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to be considered the expenses proper to be included in the assessment, and we are left without guide in that particular, unless we can resort to sec. 2284 for that purpose. There is, too, in sec. 7 of this act of 1885 erence to other costs of the improvement required to be paid by the corporation, without any statement of what they are, which plainly constitutes a reference to the other statutes on the subject. The power to include one-half of the damages in the assessment is plainly apparent.

There are two final allegations, which I shall speak of together. One is, that the grade proposed is an unusual grade; and the other is, that there will be an abuse of corporate power if the proposed improvement is permitted to be made. The elementary principle that I spoke of at the outset will go a long way in settling these propositions. The power to grade and improve the streets is vested in the corporation, and is not, ordinarily at least, subject to judicial supervision. Iron R. Co. v. Ironton, 19 Ohio St., 299; Carr v. Northern Liberties, 33 Pa. St., 324, 329; Dillon Mun. Corp., secs. 94, 95.

There is, however, under the statute, power in the court to interfere by injunction or otherwise, and prevent an abuse of corporate powers. Sec. 1777. This makes it necessary to examine a little the allegations of the petition. They are, in substance, that this grade was established by the road district; that it should be respected according to the terms of the agreement of annexation ; that it has been recognized in various ways by the city ; that the city has constructed improvements with reference to it, an engine house and a police station, and that the board of education has a schoolhouse also constructed with reference to it; and that the private property holders along there have been built with reference to it.

Nothing is said about the effect that the grade will have upon the street as a public highway. The principal use of the street and the priacipal thing which the city must regard in improving the street is to adjust it for public travel; everything else is appurtenant and incidental. A grade, to be an unreasonable grade, should be shown to be unreasonable in view of the necessities of the public. It may be true that there will be damage to private property. This very act contemplates that there may be damage to property. It may be true that there will be damage to public property; but the city, if it can cause damage to a private property holder can certainly bear the damage to its own property. It seems to me that allegations of that sort, of injury to adjacent property and of the fact that the new grade is a change of existing circumstances which have remained for a long time, and about which, perhaps, rights or interests have grown up, do not show an abuse of corporate power. There is no doubt there is discretion in this board to make a change of grade; and every change of grade, where there have been improvements, involves a change of conditions and perhaps damage to somebody. Therefore, to say that a change of grade can not be made where there is damage to a number of people or to public property is to deny the existence of the power under such circumstances, and yet the statutes vest this power in the corporation, and provide for the assessment and payment of damages when it is exercised.

I feel bound to hold that the allegations of the petitions do not make a case of an unreasonable grade or of an abuse of corporate powers. The demurrers to the petitions are sustained.

I. J. Miller, for plaintiff.
T. Horstman, contra.

Superior Court of Cincinnati.

197

197

RES ADJUDICATA.

[Superior Court of Cincinnati, General Term, 1889.) MARTHA Keown v. CHARLES C. MURDOCK, TRUSTEE ET AL. 1. Where a question has been adjudicated between parties, it is conclusive as to

that point, in a subsequent action, even if the causes of action be not the same. 2. Whether the court may order that a finding upon a particular issue shall not prej.

udice the parties in a future action, query- but it such an order can be made to be effective, it should be clothed in unmistakable language.

RESERVED on the pleadings and evidence. PECK, J.

The principal object of the action is to set aside a deed alleged to have been obtained from plaintiff by Stephen Ciark by fraud and the abuse of confidential relations. The answer is a general denial.

At the trial the plaintiff offered in evidence the record of a former action and judgment, to which the plaintiff and defendants here were parties. The record was objected to as incompetent, but the objection was overruled and exception taken, and thereupon plaintiff rested her case. The defendants offered no evidence. In the record so offered it appears that plaintiff was claiming an interest in the property there in question as an heir of her mother, and that Murdock the trustee of Clark's estate sought to estop her from making such claim by reason of the clause of warranty contained in a deed which plaintiff has made to Clark in the life-time of her mother, and which is the same deed here in question. The decree rendered in that action contains the following finding of fact: "That the deed referred to in the reply of Martha Keown, was executed and delivered to said Clark by said Martha Keown, then Martha Crall, and Richard Crail, her husband, while the relation of attorney and client existed between said Clark and said grantors in said deeds, and were both without consideration other than the performance by said Clark, of services which he had already agreed to perform by said

The question was raised but not decided, as to whether the court may order that a finding upon a particular issue shall not prejudice the parties in a future action. The point ruled by the court was that is such an order can be made, to he effective, it should be clothed in unmistakable language. The N. Y. Daily Register adds: This question is one which frequently appears now in various forms ili practice, although it has not as yet gone much into the books. The better opinion is, we think, that a finding of fact not material to support the judgment is not an adjudication. The reason is that it is not just to treat it so because the remedy to review it by appeal does not exist. If in some exceptional cases it does exi a party ought not to be required to sort to it merely for the purpose of getting rid of the adjudication. For instance, if a defendant answers, setting up payment and a general release as separate defenses, and proves payment, but fails to prove the general release, and the court find in his favor on the issue of payment and against him on the issue of general release, he can not appeal from the judgment because it is in his favor, and therefore can not get rid of the finding that there has not been a general release between him and the plaintiff; and therefore it is hardly just to allow the plaintiff to set up the finding that there was no general release as conclusive in some other action on another contract. Such a finding must necessarily follow a failure of evidence. A judge or referee can not regularly, under our system, find “not proven,” but on a failure of evidence must find as on negative proof; and although such a finding, if material to support the judginent, would be conclusive, it ought not to be conclusive, when not necessary for that purpose and not capable of being reviewed by appeal by the party against whom it was rendered.

197

Keown v. Murdock, Trustee, et al.

contract, and for which, said contract furnished the measure of compensation ; that said deed were both fraudulent in law, and ought to be set aside and held null and void.” And the court conclude that, “as between said devisees and said Martha Keown, it can not, in this action, abate, and annul as an entirety, said deed from said Martha and Richard Crall to said Clark, but only the covenants of warranty therein”–{urther"That the court can not, in this action, vacate, annul and avoid the said deed from Richard and Martha Crall, and that for this and other reasons it will not decree a partition in this action.” And the decree concludes with this saving clause: "This decree is without prejudice to such actions as the plaintiffs, and the defendants, Agnes and William Clugish, or any of them, may be advised to bring hereafter to obtain a partition of said lot under this decree, and set aside said conveyance by said Martha and Richard Crall to Stephen Clark."

The point to be determined is, whether plaintiff has made out a prima facie case by the offer of the record in evidence, for if she has, she 'must have judgment, as there is no other evidence, and if not, the judgment must be for the defendants.

The question of the admissibility of the record, depends upon whether or not it tends to show that any question here in issue was adjudicated between these parties in the former action. It is well settled that there may be a plea of res adjudicata not only based upon the identity of causes of action, but also upon identity of issues. Where a question has been adjudicated between the parties, it is conclusive upon both in a subsequent action, even if the causes of action be not the same. Grant v. Ramsey, 7 Ohio St., 157; Cromwell v. Sac Co., 94 U. S., 351 ; Shepherd v. Willis, 19 Ohio, 142.

The cause of action is not the same here as it was in the former caseso that the question is whether the determination of the court as to the deed, expressed in the decree, is now admissible evidence estopping the defendant from asserting the validity of the deed.

It will be observed that the finding was that the clause of warranty was in valid, because the deed had been obtained by fraud while Clark was attorney for the grantor, and without consideration. That is the very question at issue here, and although the court there limited the effect of its conclusion to the clause of warranty, the whole deed was necessarily iuvolved in the finding. In order to determine the question there at issue, the court necessarily passed upon the question here at issue; and unless the saving clause of the decree changes the effect of the finding, it is admissible evidence against the defendants.

It is a question of some doubt, whether it is possible to limit the subsequent effect of a judgment or finding upon the rights of parties in that way. To render a judgment, and then say, that it should be without prejudice to a future action for the same cause, would be a self-contradictory order. A judgment necessarily precludes the parties as to the cause of action, and there is no reason now apparent to us, why it should not have the same effect as to the issues involved. But it is not necessary to the determination of this case, to hold that it is beyond the power of the court to make such an order. It is to be observed that the lan. guage of the saving clause, is such as to preserve the right of certain parties, to bring an action of partition "under this decree." Clearly that language was not intended to mean that the decree should not affect such an action, but rather that the subsequent action should be based upon it, It appears to have been put in as a precaution, because the court found

608

Vol. XXII.

Superior Court of Cincinnati.

197

that a decree for partition could not be rendered in that action, and to prevent its being plead as a bar to a subsequent action for that purpose. The same purpose is also apparent as to the deed. The court could not avoid it in that action, for the reasons stated, and did not intend that the decree shauld estop a future action for that purpose. If it be within the power of the court to order, that its necessary findings shall be withi. out prejudice to the parties in future actions, such order to be effective should certainly be made in unmistakable terms. In this case we are satisfied that it was not the intention of the court to do so, and as the record is the only evidence on the question of the validity of the deed, it at least makes a prima facie case for plaintiff, and judgment must be rendered accordingly.

Taft and MOORE, JJ., concur.
Worthington and Marsh, for plaintift.
Avery, for defendants.

198

SUNDAY LAWS.

(Police Court of Cincinnati, September 19, 1889.)

STATE OF Ohio V. JAMES E. FENNESSY ET AL. 1. Criminal, or penal statutes must be strictly construed, and cannot be extended

by implication to cases not falling within their terms. 2. A musical performance is neither a theatrical nor dramatic performance of any

kind or description. 3. The Revised Statutes of Ohio, sec. 7032 a. (78 Ohio Laws, 126, passed April 9,

1881), does not forbid the giving of a musical performance on the first day of

the week, commonly called Sunday, ERMSTON, J.

The defendants are charged by information in this court with the misdemeanor of exhibiting and participating in a musical performance within the corporate limits of the city of Cincinnati upon Sunday, the fifteenth day of September, A. D. 1889. The information is drawn under section 7032 a. of the Revised Statutes of this State, which provides specific punishment for any person or persons who violate the following certain provisions of said statute, which is quoted here in full, to- wit :

“Whoever on the first day of the week, commonly called Sunday, participates in, or exhibits to the public, with or without charge for admittance, in any building, room, ground, garden, or any other place in this state, any theatrical or dramatic performance of any kind or description, or any equestrian, or circus performance, of jugglers, acrobats, rope. dancing, sparring exhibitions, variety shows, negro ministrelsy, living siatriary, ballooning, or any base ball playing, or any ten pins, or other games of similar kind or kinds, or participates in keeping any low or disorderly house of resort, or shall sell, dispose of, or give away any ale, beer, porter, or spirituous liquors in any building appendant or adjacent thereto when any such show, performance, or exhibition is given, or liduses or places is kept, he or she shall, on complaint made within twenty days thereafter, he fined in any suin not exceeding one hundred dollars, or be confined in the county jail not exceeding six months, or both, at the discretion of the court.

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To the aforesaid informations, the defendants have filed their demurrers as the law provides, and seek to be dismissed, because the informations do not state facts sufficient to constitute offenses against the laws of said state. Under said demurrers it becomes the duty of the court to consider the question as to whether or not the demurrers are well taken and for that purpose to examine the law, to-wit: section 7032 a. and ascertain whether it was the intention of the legislature to prohibit the exhitition of a musical performance, or the participation therein, by any person or persons upon the Sabbath day. The legislature has clearly provided against the exhibition of any theatrical or dramatic performance of any kind or description, or the participation therein by any persons upon the Sabbath day, and prohibits the exhibition or participation therein of any person or persons of various other performances, exhibitions, or sports, but nowhere does the law prohibit the exhibition of a musical performance, or provide against participating in a musical performance. This is a criminal law of the state, and under the uniform authority of the decision of courts of last resort since the days of Blackstone, and especially upon the authority of the Supreme Court of our own state, in the following cases, Bloom v. Richard, 2 Ohio St., 387; Hall v. State, 20 Ohio, 7; Turner v. State, 1 Ohio St., 422 ; Hirn v. State, 1 Ohio St., 15; Shultz v. Cambridge, 38 Onio St., 659; Spice v. Steinruck, 14 Ohio St, 213; board v. Swaringen, 1 Ohio, 395, the language used in any penal statutes of the state must be strictly construed because such pena! statutes cannot be extended by implication to cases not falling within their terms. And for the very excellent reason that the statute does not prohibit the exhibition of a musical performance, and it haviug been admitted that there was not a dramatic nor a theatrical performance, exhibited for participated in by said defendants upon said Sabbath day, and that said performance given did not resemble in any sense a dramatic nor a theatrical performance of any kind or description, I am of the opinion that the demurrers to said informations should be sustained, and the defendants are discharged.

P. J. Corcoran, for the state.
Rankin D. Jones and Francis B. James, for the defendants.

INSANITY AS A DEFENSE,

204

(Preble Common Pleas.]

tElmer SHARKEY V. STATE OF Ohio. 1. Insanity, when properly made out is a full and complete defense to all criminal

charges. 2. As the law presumes every person who has reached the age of discretion to be

of sufficient capacity to be responsible for crime, the burden of establishing the insanity of the accused affirmatively to the satisfaction of the jury, rests

with the defendant. 3. Where the defense is insanity, it is not sufficient it it shows merely, that such :

state of mind was possible; nor merely that it was probable. The proof must be such as to overrule the legal presumption of sanity, and satisfy the jury that the accused was not sane. * The holding in this case was reversed by the circuit court, opinion 2 Circ.

Dec., 443.

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