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is plain that whatever moneys are describ- , favor; the same not having been included ed therein must be paid into the municipal within the language of the latter part of the treasury. But, if those portions of the sec- section, which makes provision for paytion' apply only to ordinance cases, and this ment of certain moneys into the county treascontroversy relates only to state cases, then ury. As to all ordinance cases, the fees taxthe relator is clearly not entitled to the ed in favor of a mayor or marshal must be relief prayed for. The amendment has left paid into the village or city treasury. By out the phrase "other than his fees of of- virtue of the proviso, a village council may fice,” but this omission has no controlling by ordinance authorize the mayor or marsignificance in the determination of this suit shal to retain his legal fees. The judginvolving fees in state cases, since the ear-ment of the Court of Appeals will therefore lier portion of the statute applied, prior to be affirmed. the amendment, only to ordinance cases. Judgment affirmed. This amendment has, however, made a change in that respect, and this omission ROBINSON, MATTHIAS, DAY, and ALfrom the statute as formerly existing seems LEN, JJ., concur. quite harmonious with another clause which CONN, J., dissents. was added in the amendment, to wit, "provided that the council of a village may, by ordinance, authorize the mayor and marshal to retain their legal fees in addition to their salaries."

W. W. LAWRENCE & CO. V. KERN. It is, of course, a well-settled rule of in

(No. 18403.) terpretation, well expressed by this court in Board of Education of Hancock County v. (Supreme Court of Ohio. Dec. 23, 1924.) Boehm, 102 Ohio St. 292, 131 N. E. 812, that:

(Syllabus by the Court.) “When an existing statute is repealed, and a new and different statute upon the same sub-Trial em 296 (2)-Reading inapplicable statute ject is enacted, it is presumed that the Legis

to jury held without prejudicial error, in view

of caution thereon. lature intended to change the effect and operation of the law to the extent of the change in In its general charge the trial court read the language thereof."

a paragraph of a statute inapplicable to the is

sue made by the pleadings. Its attention beVery important changes were therefore ing called to that fact, it read and specifically made by the amendment, but they apply only called the jury's attention to another parato ordinance cases, and, whereas formerly graph of the same statute, which did apply, and

cautioned the jury that the latter paragraph the mayor was entitled to hold fees in or

was the “part of our law that applied to this dinance cases, the matter is now placed as

case." The court thereupon correctly charged to villages under the entire control of the the jury as to the application of the latter paravillage council. It will be observed that the graph to the issues pleaded. Held, there was word "village" appears in section 4270, and no prejudicial error. that the word "city" nowhere appears. It will be further observed that the word "vil Error to Court of Appeals, Belmont lage" appears only in that paragraph giv- County. ing power to the council to authorize the

Action by W. W. Lawrence & Co. against mayor and marshal to retain their legal Andrew Kern. Judgment for plaintiff was fees. Section 4270, however, appears in a

reversed by the Court of Appeals, and plainchapter relating to both cities and villages. tiff brings error. Reversed, and judgment of The section which was repealed, and which court of common pleas affirmed.—[By Ediformerly carried the same number, 4270, torial Staff.] was not confined to villages, but apparently applied to all municipalities, and, if the gen

Plaintiff in error sued Kern in the comeral provisions of the section as amended, mon pleas court on an account for paint sold other than the proviso, should not be con- and delivered, amounting to the sum of $648.strued as applying to all municipalities, 23. The defendant answered, admitting the there would be no legislation whatever amount due on the account, subject to a upon that subject pertaining to cities. cross-demand, which defendant set up in his

The conclusions we have reached are in answer. This cross-petition alleged that the harmony with the decision of City of Ports- defendant Kern purchased the paint for the mouth v. Milstead, 8 Ohio Cir. Ct. R. (N. S.) purpose of painting two dwelling houses, and 114, affirmed by this court without report that it was so used; that at the time of the 76 Ohio St. 597, 81 N. E. 1182.

purchase the defendant made known to plainThe true interpretation of section 4270, tiff the purpose for which the goods were to General Code, is, therefore, that in all state be used, and relied on the plaintiff's skill cases the mayor of a city or village is en- and judgment to provide paint reasonably titled to hold the legal fees taxed in his I fit for that purpose; that the paint furnished

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

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(146 N.E.) was defective and unfit for the use intended, | jury would be warranted in finding for the in that it did not adhere to the wood, but defendant on his cross-petition. became so dry and crumbly that it was of no The cross-petition relied for recovery upon value in affording protection. The defend a liability imposed not by paragraph (2), but ant asked judgment in his favor on the cross-by paragraph (1) of section 8395, General petition in the sum of $1,000, which he asked Code, where the buyer makes known to the to be set off against the plaintiff's claim. seller the particular purpose for which the Plaintiff replied, denying the allegations con- goods are required. However, if any error tained in the cross-petition.

was committed by the court in its reference The jury returned a verdict on the issues to paragraph (2), it was thereafter cured at made in favor of the plaintiff for the amount the instance of the defendant. claimed and interest. The judgment on the At the close of the general charge counsel verdict was reversed by the Court of Appeals for defendant called the court's attention to for error in the charge of the trial court, paragraph (1) of said section, which he read whereupon error was prosecuted to this court. to the jury. That paragraph is as follows: Cooper & Cooper, of Bellaire, for plaintiff

"When the buyer, expressly or by implication,

makes known to the seller the particular purin error.

pose for which the goods are required, and it Clifford L. Belt, of Bellaire, for defendant appears that the buyer relies on the seller's in error.

skill or judgment, whether he be the grower or

manufacturer or not, there is an implied war"JONES, J. In its general charge, the trial ranty that the goods shall be reasonably fit for

such purpose."
court advised the jury that the amount
claimed by the plaintiff below was admitted

When this paragraph was called to the
by the pleadings, and also stated fully the attention of the trial court, he said to the
allegations contained, and issues made in the jury:
cross-petition of Kern. On the trial Kern "I think it is right and proper to call your
testified that he was engaged in the retail attention to it, gentlemen, as it is a part of
business, and for a period of five years had our law that applies to this case.”
handled paints manufactured by the Law-
rence Company; that on the occasion in ques- he said:

And after reading the paragraph to them, tion he had purchased from the latter's salesman eighteen gallons of Lawrence paint, de

"This covers the allegation that is made in scribed as Nos. 1350 and 1950. He also tes- defendant's cross-petition, that is, defendant in tified that the Lawrence Company sold two his cross-petition claims that he relied on the grades of paint, and that No. 1350 was the would be suitable for the purpose intended."

person who sold them that the goods purchased better grade of the two. The Lawrence salesman testified that the paint was bought by

The court then confined his charge solely description, and that No. 1350 was an ivory to the issues made by the cross-petition, and shade of their best paint. He testified also charged them that if they found by a prethat nothing was said about the particular ponderance of the evidence that defendant purpose for which it was to be used when it notified plaintiff's agent of the purpose for was purchased.

which the goods were to be used, and they It is probable, since evidence had been of- were not as warranted, the jury would be fered that the paint had been purchased by justified in finding for the defendant accorddescription and not for a particular purpose, ingly. that the court supposed that this issue bad

The Court of Appeals reversed the judg. been raised by the evidence if not by the ment because the trial court, in its charge, pleadings, for it called the attention of the had adverted to paragraph (2) of the secjury to paragraph (2) of section 8395, General tion named. There is no doubt, however, Code. He said to them that “where goods that when his attention was called to it the are bought by description from a seller who trial court charged paragraph (1) as applicadeals in goods of that description, whether ble to the issues made by the cross-petition he be the grower or manufacturer or not, and reply, for he said to the jury that parathere is an implied warranty that the goods graph (1) was the “part of our law that apshall be of merchantable quality." In that plies to this case.” connection he said to the jury that if they

In view of the latter feature of the charge, should find by a preponderance of the evi. and since the court thereafter confined the dence that the paint was defective or use- jury solely to the consideration of the issues less, and that it was necessary for the de- made by the cross-petition and the reply of fendant to go to an expense to place the plaintiff under paragraph (1), we are unable same on the houses, and remove the same, to see how the jury could be misled by what and that if they further found that the goods had been said to them theretofore, espe. were bought by description from the seller, cially in view of their general verdict finding an implied warranty that the paint should be the issues in the case in favor of the plaintiff of merchantable quality was proven, and the below, since the sole issue arose upon the

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de com. int sold of $618 ing the t to a ) in his bat the for the

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cross-petition of the defendant. There was er the death of a member of the police de no prejudicial error committed by the trial partment, dying in active service, if he was court.

a married man, pay a stipulated sum to his Judgment of the Court of Appeals is re- widow while she remained unmarried. There versed, and that of the common pleas af- was also . a provision for the payment of a firmed.

stipulated sum to the children of the deJudgment rer sed, and judgment of the ceased member. Said section of the by-laws court of common pleas affirmed.

further provided that if a member was not

survived by a wife, or child under 16 years MARSHALL, C. J., and ROBINSON, MAT- of age a certain sum should be paid to a THIAS, DAY, ALLEN, and CONN, JJ., con- mother dependent upon him for support, and,

if there was no such mother, such sum was to be paid to a dependent father. The bylaws provided that:

"The decision of said board of trustees shall STATE ex rel. LITTLE V. CARTER et al. be final on all questions of dependency arising (No. 18610.)

under those sections." (Supreme Court of Ohio. Dec. 23, 1924.) The relator averred in her petition that

she was married to Little in 1911, and that he (Syllabus by Editorial Staff.)

died leaving her surviving him, as widow, 1. Municipal corporations am 187—Interpreta- and a surviving child under the age of 9

tion of by-law by trustees of police pension years as the lawful issue of such marriage. fund held arbitrary.

The respondent's answer substantially adInterpretation by trustees of police relief mits all the allegations of the petition except fund of by-law, so as to constitute one who those alleging wifehood and widowhood in had merely applied for divorce not to be widow the relator. In a second defense it alleged of deceased policeman, was arbitrary, and not that on September 24, 1919, the relator filed in exercise of discretion.

her petition for divorce against her husband; 2. Mandamus Om 106Proper remedy to com- that service was had on him and the cause pel payment of fund to policeman's widow. heard by one of the judges of the common

Where, when policeman died leaving a pleas court; and that at the conclusion of widow, it became duty of trustees of police the hearing on November 14, 1919, and in the benefit fund, under Gen. Code, $ 4628, and by- presence of the relator and her attorney, law thereunder adopted, to allow and pay her the court granted a divorce to relator. The benefits provided, mandamus was proper rem- allegations pertaining to the divorce were de'edy to compel such action.

nied by the reply of the relator. The cause was Error to Court of Appeals, Summit County. ulations made by counsel in the Court of Ap

heard upon the pleadings and certain stipMandamus in the Court of Appeals by the peals. It was admitted that there was sufState, on the relation of Jessie Little, against ficient money in the police relief fund in Lloyd D. Carter and others. Judgment for charge of the trustees to pay the claim of defendants, and relator brings error. Re- the relator were it to be allowed. On the versed and rendered.-[By Editorial Staff.] question of divorce the following stipulation

This was an action in mandamus originat- of fact was agreed to: ing in the Court of Appeals, wherein the re "It is stipulated by and between counsel for lator prayed for a writ, commanding the the relator and the defendant: That on the board of trustees of the Akron police relief 20th day of September, 1919, the relator, Jesfund to constitute her a beneficiary under sie Little, commenced an action for divorce in the rules and by-laws governing administra- the court of common pleas of Summit county, tion of the fund, and praying for an order di- Ohio, against the defendant, Austin C. Little,

That on recting the custodian of the fund to pay her said cause being numbered 30422. certain moneys to which she was entitled as

the 17th day of November, 1919, said cause

came on for hearing, oral evidence was inaccrued pension thereunder.

troduced before the court, and, at the concluThe petition alleged that the defendants sion of the evidence, the court orally announced were exercising the functions of members of from the bench, 'Divorce granted, on the the board of trustees of the police relief ground of gross neglect'-all of which is evifund, and were administering the same for denced by the transcript of testimony taken by the benefit of the beneficiaries entitled there the official stenographer at that time. This to; that Austin C. Little was a member of oral decision of the court was not recorded or the police department of the city at the time journalized, and appears only in the form of of his death on February 12, 1920; that un- who took the testimony, and the oral an

transcribed notes of the court stenographer der favor of the state law there were in

nouncement of the court from the bench. force by-laws governing the police relief fund, That, on the 4th day of April, 1921, the folamong which was a section providing that a lowing entry was filed, was approved by the board of trustees should, within 30 days aft-court of common pleas, and filed and recorded

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

(146 N.E.) in the records of said court in said cause: I fund, for the method of electing its trustees, "This cause is ordered dropped from the docket.'| and for the maintenance of the fund by taxThat no other or further orders have been ation, and by fines and penalties imposed upmade in said cause."

on members of the department. It is not a

voluntary association, but is one controlled The reason for the denial of pension to the by statutory enactment. relator is shown by the following resolution

Section 4628, General Code, provides that: of the board:

The "trustees shall make all rules and regu"Be it resolved by the board of trustees of lations for distribution of the fund, including the Police Relief Fund that Jessie Little was the qualifications of those to whom any pornot the widow of Austin C. Little at the time tion of the fund shall be paid.” of his decease, and is therefore not entitled to pension under section 30 of the rules and by- Acting within the statutory authorization, laws governing the Police Relief Fund." rules and by-laws were adopted “governing

the Police Relief Fund of the city of Akron." On the facts admitted by the pleadings and Section 30 of those by-laws required that the stipulations by counsel the Court of Appeals board of trustees, within 30 days after a found that the relator was not entitled to the member's death, should pay stipulated monthrelief prayed for, and dismissed her petition. ly sums to his widow while she remained unWhereupon error was prosecuted to this married. Under this by-law the board was court.

required to pay a definite stipulated sum

named therein. Smoyer, Clinedinst & Smoyer, of Akron,

[1, 2] Under the conceded facts the relator for plaintiff in error.

was just as much the member's wife and widH. M. Hagelbarger, C. T. Moore, and W. A.

ow as if she had never brought the suit for Kelly, all of Akron, for defendants in error.

divorce. No interpretation of the by-law was

necessary, and, when the board sought to inPER CURIAM. That portion of the sec- terpret it in such a way as to constitute one tion of the by-laws making the decision of who had merely applied for a divorce not to the board of trustees final on questions of be his widow, their action was an arbitrary dependency has no bearing upon this case, one and was not an exercise of discretion.' since under the by-laws the feature of de- Were we to recognize the conduct of the pendency may affect the dependency of oth- board in this regard it would permit the ers, but does not affect this widow. Un- board of trustees to render the plain terms der the stipulation the relator was still of its by-law entirely nugatory. When the the member's wife at the time of his death, member died, leaving the relator incontroand became thereafter bis widow, within vertibly his widow, under the statute and the purview of the by-laws. While it is the by-law thereunder adopted, it became the true that she had filed an action for di- ministerial duty of the respondents to allow vorce against her husband, it indisputably and pay the monthly sum stipulated in the appears that no decree was ever entered on by-law for the benefit of the widow bene the journal, nor upon any other record of the ficiary. court. The only journal entry made was one Under the facts presented the writ of mandropping the cause from the docket.

damus may be employed to compel such acAccording to its opinion, the Court of Ap- tion. The judgment of the Court of Appeals peals had no difficulty in determining that is reversed, and, proceeding to render the the relator was not divorced. However, it judgment which that court should have renheld that mandamus could not be employed dered upon the conceded facts, judgment is to control the discretion of the trustees of here rendered in favor of the relator, and the police relief fund, especially where they the cause is remanded to the Court of Aphad “interpreted their rule not to include as peals for execution. a widow one who was separated from her Judgment reversed, and judgment for husband, and had submitted her divorce case plaintiff in error. against him to a court.” In this state we bave special statutory provisions providing

MARSHALL, 0. J., and ROBINSON, for the establishment of the police relief | JONES, ALLEN, and CONN, JJ., concur.

of certain purported rights and franchises STATE ex rel. CRABBE, Atty. Gen., V. SAN. to the defendant, the Baltimore & Ohio Rail. DUSKY, M. & N. R. CO. et al.

road Company, as its successors and assigns, (No. 18072.)

to operate its main tracks, sidings, and (Supreme Court of Ohio. Dec. 23, 1924.)

switches, and to maintain buildings over,

across, and upon certain real estate situated (Syllabus by the Court.)

within the county of Erie and the city of 1. Dedication Om64–To constitute misuse or Sandusky, being in part known and described

diversion, use must be inconsistent with or as certain open and public slips extending interfere with use contemplated.

from the north boundary line of Water In order to constitute a misuser or diver- street in that city northward to the public sion of property dedicated to public use it must waters of Sandusky Bay, and being in part appear that its use is inconsistent with the a tract of public land known and described purpose of the dedication, or substantially in- as East Battery. The dimensions of the terferes with the use thereof for the purposes water slips are set forth in the petition. It contemplated in the dedication,

is averred that all of the public slips of land 2. Dedication Om57–Use of slips to water as and the tract called East Battery are owned

streets held not inconsistent with purpose of by the state of Ohio and the city of Sandedication.

dusky in trust for certain specific grants or Where, in the dedication of streets and purposes, that is for public waterways to public grounds to a city, it is recited that “the and from the north boundary line of Water open and public slips to the water” shall so street to Sandusky Bay, and for no other remain forever, and such "slips” are tracts of land which are a continuation of streets there- purpose; that East Battery is owned by the in platted, the use thereof by the city as public state and by the city in trust for battery streets is not inconsistent with the purpose purposes, for public purposes only, as a trust contemplated in the dedication.

title from the original owners in fee; that 3. Dedication m58_Construction of railroad said railroad companies are each claiming tracks over city streets and across slips, held title to and exercising franchises and rights not to interfero with contemplated use there- over, and unlawfully occupying and using, of so as to warrant removal.

a right of way 100 feet wide east and west The construction and maintenance of a rail- upon and across said several water slips, ex. road track over and upon a city street and tending northward into Sandusky Bay from across the so-called "slips," pursuant to and the north termini of the streets therein in accordance. with the provisions of section named, and also a right of way over the 8763, General Code, there being no permit for the exclusive use or permanent obstruction of tract known as East Battery. said "slips” or any part thereof, and said

The pertinent facts set up in the answers "slips” remaining open for the free and unin- are as follows: On June 5, 1818, Zalom terrupted use of the public, do not constitute Wildman, George Hoadley, and Isaac Mills, such interference with or impairment of the use as proprietors of lands located on the shores contemplated in the dedication as to warrant a of an arm of Lake Erie, particularly dedecree for the removal thereof.

scribed as Sandusky Bay, and then located

within the bounds of Huron county, filed for Quo warranto by the State, on the relation record in that county a plat designated as of C. C. Crabbe, Attorney General, against the "city of Sandusky,” which plat showed the Sandusky, Mansfield & Newark Railroad public parks and lots, also streets which exCompany and others. Writ denied.—(By

tended in substantially northerly and southEditorial Staff.]

erly and easterly and westerly directions, the This is an original suit in quo warranto most northerly of which was Water street, in this court, wherein the Attorney General, that being nearest the water's edge; each of on behalf of the state, seeks a writ ousting the north and south streets terminating at the Baltimore & Ohio Railroad Company and Water street. North of some of the streets the Sandusky, Mansfield & Newark Railroad which extend north and south, and also Company from exercising certain franchises, north of the north line of Water street, and also restraining them from occupancy were plots of ground designated as open puband use of certain public slips in the city of lic slips, which extend north from the Sandusky on and along Sandusky Bay, and north line of Water street to the water, coralso enjoining the city of Sandusky from responding to what would have been the exfurther granting, suffering, or permitting tension of each of said north and south such use and occupancy by said railroad streets if those streets had been extended to companies.

the water's edge. Upon the north side of The issue presented is made by motion of Water street, and between the so-called pubthe plaintiff, the Attorney General, for judg- lic slips, lots were platted called "water lots," ment upon the pleadings. The plaintiff as- extending northerly into the waters of Sanserts that the Sandusky, Mansfield & New- dusky Bay. In the certificate filed and reark Railroad Company is a lessor and vendor corded with the plat, called "Certificate of

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