Volume 92 — Ohio State Reports, New Series

<p>Railroads — Charter—Common carriers — Public utilities commission —Order to furnish passenger service.</p> <p>A railroad company, organized under the general laws of the state, whose charter declares its purpose of “building, acquiring, owning, leasing, and maintaining a railroad to be operated by steam or other motive power,” is amenable to the control of the railroad (now public utilities) commission in so far as its property or its traffic is intrastate; and under such a charter the company, as a common carrier, in addition to its obligations as a carrier of freight, may be required by such commission to provide reasonably adequate passenger service and facilities, if the circumstances warrant and the corporation is reasonably able' to comply with such order.</p>

<p>Railroads — Public utilities commission — Provision fixing rate— Distinguished from order requiring service — Reasonableness of order — Loss by compliance — Interurban service — Burden of proof — Franchises—Consideration therefor — State regulation— Order not violative of federal constitution, when — Error proceedings — Stipreme court — Record examined, when.</p> <p>1. A provision, whether made by statute or order of a commission, which fixes rates for the carriage of passengers or freight by a railroad company is to be distinguished from an order which requires it to furnish a particular facility or perform a duty imposed by reason of the exercise of rights and franchises which it has acquired from the state; the fact that some loss would result from compliance with the latter does not in and of itself conclusively establish the unreasonableness of the order, but is an important element to be considered with all the other facts bearing on that question.</p> <p>2. In a proceeding before the public utilities commission to compel a railroad company to continue, on a portion of its road, an interurban service which it has voluntarily established and maintained for many years, during which the personal and business relations of the people of the communities served, relying on the continuance of such service, have become adjusted thereto, the burden of showing a state of facts which justify the discontinuance of the service is on the company.</p> <p>3. The franchises, rights and privileges of a railroad company are granted because of the public nature of the business carried on by it; the resulting benefits to the public constitute the consideration of the grant, and the company while exercising such rights and franchises is subject as to its state business to state regulation, either by direct statutory provision or by an administrative body authorized to act.</p> <p>4. An order of the public utilities commission requiring a railroad company to continue an interurban service on a portion of its road, under the circumstances of this case, is not unlawful or unreasonable and is not a denial of due process of law or the equal protection of the laws or a taking of property without compensation.</p> <p>5. In the < .onsideration of a petition in error filed in this court to reverse, vacate or modify an order of the public utilities commission on the ground that it is unlawful or unreasonable, the court will examine the entire record to determine whether a finding of facts made by the commission is so involved with ■ and dependent on questions of law as to be in effect a decision of the latter.</p>

Plaintiffs in error, Julius and George Benckenstein, applied by petition to the court of common pleas of Hamilton county for a writ of habeas corpus. They alleged in their petition that they were unlawfully restrained of their liberty and imprisoned by defendant in error in the jail of Hamilton county and that said imprisonment and detention was without legal authority.

In the court of. common pleas the plaintiff, Whit-more, brought an action against The Davis Laundry & Cleaning Company, a corporation, for damages alleged to have been sustained by the refusal of the defendant to carry out its contract for the purchase of stock in The Ideal Laundry Company, another corporation engaged in a business kindred to the defendant company. ' The petition alleges that the capital stock of The Ideal Laundry Company consisted of 250 shares of the par…

This was an action brought originally by George W. Shuck and afterwards revived in the name of his administratrix to recover damages on account of a breach of a contract of employment.

<p>Office and officers — General policy fixing salaries — Not repealed by additional-compensation enactments — Effect of codification and subsequent legislation — Purpose of technical rules — County commissioners — Serving on quadrennial boards of equalization —Sections 3001 and 5597, General Code.</p> <p>1. When the general assembly of Ohio has entered upon a general policy of legislation, such as the abolition of the fee system and the establishment of fixed and certain lump sums as compensation for county officers, and provided that such compensation shall be in full payment for all services rendered as such public officer, such general statutes declaring such policy repeal by implication all other statutes in conflict therewith.</p> <p>2. Such policy of the general assembly should not be overturned or invaded by carrying or reenacting such impliedly repealed statute in the report of a codifying commission, which is subsequently adopted by the general assembly, or by some subsequent enactment of the general assembly, unless such other statute clearly evinces by appropriate language an intention and purpose to provide “an additional salary.”</p> <p>3. Mere technical rules of law or interpretation may be invoked to preserve the natural justice and substantial equities of any given case, but they should not be permitted to defeat or destroy the same.</p>

On the 14th day of June, 1912, the Lewistown Foundry & Machine Company filed a petition in the common pleas court of Mahoning county against The Hartford Stone Company to recover $785.09, with interest from the 24th day of April, 1911, on an account for merchandise sold and delivered to it, as shown by itemized account attached to the petition.

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

In February, 1859, The Cleveland & Mahoning Railroad Company granted the lands involved in this case to one Stetson, excepting therefrom, however, its right of way, being a 100-foot strip of land.

In case No. 14798, the plaintiff in error, W. B. Thompson, and the defendants in error, Horace G. Redington and Fred F. Thomas, were candidates for judge of the court of common pleas of Lorain county, at the election held November 3, 1914, and the canvassing board of that county, on the 6th day of November, 1914, found that W. B. Thompson received 4985 votes, Fred F. Thomas 2460 votes and' Horace G. Redington 4982 votes, and declared W. B. Thompson elected to that office.

The plaintiff in error, an Ohio corporation, being a creditor of Joseph W. Foley, who was engaged in business as a retail grocer and as such the owner of a stock of merchandise and fixtures pertaining to the business, brought suit in the common pleas of Clark county to set aside a sale of the whole of said stock and fixtures to the defendant in error.

<p>Constitutional law — Labor unions — Preventing employes from joining, etc. — Section 12943, General Code, providing penalty, unconstitutional.</p>

<p>Constitutional law — Grade-crossing act — Section 8897 et seq., General Code, constitutional — Section 1, Article II, Constitution— Municipal corporations — Appropriation of property — Section 3677, General Code, unrepealed and unmodified — Determination of question of necessity — Itirisdiction of common pleas court — To determine all questions in one proceeding.</p> <p>1. The statute known as the grade-crossing act, Section 8897 et seq., General Code, is not in conflict with Section 1, Article II of the Constitution of Ohio, and, is valid.</p> <p>2. The enactment of that statute did not repeal Section 3677, General Code, nor in anywise modify its requirements; hence the appropriation proceeding therein authorized cannot go forward until it shall have been determined by a court of competent jurisdiction that such appropriation will not unnecessarily interfere with the reasonable use of the property to bq crossed by the proposed street.</p> <p>3. Upon proper pleading by the city, tendering the issue, the court of common pleas may, in the same proceeding, hear and determine all questions arising under Sections 3G77 and 8899, General Code.</p>

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

<p>Error to the Court of Appeals of Stark county.</p> <p>Facts stated in opinion.</p>

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

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

<p>Real property — Deeds deposited with hank — For delivery at grant- or’s death — Will also deposited — Disposing of personalty— Control, dominion or power of revocation — Cashier agent of donees — Completed delivery to grantees.</p>

The-defendant in error, Pocahontas Fritter, filed her petition in the court of common pleas of Franklin county against The American Insurance Union, John J. Lentz, executor of the last will and testament of Lincoln Fritter, deceased, and the brothers and sisters of said decedent.

The amended petition avers that plaintiff was the lessee from the defendant, for the term of two years and five months, beginning on the 1st day of May, 1907, of two back rooms on the third floor of the building known as Nos. 130 and 132 West Fifth street, in the city of Cincinnati, Ohio.

The plaintiff in error brought an action against the defendant in error, B. K. Maitland, to recover a balance due on an account for goods and merchandise sold and delivered. The defendant filed an answer and cross-petition, denying that he was indebted on this account and averring that he had through mistake largely overpaid the same, and asked judgment for the amount of this excess payment.

Plaintiff in error brought an action under Section 9002, General Code, in the court of common pleas of Hamilton county against the defendant in error and The Cleveland, Cincinnati, Chicago & St. Louis Railway'Co. to recover the sum of $150.

<p>Error to the Court of Appeals of Montgomery county.</p> <p>Quo Warranto.</p> <p>The facts are stated in the opinion.</p>

This proceeding in error is brought by the treasurer and auditor of Cuyahoga county to reverse the judgment of the court of appeals of that county in so far as it relieved from taxation personal property held by The Citizens Savings & Trust Company, as trustee, for certain charitable uses set forth in the original petition.

In June, 1910, The Benjamin Rose Institute sought the remedy of injunction, in the common pleas court of Cuyahoga county, against the treasurer and auditor of that county to interdict the collection of taxes on certain real property in the city of Cleveland, it being contended that the property in question was exempt from taxation by favor of the last clause of Section 5353, General Code, reading, “Property belonging to institutions of public charity only, shall be exempt…

Plaintiffs in error commenced their action in the common pleas court of Cuyahoga county against The American Credit Indemnity Company, based upon a credit indemnity bond issued by the company to them, wherein insurance was provided against bad debts contracted by them. The bond bore date of August 27, 1907, and by its terms provided such indemnity for debts accruing from sale of merchandise between the dates of March 1, 1907, and February 28, 1908.

<p>Office and officer — Boards of education? — Transfer of territory— Vacancy not created, when — Section 4748, General Code— Member of detached township — Entitled to complete term— Section 4735, General Code (104 O. L., 133).</p>

In the court of common pleas the plaintiffs, Patrick J. Brown, James W. Roberts, Paul S. Schmidt, Otis B. Shatto, Orvis J. Shatto and Eugene F. Craig, filed a petition alleging, in substance, that about the month of January, 1910, the defendant, John W. Taylor, represented to them that he had a contract for the purchase of about thirty acres of land located upon Long Island, in the state of New York; that he was desirous of selling a two-thirds interest in said tract and of…

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

<p>Wokmen’s compensation — Occupational diseases not included — Act of May 31, 1911 (102 O. L., 524; Section 1465-37 et seq., General Code) — Authority conferred by Section 35, Article II, Constitution, 1912 — Not fully exercised by legislature.</p> <p>1. Under the provisions of the original workmen’s compensation act, passed May 31, 1911 (102 O. L., 524), a state insurance fund was created from which to provide compensation for death or injury (not wilfully self-inflicted), resulting from accidents to employes of employers both of whom voluntarily contributed to the fund under the conditions named in the act. An injury or death resulting from disease contracted in the course of such employment, known as an occupational disease, is not such as contemplated by the provisions of the act referred to, and cannot be made the basis of a claim for compensation from the insurance fund so provided.</p> <p>2. Although Section 35, Article II of the Constitution, as amended in September, 1912, authorizes the legislature to pass laws providing an insurance fund to compensate workmen and their dependents for death, injuries or occupational disease, occasioned in the course of employment, by compulsory' contribution, the general assembly has not yet provided by law for the compensation for injury or death from occupational disease.</p>

This was a proceeding brought in the superior court of Cincinnati by George Stugard, as administrator of the estate of John B. Vastine, deceased, to recover damages for the wrongful killing by the defendant of the deceased.

The defendants in error, on the 14th day of April, 1910, executed and delivered to one S. S. Smith an oil and gas lease on their premises, consisting of about eight-tenths of an acre of land, which lease was, on May 10, 1910, assigned to the plaintiff in error.

The defendant in error, The New Ashley Telephone Company, was a corporation with a plant installed in the village of Ashley, Delaware county, Ohio, furnishing telephonic service under a franchise granted by the village council, and owning the equipments and lines established in that village.

<p>Civil service — Municipal home rule■ — Statutes liberally construed, when — Appointment of commissioners by mayor — Section 486-19, General Code (103 O. L., 708) — Sixty-day limitation— Powers of state commission and mayor — Section 10, Article XV, and Article XVIII, Constitution, 1912.</p> <p>1. The plain purpose of the municipal home-rule amendment adopted in September, 1912, is to provide home rule for cities, which obviously includes the selection of its own municipal officers by the people of the municipality or other duly authorized municipal officers.</p> <p>2. Statutes passed pursuant to such home-rule amendment should be liberally construed so as to effect the plain purpose of such amendment.</p> <p>3. Under Section 486-19, General Code (103 O. L., 708), commonly known as the civil service act, the sixty-day limitation does not terminate the right of the mayor to appoint a municipal civil service commission. The purpose of thereafter conferring the power, upon the state civil service commission is merely to enforce the appointment of such municipal commission, and failure to act upon the part of the state civil service commission leaves the power still in the' hands of the mayor after such sixty-day period.</p>

On the 23d day of May, 1914, plaintiffs in error filed a petition in common pleas court of Cuyahoga county, averring that they were owners of lots in what is known as the Clifton Park Addition to the city of Lakewood; that this addition consists of about ninety acres, subdivided into two hundred and twenty-nine lots, all devoted exclusively to residence purposes; that the allotment was laid out by The Clifton Park Land & Improvement Company according to a general plan…

The New York Coal Company in January, 1910, filed a complaint before the railroad commission of Ohio against The Hocking Valley Railway Company, in which it was alleged .that the rafes on commercial coal in carloads from Nelsonville to Toledo and intermediate points were unreasonable.

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

On December 9, 1910, the defendant in error issued to John Nyiry a benefit certificate in the sum of $1,000, payable on his death to his wife, plaintiff in error. He died about the 1st of June, 1911.

<p>Public utilities — Telephone companies — Order to restore service— Section 614-12, General Code — Agreement for line installation and maintenance by complainant — Discriminatory or preferential rates — Absence of schedule — Section 614-19, General Code.</p>

<p>Municipal corporations — Ordinance fixing gas rate — Section 3982, General Code — Facts necessary to relieve company — Unreasonable rate — Just compensation determined, how — Effect of voluntary reduction of rate — Only existing conditions considered, when — Expiration of contract with producing company — Confiscatory rate determined by actual operation, when — Rights of company — Court procedure — Transcript of stenographic notes — Considered with bill of exceptions, when.</p> <p>1. A transcript of verbatim stenographic notes of testimony in the common pleas court may be adopted and used in the court of appeals by agreement of counsel, and if by proper attachment and reference made a part of the bill of exceptions, will not be stricken from the record, hut will be considered by this court.</p> <p>2. Before a gas company may be relieved from compliance with the terms of an ordinance fixing the maximum price for gas, which has been regularly passed in pursuance of the authority conferred by Section 3982, General Code, it must show that the rates so fixed are plainly unreasonable and will result in the taking of its property without just compensation.</p> <p>3. In determining whether the price fixed by such ordinance will yield just compensation, it should be ascertained whether the amount of net profits from operation at the prescribed rate will produce a reasonable return upon the value of the plant of the company at the time of the inquiry.</p> <p>4. The value of such property resting largely upon opinion evidence, the fact that the company prior to the passage of the ordinance in question had voluntarily reduced its rate to that thereafter fixed by such ordinance and continued the same for several years, may be controlling and justify' the conclusion that such rate is remunerative.</p> <p>5. Where the company affeoted by such ordinance is a distributing company only and procures the gas furnished under its franchise from a producing company upon a percentage basis of meter readings, and its contract therefor does not expire until two years subsequent to the passage of the ordinance fixing the maximum price to be charged for gas, the effect of such ordinance should be ascertained from conditions then existing, and, in the absence of evidence to the contrary, the court may properly assume that the price to the distributing company remains the same, and refuse to anticipate a condition that may obtain in the future, or speculate as to the future production of natural gas or the cost thereof to the producing company.</p> <p>6. Where it is not clearly shown that a fixed rate for gas will be confiscatory, the company should be required to abide the test of actual experience under such rate, and when certainty rather than prophecy may be obtained, present its case upon actual facts and conditions as may then be shown to exist.</p>

Defendant in error is the successor of the Walker Patent Pivoted Bin Co., and became the owner of all contracts, property and rights of action of that company. One C. W. Smalley purchased from the Walker Patent Pivoted Bin Co. certain store fixtures at the agreed price of $893, and in. part payment thereof issued two checks of $155 each, payable to the order of R. W. McKain, manager of the company, and delivered them to one W. P. Sutherin, a salesman under McKain.

The defendant in error, Edith W. Balch, commenced an action in forcible detainer, in the muncipal court of Cincinnati, to oust plaintiff in error from the possession of real estate in the city of Cincinnati, Ohio. The case was tried to the court without the intervention of a jury, resulting in a judgment for the plaintiff in error.

Jacob F. Heer brought an action in quo zvarranto in the court of appeals of Butler county against the defendants in error here.

<p>Workmen’s compensation — Injury results in death — Section 1463-82, General Code (103 O. L., 86) — Award vests in dependent, when —Personal representative entitled to balance, when.</p> <p>An award of compensation from the state insurance fund, under Section 35 of the workmen’s compensation act (103 O. L., 72), to a wholly dependent person vests in the dependent when the . award is made; so that, in case of the death of such dependent, his or her personal representative is entitled to the balance, if any, remaining unpaid.</p>

In Mandam:us. On the 11th day of June, 1915, the state of Ohio on the relation of Samuel A. Hoskins, Charles H. Bryson and Charles I. Brown, as members of and constituting the state civil service commission of Ohio, filed in this court a petition against the Ohio board of administration and A. F. Sheperd, T. E. Davey, Starr Cadwallader and D. S. Creamer, as members of and constituting said board, in which petition relators prayed for a peremptory writ of mandamus, commanding…

Plaintiff filed'her statement of claim or petition in the municipal court in the city of Cleveland, of which the following is a copy: “The plaintiff for cause of action against defendant says that the defendant is a corporation, duly organized and existing under the laws of the state of Ohio and authorized by law to make ap-. propriation of private property and is engaged in the business of constructing, maintaining and operating a freight railroad around the city of…

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

<p>Municipal corporations — Streets and alleys — Extension of railway routes — Section 9105, General Code, constitutional — Property owners’ consents necessary — In absence of additional laws or charter — Under Sections 2 and 7, Article XVIII, Constitution, ■1912 — Sections 1 and 26, Article II, Constitution.</p> <p>Section 9105, General Code, relating to grants made by municipal councils upon the production of written consents of owners of more than one-half of the feet front abutting on streets or public highways, is not in conflict with Section 1 of Article II nor with any other provision of the present state constitution; and it is, therefore, a valid law, applying to all municipalities in the state, unless nullified by the adoption of additional laws or charter, under the provisions of Sections 2 or 7, Article XVIII of the state Constitution.</p>

In March, 1915, the council of the city of Cleveland passed an ordinance by the terms of which there was granted to the defendant in error the right to extend its double line of electric street… Held: approved a charter for the city of Cleveland, which became operative on. January 1, 1914, and has been ever since, and now is, the organic law of the city of Cleveland.

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

<p>Municipal ordinance — License fee — Transient dealers — Sections 3673 and 3676, General Code.</p>

<p>Municipal corporations — Sinking fund trustees — Home-rule charter provisions control, when.</p>

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

<p>Error to Court of Appeals of Hamilton county.</p>

<p>Error to Court of Appeals of Hamilton county.</p>

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

<p>Error to Court of Appeals of Hamilton county.</p>

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

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

<p>Error to Court of Appeals of Mahoning county.</p>

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

<p>Error to Court of Appeals of Hamilton county.</p>

<p>Error to Court of Appeals of Licking county.</p>

<p>Error to Court of Appeals of Licking county.</p>

<p>Error to Court of Appeals of Licking county.</p>