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Ampt v. City of Cincinnati,

missioners for their approval, may approve or reject the same or any separable part thereof-i. e., the tax commission may exercise a veto power-but they have no power to modify the power to levy taxes being one of the legislative functions of the common council. But that under section 1, 2690h, Rev. Stat., when common council has apportioned or distributed to the various departments the money raised by the tax levy, and that has been sent to the board of tax commissioners, they mayin the words of the statute-approve, amend or reject, as they shall determine. In other words, they may approve, increase or decrease any of the funds, as they see fit. Hence, their action in this case was proper.

MUNICIPAL EXPENDITURES.

21 B. 216 [Hamilton Common Pleas.)

Amir v. CINCINNATI (CITY). Common council has no anthority to make expenditures from any except the con

tingent fund unless by concurrent action with the tax commissioners. Sec. 2690h, Rev. Stat.

Where common council had by ordinance, without referring the matter to the tax commissioners, authorized the expenditure of $2,000 for repairing the wharf, the plaintiff sought to enjoin this expenditure. The court held that this action of common council was illegal under section 2690h, Rev. Stat., which provides that no expenditure shall be wade unless by the concurrent action of the common council and the tax commissioners, except from the contingent fund, and the expenditure in this case was not from the contingent fund. The expenditure must, therefore, be enjoined.

ESTABLISHING GRADE OF CURB.

21 B. 216 (Hamilton Common Pleas Court.)

LIPPLEMAN v. CINCINNATI (City). Establishing a grade is one of the legislative acts of the common council and can

not be delegated to an engineer. MAXWELL, J.

The common council of Cincinnati had passed an ordinance fixing the grade of the north curb of Atkinson street, extending east and west between Clifton avenue and Moerlein avenue, at 1.64 in 100, and had provided that the south curb should be as near like the north curb as practicable. The city engineer established the south curb upon a different grade from the north curb, and the plaintiff complained that in consequence of the action of the engineer a heavy fill would be made against a brick house which he had built fronting on Clifton avenue, with the side extending back ninety feet along the south side of Atkinson street. The court held that the establishing of a grade was one of the legislative acts of common council and could not be delegated to an engineer. By the state law and by a general ordinance of the city, passed May 21, 1869 (Merrill's Ordinances, 480), it is necessary, where the grade is the same on both curbs, that the ordinance shall so declare, and where one curb differs from the other, a grade must be established for by each curb, both in the same ordinance. So in this case the south curb must either

Hamilton Common Pleas.

be established by the engineer on the same grade as the north curb, or council must pass a new ordinance definitely fixing the grade of each curb.

21 B. 244 ORDNANCES FOR STREET MPROVEMENTS.

(Hamilton Common Pleas, 1889.)

TRADEMACHER V. CINCINNATI (City). 1. In appropriating land for a street, a preliminary resolution notifying assessment

payers is not necessary, as in making the street. 2. If a corner of a lot is cut of by appropriation to widen the street at a bend, the

cost cannot be assessed lengthwise. MAXWELL, J.

After the city had condemned a strip of ground ten feet in width, for the purpose of widening Burns street, and had assessed the cost of the land, and the cost of the condemnation proceeding upon the abutting property, the plaintiff applied for an injunction to restrain the collection of the assessment upon three grounds. First, because a portion of his property was being assessed "lengthwise," second, because 2 per cent. of the amount of the assessment had not not been deducted and charged to the city, and third, because the proceedings in reference to the assessment were irregular. The court held that the first point was well taken, as decided by the Supreme Court in the recent case of Seasongood v. Cincinnati; that the second point was well taken under sections 2273 and 2275 Rev. Stat.; but the third point was not well taken, as under sec. 2263, Rev. Stat., a distinction was made between an "appropriation or acquisition” and an "improvement,” and because it had been decided in Krumberg v. Cincinnati, 29 Ohio St., 69, that in assessing the cost and expense of appropriating land it was not necessary to take the same steps, provided in sec. 2304 et seq., Rev. Stat., as is required in improving or making a street.

21 B. 337

HUSBAND AND WIFE.
(Hamilton Common Pleas Court]

STATE OF OHIO V. PAYTON.
Under sec. 7284, Rev. Stat., husband or wife may testify in favor of each other in

criminal cases; hence the wife may testify though no third person was present. Construction of the act of 1889. 86 0. Lo, 161. BUCHWALTER, J.

The wife of the defendant was introduced as a witness to testify that Payton was in bed with her during the entire night on which the burglarly is alleged to have taken place; and, after a lengthy argument on the construction to be put on the statute, the court decided to allow Mrs. Payton to testify.

Heretofore neither husband nor wife could testify in criminal cases for or against the other, except in cases of personal violence of one to

t This judgment was affirmed by the Supreme Court April 26, 1892, on authority of Caldwell v. Carthage, 49 O. S., 334. No further report.

State v. Payton.

the other, and then one might take the stand against the other. The new law provides that the husband or wife may testify in favor of the other in a criminal case, provided that neither shall testify to any act done or word said by the other unless it was done in the known pre se ice or hearing of a third person competent to testify, and provided that the mere presence or whereabouts of either shall not be construed to be an act under this section.

The court held that the first clause of the act opens the door for testimony of either husband or wife generally; that the second clause is a restriction on the first, and that the last is an exception to the restriction. Under this construction a husband or wife can testify to the mere whereabouts or presence of the other, even though no one else were present. Assistant prosecuting Attorney Littleford contended in his argument that it was to prevent this very thing the last clause of the statute was added. The prisoner was acquitted.

21 B. 864

PROSECUTING ATTORNEYS.

(Hamilton Common Pleas.] STATE EX REL SCHWARTZ v. ZUMSTEIN ET AL. The power of the prosecuting attorney to bring suits is limited to that conferred

by secs. 263, 532, 746, 1133, 1273, 1277, 4163, 4639, 6762, 6059 and 7183, Rev. Stat., nope of which authorize him to bring an action to recover money illegally paid to an ex-member and a present member of the board of control for alleged

expenses. MAXWELL, J.

In action brought in the court of common pleas of Hamilton county, in the name of the state of Ohio by the prosecuting attorney of the county, against the individuals composing the board of county commissioners and the individuals composing the board of control-except two who had opposed the action of the other members of the board—and the county auditor, to recover the sums of $500 and $100, paid respectively to an ex-member and a present member of the board of control for alleged expenses, on the ground that the payment of such sums was illegal and without authority, the court held, that even if the money was illegally paid as claimed, the prosecuting attorney had no power to maintain an action to recover, his power to bring suits being limited by statute, and found in secs. 203, 532, 746, 1133, 1273, 1277, 4163, 4639, 6762 6059 and 7183, Rev. Stats., none of which give any power to bring such au action as the present one.

INDEX.

558

or

ABATEMENT-

Under the code, formal pleas
of abatement are probably abol-
ished, but they may be alleged in
the answer as a defense, and a fail-
ure to make such defense waives the
objection of a non-joinder of the
other joint contractor. Smith v.
Smith.

494
ACTIONS

I. An action is a judicial
proceeding for the prevention of re-
dress of a wrong. Clark v. Eddy.

539
2. A right of action is the
right which, upon the commission
of a wrong, ipso facto arises from
the law of remedy, to the injured
party, of redressing the wrong done
him, by a suit against the wrong-
doer.

Ib.
3. A cause of action in per-
sonam is the wrong done or threat-
ened, which gives to a party injured,

whose legal rights otherwise
would be invaded, the right, by an
action, to redress the one or prevent
the other.

gives the auditor the power to hear
evidence and determine the question
of omissions in tax returns does not
provide for an appeal from his de-
cision by the person who feels ago
grieved thereby. Treasurer, etc. v.

Walker.
ARRESTS-

An officer has no right to in-
vade private premises to make an
arrest without a warrant in cases of
a

misdemeanor. Krusemeier v.
Newman.

656
ASSESSMENTS-

1. Until the council deter-
mines in advance, under sec. 2264,
what part of the cost is to be as-
sessed, it can not exercise the power
to assess. Knorr v. Cincinnati. 497

2. This is a condition prece-
dent, and if an item of cost is ex-
cluded from the determination, an
assessme! including it, is to that
extent invalid.

Ib.
3. Such item is to be deemed
excluded by the council if it is not
included in the estimate under sec.
2193, reported to the council by the
board of public affairs, and the
council adopts the resolution
ported by such board, with its esti-
mate attached.

Ib.
4. The estimate required by
secs. 2213, 2214, is only an estimate
of the cost of construction, while
that provided for by sec. 2193 is an
estimate of the amount to be
sessed, which may include any or all
the items mentioned in sec. 2284.

Ib.
5. The estimate of cost of
street improvement transmitted to
council of a municipal corporation,
under sec. 2214. does not fix the
limit of the amount of the assess-
ment to be made upon the abutting
property

for

such improvement.
Ryan v. Cincinnati.

Ib.
4. Generally the locus of a
cause of action is the place where
the wrong, which constitutes it, is
done or threatened, if that be also
the jurisdiction in which, when it
arose the wrongdoer could be sued.

Ib.
5. By the code of civil pro-
cedure, a suit in equity, like an ac-
tion at law, is made a civil action.
Morrison v. Martin.

738
AGENCY -

A contract employing an in-
surance agent fixing no term, the
compensation to be 25 per cent. on
all first premiums collected by them
and 10 per cent. for each year for
four years on the subsequent or gen-
eral premium thereon; Held, that
after the termination of the agency
by the company the agent was not
entitled to such commissions on se-
newals. Trimble v. Insurance Co.

533
APPEALS-

Section 2782 R. S., which

6. Such estimates is not in-
tended to include any items of cost
or expense other than such as may
be the subject of contract under sec.
2215.

Ib.

re-

as-

403

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