291 Village of Westwood v. Dater et al. one. Yet it may be said, that while defense should reasonably be made to one action or claim, that no action on the other may be required. It is quite manifest the council is not bound to adopt the same method for assessment of cost of appropriation, that it does for the improvement. One may be put on the abutting property, and the other on the general duplicate. See Judge White's opinion in 29 Ohio St., Krumberg v. City of Cincinnati, on bottom of page 75. As to costs and expenses charged herein see sec. 2284. It occurs to me this is a specific provision as to the court cost bill, preliminary surveys, etc. See also Butler v. Toledo, 5 Ohio St., 225, under Toledo Charter (as to attorney's fees and costs collectible). But contractor cannot recover same. 584, 597. Corry v. Gaynor, 22 Ohio St., Longworth v. Cin., 34 Ohio St., 101, did include right to recover superintendent's fees, etc., but not pay of salaries, officers, etc. GUARDIAN AND WARL. [Hamilton Common Pleas, April 17, 1890.] 328 TIN RE ESTATE OF CATHERINE E. DUNN V. LOUISA J. DUNN, CLAIMANT. 1. Care, support, and nursing furnished to an insane ward, without any request by or agreement with the guardian therefor, are necessaries, and the guardian of such ward is liable for their payment out of his ward's estate. 2 The fact that such necessaries were furnished by a sister of such ward, does not overcome the promise which the law implies on the part of the guardian to pay for such services. 8. The guardianship having been terminated by the death of the ward, and settlement having been made by the guardian with the court, without having paid for such services, the estate of the ward in the hands of an administrator is liable therefor. KUMLER, J. Louisa J. Dunn, the claimant, is administratrix of the estate of Catherine E. Dunn, deceased, and makes a claim of $525.00 for services rendered in nursing and caring for the decedent during her last sick ness. Under our statute the claim was presented, for allowance, to the probate court, which held against Louisa J. Dunn, and the matter comes here on appeal. The evidence shows that Catherine E. Dunn was an insane person, having been confined in Longview Asylum from the year 1882, till eight months before death in 1889. It appears that she was very violent, and at different times made attempts against the lives of relatives. Having become ill, her mother said to the superintendent of the asylum that when her daughter became so weak that she could be controlled, she wanted to take her home, as she did not want her daughter †This reverses the judgment of the probate, Goebel 297 to die in the asylum. In due time the mother and guardian of Miss Dunn were notified that Catherine could not at furthest live beyond three weeks, and thereupon the guardian went to the mother, and they together brought the daughter to the home of Mrs. Dunn, the guardian saying that he left Catherine with the mother, feeling that she could live but a short time, and that she would be taken care of till death. Louisa, the claimant, made her home with the mother. Catherine was of mature years, and left an estate worth about $6,000.00 The evidence shows that after she was taken home she grew better, and having a violent hatred towards her mother, the latter was unable to care for her and could not even enter the room in which she remained. Accordingly Louisa, who it seems was the only one whom the sister would tolerate, took charge of her, and for thirty-five weeks cared for Catherine day and night, great vigilence being necessary to prevent her escape. The claim is made that inasmuch as Louisa was a sister and lived with her mother, as did Catherine before entering the asylum, no recovery for services can be had in the absence of an express contract. The position, it seems to me, is not tenable. The services rendered were extraordinary, and are to be classed with necessaries, and were in no sense voluntary, inasmuch as the surrounding circumstances really compelled Louisa to render them. This kind of service is not to be classed with that, where a child remains with the family beyond majority, works about the farm, or otherwise, receives food and clothing, and continues in the same relation that existed during minority. And while relationship may raise a presumption that a service is gratuitous, yet the cases are numerous where parents are allowed compensation for maintaining and educating their own children when the latter have an estate, even though the former also have means of their own. Moreover, the presumption that such services are to be compensated, is greater than the one arising from relationship that they are to be gratuitous. And the well settled rule now is that each case must be considered in the light of its surrounding circumstances. Here the guardian of the estate of an insane person having charge of her estate, takes his ward to her mother's house to be kept by the mother, presumably two or three weeks. The ward lives thirty-five weeks; the mother is unable to render the service which she intended, and another daughter, also of mature years, gives her entire time and attention to her sister. It was the duty of the guardian to compensate her, and he having failed to do so, the estate is liable. Any other rule would be manifestly harsh and unjust, and the tendency of such a holding would be to deny persons situated like Catherine Dunn the attention they ought to have. The claim is accordingly allowed. Phillip Roettinger, for claimant. 329 Electric Light Co. v. Electric Co. ELECTRIC LIGHTING. 329 [Hamilton Common Pleas.] †BRUSH ELECTRIC LIGHT Co. v. JONES BROTHERS ELECTRIC CO. SAME V. QUEEN CITY ELECTRIC CO. I. A corporation "formed for the purpose of manufacturing, operating, selling or renting dynamos, motors and other electrical appliances for furnishing light and power, and for other purposes," has no power to carry on the business of electrical illumination. And a decree of our probate court or a permit from city authorities, allowing it to light streets and alleys, will not give it the corporate power, and a competing company may on this ground enjoin its use of their poles. 2. An ordinance of a city council authorized electric light companies to erect poles in the streets for lighting, on condition that other light companies might use the poles on paying a proper part of the cost or a rental. The probate court granted a decree, authorizing an electric company to use the streets and erect poles for lighting, subject to the control of the board of public affairs, and said board granted a permit to the company under said ordinance. Held, such company must still obtain a grant or franchise under secs. 2491, 3550 and 3551, Rev. Stat., before it can use the streets. KUMLER, J. The Brush Electric Light Company, plaintiff in the above actions, brings and prosecutes its actions in injunction against The Jones Brothers Electric Company and The Queen City Electric Company. The petitions of the plaintiff are substantially alike in both cases. The Brush Company alleges that it is a corporation duly organized under the laws of Ohio, and doing business within this state, and that the defendant companies are likewise doing business in the state of Ohio. Plaintiff also alleges that the city of Cincinnati passed a certain ordinance on the third day of March, 1882, by which it granted to it the right to erect poles and appurtenances necessary to carry on its electric business, and that it has the right by virtue of the terms and conditions of said ordinance to enjoy its rights thereunder free from all use and claims of said defendant companies; that under said ordinance it has erected a large number of poles in this city; that said poles and appurtenances are owned exclusively by the plaintiff, which is well known to defendants; that said defendants threaten to occupy and possess the same by erecting cross-arms, and stringing wires thereon, without the consent of the plaintiffs or other rightful authority; that the capacity of the poles so erected is no greater than its business interests require; that the defendants' use and enjoyment of said poles in the manner threatened by it, will work great and irreparable damage to the plaintiffs. Wherefore plaintiff asks that an order may be granted restraining said defendants, their officers and agents from using its poles in this city, and from interfering with the said business. The defendant companies file separate answers, which are substantially the same. The defendants admit that plaintiff is an incorporated company, but deny each and every other allegation contained in its petition; they deny that the plaintiff is entitled to erect poles and to use and enjoy the rights conferred under said ordinance to the exclusion of said companies; they deny that said plaintiff is the owner of said poles, and that it alone is entitled to their use, and that defendants have no property or rights therein; they deny that the capacity of the poles erected by the plaintiff is no greater than will be required by the business interest of the plaintiff. Defendants further answer, saying, that the plaintiff obtained permission to erect and maintain the necessary number of poles and wires with which to furnish the city and its inhabitants with light by electric currents under said ordinance, subject to certain rules and regulations therein prescribed, which are set forth in the answers; that said Brush Company operated under its ordi †This judgment was reversed by the circuit court; opinion 3 Circ. Dec., 168. The judgment of the circuit court was affirmed by the Supreme Court, January 17, 1893; unreported. nance until 1889, but did but little if any work, and strung but few wires, until the year 1889; that in the years 1888 and 1889, various electric companies commenced business in this city, and obtained decrees through the probate court of Hamilton county, granting them the right to go upon the streets of the city, and to use and Occupy the same for the purposes of their business, erect poles, etc., and string wires suitable to said business, but that all of said decrees subjected said companies to the supervision and control of the board of public affairs of said city; that the board of public affairs in July, 1889, adopted certain rules and regulations set forth in the answer, which stipulate that the board reserves the right if the interests of the city require it, to authorize other companies or persons to use plaintiff's poles for the same purposes upon payment to the owner of a proper compensation; that all permits thereafter granted will be subject to that condition; that the plaintiff subsequent to the adoption of said rules, applied to the board for permission to erect poles and string its wires, filing with it plans showing the location of all poles, and afterwards obtained permits and erected poles and strung wires thereon, under the supervision of the board and its chief engineer; that the common council passed a general ordinance on the eighteenth day of October, 1889, prescribing certain terms under which electric companies may do business in the city limits; that by the terms of said ordinance the person, company or corporation erecting such poles shall upon payment to them of a fair proportion of the original cost of erection permit any other person or company to occupy and possess equal rights and privileges thereon, if sad poles have not a full complement of wires; that whenever two or more persons, companies or corporations are supplying electricity for any purpose within the same territory, they shall be required to jointly use the same poles upon the conditions therein recited; that said plaintiff since the date of said ordinance has done business subject to the equirements of said ordinance; that said board on January 30, 1890, adopted a resolution fixing the basis upon which the different electric light companies shall use the lines of poles in the city, which is fully set forth in said answer; that the Jones Brothers Electric Company obtained a decree from the probate court of Hamilton county, Ohio, on the fifth day of October, 1889, by which it was granted the right to occupy the streets of the city of Cincinnati, erect its poles for Light and power purposes; that it filed its bond and submitted its plans for the erection of poles as required by said decree, ordinance of October 18, 1889, and the regulations of said board, and secured permits to erect its poles, string wires and do other work in accordance therewith, which it did, and is now doing; that both of said companies obtained decrees from the probate court of this county to occupy the streets of this city for lighting purposes, and in all respects complied with said decrees, the general ordinance of October 18, 1889, aforesaid in regard to lighting, including the rules and regulations of said board; that said defendant companies desiring to occupy the plaintiff's poles, expressed their willingness and ability to pay the required price of five ($5.00) dollars per pole, and to pay a reasonable monthly rental equivalent to a fair proportion of the original cost of the poles to be occupied; that said plaintiff arbitrarily refused to come to an agreement, refused to recognize the authority of the board, and to comply with the general ordinance aforesaid in regard to lighting, and declined all offers and tenders of payment on the part of the defendant companies. That said defendant companies and the plaintiff are supplying electricity in the same territory; that plaintiff's and defendants' poles are contiguous at many points, and are sufficient for the needs and requirements of all these companies. That the use and occupation of said poles jointly will not interfere with the safe use of the same by plaintiff in its present or prospective business. The Jones Brothers Electric Company ask that the restraining order be vacated. The Queen City Electric Company asks the dissolution of the injunction, and also prays affirmative relief against the plaintiff upon its answer and cross-petition. To these answers the plaintiff files a reply denying each and every allegation contained in the answers excepting the admission made therein of matters set forth in the petition. The plaintiff offered in evidence its articles of incorporation; the ordinance of March 3, 1882, under which it operates; and rested its case. The defendant companies to maintain the issues upon their part, among other things offered in evidence the articles of incorporation, to which plaintiff objected, on the ground that the articles of incorporation do not empower them to supply electricity for power and light purposes through the streets, alleys, lanes, lands, squares and public places within the corporate limits of the city. 329 Electric Light Co. v. Electric Co. The defendant companies also asked their witness when the conipanies went into operation, to which question plaintiff objected. The court allowed the witness to answer against the objection of the plaintiff. The witness then answered, "On January 1, 1889." Plaintiff then objected to the answer, and moved the court to strike out the answer. Are the acts of incorporation admissible in evidence for the purpose of showing that the defendant companies have the right and power to engage in the business of supplying electric light for the purpose of lighting the streets, squares and other public places and buildings in the corporation limits? The articles of incorporation of the Jones Brothers Electric Company read as follows: "Said corporation is formed for the purpose of manufacturing, buying and selling and dealing in telegraph and electrical supplies, appliances and apparatus, and all things incident thereto; also the making of models and experimental work, and general light manufacturing, and all things incident thereto." The articles of incorporation of The Queen City Electric Company read as follows: "Said corporation is formed for the purpose of manufacturing, operat ing, selling or renting dynamos, motors and other electrical appliances for fur· nishing lights and power, and for other purposes.' RULE OF CONSTRUCTION. As a general rule, corporations have such powers, and such only, as the act creating them confers, and are confined to the exercise of those expressly granted, and such incidental powers as are necessary for the purpose of carrying into effect powers specifically conferred. Acts of incorporation should be fairly and reasonably construed; the leading purposes and objects to be accomplished, and for which the corporation is created, should be ascertained if possible. Straus v. Eagle Ins. Co., 5 Ohio St., 59. After carefully reading the acts of incorporation, and paying close attention to the arguments of counsel, we have no difficulty in construing the articles of the Jones Brothers Electric Company. The claim is made that this act of incorporation clothes this company with the power of supplying with electric light the streets, squares and public place inside the city limits. The evidence already offered shows that the Jones Brothers Electric Company are now engaged in this enterprise. The words "electricity," "electric light and power." do not appear in this charter at all; indeed, the word "light" appears only once, and it is used as an adjective, and not as a noun. But we are told that the power is lodged in sec. 3471, the decree of the probate court, the ordinance of council of October 18, 1888, and in the resolutions of the board of public affairs. These are plainly not the sources of power. The articles are absolutely silent on the subject and object of supplying electricity publicly or privately, in the streets or elsewhere. The right to furnish electricity is neither expressed nor implied. The charter must be our guide. The language employed is plain and easily understood. The articles of incorporation quoted above lead us plainly to the conclusion that the Jones Brothers, under their charter, could only engage in manufacturing, buying, selling, and dealing in telegraph and electrical supplies, and cannot engage in electrical illumination. The same objection is made to the articles of incorporation of the Queen City Electric Light Company. These articles herein before quoted have been the subject of much controversy. If formed for the purpose claimed, they ought to be protected, and not destroyed. The articles read, "formed for the purpose of manufacturing;" "manufacturing" means "making goods and wares from raw materials." Webster. Manufacturing what? Dynamos, motors and other electrical appliances. What for? For furnishing lights and power, and for other purposes. "Appliances" means "the act of applying or the thing applied." Clearly "manufacturing dynamos, motors and other electrical appliances" will not confer the right to supply electricity. The same may be said of "selling or renting dyna nos, motors and other electrical appliances for furnishing lights and power, and for other purposes." Then, if formed for "operating dynamos, motors and other electrical appliances for furnishing lights and power and for other purposes," does this confer the right to supply electricity. “Operating" means "acting, exerting, agency or power." Whether we read these articles in the manner we have read them or in the natural and ordinary way, we are still confronted with the phrase: "and other electrical appliances," which plainly relates to the main objects inentioned in the charter. In our judgment the corporation was formed, as the lan 4 LB 19 |