Franklin Common Pleas.

283

283

CONTRACTS.

[Franklin Common Pleas, 1890.]

ALBERT GLOCK V. AUGUST HARTDEGAN.

Where two persons had drawn a large prize in a lottery, and by agreement it was paid to one, the division of the money to be made when they reached home, the illegality of the source of the fund, or the illegality of the original partnership between them, is no defense to the subsequent to divide.

DUNCAN, J.

Albert Glock and August Hartdegan, young men of Columbus, drew $15,000 in the Louisiana lottery about a year ago. They went to New Orleans and had a check made out for the amount, payable to Hartdegan it being understood that they were to divide when they got back to Columbus. After they got back, Hartdegan refused to divide. Glock brought suit. Hartdegan demurred to Glock's petition, setting up that the Louisiana lottery was not recognized by the laws of this state, and the partnership was not for legal business. Judge Duncan held that no matter what the original contract was, the two men had made a lawful contract in New Orleans when they agreed to divide and overruled the demurrer. [Editorial.

289

MUNICIPAL CORPORATIONS.

[Franklin Common Pleas, April 21, 1890.]

C. T. CLARK V. COLUMBUS (CITY) ET AL.

The provisions of the Burns law, sec. 2702 of the Revised Statutes, do not apply to a contract made by the City Council with The Columbus Electric Light and Power Company to light the streets of the city.

PUGH, J.

The question presented in this cause is, whether the city council, in making contracts for the electric lighting of the city, must be governed by sec. 2702 of the Rev. Stat.-the Burns law.

1. There is no ambiguity in the language used in this section; and if the letter of the statute is to be adhered to, the conclusion is inevitable that the law does apply to a contract made by the city with the Electric Light Company.

In construing a statute, however, the duty rests upon the court to give effect to the obvious purpose, the intention, of the legislature. The purpose of the enactment of the Burns law has already been ascertained by the Supreme Court. See State v. Hoffman, Auditor, 25 Ohio St. 328. It is dictum, perhaps, yet it is a common sense view.

It was to prohibit cities and towns from incurring debts to subserve their ordinary purposes. Municipal indebtedness to carry out the extraordinary purposes of cities and towns is not within the prohibition of the

statute.

In the opinion in 25 Ohio St., pages 331 and 332, it was declared that it was not the purpose of the statute to practically put an end to

289

Clark v. City of Columbus et al.

municipal government, and that it is the duty of the court to so construe it as to avert public calamities which were depicted by counsel in the argument, and which would befall a city if the law was literally construed.

Experience, history, has demonstrated that it is impossible for city authorities to provide monies at the beginning of a year for all of the expenses that have to be paid during the year. Human foresight is incompetent to do it. It can only be done by guessing, and by providing for a large surplus which stimulates extravagance and causes needless taxation.

If the Burns law embraces all contracts or agreements, ordinances, resolutions and orders, which may involve the expenditure of public money, one man can put an embargo as it were on any city of the state by simply invoking the enforcement of the law as thus interpreted.

In construing a statute its policy, its scope, the mischief which caused its enactment, and the sort of remedy provided for must be considered. Burgett v. Burgett, 1 Ohio, 469, 480 and 481; Wright, 233.

The spirit, the reason, the principle, of a law overshadows the letter of the law. Bishops Written Laws, sec. 92d. et seq.

The statute of frauds has been the subject of fierce litigation, of ingenious arguments and elaborate discussions; every syllable of it, said a great judge, is worth a subsidy; but if it had been construed and enforced according to its strict letter, it would have promoted more frauds than it prevented.

"In construing statutes we should look at the real object and intention of the law makers, as gathered from an examination and comparison of the context of the whole act-its spirit and import." People v. Canal Commissions, 3 Scam., 153.

In 7 Wallace, 482, Judge Field said: "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The nature of the law in such cases should prevail over its letter." He borrowed a couple of apposite illustrations.

A Bolognian law enacted that "whoever drew blood in the streets should be punished with the utmost severity." But it did not apply to a surgeon who opened the vein of a person that fell down in the street in a fit.

A statute of Edward II, enacted that a prisoner who breaks prison should be guilty of felony; but it did not extend to a prisoner who broke out when the prison was on fire; the court observing: "For he is not to be hanged because he would not stay to be burnt." See also 2 Disney, 279.

The Burns law is couched in exceedingly general terms, and if literally enforced it would cause injustice and bring about absurd consequences.

The conclusion upon these authorities seems to be reasonable that a contract between the city and the Electric Light and Power Co. is not within the meaning, the spirit, the reason, of the law.

Decisions of the Circuit Court of Hamilton county, in two cases, cast doubt upon this conclusion-a fact which it is fair to mention. Bond v. Madisonville, 1 Circ. Dec., 581; Drott v. Riverside, 2 Circ. Dec. 565. But another Circuit Court has adopted an entirely different con

struction of the law. "See, Lima Gas Co." v. Lima, 2 Circ., Dec., 396. "See, also, Lowery v. Lowery, 7 Dec. Re., 81.

By sec. 2491 of the Rev. Stat., as amended March 1, 1889, it is provided that a "municipal corporation may contract with gas or electric lighting companies for supplying both electric light, natural or artificial gas for the purpose of lighting the streets, squares or other public places and buildings in the corporation." It is not very accurate phraseology, but I quote it as it is. Then it is expressly declared by a proviso that "this section shall be subject to restrictions in the last clause of sec. 3551. The only restriction named there is that no gas or water company shall go into operation in any city or village, when such a corporation has been already formed, until after the question of authorizing such operation has been submitted to the qualified voters of such city or village." This is the only restriction on the power of a city to contract under sec. 2491.

The provision of sec. 2702, the Burns law, that a city shall not make a contract involving the expenditure or money unless the money is certified to be in the treasury unappropriated is a restriction. Under the sanction of a well known rule of legal hermeneutics, the expression of only one restriction on the power of a city to contract with a highway company in sec. 2491, excludes all other restrictions.

Section 2491 as amended was passed after the Burns law was enacted, and if there is any repugnance between them, as there seems to be, the former, to the extent of the repugnance, repeals, by implication, the latter.

But there is still another consideration. The present state of the law, as embodied in these statutes, makes it doubtful at least as to what is the power of the city to make contracts for lighting it.

The rule is well established by authority that great public interests will not be necessarily subjected to hazard by the interpretation of a law. So private hardships will, when they may, be avoided by interpretation. Bishops Written laws, sec. 82. "If it appears," says the Supreme Court of Ill., in 3 Scam. supra, "that by a particular construction of a statute, in a doubtful case, great public interests would be endangered or sacrificed, it ought not to be presumed that such a construction was intended by the legislature.

When it is doubtful what is meant by a statute, consideration of evil and hardship may exert a controlling influence in its construction. If the court should construe this Burns law as having application to a contract between the city and the Electric Lighting Company, it is manifest that an irreparable evil would follow, in case the enforcement of the law should be invoked. The darkness of Erebus might enshroud the city for several months, and there would be no way to avoid it.

The motion of plaintiff for a renewal of that part of the injunction which was dissolved at the hearing, is overruled, and the residue of the injunction is dissolved.

C. T. Clark, for plaintiff.

Jones & Smith, city solicitor, for the city of Columbus.

Geo. B. Okey, for the Columbus Electric Light and Power Co.

291

Village of Westwood v. Dater et al.

STREET ASSESSMENTS.

[Hamilton Common Pleas, 1890.]

WESTWOOD (Village) v. Gilbert Dater, Wm. Meier et al.

291

1. A municipal corporation in widening a street need not wait until the street is graded and improved and assess for the entire cost, but may assess separately for the cost of appropriating the ground before the street is finished. This follows from the fact that the same method of assessment need not be followed for both.

2. It is not unconstitutional to assess back on an abutter's remaining land the cost of appropriating part of it.

3. The assessment statutes of Ohio are not contrary to U. S. Const., art. 14, because sec. 2304, Rev. Stat., provides for notice to the property holder, and sec. 2316 provides for a hearing.

BUCHWALTER, J.

The plaintiff is a municipal corporation of this county. Its council did on September 26, 1887, pass an ordinance by a yeas and nays twothirds vote to condemn a strip of ground ten feet wide on both sides of Furgeson road, between Forrest avenue and the Short line Lick Run road, for public use for street purposes. The ordinance also provided that the expense of the improvement should be assessed per front foot on the abutting property to the depth of 150 feet deep.

Publication was made, and the steps taken in the formal matters as provided by law.

Condemnation proceedings assessing compensation to the owners were had in the probate court. The amount assessed was $1,086.75. Expenses and costs duly itemized in the sum of $302.68 were incurred. The village allows a credit for proceeds of sale of certain improvements on said strip of land of $70.80.

Afterwards the village council duly passed an ordinance by a twothirds yea and nay vote, December 17, 1888, assessing a special tax of a certain fraction over 36 cents on each front foot abutting on said street between said points where thus widened, to pay the costs and expense of the proceeding to appropriate said property for street purposes.

Said assessment was ordered paid to the village in twenty days from the date of the ordinance, or be subject to interest and penalty.

The defendant, Wm. Meier, owned at the time of the passage of the several ordinances over 1,302 feet, on which the assessment claim is made for $469.77, with interest from (twenty days after) December 17, 1888, and five per cent. penalty, also on 1,036 feet a claim of $373.79, interest and penalty as aforesaid.

Due notice was given by publication of these several ordinances. The village prayed that the court decree the several sums to be a lien on said abutting lands, for an order of sale, and other relief.

The proof of these various steps, the amount of condemnation, costs and expenses, had been regularly made.

The argument of counsel raises various questions, and especially these: That the claim being a part of the condemnation or compensation money awarded by the jury for defendants' lands taken for the public use, and the costs, etc., of that procedure, that it is in violation of sec. 19, art. 1, of the state constitution to assess and make the same a lien on defendants' abutting lands, viz.: that for lands so taken for pub

lic use there "shall be assessed by a jury without deduction for benefits to any property of the owner.

2. That if constitutional, the action is premature, until after the streetis graded and improved.

3. That the costs and expenses of the appropriation cannot be a charge.

The constitutional question has been urged on the authority of Judge Jackson in 36 Fed. Rep., 385.

In so far as the question is raised upon the claim of the statute being in violation of our state constitution it is no longer a debatable one for this court. Cleveland v. Mack, 18 Ohio St., 403.

"An assessment upon lands fronting on a street to reimburse the amount of compensation paid the owner for his other land taken for the use of the street * * * is not in violation of the constitutional provision, which guarantees to owners of land so taken a full compensation "without deduction for benefits." * * *

Judge Welsh fully discusses this proposition (which is the unanimous opinion of the court). The facts of the case singularly present this distinct issue as made in the ca se at bar.

Whatever may have been the view of the learned judge in Scott v. City of Toledo, 36 Fed. Rep., 385, as to the construction of the provision of our assessing statute, as found now in secs. 2264, 2283, etc., it is certain that our Supreme Court has distinctly placed such statutory provisions as permissive under our constitution, and that it is the duty of this court to follow that construction, (and which it is true, is the conceded rule of decision also for the United States Court when a state statute has been construed by the State Supreme Court.)

One other constitutional question remains. The same learned judge has held that sec. 1, art. 14, of the United States constitution, which provides "Nor shall any state deprive any person of life, liberty or property, without due process of law, prohibits so much of such state legislation, as permits appropriation of land, as in this case, the compensation for which may hereafter be assessed upon abutting land of the same owner.

While it is the sworn duty of the judges of the court to support the constitution of the United States, as well as our state constitution, yet no construction of this section so far as I am advised has been made. by our U. S. Supreme Court, and I am unable to draw any distinction in meaning (as applicable to the issue before us in this case) between the phrases in sec. 19, art. 1, state constitution: "Where private property shall be taken for public use, a compensation therefor shall first be made in money, and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner," and sec. 1, art. 14, of U. S. constitution, "nor shall any state deprive any person of his property without due process of law."

In fact, our state constitution is thus more specific in the protection of the property of the citizen in this regard.

If it were an open question, as to the construction of these, and like statutory provisions under our constitution, then this reasoning of Judge Jackson would present formidable grounds for the construction favorable to the abutting land owners.

The second proposition of counsel for defendant, that the action is premature to recover the appropriating moneys, costs and expenses before the improvement is made, is worthy of consideration at least in a practical view in this, that it may require two causes of action instead of