Volume 8 — Ohio Circuit Court Reports, New Series

The suit below was by the Commissioners of Scioto County, Ohio, to recover from Ketter, who was the duly elected, qualified and acting, sheriff of this county, certain sums he had collected, viz., fees which were collected and taken from the treasury of Scioto county, claimed to be without warrant or provision of law. First. That plaintiff had no legal capacity to sue.

Referring to the case of Raymond v. Cleveland, 42 O. S., 522, cited approvingly in the Seasongood case, we have in the syllabus this language, after statement that proceedings were taken for the… Held: At the bottom of page 401 and on page 402, Judge Smith says: “The assessment on each o£ the lots exceeds twenty-five per cent, of the value thereof. The question is, whether the excess of the assessment over twenty-five per cent, of the value should be enjoined.”

“The right of lateral support is held to be, not a mere easement, but as part of the owner’s property in the land. It is regarded as a right of property which necessarily and naturally attaches to the soil, and passes with it.

<p>CONTROL AS TO BRIDGES OVER NAVIGABLE WATER-WAYS.</p> <p>The act of March 24, 1904 (97 O. L., 53), authorizing county commissioners to remove bridges which have been condemned by the War Department, under authority of law as an obstruction to navigation, and rebuild them in accordance with plans for the improvement of navigation, is a valid law; and the order of the Secretary of War with reference to the removal of the county bridge over the Ashtabula river, on Bridge street in the city of Ashtabula, Ohio, was a valid order.</p> <p>Burrows, J. (dissenting. )*</p>

Thereupon the court proceeded to charge the jury very briefly indeed and says to them: That case was affirmed by the Supreme Court in 51 O. S., 562.

Points from brief of Basil Meek, of counsel for plaintiff in error: For a statement of tbe facts in tbis action, reference is made to 3 N. P.—N. S., 303. Held: “A contract made by the county commissioners for the purchase and erection of a bridge in violation or disregard of the statutes on the subject, is void, and no recovery can be had against the county for the value of such bridge.

<p>INFORMALITY IN THE BORROWING OF MONEY BY A BOARD OF EDUCATION.</p> <p>Constitutional Law—Section 28345 Void in Part—Liability of Board of Education—For Money Borrowed without Form of Law—Injunction.</p> <p>1. Section 28345, in so far as it applies to boards of education, is unconstitutional for lack of uniformity of operation; and failure on the part of a board of education to comply with the requirements of this section in incurring an obligation does not render the obligation void.</p> <p>2. But even if failure to comply with statutory requirements should render a note executed by a board of education unenforcible at law, the principles declared in 11 C.' C., 41, require recognition by the board of the obligation incurred, and would prevent an injunction lying against its collection.</p>

Tbe action in the court below is entitled “John W. Kerr, L. B. Bailey and Frank Wortsmith, as the Board of County Commissioners of… Held: that the seminary had ‘ceased’ within the meaning of the contract, and the contingency had happened upon which plaintiff was entitled to demand the sum advanced; that a formal dissolution of the corporation was not necessary, and that upon refusal to pay the money on demand, plaintiff was entitled to foreclosure.” It will be observed…

<p> Venue—Prosecution for Illegal Fishing—In Stream Forming Boundary Line Between Two Counties—Charge of Court. </p> <p>1. Where an island in an unnavigable stream forming the boundary line between two counties, lies substantially south of what would be the middle thread of the entire stream, extending only eight or ten feet north thereof, and the channel south of the island is not more than half the width of that on the north, the boundary line follows the thread of the northern channel, and the island lies in the southern county.</p> <p>Wildman, J. (orally); Parker, J., and Haynes, J'., concur.</p>

<p>IMPLIED WARRANTY OF GOODS SOLD.</p> <p>Parker, J.; Haynes, J., and Hull, J.-, concur.</p>

<p>Parker, J.; Haynes, J., and. Wildman, J., concur.</p>

<p>DANGER. TO CHILDREN FROM MAINTENANCE OF A BODY OF WATER.</p> <p>PIenry, J.; Marvin, J., and Winch, J., concur.</p>

<p>3. The good faith of the company in claiming such services to be unsatisfactory will not alone justify the discharge, if the services rendered were, in fact, such as ought to have been satisfactory to a reasonable employer.</p> <p>Hurin, J.; Norris, J., and Yollrath, J., concur.</p>

To that petition an answer has been interposed as follows: ‘ ‘ The defendant for answer to the petition herein filed, admits that he is the Clerk of the Courts of Muskingum County, Ohio, and duly qualified and acting as -such, and that at the September term of the Court of Common Pleas of Muskingum County, Ohio, a certain action was pending in said courts, wherein Louis Soller was the plaintiff and Andrew Arnold was the defendant.

This disposes of the proceeding in mandamus brought against the county commissioners and treasurer. We think it is clear that the statute under which bids were received for the public moneys, confines the bidders to those banking corporations which have their situs in the county, and that the Cleveland Trust Company is situate, not in this county, though it has a bank here, but the corporation is located elsewhere.

<p>QUALIFICATIONS OF COUNCILMEN.</p> <p>Municipal Corporations—Qualifications of Members of Council—Inhibition against the Holding of any Other Office or Public Employment—Council the Judge of Election and Qualification of its Members—Words and Phrases—Construction of Sections 153G-G12 and 1536-613.</p>