Volume 99 — Ohio State Reports, New Series

In Mandamus. This is a proceeding in mandamus originating in this court. The defendant is a justice of the peace in and for East Cleveland township, Cuyahoga county, Ohio. On the 6th day of March, 1918, plaintiff brought an action against one James Svoboda, before said defendant as justice of the peace, to recover the sum of twelve dollars for necessaries.

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

The plaintiff in error in this court was the plaintiff in the court .of common pleas. In its petition the plaintiff avers that in the transaction of its business, and incidental thereto, it exhibited a picture and offered to the person suggesting the best title therefor a certain house and lot. The house was not then completed, but was to be finished by the plaintiff in accordance with the plans and specifications on file.

<p>Initiative and referendum — Municipal—Petitioners may withdraw signatures, when — Certification of petition to election officials —Powers and. duties of officers — Section 4227-2, General Code.</p>

Plaintiff in error was plaintiff in the court of common pleas where he sought partition of a tract of land containing 160 acres, claiming to be the owner in fee simple of the one-eighth thereof.

<p>Schools — Election of county board member — Retiring presidents of local boards cannot elect, when.</p>

Error 'to the Court of Appeals of Stark county. Defendant in error, Sarah F. Slayman, sued the Cemetery Association for malicious prosecution, alleging in her petition that the association through James Dewel, its sexton, and J. A. Reed, its secretary and superintendent, without reasonable or probable cause, maliciously charged the plaintiff with having committed the offense of unlawfully removing flowers from the cemetery; that pursuant to said charge- she was arrested and…

<p>In Quo Warranto.</p>

Prior to January 14, 1914, the entire capital stock of The Toledo Terminal Railroad Company was owned by seven railroad companies entering Toledo, Ohio. On the date above named, and for many years prior thereto, this company had an outstanding bonded indebtedness amounting to $4,000,000, bearing interest at 41 per cent, per annum, payable annually, secured by mortgage held by The Columbia-Knickerbocker Trust Co. of New York as trustees.

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

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

<p>In Prohibition.</p>

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

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

On the 1st day of March, 1915, The Mutual Electric Light Company was operating an electric light plant in the village of Pomeroy, Ohio. On the date above mentioned the village council of the incorporated village of Pomeroy passed an ordinance fixing the rate or price that The Mutual Electric Light Company might charge for lighting by electricity the streets, alleys, and public buildings and. grounds, for a period not exceeding ten years.

Defendant in error, Van R. Myers, brought an action in the common pleas court of Hancock county, Ohio, for the sum of $1500.

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

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

In Mandamus. The relator, invoking the original jurisdiction of this court, prays for a writ of mandamus commanding the auditor of Putnam county, Ohio, to place a sufficient levy on the tax duplicate of the village of Leipsic to provide the necessary funds for that village for the year 1918, and that he levy the sum asked for in his budget in excess of the 2.30 mills levied for stone road purposes hereinafter referred to. To this petition defendants enter a! general demurrer.

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

The petition of Frank C. Thornton avers that he has in his employ more than forty workmen and operatives regularly employed in the same business in and about his manufacturing establishment under contracts of hire.

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

<p>Certified by the Court of Appeals of Allen county.</p>

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

<p>Corporations — SaleI of entire property — Section 8710 et seq., General Code — Notice to stockholders mandatory — Rights of objecting stockholders — Duty of purchaser before buying property.</p>

The defendant in error, Josie Fall, at the time of the institution of this action in the probate court of Ottawa county, Ohio, was the owner of the east half of lots Nos. 13, 14, 15 and 16, of Block No. 7, in the village of Port Clinton in said county, together with a certain dwelling house and other buildings located thereon — the lots being adjacent to each other and said lot 16 abutting upon Second street, a 60-foot public street of said village; and the plaintiff in…

On the 23d day of August, 1913, Armstrong, Lee & Company filed their petition in the court of common pleas of Muskingum county, averring that they delivered to The Baltimore & Ohio Railroad Company at their grain elevator, at Zanesville, Ohio, two thousand one hundred and sixty-eight and one-third bushels of wheat, in two cars, with the agreement and understanding that the railroad company was “to safely and immediately transport and deliver same over its railroad to high…

In Mandamus. This is an original bill in mandamus which seeks to procure a writ commanding the secretary of state to publish an amendment to the constitution, which it alleges was approved by a maj'ority of the electors voting thereon at the election in November, 1918, the full text of which proposed amendment was as follows : “Be It Resolved, By the people of the State of Ohio: That Section 2 of Article XII of the Constitution of the State of Ohio be amended to read as…

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

<p>In Contest of Election.</p>

<p>In Mandamus.</p> <p>This is an original action in mandamus to direct the superintendent of insurance to revoke an order by him made canceling the license of the relator to do business in Ohio.</p> <p>The petition alleges that the relator is a corporation organized under the laws of the state of Wisconsin; that it is a mutual life insurance company doing business'on the level life plan; that its policy holders participate in the surplus and earnings of the company; that it is engaged in the business of loaning money and insuring lives in the state of Ohio; that the aggregate amount of premiums specified in the policies of insurance held by residents of Ohio during the year .1916 was $2,963,-524.70, and in the year 1917 was $3,242,005.68; that the relator did not collect said sums by reason of the fact that a credit was allowed in 1916 upon the premiums due, in the sum of $479,045.48, and in 1917 in the sum of $523,764.52, by way of dividends ; that said dividends in fact were in part the excess collected over and above the sum necessary to carry the risk in previous years, and in part the earnings upon investments in excess of the earnings estimated at the time of the issuing of the policy; that said .defendant claims the excise tax provided for in Sections. 5432 and 5433 of the General Code shall be based upon the premiums stipulated on the face of the policies, and the relator claims that the tax above referred to shall be based upon the premiums actually paid by the insured; and that in November 1918 the superintendent of insurance canceled and revoked the license of the relator to do business within the state, for the sole and only reason that the relator refused to pay tax upon the difference between said respective sums, to-wit: tax in the sum of $11,976.14 for 1916 and tax in the sum of $13,094.11 for 1917. The petition prays the court to revoke the order canceling the license of the relator, and for an order against the defendant commanding him to issue a license to the relator.</p> <p>A general demurrer was filed to the petition and the case is here for hearing upon the demurrer.</p>

A petition was filed in the court of common pleas of Crawford county by plaintiff, Kintz, which substantially charged: “That on or about the 22nd day of May, A. D. 1915, the defendant, Thomas Harriger * * * wilfully and maliciously and without probable cause gave and furnished to said grand jury certain false information against plaintiff, thereby maliciously and without probable cause, caused and procured plaintiff to be, by the said grand jury, indicted-for the offence of…

This action was brought in the court of common pleas of Cuyahoga county, Ohio, to determine whether or not a certain trust interest under the will of Mary M. Lozier, of Cleveland, Ohio, was governed by the laws of New York, which admittedly made said interest unassignable, or by the laws of Ohio, which admittedly left said interest assignable.

<p>Mandamus — Writ not to issue, when — 1Conditions precedent— Right of relator and duty of respondent — Substantial doubt exists, when — Fees due county treasurer — Claimed by trustee in bankruptcy, successor of assignee for creditors, and others.</p> <p>1. A writ of mandamus will not be granted to compel a county auditor to issue a warrant upon the county treasurer for the payment of public funds, unless the relator’s right is clear, and the act to be enforced is one of legal obligation. (State, ex rel. Gallinger et al., v. Smith, Auditor, 71 Ohio St., 13, approved and followed.)</p> <p>2. There is a substantial doubt as to the right of a relator, as trustee in bankruptcy, to the fees due the bankrupt for services as' county treasurer, where such fees are also claimed by a trustee for creditors appointed to succeed an assignee named in a deed of assignment executed and delivered by such treasurer, and are further claimed by persons to whom they were assigned by him in writing before the deed of assignment was filed or bankruptcy proceedings commenced, and where it also appears that the fees in dispute have been paid upon order of court, to a receiver appointed upon a motion in aid of execution filed in an action against such treasurer in his individual capacity prior to the assignment and bankruptcy proceedings, in which action the defendant treasurer in his individual capacity was duly and legally served with summons. (State, ex rel. Hildebrandt, v. Stewart, 71 Ohio St., 55, approved and followed.)</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>Plaintiff in error filed his petition in the court of common pleas of Cuyahoga county seeking an injunction to restrain the enforcement of a city ordinance. This ordinance provided for the regulation of the public laundry business in the city by means of inspection and license. Section one of the ordinance is as follows:</p> <p>“Section 1. Definition — Any building, structure, place, premises or establishment, which is used for the purpose of laundering wearing apparel, table or bed linen, curtains, rugs, towels, or any or all of said articles for thirty or more owners of such articles per week, and for pay, regulated either by a flat-rate, piece price, or by weight, shall be deemed a public laundry for the purpose of this ordinance.”</p> <p>Other sections of the ordinance provide that public laundries cannot be maintained or operated without a license from the commissioner of assessments and licenses, to whom applications were required to be made. These applications were then transmitted to the health commissioner of the city for investigation and report. Thereupon the health commissioner was required to make an examination of the premises for the purpose of ascertaining whether the location, construction and ventilation of such laundries, and the sanitary and drainage arrangements thereof, were “sufficient to properly protect the public health, and the health of the persons to be employed in such proposed laundry.” Among other requirements provided for in said ordinance was the requirement that “All rooms used in connection with such laundry shall be provided with adequate ventilation by means of windows, air-shafts, air-ducts or other mechanical apparatus, if needed, so as at all times to insure a free circulation of fresh air in such laundry.”</p> <p>Provisions were also made whereby any person aggrieved by any finding or order of the commissioner of assessments and licenses, or the commissioner of health, should have the right of appeal to a board of appeals, composed of the mayor, director of law and director of public safety. A violation of any of the provisions of the ordinance is máde a misdemeanor.</p> <p>In his petition plaintiff urged that the ordinance was in violation of the state and federal constitutions, was an unconstitutional interference with his business, and asked the court to restrain the defendants from enforcing the ordinance.</p> <p>A general demurrer was filed in the court of common pleas, which was sustained. Plaintiff perfected his appeal to the court of appeals, which sustained the judgment of the lower court. Error is now prosecuted to this court.</p>

This is a proceeding brought to reverse an order of the public utilities commission. In January, 1886, the village granted The Oak Harbor Natural Gas Company a franchise to lay, maintain, operate, repair and remove mains and pipes in, through and under the streets and public grounds of the village, for the transportation and supply of gas for fuel, heating and power purposes to the village and its inhabitants for the period of twenty-five years.

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

The Ohio Locomotive Crane Company was incorporated in 1909, with a capital stock of $15,000, divided into 150 shares of $100 each. There were five incorporators, of whom were Patriek J. Carroll and Maurice E. Carroll. The stock was all subscribed for by the incorporators in equal proportions and certificates for thirty shares issued to each. The five stockholders elected themselves directors.

Joseph F. ¡Bailey sued the plaintiff in error company to recover the penalties imposed by Section 9014, General Code, on account of certain monthly deductions from his wages, which he alleged the defendant unlawfully, illegally and against the plaintiff’s wishes made for the payment of dues in the relief department maintained by the defendant. The petition contained thirteen causes of action to cover the deductions made in as many months.

Alexander Long and Rilla Long, husband and wife, lived in Polk township, Crawford county, Ohio, on a farm, the fee of which was in Alexander Long. The C, C., C. & St. L. Railway Company brought an action in the probate court of said county to appropriate a part of said land for railroad purposes. The wife, Rilla Long, was not a party to said action.

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

<p>Insurance — Indemnity — Construction of policy — Notice to insurer — Time of essence of contract, when — Trivial injury subsequently proves serious — Whether notice given within time — Question for jury — Accident insurance ■ — Loss of eyesight develops after slight injury.</p> <p>A provision in a policy of indemnity insurance, to the effect that written notice should be given the company within 30 days from the date of sustaining the injury, is of the essence of the contract, and like other contracts should be construed so as to give effect to the intention and express language of the parties. This rule of law is subject to the qualification, that if at the time of the accident, and within the period stipulated for the giving of notice, no reasonable ground existed warranting a belief that the injury was anything but trivial in its character, not justifying a claim for damages, and it subsequently develops that as a result of such accident serious consequences have ensued, and that immediately upon being advised of this fact the insured gives written notice to the insurer, the question whether the notice was given within time is not a matter of law, but is a question for the determination of a jury. (The last clause of the fourth proposition of the syllabus in the case of The Travelers’ Insurance Co. v. Myers & Co., 62 Ohio St., 529, is disapproved.)</p>

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

The plaintiff in error, Artman Wertenberger, at the April 1917 term of the court of common pleas of Stark county, Ohio, was indicted for the violation of Section 13030, General Code, said indictment charging the plaintiff in error with being, on or about the first day of June, 1917, a school teacher over twenty-one years of age, and with unlawfully and wilfully having sexual intercourse with one I. M., said I. M. being then and there a female pupil under his instruction.

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

In January of 1917 The Board of Education of the Tiro Consolidated School District of Crawford County passed a resolution declaring it necessary to purchase a site and erect-, thereon a schoolhouse… Held: at which a majority of the qualified voters of the district voted in favor of the issuing of bonds in the amount named. Thereupon the board of education proceeded to advertise for sale the bonds so authorized to be issued, and bids were received therefor.

August Froelich was convicted in the municipal court of Cleveland on the charge that he had violated Section 1343-e of the ordinances of the city of Cleveland, which reads as follows: “No load in excess of ten tons in weight, including the weight of the vehicle, shall be propelled or driven upon or over the streets of the city, provided, however, that the Director of Public Service may issue permits in special cases for the carrying of heavier loads upon or over certain…

The relator, The Moore Oil Company, has maintained a gasoline filling-station at the northwest corner of Twenty-first and Broad streets in the city of Columbus since May 1, 1915, and since November 4, 1915, has been the owner of the tract whereon its filling-station is located. It has a driveway entering from Twenty-first street and the alley in the rear of its premises, leading to its building, and thence to Twenty-first street near Broad.

Plaintiff in error, Clara Allion, being engaged in the bakery business in the city of Toledo, Ohio, was charged in the police court and there convicted of selling a loaf of bread weighing less than one pound avoirdupois weight in violation of a city ordinance regulating the size of loaves of bread to be sold within the city of Toledo.

On the 19th day of January, 1917, The Steuben-ville & East Liverpool Railway & Light Company transferred its property, franchises, and contracts, in so far as the same applied to the lighting and power business formerly carried on by it, to The Ohio River Power Company.

... The plaintiff in error was plaintiff, and defendant in error was defendant, in the court of appeals, and will be hereafter referred to as plaintiff and defendant, respectively.

<p>Constitutional law — Blue sky law — Sections 6373-1 to 6373-24, General Code — Stocks, bonds and securities — Licensing and supervision of dealers therein.</p>

<p>Court of appeals—Finding constitutes reversal on weight of evidence, when—Contributory negligence.—Question of fact for jury, when.</p>

<p>Railroads — Common carriers, when — Duty to furnish service — Coal and mining company cannot operate road, when — Public titilities commission — Jurisdiction.</p>

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

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

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

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

<p>Certified by the Court of Appeals of Franklin County.</p>

<p>County commissioners — Road improvement — Petitioner for improvetment estopped, when.</p>

<p>Judgments — Proceedings to vacate — Motion for new trial — Proceedings in error — Pinal order.</p>