to the admission of said-rule as evidence, because the same is incompetent and irrelevant, which objection was sustained by the court. For the exclusion of the proffered evidence aforesaid and for directing a verdict for the defendant, the circuit court reversed the judgment of the court of common pleas and in this proceeding the city seeks the reversal of the judgment of the circuit court and the affirmance of the judgment of the court of common pleas.</p>

<p>Error to the Circuit Court of Belmont county.</p> <p>The defendant in error, Ross Borham, was convicted and sentenced upon his own confession, before the mayor of the city of Bellaire, Belmont county, on a charge of keeping his saloon open on Sunday. Habeas corpus was prosecuted to the court of common pleas of that county on the part of Borham, and he was remanded to the custody of the officer. Upon error to the circuit court the judgment of the common pleas was reversed. The state brings error.</p>

The issues of fact raised by the pleadings in this case present two questions of law, one with respect to the effect of a discharge in bankruptcy upon a decree for alimony, and another respecting the effect upon such decree of failure to issue execution for more than five years.

<p>Error to the Circuit Court of Lucas county.</p> <p>May 6,1902, the Toledo Railway & Terminal Company, a railroad corporation building a railroad in the city of Toledo, commenced proceedings in the probate court of Lucas county to appropriate the right to cross with its railway tracks the railway tracks and right of way of the Wheeling & Lake Erie Railroad Company in three places; first, with its main line; second, with one of its spur tracks", both east of the Maumee river; and third, with one of its spur tracks west of the river. The jurisdictional questions were determined in favor of the expropriator and the verdict of the jurf assessing compensation and damages was confirmed. Thereupon, on November 24, 1902, the Wheeling & Lake Erie Railroad Company, plaintiff, brought the present suit in the court of common pleas of that county for an injunction to prevent the Toledo Railway & Terminal Company, the defendant, from taking possession of the property and from constructing one of said crossings. The petition is too lengthy to be set out and the following summary of it made by plaintiff’s counsel is sufficient.</p> <p>The first cause of action in the petition alleges: That the plaintiff owns and operates about four hundred miles of railroad, and that in the city of Toledo, its northern terminus, it has three yards, one on the west side of the Maumee river known as “Toledo” yard, and two on the east side of that river known respectively as “Homestead” and “Ironville” yards. These two yards are in close proximity to each other, “Ironville” yard lying to the west of “Homestead” yard, and the main track passing through each, thence on west to the “Toledo” yard, where are located plaintiff’s passenger and freight depots, and that a large number of trains pass through these yards daily. “Ironville” and “Homestead” yards have each a large number of tracks, which are all necessary to the proper discharge of plaintiff’s terminal business, and are used for the storage and distribution of cars coming into the city, to other railroads, industries and shippers, and to collect cars from such other railroads, industries and shippers and making them up into trains for points along the line of its road. In the “Iron-ville” yard are located the plaintiff’s general shops, also, repair tracks and a round house, all of which have connected therewith a large number of tracks which are in constant and necessary use daily.</p> <p>These yards have been constructed at a great cost, are an integral part of plaintiff’s railroad system, the unimpaired use of which is absolutely necessary for the proper discharge of plaintiff’s duties as a public carrier, and its increase of business has made it necessary to increase its facilities, and, prior to the acts defendant complains of, it acquired at great expense a large amount of property to enlarge its “Ironville” yard, and construct additional tracks and round house.</p> <p>It is further alleged that the defendant has instituted proceedings in the probate court to appropriate the right to cross with its track at grade, the tracks of the plaintiff at a point through the east end of the “Ironville” yard, and that at the preliminary hearing the court found in favor of the plaintiff in said proceeding all questions involved in said preliminary hearing, that the compensation and damages have been assessed by a jury, and that the defendant threatens to, and will, upon affirmance of the verdict, unless restrained, pay the money into the court, and proceed to enter, take possession, and construct, maintain and operate its railroad across the tracks of said “Ironville” yard.</p> <p>The petition then sets forth:</p> <p>“That the tracks in said yard are so located and constructed that in order to operate the same, and to sort out cars and make up trains, and in order to take cars to and from said round houses, shops, repair tracks and from its other yards, and for the purpose of taking cars and trains to and from other railroads, industries, docks and shippers in said city, and from the said ‘Homestead’ yard, it is necessary for the engines, trains and cars operated and handled by the plaintiff to constantly pass and repass over the point where the defendant seeks to and will construct its railroad tracks unless restrained by the order of this court, and that if the defendant is permitted to construct, maintain and operate its said tracks at said point at grade, the plaintiff will be greatly obstructed, hampered and interfered with in the use of said yards, the operation thereof will be «dangerous to life and property, and as a result thereof the said yards, and especially said ‘Ironville’ and ‘‘Homestead’ yards, will be practically destroyed and unfitted for the uses to which they are now devoted.”</p> <p>The plaintiff further alleges that it is unnecessary to cross said yard at grade, and it is practicable and feasible for the defendant to carry its line of road -over the tracks of plaintiff by an overhead crossing, which will not in any way impair its usefulness, nor materially increase the cost of construction, and would not materially interfere with the operation of plaintiff’s tracks and yard, and that to induce said defendant to construct said overhead crossing, the plaintiff offered to contribute to the expense thereof the sum of twenty-five thousand dollars.</p> <p>For a second cause of action the plaintiff averred that it had, on the twenty-seventh day of May, 1902, «commenced an action in the court of common pleas of that county against the defendant, and that in its petition in said action further alleged that the defendant, The Toledo Railway & Terminal Company, had located its line of railroad so that the same should cross at grade the line of railroad of this plaintiff at the point or place hereinbefore described and within the limits of said ‘Ironville’ yard, and that said crossing, if permitted to be constructed, would cross five tracks of the plaintiff, forming an integral part of said yard, and which were in constant and daily use and absolutely necessary in order to use the yard for the purposes to which it was and for a.long time theretofore has been devoted; and that such crossing, if permitted, would result in a practical destruction of the uses to which plaintiff has devoted its property at said point, and greatly and materially impair the uses to which plaintiff devoted the balance of its said ‘Ironville’ yard,"; would interfere with the plaintiff’s use of its ‘Homestead’ yard and render the operation of its terminal facilities, as well as its main line of railroad at said point, extremely dangerous.</p> <p>“It was further alleged in said petition that said grade crossing was unnecessary, inasmuch as it was perfectly practicable and reasonable for defendant to cross the tracks of the plaintiff at said point either overhead or undergrade, without interfering with the operation of its line of railroad, and that such manner of crossing would inflict less injury to> the plaintiff than the crossing proposed by the defendant.</p> <p>“It was further alleged in said petition that the plaintiff was unable to agree with said defendant as to the manner in which the said crossing should be constructed.</p> <p>“Plaintiff prayed in said petition that said court should ascertain and define by its decree the mode of crossing by the defendant which would inflict the least injury upon the plaintiff, and that if in the judgment of the court it was reasonable and practicable to avoid a grade crossing, that the court should prevent by its decree such crossing at grade and issue an injunction restraining the defendant from constructing, maintaining and operating a crossing at grade as proposed by it.”</p> <p>It is further averred that said action is still pending and that no hearing has been had or any order been made therein, and that' at said preliminary hearing in the probate court due proof was made of the pendency of said action and of the prayer of the petition, and that notwithstanding the same the probate court proceeded.</p> <p>It is unnecessary to state the answer and reply for the reason that on the trial on appeal in the circuit court that court refused to receive any evidence and dismissed the petition on the ground that it does not state a cause of action.</p> <p>In the second case, on May 9, 1902, the Terminal Company commenced proceedings in the probate court of Lucas county to appropriate the right to construct several crossings over the Ann Arbor Railroad in the city of Toledo, the Pere Marquette Railroad Company being made a party because it has by agreement a right to use the tracks of the Ann Arbor Company. On September 25, 1902, The Aun Arbor Railroad Company and The Pere Marquette Railroad Company, plaintiffs, brought the present suit in the court of common pleas against The Toledo Railway & Terminal Company, defendant, to enjoin it from prosecuting the appropriation proceeding. The averments of the petition are to the effect that one of the crossings sought to be appropriated is located at grade across four tracks of plaintiff’s road, three of which connect two of its yards; that such appropriation will irreparably injure the plaintiff; that it is not necessary for defendant to cross at that particular place, and other places are specified where, it is averred, the defendant could cross without impairing the usefulness of its road or materially increasing the cost of its construction and without serious injury to plaintiff’s property, and the prayer is that the defendant be restrained from prosecuting said proceeding to appropriate and from constructing a crossing at that particular place, and that if on final hearing it should be determined that it is reasonably necessary and that the defendant has the right to cross at that particular place, that it be restrained from the further prosecution of said appropriation proceeding until the mode and manner of crossing has been fixed by the decree of the court of common pleas.</p> <p>The court of common pleas and the circuit court each refused to receive any evidence and dismissed the petition on the ground that it did not state a cause of action.</p>

<p>Error to the Circuit Court of Licking county.</p> <p>The record in this case shows that the "plaintiff in error, John B. Mick, was arrested and prosecuted before a justice of the peace of Newark township, Licking county, Ohio, upon the criminal charge of cruelty to an animal, to-wit: a 4‘Great Dane dog,” in violation of section 6951, Revised Statutes of Ohio. When arraigned Mick entered a plea of not guilty, waived Ms right to a trial by jury and consented to be tried by the justice. A trial was had and Mick was found guilty by the justice and sentenced to pay a fine of twenty-five dollars and the costs of prosecution, and an order was made that he stand committed to the jail of Licking county, Ohio, until said fine and costs were paid or secured to be paid, or until he should be otherwise legally discharged. A motion for new trial was made and overruled, a bill of exceptions taken and error duly prosecuted by Mick to tbe court of common pleas of said Licking county. The court of common pleas reversed tbe judgment of tbe justice of tbe peace and discharged tbe plaintiff in error, tbe entry made in tbe common pleas being as follows:</p> <p>“This day this cause came on to be beard upon tbe petition in error, tbe transcript, bill of exceptions and papers attached thereto, and was argued by counsel.</p> <p>“On consideration whereof, tbe court being fully advised in tbe premises, finds, that t|iere is error in tbe record and proceedings before said justice of tbe peace, prejudicial to tbe plaintiff in error in this, to-wit :</p> <p>“First: That tbe judgment of tbe justice of tbe peace is not sustained by evidence, and is against its clear weight.</p> <p>“Second: That tbe judgment of tbe said justice of tbe peace is against tbe law of the case.</p> <p>“Third: That said justice erred in overruling tbe motion of defendant below for a new trial.</p> <p>“Fourth. That tbe affidavit before tbe justice of tbe peace upon which tbe plaintiff in error was arrested and tried is insufficient in law to charge any offense under tbe statute of Ohio against tbe plaintiff in error.</p> <p>“That for tbe errors aforesaid, it is ordered that tbe judgment of said justice of tbe peace be and it is reversed and held for naught, and that the plaintiff in error be discharged, and it is ordered that this cause be remanded to tbe justice of tbe peace, for bis order as to costs.</p> <p>“To all of which tbe defendant in error excepts.”</p> <p>Thereupon tbe State filed a petition in error in tbe circuit court, and that court reversed tbe judgment of reversal entered by tbe common pleas, affirmed tbe judgment of the justice of tbe peace, and remanded said cause to tbe justice’s court with instructions to carry tbe judgment and sentence of said justice into effect and execution. Tbe plaintiff in error, John B. Mick, having first obtained leave of this court, files bis petition in error herein asking a reversal of this judgment of tbe circuit court and an affirmance of tbe judgment of tbe court of common pleas.,</p>

<p>Error to the Circuit Court of Paulding county.</p> <p>The defendant in error began a suit in the court of common pleas of Paulding county against the plaintiff in error and his wife (who is now deceased) to foreclose a mortgage on certain real estate in that county, and for a personal judgment against the husband.</p> <p>The petition alleges that plaintiff is a corporation under the laws of Ohio, and organized for the purpose of raising money to be loaned among its members, and that it is engaged in that -business; that on the twenty-fourth day of June, 1896, under an application in writing for. that purpose and submitted to said company, Cramer became a member of the company and a stockholder to the extent of seventeen shares of installment stock of class B, of one hundred dollars each share; that on the same day, he made application for a loan of $1,700 and offered as security for the same the mortgage in suit, an assignment of all fire insurance on the buildings and a transfer of the seventeen shares of stock; that the application contained, besides a description of the-real estate, several conditions with which he would comply; that acting on the application the company loaned to Cramer $1,700, and as security for which, he gave the mortgage, assigned the fire insurance and transferred the said shares of stock.</p> <p>It is alleged that Cramer, as one of the stipulations of the mortgage “agreed to pay monthly without demand therefor until said loan was fully repaid, as follows: 'the dues upon said seventeen shares of stock; the five per cent premium bid upon said $1,700; five per cent interest on said $1,700; and in addition thereto, to pay all fines, penalties and other charges which should become due against said shares, and all taxes, assessments, costs of insurance and other charges upon said premises, in accordance with the constitution and by-laws theretofore duly adopted by said company.’ ” The dues were fixed at $8.50 per month on the seventeen shares. The company alleged that Cramer failed to keep and perform the agreement made in his application and mortgage, so that on the fourteenth day of October, 1902, the sum due upon said loan, including principal, interest, premiums, fines incurred on said stock and cost of insurance paid by the company, according to the terms of the agreement, amounted to $2,787.35 and that Cramer had paid thereon in cash and dividends to be applied, only the snm of $1,391,83, leaving a balance dne at that date of $1,395.52. For this amount the petition prays judgment and foreclosure.</p> <p>The answer of Cramer admits that he obtained a loan from the Southern Ohio Loan & Trust Company for $1,700 and gave his mortgage to secure the same; admits that he has paid thereon the sum of $1,391.83, but he denies each and every other allegation of the petition.</p> <p>He further answered, “that section 3836-3 of the Eevised Statutes of Ohio, in so far as it presumes to authorize building and loan associations to collect dues, fines, interest and premiums in excess of the legal rate of interest, is unconstitutional, against the public policy of the said state of Ohio, and void. ’ ’</p> <p>He further claims in the answer, “that .any amount or sum of money exacted or attempted to be collected by the # * * company is usurious, and he claims the privilege of the usury statutes of the said state of Ohio.”</p> <p>For the purpose of a settlement, and for no other purpose, he tendered in the answer, the sum of $900; and he prays that “all amounts collected and heretofore paid in excess of the legal rate of interest, be credited to him as payments of that amount of principal, and if the amount found to be due is less than the amount here tendered, that the plaintiff be decreed to pay all costs after the date .of making of the said tender.”</p> <p>A jury was waived and the cause was heard and submitted to the court who made findings of fact in substance, that the plaintiff in that court, on the twenty-fourth day of June, 1896, was and at the time of the trial, a domestic building and loan association, duly organized and empowered under the laws of Ohio, as such associations are described and defined by section 1 of “an act to provide for the organization, regulation and inspection of building and loan associations, passed May 1, 1891 (88 O. L., 469).” Further, that on the twenty-fourth day of June, 1896, defendant purchased from said company seventeen shares of its installment stock of the par value of one hundred dollars each and became a member of said association, and that on the same day and as part of the same transaction, he made application to the association for a loan of $1,700 in all respects as stated in the petition, which loan was granted on July 24, 1896, and that sum was paid to Cramer, on the terms and conditions aforesaid, and that to secure the payment of the loan, he gave to the association his mortgage deed on the real estate described in the petition; and that the mortgage contained by reference thereto, all the provisions and agreements in the application for stock, and for the said loan. This mortgage was filed for record on the same day and recorded the succeeding day.</p> <p>The court found the terms and conditions of the mortgage to be as' above stated, but found that the premium mentioned in said application and mortgage was not fixed by any competitive bidding; but by the terms and provisions of the constitution and by-laws of said association, the said defendant and all other borrowers from said association of class B therein referred to, were required to pay interest on their respective loans at the rate of five per cent per annum, payable in equal monthly installments, together with a so-called premium at the uniform rate of five per cent per annum on said loan, in addition to said so-called interest. In addition to the findings it was conceded and agreed in open court at the trial that the application and mortgage were signed by Cramer, and that book Exhibit “C” is a true copy of the constitution and by-laws of the association and was such when the loan was negotiated and made, and that before the loan was made, Cramer had issued to him on his application, seventeen shares of stock class B, in said association, and that before he received his loan, he transferred said stock to the association.</p> <p>It was further conceded that if plaintiff’s contention in this case is sustained, and its basis of computation is correct, the amount due it would be $1,-480.89, but if the court should find the contract to be usurious and determine that the rate of interest to be charged is six per cent, computed on the basis of partial payments, then the amount due is $840.03 to December 10, 1902; but if the contract be usurious and the rate of interest the plaintiff should recover should be five per cent, then, computed on the basis of partial payments to the same date, the amount would be $646.68. The court found the contract and mortgage to be usurious, and decided that the statute entitled “an act to provide for the organization, regulation and inspection of building and loan associations, passed May 1, 1891 (88 O. L., 469), in so far as it allows any such company to assess and collect from members and depositors such dues, fines, interest and premium on loans made, or other assessments as may be provided in the constitution and by-laws,” and that “such dues, fines, premiums and other assessments, shall not he deemed usury, although in excess of the legal rate of interest.” is unconstitutional and void.</p> <p>The court also held that the plaintiff’s claim should be computed on the basis of $1,700 as a loan at six per cent interest, to be computed on the rule of partial payments for each payment, by which rule there was then due the sum of $981.67 to draw interest from the first day of the term of court. Judgment was rendered for that amount and foreclosure ordered.</p> <p>A motion for new -trial was overruled, and the casé taken on error to the circuit court where the judgment was reversed, and that court rendered a judgment in favor of the association for $1,480.89 with six per cent interest thereon from June 2, 1903, and ordered foreclosure of the mortgage.</p> <p>Cramer prosecutes error to reverse the judgment of the circuit court.</p>

<p>Error to the Circuit Court of Greene county.</p> <p>The seminary brought suit against the treasurer in the court of common pleas for a decree perpetually enjoining him from the collection of a tax upon its endowment fund. A copy of its petition follows:</p> <p>“The plaintiff, The United Presbyterian Theo-. logical Seminary of Xenia, Ohio, is a corporation duly incorporated under the laws of the state of Ohio.</p> <p>“The said United Presbyterian Theological Seminary of Xenia, Ohio, is an educational institution for the training of young men for the gospel ministry, free and open to all upon the same conditions and is controlled and managed by synods of the United Presbyterian Church of North America.</p> <p>“The said institution has a large endowment, income from which it is authorized to use in carrying out its objects and purposes aforesaid. The plaintiff has invested and loaned the endowment fund so held by it and has used the income and revenue therefrom to pay its professors and expenses incidental to the institution. No part of the income from the fund has been or is diverted into private use or profit. Said institution is one of purely public charity.</p> <p>“The said defendant, Asa Little, is the duly elected and qualified treasurer of Greene county, state of Ohio, having given bond as such and is in the discharge of the duties of said office.</p> <p>“The plaintiff further says that the auditor of said Greene county has illegally and unlawfully entered and placed upon the duplicate for taxation the said endowment fund of the plaintiff in the sum of $77,590.00, and has without authority of law, directed the defendant, as treasurer of said county, to charge and collect from plaintiff upon said property the sum of twenty-four hundred and forty-four dollars ($2,444.00), taxes for the year 1903.</p> <p>“The defendant intends and threatens to enforce the collection of the said sums and amounts unlawfully demanded as aforesaid, and to impose penalties against plaintiff and to illegally seize or distrain plaintiff’s property therefor, to the great and irreparable damage and injury of plaintiff.</p> <p>“Wherefore plaintiff prays that a temporary restraining order may issue against said defendant and that upon a hearing the said defendant may be forever enjoined from demanding and collecting from plaintiff said taxes on said endowment fund or any part thereof and for such other and further relief to which plaintiff may be entitled to in law or equity.”</p> <p>In the court of common pleas a general demurrer to the petition was sustained and the seminary not desiring to plead further, its petition was dismissed. On appeal to the circuit court the demurrer was overruled and the treasurer not desiring to plead further a perpetual injunction was granted in accordance with the prayer of the petition.</p>

<p>Error, to the Circuit Court of Darke county.</p> <p>On the thirteenth day of July, 1903, the defendant in error filed a petition in the probate court of Darke county to appropriate the right to cross the tracks and right of way of the plaintiff in error with the track of the defendant in error, and the right to maintain such crossing; and the time for the hearing of the preliminary matters in the case was fixed at July 20, 1903, at which time it was continued by agreement to July 23, 1903. On July 23, 1903, the plaintiff in error filed an answer to the petition. On the same day the preliminary hearing was begun and it was concluded, and the finding of the probate court thereon was made, on August 10,1903. To the findings, orders and judgment of the probate court made at that time the plaintiff in error excepted. The case was tried by the court and jury on August 25, 1903, and on that day a verdict was rendered for the plaintiff in error in the sum of $25.00. On September 3, 1903, the plaintiff in error filed a motion for new trial, which is as follows:</p> <p>The defendant, The Dayton & Union Railroad Company, moves the court to set aside its findings and judgment made and entered on the hearing and trial heretofore had on the preliminary and jurisdictional questions in this case, and to set aside the verdict of the jury heretofore rendered, and to grant a new trial herein for the reasons following:</p> <p>' First: Because the said findings and judgment rendered and entered on said preliminary hearing and trial on the said jurisdictional of questions is against the weight of the evidence, and is not supported by the evidence.</p> <p>Second: Because the said findings and judgment rendered on said preliminary hearing and trial is contrary to and against the law of the case.</p> <p>Third: Because the said findings and judgment rendered on the hearing and trial on said jurisdictional questions should have been in favor of this defendant instead of in favor of the plaintiff.</p> <p>Fourth: Because the court admitted evidence on the said hearing and trial against the objection of this defendant to which admission of the evidence this defendant at the time excepted.</p> <p>Fifth: Because the court refused to admit evidence' offered by this defendant on said hearing and trial to which refusal this defendant at the time ■ excepted.</p> <p>Sixth: Because of newly discovered evidence material for this defendant which this defendant by the exercise of reasonable diligence could not have discovered and produced on the said hearing and trial.</p> <p>Seventh: Because the said verdict is not supported by sufficient evidence.</p> <p>. Eighth: Because the said verdict is contrary to the evidence and the law of the case.</p> <p>This motion was heard and overruled on September 12, 1903; and on the ninth day of October, 1903, the plaintiff in error filed its bill of exceptions. A petition in error having been filed in the court of common pleas, that court affirmed the judgment of the probate court; and on the hearing of a petition in error in the circuit court, that court found and adjudged “that no motion for a new trial was filed nor bill of exceptions allowed, signed and filed by-said plaintiff in error in the probate court of Darke county, Ohio, within the proper time from and after the decision of said probate court upon the hearing of the preliminary and jurisdictional questions had in said appropriation proceedings in said court and the court do therefore ignore and refuse to consider all the evidence contained in said bill of exceptions so taken at the hearing of said preliminary and jurisdictional questions.”</p> <p>For this and other alleged errors the plaintiff in error seeks the reversal of the judgments against it in the courts below.</p>

<p>Error to the Circuit Court of Summit county.</p> <p>The action below was begun March 14,1902, in the common pleas of Summit by the defendant in error, Horace B. Foster, against the plaintiff in error as county Auditor, to procure an injunction preventing the Auditor from placing on the tax duplicate, for taxation for the years 1896, 1897, 1898, 1899, 1900 and 1901, certain personal assets, consisting of moneys, credits, stocks, securities, and rights in action, amounting in the aggregate to forty-five thousand dollars in value, or over. The Auditor answered by general denial. At the October term, 1902, the cause was tried on its merits in the common pleas, resulting in a finding and judgment against the plaintiff below and dismissing his petition. From this judgment an appeal was taken to the circuit court where, at the April term, 1903, the cause was again tried on its merits, resulting in a judgment in favor of the plaintiff and perpetually enjoining the Auditor from entering any of the property on the duplicate for taxation. A special finding of facts was made by the circuit court and a bill of exceptions taken. The Auditor brings error.</p>

- Tbe State of Ohio and tbe executors, S. A. Hostetter and David W. Smith, of tbe last will and testament of David Eury, deceased, submitted an agreed case to tbe court, of common pleas of Darke county. Tbe question to be determined was whether that part of tbe estate of tbe decedent unadministered when tbe inheritance tax law, passed April 25, 1904 (97 O. L., 398), took effect was subject to tbe tax. David Eury, a resident of that county, died in 1884, testate.

<p>Error to the Circuit Court of Franklin county.</p> <p>The plaintiff in error as relator instituted a proceeding in quo warranto in the circuit court of Franklin county against the defendant in error, The Union Terminal Railroad Company, for the purpose of testing the light of said company in and to certain privileges and franchises claimed and about to be exercised by it in the construction of a steam railroad in the city of Cincinnati, the termini and the entire line of said proposed railroad lying and being wholly within the corporate limits of said city. In said proceeding the defendant, The Union Terminal Railroad Company, filed the following answer to relator’s petition:</p> <p>“Defendant, for answer to the petition herein, admits that the relator is the duly elected, qualified and acting attorney general of the state of Ohio, and that the defendant is a corporation formed under the laws of the state of Ohio, and doing business in such state, with its principal office and place of business located in the city of Cincinnati, Hamilton county, Ohio; that in its applications made to, and filed with, the secretary of state of the state of Ohio for its articles of incorporation, the said corporation by its incorporators represented to the said secretary of state as alleged in the petition, and that the secretary of state issued a certificate or articles of incorporation, and that the same were recorded in the office of the secretary of state, as set forth in the petition.</p> <p>“Defendant further says that it does claim to have and possess the rights, privileges and powers conferred upon railroad companies by the revised statutes and laws of the state of Ohio, and it claims such powers, rights and privileges, under and by virtue of its articles of incorporation herein and in the petition set forth; and that it does particularly claim the right, privilege and power to construct, maintain and operate, a steam railroad with a single or double track, with branches, side tracks, turnouts thereto and in connection therewith, together with depots, round houses, machine shops, water tanks, telegraph lines and other, appliances used and operated by steam railroads, with its termini both within the corporate limits of the city of Cincinnati, in Hamilton county; and that said defendant does not by its purposes, as expressed in its articles of incorporation, or by any other authority, claim the right to, nor does it intend to extend its line of railroad, or any part thereof, to any point or place beyond the corporate limits of said city of Cincinnati.</p> <p>“Defendant further says that it does claim by virtue of the power conferred upon it by its articles of incorporation, and the statutes and laws of this state, the right to construct, maintain and operate a steam railroad with termini as hereinbefore described for the purpose of transferring freight, passenger, express and mail cars, and the transportation of freight of all kinds in cars between the various lines of railroad now dr hereafter entering and doing business in the said city of Cincinnati, and of receiving from said lines of railroad shipments of freight for the public in general; but this defendant says that it does not claim that by its said articles of incorporation, it is authorized to, nor does it propose to limit its operation to such transfer of freight, but, on the contrary, says that it expects to, and will, wherever on its line or lines freight or passengers may be offered to it, receive and transport the same as a common carrier for the public. Defendant says that the service proposed to be rendered by it in transferring freight, passengers, express and mail cars, and freight of all kinds, between railroads, as hereinbefore set forth, would he of assistance to such other railroads,. and it further says that said services, together with all other services rendered by it, would be public services and would be for the benefit, and to the advantage of the public generally.</p> <p>■ “Defendant says that it admits that, in order to carry out the powers and purposes claimed by it, and for the purpose of constructing and maintaining its line of railroad with branches, side tracks, turnouts, depots, round houses, machine shops, water tanks, telegraph lines, and other necessary appliances, it is vested with the right and power to take and appropriate to its own use property of the citizens of said city of Cincinnati by the exercise of the right of eminent domain, as conferred by the constitution and statutes of the state of Ohio upon railroad companies; and defendant admits that it is ábout to proceed to exercise said, right of eminent domain for the purposes above set forth.</p> <p>“Defendant says that it claims no other powers than those in this answer set forth, and that the powers so claimed by it are authorized by its articles of incorporation, and by the statutes, constitution and laws of the state of Ohio.</p> <p>“Wherefore, defendant having fully answered, asks to be hence dismissed with its costs.”</p> <p>To this answer the relator filed a general demurrer, which demurrer was overruled by the circuit court, and the relator not asking or desiring to plead further, the cause was submitted to the court upon the issues joined by the petition and answer. Whereupon the court, on the issues so joined, found for the defendant and dismissed the relator’s petition. This judgment of the circuit court in overruling the ■demurrer and' dismissing said petition iso here assigned by the relator as error.</p>

<p>Board of education not liable for damages — For negligence in-erecting school house, when — Section 2676, Revised Statutes, does not apply to school boards, when — Law of negligence and public corporations.</p> <p>1. A board of education is not liable in its corporate capacity for damages, where, in excavating on its own lots for the erection of a school building, it wrongfully and negligently carries the excavation below the statutory depth' of nine feet, thereby undermining and injuring the foundation and walls of a building of an adjoining owner.</p> <p>2. Section 2676, Revised Statutes, creating a liability against an “owner” or “possessor” of premises whereon such wrongful and unlawful excavation is made, does not apply to boards of education holding title to the lot or land being excavated, for school and school building purposes.</p>

<p>Act of May 10, 1902 — Creating bureau of inspection of public offices — XTnder administration of state auditor — Is a valid law —Expense of operating such bureau may be paid by county funds — Constitutional law.</p> <p>The act of May 10, 1902, entitled “An act to create a bureau of inspection and supervision of public offices, and to establish a uniform system of public accounting, auditing and reporting, under the administration of the auditor of state” (95 O. L., 511), is not rendered unconstitutional by the ninth section thereof. providing that the expense of maintaining and operating the bureau of inspection shall be paid by the counties of the state out of the general county fund in proportion to their population, nor by the tenth section thereof providing that each taxing body be chargeable with the expense of auditing the accounts under its jurisdiction.</p>

The defendants in error, among whom is one John Shuman, commenced an action in the court of common pleas of Clark county to contest the will of Martin Snider, deceased, the plaintiffs in error here being defendants there; and on the twenty-ninth day of February, 1904, a judgment was rendered by said court of common pleas, upon a verdict theretofore rendered, annulling the said will and the probate thereof, and adjudging the costs against the defendants.

<p>Telephone companies obtain power — To construct lines, etc., from sections 8454-8471-8, Revised Statutes — Powers of municipal authorities in reference to telephone companies, defined — 1 Question of free service for city or citizens — City ordinance to receive free compensation not effective, when.</p> <p>Telephone companies organized in this state obtain power to construct their lines along the streets and public ways of municipal corporations from the state by virtue of sections of the Revised Statutes, 3454 to 3471-8, inclusive, and not from the municipal authorities. The latter have the power, under section 3461, to agree with such'companies as to the mode of use, and upon compensation for such use, but not beyond what may be necessary to restore the streets to former state of usefulness. They have not power to exact or receive compensation by way of free telephone service for themselves or for citizens, or to fix rates for telephone charges. Where such power to so obtain free service and fix rates is attempted to be exercised by the passage of an ordinance incorporating such provisions, the company will not be required to adhere to them by a court of equity by mandatory injunction, even though it be shown that the rates agreed upon and incorporated in the ordinance were so fixed at the solicitation of the company and that the company thereby obtained a benefit which it would not have otherwise obtained in a mode of use of the streets more beneficial to it and more inconvenient to the public.</p>

The action below was brought in the common pleas of Lucas by the Security Trust Company against C. W. Root, to quiet title to certain lands situate in that county. It was shown by the petition that the title of plaintiff was acquired by sheriff’s deed made in pursuance of a judgment and decree in foreclosure of a mortgage made to the plaintiff by the then owner of the land, one Emrick. The suit was commenced December, 1902. The plaintiff herein was plaintiff in that suit.

<p>Error to the Circuit Court of Coshocton county.</p> <p>On the seventh day of November, 1904, a special school district known as the Adams Mills special school district, comprising parts of Cass and Madison townships in Muskingum county and part oí Virginia township in Coshocton county, was legally established by the probate court of Muskingum county.</p> <p>On the eleventh day of April, 1905, the special district known as the Virginia township special school district, comprising the whole of Virginia township in Coshocton county, including the part that was in the Adams Mills special district, was ordered and adjudged to he created by the probate court of Coshocton county.</p> <p>In the proceedings in the Coshocton probate court a remonstrance, signed by substantially all the male electors residing in that part of Virginia township included in the Adams Mills special school district, was filed. A demurrer to this remonstrance was filed and sustained. The remonstrators excepted to the order of the probate court sustaining the demurrer to their remonstrance and to its order including that part of the Adams Mills special school district in the Virginia township special school district.</p> <p>On error, the court of common pleas and the circuit court affirmed the judgment of the prohate court, and error is prosecuted to this court.</p>

<p>Special school district — Oannot he taken from, centralized territory, when.</p> <p>When the schools of a township have been centralized, no part of the territory comprised in such centralization is subject to be taken to form a special school district.</p>

<p>Promissory note — Signed ~by company name — And names of secretary and treasurer and president — Is note of company and not officers signing.</p> <p>A promissory note which reads: “Thirty days after date we promise to pay,” etc., and signed, “The Akron White Sand & Stone Co., L. K. Mihills, Secy. & Treas., D. B. Aungst, Pres.,” is, on its face, the note of the company alone, and is not the noté of L. K.. Mihills and D. B. Aungst, and the latter are not personally hound thereon.</p>

<p>Error to the»Circuit Court of Madison county.</p> <p>The plaintiffs below filed their petition, praying for an injunction against the plaintiffs in error, who were proceeding to make an assessment on the lands of the plaintiffs and others to pay for the cleaning out of a certain ditch which had been established in 1886. The surveyor and auditor were acting under the provisions of section 3 of an act of the general assembly entitled “an act to provide for the cleaning out and keeping in repair of public ditches, drains and water courses, et cet.” (95 O. L., 155), passed April 15, 1902.</p> <p>Among other claims which are noticed in the opinion, it is alleged that said section conflicts with section 19 of article 1 of our state constitution. The averments of the petition were met by an answer, and the case was heard in the court of common pleas on the evidence, and that court found for the defendants, the auditor and surveyor. On appeal the case was again heard in the circuit court, where a perpetual injunction was granted on the ground that said section 3 is unconstitutional.</p> <p>Error is prosecuted in this court to obtain a reversal of the judgment of the circuit court.</p>

<p>Object of section 550, Revised Statutes — To secure attendance of judge — Of another subdivision — When judges of subdivision where case is pending — Are disqualified — Affidavit for the purpose of no effect, when.</p> <p>The object of section 550, Revised Statutes, is to secure the attendance of a judge of the court of common pleas of* another subdivision when the judges of the subdivision in which the case is pending are disqualified, and an affidavit filed for that purpose is of no effect unless it alleges the disqualification of all the judges of the latter subdivision.</p>

Quo Warranto. It is alleged in the petition that on the fourth of May, 1903, the defendant, Peter Witt, was duly elected by the council of the city of Cleveland to the office of clerk of said council for the term of two years; that he thereupon entered upon the duties of said office and that his- term expired at midnight on May 3, 1905.

<p>Duty of court in submitting case to jury — To separate issues of fact admitted• and those denied — Error to read pleadings to jury, when — Error to refuse to charge the jury that negligence not alleged in petition should not be considered,</p> <p>1. In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied. It is error to read the pleadings to the jury and then say to the jury, and not otherwise to define the specific issues, that these constitute the pleadings in the case, which make up the issue and from which they will try and determine the controversy between the parties.</p> <p>2. It is error to refuse to charge the jury that it should not consider any other negligence than that charged in the petition.</p>

<p>Error to Circuit Court of Cuyahoga county.</p>

<p>Error to Circuit Court of Richland county.</p>

<p>Exceptions to the Common Pleas Court of Lucas county.</p>

<p>Error to Circuit Court of Putnam county.</p>