(147 N.E.) RICHARDS v. STRATTON. (No. 18766.) (Supreme Court of Ohio. April 28, 1925.) (Syllabus by the Court.) 1. Principal and agent 159(2)—One undertaking particular work as agent of another must exercise ordinary care in its execution and is liable if he negligently injures another. One who, though an agent of another, undertakes and enters upon a particular work, is required to exercise ordinary care in the manner of executing it, and if he negligently injures another is liable for the damage sustained. 2. Municipal corporations 807(1)—Pedestrian without knowledge of condition of alley not negligent in going through it. A pedestrian cannot be charged with contributory negligence in going through a public alley of a municipality which is in an unsafe condition, instead of taking a longer but safer course over the sidewalk to reach his destination, if he has no knowledge of the conditions which render such alley unsafe for travel. 3. Municipal corporations 122(1)—Ordinance relied on must be pleaded and proved. In an action for damages predicated upon the claimed violation of a municipal ordinance, such ordinance must be pleaded and upon trial its existence at the time of the injury must be proved. Case Certified from Court of Appeals, Highland County. G. Action by Charles Stratton against W. Richards. Judgment for plaintiff was affirmed by the Court of Appeals, and on motion case was certified to Supreme Court. Reversed. [By Editorial Staff.] This suit originated in the court of common pleas of Highland county. The parties will be referred to as plaintiff and defendant as they appeared in that court. Plaintiff, Charles Stratton, in his amended petition, charged that at some time prior to October 22, 1921, the defendant, W. G. Richards, caused a trench to be dug in and across a certain alley in the village of Hillsboro for the purpose of endeavoring to locate and remove an obstruction in the drain from the rear of the building occupied by the partnership known as J. H. Richards and Brother, of which defendant was a member; that such trench was dug without authority of the village, and contrary to and in violation of the provisions of certain designated ordinances of the village, which forbade and provided a penalty for digging such a trench without authority of council, and which required that when such a trench was dug the excavation must be supplied each night with lighted lamp or lantern to serve as a danger signal during the hours of darkness. It is then averred that about 10 o'clock on the night of October 22, 1921, the plaintiff had occasion to traverse said alley on a lawful mission, and that this excavation was then unlighted and unguarded, and with no protection, warning, or signal to apprise the plaintiff or others of the existence of such open trench, by reason of which alleged failure and default of defendant, the plaintiff, not knowing or being apprised of the condition above described, fell into the trench and was injured. The nature and extent of such injuries are then set forth. Defendant in his amended answer, after a general denial, set up in a second defense a charge of contributory negligence, as follows: "For a second defense to said petition, defendant says: That if said plaintiff fell and sustained any injuries in the manner and of the character described by him, the said plaintiff was himself guilty of negligence which contributed thereto in this, to wit: Defendant says that the alley running east and west along said Ford garage to said East street, and being the alley in which plaintiff claims to have been walking when he received the injury complained of, crosses at right angles an alley running south from Main street at a point west of where the plaintiff claims to have received the injury complained of. And on said night that plaintiff claims to have been walking in said alley running east and at the place where said alleys cross and along the east side of said alley running south as aforesaid there was placed across said alley running east, a railing or pole blocking said alley wherein plaintiff claims to have received his injury to travel east from the point where said alleys cross as aforesaid. And on a large box set near said railing or pole and on the west side thereof and about the center of said alley running east to East street a lighted lamp was placed on said night of October 21, 1921, and for several nights both before and after said date, by means of said railing and lamp so placed as aforesaid the attention of the plaintiff was called or by the exercise of ordinary care on his part, would have been called, to the fact that said part of said alley where plaintiff claims to have been injured was closed to the use of the public on account of obstructions therein and fully warning said plaintiff of the danger assumed by him in attempting to pass through said part of said alley in the night season. "And defendant says that said plaintiff is further guilty of negligence which contributed to his injury. if any he received, in this, to wit: On said 22d day of October, 1921, and for a long time prior to said date, there had been constructed and was on said 22d day of October, 1921, open to the use of the public, a safe, convenient cement sidewalk in good condition and well lighted at night from said Ford garage to said East street where said alley in which plaintiff claims to have been walking at the time when he says he received his injury comes into said East street, and that plaintiff did not use said sidewalk, but instead, and without necessity therefor, he resorted to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the alley to reach the point where he states | of that interest evidently that he assumed said automobile was stopped." full control and supervision thereof. We feel impelled, however, to state that The last paragraph of the answer just quot- we cannot concur in the theory of counsel for ed was stricken out upon motion of the plain- the defendant that the alleged negligence of tiff. The trial of the case resulted in a ver- the defendant was a mere nonfeasance, for dict for the plaintiff, upon which judgment which he would not be responsible to a third was rendered, and that judgment was af- party. The principle applicable is well statfirmed by the Court of Appeals. Upon mo-ed by Chief Justice Gray in the opinion in tion the case was ordered certified to this court. Newby & Smith, of Hillsboro, for plaintiff in error. Robert B. McMullen and Burch D. Huggins, both of Hillsboro, for defendant in error. MATTHIAS, J. Considering the questions presented by counsel for defendant in their logical order, we shall first observe the contention that the defendant was not liable in this action because the employment and direction by him of the workmen to open the drain in question were upon the request of the owner of the building, and, further, because of the fact that the defendant had no interest therein except the enjoyment of the use of the property atrected by the drain. This question was presented to the court by a request for an instruction, which would have been virtually a directed verdict for the defendant, and it was refused by the court. Osborne v. Morgan, 130 Mass. 102, 39 Am. "It is often said in the books that an agent is responsible to third persons for misfeasance only and not for nonfeasance. And it is doubtless true that if an agent never does anything towards carrying out his contract with his principal but wholly omits and neglects to do so, the principal is the only person who can maintain any action against him for the nonfeasance. But if the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway and leaving things in a dangerous condition, who suffers injury by reason of his having so exempt himself from liability to any person left them without proper safeguards. This is not nonfeasance, or doing nothing, but it is misfeasance, doing improperly." The one asserted con [2] The action of the trial court in strik[1] The record discloses that the defend- ing out a portion of the second defense, quotant, who was a partner in business with his ed in the foregoing statement, and in resister-in-law, which business was located in fusing to give to the jury the requested inthe storeroom owned by her, entered upon struction No. 6 of the defendant, present and assumed full, complete, and exclusive the same question. charge and control of the undertaking of tributory negligence upon the part of the opening the drain which served the base- plaintiff in traveling through the alley to ment of the storeroom, and of making such reach his destination, instead of taking the drain usable for the purpose for which it longer but safer route by way of the street had originally been constructed, and that the around three sides of the half-square; the owner had nothing whatever to do with it other was based upon the theory that the except to pay the actual expense thereof plaintiff had knowingly selected an unsafe later by permitting a deduction of the course when a known safe route was open amount from the rental of the building. The to him. We deem it unnecessary, upon this facts disclosed by the record in this partic- claim of error, to say more than that the ular are not such as would exempt the de- provisions of section 3714, General Code, fendant from the duty and obligation of make the same requirement with reference avoiding the doing of physical injury to oth-to alleys as to streets-that they be kept ers. An agent is bound in the performance open, in repair, and free from nuisanceof his duty to recognize and respect the rights and privileges of others, and failing to do so, either negligently or intentionally, thereby causing an injury to another, is liable to him for the damages sustained, and the fact that the injury occurred while in the performance of his agency would constitute no defense, although in some cases it may appear that the principal is liable also. Mechem on Agency (2d Ed.) § 1647. A discussion of cases in which such a situation might arise would serve no purpose here. It is further to be observed that the defend-chargeable with negligence, and hence would ant was not a mere agent or employé of the owner of the premises, but was himself interested in the project, and it was because and further that the record did not furnish a basis for the requested charge, for it was not disclosed that the plaintiff had any notice or knowledge whatever of the unsafe condition of the alley, but, upon the contrary, it appears that he knew nothing whatever of its unsafe condition. Counsel for defendant contend that the full measure of the defendant's duty was stated in his requested instruction No. 5, which the court refused to give. Under this instruction the defendant would not be not be liable in this action, if on the night in question he placed or caused to be placed a lighted lantern, properly equipped and (147 N.E.) nance was in existence at the time of the happening of the injury complained of, more than two years prior to that date. There is a presumption that a situation established continues until the contrary is shown, but the converse is not true, and it cannot be claimed that the burden is cast upon the person charged with the violation of the ordinance to show that it did not exist at the time of the claimed violation by proof of its existence at the time of trial two years subsequent thereto. supplied with oil, in such location that it not be inferred therefrom that such ordiwould serve reasonably to warn persons of the danger, though such lantern was later removed or extinguished by causes which by ordinary care and prudence could not have been foreseen or anticipated. There is some evidence in the record upon which such instruction could be based. Hence the question is presented whether it is a correct statement of the rule of law applicable in this case. The requested instruction seems equivalent to a statement to the jury that if it found from the evidence that the defendant had exercised ordinary care and prudence in the placing and maintaining of such a signal as would warn persons attempting to go through the alley of the danger therein, he had discharged the duty incumbent upon him. All that could be required, of course, was the exercise of ordinary care, and, in the absence of provisions of law or of an ordinance prescribing more specifically the duty of the defendant under such circumstances, it is our opinion the rule embodied in the requested instruction would have been correct. [3] This brings us to a consideration of section 226 of the ordinances of the village. It was pleaded in the petition as a basis for the claim of negligence relied upon by the plaintiff. Its requirements are clearly stated and quite exacting. A penalty is prescribed In view of the holding that the violation of an ordinance of a municipality is negligence per se, the rule as to proof should not be relaxed, nor should the failure to prove the existence of such ordinance at the time of the claimed violation be regarded as a mere technical error; it affects a substantial right, and an objection to its introduction and to instructions based thereon should have been sustained. Judgment reversed. MARSHALL, C. J., and JONES, DAY, ALLEN, and ROBINSON, JJ., concur. KINKADE, J., not participating. v. HUTSINPILLER. (Supreme Court of Ohio. April 28, 1925.) (Syllabus by the Court.) Courts 42 (5)—Municipality held without power to create courts and appoint judges thereof. for its violation. It was evidently enacted STATE ex rel. CHERRINGTON, Pros. Atty., in the interest of public safety, and under the decision in Schell v. DuBois, Adm'r, 94 Ohio St. 93, 113 N. E. 664, L. R. A. 1917A, 710, a violation thereof is negligence per se. The making of such an excavation, unless during the hours of darkness each night it is supplied with a lighted lamp, or lantern, so placed at or about such excavation or obstruction as to serve as a danger signal, is penalized as therein provided. The mere placing of the light would not comply with the requirement that it be there during the hours of darkness each night, and such failure would constitute a violation of the provisions of this ordinance. But it is well settled that an ordinance, upon the violation of which a claim for damages is predicated, must be pleaded and proven. Counsel for plaintiff offered in evidence a copy of the ordinance, certified by the clerk of the village, which certificate is as follows: "Hillsboro, Ohio, November 20, 1923. I hereby certify that the above is a true copy of section 226 of the ordinances of the village of Hillsboro, Ohio, now in force and unrepealed." The municipalities of this state have no power, by charter or otherwise, to create courts and appoint judges thereof, such exercise of power being in violation of sections 1 and 10, article IV, of the Constitution of Ohio. Original quo warranto action, by the State on the relation of R. E. Cherrington, as Prosecuting Attorney of Gallia County, against John C. Hutsinpiller. Judgment of ouster.-[By Editorial Staff.] The facts are stated in the opinion. F. E. Cherrington, Pros. Atty., and Henry W. Cherrington, both of Gallipolis, for relator. R. M. Switzer and Hollis C. Johnston, both of Gallipolis, for defendant. Assuming this to be a sufficient compliance DAY, J. This is an original action in quo with the provisions of section 4235, General warranto filed in this court by F. E. CherCode, as to the manner of proof of an or-rington, as prosecuting attorney of Gallia dinance of a municipality, it is thereby es- county, Ohio, seeking to test the legality of tablished only that there was such an or- the existence of the municipal court of the dinance on November 20, 1923, and it can- city of Gallipolis, and the right of the de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fendant, John C. Hutsinpiller, to exercise the state or by ordinance of the city commisjudicial authority as judge of such municipal sion. court. "That said original sections 20 and 21 of the The petition filed herein recites, in sub-charter of the city of Gallipolis, Ohio, be and stance, that the city of Gallipolis is a munici- they are hereby repealed by the adoption of the pal corporation organized and existing under aforesaid amendments by the electors of the city of Gallipolis, Ohio." To recapitulate, it will be noted that originally the charter created the office of municipal judge with such jurisdiction as police judges usually have, and that the city solic itor was an elective officer and ex officio judge of the municipal court. The amendment separated the offices of city solicitor and municipal judge, making them both appointive. It is admitted that defendant, John C. the laws and Constitution of Ohio, and is known as a home rule or charter city, having adopted a charter in the year 1917 by a vote of its electors; that the charter so adopted originally created the office of city solicitor and municipal judge; that the charter called for the election of three commissioners, who are the legislative body of the city; that by the provisions of the original charter the city solicitor was an elective officer and was ex officio judge of the municipal court; and that in the year 1920 the charter was amended, and separated the offices of city solicitor and municipal judge, making both of these offices appointive, to be filled by the city commission. The petition further shows that in January, 1922, the defendant, the present in cumbent of the municipal court, was duly appointed by the city commission; that he A court is an instrumentality and an incigave bond, took the oath of office, entered dent to sovereignty and is the repository of upon the discharge of his duties as such its judicial power. It is the agency of the municipal judge, and has been continuously state by means of which justice is adminacting as such up to the present time. The istered, and is that entity in the government petition further states that the municipal to which the public administration of justice judge is holding his office unlawfully, for is delegated and committed. the reason that the city commission was not empowered to appoint a judge, and that the office should be filled by election, and asks that the present incumbent be ousted. To this petition the defendant filed a demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action. Among the sections of the city charter, No. 20 provided for the election of a city solicitor, and No. 21 provided that the city solicitor should be the judge of the municipal court in said city of Gallipolis, and that he should have all judicial powers now granted mayors of cities under the general laws and the Constitution of the state of Ohio, and all that should thereafter be granted, either by statute, or ordinance of the city commission. Thereafter, to wit, May 8, 1920, sections 20 and 21, were amended and supplemented by an ordinance duly passed by the city commission, and these amendments were ratified by the people at a special election held Tuesday, August 10, 1920. At the same time section 21a was also passed and adopted as an amendment to said charter. Section 21a of the charter provides: "The city commission shall have power to select some suitable elector and a resident of said city to be judge of the municipal court in and for said city of Gallipolis, Ohio, and said judge shall have all judicial powers now granted mayors of cities under the general laws and Constitution of the state of Ohio, and all powers that may hereafter be granted by statute of Hutsinpiller, was duly appointed by the city commission as municipal judge of the city of Gallipolis. This brings us then to the basic question in this case: Has the municipal court of Gallipolis a legal existence, and, if it has, can the charter of the city provide for the appointment of a judge rather than his election by the people? To determine whether the municipal court of the city of Gallipolis is thus authorized by the sovereign power of the state we turn to the Constitution itself. Section 1, article IV thereof, provides: "The judicial power of the state is vested in a Supreme Court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law." And section 10, article IV, provides: "All judges, other than those provided for in this Constitution, shall be elected by the electors of the judicial district for which they may be created, but not for a longer term of office than five years." In considering and construing this exercise of power in the creation of a court and the selection of a judge to preside thereover reference must be made to section 3, article XVIII, which provides: "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." It is urged on behalf of the defendant that this authority of municipalities to exercise "all powers of local self-government” carries with it a sovereign power in itself, and that the creation of a court is one of the incidents thereto, especially if construed with refer (147 N.E.) ence to matters pertaining to purely local tute a co-ordinate and independent department affairs. of the government." 15 Corpus Juris, p. 854. The sovereign power in this state abides with the people of the state, and not with the subdivisions thereof, and the highest expression of this power is found in the Constitution itself, being that body of rules, regulations, and political canons in accord-ity to the manner indicated by the rules laid ance with which the powers of sovereignty are to be habitually exercised. The judicial power of the state is distinct from the executive and the legislative, and as one of the highest elements of sovereign power can only be created in strict conformdown in the expression given to sovereignty by the people themselves, to wit, the Constitution. This judicial power has been cared The right to exercise judicial authority as an incident to its sovereignty the state has, for by the organic law, and is beyond the by section 1, article IV, vested in the courts control of municipalities, which, after all, therein named, and "such other courts in- are only agents of the state for local governmental purposes. Section 1, art. IV, is a ferior to the courts of appeals as may from time to time be established by law." Prior special provision of the Constitution that has to the adoption of the amendments to the to do with the creation of courts, and as Constitution of 1912, to wit, in the Consti- such supersedes the general power of local tution of 1851, this section of the Constitu- self-government, as granted in section 3, tion read, "such other courts * * * as the General Assembly may, from time to time, establish," and such was likewise the substance of the language of the Constitution of 1802. It is argued that the amendments to the Constitution in 1912 thus took from the General Assembly the exclusive power to establish courts inferior to courts of appeals, and by implication granted to municipalities power to establish courts inferior to the courts of appeals, as they saw fit, as an incident to the power of local self-government granted to municipalities under section 3, art. XVIII. This is a construction with which we cannot agree, for it allows, by implication only, the municipalities of the state the freedom to exercise this incident of sovereignty, to wit, creation of courts. A power so extraordinary and vital should not rest upon any less foundation than express grant or clear and necessary implication, and we find neither in the Constitution. The change in the phraseology from "as the General Assembly may, from time to time, establish," as provided in the Constitution of 1851, to the expression "be established by law," as appears in the amendments of the Constitution, of 1912, is to be construed as conveying no change of meaning, to wit, that courts shall be created by the exercise of the sovereign power by the lawmaking body, to wit, the General Assembly of the state. art. XVIII. After all, no power of local self-government in the municipality is interfered with by this denial of the power to create courts. All the executive, legislative, proprietary, and general governmental powers incident to municipal government may still be exercised, and legal rights, arising under state law and municipal ordinance, be measured by local judges sitting in courts created under constitutional sanction, applicable alike to all municipalities of the state. The power of local self-government under such a court can be as well exercised as under a court created by local charter. It is the law that is to be construed and interpreted, and it is the same in any court, but the court itself can only be created by the power authorized by the Constitution. Local selfgovernment does not extend so far as to override plain constitutional limitations. Even the Legislature cannot create a court by mere majority, but by section 15, art. IV, a two-thirds vote is required, thus indicating the care to be exercised in creating a court. We are, therefore, of opinion that no power exists in the municipalities of this state by their own fiat, by charter or otherwise, to create a court or courts, and thus seek to exercise the judicial power in contravention of section 1, art. IV, of the Constitution. This conclusion requires us to overrule the demurrer to the petition, but in view of the fact that counsel have argued and briefed at length the question of the right to ap"The duty of providing courts of justice is a governmental function of the state, and the au- point a judge, instead of electing one, we thority to establish a court must emanate from have reached the conclusion that under secthe supreme power of the state, otherwise the tion 10, art. IV, all judges of courts in this court itself is an absolute nullity, and all its state "shall be elected by the electors of the proceedings are utterly void. No person can, judicial district for which they may be in the absence of authority at law, create a created." Except, therefore, for the purpose court and preside over the same as judge; of filling vacancies, as provided by law, there nor can any judge hold a court which is unconstitutional in its organization. is no legal or constitutional power by which In the United States the state Constitutions usually a judge may be appointed in this state. See create certain courts and confer them Hilton v. State ex rel., 108 Ohio St. 233 on designated powers, and such courts proceed 238, 140 N. E. 681. directly from the sovereign will and consti- In view of the conclusion reached, it fol |