Volume 98 — Ohio State Reports, New Series

The plaintiff in error brought an action in the common pleas court of Pickaway county against the city auditor and members of the city council of Circleville, Ohio, to perpetually enjoin the issue of thirty-five thousand dollars in bonds of that city, for the purchase of real estate and the erection thereon of a municipal hospital.

<p>Error to the Court of Appeals of Cuyahoga county</p> <p>Plaintiff in error brought an action in the common pleas court of Cuyahoga county to restrain defendant in error from enforcing the collection of certain taxes. It appears from the petition that plaintiff in error is an Ohio corporation with its principal place of business in the city of Cleveland, Ohio; that in its business of buying and selling coal it has acquired and operates a dock in the city of Milwaukee, Wisconsin, which dock is operated as a distinct department of its business and all dealings connected therewith kept separate and distinct from its other business; that all coal put upon said dock by plaintiff in error is shipped up to said dock as though it weré a separate entity from plaintiff in error; that operating costs of the dock and all expenses connected with its operation are kept separate, regular books being kept to cover all purchases and sales in connection therewith, said books being kept in the Milwaukee office; that all remittances to plaintiff in error arising from the sale of dock coal are made to the Milwaukee office and are indorsed by the manager of that office and deposited to the credit of plaintiff in error in an account carried in the First National Bank in the city of Milwaukee; that said dock business has its own profit and loss account and in every way is operated as a distinct and separate business transacted by the plaintiff m the city of Milwaukee.</p> <p>It is averred in the petition that plaintiff in error made and filed its tax return with the proper authorities of Cuyahoga county, covering the property owned and held by it on the day preceding the second Monday in April, 1916, which, according to statute, it should list in Cuyahoga county, the amount due thereon being $723.39, which it has tendered to defendant in error, but which has been refused by him; that the statement accompanying the tax return so filed by plaintiff in error showed that it had on deposit in the First National Bank of Milwaukee, on said tax-listing day, the sum of $43,850.98; that the county auditor, without the consent and over the protest of plaintiff in error, and without any right or authority, has placed said</p> <p>sum on the duplicate as being taxable property of plaintiff in error in Cuyahoga county; and that defendant in error herein, as treasurer of said county, has entered upon his books as due from plaintiff in error by way of tax on said sum of money the- sum of $861.86, without right or authority, which sum he threatens to and will collect unless he is enjoined from so doing. The prayer of the petition is that the defendant, as treasurer of. Cuyahoga county, be enjoined from enforcing the. collection from plaintiff in error of the tax on the Milwaukee bank deposit.</p> <p>A demurrer to the petition was sustained, and plaintiff in error not desiring to plead further its petition was dismissed and judgment rendered against it for costs. On appeal to the court of appeals a demurrer was again sustained and the petition dismissed and a like judgment rendered. Plaintiff in error filed a petition in error in this court asking for a reversal of the judgment of the court of appeals.</p>

<p>Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county.</p> <p>Facts are stated in opinion.</p>

In the fall of 1915, Edwin S. Roth, a boy about eighteen years of age, was employed by McFeeley Brothers as a common laborer. McFeeley Brothers had complied with the provisions of the Workmen’s Compensation Law, and had paid premiums into the insurance fund of the state of Ohio, as required by that law. On the 8th day of November, 1915, Roth, in the course of his employment, was ordered and directed to do some painting on a building in the process of construction.

Certified by the Court of Appeals of Miami county. The defendants in error brought a suit in the common pleas of Miami county against the city of Piqua to recover damages for its negligence in flooding and injuring their farm by washing away soil and gravel and destroying a roadway, gates and fences, by the breaking of a bank of a hydraulic opposite the farm and from the rush of a large volume of water down and over it.

On April S, 1916, F. F. Greene obtained a judgment against Lorenzo H. Bulkley on the latter’s warrant of attorney, in the sum of $719. At the following term, May 23, 1916, Bulkley filed his petition in the common pleas court alleging the fact that judgment by confession had been taken against him, he not having been summoned or legally notified to appear at the time and place of taking such judgment.

Defendant in error, as a minor fifteen years of age, brought an action by Louis Kutz, his father and next friend, in the common pleas court of Lucas county, to recover damages on account of personal injuries sustained by him while in the employ of The Acklin Stamping Company.

Edith M. Griffith, as administratrix of the estate of George A. Griffith, deceased, brought an action in the court of common pleas of Jefferson county against the Phillips Sheet & Tin Plate Company, alleging that during a strike at the defendant company’s tin mill in the city of Steubenville a riot occurred on the streets of that city, and in that riot her intestate, George A. Griffith, was shot and killed by an employe of the defendant company; that the death of said George…

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

In Quo Warranto. Error to the Court of Appeals of Cuyahoga county. Under the authority conferred by Section 7, Article XVIII of the Constitution of Ohio, as amended September 3, 1912, the city of Cleveland, on the first day of July, 1913, adopted a charter for the government of that city. Under the provisions of this charter, an ordinance was duly initiated by petition, which ordinance was rejected by the city council on the fourth day of September, 1917.

The city pf Lima and some citizens began a proceeding before the Public Utilities Commission against The Lima Telephone & Telegraph Company, in which they challenged the rates, charges and classifications of the company for its service to the public in a schedule filed with the commission to be effective March 1, 1915.

; The Superior Savings & Trust Company, as trustee for bondholders, held a mortgage upon property which included an eight-story building on the corner of Euclid avenue and Fifty-ninth street in Cleveland, Ohio. Oliver P. Brown, as administrator, held a mortgage upon the same premises,' subject to the priority of the trust mortgage.

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

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

<p>In Prohibition.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the Public Utilities Commission.</p> <p>John and Peter Ingham filed their complaint with the Public Utilities Commission against the plaintiff in error, in which they allege that it is an Ohio corporation formed for the purpose of owning and operating a steam railroad; that it is now operating a railroad from Morgan Run Crossing in Coshocton county in connection with The Wheeling & Lake Erie Railway Company and the Pennsylvania Company, and is hauling and delivering cars to and from the Wheeling & Lake Erie tracks to the two mines owned by The Morgan Run Coal & Mining Company and R. B. Dennis and others, and placing them along other lines and tracks to be loaded with freight, and transporting the cars when loaded back to the W. & L. E. railway tracks; that on the 20th day of May, 1907, the heirs at law of Washington Burt sold and conveyed to the plaintiff in error about 1.51 acres of land, more or less, being a strip of land 33 feet in width immediately west of another piece of land of about 48 acres conveyed to The Morgan Run Coal & Mining Company; that the deed contained the condition that the grantee would construct on or before the first of January, 1909, and thereafter maintain and operate, a railroad or tracks, sidetracks, switches, etc., on the premises, and would secure to the grantors, their heirs or assigns, the same and equal opportunities and facilities for receiving and shipping freight of all kinds as are received by other persons, and would permit grantors, their heirs and assigns, to build a railroad or switch from the premises so conveyed to premises owned by the grantors.</p> <p>The complaint sets out in detail the terms and conditions upon which this shall be done, and further recites that the complainants. as grantees of the heirs of Washington Burt, are the owners of the rights and privileges provided for above, and have opened and are operating a coal mine on the premises, and have sold coal to the said R. B. Dennis, who secured the plaintiff in error to set in cars from the Wheeling & Lake Erie to and upon all the tracks of the plaintiff in error near the mines of complainants, where they could conveniently load the same, and that as long as complainants sold their coal to him they had no trouble getting cars to load set in for them, but that when complainants desired to sell coal to other parties for a better price, and made such sale, and arranged with the Wheeling & Lake Erie for cars, and on the 9th of June, .1917, had the same set on the switch at the junction of the Wheeling & Lake Erie and the Morgan Run Railways, and demanded of the said Morgan Run Railway Company to transport said cars to the point it had heretofore transported and placed them for the said Dennis, and on the same terms, plaintiff in error refused. The complainants asked for an order to secure the placing of the cars.</p> <p>For its first defense the company admits its corporate existence and alleges that it is now operating a railroad extending from a connection with the Wheeling & Lake Erie in Lafayette township, Coshocton county, for a distance of a little less than one mile to the township line between Lafayette township and Tuscarawas township; that it is engaged in hauling and delivering cars to and from the Wheeling & Lake Erie to the tracks of The Morgan Run Coal & Mining Company at the township line named; and that from said intersection south to the mines of The Morgan Run Coal &' Mining Company the right of way and tracks are owned by the latter company. It admits that on or about the 24th of November, 1915, the heirs of</p> <p>Washington Burt conveyed the real estate described in the complaint to the complainants and that the complainants are operating a coal mine thereon, and denies every other allegation in the complaint.</p> <p>For a second defense it alleges that the coal mine of the complainants is what is commonly known as a country bank, or wagon mine, whereby the coal is dumped at the mouth of the mine on a platform, from which it is shoveled into wagons and hauled into the city of Coshocton; that in October, 1916, The Morgan Run Coal & Mining Company made a contract with complainants to purchase the entire output of their mine until the first day of April, 1918, at $1.50 for the run of mine coal delivered on board cars on the mine tracks of the coal and mining company; that at the time said contract was made it was the intention of the coal and mining company to put a siding from their main line at a point where it would be convenient for complainants; that the arrangement proved to be exceedingly inconvenient and about that time coal advanced sharply in price and complainants repudiated their contract and discontinued all work on the tramway leading to the sidetrack; that complainants have no facilities for loading into the railway cars at any point on the tracks of the coal and mining company and have no arrangement with the coal and mining company for the use of that company’s tracks; that in order to connect complainants’ mines with the track of the railway company it would be necessary to build about two miles of railway track, none of which has been done; and that when complainants repudiated their said contract, and stopped work on the necessary-grading for said tramway, the coal and mining company declined to submit to the further inconvenience of permitting the complainants to use their said tracks for loading purposes.</p> <p>For a third defense the railway company alleges that for some time past there has been a great dearth and shortage in the supply of cars and great inconvenience and expense would result in complying with the demands of complainants.</p> <p>In the reply the complainants allege that the railway company and the coal and mining company are owned by the same persons and have conspired together for the purpose of compelling the complainants to sell their coal to them at the price they would name, and that since the filing of this complaint the railway company has moved the portion of its tracks off the lands purchased from the heirs of Washington Burt in order that it might claim it had no tracks near the mines of the complainants.</p> <p>On the hearing the commission found that the railway company was operating as a common carrier the entire line of railroad owned by it and the coal and mining company, either or both, extending from the point of connection with the tracks of the Wheeling & Lake Erie Railway Company, at a point east of Coshocton known as Morgan Run, some three miles to the mines of the coal and mining company; and ordered it to furnish service as a common carrier and without discrimination to the complainants, and ordered it to connect and operate with the tracks now maintained the track abandoned without the consent of the commission, or provide at a point adjacent to its main track, near the point where the tracks cross the public highway at common grade, a suitable and adequate loading platform in lieu of the facility heretofore maintained adjacent to such abandoned track, or provide some other suitable means for the loading of complainant’s coal, and that it move said cars, from time to time, to the junction of the Wheeling & Lake Erie railway.</p> <p>An application for a rehearing was filed, which was overruled, and this proceeding is brought to reverse the order of the commission.</p> <p>By leave of court The Morgan Run Coal & Mining Company has been made a party to this error proceeding and has filed its cross-petition in error herein.</p>

<p>Error to the Court of Appeals of Lucas county.</p> <p>This action was filed in the common pleas court of Lucas county November 25, 1911, by Tammie Blood to foreclose a mortgage on certain real estate located in that county. The mortgage had been executed by Margaret Parsons who was deceased, and her sons, James P. Parsons, John W. Parsons and Lewis H. Parsons, having inherited the property, were made parties defendant in the said action, as were also certain holders of tax liens. Personal service was had upon John W. Parsons and Lewis H. Parsons, and was attempted to be secured upon James P. Parsons along with certain other defendants, summons for whom was returned by the sheriff indorsed with the statement that they “could not be found within Lucas county, Ohio.” Thereupon an affidavit in the form required by statute for the purpose of procuring constructive service was filed, which affidavit stated that the place of residence of James P. Parsons was unknown and could not with reasonable diligence be ascertained. Upon motion the court ordered that service by publication be made as provided by law. On January 22, 1912, the court found that the publication and proof were in all respects regular and according to law, and approved the same; that the defendants had been duly served with process; and that certain of the defendants, including James P. Parsons, were in default. It also found the amount due on the mortgage of plaintiff and upon the tax liens asserted in said action.</p> <p>The premises were ordered sold, and one parcel thereof was purchased by Fred O. Peak and the other by William H. Moor and Edmond Collins. The court found the sale had been in all respects regular and confirmed the same and ordered deeds to the purchasers.</p> <p>From the proceeds of the sale the costs and the amount due on plaintiff’s mortgage and the several tax liens were ordered paid, and one-third of the remainder was paid to John W. Parsons, one-third to Lewis H. Parsons, and the remaining one-third was held for the defendant James P. Parsons.</p> <p>On November 13, 1914, James P. Parsons filed a motion in said suit setting up that he was the owner of the undivided one-third of said premises and also held a mortgage on the same, and asked that the decree theretofore entered be vacated and that he be permitted to defend against the claims of the plaintiff and the cross-petitioners and also to prosecute his rights under the mortgage owned by him. The court of common pleas granted the motion with the condition that such order should not affect the title to any property which had passed to the purchasers in good faith by or in consequence of the former judgment and order of the court.</p> <p>James P. Parsons filed an answer and cross-petition setting up his claim, and also filed another cross-petition against William H. Moor, Fred O. Peak and Edmond Collins, the purchasers at the judicial sale, and they were served with summons as defendants in the case. He therein prayed that the sale of the property to them should be held for naught. The newly-made parties defendant demurred to the cross-petition, and the demurrer was sustained by the court of common pleas, and judgment rendered in favor of the plaintiff and the other defendants.</p> <p>Upon appeal the court of appeals overruled the demurrer to the cross-petition and, thereafter, upon hearing, said court found that service upon James P. Parsons was not valid and that the judgment against him was void, and ordered the same to be</p> <p>vacated and set aside. The court found, however, that the right of James P. Parsons to foreclose the mortgage set up by him was barred by the statute of limitations, and dismissed his cross-petition in so far as it sought a foreclosure of his mortgage. Thereupon William H. Moor, Edmond Collins and Fred O. Peak filed their petition in error in this court to reverse the judgment of the court of appeals.</p>

<p>Municipal corporations — Rapid transit system — Authority of commission to employ legal counsel and fix compensation — Section 4000-18 et seq., General Code (106 O. L., 286).</p>

<p>In Mandamus.</p> <p>This is a proceeding in mandamus instituted in this court and was submitted upon the pleadings and the evidence, the testimony of the witnesses having been taken before a special master commissioner.</p> <p>The relator is a corporation organized for the purpose of buying, selling, processing and manufacturing the hair of animals and packing-house by-products, and is located in the city of Cincinnati where its principal business is transacted. Defendant is the duly appointed, qualified and acting building commissioner of the city of Cincinnati, Ohio.</p> <p>On or about September 1, 1917, the relator, having in view the erection and construction of a proper and necessary building and factory for the purpose of carrying on its business, procured to be made sketchings and drawings thereof which were ’submitted to the defendant preliminary to the preparation and submission of final plans and specifications. These preliminary plans and specifications were approved by the defendant and there was issued to the relator a temporary permit authorizing it to proceed with the excavation for the building. After the issuance of this temporary permit relator acquired a tract of land upon which to' erect its building and factory, situated at the southeast corner of Dane street and Chase avenue in the city of Cincinnati. On or about September 20, 1917, there was submitted to the defendant the final plans and specifications of said proposed building and factory, and on or about September 24, 1917, the defendant, as building commissioner, issued to the relator his permit to proceed with the erection of the building and factory according to the final plans and specifications. Immediately thereafter relator entered into certain contracts for the erection of its building and factory, and the contractors entered upon said work and proceeded therewith until on or about October 4, 1917, when the defendant, as building commissioner, without authority and in violation of law, according to the allegations of the petition, revoked his permit, and refused to again issue the same, although requested so to do, and ordered the relator not to proceed with said work. It is averred in the petition that the relator has complied with all the laws and ordinances of the city of Cincinnati in force at the time of the submission of the final plans and specifications to the defendant, and that the same are in accordance therewith. It is further averred that upon the revocation of said permit the relator was required to and did cease the further prosecution of the work of construction upon its building and factory and has suffered great injury and damage by reason of said revocation; that it will suffer further and great irreparable injury unless the defendant be required and is compelled to reissue said permit; and that it is without any plain and adequate remedy in the ordinary course of the law. The prayer of the petition is that a writ of mandamus issue commanding the defendant as building commissioner of the city of Cincinnati, Ohio, to issue his building permit to the relator as of the date of September 24, 1917, authorizing it to proceed with the erection and construction of its building and factory in accordance with the plans and specifications theretofore by it submitted to him.</p> <p>Defendant in his answer admits that the relator is a corporation organized for the purposes set out in the petition and that the permits were issued to it as alleged in the petition.</p> <p>He avers that on or about September 20, 1917, a written protest of the owners of the property in said section of said city was filed with the defendant against the erection of the building proposed to be erected by the relator, and on September 25, 1917, there was introduced in the council of the city of Cincinnati an ordinance as follows: “Section 452-1. No building shall be erected or used for the storage, cleaning or renovation of uncured animal hair or any of the by-products thereof, or for the manufacture of any combination of the same requiring the use or handling of animal substances emitting noxious odors, gases, or volatile substances, upon any land or property abutting any public street, alley or natural boundary such as streams of water, well-defined ravines or railway rights of way in the city of Cincinnati, which form any part of a boundary of a residential block or square as defined by section 452 of the code of ordinances of the city of Cincinnati.”</p> <p>This ordinance was referred by the council of said city to the committee on health of said council, and on September 27, 1917, a public hearing was had upon said ordinance by this committee. It is averred that said committee made an investigation of and visited places of business where buying, selling, processing and manufacturing of the hair of animals and packing-house by-products was prosecuted, and reported to the council of said city, as a result of said public hearing and said investigations and visits, that in all of said places of business noxious odors, gases and volatile substances are emitted. On' October 2, 1917, said ordinance was duly passed. Section 452 of the code of ordinances of the city of Cincinnati is as follows: “Block Restriction. — No reservoir for the storage of an inflammable, explosive or odorous gas, blacksmith shop, foundry, packing-house, rendering plant, soap factory, tannery, brewery, distillery, grain elevator, ice house, junk shop, laundry or any building, tipple or plant for the handling or distribution of coal or coke, shall be erected in any residence block, or residence square. For the purposes of this section a block or square shall be a section of land bounded by three or more public streets or alleys or -natural boundaries, such as streams of water, well-defined ravines or railway rights of way; and a residence block or residence square shall be a block or square in which more than sixty per cent, of the surface of the land contains buildings or premises used for residence purposes, and a building shall be deemed used for residence purposes when a majority of the floor space of such building is used for residence purposes.”</p> <p>It is further averred that the building proposed to be erected by the relator for the uses and purposes set forth in its petition is upon land abutting two public streets in the city of Cincinnati, viz., Chase and Dane avenues, and that Chase and Dane avenues form a part of the boundary of a residential block or square as defined by said Section 452 of the code of ordinances of the city of Cincinnati; that on October 2, 1917, the council of said city of Cincinnati passed a resolution by which the building commissioner was ordered to rescind the permit which he had given for the erection of the building; and that on October 4, 1917, the defendant in accordance with said resolution and ordinances canceled the building permit theretofore issued by him.</p> <p>In the reply of the relator it is admitted that the ordinance referred to in the answer was duly enacted by the city council; that said resolution was duly passed and that the defendant canceled and revoked the building permit theretofore issued by him. There is a denial of each and every other allegation contained in the answer.</p>

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

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The Frisbie Company seeks to recover from the city of East Cleveland the sum of $19,815.78, which it claims is due it by virtue of three several contracts entered into by said company with the board of waterworks trustees of the then village (now city) of East Cleveland, whereby it was agreed that the plaintiff should lay water mains .in the streets of three allotments owned by it, arid that when water rents received by the village of East Cleveland from the users of water on said streets should equal 10 per cent, of the cost of laying such mains the municipality should refund to the plaintiff the cost of the installation of said pipes.</p> <p>It is averred that the first of said contracts, re-' lating to one of the subdivisions owned by plaintiff, was entered into February 2, 1901, and that pursuant thereto plaintiff expended the sum of $2,953.70; that the second of said contracts, relating to another subdivision owned by plaintiff, was entered into November 2, 1901, and in pursuance thereof plaintiff expended the sum of $1,608.73; that the third of said contracts, relating to another subdivision owned by plaintiff, was entered into April 8, 1902, and in pursuance thereof plaintiff expended the sum of $15,253.35; and that the water rents received by the municipality for the fiscal year ending March 1, 1915, equaled 10 per cent, of the cost of installation of said pipes, but that the defendant on demand refused to refund to the plaintiff the cost of installation of said water mains.</p> <p>As a fourth cause of action the plaintiff asserts that the city of East Cleveland is wrongfully applying the property rights of the plaintiff .in said waterworks, water pipes, water rights and easements to its own use, benefit and profit without having compensated the plaintiff therefor, resulting in damage to plaintiff in the sum of $19,815.78.</p> <p>Issues were made up and tried to the common pleas judge, a jury having been waived. Upon such hearing it was admitted that said water pipes were installed by the plaintiff to the satisfaction of the board of trustees, and that the cost thereof was as recited in the petition; that water rents received from the users of water from the pipes so laid have been equal to 10 per cent, of the cost of installation since March 1, 1915; and that subsequent to June 21, 1915, The Frisbie Company tendered to the council of East Cleveland a duly executed conveyance to the city of its right, title and interest to said water pipes so laid and installed, on condition that the city pay the cost of installation, which deed and payment were refused.</p> <p>The action of the board of waterworks trustees relative to such matter was by way of resolution, wherein it was provided:</p> <p>' “All of said work shall be done under the inspection and supervision of the engineers of the Board, and subject to plans and specifications approved by said engineers. Said work to be done at the cost of said The Frisbie Company. Said mains when laid shall be under the control of this Board, and when the rentals along said lines shall equal annually, 10 per cent, of the cost of the construction thereof, this Board shall, if in funds applicable thereto, repay said The Frisbie Company, (but without interest), the cost of such work, provided such cost shall not exceed what said work could be done for by this Board at the time said Company causes the same to be done. Should such cost exceed what same work could be done for by this Board, then and in that event, said The Frisbie Company, shall accept in full payment fox' all work done, a sum equal to the cost estimated by the engineers of this board, of doing said work.”</p> <p>In the court of common pleas judgment was rendered for the amount asked. Upon proceeding in error the judgment of the court of common pleas was reversed, whereupon a petition, in error was filed in this court.</p>

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

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The above entitled cases involve the same question, and were heard and submitted together.</p> <p>In each of these cases, the plaintiff in error, by affidavit filed in the municipal court, was charged with a violation of the provisions of an ordinance of the city of Cleveland which reads as follows:</p> <p>“Any person, who, otherwise than by force and violence or by putting in fear, attempts to steal and ta*ke from the person of another anything of value, shall be guilty of a misdemeanor,” etc.</p> <p>The plaintiff in error in each case filed a demurrer to the affidavit, on the ground that it did .not state an offense against the laws of the city of Cleveland, or the state of Ohio. This demurrer was overruled and a plea of not guilty entered. Trial was had, resulting in a conviction in each case.</p> <p>The court of appeals of Cuyahoga county affirmed the judgments of the municipal court.</p>

<p>Error to the Public Utilities Commission.</p> <p>Plaintiff in error filed its complaint with the public utilities commission, praying that the commission enter into an investigation of rates of fare then in existence on the road of plaintiff in error, and praying for an increase thereof.</p> <p>It appears from- the complaint that certain grants have been made by different subdivisions of the state through which the complainant’s line runs, which have been accepted by the company. These grants provide for certain rates of fare over the line.</p> <p>The city of Cincinnati, one of the parties mentioned in the complaint, filed its demurrer to the complaint on the following grounds:</p> <p>‘T. That the complaint does not state facts sufficient to constitute a cause of action.</p> <p>“2. That the Public Utilities Commission of Ohio has no jurisdiction over the subject-matter of said complaint.</p> <p>“3. That said commission has no jurisdiction over the city of Cincinnati.”</p> <p>, This demurrer was sustained and the complaint dismissed. To that order of the commission error is prosecuted to this court.</p>

<p>Error to the Public Utilities Commission.</p> <p>Facts are stated in the opinion.</p>

<p>Public utilities commission — Jurisdiction —Interurbmi railways — Application for increased passenger fares — Before existing franchise-contract expires.</p>

At the time of the accident the plaintiff was an infant about four and one-half years of age. The defendant was driving an open, fore-door, seven-passenger automobile. On the morning of June 15, 1913, the defendant had driven his car to his father-in-law’s house on East 64th street in Cleveland. He left his automobile standing at the curb on the right-hand side of the street in front of his father-in-law’s house, which he entered, remaining there about twenty minutes.

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

the Public Utilities Commission. The Union Gas & Electric Company and The Cincinnati Gas & Electric Company in September, 1917, filed their complaint with the Public Utilities Commission, in which it is set forth that the council of the city of Cincinnati on August 20, 1917, passed an ordinance regulating the price to be charged for natural gas consumed. A copy of the ordinance was attached to the complaint.

<p>Error to the Court of Appeals of Portage county.</p> <p>This action was instituted in the court of common pleas of Portage county, August 3, 1916, by defendant in error, M. C. Slutz, who' alleged that he was the owner, by assignment, of a judgment recovered in said court on October 10, 1894, against the plaintiff in error and others, and prayed for a revivor thereof.</p> <p>An amended petition was thereafter filed in which it is averred in substance that on July 9, 1894, Ransom H. Clark brought an action in said court against the defendants herein, wherein he sought judgment for the amount due him on certain promissory notes, and foreclosure of a mortgage given to secure the same; that on October 10, 1894, a decree and finding was entered in said action in favor of said Ransom H. Clark against the defendants, finding the amount due plaintiff therein to be the sum of $1,441.44, with interest from the 10th day of October, 1894, further finding that the plaintiff was entitled to the relief prayed for in his petition, and ordering that upon failure of the defendants to pay said sum within five days said mortgaged premises be sold by the sheriff upon execution at law, and further ordering and decreeing that the plaintiff have execution at law against the goods, chattels, lands and tenements of the defendants for any balance remaining unpaid after exhausting the mortgaged property; that after applying the proceeds arising from the sale of said premises there remained unpaid $684.56; and that on October 13, 1896, an execution, duly issued, was returned entirely unsatisfied.</p> <p>The defendant Mary J. Weenick, plaintiff in error here, by answer asserted that no judgment had been rendered against her in said former proceeding, but that said action was merely to foreclose a mortgage; that the court therein did find the amount due on said mortgage and ordefed the same foreclosed; and that any right of action based upon the decree rendered therein was barred by the statute. Defendant set up separately the statutes of ten years, fifteen years and twenty-one years as a bar to plaintiff’s right of recovery.</p> <p>Upon hearing, the court of common pleas found in favor of the plaintiff, defendant in error here, and entered judgment in his favor as prayed, which judgment was affirmed by the court of appeals.</p>

<p>In Mandamus.</p> <p>This is a proceeding in mandamus in which the original jurisdiction of this court is invoked. The question for determination is raised by demurrer to the petition.</p> <p>The relator is a corporation organized under the laws of the state of Delaware, with its principal officé located in the state of Missouri, with an authorized capital stock of $600,000, and is authorized by its charter to deal in and develop mineral lands, and buy and sell mineral products, manufacture and refine by-products of coal, tars, oils and allied products, buy and sell and deal in said by-products, purchase and acquire machinery, tools and materials suitable for such purposes, and do and perform every act, work and labor necessary therefor. It is also authorized by its charter to carry on the business in the state of Ohio.</p> <p>For the purpose of obtaining a certificate from the defendant, as secretary of state, authorizing it to do business in Ohio, relator presented to him in the form prescribed by him a copy of its charter, and a statement showing the amount of its authorized capital stock to be $600,000, setting forth the business and objects of the corporation in which it proposed to engage and carry on business in the state.of Ohio, designating where its principal place of business was to be located, and naming a person upon whom process might be. served. Relator also presented to defendant in a form prescribed by him a statement under oath that the authorized capital stock of the corporation was $600,000, divided into 6,000 shares of the par value of $100 each; that the value of the property owned and used in the state of Ohio was $400,000; that the value of the property owned and used outside of said state was nothing; and that the proportion of the capital stock of the company represented by property owned and used and by business transacted in Ohio was 66 2/3 per cent.</p> <p>At the time of the filing of said statements the relator tendered to defendant the sum of $430 as a fee for the issuing of said certificate. The defendant has refused to accept said amount, and claims the right to collect from the relator the sum of $630; and still refuses to issue the certificate, for the sum of $430, although the relator is ready and willing to pay said amount. It appears that but $400,000 of said stock has been subscribed, issued or paid for.</p> <p>The prayer of the petition is that a writ of mandamus issue commanding the defendant, as secretary of state, to issue his certificate authorizing it to do business in the state of Ohio in the manner provided by statute and to accept in full of all fees the sum of $430.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>On November 30; 1917, The Cleveland Telephone Company, operating partly within and partly without the city of Cleveland, Ohio, filed with the public utilities commission of Ohio two schedules of rates to be effective January 1, 1918.</p> <p>On December 17, 1917, the council of the city of Cleveland, passed an ordinance “fixing the maximum rate which may be charged for telephone service within the city of Cleveland.”</p> <p>The city of Cleveland brought an action in the common pleas court of Cuyahoga county, averring that the rates fixed by ordinance are reasonable, will yield a fair return to the company, and are the only lawful rates which may be charged, and asked the court to enjoin the telephone company from putting into effect any other or different rates than those named in the ordinance.</p> <p>To the amended petition the telephone company filed a general demurrer, which was overruled, and the company then filed an answer. It was stipulated, however, that the reasonableness or unreasonableness of the rates fixed by the city council would not be gone into at that time, but that the only question that would be submitted would be the authority of the city of Cleveland, under its home-rule charter, to prescribe rates for telephone service within the limits of that city.</p> <p>Final judgment was entered in favor of the city, granting a permanent injunction restraining the telephone company from putting into effect the increased rates or any rates other than those in effect on December 31, 1917.</p> <p>The cause was appealed to the court of appeals of the eighth district. The telephone company filed an amendment to its answer, to which the city demurred. The court of appeals overruled the company’s demurrer to the city’s amended petition, sustained the city’s demurrer to the company’s amended answer, and entered a like judgment to that entered in the common pleas court.</p> <p>The telephone company filed a petition in error in this court to reverse the judgment of the court of appeals of Cuyahoga county.</p>

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

<p>Certified by the Court of Appeals of Logan county.</p> <p>The defendant in error brought suit against the board of county commissioners of Logan county to recover damages sustained on account of the alleged carelessness and negligence of the commissioners, which resulted in the death of her husband.</p> <p>In her petition she described a county road called the “Carlisle Pike,” in Logan county, across which there is a stream called “Stony Creek,” over which the commissioners have maintained, for many years, a bridge.</p> <p>She alleged that the bridge was destroyed a long time prior to September 26, 1913, and that the commissioners negligently permitted the highway across the creek to remain open without any bridge or other means of passage being provided for vehicles; that the commissioners did not provide any barricade or barrier to prevent persons from using said highway and approaching said creek, or provide any means of warning passengers along said highway of the danger by reason of the destruction of the bridge, of which danger the commissioners. had full knowledge and notice.</p> <p>She alleged that the commissioners had full notice and knowledge that no barricades were across said highway to prevent passengers from using the same, and that no lights or other means of warning passengers had been placed along or across said highway; that on the day named, in the night season, John E. Bicher, deceased, was a guest in a certain automobile driven along said highway; that the automobile was driven in a careful and prudent manner and that deceased and the other persons in the same had no knowledge of the destruction of said bridge, or of the dangers existing thereof; and that while so traveling along the road, the automobile, with all of its passengers, was suddenly plunged from the level of the highway to the bottom of the creek and the plaintiff’s intestate received injuries from which he died.</p> <p>In its answer the board denied that on said day there was an opening between the banks of Stony Creek where it crossed the pike, that had been left open and exposed and uncovered, and especially denied that the road had been negligently and carelessly permitted by the defendant to be and remain open and exposed and uncovered, where the pike crossed the creek. The defendant denied that the pike on the 26th of September was without any bridge or means of passage for travelers along said highway, and denied all negligence alleged in the petition.</p> <p>For a second defense defendant set out that said bridge was washed away by unprecedented rains in March, 1913, and that defendant had caused to be constructed a good and sufficient wood bridge across said creek from 25 to 30 feet east and south of the location of the former, bridge, together with proper approaches; that about 75 or 80 feet south and west of the old bridge the traveled road had been turned by the defendant towards the east so as to provide a good and sufficient roadway and approach, abandoning the old roadway approaching the original bridge; and that defendant had erected barriers at the point where said traveled roadway had been turned to make the approach to the new bridge and had in every way exercised ordinary care for the' protection of the public.</p> <p>For a third defense defendant says that the decedent and others were driving from Middletown, Ohio, to the Lewiston Reservoir, a journey of some 100 miles, in an automobile driven by Adams, ■the owner thereof; that the deceased well knew that the roads and bridges in Miami and Mad River valleys had been practically all washed out by the spring flood, and that there had been no opportunity on the part of the various county authorities to restore the same entirely; that the automobile was not provided with good and sufficient brakes and its occupants were without means of controlling the car, all of which was well known to the deceased; and that in a wilful and negligent disregard of the turn in the roadway, and of the barricades erected by the defendant, the said deceased and other occupants of the automobile deliberately turned off said traveled roadway on to the abandoned and unused portions thereof and into and through and over the barricades that had been placed at the turning of the road by the defendant, and thereby received the injuries complained of.</p> <p>In her reply the plaintiff denied the allegations in the second and third defenses.</p> <p>On the trial the jury returned a verdict in favor of the plaintiff, and the judgment entered on this verdict was affirmed by the court of appeals, which court certified the cause to this court for review and final determination because it found that its judgment was in conflict with the judgment pronounced on the same question by another court of appeals of the state.</p>

<p>In Prohibition.</p>

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

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

<p>Public contracts — Terms and provisions control, when — Measurements by engineer — Final in absence,of fraud, when.</p>

<p>Public Utilities commission — Application for rehearing — Filed after statutory period — Jurisdiction — Error to supreme court.</p>

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

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

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

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

<p>Schools — Newly created, districts — ■Authority to appoint board — Sitbsequent election — Title to office — Sections 4712, 4736 and 4736-1, General Code.</p>

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

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

<p>Jurisdiction — State courts — Subject-matter pending in federal court — Attorneys’ fees — Money paid into court.</p>

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

<p>Workmen’s compensation■ — •Advancements by employer — Who entitled to commission’s award.</p>

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

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

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

<p>Extradition — Requisition by governor — Presumption favoring issuance■ — •Section no, General Code, not construed.</p>

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

<p>In Prohibition.</p>

<p>Board of agriculture — Regulation of sale of hog virus — Constitutional law — Police power — Revocation of permit — Applicant estopped, when.</p>