Volume 76 — Ohio State Reports, New Series

. Error to the Superior Court of Cincinnati, General Term. Emily Appel, who is now deceased, was doing business as a wholesale and retail dealer in millinery in the city of Cincinnati on the 9th day of September, 1901, when a fire occurred, destroying a large amount of her merchandise and property.

The controversy out of which this error proceeding arises was a replevin suit by the Cash Register Company to recover a cash register and damages for detention. It was begun in a justice’s court. A bond accompanied the affidavit in replevin, and the register was seized by the constable and delivered to the plaintiff. Judgment being rendered by the jus-_ tice, the cause was appealed to the common pleas.

These suits were instituted to obtain a construction of the act repealing what is known as the inheritance tax law. In the first case the decedent died testate, October 8, 1905.

On the 19th day of June', 1901, the Cooper Insurance Company'of Dayton, Ohio, issued a policy of insurance to Emily Appel, whereby it insured her against all direct loss or damage by fire to an amount not exceeding fifteen hundred dollars, for the period of one year from the 19th day of June, 1901, to the 19th day of June, 1902, at noon, upon certain property described and located as follows: “On merchandise, principally millinery goods, manufactured and in process, and…

<p>Section 5446, Revised Statutes, construed — Bond given to claimant of attached property, takes place of latter — Measure of damages to claimant — Interest of claimant with six per cent. ■ from delivery.</p> <p>An undertaking given to a claimant of attached property, under the provisions of Section 5446, Revised Statutes, takes the place of the property to the extent of the interest therein which the claimant may establish in his suit on the undertaking, and the value of said interest with interest thereon from the date of the delivery of the undertaking to the claimant, is the measure of his damages.</p>

<p>Error to the Circuit Court of Gallia County.</p> <p>The question upon which the case is thought worthy of report arises upon the following statement:</p> <p>On the 1st of December, 1903, the defendant in error filed a petition in the Court of Common Pleas of Gallia County, alleging the plaintiff’s appointment and qualification as administrator de bonis non of Charles Simon, deceased, and further alleging as ground for recovery a judgment which his predecessor in representation had recovered against Graham on the 8th day of September, 1887, in the Court of Common Pleas of Gallia County, which judgment remained wholly unpaid. Contemporaneously with the petition he filed an affidavit for attachment on the ground of the non-residence of the defendant. No execution had ever been issued upon said judgment nor had any proceeding been taken to revive it. Answering said petition, Graham pleaded, among other things, that said cause of action, if any, is barred by the statute of limitations. In the court of common pleas there was a judgment for the plaintiff, and it was affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Franklin County.</p> <p>In 1905 the defendant in error, a corporation, sued the plaintiff in error, as administrator, on an account, before a justice of the peace. Judgment was rendered for the plaintiff, and the defendant gave oral notice of its intention to appeal, to the justice, who endorsed upon the bill of particulars “Notice of appeal,” and in the transcript of the proceedings before him, filed in the court of common pleas, immediately after the entry of judgment, appears this notation, “Notice of appeal.” No appeal bond was given. In the court of common pleas the appeal was dismissed on the ground that this was not‘a good statutory notice of appeal. The circuit court affirmed and error is prosecuted in this court.</p>

<p>Verification of pleading — By agent or attorney of corporation— Requirements of — Sections 5105 and Slop, Revised Statutes.</p> <p>1. A verification of a pleading, when made by an agent or attorney of a corporation, must contain a statement that the case is included in one or more of the classes defined in Section 5109, Revised Statutes; but whether the pleading can or can not be verified by an agent or attorney under said section, it may be verified by an officer of the corporation as by a party.-</p> <p>2. When in the verification by an agent or attorney, the affiant states that he has personal knowledge of the facts, he may also state in his affidavit ^that he believes the facts stated in the pleading to be true, as provided in Section 5105, Revised Statutes.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>On March 28, 1903, the plaintiff, Cornelius Archdeacon, filed his petition in the superior court of Cincinnati against The Cincinnati Gas & Electric Company and The City & Suburban Telegraph Association, averring, among other things, that his intestate, John Archdeacon, met his death January 26, 1903, through the negligence of defendants, and that'he (the plaintiff) was the duly appointed and qualified administrator of said John Archdeacon, deceased. The names of the next of kin were stated. Further pertinent allegations followed and then a prayer for recovery of damages.</p> <p>On April .7, 1903, the defendants filed their separate answers, in each of which it is admitted “that plaintiff is the duly appointed and qualified administrator of the estate of John Archdeacon, deceased.” Other material allegations of the petition are denied.</p> <p>On March 3, 1905, the cause coming on for trial, the defendants, having obtained leave of ■ court therefor, filed a joint amended answer, in which answer it is averred that “the defendants reaffirm all the defenses and allegations set forth in the separate answers heretofore filed except that plaintiff was duly qualified as administrator of the said John Archdeacon, deceased.” Then follows an allegation “that on the 10th day of March, A. D. 1905, the said Cornelius Archdeacon was duty appointed and qualified by the probate court of Hamilton county, Ohio, as administrator of the estate of John Archdeacon, deceased,” and then an averment “that plaintiff is without legal capacity to maintain this action.”</p> <p>Thereupon defendants moved to dismiss the cause, the claim as to the facts being that, although due application by one entitled to administration had been made to the probate court February 5, 1903, for such appointment, and the plaintiff had then signed the bond ordered, yet the sureties not having signed and letters not in fact issued until March io, 1905, defendants were entitled to a dismissal. The motion was for judgment on the pleadings, and the court finding that defendants were entitled to judgment on the statements in the pleadings, sustained the motion, dismissed the cause, and rendered judgment for the defendants that they go hence without day and recover from the plaintiff their costs. This judgment was affirmed by the court in general term and the plaintiff brings error.</p>

<p>Error to the Circuit Court of Muskingum County,</p> <p>In 1904 the Village of Roseville, of Muskingum and Perry counties, by resolution of its ' council, ordered the railroad company within fifteen days to plank the crossing of its railroad over Armstrong street and to grade and gravel said street across the railroad compány’s property from .said railroad crossing to Perry street and declared its intention to make the improvement in the event the railroad company failed to do so within thirty days. The railroad company brought suit to enjoin. The village answered, averring that the premises in controversy had become a public street by dedication and also by prescription, and by cross-petition prayed for an injunction to prevent the railroad company from interfering with the use of the street. The common pleas court found for the plaintiff. On appeal the circuit court found for the village and granted the prayer of the cross-petition.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>On February 26, 1903, Ben Johnston, as plaintiff, commenced an action' in the Superior Court of Cincinnati, against The Cincinnati Gas & Electric Company, as defendant, to recover damages for personal injuries sustained by him while in the employ of the defendant company. In. his petition and the amendment thereto, he alleged, as and for his cause of action, that: “On the 8th day of May, 1902, plaintiff was in the employ of the defendant as a laborer, his work being that of a coal shoveler- on a coal barge in the Ohio River moored to the landing owned and operated by the defendant, and which is known as the East End Gas Works in said city of Cincinnati.</p> <p>“That on said day, while shoveling coal as aforesaid with three fellow-workmen, under the directions and control of a foreman employed by said defendant, in the course of plaintiff’s employment, he, together with the three fellow-workmen, was ordered by said foreman to lift and move a very large and heavy timber, known as a spar, that helped to hold in place the' barge on which he was working, which timber was much too heavy 'for four -men -to lift under the conditions then and there existing, and the lifting and moving of which was likely to injure them, all of which was well known to said defendant and its said foreman.</p> <p>“He states that notwithstanding such danger, said plaintiff and his three fellow-workmen were’ so as aforesaid ordered to lift and move said.spar by said foreman, and plaintiff, unconscious of the danger to him in obeying the order of said foreman, undertook, with said'three fellow-workmen, to faithfully perform the said task assigned to him, and in so doing, because of the great weight of the said spar, he was severely and permanently ruptured, and rendered permanently and for the balance of his life disabled from performing any hard manual labor and from earning a living in any of the usual employments of a laborer. * * *</p> <p>“He states that the said defendant wrongfully and negligently failed to furnish and provide sufficient help to lift the spar so as aforesaid lifted by plaintiff and three fellow-servants on the 8th day of May, 1902, under the order of plaintiff, as set out in the petition. And hq states that by reason thereof and of the facts set up in the petition he was injured as stated in the petition herein. * * * “The plaintiff, by reason of the premises, has sustained damages in the sum of $5,000, for which he asks judgment.”</p> <p>For answer, and as a first defense, the defendant, The Cincinnati Gas & Electric Company, denied each and. every allegation in said petition contained, except the allegation that “it is a corporation created under the laws of Ohio.”' And for a further and second defense it alleged, “that if the plaintiff was injured as complained of in the petition, then that such injuries were the result of his own negligence and carelessness and not the negligence or carelessness of the defendant or any of its employes.” To this answer the plaintiff filed no reply. The case was tried to a jury in the superior court, special term, and upon the conclusion of all the evidence the defendant requested the court to direct k verdict in its favor, which request was refused. Thereupon the cause was submitted to the jury and a verdict returned in favor of the plaintiff for $1,550. Thereafter, the defendant, The Cincinnati Gas & Electric Company, filed its motion asking for a judgment on the pleadings, notwithstanding the verdict. This motion was overruled by the court, and the defendant thereupon filed a motion for new- trial. This motion was also overruled, a new trial denied, and judgment was entered upon the verdict. This judgment was affirmed by the superior court in general term. The Cincinnati Gas & Electric Company brings error, asking that the judgments of the courts below be overruled, and that judg- • ment now be entered in' its favor by this court.</p>

On the 5th day of December, 1904, the defendant in error brought suit against the plaintiff in error to rec'over on a policy of fire insurance issued by it on the 20th day of May, 1904, to be operative from noon of that day until noon of the 1st day of April, 1905.

<p>Error to the Circuit Court of Franklin County.</p> <p>Plaintiff brought suit in the court of common pleas to recover from the railway company damages for personal injuries sustained by him in a collision between his wagon upon which he was riding and a train of the railway company at a grade crossing in the Village of Rendville in Perry county, the collision resulting, according to the allegations of his petition, solely from- the negligence of the. company while he was in the exercise of. due care. The specific charges of negligence against the company were the construction and maintenance by it of a building so situated with respect to its road and the highway on which he was approaching the crossing that it interrupted, and, in connection with other buildings, prevented a view of the approaching train; that the train came upon the crossing at a high and dangerous rate of speed; that those operating it kept no lookout for persons about to cross the track; that warnings were not given and that no whistle was blown or bell rung, and that the train might have been stopped without injury to him after his peril would, with ordinary care, have been discovered. It is alleged that all this was done with the company’s knowledge of the character of the crossing. In its answer the company denied the allegations of the petition respecting .its negligence, and ah leged that the injuries which the plaintiff sustained were due to his own negligence.</p> <p>On the trial evidence was offered in support of the allegations of both petition and answer. Thereupon, after argument, the trial judge instructed the jury with respect to the law of the case, giving, among- others, the following" instruction: “If the crossing where, the collision occurred was rendered dangerous and the view of the railroad track .was obstructed so that travelers on the public highway could not see the railroad track in the direction from which the train was approach - ing because of the tool house or blacksmith shop kept and permitted to stand so near defendant’s track, then, the company must use such care and take such precautions to warn travelers on the public highway that notwithstanding such obstructions they by the use of ordinary care can avoid injury.”</p> <p>A verdict was rendered for the plaintiff, and the company - filed a motion for a new trial upon a number of grounds. The motion was overruled and a judgment rendered for the plaintiff for the amount of the verdict. The company thereupon ■ filed a petition in error in the circuit court for the reversal of said judgment, ten grounds being assigned, one of them being that the trial judge erred in the instructions given to the jury. In the circuit court the judgment was reversed for error, as' appears from its record, in giving the above quoted instruction, the journal containing no express ruling upon any of the remaining assignments of error. A petition in error is filed here for a reversal of the judgment of the circuit court, and with his petition the plaintiff files a printed record containing «0 much of the original record as relates to the propriety of the instruction stated as the ground of reversal.</p>

<p>Error to the Circuit Court of Seneca County.</p> <p>The case was brought by the defendant in error against the railroad company to recover a penalty under the provisions of Sections 3374 and 3376 of the Revised Statutes. The overcharge complained of is alleged to have taken place on a trip from the railroad station of the plaintiff in error at Sullivan, Ashland county, Ohio, to its station at Chicago Junction, Huron county, Ohio, the distance being actually twenty-seven and fifty-three hundredths miles, although alleged in the petition to be twenty-seven miles. The fare charged was eighty-five cents. There was no demurrer to the jurisdiction of the court in Seneca county nor was the want of jurisdiction set up in the answer. The question was first raised on the petition in error in the circuit court of Seneca county. The judgment of both the common pleas court and the circuit court was for the defendant in error. The petition in error seeks a reversal of these judgments upon several assignments of 'error, among which was the following: “5th. That the court had no jurisdiction of the subject of the action, and that the petition of the plaintiff does not state facts suffi•cient to constitute a.cause of action.”</p>

On November 7, 1902, there was pending in the probate court of Richland a proceeding in partition wherein the defendant in error David B. Leiter was plaintiff and the defendants in error David S. Leiter and others, including plaintiff in error James H. Wallace, were defendants.

<p>Error to the Circuit Court of Tuscarawas County.</p> <p>In the court of common pleas Quillen sued Fisher & Lanning in an action for money only. In one of the journal entries appears the following: “And now come the defendants and in open court offer to confess judgment in favor of the plaintiff for one hundred and ninety dollars and costs to and including- this date.” Subsequently, the following judgment was entered: “It is therefore considered and adjudged by the court that the plaintiff, Oscar A. Quillen, recover from the defendants; Craft Fisher and Wayne Lanning, partners doing business under the name of Fisher & Lanning, the said sum of one hundred and eighty-nine, and 21-100 dollars, as heretofore by the verdict of the jury found due him, and the amount</p> <p>here recovered by the plaintiff being less than the amount the said defendants heretofore, in open court, to-wit, on' the twenty-second day of September, 1904, offered to. allow judgment to be taken for, it is considered by the court that said plaintiff recover of said defendants his costs herein prior to the time of said offer to confess. And it is ordered that said plaintiff pay all costs made herein since said offer, for which judgment i.s rendered against him. And judgment is rendered against said defendants for their own costs prior' to said offer to confess. To which judgment of the court as to costs plaintiff excepts.”</p> <p>Quijlen prosecuted error in the circuit court, which court found that the' court of common pleas erred in its judgment as to costs, and adjudged that Quillen recover from the defendants all of his costs.</p>

<p>Foreclosure of mortgage given to secure bonds — Bondholders become purchasers — Purchase price paid in bonds- — Sheriff not entitled to poundage — Section 1230, Revised Statutes.</p> <p>1. Under Section 1230, Revised Statutes, a sheriff is not entitled to poundage upon the sale of mortgaged premises under an order of sale in foreclosure, where the real estate so sold by him is bid off and purchased by one who is entitled to the whole of the proceeds arising from the sale, although such purchaser was not a party to the suit in which the decree of foreclosure was made and the order of sale issued.</p> <p>2. In a suit for the foreclosure of a mortgage commenced and prosecuted by the mortgagee, as trustee for the holders of the bonds secured by said mortgage, such proceedings were had that the mortgaged property was duly advertised and sold by the sheriff, and was bid off and purchased by said bondholders; the purchase price being paid by them- — as authorized by the provisions of the mortgage and the terms and conditions of the sale — by their paying in cash a sufficient sum to cover the costs and expenses of sale, and the residue by the surrender to the sheriff of the bonds secured by said mortgage in an amount sufficient to cover the balance of said purchase price, Held, that the sheriff was not entitled to charge and collect poundage on the amount of the bonds so surrendered, as for “money actually made and paid.”</p>

<p>Superintendent of county infirmary — Not a public officer — May be removed without cause, when — May enjoin adverse claimant — ■ Section 6760, Revised Statutes.</p> <p>1. The superintendent of a county infirmary is not the holder of a public office within the meaning of Section 6760, Revised Statutes, and quo warranto is not the proper remedy to oust him from office.</p> <p>2. When the term for which su'ch superintendent was appointed has expired, no order of the board of directors for his removal is necessary, and therefore no cause need be assigned by said board for the termination of his term.</p> <p>3. One who has been duly appointed superintendent of a county infirmary, has qualified according to law, and has been put in possession of the infirmary by the board of directors at the beginning of his term, may maintain injunction to protect himself in the possession of the office against an adverse claimant whose term has expired, but who threatens and attempts to interfere with and obstruct such superintendent in the discharge of his duties.</p>

<p>Error to the Circuit Court of Richland County.</p>

<p>Error to the Circuit Court of .Allen County.</p> <p>In the court of common pleas Gratz sought to enjoin the company from interfering with his construction of a farm crossing over its road, his land lying on both sides thereof. In the court of common pleas final judgment was rendered on the pleadings. In his petition Gratz alleged that he is the owner of more than fifteen acres of land which he definitely describes, portions' thereof lying upon either side of the company’s track; that he is using said land for the purposes of agriculture; that without a private crossing over the company’s track he could not pass from his land upon one side thereof to that upon the other without the great inconvenience of going more than a mile across other lands and by public roads; that on the first day of April, 1903, he served a notice on the company requiring it to construct a private crossing within four months from that date in accordance with the requirements of Section 3327 of the Revised Statutes, and that the company having failed to comply with that notice on the sixth day of August, 1903, he served upon it a further notice as required by Section 3328 of the Revised Statutes that on or after August 25, 1903, he would enter upon its right of way and construct said crossing at its cost. He further alleged that the company threatened to and unless restrained would prevent his constructing said crossing. He prayed for a temporary injunction restraining the company from interfering with such construction and that upon the final hearing the injunction be made perpetual. Upon the filing of the petition a temporary injunction, was allowed by the common pleas court.'</p> <p>The company answered admitting the service of the notices upon it by Gratz and alleging the following facts which the reply of Gratz admits: That its road had been constructed and in operation for more than thirty years; that the lands of Gratz were not at the time of the construction of the railroad in the same ownership, he not having acquired the tract on one side of the railroad until the 10th of August, 1902, and that after the allowance of the temporary injunction he had completed the construction of the crossing. It prayed for a mandatory injunction requiring Gratz to remove the crossing and restore the company’s property to its former condition. On the hearing upon the pleadings the common pleas court dismissed the petition and allowed- the mandatory injunction prayed for by the company and rendered judgment in its favor for the costs of the suit. That judgment was affirmed by the circuit court.</p>

<p>Negligence of both plaintiff and defendant — Plaintiff cannot recover, when — Doctrine of “last chance” applies, when — Plaintiff can recover only upon allegations of his petition — Instructions to fury.</p> <p>1. Where both the plaintiff and the defendant were negligent, and the negligence of both directly contributed to produce the injury, the plaintiff has no right to recover; and in such case, . when the defendant asks the court to so instruct the jury, in unambiguous terms, a refusal to so instruct is error. Pittsburg, Ft. W. & C. Ry. Co. v. Krichbaum’s Admr., 24 Ohio St., 119, and Timmons v. Central Ohio Railroad Co., 6 Ohio St., 103, approved and followed.</p> <p>2. The doctrine of “last chance,” as formulated in Railroad Co. v. Kassen, 49 Ohio St., 230, paragraph one of syllabus, does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.</p> <p>3. Since the plaintiff car recover only upon the allegations of his petition, he cannot recover upon negligence which warrants the application of the rule of “last chance” without alleging it in his petition.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>J. B. Livingston and Frederick L. Taft, as trustees of The Guarantee Savings & Loan Company, were the plaintiffs in the action below out of which this error proceeding arises, and are plaintiffs in error here, and The Fidelity & Deposit Company, of Maryland,, was the defendant in the action and is the defendant in error here.</p> <p>It ■ appears from the record that The Guarantee Savings & Loan Company was a corporation, organized long prior to October 8, 1901, under the laws of Ohio, having its principal place of business in the city of Cleveland, and that by quo warranto proceedings in this court the Company was, on the above date, ousted from its right to be a corporation, and the plaintiffs in error were appointed trustees to wind up its business concerns. The Fidelity & Deposit Company is a Maryland corporation authorized to do business in Ohio, having an office at Cleveland, for the purpose of executing bonds guaranteeing the fidelity of employes.</p> <p>The action of the trustees was based upon one of these guarantee bonds executed by the defendant to the Loan Company June 1, ' 1896, for a consideration in money then paid,' undertaking to guarantee the fidelity of certain employes of the Loan Company. The bond was continued in force from year to year based upon written applications which had attached certificates and schedules enumerating the officers whose honesty was to be guaranteed and indicating their duties, the purpose of each of which was to obtain a continuance of the obligation of the bond. Recovery was sought for alleged embezzlement and larceny by one Jacob A. Blodt, secretary of the Loan Company, in the sum of ten thousand dollars. Issue was taken by the defendant by answer, a number of separate defenses being pleaded, and liability being denied. By reply plaintiffs took issue as to the new matter. Further facts are stated in the opinion. At the trial of the cause at January term, 1906, of the common pleas of Cuyahoga, upon conclusion of the testimony offered' by plaintiffs,' a motion was interposed by defendant to the court to direct a verdict, for defendant, and the court being of opinion that the evidence adduced by the plaintiffs had, under the law applicable to the facts shown, entirely failed to make a case against defendant, sustained the motion. A verdict was rendered accordingly, and judgment for defendant entered thereon, which on error to the circuit court was affirmed.</p>

<p>Drain laid by property owners — In public street — Used as sewer emptying into stream — City liable to riparian owners, when— Parties using sewer not jointly liable, when — Power of municipality to prevent nuisances — Municipal law — Law of nuisqnces.</p> <p>1. Where a drain laid by property owners in a public street, under permission from the city, empties into a natural stream, and thereafter, without express license from the city, is used.as a , sewer to discharge sewage info the stream to the injury of a lower riparian owner, the drain is a nuisance, and the city is liable for negligence in not abating it.</p> <p>2. Where different parties discharge sewage and filth into a stream, which intermingle and cause an actionable nuisance, they are not jointly liable for damages when there is no common design or concert of action, but each is liable only for his proportion of the damages.</p> <p>3. The power given to a municipality to prevent injury or annoyance from anything offensive or unwholesome, and to cause any nuisance to be abated, is governmental, and' the municipality is not liable for damages from a private nuisance resulting from its omission to exercise the power by the adoption of resolutions or ordinances, or for damages from such nuisance oc- • casioned by a failure of its officers to enforce resolutions or ordinances adopted in the exercise of that power.</p>

<p>School board may make and enforce rules for vaccination — Section ■ 3986, Revised Statutes, a valid enactment — Children not vaccinated may be excluded from public schools, when — Constitional law — Interpretation of law.</p> <p>1. Section 3986, Revised Statutes, authorizing and empowering the • boards of education of each school district, “to make and enforce such rules and regulations to secure the vaccination of, and to prevent the spread of smallpox among the pupils atr ten dirig or eligible to attend the schools of the district,, as in its .opinion the safety and interests of the public require,” is a valid enactment, not repugnant to the constitution of the state of Ohio, nor violative of the Fourteenth Amendment to the constitution of the United States. And under the power thereby conferred, boards of education, in the exercise of a sound discretion, may exclude from the public schools all. children who have not been vaccinated.</p> <p>2. The enactment of said statute by the general assembly was but a reasonable exercise of the police power of the state, and under its provisions, the validity of the action taken by a board of education in excluding from the public schools* all children who have not been vaccinated, or who do not furnish 'a physician’s certificate excusing them from vaccination, does not depend upon the actual existence of smallpox in the' school district or community, nor upon the apprehended epidemic of that disease.</p> <p>3. Whether a rule or regulation adopted by the board of education under favor of the provisions of .above Section 3986, is a reasonable rule or regulation, is to be judged of in the first instance by the board of education, and the courts will not interfere, unless it be clearly shown that there has been an abuse of official discretion.</p>

<p>Municipal ordinance — Granting right to gas company to operate in city — Company to pay annual stipend to city for benefit of gas fund, etc. — Valid—Upon acceptance becomes contract — Grant not exclusive — City authorizes second company to operate— Contract with first company not vitiated — Municipal corporations — C ontracts.</p> <p>1. Where a municipal corporation by an ordinance passed by its council grants to a gas company the right to lay its pipes and other appliances in the streets and other public places within the corporation, for the purpose of selling and distributing its gas for public and private use, such council may require the gas company to pay annually to such municipal corporation a reasonable sum to compensate for the city’s necessary supervision of the work as well after as during its installation; and when the gas company accepts the terms of said ordinance according to law, and takes possession of and occupies the streets, et cetera, under-said grant, such accepted ordinance becomes a valid contract between the parties for the annual payment of said sum. The clause in the ordinance here involved that said payments are “for the benefit of the gas and light fund of said city” does not render the ordinance invalid as a means to raise general' revenue, said clause being subordinate to the principal obligation.</p> <p>2. That the municipal authorities, subsequent to the grant to the defendant company, gave permission to one or more other gas • companies to lay pipes in the streets and other public places within the corporation for the purpose of selling and distributing gas for public and private use, constitutes no defense to an action to recover payments due under the provisions of the former ordinance, because:</p> <p>(а) The said former ordinance under which the defendant holds does not purport to give to defendant an exclusive right to the streets for the purposes of its business.</p> <p>(б) The latter part of section six of that ordinance provides “that nothing herein contained shall be construed as granting exclusive rights or privileges, or preventing any other company from furnishing gas to the citizens of said city of Columbus.”</p>

<p>The court having affirmed validity of act — And subsequently decided act void — Authorizing certain public contracts — The contracting party is entitled to compensation for performance— Rendered before action challenging validity of law — Lazo of contract — Tax inquisitor contract.</p> <p>This court having affirmed the constitutional validity of a legislative act passed to authorize contracts for services to be rendered to the public, and such a contract having been entered into and services performed toward its execution, the party performing them is, notwithstanding our subsequent decision that the act is constitutionally void, entitled to receive the stipulated com' pensation for such services as he has performed before the filing of the petition in an action which challenges the validity of such contract, this court not having in the meantime qualified or overruled the decision upon which the party relied.</p>

The plaintiff in error brought suit in the court of common pleas for a writ of mandamus to compel the defendants in error to admit his children of school age to the school located in Mount Carmel special school district.

<p>Error to the Circuit Court of Cuyahoga County.</p> <p>Under the provisions of an act of the general assembly of Ohio, passed April 18, 1904 (97 Ohio Laws, m), a building commission was appointed in Cuyahoga county for the purpose mentioned in that act. The commission adopted plans, specifications, and estimates for a court house to be erected in that county, and then invited bids and awarded a contract to one of the bidders for the erection of such court house. This action was brought in the court of common pleas by the prosecuting attorney at the request of a taxpayer, to enjoin the making of, and proceedings under, such contract, on the grounds that the act under which the commission was created is unconstitutional; that reservation by the commission of its choice of materials to be used in the construction of the building, until after the bids were received, was illegal; that the action of the commission, and of the successful bidders, with regard to the choice of interior marble, was illegal; and that the action of the commissioners in other respects was illegal. The common pleas court, after a hearing, denied the relief prayed for, whereupon the action was appealed to the circuit court, which granted a perpetual injunction against the defendants, plaintiffs in error here, restraining them from entering into the proposed contract. This proceeding in error is prosecuted to reverse the judgment and order of the circuit court.</p>

<p>Error to the Circuit Court of Cuyahoga County.</p>

<p>Error to the Circuit Court of Muskingum :ounty.</p> <p>The suit out of which the present controversy arises was a proceeding brought in the probate court of Muskingum by the Zanesville, Marietta & Parkersburg Railroad Company to appropriate certain lands in that county for its.line of railroad. All preliminary questions having been found in favor of the Company a jury was duly summoned, which, after having been sworn and instructed, made a view of the premises, and on their return, having heard the evidence, arguments and charge of the court, found as compensation for land .taken $402 and damage to the residue $800. Motion for new trial by the land-owners having been overruled, the verdict was confirmed and due order made for possession upon the payment into court by the Company of the amount so found. From this finding and judgment the land-owners took error to the common pleas, by which court the judgment was affirmed. Error was then prosecuted to the circuit court by which court the judgments below were reversed on the ground that the verdict was against the weight of the. evidence and the cause was ordered remanded. To this judgment of reversal-the company brings error.</p>

<p>Remuneration of public officer — Only such permitted as allowed by law — Arrest of felon by constable — Latter not entitled to reward, when — Law of public service.</p> <p>1. Public policy and sound morals alike forbid that a public officer should demand or receive for services performed by him in the discharge of official duty, any other or further remuneration or reward than that prescribed and allowed by law.</p> <p>2. The office of constable is not an office created for the private emolument of the holder. Every constable is a conservator of the peace, and it is his duty, within his jurisdiction, “to apprehend and bring to justice all felons and disturbers and violators of the criminal laws of, the state,” without other reward or compensation therefor than such as is fixed and allowed by law.</p> <p>3. A constable who, within his jurisdiction, arrests a person who has committed a felony, will, in making the arrest, be presumed and held to act in his official capacity, whether such arrest be made by him under, or without a warrant. And the law will not permit him to claim that an arrest made, pursuant to official duty, was made by him in his individual capacity as a private citizen.</p>

<p>Error to the Circuit Court of Lucas County.</p> <p>On the first day of February, 1906, the defendant in error filed in the court of common pleas of Lucas county a petition against the said David T. Davies, Jr., as auditor, and Peter Parker as. treasurer of that county, and also made James M. Brown, W. H. H. Smith and Wm. E. Malone, as members of the board of review pf the city of Toledo, defendants.</p> <p>• The plaintiff in that action, now defendant in error, alleged its ownership of certain real estate in the city of Toledo, situate in the well improved and valuable part of the city, which, at the decennial appraisement of 1900, by the action of the decennial district appraisers, the decennial board of equalization and revision, and the state board of equalization, was valued at $16,380 as its tax value for the decade of 1900 to 1910, at which valuation it was placed on the tax duplicates and so remained until the year 1905. This property, the petition says, with all the other ■ real estate in Lucas county, in the year 19001, was duly appraised at the decennial appraisement for that year, and the same was, with other real estate in the county duly equalized by the proper boards selected for that purpose, and that thereafter said appraisals of the county were equalized with similar appraisals from all the counties of Ohio, by the state board of equalization. In said state equalization, the state board found that the appraisal of real property in the city of Toledo was five per cent, too high, and ordered a reduction of that per cent., which reduction was made by the auditor of Lucas coufity on its grand duplicate as the amount of valuation for the decennial period to 1910 — which valuation as to plaintiff’s property was $16,380. The auditor of the county gave the required notice of the reduction so made and of the time and place of meeting of the boards of revision of the county and city. No changes were made by them as to plaintiff’s property, and said last valuation became fixed and so remained on the duplicate until the close of the tax year of 1904, and that except as to new structures erected, or structures destroyed, said last valuation of the other real property, in the county also remained the same to the close of the tax year of 1904. •</p> <p>Since the decennial appraisement of 1900, no new structure has been erected on the property of the plaintiff, and there has been no increase in the value of its property since 1900, except as in common with the other real estate m Toledo, the real property of the county .outside the city and other real property in the state of Ohio.</p> <p>It is also alleged, that the defendants who compose the board of review, arid acting as such board, during the year 1905, selected twelve blocks of lots in the city of Toledo, of which plaintiff’s property is a part, and publicly proclaimed that they would proceed to make a new appraisal thereof for' the purpose of fixing a valuation for taxation upon the duplicates for that - year. The boundaries of these blocks are given in the petition. It is then averred that no complaint had. been filed with said board or with the county auditor by any taxpayer that any error existed in said decennial valuation which required a special equalization as between plaintiff’s property and other real property in said city or courity, and that in order to have a “complaint” the clerk of the board of revision was ordered to file complaints concerning the tax valuation of the lots composing said twelve blocks, which complaints so made by the clerk were the only complaints filed with the board.</p> <p>The board of review then notified the lot owners of a time and place of hearing, when “said board would consider and act upon a petition to review for taxation and to revalue and equalize the valuation of real estate which is described on the tax duplicates of the current year,” et cetera. .</p> <p>At the hearing, testimony was heard concerning the then value of said lots respectively, but no testimony was taken as to the value of the lots at the time of the last decennial appraisement, or as to the relative value as between such parcels respectively as "of the date of said decennial appraisement, or of the value of any of the realty in said twelve blocks in relation to the value of the other realty in the city of Toledo. As a result of the hearing the board added to the decennial valuation of plaintiffs property the sum of $8,430 which it certified to the auditor to be placed on the duplicate, which was done by the auditor and the duplicate so increased was delivered to the treasurer for collection.</p> <p>It is further alleged that substantially all lands outside of and adjacent to the city of Toledo, since said decennial appraisement, have increased in value in proportion to the value fixed by the decennial appraisers, in a greater ratio than the increase in value of said twelve blocks, or any part thereof, and that all lands surrounding the larger cities of the state have also increased in value in substantially a like ratio since said decennial appraisal, and that no general re-appraisal of said real estate .outside the municipalities has been made or attempted to be made, and that the time to hear complaints and correct' errors in said decennial appraisement has gone by, whether they were errors of omission of properties, or because of gross over or under valuation. It is also complained of, that if all the realty in the state had been re-appraised for taxation for the year 1905 according to the same rule of valuation applied by' the board to plaintiff’s property and the remainder of the twelve blocks, a rate of taxation for 1905 substantially1 lower than the rate which has been imposed on the property in the state would have produced an adequate and equal revenue for all the purposes of taxation, and would have charged plaintiff’s property with a payment of no larger sum than was charged for the year 1904.</p> <p>It is charged that since said board re-appraised the twelve. blocks and charged them with the additional burden, it revalued another nearby block and found it to be below real value in the sum of $123,410, but that the latter block still stands on the duplicate at the decennial valuation, except as to new structures; and that the levies for state, county and municipal taxes for the year 1905 were made upon the grand total of the duplicates of 1904, and that there was no public necessity for said revaluation. The petition proceeds to state grounds for holding the act providing for the boards of review unconstitutional, because of want of uniformity in rules of taxation; and that all the acts of the board complained of are in violation of plaintiff’s rights as guaranteed by section 26 of article II, and section 2 of article XII, of the constitution of Ohio, as well as by the constitution of the United States.</p> <p>■ The plaintiff tendered the treasurer, Parker, .the first half of the tajees due in 1905, less the taxes on the increase of valuation, which tender was refused, and the treasurer threatened to place the property on the delinquent list and thereby cast a cloüd upon plaintiffs title. The prayer is for an order of abatement of taxes. charged upon the new valuation; and an injunction against in any way subjecting its property to the increased taxation. The foregoing is the substance of the allegations of fact made in the petition.</p> <p>The auditor and treasurer demurred generally to the petition. The board also filed a general demurrer. The court of common pleas sustained these demurrers. On appeal the circuit court overruled the demurrers and granted the injunction prayed for in the petition. The case is here on error to reverse the judgments of the circuit court.</p>

<p>Error to the Circuit Court of Hamilton County.</p> <p>Catherine Schaefer intermarried with Ludwig Schaefer, a widower, and during coverture acquired certain real estate in Hamilton county, the real estate being particularly described in the petition. It has been claimed in the case by the plaintiffs in error that the husband had furnished the consideration for the purchase, and under circumstances which charged the title in her with a resulting trust in their favor. That claim, however, disappears from the case in view of the findings of fact made by the circuit court. ' On October 9, 1899, Mrs. Schaefer by valid last will and testament made the following disposition of her property: “I give and bequeath all my estate, real, personal or mixed, wherever the same may be, to my beloved husband, Ludwig Schaefer.” In the year 1900 Ludwig Schaefer died, leaving the plaintiffs in error, his children ,by a former marriage, his heirs at law. In June, 1902, Catherine Schaefer died, leaving no child, but leaving the defendants in error, who are her brother and sister, and the children of a deceased brother, her heirs at law. Notwithstanding the prior death' of her said hus.band, she left said instrument as her last will and testament. The plaintiffs in error claimed the property as the issue of the devisee surviving the testatrix. The circuit court adjudged that the property passed to the defendants in error, the heirs at law of the testatrix, upon the view that the devisee having-died before the testatrix, the devise lapsed and the subject of it passed as intestate property.</p>

<p>Error to the Circuit Court of Hancock County.</p> <p>The plaintiff below brought suit to recover damages for an injury which he received while in the employ of- the Railroad Company and while he was upon a cut of cars working as a car repairer, in consequence of the failure to display signals, as required by the rules. When the plaintiff entered into the employment of the defendant below, he was shown certain printed rules of the Company and asked to read them, which he did. He was then asked if he understood them and said that he did, and he then signed a paper which contained a statement and promise that he had read those rules and would obey them. The rules, which were admitted in evidence upon the trial, were as follows: No. 36. “A blue flag by day and a blue light by night, placed .’on.the end of a car, denotes that car inspectors or car repairers are at work under or about'the.car or, train. . The car or train thus protected must not be coupled to or moved, until the blue signal is removed by the car. inspectors or car repairer.” No. .377. “Car inspectors report to and receive their instructions from master mechanics. They are.required to be fully conversant with,.the rules •governing interchange of ■ cars and inspect cars in accordance with same and with instructions .issued by the, superintendent of motive power'; must be prepared to make- any slight repairs that may be required, must be thoroughly familiar with the construction and manipulation of-air brake and steam heat equipment and air signal. When inspecting and repairing cars that shohld not be moved, they must protect themselves by placing conspicuously a blue signal at both ends of the car, as provided in rule 36.” No. .378. “Car repairers report to and receive their instructions from the foreman of the car repairers under the authority of the master mechanic. They are required in all cases, when doing work on or under cars which should not be moved, to see for themselves that a blue flag by day, or a blue light by night, is placed at each end of the car or cars upon which they are working.”</p> <p>The case was submitted to the jury substantially upon two propositions of law. First, whether Whalen, who was a car inspector and repairer, and who had called the plaintiff to the work which he was doing and was directing him in regard thereto, was the superior of the plaintiff; and whether the plaintiff was actually under his direction and control and bound to obey him, 'either by the terms of his employment or by the exercise of such custom or authority as was usual in the conduct of that particular business in behalf of. the Railroad Company. Second, if the jury should find that Whalen did have the. power and authority of direction and control over the plaintiff at the time of the accident, and that Whalen designated the place where plaintiff was at work when he was injured, and that plaintiff proceeded to work under such circumstances and conditions as gave him to understand in face of the rules requiring him to place a blue flag-at either end of the cars, that such flags had been so placed by Whalen, and that it was because such flags had not been placed that the accident occurred, the verdict should be for the plaintiff. The defendant moved the court to arrest the testimony from the jury and direct a verdict for the defendant, and also requested the court to charge the jury, that the court as a matter of law directs the jury to return a verdict in favor of the defendant Railroad Company, and also that it was the duty of the plaintiff himself under the rules to see that the blue flags were displayed while at work on this car, and that if he failed to so display them he could not recover. The court overruled the motion tó direct a verdict and refused to give the instructions requested. The verdict and judgment were for the plaintiff in the court of common pleas, and the judgment was affirmed by the circuit court. This proceeding in error is to reverse the judgment of both courts. ' .</p>

<p>Prosecution for unlawful sale of intoxicating liquors — Under Section 4364-25, Revised Statutes — Evidence of refusal to sell at other times — Inadmissible—Error for court to charge that one may not treat guest to drink in his home, when — Laws of evidence.</p> <p>1. In the trial of a prosecution under section 4364-25, Revised Statutes, for keeping a place where intoxicating liquors are kept for sale, given and furnished as a beverage, and for an illegal sale of intoxicating liquors to be used as a beverage, it is error to admit, over the objection of the state, testimony that the defendant, at other times refused to sell or give away such liquor as a beverage to the same or other persons.</p> <p>2. Where, in such case, the evidence tends to show that the place was a room used for business purposes, and commonly called a barroom, and does not tend to show that the same was or had been used as a dwelling or part thereof, it is misleading, and for that reason error for the court to charge the jury that the law was never intended to prevent a man from, in his own home, treating a friend, if he is his guest, to a drink of liquor, for a man has a right to give to a guest, that is a visitor, to his home, as a guest, intoxicating liquors, if it be done in good faith and without any intention of violating the law. Such charge offends against the rule that the instructions to the jury should be confined to the case which the evidence tends to establish.</p>

<p>Error to the Circuit Court of Montgomery county.</p> <p>The plaintiff, defendant in error, in his amended petition, avers that he was driving in a grocery wagon upon one of the streets of the city, that the street was out of repair and dangerous to travel thereon in vehicles, because of the great number of holes therein from three to i five inches deep, when the wheels of the wagon ran into two of the holes, whereby it was so severely jolted that the curtains, which were rolled up and buttoned at the top, were unloosened, and being blown downward and outward by the wind and making a. noise, the plaintiff’s horse frightened thereat and ran away and threw plaintiff out, whereby he was permanently injured.</p> <p>A general demurrer being overruled the city answered, and at the close of plaintiff’s evidence the court directed a verdict for the defendant. On error the circuit court reversed.</p>

<p>Public streets and grounds are held in trust for the public — Subject to rights of abutting owners — Under control of legislative power of state — Municipal authorities may grant right of way to railroads', when — Sections 3283, 3337-1, 3337-17» and 3337-176, Revised Statutes, construed — Rights of eminent domain — Ordinance of Cincinnati council as to right of ivay for L. & N. railroad — Passed November 7, 1904, and amended August 28, 1905, is void — Municipal law.</p> <p>1. Public streets, squares, landings and grounds are held in trust for the public, and being so held they, are, for the use for which they were dedicated or acquired and subject to the property rights of the abutting owners, under the absolute control of the legislative power of the state. In this state the care, supervision and control of public highways, streets and grounds in cities is delegated to the council; but, notwithstanding this delegation of general power over them, the state, now and since 1852, has in'express terms delegated to cities the power to grant to railroad companies the right to occupy or incumber and use them, or in express terms has‘made the right subject to agreement with the municipal authorities as -to the manner in which they are to be occupied, so that the general power of care, supervision and control, that has been delegated to cities,does not carry with it the power to'grant such right. . ;</p> <p>2. Neither Sections 3283, 3337-1, 3337-170, 3337-17&, nor the act entitled: “An act to provide how railroad and highway crossings may be constructed,” 97 Ohio Laws, 546, authorize, a municipality to grant to a railroad company the right to • occupy-a public common or landing with an elevated railroad structure.</p> <p>3. It is not in the power of the legislature, unless in the exercise of the power of eminent domain, to authorize property, dedicated to the public for a specific purpose, to be used for a purpose inconsistent with the purpose for which it was dedicated.</p> <p>•4. The ordinance of the council of the city of Cincinnati, entitled: “An ordinance agreeing upon the manner, terms and conditions upon which The Louisville & Nashville Railroad Company may use, occupy and cross over, along and upon the streets, alleys and public grounds of the city of Cincinnati, for the purpose of constructing, maintaining and operating an -extension of its steam railroad from a point at or near pier No. 1, on- the Ohio side of the Newport and Cincinnati bridge in the city of Cincinnati, to the site of a proposed depot south of Water street, between. Vine and Plum streets, in said city,” passed November 7, 1904, and' as amended August 28, 1905, is void.</p>

<p>Error to the Circuit Court of Lucas County.</p> <p>■ Plaintiff in error, as the personal» representative of Raymond March, deceased, brought suit in the court of common pleas of Lucas county, Ohio, against the defendants in error, The Central Construction Company and Edward S. Hatch, a superintendent or foreman in the employ of said company, asking to recover against them jointly damages in the sum of ten thousand dollars, for wrongfully causing the death of said Raymond March, who was also an employe of The Central Construction Company, and at the time of his death was engaged in its service, under the immediate direction and control of the said Edward' S. Hatch, superintendent or foreman of said company. The death of March was occasioned by and resulted from the negligent acts and conduct of Platch, the superintendent or foreman. The issues being duly made up the cause came on for trial to a jury. At the conclusion of the plaintiff's evidence, and after the plaintiff had rested his case, the defendant, Edward S. Hatch, moved the court' to require the plaintiff to make his election whether he would prosecute his action against him, the said Edward S. Platch, or against the defendant, The Central Construction Company. The court upon consideration sustained this motion and caused to be spread upon its journal the following entry: “This day this case came on for trial, and a jury having been empaneled and sworn, and the plaintiff having introduced all his evidence and having rested his case, the defendant, Edward S. Platch, moved the court to require the plaintiff to elect as to whether he would prosecute this action against the said defendant, Hatch, or against the defendant, The Central Construction Company.</p> <p>“Upon consideration of the said motion, the same was granted by the court, and the plaintiff was ordered and directed to prosecute this action against either the defendant, Hatch, or the defendant, The Central Construction Company, and was denied the right to prosecute the same jointly against the defendants hereto, to which action of the court the plaintiff then and there duly excepted, and with. which order of the court the plaintiff then and there refused to comply, and requested that the case be submitted to the jury, which request was denied, to which plaintiff excepted.</p> <p>“Thereupon, by reason of the failure of the plaintiff to comply with the said order, the court withdrew a juror and dismissed this action. To all of which this plaintiff duly excepted.</p> <p>“This action is dismissed solely upon the refusal of the plaintiff to comply with the order of the court requiring him to elect which of said defendants he shall prosecute herein, and not upon the merits of plaintiff’s cause of action.” This judgment of dismissal was affirmed by the circuit court and error is now prosecuted to this court asking a reversal of both the judgments below.</p>

<p>Error to the_ Circuit Court of Hamilton County.</p> <p>On the 24th day of June, 1906, the plaintiff in error petitioned the Honorable John A. Caldwell, a judge of the court of common pleas of Hamilton county, for a writ of habeas corpus to be issued to the sheriff of Hamilton county, and as a ground for the issuing of the writ Burns alleged that one Frank Tarbox, claiming to be the sheriff of Greene county, Ohio, was unlawfully holding and depriving him of his liberty. Judge Caldwell allowed the writ to issue returnable June 29, 1906, at ten A. M., before Hon. James B. Swing, a judge of said court of common pleas, or in case of his absence or disability, before some other judge of said court. The sheriff of Hamilton county,, in pursuance of the writ, took said Burns before Judge' Swing, where the cause of his detention by Tarbox was inquired into. The case was heard, the petition dismissed and Burns was remanded to the custody of the sheriff of Greene county. Motion for new trial was overruled, a bill of exceptions allowed and error was prosecuted by Burns in the circuit court. The latter court affirmed the judgment of the court of common pleas. Further history of the case appears in the opinion. The case is here on error to reverse both judgments.</p>

<p>Road supervisor and his workmen — Are liable in damages — For diversion of water from natural course, when.</p> <p>A road supervisor and those -working upon the roads under his direction are, without regard to the motive which prompts them, liable in compensatory damages for the diversion of water from its natural course, and casting it upon the lands of another, no right to make- such diversion having been acquired by the public.</p>

<p>Defendant may testify — But refusal to do so — Not presumption against him — Section 7286, Revised Statutes — State must establish guilt beyond reasonable doubt, when — Criminal law — -Evidence.</p> <p>1. In Section 7286, Revised Statutes, which makes the person accused a competent witness on the trial of an indictment at his own request, but not otherwise, the provision, "but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, or any comment be made upon, such neglect or refusal,” is intended to give full effect to his immunity from all obligations to furnish evidence against himself because’of his silence, and the reference thereto' which is forbidden is such as would suggest or encourage an inference of that character.</p> <p>2. Upon such trial an instruction to the jury that the failure of the accused to testify does not relieve the state from the obligation to produce evidence which will establish guilt beyond a reasonable doubt is not an error for which a judgment following a verdict of guilty should be reversed.</p>

. Both' of these cases were actions to recover for loss by fire and upon,policies of insurance containing .stipulations as stated in' the opinion.

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

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

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

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

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

<p>Error to Circuit Court of Mahoning county,</p>

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

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

<p>Error to Superior Court of Cincinnati.</p>