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.

[Hamilton Common Pleas.]

AMPT V. CINCINNATI (CITY).

21 B. 216

Common council has no anthority to make expenditures from any except the contingent 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 made 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.

[Hamilton Common Pleas Court.] LIPPLEMAN V. CINCINNATI (CITY).

21 B. 216

Establishing a grade is one of the legislative acts of the common council and cannot 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 O. L., 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

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 prose 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. 364

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., none 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 $400, 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. 263, 532, 746, 1133, 1273, 1277, 4163, 4639, 6762 6059 and 7183, Rev. Stats., none of which give any power to bring such an action as the present one.

INDEX.