there cannot even be the inference of a duty to count undisputed ballots, on the part of the board of deputy state supervisors. Two sessions of the Legislature have been held since the announcement of that decision, and the Legislature has not seen fit to amend Sections 4949 to 1991-1, inclusive, General the statute or make it more definite as a reCode, apply to primary elections, and sec-sult of that pronouncement. We find nothtions 5055 to 51234, inclusive, General ing in the statutes enjoining a duty upon the Code, apply to general elections. The two board of elections to count any ballots othchapters are separate and distinct, and it er than disputed ballots. A careful search was apparently designed by the Legislature of all the laws applying to both primary and that full provision be made in the former general elections discloses that the undisputchapter for the conduct of primary elections ed ballots can only be counted in case of a and full provision made in the latter chapter contested election by the court or body tryfor the conduct of general elections. Al- ing such contest, and then only in open court, though the same ground seems to be covered or in open session of such body, and in the in each, it is provided in section 4967, Gener- presence of the officers having the custody al Code, that county boards of deputy state thereof. Section 5090-1, General Code. supervisors of elections shall have all the powers granted and perform all the duties imposed by the laws governing general elections. By reference to section 5090 it is found that concerning general elections a duty is specifically imposed upon the board of deputy state supervisors to count the uncounted disputed ballots which may be transmitted to said board by the precinct judges and clerks, and this must be held to be one of the duties referable to the primary elections provided by section 4967. The relator in this case apparently places strong reliance upon the inference to be drawn from the fact that 998 more votes were cast for other offices than for that of common pleas judge. If it were made to appear that this is the only county in the state where this occurred. and if it further be made to appear that the year 1924 is thè only year when such a thing occurred, the presumption of a mistake might not be a violent one. A careful study of the returns of both the primary and general elections since 1912 discloses that the average vote cast for judicial offices is approximately two-thirds of the average vote cast for other offices at the same elections. In the case at bar the vote cast for common pleas judge on the Democratic ticket is approximately 80 per cent. of the full Democratic vote polled. The annual reports published by the secretary of state giving all this information are public general information of which this court may take judicial notice. We have so far discussed this case upon principle, but it should be added that this identical statute must have been under con sideration by this court in the decision of the case of State ex rel. Wood v. Russell et al., Deputy State Supervisors, 101 Ohio St. 365, 130 N. E. 19. We quote the following from page 367 of the opinion, of 101 Ohio St. (130 N. E. 20): "No provision of the statute has been called to our attention which confers upon the deputy state supervisors the right to make a recount of the ballots at any election held under their supervision." The demurrer must therefore be sustained, and the writ refused. Writ refused. ROBINSON, JONES, MATTHIAS, DAY, ALLEN, and CONN, JJ., concur. CENTRAL OHIO GAS CO. v. PUBLIC UTIL ITIES COMMISSION. (No. 18323.) (Supreme Court of Ohio. April 22, 1924.) Gas (Syllabus by Editorial Staff.) 9-Order of Public Utilities Commission denying rehearing held erroneous. Where order of Public Utilities Commission was without notice to applicant for rehearing, who raised questions of unlawfulness of order, jurisdiction of Commission, its power to supervise and control discontinuance of service, and applicability of Gen. Code, §§ 504-2, 504-3, rehearing should have been granted. Error to Public Utilities Commission. Proceeding before the Public Utilities ComOrder of Commission denied apmission. plication for rehearing, and the Central Ohio Gas Company brings error. Order reversed.-[By Editorial Staff.] C. H. Henkel, of Mansfield, for plaintiff in error. O. C. Crabbe, Atty. Gen., and John W. Bricker, of Columbus, H. C. Ashcraft, of Newark, and Robert Tou Velle, Francis J. Wright, Baxter Evans, and J. Edgar Butler, all of Columbus, for defendant in error. PER CURIAM. It is ordered and adjudged by the court that the order of said Public Utilities Commission of Ohio, denying a rehearing, be and the same is hereby reversed, for the reason that, the order having been made without notice to the plaintiff in error or an opportunity afforded to the plaintiff in error to be heard, and the plaintiff in error having in its application for a rehearing made the questions of the unreasonableness or unlawfulness of the order, the jurisdiction of the Public Utilities Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) mission to make the order, the power of the William W. Dawson, of Cleveland, for dePublic Utilities Commission to supervise and fendant in error. control the discontinuance of service, the applicability of sections 504-2 and 504-3 of the General Code to the right of the plaintiff in error to discontinue service, and the constitutionality of the order of the Commission, and having been denied the opportunity to introduce evidence, it was entitled to be heard upon such questions and introduce evidence thereon, and the denial of such hearing was unreasonable and unlawful. The order of the Public Utilities Commission of Ohio denying a rehearing is there fore reversed, and the Public Utilities Commission is ordered to grant a rehearing and this cause is remanded to the Public Utilities Commission of Ohio for further proceedings according to law. BOARD OF EDUCATION OF CITY SCHOOL (Supreme Court of Ohio. May 20, 1924.) Error to Court of Appeals, Cuyahoga County. George W. Perry, of Cleveland, Asst. Director of Law, for plaintiff in error. William W. Dawson and Robert A. Graham, both of Cleveland, for defendant in error. PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be and the same hereby is affirmed, for the reason that the election of the defendant in error by the board of education of the city school district of the city of West Park, for the year 1922, as clerk of that board, did not confer upon him any function of sovereignty or constitute him an officer, within the prohibition of section 20, art. 2, of the Constitution of Ohio. The board of education, under the power conferred by section 4781, General Code, having in good faith fixed his compensation at the amounts which are here sought PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be and the same is hereby affirmed, for the reason that the election of the defendant in error by the board of education of the city school district of the city of West Park, on January 5, 1920, as clerk of that board, did not confer upon him any function within the prohibition of section 20, art. 2, of of sovereignty or constitute him an officer, the Constitution of Ohio. The board of education, under the power conferred by section 4781, General Code, having in good faith fixed his compensation at the amounts which are here sought to be recovered, the receipt thereof by the defendant in error was not unlawful. Judgment affirmed. MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, and ALLEN, JJ., WANAMAKER, J., not participating. concur. to be recovered, the receipt thereof by the de- DAGUE v. INDUSTRIAL COMMISSION OF fendant in error was not unlawful. Judgment affirmed. MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, and ALLEN, JJ., concur. WANAMAKER, J., not participating. BOARD OF EDUCATION OF CITY SCHOOL Geo. W. Perry, of Cleveland, Asst. Director of Law, for plaintiff in error. OHIO. (No. 18313.) (Supreme Court of Ohio. April 15, 1924.) In Mandamus. Edward Dague, pro. per. C. C. Crabbe, Atty. Gen., for defendant. PER CURIAM. It is ordered that the writ prayed for be and the same hereby is denied, upon the ground that the petition does not state facts sufficient to constitute a cause of action. Writ denied. MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY and ALLEN, JJ., concur. WANAMAKER, J., not participating. hereby is dismissed, for the reason no appliSTATE ex rel. CRABBE, ATTY. GEN., v. cation for rehearing was filed before the PubPOOR. (No. 18176.) lic Utilities Commission of Ohio. Petition in error dismissed. (Supreme Court of Ohio. April 15, 1924.) In Quo Warranto. C. C. Crabbe, Atty. Gen., H. H. Griswold, of Chardon, and R. R. Zurmehly, of Columbus, for relator. John V. Campbell, of Cincinnati, T. S. Hogan, of Columbus, and Dinsmore, Shohl & Sawyer, of Cincinnati, for defendant. PER CURIAM. This cause coming on for hearing upon petition of plaintiff, the answer of defendant, the demurrer of the plaintiff to the answer of the defendant, and the argument of counsel. On consideration whereof, this court, treating the demurrer as searching the record, do sustain the same to the petition of plaintiff. on the authority and reasoning of United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 29 Sup. Ct. 527, 53 L. Ed. 836, and Opinion of the Justices, 75 N. H. 613. 72 Atl. 754. It is therefore ordered and adjudged that the petition of the plaintiff be dismissed. Petition dismissed. GOBLE v. PUBLIC UTILITIES COMMISSION et al. (three cases). (Nos. 18408, 18409 and 18410.) (Supreme Court of Ohio. June 3, 1924.) Error to Public Utilities Commission. D. M. Barr, of Somerset, and Turner, Calland, Summers & Gearheart, of Columbus, for plaintiff in error. W. N. King, of Columbus, T. M. Potter, of New Lexington, C. C. Crabbe, Atty. Gen., John W. Bricker, of Columbus, W. A. Hite, of Thornville, and Eagleson & Laylin, of Columbus, for defendants in error. PER CURIAM. It is ordered and adjudged by this court that the orders of the said Public Utilities Commission be and the same are hereby affirmed, upon the authority and reasoning of McLain v. Public Utilities Commission, 110 Ohio St. 1, 143 N. E. 381, and Royal Green Coach Co. v. Public Utilities Commission, 110 Ohio St. 41, 143 N. E. 547. Orders affirmed. MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, and ALLEN, JJ., concur. WANAMAKER, J., not participating. C. & P. TRANSIT CO., etc., v. PUBLIC UTIL. Scott & Scott and James Joyce, all of Cambridge, and Randolph W. Walton, of Columbus, for plaintiffs in error. C. C. Crabbe, Atty. Gen., and John W. Bricker, of Columbus, for defendant in error. PER CURIAM. It is ordered and adjudged by this court that the orders of the Public Utilities Commission be and the same are hereby, affirmed, upon the reasoning and authority of McLain v. Public Utilities Commission, 110 Ohio St. 1, 143 N. E. 381, and Royal Green Coach Co. v. Public Utilities Commission, 110 Ohio St. 41, 143 N. E. 547. Orders affirmed. MARSHALL, C. J., and ROBINSON, MATTHIAS, and ALLEN, JJ., concur. WANAMAKER, J., 'not participating. (145 N.E.) HENLEY et al. v. PAXTON, Treasurer of Ashland County. (No. 18352.) (Supreme Court of Ohio. June 3, 1924.) Error to Court of Appeals, Ashland County. F. O. Levering and Robert J. Grossman, both of Mt. Vernon, for plaintiffs in error. 2. Highways 183-Ford touring car with truck body held "nuisance" on highway, when registration not changed. Where owner of Ford touring car for temporary purposes removed body and put truck body on, without changing registration or license plate, vehicle became nuisance on highway, under St. 1909, c. 534, and no recovery could be had for injury to it, or those riding J. F. Henderson, Pros. Atty., and H. E. Cul-in it, in collision. berson, both of Ashland, for defendant in error. PER CURIAM. It is ordered and adjudged by this court that the judgment of the said court of appeals be and the same is hereby affirmed on the authority of Bashore v. Brown, Treas., 108 Ohio St. 18, 140 N. E. 489, and City of Cuyahoga Falls v. Beck, 110 Ohio St. 82, 143 N. E. 661. Judgment affirmed. Exceptions from Superior Court, Hampden County; C. T. Callahan, Judge. Actions of tort by Laura Nichols and by Leon Nichols, respectively, against the Holyoke Street Railway Company and James J. Dowd, respectively, for injuries in automobile collision alleged to have been caused by negligence of defendant automobilist and MARSHALL, C. J., and JONES, DAY, and hole in street dug by street railway. Ver ALLEN, JJ., concur. WANAMAKER, J., not participating. INDUSTRIAL COMMISSION v. SMITH. (No. 18256.) (Supreme Court of Ohio. May 13, 1924.) Error to Court of Appeals, Perry County. Vincent Tague, Pros. Atty., of New Lexington, C. C. Crabbe, Atty. Gen., and R. R. mehly, of Columbus, for plaintiff in error. Tom O. Crossan and Paul Tague, both of New Lexington, for defendant in error. dicts for defendants, and plaintiffs bring exceptions. Exceptions overruled. R. P. & E. J. Stapleton, of Springfield, for plaintiffs. W. H. Brooks, J. P. Kirby, D. H. Keedy, and C. Brooks, all of Springfield, for defendant Holyoke St. Ry. Co. Green & Bennett, of Springfield, for defendant Dowd. WAIT, J. On December 21, 1920, an auZur-tomobile owned and operated by the defendant Dowd struck an automobile owned by PER CURIAM. This cause is reversed, upon the authority of Industrial Commission of Ohio v. Vail, 110 Ohio St., 143 N. E. 716. The record of the proceedings of the Industrial Commission disclosing that subsequent to March 11, 1921, the date when it determined that the injury resulting in the death of the husband of the defendant in error was not sus tained in the course of and arising out of his employment, the commission entered upon and held a rehearing, the commission will not be heard to say that a rehearing was not granted. Judgment reversed. the plaintiff Laura and operated by the plain tiff Leon, driving it into an excavation which the defendant Holyoke Street Railway Company had made in Dwight street, Holyoke. The several plaintiffs brought separate actions for damages against the defendants. The four cases were tried together in the superior court. At the conclusion of the evidence the judge directed verdicts for the defendants, and the cases are before us upon the plaintiffs' exceptions to the correctness of these orders. There was no evidence of willful or wanton recklessness on the part of either defendant. The defendants contended that the MARSHALL, C. J., and ROBINSON, JONES, plaintiffs were trespassers without right up MATTHIAS, DAY, and ALLEN, JJ., concur. NICHOLS v. HOLYOKE ST. RY. CO. (two cases). SAME v. DOWD (two cases). (Supreme Judicial Court of Massachusetts. Hampden. Oct. 20, 1924.) 1. Highways 183-Unregistered motor vehicle is "nuisance." Unregistered motor vehicle is "nuisance" on highways, under St. 1909, c. 534, § 9. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Nuisance.] on the highway at the time of the accident used for pleasure driving until a day or two For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-3 however, wished not to scratch the touring car body of the Ford machine. So she purchased a secondhand "delivery body" from dealers in secondhand bodies and parts, and on December 19 or 20 removed the touring car body from the Ford chassis, taking off everything back of the hood, and put in its place the delivery body. This called merely for loosening six bolts, exchanging the "delivery" for the touring car body upon the chassis, and tightening up the bolts. The delivery body consisted of a windshield, seat and a boxlike body having six posts to keep a load from falling off, and a back board which let down at the rear. No other change was made; engine, chassis, wheels, remained as before; but what had been a touring car now bore the characteristic ap pearance of a Ford truck, though, in fact, the chassis was lighter than that of a regular Ford truck. The registry plates for the touring car were continued in use on the machine in its changed form. No new registration was taken out. The car which was struck by Dowd's automobile and driven into the excavation made by the street railway appeared to be, and indeed was, referred to by several witnesses as a "Ford truck." The judge in directing the jury to return verdicts for the defendants went upon the ground that the vehicle in which the plaintiffs were riding as owner and operator was not then registered in accordance with law. [1, 2] The law is well settled that an unregistered motor vehicle is a nuisance upon the highways. McDonald v. Dundon, 242 Mass. 229, 136 N. E. 264, 26 A. L. R. 1243, and cases cited. The statute in force when this accident took place (St. 1909, c. 534, 9) provided: "No motor vehicle shall be operated unless registered in accordance with the provisions of this act. Furthermore, in section 2, it based the registration fee for trucks, commercial trailers and commercial motor vehicles used solely as such, on carrying capacity, and not on horse power as in the case of other motor vehicles. The description "Ford touring" does not describe the machine which was injured. That machine was described by the witnesses as a "Ford truck." No one who saw it at the moment when the rights of the parties to these actions must be determined would have described the one-seated, box-bodied, stake-bounded car in Dwight street as a touring car. And this is not unimportant. One main purpose of the registration as this court frequently has declared is to secure identification in the event of accident or wrongdoing. Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561; Fairbanks v. Kemp, 226 Mass. 75, 115 N. E. 240; Rolli v. Converse, 227 Mass. 162, 116 N. E. 507; Koonovsky v. Quellitti, 226 Mass. 474, 116 N. E. 243, Ann. Cas. 1918B, 1146; Shufelt v. McCartin, 235 Mass. 122, 126 N. E. 362. If any one had been injured by this car and had sought to identify it, he probably would have been misled. Although he had noted the registry number it bore, and thereafter had found that Laura Nichols held such a number, he would conclude that he had mistaken the number, since the registration applied to a touring car, while the car in fault had been a Ford delivery wagon or truck. The very thing he was certain about, the kind of car in fault, would cast the gravest doubt on the ownership evidenced by the registration. The law should not permit such mystification. Again, the law as it was when the accident happened, as well as when Mrs. Nichols took out registration, makes a distinc tion in the fees for registration between touring cars assessed on a basis of horse power, and trucks assessed on a basis of car St. 1919, c. 294, amending St. 1909, C. 534, required for registration, in the appli-rying capacity. It should not permit a motor cation: "A brief description of the motor vehicle or trailer, including the name of the maker, the number, if any, affixed by the maker, the character of the motor power, the amount of the motor power stated in figures of horse power, and, in respect to motor trucks and trailers, the carrying capacity. vehicle assessed on one basis to be transformed into a motor vehicle properly to be assessed upon another basis. The verdicts were properly directed. Inasmuch as this decision disposes entirely of all the cases, it is not necessary to consider the other points discussed by counsel. Exceptions overruled. |