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(148 N.E.) In the same case this court further de "This action, brought by the plaintiff, was clared :

filed for the express purpose of having a ju

dicial determination of the question: "Is Sub"Under the general grant of legislative power stitute House Bill No. 44, Mr. Brown, passed conferred by section 1, art. 2, of the Constitu- by the Eighty-Sixth General Assembly and put tion, the Legislature may tax rights, privileges, in effect by the tax commission of the state of and franchises."

Ohio immediately following its passage, sub

ject to a referendum by the people of the state This court is unanimously of the opinion of Ohio, and therefore not in effect for a pethat the act does not levy a property tax, riod of '90 days after its passage, or is it in and does levy an excise tax, and does not immediate effect?'come within the inhibition of section 2 of article 12 of the Constitution.

The contention that that portion of secUpon the question whether the tax imposestion 2 of the act, "for the purpose of proa burden upon interstate commerce, we are viding revenue for maintaining the main content to follow the decisions of the United market roads and intercounty highways of States Supreme Court in the cases of Texas this state in passable condition for travel, Co. v. Brown, 258 U. S. 466, 42 S. Ct. 375, for repairing the damage caused to such 66 L. Ed. 721, Sonneborn Bros. v. Cureton, highway system by motor vehicles used on Atty. Gen., 262 U. S. 506, 43 S. Ct. 643, 67 the same, for widening existing surfaces on L. Ed. 1095, Askren, Atty. Gen., v. Continen: such highways where such widening is rental Oil Co., 252 U. S. 444, 40 S. Ct. 355, 64 dered necessary by the volume of motor veL. Ed. 654, and Bowman, Atty. Gen., v. Con-hicle traffic thereon,” authorizes the expenditinental Oil Co., 256 U. S. 642, 41 S. Ct. 606, ture of a portion of this fund for other than 65 L Ed. 1139, wherein it was held, in sub

current expenses, and that the appropriastance, that, where interstate shipments tion of the fund is therefore in part an aphare reached their destination, and have be

propriation for other than current expenses, come a part of the stock of the consignee, is the only question in this case which has their interstate character no longer attaches,

given this court any concern. and the goods are subject to state legislation.

Section 1, art. 2, of the Constitution of [3] The contention that the act violates

Ohio, provides:
the constitutional provision that no bill shall
contain more than one subject may be suc-

"The legislative power of the state shall be cessfully answered by stating that the sub- vested in a General Assembly consisting of a ject and only subject of this bill, including people reserve to themselves the power to pro

Senate and House of Representatives but the the amendments to sections 6292 and 6295

* laws * *

and to adopt or
of the General Code, is the creation of a fund reject the same at the polls on a referendum
for the maintenance and repair of the high- vote as hereinafter provided. They also re-
ways and streets of the state: that the tax serve the power to adopt or reject any law, sec-
upon the use, sale, and distribution of mo tion of any law or any item in any law appro-
tor vehicle fuel is the means whereby the priating money passed by the General Assem-
fund is created; and that the appropriation bly, except as hereinafter provided.”
to the department of highways and public
works of the state, and to the various politi Section 1d, which is an exception thereto,
cal subdivisions of the state, is the distribu- reads :
tion of that fund to accomplish the single "Laws providing for tax levies, appropria-
purpose of the enactment, to wit, the main- tions for the current expenses of the state gov-
tenance and repair of the highways and ernment and state institutions.

The streets of the state, counties, and municipali- laws mentioned in this section shall not be subties,

ject to the referendum." The contention that the act is a tax on the state and its political subdivisions, in that That this is a law "providing for tax levthe motor vehicle fuel used by the state ies” must be and was conceded in the arguor political subdivisions in state-owned and ment of this case, and this court is in acsubdivision-owned machines is not exempt cord upon that proposition. from the payment of such taxation, is an [4] The question whether the appropriation stwered by the cases of State ex rel. v. Cap of the fund to be raised for the period of peller, 39 Ohio St. 207, and State ex rel. two years is exempt from the referendum, 5. Board of Public Works, 36 Ohio St. 409, under the provision "appropriations for the wherein this court held:

current expenses of the state government "The state is not bound by the terms of a and state institutions,” is answered when it general statute, unless it be so expressly en is determined whether the act appropriates

the fund or any portion thereof for pur

poses other than current expenses. If the None of the contentions, however, thus fund be appropriated for expense other than far answered, was relied upon with any con- current expense, the appropriation is subidence by the relator, and he states in his ject to the referendum; if not, it is exempt

from the referendum. 148 N.E.--7

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The phrase "current expenses” does not the expenditure for other than road mainteseem to have been defined by this court, nor, nance and repair of any of the money apindeed, satisfactorily defined by any court. propriated in the act. 17 Corpus Juris, 408, defines it thus :

As pointed out earlier in this opinion, the “Incidental expenses ;

ordinary expenses;

act is entitled “An act to provide for the running expenses; any continuing, regular ex- adequate maintenance of the public highways penditures in connection with the carrying on and streets of the state, to supplement existof business; continuing regular expenditures. ing revenues available for road and street As applied to a railroad, the term will include maintenance and repair by the levy of an expense occasioned by repairs and the purchase excise tax

and to transfer to the of materials for the improvement of the road; state the duty of maintaining the entire main expenses incurred within a reasonable time."

market road and inter-county highway sysThe Supreme Court of the state of Cali- tems," and were it not for the fact that in fornia, in Babcock v. Goodrich, 47 Cal. 488, section 2 of the act, in defining the purposes held:

for which the revenue is raised, the Legis* Current expenses of the year,' as used in a

lature included, as part of its maintenance statute authorizing a county board of

and repair, "widening existing surfaces on

supervisors to levy a tax for the current expenses such highways where such widening is ren. of the year,' should be construed to mean the dered necessary by the volume of motor ve. 'expenses of the current year.'

hicle traffic thereon,” there could be no ques

tion that it was the intention of the LegisThe Supreme Court of Missouri, in State lature to appropriate this fund solely for the ex rel. Egger v. Payne, Collector of Revenue, purpose of maintenance and repair-current 151 Mo. 663, 52 S. W. 412, held:

expenses of the government. “Current county expenditures do not mean

The appropriation of $50,000 to the gasocounty expenditures for years other than the line tax rotary fund, to be used in refundyear for which the taxes are levied."

ing taxes paid upon the sale of gasoline not

used by the purchaser as motor vehicle fuel The Supreme Court of Kansas, in State in part upon the highways and streets of ex rel. Reed v. Com’rs of Marion County, the state, is clearly an appropriation for 21 Kan. 419, held that the erection of coun- current expenses. ty buildings is not "current expenses” of a In appropriating 30 per cent. of the gasoline county, but is an extraordinary and excep- tax excise fund to the municipalities of the tional expense. When permanent county state, the Legislature, in the same paragraph, buildings are once erected and completed, limited its use by providing that it “shall be the benefits to the county are permanent and used by such municipal corporations for the continuous.

sole purpose of maintaining and repairing Other decisions of other courts, like the the public streets and roads within such cordecisions above quoted, are definitions of the poration,” and in the next sentence provided : phrase as used in particular statutes, and are not helpful in the determination of the line of an intercounty highway or main mar

"Wherever a municipal corporation is on the definition of the phrase as used in our Con- ket road, one-sixth of the amount so paid to stitution.

any municipal corporation shall be used by If the term "current expenses" as used in such municipal corporation for the sole purour Constitution, were to be interpreted as pose of maintaining and repairing such streets the same phrase was interpreted by the Cali- and roads within such municipal corporation." fornia court, it is difficult to conceive of a class of appropriations that would not come In appropriating 25 per cent. of such gasowithin the exception. We are of opinion that line tax excise fund to the counties of the there was some purpose in its use in our state, the Legislature, in the same paragraph, Constitution.

limited its use by the provision that it “shall [5] Our conception of the phrase, as used be used for the sole purpose of maintaining in our Constitution, is that "current ex and repairing the county system of public penses,” in addition to including the expens- roads and highways within such counties," es incident to officering and maintaining the and in appropriating 45 per cent. of such state government, includes the preserving in gasoline tax excise fund to the department repair and maintaining the property of the of highways and public works of the state, state government, and, as applied to roads, the Legislature, in the same paragraph, limincludes the maintaining and repairing there. ited its use by the provision "for the purpose of, as distinguished from new construction. of maintaining, repairing, and keeping in We believe this is the commonly accepted passable condition for travel the roads and definition of the phrase, and we hold that it highways of the state now or hereafter rewas in this sense that the makers of the quired by law to be maintained by the deConstitution used it in section id of article partment of highways and public works of 2 of the Constitution of Ohio.

this state," and by the provision that in That brings us then to the determination the fiscal year 1925–1926 not less than $1,of the question whether the act authorizes 000,000; and in

the fiscal year 1926–

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(148 N.E.) 1927 not less than $1,500,000, shall be ex [6] The Legislature having entitled the act pended for the purposes of section 13 of the one to provide funds for maintenance and react.

pair, and having specifically provided for Section 13 provides :

what purpose each separate portion of the

appropriation is to be expended, and having "As soon as this act shall take effect and in each instance provided that that expendifunds become available, and as soon as it is ture should be either "for maintaining and practicable to organize proper working forces, the director of bighways and public works shall repairing" or "for maintaining, repairing, take over for maintenance purposes as here and keeping in a passable condition,” the geninafter defined, such mileage of the present sys- eral provision contained in section 14, which tem of main market roads and inter-county incorporates the provisions of section 2 therehighways outside of incorporated municipalities in by reference, is not effective to broaden as have not been constructed by the state or or extend the purpose specifically mentioned taken over by the state for maintenance, pro- in the appropriation of the various portions vided that all such portions of the inter-county of the fund, even though section 2 required highway system not at present under state the construction that it authorizes an unmaintenance, be first improved by the county limited widening of existing highway surto an extent which in the opinion of the director of highways and public works will permit faces, and while the paragraph “for widenof economical maintenance for the purpose of ing existing surfaces on such highways where making them passable to traffic.

such widening is rendered necessary by the "From the time such roads and highways are volume of motor vehicle traffic thereon," taken over, the director of highways and pub- standing alone, is capable of such construclic works shall maintain said roads and high- tion, where the necessity for such widening ways, and the respective counties and town is made to appear, yet taken in connecships of the state in which such roads and tion with the title of the act, in connechighways are located shall thenceforth be relieved of the duty of the maintenance thereof, tion with the specific definition of the but for the purpose of this section, maintenance purpose of each appropriation found in shall not be construed to include the construc- each separate paragraph making the aption of any new bridges or culverts or the re- priation, the majority of this court are of placement of any bridges or culverts destroyed opinion that such a construction would vioby the elements or by natural wear and tear, late the rule that specific provisions are connor any construction work changing the type trolling over general provisions, and violate of construction existing on said roads at the the rule that provisions of a definite and time the same are taken over in accordance with the provisions of this section."

certain meaning are controlling over provi. sions of an indefinite and uncertain meaning.

We therefore are of opinion that the deThen follows a provision that this act shall not be construed to prevent the au

partment of highways and public works, the

counties, and the municipalities of the state, thorities of the county or township from cooperating with the state in the construction, are limited in the expenditure of the remaintenance, or repair of a main market spective appropriations made to them in this

act to maintenance and repair, and that the road under other provisions of the statute.

Section 14 limits all appropriations to the power of such department, or subdivisions, to period expiring June 30, 1927, and follow- use this particular fund for the purpose of

widening the surfaces of the highways, must ing the limitation occurs the paragraph which be measured by whether such widening conhas given the minority of this court much stitutes maintenance or repair, or, on the

other hand, is of such a character as to "The sums so appropriated shall be used by amount to new construction; that the exsuch municipal corporations and counties and pense of maintenance, repair and keeping the by the department of highways and public works system of public roads and highways in for the purposes set out in sections 2 and 12 passable condition for travel is current exof this act and for no other purpose whatso- pense, and, since the act as a whole contem

plates no other use of the fund, that all the

appropriations of the act come within the As has been seen, section 12 limits every exception of section 1d of article 2 to section portion of such appropriation, except the 1 of article 2 of the Constitution. $50,000 rotary fund, about which no question The demurrer to the petition is sustained. can be raised, to the expenditure "for main Writ denied. taining and repairing” and “maintaining, repairing, and keeping in passable condition JONES, MATTHIAS, DAY, ALLEN, and

KINKADE, JJ., concur.




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The amended petition further avers that STATE ex rel. DAVIDSON V. INDUSTRIAL the verdict was brought about by the adop

COMMISSION OF OHIO. (No. 18512.) tion by the trial court of the rule of law gov(Supreme Court of Ohio. May 19, 1925.)

erning dependency followed by the Industrial

Commission prior to the decision of this court (Syllabus by the Court.)

in the case of Industrial Commission v. Dell, 1. Mandamus m81 – Industrial Commission Ex'x, 104 Ohio St. 389, 135 N. E. 669, 34 A.

not specially enjoined to rehear compensation L. R. 422; that the Industrial Commission case after appeal from its adverse ruling. has granted rehearings in cases in which it

There is no duty specially enjoined by law had applied an erroneous rule of law after on the Industrial Commission to rehear an ap- thirty days had expired; that subdivision (b) plication for compensation after an appeal from of rule 22 of the Industrial Commission, govits adverse ruling to the court of common pleas erning procedure in claims against the fund, has been prosecuted and heard.

provides that, when more than thirty days 2. Master and servant en 417(9)-Industrial have elapsed between the date of the original

Commission has no jurisdiction pending ap- hearing and the date the application for a peal, and no jurisdiction after judgment, ex. rehearing is filed, the "Commission will fix cept to execute same.

the time and place for hearing the applicaThe Industrial Commission has no jurisdic- tion for rehearing, notifying the claimant tion over applications for compensation that and employer thereof, and upon the hearing have been appealed to the court of common of the application for rehearing, if it appleas while such appeal is pending, and no ju-pears to the Commission that substantial jusrisdiction after judgment except to carry the tice has not been done to the interested parjudgment into execution.

ties, a rehearing will be granted and claim

ant and employer will be notified of the time Original mandamus by the State on the re- and place of such rehearing," and that if, lation of Caroline B. Davidson against the upon hearing said application for rehearing, Industrial Commission of Ohio. Demurrer the "Commission is of the opinion that subto amended petition sustained.—[By Editori- stantial justice was done at the original hearal Staff.]

ing, the application for rehearing will be deThe relator in her amended petition avers nied"; that, acting under the "precedent” that she is the widow of Robert Davidson, and “rule," she, on January 15, 1924, filed an deceased; that Robert Davidson was injured application for a rehearing of her claim, on on December 15, 1916, in the course of his the ground that “under the facts and the employment with the Uhler-Phillips Com-foregoing decision of this court she was enpany; that the Uhler-Phillips Company had titled to an award of compensation on acat that time paid premium into the state in- count of the said death of her husband, surance fund; that as a result of such in- which arose out of and occurred in the course juries Robert Davidson died January 27, of his employment, and that substantial jus1917; that on the 24th day of February, 1917, tice had not been done her on the original she filed an application for an award for hearing because of the mistaken theory folcompensation from the state insurance fund lowed by defendant that she was not dependon account of the death of her husband; that ent upon her said husband"; and that on on March 23, 1917, the application was de- March 3, 1924, the Industrial Commission denied on the ground that she was not depend- nied the application for the rehearing on the ent on the decedent within the meaning of the ground that defendant was without jurisdicWorkmen's Compensation Act; that the action because the cause had been appealed to tion of the Industrial Commission in denying and decided by the common pleas court of her application was based upon the fact that Marion county. she was not living with the decedent at the

The prayer is "that a writ of mandamus time of his decease, nor for some period pri- may issue, commanding defendant to considor thereto, and that he was not supporting er and allow said application for rehearing her; that she appealed from the action of the and entertain jurisdiction to hear said appliIndustrial Commission to the common pleas cation for award under the rules of law ancourt of Marion county; that the case was nounced by this court as applicable to said heard before that court and a jury; that the cause." jury returned a verdict for the defendant; that an entry was placed upon the journal of Taylor & Scott, all of Columbus, for plaintiff


Booth, Keating, Pomerene & Boulger and the court setting forth the verdict, but no judgment entry was entered upon the jour

C. C. Crabbe, Atty. Gen., and R. R. Zur-
nal; that a motion for a new trial was filed mehly, of Columbus, for defendant.
within three days; that no entry appears up-
on the journal overruling such motion; and ROBINSON, J. [1] This is an original ac-
that the appearance docket shows the mo- tion in this court to compel the Industrial
tion to have been overruled.

Commission of Ohio to consider and allow
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(148 N.E.) the application of the relator for a rehearing the state insurance fund in the same manner as of an application filed by her and disallowed such awards are paid by such Commission." by the Industrial Commission more than six

Upon final judgment in favor of the claimyears prior to the filing of the application ant, jurisdiction is by law reconferred upon for rehearing, from which disallowance an

the Industrial Commission to carry such appeal had been prosecuted to the common

judgment into execution, but we know of no pleas court of Marion county, which appeal had been heard by that court and a jury, and provision for a review of the judgment of a

court by the Industrial Commission; such a verdict rendered and entered upon


judgment being subject to review only upon court journal adverse to relator.

error in a higher court. The Legislature of Ohio has seen fit to de

It is true in this case that the judgment of fine the writ of mandamus and to provide the court of common pleas was never jour. when it shall issue. Section 12283, General nalized, and technically the case is probably Code, provides:

still pending in that court. That fact, how"Mandamus is a writ issued, in the name of ever, is not significant, since the verdict of the state, to an inferior tribunal, a corporation, the jury was against the relator here, and the board, or person, commanding the performance only statutory provision for the reinvesting of an act which the law specially enjoins as a of the Industrial Commission with jurisdicduty resulting from an office, trust, or station." tion is where the claimant recovers a judg

ment. No claim is made here that any statutory The amended petition does not state facts duty is enjoined upon the Industrial Commis- which create a duty specially enjoined by sion to grant a rehearing in this case, but it law upon the Industrial Commission to reis claimed that the Industrial Commission has hear the application of the relator for comimposed upon itself the duty of granting such

pensation. The demurrer to the amended rehearing by the adoption of subdivision (b) petition is therefore sustained. of rule 22, where this language is used, “if it Demurrer sustained. appears to the Commission that substantial justice has not been done to the interested JONES, MATTHIÁS, and KINKADE, JJ., parties.” But the petition fails to state that

the Commission made any such finding, but
avers the finding of the Commission to have
been that it "denied said application for a
rehearing solely on the ground that defend-
ant was without jurisdiction because said BRADLEY LUMBER & MFG. CO. v.
cause had been appealed to and decided by

CUTLER et al.
the aforesaid common pleas court of Marion

(Supreme Judicial Court of Massachusetts.

Suffolk. May 28, 1925.)
Granting, as we do, that the rules adopted
by the Industrial Commission have upon it

1. Sales en 182(1)-Whether breach serious the force and effect of law until annulled by

enough to justify defendants in refusing fur. the Commission, or by this court, the relator

ther performance is question of fact for jury. has not averred a finding by the Industrial

Whether seller's breach of contract to sell Commission that substantial justice has not lumber was serious enough to justify buyer been done, essential, under the rule, to enjoin in refusing further performance, as general upon the Commission the duty to grant the rule, is question of fact for jury. rehearing. This court in a mandamus suit might well rest its decision upon that ground 2. Sales Como 170—1f seller's failure to furnish alone, but, since the Commission made the

lumber did not go to root of contract, action affirmative finding that it was without juris

for buyer's breach would lie. diction in this matter, the parties hereto are

If seller's failure to furnish lumber did not entitled to the judgment of this court upon go to root of contract, action for buyer's

breach would lie, delay in shipments, not going

to essence of contract, nor preventing recovery [2] That the jurisdiction was transferred if buyer refused to go on with agreement. from the Industrial Commission to the court of common pleas of Marion county by the 3. Sales Cw81(4)-Seller of lumber excused appeal is necessarily conceded. Having been from performance if causes for delay in de. transferred to the courts by the appeal, by

liveries were beyond its control. what process did the courts lose that juris Where parties agreed that deliveries of

lumber under contract were subject to delay The statute (section 1465–90, General from causes beyond seller's control, and jury

could find, that shortage of cars and embargo

were beyond seller's control and were not oc“Any final judgment so obtained shall be paid casioned by seller, it was excused from perby the Industrial Commission of Ohio out of l formance within time agreed.

Cam For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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