« PreviousContinue »
into vine common pleas districts of compact territory, and bounded by county lines; and again, requires each district to be divided into three subdivisions, of compact territory, bounded by county lines, and as nearly equal in population as practicable, and ia each of which one judge of the court of common pleas for said district * * * shall be elected. If our constitution had established a common pleas court for each county, as it did not, except for Hamilton county, and had limited its territorial jurisdiction to the area of such county, an accused person would, certainly, be entitled to be tried in that county and no other. But this section does not contain any such limitations on the territorial jurisdiction of the common pleas court. Sce Minnesota v. Robinson, 14 Minn., 447.
The parallel provision in the constitution of Minnesota to that in sec. 10 of article 1 of ours, ordains that the “district" shall be ascertained or prescribed by law, while ours does not. The omission of this provision, found in nearly all the constitutions of the states in which cases have been decided by the appellate courts, makes it clear that the meaning of the word “district” must be ascertained from the constitution itself. It is not left to be defined by statute. And considering the nature and ordinary import of the term, and the context of the constitution, cited, does it not obviously mean a judicial district?
It is ordained by
sec. 4 of
4 of article 4 of constitution that the jurisdiction of common pleas courts and the judges thereof, shall be fixed by law. There being no limitation upon the territorial jurisdiction of such courts prescribed by the constitution, all of the statutes fixing and limiting jurisdiction must be construed together, whether they expand or contract each other; and sec. 7263, embracing a part of that subject, must be so construed with them. It directly relates to the subject of jurisdiction-territorial jurisdiction; it provides where an accused person in a criminal case may be tried. Indeed it is the only section of the statutes which has been cited that prescribes the territorial jurisdiction of the court for the trial of criminal cases.
It was urged that the literal terms of the statute allow a case to be transferred out of the district, because all of the adjoining counties to any particular county might not be in the same district. But a restricted construction of the statute must be adopted so as to make it harmonize with the constitution. It should be held to mean only those adjoining counties which are, in fact, in the same judicial district.
Osborn v. State, 24 Arkansas, 629, is cited. There, the Supreme Court of Arkansas declared that a statute which empowered a circuit judge to change the venue of a criminal case without the application of the defendant, where he had judicial or other knowledge that facts existed which would entitle the defendant to the removal of the case upon his own application, to be inconsistent with, and in violation of the constitutional provision similar to that of ours now in question in this case.
This is an unequivocal, clear-cut authority in support of the argu. ment of the defendant's counsel, and the only one, in my humble opinion, which has been cited. But in the opinion of the Arkansas court there are no adequate reasons assigned for the conclusion; indeed it would be erroneous to say that any reason at all was given. The case is a strong illustration of judge-made law, which, Macauley justly said, was “a curse and scandal not to be endured."
The decision of the Butler county common pleas court in. State v. Arrison, has been relied upon. I have never seen the opinion in print. All that we know about it in the discussion of this case has been read from the note of the Code commissioners. It appears from that note that one reason for the decision was that the case was transferred to another judicial district, Butler county not being in the same district with Hamilton county, from which county the case was transierred.
Anything else decided in the case may be obiter dicta.
The resources of fervid and impassioned oratory have frequently been displayed to show that an accused person should have the right to elect whether he will be tried in any other county than where the offense is alleged to have been committed; because he should not be taken from his friends, witnesses and neighbors, and that this guaranty is necessary to protect him from the tyranny and oppression of rulers. In the days of stage coaches, when there was not much travelling, and in the times when judges were appointed by the government, and not elected by the people, and were abject and dependent, this was true. Now it is almost true that when a large minority of criminals are tried in the counties where the offenses were committed, they are tried away from home, friends and neighbors, if they have any. Criminals have become migratory. They have a right to take depositions anywhere, and the absence o witnesses is no deprivation.
Criminal laws are so humane and so jealous of the rights of criminals, that there are more chances for their escape from punishment than for conviction. Judges are not servile agents of power. All of the cases cited and positions taken by 'counsel for defendant have been considered with assiduous care, although the time for such consideration has been limited to a few hours.
The challenge will be overruled, and the demurrer of the state to the plea will be sustained.
Nash, Huling and Locke, for the state.
62 (Hamilton Common Pleas, December, 1888.) † MATTHEW RYAN ET AL. V. CINCINNATI (City.)
B. STORER ET AL. V. SAME. 1. The estimate of cost of street improvement transmitted to council of a munici
pal corporation, under R. S., sec. 2214. does not fix the limit of the amount of the assessment to be made upon the abutting property for such improvement. Such estimates is not intended to include any items of cost or expense other than such as may be the subject of contract under R. S., sec. 2215. Nor is the amount of the assessment in any way affected by any sum stated in the notice given under R. S., sec. 2304 of the passage of the preliminary resolution for an improvement.
This argument was reversed by the circuit court; opinion 2 Circ. Dec., 546. The circuit court was affirmed by the Supreme Court: unreported, October 28, 1890. In a case of Cincinnati v. Ryan, the Supreme Court refused a petition in error, March 5, 1889.
Hamilton Common Pleas.
2. The omission to declare specificially in the improvement ordinance that the ex
penses to be assessed upon abutting property shall include the damages which may be found by a jury, does not, in view of the provisions of R. S., sec. 2284, estop the city from including such dainages in the amount of expenses so 10
be assessed. 3. Property owners, who present to the board of public works a petition for the
improvement of a street adjoining their property, in which petition they also ask that the cost be assessed upon their property, will be held to have actively participated in the improvement, so as to estop them from denying the validity of the assessment ordinance duly passed in accordance with the terms of such petition; and are thereby estopped from claiming the benefit of Rev. Stat., 2271, which would, but for the terms of the petition, restrict the assessment to twenty-five per cent. of the valuation of the property as entered upon
the county duplicate. SHRODER, J. (orally.)
In the cases of Ryan and of Siorer against the city it is not necessary to discuss more than one case. These are petitions setting forth that the city had improved Hunt street, and for that improvement had levied an assessment per foci front upon the property of the respective plaintiffs at the rate of $13.88 and a fraction; that this assessment is excessive; and the prayer is that the court reduce this assessment so as to bring it within the limits of the law, and to restrain the city and its officials, especially the city comptroller, from taking any action upon the assessment and collection over and above what the petitioners consider a valid assessment.
One of the grounds taken is that in the estimate connected with the preliminary resolution of council, the city authorities fixed the cost at $8.95 a front foot; and that also the contract resolution referred to the same estimate, and that therefore the excess of $4.92 and a fraction is illegal and void. Another claim is that the improvement ordinance declared the intention of the city to assess only the cost oi construction upon the abutting property-owners, and that the assessment ordinance, however, has included the damages the city was compelled to pay to the abutting property-owners caused by the improvement, which amounted to $43.-603.66; and that by reason of the unlawful addition of the amount of damages, which would come to $5.15 and a fraction per front foot, this excess of $5.15 was illegal. The third ground taken is that the assessment is in excess of twenty-five per cent. of the valuation of the property as entered upon the county duplicate.
Under the first head, it has been proved that upon petition of certain property owners, among whom were these plaintiffs, the city engineer made an estimate of the cost, and that estimate fixed the probable assessment at $8.95 a front foot; that the board of public works forwarded its recommendation to council foot; that the board of public works forwarded its recommendations to council with the estimate; that the preliminary resolution of council was made, and that the notices required by statute were given to the property owners, and that at the bottom of the notice there was a memorandum note which set forth the assessment would be $8.96. The resolution for improvement then provided that the expenses of the improvement shall be assessed upon the property owners. It made no special statement that the damages shall be so assessed, but provided by a separate resolution in the ordinance that the damages shall be judicially determined before the improvement was undertaken.
It is now claimed that by the statute under all these circumstances, the city was limited in its assessment to the amount fixed in the estimate.
Taking up the first claim, that is, of the estimate made by the engineer of the board of public works and forwarded to the city council with its recommendation: Whatever was done by the Board of Public Works was done by virtue of sec. 2214 Rev. Stat., which provides:
“In any cases where assessments are to be made, or where the estimated cost of any work or material exceeds five hundred dollars, the board shall transmit 10 council with its recommendation a resolution or ordinance, as the case may be, authorizing the execution of such work, or the purchase of such material, at a cost not to exceed the amount of the estimate which shall be transmitted."
It is claimed that the phrase, “the estimated cost of any work,” includes, or ought to include, when the first board has obtained the cost-the damage; but this section ought to be taken in connection with sec. 2215, which provides, that after the passage by council of the resolution, the board should advertise for proposals in accordance therewith for the work or materials required; also with sec
In section 2215. these words occur
Ryan et al. v. City of Cincinnati.
"And the board shall award the contract to the lowest responsible bidder or reject all bids, but no contract shall be awarded to any bidder the cost of which shall exceed the estimate transmitted to council."
Section 2224 provides that:
"When it becomes necessary in the opinion of the board in the prosecution of any work to make alterations or modifications in the specifications or plans of the contract, such alteration or modification shall only be made by order of the board, and such order shall be of no effect until the price to be paid for the work under such altered or modified contract has been agreed upon in writing, and signed by the contractor and some person authorized thereunto by the board, provided the total cost of the work with the addition of the price so agreed upon shall not exceed the original estimate."
Now these three sections taken together seem to me to indicate that the work intended by sec. 2214 must be such work as is to be contracted for. It does not mean the improvement. It does not mean the larger sense of the word “work;"' it means the word "work” in the sense of service,-means that in any case where assessments are to be made, or where the estimated cost of any service or material exceeds five hundred dollars. The three sections referred to, indicate that the estimate is to be made of such things as the board of public works was authorized ai that time to let out by contract. That necessarily excludes from this estimate anything that is not a matter of contract, and therefore necessarily excludes the assessment of damages by a jury.
It is claimed that by the notice given to the property owners,-in which notice there was in this case a memorandum note that the assessment would be $8.96 a iront foot-was such a notice as estopped the city from assessing a higher rate. But the note containing the $8.96 a front foot was no part of the notice, and came after the signatures. By whose authority it was made is not shown. If made by the notice clerk, it requires no argument to decide that a notice clerk cannot bind a municipality to a limit of its assessment; that would be a power contemulated by any legislation; to place in the hands of a subordinate, of a clerk, the power, by which, in writing a notice, he could limit the city in its assessment, would be so unusual that we should want to see some authority giving it. There is none shown.
Again, what is the notice that is to be given? The statute R. S., sec. 2394 iu its own language says that the notice shall be given simply of the “passage” of the preliminary resolution; and that is all. There is no authority in anybody to state io the property owners what their assessment might be, but only to give notice that such a resolution has been passed so that the property owners might avail themselves of the privilege given to them by the statute, to-wit, of presenting their claim for damages, or be held to have waived them.
When the property owner receives such a notice, he is presumed to know what the law is-he is presumed to know that this is simply a notice that the city council has passed such a resolution, and if there is anything else contained in the notice, he is advised by the law itself that it is unauthorized and therefore cannot be binding-it cannot mislead him.
It is claimed, however, that this estimate of the city engineer, being in his office and subject to inspection by the property owners upon their notice, is binding upon the city, because it is upon that estimate that they can base their objections. But the inquiry is what objections have they the right to make? Is there any law or statute that points out the right of a property owner to present any objection to the estimate? The purpose of the notice is simply to enable him to present his claims. And what does the statute contemplate should be placed upon the files of the engineer's office? Simply the plans and profile. And in the case of Longworth v. Cincinnati, 34 Ohio St., 101, Inn, the Supreme Court held that it was not necessary, it was not the part of the city to have placed upon record the estimate for materials that were to be used. The language is, "we do not understand that section 56,3"—which provides and requires that the plans and profiles relating to the improvement should be recorded the language is, "we do not understand that this would require the specifications of every item of expense to he set out." The language of the statute does not require it, the construction given in the opinion of the Supreme Court in the case of Longworth v. Cincin. nati, does not seem to require it.
The Revised Statutes, in sec. 2277, contain the only provision that I have been able to find in which the estimate is to be a matter of record, but that is an estimate to be made by a committee or a commission composed of three disinterested freeholders, or of the board of improvements, or of the board of public works, as the case may be. when they are to apportion the assessment among the property
owners according to the benefits, which is to be the basis of assessments. So we might argue that from the exclusive requirement of sec. 2277 it was not intended by the legislature that the estimates in any other case were to be made a matter of record, but that in such other cases it was to be confined to the plans and profiles of the work. Probably the reason is that at the time these estimates are to be made, it being at an early stage of the preliminary portion of the work, it would be impossible to anticipate most of the expenses that might be incurred, and would be inequitable and unjust to work an estoppel against the city upon such an estimate under such circumstances, for nobody can be misled by it, and anybody of common experience would know that at the early and preliminary stages of the work and legislation the estimate given was simply approximate, and nothing else.
It is claimed in addition that when the council in its ordinance of improvenient did not expressly provide that damages should be included in the amount assessed, it was a declaration of the intention not to assess such damages upon the abutting property owners. The ordinance of improvement in this case provides that the expenses shall be assessed upon the property owners. Does that exclude damages because they do not specifically say "including damages?" Now, the ordinary meaning of the word "expenses" and the statutory meaning of the word “expenses” includes the damages R. S., sec. 2284. Is there anything under the circumstances concerning the passage of this ordinance to give it a different construction? They had in mind the damages, because the council did provide that the damages should be assessed before the improvement was to be proceeded with. It is, however, argued because in its very ordinance of improvement they did provide specifically that the interest on the bonds should be included in the assessment that, anything other than the cost of construction was not to be included; but that expression as to the bonds should be taken with the hypothetical part of the resolution, which says: “If bonds are to be issued in anticipation of the work, then the interest is to be included.” It does not follow. therefore, that they intended to exclude everything else when they made provision for something that would be hypothetical—something that might or might not take place. The council having in its ordinance of improvement provided for all the things that under sec. 2264 it is required to do, this ordinance was valid, and I do not see anything in this ordinance that would warrant the court to infer that it was the intention of council to exclude the damages from the general word "expenses.” If it intended simply to say that the cost of the construction should be included, it could have said so, but it says, “the expenses of the improvement shall be assessed.”
The next claim is that the assessment is to be limited to twenty-five per cent. of the valuation of this property as found upon the county duplicate. This assessment comes under the act of March 27, 1884, found in the 81 Ohio Laws, page 86. At the time that the assessment ordinance was passed there was upon the statute books the Act of March 4, 1885, found in the 82 Ohio Laws, page 260. By this act the assessment was to be limited to twenty-five per cent. of the value of the property after the improvements. By the Act of March 27, 1884, which was passed four days before the passage of the preliminary resolution, and which was in force at the time that the improvement was undertaken, the limitation was twenty-five per cent. of the value as entered upon the county duplicate, but the Act of 1885 provides that it shall not apply to improvements that had been ordered prior to the passage of the act. Although the Act of March 4, 1885, repealed the Act of March 27, 1881, tie necessary inserence is that the legislation intended to retain the restriction upon council and restrict the assessment, and not to give it unlimited power by the passage of the Act of March 4, 1885. The Act of March 27, 1884, which limits' it to twenty-five per cent. of the value as found ou the county duplicate, therefore applies to this case.
It is claimed by the city that by reason of the nature of the petition of the property holders which initiated, set in motion, this improvement, the property-holders are estopped from claiming this limitation of twenty-five per cent.
The petition is addressed to the Board of Public Works, and represents that "the undersigned, owners of property represented by the foot front abutting on Hunt street"--I need not read some of these particulars-"hereby petition your honorable body for the improvement of Hunt street,
and for the assessment of the wliole cost of such improvement, except the cost of intersection, and two per cent, to be made and collected in ten equal annual installments, and in case the bonds of the city are issued in anticipation of the assessment as petitioned for, that the interest should be assessed." Upon the face of this petition there appear erased words that had been originally inserted, before it had been presented to the