Volume 93 — Ohio State Reports, New Series

In Mandamus. On the 27th day of September, 1915, the state of Ohio, on the relation of Graham P. Hunt, Eugene Heim and John Roehm, filed a petition in mandamus in this court, against Charles Q. Hildebrant, secretary of state, being cause No. 15031, praying that a peremptory writ of mandamus issue out of this court, commanding the defendant, the secretary of state, to cause to be printed and mailed, or otherwise distributed, to the electors of the state an argument and…

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

<p>Elections — Nominating petition — Signatures in pencil insufficient, when — Municipal charter controls — Jurisdiction—Board of elections.</p>

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

In Mandamus. This is a proceeding in mandamus, originating in this court, brought by the city of Dayton against the budget commissioners of Montgomery county. The cause was submitted to the court upon a demurrer to the petition, upon the grounds that there was a defect of parties defendant and that the petition did not state facts sufficient to constitute a cause of action.

A petition was filed on the 15th day of November, 1910, with the board of county commissioners of Mercer county, Ohio, by certain landowners, residents of that county, praying for the improvement by ditching, deepening, widening and straightening a certain described ditch, drain and watercourse in Granville and Recovery townships in that county, setting forth the necessity and benefits thereof, alleging that their lands would be benefited by such improvement, and describing…

Benjamin F. Primmer, as city solicitor of Hamilton, Ohio, filed his petition in the court of common pleas of Butler county praying for a writ of mandamus against the board of county commissioners of said county to allow and fix his compensation for services as prosecuting attorney in the municipal court of Hamilton, Butler county, Ohio, and to' command the county auditor to issue his warrants for said services rendered since January 1, 1914.

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

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

On the 6th day of December, 1909, the original action was brought in the court of common pleas of Mahoning county to recover for wrongful death. At the May term, 1911, the action was tried in the court of common pleas and the jury disagreed. At the January term, 1912, the action was again tried and the jury returned a verdict in favor of the plaintiff for $2,738. Motion for a new trial was overruled and final judgment rendered on the verdict.

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

<p>Constitutional law — Date legislative acts effective — Approval by governor — Filing with secretary. of slate — Sections ic, id, and 16, Article II, Constitution, igi2 — Illegal sale of drugs — Section 12672, General Code (103 O. L., 340, 505).</p> <p>Construing Section lc of Article II with Section 16 of Article II of the Constitution, in so far as both sections relate to the time from which an act of the general assembly shall operate, laws providing for tax levies, appropriations for current expenses of the state .government and state institutions, and emergency laws, as defined in Section Id of Article II of the Constitution, go into immediate effect when approved by the governor. All other acts go into effect ninety days after the same have been filed with the secretary of state, regardless of the date of approval by the governor.</p>

<p>Banks and banking — False statements of solvency, etc. — Section 13383-1, General Code (103 O. L., 469) — Burden of proof— Intent and motive — Charge to jury — Effect of requesting erroneous charge — False financial report.</p>

This case originated in the court of common pleas of Franklin county, and was taken on appeal to the court of appeals, where the plaintiffs in error, Bert Williams and Charles Goldstein, filed their amended petition and sought to enjoin the state agricultural commission and the local sealer of weights and measures from enforcing the statutes of the state regulating weights and measures and from condemning and confiscating certain measures belonging to plaintiffs and used by…

Certified by the Court of Appeals of Lucas county. Plaintiff in error, Edna H. Smith, filed a petition in the court of common pleas of Lucas county, from which it appears that she is the wife of one Floyd J. Smith and that prior to the injuries complained of they were living happily together as husband and wife, and but for said injuries would continue to do so; that the defendant is the owner of an office building in the city of Toledo, in which there is a passenger…

The city of Cincinnati brought' a proceeding in the common pleas of Hamilton county to enjoin The Interurban Railway & Terminal Company and others from charging passengers on their cars rates of fare in excess of that provided in an ordinance passed by the council of the village of Pleasant Ridge in November, 1901, the village having been subsequently and prior to the commencement of the action annexed to the city of Cincinnati.

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

The Unit Coil Company was the owner of two separate letters patent, one for an electric igniter and another for an induction coil. The Ignition Company, desiring to acquire rights under such patents, on February 20, 1912, entered into a license agreement with the Coil Company.

The action out of which this error proceeding arises was brought by defendant in error against plaintiff in error in the court of common pleas of Cuyahoga county to recover demurrage. The amended petition was challenged by demurrer for the reason that it did not contain facts sufficient to constitute a cause of action.

The defendant in error brought an action in the court of common pleas of Mahoning county to recover damages from the plaintiff in error for negligently causing the death of his decedent, Abraham Cable, on the 16th day of September, A. D. 1913. At the time of receiving the injuries resulting in his death Abraham Cable was employed by The Chicago Ornamental Iron Company in putting on new devices for opening and closing the doors leading to an elevator shaft.

The defendant in error brought a proceeding in the insolvency court of Cuyahoga county to appropriate certain property owned by the plaintiff in error for interurban railroad purposes. The petition alleged that the plaintiff was a corporation organized in pursuance of the laws of Ohio and that its board of directors had determined and declared the necessity for the condemnation of the property.

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

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

In Mandamus. On the 9th day of July, 1915, the plaintiff, Marion A. Gatton, filed his petition in this court averring, among other things, that he is a resident of Toledo, Ohio; that on or about the 18th day of September, 1914, and for some time previous thereto,- he was an employe of The Metzger Seed & Oil Company, a corporation organized and doing business under and by virtue of the laws of this state; that said company had, at the time of the grievances hereinafter…

L. E. Kerlin, as prosecuting attorney of Darke county, Ohio, instituted an action in the court of common pleas of Darke county under favor of Section 2921, General Code, alleging in substance in his petition that the defendants, about the 17th day of December, 1910, filed with the auditor of Darke county their certain petition praying for the improvement of Stillwater creek “by straightening, widening, deepening or changing the same and by removing from the same and adjacent…

Fred C. Fassett was the son of Henry P. Fassett. At the age of twenty-two months he was legally adopted as the child and son of Emory Ransom and wife by order and judgment of the probate court of Ashtabula county, Ohio, one of the grounds of which adoption was that the Fassetts were not proper persons to have the custody of their said son.

George Hesse, a citizen and resident of Cincinnati township, Hamilton county, was arrested in that township by Charles L. Timberlake, a constable for Millcreek township in that county. The misdemeanor for which he was arrested was cruelty to animals and was alleged to have been committed in Cincinnati township.

The Dravo-Doyle Company brought suit in the common pleas of Wayne against the village of Orrville to recover the balance due on a contract between the parties for furnishing to the village an engine and certain appliances and erecting them in connection with an electric lighting plant erected by the village.

The petition sets forth that the defendants, Z. B. Campbell and Samuel D. Webb, are assuming to act as and discharge the duties of the state civil service commission by virtue of their appointment as such by the governor of Ohio under the provisions of an act to amend Sections 486-1 to 486-31, inclusive, relating to the civil service of the state of Ohio and the several counties, cities and city school districts thereof (see 106 O. L., 400 et seq.), it being asserted that…

In Prohibition. This is an action for a writ of prohibition brought by John F. Nolan, as relator, against the defendants, Byron M. ClenDening, M. M. Rose and Frank Hay, as the state liquor licensing board of the state of Ohio. Said relator was, on July 22, 1914, duly appointed as a commissioner on the Jefferson county liquor licensing board for a period of four years.

<p>Remedies — Mandamus—Restoration to office — -Removal for misconduct in office — Participation in referendum.</p>

On the 17th day of February, 1914, the grand jury of Hamilton county, Ohio, returned into common pleas court an indictment containing three counts. The first count charged the plaintiff in error, John C. Griffith, with forgery; the second count charged him with uttering and publishing a false and forged instrument; and the third count charged him with obtaining by false pretenses the sum of $2,000, the property of The Second National Bank of Cincinnati, Ohio.

<p>Negligence — Special findings by jury — Confined to particular questions of fact — Section 11463, General Code.</p>

The defendant in error, George E. Mayers, instituted an action in the court of common pleas of Lucas county against the plaintiff in error, The Toledo Railways & Light Company, in which he sought to recover damages for injuries which he claimed to have sustained by reason of the negligent operation of one of the street cars of said company, the averments of the petition being that “said street car was being propelled at a high and dangerous rate of speed, to-wit, thirty…

At the November 3, 1914, election there were four candidates for the office of common pleas judge of Henry county. Prentiss received the highest number of votes thereat, the canvassing board certified his election to the secretary of state and a certificate of his election to such office was transmitted to Prentiss.

Defendant in error, on February 18, 1914, brought an action in the court of common pleas of Shelby county to enjoin the levy and collection of what was alleged to be an illegal assessment against his property. A temporary restraining order was granted upon the filing of the petition, but upon the hearing of the case on its merits the petition was dismissed and judgment rendered in favor of plaintiffs in error.

On the 26th day of April, 1906, William S. Curry filed a petition in the superior court of Cincinnati against the plaintiffs in error, averring, among other things, that William E. Hutton, James M. Hutton and William D. Hutton are partners in trade, doing business in the city of Cincinnati under' the firm name and style of W. E. Hutton & Company; that from the 28th day of November, 1900, to the 23d day of March, 1901, the defendants conducted a place on East Third street,…

<p>Administration of estates — Aliens dying intestate in Ohio — Foreign consuls eligible to appointment — Section 10617, General Code —Article 14, treaty of ign with Sweden — But not entitled to prior, paramount right, when — Article 17, treaty with Italy— Most-favored-nation clause.</p> <p>1. Where a subject of the Kingdom of Italy died intestate in this state, leaving a widow and two minor children, residents and subjects of the Kingdom of Italy, the Italian consul is not entitled to the prior, paramount and exclusive right of administration, but is eligible to such appointment under the fourth subdivision of Section 10617, General Code, subject to the exercise of the discretion of the probate court of such county.</p> <p>2. Article 14 of the treaty of 1911 between the United States of America and the Kingdom of Sweden provides: “In the event of any citizens of either of the two contracting parties dying without will or testament, in the territory of the' other contracting party, the consul-general, consul, vice-consul-general, or vice-consul of the nation to which the deceased may belong, or, in his absence, the representative of such consul-general, consul, vice-consul-general, or vice-consul, shall, so far as the laws of each country will permit and pending the appointment of an administrator and until letters of administration have been granted, take charge of the property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate.”</p> <p>Article 17 of the treaty between the United States and Italy provides: “The respective consuls general, consuls, vice-consuls and consular agents, as likewise the consular chancellors, secretaries, clerks or attaches, shall enjoy in both countries, all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favoured nation.” Held:</p> <p>(a) These provisions are to be construed as investing the consuls of the Kingdom of Italy with the same rights, privileges and prerogatives as those of the Kingdom of Sweden, and thereby they are made eligible to act as administrators when no competent person having rights under subdivisions 1, 2 and 3 of Section 10617, General Code, applies.</p> <p>(b) The provisions under consideration are not to be construed as conferring prior and paramount rights to such consuls as to permanent administration upon the estates of their fellow countrymen dying intestate in Ohio, and thereby superseding and supplanting the provisions of Section 10617, General Code of Ohio.</p>

This proceeding was brought in the superior court of Cincinnati ■ March 29, 1901, by John C. Healy, trustee for James Robinson, against The Second National Bank of Cincinnati.

<p>Liquor licenses — Applications for renewal — Rejected by county board — Appeal to state board — Mandamus—Section 1261-31 et seq., General Code (103 O. L., 221).</p>

In Mandamus. On the 20th day of November, 1915, the relator, The Clemmer & Johnson Company, a corporation, filed a petition in this court asking that a peremptory writ of mandamus issue to the defendant, Edward C. Turner, directing him to prepare a contract, to be entered into between the relator and' the state armory board, for the building of an armory at Akron, Ohio, and also a bond to be given by the relator, as contractor, for the faithful performance of its contract.

<p>Courts of appeals — Jurisdiction—•Appeal from order of common pleas court — Granting injunction, ordering accounting and appointing referee.</p>

Action was brought by George Paulin (defendant in error here) against The Toledo Railways & Light Company (plaintiff in error here) in the court of common pleas of Lucas county to recover damages for injuries alleged to have been sustained by him as a result of a collision of one of the cars of said company with a wagon in which Paulin was riding on Summit street in the city of Toledo, and which collision he claimed was caused by the negligent operation of said car.

This was an action by the defendant in error against The National Fire Insurance Company on three separate policies. One policy was for the sum of $1,000 on a frame building occupied as a general store.

<p>Mandamus — Issuance of state auditor’s warrant for rental — Lease by state industrial commission — Section 871-6, General Code (103 O. L., 96) — Necessary and current expenses of state departments — Not a debt or liability, when — Sections 1, 2 and 3, Article VIII, Constitution.</p> <p>1. Where the general assembly of Ohio has authorized some department or subdepartment of the state government, such as the industrial commission of Ohio, to secure suitable quarters necessary for the transaction of its business pursuant to law, and a contract is regularly executed and signed by the proper parties, which contract by its terms is made subject to an appropriation by the state legislature, and such legislature makes the necessary appropriation pursuant to said contract; Held: Mandamus is the proper remedy to compel the auditor to issue a warrant for any amount due from the state pursuant to such contract.</p> <p>2. The necessary, and current expense growing out of the rental of suitable and necessary quarters for the transaction of the state’s business, for which appropriation has been made by the state legislature, is not a debt or liability within the inhibition of the provisions of the constitution.</p>

On the 3d day of February, 1912, the plaintiff in error, Marcellus A. Lander, filed a petition in the common pleas court of Cuyahoga county, praying that a writ of mandamus issue against the defendants in error, Charles T. Prestien and others, as auditor, treasurer and commissioners of Cuyahoga county, Ohio, directing them to cause to be paid to the plaintiff the sum of $61,224.64, unlawfully withheld from him, together with lawful interest, from the commencement of this…

The village of Upper Sandusky brought suit in the common pleas of Wyandot county against the defendant, an Ohio corporation.

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

<p>Certified by the Court of Appeals of Crawford-county.</p> <p>The facts are stated in the opinion.</p>

<p>In Quo. Warranto.</p>

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

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

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

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

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

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

<p>Supreme court — Dismissals—Constitutional questions not involved —Watercourses—Riparian owners.</p>

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

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

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

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