« ForrigeFortsett »
court of common pleas that the injunction th
doing. That the injuries and damages plain the line of such road and make such marktiff and those whom he represents will sus ings, gradient lines, plat and profiles and tain are irreparable, are not assessable in estimates as such commissioners shall order damages, and that redress for the grievances in their entry on their journal, and order will engender a multiplicity of suits. There that the improvement be made; and at the upon it was adjudged and decreed by said same time said commissioners shall order
that a portion of the cost and expense theretheretofore granted in said action be and the of, which shall not be less than one-half, nor same was made perpetual. On error,
, this more than two-thirds, of the total cost and judgment of the court of common pleas was expense thereof, shall be paid out of the proaffirmed. This court is now asked to reverse ceeds of any levy or levies upon the grand the judgments of the court of common pleas duplicate of the county assessed against and circuit court, and upon the above record (which) the taxable property of any townto render such judgment as it is claimed ship or townships in which such road may be these courts should have rendered.
in whole or in part, as authorized by section Anderson, Bowman & Anderson, for plain
5 of this act. And shall also order that the tiffs in error. Martin B. Trainor, for defend balance of said cost and expense be assessed ants in error.
upon and collected from the owners of the
said real estate, and from the real estate CREW, J. (after stating the facts). Nu benefited thereby in proportion to the benefit merous questions were raised on the trial to be derived therefrom by said real estate of this cause in the court of common pleas,
as determined by said commissioners.
Said two only of which, upon this record, are
order shall also state the lands which shall properly before us for review. These are: be subject to be assessed for the cost and (1) Did the county commissioners of Darke expense of said improvement, and whether county, Ohio, by presentation to them of the the estimated assessment therefor shall be petition for the improvement of the road in made before the improvement is commenced, controversy, acquire jurisdiction to order or after the same is completed.” said improvement? (2) At the time of filing In the present case the record discloses their petition for injunction in this case had that at the time the petition asking for said the defendants in error an adequate remedy
road improvement was presented to the comat law? These propositions we shall consider missioners of Darke county, there were then briefly in the order named. It is conceded 106 persons residing in said county who by counsel in this case that unless the peti
owned real estate lying and being within one tion presented to the county commissioners mile of said proposed improvement. Of this was signed by the requisite number of quali number 98 resided within one mile of said fied landowners, said commissioners were road, and the remaining eight, all of whom without authority or jurisdiction to entertain were opposed to the making of said improvesaid petition, or to order the making of said ment, resided more than a mile distant thereimprovement, and that whether or not said from. Of the 98 persons owning lands and petition was so signed depends upon and is residing within one mile of said road, 52 to be determined by, the construction or in signed the petition asking for said improveterpretation proper to be given the words ment. If therefore, under the above statute, “resident owner” as employed in section 1 in determining whether a majority of the of the act of the General Assembly passed
resident owners of real estate have signed a April 4, 1900 (94 Ohio Laws, p. 96), entitled petition for the improvement of a public road "An act to provide for the improvement of only those owning land and actually residing public roads," which section provides as fol within one mile of said road are to be conlows: "Section 1. That when a majority of sidered and counted, then the petition in the the resident owners of any real estate lying present case was sufficient, it having bee. I and being within one mile of any public road signed by 52 of the 98 landowners residing shall present a petition to the county commis within one mile of the road in said petition sioners of any county in the state of Ohio, described. If, however, all landowners reasking for [the] grading and improving of siding within the county who own lands lying any such road, the board of county commis within one mile of the road to be improved sioners shall go upon the line of such road must be considered and counted in determindescribed in such petition, and if in the opin ing whether a majority of the "resident ion of the county commissioners the public owners” have signed the petition for the imutility requires such road to be graded and provement, then the petition in the present improved, the commissioners shall determine case was not sufficient and the commissioners whether the improvement shall be constructed were without authority or jurisdiction to of stone, gravel, or brick, any or all, and proceed with or to order the making of said they shall determine what part or parts of improvement-it being admitted that at the much road improvement shall be of stone, time of the presentation of said petition to gravel, or brick, any or all, and shall enter the commissioners there were 106 such resi
dent owners within Darke, county, only 52 the same time appoint an engineer to go upon of whom signed said petition. Obviously,
therefore, the question of jurisdiction is to by this act such policy should be disregarded be determined according to the effect and or abandoned, obedience to the rules of meaning given the expression "resident own interpretation would seem to require that in ers" as found in the foregoing act of April construing the language and provisions of 4, 1900. These words are without definition said act such general policy should be allowed in the act itself and a comparison of the to control. It follows therefore that the several parts and provisions of said act con words “resident owners” as found in this act tributes little or nothing to the discovery of must be held to mean resident of the county their intended office and effect. The meaning and not merely resident of the assessment of these words and the effect the Legislature district, and such was the construction given intended they should have as employed and them by both the circuit court and the court used in this statute may perhaps best be as of common pleas. certained by a consideration of certain cog The only remaining question is, was injuncnate statutes, observing and applying the tion the proper remedy? As to this we think well-established rule, that the provisions of it enough to say, that inasmuch as presentaa statute are to be construed in connection tion to the county commissioners of a petition with all laws in pari materia and especially signed by the requisite number of resident with reference to the system of legislation of landowners is necessary to confer jurisdiction, which they form a part, and when in a system and is a condition essential and precedent to of laws relating to a particular subject a the right of the commissioners to act, no such general policy is plainly declared, in order petition in the present case having been filed to arrive at the meaning of any particular or presented, the commissioners were without part or provision the whole must be consider lawful authority to proceed with said proed and that construction adopted, if may be, posed improvement because wholly without which will bring it in harmony with such jurisdiction. Injunction therefore was the general policy. Cincinnati v. Connor, 55 appropriate remedy. Ohio St. 82, 44 N. E. 582; Cincinnati v. Judgment affirmed. Guckenberger, 60 Ohio St. 353, 54 N. E. 376. The act we are now considering is, as was SCHAUCK, C. J., and SUMMERS and said by the learned trial judge, “an act prop DAVIS, JJ., concur. erly supplementary to the one and two mile assessment acts which relate especially to making road improvements by special assess
(74 Oh. St. 252) ments. They are in pari materia; the ob
COOLEY et al. V. STATE ex rel. VILLAGE
OF BAY. jects are the same, the persons interested are the same, and the same general plan of as
(Supreme Court of Ohio. May 22, 1906.) sessment is contemplated.
TOWNS — DIVISION RIGIITS IN TOWNSHIP therefore look to these acts for aid as to the
In case of the division of a township and legislative intent, and particularly as to the
the establishment of a new township, the new meaning of terms used in the act under con township, under section 1377, Rev. St. 1906, sideration." Under the one and two mile is entitled not only to its portion of the money
in the treasury of the original township, at the assessment acts, all residents of the county
time the new township is established, but also owning lands within the assessment district
to money thereafter in the treasury, to the may be petitioners, and all must be counted extent the same was collected from the territory or considered in determining majorities.
established into the new township. These statutes which were passed and had
[Ed. Note.-For cases in point, see vol. 45,
Cent. Dig. Towns, § 17.] been in force for many years prior to April
(Syllabus by the Court.) 4, 1900, are, we think, declarative of the general policy which the Legislature intended to Error to Circuit Court, Cuya hoga County. prescribe and adopt in the matter of the mak Action by the state, on the relation of the ing and improvement of roads, and a con
village of Bay, for a writ of mandamus sideration of their provisions shows that it against one Cooley and others. Judgment was the legislative purpose and intent to re for petitioner was affirmed by the circuit quire that all landowners resident of the court, and defendants bring error. Affirmed. county, who own lands within the assessment
The village of Bay is, and in September, district, which must bear the burden and will
1903, was, a municipal corporation in Dover share the advantages resulting from the pro township, Cuyahoga county, and at that time, posed improvement, shall be considered in
by ordinance of its council, petitioned the determining whether or not a majority of the county commissioners to change the limits of resident owners favor the making of the con the township so as to establish a new towntemplated improvement. Such, then, being
ship out of a portion of it by the name of the declared general policy at the time the the township of Bay, with its boundaries act under consideration was passed, and there coterminous with those of the village. The being nothing in the act itself to indicate an township of Bay was so established by the intent to change or abandon such policy, and commissioners on November 4, 1903. In no reason being shown or suggested, why in Vay, 1903, the trustees of Dover township the making of the improvement contemplated had made a levy of taxes on all of the tax.
able property in the then limits of Dover to exercise its functions, and that such a retownship. In March, 1904, the county treas sult could not have been intended by the urer paid over to the treasurer of Dover Legislature. On the part of the township township the money received on collection the contention is that the word "funds" of the first half of said levy. Thereafter means money and, conceding that the Legis. the relator demanded of the trustees and lature did not intend that the new township the treasurer of Dover township that they should wait two years before exercising its apportion the money so received to Dover powers, that the new township, in the ab. township and the village of Bay in the pro sence of statutory provision therefor, is enportions it had been collected from the tax titled to no part of the property or resources able property in their respective limits, and, of the old, and that if any such consequences upon refusal, a petition in mandamus was follow it is a casus improvisus on the part filed in the court of common pleas to compel of the Legislature that cannot be cured by such apportionment, and also payment, by judicial interpretation, since the words of the treasurer of the township of Dover. the statute clearly do not provide for a diviAn alternative writ of mandamus was sion of funds arising from taxes levied but allowed.
The defendants filed a gen not collected at the time the new township eral demurrer, which was overruled, and is established, and that this is made certain they not desiring to plead further, and no by reference to the statute as it read before sufficient cause being shown to the contrary, the revision of the statutes in 1880, and finds the peremptory writ prayed for was allow
support in the fact that section 3946a, Rev. ed. On error the circuit court affirmed, and
St., relating to newly created school districts, error is prosecuted in this court.
provides for a division, not only of money in Stage, Armstrong & Cannon, for plaintiff the treasury, but also of the levy or levies, in error. William 0. Mathews, for defend and that in 97 Ohio Laws, p. 337, it is provid ant in error.
ed that when territory is transferred from
one school district to another there shall be SUMMERS, J. (after stating the facts). a proper division of funds in the treasury or Section 3 of the Municipal Code (section in process of collection; and that at the last 1536–3, Rev. St. 1906 [Bates' 5th Ed.]), pro session of the Legislature it was enacted by vides that when the corporate limits of a section 1565a, Rev. St., that a proper divivillage become identical with those of a sion shall be made of the funds for township township all township officers, excepting jus purposes in the treasury or in process of coltices of the peace and constables, shall be lection. abolished and the duties thereof thereafter The part of section 1377 under considerabe performed by the officers of the village, tion was first enacted as section 2 of an act and that all rights, interests, or claims in passed February 20, 1865 (62 Ohio Laws, p. favor of or against the township may be 18), and reads as follows: "The funds in any enforced by or against the corporation. If township treasury at the time of said divi. mandamus is the remedy appropriate to the sion or partition shall be apportioned to the relief sought in the present proceedings, then township to which the same may be attached it is properly instituted by the village; and, in proportion to the amount thereof collected since it is not questioned, it is not considered. from such attached portion." If the word
The question presented involves the in “funds” as used in section 2 means money, terpretation of section 1377, Rev. St. 1906, then perhaps the new township would not which provides: "And in case of division under its provisions be entitled to any of * * * of any township, the funds in the the money thereafter coming into the treastreasury of such township shall be appor ury, but assuming that it did mean money, tioned
* to the new township * * and that the same meaning must be given to established, to the extent the same were col it in section 1377, it does not follow that lected from the territory * *
* * * establish the provision in section 1377 must receive the ed into a new township.” The cash in the same interpretation as section 2. Section 2 treasury on November 4, 1903, at the time in the revision of the Statutes of 1880 was the new township was established, was di carried into that revision as the provision of vided, and the village now claims its propor section 1377 already quoted. The omission tion of the cash now in the treasury from in the revision of the words "at the time of the December, 1903, collection of taxes, levied said division or partition” indicates an inin May, 1903. The contention on the part tentional change in the statute. Omitting of the village, briefly stated, is that the word them, the provision is, that the funds in the "funds” does not mean money, merely cash, treasury of the township, to the extent the but all the existing means or resources of same were collected from the territory estabthe township for the payment of its debts lished into a new township, shall be apporand the carrying on of its government. That tioned to the new township. From obvious a levy can be made only yearly, that nearly considerations of convenience the means of a year will pass after a levy before the collecting the funds into the treasury are not money will be available, and that thus nearly changed, but the funds in the treasury of the two years might pass after the establishment old township at any time after the establishof the new township before it would be able ment of the new township to the extent they
were collected from the territory of the new are to be apportioned to the new. The fund: in the treasury are to be divided. They were not in the treasury until they were collected, and the past tense has reference to the existence of the fund and not to the time of the establishment of the new township. The meaning of the section is made apparent by the transposition of one clause, and may be read, "and in case of division
* * of any township, the funds in the treasury of such township to the extent the same were collected from the territory
established into a new township, shall be apportioned * * to the new township * established."
The other sections referred to are not in pari materia, and the fact that in them provision is made for a division of the levy, or of money in process of collection, is not persuasive that the absence of such provision in section 1377 necessarily indicates a different legislative intent, but only that some one has grown wise. To rule that every amendment must be interpreted to add substance as well as light to a statute would discourage clarification, for then it could be done only at the expense of what originally was intended.
The judgment is affirmed
SHAUCK, C. J., and PRICE and DAVIS, JJ., concur.
house his household goods of the value of $850 and to have the same insured in the sum of $500 while they should be in its possession; that he delivered the goods to the company in pursuance to said contract; that it failed to procure any insurance whatever on them, and that on about January 10, 1903, a fire occurred to said warehouse and the goods were wholly destroyed. The company answered admitting its corporate character; the reception of the goods for storage and their destruction by fire; and denying all the other averments of the petition. On the trial of the issues to a jury the plaintiff introduced evidence tending to show that having ordered that vans of the company be sent for his goods, and the vans not having arrived, he hastened to the warehouse of the company and inquired of a young man on duty in the office and apparently in charge of it where the manager was. He was told that the manager was upstairs and would be sent for. Shortly an employé of the company named H. E. Smith, who was a stranger to Cox appeared in response to the summons and said that he was the manager. Cox then explained his insistence that the vans should be sent promptly for his goods because he had procured tickets for New York and the time for the departure of his train was near at hand, and that before going he desired to see his goods properly in place in the warehouse and to effect their insurance. In response to the latter suggestion Smith said: "Let us take care of that for you.” After some conversation as to the character and rates of the proposed insurance Cox accepted the suggestion thus made to him, and Smith said: “We cannot hand you the policy now but will send it to you.” Smith then made a written memorandum of the amount of the policy desired and of the New York address of Cox and added that as he had a bank account in Cleveland, he could send a check for the premium when he received the policy. A few days later a letter written on the head of the company and bearing its name in the proper place for its signature, attested, "per H. E. S.” was sent to Cox at his New York address stating that insurance for $500 had been effectet but that the policy was not forwardeu because of doubt as to the precise amount of insurance which he desired. The testimony offered by the company was that Smith was not manager for it but in his absence acted in his stead; that it was not engaged in the business of insuring goods left in its care; that it had given Smith no authority to bind it by contracts of this character, and that be did not report to it any insurance which he effected upon goods deposited with it. The value of the goods was proved by Smith as alleged. The jury returned a verdict for the plaintiff and the defendant's motion for a new trial was overruled. On petition in error the circuit court affirmed the judgment of the court of common pleas.
(74 Oh. St. 284) GENERAL CARTAGE & STORAGE CO. V.
COX. (Supreme Court of Ohio. May 22, 1906.) PRINCIPAL AND AGENT—WAREHOUSEMEN-IN
SURANCE OF GOODS STORED_CONTRACT OF AGENT.
A corporation engaged in the business of storing goods for hire is bound by a stipulation to effect insurance on goods stored with it, the stipulation being incident to a contract of bailment executed in its name by an agent who, though without express authority to stipulate to insure, is by it held out to the public as authorized to make contracts for storage in the conduct of its business, the bailor acting in good faith and without notice of any limitation upon the agent's authority.
[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, & 255.] (Syllabus by the Court.) Error to Circuit Court, Cuyaboga County.
Action by one Cox against the General Cartage & Storage Company. Judgment for plaintiff was affirmed in the circuit court, and defendant brings error. Affirmed.
Cox brought suit in the court of common pleas against the Storage Company to recover for a breach of its alleged contract to procure insurance on goods stored by him with it and destroyed by fire while uninsured. He alleged that on October 4, 1902, the parties entered into a contract whereby the company, which as its name indicates was a warehouseman, agreed to store in its ware
White, Johnson, McCaslin & Cannon, for is exercised by bailees of the character of plaintiff in error. E. J. Thobaben, for de plaintiff in error is suggested by the reported fendant in error.
cases. A number of them are cited in the
briefs submitted in the present case and they SHAUCK, C. J. (after stating the facts). are in entire accord with respect to the docIt cannot be claimed upon the evidence that trine stated. It is to the relation into which the Storage Company was accustomed to in the parties were thus brought by the express sure goods left in its care, nor that Smith and confessedly authorized contract of bailhad express authority to make the particularment in connection with the facts found in contract set out in the petition or like con the statement of the case that we are to aptracts for insurance with others who depos- ply. the rules of law respecting the apparent ited their goods with the Storage Company. | authority of an agent. A correct statement Nor can it be said that such authority was of the matured view of that subject will show implied in the sense that the making of the that it does not have exclusive regard to the contract to insure was indispensable to the immunity of the principal without considerexecution of his authority to receive goodsation of the rights of those who accept his for the company on bailment. Nor should invitation to enter into contract relations there be any dissent from the legal proposi- with him. That view is comprehensively and tion which counsel for the company advan accurately stated in Johnston v. Milwaukee ces in support of the criticisms of the rulings and Wyoming Investment Co., 46 Neb. 480, of the trial judge as to the competency of evi 64 N. W. 1100: "Where a principle has, by dence and his instructions to the jury, viz., his voluntary act, placed an agent in such a that the authority of an agent cannot be situation that a person of ordinary prudence, proved by his own declarations. But the ques conversant with business usages, and the tion by which the liability of the storage com nature of the particular business, is justified pany must be determined is, was it within in assuming that such agent is authorized Smith's apparent authority to make the con to perform on behalf of his principle a partract counted upon in the petition? It does ticular act, such particular act having been not seem important that Smith was not in performed the principle is estopped as against fact the company's manager, for he appeared such innocent third person from denying the in that capacity at the time of this trans agent's authority to perform it.” It is an obaction when the manager was absent, and it vious limitation upon the liability of the is clear that in the absence of the manager principal that he who deals with the agent he was authorized to act in his stead in the must act in good faith, respecting every rereception of goods for storage. His author striction upon the agent's authority of which ity would not have been greater if he had he may have notice. The most careful scruregularly occupied the position of manager tiny of the record in the present case disfor the company. Counsel for the company covers no suggestion of the want of usual insist that in determining whether Smith prudence or good faith on the part of the had such apparent authority to make the con bailor. tract for insurance that Cox might rely upon The rulings of the trial judge respecting it, it is the conduct of the company that is the competency of evidence and instructions to be considered. The soundness of this to the jury are consistent with these views, proposition should be conceded for it is sup and the judgment is affirmed. ported by the decided cases and by the rea Affirmed. sons involved. The company fixed the character of its business and employed Smith in PRICE, CREW, SUMMERS, SPEAR, and the capacity in which he was presented to DAVIS, JJ., concur. those who appeared in response to its invitation to the public to store goods with it for
(74 Oh. St. 271) hire. It was not an employment of a transient character or to represent it in the con
GAISER V. HURLEMAN. duct of an isolated transaction, but in the (Supreme Court of Ohio. May 22, 1906.) general conduct of a business of established MALICIOUS PROSECUTION-ACTION-TERMINAand defined character and scope. In the re
TION OF PROSECUTION · BLACKMAIL AS
SAULT. lation into which the parties were brought
G. filed his affidavit against H. and others, by the regular and usual conduct of that before a justice of the peace, charging them with business the bailee, though not authorized a violation of section 6830, Rev. St. 1906 (blackto issue polices of insurance, was authorized
mailing), on the 2d day of January, 1901, in
unlawfully menacing and threatening G. with to secure insurance upon goods stored with it
personal violence with the intent thereby to even without the express assent of the bailor extort money from him. The case was heard and to effect such insurance for the benefit by the justice, and the parties, including H.,
were held to answer said charge before the court of both parties to the contract of bailment.
of common pleas. At the next term of said If insurance is effected by the bailee appar court, G. appeared before the grand jury and ently for his own exclusive benefit he will, gave and furnished evidence to support said nevertheless, by legal construction be held to
charge, upon which the grand jury found and
returned an indictment for the same; and at the be a trustee for the bailor as to the surplus.
same time, on the same evidence, and covering The frequency with which this authority the same alleged criminal transaction of the