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(148 N.E.) districts where there is more space, where districts, the resident families will not inthere are fewer children playing upon the cur the danger of having the district blightstreets, cannot be said to interfere with the ed by the entrance of tenement construcpublic safety.

tion. It is possible see a relation between Neither are the people who live in apart- such a plan and the public health, morals, ment houses less moral per se than those and safety. It is possible to conceive that who live in single dwellings. Since an such a building development carried out over apartment house does not of itself constitute a long period of years will affect the public a nuisance, we fail to see how its exclusion health and contribute to the public morals befrom a residence district of the specific kind cause of the encouragement which it will here created falls within the police power. give to normal home life; because it will In other words, the ordinance has no rea- tend to eliminate the slum, and, incidentally, sonable relation to the public health, morals, will enhance the public safety, rooted as or safety.

that safety is in proper home conditions and This is a case of a use restriction pure proper public health. There is no such conand simple. Numerous cases have arisen in- dition in this case. Here a small district volving use restrictions, for the most part bordering upon a park, which itself will nevconstruing ordinances prohibiting the build- er be sold for homes, is cut out of the heart ing of business plants or structures within of Youngstown in a line so irregular as to residence districts. In these cases the use justify the conclusion that the enactment was restrictions have frequently been held in- | hastily passed for the purpose, as a witness valid.

states, of merely eliminating a proposed fillWe see less reason for excluding an apart- ing station. The uncontroverted testimony ment house from a strictly residence district shows that the building of an apartment than for excluding a store or other business house in this district will not harm the of a nonnuisance character from a strictly health, morals, or safety of the residents of residence district. Ordinances prohibiting the apartment house, nor of the district, nor the establishment of a nonnuisance business of the city of Youngstown. The area of the within a residence district have frequently district is not sufficient ever to make it posbeen held unconstitutional, upon the ground sible to give to the man of small means the that they constitute a taking of private prop- opportunity of building a home within this erly without compensation. City of St. Louis district from which apartment houses are exv. Evraiff, 301 Mo. 231, 256 S. W. 489; Ig- cluded; nor are other similarly restricted naciunas v. Risley, Bldg. Inspector, 98 N. J. districts provided in the city. The disLaw, 712, 125 A. 783; State ex rel. Westmin- crimination which is thereby made between ster Presbyterian Church v. Edgecomb, 108 the district of the wealthy and the district Neb. 859, 189 N. W. 617, 27 A. L. R. 437. of the poor cannot, under this ordinance, be

Moreover, these cases arose under proper overcome. zoning ordinances, so called, which carefully This case is upon all fours with the case districted the territory of the entire city, of Ingersoll v. Village of South Orange (N. and were stronger upon the facts in favor of J. Sup.) 126 A. 213, which held a similar orthe validity of the ordinance than the instant dinance invalid. In fact, this case involves

a discrimination more unrelated to the pubIf a nonnuisance business cannot be ex-lic welfare than the Ingersoll Case or any cluded from a residence district, how can an other case cited to us. apartment house, which is built for the spe In our opinion, therefore, this particular cific purpose of providing residences, be ex- ordinance, in so far as it undertakes to cluded from a residence district, particularly limit the use of land in this district to res when the residence district is practically the idences which can house one or two families only district in the city where an apartment only, has no relation to the public health, house could be built without restricting light safety, morals, and welfare, and falls outside and air space and without further congesting of the inherent police power of the municitraffic and population?

pality, and the ordinance is void and of no An argument in favor of the validity of effect. the use restriction of this kind does exist. It The ordinance provides that within the disis that some advantage will result to the pub-trict no building shall be erected to a height lic health, safety, and morals from having in excess of 212 stories, or in excess of 35 certain districts kept entirely free from the feet, except churches, schools, or library Intrusion of apartment houses, in order that buildings, which may be erected to 4 stories the community in the future may develop or 50 feet in height. large residence districts in which it is rea The apartment house planned will come sonably possible and certain that large num- within the height limitation of 35 feet, but bers of small and reasonably priced one is contemplated to be 3 stories high, instead and two family houses will be built. The ar- of 242 stories, as required by the ordinance. gument is that if such districts are made ac Since the limitation of the number of cessible to the owners of small homes, and stories in buildings could be justified under apartment houses are excluded from such the police power upon the sole ground that

case.

V.

it has reasonable relation to the number of In this case the defendant in error filed a families to be housed in the building, and petition, asking for damages by reason of since we have held that under the facts in the negligence of the city of Portsmouth in this particular case a restriction of this kind failing to perform its duties in respect to upon the number of families in a building to the maintenance of sewers, alleging neglibe built within this particular residence dis- gence on the part of the city in the following trict is invalid, necessarily the restriction respects: that houses of 242 stories only can be con

“(a) In permitting said sewer to become, structed within the district is also invalid.

and to remain, so clogged and obstructed with This holding makes it unnecessary to con- refuse, dirt, sand, street accumulations, and sider the question as to the validity of the débris that the waters could not flow through permit. Judgment of the Court of Appeals it; (b) in failing and neglecting to remove affirmed.

such obstructions as had been washed into Judgment affirmed.

said sewer at and prior to the times complained of herein; (c) in failing and neglecting

to sweep the streets above and adjacent to MARSHALL, C. J., and JONES and MAT- the said sewer, thereby permitting refuse and THIAS, JJ., concur.

dirt collected upon said streets to be washed ROBINSON, J., concurs in the judgment. into said sewer by rains until such accumula

tions almost filled the sewer; (d) in failing and neglecting to inspect said sewer for the purpose of determining whether it had become clogged and obstructed with refuse, street ac

cumulations, dirt, and sand.” CITY OF PORTSMOUTH MITCHELL A demurrer was filed to the petition and MFG. CO. (No. 18895.)

overruled, and thereafter an answer was (Supreme Court of Ohio. 'June 16, 1925. Re- filed setting up in substance a general denial, hearing Denied Sept. 29, 1925.)

and alleging that the injury suffered by the

plaintiff was due to an unprecedented rain(Syllabus by the Court.)

fall, and was, in fact, an act of God, and that 1. Municipal corporations 733(2)-Opera- plaintiff was negligent in storing its materition of sewers proprietary function.

als in a place likely to be flooded, without takThe operation and upkeep of sewers by a ing steps to protect the same. The trial remunicipality is a proprietary function.

sulted in a verdict and judgment for the com

pany. Error proceedings were brought in the 2. Municipal corporations em832—Municipality Court of Appeals, which affirmed the judg

liable for negligence in performance of duty ment of the lower court. The case comes to see storm sewers are not clogged.

into this court on motion to certify the recWhen a municipal corporation assumes the

ord. control and management of a which has been constructed in a public street Sherrard M. Johnson, City Sol., of Portsunder its supervision, it is bound to use rea- mouth, for plaintiff in error. sonable diligence and care to see that such

Bannon & Bannon, of Portsmouth, for de. storm sewer is not clogged with refuse, and is fendant in error. liable for negligence in the performance of such duty to a property owner injured thereby, after reasonable notice of the clogged condition of ALLEN, J. The record reveals the followsuch sewer.

ing facts: The defendant in error is engag

ed in the business of manufacturing yarns, 3. Municipal corporations eww832—Municipality and owns a building upon a paved street in permitting refuse to clog sewer guilty of the city of Portsmouth, Ohio. The basement maintaining nuisance. A municipality which collects refuse and of the company's building was used for the

The city of Portsmouth dirt upon its streets in the vicinity of the storage of yarns. catch-basins of a storm sewer and permits such had established a sewer system in the vicin. refuse and dirt to be washed into the same ity of the factory, and had later improved until such accumulations clog and almost fill the streets of the locality by brick paving, the sewer is guilty of violation of section 3714, by building concrete curbs and gutters, and General Code, and is liable to a property owner by connecting them with the main sluices and injured thereby.

catch-basirs in the sewer. It is stated on be.

half of the city that the sewer system has Error to Court of Appeals, Scioto County been too flat, that is to say, has lacked the

Action by the Mitchell Janufacturing pitch necessary for adequate self-regulation. Company against the City of Portsmouth. At the date named in the petition, after an Judgment for plaintiff was affirmed by the exceedingly hard rainfall, the sewer in front Court of Appeals, and the case comes to Su- of the company's factory, which is a storm preme Court on motion to certify record. sewer, failed to carry off the water accumuAffirmed.-[By Editorial Staff.]

lated upon the streets, and a stream of water For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

storm

sewer

(148 N.E.) poured into the cellar of the plaintiff and come clogged with refuse, so that water caninjured yarns therein stored. The evidence not flow through the sewer; for failing to showed that the storm sewer in question was remove obstructions washed into the sew. found for the greater part to be full of dirt er; for neglecting to sweep the streets, so that and silt after the injury to the plaintiff's refuse may not collect upon the streets to property. The record discloses substantial be washed into the sewer; and for failing to evidence that repeated notice had been given inspect the sewer, for the purpose of deterto the city of the condition of the sewers mining whether it has become clogged and obprior to the flooding thereof. A general ver- structed. dict was returned in favor of the manufac Ample notice of the clogging of the sewer turing company, which is amply warranted had been given the city, and therefore we are by the evidence in the case, if under these remitted to the single question whether the facts the city rested under a liabiilty.

function of the city under the facts herein [3, 1] We think that the facts pleaded and pleaded and proved is governmental or proproven do establish a liability against the prietary. city for the following reasons:

It is well established that there is no li(1) That the city in this case maintained a

ability resting upon a municipality for the nuisance in the street contrary to the provi- negligent acts of its officers and agents who sions of section 3714, General Code.

are performing governmental functions. (2) That the maintenance and upkeep of these sewers, so that they would function prop

“The nonliability of the city in such cases erly to clear the streets from excessive rain- rests upon the same reasons as does that of

the sovereign exercising like powers, and are fall, was a proprietary function, in the performance of which the city is held to the duty distinguished from those cases in which powof reasonable care.

ers are conferred on cities for the improvement. of their own territory and the property

of their citizens." Frederick, Adm'x, v. City The record shows that the city, after of Columbus, 58 Ohio St. 538, 546, 51 N. E. cleaning out the storm sewer in question, up-35, 36. on numerous occasions permitted the refuse gathered from the catch-basins to stand up The weight of authority holds that the on the street in piles, and that with each suc- construction and institution of a sewer sysceeding rain this refuse was again washed tem is a governmental matter, and that there back into the sewer. This being the case, we is no liability for mere failure to construct have here, not a mere omission upon the part sewers. However, the weight of authority is of the city to perform a duty, but a positive equally decisive in holding that the operation act upon the part of the city which has re- and upkeep of sewers is not a governmental sulted in the accumulation of refuse in the function, but is a ministerial or proprietary sewer, and the resuitant maintenance of a function of the city. nuisance in the street.

[2] The obligation to repair is purely minIf the city accumulated piles of rubbish isterial. When, therefore, a municipal corin the street, over which an automobile drove poration assumes the control and managein the nighttime, with consequent injury to ment of the sewer or drain which has been the driver or to the automobile, the city constructed in a public street under its superwould unquestionably be liable under section vision, it is bound to use reasonable diligence 3714, General Code, which provides:

and care to keep such sewer or drain in good "The council shall have the care, supervision repair, and is liable in damages to any propand control of public highways, streets, ave- erty owner injured by its negligence in this nues, alleys, sidewalks, public grounds, bridges, respect. Tiedeman on Municipal Corporaaqueducts, and viaducts, within the corpora- tions, § 355; Dillon's Municipal Corporation, and shall cause them to be kept open, in tions (5th Ed.) § 1741 ; Cairns v. Chester City, repair, and free from nuisance."

34 Pa. Super. Ct. 51. See, also, the notes in

9 A. L. R. 143; 13 Ann. Cas. 470. The maintenance of these piles of refuse A host of decisions have followed this rule, on the street, subsequently washed into the As explained in McCarthy v. City of Syrasewers, which in itself might perhaps have cuse, 46 N. Y. 194, the duty of the city to heen a nuisance, directly resulted in the fact keep its sewers in repair "involves the exerthat the streets were not kept open upon the cise of a reasonable degree of watchfulness occasion of the storm in question, and were in ascertaining their condition, from time to not free from nuisance, by the failure of the time, and preventing them from becoming distorm sewer to remove deep water accumu. lapidated or obstructed. Where the obstruclated upon the street; and, in permitting the tion or dilapidation is an ordinary result of conditions which caused this accumulation, the use of the sewer, which ought to be anticthe city violated section 3714 above quoted. ipated and could be guarded against by oc

The next question for decision is whether casional examination and cleansing, the the city, apart from section 3714, General omission to make such examinations and to Code, is liable for negligence in permitting keep the sewers clear is a neglect of duty a sewer constructed and operated by it to be which renders the city liable. Barton v.

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The City of Syracuse, 37 Barbour, 292, af- , properly and to keep it in good condition and firmed 36 N. Y. 54."

repair; failure to perform these duties will To the same effect is Schumacher v. City render the city liable in damages.” of New York, 166 N. Y. 103, 59 N. E. 773, in

Murphy v. City of Indianapolis, 158 Ind. which the court says:

238, 63 N. E. 469, announces the same rule, “Having provided gutters, culverts, and sew as follows: ers for the surface drainage, it was bound to the use of reasonable diligence to discover and and maintenance of sewers and drains act min.

"Municipal corporations in the construction remedy refects therein. Barton v. City of Syracuse, 36 N. Y. 54; McCarthy v. City of ular may be made the basis of an action.”

isterially, and their negligence in that particSyracuse, 46 N. Y. 194; Hines v. City of Lockport, 50 N. Y, 236; Nims v. Mayor, etc., of City of Chicago v. Seben, 165 Ill. 371, 46 Troy, 59 N. Y. 500; Mayor, etc, of N. Y. v. N. E. 244, 56 Am. St. Rep. 245, holds in the Furze, 3 Hill, 612."

fifth and sixth paragraphs of the syllabus : We have been pointed to no Ohio case from “5. The construction and regulation of sew. this court making a contrary holding, and the ers, built upon the adoption of a general plan, overwhelming weight of authority in other are ministerial duties, and a municipal corpostates affirms this rule. Among the impor- ration is responsible in actions for damages tant decisions which follow this doctrine are,

caused by its careless or unskillful mannert Powers v. City of Council Bluffs, 50 Iowa,

performing its work. 197; Bates v. Inhabitants of Westborough, corporation organized under the general law to

“6. While the legal obligation of a municipal 151 Mass. 174, 23 N. E. 1070, 7 L. R. A. 156. construct gutters and sewers is one which is A part of the syllabus in the latter case voluntarily assumed, yet, having assumed the reads as follows:

obligation and constructed a sewer, it must “A town is liable to a landowner for damages keep the same in repair, and is liable in damresulting from neglect to keep its sewers free ages for failure to do so." from obstructions. *

Holding as we do that the function of the “A town discharged a system of sewers into city in the maintenance and upkeep of sewa drain built by it on private land under a lease for a definite term. After the expiration decision presents no conflict with the case of

ers is proprietary and not governmental, this of the term, the drain was permitted to remain, and received the drainage as before of Aldrich v. City of Youngstown, 106 Ohio St. which it was the necessary outlet, and through 342, 140 N. E. 164, 27 A. L. R. 1497, and City the neglect of the town became choked up, of Akron v. Butler, 108 Ohio St. 122, 140 N. E. thereby flooding other land. The owner of this 324. land thereupon brought an action for such flow

This being the only question raised by the age against the town, which thereafter under agreement with the lessor built and maintained plaintiff in error, and the evidence amply sus. a new and sufficient drain in the same place. taining the verdict, we find no error in the Held, that the action could be maintained."

record and affirm the judgment.

Judgment affirmed.
In Vanderslice v. City of Philadelphia, 103
Pa, 102, the court holds that:

MARSHALL, C. J., and MATTHIAS, DAY, "Where a municipality has undertaken to and KINKADE, JJ., concur. construct a sewer, it is its duty to construct it JONES, J., concurs in judgment.

(148 N.E.) (318 Ill. 105)

due complainant. Answers were Aled and a JOSEPH T. RYERSON & SON v. PEDEN. | hearing was had in the superior court, SAME V, HANSEN.

which resulted in a finding for defendants in

error on the ground that the right of action (Nos. 16573, 16574.)

against the stockholders on account of any (Supreme Court of Illinois. June 18, 1925. alleged overvaluation of the property given in

Rebearing Denied Oct. 8, 1925.) payment of subscriptions to stock passed to 1. Bankruptcy Om 324-Amount of judgment

and was vested in the trustee in bankruptcy allowing claim payable, with interest thereon, and not in the creditor, and a decree was if assets are sufficient to pay all of bankrupt's entered accordingly. On appeal to the Apdebts,

pellate Court, the decree of the superior Allowance of claim in bankruptcy is ren- court was affirmed, but, upon appeal from dition of judgment, amount of which, with in- that court to this court, it was reversed. terest thereon, constitutes bankrupt's debt. Ryerson & Son v. Peden, 303 Ill. 171, 135 N. which is paid in entirety, if assets are suffi- E. 423, 24 A. L. R. 1273. This court held cient to pay all his debts, though, for reasons of that, where a corporation is reorganized inconvenience and public policy, where they are insufficient, basis for distribution is amount of to a new company, the property of the old judgment without interest.

company being turned over to the new in full 2. Corporations w273—Interest recoverable of the new company, the liability of the stock

payment of subscriptions to the capital stock from stockholders of bankrupt corporation on amount of judgment allowing claims in holders because of the overvaluation of the bankruptcy.

property may be enforced directly by crediUnder Hurd's Rev. St. 1917, c. 32, & 25, in tors after the failure of the corporation, and force when liability arose, creditors of bankrupt the right to enforce such liability is not an corporation could recover interest from stock - | asset of the corporation to be turned over to holders, not exceeding their maximum statutory the trustee in bankruptcy. Ryerson & Son liability, on amount of judgment allowing claim v. Peden, supra. in bankruptcy, at rate fixed by Smith-Hurd Rev. St. 1923, c. 74, $ 3.

After the case had been remanded to the

superior court of Cook county, the cause came Error to Appellate Court, First District, on on for final hearing upon the report of the Error to Superior Court, Cook County; Den- master in chancery, who had taken the proofs is E. Sullivan, Judge.

and made his findings thereon and exceptions Suit by Joseph T. Ryerson & Son against thereto, and a decree was entered finding that Thomas J. Peden, Andrew H. Hansen, and on or about April 3, 1913, the Illinois Archiothers. Decree for plaintiff by superior tectural Iron Works ceased doing business court reversed, and cause remanded, with di- leaving debts unpaid, and a petition was rections by Appellate Court on appeals by filed in the United States District Court for named defendants, and plaintiff brings sep the Northern District of Illinois, to have it arate writs of certiorari. Reversed, and de- adjudged a bankrupt; that said petition cree of superior court affirmed.

was granted, and Daniel P. rude was electEric Winters, of Chicago, for plaintiff in ed trustee of the bankrupt's estate; that the

complainant was a creditor of the defendant Thomas J. Peden and Roy C. Merrick, corporation and filed a claim against it for both of Chicago, for defendant in error.

$7,222.44, which claim was allowed on July

15, 1914; that on July 20, 1914, a dividend HEARD, J. Plaintiff in error (hereinafter was paid to complainant of $1,444.49, and on called the complainant), a creditor of the November 27, 1914, a final dividend of $975.South Chicago Architectural Iron Works, 03; that the estate of the bankrupt was erafterwards reorganized as the Illinois Ar-hausted, and nothing has been paid since upchitectural Iron Works, filed its bill in equity on the indebtedness; that there was due and in the superior court of Cook county against owing to the complainant on March 17, 1919 said company and all its stockholders, in- (the date of the making of the report by the cluding the defendants in error Thomas J. master in chancery), a balance of $4,802.92, Peden and Andrew H. Hansen, charging the with interest at the rate of 5 per cent. per insolvency and bankruptcy of the company, annum from July 15, 1914, to March 17, 1919, and that the company ceased doing business amounting to $1,115.08, making the total leaving debts unpaid; that the stockholders amount due and owing to the complainant hy of the company, while acting as directors, the corporation on March 17, 1919, $5,918, had accepted from themselves, in full pay- upon which amount the complainant is enment of their subscriptions for stock, proper- titled to interest at 5 per cent. from March 17, ty which was of far less value than the par 1919, to date, said interest being $1,209 33, the value of the stock for which they had sub- total amount of principal and interest at the scribed, and therefore, under the provisions date of the decree being $7,127.33; that the of the Illinois Corporation Act, the company master in chancery is entitled to a fee of and its stockholders were liable for the debt! $500, for which the defendant stockholders

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-54

error.

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