Sidebilder
PDF
ePub

there cannot even be the inference of a duty Two sessions of the Legislature have been to count undisputed ballots, on the part of held since the announcement of that decision, the board of deputy state supervisors.

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 5035 to 5123—4, 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 try. for the conduct of general elections. Aling 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 The demurrer must therefore be sustained, powers granted and perform all the duties and the writ refused. imposed by the laws governing general elec Writ refused. tions. By reference to section 5090 it is found that concerning general elections a du ROBINSON, JONES, MATTHIAS, DAY, ty is specifically imposed upon the board of | ALLEN, and CONN, JJ., concur. 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 CENTRAL OHIO GAS CO. V. PUBLIC UTIL.

ITIES COMMISSION. (No. 18323.) the duties referable to the primary elections provided by section 4967.

(Supreme Court of Ohio. April 22, 1924.) The relator in this case apparently places

(Syllabus by Editorial Staff.) strong reliance upon the inference to be drawn from the fact that 998 more votes Gas Colm Order of Public Utilities Commis

sion denying rehearing held erroneous. were cast for other offices than for that of

Where order of Public Utilities Commission common pleas judge. If it were made to was without notice to applicant for rehearing, appear that this is the only county in the who raised questions of unlawfulness of order, state where this occurred, and if it further jurisdiction of Commission, its power to superbe made to appear that the year 1924 is the vise and control discontinuance of service, and only year when such a thing occurred, the applicability of Gen. Code, 88 504—2, 5043, presumption of a mistake might not be a rehearing should have been granted. violent one. A careful study of the returns of

Error to Public Utilities Commission. both the primary and general elections since 1912 discloses that the average vote cast for Proceeding before the Public Utilities Comjudicial offices is approximately two-thirds of mission. Order of Commission denied ap the average vote cast for other offices at the plication for rehearing, and the Central same elections. In the case at bar the vote Ohio Gas Company brings error.

Order re cast for common pleas judge on the Demo- versed.—[By Editorial Staff.] cratic ticket is approximately 80 per cent. of

C. H. Henkel, of Mansfield, for plaintiff in the full Democratic vote polled. The annual reports published by the secretary of state

O. C. Crabbe, Atty. Gen., and John W. giving all this information are public general Bricker, of Columbus, H. C. Ashcraft, of information of which this court may take ju- Newark, and Robert Tou Velle, Francis J. dicial notice.

Wright, Baxter Evans, and J. Edgar Butler, We have so far discussed this case upon all of Columbus, for defendant in error. principle, but it should be added that this identical statute must have been under con

PER CURIAM. It is ordered and ad. sideration by this court in the decision of judged by the court that the order of said the case of State ex rel. Wood v. Russell et Public Utilities Commission of Ohio, deny. al., Deputy State Supervisors, 101 Ohio St. ing a rehearing, be and the same is hereby 365, 130 N. E. 19. We quote the following reversed, for the reason that, the order havfrom page 367 of the opinion, of 101 Ohio St. ing been made without notice to the plain(130 N. E. 20):

tiff in error or an opportunity afforded to “No provision of the statute has been called the plaintiff in error to be heard, and the to our attention which confers upon the deputy plaintiff in error having in its application for state supervisors the right to make a recount a rehearing made the questions of the unof the ballots at any election held under their reasonableness or unlawfulness of the order, supervision."

the jurisdiction of the Public Utilities ComFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

error.

(146 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 ap

PER CURIAM. It is ordered and adjudged plicability of sections 504–2 and 504—3.of by this court that the judgment of the said the General Code to the right of the plain. Court of Appeals be and the same is hereby tiff in error to discontinue service, and the affirmed, for the reason that the election of the constitutionality of the order of the Com- defendant in error by the board of education of mission, and having been denied the oppor- the city school district of the city of West tunity to introduce evidence, it was entitled Park, on January 5, 1920, as clerk of that to be heard upon such questions and intro- board, did not confer upon him any function duce evidence thereon, and the denial of of sovereignty or constitute him an officer, such hearing was unreasonable and unlawful. the Constitution of Ohio. The board of edu

within the prohibition of section 20, art. 2, of The order of the Public Utilities Commis cation, under the power conferred by section sion of Ohio denying a rehearing is there 4781, General Code, having in good faith fixed fore reversed, and the Public Utilities Com- his compensation at the amounts which are mission is ordered to grant a rehearing and here sought to be recovered, the receipt therethis cause is remanded to the Public Utili- of by the defendant in error was not unlawful. ties Commission of Ohio for further proceed

Judgment affirmed. ings according to law, Order reversed.

MARSHALL, C. J., and ROBINSON,

JONES, MATTHIAS, DAY, and ALLEN, JJ., MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, and DAY, JJ., concur.

WANAMAKER, J., not participating. WANAMAKER and ALLEN, JJ., not participating.

concur.

error.

FLATAU v. CITY OF TOLEDO. (No. 18103.) BOARD OF EDUCATION OF CITY SCHOOL DIST. OF CITY OF CLEVELAND V. (Supreme Court of Ohio. April 29, 1924.) JUERGENS, (No. 18254.)

Error to Court of Appeals, Lucas County. (Supreme Court of Ohio. May 20, 1924.)

James Harrington Boyd, of Toledo, for plainError to Court of Appeals, Cuyaboga County.tiff in error.

F. M. Dotson, Director of Law, and Charles George W. Perry, of Cleveland, Asst. Direc- T. Lawton, both of Toledo, for defendant in tor 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

that the petition in error as of right filed herePER CURIAM. It is ordered and adjudged in be dismissed, for the reason that the case by this court that the judgment of the said does not involve a question arising under the Court of Appeals be and the same hereby is Constitution of the United States or under the affirmed, for the reason that the election of the Constitution of the state of Ohio. defendant in error by the board of education

Petition in error dismissed. 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 sover: JONES, MATTHIAS, DAY and ALLEN, JJ.,

MARSHALL, C. J., and ROBINSON, eignty or constitute him an officer, within the prohibition of section 20, art. 2, of the Constitution of Ohio. The board of education, un

WANAMAKER, J., not participating. der the power conferred by section 4781, Genera) Code, having in good faith fixed his compensation at the amounts which are here sought to be recovered, the receipt thereof by the de- DAGUE V. INDUSTRIAL COMMISSION OF fendant in error was not unlawful.

OHIO. (No. 18313.) Judgment affirmed.

(Supreme Court of Ohio. April 15, 1924.) MARSHALL, C. J., and ROBINSON, JONES,

In Mandamus.
MATTHIAS, DAY, and ALLEN, JJ., concur.
WANAMAKER, J., not participating.

Edward Dague, pro. per.
C. C. Crabbe, Atty. Gen., for defendant.

concur.

PER CURIAM. It is ordered that the writ BOARD OF EDUCATION OF CITY SCHOOL prayed for be and the same hereby is denied, DIST. OF CITY OF CLEVELAND V. upon the ground that the petition does not state FEATHERSTONE. (No. 18260.) facts sufficient to constitute a cause of action.

Writ denied. (Supreme Court of Ohio. May 20, 1924.) Error to Court of Appeals, Cuyahoga County.

MARSHALL, C.

and ROBINSON,

JONES, MATTHIAS, DAY and ALLEN, JJ., Geo. W. Perry, of Cleveland, Asst. Direc- concur. tor of Law, for plaintiff in error.

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.

MARSHALL, C. J., and ROBINSON,

JONES,
C. C. Crabbe, Atty. Gen., H. H. Griswold, of JJ., concur.

MATTHIAS, DAY, and ALLEN, Chardon, and R. R. Zurmehly, of Columbus, for

WANAMAKER, J., not participating. relator.

John V. Campbell, of Cincinnati, T. S. Hogan, of Columbus, and Dinsmore, Shobl & Sawyer, of Cincinnati, for defendant,

PER CURIAM. This cause coming on for GOBLE V. PUBLIC UTILITIES COMMIS. hearing upon petition of plaintiff, the answer

SION et al. (three cases). of defendant, the demurrer of the plaintiff to

(Nos. 18408, 18409 and 18410.) the answer of the defendant, and the argument of counsel. On consideration whereof, this

(Supreme Court of Ohio June 3, 1924.) court, treating the demurrer as searching the

Error to Public Utilities Commission. record, do sustain the same to the petition of plaintiff, on the authority and reasoning of

D. M. Barr, of Somerset, and Turner, Cal. United States ex rel. Attorney General v. Dela- land, Summers & Gearheart, of Columbus, for ware & Hudson Co., 213 U. S. 366, 29 Sup. Ct. plaintiff in error. 527, 53 L. Ed. 836, and Opinion of the Jus

W. N. King, of Columbus, T. M. Potter, of tices, 75 N. H. 613. 72 Atl. 754.

New Lexington, C. C. Crabbe, Atty. Gen., John It is therefore ordered and adjudged that the W. Bricker, of Columbus, W. A. Hite, of Thornpetition of the plaintiff be dismissed.

ville, and Eagleson & Laylin, of Columbus, for Petition dismissed.

defendants in error.

PER CURIAM. It is ordered and adjudged MARSHALL,

and ROBINSON,

by this court that the orders of the said PubJONES, MATTHIAS, DAY and ALLEN, JJ., lic Utilities Commission be and the same are concur.

hereby affirmed, upon the authority and reasonWANAMAKER, J., not participating.

ing 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.
LONG v. GRASHAM. (No. 18380.)

Orders affirmed. (Supreme Court of Ohio. April 8, 1924.) MARSHALL, C. J., and ROBINSON, JONES,

MATTHIAS, DAY, and ALLEN, JJ., concur. Error to Court of Appeals, Allen County. WANAMAKER, J., not participating. J. K. Rockey, of Lima, for plaintiff in error.

T. R. Hamilton, of Lima, for defendant in error.

C.

J.,

J.,

concur.

PER CURIAM. It is ordered and adjudged c. & P. TRANSIT CO., etc., v. PUBLIC UTIL. that the petition in error be and the same here

ITIES COMMISSION. Paul SCHELLING V, by is dismissed, for the reason no debatable

SAME. Frank KENNEDY et al. v. SAME. constitutional question is involved in said cause.

CAMBRIDGE & CALDWELL RED STAR Petition in error dismissed.

LINE V. SAME. (Nos. 18462 to 18465.) MARSHALL, C.

and ROBINSON,

(Supreme Court of Ohio. May 13, 1924.) JONES, MATTHIAS, DAY and ALLEN, JJ.,

Error to Public Utilities Commission. WANAMAKER, J., not participating.

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. Brick

er, of Columbus, for defendant in error. CITY OF TIFFIN V. PUBLIC UTILITIES COMMISSION. (No. 18279.)

PER CURIAM. It is ordered and adjudged

by this court that the orders of the Public Util(Supreme Court of Ohio. April 1, 1924.) ities Commission be and the same are hereby,

affirmed, upon the reasoning and authority of Error to Public Utilities Commission.

McLain v. Public Utilities Commission, 110 Ohio F. A. Hinchey, City Sol., Mark L. Leister, St. 1, 143 N. E. 381, and Royal Green Coach and J. C. Royer, all of Tiffin, for plaintiff in Co. v. Public Utilities Commission, 110 Ohio

St. 41, 143 N. E. 547. C. C. Crabbe, Atty. Gen., and John W. Brick Orders affirmed. er, of Columbus, for defendant in error.

MARSHALL, C. J., and ROBINSON, MATPER CURIAM. It is ordered and adjudged THIAS, and ALLEN, JJ., that said petition in error be and the same WANAMAKER, J., not participating.

error.

concur.

(146 N.E.)

2. Highways 183 - Ford touring car with HENLEY et al. v. PAXTON, Treasures of Ash truck body held "nuisance" on highway, when land County. (No. 18352.)

registration not changed.

Where owner of Ford touring car for tem(Supreme Court of Ohio. June 3, 1924.)

porary purposes removed body and put truck Error to Court of Appeals, Ashland County. body on, without changing registration or li

cense plate, vehicle became nuisance on highF. 0. Levering and Robert J. Grossman, both way, der St. 1909, c. 534, and no recovery of Mt. Vernon, for plaintiffs in error.

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.

Exceptions from Superior Court, HampPER CURIAM. It ordered and adjudged den County; C. T. Callaban, Judge. by this court that the judgment of the said court of appeals be and the same is hereby af

Actions of tort by Laura Nichols and by firmed on the authority of Bashore v. Brown, Leon Nichols, respectively, against the HolTreas., 108 Ohio St. 18, 140 N. E. 489, and yoke Street Railway Company and James J. City of Cuyahoga Falls v. Beck, 110 Ohio St. 1 Dowd, respectively, for injuries in automo82, 143 N. E. 661.

bile collision alleged to have been caused Judgment affirmed.

by negligence of defendant automobilist and

VerMARSHALL, C. J., and JONES, DAY, and hole in street dug by street railway. ALLEN, JJ., concur.

dicts for defendants, and plaintiffs bring WANAMAKER, J., not participating.

exceptions. Exceptions overruled.

R. P. & E. J. Stapleton, of Springfield, for plaintiffs.

W. H. Brooks, J. P. Kirby, D. H. Keedy, INDUSTRIAL COMMISSION V. SMITH.

and C. Brooks, all of Springfield, for de(No. 18256.)

fendant Holyoke St. Ry. Co. (Supreme Court of Ohio. May 13, 1924.) Green & Bennett, of Springfield, for de

fendant Dowd. Error to Court of Appeals, Perry County. Vincent Tague, Pros. Atty., of New Lexing WAIT, J. On December 21, 1920, an auton, C. C. Crabbe, Atty. Gen., and R. R. Zur-tomobile owned and operated by the defendmehly, of Columbus, for plaintiff in error. Tom O. Crossan and Paul Tague, both of New the plaintiff Laura and operated by the plain

ant Dowd struck an automobile owned by Lexington, for defendant in error.

tiff Leon, driving it into an excavation which PER CURIAM. This cause is reversed, upon the defendant Holyoke Street Railway Comthe authority of Industrial Commission of Ohio pany had made in Dwight street, Holyoke. F. Vail, 110 Ohio St. -, 143 N. E. 716.

The several plaintiffs brought separate acThe record of the proceedings of the Indus- tions for damages against the defendants. trial Commission disclosing that subsequent to The four cases were tried together in the March 11, 1921, the date when it determined that the injury resulting in the death of the evidence the judge directed verdicts for the

superior court. At the conclusion of the husband of the defendant in error was not sustained in the course of and arising out of his defendants, and the cases are before us up employment, the commission entered upon and on the plaintiffs' exceptions to the correctheld a rehearing, the commission will not be ness of these orders. heard to say that a rehearing was not granted. There was no evidence of willful or wanJudgment reversed.

ton recklessness on the part of either de MARSHALL, C. J., and ROBINSON, JONES,

fendant. The defendants contended that the MATTHIAS, DAY, and ALLEN, JJ., concur.

plaintiffs were trespassers without right upWANAMAKER, J., not participating.

on the highway at the time of the accident because their automobile was not legally reg. istered. Without dispute, the evidence

showed that in October of 1920, Laura NichNICHOLS V. HOLYOKE ST. RY, CO. ols registered, in her name, an automobile (two cases).

described in the application and certificate as SAME V. DOWD (two cases).

Ford touring; engine number 2361185; horse power 22.

This car she (Supreme Judicial Court of Massachusetts.

used for pleasure driving until a day or two Hampden. Oct. 20, 1924.)

before the accident. She carried on, with 1. Highways fil83—Unregistered motor vehi- some assistance from her husband, who was cle is "nuisance."

a carpenter, a business in Christmas trees Unregistered motor vehicle is "nuisance" on

and wreaths, and used for deliveries an Oakhighways, under St. 1909, c. 534, $ 9.

land truck belonging to her husband. This (Ed. Note. For other definitions, see Words truck needed repairs, and she decided to use and Phrases, First and Second Series, Nui- the Ford machine temporarily for deliveries sance.]

while the Oakland was out of use. She,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-3

[ocr errors]

however, wished not to scratch the touring Furthermore, in section 2, it based the car body of the Ford machine. So she pur- registration fee for trucks, commercial trailchased a secondhand "delivery body" from ers and commercial motor vehicles used soledealers in secondhand bodies and parts, and ly as such, on carrying capacity, and not on on December 19 or 20 removed the touring horse power as in the case of other motor car body from the Ford chassis, taking off vehicles. everything back of the hood, and put in The description "Ford touring" does not its place the delivery body. This called describe the machine which was injured. merely for loosening six bolts, exchanging That machine was described by the witnesses the “delivery" for the touring car body upon as a “Ford truck.” No one who saw it at the chassis, and tightening up the bolts. the moment when the rights of the parties The delivery body consisted of a windshield, to these actions must be determined would seat and a boxlike body having six posts to have described the one-seated, box-bodied, keep a load from falling off, and a back stake-bounded car in Dwight street as board which let down at the rear. No other touring car. And this is not unimportant. change was made; engine, chassis, wheels, One main purpose of the registration as remained as before; but what had been a this court frequently has declared is to setouring car now bore the characteristic ap cure identification in the event of accident pearance of a Ford truck, though, in fact, or wrongdoing. Dudley V. Northampton the chassis was lighter than that of a reg- Street Railway, 202 Mass. 443, 89 N. E. ular Ford truck. The registry plates for 25, 23 L. R. A. (N. S.) 561; Fairbanks v. the touring car were continued in use on Kemp, 226 Mass. 75, 115 N. E. 240; Rolli the machine in its changed form. No new v. Converse, 227 Mass. 162, 116 N. E. 507; registration was taken out.

Koonovsky v. Quellitti, 226 Mass. 474, 116 The car which was struck by Dowd's auto-N. E. 243, Ann. Cas. 1918B, 1146; Shufelt mobile and driven into the excavation made v. McCartin, 235 Mass. 122, 126 N. E. 362. If by the street railway appeared to be, and any one had been injured by this car and indeed was, referred to by several witnesses had sought to identify it, he probably would “Ford truck."

have been misled. Although he had noted The judge in directing the jury to return the registry number it bore, and thereafter verdicts for the defendants went upon the had found that Laura Nichols held such a ground that the vehicle in which the plain- number, he would conclude that he had mis tiffs were riding as owner and operator was taken the number, since the registration ap not then registered in accordance with law. plied to a touring car, while the car in fault

[1, 2] The law is well settled that an un- had been a Ford delivery wagon or truck. registered motor vehicle is a nuisance up- The very thing he was certain about, the on the highways. McDonald v. Dundon, 242 kind of car in fault, would cast the gravest Mass. 229, 136 N. E. 264, 26 A. L. R. 1243, doubt on the ownership evidenced by the and cases cited. The statute in force when registration. The law should not permit this accident took place (St. 1909, c. 534, 8 such mystification. 9) provided:

Again, the law as it was when the acci"No motor vehicle shall be operated *

dent happened, as well as when Mrs. Nichunless registered in accordance with the pro- ols took out registration, makes a distinc visions of this act.

tion in the fees for registration between

touring cars assessed on a basis of horse St. 1919, C. 294, amending St. 1909, c.

power, and trucks assessed on a basis of car534, required for registration, in the appli- rying capacity. It should not permit a motor

vehicle assessed on one basis to be transcation:

formed into a motor vehicle properly to be "A brief description of the motor vehicle or assessed upon another basis. trailer, including the name of the maker, the

The verdicts were properly directed. Innumber, if any, affixed by the maker, the char. acter of the motor power, the amount of the asmuch as this decision disposes entirely of motor power stated in figures of horse power, all the cases, it is not necessary to considand, in respect to motor trucks and trailers, er the other points discussed by counsel. the carrying capacity.

Exceptions overruled.

as

[ocr errors]
« ForrigeFortsett »