THE MUNICIPAL CODE OF OHIO INCLUDING THE ACT OF OCTOBER 22 1902 WITH ALL AMENDMENTS AND SUPPLEMENTS THERETO AND ALL STAT- UTES RELATING TO MUNICIPAL CORPO- RATIONS TOGETHER WITH COMPLETE ANNOTATIONS OF DECISIONS AND ALL NECESSARY FORMS BY WADE H. ELLIS, LL.D. Attorney General of Ohio, Professor of Law Ohio State Unhrersity THIRD EDITION REVISED BY CHALLEN B. ELLIS Of the Cincinnati Bar CINCINNATI THE W. H. ANDERSON CO. LAW BOOK PUBLISHERS 1907 C"1ERAL COPYRIGHT 1905 THE W. H. ANDERSON 00, Cincinnati, O COPYRIGHT 1906 THE W. H. ANDERSON" OO, Cincinnati, O. PREFACE TO THIRD EDITION In this edition of the Ohio Municipal Code, there are con- tained all the changes in and additions to the municipal code proper and the related statutes, made by the General Assem- bly at its session in 1906. The forms and orders of procedure have been changed, where necessary, to make them conform to the new laws. The annotations have been revised and brought up to date by the addition of all the decisions relating to mu- nicipal law rendered since the publication of the last edition, and many of the notes have been entirely rewritten. Cincinnati, Ohio, November 1, 1906. 154939 PREFACE TO FIRST EDITION. The purpose of this publication is to present in convenient form all the laws of Ohio affecting municipal corporations, to- gether with annotations of the decisions thereon, compiled to April lst> 1903, and all forms of ordinances, resolutions and procedure in conformity with the statutes as they exist since the enactment of the new municipal code. Part I. consists of the new code proper, and all sections of the Revised Statutes re-enacted by it, incorporated at the places where such statutes should appear if made a part of the code itself. The sections of the new code are double leaded and those of the old statutes are set in solid type. The sectional numbers at the top of each page in Part I refer to the sections of the new code. Part II. consists of all related statutes on the subject of municipal corporations not incorporated in the new code, nor expressly repealed by it. Many of these are doubtless repealed by implication; many others are unconstitutional, being of special application, but they are nevertheless contained herein in order that the entire body of statutes affecting the munici- palities of the state may be found together. The desirability of presenting this work for such service as it may render to the new city and village officials and to the bar of the state, at or before the time when the new municipal code goes into effect, has necessitated much haste in its preparation, and this fact is relied upon to secure a pardon for errors and imperfections. In compiling this work the editor has been assisted by Mr. Ellis G. Kinkead and Mr. Challen B. Ellis, of the Cincinnati bar. / ABBREVIATIONS. B , # Weekly Law Bulletin, Ohio Law Bulletin. C. C Ohio Circuit Court Reports. C. C. (N. S.) Ohio Circuit Court Reports (New Series) . C. D Ohio Circuit Decisions. Clev Cleveland Law Reporter. C. S. C. R Cincinnati Superior Court Reporter. D Disney's Cincinnati Superior Court Reports. Dayton Dayton Term Reports Digested. Dec Ohio Decisions Nisi Prius. Dec. (Re) Ohio Decisions (Reprint). Fed Federal Reporter. H. . Handy's Cincinnati Superior Court Reports. Gaz Weekly Law Gazette. Goebel GoebePs Probate Reports. N. P Ohio Nisi Prius Reports. N. P. (N. S.) Ohio Nisi Prius Reports (New Series) . O Ohio Reports. O. F. D Ohio Federal Decisions. O. L. R Ohio Law Reporter. 0. S Ohio State Reports. 0. S. C. D Ohio Supreme Court Decisions, Unreported. Rec American Law Record. Tappan Tappan's Reports. U. S United States Reports. W. L. J Western Law Journal. W. L. M Western Law Monthly. Wright Wright's Ohio Supreme Court Reports. / TABLE OF CONTENTS. PAGE INTRODUCTION xi PART I. THE NEW CODE PROPER with sections of the Revised Statutes re-enacted therein. I. CLASSIFICATION OF MUNICIPALITIES 1 1. General provisions 1 2. Creation and incorporation of villages 9 3. Annexation and detachment of territory 25 (Subdivision 1.) Annexation of territory on appli- cation of its citizens 25 (Subdivision 2.) Annexation of territory on appli- cation of a corporation 31 (Subdivision 3.) Annexation of one municipal cor- poration to another 35 (Subdivision 4.) Detachment of territory from mu- nicipal corporations 40 II. POWERS OF MUNICIPALITIES 43 1. General powers 43 ( a ) Enumeration of general powers 44 ( 6 ) Public peace 64 (c) Nuisances 65 (d) Cemeteries 67 (e) Licenses 73 2. Special powers •• 80 (First) Appropriation of property 80 (Second) Sale or lease of property 103 (Third) Streets and their use 112 (a) Control of streets 112 ( b ) Dedication of streets 127 (c) Vacation of streets by council 130 (d) Vacation of streets by court 134 (e) Labor upon streets 136 (f) Street railways 142 (Fourth) Taxation 157 V VI CONTENTS. II. POWERS OF MUNICIPALITIES — Continued. page (a) Levy of taxes; restrictions 157 ( 6 ) Tax commission 178 (Fifth) Assessments 179 (a) Assessments in general 179 ( 6 ) Damages to abutting property 207 (c) Improvement contracts 221 (d) Improvements on petition 222 (e) Assessments od municipal property 229 (f) Second establishment of grade 230 (9) Sprinkling and cleaning 231 (h) Hearing on assessments by benefits 233 (i) Sidewalks, curbing and gutters 236 (/ ) Sewers 244 (k) Miscellaneous provisions 258 (Sixth ) Power to borrow money 274 (a) General provisions 274 ( 6 ) Longworth bond act 287 (Seventh) Sinking fund 297 III. ORGANIZATION OF CITIES 303 1. Legislative 303 2. Executive 328 (a) Chief officers 330 Mayor 330 President of council 332 Auditor 333 Treasurer 337 Solicitor 340 (6) Department of public service 350 ( 1 ) General administrative powers 350 ( 2 ) Houses of refuge 352 (3) City prisons and station houses 362 (4) Workhouses 363 (5) Hospitals 365 (6) Infirmaries 365 ( 7 ) Platting commission 367 (8) Contracts by the Board of Public Service 370 * (9) Employes in department of public service 382 (o) Department of public safety 383 ( 1 ) Organization and general powers 383 (2) Police, fire and sanitary police pen- sions funds 392 (3) Merit system in police and fire de- partments 404 {d) Board of health 417 3. Judicial 441 IV. ORGANIZATION OF VILLAGES 444 1. Legislative ' 444 CONTENTS. VU IV. ORGANIZATION OF VILLAGES — Continued. page 2. Executive / . . 446 (a) Chief officers „ 446 Mayor 448 Clerk 451 Treasurer , 455 Street commissioner 455 ( b ) Care of parks and institutions 456 (c) Trustees of public affairs 457 (d) Police and fire departments 469 3. Judicial 475 V. MISCELLANEOUS PROVISIONS -. 477 1. Saving of rights under previous laws 477 2. Certain acts for pending improvements 481 3. Municipal universities 485 4. Municipal libraries and trustees 491 5. Tax authorized for use of art gallery 492 6. Tax authorized for use of hospital 492a 7. Parks and hospitals founded by gift 493 VI. ELECTION, APPOINTMENT AND REMOVAL OF OF- • FICERS ' ; 501 PART II. RELATED STATUTES not incorporated in, nor expressly repealed by, the new code. I. OFFICERS 531 1. General provisions 531 2. Provisions as to certain officers 539b Council 539b Assessors 540 County treasurer having charge of city and school funds 541 Mayor 542 Clerk 544 Treasurer 544 Auditor 547 Solicitor 548 Street commissioner, etc 550 Sealer of weights and measures 550 Fire and police officers 553 3. Election and removal of officers 556 4. Uniform accounting by officers 560 5. Provision as to contracts by officers 564 II. JUDICIAL 566 1. Police court 566 (a) Jurisdiction of court and judge 566 (b) Clerk of police court 576 Viii CONTENTS. II. JUDICIAL — Continued. page (c) Prosecuting attorney 578 (d) Police judicial districts in Cleveland 579 2. Police power of mayor, police justice, etc 580 (a) In cities except of the first class 580 ( b ) In villages 582 (c) In hamlets 585 (d) Further provisions concerning the powers of the mayor and other officers in cities and villages in matters of a criminal or police nature 586 (e) Jurisdiction in cases of food adulteration, etc. 588 3. Fines and imprisonment 590 4. Bills of exceptions 592 III. BOARD OF HEALTH 593 IV. CHARITABLE AND REFORMATORY INSTITUTIONS; SOLDIERS' RELIEF 605 1. General provisions 605 2. Workhouses 611 General provisions 611 Joint city and county workhouse in Muskingum county 616 Agreement for use of workhouse 624 3. Hospitals 626 4. Infirmaries 633 5. Children's homes 636 6. Soldiers' relief 639 V. WATER WORKS 644 Cincinnati Water Works Act , 646 VI. LIGHTING AND WATER COMPANIES; MUNICIPAL LIGHTING PLANTS 656 VII. GAS AND WATER COMPANIES 668 VIII. LIGHTING OF RAILWAYS AND BRIDGES 674 IX. STEAM RAILROADS IN MUNICIPAL LIMITS 679 1. General regulations 679 2. Abolishing grade crossings 691 3. Union depot companies 695 4. Railroads owned by municipalities 696 X. STREET RAILWAYS IN MUNICIPAL LIMITS; and here- in change of route law, inclined plane railways and interurban railway terminals 698 XI. MAGNETIC TELEGRAPH COMPANIES; WIRES AND SUBWAYS 714 XII. MARKET HOUSES 721 1. Market house companies 721 2. Cleveland market house commission 722 XIII. CEMETERIES 1 724 XIV. PUBLIC BUILDINGS AND INSPECTION OF BUILDINGS 732 1. Cleveland city hall commission 732 2. Cleveland group plan for public buildings 737 XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. CONTENTS. IX PUBLIC BUILDINGS, ETC.— Continued. y page 3. Joint village and township building '. . . 737a 4. Leasing public halls 738 5. Inspection of buildings 739 PLATS ■ • 744 1. Original plats 744 2. Vacating plats 748 3. Kevision of plats 751 4. Lost or destroyed records 753 STREETS 755 1. Streets on state lands 755 2. County bridges and roads in municipal limits 755 3. Bridge, turnpike and avenue companies 763 4. Sewerage companies 768 5. County ditches in municipal limits 769 6. Construction and repair of viaducts 770 7. Sprinkling streets 772 8. Oiling of streets 772a 9. Nuisances in streets 772d 10. Miscellaneous provisions as to assessments 773 11. Construction of sidewalks in villages 774 INJURIES FROM EXCAVATIONS 775 LIBRARIES 777 1. In certain cities and villages 777 2. Appropriation of fines to law libraries 781 TAXATION AND EQUALIZATION 784 1. Taxation 784 2. Property exempt from taxation 787 3. Equalization of taxes 789 Board of review for municipal corporations 789 Annual city board of equalization 791 Duties and powers of boards 799 Decennial city board 801 INTOXICATING LIQUORS 802 1. Distribution of Dow tax 802 2. Beal local option law 803 3. Residence district option law 809 4. Dance halls, etc 809i LICENSES 810 HAMLETS 821 1. Trustees of hamlets 821 2. General powers of hamlets 823 3. Other officers of hamlets 824 4. Taxation in hamlets . 826 MISCELLANEOUS STATUTES 827 1. Certain general provisions 827 2. Advertising 828 3. Boundaries of townships changed 830 4. Briers and Canada thistles 831 5. Cigarette tax distribution 834 6. Curative act 835 7. Flags on buildings 835 X CONTENTS. XXIII. MISCELLANEOUS STATUTES— Continued. page 8. Militia; mobs, riots, etc 836 9. Museum and park companies 837 10. Name of municipality; how changed 838 11. Pounds 839 12. Societies to prevent cruelty 841a 13. Soldiers' monuments 842 14. Timepiece on public building 844 15. Trusts for educational purposes 844 16. Voting on submitted questions 845 APPENDIX 847 I. Governor's message 847 II. Population of municipal corporations of Ohio 850 TABLE OF CASES 869 TABLE OP SECTIONS OF REVISED STATUTES, AND ACTS.. 865 INDEX 891 ELLIS'S ANNOTATED OHIO MUNICIPAL CODE. INTRODUCTION. SCOPE OF THE NEW CODE, WITH A STATEMENT OF THE CAUSES AND OCCASION OF ITS ENACTMENT. INTRODUCTION The new municipal code of Ohio, passed by the General Assembly in extraordinary session on October 22, 1902, owes its origin to two sources: First, the agitation for a uniform government for the cities and villages of the state, begun by the Ohio State Board of Commerce, participated in by the State Bar Association and other organizations in 1898, and resulting in the passage of an act by the Seventy-third General Assembly authorizing the appointment of a municipal code commission; second, the decisions of the Supreme Court in June, 1902, de- claring unconstitutional the then existing system of classifi- cation of municipalities as it had grown up during half a century, and thus at one stroke shattering the foundations upon which rested the special charters of nearly every city in the state. These two influences, at once direct and potent, may well be termed the proximate cause for the passage of the new munici- pal code. The bar of the state and many eminent judges had long been of the opinion that the classification of municipalities in Ohio, which had developed under the constitution of 1851, was a palpable evasion of that constitution, if not a violation of its express language. They believed that the intricate system which had so expanded as to permit, under the guise of classifi- cation, special legislation for particular cities, not only offended Section 26 of Article II, which declares that all laws of a general nature shall have uniform operation throughout the state, and Section 1 of Article XIII, which forbids the legislature to pass any special act conferring corporate powers, but violated Sec- tion 6 of Article XIII, which ordains that the General As- xi Xii INTRODUCTION. sembly shall provide for the organization of cities and incorpo- rated villages by general laws. Constitutional limitations are seldom invoked to determine moot questions, or to allay the apprehension of remote evils. It is only when abuses become patent and oppressive that au- thority is sought to destroy them. Special legislation in Ohio would probably never have provoked that construction of the organic law of the state, which finally accomplished the over- throw of such legislation, if the power, many times sanctioned by the Supreme Court during the period of fifty years follow- ing the constitution of 1851, had been reasonably and mod- erately exercised. But every succeeding session of the General Assembly witnessed new refinements in the art of isolating municipal corporations for the purpose of controlling their affairs by special laws. Fourteen grades and classes of cities and villages had been created, and nine of these contained each but one city. The result was that every municipality in the state of any considerable size, was governed by a special act. The most trifling differences in population, or characteristics, were made to justify new classifications. When the number of classes and grades within them became so confusing as to discourage further amplification, particular cities were pointed out by such differentiating characteristics as that they contained a navigable stream, or were on the west side of a river, or embraced within their limits a park of a certain name, or offered other absurd distinctions, and laws were solemnly en- acted conferring corporate powers upon those municipalities alone, and even with respect to matters far removed from the trivial peculiarity which served to point out the recipient of the power. More than this, the legislature, by an express enactment, in one instance, at least, evinced a determination to prevent the advancement of municipalities from one grade to another, under the operation of the rule of population, which the Supreme Court had sustained. In Section 1546 of the Kevised Statutes, there was created a fourth grade of the first class of cities, and it was provided that " cities of the second class which hereafter become cities of the first class " should INTRODUCTION. XI J 1 constitute the fourth grade of said latter class. There was never any city of the fourth grade of the first class, and the only effect of the establishment of such a grade was to prevent cities of the second class from assuming the same form of government as other cities immediately above them, when they reached the same population. The confusion of laws thus be- came so bewildering that it was a task almost impossible of accomplishment to discover the rank or grade of particular cities. 1 In several cases this was the sole question before the Supreme Court. In State ex rel. v. Wall, 47 O. S. 499, the opinion begins as follows : " By the Court. After a careful consideration of the statutes regulating the organization of municipal corporations in this state, we are convinced that Columbus is a city of the first grade, second class." In Hayes & Sons v. Cleveland, 55 O. S. 117, the entire syllabus is as follows : " The city of Cleveland is a city of the second grade, first class." In view of the established rule of the Ohio Su- preme Court that the syllabus, only, contains the propositions decided, the waste of time thus required to find the object upon which an act is to operate, which might better be devoted to construing the act, is itself a sufficient condemnation of the intricate system of classification that had grown up in this state. The evils of such classification became more real as its pur- pose became more candid. The legislature was beginning whol- ly to usurp the duties of local councils. Home rule was being completely destroyed. The General Assembly determined for Cleveland, Cincinnati, Columbus, Toledo, Dayton and nearly every other city in the state, as well as for particular villages of even the smallest population, what officers they should elect, what salaries they should pay them, what parks, streets and hospitals they should build or improve, what their tax limit should be, what bonds they should issue and what powers each and every department of the municipal government should i See address, " The Municipal Situation in Ohio," read before the League of American Municipalities, at Grand Kapids, Mich., August 28, 1902, by Mr. William B. Doyle, of Akron, and published in 47 Ohio Law Bulletin, 739. x iv INTKODUCTION. possess. Notes of warning had occasionally been sounded by the courts, but the long line of decisions upholding classifica- tion seemed to justify the sense of security displayed by the advocates of special laws in each succeeding session of the legislature. At last the protest of those who had long contended against such legislation took a concrete form. A number of influential commercial bodies of the- state, as well as various organizations devoted to the cause of good government, took up the work of reform. While not appreciating so clearly the unconstitutionality of special legislation, they fully concurred with the bar in the opinion of its evil consequences ; and it would be surprising, indeed, if a thing which the lawyers generally agreed was unconstitutional and the people generally agreed was wrong, should long survive such an agreement. As a result of this agitation, led by* the State Board of Com- merce, there was passed, on April 25, 1898, " an act to authorize the governor to appoint a commission to revise the municipal code of the state, and making appropriations therefor." (93 O. L. 302.) This act provided that the governor should ap- point two persons of different political parties who should constitute " the Municipal Code Commission," and whose duty it was made to prepare a bill for the reorganization of cities and villages in Ohio, uniform in operation throughout the state, and separating the legislative and executive departments of such municipalities. The act further provided that the commission should prepare the proposed measure in such form that it could be acted upon and adopted by the General Assem- bly, and should also prepare an explanation and analysis there- of, which, together with the bill, should be repv rted to the governor prior to the convening of the next succeeding legis- lature. The Governor was authorized to submit such bill to the General Assembly with such recommendations as he might deem proper. Governor Asa S. Bushnell appointed as mem- bers of this commission Judge David F. Pugh, of Columbus, and Mr. Edward Kibler, of Newark. This commission pre- pared a bill which became known as the Pugh-Kibler code, and which was very generally discussed throughout the state. INTRODUCTION. XV The chief features of the bill as originally drafted were as follows: It divided all municipalities into cities and villages, making cities of those having 3,000 or more inhabitants, and villages of the remainder. It provided for cities that the mayor, treasurer, president and members of council, police judge and clerk of the police court should be elected by the people, and that a department of accounts, department of law, department of public safety and department of public improve- ments, should each be managed by a single officer to be appoint- ed by the mayor. In villages the general form of government previouelv existing was not in any essential respects modified. The merit system of appointments to the public service in all cities of the state was established, to be administered by a state commission appointed by the governor. A requirement was made for non-partisan ballots only, in all municipal elections; and municipal ownership of public service utilities, including street railway lines and telephone systems, was authorized. Nearly two years were spent in the preparation of this bill, and it contained 1,509 sections, adopting the numbers in Bates' Re- vised Statutes. The State Bar Association, at its meeting in the summer of 1900, appointed a committee to investigate the merits of the Pugh-Kibler code and to report to the next annual meeting its recommendations thereon, eliminating those features which provided for the non-partisan ballot and for municipal ownership of public utilities. This committee con- sisted of Messrs. Aaron A. Ferris, of Cincinnati, chairman; John W. Warrington and Harlan Cleveland, of Cincinnati; James R. Garfield, of Cleveland, and Charles T. Lewis, of Toledo. The committee made a report to the succeeding an- nual meeting of the Bar Association in 1901, and the bill, with some changes, was endorsed by the association, the committee being directed to promote its passage through the succeeding legislature. This bill, in the meantime, had been introduced in the 74th General Assembly in 1900, — and failed of passage. It was now introduced in a revised and shortened form at the regular session of the 75th General Assembly in 1902 and again failed of passage. XVI INTRODUCTION. The hopes of the advocates of uniform municipal government seemed now indefinitely deferred. 'Not all these favored the particular plan proposed by the Pugh-Kibler bill, but they saw in the consideration of that bill, the prospect of ultimate relief from the abuses of special legislation. It was at this time, most opportune of all, that the ranks of those who had long contended against municipal classification, received the powerful accession of a united Supreme Court. For several years this court had been divided, Judges Shauck and Burket invariably dissenting from all decisions upholding classifica- tion, and the majority of the court, with the exception of Judge Minshall, in State ex rel. Attorney-General v. Ratterman, 58 O. S. 731, contenting themselves with following previous de- cisions without approval. The position of the court at this time is well stated by Judge Shauck in State ex rel. Sheets v. Cowles, 64 O. S., at page 179 : "It is quite true that many appeals for relief from such legislation have been made to this court, based on the claim that these beneficent provisions of the constitution should be put into practical operation. It is equally true that the doc- trine of classification, or such isolation under the form of classification, has been adhered to. The reports show that a majority of the members of the court have regarded themselves as bound to pursue a course upon which our predecessors in- advertently started. * * * These observations are made here only to show that a doctrine so completely discredited should not be extended. The present case is to be decided in deference to that doctrine and to the decisions upon which it rests. Some members of the court seem willing to have it understood that they really entertain such deference. Others of us are willing to assume it for the purposes of this case, as it will permit us to reach what we conceive to be the correct conclusion with respect to this legislation." The same member of the court who wrote this opinion, and who now, at last, was enabled to announce, with the approval of an undivided court, that the doctrine of classification was discredited in Ohio, and would, at leasts never be extended, was INTRODUCTION. XV11 he who as a circuit judge, nearly eight years earlier, had pro- nounced as earnest and convincing a condemnation of special laws as any to be found in the books. In Carr v. The Village of West Carrolton, 8 C. C. 1, Judge Shauck had under consid- eration an act authorizing " any incorporated village in the state of Ohio, which at the last federal census had, or at any subsequent federal census may have, a population of not less than 355, nor more than 365, to issue bonds," etc. At page 8 the Court says: " Counsel for the defendants do not present any view of these constitutional provisions, and of this statute, which would, in their opinion, make them harmonious. The serious conten- tion is that the authoritative decisions of the Supreme Court upon acts classifying municipalities require us to adjudge that the act is valid, though it be void. It is true that under the pretence of classification, all the large cities of the state have been isolated ; that under cover of such ' classification ' numer- ous special acts have been passed, each conferring corporate powers upon a single municipality, and that by repeated de- cisions, the Supreme Court has held such legislation to be valid. By this time, surely, we are inured to following these decisions as to the acts of classification which they uphold. But there are substantial reasons why we should not attempt to apply the principles of those decisions to this act. Our inability to com- prehend those principles is so manifest to ourselves that to invoke them as authority for upholding an act that is in direct conflict with the plain provisions of the constitution would be mock deference. The decisions referred to do not stand well in the estimation of the Supreme Court itself. It is con- cerning the classification upheld by them that it is said in State ex rel. v. Smith, 48 O. S. 211 : i It must be conceded that the method of classifying cities for the purpose of legisla- tion has been carried to the very verge of constitutional au- thority. Many conscientious minds believe that it has been exceeded.' Much more vigorous language would be required to express the opinion of that classification that is generally held by the bench and bar of the state, and by many other XV111 INTRODUCTION. intelligent citizens who seek better municipal government. It is well, if not widely known, that most of the eminent judges who participated in the decisions upholding such classification lived to regret the decisions and deplore the results which followed them." To the point that these decisions upholding classification did not " stand well " in the estimation of the Supreme Court itself, there might have been cited the still earlier case of State v. Wall, 47 O. S., where the Court say, at page 500 : " Grave doubts may well be entertained as to the constitu- tionality of this method of classifying cities for the purpose of general legislation." But following the emphatic position taken in the Cowles case, supra, which was decided in February, 1901, these " grave doubts " came rapidly to be strong convictions. Special acts, one after another, with ominous silence, were declared uncon- stitutional. 2 These unreported cases were followed by the decisions of Piatt v. Craig et al, 66 O. S. 75, decided March 18, 1902, holding unconstitutional a special act authorizing the city of Toledo to build bridges over a navigable river, and Cincinnati v. Trustees of Hospital, 66 O. S. 440, decided June 24, 1902, declaring invalid a special law relating to the Cin- cinnati Hospital. The 75th General Assembly was in regular session when some of these decisions were made, and their effect was to induce a caution in legislation which defeated many special acts, and insured the passage of several important measures giving general and uniform powers to the municipalities of the state. Among the most notable of these was the act providing boards of review for the equalization of tax valuations in all municipalities (95 O. L. 481) ; the codification of the health laws of the state (95 O. L. 421) ; the act for the abolishment of grade crossings (95 O. L. 356) ; the act providing for police and firemen's pension funds (95 O. L. 223), and the " Long- worth bond act " providing a uniform power and method in the 2 State ex rel. v. Ketter, 45 B. 443 ; Fenner v. Cincinnati, 46 B. 188 ; Cincinnati v. Willen, 66 O. S. 633; Cincinnati v. Alter, 66 O. S. 669 and others. INTRODUCTION. XIX issue of bonds for public improvements by all municipalities (95 O. L. 318) ; the last-named act being subjected to the test of constitutionality and held valid in Guckenberger v. Hender- son, 66 O. S. 692. Then came the sweeping decisions of June, 1902, which finally overthrew all classification of municipalities in this state as it had developed since the adoption of the last con- stitution. In the first of these cases (State ex rel. Knisely v. Jones, 6Q O. S. 453), the constitutionality of an act providing for the reorganization of the board of police commissioners of the city of Toledo, and the appointment of such commis- sioners by the governor, was in question. The act applied to cities of the " third grade of the first class," and at the time of its passage, would have been operative in the one city alone. The tendency of the court was well understood by the eminent counsel who presented this case, and a last, strong effort was made to sustain the act upon the authority of the many former decisions upholding classification, and especially those cases in which acts almost identical in character had been adjudged constitutional. But an appeal to the mistakes of the past availed no longer. In a decision concurred in by every member of the court, except Judge Williams whose illness prevented his participation in any proceedings since the date of his last opinion on April 22, 1902, the court swept away every ves- tige of sham classification in Ohio, and now declared : " In view of the trivial differences in population, and of the nature of the powers conferred, it appears from such examina- tion [of numerous, special acts], that the present classification cannot be regarded as based upon differences in population, or upon any other real or supposed differences in local re- quirements. Its real basis is found in the differing views or interests of those who promote legislation for the different municipalities of the state. An intention to do that which would be violative of the organic law should not be imputed upon mere suspicion. But the body of legislation relating to this subject shows the legislative intent to substitute isola- tion for classification, so that all the municipalities of the XX INTRODUCTION. state which are large enough to attract attention shall be denied the protection intended to be afforded by this section of the constitution." In the Cleveland case (State ex rel. Attorney General v. Beacom ec al, 66 O. S. 491), the act whose constitutionality was questioned was entitled, " an act to provide a more efficient government for cities of the second grade of the first class," (88 O. L. 105). A quo warranto suit was brought against the director of law, the director of public works, the director of police, director of fire service, director of accounts and director of charities and corrections of the city of Cleveland, constitut- ing together the board of control of that city. The sole ground upon which a judgment of ouster was asked was that the de- fendants were assuming to act under a law limited in its operation to cities of the second grade of the first class. The court rendered a judgment of ouster, and in the concluding paragraph of its opinion used these words: " But this is a public action, instituted and conducted solely for the protection of the public against injuries to result from infractions of the Constitution, and while a judgment of ouster must follow our conclusions, we think public considerations will justify such suspension of its execution as will give to those discharging the duties of the other departments of the government of the state an opportunity to take such action as to them may seem best, in view of the condition which the execution of our judgment will create; and this suspension will be until the 2nd of October, 1902." There was here not only another unmistakable announcement that no special acts conferring corporate powers upon munici- palities, as theretofore classified, would be upheld, but a sig- nificant suggestion was made to those discharging the duties of the other departments of the government of the state to take such action as to them might seem best in view of the condition which the execution of this judgment would create. Perhaps, never before has such a condition prevailed in any state as that which suddenly confronted the people of Ohio in the summer of 1902. It was apparent that an extraordinary INTRODUCTION. XXI session of the General Assembly must be called, and some action taken as promptly as possible to establish constitutional gov- ernments for the municipalities of the state. In addition to the chaotic condition of municipal affairs produced by these decisions, another sudden emergency had arisen, calling for immediate action. On the 12th day of May, 1902, the General Assembly had passed an act to amend Section 6710 of the Revised Statutes. The new act became known as " the Royer law." Its purpose was to enlarge the jurisdiction of the Su- preme Court by removing the three hundred-dollar limitation in the amount necessary to be involved for the prosecution of error proceedings in that tribunal, but the result, by a blunder in the act, was to deprive the court of nearly all the appellate jurisdic- tion it had formerly possessed. There was thus a double reason for the calling of the special session. Governor George K. Nash issued his procla- mation on the 22nd day of July, 1902, and called the General Assembly to convene at 3:00 P. M., on August 25th, 1902. In the interim between the issuing of the proclamation and the assembling of the legislature, the Governor began the prepara- tion of a bill providing a uniform government for cities and villages, in accordance with the evident requirements of the constitution, as indicated by the Supreme Court in the Cleve- land and Toledo decisions. He requested Mr. Nicholas Long- worth and Mr. Wade H. Ellis, of Cincinnati, to assist him in this work. The State Bar Association, then in annual session at Put-in-Bay, upon the request of the Governor, passed a resolution providing for the appointment of a committee to confer with the Governor and his assistants in the drafting of the proposed bill, and to review the work before its presentation to the legislature. President Wheeler, of the Bar Association, appointed on that committee Mr. John W. Warrington, of Cincinnati ; Mr. Thomas H. ITogsett, of Cleveland, and Judge E. B. King, of Sandusky. During the progress of the work, the Governor and those engaged in preparing the proposed meas- ure, had the advice and co-operation not only of this committee of the Bar Association, but of the leading members of both XX11 INTRODUCTION. political parties in the General Assembly, as well as Attorney- General Sheets, Mr. Smith W. Bennett, special counsel to the attorney general, and a number of prominent attorneys and city solicitors throughout the state. The bill was submitted to the General Assembly with the Governor's message on August 25th, and became the affirmative recommendation of the chief executive. In effect, the bill was a part of the Governor's message, in accordance with the authority vested in him by Sections 7 and 8 of Article III. of the constitution of Ohio, the first of which requires that the Governor " shall communicate at every session, by message, to the General Assembly, the condition of the state, and recom- mend such measures as he shall deem expedient," and the sec- ond of which empowers him on extraordinary occasions to convene the General Assembly by proclamation, and state to both houses when assembled the purpose for which they have been convened. The bill thus recommended by the Governor was introduced into the Senate by the Hon. Nicholas Longworth, of Hamilton County, and became " Senate Bill No. 1." It was introduced into the House by the Hon. A. G. Comings, of Lorain County, and became " House Bill No. 5." In the Senate it was dis- cussed in committee of the whole, and after various amend- ments proposed by such committee, passed that body. In the House it was referred to a special committee composed of Messrs. Comings, of Lorain County ; Painter, of Wood ; Guer- in, of Erie ; Price, of Athens ; Cole, of Hancock ; Williams, of Hamilton; Metzger, of Stark; Thomas, of Huron; Chapman, of Montgomery; Allen, of Fulton; Silberberg, of Hamilton; Worthington, of Belmont; Denman, of Lucas; Hypes, of Clark ; Willis, of Hardin ; Gear, of Wyandot ; Stage, of Cuya- hoga ; Bracken, of Franklin ; Ainsworth, of Defiance ; Maag, of Mahoning; Huffman, of Butler; Brumbaugh, of Darke, and Sharp, of Fairfield. This committee held public meetings from Wednesday, August 27th, to Thursday, September 10th, and was addressed by students of municipal government from various parts of the state, as well as from other states, by mem- INTRODUCTION. XX111 bers of the State Bar Association committee, by city and vil- lage solicitors, mayors, representatives of councils, boards of health, boards of public improvements, tax commissions, muni- cipal associations, chambers of commerce, and like organiza- tions. The bill, with many amendments effecting important changes in the form of government and in the method of choosing officers, passed the House. The Senate bill as passed having been messaged to the House, the House sent it back with its own bill as an amendment. The Senate refused to concur in the amendments of the House, and returned the bill to the House. The House insisted upon its amendments and asked for the appointment of a conference committee, in accordance with the joint rules of the General Assembly. A conference committee was appointed to adjust the differences between the two houses, and consisted, on the part of the Senate, of Senators Longworth, Harding, Patterson, Archer and Harris, and on the part of the House, of Representatives Comings, Cole, Guer- in, Denman and Sharp. In addition to the members of the conference committee, Lieutenant-Governor Gordon, presiding officer of the Senate, and Hon. W. S. McKinnon, Speaker of the House, were present during the work of the committee. The report of the conference committee was unanimous, was concurred in by both houses, and the bill was passed on Oc- tober 22nd, 1902. 3 It is, perhaps, not beyond the fact to say that the passage of a general law for the organization of municipal governments, and the distribution of their powers, in obedient recognition of s The execution of the judgment of ouster in the Cleveland case, supra, had been suspended until October 2 } 1902, and the new Code not . having passed until October 22, and not providing new governments for the munic- ipalities until the first Monday in May, 1903, it was necessary to further suspend the operation of this judgment. On November 8, 1902, execution was suspended until the further order of the court. 47 Bulletin, 833. In a later case, State ex rel. v. Spellmire et al., 48 B. 42, where the Supreme Court held unconstitutional an act establishing a special school district, Judge Burket, delivering the opinion, suggested that the execution of the judgment could be suspended as in the Cleveland case. " And thereby," he observed, " ' the wind is tempered to the shorn lamb/ " XXIV INTRODUCTION. constitutional command and limitation, signalizes the most important epoch in the history of such governments in this state. Nor does it seem improper to add that the assumption of such a work by the legislature of Ohio must have a large influence in directing attention to the increasing importance of municipal affairs throughout the United States, and must suggest the question of how far the problems of reform may be advanced by the codification of statutes relating to the gov- ernment of cities and villages, and the substitution of one uni- form law for the multiplex system of special charters. The new experiment which Ohio is now to make will be watched with peculiar interest because of the fact that while this state has been a conspicuous sufferer from the ills of special legisla- tion, it has also more than once led the way to an escape from such ills by the unification of municipal laws. More than fifty years ago the legislature of this state passed a municipal corporations' act, the first of its kind in this country. 4 The municipal code of May 3, 1852 (52 O. L. 223), comprising 111 sections, provided for the organization of cities and vil- lages, and divided cities into two classes based upon popula- tion. One hundred and eighty-four acts 5 were passed amend- ing or supplementing this law prior to the adoption of the municipal code of May 7, 1869, (66 O. L. 149). This later code comprised 731 sections, and continued the previous system, of classification, which was not enlarged or modified until the revision of the statutes in 1880. The revision introduced the subdivision of grades into the two classes of cities provided by the codes of 1852 and 1869, and special charters were thus created for the five largest cities of the state. 6 * See article " Municipal Crisis in Ohio/' in Michigan Law Review for February, 1903, by Dr. John A. Fairlie, Professor of Administrative Law in the University of Michigan. 5 See Seifert v. Weidner, 12 C. C., at pages 11 and 12. c See preface to Revised Statutes of 1880, page IX, where it will be ob- served that the revision commissioners were firmly of the opinion that appropriate local legislation could be provided for any municipal corpora- tion, designated by the number of its inhabitants or even by being directly named, and that where corporate power was conferred the constitution was satisfied, however intricate the classification, provided the plan adopted permitted all cities without change of the statute to pass by growth of population from one grade to another. INTRODUCTION. XXV The marvellous growth of urban population in Ohio during the last fifty years has been, perhaps, a more potent factor than all others in accelerating the various movements for municipal reform, in inducing a closer analysis and criticism of the several codes and revisions) heretofore adopted, and particularly in directing a more careful scrutiny of the constitution of 1851, to the end that its provisions might answer the universal appeal for protection against the tyranny of special laws. The modern trend of population toward the cities could not have been fore- told half a century ago, and it is not surprising that a conven- tion assembled to make the organic law for a distinctively agri- cultural state, at a time when the present perplexities of municipal administration were far too remote to provoke con- cern, and when the development of the Middle West presented other issues immediate and insistent, had no committee on municipal corporations, but contented itself with referring the most vital questions affecting city government to the " Commit- tee on Corporations other than banking." 7 In 1850, the total population of Ohio was 1,980,329, and the total population of all incorporated municipalities was 373,828. In other words, more than five times as many people lived in the country as in the cities and villages. In 1900, the total population of Ohio was 4,157,545, and the total population of all cities and villages in the state was 2,412,352. That is to say, consider- ably more than one-half the whole number of inhabitants in the state now live in the municipalities. These figures tell their own story. They show that while the total population of the state has increased during the last fifty years about one hun- dred per cent., the population of the cities and villages has increased about seven hundred per cent. When the constitution- al convention of 1851 met in Cincinnati, that city had a popula- tion of 115,435, which was nearly three times the combined population of Cleveland, Columbus, Dayton and Toledo, and * Section 6 of Art. XTII, ordaining that " the General Assembly shall provide for the organization of cities and incorporated villages by general laws," etc., emanated from this committee. So also did section 1, which forbids the legislature to pass any special act conferring corporate powers. (1 Debates, 260.) XXVI INTRODUCTION. about twice the then total population of what are now, exclud- ing Cincinnati, the ten largest cities in the state. 8 It is small wonder, therefore, that the debates of the con- vention and the assignment of committees do not disclose the question of municipal government as a prime subject of dis- cussion. But the enormous increase in the numerical strength of such corporations during the past fifty years, and the many object lessons in this state of their power for ill when made the buifet of alternating political majorities through a central legislative authority, have stimulated a study of the constitu- tion of 1851, and revealed the fact that the members of that convention had a somewhat clearer vision of the dangers of special laws for the government of municipalities than the advocates of such laws have been willing to believe. In the early days of classification it was denied that Section 1 of Article XIII, had any application whatever to municipal cor- porations. 9 But the fact soon became accepted, and the pub- lished debates of the convention establish it beyond contro- versy. When this section was reported by the committee, de- termined efforts were made to amend it, and some of these for the sole purpose of preventing its application to municipal corporations. After the words, " the General Assembly shall pass no special act conferring corporate powers," it was pro- posed by Mr. Henry Stanbery, then a resident of Columbus, to add these : " except for municipal purposes, or where the objects cannot, in the opinion of the General Assembly, be s The following table, showing the growth of the ten largest cities in the State since 1850, indicates most strikingly the trend of population toward the municipalities: 1850. 1900. Cleveland 17,034 381.768 Cincinnati 115,435 325,902 Toledo 3,829 131.822 Columbus 17,882 125.560 Dayton 10,977 85,333 Youngstown 2,802 44,885 Akron 3,266 42.728 Springfield 5.108 38.253 Canton 2,603 30 667 Hamilton 3.210 23,914 Total 182.146 1.230.832 » State ex rel. Attorney General v. Cincinnati, 20 Ohio State, 18. INTRODUCTION. XXV11 attained under general laws." This was similar to provisions in the constitutions of New York and Wisconsin. 10 A further attempt was made to limit the operation of this section by adding these words, " except for such municipal and charitable purposes, as, in the opinion of the General Assembly, cannot be attained by general laws," n and finally, Mr. William S. Groesbeck, of Cincinnati, proposed an amend- ment simply adding the words, " except for municipal pur- poses." All these amendments were defeated, Mr. Groesbeck's by the close vote of 45 to 43. Then a motion was made to strike out the whole section, which was lost, and the section was adopted as it stands to-day by a vote of 55 to 40. Commenting upon the significance of these proceedings of the Constitutional Convention, the Supreme Court, in a recent case, 12 makes this interesting observation : "The amendment having failed, adjudications upon this subject should not pro- ceed as though it had been adopted." Yet adjudications had so proceeded for a great many years, despite the fact that the court had more than once affirmed the application of this section to municipal corporations. A closer consideration of Section 26, of Article II., ordaining that " all laws of a general nature shall have uniform operation throughout the state," and Section 6, of Article XIII, which requires that " the General As- sembly shall provide for the organization of cities and villages by general laws," etc., further emphasizes the fact that the constitutional convention had immediately in mind the evils of special acts, as well when applied to municipal corporations as when affecting any other subject or interest in the state. And this is made more apparent by a consideration of the public his- tory of the times and the great number of special acts affecting municipal corporations, passed at sessions of the legislature held shortly before the adoption of the present constitution. 13 io Vol. 1, Constitutional Debates, p. 355. See also article on " Special Legislation," 47 Ohio Law Bulletin, p. 673. ii Vol. I., Constitutional Debates, p. 362. 12 Cincinnati vs. Trustees of Hospital, 66 Ohio State, 440, 447. is State ex rel. Knisely et al. v. Jones et al., 66 Ohio State, 453, 489. XXV111 INTRODUCTION. And now when the opportunity came to be rid forever of the bane of classification and establish one uniform law for the government of municipalities, the extraordinary session of the General Assembly of Ohio which Governor Nash had called, was confronted with many diverse plans to meet the emergency, and several bills, differing radically in scope and purpose, were presented, in addition to the one drawn at the instance of the Governor, and which formed the basis of the act finally passed. Many able and conscientious men who had given the subject attention believed that the General Assembly could, without violating the Constitution, empower the cities and villages of the state, each for itself, to determine their several organiza- tions. Others believed that the legislature should simply authorize the holding of local conventions in each municipality, in which the people thereof should determine not only the form of their government, but what powers should be exercised by it, limited only by constitutional restrictions. 14 A third number proposed to continue the classification oi municipalities, but to base the same upon substantial differ- ences in population, and thus, as was believed, avoid the barrier of the Supreme Court. 15 Still others, while not agreeing to any of these propositions, opposed the bill recommended by the governor because they were of the opinion that it divided responsibility for misrule or extravagance by requiring the chief officers to be elected by the people, whereas, in their judg- ment, the sorcalled federal plan, which is generally understood to mean the election of a mayor and council by the people and 14 The contention for either of these views involved affirmance of the proposition that the legislature could delegate to the municipalities the power to set up diverse forms of government and thus to exercise an au- thority which the Supreme Court had held the legislature did not itself possess. See Governor Nash's message, Appendix. On the other hand, it was clear that the General Assembly could provide in detail the organi- zation for all cities and villages. State ex rel. v. Hawkins, 44 O. S. 98, 110. is The result of this contention was the passage of a joint resolution, at the same extraordinary session which passed the new municipal code, submitting to the electors of Ohio at the November election in 1903 a proposed amendment to the constitution, which, if adopted, would empower the legislature to divide the cities of the State into three classes based upon population. See Appendix. INTRODUCTION. XXIX the appointment by the mayor of the heads of all executive departments with power to remove at will, offers the best form of municipal government. The legislature was unwilling to hazard the constitutionality of either the first, second or third of these plans, while a dis- inclination to try an experiment as yet unfamiliar to the great body of the people of the state, 16 as well as a predisposition in favor of existing forms, prevented the adoption of the fourth. The bill which finally passed was not in any large sense a com- promise of conflicting views or measures, yet it differs in many essential respects from the original draft submitted by the gov- ernor, and contains numerous important provisions suggested by other bills presented at the same session. This new municipal code may more properly be called a re- adjustment of existing laws. Its chief purpose is to provide a uniform and constitutional government to be assumed at the earliest practicable moment by all the cities and villages of the state. Its leading features are an adoption of forms and institutions long established in Ohio. For example, the elec- tion directly by the people of the various municipal officers is a custom among the earliest in this state and never departed from except in the instance of special charters for two cities. An administrative board, such as the board of public service tinder the new code, is also one of the oldest institutions in th*3 history of municipal government in Ohio. It was a part of the first code ever enacted, a part of the second, and is to be found in nearly all recent laws providing special governments for the various cities of the state. The General Assembly which passed the new code has been accused of foregoing a favorable op- portunity to engraft upon the statute books an ideal form of municipal government; and while the most impatient criticism has usually come from scholarly citizens of those states which are farthest in the rear of Ohio in municipal advancement, the real answer to such a complaint is found in the fact that the emergen- cy which confronted the extraordinary session demanded prompt action, and it would have been unwise in the face of that is The cities of Cleveland and Columbus alone had such a form of gov- ernment. XXX INTRODUCTION. emergency to long debate academic questions. What was need- ed was a form of government which would permit the munici- palities to continue to exercise their functions; which would allay the uncertainty and disquietude existing all over the state r and provide the foundation upon which a completed structure might be erected, with full deliberation and with the advantage of practical experience. But while the new code is not all that advanced students of city government desire, it is a long step in the right direction. Every departure from existing institutions is in harmony with .the spirit of advancement. The legislative and executive de- parments are separated by a clear line. Responsibility for official misconduct is more fixed and certain. The merit sys- tem and civil service are firmly established in the police and fire departments of every city, and these departments are se- cured against all political influence or control. A substantial portion of the membership of council will be elected at large, thus insuring a better character of men than are sometimes chosen from wards. The mayor is made the real head of the local government. He appoints all chief officers not elected by the people, includ- ing the tax commissioners or sinking fund trustees, the direc- tors of public safety, who have charge of the police and fire departments, the members of the board of health, the uni- versity and library trustees, and others; and is empowered to suspend for misconduct or incapacity any officer or head of department in the municipal government, pending charges which he is authorized to file with council. He appoints, sub- ject to the civil service regulations, all policemen and firemen. He fills all vacancies in any office until the next regular election. He has the veto power over every ordinance passed by a city council. He prepares the annual budget for the city's expendi- tures, and every officer and head of department is required to submit to the mayor detailed statements and estimates of the needs of his branch of the government. The mayor may take charge of any department at any time and appoint examiners to investigate all its affairs; and in various other ways he has INTRODUCTION. XXXI large supervisory powers. In the making of public contracts the powers of council and the board of public service are sharp- ly distinguished. With respect to the deposit of public funds provision is made for competitive bidding and the treasurer of every municipality is made responsible for any loss unless such funds are deposited in conformity with this requirement. The number of officers provided for the cities and villages is less than ever before, and their compensation is to be fixed by the local councils only. But the most important advance is in the assurance of the greatest measure of home rule permitted by the constitution. Heretofore the organization, the number of officers and their salaries, the authority to make public improvements, and to borrow money, and nearly all the powers and functions of munic- ipal corporations in this state were fixed in special acts passed by the legislature. Representatives in one part of the state were asked to put upon the people living in another a government for their home towns without the consent of the people them- selves, either as to the cost of such government or the method of its administration. Members of the General Assembly who desired, for political reasons, to oust a particular board or officer in their home city, found little difficulty in securing the aid of other members in reciprocation of support for a similar measure. Extravagant bond issues were foisted upon the peo- ple of particular communities, often without their knowledge and more frequently without their consent. Thus a delegation elected to the General Assembly from a particular city in a fall campaign, where municipal questions were not in issue and were not discussed, usurped the place of councils elected in campaigns where municipal questions and municipal expendi- tures are discussed and are often the chief issues before the people. Under the uniform law now established, sorcalled " ripper " legislation will be at an end. Legislative log-roll- ing will cease. Each municipality will have the best form of government that any one possesses. Evils and abuses will ex- cite universal concern, and the remedy for them will elicit universal support. Each municipality will profit by the ex- XXXI 1 INTRODUCTION. perience of every other. The courts will be relieved from the drudgery of ascertaining what law governs a particular city, and will take up the more important employment of construing the law which governs all cities. Consistent and harmonious adjudications will result. A decision which affects the powers of officers in Cleveland, or the method of procedure in the levy- ing of taxes, assessments, or the appropriations for public ex- penditures in Cincinnati, will be of equal interest in Columbus, Toledo and Dayton. The new municipal code contains many imperfections. These are due, first, to the limited time in which an extraor- dinary session of the legislature could consider it and the number of committees through whose hands it passed; and secondly, to the fact that existing forms and institutions are hard to displace, and the people generally hold with jealous tenacity to laws with which they have been long familiar and look with suspicion upon new experiments. Even in the work which the General Assembly undertook to perform a great deal was left uncompleted, and a labor of immediate importance to the state will be the embodying of all statutes on the subject of municipal corporations in one harmonious act, which should be codified with appropriate sectional numbers and made to constitute title XII of the Eevised Statutes. Imperfect, however, as is the new act, it restores constitu- tional government to the municipalities, and presents the basis for ultimate efficiency. The hapless pathway behind us is closed forever, and this alone should encourage and inspire all those who have a healthy confidence in the ability of American citizenship to work out the problems of municipal reform. Wade H. Ellis. Cincinnati, May 1, 1903. ELLIS'S ANNOTATED OHIO MUNICIPAL CODE. PART I THE NEW CODE PROPER AND ALL SECTIONS OF THE REVISED STATUTES RE-ENACTED THEREIN. THE NEW MUNICIPAL CODE. ,,„ 0r TUT *^ university . ^ or I CLASSIFICATION OF MUNICIPALITIES. 1. GENEKAL PKOVISIONS. Sec. 1. [Division into cities and villages.] AH municipal corporations, which, at the last federal census, had a population of five thousand or more, shall be cities. All other municipal corporations shall be villages. All cities which, at any future federal census, have a population of less than five thousand shall become villages. A.11 villages which, at any future federal cen- sus, have a popultiiion of five thousand or more, shall become cities. 1 ( 1 ) Title. — The new » ode is enti- tled " An act to provide for the or- ganization of cities and incorporated villages, and to restrict their power of taxation, assessment, Borrowing money, contracting debts, and loan- ing their credit, so as to prevent the abuse of such powers, as re- quired by the Constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent here- with." This title adopts the lan- guage of § 6, Art. 13, Const, of Ohio. In Parsons v. Columbus, 50 O. S., 460, it is held that the duty imposed by this section of the Con- stitution with respect to restric- tions upon municipalities is ad- dressed to the conscience and judg- ment of the legislature, and is not the suDJect of judicial correction. Title as aid in construction. — The title of an act may be considered to explain its object and remove am- biguities. Burgett v. Burgett, 1 0. 469, 480; Steamboat Monarch r. Finley, 10 O. 384, 387; State v. G. A. Society, 11 O. 1, 10; L. B. Soci- ety v. Lewis, 7 O., 1st part, 80, 86; Hogg v. Zanesville C. & M. Co., 5 O. 410, 415; Burgunder v. Weil, 60 O. S. 234, 242; Hall v. Siegrist, 13 Dec. 46. Validity of Act.— The new mu- nicipal code was held to be con- stitutional and to have been prop- erly and regularly passed in Zum- stein, a taxpayer on behalf of the City of Cincinnati, v. Mullen et al., 48 B., 117; 67 O. S. 382. Classification. — Present and former. — The division of all muni- cipal corporations into cities and villages marks a new departure in the municipal law of Ohio, under the Constitution of 1851. The Mu- nicipal Code of 1852 (50 O. L. 223- 237) divided municipal corporations into four classes, viz., cities of th« first class, cities of the second class, 1 THE OHIO MUNICIPAL CODE. [Code § 1 incorporated villages and incorpor- ated villages for special purposes. The Municipal Code of 1869 (66 O. L. 149) provided the same classi- fication as that of 1852. The es- tablishment of grades within the two classes of cities, the division of grades into first, second, third, etc., and the subdivision of particular grades have been matters of gradual growth. The most recent statute governing classification, previous to the enactment of the new code, was passed in 1898 ( § 1546 R. S., 93 O. L. 601) and divided municipal corpora- tions into 14 classes, viz., cities, vil- lages and hamlets; cities being di- vided into two classes, first and sec- ond, the first class being divided into three grades, first, second and third, with provision for a future fourth; and the second class into eight grades, first, second, third, third a, third b, third c, fourth and fourth a. Villages had previously been divided into a first and second class (§ 1549 R. S., 89 0. L. 302.) There were never any towns in Ohio, established by the legislature under the Const, of 1851, although § 30 of Art. II and § 6 of Art. VIII rec- ognize a class of municipal corpora- tions to be so designated. Decisions on classification. — Until the decisions of June, 1902, which brought about the extraordinary session of the Ohio legislature and the enactment of tne new Municipal Code, the Supreme Court had uni- formly upheld the classification of cities for purposes of organization and distribution of powers. State ex rel. Atty Gen. v. Covington, 29 O. S. 102; State v. Brewster, 39 O. S. 653 ; State v. Pugh, 43 O. S. 98 ; State ex rel. v. Hawkins, 44 O. S. 98; State ex rel. v. Hudson, 44 O. S. 137; Marmet v. State, 45 O. S. 63 ; State ex rel. v. Cincinnati, 52 O. S. 419; State ex rel. v. Rattermann, 58 O. S. 731. Acts relating to par- ticular grades and classes of cities- were, when attacked on constitution al grounds, subjected to the requir*- ments of § 26 of Art. 2, ordaining that all laws of a general nature shall have uniform operation throughout the state, and § 1 of Art. 13, forbidding the General As- sembly to pass any special act con- ferring corporate powers. If th« subject matter of an act was one of general interest and concern, and the act was restricted in operation to a class or grade of cities it was void. Cincinnati v. Steinkamp, 54 O. S. 284; State ex rel. v. Ketter, 45 B. 443; State ex rel. v, Cowles, 64 O. S. 162. Even though an act conferred corporate power, however, and was special in the sense that it operated in but one city of the state, it was upheld if it operated uniformly within the grade and class to which it was made to apply. State ex rel. v. Baker, 55 0. S. 1; Alter v. Cincinnati, 56 O. S. 47; State v. Toledo, 48 O. S. 112; State ex rel. v. Cowles, 64 O. S. 162. But the classification was re- quired to be reasonable and not illu- sory or arbitrary. Costello v. Wy- oming, 49 O. S. 202; Bronson v. Oberlin, 41 O. S. 476. The later decisions, preceding those in the Cleveland and Toledo cases in June, 1902, discredited the doctrine of classification for any purpose by re- fusing to extend it, and prepared the way for its final overthrow. Geier v. Cincinnati, 63 O. S. 568; Cincinnati v. Trustees of Hospital, 66 O. S. 440; Cincinnati v. Willen. 66 O. S. 633 ; State ex rel. v. Cowles, supra. In the Cleveland and Tole- do cases ( State ex rel. Atty. Gen. v. Beacom, 66 O. S. 491, and State ex rel. Knisely v. Jones, 66 O. S. 453) Code CLASSIFICATION OF MUNICIPALITIES. 3 the acts in controversy provided a different organization or agency for exercising municipal powers in the one city from that provided else- where in the state. Similar acts had been upheld in earlier cases cited above. But the court now declared that classification as it had devel- oped in Ohio, had become " isola- tion," and had ceased to have any basis in differences of population or local requirements, and refused £o recognize such classification as ef- fectual to designate recipients of municipal powers, whether in the strict sense such powers are govern- mental or corporate. It seems un- questionable that the effect of these decisions is to hold unconstitutional for any and all purposes the classi- fication of municipalities in this state .as the same was in force imme- diately prior to the passage of the Code of 1902. It is not so certain that these decisions justify the con- tention that a reasonable classifica- tion of municipalities, based on sub- stantial differences in population, would be held unconstitutional. What classification permissible. — Whether the exclusive classification of municipal corporations into cities and villages, provided for in § 1 of the new Code, is the only one that would be permissible under the Con- stitution has not been decided by the Supreme Court. In the Toledo case (66 O. S. 453), the court dis- tinctly announces that the question whether the provisions of § 6, Art. XIII, of the Const, of Ohio, ordain- ing that the legislature " shall pro- vide for the organization of cities and villages by general laws," mean to prohibit any other classi- fication, is not decided. The ques- tion was also left open in C. L. & A. Ry. Co. v. North Bend, 70 0. S. 46. The extraordinary session of tne General Assembly, in 1902, adopted a resolution, submitting to the electors of Ohio, at the Novem- ber election, 1903, a proposed amendment to the Constitution, which would have empowered the legislature to divide the cities of the state into three classes, based upon population (see 96 O. L. 117). This amendment was lost by a decisive vote. Status of Hamlets. — The mu- nicipal code of 1902 did not recog- nize hamlets except as it did not specifically repeal those sections of the Revised Statutes relating to their creation, government and powers and except as § 100 of the Code re-enacted the "Longworth act," as passed by the regular ses- sion of the 75th General Assembly, April 29, 1902, (95 O. L., 318), which then authorized the issue of bonds for public improvements by "cities, villages, hamlets and town- ships." Hamlets were included in former classifications. (§ 1546 R. S., 93 O. L. 601, repealed.) They were recognized by the statutes as municipal corporations (§ 1550 R. S., repealed) and held to be such in Annexation of Newburgh, 15 C. C. 78, and State ex rel. v. Wagar, 19 C. C. 149, 151. Section 1549 R. S., repealed by the Code, seems to have made hamlets of all municipal corporations having less than 200 inhabitants. The session of the legislature in 1906 amended the Longworth Act and left out all reference to ham- lets. On the other hand, the same session amended one of the sections relating to hamlets so as to make it conform to the act relating to street commissioners and road su- pervisors. But notwithstanding the amendment referred to and the failure to repeal the hamlet stat- utes, it would seem that the new THE OHIO MUNICIPAL CODE. [Code § 2 code abolished hamlets and made them villages instead. Municipal corporations, therefore, which were hamlets before the en- actment of the new code, have now become villages and must elect such officers and exercise their gov- ernmental functions in such man- ner, as provided in the Code for villages, or surrender their corpo- rate powers as authorized therein. Hamlets which, after the new Code went into effect, failed to elect village officers as provided in the Code, were held to have become vil- lages nevertheless, and the hamlet officers were held to be acting as village officers, until the election and qualification of the proper vil- lage officers. C. L. & A. St. Ry. Co. v. North Bend, 70 O. S. 46. Thus, it was held in the case of the hamlet of North Bend that un- der the new code it became a cor- porate village notwithstanding it had not elected the proper village officers, and that a street railway was without authority to construct a railway on or above the streets without the consent of the existing officers of the municipality. C. L. & A. St. Ry. Co. v. North Bend, 70 O. S. 46. See further as to whether the powers conferred on councils of vil- lages by the code may be exercised by trustees of hamlets until the proper village officers have been elected. State ex rel. v. Wagar, 19 C. C. 149 ; In re Annexation of New- burgh, 15 C. C. 78; Carey v. State, 70 O. S. 121. See also as to status of hamlets prior to new code, Bill- ington v. Hoverman, 18 C. C. 637. Sec. 2. [Proclamation of Secretary of State ; advancement and reduction of municipalities.] 1 When this act takes effect, and whenever the result of any future federal census is officially made known to the secretary of state, he shall forthwith issue a proclamation, stating the names of all municipal corporations having a population of five thousand or more, and the names of all municipal corporations having a population of less than five thousand, together with the population of all such corporations. 2 A copy of said proclamation shall forthwith he sent to the mayor of each municipal corporation, which copy shall he forth- with transmitted to council, shall be read therein and made a part of the records thereof, and from and after thirty days after the issuance of said proclamation each municipal corporation shall he a city or village, in accordance with the provisions of this act. All officers of a village advanced to a city, or of a city reduced to a village, shall continue in office until succeeded by the proper officers of the new corporation at the next regulaT Code § 2] CLASSIFICATION OF MUNICIPALITIES. 5 election, and the ordinances thereof not inconsistent with the ?aws relating to the new corporation shall continue in force, until changed or repealed. 3 (1) Old Sections. — Compare §§ 1617-1622 R. S., repealed, relating to the duties of certain state officers to determine what municipalities were to be advanced or reduced in grade or class, and §§ 1581 and 1588 R. S., repealed, relating to officers continuing in office and ordinances remaining in force pending advance- ment of hamlets, villages and cities. (2) List of cities and villages. — For complete list of cities and villages under the new Code, with the population of each, as shown by the first proclamation of the Secretary of State, see Appendix. The first proclamation was issued November 17th, 1902, and showed 71 municipal corporations with 5,000 or more inhabitants, and 613 with less than 5,000. (3) Officers holding over. — Where officer is authorized to hold his office after expiration of term until a successor qualifies, there is no vacancy during such period, and incumbent holding over is a de jure officer. State ex rel. v. Howe, 25 O. S. 588. Where officer legally holds over until a successor qualifies, he holds on as of his old term. State ex rel. v. Killits, 8 C. C. 30. Whether sureties on officer's bond can be held for such extended term, quere. lb. Officer does not hold over unless a successor is provided for. McHugh v. Cincinnati, 1 C. S. C. R. 145. Officer removed for misconduct cannot hold over under law author- izing incumbent to continue in office until his successor is elected or ap- pointed. State ex rel. v. Hawkins, 44 O. S. 98, 117. Where a new code provided for one officer who was to perform the duties theretofore performed by three under the previous act, the office of the three was held abolished. McHugh v. Cincinnati, 1 C. S. C. R. 145. Where a new code created a new office, but made no provision for filling it, it was held there was a vacancy until the next annual elec- tion, and the person elected to the office held only until the next an- nual election. State ex rel. v. Cook, 20 O. S. 252. The constitutional provision against affecting the salary of an officer during his existing term, does not apply to an officer holding over until his successor is elected and qualified. Woehler v. Toledo, 6 B. 282. Where an office is abolished by a new law, if the duties of the office were specific and limited and not continuous during the year, the an- nual salary must be apportioned, not by the time of service, but by the duties actually performed, and therefore may be wholly earned at the time of abolishment of the office. Ex parte Lawrence, 1 O. S. 431. Mandamus will not lie at the suit of one claiming succession to an of- fice unless the act under which he claims is valid, and this is true, al- though defendant's title may also be invalid. State ex rel. v. Jones, 66 O. S. 453. Ordinances continuing in force. — Only such ordinances would con« 6 THE OHIO MUNICIPAL CODE. [Code § 3 tinue in force, as, if passed under the new code, would be authorized by its provisions. See Neff v. Bates, 25 O. S. 169; Hubbard v. Norton, 28 O. S. 116. On the other hand, an ordinance formerly passed but not authorized by the laws then in force would not be valid, even though authorized by the new code, notwithstanding the provision continuing in force all former ordinances not inconsistent with the new code. Cotter v. Doty, 5 O. 393, 398. An ordinance that was unconsti- tutional would, of course, not be continued in force. See Zanesville v. Auditor, 5 O. S. 590. An ordinance fixing a salary would continue in force, if the au- thority passing the ordinance has the power under the new code and the salary does not exceed the max- imum provided by the new code, even though the law under which the ordinance was passed is repealed by the code. Moore v. Cincinnati, 26 O. S. 582. An ordinance providing for the annexation of contiguous territory not inconsistent with a new code was held to continue in force under a provision such as that in the pres- ent code. Croll v. Franklin, 40 O. S. 340. Sec. 3. [Merger of township in municipality.] 1 When the corporate limits of a city or village become identical with those of a township, all township offices shall be abolished, and the duties thereof shall thereafter be performed by the correspond- ing officers of the city or village, excepting that justices of the peace and constables shall continue to exercise their functions under municipal ordinances providing offices, regulating the disposition of their fees, their compensation, clerks and other officers and employes, and such justices and constables shall be elected at municipal elections. All property, moneys, credits, books, records and documents of such township shall be de- livered to the council of said city or village, and all rights, interests or claims in favor of or against the township may be enforced by or against the corporation. 2 (1) See old §§ 1623, 1625, 1627 R. S., repealed. (2) Extent of merger. — Under the act of March 7th, 1872, which contained a provision excepting jus- tices of the peace and constables from the operation of the merger law, similar to the one in the pres- ent code, it 'was held that the act preserved the corporate existence of such township for the sole purpose of electing justices of the peace and constables, evidently to meet the constitutional requirement that jus- tices of the peace shall be elected by townships, but that for all other Code § 4] SURRENDER OF CORPORATE POWERS. 7 purposes the township organization porate limits of a city or village be- in this class of cities and villages came identical with those of a town- was abolished. McGill v. State, S4 ship and the office of township clerk O. S. 228 251. was thereby abolished the office of Effect of merger. — Under the the clerk of such city or village former statutes it was held that became a depository for chattel where a township is merged into a mortgages. Curtiss v. McDougal, city, the directors of a county in- 26 0. S. 66.- firmary may maintain a suit against Municipality is part of town- the corporation for the costs of tern- ship. — Where the boundaries of a porary relief furnished a pauper; city are not coterminus with those and such action may be prosecuted of a township the territory within either in the county of plaintiff or such city does not cease to be part directors or in that in which the city of the township or townships within is situated. Directors, etc., v. Tole- the limits of which it is situated, do, 15 O. S. 409. for election purposes. State v. It was also held under the for- Ward. 17 O. S. 543. mer statutes that where the cor- Sec. 4. [Surrender of corporate powers: judicial notice of classification.] 1 Villages may surrender their corporate powers upon petition to council of at least forty per cent. 2 of the electors thereof, to be determined by the number voting at the last municipal election, and an affirmative vote of a majority of said electors at a special election which shall be provided for by council, and conducted and canvassed, and the result certified and made known as regular municipal elections within the corporation. If the result of the election is in favor of such surrender, the clerk of the village shall certify the same to the secretary of state and the recorder of the county, who shall re- cord the same in their respective offices, and thereupon the corporate powers of such village shall cease; provided that such surrender of corporate powers shall not affect vested rights or accrued liabilities of such village, 3 or the power to settle claims, dispose of property, or levy and collect taxes 4 to pay existing obligations ; but after the presentation of the petition herein referred to, council shall not create any new liability until the result of the election is declared, nor thereafter, if such result is in favor of the surrender of corporate powers; 8 THE OHIO MUNICIPAL CODE. [Code § 4 provided, further, that due and unpaid taxes may thereafter be collected, and all moneys or property remaining after such surrender shall belong to the school district embracing such village. All courts shall take judicial notice of the classification of municipal corporations, and their advancement, reduction and surrender of powers. 5 (1) Old Sections.— See sections 1633-1647 R. S. inclusive, repealed. The sections- (1633-1642 R. S.) al- lowing cities, to surrender corporate powers and be reduced to villages, are repealed, without any corre- sponding provisions being made in the new code. It is no longer op- tional with a municipality to be a city or village. Municipalities over 5,000 population at the last federal census, are necessarily cities, unless changed by the next federal census. (2) Number of Petitioners. — Under sections 1633 to 1647 R. S. of the former law on this sub- ject, it was held that in a mandamus in the Court of Common Pleas to compel the council of a village to order an election on the question of surrender of corporate powers, the issue of whether the requisite num- ber had signed the petition was not one of right triable by a jury, and that either party might appeal from the judgment of the Court of Com- mon Pleas thereon. Dutten v. Vil- lage of Hanover, 42 O. S. 215. It was held to be the duty of council before taking action upon such a petition to satisfy itself that the petition contained the requisite number of qualified petitioners, and for this purpose, council might refer the petition to a committtee to make examination. lb. Signers of such a petition might withdraw their names at any time before final action thereon by coun- cil, and if the number of names is reduced below the requisite amount, council must refuse to order an elec- tion, lb. (3) See notes to section 211 of the Code. (4) Under former sections it was held that officers of a municipality, after its corporate rights had been extinguished, cannot by resignation avoid the duty of levying and col- lecting the taxes to pay its debts. Gorgas v. Blackburn, 14 O. 252. (5) Under the classification of cities which had obtained before the enactment of the new code, Courts were not bound to take judicial no- tice of the grades and classes of municipal corporations. Bolton v. Cleveland, 35 O. S. 319; Massa v. The State, 3 C. C. 9; but see State v. Constantine, 42 O. S. 437. FORM OF PETITION TO COUNCIL FOR SURRENDER OF CORPO- RATE POWERS. To the Council of the Village of , State of Ohio: The undersigned, being forty per cent, of the electors of the village of , respectfully represent that it is their desire that the corporate Code § 5] CREATION AND INCORPORATION. 9 powers of said village be surrendered, and that the said village become a part of the township organization within the territorial limits of which it is situated, and they therefore pray you to cause an election to be held in said village in the manner provided by law to determine the sense of the electors thereof upon that subject. (This petition must be signed by 40 per cent, of the electors of the Village. ) FORM OF ORDINANCE ORDERING ELECTION. Ordinance No Ordering election on question of surrendering corporate powers. Be it ordained by the council of the village of , State of Ohio : Sec. ( 1 ) That upon the day of , 190. ., there be held a special election in the village of , State of Ohio, at (here in- sert place of holding election) by the qualified voters of said village to vote upon the question of surrendering the corporate powers of said village and of reducing said village to be a part of the township organization within the territorial limits of which it is situated. Sec. ( 2 ) . The ballots cast at such election shall contain the words, " For Surrender " or " Against Surrender " and such election shall be held and conducted as regular municipal elections within the corporation. Sec. (3) This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed this day of , 19 Attest: President of Council. Clerk. FORM OF CLERK'S CERTIFICATE. To the Honorable, the Secretary of State of the State of Ohio, [or Re corder of the county of ] : This is to certify that at a special election duly provided by the council and held in the village of , State of Ohio, on the day of , 19. . ., a majority of the electors of said village voted in favor of the surrender of the corporate powers of said village. Given under my hand and official seal, this day of , 19. . ., Clerk. 2. CREATION AND INCORPORATION OF VILLAGES. Sec. 5. [Statutes re-enacted.] Villages may be created and incorporated in the manner now provided in title XII, division 2, chapter 2 of the Revised Statutes of Ohio. 1 (1) Title XII., Div. 2, Chap. 2, R. S., contains sections 1553-157 la inclusive. 10 THE OHIO MUNICIPAL CODE. [Code § 5 Sec. 1553 R. S. [Right to incorporation; restrictions.] The in- habitants of any territory laid off into village or hamlet lots, a plat of which territory has been acknowledged and recorded as is provided with respect to deeds, or the inhabitants of any terri- tory which has been laid off into such lots and surveyed and platted by an engineer or surveyor who certifies thereon, under oath, to its correctness, and which is recorded as is provided with respect to deeds, or the inhabitants of any island or adjacent islands, or parts thereof, or of such island or islands or parts thereof, and adjacent territory, may obtain the organization of a village or hamlet, 1 in the manner provided in this title; and when such village or hamlet is organized upon any island or islands, it may be done without reference to the number of permanent inhabitants embraced within such territory, and without such plat having been first made ; provided, that no cor- poration under this chapter shall embrace within its limits the grounds or improvements of any county or city infirmary. 2 [92 v. 26; 73 v. 165, § 9 ; 76 v. 116, § 1.] (1) See note, "Status of Ham- Construction of these provi- lets," under § J. of the Code. sions. — The provisions of Title (2) Suit to test right.— Wheth- XII, Div. 2, Chap. 2, are to be con* er a suit in quo warranto will lie strued in connection with Title Xll„ to test the right of the people of a Div. 2, Chap. 5, and both are to be certain locality to be a municipal construed as one act. Shugars ▼. corporation, quere. State ex rel. v. Williams, 50 0. S. 297. Newark, 57 O. S. 430. Sec. 1554 R. S. [How application made.] Application for such purpose shall be made by petition, which, except as provid- ed in the last preceding section, shall be signed by not less than thirty electors, residing within the proposed corporate limits, and addressed to the county commissioners ; and the same shall be accompanied by an accurate map of the territory. 1 [71 v. 65, § 10; 66 v. 150, § 11.] ( 1 ) Title of Petition. — A paper contents of the paper should be filed as a petition and treated as looked at, to ascertain what it is, such, although styled " Amended Pe- and not merely its title. Turpin v. tition" is a sufficient compliance Hagerty, 12 Dec. 161, (aff'd 69 O. S. with the statute. The character and 534). Sec. 1555 R S. [Petition: what it shall contain.] The peti- tions shall contain the matters following: 1. An accurate de- scription 1 of the territory embraced within the proposed cor- poration, and it may contain adjacent territory not laid off into Code § 5] CREATION AND INCORPORATION. 11 lots; 2. The supposed number of inhabitants residing in the proposed corporation; 3. Whether the corporation desired is a village or hamlet ; 2 4. The name proposed ; and 5. The name of some person to act as agent for the petitioners, and more than one agent may be named therein. [66 v. 150, § 11.] (1) Plat from Public Records, tual measurements reveal some dis- — A map and description taken erepancies in the map. Turpin v. from the public records as they had J^gerty, 12 Dec. 161 (aflTd 69 O. S. - , • . „ . , 534. See also Wright v. Oberlin, 23 stood for years, is sufficient to com- q A kqq ply with the requirement of an ac- (2) See note "Status of Ham- curate description, even though ac- lets " under § 1 of the Code. FORM OF PETITION FOR INCORPORATION OF VILLAGES. To the Board of Commissioners of the County of , State of Ohio: The undersigned, being thirty [or more] electors residing within the following described territory, situated in County, State of Ohio, to-wit: (Here give an accurate description of territory embraced within the pro- posed corporation) ; an accurate map of which territory is attached hereto; respectfully represent That all [or a part] of said territory has been laid off into village lots, a plat of which territory so laid off, has been acknowledged and recorded as is provided with respect to deeds [or which territory has been surveyed and platted by an engineer who has certified thereon, under oath that the same is correct] ; That the territory above described does not embrace within its limits the grounds or improvements of any county or city infirmary; That the number of inhabitants now residing in said territory is about . And respectfully petition your honorable body that said territory may be organized into a village, in the manner provided by law, to be named the " Village of "; and and are hereby designated as agents for the undersigned to act for them in all matters before your honorable body relative to this petition and to the or- ganization of the said territory into the said village. (This must be signed by at least 30 electors residing in the territory to be organized into a village.) A map of the territory described marked " Map of territory to be organ- ized into the village of ," should be attached "to the petition. The form given may be adapted to a petition for the incorporation of territory on an island or islands. In such case no map need accompany the petition, and the reference to the number of inhabitants may be omitted. 12 THE OHIO MUNICIPAL CODE. [Code § 5 Sec. 1556 R. S. [Presentation to commissioners: time of hear- ing; notice.] The petition shall be presented to the board of commissioners at a regular session thereof, and when so pre- sented the board shall cause it to be filed in the office of the county auditor, 1 where it shall be subject to the inspection of any person interested ; and the commissioner| shall then fix the time and place for hearing the petition, and communicate the same to the agent of the petitioners, which time shall not be less than sixty days after such filing; and thereupon the agent shall cause a notice containing the substance of the petition, and the time and place where the same will be heard, to be pub- lished in some newspaper printed and of general circulation in the county, for the period of six consecutive weeks, and cause a copy of the notice to be posted in a conspicuous place within the limits of the proposed corporation, not less than six weeks prior to the time fixed for such hearing. 2 [66 v. 150, § 12.] ( 1 ) Filing with county auditor. tory to a village on its application, — Purpose of provision requiring must be posted on the territory to petition to be filed in office of coun- be annexed. Franklin v. Croll, 31 ty auditor was to provide a safe O. S. 647. See § 1590 R. S. place for deposit and not as addi- Adjourned meetings of com- tional notice of the hearing, and a missioners. — Adjourned meetings failure so to file the petition, does of the county commissioners are con- not deprive the board of jurisdiction tinuations of the regular sessions, to proceed. Pollock v. Toland, 25 C. in so far as the requirements of C. 75; 1 C. C. (N. S.) 315. this section are concerned. Turpin (2) Posting of notice.— The no- v. Hagerty, 12 Dec. 161, (aff'd 69 O. tice here required when made ap- S. 534). plicable to the annexation of terri- FORM OF NOTICE OF PETITION. LEGAL NOTICE. Notice is hereby given that on 19 . ., there was presented to the Board of Commissioners of the County of , State of Ohio, a petition signed by thirty [or more] electors residing within the following described territory in the County of , State of Ohio, to-wit : (Here copy description of territory given in the petition), and repre- senting that (here copy the representations in the petition) ; and praying therein that said territory may be organized into a village to be named the " Village of ," which petition is now on file in the office of the auditor of County ; and designating the undersigned to act as the agents of the petitioners, as required by law. The "said Board of Commissioners has fixed. 19 . ., at. . . . o'clock .... M., as the time for hearing said petition (not less than sixty days after petition is filed) at the office of the commissioners in ( here insert place ) . (To be signed by the designated agent or agents.) This notice should be published in some paper printed and of general circulation in the county, or if none such, then in some paper of general circulation in the county (see § 1537 R. S,) for six consecutive weeks prior to the time set for hearing, and should aiso be posted for the same Code § 5] " CREATION AND INCORPORATION. 13 length of time at some conspicuous place within the limits of the proposed corporation. Sec. 1557 R. S. [Hearing before the commissioners.] The hearing shall be public, and may be. adjourned from time to time, and from place to place, according to the discretion of the commissioners, and any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition, and any affidavits presented in support of or against the prayer of the petition shall be considered by the commissioners, and the petition may be amended by their leave ; but if any amendment is permitted, whereby territory not before embraced is added, the commissioners shall appoint another time for the hearing, of which notice shall be given, as specified in the last preceding section. 1 [66 v. 151, § 13.] (1) Applies to annexation pro- Amendment to cure error in ceedings. — This section applies to description which merely corrects the procedure in case of annexation omission of one course in boundary of territory to a village (§§ 1589- may be made without additional no- 1615 R. S.) as well as to the case of tice. Pollock v. Toland, 1 C. C. (N. organization of a village. Shugars S.) 315; 25 C. C. 75. v. Williams, 50 O. S. 297. Sec. 1558 R. S. [Order for organization.] If the commis- sioners, upon such hearing, find that the petition contains all the matters required, that its statements are true, that the name proposed is appropriate, that the limits of the proposed corporation are accurately described, and are not unreasonably large or small, that the map or plat is accurate, that the persons whose names are subscribed to the petition are electors residing on the territory, that notice has been given as required, that there is the requisite population for the proposed corporation, and if, moreover, it seems to the commissioners right that the prayer of the petition be granted, they shall cause an order to be entered on their journal to the effect that the corporation may be organized. [66 v. 151, § 14.] FORM OF ORDER OF ORGANIZATION. The Board of Commissioners of the County of proceeding this day to hear the matter of the petition of and others to obtain the organization of the territory in their petition described, into a village, in accordance with law, and having in open meeting, heard all persons desiring to be heard for or against the granting of said petition, and considered the affidavits presented with reference thereto, and being fully advised, find that said petition contains all the matter required by law; that its statements are true; that the name of said proposed village, which is given in the petition, is appropriate; that the limits of the pro- 14 THE OHIO MUNICIPAL CODE. * [Code § 5 posed corporation are accurately described and are not unreasonably large or small; that the map of the same, filed with the petition, is accurate; that a sufficient number as required by law of the persons whose names are subscribed to the petition, are electors residing within the territory described in the petition; that the required legal notice of the petition has been given, and that the population of said proposed corporation is , which is a sufficient number ; And it further appearing to the Board that it is right and proper that said petition should be granted, it is hereby ordered that the prayer of said petition be granted, and that the territory described in said petition may be organized into a village to be known as the " Village of ," as prayed for in. the petition, and that a certified transcript signed by a majority of this board of all the orders and proceedings of this board relative to said petition and hearing thereon, together with said petition, and map attached thereto, and all papers on file relating to said matter, be transmitted at once to the recorder of the county. (If the petition is rejected the form may be adapted to suit this con- tingency. ) Sec. 1559 R. S. [Order to be entered on journal; papers filed with recorder.] The commissioners shall cause to be entered on their journal all their orders and proceedings in relation to such incorporation, and they shall cause a certified transcript thereof, signed by a majority of them, to be delivered, together with the petition, map, and all other papers on file, relating to the matter, to the recorder of the county, at the earliest time practicable. [66 v. 151, § 15 ; 66 v. 152, § 19.] Sec. 1560 R. S. [When recorder to make record.] The re- corder shall file the transcript and other papers in his office, and at the expiration of sixty days thereafter, unless enjoined as hereinafter provided, he shall make a record of the petition, transcript, and map in the proper book of records, and preserve in his office the original papers delivered to him by the com- missioners, certifying thereon that the transcript, petition, and map are properly recorded. [66 v. 151, § 16.] Sec. 1561 R. S. [Name; transcript of record; judicial notice taken of corporation.] When the record is made, the corpora- tion shall be deemed the village of , or the hamlet * of , as the case may be, to be organized and governed under the pro- visions of this title ; and thereupon the recorder shall make, and certify under his official seal, two transcripts of the record, one of which he shall forward to the secretary of state, and the other deliver, on demand, to the agent of the petitioners, with a certificate thereon that the duplicate has been forwarded to Code § 5] CREATION AND INCORPORATION. 15 the secretary of state; and when any municipal corporation is organized by the election of its officers, notice of its existence shall be taken in all judicial proceedings. \_Q6 v. 152, §§ 17, 18.] (I) See note, "Status of Hamlets," under § 1 of the code. Sec. 1561a R. S. [Petition to township trustees for incorpora- tion.] When the inhabitants of any territory or portion thereof desire that such territory shall be incorporated into a village or hamlet 1 they shall make application to the trustees 2 of the township [in which] the territory is located, or if the territory is located in more than one township, to the trustees of the township in which the majority of the said inhabitants reside, by petition, signed by at least 30 electors thereof, a majority of whom shall be freeholders. Said petition shall be accompanied by an accurate map 3 of the territory, and shall contain in addi- tion to the matter set forth in § 1555 of the Revised Statutes of Ohio, the request of the petitioners that an election be held to obtain the sense of the electors upon such incorporation and such petition may be presented at a regular or special meeting of the township trustees. [94 v. 18; 92 v. 333.] (1) See note, "Status of Ham- must act on the one filed first, and lets," under § 1 of the code. no further action can be taken until (2) Filing petition. — The clerk that petition is disposed of; and of the township is the clerk of its mandamus will lie in such case to board of trustees and the petition compel the trustees to act on the and map are sufficiently filed and first petition. State ex rel. v. Mitch- presented to the township trustees, ell, 22 C. C. 208. if filed with the township clerk. Purpose of the section. — The State ex rel. v. Mitchell, 22 C. C. purpose of the statute was to allow 208. a part of a township to be formed The fact that the petition and into a municipal corporation, and it map were, after being filed, returned is against public policy to form the to the person filing as a matter of entire township into such corpora- convenience in carrying it to the tion in order to defeat this purpose, board meeting, would not invalidate State ex rel. v. Mitchell, 22 C. C. the filing. lb. 208. Time to consider petition, must (3) Defective map. — If the be allowed trustees, and mandamus, map filed is not accurate it may be before a week has elapsed, will not supplemented by a more perfect one, lie to compel action. State ex rel. before action is taken by the trust- v. Trustees, 19 C. C. 742. ees. State ex rel. v. Mitchell, 22 C. Rival petitions. — Where two le- C. 208. gal petitions are filed the trustees FORM OF PETITION TO TOWNSHIP TRUSTEES FOR INCORPORA- TiON OF VILLAGE. To the Trustees of the Township of , State of Ohio: The undersigned, being thirty [or more] electors, a majority of whom are freeholders and all of whom reside within the following described terri- 16 THE OHIO MUNICIPAL CODE. [Code § 5 tory situated within the County of , State of Ohio, to-wit: (Here insert accurate description of territory embraced within the pro- posed corporation) j an accurate map of which territory is attached hereto, respectfully represent that the number of inhabitants residing within said territory is and respectfully petition your honor- able body that said territory may be organized into a village in the manner provided by law, and that the name of said village may be the "Village of ," and hereby designate and their agents to act for them in all matters relating to the hearing upon this petition and in other matters relating to the incorporation of said territory into a village; and further petition your honorable body that an election may be ordered to obtain the sense of the electors of said territory upon the question of its incorporation into a village as prayed for in this petition. (This petition must be signed by at least thirty electors residing in the territory to be organized into a village, a majority of whom must be free- holders. ) (A map of the territory described, marked "Map of territory to be or- ganized in the village of ," should be attached to the petition. ) Sec. 1561b R. S. [Procedure upon receipt of petition.] When the township trustees receive the petition, together with the proof that the persons who signed it are electors, and reside within the limits of the proposed incorporation, and that a majority of them are freeholders, they shall then make and declare that such territory shall, with the assent of the qualified voters thereof as hereinafter provided, be an incorporated vil- lage or hamlet 1 by the name specified in the petition aforesaid, and they shall also include in such order, a notice for the elec- tion by the qualified voters, residents in said territory, at a convenient place therein to be by them named, on some day within fifteen days thereafter, to determine whether such terri- tory shall be incorporated, and said township trustees shall give ten days' notice of such election by publication in a news- paper of general circulation in such territory, and cause written or printed notices thereof, to be posted in three or more public places in said territory proposed to be incorporated. [92 v. 333.] ( 1 ) See note, " Status of Hamlets," under § 1 of the code. FORM OF FINDING AND ORDER OF TRUSTEES. Whereas, A petition has been presented to the trustees of the township of , County of , signed by and others, praying that the following described territory: (Here copy description of Code § 5] CREATION AND INCORPORATION. 17 territory given in the petition), may be incorporated into a village as pro- vided by law; and Whereas, Said trustees after hearing all evidence submitted are fully satisfied that the persons who signed the said petition are electors residing within the territory proposed to be incorporated into a village and that a majority of them are freeholders therein; Now therefore be it Resolved, That the said territory be, and the same is hereby made and declared to be an incorporated village by the name of the " Village of ," with the assent of the qualified voters thereof. Sec. 2. That an election be held on the day of 19 (this date must be within fifteen days after the date of the resolution), to obtain the sense of the electors of said territory on the question of in- corporation of said territory into the village of and that such election be held at (here insert place of holding election). Sec. 3. That notice of the time and place of holding such election be given by publication in , a newspaper of general circulation in said territory and by posting written [or printed] notices thereof in three or more public places in said territory proposed to be incorporated. (The notice must be for a period of ten days.) Passed this day of 19 ... ( To be signed by the Trustees of the Township. Attested by Clerk.) FORM OF NOTICE OF ELECTION. LEGAL NOTICE. Notice is hereby given that on the day of at ( here insert place of holding election ) , in the township of , County of , an election will be held to determine whether the following described territory shall be incorporated into a village to be known as the " Village of ," to-wit : ( Here copy description of territory given in the petition.) By order of the trustees of the township of (to be signed by the trustees of the township, an d attested by the clerk ) . Sec. 1561c R. S. [Election upon question; injunction; petition for error.] The township trustees shall be judges of the elec- tion, and the township clerk shall be clerk thereof, and the election shall, as far as practicable, be conducted in the manner prescribed for the election of township officers, and the ballot shall contain the words " For incorporation " and " Against incorporation," aiid if a majority of the ballots cast at such election shall contain thereon the words " Against incorpora- tion," the voters of such territory shall be deemed not to have assented to the incorporation thereof, and no further proceed- ings shall be had in relation thereto, but this shall not be a bar to other proceedings for the same purpose ; but if a majority of 18 THE OHIO MUNICIPAL CODE. [Code § 5 the ballots cast shall have thereon the words " For incorpora- tion/ ' the township trustees shall cause to be entered on their journal, a minute of all their proceedings, the number of votes cast at the election, the number of votes cast for incorporation, and the number cast against incorporation, and they shall then declare that said territory shall from that time be deemed an incorporated village or hamlet, 1 and shall make an order de- claring that such village or hamlet has been incorporated by the name adopted, and the trustees shall make a certified trans- cript of the journal entries of all their proceedings, together with their original petition and plat, and a majority of them having signed it, they shall deliver the same to the county recorder, who shall forthwith make a record of the petition, transcript and plat or map, in the public book of records, and preserve in his office the original papers delivered to him by the trustees, and certify thereon that the transcribed petition and map are properly recorded. When the recorder has so made said record, he shall certify and forward to the secretary of state, a transcript of the same. The corporation shall then be a village or hamlet, as the case may be, under the name adopted in the petition, with all powers and authorities, and be recog- nized as such, the same as if such incorporation had been organized under chapter 2, division 2, title 12 of the Eevised Statutes of Ohio, but no injunction shall be brought, as pro- vided in § 1562 of the Eevised Statutes of Ohio, unless the same be instituted within ten days from the filing of the papers with the county recorder ; provided, however, that the right of peti- tion to the court of common pleas for error, shall exist as is provided for in the following sections of this chapter. 2 [92 v. 334.] ( 1 ) See note, " Status of ham- ated ordered by the township trust- lets," under § 1 of the code. ees can not be granted. Lawrence v. (2) Injunction against dec- Mitchell, 8 N. P. 8. See State v. tion. — In view of the statutory Mitchell, 22 C. C. 208. remedies provided in § 1561 c. R. S., Constitutionality.— §§ 1561a, by which the right to petition the 15616, "161c, R. S., authorizing in- Court of Common Pleas for re- corporations under proceedings be- view of proceedings had for in- fore township trustees is not un- corporation is given, an injunction constitutional as a delegation of to restrain the election by the vot- power by the Legislature. lb. ers of the territory to be incorpor- FORM OF DECLARATION AND ORDER OF TRUSTEES. Whereas, An election was held in the township of ! County of , State of Ohio, on the day of 190 .. , to de- Code § 5] CREATION AND INCORPORATION. 19 termine whether the following described territory shall be incorporated into a village to be known as the " Village of ," to-wit: (Hera copy description of territory given in the petition and election notice) ; and Whereas, At said election votes were cast, of which were in favor of said incorporation and of which were against the same, a majority being in favor of said incorporation, Now therefore, it is hereby ordered and declared that said territory shall henceforth be deemed an incorporated village, and It is further ordered and declared that such village has been incorpo- rated by the name of the " Village of ," and a certified tran- script of the journal entries of all the proceedings of this board in this matter, together with the original petition and plat, shall be delivered to the Recorder of the County of (This should be signed by the trustees and attested by the clerk.) Sec. 1562 R. S. [Injunction against recorder.] Any person interested may, within sixty days from the filing of the papers with the recorder, as above provided, make application by pe- tition to the court of common pleas, or, if during vacation, to a judge thereof, setting forth the errors complained of, or the inaccuracy of the boundaries, or that the limits of the proposed corporation are unreasonably large or small, or that it is not right, just, or equitable that the prayer of the petition presented to the board of commissioners be granted, or containing any or all of such averments, and praying an injunction restraining the recorder from making the record and certifying the trans- cript, as above required. 1 [92 v. 196; 66 v. 152, § 20.] ( 1 ) Scope of injunction. — In an rors complained of, and should not injunction under this section, the state merely that errors were corn- case made before the commissioners mitted. Hulbert v. Mason, 29 O. S. cannot be retried upon its merit, and 562. an injunction cannot be allowed ex- Interest Required. — It is not cept for errors or irregularity in the necessary that plaintiff should have proceedings or any inaccuracy in the a direct, pecuniary interest in prop- description of territory sought to be erty within the proposed corpora- incorporated. Hulbert v. Mason, 29 tion to constitute a " person inter- O. S. 562. ested," and one residing and owning No appeal. — No appeal lies from property two miles distant there- the judgment of the court or judge, from whose taxes will be increased, allowing or refusing the injunction. has such an interest. Hall y. Si§- The application to the court is not grist, 13 Dec, 46. in the nature of a bill in equity or Collateral attack. — The order of a civil action, but of a proceeding of the county commissioners though in error. Hulbert v. Mason, 29 O. S. subject to review by the courts, is 562. not void, and cannot be collaterally Contents of petition. — Petition impeached. Blanchard v. Bissell, 11 should set forth specifically the er- 0. S. 96. 20 THE OHIO MUNICIPAL CODE. [Code § 5 FORM OF PETITION FOR INJUNCTION. Court of Common Pleas,. .1 County, Ohio. vs. Plaintiff, l PETITION. Recorder of the County of.. Defendant. Plaintiff says that certain territory within the County of [or the township of , in the County of ], is sought to be organized into an incorporated village under the name of the "Village of "5 A certified transcript of the proceedings of the County Commissioners [or of the township trustees] in relation thereto, together with the petition for such incorporation, and all maps and papers relating thereto are now in the hands of the Recorder of this County for record. Plaintiff further says that he is a resident of the territory sought to be incorporated as aforesaid, and is interested in the matter of such incor- poration. And plaintiff further says that there is error in the said proceedings in this, to-wit: (Here state specifically the errors complained of.) Wherefore, plaintiff prays that an injunction may issue restraining the recorder from making a record of the said proceedings and certifying the transcript thereof as provided by law. [Verification. J - Attorney for Plaintiff. (If suit is brought to prevent incorporation upon petition to County Commissioners the same must be filed within sixty days from the filing of the papers with the recorder, § 1562 R. S. ; if to prevent incorporation upon petition to township trustees, it must be filed within ten days from the filing of the papers with the recorder, § 1561c, R. S.) Sec. 1563 R. S. [Proceedings in such case.] When the pe- tition is filed, the person filing the same shall give notice there- of, in writing, to the recorder and the agent of the petitioners for the corporation ; and the recorder, on receiving such notice, shall forthwith transmit to the clerk of the court where the petition for injunction is pending, all the papers relating to the matter on file in the recorder's office ; and in that event, no record of the papers shall be made by the recorder, or transcript certified by him, as above provided, unless he receive a certifi- cate from the clerk of the court, showing that the injunction has been denied. [66 v. 152, §§ 21, 22.] FORM OF NOTICES OF PETITION. To the Recorder of the County of : You are hereby notified that a petition has been filed by the undersigned, on the day of 190 . . , in the Court of Common Pleas, in the County of , State of Ohio, praying therein for an injunction restraining you from making a record of the proceedings for the incorpora- tion of the village of or certifying transcripts of such record. , Plaintiff. Code § 5] CREATION AND INCORPORATION. 21 To and , agents of the petitioners for the incorporation of the village of : You are hereby notified that a petition has been filed by the under- signed on the day of 190. . . ., in the Court of Common Pleas, of the County of , State of Ohio, praying therein for an in- junction restraining the Recorder of County from making a record of the proceedings for the incorporation of the village of or certifying transcripts of such record. , Plaintiff. Sec. 1564 R. S. [Piling, docketing and hearing of petition, and judgment thereon.] The court or judge shall cause said petition to be filed and docketed in the office of the clerk of courts, and shall hear the petition at such time as he shall appoint, not less than twenty days from the filing of the same. And upon such hearing the court or judge may hear evidence upon the matters and things averred in the petition; and if, upon such hearing, no error is found in the proceedings before the commissioners, and no inaccuracy in the boundaries, and if the court shall further find that the limits of the proposed cor- poration are not unreasonably large or small, and that it is right, just and equitable that the prayer of the petition pre- sented to the commissioners be granted, the petition for such injunction shall be dismissed; and thereupon the clerk shall return the papers to the recorder, with a certified transcript of the order of the court, and the recorder shall immediately record the transcript certified by the commissioners, the peti- tion for the corporation, the map, and the order of the court, and make, forward and deliver transcripts as above provided ; but if error is found in the proceedings, or if the boundaries are found to be so inaccurately described as to render indefi- nite or uncertain limits or extent of the proposed corporation, or if the court shall find that the limits of the proposed cor- poration are unreasonably large or small, or that it is not right, just or equitable that the prayer of the petition presented to the commissioners be granted, then the court or judge shall make an order enjoining the recorder from making the record ; provided that such order shall not be a bar to any subse- quent application to the commissioners for the purpose of effecting such incorporation. And the court or judge shall render such judgment as to the payment of the cost incurred in such proceeding for injunction as he shall deem just and equitable. [92 v. 196; 66 v. 152, § 23.] Sec. lo65 R. S. [Election of officers.] The first election of officers for such corporation shall be at the first annual munici- pal election after its creation, and the place of holding the election shall be fixed by the agent of the petitioners, and notice thereof, printed or plainly written, shall be posted by him at three or more public places within the limits of the corpora- tion, at least ten days before the election; which election shall be conducted, and the officers chosen and qualified, in the man- 22 THE OHIO MUNICIPAL CODE. [Code § 5 ner prescribed for the election of township officers : provided, that such first election may be a special election held at any time not exceeding six months after the incorporation, and the time and place of holding such special election shall be fixed by the agent aforesaid, and notice thereof shall be given as is required in this section for the annual municipal election. [73 v. 157, § 24.] Sec. 1565a R. S. [Division and transfer of township funds when a village is created out of portion of township or town- ships.] When a village has been created out of a portion of a township, or portions of more than one township, under the provisions of the statutes of this state authorizing the creation of villages, a proper division of the funds for township pur- poses in the treasury, or in the process of collection, of the township or townships from which the territory has been taken for the creation of said village, shall, upon application of said village to the probate court of the county in which such terri- tory is situated, be determined and ordered by said court, and the share to which said village is found entitled, ordered paid over to the treasurer of the village; and in determining the portion of said funds to which said village is entitled, the in- debtedness of said township or townships shall be taken into consideration; ten days' notice of such hearing shall be given by the treasurer of the applicant to the treasurer of the town- ships whose funds are sought to be divided. The findings and orders of the probate court shall be final. [§ 2.] [To what villages act to apply.] The provisions of this section shall apply only to villages created after July 1st, A. D. 1905. [1906, April 11, 98 v. 129.] Sec. 1566 R. S. [When territory embraces parts of more than one county.] When the inhabitants residing upon adjacent portions of territory, in two or more counties, laid off into village or hamlet lots, a plat or plats of which which been ac- knowledged and recorded, as hereinbefore required, desire the organization of such territory into a village or hamlet, the pe- tition therefor shall be made to the commissioners of the county in which the largest number of qualified voters of the proposed corporation reside, and a statement to that effect shall be set forth in the petition ; and the transcript of the proceed- ings of the commissioners, and the map or plat accompanying the same, shall be recorded in the county in which the petition is filed, at the time and in the manner provided for in other cases; and the recorder of such county shall, within ten days thereafter, make a certified transcript of such record for each of the other counties in which any portion of the territory is situated, and forward the same to the recorders of such coun- ties, to be by them recorded in the manner that the original pa- pers are required to be recorded. [66 v. 153, §25; (S. & C. 1552).] Code § 5] CREATION AND INCORPORATION. 23 Sec. 1566a R. S. [Incorporation of territory surrounding sum- mer resort, etc.] Any territory requiring police protection and containing a population of not less than fifty persons and im- mediately surrounding a summer resort, park, lake or picnic ground, kept regularly for such outing and pleasure, may in- corporate by setting up notices of an election in three of the most public places in the territory proposed to be included in the corporation signed by five citizens and electors of the terri- tory. Said notices to be posted at least ten days before the election, stating time and place where such election shall be held, and shall contain an accurate description of the territory proposed to be taken into the incorporation. The election shall as far as practicable be conducted in the manner prescribed for the election of township officers. The electors present shall choose three judges and two clerks from the electors present to act as judges and clerks of said election, and the ballot shall contain the words : " For incorporation " and " Against in- corporatiom" If the majority of the ballots cast at such elec- tion shall contain the words " For incorporation," it shall be deemed that the citizens of said designated territory have as- sented to such incorporation. And, if the majority of the ballots cast at such election shall contain the words " Against incorporation," it shall be deemed that the people of said designated territory shall not have assented to the incorpora- tion thereof. Such laws governing the creation and regulation of incorporated villages in force and such as may be hereinafter enacted shall have full force and effect in so far as are not inconsistent and do not conflict with the provisions of this act. [95 v. 469.] 1 (1) This section was enacted May to be regarded as expressly re-en- 9, 1902, as a supplement to § 1566 acted. R. S., and under § 212 of the code is Sec. 1567 R. S. [Proceedings to establish or review same as other cases.] In all other respects, the proceedings to establish the corporation, or review the action of the commissioners, shall be as provided in cases where all the inhabitants residing on tlje territory to be organized into such corporation, reside in one county. [66 v. 153, § 26.] Sec. 1568 It. S. [Power of officers as in other cases.] When the jurisdiction of municipal officers is coextensive with the county in which the corporation is situated, their jurisdiction in corporations embracing territory of more than one county 24 THE OHIO MUNICIPAL CODE. [Code § 5 shall be coextensive with each of the counties in which any part of such territory is located. [66 v. 153, § 27; (S. & C. 1552).] Sec. 1569 R. S. [Fees to be paid in advance.] Each officer shall receive for the services required of him under this division, the same fees he would be entitled to for similar services in other cases, and, unless such fees are paid in advance, for services under this chapter, by the agent of the petitioners, of whom demand may be made, and by some person interested for services under other chapters of this division, the officer shall not be required to perform the service. [66 v. 153, § 28.] Sec. 1569a R. S. [Montgomery county; compensation of agent of petitioners.] [95 v. 411.] 1 (1) Though this section was en- S., it is expressly repealed by § 231 acted as a supplement 'to § 1569 R. of the code. Sec. 1570 R. S. [Proceedings for change of name.] Whenever it is desirable to change the name of a village or hamlet, a petition for the purpose, subscribed by at least twelve free- holders of the corporation, setting forth the reasons why such change is desirable, shall be filed in the court of common pleas of the county in which the corporation, or the larger part there- of, is situate; and a notice, setting forth the object of the petitioners, and the time when and place where the petition will be heard, shall be published for thirty days previous to the hearing, in a newspaper of general circulation in the cor- poration. [40 v. 28, §§ 2, 3; S. & C. 1138.] 1 (1) See §§ 5852 to 5857 R. S., inclusive. Sec. 1571 R. S. [Power of court; costs; saving rights, etc.] The court, upon being satisfied by proof that the prayer of the petitioners is just and reasonable, that notice, as required in the foregoing section, has been given, that at least three-fourths of the inhabitants of such corporation desire the change, and that there is no other municipal corporation in the state with the name as prayed for, may order such change to be made; and the clerk of the court shall thereupon tax the petitioners with the costs, and record the proceedings in a book to be kept by him for the purpose ; provided, that such change shall not alteV or affect any right, liabilitv, action, or right of action, civil or criminal. [40 v. 28, §§ 1, 3, 4; S. & C. 1138.] Code § 6] ANNEXATION OF TERRITORY. 25 Sec. 1571a E. S. [Error in proceedings does not render void if tax has been paid.] No error, irregularity or defect in any proceeding for the creation of a municipal corporation shall render it invalid if the territory sought to be incorporated has been recognized as such corporation, and any tax levied upon it as such has been paid, or it has been subjected to the authority of the council without objection from its inhabitants. [1883, April 3: 80 v. 92.] 3. ANNEXATION AND DETACHMENT OF TERRI- TORY. Sec. 6. [Statutes Re-enacted.] Territory may be annexed to, or detached from, municipal corporations, in the manner now provided in Title XII, Division 2, Chapter 5, 1 of the Revised Statutes of Ohio and as also provided in an act entitled " An act to provide for detaching unplatted farm lands from cities and incorporated villages and for attaching the same to adjacent townships," passed April 23, 1902, Ohio Laws, vol. 95, page 259. (1) Title XII, Div., 2, Chap. 5, contains §§ 1589-1616 R. S., inclu- Subdivision 1. Annexation of Territory on Application of its Citizens. Sec. 1589 R. S. [Annexation of adjacent territory; petition therefor.] The inhabitants residing on any territory adjacent 1 to any city or village may, at their own option, cause such terri- tory to be annexed to such city or village, in the manner here- inafter stated. 2 Application for such purpose shall be by petition, addressed to the commissioners of the county in which such territory is located, signed by a majority of the adult freeholders residing on such territory, and shall contain the name of some person who is authorized to act as the agent 8 of the petitioners in securing such annexation, and a full descrip- tion of the territory, and be accompanied by an accurate map or plat thereof. 4 [66 v. 264, §§ 679, 680.] 26 THE OHIO MUNICIPAL CODE. [Code § 6 (1) Adjacent territory. — Terri- tory on the other side of a navi- gable stream would be contiguous or adjacent territory, which might be annexed. Blanchard v. Bissell, 1 1 O. S. 96. (2) Constitutionality. — Annex- ation of territory to a municipality is not unconstitutional though pri- vate property in the annexed terri- tory is thereby made liable for taxes to pay prior debts of the municipal- ity and though the owner of the property so taxed might not have been qualified to vote on the ques- tion of annexation, because a non- resident. Powers v. Wood Co., 8 0. S. 285; Blanchard v. Bissell, 11 O. S. 96. Consent of inhabitants of terri- tory to be annexed is not necessary unless required by statute and their remonstrance will not invalidate the annexation. Blanchard v. Bissell, 11 0. S. 96. (3) Agent. — This provision held not applicable to annexation on ap- plication of a corporation. Pollock v. Toland, 25 C. C. 75; 1 C. C. (N. S.) 315. (4) Effect of annexation. — School district. — A school district is not divided because a part of it is annexed to a city or village. State v. Raine, 4 C. C. 72 (aff'd 29 B. 108.) See Hamlin v. State, 22 B. 279. Roads. — Public roads in the ter- ritory annexed become public high- ways of the city or village, without being " accepted and confirmed by ordinance." Steubenville v. King, 23 0. S. 610. Part of a county road coming within a city by annexation is sub- ject to the city's control and im- provement. R. R. Co. v. Defiance, 10 C. C. 27 ;" and city may assess for its improvement. Ridenour v. Saffin, 1 H. 464; county commission- ers can not sue for obstruction of part of road brought within a city or village. R. R. v. Comm'rs, 35 O. S. 1 ; but turnpike company's rights are not extinguished without appro- priation. Tp. Co. v. Cincinnati, 4 Rec. 325; though a toll gate can- not lawfully be maintained on terri- tory brought into a municipality by annexation. Turnpike Co. v. Kelley, 41 O. S. 144. Justices of the Peace. — See Reed v. Maxfield, 32 B. 50; State v. Da- vies, 12 C. C. 218; Pfeiffer v. Green, 3 N. P. 156. Taxation. — When the boundaries of a municipality are extended prior to the date of the certification of the levy of municipal taxes, no special provision is necessary to authorize the levy of taxes on the annexed property, and the county auditor may be compelled by mandamus, on relation of the municipality to levy on the annexed property the munici- pal instead of the township tax. State ex rel. v. Craig, 21 C. C. 13. When annexation complete. — On the passage and legal publica- tion of the municipal ordinance, ac- cepting the application for annexa- tion of adjacent territory, such ter- ritory becomes a part of the munici- pality, although the map, transcript and other papers are not filed until a later date. State ex rel. v. Craig 21 C. C. 13. FORM OF PETITION BY INHABITANTS FOR ANNEXATION. To the Commissioners of County, State of Ohio: The undersigned, being a majority of the adult freeholders residing on the following described territory situated in the County of and adjacent to the city [or village] of , to-wit: (Here insert accurate description of territory to be annexed.) An accurate map of which territory is hereto attached; Code § 6] ANNEXATION OF TERRITOBY. 27 Respectfully petition that the said above described territory may be an jiexed to the city [or village] of And is hereby authorized to act as agent of the petitioners to securing such annexation. (To be signed by a majority of the adult freeholders residing in the ter- ritory to be annexed.) A map marked " Map of territory to be annexed to the city [or village] of ," should be attached to the petition. Sec. 1590 R. S. [To be presented to commissioners; their duties; duties of clerk of corporation.] Such petition shall be presented to the board of commissioners at some regular session thereof, and when so presented the same proceedings shall be had, in all respects, as far as applicable, and the same duties in respect thereto shall be performed by the commissioners and other officers, as are required in the case of an application to be organized into a village under the provisions of this divi- sion ; * and the final transcript of the commissioners, and the accompanying map or plat a*hd petition, shall be deposited with the clerk of the city or village to which such annexation is pro- posed to be made, who shall file the same in his office. 2 [66 v. 265, § 681.] (1) Sections referred to. — This refers to §§ 1553-1571a R. S., inclu- sive, supra. (2) Construction of sections- — All the laws (Chapters 2 and 5 of Division 2, title 12 R. S.) relat- ing to the general subject of creation of villages and the annexation of ter- ritory to those already created are to be treated for purposes of con- struction as one act. Shugars v. Williams, 50 0. S. 297. The course of procedure at the hearing before the county commis- sioners directed by § 1557 is appli- cable also to such proceedings in the case of annexation. lb. Provisions of § 1556 R. S. requir- ing deposit of petition with county auditor held not applicable to the case of proceedings for the annexa- tion of territory on the application of a corporation. Pollock v. Toland, 1 C. C. (N. S.) 315; 25 C. C. 75. Amendment of petition. — The authority given in § 1557 R. S. to amend the petition applies also to a petition for the annexation of terri- tory, and it is not necessary to the exercise of the discretion vested in the commissioners that an ordinance should previously have been passed authorizing the designated agents to apply for such amendment. Shugars v. Williams, 50 0. S. 297. Discretion of commissioners. — The decision of the commissioners is final on the merits of the case presented to them, and injunction is allowed only for errors or irreg- ularities in the proceedings. Hul- bert v. Mason, 29 0. S. 562. Posting of Notice. — One of the provisions relating to the organiza- tion of villages, which is incorpor- ated by reference here, is that relat- ing to the posting of notice of the application. In case of annexation of territory, such notice must be posted on the territory proposed to be annexed. Franklin v. Croll, 31 0. S. 647. 28 THE OHIO MUNICIPAL CODE. [Code § 6 FORM OF NOTICE OF PETITION. LEGAL NOTICE. Notice is hereby given that on the day of 19 . . , there was presented to the Board of Commissioners of the County of , State o*f Ohio, a petition signed by a majority of the adult freeholders re- siding in the following described territory situated in the County of and adjacent to the city [or village] of , to-wit: (Here copy description of territory contained in petition.) Praying therein that said territory be annexed to the city [or village] oi , in the manner provided oy law and designating the under- signed as their agent in securing such annexation. The said Board of Commissioners has fixed the day of , 190.. (not less than sixty days after petition is filed), as the time for hearing said petition at the office of the Commissioners in (here state place of hearing). Agent of the Petitioners. FORM OF ORDER OF COMMISSIONERS FOR ANNEXATION. The Commissioners of the County of ." , State of Ohio, pro- ceeding this day to hear the petition of and others to obtain the annexation of the territory in their petition described to the city [or village] of , and having in open meeting heard all the persons desiring to be heard for or against" the granting of said petition and con- sidered the affidavits presented with reference thereto, and being fully ad- vised find that said petition contains all the matters required by law, that its statements are true; that the territory sought to«be annexed is adjacent to the said city [or village] of ; that the petition contains a full description of said territory; that the map of said territory attached to the petition is accurate; that said petition is signed by a majority of the adult freeholders residing on the territory sought to be annexed; that the required legal notice of the petition has been given, and that it is right and proper that said petition should be granted. It is hereby ordered that the prayer of said petition be granted, and that the territory described in said petition may be annexed to the city [or vil- lage] of in accordance with law, and that a certified transcript signed by a majority of this Board of all the orders and proceedings of this Board relative to said petition and hearing thereon, together with said petition and map attached thereto, and all the papers on file relating to said matter be deposited at once with the clerk of the said city [or village]. Sec. 1591 R. S. [Duties of clerk and council.] At the next regular session of the council of such city or village, after the expiration of sixty days from the date of such filing, the clerk shall lay the transcript and the accompanying map or plat and petition before the council ; and thereupon the council shall, by Code § 6] ANNEXATION OF TERRITORY. 29 resolution or ordinance, accept or reject the application for annexation. [66 v. 265, § 682.] FORM OF ORDINANCE ACCEPTING APPLICATION FOR ANNEX- ATION. Ordinance No Accepting application for annexation of territory. Be it ordained by the council of the city [or village] of , State of Ohio: Sec. 1. That the application of and others for the an- nexation of the following described territory in the County of and adjacent to the city [or village] of , to-wit: (Here copy description of territory contained in the petition.) An accurate map of which territory, together with the petition for its annexation, and other papers relating thereto, and a certified transcript of the proceedings of the County Commissioners in relation thereto are on file with the clerk of the council of said city [or the clerk of said village], be and the same is hereby accepted [or rejected]. Sec. 2. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed 10 ... President of Council, Attest Clerk. Sec. 1592 R. S. . [Rejection of application and its effect.] If the resolution or ordinance is to reject such application, no further proceedings shall be had; but such rejection shall not be a bar to any application thereafter to the county commis- sioners on the same subject. [66 v. 265, § 683.] Sec. 1593 R. S. [Proceedings when application is allowed.] If the resolution or ordinance is an acceptance of such appli- cation, the clerk of the city or village shall make two copies, containing the petition, map or plat accompanying the same, transcript of the proceedings of the commissioners, and resolu- tions and ordinances in relation to the annexation, with a certifi- cate to each copy that the same is correct, which certificate shall be signed by him in his official capacity, and be authenticated by the seal of such city or village, if any there be, one of which copies he shall forthwith deliver to the recorder of the county, whose duty it shall be to make a record thereof in the proper book of records, and file and preserve it, and the other copy shall be forwarded by the clerk to the secretary of state. [66 v. 265, § 684.] 30 THE OHIO MUNICIPAL CODE. [Code § 6 Sec. 1594 R. S. [Petition to enjoin the proceedings.] If the clerk, within sixty days from the filing of such transcript, map, or plat and petition in his office, receive notice from any person interested that he has presented to the court of common pleas, or a judge thereof, a petition to enjoin further proceedings, the clerk shall not report to the council such transcript, map, or plat and petition filed with him, until after the final hearing and disposition of the petition so presented to such court or judge. 1 [66 v. 265, § 685.J (1) Scope of injunction, etc. — must be presented to court or judge. See notes under § 1562 R. S., p. 19. Ritter v. Falkinburg, 49 B. 277. How petition presented. — Til- For form of petition see form ing petition with clerk of court is under § 1562 R. S. not compliance with statute, but it Sec. 1595 R. S. [Proceedings when petition dismissed.] If the court or judge make an order dismissing the petition, the clerk of the court shall immediately forward a certified copy of it to the clerk of the corporation, who, at the next regular meeting of the council, shall lay before the council such transcript, map, or plat, and the petition accompanying the same, as if no such petition had been so presented to the court or judge. [66 v. 265, § 686.] Sec. 1596 R. S. [Proceedings when injunction allowed.] If the court or judge enjoin the clerk from making such report to the council as before provided, a certified copy of the order shall be immediately forwarded by the clerk of the court to the clerk of the corporation, who shall file the same with such transcript, map or plat, and petition, and preserve the same in his office, and thereupon no further proceedings shall be had in the mat- ter ; but such order of the court or judge shall not operate as a bar to any applications thereafter to the commissioners of the county for such purpose. [66 v. 266, § 687.] Sec. 1597 R. S. [Rights of inhabitants if annexation allowed.] When the resolution or ordinance, accepting such annexation has been adopted, the territory shall be deemed a part of the city or village, and the inhabitants residing thereon shall have all the rights and privileges of the inhabitants within the origi- nal limits of such city or village. [66 v. 266, § 688.] Code § 6] ANNEXATION OF TERRITORY. 31 Sec, 1598 R. S. [Cases where corporation is situated in more than one county.] Where the corporation is situated in two or more counties, or the territory so to be annexed is situated in a different county from that in which the corporation or some part of it is situated, the proceedings, so far as practicable, shall be as directed in sections fifteen hundred and sixty-six, and fif- teen hundred and sixty-seven. 1 [66 v. 266, § 689.] (1) For forma see note to § 1562 R. S., page 20. Subdivision 2. Annexation of Territory on Application of a Corporation. Sec. 1599 R. S. 1 [General provisions as to right.] When the inhabitants generally 2 of any municipal corporation desire to enlarge its corporate limits by the annexation of contiguous 3 territory, it shall be done in the manner hereinafter specified, 4 provided, however, that no proceedings shall be had to annex any village, hamlet 5 or territory lying contiguous and adjoining any city of the third grade of the first class, 6 unless the major- ity of all the owners of real estate residing in such village, hamlet or territory sought to be annexed shall petition therefor, and which petition shall be filed with the clerk of such city. [95 v. 113; 74 v. 36, § 690.] (1) This section was enacted April 4, 1902, as an amendment of § 1599 R. S., and under § 212 of the code is to be regarded as ex- pressly re-enacted. (2) Desire of inhabitants. — No mode being provided for obtain- ing the desire of the inhabitants, generally, the act of the council ex- pressing it, is sufficient. Croll v. Franklin, 40 O. S. 340. (3) Contiguous territory. — Ter- ritory separated from the munici- pality by a navigable stream is " con- tiguous " territory. Blanchard v. Bissell, 11 O. S. 96. (4) Constitutionality. — Statute is not unconstitutional because it does not provide for submission of question of annexation to a popular vote. State v. Cincinnati, 52 O. S. 419. What territory may be an- nexed. — The municipal limit may be extended over an unincorporated village. Blanchard v. Bissell, 11 O. S. 96. Effect of annexation. — See note 3 under § 1589 R. S. ( 5 ) See note " Status of ham- lets," under § 1 of the code. (6) Grades and classes under new Code. — It appears that in several instances, the Legislature, in reenacting old sections of the stat- utes: as parts of the new Code, re- tains the objectionable classification of municipalities. These instances are of two kinds ; first, where the old statute confers powers upon a par- THE OHIO MUNICIPAL CODE. (Code § 6 ticular grade and class of cities only, and second, where a particular grade and class is excepted from the provisions of a general law. As to the first of these cases it will gen- erally be found that the particular statute has been upheld in a suit contesting its constitutionality on the ground of its special applica- tion, and, the municipality which was a party to the suit having acted upon the faith of the stability of the former judgment, a peculiar lo- cal subject-matter has been brought into existence, which would proba- bly insure a reaffirmation of the va- lidity of the special act upon the principles announced in Taft v. Cincinnati, 63 O. S. 141. As to those instances in the new Code where in the reenactment of old sections, particular grades and classes oi cities are retained as ex- ceptions to the general operation of the law, it may well be contended, in view of the expressed purpose ana intent of the new act, that such ex- ceptions are abrogated and nullified, and the reenacted statute made to operate uniformly throughout the state, as effectually as if the excep- tions had never existed, or had been eliminated by amendment. The new Code expressly abolishes the old classification by dividing all munici- pal corporations into cities and vil- lages, thus leaving no municipalities upon which such exceptions can op- erate. It provides further (see concluding sentence of sec. 231) that " this act shall supersede all acts and parts of acts not herein ex- pressly repealed, which are incon- sistent herewith," and, (in sec. 229) that in the event that any section or part of a section shall be held to be unconstitutional, the remainder shall nevertheless be given full force <»nd effect. These provisions sug- gest the legislative intent to be that where parts of sections retained in the Code are inconsistent with the new classification of municipalities or are unconstitutional in continu- ing the old classification, such parts should be disregarded, and the re- mainder of the section should be given the same force and effect throughout the state as if the excep- tions had been omitted. It cannot be said that the legislature would not have reenacted the old sections herein referred to without the ex- ceptions as to particular grades and classes of cities. In fact, it appears that the legislature has expressly declared its intent to be that such exceptions are superseded and re- pealed as inconsistent with other provisions of the Code. As to the rule that an unconstitutional part or clause of an act may be rejected and effect given to the remainder where it appears that the one is not dependent upon the other, see State ex rel. v. Brewster, 39 O. S. 653, 659; Cincinnati v. Bryson, 15 O. 625, 645; Bowles v. State, 37 O. S. 35; R. R. v. Commrs., 31 O. S. 338, 343 ; State v. Baker, 55 O. S. 1 ; Pump- v. Commissioners, 69 O. S. 448. That an unconstitutional act may become constitutional by amendment is de- termined in State ex rel. v. Cincin- nati, 52 0. S. 419, and it may also be contended that the same result would follow the repeal, where clearly intended, of an unconstitu- tional proviso or exception in an otherwise constitutional statute. St. Ry. Co. v. St. Ry. Co., 50 O. S. 603. On the other hand, it has been held that where an act of the Legis- lature required to have uniform oper- ation throughout the state, express- ly excepts from its operation one or more cities, the whole act is invalid, and the court will not hold the ex- ception alone invalid and thus ex- Code § 6] ANNEXATION OF TERRITORY. 33 tend the act over the excepted cities, method prescribed by the constitu- tor the Legislature has not enacted tion for amending statutes, even it therein. State ex rel. v. Buckley, though its requirements in that re- 60 O. S. 273. Moreover it may be spect are directory only. Const, said that the Legislature should not Art. II., sec. 16; Lehman v. Mc- be held to have disregarded the Bride, 15 0. S. 573. Sec. 1600 R. S. [Council may pass preliminary ordinance.] The council or board of trustees of the corporation, by a vote of not less than a majority of the members elected, shall pass an ordinance authorizing such annexation to be made, and di- recting the solicitor of the corporation, or some one else to be named in the ordinance, to prosecute the proceedings necessary 1 to effect such annexation. [74 v. 36, § 691.] ( 1 ) Successive applications. — The agent appointed continues The ordinance authorizes successive to act though the county commis- applications to the county commis- sioners are reversed by the courts, sioners until the agent succeeds or until final decision on the merits, there is a final decision on the mer- lb. its. Croll v. Franklin, 40 O. S. 340. FORM OF ORDINANCE AUTHORIZING ANNEXATION. Ordinance No To authorize annexation of certain territory to the city [or village] of Be it ordained by the council of the city [or village] of , State of Ohio: Sec. 1. That the annexation of the following described territory: (Here insert description of territory to be annexed), to the city [or village] of be and the same is hereby authorized. Sec. 2. That the solicitor [or some other person named] be and he is hereby authorized to prosecute the proceedings necessary to effect such an- nexation. Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed this day of , 19 ... President of Council. Attest Clerk. Sec. 1601 R. S. [Petition to county commissioners.] The application of the corporation to the county commissioners for such purpose shall be by petition, setting forth that, under an ordinance of the council or board of trustees, the territory therein described was authorized to be annexed to the corpo- 34 the ohio municipal code. [Code § 6 ration; and the petition shall contain an accurate description of such territory, and be accompanied by an accurate map or plat thereof. 1 [74 v. 36, § 692.] (1) Agent. — Where a petition is thorized to act as agent of the peti- presented on behalf of a city and tioners. Section 1589 does not apply consented to by the corporation to annexation on application of a counsel, it is not necessary that such corporation. Pollock v. Toland, 1 C. petition contain name of person au- C. (N. S.) 315; 25 C. C. 75. FORM OF PETITION BY THE CORPORATION FOR ANNEXATION OF TERRITORY. To the Commissioners of County, State of Ohio : The city [or village] of respectfully represents that by an ordinance duly passed by its council on the day of , 190. ., the following described territory (here copy description of territory contained in the ordinance) was authorized to be annexed to said city [or village]. An accurate map of which territory is hereto attached. And said city [or village] respectfully petitions that said territory may be annexed to said city [or village]. City [or village] of by City [or village] Solicitor. Sec. 1602 R. S. [Proceedings before commissioners.] When such petition is presented to the commissioners, like proceed- ings shall be had, in all respects, so far as applicable, as are required under the provisions of subdivision one of this chap- ter. 1 [66 v. 266, § 693.] (1) Sections referred to. — This referred to, under § 1590 R. S. See refers to §§ 1589-1616 R. S. inclu- generally, notes under § 1590 R. S. sive. And see notes giving sections Agent. — See note to § 1601 R. S. supra. Sec. 1603 R. S. [Cases where corporation in more than one county.] Where the corporation is situated in two or more counties, or the territory to be annexed is situated in a different county from that in which the corporation or some part of it is situated, the proceedings shall be in the county in which the ter- ritory to be annexed, or some part of it, is situate. [66 v. 267, § 694.] Sec. 1603a R. S. [When such territory lies partly in another county or counties.] Where the territory sought to be an- nexed is partly in the county in which the corporation is sit- uated and partly in another county, or counties, the proceedings shall be in that county in which there is the largest number of qualified voters residing upon the territory sought to be an- nexed, and, so far as practicable, such proceedings shall be as directed in sections fifteen hundred and sixty-six and fifteen hundred and sixty-seven. [1888, April 13 : 85 v. 224.] Code § 6] ANNEXATION OF TERRITORY 35 Sec. 1604 R. S. [Rights when annexation complete.] When the annexation of such described territory has been completed, the same shall be deemed a part of such municipal corporation, and the inhabitants residing on the territory shall have all the rights and privileges of the inhabitants residing within the original limits of the corporation. 1 [66 v. 267, § 695.] (1) Effect of annexation. — See Consent of inhabitants- — The note 3 under § 1589 R. S. fact that the inhabitants of the an- Taxes may be levied on the an- nexed territory did not consent to nexed territory to pay pre-existing the annexation and that it was done debts of the municipality. Powers v. against their remonstrance, does not Wood Co., 8 0. S. 285. invalidate the annexation. Blanch- ard v. Bissell, 11 O. S. 96. Sec. 1605 R. S. [When errors not fatal to proceedings.] No error, irregularity, or defect in such proceedings shall render it invalid, if the addition has been recognized as a part of the corporation, and taxes levied upon it as such have been paid, and it has been subjected to the authority of the council, without objection from its inhabitants. [66 v. 267, § 696.] Subdivision 3. Annexation of One Municipal Corpora- tion to Another. Sec. 1606 R. S. [Annexation of contiguous territory to cor- porations.] When the inhabitants, generally, of any municipal corporation, the territory of which shall be contiguous, and ad- joining the territory of another municipal corporation, desire to be annexed to such other corporation, such annexation shall be effected in the manner hereinafter described. 1 [66 v. 267, § 697.] (1) See notes under § 1599 R. S. supra. Sec. 1607 R. S. [Submission of question to vote.] The trust- ees or council of the corporation proposing such annexation shall submit the question of annexation to the electors of the corporation, and the trustees or council of the corporation to which the annexation is proposed to be made, shall also submit the same question to its electors. [QQ v. 267, § 698.] Sec. 1608 R. S. [Ordinance for purpose.] The submission shall be by ordinances adopted by the trustees or council of each 36 the oino municipal code. [Code § 6 corporation at least thirty days prior to an annual election, at which election the vote shall be taken, and the ordinances shall each prescribe the manner in which such submission shall be made, and they shall be published in each corporation, by posters or otherwise, in such manner as the respective trustees or coun- cils may deem most expedient, for the period of-at least twenty days prior to the day fixed for such election. [1904, April 25, 97 v. 190; 66 v. 267, § 699.] FORM OF ORDINANCE SUBMITTING TO VOTE THE QUESTION OF ANNEXATION TO ANOTHER MUNICIPALITY. Ordinance No To submit to vote the question of annexation of the city [or village] of to the city [or village] of Be it ordained by the council of the city [or village] of : Sec. 1. That the question of the annexation of the city [or village] of to this city [or village] of be submitted to the qualified voters of the city [or village] of at the annual elec- tion in 19 Sec. 2. The question whether such annexation shall be made shall be put in the form of " Shall the city [or village] of be annexed to the city [or village] of ," " Ye3," " No," and printed on ballots, and those who are in favor of such annexation shall place a cross mark after the word " Yes," and those who are opposed to such annexation shall place a cross mark after the word " No." Sec. 3. Ballot boxes shall be provided and votes counted and returned and the election conducted as regular municipal elections. Sec. 4. The clerk of council [or village clerk] is hereby directed to publish this ordinance in a newspaper of general circulation in this cor- poration at least twenty days prior to the date of the election hereby au- thorized. Sec. 5. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed this day of , 19 President of Council. Attest Clerk. Sec. 1609 R. S. [Result, if favorable, to be certified.] If a majority of the electors of each corporation, voting on the ques- tion so submitted, is in favor of such annexation, the trustees or council of each shall thereupon cause the result to be certified to the other corporation. [66 v. 268, § 700.] Sec. 1610 R. S. [Council, etc., to appoint commissioners.] The trustees or council of each corporation shall then appoint, Code § 6] ANNEXATION OF TERRITORY. 37 by resolution or ordinance, three commissioners, whose duty it shall be to arrange the terms, and conditions of such annexation, and report the result of their action to the trustees or council of their respective corporations. [66 v. 268, § 701.] FORM OF RESOLUTION APPOINTING COMMISSIONERS. Be it resolved by the council of the city [or village] of , that , f and !be and they are hereby appoint- ed commissioners to represent the city [or village] of in arrang- ing with like commissioners from the city [or village] of the terms and conditions on which said city [or village] of is to be annexed to the said city [or village] of And that said commissioners shall report the result of their action to the council of this corporation. Adopted this day of , 190 . . . Sec. 1611 R. S. [Report of commissioners.] When the report of such commissioners shall be approved by an ordinance passed by each corporation, certified copies thereof, signed by the pre- siding officer of the trustees or council of each corporation, and the respective clerks of the corporations, and authenticated by the corporate seal of each, if any there be, shall be filed in the office of the clerk of the corporation to which such annexation is proposed to be made. [66 v. 268, § 702.] FORM OF ORDINANCE APPROVING REPORT OF COMMISSIONERS. Ordinance No To approve report of Commissioners on annexation of city [or village] of to the city [or village] of Whereas, The council of the city [or village] of on the day of , 19' . ., duly passed an ordinance submitting to popular vote the question of the annexation of the city [or village] of to said city [or village] and the city [or village] of on the day of passed a like ordinance submitting the same question to the qualified voters of that said city [or village] ; And Whereas, A vote was taken in each of the said corporations under the provisions of the respective ordinances, and a majority of the qualified voters in each corporation voted in favor of annexation on tjie question thus submitted ; And Whereas, Thereupon the council of the city [or village] of appointed , , and commis- sioners to act for said city [or village] and the council of the city [or village] of appointed , , and commissioners to act for that said city [or village] for the purpose of arranging the terms and conditions of such annexation, and said commis- sioners reported the terms of annexation as agreed to by them as follows: (Here insert the report of commissioners in full) ; 38 THE OHIO MUNICIPAL CODE. [Code § 6 Now therefore, be it ordained by the council of the city [or village] of , State of Ohio : Sec. 1. That the report of the said commissioners above set forth be and the same is hereby approved. Sec. 2. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed this day of ,19 ... President of Council. Attest Clerk. Sec. 1612 R. S. [Clerk of corporation to make transcripts.] The clerk shall, under the direction of the corporation, make and certify two transcripts of all the ordinances, abstracts of the returns of the votes, and other papers relating to such an- nexation, one of which shall be filed in the office of the recorder of the county, who, having made a record thereof, shall file and preserve it, and the other shall be forwarded by such clerk to the secretary of state. [66 v. 268, § 703.] Sec. 1613 R. S. [When annexation to be deemed complete; power of corporation thereafter.] When the transcripts are cer- tified, and one of them is delivered to the recorder and the other forwarded to the secretary of state, as aforesaid, the an- nexation shall be deemed complete; and the corporation to which the annexation is made may pass such ordinances as will carry into effect the terms thereof, so far as the same are not inconsistent with this title, and with the regular and proper government of the corporation under its provisions; and any part of such terms so inconsistent shall be deemed void, but their nullity shall in no manner affect such annexation. [66 v. 268, § 704.] Sec. 1614 R. S. [Corporations to be governed as one; not to affect rights or liabilities.] When the annexation is completed, the two former corporations shall be governed as one, embracing the territory of each ; and the inhabitants of all such territory shall have equal rights and privileges ; but such annexation shall not affect any rights or liabilities existing at the time of the annexation, either in favor of or against the corporations ; and suits founded on such rights and liabilities may be commenced, and pending suits prosecuted to final judgment and execution, as though such annexation had not taken place. 1 ^66 v. 268, I 705.] Code § 6] ANNEXATION" OF TERRITORY. 39 (1) Territory annexed pending But such tax must not with tho merger of municipalities. — If other taxes levied on said territory while proceedings to annex territory exceed the statutory limit. lb. to a village are pending, the village Agreement as to grades. — An is annexed to a city, "the people of agreement in the terms of annexa- such territory become a part of the tion stipulating that street grades city, although they did not partici- should not be altered except by con- pate in the vote on the question of sent of property owners or the pay- annexation of the village to the ment of damages is void so far as it city; and they have no remedy is a contract not to legislate and against becoming part of the city. has the effect merely of putting Mohn v. Collins, 32 B. 77. the grades on the same basis as city Taxes on annexed municipality grades and gives abutting property alone- — A tax which by agreement owners no greater rights. Thale v. between a city and a village annexed Cincinnati, 1 N. P. 427 ; Corry v. to it was levied on the village prop- Cincinnati, 22 B., 194. erty alone to pay the bonds of the Rights after annexation. — A village, is not void for want of uni- city which has annexed a village has formity. Cleveland v. Heisley, 41 0. no greater rights with respect to a S. 670. street railway within the limits of The existence of the village an- the village than the village had. Cin- nexed is continued only so far as to cinnati v. Street Railway, 17 B. 192. legalize the tax for its debt. lb. Sec. 1615 R. S. [How part of village attached to a city; existing indebtedness.] When a city and village adjoin each other, and the inhabitants of any portion of the territory con- stituting a part of such village desire to be detached therefrom, and annexed to such city, the commissioners of the proper county, on the application of the council of the city, and on the written request of two-thirds of the legal voters inhabiting the territory proposed to be so annexed, may cause such alteration to be made, and the boundaries of such city, and such village, respectively, to be established in accordance with such applica- tion and request, and such territory shall thereafter constitute a part of such city ; provided, that in all their proceedings in the premises, the county commissioners shall, as far as the same are applicable, be governed by the provisions of this division, prescribing the manner of proceeding on applications for the annexation of adjacent unincorporated territory to villages and cities ;* and provided further, that the commissioners shall ascer- tain and apportion the amount of the existing indebtedness of the village, which shall be assumed and paid by the city on the annexation of the territory aforesaid. And said apportionment shall be made in the proportion of the total tax duplicate for the annexed territory transferred to the city, to the total tax dupli- cate remaining in and for the unannexed portion of the village, 40 THE OHIO MUNICIPAL CODE. [Code § 6 and to ascertain, adjust, and divide between the city and the unannexed portion of said village, all moneys and other credits belonging to the village in the same proportion as is above pro- vided for division and apportionment of any indebtedness, and to order the amounts so adjusted and divided- to be paid or de- livered by the parties in possession thereof to the city and unan- nexed portion of said village. 2 [88 v. 39 ; 68 v. 85, § 1.] (1) What provisions applica- corporate action, accepted the an- ble. — The provisions of §§ 1589 to nexation. lb. See further, as to 1605, referred to, govern, not alone what specific provisions are applica- the actions and duty of the county ble. Pollock v. Toland, 1 C. C. (N. commissioners under § 1615, but the S.) 315; 25 C. C. 75. entire procedure, including action of ( 2 ) Forms. — See forms under § municipal authorities. Rost v. Glen- 1589, § 1590, and § 1591. These ville, 1 N. P. (N. S.) 65. So the an- forms may be adapted to suit the nexation is not complete until the circumstances of the case provided indebtedness has been apportioned for in this section, and the municipality has, by proper See notes to § 1614 above. Subdivision 4. Detachment of Territory from Munic- ipal Corporations. Sec. 1616 R. S. 1 [How territory detached from municipal cor- poration and attached to township.] Upon petition of a ma- jority of the freehold electors owning lands in any portion of the territory of a city, village or hamlet 2 accurately described in such petition, with an accurate map or plat thereof, praying to have the said portion of territory detached from said city, village or hamlet, the commissioners of the county in which such portion of territory is situated, shall, with the assent of the council of the city or village or trustees of the hamlet, given in an ordinance passed for that purpose, and not otherwise, detach such portion of the territory from such city, village or hamlet an' A attach the same to any township contiguous thereto, or, if the petition so request, shall erect the same into a new township, the boundaries of which need not include twenty-two square miles of territory; and the petition, map, ordinance, and the order of the commissioners, certified by the county auditor, shall be recorded in the plat book in the office of the county recorder, and as soon as the record is made, the proceeding shall be deemed complete, both as to the detaching of such territory from the municipal corporation and the annexation thereof to the town- ship, or the erection of such territory into the new township. 3 [1904, April 21, 97 v. 143; 95 v. 120; 74 v. 109.] (1) This section was enacted (2) See note "Status of Ham- April 10, 1902, (95 v. 120) , to amend lets " under § 1 of the code. § 1616 H. S. and under § 212 of the (3) Forms.— The forms given code is to be regarded as expressly under §§ 1589, 1590, and 1591, may re-enacted. The section was again be adapted to suit the circumstances amended April 21, 1904. provided for in this section. Code § 6] DETACHMENT OF TERRITORY. 41 "All act to provide for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships." [Sec. 1.] [Petition for detachment of unplatted farm lands.] The owner or owners of unplatted farm lands lying within the corporate limits of any city or village may file a petition in the court of common pleas of the county in which such lands are situate, in which such owner or owners shall be named as plaintiffs, and such city or village shall be the defendant, set- ting forth the reasons why such lands should be detached, and the relief prayed for. On such petition a summons shall issue as in other actions, and such cause proceed as in other causes. [April 23, 1902, 95 v. 259.] FORM OF PETITION FOR DETACHMENT OF UNPLATTED FARM LANDS FROM A MUNICIPAL CORPORATION. Court of Common Pleas, County, Ohio. Plaintiff. vs. The City [or village] of PETITION. Defendant. Plaintiff says that he is the owner of the following described property, to-wit: (Here insert description of farm lands sought to be detached.) Plaintiff further says that the said property above described is unplatted farm land and lies within the corporate limits of the city [or village] of Plaintiff further says that the said land should be detached from the said city [or village] for the reason that (here set forth the reasons why the land should be detached). Wherefore, plaintiff prays that the said property may be detached from the city [or village] of and be attached to the adjacent town- ghip of in said county of and for all other relief to which he may be entitled. Attorney for Plaintiff. [Sec. 2.] [Decree of court.] On the hearing of such cause if the court shall find that said lands are farm lands and that the same may be detached without materially affecting the good government of adjacent territory within such city or village limits, an order and decree may be made by the court in his discretion and entered on the record that such lands be detached from such city or village and be attached to the most convenient 42 THE OHIO MUNICIPAL CODE. [Code § 6 adjacent township in the same county, and thereafter such land shall not be a part of said city or village, and shall be a part of the township to which the same has been so attached, and the costs taxed as to the court may seem right. 1 [April 23, 1902, 95 v. 250.] (1) Validity. This act held con- Hill v. McClure, 27 C. C. 376; 6 stitutional. It does not confer leg- C. C. (N. 8.) 197 (aff'd 72 0. S. islative power on the court. Fair- 676.) view v. Giffee, 73 O. S. 183; Grover FORM OF DECREE FOR DETACHMENT. Court of Common Pleas, County, Ohio. Plaintiff, vs. The City lor village 1 of DECREE. Defendant. This cause coming on to be heard upon the pleadings and evidence and the Court being fully advised finds that the lands in the petition described are farm lands unplatted and within the corporate limits of the city [or village] of ; that the said lands may be detached from the said city [or village] without materially affecting the good government of adjacent territory within said city [or village] limits. Wherefore, it is ordered, adjudged and decreed that said lands be de- tached from the said city [or village] of and be attached to the adjacent township of in the said county of Code § 7] 43 II POWERS OF MUNICIPALITIES. 1. GENEKAL POWEKS. Sec. 7. [General powers of municipalities.] 1 Every city and village shall be a body politic and corporate, 2 which shall have perpetual succession, may use a common seal, 3 sue and be sued, 4 and acquire property by purchase, gift, devise, or appropriation for any municipal purpose herein authorized, 5 and hold, manage and control the same and make any and all rules and regulations, by ordinance or resolution, that may be required to carry out fully all the provisions of any conveyance, deed or will, in relation to any gift or bequest. All municipal corporations shall have the following general powers 6 and coun- cil may provide by ordinance or resolution for the exercise and enforcement of the same : 7 (1) Old sections.— See old Sec- tions 1552 R. S. and 1692 R. S. re- pealed; 95 v. 16, 78, 274, 526, 561, all repealed by the Code. (2) Corporation within feder- al statutes. — A civil township made a body politic and corporate by state statute is a corporation within the meaning of the federal judiciary act of 1888. Loeb v. Co- lumbia Township, 12 O. F. D. 349. (3) Corporate Seal.— § 1745 R. S v not expressly re-enacted, but still in force, because not repealed and not inconsistent with other pro- visions of the Code/ provides for form of seal, and makes the Mayor custodian of the seal of the corpora- tion. See Tiffin v, Shawhan, 43 O. S. 178, 186. (4) Actions. — How conducted. — Old section 1552 R. S. was held to confer the power to sue upon council, and it was not necessary that every action should be brought by the so- licitor of the corporation. Deatrick v. Defiance, 1 C. C. 340. Where mu- nicipality attempts to confess judg- ment under section 5321 R. S., it is necessary that the municipality's le- gal representative appear in open court and confess judgment on be- half of the municipality. The word " person " in section 5321 applies to municipal corporations. Walcutt v. Columbus, 13 Dec. 561; 1 N. P. (N. S.) 225. The word "persons" in section 5601 R. S., includes munici- pal corporations. Springfield v. Walker, 42 O. S. 543. 44 THE OHIO MUNICIPAL CODE. [Code § 7 Where brought. — Where city is situated partly in two counties, ac- tion must be brought where its offices and government are conduct- ed Fostoria v. Fox, 60 O. S. 340. Claim due village changed to city. — The city suing for a claim formerly due a village from which the city has been advanced will not be required, on motion, to set out the manner by which it was ad- vanced from the village to the city. Deatrick v. Defiance, 1 C. C. 340. No action on quantum meruit against municipality. — To state a good cause of action against a mu- nicipality in matters ex contractu the petition must declare upon a contract, agreement, obligation or appropriation made and entered into according to statute. A peti- tion on account merely or quantum meruit in such case is not sufficient. Wellston v. Morgan, 65 O. S. 219. See further as to municipal li- ability on contracts, notes under § 143, p. 372. (5) Scope of power to pur- chase, hold and sell. — Matters re- lating to scope of power of munici- pality to purchase, hold and sell real estate, see note 2 under Code, par. 26, p. 62. (6) Municipal powers strictly limited. — A municipal corporation has those powers only which are ex- pressly granted to it, and such others as are necessary to carry out powers expressly granted. Collins v. Hatch, 18 Ohio 523; Ravenna v. Pennsylvania Co., 45 O. S. 118; Bancroft v. Wall, 29 B. 306; Gas & Water Co. v. Elyria, 57 O. S. 374; Cincinnati v. Gass, 13 Dec. 703; 1 N. P. (N. S.) 169; State v. Carter, 67 O. S. 422, 433 ; L. S. & M. S. By. Co. v. Elyria, 69 O. S. 414. Power to make contracts advan- tageous to the municipality, same as that of an individual, see Columbus v. Ry. Co., 2 C. C. (N. S.) 305, 25 C. C. 663. Estoppel. — Persons dealing with municipality must, at their peril, take notice of the limitations upon its powers imposed by statute. Lan- caster v. Miller, 58 O. S. 558, 575; Hulbert v. Fitzsimmons, 57 O. S. 436, 439. Where municipality has power to act it may be estopped by acts or ac- quiescence, but where there is a to- tal absence of power, there is no es- toppel. Horstman v. Street Ry. Co., 12 Dec. 756; Cleveland v. State Bank, 16 O. S. 236, 269. See fur- ther note (2) under § 143, p. 372. Power to pay equitable claims. — Where claim is not collect- ible at law, but is just and equi- table, and council has ordered its payment by ordinance, such . ordi- nance is valid and equity will en- force the claim. State ex rel v. Brown, 8 C. C. 103; State ex rel v. Wall, 2 N. P. (N. S.) 517; 15 Dec. 349. Compare State ex rel v. Fron- izer, 15 Dec. 349; 3 N. P. (N. S.) 303. Curative acts. — Validity of acts declaring that things done and cre- ated under unconstitutional laws shall nevertheless continue to be and remain and be recognized and re- garded as legal. See Bartlett v. State, 73 O. S. 54. (7) Provide for enforcement of powers. — This clause was held to permit a village to provide that sewer assessments should be paid to the clerk, and that he should pay them into the debt fund. State v. Carter, 67 O. S. 432, 434. For matters relating generally to the character of ordinances, see note 2 under § 122 of the code, page 312. (a) Enumeration of General Powers. 1. [Riots, gambling, etc.] To prevent riot, gambling, noise and disturbance, indecent and disorderly conduct or assem- blages, and to preserve the peace and good order, and protect the property of the corporation and its inhabitants. 1 Bliss v. (1) Constitutionality. — The right to confer police power on a city is implied in the constitutional power to create a city. Kraus, 16 O. S. 54. Scope of power. — Police power may be exercised by a city, but the Code § 7] GENERAL POWERS. 45 authority to enact any particular ordinance must be given expressly or by necessary implication. Ra- venna v. Pennsylvania Co., 45 O. S. 118. Where the grant is uncertain the power must be denied. Wells- ville v. O'Connor, 1 C. C. (N. S.) 253; 24 C. C. 689, 690. The exercise of the police power must be reasonable. Exacting a li- cense fee of $50 a day for transient dealers is unreasonable. Glaser v. Cincinnati, 31 B. 243. A city may prohibit disturbance of peace by singing, speech making, etc., in the street and it is no defense that such acts are done in conducting religious exercises. Trimble v. Bucyrus, 9 D. 832. Such a section as this would give power to prohibit the publication of obscene matter. O'Brien v. Cleveland, 1 Clev. 100, 4 Dec. (Re) 189. Under a section of former statutes similar to this, it was held that a municipal corporation has no power to prohibit the blowing of steam whistles within the corporation. Whitcomb v. Springfield, 3 C. C» 244; nor to compel a railroad to maintain watchman at crossing. Ravenna v. Pennsylvania Co., 45 O. S. 118; nor to make penal the run- ning of horse cars without a driver or conductor. Thornhill v. Cincin- nati, 4 C. C. 354. A section such as this would not give power to exact a license from ticket brokers. Frank v. Cincinnati, 7 N. P. 146. Power to punish, see § 2108 R. S., p. 64. The general power to " preserve the peace and good or- der " is limited by the provisions of § 2108 R. S. and the manner of the exercise of the power is governed by that section. Wellsville v. O'Con- nor, 1 C. C. (N. S.) 253; 24 C. C. 689. But see Esch v. Elyria, 27 C. C. 446; 7 C. C. (N. S.) 9. Municipal liability. — Though a section such as this gives the power to prevent disturbance of the public peace and protect property, a mu- nicipality will not be liable for fail- ure to exercise this power. Western College v. Cleveland, 12 O. S. 375; • Frederick v. Columbus, 58 O. S. 538 ; Green v. Muskingum County, 3 C. C. (N. S.) 212; 23 C. C. 43. Thus the failure to prevent a riot would not render the city liable for property destroyed. Western Col- lege v. Cleveland, 12 O. S. 375. Rob- ' inson v. Greenville, 42 O. S. 625. t. [Billiards, tenpins, etc.] To regulate billiard and pool tables, nine or tenpin alleys or tables, and shooting and ball alleys ; * and to authorize the destruction of instruments or devices used for the purpose of gambling. 2 (1) Scope of power. — A keeper of a billiard table resort may be punished for keeping open on Sun- day unless he observes the seventh day of the week instead of Sunday. Billigheimer v. State, 32 O. S. 435. A statute forbidding the keeper of a public house or retailer of liquor to keep a bowling alley would be unconstitutional. State v. Thomp- Bon, 7 N. P. 630. Effect of prohibition. — Where a nine-pin alley is forbidden a builder cannot recover for services in constructing. Spurgeon v. McEl- wain, 6 O. 442. (2) Gambling devices. — Ordi- nary slot machines are devices used for gambling. Fletcher v. State. 18 C. C. 674; but when not, see Heel- man v. State, 6 N. P. 258. 46 THE OHIO MUNICIPAL CODE. [Code § 7 3. [Nuisance.] To prevent injury or annoyance from any- thing dangerous, offensive, or unwholesome: 1 to cause any nuisance to be abated; 2 and to regulate and compel the consumption of smoke, 3 and to prevent injury and annoyance from the same, and to regulate and prohibit the use of steam whistles. 4 (1) Scope of power. — Under a section such as this a village may prohibit the storage of dynamite or other explosives in certain quanti- ties within the corporate limits. Hays v. St. Mary, 55 O. S. 198. Any municipality may, by ordi- nance, prohibit absolutely the trans- portation of nitro-glycerine through the streets, and such ordinance is not inconsistent with Section 6953 R. S. Walter v. Bowling Green, 26 C. C. 756; 5 C. C. (N. S.) 516. A fine of $100.00 for violation is not excessive, lb. An ordinance forbidding the transportation of any dead ani- mals, fish or garbage, including con- demned food, through the streets, by any person except the city con- tractor or his agents, was held void as violating the fourteenth amend- ment to the U. S. .Constitution. Bauer v. Casey, 26 C. C. 598; 6 C. C. (N. S.) 69 (see 49 B. 299). (2) Nuisance. What is.— What amount of annoyance or inconve- nience will constitute a nuisance depends upon circumstances, and a nuisance cannot be precisely de- fined. Columbus, etc., Co. v. Free- land, 12 O. B. 392. Houses of ill fame are nuisances, subject to municipal regulation. Crofton v. State, 25 O. S. 249. So are hack-stands in streets. Brana- han v. Hotel Co., 39 O. S. 333. Open pit in unenclosed lot in town. Hess v. Lupton, 7 O., pt. 1, 216. Box- ing contests for prizes held in pub- lic. State v. Hobart, 8 N. P. 246. But obstructions caused by build- ing are not nuisances. Clark v. Fry, 8 O. S. 358. Nor bicycle rid- ing on sidewalk. Custer v. New Philadelphia, 20 C. C. 177. Nor a stream of water. Deming v. Cleve- land, 22 C. C. 1. Gas works are not a nuisance, and a municipality cannot arbitrarily declare them to be such, or, unless they in fact become a nuisance, pro- hibit them within a certain district or require that the consent of pri- vate property owners be obtained be- fore permitting their operation else- where. Defiance v. Gas and Elec- tric Company, 12 Dec. 424. The drilling of gas or oil wells within a certain distance of dwell- ings may be prohibited. Cline v. Kirkbride, 22 C. C. 527. Whether blasting with gunpowder in city is a nuisance, see Tiffin v. McCormack, 34 O. S. 638. Obstruct- ing flow of water. Tootle v. Clifton, 22 O. S. 247. The question what is and what is not a public nuisance is a judicial one, and it is not competent to dele- gate it to the local legislative or administrative boards; the local declaration that a nuisance exists is, therefore, not conclusive, and the party concerned may contest the fact in court. Deming v. Cleveland, 22 C. C. 1, 11. What nuisance may be abated. — A city has no authority to cause to be abated any nuisance other than a public nuisance. Whitcomb v. Springfield, 3 C. C. 244. Extent of regulation *of nuisance. — City cannot create civil liability for nuisance. Veigel v. Lukenheim- er, 10 B. 293; Vandyke v. Cincin- nati, 1 Disney 532; Chambers v. Ohio, etc., Co., 1 Disney 327. Power in a municipality to com- pel removal of a nuisance includes power to require work done so as to prevent its recurrence. Bliss v. Kraus, 16 O. S. 54. Power of board of health over nuisances, see § 2122 R. S., p. 425. (3) Extent of regulation of smoke.. — Under section such as this, giving power to regulate con- Code § 7] GENERAL POWERS. 47 sumption of ?moke, a city is not authorized to declare that dense smoke is a nuisance per se, but only if it causes injury or annoyance. Cleveland v. Malm, 5 N. P. 203; Sigler v. Cleveland, 3 N. P. 119. An ordinance prohibiting " dense " smoke is void, for uncertainty. lb. Under this paragraph a city may create a supervising engineer's de- partment to regulate and compel consumption of smoke. Cincinnati v. Gass, 13 Dec. 703; 1 N. P. (N. S.) 169. Power to appoint such engi- neer would vest in the mayor, lb. (4) Steam whistles. — Without this express grant of power council could not prohibit- the blowing of steam whistles. Whitcomb v. Spring- field, 3 C. C. 244. 4. [Houses of ill fame.] To suppress and restrain disor- derly houses and houses of ill fame/ and to provide for the punishment of all lewd and lascivious behavior 2 in the streets and other public places. (1) Are nuisances.— A house of ill fame is a nuisance. Crofton v. State, 25 O. S. 249. Defined.— See § (4364-1) R. S. Powers of board of health. — See § 2118 R.^S. and notes, p. 422. (2) Lewd behavior. — Ordinance prohibiting walking, riding or con- versing with any lewd female, is not authorized by a section such as this. Cady v. Barnesville, 4 Dec, (Re) 396. 5. [Intoxicating liquors.] To regulate * ale, beer, porter houses and shops, 2 and the sale of intoxicating liquors as a beverage But nothing in this act shall be construed to amend, repeal or in any way affect the provisions of an act entitled, " An Act to amend section 4364-20 of the Eevised Statutes of Ohio, and to supplement said section by enacting supplementary sections 4364-20a, 4364-20&, 4364-20c, 4364-20d, 4364-20e, 4364-20/, 4364-20^, 4364-20& and 4364-20t/' passed April 3, 1902. (95 O. L. 87.) 8 (1) Meaning of "regulate." — For a consideration of the scope of the word " regulate," see Brown v. Van Wert, 4 C. C. 407, 411, and the same case in 47 O. S. 477, and Bronson v. Oberlin, 41 O. S. 476, 483. Power to regulate does not include power to prohibit saloons in certain districts. Berning v. Norwood, 1 O. L. R. 25, 29 (aff'd 72 O. S. 593). 48 THE OHIO MUNICIPAL CODE. [Code § 7 (2) As nuisances. — Place of habitual resort for tippling is a nuisance. Miller v. State, 3 O. S. 475. Extent of power. — Under a general statute giving power to pass ordinances for the " health, safety, morals, etc.," of the city, it was held a municipal corporation could not prohibit the opening of shops, including saloons, on Sunday with- out excepting cases of necessity and charity, and the case of those who conscientiously observe the seventh day of the week. Canton v. Nist, 9 O. S. 439. And could not prohibit the sale of wine, etc., in less quanti- ties than a gallon. Thompson v. Mt. Vernon, 11 0. S. 688. But under a statute expressly giving the power to " regulate, restrain and prohibit ale, beer and porter houses," it was held a city has authority to provide for the punishment of the keeper of any place where ale, etc., is habit- ually sold or furnished, to be drunk at such place. Burckholter v. Mc- Connellsville, 20 O. S. 308. And under a statute giving power to regulate such places, a municipality may prohibit and punish the em- ployment of females in places where liquor is sold. Bergman v. Cleve- land, 39 O. S. 651. And may for- bid any person to keep such place open on Sunday, though no excep- tion is made in cases of necessity or charity or in favor of those who conscientiously observe the seventh day of the week. Piqua v. Zimmer- lin, 35 O. S. 507. A part of an ordinance forbidding keeping open on Sunday, providing that lighting up of the room where liquor is sold shall be prima facie evidence of keeping open, though in- valid, does not render the ordinance void. Piqua v. Zimmerlin, 35 O. S. 507. Ax\ ordinance fixing the hours of closing and opening saloons, and re- quiring closing between ten P. M. and six A. M v is valid. Weaver v. Mt. Vernon, 7 N. R 374. To the same effect, Bauer v. Avondale, 4 B. 12. An ordinance requiring saloons to remove all screens and to h9ve a bright light at ten o'clock at n J ght is constitutional. Editorial note, 34 B. 39; Washington v. Gallagher, 7 N. P. 511. Exceptions in ordinance. — Where a municipal corporation fol- lows the authority given in a stat- ute for the passage of an ordinance, it is not necessary to include all the exceptions in other statutes relating to the same subject matter. Edis v. Butler, 8 N. P. 183, (aff\? 68 O. S. 645). An ordinance passed under » sec- tion such as this need not except drug stores. Emery v. Elyria, 8 N. P. 208. There was held to be no incon- sistency between paragraph 5 of § 1692 (which is similar to paragraph 5 of the present Code section) and § 4364-20 R. S., and an ordinance prohibiting keeping places where in- toxicants are sold open on Sunday without containing the exceptions in § 4364-20 R. S. was held to be valid. Emery v. Elyria, 8 N. P. 208. State law on same subject. — A village may pass a Sunday closing ordinance, although there is a state law to the same effect. State v. Ulm, 7 N. P. 659. But ordinance must contain exceptions provided in the statute under which it is passed. Akerman v. Lima, 7 N. P. 92. Ordinances may be passed provid- ing for punishment of some act which is made criminal by state statutes and offenders may be pun- ished in both jurisdictions for the Code § 7] GENERAL POWEKS. 49 same act. Emery v. Elyria, 8 N. P. 208. The jurisdiction to punish under a state law and under a municipal ordinance is concurrent. Wightman v. State, 10 O. 452; and convic- tion in one jurisdiction would be a bar to prosecution in the other. /&. But see Emery v. Elyria, 8 N. P. 208. Recovery of penalty. — A civil action may be maintained by a mu- nicipal corporation to recover the penalty imposed by ordinance for retailing intoxicating liquors. Mar- kle v. Akron, 14 O. 586. Intoxicating liquors. — Strong beer is an intoxicating liquor within the meaning of an ordinance forbid- ding retailing intoxicants without a license. Markle v. Akron, 14 O. 586. (3) Beal law here referred to will be found on page 803 et seq. 8. [Taverns.] To regulate taverns and other houses for public entertainment. 7. [Theatrical exhibitions and tickets.] To regulate, by license or otherwise, restrain or prohibit theatrical exhibitions and public shows of whatever name or nature, for which money or other reward is demanded or received f to regulate, by license or otherwise, the business of trafficking in theatrical tickets or other tickets of licensed amusements, by parties not acting as agents of those issuing the same, but public school entertain- ments, lecture courses and lectures on historic, literary or scien- tific subjects shall not come within the provisions of this section. [97 v. 505.] (1) License fees. — Under a provision such as this a municipal corporation may exact a license fee from theatrical exhibitors. Such exaction is not violative of the con- stitution. Baker v. Cincinnati, '11 O S. 534. The authority to fix the amount of license fees may be delegated to the mayor within the limits fixed by council. Ex parte Ryan, 7 B. 50, Prohibition. — Council could not prohibit a performance unless it were given for pay or reward. Ex parte Ryan, 7 B. 50. Sales of reserved seats after doors open. — An ordinance for- bidding sale of reserved seats after the doors are opened would be valid and a speculator who bought the tickets the day before would be subject to the prohibition. Cincin- nati v. Brill, 7 N. P. 534. 8. [Auctions.] To regulate auctioneering; 1 and to reg- ulate, license or prohibit the sale at auction of goods, wares and merchandise or of live domestic animals at public auction in the streets or other public places within the corporation; 50 THE OHIO MUNICIPAL CODE. [Code §7 and to regulate, license or prohibit the selling of goods, mer chandise or medicines on the streets. 2 (1) "Auctioneer" defined. — An auctioneer is a person who dis- poses of goods or lands by public sale to the highest bidder. Cran- dall v. State, 28 O. S. 479. A person who, being in the busi- ness of selling merchandise at reg- ular retail prices, sells a portion of them at his store-room by public outcry, but selling at the regular re- tail price, is not an auctioneer. 76. One merely employed in conduct- ing the sale is not subject to prose- cution under auction license law. Cincinnati v. Withers, 5 Dec. 570. Criers of tobacco at warehouse sales held not to be auctioneers. Cincinnati v. Withers, 5 Dec. 570. (2) Regulation and license. — Under the authority given by the statute "to regulate auctioneering" city councils, in view of promoting the order, comfort and convenience of the inhabitants, may pass ordi- nances regulating sales at auction upon the streets, alleys, sidewalks and public grounds of the city, and may subject the occupation of auc- tioneering to such police regula- tions as seem essential to the pub- lic convenience and protection. Sipe v. Murphy, 19 0. S. 536, 543. Even without express statutory provision, but under the general laws to provide for the safety, health, etc., it is held a city may by ordinance prohibit sales at auc- tion in the streets or public places of the city, and an ordinance of this character would not be unreason- able or in restraint of trade. White v. Kent, 11 O. S. 550. As to regulation and prohibition of sales at auction of goods im- ported into the corporation for that purpose, see Sipe v. Murphy, 49 O. S. 536; Brunner v. Harrison, 25 C. C. 247; 1 C. C. (N. S.) 111. For provision for issuing the state license to auctioneers and pay- ment of pPo rata duties on all prop- erty and effects exposed to sale by public auction, see §§ 4222 to 4238 R. S. Paragraph 9 of former section 1692 (which corresponds to para- graph 8 of the present section of the code) was held not to be In- consistent with sections 4222 to 4238 R. S. Sipe v. Murphy, 49 O. S. 536, For further provision giving coun- cil power to license hawkers, ped- dlers, auctioneers of horses, etc., see §2669 R. S., page 73. Reasonableness of license fee. — A city ordinance imposing a fine of $25.00 a day for auctioneering goods brought into city for that pur- pose is held an unreasonable exer- cise of power. Sipe v. Murphy, 49 O. S. 536. See also Glazer v. Cin- cinnati, 31 B. 243. Ordinance charging $20.00 per day as a license fee for selling goods held unreasonable. Newark v. Flatau, 39 B. 239; see also Fla- tau v. Mansfield, 13 C. C. 592, 597. 9. [Carriages, drays, street cars, etc.] To regulate the use of carts, drays, wagons, hackney coaches, omnibuses, automo- biles, and every description of carriages kept for hire or livery- stable purposes; and to license and regulate 1 the use of the Code § 7] GENERAL POWERS. 50a streets by persons who use vehicles, or solicit or transact busi- ness thereon ; 2 to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways; to regulate the transportation of articles through such highways and to prevent injury to such highways from overloaded vehicles, and to regulate the speed of inter- urban traction and street railway cars 3 within the corporation. (1) Scope of words "license and regulate." — The power to li- cense and regulate draymen, etc., implies the right of fixing the terms upon which they shall be per- mitted to exercise their calling, and of forbidding the exercise upon any other than the terms and in the manner prescribed. Cincinnati v. Bryson, 15 O. 625. Under such a section, a city may require a reason- able sum from draymen, etc., by way of excise, on the special em- ployment, lb. Columbus v. Jef- frey, 13 Dec. 639; 1 N. P. (N. S.) 265. Power to license conferred on council by this paragraph must not only be construed strictly, but the object of such power so granted by the state, unless there be language indicating that the grant is con- ferred for the purpose of revenue, must be construed as one for regu- lation merely, and an exercise of the police power, and not of the taxing power; and revenue can be raised only as an incident to regu- lation. Columbus v. Jeffrey, 13 Dec. 639; 1 N. P. (N. S.) 265. But ordinance will be presumed, in absence of evidence to the con- trary, to be intended to defray cost of regulation, and not to raise rev- enue. Columbus v. Jeffrey, 16 Dec. 330. (2) Scope of power. — An ordi- nance requiring a license fee of all persons using the streets with ve- hicles, and requiring license tags on vehicles, is constitutional. Sterling v. Bowling Green, 26 C. C. 581; 5 C. C. (N. S.) 217; see also Marmet v. State, 45 O. S. 63; Little v. State, 8 C. C. 51. The word "vehicles" includes all classes and kinds of conveyances, and was not intended to be confined to conveyances kept for hire. Ster- ling v. Bowling Green, 26 C. C. 581; 5 C. C. (N. S.) 217. Power conferred upon the auditor and chief of police, in an ordinance licensing vehicles using the streets, to examine vehicles, if not satisfied with description furnished by appli- cant for license, is not judicial and does not invalidate the ordinance. Sterling v. Bowling Green, 26 C. C. 581; 5 C. C. (N. S.) 217. Speed ordinance applying to ter- ritory outside of municipality as well as territory within, is not for that reason void, but is simply in- operative in such outside territory. Chittenden v. Columbus, 26 C. C. 531; 5 C. C. (N. S.) 84. Ordinance operating un- equally. — An ordinance operating unequally as between resident and non-resident owners of vehicles, as one excepting from its operation vehicles used by persons living out- side the municipality, is invalid. Columbus v. Jeffrey, 13 Dec. 639; 1 N. P. (N. S.) 265 (aff'd Circuit Court ) ; Columbus v. Jeffrey, 16 Dec. 330. 506 THE OHIO MUNICIPAL CODE. [Code §7 An ordinance imposing a license fee on persons using the streets with vehicles and, with reference to non-residents, applying only to those hauling heavy articles or peddling milk, vegetables, etc., is not invalid as discriminating unfairly between residents and non-residents. Ster- ling v. Bowling Green, 26 C. C. 581 ; 5 C. C. (N. S.) 217. An ordinance is not unreasonable because it limits the speed of auto- mobiles and bicycles to seven miles per hour; or because different rates of speed are prescribed for different portions of a prescribed district. Chittenden v. Columbus, 26 C. C. 531; 5 a C. (N. S.) 84. Ordinance regulating speed of au- tomobiles is not void because an- other ordinance allows street cars to run at a greater speed. Chitten- den v. Columbus, 26 C. C. 531; 5 C. C. (N. S.) 84. A license fee for the use of the streets by vehicles may be graded according to the number of horses used. Marmet v. States 45 O. S. 63, 76. Hackstands.— A city, under the general power to regulate hacks, may prohibit hackmen soliciting patronage at railway depots. Moer- der v. Fremont, 19 C. C. 394. See also Snyder v. Depot Co., 19 C. C. 368. A hackstand on side of street where stores front is a nuisance, and an ordinance allowing such stand is invalid. Branahan v. Hotel Co., 39 O. S. 333. Power to establish hackstands, see §2671 R. S., p. 79. Automobiles. — See "an act to compel owners and operators of mo- tor vehicles to register with the Secretary of State" (98 O. L. 320) for state law limiting power of municipalities in regulating use of streets by automobiles. Street railways. — This section does not confer power to impose license fees on street or interurban railway companies for use of streets. Columbus v. Jeffrey, 13 Dec. 639; 1 N. P. (N. S.) 265. Under this section a municipality may, by ordinance, require stopping of street cars at any regular stop- ping place, upon signal. Lockyear v. Covert, 2 C. C. (ft. S.) 389; 25 C. C. 486. (2) Speed of street cars. — An ordinance providing that the "sched- ule time" for operating electric street railway cars shall not exceed ten miles an hour, is invalid as be- ing unreasonable in allowing such cars to be run at any rate of speed provided the "schedule time" in go- ing over the entire route, does not exceed ten miles an hour. Lewis v. Cincinnati, 8 N. P. 417. But see same case in 23 C. C. 127, where question is left open. See also Gan- non v. St. Ry. Co. 64 O. S. 567. With or without an ordinance, the law requires of the railway com- pany "reasonable safety, in view of the facts and surrounding condi- tions." Lewis v. Cincinnati, 23 C. C. 127. An old ordinance passed to apply to horse cars would not be appli- cable to electric street railways. lb. Effect of ordinance. — Ordinance regulating speed does not determine liability between company and indi- viduals in case of accidents, but may go to the jury on the question of negligence. Becker v. St. Ry. Co. 1 N. P. 359 ; East Cleveland R. R. Co. v. Rosecrans, 24 B. 220; Ulrich v. Toledo Consol. St. Ry. Co., 67 O. S. 508 (see 10 C. C. 635). See further note (2) under code I 312. Code § 7] GENERAL POWERS. 51 10. [Animals running at large.] To regulate, restrain and prohibit the running at large, within the corporation, of cattle, horses, swine, sheep, goats, geese, chickens and other fowls and animals, and to impound 1 and hold the same, and on notice to the owners, to authorize the sale of the same for the penalty imposed by any ordinance, and the cost and expenses of the proceedings; and to regulate or prohibit the running at large of dogs, and provide against injury and annoyance therefrom, and to authorize the disposition of the same when running at large contrary to the provisions of any ordinance. 2 (1) Pounds. — -For provision as This power can be exercised only to pounds in villages, see § 4209-1 R. S. (2) Cannot be abated as nui- sance. — Authority to regulate run- ning at large of animals is not given by general provisions giving cities power to abate nuisances. when specifically granted. Collins v. Hatch, 18 O. 523. Dog tax. — A per capita dog tax may be imposed as a police regulation. Hoist v. Roe, 39 O. S. 340. 11. [Explosives.] To regulate the transportation, keeping and sale of gunpowder and other explosives or dangerous com- bustibles and materials and to provide or license magazines for the same. 1 (1) Scope of section. — Ordi- nance regulating transportation of dynamite and other explosives in certain quantities along streets of villages, is within scope of section such as this. Hays v. St. Marys, 55 O. S. 197. Under paragraph 3 of § 7, mu- nicipality has power to prohibit ab- solutely the transportation of nitro- glycerine through the streets. Wal- ter v. Bowling Green, 26 C. C. 756; 5 C. C. (N. 8.) 516; and under both paragraphs 3 and 11 the storage of dynamite or other high explosives in certain quantities within the mu- nicipality, may be prohibited by or- dinance. Hays v. St. Marys, 55 0. S. 197. Such a provision in an or- dinance is not inconsistent with §§ 6953, 8853-4 to 8853-8 R. S. lb. Forfeiture. — Under section such as this, there is no authority to de- cree a forfeiture of gunpowder, nor can a forfeiture be declared without notice and adjudication. Cotter v. Doty, 5 O. 394. Municipal liability. — Munici- 52 THE OHIO MUNICIPAL CODE. [Code § 7 pality is not liable for damages against storing of inflammable oils, caused by fire resulting from its Roberts & Co. v. Cincinnati, 5 Rec. failure to enforce an ordinance 73. 12. [Weighing.] To regulate the weighing and measur- ing of hay, wood and coal and other articles exposed for sale, and to provide for the seizure, forfeiture and destruction of weights and measures, implements and appliances for measur- ing and weighing which are imperfect or liable to indicate false or inaccurate weight or measure, or which do not conform to the standards established by law and which are known, used or kept to be used for weighing or measuring articles to be pur- chased, sold or offered or exposed for sale. 1 (1) Character of regulations, sealer of weights and measures and — A state statute making it penal enforce by fine the use of weights to use any measure but standard and measures sealed by him. Hud- half bushel when buying wheat from dleson v. Rufifin, 6 O. S. 604. original producer was held uncon- The power to provide for weigh- stitutional because it protects only ing and measuring of articles for the producer and not those selling sale does not authorize an ordi- to him and is class legislation. Yea- nance forbidding the delivery in zell v. State, 40 B. 63. the city, without being weighed by Under its charter of 1834 and the the city weigher of hay already sold general laws of the state it was held outside the city. Heminger v. that Cincinnati could appoint a Cleveland, 3 W. L. M. 46. 13. [Buildings, fences, etc.] To regulate the erection of buildings 1 and the sanitary condition thereof, fences, bill boards, 2 signs, and other structures within the corporate limits ; to require, regulate and provide for the numbering and renum- bering of buildings either by the owners or occupants thereof or at the expense of the municipality ; to name or rename streets, alleys, highways and public places; to regulate the repair of, alteration in and addition to buildings; to provide for the con- struction, erection and placing of elevators, stairways and fire escapes in and upon buildings ; 3 to regulate the construction and repair of wires, poles, plants and all equipment to be used for the generation and application of electricity; to provide for the removal and repair of insecure buildings, bill boards, signs Code § 7] GENERAL POWERS. 53 and other structures, and to provide for the inspection of all buildings or other structures 4 and for the licensing of house- movers, plumbers and sewer-tappers and vault cleaners. 5 [97 v. 506.] (1) Buildings already erected. — A municipal ordinance limiting the height of wooden structures in a certain specified quarter of the city cannot affect an owner whose build- ing was erected before passage of the ordinance and who seeks to move it to another part of the same quarter. Cleveland v. Lenze, 27 O. S. 383. (2) Licensing bill posters. — See §§ 2669b and 2669c R. S. infra. Regulation of material used. — An ordinance requiring the use of such incombustible material in the erection of signs and bill boards within the fire limits as will pre- vent the spread of fire and requir- ing the erection of the same in a safe and secure manner is valid. Cleveland v. Bryan, 8 N. P. 552. Prohibiting bill boards. — Un- der the former statutes, giving pow- er to municipalities merely " to reg- ulate the erection of buildings, fences and other structures " it was held that an ordinance entirely for- bidding the erection of signs, bill boards and structures for advertis- ing was beyond the power of the municipality and void. Cleveland v. Bryan, 8 N. P. 552. Such an ordinance prohibiting bill boards at a greater height than two feet above the level of the adjoin- ing street and nearer than 15 feet from the building line on the street was held to be unconstitutional and void, under the former statutes, as a deprivation of the use of proper- ty, lb. (3) Fire escapes. — A law re- quiring owners of certain kinds of buildings to provide fire escapes on thirty days' notice and empower- ing court to enjoin use of building until owner does so, is valid as a proper exercise of police power. Cin- cinnati v. Steinkamp, 54 O. S. 284. (4) Discretion of building in- spector. — A building inspector's discretion in issuing a permit can- not be interfered with by injunction. Collins v. Cleveland, 2 Low. D. 380. See also Leibschutz v. Black, 15 Dec. 372; 3 N. P. (N. S.) 392. (5) Regulation of sewer con- nections.— Section 1692/= (2) R. S., repealed, the language of which is similar to part of paragraph 13 above, was held not to authorize a provision in an ordinance that catch basin water closets must be con- structed and sewer connections made only by licensed sewer tappers. State v. Tooker, 5 N. P. 122. 14. [Police and fire departments.] To organize and maintain police and fire departments, erect the necessary buildings and purchase and hold all implements and apparatus required there- for. 1 ( 1 ) Other code provisions relat- ing to police and fire departments, see § 146 et seq. of the code, infra. As to municipal power and duties see notes under § 146 et seq. 54 THE OHIO MUNICIPAL CODE. [Code § 7 15. [Waterworks; lighting, power and heating plants.] To provide for a supply of water, by the construction of wells, pumps, cisterns, aqueducts, water pipes, reservoirs and waterr works, and for the protection thereof, and to prevent unneces- sary .waste of water, and the pollution thereof, and to apply moneys received as charges for water to the maintenance, con- struction, enlargement and extension of the works, and to the extinguishment of any indebtedness created therefor ; * and to establish and maintain municipal lighting, power, and heating plants, and to establish, . maintain and operate natural gas plants and to furnish the municipality and the inhabitants thereof with natural gas for heating, lighting and power pur- poses, 2 and to acquire by purchase, lease or otherwise the neces- sary lands for such purposes, within and without the munici- pality. (1) Use of stream as riparian owner. — Municipality situated on natural flowing stream is a ripar- ian proprietor, and may use for its own purposes and for domestic use of its inhabitants whatever water is necessary without liability to low- er proprietor. Canton v. Shock et ah, 66 O. S. 19. Such municipality has no right to materially diminish flow of wa- ter to injury of lower proprietor by supplying water from the stream to persons outside the municipality or by supplying to factories for power purposes more than a reasonable share of the water. 76. Contract with mill owner.— It was held under former §§ 2409- 2415 R. S. that trustees of water works might contract with mill owner for part of his slack water for their works. Fremont v. June, 8 C. C. 124. Nature of water rent. — Rent for use of water is an assessment rather than a tax, and if not paid the premises can be sold to pay it. Gallipolis v. Trustees, 2 N. P. 161; Alter v. City, 56 O. S., 47. What property assessable for water rent. — Property not adjoin- ing, abutting or bounding on street through which water pipe has been laid, held' not assessable for paying interest on loan to erect water works. Wheeler v. Zanesville, 3 C. C. 596. Power limited. — Power to assess and collect water rents is limited by the statute conferring it. See Ram- sey v. Columbus, 12 Dec. 725. (2) Other sections on gas works. — The sections of the Re- vised Statutes relating to ownership and regulation of gas works (2478- 2486; 2490, 2491) which are general in their operation have not been re- pealed by the Code. In the clause above, however, the additional pow- er to construct and operate heating plants is given. Code § 7 J GENERAL POWERS. 55 16. [Health.] To provide for the public health ; 1 to secure the inhabitants of the corporation from the evils of contagious, malignant and infectious diseases, and to purchase or lease prop- erty or buildings for pest houses, and to erect, maintain and regulate pest houses, hospitals and infirmaries. 2 [97 v. 507.] ( 1 ) Board of Health. — The An ordinance providing that no present clause does not give author- person shall sell milk in a city with- ity to establish a board of health as out a permit from its acting board did clause 24 of § 1692 to which the of health and authorizing examina- present clause corresponds. The tion and inspection of milk sold in board which is to carry out the the city, the places where produced powers here granted is elsewhere and the cattle producing it and pre- provided for. (§§ 187 to 189 inclu- scribing regulations regarding sive of the Code.) health of employes, etc., was held to (2) Scope of regulations. — An be *a health ordinance exclusively ordinance providing a reasonable and to be within paragraph 24, charge for supervising the work of § 1692 R. S., to which the present removing the contents of privy section corresponds. Walton v. To- vaults and for removing the bad ledo, 3 C. C. (N-. S.) 295; 23 C. C. effects thereof, for which the per- 547, (aff'd 69 O. S. 548). son cleaning is primarily responsible Such an ordinance is constitution- and covering the costs of issuing al. lb. permits to do the work, and of col- An ordinance relating to the sale lection would be legal. Toledo v. of milk may require a fee of one Buechele, 21 C. C. 429. dollar for each wagon used in the But a charge to cover the expense city in selling milk and require a of disinfecting the work, an expense tag to be attached to every such which should fall on the owner or wagon before a permit will be grant- the city, cannot be laid upon the ed. Such a charge is not a license person doing the work. lb. in violation of § 2669 R. S. lb. 17. [Cemeteries and crematories.] To provide public ceme- teries and crematories for the burial or incineration of the dead and to regulate public and private cemeteries and crematories. 1 (1) Other provisions relating to Managing board. — See note to cemeteries, see § 2516 et seq. R. S. § 2521 R. S. infra, and see notes thereunder. 18. [Streets, wharves, etc.; conduits; rolling roads.] To lay ofT, establish, plat, grade, open, widen, narrow, straighten, ex- tend, improve, keep in order and repair, light, clean and sprinkle streets, alleys, public grounds, places and buildings, wharves, landings, docks, bridges, viaducts and market places within the corporation, 1 including any portion of any turnpike or plank 56 THE OHIO MUNICIPAL CODE. [Code § 7 road therein, surrendered to or condemned by the corporation; to regulate public landings, public wharves, public docks, public piers and public basins, 2 and to fix the rates of landing, wharf- age, dockage and the use of the same ; and to regulate the plant- ing, trimming and preservation of shade trees in streets, alleys, public grounds and places, and to provide for the planting, re- moval, trimming and preservation of such trees and other orna- mental shrubbery ; and to use, or by ordinance grant, for periods not exceeding twenty-five years, the use of its streets, avenues, alleys, lanes and public places, to lay pipes, conduits, manholes, drains and other necessary fixtures and appliances, under the surface thereof, to be used for supplying such municipality and its inhabitants with steam or hot water, or both, for heat or power purposes or both; and to use or grant, for periods not exceeding twenty-five years, the use of its streets, avenues, alleys, lanes and public places for the construction of inclined movable or rolling roads, for the conveying or moving of freight, vehicles, animals and other property, and those in charge of the same, upon such terms as the council of such municipal corporation may deem proper; provided, that such municipal corporations shall in all such grants reserve the right to regulate, at intervals of not less than five (5) years, the prices which the grantee or grantees may charge for such heat or power, or for the conveying or moving of such freight, vehicles, animals and other property ; and provided, further that no grant for the use of such streets, avenues, alleys, lanes and public places for the construction of such inclined movable or rolling roads shall be made until there is produced to the council of such municipal corporation the written consent of the private property owners of more than two-thirds of the feet front of such lots and lands abutting on the street, avenue, alley, lane or public place, or part thereof, upon or over which it is proposed to construct such inclined movable or rolling road. And that in all municipal corpora- Code § 7] GENERAL POWERS. 57 tions which may have heretofore, by ordinance authorized the use by any person or corporation, of the streets, avenues, alleys,, lanes and public places of such municipal corporation for the purpose of laying pipes and drains below the surface thereof to convey and supply its inhabitants or the corporation, or both, with heat by means of steam or hot water, or both, such ordi- nance shall be held as valid and binding as if the power in the corporation to so grant such use of its streets, avenues, alleys, lanes and public places had been expressly provided by statute prior to the passage of such ordinance and in force when the same was passed ; 3 provided that the council of any such corpo- ration shall have power to regulate, by ordinance, at intervals of five years the price which such person or company may charge for such heat or power. [97 v. 507.] (1) Powers held in trust for etc., see code §28 et seq., p. 112, the public. — The powers conferred and notes. on municipal corporations with re- (2 ) Wharfage regulations. — spect to the opening, improving and A cit y ordinance requiring every repairing of their streets and pub- "steamboat, barge, keelboat and lie ways are held in trust for pub- flatboat" to pay wharfage rent does he purposes and are continuing in not include a ferryboat. Cincinnati their nature, to be exercised from v Walls, 1 O. S. 222. As to rights time to time as public interest re- f gra ntee of wharf privileges by quires. K. R. Co. v. Defiance, 52 O. c it y? see Cincinnati v. C. & C. Bridge s - 262 - Co., 20 C. C. 396. They cannot be granted away or (3) Validity. -This curative relinquished or their exercise sus- v {. ^ ,V y \ A A , ^" l ' iyc Bended or abridged Pxoent whpn ex- P rovislon held valld - Columbus v. pended or abridged except wnen ex Heating & Lifting Co., 16 Dec. 311. press legislative authority is given. m J t of g ordil f anee ' repudiating previous ultra vires ordinance of Municipal power and liability. character cured by this section, —For matters relating to power of where no legal proceedings had to council over streets, etc., and duty have such uUra vires ordinance de- to keep same in repair, etc., and lia- clared invalid. See lb. foility for failure to keep in repair, 19. [Canals and sewers. J To construct, open, enlarge, exca- vate, improve, deepen, straighten, or extend any canal, 1 ship canal or watercourse 2 located in whole or in part within the corporation, or lying contiguous and adjacent thereto; to open, construct and keep in repair sewage disposal works, sewers, 3 drains and ditches, 4 to license ferries, to regulate the use of public docks and public landings, and to establish, repair and regulate water closets and privies. 5 58 THE OHIO MUNICIPAL CODE. [Code § 7 ( 1 ) Effect of grant of canal to city. — After a grant by the state tc a city of a portion of a canal, to be used for street and sewer pur- poses, operating as an abandonment of it for canal purposes, a convey- ance by the state to a private indi- vidual of the right to surplus water for power, did not vest in such in- dividual a right paramount to that of the city to make use of the part abandoned in such manner as in- volved the destruction of the water power. Elevator Co. v. Cincinnati, 30 O. S. 630. Abandonment of a canal to a city by the state casts a liability on the city for such damages only as would constitute a demand against the state. Hubbard v. Toledo, 21 O. S. 379. A grant from the state authoriz- ing the city of Toledo to enter upon and occupy a part of the Miami and Erie canal as a public highway was an abandonment of the canal by the state to the city. lb. When the state grants to a city a canal for street purposes and af- terwards conveys to the city all its rights in such land the latter deed gives the city an ownership dis- charged from any easement in the public and it can sell the land. Paige v. Cherry, 17 C. C. 579. The state may abandon any part of its canal though grantees of wa- ter power are injured thereby. Er- kenbrecher v. Cincinnati, 2 C. S. C. R. 412. Assessment for canal wall. — Assessment for street improvements may include assessment for expense of a wall to protect the street against the waters of a canal. Such a wall need not necessarily be built under the power given the city to improve canals, but may be con- structed as a necessary part of a street improvement. Longworth v. Cincinnati, 34 O. S. 101. (2) Watercourses.— A naviga- ble watercourse denned. Hickok v. Hine, 23 O. S. 523; obstruction of a navigable stream. lb. Municipality cannot divert course of stream without compensation to riparian proprietors. Deming v. Cleveland, 22 C. C. 1. See Sprankle v. Cleveland, 12 C. D. 644. (General power to improve not defeated by the special act as to making of dredging contracts.) (3) Sewers a proper use of street. — Sewerage is one of the legitimate uses to which the public streets and alleys of a city may be appropriated. Cincinnati v. Penny, 21 O. S. 499; Elster v. Springfield, 49 O. S. 82. Limitations by other sections. — Under section such as this a council may construct a sewer, be- fore a system of sewerage has been declared necessary and is not re- stricted by sections relating to con- struction of sewers after a system has been declared necessary. Hart- well v. P. R. Co., 40 O. S. 155. Municipal liability. — See note (2) under code § 77, p. 245. (4) Ditches.— See §4483 et seq., p. 769. (5) Water closets, license fee. — Under a general power to regu- late water closets there may be some question whether a city has the power to impose a license fee. Toledo v. Buechele, 19 C. C. 127, 129. Where a city is authorized to exact a license fee from vault clean- ers and does so, and also requires a permit from the board of health before cleaning any vault, it is unreasonable and unlawful to ex- act a fee for such permit. lb. Code § 7] GENERAL POWERS. 59 20. [Jails, morgues, etc.] To establish, erect, maintain and regulate jails, morgues, houses of refuge and correction, work- houses, station houses, prisons and farm schools. 1 (1) Farm school.— For special act creating and regulating farm school in the city of Cleveland, see §§ 2112-1 to 2112-19 R. S. repealed. Municipal liability. — In con- structing and maintaining a work- house, a municipality acts in its gov- ernmental capacity and is not liable for injury to prisoner caused by neg- ligence of superintendent. Rose v. Toledo, 24 C. C. 540; 1 C. C. (N. S.) 321. Regulations. — Officers have in- herent power to make reasonable regulations for discipline. lb. 21. [Public buildings, etc.] 1 To establish, erect, maintain, protect and regulate public halls, public buildings and market houses; 2 and by and with the consent of the abutting property owner or owners, or their lessee or lessees, to establish, main- tain, protect and regulate, a market place or places, upon or on any street square or public grounds or part thereof, within tho municipality ; to provide for the inspection of spirits, oils, milk, breadstufTs, meats, fish, cattle, milk-cows, sheep, hogs, goats, poultry, game, vegetable and all food products. 3 [97 v. 508.] (1) Old sections. — Section 2232 R. S. giving cities and villages power to appropriate property for markets; § 2576 R. S. giving coun- cil of any city or village power to appropriate property for, establish and regulate markets and to pro- vide for lighting, watching and cleaning the same, and § 2577 R. S. giving council power to regulate huckstering and forestalling the market, and the sale of impure meat, enforcing its regulations by seizure of goods, etc., are all re- pealed by the new Code, and the entire power of municipalities with respect to markets is expressed in the above clause of ] 7, except that the power of appropriation for mar- ket places is given in the second clause of § 10. It would seem, however, that the paragraph of § 7 above is broad enough to cover all the powers given in the sections of the Revised Statutes referred to. See Cincinnati v. Buckingham, 10 O. 257, 261. §§ 2187 and 2230 R. S., relating to the boards which shall have the care of markets are also repealed. The supervision of markets in cities is, by the new Code given to the board of public 60 THE OHIO MUNICIPAL CODE. [Code § 7 service. (§§ 140 and 141); and in villages, to council. (§ 204.) (2) Market houses.— Dedica- tion of space to a city for a mar- ket, gives the city a right to cover the space with a permanent build- ing for a flower market. Fenton v. Cheseldine, 28 B. 223. A city may authorize the ob- struction of a street by a market house and is not liable to traveler injured by such obstruction. Black v. Cleveland, 3 W. L. M. 96. A taxpayer has no right to enjoin the removal or abandonment of a market house. Gall v. Cincinnati, 18 O. S. 563. Right of abutting property owner to enjoin a market as a nuisance, see Pruden v. Cincinnati, 1 N. P. 340. A city cannot convert a street in- to a market house and rent out places on the curbstone. Hites v. Dayton, 6 B. 142. The power to maintain market houses is a continuing one, and its exercise is subject to revocation by the municipality. Gall v. Cincin- nati, 18 O. S. 563. (3) Market defined. — A muni- cipal market consists: (1) Of a place for sale of provisions and articles for daily consumption. (2) Convenient fixtures. (3) A system of police regulations fixing market hours, making provision for light- ing, watching, cleaning, detecting false weights and unwholesome food and other arrangements calculated to facilitate the intercourse and in- sure the honesty of buyer and sell- er. (4) Proper officers to preserve order and enforce obedience to rules. Cincinnati v. Buckingham, 10 O. 257. Market regulations. — Huck- stering. — Power to regulate huck- stering does not authorize council to include in an ordinance persons as hucksters who do not fall within the ordinary meaning of that term. Mays v. Cincinnati, 1 O. S. 268. Meat selling. — A city may pro- hibit selling meat on the sidewalk or street devoted to market pur- poses in less than certain quantities during market hours, where the city has provided a market and stall for rent at reasonable rates. Keck vs. Cincinnati, 37 B. 57; and city may so prohibit even though a license has been given to sell meat. lb. Ordinances regulating sale of meat, etc., in markets must be rea- sonable and just, when applied to the subject matter. Kraft v. Cin- cinnati, 3 N. P. 195. One licensed to sell meat from a stand, if refused a stand in the market house may sell in the open air, regardless of a market regula- tion forbidding such selling. lb. Charge for market stands. — An ordinance imposing a charge of twenty-five cents on every person occupying a stand in the open mar- ket spaces and a fine for its non- payment to be collected by process and judgment forthwith, is valid. Cincinnati vs. Buckingham, 10 O. 257. Where a city has erected a mar- ket house in a street a cqurt will enjoin the licensing of hucksters to use the remaining portion of the street, to the injury of abutting property owners. Wilder v. Cincin- nati, 1 N. P. 347. Municipal liability. — A city is liable for injuries caused by dan- gerous excavation in market place, after the city has notice of the de- fect. Nitz v. Toledo, 22 C. C. 454. It is the duty of a market super- intendent to see that a market' place is not rendered dangerous, and if such officer is present when danger- Code § 7] GENERAL POWERS. 61 ous excavation is made, the city is market place, used for many years charged with notice. lb. as a part of the common thorough- A pedestrian is not a trespasser fare. lb. in walking on platform scales in a 22. [Bath houses, libraries, etc.] To establish, maintain and regulate public baths and bath* houses, drinking fountains, water troughs and public toilet stations ; and free public band concerts ; to establish, maintain and regulate free public libraries and reading rooms, and to purchase books, papers, maps, and manu- scripts therefor, and to receive donations and bequests of money or property for the same, in trust or otherwise, and to provide for the rent and compensation for the use of any existing free public libraries established and managed by a private corpora- tion or association organized for that purpose. 1 [97 v. 508.] ( 1 ) Resolution of council to main- ized by the statutes relating to free tain a free public library and pro- public libraries. Smith v. Evans, vide a site for the same is author- 74 O. B, — (51 13. 157a). 23. [Hospitals.] To provide for the rent and compensation for the use of any existing free public hospital established and managed by a private corporation or association organized for that purpose. 24. [Immoral literature.] To restrain and prohibit the dis- tribution, sale and exposure for sale of books, papers, pictures and periodicals or advertising matter of an obscene or immoral nature. 1 (1) It was held that publishing visions of former § 1692 R. S., para- obscene matter might be prohibited graph 1. O'Brien v. Cleveland, 1 by a city under the general pro- Cleve. 100; 4 Dec. (Re.) 189. 25. [Sewage disposal.] To provide for the collection and disposition of sewage, garbage, ashes, animal and vegetable refuse, dead animals and animal offal and to establish, maintain and regulate plants for the disposal thereof. 26. [Public grounds, parks and boulevards.] To hold and improve public grounds, parks, park entrances and boulevards, 1 62 THE OHIO MUNICIPAL CODE. [Code to protect and preserve the same and to acquire by purchase, gift, devise, condemnation or otherwise and to hold real estate 2 or any interest therein and other property for the use of the corporation and to sell or lease the same. 3 (1) Railway through park. — If a park is donated to a city for park purposes and forbidding all other purposes, the city has no right to grant a street railway route through it. Cleveland Ry. v. Bar- riss, 33 B. 314. Under the general power to lay off roads and avenues through an ordinary public park, a city may authorize a street railway route to pass through the park and may re- serve rent for such use of park. Mathers v. Cincinnati, 3 B. 551. (2) Purchase of real estate. — A municipality unless restrained by statute, has the implied power to purchase and hold all such real es- tate as may be necessary to the proper exercise of powers specifical- ly granted. Avery v. U. S., 12 O. F. D. 175. Purpose of purchase. — A munici- pality has no power to purchase lands to give away as an induce- ment for parties to locate manufac- tories in the corporation. Markley v. Mineral City, 58 0. S. 430. Where a city thus seeks to give property away, though its deed is of no effect, the courts will not interfere at the suit of the munici- pality to set the conveyance aside, but will leave the parties where it finds them. lb. A city foreclosing an assessment lien may buy in the property at sheriff's sale to save itself. Colum- bus v. Schneider, 7 N. P. 619. A municipality cannot purchase property for the purpose of enter- ing on a money-making business. Hamilton v. Gas Light Co., 8 N. P. 319. Property illegally acquired. — Property acquired by a municipality under an unauthorized contract, where restitution is impracticable, must be paid for. Cleveland v. Den- ison,'16 C. C. 541. . Property acquired by a city un- der an unconstitutional law, for a valuable consideration belongs to it, the transaction being wholly exe- cuted and cannot be subjected to the grantor's creditors. Heck v. Find- lay, etc., Co., 16 C. C. 111. Conditions in deed to city. — The words " as and for a public street " in a deed to a municipal corpora- tion do not ex proprio vigore import a condition. Avery v. U. S., 12 O. F. D. 175. Acquisition by condemna- tion. — See notes to § 10 of Code. Holding in trust. — Municipality may take in trust devise for charita- ble uses. Perin v. Carey, 3 O. F. D. 634. Power to hold ordinarily includes power to hold in trust. State ex. rel. v. Toledo, 3 C. C. (N. S.) 468; 23 C. C. 327. What municipal property taxa- ble. — Lands not actually used In exercise of municipal function are taxable, although rents from them are applied to public purposes. Cin- cinnati v. Lewis, 66 O. S. 49. But see Zumstein v. Coal & Mining Co., 54 0. S. 264. Execution against municipal property. — Property purchased for public building purposes is exempt from execution. Cincinnati v. Cam- eron, 6 Dec. (Re) 727. Exemptions from execution, how claimed and enforced, see State ex rel. v. Holden, 12 Dec. 9k Appropriation of municipal property. — Property held for park purposes may be appropriated for railway right of way. Colby v. To- ledo, 22 C. C. 732, (aff'd 68 O. S. 698), and municipality may waive jury and agree to compensation. 76. Property so appropriated does not revert to original owner, but such owner is entitled to compensation. Newton v. Manufacturers' Rv. Co., 14 O. F. D. 156. (3) Scope of power to sell. — See notes to § 23 of Code, p. 103. Code § 7] GENERAL POWERS. 63 27. [Census.] To take and authenticate a census of the municipality. 1 ( 1 ) Census bureaus. — This pro- cers, etc., to do the work here per- vision would seem to include the mitted. power to appoint the necessary offi- 28. [Conductors on street cars.] To require the employ- ment of conductors on all street cars within the corporate limits. 1 (1) Conductors. — Without such ployment of conductors on street provision municipalities were held cars. Thornhill v. Cincinnati, 4 C. not to have power to require em- C. 354. 29. [Penalty for violation of ordinances.] To make the vio- lation of ordinances a misdemeanor, and to provide for the punishment thereof by fine or imprisonment, or both ; provided, that such fine shall not exceed five hundred dollars and such imprisonment shall not exceed six months. 1 (1) Old sections. — This para- graph seems to be intended to cov- er the provisions of §§ 1861, 1862, 1863 R. S v which are repealed in the repealing sections of the Code. These sections outline in detail how municipalities might provide for the enforcement of ordinances by fines and penalties and what the amount of such fines and penalties might be. *For provisions relating to recov- ery of fines, see §§ 1864 to 1869 R. S., inclusive, in Part II. Right to exercise power. — Making ordinances, though penal ones, is not the exercise of a legis- lative power vested solely in the Legislature. Markle v. Akron, 14 O. 586, 590. Judicial notice of ordinances. — Municipal courts and courts re- viewing their judgments will take judicial notice of ordinances in prosecutions for a violation of the same. Strauss v. Conneaut, 3 C. C. (N. S.) 445; 23 C. C. 320; but •tate courts, in an original action, will not take such notice, although the ordinances themselves, as printed or recorded in the book of ordi- nances, or a certified copy of them will be received in evidence. Toledo v. Libbie, 19 C. C. 704; aff'd without report, 51 O. S. 562. Forfeitures. — Power to impose fines, penalties and forfeitures gives no power to pass an ordinance for- feiting property without proceedings and notice. Rosebaugh v. Saffin, 10 O. 31. No city has power to forfeit with- out legal adjudication, as a penalty for violation of an ordinance, unless the power to forfeit is specifically granted. Cotter v. Doty, 5 0. 393. Character of ordinances. — An ordinance which contravenes the policy of the state, as declared in 63a the ohio municipal code. 7 [Code § 8 general statutes is void. Canton v. Wightman v. State, 10 O. 452. But Nist, 9 O. S. 439. see Wellsville v. O'Conner, 24 C. C. Sunday closing.— An ordinance 689; 1 C. C. (N. S.) 253. prohibiting labor or requiring places Amount of fine. — Section 1862 of business to be closed on Sunday, R. S. provided what amount of which makes no exception as to fine would be reasonable to impose work of charity or necessity, is in- f or violation of ordinances. It was valid. Canton v. Nist, 9 0. S. 439; nel d this section did not fix a limit Strauss v. Conneaut, 23 C. C. 320. f or amount of fine, and a fine of State and municipal jurisdic- more than fifty but not more than tion to punish. — The jurisdiction two hundred dollars for the first to punish under an ordinance and offense would not be unreasonable, under a state law is concurrent. Alliance v. Joyce, 49 O. S. 7. 30 (l). 1 [Licenses.] All municipal corporations shall have the power to regulate and license manufacturers and dealers in explosives ; pawnbrokers ; chattel mortgage and salary loan brokers; peddlers; public ball rooms, scavengers; intelligence offices ; billiard rooms ; bowling alleys ; livery, sale and boarding stables ; dancing or riding academies or schools ; race courses ; ball grounds, street musicians, second hand dealers and junk shops. In granting of any license a municipal corporation may exact and receive such sums of money as the council shall deem proper and expedient. In the trial of any action brought under the power of licensing herein given, the fact that any party to such action represented himself or herself as engaged in any business or occupation, for the transaction of which a license may be required, or as the keeper, proprietor or manager of the thing for which a license may be exacted, or that such party exhibit a sign indicating such business or calling, or such proprietorship or management, shall be conclusive evidence of the liability of such party to pay the license therefor. 2 [Amendment, 1904, April 27, 97 v. 509.] (1) See note under next sub-sec- censing power and for annotations tion. on this subject, see §§ 2669 R. S. to (2) Licensing power. — For fur- 2672 R. S. inclusive and notes p. 73, ther provisions relating to the li- et seq. Code § 8] GENERAL POWERS. 63b 30 (2). 1 [Department of purchase, construction and repair.] To establish and furnish the necessary equipment for a muni- cipal department to be known as the department of purchase, construction and repair. Said department shall be under the management and control of the board of public service and through it when so established and said board managing the same shall be made all purchases of material, supplies, tools, machinery and equipment, together with all construction, altera- tions and repairs of every kind and thing in each of the depart- ments of the municipality whether established by law or ordi- nance. No purchase, construction, alteration or repair shall be made except, either upon requisition by the board or officer at the head of the department for which the same is to be made or done or upon the order of council; nor shall any purchase, construction, alteration or repair for any of said departments be made or done except on authority of council and under the laws as to competitive bidding if the cost thereof exceeds five hundred dollars. [Supplement, 1904, May 6, 97 v. 571.] (1) Amendments of 1904. — above. Later, by the act of May 6, Section 7 of the Code was first 1904, § 7 of the Code was supple- amended by the act of April 27, merited by the enactment of a sub- 1904, which amendment, among section with the same number " 30," other changes, added sub-section 30, which is the second of the para- which is the first paragraph 30 given graphs numbered 30 above. Sec. 8. [Other powers.] All municipal corporations shall have the powers conferred by general law in sections 2108, 2109, 2110, 2111, 2112, 2149, 2150, 2151, 2152, 2516, 2517, 2521, 2522, 2523, 2524, 2525, 2526, 2527, 2528, 2529, 2530, 2531, 2532, 2533, 2533a, 2669, 26696, 2669c, 2670, 2670-1, 2671 and 2672 of the Revised Statutes of Ohio and all other acts or 64 THE OHIO MUNICIPAL CODE. [Code § 8 parts of acts not inconsistent herewith, and having uniform operation throughout the state. (b) Public Peace. Sec. 2108 R. S. [Power of council as to public peace, etc.] The council of a city or village shall have power to provide for the punishment of persons disturbing the good order and quiet of the corporation, by clamor and noise in the night season, by intoxication, drunkenness, fighting, using obscene or profane language in the streets and other public places, to the annoy- ance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd and lascivious be- havior; and they shall have power in like manner to provide for the punishment of any vagrant, common street beggar, common prostitute, habitual disturber of the peace, known pickpocket, gambler, burglar, thief, watch-stuffer. ball-game player, a person who practices any trick, game, or device with intent to swindle, a person who abuses his family, and any suspicious person who can not give a reasonable account of himself. 1 [66 v. 183, § 200; (S. & C. 1554).] (1) Scope of power. — Where known thief found in the munici- the legislature has by general law pality, is valid, and not violative of exercised its jurisdiction as to the the guarantees in the constitution, punishment of an offense, there is a Morgan v. Nolte, 37 O. S. 23. presumption of its intention to make A municipality has no authority its jurisdiction over such subject ex- under this section to make punish- clusive, and the municipality cannot able intoxication or being in a state provide for punishment of the same of intoxication; but it may punish offense unless the power is clearly disturbance of the peace by intoxi- given. Wellsville v. O'Conner, 24 cation. Jeffries v. Defiance, 25 B. C. C. 689; 1 C. C. (N. S.) 253. 68. This section does not give power Sections 2108, 2109, 2110 R. S. to make the crime of assault and give municipalities authority to battery a municipal offense. 76. pass ordinances as to vagrancy, but See also Cleveland v. Lovelle, 3 O. the exercise of the power given by L. R. 648 ; Esch v. Elyria, 27 C. C. these sections was held to be option- 446; 7 C. C. (N. S.) 9. al, and a city may, if it sees fit, An ordinance under this section, waive its option. Application of providing for the punishment of any Squires, 19 C. C. 736. Code § 8] PUBLIC PEACE AND NUISANCES. 65 Sec. 2109 E. S. [Punishment for breaches of peace, etc.] Such punishment may be either by imposing and collecting fines, or by imprisonment in the proper jail or workhouse at hard labor, or both, at the discretion of the court; but no such person shall be fined for a single offense to exceed fifty dollars ; and such imprisonment and hard labor shall not, for the first offense, exceed thirty days, for the second offense ninety days, for the third offense six months, and for the fourth or any further repetition of the offense one year. [66 v. 183, § 201 ; (S. & C. 1555).] Sec. 2110 R. S. [Imprisonment.] The council may provide that any person who refuses or neglects to pay the fine imposed on conviction of any such offense, and the costs of prosecution, shall be imprisoned and kept at hard labor until, at the rate of seventy-five cents for each day's labor, exclusive of Sundays, he shall have earned an amount equal to such fine and costs. [66 v. 183, § 202; (S. & C. 1555).] Sec. 2111 R. S. [Regulation as to labor.] The council may make suitable regulations to conduct such labor to the best ad- vantage, and in a manner consistent with the age, sex, and health of the prisoners ; and such labor may be done at the corporation prison, workhouse, or elsewhere, and under the charge of such officers or other persons as the council may select. [67 v. 75, §203; (S.&C. 1555).] Sec. 2112 R. S. [Hospitals for diseased prisoners.] The coun- cil may provide suitable hospitals for the reception and care of such prisoners as may be diseased or disabled; the same to be under such regulations, and under the charge of such persons, as the council may direct. [66 v. 183, § 204 ; (S. & C. 1555).] (c) Nuisances. Sec. 2149 R. S. [Powers of municipal corporations to fill lots, remove obstructions, etc.] All municipal corporations shall have power to cause any lot of land within their limits on which water at any time becomes stagnant, to be filled up or drained, and to cause all putrid substances to be removed from any lot, and to cause the removal of all obstructions from all culverts or covered drains on private property, laid in any natural water- course, creek, brook or branch where the same obstructs the water naturally flowing therein, causing it to flow back or be- come stagnant, in a way prejudicial to the health, comfort, or convenience of any of the citizens of the neighborhood ; * and if such culverts or drains be of insufficient capacity, to cause the same to be made of such capacity as reasonably to accommodate 66 THE OHIO MUNICIPAL CODE. [Code § 8 the flow of such water at all times therein ; and the council may- direct, by resolution, 2 the owner to fill up or drain such lot, remove such putrid substance, or remove such obstructions, and if necessary enlarge such culverts or covered drains to meet the requirements thereof. [1884, March 11: 81 v. 37; Kev. Stat. 1880; 66 v. 225, § 452.] (1) Scope of power. — A city measure. Bliss v. Kraus, 16 O. S. council cannot arbitrarily declare a 54. stream a nuisance and order it Scope of such resolution. — By abated. The power to abate nui- reasonable construction of such reso- aances in any way the corporation lution it required not merely the re- deems expedient is not an unre- rooval of stagnant water, but that stricted power. The abatement must the work be done in such a way as be necessary for the public good and to prevent the recurrence of stag- limited by necessity, and no wan- nant water. Bliss v. Kraus, 16 O. ton injury to property must be com- S. 54. mitted. Deming v. Cleveland, 22 C. Description of premise s. — C. 7 t 9. Where the property described in the (2) Validity of resolution di- resolution for the abatement of a recting lots to be filed. — A reso- nuisance identifies the premises, a lution under the Act of 1852, similar misnomer of the township will not to this, directing lot owners to fill invalidate the proceedings. Poland and drain their lots in such manner v. Connolly, 16 O. S. 64. as should be necessary to remove all See generally note to paragraph 3, stagnant water, was held to be con- § 7, of the Code, stitutional as a reasonable sanitary FORM OF RESOLUTION DIRECTING OWNERS OF LOTS TO FILL AND DRAIN THE SAME. Be it resolved by the council of the city [or village] of , State of Ohio: That the owners of the following lots, to wit: — (insert description of property required to be filled and drained) be and they are hereby di- rected to fill and drain said lots so as to remove therefrom all stagnant water. That such owners be required to comply with tne direction herein given within two weeks from the receipt of notice hereof or the publication of the same as herein directed, and that if the same shall not be done by that time the corporation will do the work at its own expense and collect the amount thereof from such owners in the manner provided by law. The city [or village] clerk is hereby directed to serve a copy of this resolution upon the owners of such lots or on their agents or attorneys and publish the same for two consecutive weeks in a newspaper of general circulation in the corporation. Adopted the day of , 19 Attest : , President of Council. Clerk. o Code § 8] CEMETERIES 67 If it is desired to direct putrid substances to be removed, obstruction to water courses to be removed, culverts to be enlarged, etc., in accordance with the above section, the form given above may be changed to meet requirements. Sec. 2150 R. S. [Duty of owner to comply with direction.] It shall be the duty of such owner, or his agent or attorney, after service of a copy of such resolution, or after a publication of the same in some newspaper of general circulation in such corpora- tion for two consecutive weeks, to comply with the directions of the resolution within the time therein specified. \_66 v. 225, § 453.] Sec. 2151 R. S. [To be done at owner's expense, in case of re- fusal or neglect, etc.] In case of failure or refusal to comply with the resolution, the work required thereby may be done at the expense of the corporation, and the amount of money so expended shall be recovered from the owner before a justice of the peace, or other court of competent jurisdiction; and such expense shall, from the time of the adoption of the resolution, be a lien on such lot, which may be enforced by suit in the Court of Common Pleas of the proper county; and like proceedings may be had as directed in relation to the improvement of streets. [66 v. 225, § 454.] Sec. 2152 R. S. [Duty of health officers to enforce provisions of this chapter.] It shall be the duty of the officers connected with the health department of every such municipal corpora- tion, to see that the provisions of this chapter are strictly and promptly enforced. (d) Cemeteries. Sec. 2516 R. S. [Council to provide cemeteries.] The coun- cil may provide places for the interment of the dead outside of the corporate limits, and the police powers of the corporation shall extend to those places. [66 v. 210, § 361.] Sec. 2517 R. S. [Title to be vested in corporation.] The title to, and right of possession of all public graveyards and burial- grounds, located within any city or village, which have been set apart and dedicated as public graveyards or burial-grounds, and grounds which have been used as such by the public, but not dedicated, except such as may be owned or under the care of any religious or benevolent society, or any incorporated company or association, shall be and the same are hereby vested in the corporation where such public graveyard or burial-ground is located. [66 v. 210, § 362.] .68 THE OHIO MUNICIPAL CODE. [Code § 8 Sec. 2521 R. S. [Duties of trustees.] The trustees ! shall take possession and charge, and have the entire management,, control, and regulation of all public graveyards, burial-grounds, and cemeteries located in or belonging to the corporation, subject to its ordinances, and they shall direct, whenever they may deem it necessary, the laying out of such grounds and cemeteries into lots, avenues, walks, and paths, or other subdi- visions, which lots shall be numbered, the avenues named, and a plat thereof made so as to exhibit a fair and distinct outline of the grounds ; and the same shall be kept in the office of the clerk of the corporation for the use of the public. [66 v. 211, § 366.] ( 1 ) Managing board. — In cities. —The sections (2518-2520 R. S.) providing for the election of boards of trustees of cemeteries, their terms of office, etc., were repealed by the Code. By § 141 of the Code, the Board of Public Service is given charge of cemeteries in cities. The duties, powers, etc., here, and in sub- sequent re-enacted sections, would therefore devolve upon the Board of Public Service. In villages. — In villages the care of cemeteries is no doubt reposed in council, since under paragraph 17 of § 7 of the Code, the power is given to all municipalities to establish and regulate cemeteries. In those villages having trustees of public affairs, as authorized in § 205 of the Code, such trustees may have im- posed upon them by ordinance the control and management of ceme- teries. This is authorized by the provision in § 205 giving to the trustees of public affairs " such other duties as may be prescribed by law or ordinance, not inconsist- ent herewith." By § 2518 R. S. re-enacted May 3, 1904, the mayor in villages is given power to appoint cemetery trustees, where there are public cemeteries al- ready or hereafter to be established. See § 2518 in Part II. (page 731). Sec. 2522 R. S. [Their power, etc.] The trustees 1 shall di- rect all the improvements and embellishments of the grounds and lots, protect and preserve the same, and appoint, subject to the approval of the council, all necessary superintendents, em- ployes, and agents, and determine their term of office and the amount of their compensation. 2 [66 v. 211, § 367.] (1) See note to § 2521 K 3., supra. ( 2 ) Bids for work. — It is not necessary that bids be advertised for and received for the work and ma- terials used, in the improvements and embellishments here authorized. See Walsh v. Columbus, 36 O. S. 169. Municipal liability.— A city i<* liable for injuries to an employee while engaged in improving a vault owned by the city in its cemetery, such injury occurring through the negligence of the superintendent of the cemetery and the board having control and management of it. To- ledo v. Cone, 41 O. S. 149. Code § 8] CEMETERIES. 69 Sec. 2523 R. S. [May institute suits, etc.] The trustees * shall, when necessary, institute suits in the name of the corpora- tion to recover the possession of such grounds, remove trespass- ers therefrom, and recover damages for injuries thereto, or to any tombstone or monument therein, and they shall see that all laws and ordinances passed for the protection of public burial- grounds and cemeteries, and the burial of the dead, are enforced. [66 v. 211, § 368.] (1) See note to § 2521 R. S., supra. Sec. 2524 R. S. [To make by-laws, etc.] The trustees x shall make such by-laws and regulations, not inconsistent with the or- dinances of the corporation and the constitution and laws of the state, as they deem useful and necessary for the management and protection of such burial-grounds and cemeteries as may be under their control, and the burial of the dead therein, which by-laws and regulations shall have the same validity as the or- dinances of the corporation; and they shall perform all such other duties pertaining to their office as the council may, by ordinance, prescribe. \_Q6 v. 211, § 369.] (1; See note to § 2521 R. S., supra. Sec. 2525 R. S. [Shall fix price of lots and term of payment.] The trustees ! shall determine the size and price of lots, and terms of payment therefor, and shall give to each purchaser a receipt, showing the amount paid and a pertinent description of the lot or lots sold ; and upon producing such receipt to the proper officer, the purchaser shall be entitled to a deed for the lot or lots described therein. [66 v. 211, § 370.] (1) See note to § 2521 R. S., supra. Sec. 2526 R. S. [Charge for cemetery lots limited.] No more shall be charged for lots than shall be necessary to reim- burse the corporation for the costs of lands purchased or appro- priated for cemetery purposes, and to keep in order and em- bellish the grounds ; and provision shall be made for the inter- ment in such cemetery of all persons buried at the expense of the corporation. [68 v. 130, § 371.] Sec. 2527 R. S. [Sale of lots, laying off and embellishing of grounds; donations; appointment of managing trustee; notice of appointment.] The trustees 1 shall have the entire charge and control of the receipts arising from the sale of lots, and of the laying off and embellishing the grounds. They may receive donations by bequest, devise, or deed of gift, or otherwise, or 70 THE OHIO MUNICIPAL CODE. [Code § 8 money, or other property; the principal or interest of which [is] to be used for the enlargement, improvement, embellish- ment, or care of the cemetery grounds generally, or for the embellishment, care or improvement of any particular part or parts, lot or lots therein, as the donor may direct, or as the trustees may from time to time determine, if no direction is given. And they shall appoint one of their number to sell lots, receive payment therefor, direct the improvements, and make the expenditures, under such rules and orders as they shall prescribe, and to invest, manage, and control all property re- ceived by donations and all surplus funds in their hands from any source whatever. Notice of such appointment shall, upon being made, be communicated to the council. [1887, March 16: 84 v. 84; Kev. Stat. 1880; 66 v. 211, § 372.] (1) See note to § 2521 R. S., supra. Sec. 2527a R, S. [Permanent fund authorized for care of lots.] It shall be the duty of the trustees * of cemeteries, the title of which is, by law,, vested in a city or village of this state, to de- clare in their by-laws and regulations for the management of such cemeteries, the amount of money they will accept by agree- ment, gift, devise, bequest or otherwise and hold as a perma- nent fund of such cemetery ; and that they will pledge the faith [and credit] of such city or village, for the perpetual care of such lot or lots designated, using only the interest or income of such money. And such trustees of cemeteries shall, and they are hereby authorized, on the receipt of such said sum of money they designate, to issue therefor a written receipt and acknowl- edgment of the same, signed by their president and clerk there- for, and bind the faith and credit of such corporation, holding the title to such cemetery, to forever hold said money as a per- manent fund, and to provide perpetual care of the lot or lots therein named, for the use, income or interest of such money. And such said trustees shall, by resolution, enter, on the minutes of their proceedings, full detail of such obligation; and shall enter the receipt and incomes of said money and the expendi- ture thereof in detail on their books of accounts, keeping each case separately. Such trustees of cemeteries shall, on the passage of this act, turn over to the council of the municipal corporation, holding title to such cemetery, all property now on hand or held by them as a permanent fund, for the perpetual care of lots in cemeteries under their control, or such money as may thereafter come to them for such purpose, rendering a full statement thereof, by Code § 8] CEMETERIES. 71 whom paid, when, and for what purpose; and on the receipt thereof such council shall acknowledge the receipt thereof in writing to said trustees signed by its clerk, and by resolution duly passed and entered on the minutes of its proceedings, wherein, such council shall pledge the faith and credit of the corporation, it represents, to forever hold such money as a permanent fund, and pay in semi-annual payments, to the trus- tees of such cemetery, as interest on said funds, sufficient to pro- vide perpetual care of such lot and lots as agreed by such trus- tees, and such council and its successors shall invest and keep in- vested all of said funds in any interest bearing debts of said city or village, if any, and if no such debts are owing by such city or village, such money shall be invested in safe interest bearing bonds, or stock for the benefit of such cemetery funds, that the same may bear as great an income as possible, and all such money and the income thereof shall be exempt from taxa- tion, the same as other cemetery property. 2 [May 10, 1902, 95 v. 543.] (1) See note to § 2521 R. S., be considered as re-enacted, though supra. not mentioned in the list of re-en- (2) This section was passed May acted sections given in above § 8 of 10, 1902, as a supplement to § 2527, the Code. and under §212 of the Code, it is to Sec. 2528 R. S. [Clerk, and quarterly report.] The trustees 1 shall appoint a clerk, and keep accurate minutes of all their proceedings, and report quarterly to the council all the moneys received and disbursed by them as such trustees. [66 v. 211, § 373.] (1) See note to § 2521 R. S., supra. Sec. 2529 R. S. [Annual report to council.] The trustees 1 shall, annually, on the first Monday of April, or as soon there- after as may be practicable, report in writing to the council, the number of lots sold, to whom sold, and the amount received therefor, during the year preceding, and a detailed statement of the expenditures during the same period, showing the timt and purpose of each payment, and to whom made. [Q6 v. 212, § 374.] (1) See note to § 2521 R. S., supra. Sec. 2530 R. S. [Statement as to funds, etc.] Such report shall also contain a pertinent statement whether the funds, if any on hand, are invested, and the character of the securities there- 72 THE OHIO MUNICIPAL CODE. [Code § 8 for, and such other matters as the trustees 1 may deem expedi- ent or the council may require. [66 v. 212, § 375.] (1) See note to § 2521 R. S., supra. Sec. 2531 R. S. [Enlargement of grounds.] When, in their judgment, an enlargement of any burial or cemetery grounds has become necessary, or grounds for additional cemeteries should be provided, the trustees 1 shall report the fact to the council, and recommend such action as they may deem most expedient. [66 v. 212, § 376.] ( 1 ) See note to § 2521 R. EL, supra. Sec. 2532 R. S. [Union of cities, etc., and townships for ceme- tery purposes.] It shall be lawful for the councils of two or more municipal corporations, or of such corporation or cor- porations, and the trustees of any township or townships, when conveniently located for that purpose, to unite in the establish- ment and management of a cemetery, by the purchase or appro- priation of land therefor, not exceeding in extent one hundred acres, to be paid for as hereinafter provided. [66 v. 212, § 377; 68 v. 73, § 1.] Sec. 2533 R. S. [Election of trustees in case of union.] When two such bodies unite for cemetery purposes as provided in the preceding section, the municipal corporation or township having the larger number of voters at the last preceding annual election for corporation or township officers, shall elect two trus- tees, one trustee for one year and one trustee for two years, and the other corporation or township shall elect one trustee for three years, and that at the expiration of their respective terms their successors shall be elected for a term of three years. When three such bodies unite for such purposes each of such corporations or townships shall be entitled to one trustee, and when four or more such bodies unite for such purposes, the three corporations or townships having the largest number of voters respectively shall each elect one trustee, and at the next annual election the corporation or township, the term of whose trustee expires, shall not be entitled to a trustee, but the cor- poration or township standing fourth in the number of voters shall be entitled to a trustee, and so on in rotation, so that each corporation or township shall be without a trustee at regular intervals corresponding with the number of corporations or townships that may be united in the provisions of this chapter, and all vacancies in said board shall be filled by the council of such corporation or corporations and the trustees of such town- ship in joint session convened for that purpose. 1 [97 v. 387; 68 v. 73, § 2.] Code § 8] licenses. 73 (1) Joint cemetery board. — §§ for the management of such proper- 2533 and 2533a R. S. a in providing ties in a manner different from all for the management of cemeteries other municipalities, producing a re- jointly owned by townships and mu- suit not in harmony with the gen- nicipal corporations, are inconsist- eral purpose of the new Code. To ent with the provisions of the new give effect, therefore, to the re- Code giving to the directors of pub- enactment of §§ 2533 and 2533a, lie service in cities and councils in the directors of public service in villages the control of cemeteries. cities and the council (or trustees (See note to § 2521 R. S., supra). of public affairs or trustees ap- The control of cemeteries so given pointed under § 2518) in villages, must include those owned jointly would represent their municipalities with a township as well as those in the management of cemeteries owned exclusively by a municipal owned jointly with a township as corporation. Otherwise power would above, and their vote or votes in be given to a particular class of SU ch joint management would be in municipalities, to wit, those whose the proportion given and under the cemeteries are owned jointly with ru \ es governing in said sections, a township, to create a special board Sec. 2533a R. S. [Organization of board of trustees.] The board of trustees, when appointed in pursuance with the provi- sions of Section No. 2533 shall organize by electing a president, a secretary and a managing trustee, the latter of whom shall receive and hold all moneys coming into the hands of such board. Before entering upon the discharge of his duties, the managing trustee shall give bond, with sureties to be approved by the president and secretary of such board of trustees, payable to them as such officers in such sum as they determine, and con- ditioned for the faithful discharge of his duties, and the paying over according to law upon the order of the board, of all moneys that may come into his hands by virtue of his office. 1 [89 v. 177.] ( 1 ) See note to § 2533 R. S., supra. (e) Licenses. Sec. 2669 R. S. [General licensing powers of council.] The council of any city or village may provide by ordinance for licensing all exhibitors of shows or performances of any kind, not prohibited by law, hawkers, peddlers, auctioneers of horses and other animals on the highways or public grounds of the corporation, vendors of gunpowder and other explosives, tav- erns and houses of public entertainment, and hucksters in the public streets or markets, and, in granting such license, may exact and receive such sum of money as it may think reason- able ; 1 but nothing in this section shall be construed to author- ize any municipal corporation to require of the owner of any n THE OHIO MUNICIPAL CODE. [Code § 8 product of his own raising, or the manufacturer 2 of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product ; provided, that in cities and villages, the council may confer upon, vest in and delegate to the mayor of such city or village, the authority to grant and issue licenses and revoke the same. Provided fur- ther, that nothing herein contained shall be construed to limit the power conferred upon cities and villages in section one thousand six hundred and ninety-two 3 of said Kevised Statutes. [1889, March 28: 86 v. 164; 82 v. 148; 77 v. 74; Eev. Stat. 1880; 66 v. 223, § 447; 76 v. 167, § 1.] (1) Definition of a license. — State ex rel. v. Hipp, 38 0. S. 199. Constitutionality. — It is within the power of the legislature to au- thorize municipalities to impose a charge for licensing. Though the constitution does not expressly con- fer such power, it is not prohibited and may be exercised. Baker v. Cincinnati, 11 O. S. 534. A license fee exacted from exhibit- ors and others, though a substantial amount, does not violate the consti- tutional requirement of uniformity of taxation, nor the rule requiring a tax to be according to the true value in money. Baker v. Cincin- nati, 11 O. S. 534; and see Marmet v. State, 45 O. S. 63, and Cincin- nati v. Bryson, 15 0. 625. Subjects of licensing power. — A town ordinance prohibiting the keeping of a grocery without a li- cense, is valid, though it enumerates articles licensed, to be sold, for state or county purposes. Thomas v. Mt. Vernon, 9 O. 290. Council would have power to li- cense and regulate draymen. Cin- cinnati v. Bryson, 15 O. 625. Hawking and peddling are proper subjects for police surveillance and may be licensed, if done without discrimination and a reasonable li- cense fee charged. But council cannot by ordinance include persons as hucksters who do not fall within the ordinary mean- ing of that word. Mays v. Cincin- nati, 1 O. S. 268. License cannot be exacted from ticket brokers under the general pro- visions of this section. The power to license such brokers must be spe- cifically given. Frank v. Cincin- nati, 7 N. P. 146. But such license would be allowed under the provi- sions of § 7, clause 7, of the Code. Exhibitor of show — Who is. — An ordinance forbidding persons to exhibit or participate in exhibiting a performance without license, ap- plies to proprietors and not to per- formers. Ex parte Ryan 7 B. 50. Auctioneer — Who is. — Criers* of tobacco at warehouse sales are auctioneers within a section such as this. State v. Withers, 3 N. P. 63. Reasonableness of charge. — A city ordinance imposing a fine of $25 per day for auctioning goods brought into the city for the pur- pose is an unreasonable exercise of power. Sipe v. Murphy, 49 O. S. 536. An ordinance fixing a charge of 25 cents a day for occupying a stand in market was held good. Cincin- nati v. Buckingham, 10 O. 257. A license fee of $50 per day im- posed on transient dealers was held" Code §8] LICENSES. 75 unreasonable. Glaser v. Cincinnati, 31 B. 243. An ordinance charging $20 per day as a license fee for selling goods imported into the municipality for sale and for advertising bankrupt, receivers', etc., sales would be un- reasonable. Newark v. Flatau, 34 B. 239. (Supreme Ct. not report- ed.) See also Flatau v. Mansfield, 14 C. C. 592, 597. To hold ordinance invalid because fee is excessive, the fee must be man- ifestly unreasonable and oppressive. Fee of $50.00 a year for certain per- sons selling goods upon the streets held reasonable. Murphy v. Colum- bus, 15 Dec. 60; 2 N. P. (N. S.) 484. Licensing power cannot be used to tax an employment. — The power of taxation is a sovereign power and can be exercised only when expressly granted. The power to tax employments, not being con- ferred on municipalities, they can- not exercise it, as a means of pre- senting the employment, or other- wise. The sum demanded for license to pursue an employment, when used as a means of supplying the public treasury, is a tax upon such an em- ployment, and not strictly a license. Such a tax a municipality has no power to levy. Mays v. Cincinnati, 1 O. S. 268. When the sum demanded is, how- ever, "rather a price received for accommodations provided by the public," it is strictly a license fee. Cincinnati v. Buckingham, 10 O. 257. Requiring the fees to be paid into the street repair fund, does not show conclusively that ordinance is for purpose of raising revenue, and not a price received for accommodations provided by the public. Murphy v. Columbus, 15 Dec. 60; 2 N. P. (N. S.) 484. The burden imposed on officials may justify a license fee beyond the mere expense of filling up the blanks. Baker v. Cincinnati, 11 O. S. 534, 543; Columbus v. Jeffrey, 1 N. P. (N. S.) 265; 13 Dec. 639; and the fact that some revenue is derived from a license does not make the ordinance invalid. lb.; and the presumption is that the fee does not exceed the expense of regulation, un- less the contrary plainly appears. lb. ; Cincinnati v. Bryson, 15 Ohio 625; Columbus v. Jeffrey, 16 Dec. 330. So an ordinance, exacting a license fee for theatrical exhibitions for six months and also a fee for the officer issuing the license, was up- held. Baker v. Cincinnati, 11 O. S. 534. Discrimination, — Against goods made outside of state. — An ordi- nance, under this section, requiring hawkers and peddlers to pay a li- cense, in so far as it is applicable to goods made outside the state is void as a regulation of commerce, and a dealer compelled to pay may recover back license fee. Burkhart v. Co- lumbus, 17 B. 342. See also In re Julius, 26 C. C. 423; 4 C. C. (N. S.) 604. The power to license auctioneers cannot be used to discriminate be- tween sales of goods of the same class already in the city and those imported into it. Sipe v. Murphy, 49 O. S. 536. A city cannot discriminate against articles made outside the state, and an ordinance requiring canvassers for their sale to pay a license is void. Ex parte Clamp, 16 B. 229. License to sell goods is in legal ef- fect a tax upon such goods, so that if a license to sell goods applies to goods made outside the state and discriminates against them, it is void as a regulation of interstate commerce. Arnold v. Yanders, 56 O. S. 417, 420. As between different persons in municipality. — An ordinance is not invalid because it requires different fees of persons using one kind of vehicle from those required of per- sons using another kind, if the grad- uation of fees is reasonable. Mur- phy v. Columbus, 15 Dec. 60; 2 N. P. (N. S.) 484. Against persons living outside of municipality. — An ordinance requir- ing a license for selling goods from such persons only as do not live in the municipality is void. Rade- baugh v. Plain City, 28 B. 107. Character and effect of license ordinances. — An ordinance requir- ing license for all vehicles using the streets, is applicable to non-resi- dents transporting articles between 76 THE OHIO MUNICIPAL CODE. [Code § 8 two states and is not void as a regulation of interstate commerce. Bogart v. State, 20 B. 458. An ordinance, under legislative act requiring license fee for each vehicle using the streets, the fee being graded according to the num- ber of horses used, is constitutional. Marmet v. State, 45 O. S. 63. A license having been given to sell meat from a stand, the licensee, if refused a stand in the market- house, may sell in the open air, re- gardless of a prohibition in the market regulations against such selling. Kraft v. Cincinnati, 3 N. P. 195, 6 O. D. 8. Ordinance must be reasonable and not tending to foster a monopoly. lb. Forbidding retail of meat on side- walk or in the street outside the market-house on market days is a reasonable and valid ordinance. Having issued a license to defendant to sell meat does not surrender the right to regulate. Keck v. Cincin- nati, 6 O. D. 97; 37 B. 57, edit. An ordinance limiting statutory rights is void. State v. Tooker, 5 N. P. 122. Enforcement. — Ordinance may provide that payment of license fee be compellable by fine. Marmet v. State, 45 O. S. 63. Where no other remedy for col- lecting a license fee is provided, the municipality may collect by civil action. Cincinnati v. Beuhausen, 22 B. 421. Authorities of a municipality may arrest a proprietor of a variety show who exhibits without a license, but cannot close the place or abate the business under § 2669. Ryan v. Jacob, 6 B. 139. Payment of license fee for occu- pying market stand may be en- forced by a fine imposed in a sum- mary process before the mayor. Cincinnati v. Buckingham, 10 O. 257. Under a license law requiring a li- cense for wagons, etc., using the streets, the person driving is not liable for punishment, if he did not own the vehicle or have any interest therein. O'Rourke v. State, 6 C. C. 612. Recovery of illegal license fee. — Involuntary payment. — When a license fee, though illegal, has been voluntarily paid, upon the party's own petition and without protest, it cannot be recovered back. Mays v. Cincinnati, 1 O. S. 268. As to what is a voluntary pay- ment to the officer issuing the li- cense, see Mays v. Cincinnati, 268; Baker v. Cincinnati, 11 O. S. 534; Stephan v. Daniels, 27 O. S. 527, 539; Toledo v. Buechele, 19 C. C. 127 (affirmed, without report, 65 O. S. 603). In Toledo v. Buechele, 19 C. C. 127, the rule as to involuntary payments is thus laid down : " The money will be deemed to be paid involun- tarily, and may be recovered back, where the position or interests of the party paying it were such as to require from another the perform- ance of a duty enjoined by law, and the party paying it, was illegally compelled to pay the money to in- duce the other to perform such duty for him." One who disputes the amount of a license should tender a reasonable amount, or pay and sue to recover the amount paid on any excess over the right amount. Cincinnati v. Bryson, 15 0. 625; ex parte Ryan, 7 B. 50. Limitation for recovery. — Re- covery of license fee illegally exacted is not limited to one year. It does not come within § 5848 R. S. Code § 8] LICENSES. 77 Toledo v. Buechele, 19 C. C. 127 (affd. without rep., 65 O. S. 603). Revocation. — A license to con- duct concert hall cannot be revoked by the mayor on mere complaint that the hall is disorderly. Smith v. Major, 16 C. C. 362. Delegation of power by coun- cil. — Power granted to council by the legislature, except ministerial powers, cannot be delegated. The power to fix the standard of com- petency of applicants for license as stationary engineers is not merely ministerial or executive power, but involves discretion and, under a statute to provide for licensing en- gineers, cannot be delegated by council to inspectors. Hengst v. Cincinnati, 7 N. P. 1. Validity of ordinances. — This section by express words permits council to delegate the power to li- cense to the mayor. But if this is not so, an ordinance against un- licensed performances will not be held void when a person can pay and recover back if license fee has been exacted wrongfully. Ex parte Ryan, 7 B. 50. Ordinance not invalid because the city treasurer and not the mayor authorized to issue licenses. Mur- phy v. Columbus, 15 Dec. 60; 2 N. P. (N. S.) 484. (2) Manufacturer— Who is — One who buys cattle and converts them into roasts, steaks, etc., is not a manufacturer under this section. Tippecanoe v. Boercher, 5 C. C. 6. A tailor soliciting orders for suits of clothes and making and deliver- ing suits is a manufacturer within meaning of this section and cajmot be required to pay a license as a peddler. Radebaugh v. Plain City, 28 B. 107. Fee for permits. — An ordinance relating to the sale of pure milk in a city and requiring inspection of milk sold, required a fee of one dollar to be paid and a tag attached to each wagon used in selling milk, before a permit to sell in the city would be granted. It was held that the mere fact that the fee was charged and tag required did not constitute the permit a license in violation of this clause of § 2669, exempting vendors of their own products from payment of a license. Such permit is a mere step to se- cure enforcement of the object of tne ordinance, viz., the sale of pure milk, and to enable the purchaser to rely on the fact that the require- ment of the board of health has been complied with. Walton v. Toledo, 3 C. C. (N. S.) 295; 23 C. C. 547, (aff'd 69 0. S. 548). Validity of limitation, as to persons selling their own produce, see Columbus v. Jeffrey, 16 Dec. 330. Health regulations. — An ordi- nance which is exclusively a health regulation, under the power given in former § 1692 R. B. would not be affected by this clause, excepting vendors of their own products from payment of license, even if such or- dinance should provide for licenses, since § 2669 is expressly declared not to be intended to limit § 1692. Walton v. Toledo, 23 C. C. 547, 3 C. C. (N. S.) 295 (aff'd 69 O. S. 548). (3) Section 1692 here referred to is repealed by the Code. Its pro- visions are substantially retained, however, in § 7 of the Code. Sec. 2669b R. S. [Further licensing powers of council.] The council of any village or city may provide by ordinance for licensing bill-posters, transient dealers, persons who tempo- rarily open stores or places for the sale of goods, wares, or merchandise, and all persons who shall, on the street, or travel- ing from place to place about such village or cities, sell, bargain to sell, or solicit orders for goods, wares or merchandise by 78 the ohio municipal code. [Code § 8 retail. The granting of such license shall be controlled by the provisions of section 2669. 1 [90 v. 311.] ( 1 ) See notes to § 2669, supra. with the purpose, is unreasonable. Constitutionality. — A provision Brunner v. Harrison, 1 C. C. (N. S.) in an ordinance requiring tran- 111; 25 C. C. 247. An ordinance sient dealers to take out a license requiring a license fee from agents before selling goods in the corpora- of portrait companies of another- tion, if standing alone, would be un- state for the privilege of canvassing constitutional. Flatau v. Mansfield, for orders for pictures to be manu- 14 C. C. 592. An ordinance which factured by such companies in such discriminates in favor of persons foreign state, is void, as a regula- who form a purpose to sell after tion of interstate commerce. In re coming into municipality and Julius, 26 C. C. 423; 4 C. C. (N. S.) against those who come temporarily 604. Sec. 2669c R. S. [Licensing of advertising mediums and mat- ters.] That the council of any city or village may provide by ordinance for licensing bill-posters, advertising sign-painters, bill-distributers, card-tackers, and advertising matter of any article or compound which has not been manufactured or com- pounded within the corporation limits of such municipality. 1 In granting such license said council may exact and receive such sums of money as it may think expedient, and may dele- gate to the mayor of such city the authority to grant and issue such license and revoke the same. Providing, that nothing in this section shall be construed to authorize the council of any city or village to exact and receive a license fee from merchants doing business in such city or village, for advertising their own business. [91 v. 362.] (1) See Flatau v. Mansfield, 14 Bill posters. — Constitutionality C. C. 592, 597, and note to § 2670-1, of license, see Angove v. State, 8 infra. N. P. 514. Sec. 2670 R. S. [Licensing of vehicles, undertakers, etc.] The council may also license the owners of vehicles used for the transporation of persons or property, for hire, and all under- takers and owners of hearses ; but the owner of any such vehicle may be made liable for the breach of any ordinance regulating the conduct of the drivers thereof. [66 v. 224, § 448.] Sec. 2670—1 R. S. [Licensing of transient dealers.] That the council of any city or village may provide by ordinance for licensing transient dealers or persons who open stores or places for the temporary sale of goods, wares or merchandise, and in granting such license may exact and receive such sum of money as it may think expedient, and may delegate to the mayor of such city or village the authority to grant and issue such licenses and revoke the same; provided, that this act shall not apply Code § 8] licenses. 79 to persons selling by sample only, nor to any agricultural arti- cles or products offered or exposed for sale by the producer. 1 [87 v. 100; 86 v. 244.] ( 1 ) Constitutionality. — This tial, and unjustly discriminating be- act violates §§ 1 and 2 of the bill of tween goods in the municipality and rights and is invalid. Flatau v. goods brought in for purpose of Mansfield, 14 C. C. 592. sale. lb.; Newark v. Flatau, 34 An ordinance under such act B. 239. would also be invalid because par- Sec. 2671 Itf*S. [Council may prescribe width of tires, fix rate of transportation, etc.] The council may prescribe the width of the tires of all wagons, carts, drays, and other vehicles used in the transportation of persons from one part of the cor- poration to another, or in the transportation of coal, wood, stone, lumber, iron, or other articles in the corporation f and establish [ed] stands 1 for hackney coaches, cabs, or omnibuses, enforce the observance and use thereof, and fix the rates and prices for the transportation of persons and property in such coaches or other vehicles from one part of the corporation [trans- portation] to another. [66 v. 222, § 441.] (1) Hack stand in front of Section strictly construed. — stores on side of street would be This section must be strictly con- a nuisance, and an ordinance estab- strued. Hotel Co. v. Branahan, 7 lishing such stand would be invalid. B. 57. See Branahan v. Hotel Co., 39 O. S. 333. Sec. 2672 R. S. [License, regulation, etc., of ferries.] The council of any city or village shall have the exclusive power to establish, regulate, and license ferries, from such corporation, or any landing therein, to the opposite shore, or from one part of the corporation to another; and in granting such license to impose such reasonable terms and restrictions, in relation to the keeping of such ferries, and the time, manner, and rates of the carriage and transportation of persons and property, as may be proper ; and to provide for the revocation of any such license, and for the punishment by proper fines and penalties, of the violation of any ordinance prohibiting unlicensed ferries, or regulating those established and licensed. [66 v. 223, § 446.] 80 THE OHIO MUNICIPAL CODE. [Code §§ 9, 10 2. SPECIAL POWERS. § 9. [Special power of municipalities.] All municipal cor- porations shall have the following special powers, 1 which shall be exercised in the manner hereinafter provided : First. To appropriate property for public purposes. Second. To sell or lease public property. Third. To regulate the use of streets. Fourth. To levy and collect taxes. Fifth. To levy and collect special assessments. Sixth. To borrow money. Seventh. To maintain and protect a sinking fund. (1) Similar grants elsewhere. In so far as the powers granted in — Some of the special powers given the list of general powers are grant- here are included also in the list ed also in the list of special powers, of general powers in § 7 of the Code. and their manner of exercise speci- This is true to some extent of the fied, the powers are limited by the power to sell and lease and to ap- provisions of this section and must propriate property ( § 7, paragraph be exercised as herein provided. See 26) and of the power to open and Gas Co. v. Tiffin, 59 O. S. 420, 441; repair streets. (§ 7, paragraph 18.) Doll v. Barr, 58 O. S. 113, 120. First. Appropriation of Property. 1 § 10. [Appropriation of property.] All municipal corpora- tions shall have power to appropriate, enter upon and hold, real estate within their corporate limits for the following pur- poses : 2 1st. For opening, widening, straightening, changing the grade 3 of and extending streets and all other public places, and for this purpose the corporation may appropriate the right of way across railway tracks and lands held by railway com- panies where such appropriation will not unnecessarily inter- fere with the reasonable use of the property so crossed by such improvement ; 4 and for obtaining material for the improvement of streets and other public places. Code § 10] APPROPRIATION OF PROPERTY. 81 2nd. For parks, park entrances, boulevards, market places and children's playgrounds. 5 3rd. For public halls and offices, and for all buildings and structures required for the use of any department. 6 4th. For prisons, workhouses, houses of refuge and correc tion, and farm schools. 7 5th. For hospitals, pest-houses, reformatories, crematories and cemeteries. 8 6th. For levees, wharves and landings. 9 7th. For bridges, aqueducts, viaducts and approaches thereto. 8th. For libraries, university sites and grounds for the same. 9th. For constructing, opening, excavating, improving or extending any canal, or watercourse, located in whole or in part within the limits of the corporation, or adjacent and con- tiguous thereto, and which is not owned in whole or in part by the state, or by a company or individual authorized by law to make such improvements. 10 10th. For sewers, drains, ditches, public urinals, bath- houses, water closets, and sewage and garbage disposal plants and farms. 11 11th. For waterworks, natural and artificial gas, and elec- tric lighting, heating and power plants, and for supplying the products thereof. 12th. For establishing esplanades, boulevards, park ways,( park grounds, and public reservations in, around and leading to public buildings and for the purpose of reselling such land with reservations in the deeds of such resale as to the future use of said lands so as to protect public buildings and their environs and to preserve the view, appearance, light, air and usefulness of public grounds occupied by public buildings and 82 THE OHIO MUNICIPAL CODE. [Code § 10 esplanades and park ways leading thereto. [1904, April 25, 97 v. 333.] (1) Old sections.— The appro- priation provisions of the new Code correspond to former chapter 3, division 7, title 12 R. S. (§§ 2232- 2261) repealed. For a judicial con- struction of former chapter 3, see Toledo St. Ry. Co. v. Fostoria, 7 C. C. 293 (aff'd without report, 56 O. S. 726). (2) Strictly construed. — The power conferred to appropriate property, such as is given by this section, must be strictly construed. Toledo St. Ry. v. Fostoria, 7 C. C. 293, 295 (aff'd by Supreme Court without report, 56 O. S. 726) ; Har- beck v. Toledo, 11 O. S. 219. Scope of powers.— The lawful exercise of the powers conferred on municipal corporations to enter upon and take private property for certain purposes enumerated, re- quires a legal appropriation as pro- vided by statute, involving the as- sessment of compensation for the property when taken without the owners' consent. Mansfield v. Bal- liett, 65 O. S. 45.1, 460. Purposes. — The determination of particular purposes for which the power of eminent domain shall be exercised, rests entirely with the Legislature. Giesy v. R. R. Co., 4 O. S. 308. A right to appropriate land for a certain purpose may carry with it the right to appropriate for pur- poses incidental to the original pur- pose. Ward v. M. & N. Tp. & Bridge Co., 6 0. S. 15. A municipal corporation may ap- propriate an easement in land abut- ting on a street for the purpose of making a sloping fill to afford lat- eral support to the street. Dodson v. Cincinnati, 34 O. S. 276. Ditches and drains were held to be public uses which justify con- demnation. Sessions v. Crunkilton, 20 O. S. 349; so were canals, Will- yard v. Hamilton, 7 O. pt. 2, 111. Municipality cannot appropriate property for a railroad under guise of opening a street. Morehouse v. Norwalk, 6 B. 267. Property already devoted to public use. — Under the general power to lay off and establish streets, a municipal corporation may extend a street across a right of way of a railroad, provided the sec- ond use is not inconsistent with the first. Little Miami R. .R. Co. et al. v. Dayton, 23 O. S. 510. But lands already devoted to a public use cannot be condemned to a second public use inconsistent with the first. B. & O. R. R. Co. v. Bel- laire, 4 B. 201; unless the power to do so is clearly and expressly given by statute. R. R. Co. v. Day- ton, 23 O. S. 510; R. R. Co. v. Belle Centre, 48 O. S. 273. The express grant of power to municipal corporations to appropri- ate property of a railroad for street purposes, does not exclude the ap- propriation of such property for any other purpose permitted under the general grant of powers. R. R. Co. v. Belle Centre, 48 O. S. 273. It was held that under the power conferred by former § 2232 R. S. municipal corporations may appro- priate for public offices or a prison, lands of a railroad company not needed or used in the operation of its road. lb. Amount taken. — Though the words " but no more shall be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied " found in the former statute are not included in this section, it would seem that this limitation is nevertheless implied. See Giesy v. R. R. Co., 4 O. S. 308. The discretion to determine the quantity of property required for the purpose for which it is taken rests with the corporation, and its determination will not be disturbed, in the absence of fraud or bad faith. R. R. Co. v. Ironton, 19 O. S. 299. Code § 10] APPROPRIATION OF PROPERTY. The appropriation by a city of land for park purposes vests in the city, not the fee, but an easement for the purposes intended. Newton v. Man- ufacturers' Ry. Co., 14 0. F. D. 156. When right to possession ac- crues. — The right of a city to take and hold property for street pur- poses does not accrue until com- pensation has been assessed by a jury. Garvin v. Columbus, 5 N. P. 236. Estoppel to question validity of proceedings. — A co-tenant is not estopped to question the validity of appropriation proceedings by the ac- ceptance of the compensation money by his co-tenant. Garvin v. Colum- bus, 5 N. P. 236. Collateral attack. — In the ab- sence of fraud or prejudice, plain- tills seeking to enjoin a street as- sessment cannot complain of irreg- ularity of previous appropriation proceedings. Hendrickson v. Toledo, 3 C. C. (N. S.) 355; 23 C. C. 256. What use requires compensa- tion. — The use of streets for sew- ers and drains does not require ad- ditional compensation. Cincinnati v. Penny, 21 0. S. 499. Construction of a public ditch across a railway track is an ap- propriation of the railway com- pany's property for which compen- sation must be made. R. R. Co. v. Commissioners, 63 O. S. 23. The water taken by a city for its own use and supplied to its inhabi- tants, is taken by virtue of its rights as a riparian proprietor and not by virtue of its power of eminent domain, and it need not pay com- pensation to lower proprietors for such use. Canton v. Shock, 66 O. S. 19. Estoppel to claim compensa- tion. — If a R. R. Co. has been allowed to occupy a street on con- dition that the city shall not be re- quired to appropriate in order to cross the tracks with other streets, the company will be estopped to claim compensation. R. R. Co. v. Hamilton, 3 C. C. 455. Who entitled to compensation. — Where property, given for a spe- cific charitable purpose, with a clause of reverter if used for other purposes, is condemned by a mu- nicipality for a street, the compen- sation goes to the owner at time of condemnation and not to the grantor. Babb v. Cincinnati, 36 B. 206. Measure of compensation. — See notes to § 15 of the Code. Assessment to pay compensa- tion. — See notes to § 50 of the Code. Property taken without appro- priation proceedings — Owner's rights. — When property has been taken by a municipality and devot- ed to a public use, without being first appropriated by regular pro- ceedings, the value of the land may be recovered by the owner in pro- ceedings instituted by him against the city. Longworth v. Cincinnati, 48 O. S. 637. Must show title. — Owner suing municipality for value of lands un- lawfully taken must show good ti- tle; validity of tax title considered. Boone v. Cincinnati, 13 Dec. 256. Estoppel to sue. — The fact that owner acquiesced in the appropria- tion as an accomplished fact and ratified it by tendering a deed and offering to allow judgment that, up- on value being fixed plaintiff should be ordered to convey to the cor- poration, does not estop the owner to sue for compensation or consti- tute a dedication of the land to pub- 84 THE OHIO MUNICIPAL CODE. [Code § 10 lie use. Longworth v. Cincinnati, 48 O. S. 637. The fact that owner bought land with knowledge of city's use of it for street purposes and expenditure of money therefor will not estop him from recovering compensation for unlawful taking. Boone v. Cin- cinnati, 13 Dec. 256. (Aff'd 72 O. 8. 682.) The fact that the owner of prop- erty, a part of which is unlawfully appropriated to widen a 3treet, puts down a sidewalk either voluntarily or by order of the city, does not show dedication. Webber v. Toledo, 3 C. C. (N. S.) 319; 23 C. C. 237. Date of valuation. — Value of land at time the owner begins pro- ceedings, and not at the date when it was unlawfully taken, governs. R. R. Co. v. Perkins, 22 C. C. 630, aff'd 49 O. S. 326; Boone v. Cincin- nati, 13 Dec. 256. Statute of limitations. — Owner su- ing municipality for compensation is not barred until expiration of six years from time he was precluded from enforcing his right to recover possession of land. 76. Appropriation of municipal property. — See note under par. 26, § 7 of the Code, p. 62. Money in treasury. — As to ne- cessity for certificate of money in treasury before beginning appropri- ation proceedings, see notes to § 45 of the Code. (3) Damages caused by im- provement — Liability. — See notes to § 54 of the Code. (4) Crossing railroad tracks. — The power expressly given to ap- propriate a right of way across railroad tracks for street purposes would not include appropriation of such property for other municipal uses. R. R. Co. v. Belle Centre, 48 O. S. 273. The compensation would give right to use of the land for any and all street purposes, but would not include new servitudes, and for these the railroad would be entitled to additional compensation. C. C. C. & St. L. Ry. Co. v. U. B. & N. Ry. Co., 26 C. C. 180. A street railway would not be such new servitude. lb. Where street is extended across tracks, railroad company is entitled to compensation for cost of bridge to carry its trains over street. Rail- way Co. v. Troy, 68 O. S. 510. Where the municipality is about to file a petition in the probate or common pleas court in an action to appropriate a right of way across a railroad track, the railway company may, in a proper case, enjoin the ap- propriation on the ground that it will unnecessarily interfere with the reasonable use of the property so crossed, and the court may restrain further proceedings in the appro- priation case until the claim of the company has been judicially deter- mined. Ry. Co. v. Greenville, 69 O. S., 487. Contra, Cleveland, etc., Ry. Co. v. Akron, 1 C. C. (N. S.) 174. (5) Railway in park. — Prop- erty already devoted to the use of a public park may be subject to the uses and purposes of a railway com- pany. Colby v. Toledo, 22 C. C. 732 ; aff'd 68 O. S. 698. Compensation for market. — As to compensation to property owners for market in street, see Pruden v. Cincinnati, 12 C. D. 721. (6) Offices and prisons.— The lands of a railroad company may be appropriated for public offices, pris- ons, etc. R. R. Co. v. Belle Centre, 48 O. S. 273. ( 7 ) "See preceding note. (8) Location of pest house. — See note under § 2169, p. 366. (9) Land for wharf. — Under a statute authorizing the appropria- tion of property for a public wharf the discretion of determining the quantity of ground required is vested in the municipality and the courts will not interfere, if the discretion is exercised in good faith. Iron R. R. Co. v. Ironton, 19 O. S. 299. Municipal liability. — The author- ity to acquire sites for levees con- ferred as here, does not impose a duty on a municipality. If a city Code §§11, 12] APPROPRIATION OP PROPERTY. 85 does make provision to protect lands from overflow, under such authority, it is not liable on account of the inadequacy of the provisions which it sees fit to make. Hamilton v. Ashbrook, 62 O. S. 511. (10) Canal is public work for which appropriation may be al- lowed. Willyard v. Hamilton, 7 O. pt. 2, 111. (11) Ditches and drains are public uses of property which jus- tify condemnation. Sessions v. Crunkilton, 20 0. S. 349. Compensation. — The construction of a public ditch across or upon a railroad right of way is an appro- priation of tne railroad company's property which entitles the company to compensation. R. R. Co. v. Com- missioners, 63 O. S. 23. Appropriation of private sewer. — Where a municipality has appropri- ated a private sewer for public use either by depriving the owner of all dominion over it, or for a special purpose, and the owner tendered a deed to the property wrongfully taken, it is for the jury to determine the question of compensation. Mc- Donald v. Cincinnati, 4 N. P. 253. § 11. [In what cases property may be appropriated outside of municipality; proviso.] In the appropriation of property for any of the purposes named in the preceding section, the cor- poration may, whenever the same is reasonably necessary, ac- quire property outside the limits of the corporation; but no land shall be appropriated or obtained for public cemeteries within two hundred yards of any dwelling house without the consent, in writing, of the owner of the tract of land on which such dwelling house may be situated. 1 (1) Old sections— The right to acquire property outside the corpo- ration was, by the former statutes, given only in the case of appropria- tion of material for the improve- ment of the streets (§ 2232, par. 1) ; for public parks (par. 10) ; for wa- terworks and electric light purposes (par. 12) ; for cemeteries (par. 14) ; for levees (par. 16) ; and for sewers, ditches and drains (par. 19). See note to § 2642 R. S., under Code § 28. § 12. [Resolution and notice of intent to appropriate ; ordi- nance.] 1 Whenever it is deemed necessary to appropriate property, council shall pass a resolution, declaring such intent, defining the purpose of the appropriation, and setting forth a pertinent description of the land, and the estate or interest therein desired to be appropriated; and for waterworks pur- poses the council may appropriate such property as it may 86 THE OHIO MUNICIPAL CODE. [Code §12 determine to be necessary ; and immediately upon the passage of such resolution, declaring such intent, for which but one read- ing shall be necessary, the mayor shall cause written notice thereof to be given to the owner, person in possession thereof, or having an interest of record in, every piece of property sought to be appropriated, or to his authorized agent, and such notice shall be served by a person designated for the pur- pose, and return made in the manner provided by law for the service and return of summons in civil actions, and in case said owner, persons, or their agents, can not be found, notice shall be given by publication once a week for three consecutive weeks in a newspaper of general circulation in the corporation, and council may thereupon pass an ordinance by the votes of two-thirds of all members elected thereto, directing said appropriation to proceed. 2 [1906, April 14, 98 v. 164.] (1) Old sections. — This sec- tion corresponds to §§ 2234 and 2235 R. S. repealed. (2) Appropriations for street improvements. — Sec. 2642 R. S. which is re-enacted by the Code (see § 28 of the Code), provides specially for appropriations of property for opening, widening, etc., of streets, and requires that " council shall provide by ordinance for the same." Former § 2235 to which the pres- ent section corresponds, and relat- ing, as the present section does, to appropriations for all purposes, pro- vided merely for a resolution de- claring intent to appropriate, but did not provide for an ordinance to appropriate. Cases under the for- mer § 2235 R. S. held that in case of opening, widening, etc., of streets, the special provisions of § 2642 R. S. requiring an ordinance to appro- priate but not the preliminary reso- lution, would govern and that the preliminary resolution provided for in § 2234 R. S. was not necessary when the appropriation concerned street improvements. See Krum- berg v. Cincinnati, 29 O. S. 69 Tyler v. Columbus, 6 C. C. 224 Caldwell v. Carthage, 49 0. S. 334 Cincinnati v. Mathers, 6 Dec. (Re.) 755; Toledo v. Bayer, 7 N. P. 324. In Toledo v. Bayer, supra, the court noted the variance between §§ 2234 R. S., 2235 R. S. and 2642 R. S., and applied the rule that " where there is a general provision in regard to the method of proced- ure regarding several subjects fol- lowed by a special provision as to the procedure in regard to one or more of the subjects, the special provision will govern. ,, It will be noticed that in the above § 12, both the preliminary resolution and the ordinance to appropriate are re- quired. In view of this, the safe course, in the case of appropriations for opening, etc., of streets, would be to have both the resolution and the ordinance, the ordinance being passed by a two-thirds vote and de- Code § 12] APPROPRIATION OF PROPERTY 87 scribing the property as required by §2642 R. 8. The preliminary resolution, pro- vided for in § 12, was held necessary in Erie Railway Co. v. Youngstown, 26 C. C. 679; 5 C. C. (N. S.) 332. § 2642 R. S. does not provide all that must be done to appropriate property for the purpose therein specified. The appropriation pro- ceedings must be had as provided in the general laws relating to the appropriation of property generally. Garvin v. Columbus, 5 N. P. 236. Sufficiency of notice. — As to the sufficiency of notice to inform property owners of city's intent to appropriate an easement, see Fen- ner y. Cincinnati, 4 N* P. 182. Fail- ure to file claim for damages under insufficient notice not a forfeiture of right to recover. lb. Mortgagees need not be notified of intention to appropriate. No- tice to legal owners is sufficient. Put-in-Bay v. Stimmel, 18 C. C. 644. Effect of appropriation ordi= nance. — The passage of the appro- priation ordinance appropriates the property, and improvements made thereon after that date are at the owner's risk. Toledo v. Bayer, 7 N. P. 324. But see Stribley v. Cin- cinnati, 9 C. C. 122, where it is held that the value of the property is to be determined as of the time of trial and not as of the time of the pas- sage of the ordinance; but it is said "that to some extent the passage of the ordinance may affect the prop- erty owner. He would not be al- lowed compensation, probably, if with notice of intent of city to im- prove, he unreasonably and in haste put improvements on the property." Passage of the ordinance places the municipality in as advanced a state as private corporation after court has determined the prelimi- nary questions. Toledo v. Bayer, 7 N. P. 324. Ky. Co. v. Greenville, 69 O. B. 487. ORDER OF PROCEDURE IN APPROPRIATION OF PROPERTY. (1) Resolution declaring intent, defining purpose and describing prop- erty to be appropriated, for which but one reading is necessary. (2) Notice to the owners, served, or published once a week for five con- secutive weeks in case such owners or their agents cannot be found. (3) Ordinance to appropriate, and directing the solicitor to apply to the proper court to assess compensation; to be passed by a two-thirds vote of council. (4) Application to assess compensation. (5) Notice of application and time and place of the same, served as other legal process, or, if service cannot be had, then by publication once a week for three weeks. (6) Time set for trial by jury to assess compensation. (7) Jury summoned, trial, verdict and judgment entry. 8* THE OHIO MUNICIPAL CODE. [Code § 13 FORM OF RESOLUTION DECLARING INTENTION TO APPROPRIATE. Resolution No. Declaring intention to appropriate property for purposes. Be it resolved by the council of the city [or village] of State of Ohio : That it hereby declares its intention to appropriate for (street or park, etc.) purposes, for (opening street, or establishing a park ft t etc. ) the following described property, to- wit: (here describe property to be appropriated.) Passed 19 Attest: President of Council. Clerk. FORM OF ORDINANCE TO APPROPRIATE. Ordinance No To appropriate property for purposes. Be it ordained by the council of the city [or village] of State of Ohio, two-thirds of all members elected thereto concurring, Sec. 1. That the following described property be and the same is hereby appropriated to public use for purposes for (open- ing street, or other purpose) to- wit : (Here give description of property appropriated.) Sec. 2. That the solicitor be and is hereby authorized and directed to apply to a court of competent jurisdiction to have a jury impaneled to make inquiry into and assess the compensation to be paid for such property. Sec. 3. That the costs and expenses of said appropriation be paid out of fund. (If bonds are to be issued, see § 100 et seq. of the Code. Sec. 4. That this ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed 19 Attest: President of Council. Clerk. § 13. [Application to court, etc.] Upon the passage of the aforesaid ordinance, the solicitor shall make application to the court of common pleas or to a judge in vacation, to the pro- bate court, or to the insolvency court, in the county in which the land sought to be taken is located, which application shall describe as correctly as possible the land to be appropriated, Code § 13] APPROPRIATION OF PROPERTY 89 the interest or estate therein to be taken, the object proposed, 2 and the name of the owner of each lot or parcel thereof. [1906, April 14, 98 v. 164.] (1) Old section, 2236 R. S., re- pealed. See § 4686-27 R. S., which provides that § 2236 et seq. shall apply to townships. (2) Sufficiency of description. See R. R. Co. v. Prentice, 13 O. S. 373. A petition in appropriation should state the purpose sufficiently to show a public use and that the power is conferred by statute. Ry. Co. v. Bohm, 34 O. S. 114. Boundary lines. — The determina- tion of the extent of boundary lines FORM OF APPLICATION TO of property taken in condemnation proceedings is final between the mu- nicipality and the owner, and can- not be relitigated in another action between the same parties. Cincin- nati v. 'Hosea, 19 C. C. 744; (aff'd without report, 66 O. S. 687). Amendment to application. — Council cannot, while condemnation case is being tried, change by ordi- nance the terms of its application and ask for more property. Grant v. Hyde Park, 67 O. S. 166. ASSESS COMPENSATION. The city [or village] of Court County, Ohio. Plaintiff, Application to assess com- pensation. (Insert names of all persons owning or claiming any interest in the property appropriated.) Defendants. Now comes the city [or village] of , State of Ohio, and represents that it is a city [or village] under the laws of Ohio, and that its Council by resolution duly passed on the day of 19 ... . did declare its intention to appropriate the property hereinafter described, to public use, for [street, or park, etc.'] purposes for [widening street, or for other purpose etc.] of which resolution due notice was given according to law, and by ordinance duly passed on the day of 19 , two-thirds of all the members elected to council concurring therein, did direct the appropriation of said property to proceed ; That the several parties made defendants herein own or claim to own or have some title or interest in said property as the same is divided into lots or parcels and designated and shown on the plat filed herewith and made part hereof, and that the descriptions of said several lots or parcels and the names of the parties who own or claim to own or have an interest in the same, are as follows: (here insert separate description of each piece of property to be appropriated, giving name of the owner or person claim- ing an interest and state the interest claimed.) Wherefore, plaintiff asks the court to cause a jury to be impaneled to make inquiry into and assess the compensation to be paid by the plaintiff for the property appropriated as above set forth, and that upon the pay- 90 THE OHIO MUNICIPAL CODE. [Code § 14 ment to the owners or deposit of the amount so assessed, as the court shall order, possession of said property may be awarded it according to law. City [or village] Solicitor. PRECIPE. To the Clerk: Issue notice to the defendants named in the above application, that the plaintiff will, on the day of , 19 .... , at M... apply to the Honorable , Judge of the Court, of County, for the impaneling of a jury to make in- quiry into and assess the compensation to be paid by the city [or village] of to the owners for the following property,, to-wit: (Here insert description of the entire piece of property to be appropriated. ) City [or village] Solicitor. § 14. [Service of notice to owners of property.] 1 Notice of the time and place of such application shall be given in the ordi- nary manner of serving legal process, 2 to all owners 3 or agents of owners resident in the state, whose place of residence is known, and to all others by publishing the substance of the application, with a statement of the time and place at which it is to be made, once a week for three weeks 4 next preceding the time of the application in some newspaper of general circulation in the county. ( 1 ) Old section. — This section him he may sue the corporation and corresponds to § 2237 R. S. repealed. recover damages. lb. And, gener- ( 2 ) Service of notice. — Service ally, it would seem that all persons at residence within the jurisdiction having an interest would come with- is good. Trustees v. O'Meara, 2 B. in the word " owners " in the stat- 142. See generally R. R. Co. v. ute. 76. And see Big Four, etc., Belle Centre, 48 O. S. 273, 290. Co. v. Cincinnati, 12 Dec. 218. In case of death of owner or per- (4) Publication for three weeks ion having an interest, pending pro- is satisfied by an insertion once each ceedings, revivor must be had in the week for three weeks. Early v. Doe, name of the heirs, and not admin- 16 How. (U. S.) 610. But three istrators. R. R. Co. v. Bohm, 29 O. full weeks should elapse after the S. 633. first publication before the hearing (3) Mortgagee whose mortgagt is had. Miller v. Pearce, 2 C. S. C. is recorded must be notified. Har- R. 44, 50. But see Cincinnati v. rison v. Sabina, 1 C. C. 49. And if Fenner, 8 N. P. 342 (reversed on property is taken without notice to other grounds, 65 O. S. 567). Code § 15] APPROPRIATION OF PROPERTY. 91 FORM OF NOTICE BY PUBLICATION. LEGAL NOTICE. ( naming persons to be notified by publication) are hereby notified that an application in writing substantially as herein set forth will be made by the city [or village] of to the Hon , Judge of the Court of County, Ohio, on the day of at o'clock . . . .M., to impanel a jury to assess the compensation to be paid by said city [or village] to the owners of the following described real estate: (Describe entire tract, and lots into which it is divided, giving the names of the owners), said property having been condemned and appropriated to public use for the purpose (state the purpose of appropriation ) , by a resolution declaring the intention to appro- priate duly passed by the council of said city [or village] on the day of , 19. . . ., and an ordinance directing the appropria- tion to proceed, duly passed by said council on the day of , 19...., and the plaintiff asks that upon payment to the owners or deposit of the amount of compensation assessed, as the Court shall order, possession of said property may be awarded it according to law. City [or village] Solicitor. § 15. [Court to fix time for inquiry, etc.] 1 If it appear that such notice has been served five days before the time of application, or has been duly published, or that such notice has been waived, the court shall set a time for the assessment of compensation by a jury; 2 provided, that the same may be made at a special term of court, and the jury shall be drawn and the trial proceed as in other civil actions. 3 (1) Old sections. — This section Scope of preliminary hearing. corresponds to §§ 2238, 2239 and — There is no authority for filing an 2240 R. S. repealed. answer to the application to assess (2) Waiver of jury is not a compensation. Ry. Co. v. Greenville, fatal irregularity and cannot be 6 ^ O. S. 487. So a railway company taken advantage of collaterally. was held not to have the right to Hendrickson v. Toledo, 23 C. C. file an answer setting up that a 256; 3 C. C. (N. S.) 355. See also crossing of its property by a street Colby v. Toledo, 22 C. C. 732, (aff'd would unnecessarily interfere with 68 O S 698) railway uses. lb. Whether court (3) Proceedings. - Appropria- J?*? *""£ }f* ye to nlean answer to tion proceedings by municipal corpo- £ e ' ^P 11 ™^ £* *' £ C n °- V ' rations are now made to conform *Jyde Park 4 N. P. 296; . Ry. Co v. to proceedings in "other civil ac- Greenville 69 O. S 487, 497. When tions," except where governed by * he resolut J°n and or ^™™e have the special provisions in §§ 12 to b ? en P assed \ nd recorded the mu- 22 inclusive of the Code. n ^ cl P al P owe . r + has been exercised and _ __ ... the appropriation made, and further Continuances— No provision is proceedings are for compensation to made for continuing the time of the owner whose pr0 perty has been hearing as was provided in § 2241 appropriated. Ry. v. Greenville, 69 R. S. repealed, but this would be . S. 487, 493. The court only de- covered by the general provision termines in the preliminarv hearing that the trial shall proceed as in that notice has been duly served. 76. ; other civil actions. (contra, Toledo R. R. Co. v. Toledo, 7 N. P. 285) ; and cannot consider THE OHIO MUNICIPAL CODE. [Code § 15 the question whether the proper pre- liminary resolution has been duly passed by council. Erie Railway Co. v. Youngstown, 26 C. C. 679; 5 C. C. (N. 8.) 332. The proper remedy, where prelim- inary requisites have not been com- plied with by the municipality, is an action to enjoin the municipality from continuing with the condemna- tion proceeding. Erie Railway Co. v. Youngstown, 26 C. C. b79; 5 C. C. (N. S.) 332; Ry. Co. v. Greenville, 69 O. S. 487. Separate trials. — Under former statutes it was held that property owners were not entitled to sepa- rate trials and there could be but two peremptory challenges on each side of the case. Cincinnati v. Neff et al., 19 B. 404. But as to number of peremptory challenges see the act of April 29, 1902 (95 v. 308). Compensation — for what made. — Where the city appropriates an easement on property for a sloping fill in connection with street con- struction, compensation must be made for the damages resulting from taking the easement, but the fee in the land need not be paid for. Dodson v. Cincinnati, 34 O. S. 276. Compensation must be allowed for diversion of a watercourse, made necessary by the appropriation of property. Hueston v. R. R. Co., 4 O. 8. 685. Railroad company is entitled to compensation for cost of bridge over street, when its property is appro- priated to extend a street under its tracks. Ry. Co. v. Troy, 68 O. S. 510. If fair and reasonable rent of property appropriated exceeds amount fixed in terms of lease, the lessee may be compensated for the difference. Cincinnati v. Neff, 20 B. 8. The lessee of property appropri- ated for a street is still liable for the rent and he must be compensat- ed. Foote v. Cincinnati, 11 O. 408. If a tract is platted into lots and the plat recorded, the corporation is not liable to pay damages to lots not taken as "damages to the resi- due." Banning v. Trustee South- ern Ry., 3 B. 965. A lessee's damages for improve- ments made by him under a parol lease for three years destroyed by opening a street, must come from the lessor and not from the city. Clark v. Cincinnati, 1 Dec. (Re.) 10. Riparian rights are property which must be paid for and city injuring natural watercourse by the emptying of sewage must make com- pensation to riparian owner. Mans- field v. Balliett, 65 O. S. 451. As to case of lease expiring before payment of the award, see Cleveland v. Cuyahoga, etc., 41 O. S. 600. The value of the property at the time of trial, and not at the date of the condemnation ordinance is to be given. Stribley v. Cincinnati, 9 C. C. 122. But see Toledo v. Bayer, 7 N. P. 324. What compensation includes. — The appropriation of property for street purposes embraces not only an ascertainment of compensation to the owner for land taken, but dam- ages to the residue of his abutting property, and where a municipality in its application makes general de- mand for an appropriation for street purposes, the effect of a judg- ment in such case is to give the municipality the right to use the land for all street purposes includ- ing the right to establish a reason- able and proper grade, and any dam- ages that may arise from such change of grade are included in said appropriation proceedings. Grant v. Village of Hyde Park, 47 B. 831 (67 O. S. 166) ; Tenney et al. v. Cincinnati, 47 B. 832; 24 C. C. 237; (67 O. S. 518). Measure of compensation. — The elements of compensation are, ( 1 ) the abstract value of the land taken, (2) the value arising from the relative situation of the land, taken in connection with the residue of the owner's land from which it is severed, and, (3) the effect upon Code § 15] APPROPRIATION OF PROPERTY. 93 the value of the residue of the own- er's land arising from the uses to which the part taken is appropriat- ed. R. R. Co. v. Ball, 5 O. S. 568; Lorain St. Ry. Co. v. Sinning, 17 C. C. 649. As to the measure of compensa- tion when land devoted to a public use is transferred to another public use, see Hatch v. R. R. Co., 18 O. S. 92; Goodin v. Canal Co., 18 O. S. 169; R. R. Co. v. Zinn, 18 O. S. 417. Fair market value of the land at time of taking must be paid the owner and jury cannot consider, or make use of the fact that it has been increased in value by the proposed construction of the improvement. Giesy v. R. R. Co., 4 O. S. 308. But as to increase in value by proposed erection of a city hall for which property was appropriated, see Cin- cinnati v. Neff, 20 B. 8. Fair market value of property ap- propriated is that amount which the owner may reasonably expect to sell for at time of condemnation and at a voluntary, not a forced, sale. Ry. Co. v. Knauss, 47 B. 807. Damages to residue must be ac- tual and not theoretical or specula- tive, lb. Compensation for toll house when turnpike is brought within city lim- its, see Turnpike Co. v. Cincinnati, 6 N. P. 233. Value of leasehold taken, how measured, see Cincinnati v. Evers- man, 4 O. L. R. 140; Cincinnati v. Neff, 20 B. 8. Evidence — Burden. — The bur- den to establish value is on the owners. Cincinnati v. Neff, 20 B. 8. Special benefits. — Special benefits connected with the appropriation of the. specific land may be taken into consideration in estimating compen- sation. Ry. Co. v. Williams, 9 B. 253; R. R. Co. v. Ball, 5 O. S. 5G8. But whether special benefits not con- nected with the locality or subject matter may be considered quere R. R. Co. v. Ball, 5 O. S. 568; and see R. R. Co. v. Collett, 6 O. S. 182, and Ry. Co. v. Longworth, 30 O. S. 108, 112. General and special benefits de- fined. R. H. Co. v. Collett, 6 O. S. 182; Schaible v. Ry., 10 C. C. 334. Rental. — Rental may be proved as tending to show value, of the premises. Cincinnati v. Neff, 20 B. 8. Special adaptability of the land to the purposes of the condemning cor- poration cannot be considered. Gib- son v. Norwalk, 13 C. C. 428. Speculative value cannot be con- sidered. Value cannot be enhanced by evidence of a contingent charac- ter such as probable rents depend- ent on will of others who may re- quire the land as a roadway. Pow- ers v. Railway, 33 O. S. 429. But loss of trade or business or diminished rental may be shown. Railway v. Railway, 30 O. S. 604, 623; Railway v. Gardner, 45 O. S. 309. Improvements injured. — The cost of tile draining injured by the appropriation, cannot be shown. Schaible v. Ry., 10 C. C. 334, 338; but if there is no market value for improvements on the land taken and no value established under any rule, their cost may be shown as an ele- ment of value. Foote v. R. R. Co., 21 C. C. 319. Opinion. — Witness cannot give his opinion as to the amount of damages land owner will sustain by the appropriation; but he may give his opinion as to the value of all the land before and after the appro- priation of a part. R. R. Co. v. Campbell, 4 O. S. 583; R. R. Co. v. Ball, 5 O. S. 568 ; R. R. Co. v. Gard- ner, 45 O. S. 309. But see Miller v. Weber, 1 C. C. 130. . Opinions of value based on sales 94 THE OHIO MUNICIPAL CODE. [Code § 15 but not actual sales may be put in evidence. Neither forced sales nor forced purchases give the standard. Ry. Co. v. Garrard, 7 B. 272; Cin- cinnati v. Neff, 20 B. 8. Platted land. — The owner may show that the land has been platted for future subdivision as a matter affecting its value. Ry. Co. v. Long- worth, 30 O. S. 108. An unrecorded map is admissible for this purpose. R. R. Co. v. Perkins, 22 C. C. 630. It is not error to permit the in- troduction of a plat to show the quantity of land in each of the par- cels appropriated if the engineer who drew it, testifies to its correct- ness. Neff v. Cincinnati, 32 O. S. 215. The fact that lands have been platted and laid out in building lots may be considered in determining their value. Ry. Co. v. Knauss, 47 B. 807. Verdict must show separately compensation for land taken and js to residue. Ry. Co. v. Knauss, 47 B. 807. Where in a condemnation suit tes- timony is received tending to estab- lish a number of different methods of grading a street and bearing upon the probable grade which the muni- cipality may in the future adopt, and the jury has found substantial damages to the residue of the lands and return the same in a general verdict, and has at the same time returned a special verdict to the ef- fect that damages are allowed on account only of future grade which might be established, and that if the street should be improved on a grade which would not necessitate a cer- tain cut there would be no damage, it is error to disregard the general verdict and to hold that the same is controlled by the special verdict, and upon that ground set aside the amount found in the general verdict as damages to the residue. Grant v. Hyde Park, 47 B. 831; (67 O. S. 166). FORM OF ENTRY. State of Ohio, County, The city [or village] of . Court. Plaintiff, et al. Defendants. Entry. This cause coming on to be heard upon the application of the city [or village] of to impanel a jury to assess the compensation to be paid the owners of the property described in said appli- cation and the court finding that all the resident defendants have been duly served with notice of the pendency of the application in the ordinary man- ner of serving legal process at least five days prior to this application and that all non-resident defendants have been served with notice by the publi- cation of the substance of the application in the , a news- paper of general circulation in the county, once a week for three consecu- tive weeks from and after the day of 19 , and that all the proceedings are regular and valid, does hereby order that a jury be Code § 16] APPROPRIATION OF PROPERTY. 95 impaneled on the day of 19 , at o'clock . . . . M. for the purpose of assessing the compensation to be paid for said property. § 16. [View of premises; guardian ad litem; how jury to re- turn assessment; open and close of case.] 1 A view of the prem- ises shall be ordered when desired by the jury or demanded by any party to the proceedings. 2 If, at the time of the application, it appear that any of the owners of the property sought to be taken are infants or insane, and that they have no guardian, a guardian ad litem shall be appointed in their behalf ; and no delay in the proceedings shall be occasioned by doubt as to the ownership of any property, or as to the interests of the respective owners, but in such cases the court shall require a deposit of the money allowed as compensa- tion for the whole property or the part in dispute; and in all cases, as soon as the corporation shall have paid the compen- sation assessed, or secured its payment by a deposit of money under the order of the court, possession of the property may be taken. The assessment shall be in writing, signed by the jury, and shall be so made that the amount payable to the owners of each lot or parcel of land may be ascertained. 3 The owners shall have the right to open and close the case. 4 When a building or other structure is situated partly upon the land to be appropriated, and partly upon adjoining land, and such structure cannot be divided upon the line between such lands, without manifest in- jury, the jury in assessing compensation to any owner of the land, shall assess the value of the same, exclusive of the struc- ture, andcnake a separate estimate of the value of the structure ; the owner of the structure may elect to retain the same and remove it, or to accept the value thereof as estimated by the jury; if he fail to make such election, within ten days from the final determination of the cause,, he shall be deemed to 96 THE OHIO MUNICIPAL CODE. [Code § 17 Lave elected to accept the value of the structure, as fixed by the jury. (1) Old sections. — This section property. Ry. Co. v. Knauss, 47 H. corresponds to §§ 2242, 2243, 2245, 807. 2250 R. S. repealed. (3) Conclusiveness of award. (2) View of the premises is — City estopped after lapse of years solely to enable the jury to apply to deny title in person designated in the testimony. It cannot be consid- its application as owner and to ered by the jury as evidence. Co- whom award of compensation was lumbus v. Bidlingmeier, 7 C. C. 136; made. Toledo v. Weber, 23 C. C. Besuden v. Commissioners, 7 C. C. 564. 237. (4) Open and close. — Where no Purpose of view of premises is to provision was made as to the open enable jury to better understand and and close of the case, it was held apply the evidence and not to ascer- not error to permit city to open tain for themselves the value of the and close. Neff v. Cincinnati, 32 O. S. 215. §17. [Verdict in whole or in part.] 1 The jury shall be sworn to make the whole inquiry and assessment, but may re- turn a verdict as to part and be discharged as to the rest, in the discretion of the court; and in case a jury is discharged from rendering a verdict in whole or in part, another shall be drawn and impaneled at the earliest convenient time, who shall make the whole inquiry and assessment, or the part not made. (1) Old section. — This section .corresponds to § 2246 R. S. ( re- pealed). FORM OF OATH TO JURY. You, and each of you, do solemnly swear that you will justly and im- partially inquire into and assess, according to your best judgment, the amount of compensation due the proper owners in the cases which will be brought before you in this proceeding, by reason of the appropriation of their property, described in the application, to the public use by the plaint- iff corporation, the city [or village] of in the pro- ceeding now pending irrespective of any benefit from any improvement pro- posed by such corporation ; and you do further swear, that you will, in assessing any damages that may occur to such property owners, by reason of the appropriation other than the compensation, further ascertain how much less valuable the remaining portion of said property will be in con- sequence of said appropriation; this you swear as you shall answer to God. FORM OF VERDICT. We, the jurors, in this case, duly impaneled and sworn, do assess as the compensation to be paid by the city [or village] of to the owner or owners of the several lots and parcels of land described in the Code § 18] APPROPRIATION OF PROPERTY. 97 application herein as follows: 1st. To the owner or owners of lot or parcel No. 1. Value of land, including buildings and other structures situated wholly on part taken, dollars and cents ( $ ) . Damages to residue dollars and cents ( $ ) . Value of buildings [or other structures] situated partly on part taken, dollars and cents ( $ ) . To the owner or owners of lot or parcel No. 2, etc. (To be signed by all the Jurors; see § 16 of the Code.) §18. [Orders as to payment or deposit of assessment.] 1 The court shall make such order as to payment, deposit or dis- tribution of the amounts assessed as may seem proper, may require adverse claimants to all or any part of the money or property to interplead and fully determine their rights in the same proceeding and may direct the time and manner in which possession of the property condemned shall be taken or deliv- ered, and may, if necessary, enforce any order giving posses- sion ; 2 [Effect of payment or deposit.] and upon the payment or deposit, by the corporation, of the amount assessed, as ordered by the court, an absolute estate in fee simple shall be vested in said corporation, unless a lesser estate or interest is asked for in the application, in which case such lesser estate or interest as is so asked for shall be vested ; and any municipal corpora- tion shall have the power to again appropriate, in conformity with the provisions of this act, any real estate which it has pre • viously, lawfully appropriated, in order to perfect, in it, a title in fee simple absolute to such previously appropriated real es- tate. [1906, April 14, 98 v. 164.] (1) Old sections. — This section lease, and the lease expires before corresponds to §§2247 and 2248 possession is taken, the city must R. S. (repealed). nevertheless pay the lessee the (2) Property subject to lease. amount awarded to it before taking — If city is given right to take pos- possession. Cleveland v. Cuyahoga, session of property subject to a etc., Society, 41 O. S. 600. FORM OF JUDGMENT ENTRY. State of Ohio County, Court. The city [or village] of ^ Plaintiff, v. > Judgment Entry. et al. Defendants. J This cause coming on to be heard upon the application of the city [or village] of for the assessment of compensation to be 98 THE OHIO MUNICIPAL CODE. [Code § 19 paid to the owners of the lots described in the application and all interests therein appropriated by the said city [or village] for pur- poses (state the purpose of the appropriation) and all parties having been duly and legally served with process and a jury having been impaneled to assess the compensation and having viewed the premises, heard the testi- mony of witnesses, the arguments of counsel and the charge of the court and having returned their verdict into court assessing the compensation to be paid for the several lots therein mentioned as follows; (copy verdict). And the court having examined all the proceedings herein finds them all regular and according to law and does further find that said lots of land and the several interests therein belonged to the persons whose names are set opposite to them as below set forth. It is therefore ordered and adjudged that said verdict and the several assessments made therein be and they are hereby confirmed. It is further ordered that said corporation pay [or secure to be paid by a deposit of money under the direction of this court] within days the amount of compensation so assessed for the use of the following named persons (give names of owners and amount of compensation assessed to each). And it is further ordered that upon payment [or deposit] by said corporation of the several amounts allotted by the jury to the persons above mentioned as the owners of the several lots, or into court, that the city [or village] shall be entitled to all interests and estate in, and to the possession of, the lots and parcels above mentioned and that an order shall issue to the sheriff of County, to put the plaintiff into possession of said property and interests. It is further ordered that said corporation within days from this date, pay the costs herein, taxed at dollars. § 19. [Costs, how paid.] 1 The costs 2 of the inquiry and as- sessment shall be paid by the corporation, and all other costs taxed as the court may direct; provided, that at or after the time of making the application, the corporation may offer to confess judgment for an amount to be stated, and the costs then made, in favor of any owner, who in any manner enters appearance, or upon whom or whose agent personal service may be made ; whereupon, if such owner shall refuse to accept such offer, and on the trial shall not recover more, he shall pay all costs accruing after the offer, and an offer so made shall be gov- erned by the provisions of section 5142 of the Kevised Statutes of Ohio. vision 7, title 12. This provision is (1) Old section. — This section omitted here, corresponds to old § 2249 R. S. (re- (2) Jury fees in the Probate pealed). § 2249 contained a provi- Court held not to be a part of the sion making it applicable to cases costs in an appropriation proceed- under subdivision 11. chapter 4, di- ing. Hill v. Durr, 47 B, 440. Code § 20] APPROPRIATION OF PROPERTY. 99 § 5142 R. S. [Such offers not to affect the trial.] An offer made as provided in the three preceding sections * shall not be deemed an admission of the cause of action, nor of the amount to which the plaintiff is entitled; nor shall it be a cause of con- tinuance of the action, or a postponement of the trial, or given in evidence or mentioned on the trial. [51 v. 57, §§ 49 3, 494, 498, 499 ; S. & C. 1094, 1095.] (1) Sections referred to herein 25 O. S. 301; Tipton v. Tipton, 49 are §§ 5139, 5140 and 5141 R. S. O. S. 364; Armstrong v. Spears, 18 As to form and sufficiency of offer O. S. 373; Fike v. France, 12 O. S. and construction of sections referred 624. to, see Adams et al. v. Phifer et al., FORM OF OFFER TO CONFESS JUDGMENT. State of Ohio, County Court. The city [or village] of Plaintiff, v. . ..et al, Defendants. Offer to confess judgment. Now comes the city [or village] of , plaintiff corporation herein, and, before the impaneling and swearing of the jury herein, (or here insert time when offer is made) offers to allow judg- ment to be taken in this action in favor of , a party defendant herein and against said city [or village] in the sum of dollars and cents, as compensation to said owner of lot [or parcel] No described in the application herein, together with the costs to the time of this offer. City [or village] Solicitor. § 20. [Interested parties may give bond, etc.] 1 Any per- son may, before or after the passage of an ordinance for opening a street or other public highway, execute his bond 2 payable to the corporation to the acceptance of council, conditioned for the payment of all damage which may be assessed by the jury ; and such bond shall be good in law, and if such person pay or deposit according to the order of court, then such street or other highway shall be opened ; or the corporation may at its discre- tion make such payment or deposit, and collect by law the amount of such damages of such person or his sureties. 3 100 THE OHIO MUNICIPAL CODE. [Code § 21 (1) Old section, 2251 R. S., re- No repayment.— § 2251 R. S. pealed. m (repealed) was held not to contem- ( 2 ) Form of bond. — See form plate any repayment to interested used and discussed in Inclined party giving bond other than that Plane Ry. Co. v. Cincinnati, 23 B. found in the beneficial interest be- 68. cause of the proposed appropriation. (3) Validity of bond to pay all Ry. Co. v. Cincinnati, 25 B. 91; damages, see Toledo Ry. Co. v. Fos- (aff'd by Supreme Court, 32 B. toria, 7 C. C. 293, 299. 400) and city cannot legally make a Acceptance of bond. — As to what contract for such repayment. lb. constitutes, see Ry. Co. v. Cincin- nati, 23 B. 68. § 21. [Review of proceedings; appeal to Court of Common Pleas.] 1 The municipal corporation, or the owner of any prop- erty, the value of which has been assessed, as herein provided, shall have the right to prosecute error as in other civil actions ; provided, that the trial court may, upon proper terms, suspend the execution of any order, but in all cases where the municipal corporation pays or deposits the compensation assessed, and gives adequate security for any further compensation and costs, the right to take and use the property condemned shall not be af- fected by any such review. 2 Where the proceeding is had in the Probate Court, or in the Insolvency Court, any party interested in the inquiry and as- sessment may take an appeal to the Court of Common Pleas; and thereupon the same proceedings shall be had as if the application had been originally made in that court, except that the corporation shall not be required to give notice of its appli- cation, and the inquiry and assessment shall be limited to the case of the party taking the appeal ; and the court shall make such order for the payment of the costs accruing upon the ap- peal as may seem equitable and just. (1) Old sections. — This section poration. The code section above corresponds to old §§ 2252, 2253 and allows such appeal to Common Pleas 2254 R. S. (repealed). § 2259 (re- Court. pealed) provided that there should (2) Interest. — In a new pro- be no appeal by the condemning cor- ceeding after possession taken by Code § 22] APPROPRIATION OF PROPERTY. 101 condemning corporation and rever- When compensation payable. — sal of first proceeding the jury may Owners of land taken for public pur- include in the compensation, inter- poses may waive the right to im- est on the amount due, from the mediate payment. State v. Irvin, time of taking possession. Ry. Co. 12 Dec. 330. v. Koblentz, 21 O. S. 334. § 22. [Neglect to pay or take possession in six months.] 1 When a municipal corporation makes an appropriation of prop- erty, and fails to pay for or take possession of the same within six months 2 after the assessment of compensation shall have been made, its right to make such appropriation on the terms of the assessment so made shall cease and determine, and any lands so appropriated shall be relieved from all incumbrance on account of any of the proceedings in such case, and the judgment or orde^ of the court directing such assessment to be paid shall cease to be of any effect, except as to the costs adjudged against the corporation, and upon motion of any defendant, said costs may be retaxed, and a reasonable attorney's fee be paid to the attorney of such defendant, which, together with any other proper expenses incurred by such defendant, may be included in such costs. 3 (1) Old section. — This section corresponds to § 2260 R. S. (re- pealed). § 2261 R. S. making the chapter applicable to hamlets is re- pealed and there is no correspond- ing provision in the code. (2) When time begins to run. — Time commences to run from the entry of the judgment or order di- recting the assessment to be paid and not from the rendition of the verdict. Ryan v. Hoffman, 26 O. S. 109. (3) Owner's remedies. — If the corporation takes possession after the expiration of the six months intending to proceed under the ap- propriation proceedings, the land owner may elect either to sue for the amount awarded him in the appro- priation proceedings or have dam- ages assessed at the time posses- sion is taken. But having elected to sue for the amount awarded in the appropriation proceedings he is entitled to interest only from the time possession was taken. Toledo v. Groll, 2 C. C. 199. (Affirmed Sup. Ct. 23 B. 220.) Webber v. To- ledo, 3 C. C. (N. S.) 319; 23 C. C. 237. Where city appropriates and takes possession of property, but does not pay the compensation the owner cannot maintain ejectment but must sue for compensation. Webber v. Toledo, 3 C. C. (N. S.) 319; 23 C. C. 237. A corporation cannot be compelled by mandamus to take possession of the land and pay the compensation 102 THE OHIO MUNICIPAL CODE. [Code § 22 on its refusal to do so. State v. R. R. Co., 17 0. S. 103. Waiver by acceptance of de- posit. — The land owner is not bound to accept the compensation, deposited after the six months, but if he does so he waives strict com- pliance with the statute. Cincin- nati v. Hosea, 19 C. C. 744 (affirmed 66 O. S. 687) . And in such case the owner cannot demand interest on the fund deposited. 16. Land owner may waive his rights to have the property after the ex- piration of the six months and by accepting the compensation, ratify the proceedings. Ryan v. Hoffman, 26 O. S. 109. When owner's right barred. — The right of the owner whose prop- erty has been appropriated and, after six months, taken possession of, but not paid for, is not barred by the statute of limitations in less than 21 years. § 4981 R. S., the six years' statute, is not applicable. Webber v. Toledo, 3 C. C. (N. S.) 319; 23 C. C. 237. Who may sue. — Conveyance by the land owner of property con- demned, carries with it the right of action for taking it after the ex- piration of the six months. Clarke v. Cleveland, 9 C. C. 118. The devisee of a testator who owned part of the property con- demned, and to whom the remainder was conveyed after the appropria- tion, but before possession taken, has the right to maintain an action for amount assessed in the appro- priation proceedings where the cor- poration has failed to take posses- sion within the six months. Webber v. Toledo, 3 C. C. (N. S.) 319; 23 C. C. 237. Refusal by corporation before six months expires. — A municipal corporation may waive its right to take property condemned, before the expiration of the six months and in such case if the waiver is deter- mined to have been made the corpo- ration must pay attorney fees, etc., as required in case of failure to take after the six months. Andrews v. Hyde Park, 20 C. C. 278. A motion to retax costs in such case does not come within § 5357 R. S. providing that " the motion to vacate a judgment because of its rendition before the action stood regularly for trial can be made only in the first three days of the suc- ceeding term." lb. Dismissal of proceedings. — Pro- ceedings to appropriate by a munici- pal corporation may be dismissed by the city solicitor with or without the direction of the legislative board of the city, but in case of such dis- missal, the city must pay counsel fees and other expenses deemed just by the court, to the property own- ers. Cincinnati v. Thrall, 6 N. P. 158. Proceeding under invalid law. — Where the municipal corporation has sought to take property under a law, declared unconstitutional and because of the unconstitutional- ity has been prevented from taking the property, it is not liable to pay counsel fees, etc., as in case where it fails to take possession within six months after a valid appropriation. Hyde Park v. Grant, 6 N. P. 471; (in Supreme Court, 47 B., 831; 67 O. S. 166). But the claim for attorney's fees, etc., cannot be defeated on the ground that the appropriating or- dinance was invalid. Andrews v. Hyde Park. 20 C. C. 278. No bar to new proceedings. — The failure to pay and take posses- sion within the six months is no bar to a new proceeding to appro- priate the same property by the same corporation, after the expira- Code § 23] sale or lease of property. 103 tion of the six months. Trustees of Southern Ry. v. Haas, 42 O. S. 239. Character of taking after six months. — Where a city takes pos- session by paying compensation aft- er the six months, it gets title by appropriation and not by purchase. Ryan v. Hoffman, 26 O. S. 109, 122. Section applies to damages for change of grade. — Former § 2260 R. S., to which the present sec- tion corresponds, was held applica- ble to application to assess damages to abutting property owners for change of grade or other improve- ments. Toledo v. Jacobson, 11 C. C. 220 (aff'd 38 B. 248). Second. Sale or Lease of Property. 1 Sec. 23. [Lease or sale of corporate property.] All munici- pal corporations shall have power to sell or lease any real estate or to sell any personal property belonging to the corporation, when such real estate or personal property is not needed for any municipal purpose. 2 (1) Old sections.— These pro- visions relating to the sale or lease of property correspond to chapter 16, division 8, title 12, R. S., §§ 2673 to 2675-10 R. S. inclusive, of which §§ 2673-2675 inclusive, 2675-5, and 2675-10 are repealed. Former sections 1552 and 1692 (par- agraph 34) R. S. (repealed) also gave the municipality the power to sell. Other Code provisions. — Sec. 7, (paragraph 26) of the Code, gives municipalities the right to sell or lease real estate. But though the power is given in general terms there, its exercise would be limited by the special provisions of this and subsequent sections. See Kerlin Bros. v. Toledo, 20 C. C. 603. As to passage of ordinance for sale or lease of property, see § 122 of the Code. (2) Scope of power— General- ly. — As a general rule, a corporation, if not restrained by its charter may dispose of any property which it has a right to acquire. Newark v. El- liott, 5 O. S. 114; Reynolds v. Stark County, 5 O. 204. Land under a bridge used by the city for support to the bridge and not used as a street, may be leased by the city for any purpose not in- consistent with its use as a support for the bridge. Hicard Boiler & En- gine Co. v. Toledo, 25 C. C. 64. Sale on time. — Authority to sell on terms satisfactory to a municipal board, gives power to sell on time. Cincinnati v. Dexter, 55 O. S. 93; Reynolds v. Stark County, 5 O. 204. Sale of gas plant. — Sale of its gas plant is within the power of a municipality under a provision au- thorizing it to sell real or personal property not needed for its use. Thompson v. Nemeyer, 59 O. S. 486. Property acquired for specific pur- pose. — Where the municipality ac- quired property for a specific and limited purpose, it cannot be author- ized to sell such property as against 104 THE OHIO MUNICIPAL CODE. [Code §24 the reversioner. Board v. Edson, 18 O. S. 221. Where land is given to a munic- ipality for corporate purposes, or where the land is acquired by pur- chase, the municipality may dispose of it as individuals might. Rey- nolds v. Stark County, 5 0. 204; Le Clerq v. Gallipolis, 7 0. (pt. 1) 218; but where the corporation takes as a trustee, to hold for pre- scribed uses, the cestui que trust re- tains a vested estate, the enjoyment of which will be protected in equity. Le Clerq v. Gallipolis, 7 O. (pt. I) 218. Conveyance by city — Effect. — A deed by a municipal corporation for the conveyance of property, passes the legal title to the pur- chaser, although the consideration expressed is far below the value of the property or merely nominal. Newton v. Mahoning Co., 26 O. S. 618. As to when court will interfere because of insufficiency of price, see Kerlin Bros. v. Toledo, 20 C. C. 603. When the contract whereby the grant is conveyed contains the ele- ments of a valuable consideration as where the grantee surrendered the right to operate a ferry between certain points, in consideration of wharf and boat landing privileges, equity cannot be invoked to amend the contract or revoke the grant Without an otter to restore the rights parted with when the contract was executed. Whether the grant amounted to an easement or a mere license, it is irrevocable when exe- cuted. Cincinnati v. Bridge Co., 20 C. C. 396. Form. — As to the manner in which a municipal corporation should execute a deed, see Tiffin v. Shawhan, 43 O. 8. 178. Sec. 24. [Lease or sale of real estate; procedure.] 1 No con- tract 2 for the sale or lease of any real estate shall be made unless authorized by an ordinance, approved by the votes of two-thirds 4 of all members elected to the council, and by the board 5 or officer having supervision or management of such real estate, and when such contract is so authorized, it shall be made in writing 6 by the board or officer having such supervision or management and only with the highest bidder, 7 after advertisement once a week for five (5) consecutive weeks 8 in a newspaper 9 of general circulation within the corporation, provided that such board or officer may reject any or all bids and readvertise until all such real estate is sold or leased, as the case may be ; [Procedure for sale or lease of site for passenger railroad station.] provided, that whenever any city owns real estate suitable for the location of a passenger railroad station, and council shall by ordinance declare that it is necessary that such Code § 24] sale or lease of property 104a land be devoted to such use, it shall be competent for such city to sell or lease or exchange such land to such railroad or rail- roads for such purpose in the following manner: An ordi- nance authorizing and directing the mayor of the city to deed or lease the land shall be passed; council shall fix in such ordinance by metes and bounds the amount of land to be sold, leased or exchanged, the quantity of interest sold, leased or exchanged, and the consideration to be paid or exchanged therefor by such railroad or railroads, and in such ordinance shall call thereon a special election, to be held upon a day fixed by said ordinance not less than thirty (30) days from the passage thereof, and a majority of all the votes cast on such proposition shall be necessary to its ratification, and when so ratified, said ordinance shall be effective, and the mayor shall proceed to execute a deed of conveyance or lease of said property as therein provided, and in holding such spe- cial election, the provisions of section 2837, Revised Statutes, shall apply. [1906, April 14, 98 v. 165.] (1) Old sections. — Compare old third offer for both taken together, sections 2673 and 2673a R. S. (re- constitutes in reality three bids, pealed). and a sale of the outside property (2) Strict construction. — The based on the first offer is not invali- formalities required by the statutes dated by a condition attached to for the sale of property of a city the last offer. Kerlin Bros. v. Tole- must be strictly complied with. do, 20 C. C. 603. Kerlin Bros. v. Toledo, 20 C. C. 603. Insufficiency of price. — To author- No estoppel against municipality. ize a court to interfere with the ac- — A contract by a city which is tion of a city council in a sale of void because bids were not first ad- the property of the city on the vertised for, imposes no liability on ground of the insufficiency of the the city. Wellston v. Morgan, 65 price, the price received must have O. S. 219. been so much less than would prob- No estoppel from the acts of the ably be obtained by again offering city officers can arise to cure an the property that it might be said omission to advertise. Lancaster v. by all men of fair judgment that Miller, 58 O. S. 558. the acceptance of the bid amounted Bids — Construction. — A bid in to a reckless and improvident act. response to an advertisement for Kerlin Bros. v. Toledo, 20 C. C. sale of natural gas plant, making 603. one offer for the part of the prop- Bidding in general. — See notes erty outside the city, another offer under §§59 and 143 of the Code, for the part within the city and a (3) Real estate. — As to what 105 THE OHIO MUNICIPAL CODE. [Code §24 property comes within the terms "real estate" as used in a section such as this, see Kerlin Bros. v. To- ledo, 20 C. C. 603. The term is broader as here used than it is under the general definition of the law. lb. • Council must proceed under this section where part of the property- sold is real estate, and it is sold as an entirety. See Kerlin Bros. v. Toledo, 8 N. P. 62. (4) Two-thirds vote.— As to what would satisfy the require- ments of the statute, relative to " votes of two-thirds of all mem- bers elected to Council," see State ea> rel. v. Orr, 61 O. S. 384; Guern- sey Co. v. Cambridge, 7 C. C. 72. (5) Concurrence of board. — Under the present statute, the sale of city property cannot be made by Council, without the concurrence of the board or officer having the property in charge. As to this mat- ter under former statutes, see Ker- lin Bros. v. Toledo, 20 C C. 603; Newton v. Mahoning Co., 26 O. S. 618. (6) Manner of executing a con- veyance by a municipal corporation. See Tiffin v. Shawhan, 43 O. S. 178; Young v. Mahoning Co., 7 O. F. D. 324. (7) Highest bidder.— Under this wording of the law, the con- tract for sale must be made with the highest bidder. (See Beaver v. Blind Asylum, 19 O. S. 97; Boren v. Darke County, 21 O. S. 311), unless the board exercise its power to reject bids. As to enforcement of right of bidder by mandamus, see same cases. (8) Provisions as to advertis- ing for bids are designed for the protection of the tax payer and are peremptory. Uppington v. Oviatt, 24 O. S. 232. And advertisement for less than the statutory period would render the sale void. McCloud v. Colum- bus, 54 O. S. 439. As to what length of time of publication is necessary to fulfill the requirement " once a week for five consecutive weeks" see Early v. Doe, 16 How. (U. S.) 610; Fen- ner v. Cincinnati, 8 N. P. 342; Gil- fillan v. Koke, 1 W. L. M. 704; Harmon v. Whittemore, 1 B. 109. (9) Newspaper. — The require- ment of publication in a newspaper of general circulation does not for- bid additional publications in other papers. This is not a squandering of funds. Wasem v. Cincinnati, 2 C. S. C. R. 84. Publication in a newspaper means publication in the English language, in the absence of provi- sions to the contrary. Cincinnati v. Bickett, 26 O. S. 49. The publi- cation is legal although the news- paper is published only on Sunday. Hastings v. Columbus, 42 O. S. 585 ORDER OF PROCEDURE IN SELLING OR LEASING REAL PROP- ERTY OF MUNICIPALITY. 1. An ordinance by council, two-thirds of all members concurring, au- thorizing the sale or lease. 2. Approval of this ordinance by proper board or officer, and by the mayor. 3. Advertisement, inviting bids for the purchase or lease of the property, 4. Deed or lease conveying the property sold or leased. Note. — The steps contemplated to be taken under § 24 above, are not Oode§ 24] sale or lease of property. 106 definitely set out. It seems clear that there are two essential acts required to be taken to consummate the sale of property, viz., first, the legislative determination to sell; and second, the carrying out of that determination by the executive or administrative department. Council, with the approval of the board or officer having charge of the property to be sold, finding the property not needed for municipal purposes, authorizes the contract for its sale to be made with the highest bidder upon advertisement. The passage of this ordinance completes the»legislative step in the sale. The advertis- ing, or rejection of bids and readvertising, and the execution of the deed, are left entirely to the board or officer having charge of the property, and council cannot control the exercise of these powers, unless, of course, council should repeal its ordinance at some time before the sale authorized to be made is consummated. The steps set out here would seem to satisfy all the requirements of the section, and the forms which follow doubtless would be a sufficient compliance with it. It will be noticed that in the form of deed given provision is made for the signature of the mayor and the affixing of the corporate seal of the municipality by that officer. The section of the code above does not explicitly require either the seal or the mayor's participation in the sale, but since § 1745, R. S., which is not repealed by the code and which is not inconsistent with any of its pro- visions, makes the mayor the custodian of the corporate seal, and since the proper method of conveying real estate by a municipal corporation is over its corporate seal, the forms here given provide for such signature and seal. (See Dillon on Municipal Corporations, § 581; City of Tiffin v. Shawhan, 43 O. S. 178, 185; Newton et al. vs. Commrs., 26 O. S. 618, 622.) It will be noticed also that the form of deed given below does not contain a gen- eral warranty. A warranty deed may of course be given. FORM OF ORDINANCE FOR SALE OF REAL ESTATE BY MUNICIPALITY. An Ordinance No. Authorizing the sale of (here insert general description of property) not needed for any municipal purpose. Be it ordained by the council of the city [or village] of , State of Ohio, two-thirds of all members elected thereto concurring, Sec. 1. That the following described real estate belonging to the city [or village] of ................ ., is not needed for any municipal pur- pose, to-wit: (Here insert legal description of property to be sold.) Sec. 2. That the (naming the board or officer having the supervision or management of the property to be sold) be and hereby is authorized to sell said real estate to the highest bidder according to law, upon the following terms : ( Here insert terms of payment, whether cash or otherwise) and the said (naming the board or officer) and the mayor of the city [or village] are hereby authorized to convey said 107 the ohio municipal code. [Code § 24 real estate by deed (here add, if desired, the words "of general warranty") to the hignest bidder therefor according to law. Passed , 19 Attest- President of Council. Clerk. (This ordinance must be approved by the board or officer having the supervision or management of the real estate to be sold and must also be presented to the mayor for his approval as other ordinances. As to paB- «age under suspension of" rules see § 122, of the code.) FORM OF ADVERTISEMENT FOR BIDS. LEGAL NOTICE. Notice is hereby given that sealed bids will be received at the office of the. (here insert name of the board or officer having supervision or management of the real estate to be sold) until 12 o'clock noon on the day of , 19. . . ., (this day should be not less than five full weeks from the first advertisement) for the pur- chase of the following described real estate: (Here insert legal descrip- tion of property to be sold. ) Said property is to be sold and conveyed to the highest bidder (here in- sert the words "by general warranty deed," if so specified in the ordinance) upon the following terms: (Here insert terms of payment specified in the ordinance. ) The right is reserved to reject any and all bids. (To be signed by the officer, or by the president of the Clerk of Board [or officer }, board, having supervision or management of the real es- tate to be sold.) FORM OF DEED BY MUNICIPAL CORPORATION. KNOW ALL MEN BY THESE PRESENTS, That whereas, on the day of , , 19 , the council of the city [or village] of , State of Ohio, passed a certain ordinance, two- thirds of all members elected thereto concurring, authorizing the sale of the real estate hereinafter described, and, Whereas, pursuant to said ordinance, advertisement was had in a news- paper of general circulation in said city [or village] for five consecutive weeks, inviting sealed bids for said real estate, and, Whereas, at the time fixed in said advertisement for the receipt of said bids, presented his certain bid for said real estate, Code § 24] sale or lease of property 107a which was the highest bid therefor, and which said bid has been duly ac- cepted, Now, therefore, pursuant to the premises, the said city [or village] of , State of Ohio, by , its mayor, and , its ( here insert title of officer or of the president of the board having charge of the property conveyed ) , in consideration of ...... dollars to it paid by , the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto the said , his heirs and assigns forever, the following described real estate, situate in the city [or village] of , in the county of , and State of Ohio, to- wit : ( here insert legal description of real estate conveyed), with all the privileges and appurtenances thereunto be- longing, to have and to hold the same to the grantee, his heirs and assigns forever, as fully and completely as said city [or village] acting by its of- ficers as aforesaid, by virtue of the proceedings hereinbefore set forth, may, can or should convey the same. (Covenants of general warranty may be added if authorized.) In witness whereof, the said city [or village] of , by its said officers, has hereunto caused to be affixed its name and corporate seal, and the names of its said officers, and the attestation of the Clerk of said city [or village], this. . . .day of , 19. . . . (Seal of city or village.) The city [or village] of , Attest : by , Mayor. Clerk. (Officer or President of Board. Signed, sealed, acknowledged and de- livered in presence of: ( Witnesses. ) State of Ohio, County of ss. : On this day of , 19 .... , before me, a in and for said county, came , Mayor of the city [or village] of , State of Ohio, and , the. ..:.., (here insert title of officer or of the President of the Board having charge of the real estate conveyed), and severally acknowledged the execution of the foregoing deed to be their voluntary act on behalf of the city [or village], and the cor- porate act and deed of said city [or village]. Also came Clerk of said city [or village] and acknowledged the attestation of the fore- going deed to be his voluntary act and deed as such Clerk. In testimony whereof, I have hereunto subscribed my name and affixed my official seal the day and year last aforesaid. (Title of officer taking acknowledgment.) (The forms for lease of property by the municipality may be adapted from the above.) 108 THE OHIO MUNICIPAL CODE. [Code § 25 Sec. 25. [Sale of personal property.] Any personal prop- erty not needed for municipal purposes, the estimated value of which is less than five hundred dollars, may be sold by the board or officer having supervision or management of the same ; provided, that where the estimated value of such property ex- ceeds five hundred dollars it shall be sold only in the manner herein provided for the sale or lease of real estate. 1 ( 1 ) Forms. — See notes and at one time, so that the estimated forms under § 24, supra. value of the part sold will be less Sale by piecemeal. — As to than $500, see Lancaster v. Miller, whether division into parts may be 58 O. S. 558, 573. made of personal property to be sold Sec. 25a. [Sale of refuse, street sweepings, etc. ; disposition of money arising therefrom.] Any refuse, street scrapings, or ashes not necessary for the improvement of municipal property, and other personal property in charge of the street cleaning department no longer necessary for the purposes of said de- partment shall be sold, in the manner provided by law for the sale of other personal property, by the board or officer having the supervision or management of the said department. The money arising from such sale shall be deposited in the treasury in the street cleaning fund and shall be immediately available, in addition to any appropriation by council, for the current ex- penses of the street cleaning department, and may be with- drawn from the treasury upon the warrant of the city auditor for said purpose. Said money shall not be considered a source of revenue subject to appropriation by council, and may be expended as herein provided without having been appropri- ated bv council. [1906, March 7, 98 v. 43.] Code §§ 26, 27] sale oe lease of property. 109 Sec. 26. [Disposition of money arising from sale or lease of corporate property.] 1 The money arising from the sale or lease of any real estate, or public building, or from the sale of any personal property belonging to the corporation shall be de- posited in the treasury in the particular fund by which such property was acquired, or is maintained, if there be such fund, and if there be no such fund then it shall be deposited in the general fund; provided, however, that where such property was acquired by an issue of bonds the whole or any part of which issue is still outstanding, unpaid and unprovided for, then such money, after deducting therefrom the cost of main- tenance and administration of such property, shall on warrant of the city auditor be transferred to the trustees of the sinking fund to be applied in the payment of the principal of said bond issue. ["1904, April 27, 97 v. 516.] (1) Old section 2674 R. S. repealed. Sec. 27. [Statutes re-enacted.] In the sale, exchange or transfer of the property herein described §§ 2675-1, 2675-2, 2675-3, 2675-4, 1 2675-6, 2675-7, 2675-8 and 2675-9, of the Revised Statutes of Ohio shall be and remain in full force and effect. 01) § 2675-5 was a special act and is repealed. Sec. 2675 — 1 R. S. [Exchange of lots for school purposes au- thorized.] § 1. In any and all cases when any lot or lots of land lying within the limits of any town or village shall have been dedicated, given, or granted to such town or village, and set apart for the use and support of schools, it shall be compe- tent for the several Courts of Common Pleas of this state, on application of the mayor or council of any village, where such lot or lots are situate, to authorize an exchange of such lot or lots for such other lot or lots within the limits of such village as the interest of the schools therein may seem to require. And 110 THE OHIO MUNICIPAL CODE. [Code § 27 all lots taken in exchange as aforesaid, shall be held for the same purposes and subject to the same conditions as the original lots dedicated, given or granted to said town or village for the use and support of schools. [70 v. 193.] Sec. 2675— 2 R. S. [Terms of application for exchange.] § 2. That every application for an exchange of lots as afore- said, shall be by petition verified by the mayor, and the board of education of said town or village shall be made a party de- fendant, and such other persons as the court may order, and shall set forth an accurate description of each and all lots pro- posed to be given or taken in exchange, and shall set forth the specific circumstances which render such exchange necessary, and a prayer for such order as may be required. [70 v. 193.] Sec. 2675—3 R. S. [Notice thereof to be published.] § 3. That notice of the filing, pendency, and prayer of such petition shall be published for four consecutive weeks, prior to the day of hearing, in some newspaper printed in such village, if there be any printed therein, and if there be not, in some newspaper printed in the county, and of general circulation in such village. [70 v. 193.] Sec. 2675 — 4R. S. [Consummation of the exchange.] § 4 C If upon the hearing of such petition it shall appear to the court that notice of the filing, pendency, and prayer of such petition has been given as hereinbefore required, and that such an exchange of lots is necessary and will promote the interests of schools in such village, and that such an order would not be in- consistent with the terms and conditions of the original grant or devise, then the court shall authorize such exchange to be made, and order the mayor of such village to execute and deliv- er such deed or deeds in fee simple as may be necessary to effect such exchange. [70 v. 193.] Sec. 2675 — 6 R. S. [Who may sell railroad stocks owned by county, city, or township.] § 25. The commissioners of any county, the city or town council of any c£ty or town, and the trustees of any township, which county, city, town or township has heretofore subscribed to the capital stock of any railroad company, or turnpike or plank-road company, and has issued, or shall hereafter issue any bonds for the payment of such subscription, are hereby authorized to sell the said stock, or any part thereof, and on such terms as they shall deem to be for the interest of said county, city, town or township, respectively, and may apply the proceeds of such sale to the payment of the bonds of such county, city, town or township, respectively sub- Code § 27] sale or lease of property. Ill scribed; provided, that the commissioners of any county; the city or town council of any city or town, and the trustees of any township, which has paid in full its subscriptions to such railroad or turnpike or plank-road company, shall be authorized to sell the stock of the same in such railroad company, or turn- pike or plank-road company, on such terms as they shall deem to be for the interest of said county, city, town or township respec- tively, and place the proceeds of such sale to the credit of the general fund of such county, city, town or township. [1867, April 16: 64 v. 234; 50 v. 274.] Sec. 2675 — 7 R. S. [How proceeds of sale of stocks owned by city, county, or town applied.] § 1. Whenever the commis- sioners of any county, the proper authorities of any city, or town, or the trustees of any township, shall sell stock of any railroad, turnpike, or plank-road company, under the provisions of the act to which this act is supplementary, they shall apply the proceeds of said sale to the payment of the bonds issued to said railroad, turnpike, or plank-road company, for said stock so sold as aforesaid, if said bonds can be obtained at par. [60 v. 53.] Sec. 2675—8 R. S. [Same.] § 2. If said bonds can not be redeemed at par, said authorities so selling the stock as afore- said, shall invest said money in the bonds and stocks of the United States, or of this state, or upon bond and mortgage upon unencumbered real estate, held in fee simple in said county ; and said loan not to exceed one-half of the appraised value of the property so mortgaged, to be held as a fund for the payment of the bonds given for said stock, when the same shall mature, or can be paid and discharged at their par value ; the principal and interest of all money so invested shall be held exclusively as a fund for the payment of the principal and interest of the bonds so given for the stock so sold, and shall be applicable to no other purpose until said indebtedness shall be fully paid. [60 v. 53.] Sec. 2675 — 9 R. S. [Counties, townships, and municipalities authorized to sell stocks owned in private corporations.] § 1. The trustees of any township, city councils and county commis- sioners are hereby authorized and empowered to sell and dispose of any railroad stocks, plank-road stock, and turnpike stock, owned by said township, municipal corporations or county, at public or private sale, as they may deem best, and pay the pro- ceeds arising from the sale thereof into the treasury of said township, municipality or county, to the credit of the general fund thereof. [85 v. 143.] 112 THE OHIO MUNICIPAL CODE. [Code § 28 Third. Streets and Their Use. (a) Control of Streets. Sec. 28. [Council to have control of streets, etc.] 1 In all mu- nicipal corporations council shall have the care, supervision and control of public highways, streets, avenues, alleys, side- walks, public grounds, bridges, aqueducts and viaducts within the corporation, and shall cause the same to be kept open and in repair and free from nuisance ; 2 and with respect to the dedica- tion, opening and vacation of streets, as well as labor upon them, sections 2642, 2643, 2644, 2645, 2646, 2647, 2648, 2649, 2649-1, 2649-2, 2649-3, 2650, 2651, 2652, 2653, 2654, 2655, 2656, 2657, 2660, 2661, 2662, 2664, 2664-1, 2664-2, 2664-3, 2664-4, 2664-5, 2664-6, 2664-7, 2664-8, 2664-9, 2664-10, 2664-11, 2664-12, 2664-13 and 2664-14 shall be and remain in full force and effect. (1) Old section 2640 R. S. (re- pealed.) (2) Scope of words used. — Highway is a generic name and means a thoroughfare open to all people. Sullivan v. Columbus, 12 Dec. 650. Roads in municipal limits. — Public highways over which council has control, would include part of pike within limits of municipality, although county commissioners may also have power to improve this part. Commissioners v. State, 50 O. S. 653, 658; and the commission- ers would have this power under, the two-mile-pike act. Lewis v^ Laylin, 46 O. S. 663; see also State ▼. Craig, 22 C. C. 135; State ex rel v. Lewis, 13 Dec. 188. These terms would also includr * public roadway connecting with streets of a city, coming within limits of a municipality as part of territory annexed, if it continues to be used as a street, although never accepted and confirmed by ordinance. Steubenville v. King, 23 O. S. 610; and generally roads brought within a city by annexa- tion would be included. R. R. Co. jr. Defiance, 10 C. C. 27, 32; 52 O. S. 262 ; C. C. & W. Tp. Co. v. Trac- tion Co., 15 Dec. 118; 2 N. P. (N. S.) 237. Where under statutes in force in 1868 contiguous territory was attached to a municipal corporation for road purposes, it was held the i municipal street commissioner might enter upon and take mate- rials for road repair from lands near such road but not in the same ,road district. Burrows v. Cosier, 33 O. S. 567. Bridges, etc., constructed by Code § 28] STREETS. CONTROL BY COUNCIL. 113 county. — "Bridges, viaducts, etc.," would include a bridge constructed by county commissioners within lim- its of a municipality. Newark v. McDowell, 16 C. C. 556. And this is true, even though the municipality was not entitled to re- ceive any part of the bridge fund levied therein. Piqua v. Geist, 59 O. S. 163; and though the county had no authority to construct the bridge. Newark v. Jones, 16 C. C. 563. They would include a viaduct con- structed by county commissioners within a city, under statute author- izing such construction. State ex rel. v. Cincinnati, 4 N. P. 313. As to the power of county commis- sioners over bridges within the lim- its of municipalities, see Com'rs v. Ry. Co., 45 O. B. 401; State v. Com'rs, 49 O. S. 301, 304; Jones v. Franklin Co., 25 C. C. 510. The general provision of old § 2640 R. S. was held to be qualified by § 860 R. S., which required coun- ty commissioners to keep in repair bridges except those wholly within the municipality where such munic- ipality had the right to receive a portion of the bridge taxes levied therein and also by § 4938 R. S., which imposed upon the commission- ers the repair of bridges in cities not having a right to receive a part of the bridge fund levied therein. Day- ton v. Harmon, 12 C D. 574. See also State ex rel. v. Carlisle, 15 Dec. 165; 2 N. P. (N. S.) 627. Street defined. — A street over which council has control, includes the surface with so much of what underlies it as is requisite for all street uses known to the period in which the street is occupied, not merely for travel, but for sewerage, gas pipes, etc., within whatever depth is necessary and proper, and as much of the space above the street as is necessary for the proper use of the street as a highway. Henry v. Cincinnati, 25 C. C. 178; 1 C. C. (N. S.) 289. Land under city bridge used by the city as support for abutments of the bridge, which the city had not invited the public to use as a high- way, and which was not adapted for that purpose, is in no sense a public street, and city may lease such prop- erty for any purpose not inconsis- tent with its use as a support for the bridge. Ricard Boiler & Engine Co. v. Toledo, 25 C. C. 64. Character of municipality's title. — The fee of the streets is in the municipality, in trust for street purposes. St. Ry. v. Cumminsville, 14 O. S. 523 ; Columbus v. Agler, 44 O. S. 485; Callen v. Elec. Light Co., 66 O. S. 166 ; Ham. G. & C. Traction Co. v. Parrish, 67 O. S. 181, 190; Butler v. Cincinnati, 2 C. C. (N. S.) 377 ; Wenzel v. St. Ry. Co., 14 N. P. 126; but see Henry v. Cincinnati, 1 C. C. (N. S.) 289; 25 C. C. 178. And this is true, although the street became such by annexation of terri- tory embracing a county road. Ak- ron & C. F, Rapid Transit Co. v. Erie Ry., 28 C. C. 36; 7 C. C. (N. S.) 199. The municipal corporation is an agent of the state in the preserva- tion of public rights in the streets and its ownership is of the fee sub- ject to the right of the state to di- rect the mode of administering such trust and of keeping the streets in repair and free from nuisance. Ray- nolds v. Cleveland, 2 C. C. (N. S.) 139; 24 C. C. 215. Acquisition from state. — The transfer to a city for street pur- poses, by the state, of property ac- quired for canal purposes, gives the control to the city without making a reversion in favor of the owner of the soil. Malone v. Toledo, 28 O. S. 643. Compensation for use of streets. — Revenues for the use of the streets by vehicles in general is held to be a license fee for the spe- 114 THE OHIO MUNICIPAL CODE. [Code § 28 cial burden imposed and not a tax upon property. Marmet v. State, 45 O. S. 63, 68. Under the statute, § 3461 R. S., providing for the use of streets by a telegraph or telephone company, it was held that " a municipal corpora- tion, though holding the title to its streets, has no private proprietary interest in them which entitles it to compensation when they are subject- ed to an authorized additional pub- lic burden by the construction of a telephone line therein. But being charged with the duty of keeping the streets under its control in repair, it may be allowed compensation to an amount sufficient to make the re- pairs rendered necessary by such additional use." Zanesville v. Tele- graph and Telephone Co., 64 O. S. 67, 81. As to right to exact a revenue from gas company using the streets, see Columbus v. Columbus Gas Co., 15 Dec. 645; 3 N. P. (N. S.) 293. As to revenue from use of streets by street railways, see Cincinnati St. Ry. Co. v. Smith,, 29 O. S. 291, 306. Power of council over use of streets. — The power is limited only by the rule that it holds the streets in trust for the public for purposes of travel. Ry. Co. v. Elyria, 14 C. C. 48; Transit Co. v. Hamilton, 1 N. P. 366. It may authorize any use of a street not subversive of or impair- ing the original use, but the rights of the public to use it as a street, and of the adjacent lot owner to enjoy it as a means of access to his property, must not be materially in- terfered with. Branahan v. Hotel Co., 39 O. S. 333. Council has discretion as to the manner in which streets shall be used, and this power cannot be ju- dicially interfered with unless a manifest invasion of private rights is shown. Mill Creek Valley R. R. Co. v. St. Bernard, 8 N. P. 288, 294. Council may provide by ordinance that all drivers shall keep to the right in passing over bridges with- in municipal limits. Piatt v. To- ledo, 6 C. C. (N. S.) 403. It may by ordinance prohibit sales at auction in the streets, and such ordinance would not be unreasonable nor in restraint of trade. White v. Kent, 11 0. S. 550. It may summarily abate a nuis- ance erected upon a public street which interferes with the free use of the street by the public. Evans v. Cincinnati, 2 Handy, 236. But hedges, shrubs, and herbage belong to the owner of the fee and cannot be summarily destroyed un- less they interfere with public travel. Phifer v. Cox, 21 O. S. 248. It may impose upon one who has been granted the privilege of tempo- rarily obstructing a street for build- ing on abutting property the duty to save the city from loss and trav- elers from injury. Reuben v. Swi- gart, 15 C. C. 565. Municipality may grant franchise to street railroad to use a bridge within its limits although the bridge was built by the county. State ex rel. v. R. R. Co., 19 C. C. 79, 90. It may regulate the use of streets and sidewalks by bicycles and pro- hibit riding of bicycles on sidewalks, as well as fix by ordinance, restric- tions on speed, use of bells, lights, etc. Thomas v. Fremont, 12 Dec. 604. Leading or pushing a bicycle is not within prohibitive words, " rid- ing, driving, propelling, or operat- ing." 76. It may improve and ornament a public square for health, public buildings or the transaction of pub- lic business of the people or for both the purposes of pleasure and business if there is no special limi- tation or use described by the dedi- cation. Langley v. Gallipolis, 2 O. S. 107. But the municipality cannot per- mit the permanent occupancy of the streets, cutting off access to the property of abutting lot owners for Code § 28] STREETS. CONTROL BY COUNCIL. 115 the convenience and benefit of a private business. Branahan v. Ho- tel Co., 39 0. S. 333. It cannot surrender the street by permitting encroachments which les- sen its width. L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414. It was held that a municipality cannot change the name of a street at will, without good cause, except on petition of abutting property owners. Miller v. Cincinnati 21 B. 121. A section such as this gives the municipality no power to grant to a lighting company the power to erect poles in the street. Brush Co. v. Jones Bros. Co., 5 C. C. 340, 341. The power to improve streets in its own way, is not limited by the voluntary improvement of an abut- ting proprietor in a different way. Parsons v. Columbus, 50 O. S. 460; nor by an improvement of a street which is part of a road within the municipality, by a county, having this authority. Mills v. Norwood, 6 C. C. 305, 308. The general authority of council over the streets, duly exercised, will override any license by which the control of the street has been sur- rendered to a company or individual. Railroad Company v. Defiance, 10 O. F. D. 480; 52 O. S. 262. The power of council to author- ize the tearing up of streets by street railway company or sewer con- tractor is not restricted because of a previous contract with the con- struction company to keep the street which the company has made in re- pair. Union Savings Bank, etc., Co. v. Norwood, 12 Dec. 623. As to council's power over con- struction of sidewalks, see note un- der § 70 of the Code. Exclusive use. — Council is with- out power to grant exclusive use of its streets, unless expressly granted the power. State ex rel. v. Gas Light & Coke Co., 18 O. S. 262 ; Cin- cinnati Street Railway Co. v. Smith, 29 O. S. 291; State ex rel. v. Co- lumbus Ry. Co., 24 C. C. 609, 623. Perpetual use may be granted if no limitation of time in power given to municipality by legislature. State ex rel v. Columbus Ry. Co., 24 C. C. 609, but see 73 O. S. 363. Use granted to railroad.— Municipal control. — Though a mu- nicipality has by ordinance author- ized a railroad company to lay tracks in a street, its supervision of, and responsibility for the street con- tinues subject only to the use of the company as authorized. Steuben- ville v. McGill, 41 O. S. 235; Cincin- nati v. Kirchner, 13 Dec. 727 ; Zanes- ville v. Fannan, 53 O. S. 605 ; Rail- road Co. v. Defiance, 52 O. S. 262; 167 U. S. 88; L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414, 430. A mu- nicipality has no power to authorize permanent obstruction or encroach- ment upon the street which excludes the public from the use of that por- tion of the highway. L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414; Zanesville v. Fannan, 53 O. S.«605; Railroad Co. v. Defiance, 52 O. S. 262. An agreement with a railroad company for an obstruction in the street that excludes the public can operate only as a license until public convenience requires its removal. L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414. Where a railroad company has the duty of maintaining a bridge as part of the street, and of keeping it in repair, the railroad company would have the same right as the munic- ipality to close the bridge when it became dangerous to public travel. Toledo Street Ry. Co. v. Mammet, 13 C. C. 591. 115a THE OHIO MUNICIPAL CODE. [Code §28 As to rights of abutting owner to enjoin construction of railroad when his easement in street is interfered with, see "Abutting Owner's Rights," infra. Municipal liability. — The duty of keeping the streets in repair and free from nuisance not being taken away by a grant of the use of the street to a railroad company, the municipality is liable to an abutting owner for damages caused by the railroad company to abutting prop- erty and not incidental to the ordi- nary construction of a railroad in the street, notwithstanding the rail- road company may also be liable to the property owner. Zanesville v. Fannan, 53 O. 8. 605. But see Dil- lenbach v. Xenia, 41 O. S. 207. Thus a municipality was held liable for obstruction to drainage caused by a railroad company. Zanesville v. Fannan, 53 O. S. 605. But the mu- nicipality is not liable for damages which are in the nature of compen- sation for an additional burden in the street arising from the location or construction of railroad tracks therein. Zanesville v. Fannan, 53 O. S. 605. A municipality is held liable for injury caused to person falling into a ditch between tracks of railroad in the street. Steuben- ville v. McGill, 41 O. S. 235. As to rights of abutting owner against railroad company for dam- ages, see note 2 under § 3283 R. S., page 683. As to the statute of limitations in case of encroachment of abutments of a steam railroad in a highway, see L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414, 435. What uses impose additional burdens. — Sewers. — A sewer is an authorized use of a street. Elster v. Springfield, 49 O. 8. 82; Cincin- nati v. Penny, 21 O. 8. 499. Grading. — Grading and changing of grade are authorized uses of streets. R. R. Co. v. Defiance, 52 O. B. 262, 300; 167 U. 8. 88; East End B. & C. Co. v. Cleveland, 1 N. P (N. S.) 493. Street railways are not an addi- tional burden on the street, see note page 143. Electric light poles and wires in the streets at the curb, though with the consent of municipality, have been held to be a diversion of the street from the purposes for which it was dedicated, and an abutting owner injured thereby has been given the right to enjoin the same. Callen v. Electric Light Co. 66 O. S 166. Telephone and telegraph poles have been held an interference with abutting owner's easement. Tan- nian v. Telegraph Ass'n, 13 Dec. 730; 1 N. P. (N. S.) 81 (aff'd 71 O. S. 478) ; Daily v. State, 51 O. S. 348, 358, 364; Mantell v. Telephone Co. 20 C. C. 345; but see Auerbach v. Telephone Co. 7 N. P. 633; Hayes v. Telephone Co. 21 C. C. 480; see further Zanesville v. Telegraph & Telephone Co. 64 O. S. 67, 82. Gas pipes laid longitudinally un- der sidewalk have been held an addi- tional burden on the street. Federal Gas & Fuel Co. v. Townsend, 14 Dec. 5; 1 N. P. (N. S.) 289; Webb v. Ohio Gas Fuel Co. 16 B. 121. Conduits for telephone and tele- graph wires are additional servitude. Burns v. Telephone Co. 3 N. P. (N." S.) 257. Steam railroads are an additional burden on the street, see note "Abut- ting Owner's Rights," infra. Abutting owner's rights. — An owner of a lot abutting on a street Code §.28] STREETS. CONTROL BY COUNCIL. 115b has a property interest in the street in front of his lot which cannot be taken except after payment or de- posit of compensation. Callen v. Electric Light Co., 66 O. S. 166; Crawford v. Delaware, 7 O. S. 459; Street Ry. v. Cumminsville, 14 O. B. 523. An abutting owner may use the space above or below the surface of the street in any* manner permissible by city ordinance where such use contravenes no right of the city to its actual use for street and mu- nicipal purposes. Such abutting owner may string a wire above the street eighty feet above the surface. Henry v. Cincinnati, 1 C. C. (N. S.) 289; 25 C. C. 178. But see Butler v. Cincinnati, 25 C. C. 772. An abutting owner's easement in a street consists not only in having the surface free and unobstructed for ingress and egress, but he also has the right to light and air above the surface. Lloyd Booth Co. v. Mahoning Co., 12 C. D. 706; and an obstruction to his light and air is an infringement on his easement in the street. Hayes v. Telephone Co., 21 C. C. 480. So an erection of a viaduct in the street may be an in- jury to the easement, although it does not materially interfere with the surface use of the street. Lloyd Booth Co. v. Mahoning Co., 12 C. D. 706. Whether abutting owner's ease- ment immediately in front of his lot extends only to center of street or all the way across street, see Smedes v. Railroad Co., 4 O. L. R. 44; Madden v. Railway Co., 21 C. C. 73 . An abutting owner's right to have the street kept open and free from nuisance may be barred by the lapse of time. Kuhn v. Cleveland, 25 C. C. 272. Steam railroads in street — In- junction. — An abutting owner may enjoin the construction of a rail- road until the right to construct such road shall first be acquired. Railway Co. v. Lawrence, 38 O. S. 41 ; Toledo Bending Co. v. Railway, 2 N. P. 317; Weber v. electric Rail- way Co., 13 Dec. 194. Even after ordinance to construct railroad in street is obtained, an abutting owner may enjoin such construction if it materially inter- feres with his access to his prop- erty, until his easement is properly appropriated or purchased. Burial Case Co. v. Railway Co., 24 C. C. 107; 4 C. C. (N. S.) 365. Where railroad track is not con- structed on part of the street imme- diately in front of plaintiff's prop- erty, there is no such material in- terference with access as to consti- tute the taking of property and en- title the owner to enjoin the con- struction, even though the owner suffers in common witn the public some inconvenience in travel along the street. Mitchell Furniture Co. v. Railroad, 7 N. P. 639 (aff'd 65 O. S. 571); Herzog v. Railway, 25 C. C. 702 (aff'd 74 O. S. ); L, & N. R. R. Co. v. C. N. O. & T. P. Ry. Co., 3 N. P. (N. S.) 109; see also Hatch v. R. R. Co., 18 O. S. 92. But where the railroad obstructs the only means of access to his prop- erty, even though the track is not laid immediately in front of his lot, there is a taking of property rights and the construction may be en- joined. Mitchell Furniture Co. v. Railroad, 7 N. P. 639 (aff'd 65 O. S. 571). 115c THE OHIO MUNICIPAL CODE. [Code § 28 A railroad trestla in the street was not enjoined where the street was unimproved and far below the established grade, and abutting owner would not be injured in fu- ture when the street was filled. C. C. C. & St. L. Ry. Co. v. C. & I. W. Ry. 15 Dee. 112; 2 N. P. (N. S.) 237. The abutting owner cannot enjoin because the municipality might have a right to injunction. The munic- ipality's rights cannot be worked out through an abutting owner, and viae versa. C. C. C. & St. L. Ry. Co. v. C. & I. W. Ry. Co., 15 Dec. 112; 2 N. P. (N. S.) 237 As to right of abutting owner to damages from railroad company, for injuries due to construction of rail- road in street, see § 3283 R S. and note (2) thereunder, p. 683. Street railways. — As to rights of abutting owner where street railway is constructed in street, see generally title "Street Railways," page 142 et seq. City and county highway — dis- tinction. — Owner of land abutting on country highway has fee to the center of highway and public has easement, while owner of land abut- ting on city street has easement and public owns the fee, but in each situation the respective rights are substantially the same. Callen v. Electric Light Co., 66 O. S. 166. Damages for injury caused by im- provements. — As to owner's rights for damages to his property caused by improvements, see § 54 of the Code and notes. No extraordinary use without consent of council. — The care, supervision and control over streets and highways having been given to council, none of these can be used for extraordinary purposes without the consent of council. Illuminating Co. v. Mt. Gilead, 8 N. P. 669. But temporary obstructions in streets, such as are occasioned in rebuilding and repairing houses, are not prohibited and do not require special license. Clark v. Fry, 8 O. S. 358; Columbus v. Penrod, 73 O. S. 209; although cduncil can regu- late them, lb.; and can impose the duty to save the city from loss and travelers from injury. Reuben v. Swigart, 15 C. C. 565. Council is the only authority to give consent to the use of streets, and a direction assumed to be given by the mayor, without authority of council, is inoperative. Ry. Co. v. Carthage, 36 O. S. 631. Where an ordinance grants to a gas company the right to lay its pipes in the streets, no special per- mit from the municipal authorities could be required. Defiance v. Gas and Electric Co., 12 Dec. 424. Such a right cannot be revoked by the municipal authorities, and it in- cludes the right to repair and ex- tend the pipes. lb. As to powers of board of public service over streets, see § 140 and notes. Remedy. — Obstructions in streets and highways constitute a nuisance and full power is conferred upon the State, by its attorney general, on his own behalf or on behalf of a party in interest, to invoke the equi- ty powers of a court to have such obstructions removed. Trumbull County v. Pennsylvania Co., 24 C. C. 550. See also Little Miami Ry. Co. v. Greene Co., 31 O. S. 338; State v. Railway Co., 36 O. S. 434. Code § 28] STREETS. CONTROL BY COUNCIL. 116 Adverse possession. — It has been held that a municipality's rights in a street or public square may be lost by adverse possession by a private individual for more than twenty-one years where the possession is by a building or other permanent and substantial struc- ture. Cincinnati v. Presbyterian Church, 8 0. 298; Cincinnati v. Evans, 5 O. B. 594; Williams v. Presbyterian Society, 1 O. S. 478, 510; Lane v. Kennedy, 13 O. S. 42, 46; McClelland v. Miller, 28 O. S. 488, 502; Seese v. Maumee, 7 C. C. (N. S.) 497. See also Cincinnati v. Columbia, 17 B. 192; Railroad Co. v, Hambleton, 40 O. S. 496. But the erection of fences, plant- ing of shade trees and like occupa- tion of a part or all of a public street do not constitute such adverse possession as to bar the municipal- ity. Lane v. Kennedy, 13 O. S. 42 ; McClelland v. Miller, 28 O. S. 488; Heddleston v. Hendricks, 52 O. S. 465; Sullivan v. Columbus, 12 Dec. 650; Ashley v. Toledo, 13 C. C. 9. But, as to the case where fences and like unsubstantial structures exclude the public from the entire street, see Mott v. Toledo, 17 C. C. 472; Seese v. Maumee, 7 C. C. (N. S.) 497 (holding there is a distinc- tion between encroachment on part of a street and entire occupation of streot). On the other hand, it has been held that since the encroachment on a public street by a permanent or other structure is a public nuisance, no right by adverse possession can be acquired by such an obstruction. Elster v. Springfield, 49 O. S. 82, 98 ; Wright v. Oberlin, 23 C. C. 509 ; Heddleston v. Hendricks, 52 O. S. 465; By. Co. v. Elyria, 69 O. S. 414; Sullivan v. Columbus, 12 Dec. 650; Lawrence Railroad Co. v. Com- missioners, 35 O. S. 8; Railroad Co. v. Commissioners, 31 O. S. 338, 349. And whatever right against the mu- nicipality may be acquired by the encroachment upon the street with a permanent structure has been placed upon the ground of equitable estop- pel of the municipality. Lane v. Kennedy, 13 O. S. 42, 46; Elster v. Springfield, 49 O. S. 82, 98 ; Wright v. Oberlin, 23 C. C. 509; Sullivan v.. Columbus, 12 Dec. 650; Win- slow v. Cincinnati, 6 N. P. 47; and see: Mondle v. Toledo Plow Co., 6 N. P. 294; Lane v. Kennedy, 13 O. S. 42; Mooren v. Cleveland, 15 Dec. 456. By section 6921 R. S. the obstruc- tion of any public ground, highway, street or alley of a municipality by fences, buildings, structures or oth- erwise is made an indictable nuis- ance. Streets not opened and used. — By section 4977 R. S. the whole or any part of streets which have been ded- icated, but not opened or used by the public, may be lost by the municipal- ity to abutting owner if fenced in and held for twenty-one years. See also Stevens v, Shannon, 6 C. C. 142; Seese v. Maumee, 7 C. C. (N. S.) 497. Abandonment. — Municipality may lose its control over streets by abandonment. State v. Railway Co., 53 O. S. 189. But abandonment of part of a street will not work an abandonment of all. Cincinnati v. Kirchner, 13 Dec. 727; 1 N. P. (N. S.) 93. Municipal liability — General principles. — The rule of municipal liability would seem to be that the municipality is not liable for the unlawful use of its streets, but is liable for any defects m their state or condition. Custer v. New Phila- delphia, 20 C. C. 177. And it is not 117 THE OHIO MUNICIPAL CODE. [Code § 28 liable for failure to prevent a use of the streets by neglect to pass proper ordinances, or otherwise. lb. In exercising care and control over the streets the municipality acts as the agent of the State and is exempt from liability for failure or neglect to perform duties in that respect. Robinson v. Greenville, 42 O. S. 625; Custer v. New Philadel- phia, 20 C. C. 177; Zanesville v. Fannan, 53 O. S. 605; Wilhelm v. Defiance, 58 O. S. 56, 65. Thus a municipality is not liable for injury caused by fast riding of bicycles on its sidewalks because it has not forbidden the same by ordi- nance or otherwise. Custer v. New Philadelphia, 20 C. C. 177. It is not liable for injury caused by disorderly persons discharging a cannon for several hours in the street. Robinson v. Greenville, 42 O. S. 625. But the provision requiring the municipality to keep the streets open and in repair and free from nuisance implies a duty for the breach of which, to the injury of any one, the municipality is liable. See Cleveland v. King, 132 U. S. 295, 302; Cardington v. Admr. of Fredericks, 46 O. S. 442, 447 ; Zanes- ville v. Fannan, 53 O. S. 605; Wil- helm v. Defiance, 58 O. S. 56, 65; Herrick v. Cleveland, 7 C. C. 470; Kleister v. Dayton, Ohio Dec. (Day- ton) 215; and it is liable even though the defect or obstruction arose from construction in accord- ance with plans for improvement adopted by municipal authorities. Circleville v. Sohn, 59 (X S. 285. When the corporation is perform- ing this duty it is aeting in its pro- prietary capacity and its liability is largely, if not entirely, measured by the liability of an individual for sim- ilar acts. Robinson v. Greenville, 42 O. S. 625. The law exacts from the munic- ipality, however, only what is prac- ticable and reasonable in regard to keeping its streets open and in re- pair and free from nuisance. Chase v. Cleveland, 44 O. S. 505, 515; Van Dyke v. Cincinnati, 1 Disney 532; and it is not bound to anticipate im- probable and unprecedented events, and provide against their possible results. Village v. Kallager, 52 O. S. 183; Fremont v. Dunlap, 69 O. S. 286. It is only required to keep the streets in such condition that a per- son exercising ordinary care in pass- ing over them, may be reasonably safe from injury arising from their condition. Durbin v. Napoleon, 21 C. C. 160. Where a bridge or street is in a reasonably safe condition for travel in the ordinary mode, it is free from nuisance. Cardington v. Fredericks, Admr., 46 O. S. 442; Zanesville v. Fannan, 53 O. S. 605; Cincinnati v. Sohn, 59 O. S. 285; Cincinnati v. Fleischer, Admr., 63 O. S. 229 ; Troy v. Brady, 67 O. S. 65. Municipality is not liable as an insurer of those who go upon the streets. lb. But the liability of the municipal- ity is not affected by the fact that the person who caused the nuisance which resulted in injury, is respon- sible over to the municipality. Zanesville v. Fannan, 53 O. S. 605; nor by the fact that the statutes give a remedy to the person injured against the one directly causing the injury. lb. In what cases liable. — Gener- ally. — A municipality by allowing a street to become dangerous main- tains a nuisance and is liable for personal injury caused thereby. Cardington v. Admr. of Fredericks, 46 O. S. 442. A municipality is not liable in the ordinary case for injury caused by falling on slippery sidewalk where snow and ice had been allowed to accumulate, for it is not the duty of the municipality to remove im- mediately all snow and ice from sidewalks in all parts of the city. Chase v. Cleveland, 44 O. S. 505; Stamberger v. Cleveland, 22 C. C. 65; Van Dyke v. Cincinnati, 1 Dis- Code § 28] STREETS. ' / UNIVERSITY CONTROL BY COUNCIL. ^ a * c::= ^"Xl7a ney, 532; Norwalk v. Tuttle, 73 O. S. 242. And see Bloom v. Toledo, 25 C. C. 235; 2 C. C. (N. S.) 108; reversed 72 O. S. 652. But see Bretsch v. Toledo, 1 N. P. 210; Cin- cinnati v. Grebner, 25 C. C. 700; 7 C. C. (N. S.) 11. When the slip- pery condition is apparent it would be negligence to go upon the side- walk. Conneaut v. Naef, 54 O. S. 529; Schaefier v. Sandusky, 33 O. S. 246; Schneider v. Cincinnati, 16 Dec. 206; 4 N. P. (N. S.) 57; Nor- walk v. Tuttle, 50 B. 272. Negligence of municipality in leaving snow and ice on sidewalk, when a question for the jury, see Russell v. Toledo, 19 C. C. 418; Barry v. Akron, 7 C. C. (N. S.) 575. City is negligent if it leaves an excavation unguarded on a public way established by user through a market building. Nitz v. Toledo, 22 C. C. 454; Toledo v. Nitz, 3 C. C. (N. S.) 532; 23 C. C. 350. Crty is liable for injury caused by a bridge on a street crossing a stream, being without rails or guards, whereby a child falls in and is drowned. Boyd v. Cambridge, 4 C. C. 519. City is not liable for dangerous condition of land adjacent to street, but not so near as to menace ordi- nary travelers. Kelley v. Columbus, 41 O. S. 263. City's liability for steam roller loaned by city contractor and left in street, see Pears v. Cleveland, 1 Clev. 328. City is liable for injury due to a part of a sidewalk not conforming to the grade of the street, this con- dition remaining for a long time to the knowledge of the city. Toledo v. Higgins, 12 C. C. 541. A building permit authorizing temporary obstruction of a street and requiring a light at night, does not relieve the city of liability. Cleveland v. King, 132 U. S. 295. But city is not liable, without ex- press or implied notice, for injuries caused by failure to guard such temporary obstructions, uness the permit given was to do something intrinsically dangerous. Columbus v. Penrod, 73 O. S. 209. Where city grants permission to make a dangerous excavation in a street, and the excavation is prop- erly guarded, but subsequently the protection is removed, the city would not be liable for injury due to unprotected excavation, in the absence of actual or constructive no- tice of the removal of the protec- tion. Hewitt v. Cleveland, 67 O. S. 534 (without report, reversing 21 C. C. 505). City is liable for injury resulting from unguarded excavation left by the removal of platform scales in a market place, with knowledge of the city. Nitz v. Toledo, 22 C. C. 454. City is liable for damages result- ing from cistern negligently con- structed in street. Circleville v. Neuding, 41 O. S. 465. Where a telephone pole in the street has, subsequent to its erec- tion, become dangerous, municipal- ity may be liable for injury caused thereby, after notice of dangerous condition. Norwalk v. Jacobs, 27 C. C. 691; 7 C. C. (N. S.) 229. Injuries to property. — City is lia- ble for injury resulting from defec- tive service pipe causing water to leak into plaintiff's cellar, if city has notice. Cincinnati v. Jacob, 18 B. 65. For damages caused by pre- venting surface water from escaping into catch basins, in course of grad- ing a street, and injuring plaintiff's house. Toledo v. Lewis, 32 B. 378 ; for injury caused by overflow of surface water in making side streets. 118 THE OHIO MUNICIPAL CODE. [Code § 28 MeBride v. Akron, 12 C. C. 610. Such overflow causing damage is a continuing nuisance for which ac- tions will lie from time to time. Toledo v. Lewis, 17 C. C. 588. Owner of lot situated lower than street cannot complain of overflow of surface water because of raising of street, if he has received or waived compensation for the change of grade. Sharp v. Cincinnati, 26 C. C. 59; 4 C. C. (N. S.) 19. See also Hamilton v. Ashbrook, 62 O. S. 511. Where no negligence is shown, city is not liable for settling of a build- ing caused by excavation for a sew- er constructed by it. Columbus v. Jaeger, 36 B. 191. Municipality is liable for injuries resulting from break in water main caused by its negligence. Werner v. Cincinnati, 23 C. C. 475; 3 C. C. (N. S.) 276 (affirmed, 70 O. S. 455). General principles of municipal liability for damages resulting from improvement of streets, see Cincin- nati v. Penny, 21 O. S. 499. Liability for damages for change of grade, see notes to § 54 of the Code. Liability for damages resulting from construction of sewer, see notes to § 77 of the Code. Liability for damages for injury caused by railroad constructed in street, see note "Use Granted to Railroad," supra. Where duty of county to re= pair. — A village having notice thereof is liable for injury caused by a dangerous excavation left in building a bridge within the corpo- ration, although built- by the county, and although the village receives no part of the bridge fund. Newark v. McDowell, 16 C. C. 556. And so, though the couaty had no authority to construct the bridge. Newark v. Jones, 16 C. C. 563. The fact that it was the county's duty to repair a defect in a bridge within the city, does not relieve the city of liability. Mooney v. St. Marys, 15 £. C. 446. As to liability of city to repair bridge within its limits, but on state or county road where city receives no part of the bridge fund, see Brink v. Columbus, 37 B. 22; Sullivan v. Newark, 7 N. P. 556. The municipality is liable for in- jury caused by a hole in a bridge within its limits notwithstanding the duty of the county commission- ers to construct and keep in repair such bridge. Mooney v. St. Marys, 15 C. C. 446; Piqua v. Geist, 59 O. S. 163. But the right of action for de- struction of a bridge built by coun- ty, but within a village, is in the county commissioners. Perry Co. v. K. R. Co., 43 O. S. 451. Where injury is caused through acts of agent of municipality. — The wrongful act causing injury may not be done directly by the mu- nicipality, but indirectly under its authority. The city is equally liable in such case. Thus a city is liable for the neglect of a city board mak- ing a street under a special act. Johns v. Cincinnati, 45 O. S. 278. It is liable for injury caused in the improvement of a vault by trustees of a cemetery belonging to a city. Toledo v. Cone, 41 O. S. 149. The city of Cincinnati was held liable for damages for obstruction of access resulting from laying of tracks in the streets by trustees of Cincinnati Southern R. R. English v. Trustees So. Ry., 8 B. 15. But the city is not liable for the acts of the Board of Education in Code § 28] STREETS. CONTROL BY COUNCIL. 119 allowing a school house to become dangerous. The board of education is not an agent of the city. Diehm v. Cincinnati, 25 O. S. 305. Fire- men are not the agents of the city so as to make the city liable for their acts. Thomas v. Findlay, 6 C. C. 241. Nor will a health officer's act make the city liable. Turner v. Toledo, 15 C. C. 627. - Municipality cannot shift the re- sponsibility because the work was done by a property owner for it. Alliance v. Campbell, 17 C. C. 595; as where a property owner has con- structed the sidewalks which caused injury. lb. Though where the in- jury has been thus caused by a property owner the city may have an action over against the person directly responsible. Zanesville v. Fannan, 53 O. B. 605. Independent contracto r. — Where the work in the course of which injury is caused, is done not by an agent of the city, but by an independent contractor, the city is not liable unless the character of the work contracted for is neces- sarily dangerous or unless the city has retained control over the mode and manner of doing the work. See Cincinnati v. Stone, 5 O. S. 38; Chi- cago v. Kobbins, 4 Wall. 657. The city is liable where there was a defect in the plan made by the city engineer and being carried out by the independent contractor. Day- ton v. Fease, 4 O. S. 80. The city is liable where its agree- ment with the independent contrac- tor provides that the work shall be done under the direction of the civil engineer or other person appointed by the city council for that purpose. Cincinnati v. Stone, 5 O. S. 38. See Steubenville v. McGill, 41 O. S. 235. See also Bridge Co. v. Steinbrock, 61 O. S. 215. The fact that the city gave a per- mit to use part of a street for plac- ing building materials, etc., would not make it liable to one injured by failure to guard the obstruction, unless the city had notice and was guilty of negligence. Columbus v. Fenrod, 73 O. S. 209; or unless the permit is to do something neces- sarily dangerous. Gable v. Toledo, 16 C. C. 515; District of Columbia v. Woodbury, 136 U. S. 450. Notice as a condition prece= dent to liability. — The liability of municipality growing out of its duty to keep the streets, etc., in repair and free from nuisance may arise either from actual wrongful acts on the part of the municipality or its agents, such as an improper con- struction of a street or sidewalk or dangerous excavation, or from its neglect to act, such as its failure to remove obstacles or to make repairs. In the former case the liability of municipality arises without any notice to it. Middleport v. Taylor, 2 C. C. 366; Hewitt v. Cleveland, 21 C. C. 505; McGovern v. Mt. Ver- non, 22 B. 363. In the latter case the liability arises only after notice actual or constructive to the mu- nicipality of the dangerous obstruc- tion or condition and its failure thereafter to remove it. Alliance v. Campbell, 17 C. C. 595; Groveport v. Bradfield, 2 # C. C. 145; Chase v. Cleveland, 44 6. S. 505. As to notice where defect is caused though work is done in ac- cordance with plan adoptea, see Cir- cleville v. Sohn, 59 O. S. 285. See further as to latent defect in street, McGovern v. Mt. Vernon, 22 B. 363. Actual notice means notice to the officers having authority over the removal of such nuisances. McGov- ern v. Mt. Vernon, 22 B. 363 ; Cleve- land v. Fayne, 72 O. S. 347. 120 THE OHIO MUNICIPAL CODE. [Code §28 So where platform scales in a mar- ket place were removed, leaving a dangerous excavation, the fact that the city auditor knew of the exca- vation, notified new lessee of market space and that superintendent of market was present at the time of removal would show notice to mu- nicipality. Nitz v. Toledo, 22 C. C. 454; Toledo v. Nitz, 3 C. C. (N. S.) 532; 23 C. C. 350. Notice to policeman would not be actual notice to the municipality, unless municipality was authorized to and did prescribe duties of po- licemen such as to make them its agents "in respect to its duty to keep the streets open and in repair." Cleveland v. Payne, 72 O. B. 347. Constructive notice is shown by evidence of facts from which it would arise. Toledo v. Kadbone, 3 C. C. (N. S.) 382; 23 C. C. 268 (affirmed, 68 O. S. 687) . As to what facts show constructive notice, see generally Shelby v. Clagett, 46 O. S. 549 (knowledge of general defect in sidewalk not notice of particu- lar defect). As to when constructive notice is shown because the defect or obstruc- tion remains for such a length of time that the municipal authorities in the exercise of ordinary care ought to have known of it, see Cin- cinnati v. Frazer, 18 C. C. 50; Groveport v. Bradfield, 2 C. C. 145 (affirmed, 30 B. 351); Fremont v. Dunlap, 69 O. S. 286. As to actual notice shown by the character of the defect, see Toledo v. Higgins, 12 C. C. 646. The determination of question of sufficiency of lapse of time to oper- ate as notice of a defect in street, will depend upon location thereof and the circumstances of each par- ticular case. Kittredge v. Cincin- nati, '28 C. C. 100; 6 C. C. (N. S.) 646. To charge a municipality with negligence in failing to repair a de- fect in street, it must be shown that the actual or constructive notice thereof was received in time to make the repair or provide against acci- dent. Kittredge v. Cincinnati, 28 C. C. 100; 6 C. C. (N. S.) 646; so municipality was held not liable for accident due to slippery sidewalk, where sidewalk became slippery over night and accident happened in early morning. Leipsie v. Gerde- man, 68 O. S. 1. And where dangerous condition of street crossing was caused by a hard rain and injury occurred same day, municipality was not charged with notice. Schneider v. Cincinnati, 16 Dec. 206; 4 N. P. (N. S.) 57. Contributory negligence. — Where plaintiff's want of ordinary care contributed to the accident, the resulting injury must be borne by him, even though the city was guilty of negligence in allowing the danger to exist. Clemens v. Dayton, Ohio Dec. Dayt. 76; Ohliger v. Toledo, 20 C. C. 142. Where a pedestrian leaves the sidewalk and resorts to the street, without necessity, and for . his own pleasure or convenience, and meets with an accident, he is guilty of con- tributory negligence which would bar his recovery. Groveport v. Brad- field, 2 C. C. 145. As to contributory negligence in going upon slippery or defective sidewalk or gutter, where the dan- gerous condition is apparent, see Schaefler v. Sandusky, 33 O. S. 246; Conneaut v. Neaf, 54 O. S. 529; Peat v. Norwalk, 26 C. C. 161; 5 C. C. (N. S.) 614; Cleveland v. Stofer, 1 O. S. C. D. 300; Toledo v. Center, 1 O. S. C. D. 359; Norwalk v. Tuttle, 50 B. 272 ; Puccine v. Cin- cinnati, 15 Dec. 608; 3 N. P. (N. S.) 362; Toledo v. Fuller, 27 C. C. 729; 7 C. C. (N. S.) 598; Akron v. Keister, 27 C. C. 809; 6 C. C. (N. S.) 603; Lalond v. Toledo, 6 C. C. (N. S.) 241. As to contributory negligence in running into snow piled up in street, see Donald v. Toledo, 8 O. F. D. 261. A charge that if plaintiff's own negligence contributed "in any de- gree" to the injury he cannot re- cover, is erroneous. Nitz v. Toledo, 22 C. C. 454 ; see also Toledo v. Nitz, 3 C. C. (N. S.) 532; 23 C. C. 350; Matthews v. Toledo, 21 C. C. 69 (aff'd without report, 65 O. S. 561 ) ; Code § 28] STREETS. CONTROL BY COUNCIL. 121 Schweinfurth v. R. R. Co., 60 O. S. 215; Johnson v. Cincinnati, 20 C. C. 657; Werner v. Cincinnati, 23 C. C. 475; 3 C. C. (N. S.) 276, (aff'd, 70 O. S. 455). A mistake in treatment, due to error as to nature or extent of in- juries will not bar recovery or miti- gate damages. Toledo v. Radbone, 3 C. C. (N. S. 382; 23 C. C. 268, (aff'd, 68 O. S. 687). Indemnity from property owner causing injury. — As to the right of the municipality when compelled to pay damages for negligent construc- tion or nuisance in the street, to re- cover indemnity from the lot owner who directly caused the injury, see Wilhelm v. Defiance, 58 O. S. 56. When the injury is caused by a de- fect in construction, as in case of a sidewalk negligently laid, the city is liable and cannot recover indemnity, although the lot owner constructed the sidewalk pursuant to a notice from the city. Wilhelm v. Defiance, 58 0. S. 56; but where the injury is caused by defect or obstruction, placed there after construction, the lot owner who caused the same is liable. Morris v. Woodburn, 57 O. S. 330; and the city, if compelled to pay the damages therefor, may recover indemnity. Wilhelm v. De- fiance, 58 O. S. 56, 63; Chicago v. Robbins, 4 Wall. (U. S.) 657. See further as to liability of abut- ting owner for defect in sidewalk, Grunkemeyer v. Johnston, 47 B. 413. Pleading, practice and evidence. — A mere allegation that it was the duty of the municipality to keep the sidewalk in repair and that it negli- gently omitted to do so without al- leging notice of defect before the injury, or that defect was occasioned by positive misfeasance of munic- ipality or its agents, or construc- tive notice, is not sufficient to sus- tain action. Middleport v. Taylor, 2*C. C. 366. In an action for injury from fall- ing into a street excavation, an en- gineer's prior report as to what ex- cavation is necessary ard the specifications given to the contrac- tor, are not admissible to show the depth of the excavation. Moon v. Middletown, 14 C. C. 498. A charge that H a city owes no duty to a negligent person " does not correctly state the law and is mis- leading. A city owes the duty of exercising ordinary care in its con- trol over the streets, although if a person directly contributes to his in- jury he is not entitled to recover. Ohliger v. Toledo, 20 C. C. 142. Evidence must show that plain- tiff exercised that degree of care that an ordinarily careful and pru- dent person under the same circum- stances would have exercised. Cir- cleville v. Sohn, 20 C. C. 368. An instruction which makes the degree of care to be used dependent on the apprehension of danger en- tertained by the plaintiff is mis- leading, lb. Evidence that rules required po- lice to report dangerous condition of sidewalks is inadmissible in showing notice to city. Cleveland v. Payne, 72 O. 8. 347. Where icy condition of the side- walk which caused the accident was produced by ice which had gathered over night, the accident occurring early in the morning, it was held error to submit to the jury whether the village might by the exercise of reasonable care and diligence, have had knowledge of the defect in time to have remedied it, no knowledge being shown. Leipsic v. Gerdeman, 68 O. B. 1. It is error to charge the jury that it must bear in mind "the extent of territory covered by the city and the number of crossings demanding care, and the number and nature of the duties devolving upon the city and also claiming its care and atten- tion." Cincinnati v. Frazier, 19 C. C. 604. This section may properly be read to a jury as part of the court's charge in defining the municipality's duty. Toledo v. Nitz, 3 C. C. (N. S.) 532; 23 C. C. 350. When allegation of portion of street where accident occurred was slightly different from that shown by proof, there is not a fatal va- 122 THE OHIO MUNICIPAL CODE. [Code §28 riunce. Toledo v. Willinger, 27 C. C. 512; 6 C. C. (N. S.) 641. The burden of proof is not on plaintiff to prove the exercise of due care, even when petition alleges that plaintiff exercised due care, unless averments of petition suggest the implication of contributory negli- gence. Armleder v. Cincinnati, 16 Dec. 180. As to instructions upon value of hypothetical question, see McLean v. Cincinnati, 16 Dec. 459; 3 N. P. (N. 8.) 676. Where special findings of a- jury, in damage suit against the city for personal injuries, are inconsistent with general verdict, the former will control. Middleport v. Taylor, 2 C. C. 366. When special finding of jury was that the street or bridge was in reasonably safe condition for public travel in the ordinary mode, the city is entitled to judgment, notwith- standing a general verdict against the city. Troy v. Brady, 67 O. S. 65. In an action for injuries caused by a defective sidewalk it is better practice to set out in the petition the dangerous character of the side- walk. Middleport v. Taylor, 2 C. C. 366. The city is the proper party de- fendant in an action for damages for failure to keep the streets in repair. Herrick v. Cleveland, 7 C. C. 470. As to whether council might be sued, see lb. 479. The city and parties responsible for unguarded excavation in street cannot be joined as codefendants. Zeigler v. Ashley, 1 N. P. 62. An action against a city for per- sonal injury caused by the city's leaving the streets in a dangerous condition, obstructed by rubbish, etc., is an action for maintaining a nuisance within § 5144 and abates at the death of the party injured. Cardington v. Adm'r of Fredericks, 46 O. 8. 442. County commissioners are not proper parties to institute proceed- ings in mandamus to compel a city to assume care and control over via- duct which commissioners have built within the city limits, under statu- tory directions. State ex rel. v. Cin- cinnati, 4 N. P. 313. Where city fails to take charge of and keep in repair a viaduct built within its limits, by a county, the county commissioners are not prop- er parties to compel the city to ac- cept it by proceedings in mandamus. State ex rel. v. Cincinnati, 4 N. P. 313. As to quo warranto proceedings in case where municipality has grant- ed franchise to street railway com- pany to use a bridge within munic- ipal limits, but built by county, see State ex rel. v. Railway Co., 19 C. C. 79. Measure of damages. — As to meas- ure of damages in action for injury to property, see Cincinnati v. Wright, 2 N. P. (N. S.) 53. As to measure of damages in per- sonal injury cases, see Ohliger v. Traction Co., 23 C. C. 265; Toledo v. Radbone, 23 C. C. 268; 3 C. C. (N. S.) 382 (aff'd 68 O. S. 687); Toledo v. Nitz, 23 C. C. 350; Toledo v. Fuller, 27 C. C. 729; 7 C. C. (N. S.) 598. Sec. 2642 R. S. [Provision to be made by ordinance for open- ing streets, etc.] When it is deemed necessary by the council Code § 28] STREETS. CONTROL BY COUNCIL. 123 of any municipal corporation to open, extend, straighten, alter, divert, narrow, or widen any street, alley, or public highway within the limits of such corporation, the council shall provide by ordinance for the same 1 and such ordinance shall briefly, and in general terms, describe the part, if any, of said street, alley, or public highway to be abandoned by reason of such change thereof, and the property, if any, to be appropriated for such purposes, and the preceeding for such appropriation shall be as provided in chapter three, division seven, of this title. 2 [1906, April 14, 98 v. 143; 70 v. 126.] (1) See note 2 "Appropriations is repealed by the Code, and §§10 for street improvement" under § 12 to 22 of the Code substituted. The of the Code. proceedings, therefore, would be (2) Every section of chapter 3, such as are provided in these sec- div. 7, of title XII, referred to here, tions of the new Code. Sec. 2643 R. S. [When turnpike or plank-road becomes street.] When any turnpike or plank-road 'terminates within the corporate limits, any portion of it so included therein shall become a public street of the corporation and shall be main- tained and kept in repair as other streets ; and the council may cause the same to be condemned and appropriated 1 for use as such, according to the provisions of chapter three, division seven, of this title. 2 [66 v. 236, § 510.] (1) Amount condemned. — A missible. Cincinnati v. Scarborough, city cannot condemn a portion of 5 B. 77. that part of a turnpike brought A person familiar with the road, within its limits, but must condemn its income and probable future, and all within the corporation. Turn- an expert in stocks, bonds and in- pike Co. v. Cincinnati, 2 B. 126. vestments, may give his opinion as n . .. £ . .. to the rate at which the income of Rights of turnpike company. h road should be capita ii Z ed. lb. -Fart of turnpike coming within Conversat ions of president of. municipal limits becomes a public ♦«-«_m M „„,,,„„„„ :„ ^r^fion™ f™* street and turnmke eomnanv is di- turn P lke company in negotiating for street and turnpike company is ai gaie f rQad t gtreet railway com . vested of all control oyer it, not- dedicated to city, are not withstanding compensation has not £ dm J isaibl as evidence f value on J. 1 "* wV* n ° l e 2E??& « behalf of city seeking to condemn £ & JTi TP « C .° * V ' i ractl T n" a part of the road within its limits, Dec. 118 But see turnpike Co. v. ^ fa - t officers were gent Cincinnati, 5 Dec. (Re) 299. t th * tim / of the co^^tions. And turnpike company cannot en- Cincinnati and Wooster Turnpike join trespass by street railway com- c Cincinnati , 19 C. C. 607. FY w * Uch P^ ^ !S ^n • ?« The jury mav ascertain the prob- C. & W Ip. Co. v. Traction Co., 15 aMe fu { ur £ incJme of the whole F road uec. il». b ^ considering the past income, Evidence of value. — Evidence of probable future travel, the chances the net revenue derived from tolls of evading toll because of future taken on that portion of a turnpike cross streets, contracts with a street lying within a municipality, is ad- railroad for use of the road, con- 124 THE OHIO MUNICIPAL CODE. [Code § 28 tracts for repair and other expenses, and the proportion of the income that may be lost by the appropria- tion. Avondale v. Tp. Co., 18 B. 308. In capitalizing the income lost by the appropriation the jury may consider the legislative right to re- duce tolls, and the chances of for- feiture for non repair, etc. The capitalization must be such as would reasonably be earned by a safe investment. lb. There are two methods of fixing compensation for part of turnpike appropriated by a municipality which may be resorted to: First, — tbe direct method of determining in detail the present cash value tangi- ble and intangible, of the property according to its best use and adapt- ability; second — the capitalization method, of determining the rate of per cent, at which the probable fu- ture net annual income of the strip appropriated should be capitalized, and then ascertaining therefrom the capital as the basis of value of all the property taken. C. C. & W. Tp. Co. v. Cincinnati, 6 N. P. 233. See Cincinnati v. Delhi, etc. Tp. Co., 33 B. 250. (2) See note 2 to § 2642 R. S., supra. Sec. 2644 R. S. [Cost of improving turnpikes, etc.] When any portion of a turnpike or plank-road, or the control thereof, is required by a municipal corporation, or when any arrangement is made with the company owning the same for the improve- ment or repair thereof, provision for the cost, and for improv- ing and keeping such turnpike or road in repair, shall be made, as is provided with respect to the streets and other highways of the corporation. 1 [66 v. 250, § 597.] ( 1 ) Assessment of cost of con- demnation of toll road was held to be properly levied on abutting prop- erty in Winslow v. Cincinnati, 10 C. C. 191, 53 O. S. 665; but see Ry. Co. v. Cincinnati, 62 O. S. 465, and Payton v. Bauman, 66 0. S. 379. Contract exempting from toll the residents of a village in consid- eration of annual payment by vil- lage to turnpike company, held to amount to a method of collecting toll. State v. Lower River Road, 21 C. C. 662. As to the validity of such a contract see Extension of Lower River Road Co. v. Cincinnati, 13 Dec. 214. (See 2 O. L. R. 281.) Sec. 2645 R. S. [Remedy for neglect of corporation to keep turnpike, etc., in repair.] If a municipal corporation condemn any portion of a turnpike or plank-road, and fail to keep the portion so condemned in as good condition and repair as is re- quired by the charter of the company, the directors of the com- pany mav, bv writ of mandamus, compel the corporation to per- form that duty- [72 v. 164, § 598.] Sec. 2646 R. S. [How turnpike or plank-road condemned for street purposes.] If any city has extended or hereafter extends its limits so as to include therein a portion of any turnpike or Codf> § 28] STREETS. CONTROL BY COUNCIL. 125 plank-road, without purchasing or condemning the same, the council shall, within six months after the mayor is notified in writing that such company demands compensation therefor, proceed in the manner prescribed in chapter three, division seven, of this title, 1 to cause such portion of such turnpike or plank-road to be condemned for street purposes ; on failure of such council so to proceed, the president of such turnpike or plank-road company, 2 if authorized by the directors thereof, may file an application in the Court of Common Pleas of the proper county, setting forth the facts aforesaid, and asking that the value of such portion of the turnpike or plank-road may be assessed by a jury, 3 the cause shall be conducted to final judg- ment in the manner provided in said last mentioned chapter, so far as the same is applicable, and such city shall pay the compensation awarded by the jury, with interest, and cost, in such proceeding, within one year after date of the rendition of the verdict, and when the compensation awarded has been paid, the title to such portion of such turnpike or plank-road shall vest in the city, and for the purpose of providing means to pay for the same, the city council of any city of the first or second grade of the second class, 4 may levy a tax in addition to the amount now limited by law. [72 v. 164, § 598.] (1) See note 2 to § 2642 R. S.. taken by a city to be as provided and see as to condemnation of turn- here, and such company was held pike in municipal limits, § 3491 not entitled to a civil action as a R. S. in Part II. plankroad company under act of (2) A corporation organized to March 23rd, 1869, 66 0. L. 36. Tre- provide for the keeping in repair of mainsville PI. & Tp. Co. v. Toledo, gravel, macadamized roads, etc., a I- 31 O. S. 588. though the road of such corporation (3) See note 2 to § 2642 R. S. be a plankroad, was held to be a supra. turnpike company within the mean- (4) See note 6 "Grades and class- ing of this section and its remedy es under new Code " under § 1599 for compensation of part of its road R. S., p. 31. Sec. 2647 R. S. [Adaptation of turnpike or plank-road to corporation uses, etc.] When the roau ->f any turnpike or plank-road company passes through or terminates in any muni- cipal corporation, the council or trustees shall have power, with the consent of the company, to make any improvement or repair of such road, additional to the improvement or repair required by law of the company, that, in the opinion of the council or trustees, will better adapt such road to -use as a street of the corporation. [66 v. 251, § 599.] 126 the ohio municipal code. [Code § 28 Sec. 2648 R. S. [Right of toll not to be impaired.] The right of any company to take toll at any toll-gate established in the corporation, shall not be impaired by anything in this title con- tained, except where the road of the company has been duly ap- propriated, and compensation made therefor, or the rights of the company in the road have been surrendered by agreement. 1 [66 v. 251, § 600; 66 v. 36.] (1) Toll gate in municipal peal or modify § 34 of Act of May limits. — A contract between muni- 1, 1852, making it unlawful to keep cipality and turnpike company, by up a toll gate or collect tolls with- which the company is allowed to in municipal limits. Tp. Co. v. maintain part of its road in the Kelley, 41 0. S. 144. But under municipal limits and collect toll for provisions of § 3491 R. S. it was such part, must be construed with held a company cannot collect tolls reference to the laws providing for for the part of its road included location of toll gates, and the com- in a municipality. Madisonville v. pany may collect toll for the part Tp. Co., 17 B. 30. See further, of the road in city limits if its toll Bader v. Lower River Road, 21 C. gate is properly located. Spring- C. 662. field Tp. Co. v. Springfield, 27 O. S. As to condemnation of turnpike 584. and removal of toll gate in munici- This section was held not to re- pal limits, see § 3491 R. S. Sec. 2649 R. S. [Use of national road by city or village as street; agreement with connty commissioners to keep same in repair.] The council of any city or village through which the national road passes may, after filing with the county com- missioners an agreement, in writing, authorized by the council, and signed by the president thereof, binding itself to keep such road in such repair as is contemplated by the act or acts of congress ceding to the state of Ohio the jurisdiction and control of such portion of said road as lies within this state, take under their care and control so much of the road as passes through the corporate limits of such city or village, and use and occupy the same as a street or streets for such city or village ; and when such road is so taken, the same shall be kept in the repair afore- said, at the proper cost and expense of the citv or village. 1 [70 v. 194.] ( 1 ) Keeping in repair. — For tional road in repair, see Holling- discussion of relation between State worth v. State, 29 O. S. 552. and municipality in keeping na- Sec. (2649 — 1) E. S. § 1. [Control of city councils over por- tions of national road.] The city council of any municipal Code § 28] STREETS. DEDICATION. 127 corporation in this state, through which the national road passes, shall have power to improve, repair, widen, and grade the road-bed, gutters, and sidewalks of said road within the corporate limits of such city, in the same manner and upon the same terms and conditions that such city council are now author- ized to make such improvements, repairs, and grades, by virtue of " an act to provide for the organization and government of municipal corporations/ ' passed May 7th, 1869, and all acts amendatory thereof; [70 v. 153.] Sec. (2649—2) R. S. § 1. [Transfer of national road to certain cities and villages; conditions.] The council of any city or in- corporated village within this state, through which the national road passes may, and they are hereby authorized to take under their care and control so much of the said road as passes through the corporate limits of such city or village, and use and occupy the same as a street or streets for such city or village. That where said road shall be so taken by such city or village, the same shall be kept in such repair at the proper costs and ex- penses of the city or village so taking possession thereof, as is contemplated by the act or acts of congress ceding to the state of Ohio the jurisdiction and control of such portion of said road as lies within this state ; provided, that if at any time, in the opinion of the board of public works, any portion of said road so taken possession of by any city or village, is not kept in such repair, said board may, in its discretion, resume the control and management of said portion, and from that date the power given in this act to such city or village shall cease. [70 v. 194.] Sec. (2649 — 3) R. S. § 2. [Agreement to keep in repair to be filed with board of public works.] Before exercising any such control over any such portion of said road as lies within its corporate limits, such city or village shall file with said board of public works an agreement in writing, binding itself to keep such road in such repair; which agreement shall be authorized by the council thereof, t.nd signed by the president of such council. 1 [70 v. 194.] (1) Agreement with state by within the corporate limits was held municipality to keep national road valid in Hollingworth v. State, 29 in repair in consideration of the 0. S. 552. abandonment of toll collections (b) Dedication of Streets. Sec. 2650 R. S. [Dedication of streets ; acceptance by council necessary.] No street or alley which has been or may be dedi- 128 THE OHIO MUNICIPAL CODE. [Code § 28 cated to public use by the proprietor of ground in any corpora- tion, shall be deemed a public street or alley, or under the care or control of the council, unless the dedication is accepted and confirmed by an ordinance specially passed for such purpose. 1 [66 v.* 222, § 440.] (1) Character of provision. — This section is not intended as a limitation upon the general powers of a municipality for opening and improving streets, but as a restric- tion to prevent the municipality from being vested with the title to and charged with the care of streets and alleys without its consent. Wis- by v. Bonte, 19 O. S. 238. Public highways already estab- lished, coming into a municipal cor- poration by annexation, do not have to be accepted and confirmed by ordinance before they come under the control of council. This section was not intended to withdraw from control of council such streets as are already established by public use and by the acts of the city au- thorities improving them. Steuben- ville v. King, 23 O. S. 610; R. R. v. Defiance, 10 C. C. 27, 32 (affirm- ed, 52 O. S. 262). Does not abolish common law dedication. — Notwithstanding the provisions of § 2650, there may be an offer of dedication and an ac- ceptance by public use under the principles of common law; although, under § 2650 no liability attaches to the municipality to keep such highway in repair till after ordi- nance passed. Winslow v. Cincin- nati, 6 N. P. 47, 53 ; affirmed, 53 O. S. 665. Applies only to streets or alleys. — This section does not apply to a ded- ication of a park to a municipality. Abraham v. Cincinnati, 13 Dec. 619. Kinds of dedication.— Valid dedication of property for street purposes may be made either (a) according to the rules of common law, or (6) under the statute. See Fulton v. Mehrenfeld, 8 O. S. 440; Sullivan v. Columbus, 12 Dec. 650. Common law dedication. — In case of a common law dedication, there must be not only a dedication to public uses by the owner, but also an acceptance by the public. Such a dedication operates by way of estoppel and not as a grant or trans- fer of interest. Fulton v. Mehren- feld, 8 O. S. 440; Sullivan v. Co- lumbus, 12 Dec. 650; Abraham v. Cincinnati, 13 Dec. 619. The dedication and acceptance may be shown by acts and declara- tions of the parties and surround- ing circumstances. 76. But the intention to make a dedi- cation must be shown by acts clearly evincing such intent. Webber v. To- ledo, 3 C. C. (N. S.) 319; 23 C. C. 237. A defective statutory dedication in evidence, as an act in pais, of a dedication at common law by the owner. Daiber v. Scott, 3 C. C. 313. Intention to dedicate. — As to what will constitute an intention to dedicate sufficient to show a com- mon law dedication, see Penquite v. Lawrence, 11 O. S. 274 (acquies- cence in public use) ; Wisby v. Bon- te, 19 O. S. 238; Daiber v. Scott, 3 C. C. 313 (accepting lots of subdi- vision platted with streets) ; Lock- land v. Smiley, 26 O. S. 94, 100. (description in a deed of property as bounding on a street ) , Schlemmer v. Furniture Co., 7 C. C. (N. S. 468; 15 Dec. 92; 2 N. P. (N. S.) 293 (describing property as an "alley" and its use by public as such) ; Ry. Co. v. Cleveland, 1 N. P. 1; (allotment in partition reserv- ing rights of way not a dedi- cation, though rights of way are open to public use) ; Boer- Code § 28] STREETS. DEDICATION. 129 es v. Strader, 1 C. S. C. R. 57, (merely having property open to public as a wharf, not a dedica- tion) ; Macneale v. Cincinnati, 8 B. 324, (purchase of lot described as abutting on street and strip called street used by public for long per- iod) ; Duffy v. Norwood, 3 N. P. 325, (call for a street in deed, and public use of the street) ; Cherry v. Howe, 17 C. C. 246, (leaving strip off end of lot open to afford access to owners' tenants, not a dedica- tion) j Millikin v. Bowling Green, 9 C. C. 493, (owner putting down board walk on his own property, but bordering a street whose lines are unmarked not a dedication) ; Winslow v. Cincinnati, 6 N. P. 47, (attaching to donor's will a plat with street marked on it) ; Toledo v. Ry. Co., 17 C. C. 265, 279; Myers v. Toledo, 18 C. C. 817, (co-owners partitioning by making a plat show- ing streets) ; Toledo v. Converse, 21 O. C. 239, (making a plat showing a triangular piece of ground colored as streets are colored on the map, and having no lot number, but not within dimensions of streets map- ped and no taxes being paid on the strip, do not show intention to dedi- cate); Deutsch v. Chemical Co., 8 N. P. 428, (having a private right of way open to the public for sev- eral years, but having a sign " Pri- vate Property," etc., not a dedica- tion) ; Eagle, etc., Co. v. Cincinnati, 1 C. S. C. R. 154, (reserving, in a lease, part of property abutting on alley " for private street " but the strip being used by the public for 30 years.) ; Cincinnati v. McMakin, 38 B. 261 (a covenant in a deed to dedicate a certain strip on demand not enforceable by the city) ; Web- ber v. Toledo, 23 C. C. 237 (fact that owner of property, a part of which is appropriated to widen a street, puts down sidewalks, either voluntarily or by order of city, not to be construed as intention to dedi- cate) ; Wright v. Oberlin, 23 C. C. 509 (a map, though not acknowl- edged or recorded, may bind parties to a dedication, and a dedication may be made by allowing public to use the property). Where boundary line of street dedicated is in dispute, what evi- dence will establish true line, see Mooren v. Cleveland, 15 Dec. 456. Acceptance. — Acceptance is neces- sary to constitute dedication. Lun- kenheimer v. Cincinnati, 23 C. C. 617. As to what will constitute an ac- ceptance, so as to complete a dedi- cation according to the rules of common law, see Doren v. Horton, 1 Disney 401, (acts of possession and use by public) ; Dick v. Toledo, 11 C. C. 349, 350, (a city ordinance accepting) ; Winslow v. Cincinnati, 6 N. P. 47 (acceptance not measur- able by any standard and any use naturally following from the na- ture of the place, is sufficient) ; Millikin v. Bowling Green, 9 C. C. 493, (uses by public outside estab- lished lines of street) ; Toledo v. Converse, 21 C. C. 239, (persons driving outside lines of street and over property claimed to be dedicat- ed not an acceptance) ; Ry. Co. v. Carthage, 36 O. S. 631, (ordinance providing for use of street by rail- way) ; Lough v. Machlin, 40 O. S. 332, (alley on recorded plat after- wards vacated by ordinance, not ac- ceptance). Estoppel. — No estoppel on muni- cipality to claim dedication because of assessment and taxation of land claimed. Reynolds v. Newton, 14 C. C. 433 ; but see, contra, Toledo v. Converse, 21 C. C. 239, and Lunken- heimer v. Cincinnati, 3 C. C. (N. S.) 143; 23 C. C. 617. Deed of dedica- tion estops persons under it from denying existence of highway, al- though highway is not such in sense 130 THE OHIO MUNICIPAL CODE. [Code § 28 that public must repair. Hayes v. Park Co., 13 Dec. 67. See further Abraham v. Cincinnati, 13 Dec. 619. Statutory dedication. — In the case of a statutory dedication, there must be some form of grant or trans- fer to the municipality, and all the statutory requirements must have been complied with. Sullivan v. Columbus, 12 Dec. 650; Abraham v. Cincinnati, 13 Dec. 619. A statutory dedication may be made either: (a) By the platting commission making a plat (see § 142 of the Code ) , and the owner accepting the plat, as provided in § 2634 R. S., or (6) By the owner making a plat as provided in § 2601 R. S. As to what is necessary to con- stitute a statutory dedication, see Stephenson v. Leesburg, 33 0. S. 475, (imperfect plat) ; Satchell v. Doram, 4 O. S. 542, (plat not duly executed not per se evidence of al- ley) ; Lockland v. Smiley, 26 O. S. 94, (imperfect plat not duly ac- knowledged not a statutory dedica- tion) ; Doren v. Horton, 1 Disney 401, (recorded plat without ac- knowledgment does not dedicate) ; Ashley v. Toledo, 13 C. C. 1, (subdi- vision acknowledged only by owners of one-sixteenth of tract) ; Rey- nolds v. Newton, 14 C. C. 433 (plat not signed by all owners, but all parties to a subsequent partition) ; Sullivan v. Columbus, 12 Dec. 650, (immediate improvement not neces- sary ) . Grantee in esse not necessary to a dedication. William v. Socie- tv, 1 O. S. 478; Brown v. Manning. 6 O. 298. Condition in a dedication does not invalidate it, but the condition becomes inoperative. Richards v. Cin- cinnati, 31 O. S. 506. And see Lloyd v. Hulbert, 1 C. S. C. R. 228. Dower cannot be claimed in lands dedicated to public use. Gwynne v. Cincinnati, 3 O. 24. What dedication includes. — Dedication of land for street pur- poses carries with it the right to remove lateral support of the resi- due in the improvement of the street. Ross v. Cincinnati, 24 C. C. 43 ( aff'd 67 O. S. 521) ; but see Cincinnati v. Skinner et al., 12 Dec. 735; and see also Grant v. Hyde Park, 47 B. 831. and Tenney v. Cincinnati, 24 C. C. 237 (aff'd 67 O. S. 518), holding that where property is condemned for street purposes the inquiry em- braces not only an ascertainment of compensation to the land owner for the land taken, but damages to the residue of his abutting land which may result from the grading of the street. Agreement to dedicate, made with grantees of lots in neighbor- hood, whether municipality can take advantage of, see Abraham v. Cin- cinnati, 13 Dec. 619. Sec. 2651 R. S. [Power of villages to procure material to im- prove streets.] The councils of villages, where material for graveling and macadamizing the streets must be transported by rail, shall have like power with county commissioners in case of turnpike roads. [67 v. 52, § 2.] (c) Vacation of Streets by Council. 1 Sec. 2652 R. S. [Vacation of streets, change of name, etc,] The council of any city or village, on petition by any person owning a lot in the corporation praying that a street or alley in the immediate vicinity of such lot may be vacated or narrowed, Code § 28] STKBETS. VACATION BY COUNCIL. 131 or the name thereof changed, may, upon hearing, and upon being satisfied that there is good cause for such change of name, vacation or narrowing, that it will not be detrimental to the general interest, and that the same should be made, declare by ordinance such street or alley vacated, 2 narrowed, or the name thereof changed ; 3 provided, however, that where, in any city or village, there shall be two or more streets, avenues or alleys of the same name, the council may, by ordinance and without petition therefor, change the name of any such street, avenue or alley, so as to leave only one street, avenue or alley to be designated by said original name; and provided, also, that when in the opinion of the council there is good cause for vacating or narrowing any street or alley, or any part thereof, and that such vacation or narrowing will not be detrimental to the general interest, council may by ordinance and without petition therefor, vacate or narrow such street or alley or any part thereof; but notice of the intention of council to vacate any street, alley, avenue, or part thereof shall, in all cases, be given as provided in section 2653 of the Revised Statutes, ex- cept when there is filed with council written consent to such vacation by the owners of the property abutting the part of the street or alley proposed to be vacated, in which case such notice shall not be required. And council may include in one ordi- nance the change of name, or the vacation or narrowing, of more than one street, avenue or allev. [1906, April 16, 98 v. 202; 90 v. 350; 67 v. 78, §491.] ( 1 ) For vacation of streets by council. Ry. Co. v. Cummins, 34 B. court, see § 2655 R. S. et seq. 301. (2) Statutory method exclu- Who may claim damages. — sive. — Streets and highways can Owners in immediate vicinity of, be abandoned by municipalities only but not abutting on, street sought in the manner provided by statute, to be vacated, cannot claim damages and their use cannot be destroyed for vacation, unless specially in- except for a purpose beneficial to jured. In re Ry. Co., 19 C. C. 308; the public. Ry. Co. v. Elyria, 14 Doppas v. R. R. Co., 19 C. C. 582 C. C. 48, 52. (atf'd 66 O. S. 648). Streets do not become abandoned t whom vacated streets re« and revert to original proprietors vert _o extension of any street railroad located wholly without any swh city, or of any street railroad wherever located, which has beer» or shall be built in pursuance of a right obtained from any source or authority other than a municipal corporation, shall be made within the limits of such city, except as a new route, aud subject to the provisions of section 2501 of the Re- vised Sta^Akw of Ohio and section 30 of this act. 6 (1) Old section. — This section (2) Extension. — A marked dis- is practically a re-writing of § 3438 tinction is drawn between an origi- R. 8. (repealed) omitting all the nal grant for construction and a references to grades and classes of grant for an extension of a street cities and making the provisions railway. In the case of an original general. grant for construction, the grant can 145 THE OHIO MUNICIPAL CODE. [Code § 29 be made only upon publication of notice of pendency of the application and to the company offering to carry passengers at the lowest rate of fare; the grant of a right to extend tracks can only be granted to a com- pany owning or having the right to construct a railroad, and there is no bidding for the grant or notice of the application. Day v. Railway Company, 27 C. C. 60; 5 C. C. (N. b.) 393; C. C. C. & St. L. Ry. Co. v. U. B. & N. Railway Company, 26 C. C. 180. See also Belle v. Glen- ville, 27 C. C. 181; 5 C. C. (N. S.) 461 (aff'd 73 O. 8. 392.) Extension may be granted beyond the termini named in the articles of incorporation of the company. Sims v. St. Railroad, 37 O. S. 556. Extension need not run in the general direction of the original route or begin at one of the original termini. Cincinnati v. Cincinnati St. Railway, 31 B. 308; Belle v. Glenville, 27 C. C. 181; 5 C. C. (N. S.) 461 (aff'd 73 O. S. 392). An extension may be along other streets and not in a straight line. Sommers v. Cincinnati, 8 Rec. 612. An extension granted for a period extending beyond remaining period of grant of original route does not extend grant of such original route, and the extension is valid only dur- ing remaining period of original grant. Cleveland Elec. Ry. Co. v. Cleveland, 14 O. F. D. 513; 3 O. L. R. 75. An extension for an electric rail- way is not invalid because the orig- inal grant was for a railway using horses as motive power. Belle v. Glenville, 27 C. C. 181; 5 C. C. (N. S.) 461 (aff'd 73 O. S. 392). An ordinance granting the exten- sion is not an act conferring cor- porate power. The corporate power is conferred by the statute under which the company is incorporated and the ordinance is merely a per- mit. Sims v. St. Railroad Co., 37 O. S. 556. Consents. — In the case of consents obtained for the original construc- tion of a street railroad, they enure to the benefit of the lowest bidder, no matter from whom obtained; but consents obtained for the extension of street railways enure to the bene- fit onlv of the railway specified. Day v. Railway Co., 27 C. C. 60 ; 5 C. C. (N. S.) 393. Beyond city limits. — An ordinance granting extension along highways outside the city limits merely con- fers the power and does not dis- pense with the necessary agreement with the county commissioners, or condemnation. Railroad Co. v. Com- missioners, 56 O. S. 1 ; Richland County v. Citizens' Electric Railway Co., 9 C. C. 183. (3) Council. — The grant by council must be made directly to the grantee, and power to make the grant cannot be delegated. State ex rel. v. Bell, 34 O. S. 194. Council was held under the for- mer laws to include trustees of hamlets. Annexation to Newburgh, 15 C. C. 78, 80. (4) Provision unequivocal. — A provision such as this is unequivo- cal and forbids any release of what is due the city by its officers and in the face of such a statute neither the principles of account stated nor of accord and satisfaction based upon receipt of a less amount than is due have any application. Cin- cinnati Street Railway Co. v. Cin- cinnati, 8N.P. 80. (5) Extension over other tracks. — Before the limitation as to length of extension over other tracks, it was held municipality had general power to grant right to one company to run over tracks of an- other company, compensation being paid the company already occupying the street. Sims v. St. Ry. Co., 37 O. S. 556; Broadway St. Ry. v. Brooklyn St. Ry., 10 B. 72. How determine length of track. — The trackage of a railway over its entire route and not merely that part within the city may be con- sidered in determining the length of track of railway already in that city that may be used. State v. Electric Street Railway, 19 C. C. 79. Right to "straddle" tracks of another company may be given, as well as right to occupy track, but compensation must be paid first com- pany. H. G. & C. Traction Co. v. Transit Co., 69 O. S. 402. Appropriation of track. — After council has granted a company the right to use part of the track of another company, if the two com- panies do not agree, appropriation proceedings may be taken to fix the compensation. Street Ry. v. Street Ry., 50 O. S. 603. For matters relating to appropria- tion of part of track of another Code § 29] STREET RAILWAYS. 146 lines. Where there is a conflict as to municipal lines or extensions, the special provisions of §§ 2501 to 2505 R. S. must govern. C. C. C. & St. L. Ry. Co. v. U. B. & N. Ry. Co., 26 C. C. 180; 5 C. C. (N. S.) 583 (aff'd 73 O. B. 364). Annexation of territory. — As to whether the extension must be as a new route when the original grant was made by county commissioners, but the territory through which it- ran was subsequently annexed to the municipalitv, see Belle v. Glenville, 27 C. C. 181; 5 C. C. (N. S.) 461 (aff'd 73 O. S. 392). company, see notes to § 3440 R. S. in Part II. (6) Construed with other laws. It was held that § 3438 R. S. must be construed with other laws relating to the same subject. R. R. Co. v. Commissioners, 56 O. S. 1, 7. See also Hattersly v. Water- ville, 26 C. C. 226, 229; 4 C. C. (N. S.) 242 (aff'd 74 0. S. .) It was held that §§3437, 3438, 3439 et seg. R. S. refer to street railways and extensions wherever lo- cated; §§2501 to 2505 R. S. relate wholly to lines" and extensions with- in municipalities, § 2505 R. S. re- lating solely to extensions of such Sec. 2501 R. S. [Terms of condition of construction and operation to be fixed by council; renewal of grant] No corpo- ration, individual or individuals shall perform any work in the construction of a street railroad, until application for leave 1 is made to the council in writing, and the council by ordinance 2 shall have granted permission, and prescribed the terms and conditions upon, and the manner in which the road shall be constructed and operated, and the streets and alleys which shall be used and occupied therefor, but the council may renew 3 any such grant at its expiration upon such conditions as may be con- sidered conducive to the public interest. [92 v. 206; 84 v. 40; Rev. Stat. 1880; 66 v. 217, § 411; 76 v. 156, § 4; (S. & S. 137; S. & C. 1560).] (1) Application for leave. — That the application for grant is filed before the company is fully in- corporated, does not make it invalid or give ground for enjoining grant. Sloane v. People's Elec. Ry., 7 C. C. 84. The application may be in the al- ternative, leaving the city to choose between two routes. Simmons v. Toledo, 5 C. C. 124. Presentation of ordinance to coun- cil by company was held to be a suf- ficient application. Sanfleet v. To- ledo, 10 C. C. 460. (Affirmed, 54 O. S. 620.) (2) Ordinance to construct. — Preliminary ordinance designating the route and directing advertise- ment for bids is not an ordinance creating a right or granting a fran- chise or involving an expenditure of money. State ex rel. v. Henderson, 38 O. S. 644. An ordinance establishing the route was held not to be necessary, in Sloane v. People's Electric Ry., 7 C. C. 84. Construction of ordinance. — The grant by a city to a street rail- way company to lay its tracks in the street is to be strictly construed and a doubt is fatal. Hamilton, etc., Electric Transit Co. v. Hamil- ton, 1 N. P. 366. The right to have necessary side- tracks, etc., and other appliances was held not to include the right to have a transfer house in the middle of the street, lb. Permission to build a temporary transfer house will not confer the right to build a permanent struct- ure, lb. Construction of ordinance requir- ing railway company to pay for pavement already laid on street, such proportion of cost as the width occupied by track and one foot on each side, bears to entire width of roadway. U. M. & C. Ry. Co. v. Columbus, 16 Dec. 102; 3 N. P. (N. S.) 438. 147 THE OHIO MUNICIPAL CODE. [Code § 29 Construction of ordinance renew- ing previous grant, see Akron v. Traction & Light Co., 27 C. C. 536; 6 C. C. (N. S.) 445. When the provisions of the ordi- nance are plain and unambiguous there is no room for a practical construction by conduct of the par- ties. Cincinnati v. Street Railway Co., 6 N. P. 140. An ordinance providing that a street railway shall pay annually $4 per lineal foot on each car run does not mean on the average num- bers of cars run, but is to be strictly construed. lb. Statement rendered by the com- pany as to cars run and payment pursuant thereto, do not constitute account stated or settled or accord and satisfaction, but only a pay- ment on account. lb. An ordinance requiring a per- centage of all earnings to be paid to the city and fixing a sum per lineal feet on each car, construed. Cin- cinnati v. Mt. Auburn Cable Rail way, 28 B. 276. See also Cincin- nati v. Cincinnati Incline Plane Railway Co., 30 B. 321. The fact that a railway ruote branches into two directions does not make it two routes. Aydelott v. Cincinnati, 11 C. C. 11. A street railway grant providing that the railway should be built within six months from the time the city had completed certain grading, interpreted. Toledo v. Toledo Ry. & Light Co., 2 C. C. (N. S.) 97. Character of ordinance. — An ordinance duly accepted by the city constitutes a contract between the railway and the city. Cincinnati v. Street Railway Co., 6 N. P. 140; State v. Ry., 15 C. C. 200. The grant cannot be exclusive to one company. Toledo, etc., Railway Co. v. Toledo Electric Street Rail- way Co., 6 C. C. 362 (affirmed, 50 O. S. 603). It cannot be upon streets to be thereafter designated. Cincinnati Street Railway Co. v. Smith, 29 O. S. 291. It cannot grant a route in the al- ternative, leaving the company to choose. Sommers v. Cincinnati, 8 Rec. 612. It is not void because the per- son to whom it is granted is des- ignated as trustee. Simmons v. Toledo, 5 C. C. 124. Grant is not invalid because it covers only part of the route de- scribed in the application. Sim- mons v. Toledo, 5 C. C. 124. Section gives no power to pass an ordinance forbidding cars with- out conductors. Thornhill v. Cin- cinnati, 4 C. C. 354. If grant to street railway fixes the fare and provides that it shall be the rate during the existence of the ordinance, unless the express power to change the fare is reserved, it cannot be changed by the munic- ipal authorities. Cleveland City Ry. v. Cleveland, 12 O. F. D. 635. Grants to street railway com- panies are protected by the provi- sions of the U. S. Constitution against impairment of contracts. lb. Where a street railway company has a franchise in which no pro- vision is made for either single or double trolley system and the com- pany adopts single trolleys, it can- not subsequently be required to change to a double trolley system to avoid injury to public or private property by electrolysis. Dayton v. City Ry. Co., 12 Dec. 258. Effect of changing the proposed route after advertisement for bids. Raynolds v. Cleveland, 24 C. C. 215; 2 C. C. (N. S.) 139. Conditions. — Illegal condition, not separable, renders the whole grant invalid. Cincinnati Street Railway v. Smith, 29 O. S. 291. Construction of a grant contain- ing the condition that the company should keep the streets between its tracks in repair. See Columbus v. St. Railroad, 45 O. S. 98. Ordinance cannot impose condi- tions that the company shall not Code § 29] STREET RAILWAYS 148 exercise one of its corporate pow- ers. Thus a regulation that it shall not carry freight is void. State v. Dayton Traction Co., 18 C. C. 490. A provision requiring arbitration between railway company and its employees held invalid. Raynolds v. Cleveland, 13 Dec. 125; 24 C. C. 215; 2 C C. (N. S.) 139. Requirement that railway com- pany should pave between rails does not make the company liable to the city for any part of damages awarded to property holders for a paving improvement. Street Rail- way v. Dayton, 1 Dayton, 165. Upon failure to comply with the conditions in a grant council may order tracks to be torn up without legal proceedings where an or- dinance contained the words " or if in their opinion expedient have the tracks removed from the street." Stewart v. Ashtabula, 36 B. 46. 1 Where ordinance provides for notice before forfeiture, notice must be given before council can declare rights forfeited. Akron v. Traction & Light Co., 27 C. C. 536; 6 C. C. (N. S.) 445. Ordinance may provide for transfers. Reynolds v. Cleveland, 8 C. C. (N. S.) 278. Rights of grantee. — Where a city council has, by ordinance, le- gally granted to one street railroad the right to construct its railway over a particular part of a desig- nated street, and such company has accepted the grant and taken pos- session of the right of way, such company acquires a vested property right in the nature of a franchise or easement to the particular portion of the street designated in the grant, and such grant carries with it all right of acquisition, occupancy and use of that portion of the street for the purposes for which it was grant- ed so far as consistent with the wel- fare and convenience of the general public. H. G. & C. Traction Co. v. Transit Co., 69 O. S. 402. Another company claiming under a subsequent grant of the council to use the same right of way by strad- dling the tracks of the former com- pany, cannot enter and. take posses- sion of the right of way granted to the first company without appro- priating the right so to do, and pay- ing compensation therefor. lb. A company having grants of sev- eral routes cannot combine any of the streets in such routes into a new route, without a new grant complying with statutes. Horstman v. St. Ry. Co., 14 Dec. 545. Where one company has been granted the right to put down a double track and another the right to put down a single track on same street, a court cannot compel them to com- bine so as to have two instead of three tracks. Hamilton St. Ry., etc., Co. v. Transit Co., 5 C. C. 319. Remedies in case of illegal grants or violations of ordinance. — Injunction pendente lite will not be allowed to prevent railway com- pany from acting under an ordinance claimed to be illegal because an abuse of corporate power of the city, where it appears that the ordinance is beneficial to the city. Ross v. Columbus, 8 N. P. 420. An abutting owner suing in his right as such and not as a taxpayer cannot attack the grant except for want of consents. Glidden v. Cin- cinnati, 30 B. 213; Barney v. Rail- way Co., 30 B. 286. Abutting owner cannot enjoin on ground that street railway is a nui- sance. Dietz v. Traction Co., 4 N. P. 399; Sanfleet v. Toledo, 10 C. C. 460. Courts will not interfere with the discretionary power of council t« 148a THE OHIO MUNICIPAL CODE. [Code § 29 grant the use of streets to any street railway company, if beneficial to the public, in the absence of fraud. Sims v. Street R. R. Co., 37 O. S. 556. It was held a competing railway cannot object to non-compliance with the provisions of §§ 2501, 2502 R. S. Toledo, etc., Ry. v. Toledo Elec. St. Ry., 6 C. C. 362. As to injunction against grant, see further, Buning v. Cincinnati Street Railway, 1 C. C. 323; Cincin- nati St. Ry. v. Smith, 2y O. S. 291; Gallagher v. Johnston, 31 B. 24. As to enjoining contract between two companies for carrying cars over tracks, see Rogers v. Railway Co., 12 Dec. 136. Injunction will lie at suit of a taxpayer to prevent a railway cor- poration from using for purposes not authorized by its grant, rights and privileges in the streets. Rog- ers v. Ry., 12 Dec. 136. So, operation of street railway without authority of law, or under unconstitutional law, may be so en- joined. Horstman v. Street Ry. Co., 13 Dec. 670; 1 *. P. (N. S.) 25; 14 Dec. 545 ; and such operation is a continuing nuisance, and the statute of limitations does not apply. lb. A railway company using a sin- gle trolley system under municipal grant not specifying the system, will not be compelled by a court of equity to change to a double trolley system, because of damage to water pipes, where there is a conflict in the testimony as to whether or not a single trolley system is a proper one for street railways. Dayton v. Railway Co., 26 C. 0. 736; 6 C. C. (N. B.) 41. Liability of railway company for injury to water pipes from single trolley system, see lb. Street railway grant cannot be en- joined unless defects and irregulari- ties in proceedings are plainly juris- dictional, or of such a nature that the equity and justice of the case demand the interference of the court. Sloane v. Ry. Co., 7 C. C. 84. Specific performance is not the proper remedy to compel the com- pany to carry out the terms of its franchise. Matthews v. Traction Company, 25 C. C. 652; 5 C. C. (N. S.) 179 (aff'd 70 O. S. 436). As to whether quo warranto will lie for violation of franchise from municipality, see State ex rel. v. Toledo Ry. & Light Co., 23 C. C. 603; 3 C. C. (N. S.) 285; reversed, 73 O. S. 356. As to when forfeiture of franchise will be granted, see Toledo v. Toledo Ry. & Light Co., 2 C. C. (N. S.) 97; 25 C. C. 441; State ex rel. v. C. M. & L. Traction Co., 5 C. C. (N. S.) 167. As to when court will grant man- datory injunction to compel specific performance of provision for repair in franchises, see Milford v. Trac- tion Company, 26 C. C. 271; 4 C. C. (N. S.) 191 (aff'd 71 O. S. 529). (3) Renewal of grant. — What is. Leave to change the motive power to electricity is not an im- plied renewal. Cincinnati v. Street Ry. Co., 30 B. 321 (affirmed, 52 O. S. 609J. Consolidation into one system and ordinance imposing transfer obliga- tion do not operate to prolong life of any prior grant. Cleveland Elec. Ry. Co. v. Cleveland, 14 O. F. D. 513; 3 O. L. R. 75. Extension of time of grant by im- plication is not favored. lb. Before expiration of grant. — Re- newal may be made before the orig- inal grant has expired. State ex rel. v. East Cleveland Ry., 6 C. C. 318; Cincinnati v. St. Ry., 31 B. 308; Belle v. Glenville, 27 C. C. 181; 5 C. C. (N. S.) 461 (aff'd 73 O. S. 392). Longer than legal. — Renewal for longer period than allowed by law will be valid for the period allow- able. Sommers v. Cincinnati, 8 Re 612. Renewal of grant is a waiver of rights of municipality because of failure of company to lay tracks as provided in original grant. Akron v. Traction & Light Co., 27 C. C. 536; 6 C. C. (N. S.) 445. Consents and competitive bidding. — Consents of abutting owners not necessary in case of renewal of grant. State v. East Cleveland Ry., 6 C. C. 318; Pelton v. East Cleve- land Ry., 22 B. 67. Nor is competi- tive bidding necessary. State v. East Cleveland Ry., 6 C. C. 318; Haskins v. Cin. Consol. Ry., 4 B. 1126. Code § 30] STREET RAILWAYS. 149 Conditions. — Renewal may be fere, even though part of first corn- made on condition that city might pany's business would be taken allow another company to use the away. Broadway, etc., Ry. v. tracks on- terms satisfactory to city. Brooklyn, etc., Ry., 10 B. 72. In such case court will not inter- FORM OF APPLICATION FOR LEAVE TO CONSTRUCT A STREET RAILWAY. APPLICATION. 19 To the Honorable the council of the city [or village] of , State of Ohio : The undersigned hereby request permission to construct, maintain and operate a street railroad in the city [or village] of , State of Ohio, over, along and upon the following streets: (here describe the route) said railroad to consist of a single [or double] track with the neces- sary switches, turnouts, curves, loops, Y's, poles, wires and all other neces- sary fixtures and apparatus and to be operated by electricity or other motive power except steam. And the undersigned respectfully request your honorable board to take the necessary steps required by law to establish said route and grant said permission. Respectfully, Sec. 30. [Proceedings to establish a street railway route; grant not valid for more than twenty-five years.] 1 Nothing men- tioned in section 2501 of the Revised Statutes of Ohio shall be done; no ordinance or resolution to establish or define a street railroad route shall be passed, and no action inviting proposals to construct and operate such railroad shall be taken by the council; and no ordinance for the purpose specified in section 2501 of the Revised Statutes of Ohio shall be passed until pub- lic notice of the application therefor has been given by the clerk of the corporation once a week, for the period of at least three consecutive weeks in one or more of the daily papers, if there be such, and if not, then in one or more weekly papers publish- ed in the corporation ; 2 and no such grant as mentioned in sec- tion 2501 of the Revised Statutes of Ohio shall be made, except to the corporation, individual or individuals, that will agree to carry passengers upon such proposed railroad at the lowest rate 3 150 THE OHIO MUNICIPAL CODE. [Code § 30 of fare, 3 and shall have previously obtained the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, represented by the feet front of the property abutting on the several streets along which such road is proposed to be constructed ; 4 provided, that no grant nor renewal of any grant for the construction or operation of any street railroad, shall be valid for a greater period than twenty-five years from tjie date of such grant or renewal f and after such grant or renewal of a grant is made, whether by special or general ordinance, the municipal corpora- tion shall not, during the term of such grant or renewal, release the grantee from any obligation or liability imposed by the terms of such grant or renewal of a grant. 6 (1) Old section. — Old section 2502 R. S. is practically rewrit- ten here, except that reference to recommendation of a board of pub- lic works or board of improvements is omitted, and a proviso relating to certain grades and classes of cities is also omitted. (2) When publication neces= sary.— The wording of § 2502 R. S. was somewhat different from the present code section. The former read: "Nothing mentioned in the next preceding section [2501] shall be done; no ordinance or resolution to establish or define a street rail- road route shall be passed, and no action inviting proposals to con- struct and operate such railroad shall be taken by the council, ex- cept upon recommendation, etc., and no ordinance for the purpose specified in said preced- ing section shall be passed until pub- lic notice of the application there- for has been given, etc." . Under this language it was held that the operation of the provisions of § 2502 R. S. was restricted to the ordi- nance for the original construction of a street railway, and a publica- tion of notice was therefore not nec- essary, in the case of a renewal of a grant. State v. East Cleveland R. R. Co., 6 C. C. 318, 322; and it was also held that no notice was necessary before the terms and conditions of a grant were made, only the final grant requiring the notice. Ayde- lott v. Cincinnati, 11 C. C. 11. In the new section, by the omis- sion of the reference to the board of improvements, all the clauses of the section up to the words "until pub- lic notice, etc.," are made to apply to the provision relating to notice. Extensions, whether notice re- quired, see C. C. C. & St. L. Ry. Co. v. U. B. & N. Ry. Co., 26 C. C. 180. Sufficiency of publication. — One insertion each week on same day of week for three weeks is suf- ficient. Smith v. Columbus, etc., Ry., 8N.P.1; Simmons v. Toledo, 5 C. C. 124 (aff ' d 30 B. 392, no report. ) See also Early v. Doe, 16 How (U. S.) 610 and cases cited. Under former laws, publication for required time, in one newspaper Code §30] STREET RAILWAYS. 151 was sufficient, even though a general city ordinance required such or- dinance to be published in two newspapers. Simmons v. Toledo, supra. But, as to present requirement, see § 124 of the Code. Estoppel of municipality to deny publication, see Raynolds v. Cleve- land, 8 C. C. (N. B.) 278. Where franchise was granted after publication of notice legally insuf- ficient, council cannot legalize the grant by a curative ordinance de- claring the publication sufficient. Ravnolds v. Cleveland, 8 C. C. (N. S.) 278. (3) Must be to lowest bidder. — The franchise must be given to one who bids the lowest fares and the grant to one who is not such is void. Knorr v. Miller, 5 C. C. 609 (affirmed, 27 B. 64) ; Compton v. Johnson, 9 C. C. 532. Who is lowest bidder. — A bid- der who agreed to charge "the low- est price of commutation tickets in packages" is not the lowest bidder. Cincinnati St. By. v. Smith, 29 O. S. 291. Council cannot disregard the low- est bid on the ground that the mo- tive of the bidder was obstructive and not bona fide. Knorr v. Miller, 25 B. 128; 5 C. C. 609 (affirmed, 27 B. 64) ; every bid is presumed to be in good faith, and the burden is on those who contest it to show the contrary. Gallagher v. Johnson, 31 B. 24; the lowest bid cannot be re- jected as not in good faith if the Didder intends to comply with it and council may investigate the matter to determine whether the bidder does so intend. lb. Council should disregard infor- malities not going to the substance of the bid. Compton v. Johnson, 9 C. C. 532. Council cannot consider that the bid is so low as to be a losing one. Gallagher v. Johnson, 30 B. 139. Irregularities in opening and con- sidering a bid when no time was fixed for the opening and the form of bid was not regulated, are not ground for injunction. Sloane v. People's Electric Kailway, 7 C. C. 84. Bond. — Council may waive bond required by notice inviting bids if no favoritism is intended thereby. Sloane v. People's Electric Railway, 7 C. C. 84. Informality in the bond is no ground for injunction. Simmons v. Toledo, 5 C. C. 124. A bond by one person not men- tioning associates is sufficient, though the bid mention that person and his "associates." Compton v. Johnson, 9 C. C. 532; Gallagher v. Johnson, 30 B. 139. Check deposited by bidder will be held liquidated damages and not a penalty, if franchise is not complied with, and will be forfeited to mu- nicipality, as provided in resolution. Hattersly v. Waterville, 26 C. C. 226; 4 C. C. (N. S.) 242 (aff'd 74 O. S. — ) . When bidding not necessary, — 'Where the grant for part of a street railway route fails because the necessary consents were not ob- tained, the new grant for that por- tion may be made when the consents are obtained, without further bid- ding. Sanfleet v. Toledo, 10 C. C. 460 (affirmed, 54 O. S. 620.) Bidding is not necessary in the case of a renewal of a grant. State ex rel. v. E. Cleveland Railroad, 6 C. C. 318; see also Clement v. City, 16 B. 355 (affirmed Supreme Court, 19 B. 74.) Rights of lowest bidder for a street railway are not enforceable until the franchise ordinance has been passed and its terms and con- ditions accepted. Raynolds v. Cleve- land, 13 Dec. 125; 24 C. C. 215; 2 C. C. (N. S.) 139. Injunction against contract, see Tucker v. Newark, 19 C. C. 1, 3 ; Knorr v. Miller, 25 B. 128; John- son v. West Side St. Ry., 10 B. 345; Mathers v. Cincinnati, 3 B. 709; Johnston v. Cincinnati, 26 B. 223. (4) Consents — Character. — Consents inure to the lowest bidder, no matter for whom obtained. State v. Bell, 34 O. S. 194; Knorr v. Mil- ler, 5 C. C. 609 (affirmed, 27 B. 64) ; Mathers v. Cincinnati, 3 B. 551. Property owner giving consent cannot limit it to any one corpora- tion, and if he does so, the limita- tion is void and the consent inures to the lowest bidder. Railway Co. v. Day, 73 O. S. 83; State ex rel. v. Bell, 34 O. S. 194. As to consents to extensions of street railwavs, however, see section 3339 R. S. and notes, page 704. 152 THE OHIO MUNICIPAL CODE. [Code § 30 Consents do not have to be en- tered on the records of council or be made a part of the ordinance. San- fleet v. Toledo, 10 C. C. 460. They need not be obtained before the calls for bids and need not be to the par- ticular manner of construction. JSloane v. People's Electric Railway, 7 C. C. 84. Consent of abutting lot owners to the construction of a street railroad are not property rights and cannot be appropriated. Hamilton G. & C. Traction Co. v. Parish, 67 O. S. 181. How determine majority. — The majority required is the major- ity of abutting owners on each sepa- rate street. Cable Ry. v. Neare, 54 O. S. 153; but see, also, Rapp v. Cin- cinnati, 12 B. 119. What consents counted, see Sim- mons v. Toledo, 8 C. C. 535, affirmed, 31 B. 367 (agent authorized to use his judgment in signing consent; agent's signature of married wom- an's name in her maiden name; agent signing on oral authority, but see Rapp v. Cincinnati, 12 B. 119; signature of son, having charge of property and owning remainder subject to life estate; trustee hav- ing control over property with full powers) ; Rapp v. Cincinnati, 12 B. 119; Ireton Bros. v. Traction Co., 15 Dec. 129; (person holding life estate under a will ; tenant by cur- tesy or dower ) ; Day v. Railway Co., 27 C. C. 60; 5 C. C. (N. S.) 393 (consent of wife signed by husband with authority; consent signed by agent authorized; consent signed a year before passage of ordinance, but while a similar ordinance pend- ing; consent signed by vendee un- der contract to convey; consent signed by agent without authority, but subsequently ratified ) . Consents not counted, see Sim- mons v. Toledo, supra; Day v. Rail- way, supra (signature of husband for himself and wife when wife is owner) ; Rapp v. Cincinnati, supra; Day v. Railway, supra (husband signing for wife; father signing for daughter; president of corporation signing without authority from board of directors ; guardian signing for minors; executors with power to sell signing) ; Schwab v. Traction Co., 13 Dec. 116 (consent of a mi- nor) ; Sommers v. Cincinnati, 8 Rec. 612 (consent by one not owning the property, though afterward ratified by owner). As to when consent by widow holding dower will be counted, see Schwab v. Traction Co., 13 Dec. 116. Consent by firm may be counted, though property is not used for firm purposes. lb. Consent by telegram was held valid. lb. A tenant in common can be counted for his proportion. Sim- mons v. Toledo, 8 C. C. 535; Ronne- baum v. Railway, 29 B. 338 ; Day v. Railway, 27 C. C. 60. Where owner has consented and afterward sold the property and the buyer does not withdraw signature, it will be counted. Simmons v. Toledo, 8 C. C. 535. But where pur- chaser has no knowledge of previous consent, it is not counted. Day v. Railway, 27 C. C. 60; 5 C. C. (N. S.) 393. Whether council may consent as to municipal property, quere. Rapp v. Cincinnati, 12 B. 119. Conditional consent. — Power of council to act on the consent is not limited by the condition of the con- sent as to the time of the comple- tion of the road. Simmons v. To- ledo, 8 C. C. 535. Consent for a horse railway is not a consent for an electric rail- way. Sanfleet* v. Toledo, 10 C. C. 460. (Affirmed, 54 O. S. 620.) Consent for one track cannot be used where a double track is pro- posed. Roberts v. Easton, 19 O. S. 78. Consent on condition that fran- chise is passed on a particular date is not good if ordinance not passed at that time. Day v. Railway Co., 27 C. C. 60; 5 C. C. (N. S.) 393. Consents for extension of a speci- fied railway not good for original construction of another railway. Day v. Railway Co., 27 C. C. 60; 5 C. C. (N. S.) 393. Consent for construction or ex- tension along a certain route is not consent for another and different route, though passing by same prop- erty. Near v. Mt. Auburn Cable Rj., 29 B. 171; Ireton Bros. v. Traction Co., 15 Dec. 129. But slight departure from route to avoid difficult curves would not invalidate consent. Ireton Bros. v. Traction Co., 15 Dec. 129; 2 N. P. (N. S.) 317. Conclusiveness of council's finding. — Obtaining the proper number of consents is a condition Code §30] STREET RAILWAYS. 153 precedent to the power of council to authorize the railway. And coun- cil's finding that the requisite con- sents have been given is not conclu- sive. .Roberts v. Easton, 19 O. S. 78; Sommers v. Cincinnati, 8 Rec. 012; Day v. Railway, 27 C. C. 60: 5 C. C. (N. S.) 393. But where council has deter- mined that the proper consents were given, the burden is on one denying this. Simmons v. Toledo, 8 C. C. 535. See, also, Cincinnati College v. Nesmith, 2 C. S. C. R. 24; Ireton Bros. v. Traction Co., 15 Dec. 129; 2 N. P. (N. S.) 317. The rule that the presumption is that council acted with sufficient consents before it, does not extend to the validity of any single con- sent, where the validity of such con- sent is attacked; in such case the validity of the consent is to be de- termined as a fact under the ordi- nary rules of evidence; and if the consent is by an agent, authority must be shown. Day v. Railway, 27 C. C. 60; 5 C. C. (N. S.) 393. When necessary. — Extensions or additional switches of existing railway require consents. Harner v. Columbus, etc., Railway, 29 B. 387 ; Chambers v. Traction Co., 27 C. C. 193; 5 C. C. (N. S.) 298 (aff'd 73 O. S. 346 ) . Consents are necessary for a new track, although there is a double track of another company al- ready on the street. Sanfieet v. To- ledo, 10 C. C. 460. So, also, where there is a single track already down and it is desired to lay another track on the same street. Roberts v. Easton, 19 O. S. 78. When not necessary. — Consents held not necessary for a mere tem- porary track, the right to lay such track being a revocable license and not a grant. Mathers v. Cincinnati, 3 B. 709. Consents are not neces- sary in the case of a renewal of the grant. State v. East Cleveland R. R. Co., 6 C. C. 318. Consents are not necessary where one company is ap- propriating the use of parts of the tracks of another company. Consol- idated Street Railway v. Toledo Street Railway, 6 N. P. 537; State v. Electric Street Railway, 19 C. C. 79. Purchased consents. — Consents of the property owners or withdraw- al of such consents may be properly induced by the payment of consider- ation. Cleveland v. Railway Co., 3 C. C. (N. S.) 563; 23 C. C. 373. "There is no public policy in this state against giving such consent for a valuable consideration, moving from the street railway to such lot owner." Hamilton G. & C. Traction Co. v. Parish, 67 O. S. 181; see, also, Makemson v. Kaufl'man, 35 O. S. 444. Withdrawal of consents. — See § 3439a (page 705), relating to withdrawal of consents. And see Hamilton G. & C. Traction Co. v. Parish, 67 O. S. 181. Right of action for want of consents. — Where council grants the right to construct a railroad without the consent of abutting own- ers as required by statute, such own- ers may enjoin the construction of the road. Roberts v. Easton, 19 O. S. 78. Whether quo warranto would lie because of failure to secure con- sents, see State v. Railway Co., 19 C. C. 79. Injunction for want of consents can be brought only by abutting property owner. Action will not lie by taxpayer as such. Simmons v. Toledo, 5 C. C. 124; Sommers v. Cincinnati, 8 Rec. 612; Harrison v. Mt. Auburn Cable Rail- way, 17 B. 265; Glidden v. Cincin- nati, 30 B. 213; Hamilton v. C. & H. Street Railroad, 5 N. P. 457. Abutting owner can complain only for the want of consents on his own street. Glidden v. Cincinnati, 30 B. 213; Mathers v. Cincinnati, 3 B. 709; Barney v. Railway, 30 B. 286. Motive of plaintiff in bringing ac- tion is not material. Hamilton G. & C. Traction Co. v. Parish, 67 O. S. 181. And it can make no difference whether his right is clear or not, only so that it exists. lb. (5) Period of grant. — Renewal of grant for period longer than that allowed by law held valid for legal period. Sommers v. Cincinnati, 8 Rec. 612. Unlimited grants made prior to statutory limitation held perpetual. State ex rel. v. Columbus Ry. Co., 1 C. C. (N. S.) 145; 24 C. C. 609; but see 73 O. S. 363. But such grants are subject to revocation by legislature. lb. (6) Release from obligation. — Such a section as this forbids any release by municipal authorities of amount due the city under its street railway grant, and neither the principles of account stated nor of accord and satisfaction based upon a 154 the ohio municipal code. [Code § 30 less amount than that actually due the terms of a grant. Clement v. have any application. Cincinnati City, 16 B. 355. (Affirmed in Su- St. Railway Co. v. Cincinnati, 8 N. preme Court, 19 B. 74.) There is P. 80. nothing to prevent a city council But a provision such as this and a street railway company from would not prohibit municipal cor- terminating a grant by agreement poration from changing the rate of previous to its expiration, for good fare upon proper consideration. St. cause, and renewing the grant. Ry. v. Cleveland, 12 0. F. D. 635. State v. E. Cleveland Railroad Co., Better accommodation would be a 6 C. C. 318. consideration for the modification of FORM OF RESOLUTION ESTABLISHING ROUTE AND AUTHORIZING ADVERTISEMENT FOR BIDS. RESOLUTION. . Be it resolved by the council of the city [or village] of ., State of Ohio, that the application of , ( here insert name of company or individual) for a grant and permission to construct, maintain and operate a street railroad in the city [or village] of , State of Ohio, on the route hereinafter described, be received and placed on file and, Be it resolved, that there is hereby established a street railroad route in the city [or village] of over, along and upon the fol- lowing streets (here define the route) upon which route there may be main- tained and operated a single [or double] track street railway with the neces- sary switches, turnouts, curves, loops, Y's, poles, wires and all other necessary fixtures and apparatus, and to be operated by electricity or other motive power except steam, and to be furnished and equipped as a first class street railway, as may be more particularly provided for in the ordinance making the grant to the successful bidder therefor; and, Be it resolved, that the grant for the operation of such street railroad over the route herein established shall be for a period of years (not more than 25 years) and, Be it resolved, that a grant for the above period over said route shall be made to the individual, individuals or company which shall agree to carry passengers over said route and from and to all points thereon for the lowest rates of fare and, Be it resolved, that the clerk of the city [or village] be and he is hereby instructed and directed to give notice by publication of the said application of (here insert name of applicant) as required by law, and in said notice to invite bids for the construction, maintenance and ope- ration of a street railroad over said route in accordance with the terms and conditions of this resolution. Passed ,19 Attest: Clerk. President of Council. Code § 30] STREET RAILWAYS. 155 FORM OF ADVERTISEMENT INVITING BIDS FOR STREET RAIL- WAY GRANTS. LEGAL NOTICE. City [or village] of , Ohio. Notice is hereby given that on the day of , 19 ... , application was made to the council of , by , for permission to construct, maintain and operate a street railroad within said city [or village] over, along and upon the following streets, to- wit: (here describe route) and, That a street railroad route over, along and upon the above named streets has been established in the manner provided by law, upon which route there may be constructed, maintained and operated for a period of years a single [or double] track street railroad operated by electricity or other motive power except steam, and subject to the terms and conditions provided in the resolution establishing said route and directing this advertisement, on file in the office of the clerk of the city [or village] of , State of Ohio ; and That bids will be received up to 12 o'clock noon, , 19..., for the construction, maintenance and operation of a street railroad over said route, subject to the terms and conditions set forth in said resolution and for the lowest rate of fare for transporting passengers along and over said route. Clerk. President of Council. FORM OF STREET RAILWAY GRANT. Ordinance No Granting leave and permission to to construct, maintain and operate a street railroad over, along and upon certain streets in the city [or village] of , State of Ohio, Whereas, on the day of , 19 . . . , made application in writing to the council of the city [or village] of , State of Ohio, for the right to construct, maintain and operate a street railroad over, along and upon certain streets in the city [or village] of , State of Ohio, hereinafter specifically set forth and, Whereas, on the day of , 19. . . ., -« resolution was duly passed establishing a street railway route over such streets and notice of the establishment of said route and of said application was duly pub- lished according to law, and, Whereas, [naming grantee] has made a bid for said route, which said bid offers rates of fare which are the lowest rates bid, and has previously obtained the written consent of a majority of the property holders upon each of the said streets or parts thereof on the line of the said proposed railroad represented by the feet front of the property abut- ting thereon; 156 THE OHIO MUNICIPAL CODE. [Code § 31 Now therefore, be it ordained by the council of the city [or village] of , State of Ohio. Sec. 1. That said (naming grantee) its successors and as- signs be and are hereby granted the right and permission to construct, maintain and operate a single [or double] track street railway to be ope- rated by electricity or other motive power except steam, with the necessary switches, turnouts, curves, loops, Y's, poles, wires and all other necessary fixtures and apparatus, over, along and upon the following streets in the city [or village] of , viz: (here insert descrip- tion of route). Sec. 2. (Describe character of construction and equipment, agreements as to repairs of streets and other special requirements desired.) Sec. 3. This grant shall remain in force for the period of years from and after its acceptance by (name of grantee) . Sec. 4. This ordinance shall take effect and be in force from and after the earliest period allowed by law and after the filing with the city [or village] clerk, of the written acceptance thereof by (name of grantee). Passed ,19 Attest: Clerk. President of Council. Sec. 31. [Vested rights and contracts already entered into not to be impaired or enlarged by this act; certain unexpired fran- chises are hereby regranted.] Nothing herein contained shall be construed to impair the rights of abutting property owners, where unnecessary or additional burdens are placed upon the streets by operation of any grants herein authorized to be made, and nothing in this act, or any part thereof, shall be construed to impair or enlarge the rights of any corporation now using the streets of any municipality in the state under authority of any law now or heretofore in force ; but all unexpired grants of rights or franchises heretofore made by any municipality, in accordance with the provisions of any statute or act of the gen- eral assembly existing at the time when they were made, and which have been accepted and where money has been expended in good faith on account thereof, are hereby regranted for such unexpired portion of the respective periods of the original grants in accordance with the terms and conditions of the same ; any law, or part of law, to the contrary notwithstanding. 1 Code § 32] taxation, levy of taxes. 157 (1) Validating grants.— See, as to curative statute validating ultra vires grants of a municipality, Mill- creek Valley St. Ry. v. Carthage, 18 C. C. 216; see, also, Hume v. Trac- tion Co., Cincinnati Ct. Index, Aug. 1, 1902; Kumler v. Silsbee, 38 0. S. 445 ; State v. Hoffman, 35 0. S. 435. Knorr v. Miller, 5 C. C. 609 (aff'd 27 B. 64, 187). The latter part of this section was held unconstitutional in Horstman v. St. Ry. Co., 1 N. P. (N. S.) 25; 13 Dec. 670. Fourth. Taxation. (a) Levy of Taxes; Restrictions. Sec. 32. [Power of council to levy and collect taxes.] 1 The council of every municipal corporation shall have power to levy and collect taxes upon all the real and personal property within the corporation for the purpose of paying the expenses of the corporation, constructing all improvements authorized, and ex- ercising all the general and special powers conferred by law. 2 (1) Old sections, 2262, 2263, 2682, 2683, 2684 R. S., repealed. For taxation in hamlets, see § 2681 R. S. in Part II. (2) No inherent power to tax. ■ — A municipal corporation has not the inherent power to tax. It can exercise this power only when clear- ly delegated to it by statute. Mays r. Cincinnati, 1 O. S. 268; and it is "strictly limited to the manner of exercise which the statutes provide. Reed v. Toledo, 18 O. 161, 166. Public purpose — Legislative discretion. — Taxes should be levied only for those purposes which prop- erly constitute a public burden. But what is for the public good and what are public purposes and what properly constitutes a public bur- den are questions which the legis- lature must decide upon its own judgment and in respect to which it is vested with a large discretion which cannot be controlled by the. courts, except, perhaps, where its exercise is clearly evasive, and where, under pretens? of lawful authority, it has assumed to exer- cise one that is unlawful. Walker v.. Cincinnati, 21 O. S. 14, 41; and the power of the legislature to auth- orize local taxation cannot be ju- dicially denied on the ground that the purpose for which it is exercised is not local unless the absence of all local interest is clearly apparent. Walker v. Cincinnati, 21 O. S. 14; State v. Trustees, 20 O. S. 362. Payment of debts. — It is a general principle of municipal law that where a power is granted to a mu- nicipality to incur indebtedness, a commensurate power to levy the necessary tax to discharge the in- debtedness, is implied. Sec. 2683 R. S. was held to confer power to levy a tax sufficient to satisfy a valid public debt. United States v. Kent, 12 O. F. D. 422; and it is no defense to an action to compel the municipality to pay the inter- est on bonds issued by it, that it needs all the money it is allowed to raise by statute, to pay its general current expenses. lb. For natural gas toorks. — Supply- ing the city with natural gas is a 158 THE OHIO MUNICIPAL CODE. [Code § 33 public use for which the taxing power may be exercised. State ex rel. v. Toledo, 48 0. S. 112. Uniformity — Annexed territory. — A tax to pay bonds of a vil- lage annexed to a city levied on the annexed territory alone, is not void for want of uniformity. Cleveland v. Heisley, 41 0. S. 670. As to levy of municipal tax upon territory newly annexed to the mu- nicipality, see State v. Craig, 21 C. C. 13. An incorporated village is the proper party on whose relation an action for a writ of mandamus may be maintained to compel the county auditor to place the municipal tax upon property newly annexed to the village. State v. Craig, 21 C. C. 13. General and special statutes. — See Findlay Gas Light Co. v. Find- lay, 2 C. C. 237; Dunham v. Opes, 3 C. C. 274, relating to power of council under the former general statutes relating to taxation, where there were special statutes covering the case for which the power to tax was exercised. Distinction between tax and local assessment. — See Hill v. Higdon, 5 0. S. 243; Reeves v. Treas. Wood Co., 8 O. S. 333; Ses- sions v. Crunkilton, 20 O. S. 349; Ridenour v. Saffin, 1 H. 464. Distinction between tax and license fee, see Mays v. Cincinnati. 1 O. S. 268; Baker v. Cincinnati, 11 0. S. 534 ; Marmet v. State, 45 0. S. 63; Cincinnati v. Bryson, 15 O. 625. Sec. 33. [Maximum of municipal taxes allowable in munici- palities.] 1 The aggregate of all taxes levied by any municipal corporation, exclusive of the levy for county and state purposes, for schools and schoolhouse purposes, for free public libraries and library buildings, for university and observatory purposes, for hospitals, and for sinking fund and interest, on each dollar of valuation of taxable property in the corporation on the tax list, shall not exceed in any one year ten mills. 2 (1) Old sections.— See old §§ 2682, 2683, 2689, 2689a, 2689a (2), 2689&, (2689-1) R. S., all repealed. (2) What taxes included in ag- gregate amount allowed. — Under the provisions of old § 2684 R. S., the limitation as to amount of taxes did no.t include special as- sessments. In the above § 33 of the Code, special assessments are not expressly excluded, though on gen- eral principles, assessments, not be- ing strictly a tax, would not be included in the amount of taxes allowable. See Hunter v. Austin, 9 C. C. 583. Taxes raised on the general levy for street improvement were former- ly held to be included in the total. State ex rel. v. Strader, 25 O. S. 527, but taxes levied to pay bonds issued for the corporation's part of a street improvement are now specially ex- cepted by § 53 of the Code. Whether taxes in excess of the amount here authorized could be levied to pay the debts of a munici- pal corporation in the absence of Code §§ 34, 35] taxation, estimates and reports. 159 any provision in the statute to that effect, see U. S. v. Kent, 12 O. F. D. 422. Taxes levied by the City of Cin- cinnati to pay interest on South- ern Railway bonds were held to be included in the aggregate amount al- lowed by statutes then in force. State v. Humphreys, 25 O. S. 520. Under former statutes taxes lev- ied on territory of a village an- nexed to a city, to pay bonds of the village for improvements, were held to be included in the aggregate amount allowed the village. Cleve- land v. Heisley, 41 O. S. 670. And this was so even though the law requiring general levy for certain parts of street improvement (street intersections) referred to improvement already ordered. To- ledo v. Toledo, 22 B. 131. But where a statute authorizes a tax for a special purpose, this may be in addition to the limit fixed by the general statute. Hunter v. Aus- tin, 9 C. C. 583. And see Walsh v. Sisler, 20 C. C. 264. Effect of ordinance levying ex- cess. — An ordinance levying a tax in excess of the statutory limit or after the limit has been exceeded is wholly void. Cummings v. Fitch, 40 O. S. 56; but ordinance levying an additional tax after limit is reached, though void, does not af- fect an ordinance for tax before limit reached. Cummings v. Fitch, 40 O. S. 56 ; but an ordinance levying an amount in excess of the limit is not good up to the statutory limit, but is void both as to the amount beyond the limit and the amount within the limit. Cleveland v. Heis- ley, 41 0. S. 670. As to duty of county auditor and council where municiapl tax levy exceeds limit, see § 40 of the Code. Sec. 34. [When greater tax may be levied ; submission of ques- tion to vote.] 1 A greater tax than that authorized herein may- be levied by the council of any municipal corporation for any purpose for which such corporation is authorized to levy taxes, if the proposition to make such additional levy shall be first submitted to a vote of the electors of the corporation under an ordinance prescribing the time, place and manner of voting on the same, and approved by two-thirds of those voting on the proposition. 2 (1) Old Section 2687, R. S. re- Gas Light Company v. Findlay, 2 pealed. C. C. 237; Dunham v. Opes, 3 C. C. (2) Section 2687 cited, Findlay 274. Sec. 35. [Heads of departments to report estimates to mayor and auditor or clerk.] 1 On or before the first Monday in March of each year the several officers, boards and departments in every municipal corporation, shall report an estimate, in itemized 160 the ohio municipal code. [Code § 35 form, to the mayor and auditor or clerk of the corporation, stat- ing the amount of money needed for their respective wants for the incoming year and for each month thereof. 2 (1) Old sections.— See old § The provisions of § 2690a to 2690i R. S., repealed; and see § 37 2690a, requiring estimates, were infra. held mandatory, so far as any niu- (2) Provision mandatory. — nicipal expenditure -is concerned, in Provisions such as these requiring Stem v. Cincinnati, 6 N. P. 15. But estimates by officers and boards be- whether failure to observe them fore appropriations are made, are would affect the validity of a tax mandatory and expenditure of the levy, query in Stem v. Cincinnati, .city funds without such previous es- 6 N. P. 15. timate may be enjoined. Ampt v. Cincinnati, 5 N. P. 98. ORDER OF PROCEDURE IN MUNICIPAL TAX LEVIES AND APPROPRIATIONS. The fiscal year in each municipality begins January first and ends December thirty-first. (§ 42 of the Code.) The various steps to be taken by municipal officers can be clearly understood only by bearing this fact in mind. The order of procedure in municipal tax levies and appropriations is as follows: THE TAX LEVY. 1. Estimates for succeeding fiscal year, to be furnished to the mayor and auditor or clerk by the heads of the various departments, on or before the first Monday in March, stating the amount of money needed for their respective wants for the next fiscal year, beginning January first, and for each month thereof. (§ 35 of the Code.) Note. — The language used in the section is " the incoming year," but since these estimates are the basis for the budget and tax levy designed to furnish money for the next fiscal year, the " incoming year " referred to in the section must be the next fiscal year. 2. Estimates for year beginning April first, to be furnished to the mayor and auditor or clerk by the heads of the various departments, on or before the last Monday in March, stating the amount of money needed for their respective wants for each month. (§ 37 of the Code.) Note. — This section does not appear in the bill as passed by the senate, but was inserted to accomplish the same purpose, apparently, as § 35 above, and would do so but for the inconsistency in requiring the estimates to be made for a year beginning April 1, instead of for the succeeding fiscal year beginning January 1. There is no necessary conflict, however, in furnish- ing the estimates required both by § 35 and § 37, and the latter would serve the special purpose of affording comparison between immediate and anticipated needs as well as the source and amount of balances or defi- ciencies which may be expected in the several funds at the close of the current fiscal year. Code § 36] TAXATION. ESTIMATES AND REPORTS. 161 3. Auditor's or Clerk's Statement, furnished the mayor and council and each member thereof, on or before the first Monday in April, showing (1) balances at end of last fiscal year, (2) monthly expenditures out of each fund and out of all funds for the preceding fiscal year, (3) annual expenditures from each fund for each of the last five fiscal years, and (4) monthly average of expenditures from each fund for the preceding fiscal year and total monthly average from all funds for the five preceding fiscal years. ( § 36 of the Code. ) 4. The Annual Budget, submitted to council by the mayor on the first day of April, based upon the annual estimates furnished him by the departments. The items of any of these the mayor may revise and change, but he may not increase the total of any such estimate. The budget should show the needs of the several municipal departments for the succeeding fiscal year, and may conveniently be in the form of a message from the mayor, submitting to council a proposed ordinance for the annual tax levy. ( § 38 of the Code. ) 5. Tax Levy Ordinance, passed by council, after examining and revising, the budget. It should fix the percentage or rate of taxes to be levied for the several municipal purposes allowed by law. (§ 39 of the Code.) 6. Submission to Tax Commissioners of tax levy ordinance. (§§39 and 49 of the Code.) 7. Submission to Mayor for approval. The ordinance as approved by the Tax Commission, or as passed over its rejection by council, should be submitted to the mayor for approval. If the mayor disapproves the ord- inance it may be passed over his veto by a two-thirds vote of council. (§ 125 of the Code.) 8. Publication of Ordinance in the manner required by § 124 of the Code and the statutes therein referred to. 9. Certification to County Auditor on or before the first Monday in July, the rate of taxes levied by the municipality. (§ 40 of the Code.) THE SEMI-ANNUAL APPROPRIATIONS. 1. Appropriating Ordinance for first six months of fiscal year must be passed at the beginning of the year, making detailed appropriations of the moneys in the treasury (or estimated to come in during the six months) for each of the several objects for which the municipality has to provide, and dividing the same among all the various funds for said six months. Council may also in this ordinance set apart such sum as it may deci : proper as a " contingent fund " to provide for deficiencies in any of the regular funds which may, by any unforseen emergency, occur during the six months. The ordinance should be published, as one of a general nature. (§§ 43, 122 and 124 of the Code.) 2. Appropriating ordinance for second six months of fiscal year, must be passed at the beginning of the second half of said year, and the same formalities observed as above. Sec. 36. [Statements to be furnished by city auditor and vil- lage clerk.] 1 On or before the first Monday in April of each 162 the ohio municipal codb. [Code § 37 year the auditor of every city and clerk of every village shall furnish to the mayor and council and to each member thereof, the following statements, which council may require to be printed : 2 1. A statement showing the balance standing to the credit or debit of the several funds on the balance sheet of the corpora- tion at the end of the last fiscal year immediately preceding said first Monday of April. 2. A statement showing the monthly expenditures out of each fund in the twelve months, and the monthly expenditures out of all the funds in the twelve months of the fiscal year immediately preceding said first Monday of April. 3. A statement showing the annual expenditures from each fund for each year for the five fiscal years immediately preced- ing said date. 4. A statement showing the monthly average of such expend- itures from each of the several funds for the preceding fiscal year, and also the total monthly average from all of them for the ^ye preceding fiscal years. 3 (1) Old section. — See § 2690f. ments mentioned in this section. R. S., repealed. But council may require them to be (2) The requirements of § 124 of published as well as printed. Opin- the Code should not be construed as ion of Attorney-General on file i r making it compulsory upon munici- his office, dated Dec. 3, 1902. pal authorities to publish the state- ( 3 ) See notes to § 35, supra. Sec. 37. [Reports to mayor and council; heads of department* to report estimates to mayor and auditor.] The directors and officers provided for in this act shall upon request forthwith furnish to' the mayor or council any information desired in relation to the affairs of their respective offices. To enable the mayor to make up his annual budget, it shall be the duty of each director or board and of each officer provided for in this act, on or before the last Monday in March of each year, to make and Code § 38] taxation, annual budget. 163 file with said mayor, and also with the auditor, a carefully pre- pared and itemized estimate of the amount of money needed in such department or office for all purposes for the ensuing year, beginning on the first day of the next April, 1 said estimate to be given for each month. ( 1 ) See notes and order of proce dur* under § 35 supra. Sec. 38. [Mayor's report to council; annual budget; how made up, etc.] 1 The mayor shall communicate to council from time to time, a statement of the finances of the municipality and such other information relating thereto and to the general condition of the affairs of the municipality as he may deem proper or as may be required by council. He shall on the first day of April of each year submit to council the annual budget 2 of current expenses of the municipality, any item of which may be reduced or omitted by council, but council shall not increase the total of said budget. In the making of such annual budget, the mayor shall have power to revise and change any and all items in the annual estimates furnished to him by the directors and officers of the municipality as prescribed in this act, but said mayor shall not have power to increase the total of any such estimate when including the same in his annual budget to council. He shall on said date, and at such other times as he may deem ex- pedient, report to council concerning the affairs of the corpora- tion, and make such recommendations to council as he may deem proper for the welfare of the municipality. [Board of examiners; appointment, qualifications, duties, etc.] He may at any time appoint competent, disinterested persons, not exceeding three in number, not more than two of whom shall be of the same political party, to examine without notice the affairs of any department, director, officer or employe in the city government, for the purpose of ascertaining facts ; in connection with such examination, the mayor or such appointees shall have 164 the ohio municipal code. [Code §§ 39, 40 full power to compel the attendance and testimony of witnesses, to administer oaths and to examine such persons as they shall deem necessary, and to compel the production of books and papers; and the result of such examination shall be recorded in the office of said mayor and shall also be transmitted by him to the council without delay and the council shall give to said examiners reasonable compensation for such services. ( 1 ) Old sections. — See old § ( 2 ) See notes and order of pro- 2690i R. S. repealed, and see § 1750 cedure under § 35 suprz. R. S. not repealed. Sec. 39. [Duty of council as to examination, etc., of annual budget; duty of board of tax commissioners.] 1 The council shall examine and revise the annual budget submitted by the mayor as provided in the next preceding section of this act, and after it shall have determined by ordinance the percentage to be levied for the several purposes allowed by law upon the real and per- sonal property in the corporation returned on the grand duplicate the same shall be submitted by the council to the board of tax commissioners hereinafter provided, which board of tax com- missioners shall examine and return same to the council within ten days, as provided by law, together with such suggestions and recommendations as it may deem proper. 2 (1) Old sections.— Compare §§ Amjlt v. Cincinnati, 21 B. 216 and 2690a, 2690c, R. S., special acts, re- could reject any or all the levy, pealed. but could not increase it or modify (2) Changes in levy by com- it. Ampt v. Cincinnati, 4 C. C. 253. missioners. — Under the former See § 49 of the Code; and notes special act (2690gr R. S.) the tax and order of procedure under § commissioners could exercise a veto 35, supra. power over the levy by council. Sec. 40. [Percentage of tax to be certified to county auditor; his duty thereupon.] 1 Council shall cause to be certified to the auditor of the county, on or before the first Monday in July, 2 annually, the rate of taxes levied by it on the real and personal Code § 40] taxation, certification and collection. 165 property in the corporation returned on the grand duplicate, who shall place the same on the tax list of the county in the same manner as township taxes are by law placed thereon, 3 the ordinance prescribing the levy shall specify distinctly each and every purpose for which the levy is made and the per cent, thereof, and the county auditor if he finds that the tax levy certified to him by the council of any city or village exceeds the aggregate limit allowed by law, shall have no authority to place the same on the tax list and the levy for such municipal corpora- tion shall not be valid or collectible against any real or personal property in the corporation. If such tax levy is in excess of the limit allowed by law then the auditor shall immediately notify the council making such levy and council shall within ten days after the receipt of such notification revLe its levy so as to bring it within the law. ( 1 ) Old section. — See old § was held to be directory in Gates v. 2691 R. S., repealed. Beckwith, 2 W. L. M., 589. (2) Provision directory. — The (3) Annexed territory. — Levy requirement of certification at or be- of tax on annexed territory after fore the time fixed in the statute annexation. See State v. Craig, 21 C. C. 13. FORM OF ORDINANCE LEVYING TAXES FOR MUNICIPAL PURPOSES. Ordinance No To Levy Taxes for Municipal Purposes for the Year 19. . .. Be it ordained by the council of the city [or village] of State of Ohio: Sec. 1. That there be levied and collected for municipal purposes for the year 19... on each dollar of valuation of the real and personal property within the city [or village] of , returned on the grand duplicate and subject to taxation mills (not exceeding ten mills). See. 2. That the levy above authorized for municipal purposes be and the same is hereby apportioned as follows: MILLS fleneral purposes '.,..... Police Department , . Fire Department 166 the ohio municipal code. [Code § 41 Health Department Parks Street Improvements and repairs Lighting the corporation , Etc., Etc. (These items may be further extended to embrace all objects not desired to be included under " general purposes." ) Total (not exceeding 10 mills) Sec. 3. That there be levied and collected on each dollar of the property aforesaid for the year 19. . . the following additional sums: MILLS For schools and school houses Free public libraries and library buildings University and observatory Hospitals Sinking fund and interest Total . Grand Total (The additional levies are for those purposes not included within the ten mill limit of § 33 of the Code. They may be used where applicable, and itemized to suit the requirements of the municipality. ) Sec. 4. That the clerk is hereby directed to certify the above levies to the auditor of county, to be placed on the tax list and collected according to law. Sec. 5. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed , 19 Attest : Clerk. President of Council. Sec. 41. [Corporation taxes; how collected; duty of corpora- tion treasurer.] 1 The taxes of the corporation shall be collected by the county treasurer and paid into the treasury of the corpo- ration in the same manner and under the same laws, rules and regulations as are or may be prescribed for the collection and paying over of state and county taxes ; and the corporation treas- urer shall keep a separate account with each fund for which taxes are assessed, which account shall be at all times open to public inspection. Unless expressly otherwise provided by law, all money collected or received on behalf of the corporation shall be promptly deposited in the corporation treasury in the appro- priate fund, and the treasurer shall thereupon give notice oil Code §§ 42, 43] taxation, appropriations. 167 such deposit to the auditor or clerk; and unless otherwise pro- vided by law no money shall be drawn from the treasury ex- cept upon the warrant of the auditor pursuant to an appropria- tion by council. 2 (1) Old sections. — See old §§ vided. — If no special mode of col- 2690, 2692 K. S., repealed. lecting a tax is provided, where (2) In villages there are no power is given to collect, council auditors, but the clerk of the village would have authority to prescribe is the proper person upon whose the mode by ordinance. Cincinnati warrant money is to be drawn from v. Gwynne, 10 O. 192; Cincinnati the treasury. See § 201 of the Code. v. Bank, 14 0. 605. Collection where no mode pro= Sec. 42. [Fiscal year.] 1 In all municipal corporations the fiscal year of each office, board and department shall terminate on the thirty-first day of December, in each year, and all ac- counts shall be closed on that day, and all annual reports re- quired by law shall be made for the year terminating on that day. 2 ( 1 ) Old section. — Compare old sactions up to and including the § 1545 R. S., repealed. 31st day of December of each year. (2) The fiscal year under the Opinion of attorney-general on file new Code expires with the 31st day in his office, dated Dec. 3, 1902. See of December and the annual state- "order of procedure" under § 35, ments required in various sections > supra. of the Code to be made, include tran- Sec. 43. [Council to make appropriations at beginning 1 of each fiscal half year; unexpended appropriations or balances shall re- vert to fund from which taken; transfer of funds; contingent fund.] 1 In all municipal corporations council shall make, at the beginning of each fiscal half year, appropriations 2 for each of the several objects for which the corporation has to provide, 3 out of the moneys known to be in the treasury, or estimated to come into it during the six months next ensuing from the collec- tion of taxes and all other sources of revenue. All expenditures within the following six months shall be made with and within 168 THE OHIO MUNICIPAL CODE. [Code § 4^5 said appropriations and balances thereof. All unexpended ap- propriations or balances of appropriations remaining over at the end of the year and all balances remaining over at any time after a fixed charge shall have been terminated by reason of the object of the appropriation having been satisfied or abandoned, shall revert to the funds from which they were taken and they shall then be subject to such other authorized uses as council may de- termine ; provided, that councils of cities or villages may at any time, by the votes of three-fourths of all the members elected thereto, and the approval of the mayor/ transfer all or a portion of one fund or a balance remaining therein, to the credit of one or more funds, but there shall be no such transfer except among funds raised by taxation upon all the real and personal property in the corporation, and no such transfer shall be made until the object of the fund from which the transfer is to be effected has been accomplished or abandoned. 5 In making the semi-annua] appropriations and apportionments herein required council shall have authority to deduct and set apart out of any moneys not otherwise appropriated such sums as it shall deem proper as a contingent fund to provide for any deficiency in any of the de- tailed appropriations so to be made, which deficiency may law- fully and by any unforseen emergency 6 happen, and such con- tingent fund or any part thereof may be expended for any such emergency only by an ordinance passed by two-thirds of all the members elected to council and approved by the mayor, and any balance remaining in such contingent fund at the end of the fiscal year shall thereupon become a part of the general fund to be again appropriated as other moneys belonging to the corpora- tion ; provided, that the provisions of this section shall in no way interfere with the provisions of an act entitled " An act to further provide for the transfer of public funds," passed May 6, 1902. (95 O. L., 371.) Code § 43] TAXATION. APPROPRIATIONS. 169 (1) Old sections.— Compare old § 2690/i R. S., a special act, re- pealed. (2) Detailed and specific ap- propriations. — Former statutes for certain cities required the appropri- ations to be "detailed and specific." Under such provisions it was held that the expenditures must be classi- fied and appropriation in a lump sum would not be compliance with the statute. Ampt v. Cincinnati, 5 N. P. 98. Former section 1693 R. S. also required that every ordinance appro- priating money should contain an explicit statement of the uses and purposes for which the appropria- tion was made. (See Stem v. Cin- cinnati, 6 N. P. 15, 19; Knauss v. Columbus, 13 Dec. 200.) The present section omits the words "detailed and specific," and section 122 of the Code, which su- persedes § 1693 R. S., also omits the requirement of an explicit state- ment in appropriating ordinances, but that such ordinances should spe- cifically state the several purposes for which money is appropriated is shown by the requirement as to contingent fund ordinances in § 43 above, that they are to supply de- ficiencies in any of the "detailed ap- propriations so to be made." (3) Purposes of appropriation. — Entertainment of public guests is not a legal object for the appro- priation by a city of its funds raised by taxation. Stem v. Cincin- nati, 6 N. P. 15; Moore v. Hoffman, 2 C. S. C. R. 453. (4) Passing over mayor's veto. — Under former statute 2690ft R. S. an appropriation from the contin- gent fund, not approved by the mayor, could be passed over his veto; but under the present section the mayor's approval would be es- sential, and passing an appropria- tion over his veto would not be an equivalent. See State v. Brown, 8 C. C. 103. (5) Transfer of funds. — Trans- fer from one department to another department of the same fund was held to be forbidden under former statutes. Stem v. Cincinnati, 6 N. P. 15. (6) Unforeseen emergency. — A contemplated improvement deferred for want of funds is not an unfore- seen emergency within a provision such as this. Ampt v. Cincinnati, 1 N. P. 379. To make a case within the mean- ing of a provision such as this, something unforeseen shall happen affecting the object for which the specific appropriation is made and which, by requiring an unexpected expenditure of money appropriated to that particular object, has caused or will cause a deficiency in the ap- propriation. Ampt v. Cincinnati, 1 X. P. 379. Whether the determina- tion of council in the ordinance that an emergency did exist is final, see Ampt v. Cincinnati, 1 N. P. 379, 382. Increase in legitimate municipal expenditures required by reason of, a Grand Army encampment, which- event was not decided upon until after the estimates for the year were made up, was held to be payable out of the contingent fund. Stem v. Cincinnati, 6 N. P. 15. 170 the ohio municipal code. [Code § 43 " An act to further provide for the transfer of public funds." [Sec. 1.] [Transfer of public funds.] That the county com- missioners of any county, infirmary directors of any county or municipality, the township trustees of any township, the board of education of any school district, the council or other board or body having the legislative power of any municipality and the trustees of any hamlet, shall have power to transfer the public funds under their respective supervision, from one fund to another, in the manner hereinafter provided, which shall be an additional procedure to all other now provided by law. [Sec. 2.] [Petition to be filed in Common Pleas Court; notice of filing, etc.; hearing and decree of court; costs; appeal.] When- ever a majority of officers or of the members of any board afore- said named desire to transfer any fund to any other fund, or to a new fund to be created, under their respective supervision, and a resolution of such officers or board shall have been duly passed declaring the necessity therefor, such officers or board shall file a petition in the Court of Common Pleas of the county in which such funds are held, in which shall be set forth the name and amount of the fund, and the fund or funds to which it is desired to be transferred, a copy of said resolution and a full statement of the proceedings pertaining to its passage, and the reason or necessity for such transfer, and upon such petition being filed, the petitioner shall cause notice of the filing of said petition, the objects and prayer thereof, and of the time when said petition will be for hearing, to be given by one publication in two news- papers, of opposite politics, having a general circulation in the territory to be effected by such transfer of funds, preference to be given to such newspapers as are published within such terri- tory, but if there shall be no such newspapers published or hav- ing a general circulation within such territory, then such notice shall be given by posting the same in ten of the most conspicuous places within such territory for such period of four weeks: said petition may be heard at the time stated in said notice, or as soon thereafter as it shall be convenient for the court to hear the same, but said cause shall be heard, upon request of the petitioners, in preference to all other cases on the docket. Any person or persons objecting to the prayer of such petition, shall file their objections in said cause on or before such time fixed in said notice for hearing, and they shall be entitled to be heard. If, upon the hearing, the court shall find that the notice has been given, as herein required, that the petition states sufficient facts, and that there are good reasons, or that a necessity exists for Code §§ 43a, 44] taxation, balances in funds. 171 such transfer, and no injury will result by granting the prayer of such petition, it shall grant the prayer of the petition and order the petitioners to make such transfer, and a copy of the findings, orders and judgments of the court shall be certified by the clerk and spread upon the records of the officers or board who are petitioners, and upon the same being done such petition- ers may make the transfer of funds as directed therein. And such petitioners shall pay all of the costs of such proceedings, except when objections are filed, the court may order such per- sons objecting to pay all or such portion thereof as may be just and equitable. Said petitioners or any person or any number of persons filing objections to such petition, may appeal said cause to the Circuit Court of said county, and the proceedings for such appeal shall be the same as provided for appeals from the Common Pleas to the Circuit Court in other cases, and when said cause shall be appealed, the Circuit Court shall have the same power and make the same orders and all proceedings there- in shall be had, as herein provided for in the Court of Common Pleas, except upon such appeal, the question of costs shall be within the discretion of said court ; and such cause may be re- viewed on error in the Supreme Court. [95 v. 371.] Sec. 43a. [Unexpended balances.] Any unexpended balance remaining in a fund which was created by an issue of bonds the whole or any part of which issue is still outstanding unpaid and unprovided for, shall, when such balance is no longer needed for the purpose for which said fund was created, be transferred to the trustees of the sinking fund to be applied in the payment of the bonds. All acts or parts of acts incon- sistent with this provision be and the same are hereby repealed in so far as such inconsistency exists. [1904, April 27, 97 v. 520.] Sec. 44. [Monthly statement of balances in all funds and ac- counts.] 1 The auditor or clerk, and the treasurer in all muni- cipal corporations shall make up monthly, a statement of the balances in all funds and accounts in their offices, as the same »ixist at the close of business on the last day in the month, and such officers shall forthwith compare such statements, correct any errors in them, and at once forward a copy of the same to the mayor, who shall keep them for public inspection, 2 172 the ohio municipal code. [Code § 45 (1) Old Section. — Compare old lish the statements mentioned in § 1765a R. S. repealed. this section. Opinion of attorney- (2) Section 124 of the Code should general on file in his office, dated not be construed as making it com- Dec. 3, 1902. pulsory on city authorities to pub- Sec. 45. [Restrictions as to contracts, appropriations and ex- penditures; proviso.] 1 'No contract, agreement or other obliga- tion involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of money, be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is no auditor, the clerk thereof, shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which cer- tificate shall be filed and immediately recorded ; 2 and the sum so certified shall not thereafter be considered unappropriated until the corporation is discharged from the contract, agreement or obligation, or so long as the ordinance, resolution or order is in force ; and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed, con- trary to the provisions of this section shall be void, and no party whatever shall have any claim or demand against the corporation thereunder ; nor shall the council, or a board, officer, or commis- sioner of any municipal corporation, have any power to waive or qualify the limits fixed by such ordinance, resolution or order, or fasten upon the corporation any liability whatever for any excess of such limits, or release any party from an exact com- pliance with his contract under such ordinance, resolution or order ; nor shall any member of the council, board, officer or com- missioner of the corporation, have any interest in the expendi- ture of money on the part of the corporation other than his fixed compensation ; 3 and a violation of any provision of this section shall disqualify the party violating it from holding any office of Code § 45] TAXATION. RESTRICTIONS AS TO CONTRACTS. 173 trust or profit in the corporation, and render him liable to the corporation for all sums of money or other thing he may receive contrary to the provisions of this section, and if in office he shall he dismissed therefrom ; provided, however, that the council of any city may authorize and the council of any village may make (subject to the provisions of sections 2491 and 3551 of the Ke vised Statutes of Ohio) 4 a contract with any person, firm or company for lighting the streets, alleys, lands, lanes, squares and public places in the municipal corporation, or for furnishing water to such corporation, or for the collection and disposal of garbage in said corporation, or for the leasing of the electric light plant and equipment, or the waterworks plant, or both, of any person, firm or company therein situated, for a period not exceeding ten years, and the requirement of a certificate that the necessary money is in the treasury shall not apply to such con- tract ; provided further, that such requirement shall not apply to street improvement contracts extending for one year or more, nor to contracts made by the board of health of any municipal- ity, nor to contracts made by any village for the employment of legal counsel. ( 1 ) Old sections. — These re the money has since come into the strictions substantially incorporate treasury and has been * set apart is old sections 2699 and 2702 R. S. not sufficient. State v. Hoffman, 25 O. S. 328. repealed; the former applying to The fact that funds are actually Cincinnati only, and known as the in the treasury, does not dispense "Worthington Law," the latter ap- with certificate. State v. Bair 50 * " . .. ; B. 11: Findlay v. Pendleton, 62 O. plying, with certain exceptions, to ^ qq all municipalities and known as the As to the exact time when the "Burns Law." certificate is required in case of sev- General exceptions to the require- " al ste P 8 ** a Proceeding ending in „ r . the expenditure of money*, see Bra- ment that money for a municipal man y Elyria> 2 6 C. C. 731; 5 C. C. .contract be in the treasury were for- (N. S.) 387 (aff'd 73 O. S. 346); merly contained in old §§ 2264 R. Pullen v. Smith, 26 C. C. 549; 5 C. 8. j 2273 R. S.; 2275 R. S. and ? (N S.) 1; Ryan v Hoffman 26 ' , O. S. 109; Tvler v. Columbus, 6 C. 3471-4 and 3471-4a R. S., all of c 2 24. which are repealed by the Code. To what expenditures appli- (2) Must be funds at time of cable — Generally. — These restric- ordinance.— The money must be in «ons were held, under former stat- the treasury and so certified at the °*f « not *> a PP ! J to contracts pay- J able out of a fund not raised by tax- time the ordinance is passed, before ation Kerr v Belief ontaine, 59 O. the ordinance can take effect. That S. 446. 464; Comstock v. Nelson- 174 THE OHIO MUNICIPAL CODE. [Code § 45 ville, 61 O. S. 288, 294; State ex rel, v. Gibson, 1 N. P. (N. S.) 565 (aff'd, 49 B. 87). Thus the former sections were held not to apply to purchases by gas trustees for the erection of gas works, for they were not payable out of a fund raised by taxation. Kerr v. Bellefontaine, 59 O. 8. 446, 464. The power of the various boards of a city to make contracts is lim- ited by such a provision. Thus a contract by waterworks board un- der § 2415 is so restricted, Newton v. Toledo, 18 C. C. 756. Resolution of council accepting a gift of a public library and agree- ing to maintain the same at an ex- pense of one thousand dollars per year, is not within the inhibition of this section. Smith v. Evans, 74 O. S. . But see Pullen v. Smith, 26 C. C. 549; 5 C. C. (N. S.) 1. Employment contracts. — Em- ployment of a street superintendent at a weekly salary is not authorized unless at the time of employment money to pay for such employment was in the treasury and so certified. State ex rel, v. Hoffman, 25 O. S. 328. So employment of a superintend- ent over the construction of a town hall. Drott v. Riverside, 4 C. C. 312. Employment of an attorney for Sunday law prosecutions, without certificate of money in treasury, was held void. That the amount of pay- ment in such case could not be ascer- tained in advance was held to make no exception, for a maximum could have been fixed ; nor was it material that the services were to preserve order and enforce an ordinance. Bond v. Madisonville, 2 C. C. 449. Employment of attorney by a board, without certificate of auditor that money is in treasury to pay for services, is void, though the board was empowered to sue and be sued. Though the money was in treasury and a financial statement was made to council at each meet- ing, the certificate could not be dis- pensed with. Findlay v. Pendleton, 62 O. S. 80. Expenses incurred in employing a village solicitor were held to be within the restriction of such a provision, where there was no pro- viso excepting such employment. Easton v. Hyde Park, 6 N. P. 257. Under the present Code, however, the employment of counsel by vil- lages is specially excepted from the restrictions. Condemnations. — Ordinances to appropriate property for public pur- poses, as for a public park, are valid without the certificate of money in the treasury to pay for the appro- priation. This is put on the ground that the ordinance to appropriate is not one to expend money, the amount is not ascertainable and bonds are issued to pay the award. Put-in-Bay v. Webb, 18 C. C. 780. But see Ryan v. Hoffman, 26 O. S. 109, 123. So condemnation of property for opening a street is not within such provisions. Klopfer v. Sunderland, I Dayton 143; see also Tyler v. Co- lumbus, 6 C. C. 224 ; but see Rhoades v. Toledo, 6 C. C. 9, contra. Contracts for street improve** ments. — The restriction requiring certificate of auditor of money in the treasury does not apply to con- tracts for street improvements when bonds have been authorized by the municipality to be issued to pay the entire estimated cost and expense of the improvement. Emmert v. Elyria, 74 O. S. (51 B. 189). Nor is the certificate required for so much of the cost as is to be paid for by assessments on abutting prop- erty. Comstock v. Nelson ville, 61 O. S. 288. And this is true, even though some of the assessments may prove uncollectible by reason of de- ficient value of lots or otherwise. lb. For construction of provisions of former statutes, see Wood v. Pleas- ant Ridge, 12 C. C. 177, 182; Irwin v. Greenville, 1 Dayton 140; Chit- tenden v. Columbus, 14 Dec. 333; 1 N. P. (N. S.) 420; Cincinnati v. McErlane, 3 B. 843; Kirchner v. Cincinnati, 14 B. 48; Ryan v. Cin- cinnati, 2 B. 251; Mills v. Norwood, 26 B. 348; McGrew v. Elmwood Place, 17 C. C. 676; Comstock v. Nelsonville, 61 O. S. 288. See also Trowbridge v. Hudson, 24 C. C. 76; 3 C. C. (N. S.) 644 (as to contracts relating to sidewalk improvements under former statutes ) . Meaning of the provision except- ing "street improvement contracts extending for one year or more," see Emmert v. Elyria," supra. Code § 45] TAXATION. RESTRICTIONS AS TO CONTRACTS. 175 Running expenses. — The former statutes covering the subject mat- ter of the present section were held to be restrictions on the power of a municipal corporation to contract, and to refer to all contracts made by a city. Thus the restrictions would apply to all contracts for lighting the streets of the city, where the words did not except such contract. Ampt v. Cincinnati, 2 N. P. 332, 339; Cope v. Wellsville, 25 B. 250. The ordinary expenses of running the municipality were held to be included in such provisions and they were held not to be limited to im- provement contracts. Easton v. Hyde Park, 6 N. P. 257; State v. Philbrick, 13 Dec. 158. But see Lima Gas Light Co. v. Lima, 4 C. C. 22, 28, where it was held that the former sections ap- plied only to a certain class of con- tracts, those affecting improvements made by the city, and had no ap- plication so far as contracts af- fecting expenses in running the city were concerned; and lighting con- tracts were therefore held not with- in the restrictions, even though not expressly excepted. See also Cope v. Wellsville, 25 B. 250. Exceptions implied by other statutes. — Implied exceptions to the restrictions of such a section as this may be caused by the provisions of other statutes. Thus the provis- ion requiring an armory to be fur- nished by a city (R. S. § 3085) was held to make the city liable for rent, though no certificate of money in the treasury had been made. Wilson v. Cincinnati, 19 B. 10; see also State ex rel. v. Massillon, 24 C. C. 249; 2 C. C. (N. S.) 167. And the restrictions were held not applicable to a contract for a trunk sewer under a former trunk sewer act (84 0. L. 75), for otherwise the law could not be carried out, since the act requires contracting at once and collection of fund by subsequent levy. Cincinnati v. Honnigfort, 32 B. 32. And see Cincinnati v. Holmes, 56 O. S. 104. They were held not applicable in their entirety to a city's water- works; for otherwise an accident to the machinery might leave the city helpless for months. Cincinnati ex rel. v. Cincinnati, 11 C. C. 309, 317. Where gas trustees are given power to construct and control gas plants, things necessary to accom- plish the purpose of carrying out the power, employing service neces- sary, preserving the property from destruction and impairment to a de- gree not amounting to rebuilding or extension, are incidental and go with the power expressly given to construct and control. Current ex- penses incurred in thus operating and controlling the property do not require certificates that money is in the treasury, for otherwise it would be almost impossible to operate the institution as required by the special statute giving the power. Findlay v. Parker, 17 C. C. 294, 300 (aff'd 63 O. S. 565). The act (90 O. L. 34) authorizing certain cities to make dredging con- tracts was held to make an excep- tion to the restrictions of § 2702 R. S. Sprankle v. Cleveland, 12 C. D. 644. Express provisions in other stat- utes, excepting contracts made un- der them, from the restrictions of a statute such as § 45, must be read as an exception to this section. Mt. Vernon v. State, 71 O. S. 428. Exceptions implied from necessity, where public health endangered, see Columbus v. Bohl, 1 N. P. (N. S.) 469; 13 Dec. 569. 176 THE OHIO MUNICIPAL CODE. [Code §45 Contracts running beyond year. — Street improvement con- tracts extending for one year or more are made special exceptions by the Code. A contract by which a city agrees to pay a water company hydrant rentals for water for fire purposes for thirty years would not be void on the ground that there was not a certificate of money in the treasury sufficient to satisfy the amount fall- ing due for the full period of thirty years. Defiance v. Council, 23 C. U. 96 (reversed on other grounds, 68 O. S. 520). See also Defiance Wa- ter Co. v. Defiance, 12 O. F. D. 299 (reversed on other grounds, 14 O. F. D. 127). As to contracts running over a year, under the former sections on this subject relating to Columbus (§§1545-150, 2699-1 R. B. re- pealed), see Fergus v. Columbus, 6 a. p. 82. Effect of ordinance or contract made without certificate. — A con- tract without the certificate re- quired imposes mo liability on the municipality to pay. It is not estopped to set up the defense of the want of a certificate. Lancaster v. Miller, 58 O. 8. 558. The municipality is not liable though the contractor has fully per- formed his contract. He must as- certain at his peril whether the cer- tificate has been filed and recorded or not. Comstock v. Nelson ville, 61 O. B. 288. Where city employed superintend- ent over town hall construction, when the auditor had not certified that the required money to pay for such employment was in the treas- ury the city was held not liable to pay for his services, although they were valuable. Drott v. Riverside, 4 C. C. 312. Under the former statutes, where the requirement was that the money should be "specially set apart" it was held that a contract before the money was set apart was invalid, even though the money was in the treasury at the time of the con- tract, though afterwards expended on other contracts. Lowry v. Cin- cinnati, 1 B. 102. A provision such as contained in this section is designed only to re- strain municipal extravagance. It does not make work, done without the preliminaries here required, il- legal so as to impose a liability which would not otherwise have been imposed. Elster v: Springfield, 49 O. S. 82. Thus, where a sewer is construct- ed by the city without money in the treasury for that purpose and the sewer does injury by carrying off percolating waters, which had fed a spring, the city is not liable. lb. Pleading and practice. — It is sufficient if the petition avers that the contract was duly made. It is not necessary to aver that the cer- tificate of money in the treasury was made. Neubauer v. Bd. Educa- tion, 6 N. P. 530. That a city's partly executed con- tract is void because there had been no certificate of funds in the treas- ury, is not necessarily grounds for injunction to restrain further exe- cution of it. Ampt v. Cincinnati, 34 B. Ill, 112. When the municipality refuses payment to a contractor on the ground that the fund provided by legislative authority has already been expended, the corporation must show clearly that at the time of making the contract and entering upon its execution it with others exceeded the amount the fund pro- vided. Otherwise this defense can not prevail. Cincinnati v. Cameron, 33 O. S. 336. (3) Officer interested. — Com- pare Sections 6969 R. S. and 6976 R. S., making it a crime for any person holding any office of trust or profit in this state, or any agent, - servant or employee of any officer or of a board of officers to be in- terested in any contract for the pur- chase of property or supplies for the use of any county, township, school district, municipal corpora- tion or public institution or any municipal officer to be interested in any contract or work with or for the corporation. Under such sections it is held unnecessary to a conviction that the officer make a profit on the contract, Code §§ 45a, 45b.] taxation, restrictions as to contracts. 177 but sufficiently if he is personally in- terested in the proceeds of the sale; nor is it any defense that when said contract was made money therefor was not certified to be in the treas- ury. Doll v. State, 45 O. S. 445; and the contract so made is void. Dalzell, etc., Co. v. Findlay, 5 C. C. 435 (aff'd, 27 B. 128) ; Bellaire Co. v. Findlay, et ah, 5 C. C. 418; Find- lay v. Parker, 17 C. C. 294 (aff'd, 63 O. S. 565) ; Marsh v. Hartwell, 2 N. P. 389. See also State v. Funk, 16 C. C. 155. Compare also § 3974 R. S. forbid- ding any member of a school board to be interested in a contract with such board, under which it was held that a contract between the board and a firm in^ which a member of the board is a partner is void, and any taxpayer may enjoin the same. Grant v. Brouse, 1 N. P. 145. As to punishment of persons giv- ing bribes to officers or public agents, see § 6900 R. S. An ac- countant employed by a city board of revision held an officer within the meaning of § 6900. Barker v. State, 69 O. S. 68. A contract of employment between a member of council and a railway company by which the member of council is to devote his time to the general management of the com- pany's business in that city includ- ing the procurement of the rights of way over the streets, which are to be granted by the council of which the councilman is a member, was held void. Railroad Company v. Morris, 10 C. C. 502. In construing § 856 R. S., forbid- ding county commissioners to have an interest in a contract on behalf of the county, it was held that the penalty could not be enforced in a case where the contractor, subse- quent to the letting of the contract, entered into an agreement to pur- chase material therefor from a cor- poration in which the commissioner was a stockholder, and such subse- quent agreement had no influence in procuring the contract. State ex rel. v. Pinney, 47 B. 820. Member of board of health is an officer of municipality, and ineli- gible to office of district physician during term or for one year there- after. State ex rel. v. Wichgar, 27 C. C. 743. As to validity of contracts made by public officials extending beyond the expiration of their terms, see State ex rel. v. Lewis, 12 Dec. 46. (4) For these sections, see Part II. Sec. 45a. [When money may be deemed in treasury and in appropriate fund.] Money to be derived from lawfully authorized bonds or notes sold and in process of delivery shall for the purpose set forth in section 45 of this act be deemed in the treasury and in the appropriate fund. [1904, March 21, 97 v. 44.] Sec. 45b. [Shall not adopt plans or specifications for public improvement which requires exclusive use of patented articles, etc.] No municipal corporation shall adopt plans or specifi- cations for any public improvement required by law to be made by contract let after competitive bidding which require the exclusive use of any patented article or process or any article or process protected by any trade-mark or any article or process wholly controlled by any person, firm or corporation or combination thereof. [1906, April 16, 98 v. 204.] 178 the ohio municipal code. [Code §§ 46, 47, 48 (b) Tax Commission. Sec. 46. [Board of tax commissioners and board of sinking fund trustees; appointment, qualifications, term, etc.] 1 In each city there shall be a board of tax commissioners, which shall also constitute the board of sinking fund trustees, as provided in § 108 of this act, to consist of four citizens of such city who shall be electors of said city, well known for their intelligence and integrity, to be appointed by the mayor, one for four years, one for three years, one for two years, and one for one year, and their successors shall be appointed for four years from the expi- ration of their respective terms. Such appointments shall be so distributed that not more than two members of said board shall belong to the same political party. In case of any vacancy by death, resignation, removal from the city or otherwise, of either of such commissioners, the same shall be filled by appointment by the mayor for the unexpired portion of such term. (1) Old sections.— Tax eommis- 1545-149 R. S.) j Dayton (§ 2690Z sioners under special acts formerly R. S. ) ; and in many other cities by existed in Cleveland (§1545-72 R. virtue of Sections 2690a R. S. All S. ) ; Cincinnati where Board of Su- these sections are repealed by the pervisors acted in such capacity new Code. (§ 2690m R. S.) ; Columbus (§ Sec. 47. [No compensation.] The members of said board of tax commissioners shall not receive any compensation for their services. Sec. 48. [Oath; organization; record of proceedings; clerk.] The members of said board of tax commissioners shall each take an oath to support the Constitution of the United States and of the State of Ohio, and to faithfully and honestly perform their duties as such tax commissioners. Said board shall organize by appointing one of its members president, another vice-presi- dent; a majority of the members thereof shall constitute a quorum for the transaction of business. The board shall keep Code §§ 49, 50] taxation, tax commission. 179 a full record of all its proceedings, and the city auditor shall be clerk of said board, and shall receive no additional salary or compensation for services as clerk of said board, and shall enter in a book to be provided by the city for that purpose a full and detailed statement of all its proceedings which shall be signed by the president or vice-president and said clerk. Sec. 49. [Powers and duties of board of tax commissioners.] 1 The board of tax commissioners, upon receipt of the levies made by the council as provided by law, shall consider the same, and within ten days after such receipt shall return the same to the council with its approval or rejection, in case of rejection giving its reasons therefor. It may approve or reject any part or parts thereof, and the parts rejected by said board shall not become valid levies unless the council of such municipality shall there after by a three-fourths vote of all members elected thereto adopt such levy or part thereof so rejected by said commission. If the board of tax commissioners approve said levies, or if it neg- lect to return the same with its approval or rejection within ten days as aforesaid, the same shall be valid and legal; provided, that in no case shall the board of tax commissioners have author- ity to increase said levy. (1) Compare with old § 2690# R. S. repealed. Fifth. Assessments. (a) Assessments in General. Sec. 50. [Assessments which may be made special; method of assessment.] 1 The council of any municipal corporation may assess 2 upon the abutting, adjacent and contiguous or other specially benefited lots or lands 3 in the corporation, any part 4 of the entire cost of and expense 5 connected with the improve- ment of any street, alley, dock, wharf, pier, public road, or place by grading, draining, curbing, paving, repaving, repairing, con- structing sidewalks, piers, wharves, docks, retaining walls, sewers, drains, water courses, water mains or laying of water 180 THE OHIO MUNICIPAL CODE. [Code § 50 pipe and any part of the cost of lighting, sprinkling, sweeping, cleaning or planting shade trees upon the same 6 by either of the following methods : First. By a percentage of the tax value of the property as- sessed. 7 Second. In proportion to the benefits which may result from the improvement, 8 or Third. By the foot frontage of the property bounding and abutting upon the improvement. 9 [1904, April 19, 97 v. 98.] (1) Old section 2264 R. S. re- pealed and see old sections 2264a, 22646, 2266, 2267, and 2269 R. S. repealed. (2) Nature of power of assess- ment. — Assessments for street pur- poses are those special and local impositions upon property in the immediate vicinity of an improved street, which are necessary for the improvement and levied with refer- ence to the special benefit which such property derives from the ex- penditure of the money. Raymond v. Cleveland, 42 O. S. 522. A reassessment is a reapportion- ment of .the cost and expense of such improvement and the impo- sition may be either upon the same lands or part of the same lands and it may include other lands. 76. The principle underlying special assessments is that the property upon which they are imposed is pe- culiarly benefited and therefore the owners do not in fact pay anything in excess of what they receive by reason of the improvement. Walsh v. Barron, 61 O. S. 15; Donohue v. Brotherton, 7 N. P. 367. From the very nature of assess- ments, they cannot in any case exceed the benefits, for otherwise they would be a taking of private property N for public use without compensation in violation of § 19, Art. 1, of the Constitution of Ohio. Chamberlain v. Cleveland, 34 O. S. 551; Railway Co. v. Cincinnati, 62 O. S. 465; Dayton v. Bauman, 66 O. S. 379, and see notes to § 53 of the Code. Distinguished from taxation. — The power of assessment is not limited by the constitutional pro- vision requiring taxation by a uni- form rule. The power of assess- ment differs from the power of taxation. Ridenour v. Saffin, 1 H. 464; Hill v. Higdon, 5 O. S. 243; Reeves v. Treas. Wood Co., 8 O. S. 333; Sessions v. Crunkilton, 20 O. S. 349. Though in a general sense a tax is an assessment, and an assess- ment is a tax, there is a well rec- ognized distinction between them. Lima v. Cemetery Assn., 42 O. S. 128; and exemption from taxation would not exempt from assessment for local improvement. lb. Assessments in proportion to ben- efits are not a taking of private property for public use, but rath- er a species of taxation. Scovill v. Cleveland, 1 O. S. 126. The fact that lands not included in a taxing district are more ben- efited than some lands in the dm- Code § 50] * ASSESSMENTS. IN GENERAL. 181 trict was held not to render an assessment invalid. Weston v. Commissioners, 6 C. C. 641 ; see also Raymond v. Cleveland, 42 O. S. 522. Validity in general. — Legisla- tion authorizing municipalities to levy assessments for street improve- ments, upon property specially ben- efited, is constitutional. Hill v. Higdon, 5 O. S. 243; Reeves v. Treas^Wood Co., 8 O. S. 333; Ses- sions v. Crunkilton, 20 O. S. 349. In Dayton v. Bauman, 66 O. S. 379, where power to assess abut- ting property to pay costs of con- demnation was denied, the power to assess for surface improvements, was reaffirmed. Such legislation is not uncon- stitutional even though it does not adequately restrict the power of assessment so as to prevent abuse. The duty imposed by § 6, Art. 13 of the Constitution is in this regard directory and not mandatory. Par- sons v. Columbus. 50 O. S. 460. As to what would be sufficient re- striction see, Maloy v. Marietta, 11 O. S. 636. Assessments may be authorized to be made -in proportion to the feet front or upon the value of the lands as assessed for taxation, leav- ing to the municipality the choice • of mode. Ernst v. Kunkle, 5 O. S. 520; Hill v. Higdon, 5 O. S. 243; R. R. Co. v. Connelly, 10 O. S. 159, 163. Uniformity. — The rule of appor- tionment in assessment, whether by the front foot or a percentage upon the assessed valuation must be uni- form, affecting all property alike. One rule cannot be applied to one owner and a different one to an- other owner. R. R. Co. v. Con- nelly, 10 O. S. 159, 165; Jaeger v. Burr, 36 O. S. 164; Upington v. Oviatt, 24 O. S. 232, 246. An assessment is not uniform which prescribes an equal propor- tionate charge, but allows a credit to the owners on one side, who had already done most of the work on that side. Jaeger v. Burr, 36 O. S. 164. But the requirement of uniform- ity is not violated by dividing a street of varying widths, into as many sections as there are differ- ent widths and uniformly assess- ing the property on each section. Findlay v. Frey, 51 O. S. 390. If a street of varying widths, how- ever, is not divided into sections, the assessment does not have to be graduated according to the width, but may be uniform on all the street. Smith v. Cincinnati, 6 N. P. 175. The same is true of as- sessment for sidewalks of varying widths. Ulm v. Cincinnati, 7 N. P. 278. Where a street to be improved divides two municipalities, each may assess the abutting property within the limits and a difference in amount between the two assess- ments will not invalidate. Scully v. Cincinnati, 1 C. S. C. R., 183. As to uniformity where property not abutting, but near to, the im- provement, is included, see Allen v. Cleveland, 1 Clev. 2. Under a stat- ute allowing assessment of prop- erty abutting on the street or " near thereto " the assessment need not be made upon property on the whole street, but only on that part of the street improved. Scovill v. Cleve- land, 1 O. S. 126. As to validity of assessment where property in the assessing district is divided into two classes, viz., abutting property, and con- tiguous property, and each class assessed by a different rule, see Akron v. Allen, 22 B. 260 (Supreme Court not reported). 182 THE OHIO MUNICIPAL CODE. [Code § 50 Change of law pending pro- ceedings. — The assessment must be governed by the law as it was at the time of the improvement ordi- nance, with respect to the manner of assessment and the rights and li- abilities of the owners of abutting property. Cincinnati v. Season- good, 46 O. S. 296; Shehan v. Cin- cinnati, 25 B. 212 (aff'd, 27 B. 375). In Toledo v. Marlow, 28 C. C. 298 ; 8 C. C. (N. S.) 121, it was held that assessment is a proceeding within the meaning of and protected by § 79 JR. S., and that the law in force at the commencement of the proceeding must govern, and the limit of assessment provided at that time prevails, and that in the ab- sence of a petition for the improve- ment, the preliminary resolution is the beginning of the proceeding; see also Squier v. Cincinnati, 5 C. C. 400. But as to this ground see Union Co. v. Greene, 40 O. S. 318, disapproved, however, in 58 O. S. 225. See also Ehni v. Columbus, 3 C. C. 494; and Crossley v. Findlay, 10 C. C. 286. But it was held that the board which has jurisdiction to pass the resolution to improve, has juris- diction to' complete the improve- ment, and a law changing the board, passed between the time of the resolution to improve, and the improvement ordinance does not discontinue the power of the board passing the resolution. Cincinnati v. Davis, 58 O. S. 225, 236. And when an improvement is pe- titioned for, to ascertain the effect of the petition, reference should be had to the law in force at the time the petition was presented. Hays v. Cincinnati, 62 O. S. 116, 122. The saving clause (§211) of the Code, provides that no rights in fa- vor of or against any municipal corporation existing prior to the act, nor any action, prosecution or proceeding shall be affected by the change in the law. A section sim- ilar to this in a former Code (§ 1539 R. S. repealed) was held to ap- ply to assessments and make the rights of parties fixed under the law in force at time of improvement or- dinance. Raymond v. Cleveland, 42 O. S. 522, 529; Cincinnati v. Da- vis, 58 O. S. 225. And the law in force at the time of the assessment would govern a reassessment, re- quired by the former law to be con- ducted in the same manner as the original assessment, though the new law was passed before the reassess- ment, lb. After a contract has been made for an improvement and the work commenced, the right to make an assessment to defray the expenses of the improvement, will not be affected by repeal of the act governing such matter, where there is p saving clause in the new law. Corry v. Gaynor, 22 O. S. 584; Hubbard v. Norton, 28 O. S. 116. Independently of any saving clause, it was held that a new law, tnough limiting the amount of as- sessments, could not affect con- tracts made by a city with a con- tractor to deliver to him the as- sessments made, for such new law would in this regard impair the obligation of contracts. Goodale v. Fennell, 27 O. S. 426. Existing assessment ordinances remain in force notwithstanding the change of the organization of a municipality, if not inconsist- ent with the statute. Neff v. Bates, 25 O. S. 169. Construction of assessment laws. — Strict construction in favor of property owner is required. Cin- cinnati v. Connor, 55 O. S. 82, 91. See also § 2327 R. S., re-enacted under § 94 of the Code. The general policy of assessment laws being to limit the amount of assessments^ particular statutes Code § 50] ASSESSMENTS. IN GENERAL. 183 will be construed as though intend- ed to adhere to that, principle. Birdseye v. Clyde, 61 O. S. 27. Conditions precedent to assess- ment. — The determination to make the improvement and to charge lot owners must precede the actual making of the improvement. Don- ohue v. Brotherton, 7 N. P. 367; Folz v. Cincinnati, 2 Handy 261. But the assessment may be made before the improvement. Morgan v. Cleveland, 1 Clev. 38. The determination of council as to what part of the costs shall be assessed upon abutting property is a condition precedent to the power to assess. Knorr v. Cincinnati, 21 B. 297. Contesting assessments — In- junction. — An assessment standing on the tax duplicate will be pre- sumed to be valid, and one seek- ing to enjoin its collection must show its invalidity by proper aver- ment and proof. Bolton v. Cleve- land, 35 O. S. 319. Perpetual injunction will be granted only when the plaintiff shows a clear right thereto. Spang- ler v. Cleveland, 43 O. S. 526. Injunction will not lie by abut- ting owner prior to the making of the contract because of defects in the improvement. Owner can en- join assessment when made. Wood v. Pleasant Ridge, 12 C. C. 177. Where an assessment may be con- tested on a ground common to all abutting owners, as for defects in the proceedings and also on a ground peculiar to one owner alone, one who resorts to the former ground is barred, in a later suit, from contesting assessment on the latter ground. Cincinnati v. Emer- son, 57 O. S. 132. Petition to enjoin must show that the plaintiff is prejudiced by the irregularities complained of blavm v. Greene, 2 N. P. 39. Amend- ment of petition, see Ulm v. Cin- cinnati, 7 N. P. 278. Assessment will not be enjoined for irregularities in proceedings which are curable, where the amount properly chargeable is the same as the assessment. Steese v Oviatt, 24 O. S. 248. Injunction will lie where the contractor has failed to perform his contract. Stone v. Viele, 38 0. S. 314. Where sufficient installments have been paid to equal a proper assessment court may enjoin collec- tion of remaining installments. Cincinnati v. James, 55 O. S. 180. Two or more persons claiming re- lief on the same ground may join in an action to enjoin the assess- ment or one may sue in behalf of others. Upington v. Oviatt, 24 O. S. 232. When cost may be divided, see Reed v. Cincinnati, 8 C. C. 393^ Owners may enjoin without first applying to the city solicitor. They do not sue as taxpayers. Moore v Cincinnati, 15 B. 196. Action to enjoin collection of as- sessment on ground that it is in ex- cess of benefits is barred in four years after making of improvements by § 4982 R. S. Gault v. Columbus, 1 N. P.. (N. S.) 201; 13 Dec. 575. As to rights of court to fix amount properly chargeable, when assess- ment is enjoined because of technical irregularity or defect, see § 2289 R S. (page 267) and note 3 thereun- der. For matters relating to defenses to suits to collect assessments, see notes under § 2286 R. S., page 265. Estoppel to contest. — Partici- pation in causing improvement to be made. — One who participates ac- tively in causing an improvement to be made, by petitioning for the im- provement, etc., is thereafter estop- ped to deny the authority of the municipality to proceed in the way sought and make the assessment. Tone v. Columbus, 39 O. S. 281. But he will not be estopped from objecting that the subsequent pro- ceedings of council were not in con- formity to statute. lb. The property owner who has in- 184 THE OHIO MUNICIPAL CODE. [Code § 50 duced the contractor to enter into a contract and do the work by as- surances that he would be paid, is estopped to contest the validity of assessments on the ground that the contract was void because not founded on petition with the req- uisite number of signers. Corry v. Gaynor, 22 O. S. 584. One who participated in the elec- tion of commissioners to carry out the improvement was held estop- ped to the same extent that a peti- tioner for the improvement would be estopped. Columbus v. Slyh, 44 O. S. 484. The property owner would not be estopped from contesting the va- lidity of assessments for water works because he had voted for the water works trustees, or had paid taxes, a part of which were for payment of interest on water works bonds. Willard v. Close, 25 B. 391. Estoppel from executing paper set- ting forth that improvement was legally made, to enable municipal- ity to issue its bonds, see Shepard v. Barron, 14 O. F. D. 417; 3 O. L. R. 327. See further, as to estoppel under various former laws, Bloch v. God- frey, 26 C. C. 781; 5 C. C. (N. S.) 318. Petitioning for improvement. — For matters relating to estoppel by petitioning for improvement, see notes under §§61 and 62 of the Code. Permitting improvement with- out objection. — See, on question whether there can be estoppel from mere silence with knowledge that improvement is being made, Co- lumbus v. Agler, 44 O. S. 485; Wright v. Thomas, 26 O. S. 346; Andrews v. Settles, 16 C. C. 638; but see Tone v. Columbus, 39 O. S. 281; Quinlan v. Myers, 29 O. S. 500; Danks v. Phares, 9 Kec. 554; Birds- eye v. Clyde, 61 O. S. 27, 37; Taylor v. Wapakoneta, 26 C. C. 281. The owner of land not having promoted the making of improve- ment is not estopped to contest the unconstitutionality of the assess- ment though he may have known of the improvement and of the intention to make the assessment. Lewis v. Symmes, 61 O. S. 471. A property owner over whose land a sewer is run but who made no objection thereto until assess- ment, would be estopped to contest the assessment and must rely on his action for damages for the ap- propriation. Wilson v. Cincinnati, 5 N. P. 68. The property owner who per- mitted a street to be improved Avithout objection, knowing that his predecessor in title had under- taken to dedicate it but that the dedication had not been complete, would be estopped to resist assess- ment on the ground that the vil- lage had no title. Neff v. Bates, 25 O. S. 169. Property owner, a part of whose property was taken by the city to straighten the street, but who dis- covered this before the surface im- provement was begun and did not object, would be estopped to con- test the assessment. Cincinnati v. Longworth, 4 Rec. 528. Owners of property, a part of which has been encroached upon by a city in improving a street, but who made no objection until the work was done, would be estopped to contest the assessment though they might receive compensation for the land taken. Cincinnati v. Goodman, 5 Rec. 153. Payment of part of assessment. — Payment of part of assessment installments will not estop a prop- erty owner who has protested that Code § 50] ASSESSMENTS. IN GENERAL. 185 the work was not properly done according to contract. Hartzell v. Alliance, 39 B. 232. (Supr. Court not reported.) See also Metcalf v. Carter, 19 C. C. 196; Cincinnati v. James, 55 0. S. 180. Payment of part of assessments in excess of benefits will not estop property owner from setting up de- fense that benefits are exceeded, where the steps in the improvement had been taken without his knowl- edge and he did not participate in any way in carrying forward the improvement. Yost v. Ry. Co., 24 C. C. 169; 2 C. C. (N. S.) 519. Receiving compensation. — The fact that the owner of property re- ceived compensation for part of his land taken would not estop him to resist the assessment for the improvement of the road because of its unconstitutionality. Lewis v. Taylor, 18 C. C. 443, 451. Unconstitutional statutes. — The principles of estoppel apply as well where the proceedings of a corpo- ration are questioned on the ground of unconstitutionality of a statute under which they are had as where they are attacked upon other grounds, unless such proceedings or what is sought to be accom- plished by them are per se illegal or malum prohibitum. Tone v. Co- lumbus, 39 O. S. 281, and see Lewis v. Symmes, 61 O. S. 471, and State v. Mitchell, 31 O. S. 592; Wright v. Thomas, 26 O. S. 346; Murdock v. Cincinnati, 25 B. 26; Mt. Vernon v. State, 71 O. S. 428; Shepard v. Barron, 14 0. F. D. 417. > Extent of estoppel. — A person may estop himself by his acts in promoting an improvement, to deny the legality of the action taken by the authorities with his consent, but he would not ordinarily be estopped to dispute an assessment on his property beyond the limitation fixed bv law. Birdseye v. Clyde, 61 O. S. 27. As to when an owner has estopped himself from disputing an assess- ment beyond the limitation, by ex- press agreement in a petition for the improvement, see notes under § 62 infra. What persons estopped. — The acts of owners who procure the im- provement and assessment to be made will not operate as an estop- pel of their intermediate mortgagees. Donohue v. Brotherton, 7 N. P. 367. But where the grantor is estopped his grantee is equally estopped. Co- lumbus v. Slyh, 44 0. S. 484; and this is so even though the grantee bought without actual notice of the lien of the assessment. Danks v. Phares, 9 Jtec. 554. But the owner will not be estop- ped by the acts of his agent, signing for the property; though such acts would estop the agent were he own- er. Andrew v. Auditor, 5 N. P. 123. A purchaser agreeing in a deed to pay taxes or assessments for street improvements on the property is estopped to contest the validity of assessment which had been levied on the property at the time of the acceptance of deed. Caldwell v. Co- lumbus, 37 B. 270; Herman v. Co- lumbus, 15 Dec. 509; 3 N. P.(N. S.) 216; Waldschmidt v. Bowland, 27 C. C. 782; 6 C. C. (N. S.) 99 (aff'd 7 a O. S. 350). But see Lewis v. Taylor, 18 C. C. 443 (aff'd on other grounds, 61 O. S. 471). But where it does not appear that the amount of the assessment was taken from the purchase price, or could have been known at time deed was made, assessment ordinance not yet having been passed, a mere recital that pur- chaser will pay street assessments, will not estop him from contesting their validity when levied. Walsh v. Sims, 65 O. S. 211. Change of judicial construc- tion. — Courts will not enjoin an assessment on the ground of the 186 THE OHIO MUNICIPAL CODE. [Code § 50 unconstitutionality of the law un- der which it was levied, if the im- provement is made and the assess- ment levied, and the bonds of the municipality issued, even though similar legislation has been held by the recent decisions of the court to be obnoxious to the constitution, if the law under which the assessment was levied is in all material re- spects similar to a law which has previously been held constitutional. Shoemaker v. Cincinnati, 68 0. S. 603; Gault v. Columbus, 13 Dec. 575; 1 N. P. (N. S.) 201; Price v. Toledo, 25 C. C. 617; 4 C. C. (N. S.) 57. As to the case where the steps taken were in compliance with that part of a law which was constitu- tional, but a requirement of a law which would now be considered un- constitutional, • was not complied with, see Adkins v. Toledo, 27 C. C. 417; 6 C. C. (N. S.) 433. Pro- ceedings in such case held valid. lb. Defect in work. — Assessment for street improvement cannot be enjoined on ground of defect in the work, unless fraud is shown. Mc- Glynn v. Toledo, 22 C. C. 34 (aff'ri 67 O. S. 498). But see Taylor v. Wapakoneta, 26 C. C. 285. Where injunction is sought against assess- ment on the ground that the im- provement was not made according to specifications, a claim made after the lapse of many years, must be supported by the clearest proof. Gault v. Columbus, 13 Dec. 575; 1 N. P. (N. S.) 201. But burden is on defendant to show that the de- fects appeared at such a time as would bar plaintiff's action. Coit v. Columbus, 13 Dec. 578; 1 N. P. (N. S.) 600. As to estoppel to contest assess- ment on this ground, see Tone v. Columbus, 39 O. S. 281. (3) What property may be assessed — Generally. — Lands ap- propriated and used by a railroad company for its tracks are subject to the assessment for street im- provement. Pv. R. Co. v. Connelly, 10 O. S. 159; R. R. Co. v. Bel- mont Co., 19 O. S. 589. Page 186 Street railway property may be assessed to pay the company's share of expense of paving between the tracks, as property subject to as- sessment, though not abutting. Cleveland v. R. R. Co., 1 Clev. 304. Property used as a wharf, is a lot subject to assessment. Boeres v. Strader, 1 C. S. C. R. 57. Land cut in two by the street be- comes two lots for assessment pur- poses, and each part must bear its own charge separately. Spangler v. Cleveland, 35 O. S. 469; Young- love v. Hackman, 43 O. S. 69. Several lots owned by one per- son and abutting on the improve- ment, must be separately assessed; one lot cannot be liable for the aggregate amount assessed on all. Corry v. Folz, 29 O. S. 320. Where lands are platted into lots the fact that the lot assessed is shallower than the rest will not be considered. Locke v. Cincinnati, 7 N. P. 318. The area of a street put through the property to be assessed, since the improvement, is deducted from the property. Coates v. Norwood, 16 C. C. 196. Abutting property — What is. — Abutting property would seem to include only that abutting the part of a street improved and not all property abutting on the entire street. Creighton v. Scott, 14 O. S. 438; Scovill v. Cleveland, 1 O. S. 126, 133; R. R. Co. v. Connelly, 10 O. S. 159; Smith v. Toledo, 24 O. S. 126, 130. Where a city improved only nine- ty feet of a ninety-one foot strip dedicated to it for street purposes, leaving a strip of one foot on one side, the owners of property on that side are nevertheless liable to be assessed as owners of abutting property. Richards v. Cincinnati, Code § 50] ASSESSMENTS. IN GENERAL. 187 31 0. S. 506. Such an unused nar- row intervening strip would ex- empt owners on that side from as- sessment, only in case it deprives them of the free and lawful access to their property. lb. An owner whose lot is separated from the street by a narrow strip, although he is licensed by the own- er of the strip to use it for build- ing purposes, such license, however, not having become irrevocable, is not an abutting owner. Buse v. Cincinnati, 28 B. 111. Where the improvement is con- fined to one side of a street, the own- ers of lots abutting the other side would seem to be owners of lots abutting the improvement. See Cincinnati v. Batsche, 52 O. S. 324; Dodsworth v. Cincinnati, 18 C. C. 288. Property on parts of the street beyond the ends of the improve- ment, is. not property bounding and abutting on the improvement for purposes of front foot assessment. Cincinnati v. Batsche, 52 0. S. 324 ; Klein v. Cincinnati, 7 C. C. 266 (affirmed without report, 33 B. 83) j Frey v. Findlay, 7 C. C. 311, 319. Approval of subdivision by coun- cil under § 2601 R. S. after a street assessment has been made, would not relate back so as to make only the abutting lots in the subdivision liable for assessments. Cincinnati v. Corry, 2 B. 337. Where the front of a lot abutting on a street is owned by one per- son and the rear is owned by an- other, the street assessment by the front foot must embrace the entire lot as numbered and recorded, and the assessment must be appor- tioned between th*» owners in ac- cordance with the part owned by ear*. Frey v. Findlay, 7 C. C. 311, and see Coates v. Norwood, 16 C. C. 196. What constitutes abutting prop- erty subject to assessment is to be determined by the situation of the property at the time of the im- provement ordinance and is not af- fected by the sale of a strip off the front after such ordinance is passed. Douglass v. Cincinnati, 29 O. S. 165. And see Shiner v. Norwood, 17 C. C. 631. Contiguous and adjacent prop- erty — What is. — The meaning of the words " adjacent and contigu- ous " can not be limited by any absolute or fixed measurement but must be determined by the circum- stances of each case; yet for all practical purposes they may be said to embrace lots and lands " near to " the improvement, and all such when specially benefited are liable to be charged with the costs and expense, when contiguous and adjacent lands are included in the assessment. Meissner v. Toledo, 31 O. S. 387, 395. Property exempt. — School lands are not liable for assessment for street or sidewalk improvements. Toledo v. Board of Education, 48 O. S. 83; Board of Education v. To- ledo, 48 O. S. 87. And a statute making school property subject to assessment was held unconstitu- tional. Board of Education v. Auditor, 35 B. 294. But as to ex- emption of school property, see Becker \. Columbus, 18 C. C. 888; and see § 63 and notes. And where the school board held under a lease by which it agreed to pay the les- sor's burdens, property was held liable to assessment. Cincinnati v. Board of Education, 2 B. 184. Institutions of public charity are not exempt from assessment for im- 188 THE OHIO MUNICIPAL CODE. [Code § 50 provenient. Gilmour v. Pelton, 2 B. 159. Property of a cemetery corpora- tion not exempt though exempted by law from taxation. Lima v. Cemetery Association, 42 O. S. 128. Where property is dedicated to municipality on condition that lots abutting shall be exempt from im- provement assessments without the consent of the majority such lots will not be exempt, for the condi- tion is inoperative. Richards v. Cincinnati, 31 O. S. 506. Property in territory annexed. — Property annexed to a municipal- ity after the improvement was or- dered but before it was completed, may be included in the assessment. Upington v. Oviatt, 24 0. S. 232, 246. As to the effect upon assessment of a condition in an agreement of annexation, see Cincinnati v. Cor- ry, 2 B. 337. As to effect on assess- ment of previous improvement of property before its annexation to city, see Cincinnati v. Monfort, 3 B. 451. (4) Improvements by general taxation. — Council is authorized in § 50 of the Code, above, to assess any part of the cost of improving streets, etc., upon abutting, adjacent or contiguous property. It has ~ot the power to so assess all such cost, for it is restrained by § 53 of the Code and § 2284 R. S. (re-enacted in § 94 of the Code) and by the decisions cited thereunder. But council has power under § 32 of the Code to pay the entire cost of any and all public improve- ments by general taxation upon all the real and personal property in the corporation. Similar author- ity, though not so broad in scope, was given by §§ 2262 and 2263 R. S., repealed. (5) What costs and expenses included. — See notes to § 2284 R. S., re-enacted in § 94 of the Code. (6) For what purposes assess- ments may be levied. — Assess- ments may be made for grading and bowldering a street, under the gen- eral power to improve and assess. Jessing v. Columbus, 1 C. C. 90 (aff'd 22 B. 453; 23 B. 3.) Assessments may be made and enforced though the proceeds go, not to pay for the work or the bonds issued in anticipation, but to reimburse the general fund, where the municipality, on account of de- lays in collection, had to pay the bonds out of the general fund. Chamberlain v. Cleveland, 34 O. S. 551. An assessment may be made for the improvement of a public way, the right to which the public has acquired by prescription. Duffy v. Norwood, 3 N. P. 325. The assessment can be levied only for the costs and expenses connect- ed with the surface improvement of the street or public place. Costs and expenses connected with the ap- propriation of the property or with the satisfying of claims for dam- ages to abutting property, cannot be included in the assessment. See notes to § 2284 R. 8„ under § 94 of the Code, infra. Improvement without title in municipality. — A municipality has no power to improve private prop- erty for street purposes without the consent of the owner or appropria- tion proceedings, and therefore it cannot assess abutting property for such unauthorized improvement, even though the owner of lands as- sessed has been served with notice and received benefit. Baker v. Code § 50] ASSESSMENTS. IN GENERAL. 189 Norwood, 22 C. C. 173; see Harbeck v. Toledo, 11 0. S. 219. Where acceptance by ordinance was required before dedication could be deemed complete, a street claimed by the municipality but not so accepted cannot be improved. and assessments for its improve- ment are void. Merchant v. Wat- erman, 3 W. L. M. 48. Where the public street has been improved, the property owners can- not resist assessment on the grounc? that the site of the street was changed from a canal to the street without a new condemnation, or that a municipality had granted to a railroad company the right to use the street for its tracks. For any injury which may have been sustained by such changes in the use of the land, the remedy is by ac- tion for damages. Richards v. Cin- cinnati, 31 O. S. 506. Where a city's right to improve a street depends upon the approval of the plan of improvement by the state board of public works, prop- erty owners cannot resist assess- nent by showing that certain de- Tails in the plan had not been duly approved. 76. Title acquired later.— ine tact that a municipality has not ac- quired title to a part of the street on which improvement is made un- til after the work is contracted for will not make the assessment void. Cincinnati v. Wilder, 9 Eec. 727. Though the city has not title to the property improved at the time the preliminary steps for the im- provement were taken, yet if before the assessing ordinance is passed the property is duly acquired, the assessment will be legal. Cincin- nati v. Honnigfort, 32 B. 32; Wes- ton v. Hamilton County, 6 C. C. 641, 643 (affirmed without report. 30 B. 291); Toledo v. Barnes, 1 N. P. 185. Where the city acquired title to the property improved after the work was begun and even after suit commenced to enjoin the assess- ment, the assessment was held valid. Wilson v. Cincinnati, 5 N. P. 63. Condition in city's title. — Where the municipality has ac- quired by dedication the land to be be improved its title will not be de- fective because of a condition in the- dedication, but such condition will be inoperative. Richards v. Cincinnati, 31 O. S. 506. Where a city condemned turn- pike property in the hands of coun- ty commissioners as an abandoned road, the city's title will not be de- fective because of conditions of the grant to the turnpike company, of its roadway. Cincinnati v. Schoen- berger, 2 B. 128. Estoppel to deny title. — The land owner who permits the street to be improved, knowing that his predecessor in title had undertaken to dedicate it would be estopped to contest the assessment. Neff v. Bates, 25 O. S. 169. A property owner over whose private property, not yet acquired by a city, a sewer has been put, but who made no objection thereto at the time of the improvement, can- not resist the assessment for the improvement. His only remedy 1 1 damages for the appropriation. Wilson v. Cincinnati, 5 N. P. 68. As to estoppel to resist an as- sessment for improvement includ- ing private property not yet proper- ly acquired by the city where the lot owner permitted the improve- ment to go on without objection, see Cincinnati v. Schoenberger, 2 B. 128; Cincinnati v. Longworth, 4 Rec. 190 THE OHIO MUNICIPAL CODE. [Code § 50 528; Cincinnati v. Goodman, 5 Rec. 153. Street between two municipal- ities. — Where the street divides a city from a village each municipal- ity may improve the part within its boundaries and assess abutting owners and the difference in the amount between the assessments will not make them void for want of uniformity. Scully v. Cincin- nati, 1 C. S. C. R. 183. (7) Percentage of tax value. — Under former laws the statute lim- iting the amount of assessment to a proportion of the tax value of abutting property was held to mean the value fixed by the decennial ap- praisement in force when the im- provement ordinance was passed and not the one in force at the date of the assessment. Crossley v. Findlay, 10 C. C. 286. (8) Proportion to benefits. — Where an assessment is made in proportion to benefits, the amount of the assessment must be apportioned among the several lots and parcels of land specially benefited, in pro- portion to the special benefit which each lot or parcel bears to the whole special benefit conferred by the improvement. Chamberlain v. Cleveland, 34 O. S. 551. Such assessment is of course lim- ited to the benefit and cannot be in excess thereof. lb. An assessment cannot be levied part by front foot and part by bene- fits. Dick v. Toledo, 11 C. C. 349. As to validity of assessment pur- porting to be according to benefits, but actually by the front foot, see Nulsen v. Cincinnati, 27 C. C. 383; 5 C. C. (N. S.) 679. (9) By the foot frontage.— Constitutionality of assessments by foot frontage, when properly made by a municipal corporation for street improvements, is well settled. Chamberlain v. Cleveland, 34 O. S. 551. See further, Norwood v. Baker, 172 U. S. 269, as interpreted in French v. Barber Asphalt Co., 181 U. S. 324; Crawford v. Cincin- nati, 26 B. 215. Assessment made in terms by the abutting foot is valid, if it does not, in fact, exceed the special benefits. Shoemaker v. Cincinnati, 68 0. S. 603. Where the assessment is by the foot frontage of abutting property the rate of the assessment must be uniform upon all the property as- sessed. Jaeger v. Burr, 36 O. S. 164. The words " front foot " must be interpreted by their popular mean- ing. Betz v. Canton, 18 C. C. 676. As to what assessment may be deemed to be a front foot assess- ment, see Cincinnati v. Batsche, 52 0. S. 324. It was held that where the as- sessment was by the front foot the owners were liable according to the feet front assessable when the work was ordered and the assess- ment made, and not according to the frontage as afterwards reduced by appropriation. Spangler v. Cleveland, 35 0. S. 469. Lands not subdivided. See § 50a, p. 192. Real frontage— Corner lots, etc. — In assessing the cost of a street improvement on abutting property by the front foot regard must be had as to what is the real front of the property. This is a question of fact to be determined by the man- ner in which it was laid out or in which it has been built upon and used and occupied by the owner. Haviland v. Columbus, 50 O. S. 471; and the lengthwise side of a corner lot abutting on street im- proved cannot be assessed for the number of feet on that side, but only for the number of feet which the lot has at its real front. lb. The frontage of the k)t is to be determined by its situation when the improvement is made and not by its situation later, after changes, and where a lot owner after im- provement but before assessment builds on the rear of a corner lot houses fronting on the street im- proved, the assessment cannot then Code § 50] ASSESSMENTS. IN GENERAL. 191 be made as though the parts of the lot built upon fronted on the side street, but must be made only on the real or narrow frontage of the entire lot as it was before the houses were built. Sandrock v. Co- lumbus, 51 0. S. 317. The frontage of a corner lot, de- termined by the improvements on it, depends on the permanent and not on the temporary improvement. Burggreve v. Cincinnati, 1 N. P. 80; a side gate entrance will not constitute the side of the lot a front. lb. A tenement building on the rear of a corner lot would sever that part and make it a new lot and only the rest is subject to the corner lot rule. Wehage v. Cincinnati, 1 N. P. 82. And this is so even though the building cuts across and ignores platted lines of the lot. Matthews v. Cincinnati, 16 B. 249. As to other circumstances that will tend to show that the length- wise side of a corner lot is also a front and thus assessable as such, see Barney v. Dayton, 8 C. C. 480; Schmidt v. Cincinnati, 1 N. P. 48; Betz v. Canton, 32 B. 92; Toledo v. Sheill, 53 O. S. 447; Shattuck v. Cincinnati, 1 N. P. 394; Duffy v. Norwood, 12 C. D. 675; Meyer v. Cincinnati, 1 N. P. 81. But mere side entrances to a main building or entrances to a sub- ordinate building, such as a stable, will not make the lengthwise side of the lot a front, Betz v. Canton, 18 C. C. 676; nor a gate on the side for delivery of coal, Manns v. Cincinnati, 10 C. C. 549; (54 O. S. 257); nor the fact that rooms in the rear of a store build- ing are reached by entrance on the lengthwise side with a vacant yard in the rear, Metcalf v. Carter, 19 C. C. 196; nor the fact that there is an entrance on the side street to a barn, Daiber v. Toledo, 7 N. P. 389; nor the fact that there are doors and halls for access from a side street to a building fronting toward the end, though such en- trances are frequently used, To- ledo v. Sheill, 53 O. S. 447; nor that there are outbuildings which are accessible only from the side street but whose use is incidental to the occupation of the building, lb. The frontage of a vacant lot Is presumed to be its narrow end, Toledo v. Sheill, 53 O. S. 447. The fact that a building was erected on the rear of a lot since the improvement does not prevent the corner lot rule from applying. Metcalf v. Carter, 19 C. C. 196. Where there are four lots owned by one person fronting on one street, with a side street along the side of one of them the fact that the owner has put up a house on two of the lots farthest from the side street but not fronting thereon, will not justify assessment for entire amount of abutting feet on side street. Wolfe v. Avondale, 14 C. C. 375; and where a single lot has two houses on it, the assessment for the lengthwise side can be only for the amount of frontage of the part on which the one building nearest the side street is placed. Bentley v. Toledo, 7 N. P. 388. As to the case of an irregularly shaped lot, see Reed v. Cincinnati, 31 B. 279. As to assessment of triangular lot, see Thompkins v. Norwood, 1 N. P. 83; Toledo v. Ainsworth, 7 N. P. 391. Reed v. Cincinnati, 31 B. 279; Calkins v. Toledo, 12 C. C. 202. A lot fronting on three streets having a front at each end and on the side street can be assessed the 192 the ohio municipal code. [Code § 50a foot frontage on both the front streets for the improvement of the side street. Cincinnati v. Manss, 54 O. S. 257, 262. Where improvement is in rear of lot, assessment can only be accord- ing to width of front of lot. Frid- man v. Norwood, 1 C. C. (N. S.) 97; 25 C. C. 258 (aff'd 49 B. 99). Where a street runs around three sides of a lot the assessment must be apportioned to approximate uni- formity. Locke v. Cincinnati, 7 N. P. 318. Court will consider prior leases or conveyances in determining how much land belongs to a corner lot for the purpose of determining the assessable frontage. Cincinnati v. James, 2 N. P. 345. As to estoppel to claim that lot should be assessed only by the amount of frontage on its real front, because of admissions in a petition for the improvement, see note " Es- toppel to deny frontage " under § 62 of the Code. Sec. 50a. [When council shall fix fair average depth for lands not subdivided into lots.] 1 In making special assessments by percentage of the tax value or by the foot front on lots or lands not subdivided into lots, when such lots or lands are not assessed for taxation, the council shall fix, for the purpose of said assessment, the value of said lots as they stand and of said lands to what council may consider a fair average depth of lots in the neighborhood, so that it will be a fair average of the assessed value of other lots in the neighborhood, and in making such assessments in either of said ways on land not subdivided into lots but which are assessed for taxation, council shall fix the value and depth in the same manner. 2 Provided, however, the above rule shall not apply in making special assessment according to benefits. [1904, April 23, 97 v. 296.] old (1) Old sections.— See § 2269 R. S. (repealed) and §§ 2264a and 2271 R. S. (repealed). (2) Land in bulk, how deter- mined. — To determine whether land is in bulk or in city lots regard must be had not only to recorded plat, but size of lots generally. Bailey v. Zanesville, 20 C. C. 236; Springer v. Avondale, 35 O. S. 620. A tract may be a lot and not land in bulk, though not platted, if not larger than fair average of lots. Gibson v. Cincinnati, 27 B. 80. Situation of property at time of improvement ordinance governs, in determining whether land is in bulk or not. Shiner v. Norwood, 17 C. C. 631. Purpose of provisions. — A pro- vision such as this is intended to equalize the expense upon all land benefited. Where land is in bulk, Code § 51] ASSESSMENTS. IN GENERAL. 193 council must determine a fair aver- v. Youngstown, 43 0. S. 162; Find- age depth for such land for the lay v. Frey, 51 O. S. 390; Cincin- purpose of the assessment and fix nati v. Oliver, 31 0. S. 371; Gris- a value for such part as is as- wold v. Pelton, 34 O. S. 482. sessed, so that it can be seen Injunction will lie to restrain whether the limitation on assess- collection of assessment on land in ments has been exceeded and on bulk where council has not fixed what part of the land the lien of fair average depth. But court may assessment attaches. Bailey v. fix amount properly chargeable. Zanesville, 20 C. C. 236; Parmelee Griswold v. Pelton, 34 0. S*. 482. Sec. 51. [Resolution of necessity; plans, specifications; esti- mates and profiles to be prepared and filed in office of department of public service.] 1 Whenever it is deemed necessary by any city or village, to make any public improvement to be paid for in whole or in part by special assessments 2 council shall declare by resolution (three-fourths of the whole number elected thereto concurring, except as otherwise provided herein), the necessity of such improvement, 3 At the time of the passage of said resolution council shall have on file in the office of the board of public service in cities, and of the clerk in villages, plans, specifications, estimates and profiles of the proposed im- provement, showing the proposed grade of the street and improvement after completion, with reference to the property abutting thereon, which plans, specifications, estimates and profiles shall be open to the inspection of all persons interested. Said resolution shall determine the general nature of the im- provement, what shall be the grade of the street, alley, or other public place to be improved, as well as the grade or elevation of the curbs and approve the plans, specifications, estimates and profiles for the proposed improvement. [Council to determine method of assessment, etc.] Council shall also determine in said resolution the method of the assess- ment, the mode of payment thereof, and shall determine whether or not bonds shall be issued in anticipation of the collection of 194 THE OHIO MUNICIPAL CODE. [Code § 51 the same. 4 Assessments for any improvement may be payable in one to ten installments and at such time as council may prescribe, and when bonds are issued in anticipation of the collection of the assessment, the interest thereon shall be treated as part of the cost of the improvement for which assessment may be made. If said assessment or any installment thereof shall not be paid when due, they shall bear interest until the payment thereof at the same rate as the bonds issued in antici- pation of the collection of the same, and the county auditor shall annually place upon the tax duplicate the penalty and interest therein provided for. 5 [Publication of resolution.] Said resolution shall be pub- lished according to section 124 of the act of which this is amendatory, but shall take effect upon its first publication. 6 [1904, April 21, 97 v. 121.] (1) Old sections.— See old §§ 2304, 2264 and 2264a R. S. repealed. (2 j Procedure limited. — It seems that the procedure nere re- quired is limited to the making of public improvements for which spe- cial assessments are to be levied. Other improvements are required to be made in the manner provided in the sections of the Code governing the appropriation of private prop- erty and the duties with respect to contracts of the council, directors of public service, directors of public safety and trustees of public affairs. See, in accord, East End B. & T. Co. v. Cleveland, 1 N. P. (N. S.) 493 (aff'd Cir. Ct.). Compare old § 2304 R. S., re- pealed, which provided that " when it is deemed necessary by a city or village to make a public improve- ment" council shall declare the ne- cessity, give notice to the owners of abutting property, etc. Ques- tions as to what public improve ments required the procedure pro vided in § 2304 arose in Krum berg v. Cincinnati, 29 O. S. 6J Caldwell v. Carthage, 49 O. S. 334 Tyler v. Columbus, 6 C. C. 224 Becher v. McCloud, 4 C. C. 305 Nitzel v. St. Bernard, 3 N. P. 317 Fergus v. Columbus, 6 N. P. 82, 91 Garvin v. Columbus, 5 N. P. 236, 239; Rademacher v. Cincinnati, 21 B. 244; Longworth v. Cincinnati, 23 B. 100; Strauss v. Cincinnati, 24 B. 422. (3) Resolution of necessity. — Due passage jurisdictional. — Reso- lution declaring necessity and its due publication were held to be conditions precedent, under former statutes, to the power of council to pass the improvement ordinance. Welker v. Potter, 18 O. S. 85; Stephan v. Daniels, 27 O. S. 527; Smith v. Toledo, 24 O. S. 126; Cin- cinnati v. Corry, 2 B. 337. But see Upington v. Oviatt, 24 O. S. 232. Code § 51] ASSESSMENTS. IN GENERAL. 195 Object of resolution. — Though the legislature, in providing for the adoption and publication of pre- liminary resolution had in view, under former § 2304 R. S. the fix- ing of time within which those claiming damages must make their claims, yet this was not the only object of the requirements. They were calculated to prevent a hasty and inconsiderate exercise of pow- er. Smith v. Toledo, 24 0. S. 126, 132. Passage of resolution-. — Such a resolution would be a resolution of a general or permanent nature with- in the meaning of § 1694 R. S.; Campbell v. Cincinnati, 49 0. S. 463; Thatcher v. Toledo, 19 C. C. 311, 315; but see Upington v. Ovi- att, 24 O. S. 232. Resolution, what to contain. — Resolution sufficiently establishes grade and orders improvement if it refers to plans and specifications on file in office of engineer though that office is located outside of village. Wood v. Pleasant Ridge, 12 C. C. 177. Where resolution is broad enough to cover improvement including re- taining wall it is not necessary that another resolution declaring neces- sity for retaining wall be passed to authorize separate contract for such wall found necessary after work partly done and paid for by assess- ment. Cincinnati v. Shaw, 3 B. 556. Separate item not specified in resolution may nevertheless be au- thorized. Dixon v. Cincinnati, 11 C. C. 629. Resolution may except an intermediate part of the street to be improved. Wilder v. Cin- cinnati, 26 0. S. 284. It may or- der improvement of several streets or parts of streets if all is but one improvement. Irwin v. Greenville, 1 Davton. 140. Construction. — Resolution to im- prove a street one side only of which is within city limits will be con- strued to mean the improvement of that part only which is within the city. Scully v. Cincinnati, 1 C. S. C. R. 183, 187. As to construction of resolution or ordinance not clearly defining ter- mini of improvement, see Ridenour v. Saffin, 1 Handy, 464. What defects in resolution cured by curative statute, see notes under § 2289 R. S., p. 267. Method of assessment described in resolution or ordinance to im- prove cannot be departed from and a different method adopted when as- sessment is made. Dick v. Toledo, 11 C. C. 349. As to method of as- sessment which might be prescribed under former statutes, see Kelley v. Cleveland, 34 O. S. 468; Irwin v. Greenville, 1 Dayton, 140; Dick v. Toledo, 11 C. C. 349. (4) Right to pay cash.— Where the assessing ordinance fails to pro- vide the right to pay all assessments in cash, the ordinance is not void, but the owner may still exercise the right. Dodsworth v. Cincinnati, 18 C. C. 288. (5) Collection of installments. — Such installments are to be placed on the tax duplicate and col- lected as other taxes. Makley v. Whitmore, 61 O. S. 587. By § 94 of the Code it is made the duty of the clerk of council to certify all installments of assess- ments, whether past due or not, to the county auditor annually (where bonds are issued in anticipation of their collection), and such assess- ments are then collected as other taxes. See note 2 under § 2286 R. S., p. 265. 196 THE OHIO MUNICIPAL CODE. [Code § 51 Assessment on tax duplicate between the municipality and the prima facie valid and the burden owners of property assessed. Up- is on the property owner to show ington v. Oviatt, 24 0. S. 232. invalidity. Murphy v. Sims, 13 And omission to publish the pre- Dec. 62. liminary resolution is a fatal defect (6) Publication. — How made. which is not cured by a curative act — See note to § 124 of the Code. relating to technical irregularities. Effect of omission to publish. — Welker v. Potter, 18 O. S. 85. But Publication of the preliminary res- see Upington v. Oviatt, 24 O. S. olution as required by former stat- 232, and see Bolton v. Cleveland, 35 utes was held to be mandatory as O. S. 319. ORDER OF PROCEDURE IN STREET IMPROVEMENTS FOR WHICH ASSESSMENTS ARE LEVIED. 1. Resolution of necessity (three-fourths of council concurring), and determining grade, approving plans, specifications and estimates, and fixing the method of assessment, the mode of payment, and whether or not bonds shall be issued in anticipation of collection. (§51 of the Code.) This resolution may be passed at one meeting only by suspension of rule provided in § 122 of the Code. It must be published. (§§ 51 and 124 of the Code.) 2. Notice to the owners of property to be assessed, served by the clerk of council or an assistant, and on non-residents by publication. (§ 52 of the Code.) 3. Claims for damages, to be filed by the owners of abutting property. (§ 54 of the Code.) 4. Ordinance to proceed with the improvement (three-fourths of council concurring ; see § 6 1 of the Code ) , determining whether claims for damages shall be judicially inquired into before commencing or after the completion of the improvement; directing the solicitor or mayor to insti- tute proceedings to inquire into such claims; determining the mode of payment for the improvement; setting forth specifically the lots and lands to be assessed; describing the general nature of the improvement and the character of materials to be used; giving a reference to the improvement resolution theretofore passed, with the date of its passage and the declara- tion of intention to proceed with the improvement in accordance with said resolution and plans. If the estimated cost of the improvement is more than five hundred dollars, this ordinance should, in cities, authorize and direct the board of public service to make a contract with the lowest and best bidder, after advertisement according to law; and in villages, the ordinance should direct the clerk to advertise for bids, and the contract should be awarded by council to the lowest and best bidder, and executed by the mayor and clerk. If the estimated cost is less than five hundred dol- lars, the contract may be made by the board of public service in cities, and by council in villages, without advertisement. (§§ 55, 59, 143, 144 and 198 of the Code.) This ordinance may also be passed at one meeting by suspending the Code § 51] ASSESSMENTS. IN GENERAL. 197 rule, and should be published. (See §§ 122 and 124 of the Code, and § 1695 R. S. re-enacted in § 124 of the Code.) 5. Application for a jury to inquire into claims for damages. (§ 56 of the Code.) (If, in the ordinance to proceed, it has been determined to inquire into the damages after the completion of the improvement, the inquiry should follow such completion.) 6. Advertisement for bids. (See §§ 59, 143, 144 and 198 of the Code.) 7. Award and execution of contract. (§§ 59, 143, 144 and 198 of the Code.) 8. Appointment of three disinterested freeholders, and equalizing of as- sessments where the assessment is in proportion to benefits. See " Order of procedure for assessments by benefits," under § 68 of the Code. 9. Assessing ordinance. There is no requirement that the ordinance levying the assessment shall have more than a majority vote of council, and there seems to be none that it should be published, though its publica- tion would be advisable. An assessing ordinance might, as to method of passage, be regarded as the levying of a tax and should be read on three different days unless three-fourths of council suspend the rule. § 122 of the Code. FORM OF RESOLUTION DECLARING NECESSITY FOR IMPROVE- MENT. Resolution No Declaring it necessary to improve street from to by paving ( or constructing sewer or making other improvement ) . Be it resolved by the council of the city [or village] of . , State of Ohio, three-fourths of all members elected thereto concurring: Sec. 1. That it is necessary to improve street, from to , in the following manner (here describe general nature of the improvement, materials to be used, etc.) ; Sec. 2. That the grade of said street as improved shall be.* ( " the existing grade," or " the grade established by ordinance passed ," or specifically describe the grade to be established as shown by the engineer's plans ) ; and that the grade of the curbs shall be (here insert grade of curbs in relation to that of street) . Sec. 3. That the plans, specifications, estimates and profiles of the proposed improvement heretofore prepared by the engineer [or street commissioner] and now on file in the office of the department of public service [or in villages, of the clerk], be and the same are hereby approved. Sec. 4. That the whole cost of said improvement, less one-fiftieth thereof and the cost of intersections [or " per cent, of the whole cost of said improvement, less the cost of intersections"], shall be assessed by a per- centage of the tax value thereof [or, " in proportion to the benefits which may result from the improvement," or, " by the foot frontage "] upon the 198 the ohio municipal code. [Code § 52 following described lots and lands, to-wit: all lots and lands bounding and abutting upon the proposed improvement (or, here describe specifically benefited territory to be assessed) which said lots and lands are hereby determined to be specially benefited by said improvement; and the cost of said improvement shall include the expense of the preliminary and other surveys, and of printing and publishing the notices, resolutions and ordinances required, and the serving of said notices, the cost of construction, together with interest on bonds issued in anticipation of the collection of deferred assessments, and all other necessary expenditures.. Sec. 5. That the assessments so to be levied shall be paid in annual installments, with interest on deferred payments at per cent per annum; provided, that the owner of any property assessed may, at his option, pay such assessment in cash within days from and after the passage of the assessing ordinance, in which case said cash assessment shall not include any item of interest upon bonds to be issued in anticipa- tion of the collection of deferred installments of assessments. Sec. 6. That bonds of the city [or village] of shall be issued in anticipation of the collection of assessments by installment and in an amount equal thereto. Sec. 7. That the remainder of the entire cost of said improvement, not specially assessed, including the cost of intersections, together with the cost of any real estate or interest therein, purchased or appropriated, and the costs and expenses of any appropriation proceeding therefor, and the damages awarded any owner of adjoining lands and interest thereon, and the costs and expenses of any such award, shall be paid out of fund [or "by the issuance of bonds in the manner provided by law"]. Sec. 8. This resolution shall take effect and be in force from and after the earliest period allowed by law. Passed , 19 Attest. Clerk. President of Council. Sec. 52. [Notice; how served.] 1 A notice 2 of the passage of the resolution required in the last preceding section shall be served by the clerk of council, or an assistant, upon the owner 3 of each piece of property to be assessed 4 in the manner pro- vided by law for the service of summons in civil actions, pro- vided, that if any of said owners or persons be not residents of the county, or if it appears by the return, in any case, of the notice that such owner cannot be found, then a notice of the Code § 52] ASSESSMENTS. IN GENERAL. 199 passage of said resolution shall be published at least twice in some newspaper of general circulation within the corporation, and such notice, whether by service or publication, shall be completed at least twenty days before the improvement is made or the assessment levied, and the return of the officer or person serving such notice, or a certified copy of said return shall be 'prima facie evidence of the service of the notice as herein stated. 5 [1904, April 21, 97 v. 122.] (1) Old section, 2304 R. S. re- pealed. (2) Strict construction. — Re- quirements as to notice must be strictly pursued. Cincinnati v. Sherike, 47 O. S. 217. Must be written.— Notice that is required is a notice in writing. Cincinnati v. Sherike, 47 O. S. 217. Sufficiency. — Notice that a reso- lution was adopted declaring it necessary to open and improve a certain street between certain points by grading, etc., (specifying the manner of improvement) according to plans on file stating that the ex- pense was to be charged per front foot upon lands abutting was held to be sufficient under former sec. 2304. Canton v. Wagner, 54 O. S. 329. Notice that resolution declaring it necessary to improve a certain street between certain points and stating the manner of assessing cost was held not sufficient to inform the property owner that the city contemplated appropriating an easement for sloping fill. Fenner v. Cincinnati, 4 N. P. 182. A resolution to improve by change of grade should set forth specifically extent and character of the grade so that owners may know the effect upon their land. See Cincinnati v. Corry, 23 B. 359. Service of notice. — Under for- mer § 2304, it was held that the service of the notice must be per- sonal. McGee v. Avondale, 7 C. C. 246, but if notice was left at the residence or mailed and was duly received it would be sufficient. Mc- Gee v. Avondale, 7 C. C. 246; Green v. Cincinnati, 7 C. C. 233. Effect of want of notice. — The service of notice to resident land owners, required by old § 2304, was held to be a condition precedent to the exercise of the authority to pass a valid ordinance ordering the improvement so far as such owners are concerned or to make an assessment on their prop- erty to pay for the same, and the failure to give notice is not such an irregularity as would be cured by a curative statute. Joyce v. Barron, 67 O. S. 264, 268; but see further, Toledo v. McMahon, 9 C. C. 194; Kirby v. Winton Place, 7 N. P. 169; Schmidt v. Elmwood Place, 15 C. C. 351; Knecht v. Cincinnati, 18 C. C. 875; and as to construction of requirement under various former statutory provisions, see Bolton v. Cleveland, 35 O. S. 319; Scovill v. Cleveland, 1 O. S. 126; Chittenden 200 THE OHIO MUNICIPAL CODE. [Code § 52 v. Columbus, 1 N. P. (N. S.) 420; 14 Dec. 333. An owner who has not received notice will not forfeit his right to recover damages caused by the im- provement because of failure to file claim. Fenner v. Cincinnati, 4 N. P. 182. (3) Owner would mean any one having an interest in the real estate and includes mortgagees and owners of minor interests therein. Savings Co. v. Cincinnati, 12 Dec. 218. See also Allison v. McCune, 15 O. 726; Smith v. Altick, 24 0. S. 369, 377; Carpenter v. Canal Co., 35 0. S. 307, 317; Harrison v. Sabina, 1 C. C. 49. See also Hopple v. Cincinnati, 16 Dec. 557 (reversed Super. Ct. Gen. term ) . Service on lessee for ten years with privilege of purchase and in whose name property is assessed for taxation, held sufficient. Clemmer v. Cincinnati, 28 C. C. 89; 7 C. C. (iN.S.) 31. Service of notice on person in whose name property is assessed on tax duplicate, if not real owner, held not sufficient. Savings Co. v. Cin- cinnati, 12 Dec. 218. State need not be served where property is forfeited to state for taxes. lb. (4) To whom notice required. — No notice seems required to be served except upon the owners of property to be assessed. Old § 2304 R. S., repealed, required notice to all owners of abutting property. The chief purpose of this notice was held to be the giving of an oppor- tunity to file claims for damages. Savings Co. v. Cincinnati, 12 Dec. 218. The purpose of the notice now required seems to be two-fold, viz.: (1) To give the owners of property to be assessed an opportunity to be heard against the improvement or the assessment therefor, and (2) To give such owners an opportunity to file any claims there may be for damages. It follows that the owner of property not to be assessed and to whom no notice of a pro- posed improvement is given, need not file a claim under § 54 in order to recover damages sustained, but is left to his remedy against the mu- nicipality independent of such sec- tion. The property to be assessed, however, will usually include all that may be damaged by the improve- ment. See East End B, & T. Co. v. Cleveland, 1 N. P. (N. S.) 493; An- derson v. Columbus, 1 N. P. (N. S.) 541; 14 Dec. 180. Notice not waived by petitioning for improvement, unless expressly stated in petition. Joyce v. Barron, 67 O. S. 264. (5) Prima facie evidence. — The return of the officer serving the no- tice was held prima facie evidence of service under old § 2315 R. S., repealed, and the burden of proof was said to be upon the property owner who denied the service. Strauss v. City, 23 B. 359. FORM OF NOTICE TO OWNERS OF PROPERTY TO BE ASSESSED. To : You are hereby notified that on the day of , 19 , the council of the city [or village] of , State of Ohio, duly passed Resolution No to improve street from to by (here describe character of improvement) in accordance with the plans, profiles, specifications and estimates on file in the office of the department of public service [or in villages, of the clerk], and that Code § 53] ASSESSMENTS. IN" GENERAL. 201 the grade of the street and curbs shall be as follows: (here repeat de- scription of grade of street and curbs as shown in improvement resolution). That the costs and expenses of said improvement will be assessed as follows : ( here repeat the method of assessment and the lots and lands or territory to be assessed as shown in the improvement resolution ) . By order of the council of the city [or village] of Clerk. (If the assessment is to be by the front foot this notice should go to all abutting owners. If by percentage of tax value or according to benefits, it should go to all whose property may be included in the subsequent assess- ing ordinance.) FORM OF RETURN BY OFFICER SERVING NOTICE. Received the above notice on the day of , 19...., and served the same by delivering a true copy thereof personally, (or insert any other method in accordance with requirements of law for service of summons in civil actions) up«n the following persons on the dates below specified : Name. Date of service. Remarks. Clerk [or assistant] of the City [or Village] of Sec. 53. [Limitation of assessments.] 1 In all cases of as- sessments, the council shall limit the same to the special bene- fits 2 conferred upon the property assessed, and in no case shall there be levied upon any lot or parcel of land in the corpora- tion any assessment or assessments for any or all purposes, within a period of five years, exceeding 331/3 per cent, of the actual value thereof after improvement is made ; 3 provided, that the assessments levied for the construction of main sewers 4 shall not exceed the sum that would in the opinion of council 5 be required to construct an ordinary street sewer or drain of sufficient capacity to drain or sewer the lots or lands to be assessed for such improvement, nor shall any lots or lands be assessed that do not need local drainage or which are provided therewith. 6 [Municipality to pay portion of cost of ;mprovement ; as to intersections.] In all municipalities the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which 202 THE OHIO MUNICIPAL CODE. [Code § 53 part shall not be less than one-fiftieth of all such cost and ex- penses; and in addition thereto, the corporation shall pay the cost of intersections; [Limitation as to reassessment.] provided, that whenever special assessments have been levied and paid, for the improve- ment of any street or other public place the property so assessed shall not again be assessed for more than one-half the cost and expense of repaving or repairing such street or other public place unless the grade of the same is changed ; 7 [Municipality may issue bonds to pay its share of costs.] provided, that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corpora- tion's part of any improvement as aforesaid, and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon. 8 [1904, April 21, 97 v. 126.] (1) Old sections.— Old § 2264, R. S. ( repealed ) . See also old § 2283 R. S. (repealed). For old § limiting assessments to percentage of tax valuation, see § 2270 R. S. (repealed). Former statutes limit- ing assessments to percentage of ac- tual value were §§ 2271 and 2264a R. S. (repealed). Compare also § 2380 R. S., re- pealed, relating to limitation of sew- er assessments. (2) Limited to special benefits. — Even without any statute ex- pressly limiting assessments to the special benefits conferred, the courts have reached the conclusion that they must be so limited in order to be constitutional. In Walsh v. Barron, 61 O. B. 15, the court says that "it is a fundamental principle underlying special assessments that the property is specially bene- fited by the improvement beyond "the benefit to the public and a ratable assessment to the extent of such benefit is proper and constitu- tional, but in no case can it exceed the benefits." See also Schroder v. Overman, 61 O. S. 1; Dayton v. Bauman, 66 O. S. 379; Walsh v. Sims, 65 O. S. 211. Benefits from the improvement can not be estimated on basis that before improvement lots had become depreciated in value because mu- nicipality had improperly allowed street to become a public dump. Kummer v. Cincinnati, 27 C. C. 683 ; 6 C. C. (N. S.) 559. Courts will not enjoin an assess- ment claimed to be in excess of spe- cial benefits where excess is because of depreciation in value since im- provement. Murphy v. Sims, 13 Dec. 62; Borger v. Columbus, 27 C. C. 812; 6 C. C. (N. S.) 401. An assessment merely showing that it is placed on "benefited prop- erty" will not be conclusively pre- sumed to be limited to special bene- fits. Chamberlain v. Cleveland, 34 O. S. 551. Where the assessment is according to benefits the whole amount of the benefit must be apportioned amongst the lots in proportion to the benefit of each. lb. But it is not necessary that the total excess of benefits be first as- certained before total assessment is distributed among the various lots. It is sufficient that the assessment of each lot does not exceed the benefit to that lot and that it bears only its just proportion of total assessment. Code § 53] ASSESSMENTS. IN GENERAL. 203 Blair v. Caiy, 24 C. C. 560; 2 C. O. (N. 8.) 25; Ayers v. Toledo, 26 C. O. 767 (reversed on other grounds, 72 O. IS. 651). See further, note under § 68, infra. An ordinance which levies the as- sessment upon abutting property by the front foot without further pro- vision, though it does not limit it to benefits, was held not void if in fact it could be shown that the assess- ment did not exceed the special bene- fits conferred. Queen City Foundry Co. v. Cincinnati, 8 N. P. 167; Shoe- maker v. Cincinnati, 68 O. S. 603 j Schroder v. Overman, 61 O. S. 1; and see Norwood v. Baker, 172 U. S. 267, as interpreted in French v. Bar- ber Asphalt Co., 181 U. S. .324. Where benefits exdeeded ; power of court. — Where the as- sessment has exceeded the benefits, the court, in a suit to collect the assessment or a suit to enjoin the collection, may determine what amount may properly be assessed and enjoin collection of the balance only. Walsh v. Sims, 65 O. S. 211; Benham v. Cincinnati, 26 C. C. 17. Where, however, the proper mu« nicipal authorities have determined that the assessment does not ex- ceed the benefits, such finding and assessment are prima facie correct, and the court should not interfere to disturb the assessment, unless so manifestly unjust as to be tanta- mount to fraud on the part of the authorities. Price v. Toledo, 25 C. C. 617; 4. C. C. (N. S.) 57; Ben- ham v. Cincinnati, 26 C. C. 17; see also Chamberlain v. Cleveland, 34 O. S. 551 ; Mechlem v. Cincinnati, 28 C. C. 216; 7 C. C. (N. S.) 212. The burden of proof is on the plaintiff, to show that assessment exceeds ben* efit. Yost v. Railway Co., 24 C. O. 169; 2 C. C. (N. S.) 519. Waiver of limitation. — The limitation that assessments must not exceed benefits may be waived by contract by persons petitioning for the improvement. Thornton v. Cin- cinnati, 26 C. C. 33; 4 C. C. (N. S.) 31. For matters relating to estoppel to contest assessment as exceeding benefits, because of petitioning for the improvement, see notes under § 62 of the Code. (3) Percentage of actual value. — In no event can the lot owner be assessed for more than his ratable share of the actual cost and ex- pense of the improvement and he cannot be assessed to the full amount of such proportion if that exceed the statutory limitation. Pike v. Cummings, 36 O. S. 213. A property owner's assessment will not be reduced because subse- quent to the improvement part of the property was dedicated to the city for street purposes. Wilson v. Cincinnati, 5 N. P. 68. Determination of value. — Where there is a large tract of land as- sessed and the assessment does not exceed the percentage limitation of the entire tract assessed, the assess- ment on any part is not invalid be- cause as to such part if standing alone, the assessment would exceed the percentage of value allowable. Schroder v. Overman, 61 O. S. 1. By present law value after im- provement is made, governs. As to rule under former laws, see Cham- berlain v. Cleveland, 34 0. S. 551. Sidewalks and sewers. — The limitations of former sections on as- sessments were held to apply to sidewalks, (Norwood v. Building As- I sociation, 7 C. C. 95), and to sewers, (Cincinnati v. Connor, 55 O. S. 82). .But, as to sewers, where a general plan has been adopted, see Cincin- nati v. Wewell, 16 B. 287. Separate improvements. — The present section requires that no as- sessment for any or all purposes ex- ceeding thirty-three and one-half per cent of the actual value of the prop- erty assessed, shall be levied within -the period of five years. This would seem to restrict the aggregate amount of assessments on any one piece of property within this period whether the improvements were on the same or a different street, and whether the improvements were of the same or a different character. Former sections limiting amount of assessments within a given period, were not of this broad character. § 2271 R. S. (repealed) limited the amount of assessments that could 'be made "for any improvement." This was held to mean any one im- provement and not to apply to two separate improvements such as a street improvement and a sidewalk improvement, neither of which ex- ceeds the limitation but which to- gether might exceed it. Hunt v. 204 THE OHIO MUNICIPAL CODE. [Code § 53 Hunter, 11 C. C. 69; Cole v. Hun- ter, 5 N. P. 13; Cincinnati v. Fug- man, 5 N. P. 14; Toledo v. Bank, 7 N. P. 330; Drake v. Cincinnati, 25 C. C. 373. § 2283 R. S. pro- vided that the same territory " shall not be assessed for making two dif- ferent streets or avenues." This was held to apply only to improvements on different streets, and not to sepa- rate and distinct improvements on the same street. Drake v. Cincin- nati, 25 C. C 373; but the limita- tion applied though the improve- ments on the different streets were not of the same character. Pretzin- ger v. Sunderland, 63 O. S. 132. These cases do not apply under the present section. The aggregate of two assessments may exceed the limitation, if the owner has previously waived the limitation as to one of them by peti- tioning for the improvement or otherwise, and the other does not itself exceed the limitation. Pun- shon v. Cincinnati, 27 B. 155. __ Interest. — If the interest on bonds issued for a street improve- ment, being included in an assess- ment, makes the same exceed the percentage of the value of the prop- erty allowed by law to be assessed, injunction will lie to prevent its col- lection. Salem v. Mulford, 22 C. C. 397 (affirmed without report, 62 O. S. 632). Interest on deferred installments which increase the assessment be- yond the statutory limitation will be enjoined. Bonds v. Salem, 10 C. D. 822; 20 C. C. 703. Excess only, void.— The whole assessment is not void because it ex- ceeds the limitation. The excess is merely not collectible and must be paid by municipality. Upington v. Oviatt, 24 O. S. 232. Second assessment only, inval- id. — Where there have been two as- sessments and the owner has paid the last in full it was held that he cannot resist the first because the two together have exceeded the lim- it, since the last only would be the defective one. Brooks v. Norwood, 12 C. C. 257. . Estoppel to dispute excess.— As to when owner is estopped by petitioning for improvement or otherwise to resist such part of as- sessment as exceeds the limitation, see notes under §§61 and 62 of the Code. (4) Main sewers. — As to what is a main sewer, see Cincinnati v. Standard Wagon Co., 1 N. P. 387. Limitation of assessment — Un- der former statutes it was said in Toledo v. Ry. Co., 4 C. C. 113, 128, " where a sewer has been construct- ed, whether the municipal corpora- tion which constructed it has been divided into sewer districts or it- self constitutes a sewer district; whether it is a main sewer, intended to furnish drainage for the whole territory lying within the district, or is a local sewer properly so-called — the power to levy special assess- ments to meet the cost and ex- penses of such an improvement is limited to what would be the fair cost of providing . . . . ' an or- dinary street sewer, or drain of sufficient capacity to drain or sewer such lots and lands.' n (5) Opinion of Council. — Whether the opinion of council as to the size of sewer which will be of sufficient capacity to drain the lot could be overruled by the courts, quere. It certainly could not be overruled unless there has been gross abuse of discretion. Stanley v. Cincinnati, 13 Dec. 223. (6) Local drainage.— By mu- nicipal sewers. — Under sections of a statute such as this property al- ready provided with sewers con- structed by the city are exempt from further sewer assessment. But to claim the exemption on the ground that the city has already provided a sewer it must be shown that the sewer already constructed by the city is one for the use of the proper- ty, amongst others, of the one claim- ing the exemption, that is, it must have been intended for and used for the drainage and accommodation of che lots abutting on the street in which it is constructed. Toledo v. Brown, 2 N. P. 45. Thus, if the city sewer is mere- ly for the purpose of draining a pond into a trunk sewer, but not to Code § 53] ASSESSMENTS. IN GENERAL. 205 accommodate lot owners, such own- ers cannot claim exemption from future assessment. Toledo v. Brown, 2 N. P. 45. And this is so even though such lot owners had secretly made connection with such sewer. lb. So a sewer for surface drainage only, made before the street was im- proved to allow property owners to connect with a sewer temporarily on condition that they should pay when a regular sewer was built, is not local drainage that would ex- empt. Cincinnati v. Honnigfort, 32 B. 32. But in a case where prop- erty does not abut on the street in which the sewer is laid, but where non-abutting lot owners have the right to connect with such sewer, they will be held to be already pro- vided with local drainage. Miller v. Toledo, 12 C. C. 706. A sewer built by a city many years before, having no proper out- let, and not suited to the condition of the property at the later time, nor intended by the city even at the time as a part of its sewer sys- tem, but merely as a temporary ex- pedient, will not be a provision for local drainage that will prevent as- sessment for a sewer suited to the needs of the time. Avondale v. Scudder, 12 C. C. 770. So where the sewer built by the city had no proper outlet, merely emptying on private property, and subject to be closed at any time, it does not sat- isfy the requirements as being a pro- vision for local drainage and no ex- emption cm be claimed thereby. Wilson v. Cincinnati, 5 N. P. 68. The mere fact that an -ordinance was passed by a municipality pro- viding for sewer in front of prop- erty of the one claiming exemption, but which sewer was never con- structed, would not exempt such propertv. Cincinnati v. Bickett, 26 O. B. 49. By private sewers. — In order to give application to the exemption in the statute it is not necessary that the local drainage referred to should be provided by municipal au- thority. Ford v. Toledo, 64 O. S. 92, 98. But see Johnson v. Avondale, 1 C. C. 229, 232; Wewell v. Cincin- nati, 45 O. B. 407. Thus, property though not supplied with a regular system of city sewerage, but which is .completely drained by an exten- sive sewer constructed partly by the city, and partly by individuals, was held to be exempt from further as- sessment. Wewell v. Cincinnati, 45 O. S. 407. So where a railway com- pany had constructed a permanent and expensive brick sewer that com- pletely drained its property it was held to be already provided with sewerage and thus exempt. Toledo v. Railway Company, 4 C. C. 113. So a tile sewer constructed by a property owner receiving and dis- charging all surface and other drain- age into trunk sewer will be held to constitute sufficient local drainage. Cincinnati v. Sullivan, 8 N. P. 22. But to claim exemption because of the construction of a private sewer it must be shown that the sewer or drain was of such dimen- sions, mode of construction, location, outlet, etc., as would belong to a sewer built by the municipality sub- stantially in conformity to the re- quirements of the statute. Toledo v. Railway Co., 4 C. C. 113, 131. So draining by a wooden box drain as a temporary expedient would not be sufficient. Wewell v. Cincinnati, 45 O. S. 407, 422. Property own- ers are not exempt merely because they made such private arrange- ments for draining their property as are satisfactory to themselves. Johnson v. Avondale, 1 C. C. 229, 232. But if private sewer afford ade- quate drainage, the fact that mu- nicipality is constructing a new and better sewer, will not make property owner liable for assessment. Lans- mead v. Cincinnati, 4 O. L. R. 135. The "adequate local drainage," in order to give exemption from as- sessment, must be such as to include both permanency of structure and control. Frey v. Millikin, 15 Dec. 122; Hildebrand v. Toledo, 27 C. C. 427. So, a connection by drain through another lot, with a sewer, where control might be lost by sale of lot, held not adequate local drainage. Frey v. Millikin, 15 Dec. 122. By natural sewer drainage. — Lands and lots within a municipal- ity which are naturally sufficiently drained are exempt from assessment for sewers. Cincinnati v. Hess, 19 C. C. 252. But the fact that there is a per- manent water course to which a lot reaches back and into which it is 206 THE OHIO MUNICIPAL CODE. [Code § 53 drained, will not be sufficient to ex- empt it, for polluting such water course would be unlawful, even though the city is unlawfully empty- ing a sewer into such water course. Cincinnati v. Kasselmann, 23 B. 392; Hildebrand v. Toledo, 27 C. C. 427; 6 C. 0. (N. S.) 450. In order to exempt the property owner, the drainage claimed must be such as he has a right to make, ana cannot be one that creates a nuis- ance, lb. Fred v. Millikin, 15 Dec. 122; and the fact that a lot is pro- vided with drainage at a point be- yond the average depth of lots will not exempt it. lb. The fact that the house sewage of the house on the lot and the surface water from the lot are carried off, is not sufficient to support the con- tention of complete local drainage. The lot is not completely drained un- less the water is also carried off that would naturally flow on to it from other lots above it, or in the neigh- borhood. Stanley v. Cincinnati, 13 Dec. 223; 1 N. P. (N. S.) 235. Surface drainage. — The fact that land within a municipality is supplied with sufficient surface drainage is not enough to entitle it to claim "local drainage" within the purview of the statute. The drainage must be such as provides the land with adequate drainage for the necessary and useful purposes of sewerage. Ford v. Toledo, 64 O. S. 92. Unimproved property. — T h e fact that the property is entirely unimproved and that there is no immediate need for drainage, will not exempt it from assessment for sewerage purposes. Ford v. Toledo, 64 O. 8. 92. Land not subdivided, if sup- plied with local drainage cannot be partly assessed for a sewer on the ground that if subdivided the part near sewer would not be supplied with independent drainage. Knabe v. Cincinnati, 49 B. 37. Proposed sewer not available, — See note to § 87 of the Code, p. 254. How determined, generally, — Whether a lot is already supplied with sufficient local drainage is a question more or less of opinion and is governed by no fixed standard. Miller v. Cincinnati, 18 C. C. 869. The question is to be determined bv all the facts and circumstances surrounding the property and exist- ing at the time of assessing. Cin- cinnati v. Hess, 19 C. C. 252. Conclusiveness of council's determination, — The decision of council as to what lots are already provided with local drainage will not conclude the court's inquiry into this question. Toledo v. Railway Co., 4 C. C. 113. When provision applicable. — The provision of former § 2380 R. 8., repealed, exempting from assess- ment for sewer purposes lots or lands which are provided with local drainage, was held applicable to lat- eral as well as main sewers. Stanley v. Cincinnati, 13 Dec. 223; 1 N. P. (N. S.) 235. See also Toledo v. Ry. Co., 4 C. C. 113. But see further Ford v. Toledo, 64 O. S. 92; Hart- well v. Bldg. Ass'n, 2 B. 287. Uniformity. — A property owner is not exempt and cannot resist an assessment for sewerage purpose on the ground that other abutting prop- erty is not assessed because already provided with drainage. Toledo v. Potter, 19 C. C. 661. Or because some lots have been partly exempted, because assessed for a reduced frontage, as author- ized by statute. Cleneay v. Nor- wood, 14 O. P. D. 469; 2 0. L. R. 462. Enjoining assessment. — Prop- erty being already provided with lo- cal drainage, the owner may enjoin assessment for the construction of a new sewer and need not wait until the assessment is actually levied. Potter v. Norwood, 21 C. C. 461. (7) Change of grade. — Even if the grade is changed, the property cannot be assessed that part of the expense of the improvement which includes damages awarded to abutting owners for the change of grade. McGlynn v. Toledo, 22 C. C. 34 (affirmed, 47 B. 712). Sec. 64 of the Code provides spe- cially for case of change of grade. See that section and notes. (8) Bonds for municipality's portion of street improvement. — The issuance of bonds not in an- ticipation of collection of special as- sessments, but to pay the munici- pality's portion of the cost of a street improvement, held not to be governed by the provisions of the "Longworth Bond Act." Columbus v. Lazarus, 15 Dec. 187. Code § 54] ASSESSMENTS. DAMAGES TO PROPERTY. 207 (b) Damages to abutting property. Sec. 54. [Claims for damages to be filed with clerk of council; effect of failure to so do.] 1 An owner 2 of a lot> or of land, bounding or abutting 3 upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, shall, within two weeks after the service, or the completion of the publication of the notice mentioned in section 52 ? file a claim 4 in writing with the clerk of the council, setting forth the amount of the damages 5 claimed, together with a general description of the property with respect to which it is claimed the injury will accrue; an owner who fails to do so, shall be deemed to have waived the same, and shall be barred from filing a claim or receiving damages; and this provision shall apply to all damages which will obviously result from the improvement, 6 but shall not deprive the owner of his right to recover damages arising, without his fault, from the acts of the corporation, or its agents; provided, that if subsequent to the filing of such claim, the owner sells the property, or any part thereof, the assignee shall have the same right to damages which the owner would have had without the transfer. [1904, April 21, 97 v. 122.] (1) Old section.— This is a sub- Dec. 33, (aff'd, Cir. Ct. 49 B. 33). stantial re-enactment of § 2315 R. S., (2) Who may claim damages. repealed. — A mortgagee of property dam-/, Constitutionality. — Old § 2315 aged has such an interest that he R. S. held valid in Cleveland v. Hy- may claim damages for change of land, 18 C. C. 868. See also Reck- grade, and if he received no notice, ner v. Warner, 22 O. S. 275; Cupp may maintain action for such V. Commrs, 19 0. S. 173. claim. Savings Co. v. Cincinnati, 12 Strict construction. — This sec- Dec. 218. tion barring right to damages when (3) Land not abutting on im- claim not filed, should be strictly provement.— Old § 2315 R. S. construed. East End B. & T. Co. v. was held not to apply to land abut-' Cleveland, 1 N. P. (N. S.) 493; 14 ting the street but not abutting pro- 208 THE OHIO MTj^IC'JSAX. CODE. [Code § 54 posed improvement ( an elevated via- duct) and the owner of such land need not file claim. Cohen v. Cleve- land, 43 O. S. 190. But mu»icipal- ity may be liable though land does not abut immediately upon the im- provement. Keating v. Cincinnati, 38 O. S. 141. When improvement touches but one corner of lot, section held not to apply. Miller v. Cincinnati, 2 B. 156. On question of lands abut- ting improvement, see also R. R. Co. v. McLaughlin, 15 C. C. 1 ; Jack- son v. Jackson, 16 O. S. 163; Birt- whistfe v. Cincinnati, 8 B. 25; Eagle White Lead Co. v. Cincinnati, 1 C. S. C. R. 154. (4) Failure to file claim is an absolute bar to recovery in all cases where statute applies. Hickox v. Cleveland, 8 O. 543 ; Cohen v. Cleve- land, 43 O. S. 190; R. R. v. De- fiance, 52 O. S. 262; Cleveland v. Hyland, 18 C. C. 868 ; Taber v. Bow- ling Green, 28 C. C. 173 j 7 C. C. (N. S.) 385. A verbal claim is insufficient where statute requires that it shall be in writing. Anderson v. McKin- ney et al., 24 O. S. 467. (5) Recovery limited to amount claimed. — See Cleveland v. Hyland, 18 C. C. 868. But if property owner is deceived by state- ments of city engineer as to char- acter of proposed improvement, the plans and profiles being unintelligi- ble, and makes a compromise of his claim this will not bar a further re- covery. Property Owner v. Akron, 7 N. P. 454. Claim cannot be increased after time for filing has expired. See Geib v. Cleveland, 7 N. P. 301. When filing claim unneces= sary. — In case of improvements which are not to be paid for in whole or in part by special assess- ments, no claim for damages need be filed to entitle property owner to recover. East End B. & T. Co. v. Cleveland, 1 N. P. (N. S.) 493; 14 Dec. 33, (aff'd, Cir. Ct. 49 B. 33); and see note 2, under § 51 supra. But claims for damages may be filed in such case at property owner's option. East End B. & T. Co. v. Cleveland, 1 N. P. (N. S.) 493; 14 Dec. 33, (aff'd, Cir. Ct. 49 B. 33). An abutting property owner to whom no notice of proposed im- provement was given need not file claim under this section. Jacobs v. Cincinnati, 2 N. P. 283; Toledo v. McMahon, 9 C. C. 194; McGee \. Avondale, 7 C. C. 246. As to suffi ciency of notice, see Fenner v. Cin- cinnati, 4 N. P. 182. Where munic- ipality makes one a party to suit to assess compensation his failure to file claim is waived. Cincinnati v. Sherike, 47 O. S. 217. Where prop- erty owner has been misinformed by city engineer as to change of grade and thus led not to file a claim, his failure will not prevent re- covery. Youngstown v. Moore, 30 O. S. 133. As to necessity for filing claim under § 2326 R. S., re-enacted in § 94 of the Code, see notes thereto. If notice is not sufficient to inform property owner with reasonable cer- tainty of the effect of proposed im- provement upon his lands he is not barred from recovering damages sus- tained by failure to file claim. Cin- cinnati v. Corry, 23 B. 359. (6) Basis of recovery. — The basis of the recovery of damages is that the abutting owner has been misled by the municipality to his prejudice. Right of access to and from the street is property, and where an owner has improved his lot, relying upon a previously estab- lished grade or upon a reasonable grade thereafter to be established, and the municipality changes the established grade or establishes an unreasonable grade, in either case so as to injuriously affect the access of the abutting owner, he is entitled to recover the damages thereby sus- tained, for it is not just that he should bear the whole loss. Goodloe v. Cincinnati, 4 O. 500; Smith v. Cincinnati, 4 O. 514; Le Clercq v. Gallipolis, 7 O. 218; Hickox v. Cleveland, 8 O. 543; Rhodes v. Cleveland, 10 O. 159; Bingham v. Doane, 9 O. 165; Akron v. McComb, 18 O. 229; Crawford v. Delaware, 7 O. S. 459; Cincinnati v. Penny, 21 O. S. 499 ; Akron v. Chamberlain, 34 O. S. 328; Ryan v. Cinti, 1 C. C. 558; Cincinnati v. Weber, 23 C. C. 651; 3 C. C. (N. S.) 56; East End B. & T. Co. v. Cleveland, 1 N. P. Code § 54] ASSESSMENTS. DAMAGES TO PROPERTY. 209 (N. S.) 493; 14 Dec. 33, (aff'd, Cir. Ct. 49 B. 33). Owner cannot enjoin improvement until damages have been paid or se- cured. East End B. & T. Co. v. Cleveland, 1 X. P. (N. S.) 493; 14 Dec. 33, (aff'd, Cir. Ct. 49 B. 33). Change of existing grade. — Municipality is liable where abut- ting owner has improved his lot with reference to an existing grade and the grade is subsequently changed to his damage. Akron v. Chamberlain, 34 O. S. 328, and other cases cited above. Where grade that is changed is that of an old highway adopted and used as a street, municipality is liable for damages to improvements made with reference to the old grade. Youngs- town v. Moore, 30 O. S. 133; but change in the grade of a canal tow- path gives no cause of action. Chat- field v. Cincinnati, 1 B. 125. Where turnpike grades are changed after becoming city streets, owners of abutting property damaged may re- cover. Cincinnati v. Williams, 10 Rec. 705. An existing grade need not have been established by ordinance to justify property owners in improv- ing it; its establishment may be shown by nature of surface im- provement by municipality, pro- vided same is not merely temporary. Akron v. Chamberlain, 34 O. S. 328, 336. Whether municipality has by use adopted a surface grade is a question for the jury. Chatfield v. Cincinnati, 1 B. 125. Improve- ments for temporary convenience do not indicate establishment of grade. McGee v. Avondale, 31 B. 163. Lay- ing of sewers and sidewalks in an unimproved street does not estab- lish a grade. Neubert v. Toledo, 9 C. C. 462. Long user may estab- lish the grade of the traveled por- tion only of a street, and where improvements are made with ref- erence to grade immediately in front of owner's premises city can- not be held for damages by chang- ing the grade of the whole street. Cincinnati v. Roth, 20 C. C. 317; and the grade of the traveled and improved portion of a roadway de- termines the grade for the entire width. lb. After municipality has estab- lished grade it must proceed with improvement within reasonable time, and when this is not done a property owner building with ref- erence to old grade, but after estab- lishment of new, may recover dam- ages. Nolte v. Cincinnati, 3 C. C. 503. And where city fails for six months to pay damages awarded for change of grade, it will be held to have abandoned the improvement. Toledo v. Jacobson, 11 C. C. 220. Where an agreement of annexation of a village to a city, provided that grades of the village streets should not be changed without con- sent of, and compensation to. the owners of abutting property, it was held that such agreement merely secured to such owners the same rights as if such streets had been es- tablished by the city. Thale v. Cincinnati. 1 N. P. 427. Municipal- ity cannot bind itself by agreement not to change the grade of a street. lb. See also Gas Light and Coke Co. v. Columbus, 50 O. S. 65; Corry v. Cincinnati. 22 B. 194. As to ef- fect of consent of property owner to change of grade see Feuerstein v. Jackson 8 C. C. 396. Establishment of unreasonable gra^e. — Municipality is liable where abutting owner improves be- fore any grade is established and subsequently an unreasonable grade 210 the ohio municipal code. [Code § 54 is made. Akron v. Chamberlain, 34 O. S. 328; but owner in improving must anticipate a reasonable grade. lb. But where owner makes im- provements after a grade has been established but before the street is built to conform to it, he cannot re- cover, even though such grade is un- reasonable. Cincinnati v. Weber, 23 C. C. 651; 3 C. C. (N. S.) 56. When no grade has been estab- lished by ordinance or user, property owner is not entitled to damages when grade is established, unless it is an unreasonable grade. Ross v. Cincinnati, 24 C. C. 43; 2 C. C. (N. B. 594 (affirmed, 67 O. S. 521) ; Ta- ber v. Bowling Green, 28 C. C. 173 ; 7 C. C. (N.S.) 385. What is a reasonable grade. — Establishment by municipality is not conclusive of reasonableness. Pitton v. Cincinnati, 3 C. C. 593. Reasonableness of grade is a ques tion for the jury. lb. Reasonable ness of grade cannot be shown by opinion of a witness, but jury must determine this from facts put in evidence. Feuerstein v. Jackson, 8 C. C. 396, 399. Owner of unimproved lot can- not recover damages for change of grade, being presumed to purchase with a view to a reasonable im- provement of the street. Crawford v. Delaware, 7 O. S. 459; Leonard v. Cassidy, 8 C. C. 529. What is an improved lot. — Buildings constitute improvement, and damages to them are recovera- ble. Crawford v. Delaware, 7 O. S. 459; Akron v. Chamberlain, 34 O. S. 328 ; Keating v. Cincinnati, 38 O. S. 141. Grading to an established grade is an improvement, and when the change destroys the value of such grading the same may be recovered, not exceeding in amount the value of the lot. Seasongood v. Cincin- nati, 5 C. C. 225; affd., 51 O. S. 611. Updh same principle the building of fences and walls and the planting of trees, hedges and shrub- bery are improvements. Cincinnati v. Williams, 10 Rec. 705; so is a sidewalk. Kellner v. Dayton, 1 Day- ton, 28. Measure of damages. — The owner is entitled to that sum which represents the diminution in value of his property caused by change of grade or the establish- ment of an unreasonable grade. General benefits derived from the improvement cannot be offset, though special and local benefits not such as are conferred upon other abutting property may be so offset. Martin v. Bond Hill, 7 C. C. 271; Cincinnati v. Williams, 10 Rec. 705; R. R. Co. v. Gardner, 45 O. S. 309, 323; Carlisle v. Cincinnati, 8 C. C. (N. S.) 46. The measure of dam- ages is the difference in value of the property as a whole, and the owner cannot recover for injury to trade or business or extra expense connected therewith, caused by the change of grade. Cincinnati v. Whetstone, 12 B. 247. Property owner cannot re- cover for unsightliness of his prem- ises or obstruction of view caused by the improvement. Cincinnati v. Williams, 10 Rec. 705. Recovery is limited to diminution in value of the improvements on owner's prop- erty, lb.; and where buildings are just as conveniently located with respect to new grade as they were with respect to old he cannot re- cover. Lotze v. Cincinnati, 61 O. S. 272. On measure of damages, see also R. R. Co. v. Martin, 10 W. L. J. 54; Chatfield v. Cincinnati, 1 B. 125; White v. Cincinnati, 47 B. 169, edit. When damages payable. — The property owner is entitled to com- pensation before the improvement is made. Ryan v. Cincinnati, 1 C. C. 558; Crawford v. Delaware, 7 O. S. 459; Ry. Co. v. Cumminsville, 14 O. S. 523. Property owner entitled to in- terest on award of damages from time change of grade is made. Cincinnati v. Whetstone, 47 Code § 54] ASSESSMENTS. DAMAGES TO PROPERTY. 211 O. S. 196; and this is from the time the work is begun. Cincinnati v. Williams, 9 B. 243. When interest alone not paid, separate action may be brought for it. Toledo v. Scott, 23 B. 238. Street acquired by dedication or appropriation may be improved to a reasonable grade without lia- bility to abutting owner for any injury resulting therefrom, includ- ing the removal of lateral support, all such damages being considered waived by dedication or included in the award. Grant v. Village of Hyde Park, 47 B. 831, 67 O. S. 166; Tenney v. Cincinnati, 47 B. 832; 24 C. C 237; 67 O. S. 518; Ross v. Cincinnati, 24 C. C. 43; 2 C. C. (N. S.) 594, (affirmed, 67 O. S. 521). But see contra, Harlow v. City, Cin. Court Index, June 9, 1902; Columbus v. Williard, 7 C. C. 113. Damages cannot be included in assessment. — See McGlynn et al. v. Toledo, 22 C. C. 34 (affd. 47 B. 712; Carlisle v. Cincinnati, 8 C. C. (N. S.) 46; see note (1) under § 2284, p. 262. Enjoining public improvement. — When proposed change of grade threatens injury to private property and ultimate relief is compensation, lie improvement, the cost or part of cost of which is to be specially assessed on the owners of property, shall be made without the concurrence of three-fourths of the whole number of the members elected to council, unless the owners of a ma- jority of the foot frontage to be assessed, petition in writing therefor, in which event the council shall be authorized (a ma- jority of the whole number elected thereto concurring), to pro- ceed with the improvement in the manner herein provided. 2 (1) Old section 2267 R. S. (re- pealed.) § 2267, amended, 95 O. L. 35 (repealed.) (2) How majority determined. — For cases as to determining the majority in petitions for highway improvements, see Burgett v. Nor- ris, 25 O. S. 308; Campbell v. Park, 32 O. S. 544; Parker v. Burgett, 29 O. S. 513. The owner of a corner lot sign- ing for the full length of his side- wise frontage will not be counted for that frontage as against his co- petitioners in determining the ma- jority, although he himself may be estopped. Andrew v. Auditor, 5 N. P. 123. A city cannot be counted as a pe- titioner because of the fact that an ordinance for the improvement has been passed. Tone v. Columbus, 1 C. C. 305. Verbal declaration in favor of improvement will not be equiva- lent to signing petition. Tone v. Columbus, 1 C. C. 305. Collateral attack.— The finding that the requisite number petitioned for the improvement is not con- clusive of the fact. Corry v. Gay- nor, 22 O. S. 584; Stephan v. Daniels, 27 O. S. 527; Hayes v. Jones, 27 0. S. 218; Lima v. Mc- Bride, 34 O. S-. 338; Anderson v. Commissioners, 12 O. S. 635. Names on separate papers. — Though the names are signed on separate papers, yet if together they constitute the requisite majority, the petition will be sufficient, Bra- den v. Commissioners, 31 O. S. 386 ; and petitioners for the same im- provement signing on another paper but asking to be counted as petition- ers will be so counted, Commis- sioners v. Young, 36 O. S. 288; where two petitions ask for prac- tically the same improvement they will be counted together to make up the requisite number, Wame- link v. Cleveland, 40 O. S. 381; but those who signed the petition seek- ing a different kind of improve- ment, which has been abandoned, cannot be added to a new petition to make up the required majority, Makemson v. Kauffman, 35 O. S. 444; signers to a petition which was rejected because deemed infor- Code § 61] ASSESSMENTS. IMPBOVEMENTS ON PETITION. 223 mal, but where the names were not withdrawn or revoked, and the pe- tition remained on file may be added to the signers on a second pe- tition to make up the majority, Campbell v. Park, 32 O. S. 544. Defect in petitions. — The fact that one of the petitions was not properly recorded or acted upon will not affect the question of determin- ing the majority of signatures, Braden v. Commissioners, 31 0. S. 386; Campbell v. Park, 32 O. S. 544; nor will the fact that the pe ? tition has been addressed to the wrong board. It will be deemed ad- dressed to the body in charge of such matters. Ryan v. Cincinnati, 21 B. 62. Authority to sign. — General manager and secretary of a corpora- tion in the absence of express au- thority appearing, are not author- ized to sign such a petition, Minor v. Board, 20 C. C. 4; the school board may sign for property under its control, Becker v. Columbus, 18 C. C. 888; the signature of a widow ratified by all the children was heW. valid, Corry v. Cincinnati, 6 N. P. 325; one entitled to dower in the property, but signing before as- signment of dower cannot be count- ed as signer, Corry v. Gaynor, 22 O. S. 584, 594; tenants in common signing are to be separately counted as owners in severalty, Makemson v. Kauffman, 35 O. S. 444; owners of undivided interest may be count- ed for their proportion although all owners did not sign, Tone v. Co- lumbus, 1 C. C. 305, 308; lessee holding under perpetual lease with privilege of purchase may be count- ed as owner, Laird v. Cincinnati 5 B. 903; Herman v. Columbus, 15 Dec. 509; Clemmer v. Cincinnati, 28 C. C. 89; 7 C. C.(N. S.)31; so of an owner conveying the fee to secure a loan and having a lease back with privilege of purchase, lb. ; so of an agent signing his own name for his principal, Columbus v. Sohl, 44 O. S. 479; those signing because induced to do so by certain promises of oth- ers may be counted. Makemson v. Kauffman, 35 O. 8. 444; life tenant may bind the property. Herman v. Columbus, 15 Dec. 509; 3 N. P. (N. S.) 216. Time of ownership. — Only those signers can be counted who owned the property and signed before the ordinance was passed. Tone v. Columbus, 1 C. C. 305, 310; Her- man v. Columbus, 15 Dec. 509; 3 N. P. (N. B.) 216. Withdrawal. — Signers may with- draw their names at any time be- fore the improvement is ordered. Hayes v. Jones, 27 O. S. 218; Mc- Gonnigle v. Arthur, 27 O. S. 251. But tne withdrawal or remon- strance after a city has started with the work and has no longer author- ity ^o stop, is not permissible. Co- lumbus v. Slyh, 44 O. S. 484. Where petitioner died before final order to make the improvement, this will not constitute a with- drawal unless his successor in title withdraws the name. Makemson v. Kauffman, 35 O. S. 444. Change of plan.— Where an im- provement is justified by petition only it will not be valid if the mu- nicipal authorities have changed the work from that petitioned for, such as by lengthening or decreasing the part of the street which the petition sought to have improved. Minor v. Board, 20 C. C. 4. A wholly different improvement from that ordered may be effected as well by subtracting from as by adding to it, and stopping the work before completion would result in an improvement which would fail to accomplish the purpose intend- ed by the improvement as asked for. Cincinnati v. Avenue Co., 26 O. S. 345. Burden of proof. — The burden of proof is on those denying that a petition was properly signed and contained a majority. Tone v. Co- lumbus, 1 C. C. 305, 39 O. S. 281. 224 THE OHIO MUNICIPAL CODE. [Code §61 Estoppel by signing petition. — Petitioners for an improvement would ordinarily be estopped from claiming that the assessment ex- ceeded the benefits, or that the law under which the assessment was made was unconstitutional. Murphy v. Sims, 27 C. 0. 825; 7 C. C. (1.. S.) 193; see also Birdseye v. Clyde, 61 ©. S. 27; but see Borger v. Co- lumbus, 27 C. C. 8l2; 6 C. C. (N. S.) 401; Richter v. Norwood, 11 Dec. 801; Hiidebrand v. Toledo, 27 C. C. 427; 6 C. C. (N. S.) 450; Shepard v. Barron, 14 O. F. D. 417. The question whether such peti- tioners are estopped to dispute the validity of the proceeding depends generally upon the question of the construction of their petition. Hen- drickson v. Toledo, 23 C. C. 256; 3 C. C. (N. 8.) 355. If the petition does not agree that the signers shall be assessed cer- tain expenses that they might have a right to contest if they did not so agree, and if they are signing under the belief that council is to proceed under valid laws, they are not estopped to dispute the legality of the proceedings or to contest an invalid assessment. McGlynn v. To- ledo, 22 C. C. 34. (Aff'd, 47 B. 712.) But where the property owners in a petition expressly agree that all the cost of the improvement may be assessed upon them they are es- topped from denying the validity of the assessment even though the as- sessment is otherwise invalid as be- ing, for example, for the cost of lands condemned. Hendrickson v. To- ledo, 23 C. C. 256; 3 C. C. (N. S.) 355. No estoppel arises from signing petition, which is referred back to property owners to file a new peti- tion, and signer does not join in new petition. Carlisle v. Cincinnati, 8 C. C. (N. S.) 46. See further as to estoppel same subject under § 62, infra. When petition not necessary. — When the requisite three-fourths of council concur in the resolution, etc., the petition of abutting prop- erty owners is not necessary. Jess- ings v. Columbus, 1 C. C. 90. Resolution awarding contract. — Resolution awarding a contract for the improvement is not within the requirement as to vote of coun- cil given. Cincinnati v. Bickett, 20 O. S. 49; see also Cincinnati v. Ave- nue Co., 26 O. S. 345. FORM OF PETITION BY MAJORITY OWNERS. , 19... To the Council of the City [or Village] of , State of Ohio: We, the undersigned, owners of the number of feet of property set opposite our names below, the same being a majority of the foot frontage on street, between and ( here insert termini of proposed improvement), hereby respectfully petition your honorable board to pass the necessary legislation therefor and to improve said street between the points aforesaid by (here describe character of im- provement desired) and that so much of the entire cost and expense thereof as may be lawfully assessed upon the adjacent, contiguous or other specially benefited lots and lands, be assessed by a percentage of the tax value thereof [or " by the front foot," or " in proportion to the benefits that will result from said improvement "] upon the lots and lands bounding and abutting on said street between the points aforesaid, said assessments to be paid in annual installments or in cash, at the option of the owner of property assessed, in the manner provided by law for the levy and collection of assessments: Code § 61] ASSESSMENTS. IMPROVEMENTS ON PETITION. 225 Note. — The petition may be made by the owners of a majority of the foot frontage of property in any territory or district that may be assessed for the improvement. The petition need not propose any method of assessment, but it would seem that it may do so. FORMS OF RESOLUTION * AND ORDINANCES AFTER MAJORITY PETITION. 1. RESOLUTION OF NECESSITY. Resolution Declaring it necessary to improve street, between and , by ( here describe character of improvement petitioned for). Whereas, the owners of a majority of the foot frontage of property on street, between and ( here insert termini of proposed improvement), have petitioned in writing for the improvement of said street, between the points named, by (here describe character of improvement petitioned for ) , now therefore, Be it resolved by the council of the city [or village] of State of Ohio, Sec. 1. That it is necessary to improve, etc., (from here follow form of resolution under § 51 of the Code, making method of assess- ment conform to that petitioned for, if any method is requested in petition. ) 2. ORDINANCE TO PROCEED WITH IMPROVEMENT. Ordinance No, Determining to proceed with the improvement of street, from to , by (here state nature of improvement) . Be it ordained by the council of the city [or village] of , State of Ohio: Sec. 1. That it is hereby determined to proceed with the improvement of street, from to , by (here insert nature of improvement and character of materials to be used) in accordance with a resolution passed on the day of , 19..., and the 226 the ohio municipal code. [Code § 62 petition of property owners described in said resolution, and in accordance with the plans, specifications, etc., (from here follow form of ordinance to proceed under § 55 of the Code, making method of assessment conform to that, if any, petitioned for ) . 3 ASSESSING ORDINANCE. (Follow form given under § 55 of the Code, making method of assess- ment conform as above.) Sec. 62. [Improvement on petition of owners of abutting prop- erty.] 1 In cities or villages when a petition subscribed by three-fourths in interest of the owners of property abutting upon any street or highway of any description between desig- nated points, is regularly presented to the council for the purpose, the entire cost of any improvement of such street or highway, without reference to the value of the lands of those who subscribed said petition, may be assessed and collected in equal annual installments, proportioned to the whole assess- ment, in a manner to be indicated in the petition or if not so indicated, then in the manner which may be fixed by the council; and the interest on any bonds issued by the corpo- ration, together with the annual installments herein provided for, and the costs of such proceedings and assessments shall be assessed upon the property so improved; but when the lot or land of one who did not subscribe the petition is assessed, such assessment shall not exceed thirty-three per cent, of the tax value of his lot or land ; provided, that the guardian of infants or insane persons may sign such petition on behalf of their wards only when expressly authorized by the Probate Court on good cause shown. 2 (1) Old sections 2272 and 2305 Mocker v. Cincinnati, 5 N. P. 242. R. S., repealed. See also Andrew v. Auditor, 5 N. (2) Three=fo*«rths how deter- P. 123. mined. — Three-fourths in interest Separate petitions. — When there is determined by the abutting feet are separate petitions asking for and not by the feet assessable. practically the same improvement Code § 62] ASSESSMENTS. IMPROVEMENTS ON PETITION. 22? they may be counted together to make the required three-fourths. Wamelink v. Cleveland, 40 O. S. 381, 386. As to what is practically the same improvement, see Wame- link v. Cleveland, 40 O. S. 381. Conditional signing. — As tc ef- fect of signature made on condi- tion that another should pay the as- sessment and the condition not be- ing fulfilled, see Mills v. Norwood, 38 B. 249. The fact that a petition by three- fourths of property owners was en- dorsed " filed until signers agree to pay any deficiency " will not pre- vent its binding the signers. Bush v. Cincinnati, 18 C. C. 605. Authority to sign. — The lessee of a perpetual lease may sign and bind his property to an unlimited assessment. St. Ber- nard v. Kemper, 60 O. S. 244. So may a trustee with power to dis- pose of property. Andrew v. Audi- tor, 5 N. P. 123. But a surviving partner may not sign such a peti- tion. Andrew v. Auditor. lb. Nor general manager and secretary of a corporation without express author- ity. Minor v. Board, 20 C. C. 4. See further, notes under this head- ing § 61, supra. Withdrawal of names. — See note this heading under § 61, supra. When less than three=fourths sign — Generally. — A petit ion signed by less than three-foui ths in interest not having been acted upon was held not to be good under a subsequent change of the law by which a less number of signers was made sufficient. Hays v. Cincin- nati, 62 O. S. 116. Where a petition is signed by less than three-fourths and the signers guarantee the city against deficien- cy in collection from non-signers such a petition is conditioned on three-fourths signing, and signers are not to be subjected to the ex- tra liability if improvement is made without the necessary signatures. Goodall v. City, 5 N. P. 428 ; Whip- ple v. Toledo, 7 C. C. (N. S.) 520. ihe fact that the petition was not signed by the requisite three- fourths will not give one that did sign the right to enjoin the as- sessment or obtain damages. Far- rell v. Cincinnati, 12 C. D. 724. Estoppel to deny frontage. — Petitioner stating in the petition the number of feet front of his prop- erty, is estopped after work is done to claim that a less number of feet front is assessable. Cincinnati v. Manss, 54 O. S. 257; Carson v. Delhi, 12 C. D. 723. So a petitioner owning a corner lot and signing for the frontage on the lengthwise side is estopped to resist assessment for the number of feet on that side. Doppes v. Cincin- nati, 16 C. C. 183; Frampton v. Sims, 1 N. P. (N. S.) 355; 14 Dec. 271. But such owner is not estopped to claim to be assessed only for the narrow frontage if he did not state the length of the lot in signing the petition, especially where the city had examined the frontage. Gibson v. Cincinnati, 9 C. C. 243. And signing a petition for im- provement of side street to be paid for by assessment per front foot on the lots abutting is not an admis- sion that the frontage is on the side street. Baker v. Schott, 10 C. C. 81. A n owner is not estopped to deny the frontage stated in his petition if tRe petition was not signed by the requisite three-fourths. Baker v. Schott, 10 C. C. 81 ; and such owner is not estopped, if the petition was not necessary to enable the munici- pality to improve. Edwards v. Co- lumbus, 7 N. P. 614. 228 THE OHIO MUNICIPAL CODE. [Code § 62 Estoppel to claim limitation on amount. — Where a petition was presented asking that the entire cost be assessed on abutting property but was not signed by the requisite num- ber it was held that the signers could be assessed only up to the limitation allowed by the general law and were not estopped to con- test assessment of entire cost. Hays v. Cincinnati, 62 0. S. 116. See fur- ther Storer v. Cincinnati, 4 C. C. 279; Nevin v. Dayton, 4 N. P. 203. Where petitioners agree to pay the entire cost irrespective of the number of signers to the petition, they are estopped to assert the statu- tory limitation on assessments. Thornton v. Cincinnati, 26 C. C. 33. As to estoppel where signers to such a petition had notice that coun- cil intended to exceed the limit and made no objection to the proceeding and permitted council to go on and contract for the improvement, see Storer v. Cincinnati, 4 C. C. 279. See further Frey v. Findlay, 7 C. C. 311, 326. Forother cases on estop- pel, see Locke v. Cincinnati, 7 N. P. 318; Kemper v. St. Bernard, 14 C. C. 134; Punshon v. Cincinnati, 27 B. 155. Burden of proof is on municipal authorities to show that the names of owners of requisite number of feet front were attached to petition. Andrew v. Auditor, 5 N. P. 123. Jurisdiction acquired. — The city acquires jurisdiction when the peti- tion is presented and if a signer is then owner the fact that he after- wards conveys the property is not material. Laird v. Cincinnati, 5 B. 903. But see Herman v. Columbus, 15 Dec. 509. A petition becomes absolute when it is acted upon by the municipality. Andrew v. Auditor, 5 N. P. 123. A petition properly signed, filed and attached to another petition will be deemed to have come to the knowledge of council. Squier v. Cincinnati, 5 C. C. 400. Council does not lose jurisdiction over petition by reason of delay of two years in acting thereon. Whip- ple v. Toledo, 7 C. C. (N. S.) 520. Change of plan. — In making an improvement petitioned for, council cannot depart from, or 'do other than what was asked. Minor v. Board, 20 C. C. 4. See further, Cincinnati v. Avenue Co., 26 O. S. 345; Mc- Glynn v. Toledo, 22 C. C. 34, (aff'd, 47 B. 712); Deuyer v. Shonert, 1 C. C. 73. But additional incidental work, such as a tile drain, deemed neces- sary, may be put in, though not pe- titioned for. Burke v. Wapakoneta, 4 C. C. (N. S.) 482; Taylor v. Wa- pakoneta, 26 C. C. 285. As to case where petition does not specify man- ner of assessment or plan of pro- ceeding, see Whipple v. Toledo, 7 C. C. (N. S.) 520. Assessment cannot exceed value of property. — Where owner signs a three-fourths petition he may be assessed to the full value of his land abutting the improvement, but municipality cannot have a per- sonal judgment for remainder of as- sessment not satisfied. Laird v. Cin- cinnati, 5 B. 903. FORM OF PETITION BY OWNERS OF THREE-FOURTHS IN INTEREST. To the Council of the City ['or Village] of , State of Ohio : We, the undersigned, being the owners of the number of feet of property set opposite our names below, and being three-fourths or more in interest of the owners of property abutting upon street, between .and , (here state termini of proposed improvement) respectfully petition your honorable board for the improvement of said street between the points aforesaid, by (here describe character of im- provement desired) and that the entire cost of said improvement, except only such portion thereof as is by law chargeable against the municipality, be assessed by a percentage of the tax value thereof [or "by the foot frontage," or, "in proportion to the benefits that will result from said improvement,"] upon the lots and lands bounding and abutting upon said street, between the points aforesaid. Code § 63] ASSESSMENTS. ON MUNICIPAL PROPERTY. 229 And the undersigned and each of them consent and request that said assessments be levied and collected without reference to the value of the property of subscribers hereto, and waive all benefits of the statute limiting assessments to 33y 3 per cent, of the actual value of property assessed ; said assessments to be payable in annual installments, pro- portioned to the whole assessment, or in cash, at the option of the owner of property assessed, in the manner provided by law for the levy and collection of assessments: Owner. Number of feet front. Lot Number, Note. — Although upon petition under § 62 above, council is authorized to assess the " entire cost " upon the property of those so petitioning, yet, in view of the words which follow, it appears that the object of the petition is to exclude the petitioners from the benefit of the 33^ per cent, limitation, and not to avoid payment by the municipality of its share under § 53 of the Code, or of the cost of property condemned or of dam- ages to property abutting, ( when the improvement involves these ) . But the petition for the improvement may be so drawn as to estop the petitioners from complaining of an assessment which includes even the .cost of appropriating property as well as damages awarded to abutting owners. See Note 1, to § 2284 R. S., re-enacted in § 94 of the Code, notes on estoppel by petition under § 61 of the Code, and Hendrickson v. Toledo, 3 C. C. (N. S.) 355; 23 C. C. 256. FORMS OF RESOLUTION AND ORDINANCES AFTER THREE- FOURTHS PETITION. (These may be adapted from forms given where the owners of a ma- jority of the foot frontage to be assessed petition for the improvement, under § 61 of the Code.) (e) Assessments on Municipal Property. Sec. 63. [Assessment on property of the corporation.] 1 When the whole or any portion of an improvement authorized by this title passes by or through a public wharf, market space, park, cemetery, structure for the fire department, waterworks, school building, infirmary, market building, workhouse, hospi- tal, house of refuge, gas works, public prison, or any other 230 the Ohio municipal code. [Code § 64 public structure or public grounds within and belonging to the corporation the council may authorize the proper propor- tion of the estimated costs and expenses of the improvement to be certified by the clerk of the corporation to the county audi- tor and entered upon the tax list of all taxable real and per- sonal property in the corporation, and the same shall be col- lected as other taxes. 2 (1) Old section 2276 R. S., re- S.) 122, quere: whether under pres- pealed. ent School Code school property is (2) School property belonging liable for street assessment. Peti- to the board of education, is not tionbyBoardof Education for street liable for street or sidewalk assess- improvement does not make school ments. Toledo v. Board, 48 O. S. property liable for assessment. lb. 83; Board v. Toledo, 48 O. S. 87. Lien of assessment not defeat- Section 2275a R. S., repealed, pro- ed by subsequent purchase by Board viding that the board of education of Education for school purposes, should pay out of its funds assess- Board of Education v. Bowland, 15 ments levied against school prop- Dec. 334; 3 N. P. (N. S.) 122. erty was held unconstitutional in Assessments on municipal Board v. Auditor, 35 B. 294. property. — Subject discussed un- But see Board of Education v. der former laws in Dick v. Toledo, Bowland, 15 Dec. 334; 3 N. P. (N. 11 C. C. 349. I (f) Second Establishment of Grade. Sec. 64. [Expense of changing established grades; how paid.] 1 When a street, alley, public highway, wharf, or landing within the corporation is graded or pavements are constructed in con- formity to grades established by the authorities of the cor- poration, and the expense is assessed on the lots or lands bene- fited thereby, the owners shall not be subject to any special assessment occasioned by any subsequent change of grade in such pavement, sidewalk, street, alley, public highway, wharf or landing, unless a petition 2 for such change is subscribed by a majority of the owners of such lot or lands; and the expense of all improvements occasioned by such change of grade, not so petitioned for, shall be chargeable to the general fund of the corporation. 3 (1) Old section 2301 R. S., see (3) Damages awarded abut- in Part II. ters cannot be included in the as- (2) Petition. — For cases relat- sessment on abutting property for ing to signing of petition, determin- change of grade. McGlynn v. To- ing majority, etc., see notes to §§ 61 ledo, 22 C. C. 34 (aff'd 47 B. 712). and 62 of the Code. But if owners petitioning ask that Code § 65] ASSESSMENTS. SPRINKLING, CLEANING, ETC. 231 all expenses be assessed on them, ages, see Hendrickson v. Toledo, 2 , whether they will be estopped to C. C. 256; 3 C. C. (N. S.) 355. dispute assessment to pay such dam- ( street, be repaired in the following manner: (here describe character of repairs required).] That the clerk of council be and he is hereby directed to cause a written notice of the passage of this resolution to be served as required by law. Passed ( 19 . . . Attest: President of Council. Clerk. FORM OF NOTICE TO CONSTRUCT OR REPAIR SIDEWALKS. To : You are hereby notified that in accordance with a resolution passed by the council of the city [or village] of , State of Ohio, you are required to construct [or repair] a [or the] sidewalk in front of you premises on the side of street, between and , being lot No of subdivision, and known as No , street, of the character (in case of construction) and in the manner following: (here repeat requirements of resolution). 239 the ohio municipal code. [Code §§ 72, 73 If said sidewalk is not" constructed within fifteen days [or, repaired within five days] from the service of this notice, the department of public service [or in villages, the council] will have the same done at your expense, and such expense will be assessed upon your property and made a lien thereon and be collected in the manner provided by law, with penalty and interest if not paid as required in the levy of assessment. , 19 Clerk of Council. FORM OF RETURN. Received the within notice on the day of , 19. . . ., and served the same by delivering a true copy thereof personally (or insert any other method in conformity with requirements of law for service of civil actions ) upon , on the day of , 19 . . , at M. (Officer serving notice.) If curbing and gutters are also to be provided for, the forms given may be easily adapted. Sec 72. [Notice to non-residents and persons not found.] 1 If it appear in the return in any case of the notice provided for in the preceding section, that such owner is a non-resident of the county, or that neither any such owner, nor agent, nor their place of residence could be found, then a* notice given by publica- tion of a copy of the resolution in some newspaper of general- circulation in the corporation, in the manner heretofore provided for the service by publication of resolutions for street improve- ments 2 shall be deemed sufficient notice to such owner, but no publication of said resolution shall be necessary in the case of construction or repair of sidewalks, curbing and gutters where said notice is served upon the owner or agent as provided in section 71. [1904, April 21, 97 v. 124.] (1) Old section 2329 R.S. (rep). (2) See § 52 of the Code. Sec. 73. [In cities; on failure of owner to construct or re- pair, same to be done at his expense.] 1 If such sidewalks, curbing or gutters are not constructed within fifteen days, or not repaired within five days from the service of notice, or completion of the publication, the department of public service in cities may do or have the same done at the expense of the owner, 2 and all such expenses shall be assessed on all the property abounding or abutting thereon. Said assessments shall be collected in the same manner with a penalty of five per centum and interest for failure to pay at the time fixed by the assessing ordinance, as in cases of improvements. 3 No other or further proceedings for the construction or repair of side- walks, curbing or gutters and levying assessments therefor, Code § 73a] assessments, sidewalks. 240 shall be necessary by the department of public service, than the proceedings required under this and the two preceding sections, 4 and in any case in which special assessments have been made on property of all the cost of the construction or repair of sidewalks, curbing or gutters under this and said two preceding sections as they stood before this amendment, said assessment shall, within the limitation of benefits and the limits of thirty-three per cent, of the taxed value of the property, be valid assessments upon said property. [In villages ; on failure of owner to construct or repair, same to be done at his expense.] If such sidewalks, curbing or gut- ters are not constructed within fifteen days, or not repaired within five days from the service of the notice, or completion of the publication, the council in villages may have the same done at the expense of the owner and report the cost thereof to such owner. The cost of such construction or repair shall constitute a lien on the property abutting on such sidewalks from the date the same is so reported to such owner, and shall be paid by the owner to the treasurer. of the municipality. If the cost of said construction or repair is not paid within ten days from the time the same has been reported to such owner, the clerk in villages shall certify the same, together with a penalty of five per centum thereon to the county auditor, who shall place the same on the tax duplicate and collect such costs and penalties in the same manner as other taxes are collected. [1906, April 16, 98 v. 301; 97 v. 124.] (1) Old section 2330 R. S., re- to thirty-three and one-third per pealed, § 2330d (95 O. L. 604) re- cent, of the value of the property pealed. assessed would apply to sidewalk as- (2) Validity. — A provision such sessments. Norwood v. Bldg. Ass'n, as this held constitutional. Bonsall 7 C. C. 95. See also Cincinnati v. v. Lebanon, 19 O. 418. Connor, 55 O. S. 82. But see West- Necessity of notice before city enhaver v. Hoytsville, 28 C. C. 357. can construct and charge abutting Form of assessing ordinance owner, see Hunt v. Hunter, 11 C. C. may be adapted from form under § 69; Schmidt v. Elmwood Place, 15 75 of the Code. C. C. 351. (4) Method of improvement. (3) Limitation of sidewalk as- — The method given in this and sec- sessments. — Under former laws as- tions immediately preceding is in- sessments for sidewalks were held to tended to be distinct from method be governed by a statute limiting provided in § 50 et seq. under which street assessments to twenty-five per sidewalks may also be constructed cent, of the value of the property and repaired. The legislature had assessed. Upon the same principle in view an alternative procedure for § 53 of the Code, limiting all as- sidewalk improvements. Westenha- sessments for public improvements ver v. Hoytsville, 28 C. C. 357. Sec. 73a. [Assessment of cost for construction or repair of sidewalks, curbings or gutters; how paid.] When sidewalks, 240a the ohio municipal code. [Code § 74 curbing or gutters are constructed or repaired in accordance with the section to which this section is supplementary, the as- sessment for the cost thereof may be made payable in full not less than thirty nor more than sixty days from the levy thereof or in not exceeding five annual installments, as council may de- termine. In anticipation of the collection of said assessments bonds of the municipal corporation may be issued bearing in- terest not exceeding six per cent, per annum and the proceeds thereof used in the payment of the cost incurred by reason of such construction or repair. In the passage of the resolution declaring that certain specified sidewalks, curbing or gutters shall be constructed or repaired and in all the subsequent pro- cedure necessary to secure the construction or repair of side- walks, curbing or gutters, and collect the assessment therefor, sidewalks, curbing or gutters, although upon different streets and abutting upon lots or land owned by different per- sons, may be provided for in the same resolution, notice, con- tract, and ordinance or other step in such procedure. [1904, April 25, 97 v. 384.] Sec. 74. [Notice to owners of abutting property to clean side- walks, etc.] 1 When the council in villages or the board of pub- lic service in cities declares by resolution that a certain specified sidewalk or sidewalks, curbing or gutters shall be cleaned so as to be free from weeds, grass, dirt, snow or any other objec- tionable substance, it shall then be the duty of the clerk of the council in villages and of the board of public service in cities to cause notice of the passage of such resolution to be served upon the owners of each parcel of land abutting on such side- walk ordered cleaned. Such notice shall be given in the same manner as is provided for service of notice to construct side- walks. [On failure of owners to clean such sidewalks, etc., same to be done at their expense.] If said sidewalks, curbing or gutters are not cleaned within five days, except if the objectionable sub- stance be snow, then within one day, after the service of th* Code § 75] ASSESSMENTS. SIDEWALKS. 241 notice or completion of the publication, the department of pub- lic service in cities and the street commissioner in villages shall have the same done at the expense of the owner and report the cost thereof to him, and to council in villages, and to the board of public service in cities. The cost of such cleaning shall constitute a lien upon the property abutting on such sidewalks from the date the same is so reported, and shall be paid by the owner to the treasurer of the municipality. If the cost of said cleaning is not paid within ten days from the time the same has been so reported, the said clerk in villages and the depart- ment of public service in cities shall certify the same, together with a penalty of five per centum thereon to the county auditor, who shall place the same on the tax duplicate and collect such costs and penalties in the same manner as other taxes are col- lected. [1904, April 21, 97 v. 124.] (1) See old § 2329a R. S., re- Forms of resolution and notice pealed. may be adapted from forms under (2) See notes to § 73, supra. § 71 supra. Sec. 75. [Construction of sidewalks, curbing or gutters; bond issue authorized.] 1 In cities and villages, whenever sidewalks, curbing or gutters are to be constructed pursuant to a resolu- tion of council, the department of public service in cities and council in villages, may construct such sidewalk or parts there- of, or curbing or gutters or parts thereof, 2 and assess 3 the cost and expense thereof upon the abutting, adjacent and con- tiguous or other specially benefited property 4 according to the rule heretofore provided for street improvements; and to carry out such purpose, council is hereby authorized to issue bonds of such city or village, in denominations not to exceed one thousand dollars, each to be payable in not less than one nor more than ten years, and to bear interest at a rate not to exceed six per centum per annum, which bonds shall not be sold for less than their par value and the proceeds arising from such sales shall be applied to the cost of such improvements, the 242 THE OHIO MUNICIPAL CODE. [Code § 75 cost of issuing such bonds, the payment of interest thereon and to no other purpose. The assessments shall be in such amounts as will be sufficient to provide for the payment of such bonds and the interest due thereon as the same mature, and such assessments shall be certified to the auditor of the county in which such city or village is situated, to be placed upon the duplicate, and shall be a lien upon all property so assessed if such assessment is not paid within the time fixed in the assess- ing ordinance. (1) Old sections, see §§ 2330a, 2330b, R. S., repealed. (2) Certificate of money in treasury was held not to be required in case • of a contract for con- struction of sidewalks where the act contemplates that the money shall not be in the treasury by providing that the money is to be raised by a bond issue. Trowbridge v. Hudson, 24 C. C. 76. Discretion of council as to rejec- tion of bids under former § 23306, R. S. See Trowbridge v. Hudson, 24 C. C. 76. (3) Corner lot doctrine was held not to apply to sidewalk as- sessments. Baker v. Schott, 10 C. C. 81. (Affirmed, 31 B. 335.) (4) Assessing ordinance — How passed. — The language used above indicates that the assessing ordi- nance for sidewalk improvements is to be passed, in cities, by the board of public service. It appears to have been adapted from the old special law in § 2330a R. S., repealed, and doubtless the intention was to give the power to construct sidewalks to the board of public service in cities and to councils in villages and the power to levy assessments therefor to council in all municipalities. This is in harmony with §§ 51 and 53, supra, empowering council only to levy assessments to pay the cost of all improvements, including side- walks, and imposing the duty upon council to limit such assessments, as well as many other provisions of the Code. It would seem the better course, therefore, that the assessing ordinance above referred to be passed by council, though any ques- tion as to regularity may be avoided by concurrence in such ordinance by the board of public service. As to the manner of passing such ordi- nances, if by the board of public- service, see Cincinnati v. Johnson. 17 C. C. 291; Cincinnati v. Spillard. afPd without report, 62 O. S. 637. Damages for change of grade. — Provisions relating thereto held to apply to sidewalk improvements. City v. Gordon, 7 B. 79. FORM OF ASSESSING ORDINANCE FOR SIDEWALK IMPROVEMENT. Ordinance No To levy special assessments for the construction of sidewalks on street, between and Code § 75] ASSESSMENTS. SIDEWALKS. 243 Be it ordained by the council of the city [or village] of , State of Ohio: Sec. 1. That to pay the cost and expenses of constructing sidewalks on street, between and , in accordance with the resolution of council passed on the day of .-.-., 19 ... , there be levied and assessed upon the lots and lands hereinafter described the several amounts herein set forth, viz.: Assessment. Owner. Description of property. Dollars. Cents. Which assessments are dollars and ...... cents per front foot of the property bounding and abutting on the side of . . . . .- street, between and (In case of assessments by a percentage of tax value or according to benefits, see form under § 55 supra.) Sec. 2. (Same as Assessing ordinance under § 55 supra; and see require- ments of § 73a.) Sec. 3. That to provide a fund for the payment of the cost and expenses of constructing sidewalks as aforesaid, the mayor and auditor [or in villages, clerk], be and they are hereby authorized to issue and sell the bonds of the city [or village] of , according to law, (bonds must not exceed $1,000 in denominations, they must be payable in not less than one, nor more than 10 years, and must first be offered for sale to the sinking fund trustees, and if not sold to said trustees, they must be advertised, etc. See §§ 75, 95 and 97 of the Code.), and the proceeds arising from such bonds shall be applied to the cost of such construction of sidewalks, the expenses of issuing such bonds, the payment of interest thereon, and to no other purpose whatsoever; and for the payment of said bonds and interest thereon the revenue and faith and all the real and personal property of the city [or village] are hereby pledged; provided, that if within the time above specified, and before the sale of the said bonds any of the owners of said property shall pay their total assessments in cash, the aggregate sum in bonds shall be reduced by deducting the amount so paid from the total amount of the fund to be provided, and the bonds issued shall be reduced accordingly. Sec. 4. That the proceeds arising from the sale of said bonds, together with all moneys received from the cash payments of assessments, shall be placed in the city [or village] treasury, and disbursed upon proper vouchers for the purposes herein provided. Sec. 5. That the installments of assessments and all portions thereof, shall be applied to the payment of said bonds and interest, as the same shall become due, and to no other purpose whatsoever. 244 the ohio municipal code. [Code §§ 76, 77 Sec. 6. That this ordinance shall take effect and be in iorce irom and after the earliest period allowed by law. Passed . , , 19 . . . attest : Clerk. President of Council. (All assessments not certified to the county auditor must be paid to the city or village treasurer. No authority seems to be given to assign such assessments to the contractor. See § 94 of the Code.) Sec. 76. [Construction of sidewalks along property of the cor- poration.] 1 In all cases where it is deemed necessary by a mu- nicipal corporation to build or repair sidewalks, curbing or gutters along that portion of any street, alley or public highway which passes by or through any public wharves, market spaces, parks, cemeteries, public grounds or buildings, the proper pro- portion of the estimated expense thereof shall be by the council of such corporation levied, certified and collected in the manner provided herein for the assessment of street improvements. [1904, April 21, 97 v. 125.] (1) Old section 2334 R. S., re- pealed. Old § 2334 R. S. supple- mented 95 O. L. 416, repealed. (j) 8 ewers. Sec. 77. [City engineer to devise plan of sewerage.] 1 In ad- dition to the power herein conferred to construct sewers and levy assessments therefor, council of a city or village may pro- vide a system of sewerage for such municipal corporation or any part thereof; it shall be the duty of the engineer of such city or village, or some person employed by the municipality, to devise and form, or cause to be devised and formed, a plan of the sewerage of the whole city or village, or such part thereof as may be designated by the council; and such plans shall be devised with regard to the present and prospective needs and interests of the whole city or village; which plans shall be by him reported to the council for its confirmation. 3 Code § 77] ASSESSMENTS. SEWEKS. 245 (1) Old section. — Compare § 2366 R. S., repealed. (2) Adoption of system of sew- erage was held, under former laws, not necessary to be first made before a single independent sewer could be constructed. The general power to build sewers given to municipalities would not be restricted by provision as to a sewerage system, unless a system had been previously found necessary. Hartwell v. R. R. Co., 40 O. S. 155. Where a system is adopted, fail- ure to provide plans and specifica- tions and estimates of expense, was held not jurisdictional and no de- fense to sewer assessments. Toledo f. R. R. Co., 4 C. C. 113. Discretion of council in devising a plan of sewerage cannot be inter- fered with by the court unless gross- ly abused. Johnson v. Avondale, 1 C. C. 229. House connections.— It was held that an act giving authority to a municipality to provide " a plan of sewerage and drainage " would not give the municipality x jower to make house connections, unless such house connections were made part of the plans and specifications and duly published. Cordeman v. Cincinnati, 23 O. S. 499, 507. Tapping Sewers.— Old § 2402 R. S., repealed, provided expressly for tapping sewers for private use. But the authority to construct and maintain sewers doubtless includes the authority to provide by ordi- nance rules and regulations for tap- ping sewers for private use. In paragraph 13 of § 7 of the Code, authority is given to provide by or- dinance for licensing sewer-tappers. For questions arising under former laws as to tapping sewers, see State ex rel. v. Board, 4 B., 293; Herr- mann v. State ex rel., 54 O. S., 506 ; Springmeyer v. State ex rel., 1 C. C, 501; State v. Gray don, 6 C. C, 634. Municipal liability. — Failure to provide sewers would not make a municipality liable for damages re- sulting from its neglect. Spring- field v. Spence, 39 O. S. 665, 669; Dayton v. Taylor's adm'r, 62 O. S. 11. Thus, injury caused by failure of municipality to provide for carry- ing off surface water was held not to make it liable. lb. Defect in plans. — Nor will the municipality be liable because the plans it has adopted are not suf- ficient or proper. The manner in which drainage may be accomplish- ed is peculiarly within the discre- tion of the municipal corporation and it cannot be called to account by the courts for its errors of juag- ment in the plans of a public im- provement for drainage adopted by it. Wheeler v. Cincinnati, 19 O. S. 19, 22; Dayton v. Taylor's adm'r, 62 O. S. 11. Negligence in constructing.— But for damages due to negligence in the construction of a sewer, the municipality will be liable. Cum- mings v. Toledo, 12 C. C. 650; Co- lumbus v. Jaeger, 36 B. 191 ; see also Dayton v. Taylor's adm'r, 62 O. S. 11, 16. But injuries resulting from* con- struction, if not caused by the city's negligence in the work, will not make the municipality liable. Co- lumbus v. Jaeger, 36 B. 191; Cum- mings v. Toledo, 12 C. C. 650. And see generally, Cincinnati v. Penny, 21 O. S. 499. Municipality is not liable for de- stroying, in the course of construc- tion of a sewer, local drainage con- nections made without its consent. Miller v. Toledo, 12 C. C. 706. 246 THE OHIO MUNICIPAL CODE. [Code § 77 Failure to keep in repair will also make the municipality liable. After the construction of an im- provement, if notice should be brought home to the municipality that a street was not reasonably safe because of faulty construction of the improvement, it becomes the duty of the municipality to remove the defect and its failure to do so, will make it liable hi damages for injuries resulting from such de- fect. Dayton v. Taylor's adm'r, 62 O. S. 11, 16; Cincinnati v. Frey, 16 Dec. 77; 3 N. P. (N. S.) 627. Pollution of water course by a municipality in discharge of its sew- erage will make it liable, as an in- dividual would be liable. Cleveland v. Beaument, 4 B. 345 ; Cilly v. Cin- cinnati, 2 B. 135; Mansfield v. Bal- liett, 65 O. S. 451; Rhodes v. Cleve- land, 10 O. 160. Such pollution, if continued for a period of twenty-one years, would give municipality prescriptive right, and it will not thereafter be liable to riparian owners for such pollu- tion. Cleveland v. Standard Bag & Paper Co., 72 O. S. 324; Tepe v. Norwood, 48 B. 876. Riparian owner cannot recover against munic- ipality damages for pollution if he contributes to such pollution. Tepe v. Norwood, 48 B. 876 (aff'd, 71 O. S. 520); Kemper v. Home, 6 Dec. Re. 1049. See also Cleveland v. Standard Bag & Paper Co., 72 O. S. 324. Limitation of action. — Action against municipality for damages growing out of overflow of plaintiff's lands from negligent construction of municipal drains, is an action of trespass and nuisance and four-year limitation is applicable. Norwalk v. Blatz, 51 B. 21 (Ed.). Injunction to restrain the mu- nicipality from emptying sewage into a stream to plaintiff's injury would lie. Cilly v. Cincinnati, 2 B. 135. Evidence. — Proof of adoption of sewerage system and plan of dis- tricting must be made by the ordi- nances and not by the testimony of the engineer. Cleveland v. Beaument, 4 B. 345. Measure of damages where owner's property is injured by break in sewer, see Toledo v. Grasser, 12 C. C. 520. ORDER OF PROCEDURE IN SEWER IMPROVEMENTS UNDER GENERAL PLAN. 1. Adoption of general plan. Where it is desirable to make sewer im- provements under a general plan or system, council should, by resolution, direct the engineer of the city or village to prepare such plans, either for the whole municipality or for such portion as council may determine. <§ 77.) The engineer should then prepare such plans observing the requirement of §§ 78 and 79, and report the same to council. 2. Notice of completion of plan and that the same is ready for public in- spection should be given by publication for ten days. (§ 80.) 3. Objection to plan by persons interested may then be filed with council, and council may thereupon, amend the plan. (§ 81.) The plan, as orig- inally presented or as amended, as the case may be, should then be con- firmed by council by ordinance, setting out the plan, and the plan should be filed in the office of the auditor (in cities) or clerk (in villages). 4. Designation of -part to be constructed. Council should next, by resolu- tion, designate the part of the general plan that is to be carried out in the particular improvement to be made. The resolution should show what district, giving its boundaries, or what part of a district, is to be improved. ( § 83. ) The resolution may order the engineer to make an estimate of the cost of constructing sewers in accordance with the part of the plan designated, and report the estimated cost to council. 5. Resolution declaring necessity of the proposed sewer improvement which should contain ( 1 ) a statement of the district or part of district proposed ('ode § 78] ASSESSMENTS. SEWERS. 247 tc be improved, giving its boundaries as in the designated resolution, (2) The character of the materials to be used, (3) A statement that the im- provement is to be made in accordance with the plans and specifications of the engineer, referred to in the resolution, together with a statement as to place where they are on file, (4) the mode of payment for the improvement, determining the proportion to be assessed and the method of the assess- ment, as well as the method of payment of the remainder of the costs, whether by levy upon the general tax list or by special bond issue. (§ 84.) As to notice to owners, of this resolution, see § 60 as amended, p. 221. 5. Ordinance to improve, which should contain (1) an expression of coun- cil's determination to proceed with the improvement, (2) a description of the district or part of district to be improved, as given in the preceding resolution, (3) a statement of the character of material to be used, (4) a statement that the improvement is to be made according to the plans and specifications of the engineer, (5) The mode of payment as in the pre- ceding resolution, and naming the lots and lands to be assessed, in each district, or part of district, separately. (§ 85.) 7. Advertisement for bids and award of contract as in case of other street improvements. (§§ 86, 59, 143, J 44, 198.) 8. Certificate of Engineer showing completion of work, made to council. (§ 87.) 9. Assessing ordinance, in conformity with ordinance to improve, making the assessment by districts and giving the amount of assessment on each lot or land. (§87.) Note. — The procedure above is only for cases where council adopts a general plan of sewerage. Improvement by constructing sewers where no general plan has been adopted, may be made in the manner provided in §§ 50 to 63 inclusive, relating to street improvements generally. (§§ 77, 88.) Sec. 78. [Sewer districts.] 1 The plan so devised shall be formed with a view of the division of the corporation into as many sewer districts as may be deemed necessary for securing efficient sewerage. Each of the districts shall be designated by a name and number, and shall consist of one or more main sewers, with the necessary branch or connecting sewers ; the main sewers having their outlet in a river, or other proper place. 2 The districts shall be so arranged as to be independ- ent of each other, so far as practicable. ( 1 ) Old section 2370 R. S., re- An extension, giving a proper out- pealed, let, which was contemplated at the ( 2 ) Discretion of council in de- time the sewer was built, would sat- termining what is a proper outlet isfy the statute. Wilson v. Cincin- cannot be interfered with by the nati, 5 N. P. 68. courts, unless grossly abused. John- son v. Avondale, 1 C. C. 229, 232. 248 the ohio municipal, code. [Code §§ 79, 80, 81 Sec. 79. [How plan to be prepared.] 1 The plan shall be so prepared as to show the size, location, inclination and depth below the surface of all main sewers and all branch sewers connected therewith. (1) Old section 2374 R. S., repealed. Sec. 80. [Notice of completion of plans to be advertised.] 1 When such plan of sewerage has been prepared, the council shall give at least ten days' notice 2 in one newspaper of gen- eral circulation in the corporation, stating that such plans have been prepared and are filed in the office of the clerk for examination and inspection by parties interested. (1) Old section 2375 R. S., re- risdictional under former statutes, pealed. and did not invalidate assessments. (2) Necessity of notice. — Omis- Cincinnati v. Honnigfort, 32 B. 32; sion to advertise was held not ju- Columbus v. Bohl, 13 Dec. 569; 1 N. P. (N. S.) 469. FORM OF NOTICE OF COMPLETION OF PLAN FOR SEWERAGE. Legal Notice. Notice is hereby given that plans for the sewerage of the city [or village] of [or for the sewerage of the following described territory of the city, or village of (here describe part of municipality designated by council)], have been prepared and are now on file in the office of the clerk of the city [or village] for examination and inspection by parties interested, and any objection thereto may be filed with council. >19 .... By order of the Council of the City [or Village] of. Clerk. Sec. 81. [Objections to plans.] 1 Any objection to said plan of sewerage shall then be made to the council, and it may, if it deem proper, amend or correct the same, and shall there- upon file the plans as amended, or if no amendments be made, then the original plans, duly certified by it in the office of the auditor or clerk. (1) Old section 2376 R. S., repealed. CV'-ie §§ 82, 88] assessments, sewers, 9A% Sec, 82. [Amendment of plans, etc.] 1 Council shall have the right at any time after the construction of all or a part of the sewers provided for by such plan of sewerage to amend such plans, by providing for such intercepting sewers, without re- gard to sewer districts, as shall be necessary to furnish an ad- ditional outlet for the system so adopted, and to provide for the construction of the same as is provided in this subdivision, and apportion the cost and expense thereof, equally among the districts directly or indirectly sewered in whole or in part thereby, and assess and collect the amount apportioned to each district as provided in this subdivision ; or the council may apportion a part only of such cost and expense among the dis- tricts directly or indirectly sewered in whole or in part thereby, and provide for the payment of the residue thereof by the city at large. The council may also amend such plans by mak- ing new sewer districts, or by subdividing districts already es- tablished, giving a name and number thereto, and provide for the construction of the main and branch sewers therein, and may assess the cost and expense thereof upon the lots and lands within the corporation according to benefits. (1) Old section 2376 R. S. repealed. Sec. 83. [Engineer to estimate costs, etc.] 1 After such plans have been adopted and approved, as heretofore provided, the council shall designate such portions of the work as may be required for immediate use, and the designation shall be by dis- tricts, and shall show what districts or part thereof, is to be im- proved; and the council may order the engineer to make an estimate of the cost and expense of constructing the work, or such portions thereof as may have been designated in accord- ance with the last section, according to such plans, and report the same to council. 2 250 the ohio municipal code. [Code § 84 (1) Old section 2373 and 2377 Curative provisions of § 2289 and R. S., repealed. 2327 R. S. held to extend to irreg- (2) Necessity of estimate. — ularities or defects in the estimate Failure to cause estimate to be made of cost for sewerage. Wewell v. held not a defense to assessment. Cincinnati, 45 O. S. 407. Toledo v. Ry., 4 C. C. 113. Sec. 84. [Resolution of necessity and notice thereof.] 1 When it is deemed necessary by a city or village to construct all or a part of the sewers provided for in said plan, the council shall declare by resolution the necessity of such improvement. 2 Said resolution shall contain a declaration of the necessity of said improvement, a statement of the district or districts or parts thereof proposed to be constructed, the character of the ma- terials to be used, a reference to the plans and specifications, where the same are on file, and the mode of payment therefor, and the council shall cause the resolution to be published once a week for not less than two nor more than four consecutive weeks in one newspaper of general circulation in the corpora- tion. 3 (1) Old section.— Compare § (3) Published notice. — Where 2378 R. S. (repealed) requiring only published notice describes property the ordinance to improve. But old by streets and omits certain streets, § 2304 R. S. (repealed) required and these streets were also omitted resolution of necessity for all pub- in the resolution, — as to validity of lie improvements. assessment on such streets, see Cin- (2) Necessity, object, etc., of cinnati v. Honnigfort, 32 B. 32. resolution. — See notes to § 51 of Notice to owners. — See Code the Code, p. 183. § 60 as amended, p. 221. FORM OF RESOLUTION DECLARING NECESSITY. Resolution Declaring it necessary to construct sewers in district [or part of district } or district consisting of territory bounded ]. Be it resolved by the council of the city [or village] of , State of Ohio, That it is necessary to construct all [or a certain part hereinafter de- scribed] of the sewers provided for in a general plan for a system of Code § 85] ASSESSMENTS. SEWERS. 251 sewerage, for said city [or village] (or, if the plan was for a part only, of the municipality, then say u for the territory bounded as follows," inserting boundaries in general plan) which general plan was adopted by council on the day of , 19. . ., and is now on file in the office of the auditor of said city [or clerk of said village] ; and that the portions of the work provided for in said general plan, which it is hereby determined to construct are as follows: (here describe by districts or parts of districts, the territory that is to be improved, giving the boundaries of each district or part of district included, following the description in the resolution designating the part to be improved). Be it further resolved, that said sewers shall be constructed in accord- ance with plans and specifications, on file in the office of the auditor of said city [or clerk of said village] and shall be of (here insert materials to be used). Be it further resolved, that the costs ( here follow §§ 4 and 5 of form of resolution to improve under § 51 of the Code). Be it further resolved, that the clerk be and he is hereby directed to cause this resolution to be published in the manner provided by law. Passed , 19 . . . Attest : ^fe. Clerk. President of Council. Sec. 85. [Ordinance authorizing construction; what to con- tain.] 1 After the publication of said notice, the council shall determine whether it shall proceed with the proposed improve- ment or not, and if it decides to proceed therewith, an ordi- nance for the purpose shall be passed. 2 Said ordinance shall contain a statement of the district or districts or parts thereof proposed to be constructed, the character of the material to be used, a reference to the plans and specifications, the mode of payment therefor, and said ordinance shall provide for as- sessing the cost and expenses of the improvement upon the lots and lands in each district as other assessments are levied, and the lots and lands in each district shall be assessed by districts, except that the cost of the construction of any main sewer which serves as a common outlet for two or more districts shall be apportioned between the districts, and the cost assessed ^n the lots and lands in the respective districts in proportion to the benefits accruing thereto. 3 252 THE OHIO MUNICIPAL CODE. [Code § 85 (1) Old section 2378 R. S., re- pealed, and see old §§ 2372 and 2379 R. S., repealed. (2) Ordinance to construct. — Time of passage. An ordinance passed prematurely was held not in- valid. Since failure to publish the preliminary resolution is a uefect covered by the curative statutes, an ordinance passed before that publi- cation is complete, would not be fa- tally defective. Toledo v. Ry. Co., 4 C. C. 113. Defect in ordinance, such as omitting to name one of the streets for a sewer, was held to be within the curative provisions. Davis v. Cincinnati, 1 B., 104. Written notice to owners. — § 51 of the Code provides certain things that shall be done, where it is deemed necessary to make " any public improvement." § 52 requires that a notice of the ordinance re- quired in § 51 shall be served on the owners of property to be as- sessed. The sections of the Code re- lating to construction of and assess- ment for sewers as part of a sys- tem make no mention of service of written notice. Construction of and assessment for sewers as a part of a sewer system were (under former laws) held to be distinct from other street improvements and hence to have been separately and completely provided for. Cincinnati v. Wewell, 16 B. 287; see further Nitzel v. St. Bernard, 3 N. P. 317. (3) Assessment by districts, provided for also by former laws, was held not jurisdictional, and an assessment for a sewer in parts of two districts was held valid under previous statutes. Cincinnati v. Honnigfort, 32 B. 32. FORM OF ORDINANCE AUTHORIZING CONSTRUCTION. Ordinance No Determining to proceed with the construction of sewers in district [or part of district , or district consisting of territory bounded ] . Be it ordained by the council of the city [or village] of , State of Ohio, Sec. 1. That it is hereby determined to proceed with the construction of sewers in the district [or districts or part of district] bounded and described as follows: (here copy boundary of district as given in the reso- lution of necessity), pursuant to a resolution passed on the day of , 19..., and in accordance with the plans and specifications heretofore prepared by the engineer of said city [or village] for a system of sewerage therein [or in said district], adopted by council on the day of , 19..., and now on file in the office of the auditor of said city [or clerk of said village], and to be of (here insert materials to be used ) . Sec. 2. That the cost (here repeat mode of payment for the improvement, as determined in the resolution of necessity). Sec. 3. That the following lots and lands shall be assessed for said improvement, as above determined: In district Code §§ 86, 87] assessments, sewers. 253 Streets. Lot Numbers. Sec. 4. (In cities) That the board of public service be and hereby is authorized and directed to make and execute a contract for the construction of said improvement with the lowest and best bidder, after advertisement, according to law. Or, Sec. 4. (In villages) That the clerk be and hereby is authorized and directed to advertise for bids for the construction of said improvement according to law. Sec. 5. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed . . . • , 19 . . . Attest : Clerk. President of Council. Sec. 86. [How contract let] The work shall be advertised, and the contract shall be awarded to the lowest and best bidder, in the manner heretofore provided for the improvement of streets. 1 ( 1 ) See § 59 of the Code. As to tract under former laws, see Gano v. -hanges or alterations in sewer con- Eshelby, 21 B. 177. Sec. 87. [Ordinance for assessment of costs; bonds in anticipa- tion of collection of assessments.] Council may, if it deems expedient, by ordinance assess the real estate as provided in the ordinance to improve, and cause such assessments to be collected, or, at its option, may issue bonds in anticipation of the collection of such assessments, before the work is done or contracted for. Or council may, at its option, delay such assessments until the work is completed, and then, upon the certificate of the engineer showing the completion of the work, by ordinance assess the real estate as provided in the ordinance to improve. 1 Any person so assessed shall have the option of paying his proportion of the assessment in cash within the period of thirty days from the date of the levy thereof upon due notice being given. [1904, March 25, 97 v. 51,] 254 THE OHIO MUNICIPAL CODE. [Code § 87 (1) Assessment. — The assess- ment is to be made as provided in the ordinance to improve and must be levied as other assessments are levied. See § 50 et seq. Installments. — It was held that sewer assessments might be made on the installment plan though the section relating to sewers did not expressly so provide. Nitzel v. St. Bernard, 3 N. P. 317. Miscellaneous. — The cost of sewers on several streets may be added together and the assessment made equally on all the lands adja- cent to the several streets. John- son v. Avondale, 1 C. C 229. It was held under former statute that assessing district need not be established in assessment for trurk sewer. Wilson v. Cincinnati, 5 N. P. 68. Street and sewer improvements cannot be assessed in one assess- ment. Nitzel v. St. Bernard, 3 N. P. 317. As to validity of sewer assess- ment on property abutting on one side of the street only, see Toledo v. Beaumont, 3 N. P. 287. Intersections. — It was held un- der former laws • that the rule that intersections must be paid for by the city does not apply to sewer as- sessments. Cincinnati v. Wewell, 16 B. 287. But :ee § 53 of the Code. Corner lots. — The corner lot doc- trine applies to sewer assessments and corner lots are assessable only for the narrow frontage. Blanchard v. Columbus, 35 B. 1 ; Cincinnati v. Honnigfort, 32 B. 32. See generally as to assessment of property abut- ting on more than one street, Cin- cinnati v. Wewell, 16 B. 287. Property subject to assessment. — Farming property. Toledo v. Andrews, 18 C. C. 861. Wharf property is liable for sew- erage. Boeres v. Strader, 1 C. S. C. R. 57. Limitation of assessments. — The former limitation to percentage of value of land in the general as- sessment laws was held to apply to sewer assessments. Cincinnati v. Connor, 55 0. S. 82. See further § 53 and note " Separate improve- ments " on page 203. What costs and expenses in= eluded. — Assessment held not void because it included the cost of board sheeting used in making the sewer, although • the proceedings did not provide for such expense. Hastings v. Columbus, 42 0. S. 585. See Cin- cinnati v. Anchor White Lead Co., 44 O. S. 243. Assessment cannot include cost of material not in fact used in the sewer construction. Toledo v. Beau- mont, 3 N. P. 287. Assessment for house connections up to the line of the street. See Toledo v. Andrews, 18 C. C. 861. Cost of advertising and pay of su- perintendent may be included. Cin- cinnati v. Wewell, 16 B. 287. Defense to assessment. — Claim- ing no benefit. — No defense to a sewer assessment that the lots were below the level of the sewer or that the sewer was too small and was therefore of no benefit. City v. Mc- Dermott, 2 B. 240; Hildebrand v. Toledo, 27 C. C. 427; 6 C. C. (N. S.) 450; Ford v. Toledo, 64 0. S. 92. No defense to assessment that the sewer was no benefit to property owner's lot, Conner v. Cincinnati, 11 C. C. 336. Nor that owner's lot was six feet below the sewer. To- ledo v. Kohn, 2 N. P. 47 ; nor that the owner's cellars were deeper than the sewer, Cincinnati v. Bickett, 26 0. S. 49; nor that the owner's lot is a wharf on a river bank and is the lowest ground of all, Boeres v. Strader, 1 C. S. C. R. 57, 60. Defect in proceedings. — Omis- sion of some of the abutting feet from the assessment is no defense where plaintiff's assessment was not thereby increased. Wilson v. Cin- cinnati, 5 N. P. 68. See also as to omissions and de- fects which are not a defense to as- Code §§ 88, 89] assessments, sewers. 255 sessment. Wewell v. Cincinnati, 45 It is no defense to a sewer assess- 0. S. 407, (omission to construct ment that other property benefited sewer in street embraced in plan) ; has not been assessed where it ap- Toledo v. Railway Co., 4 C. C. 113, pears that such other property is ex- ( failure to provide plans and speci- empt because already supplied with n cations and estimate of expense) ; local drainage. Toledo v. Potter, 10 Cincinnati v. Honnigfort, 32 B. 32, C. C. 661. (omission of a street in advertising Set=off. — There can be no set-oil' plan) ; Davis v. Cincinnati, 1 B. 104, against sewer assessment because of (omitting to name one of the streets material furnished by property in the ordinance.) owner to contractor. Wilson v. Cin- Uniformity. — Owner has no de- cinnati, 5 N. P. 68. tense to assessment because of fail- Defense of local drainage. — ure to assess all the abutting lots See notes to § 53 of the Code, unless his assessment was thereby Form of assessing ordinance increased. His remedy is to en- for sewer improvement may be join the levy of increased taxes due adapted from form of assessing or- to failure to make assessment. Wil- dinance under g 55 of the Code, p. 204. son v. Cincinnati, 5 N. P. 68. And see requirements in $ 85 above. Sec. 88. [Council may provide for construction of sewers with- out adopting any plan of sewerage or dividing city into districts. ] 1 The council may, if in its opinion expedient, provide for the construction of main drains and branch drains connecting there- with without previously adopting any plan of sewerage or divi- sion of the territory of the municipal corporation or any part thereof, into districts, and may assess the cost and expense thereof upon such lots or lands as shall be designated in the ordinance to improve, or the same may be paid out of the sewer fund, or by the municipal corporation at large, as council shall determine, and such proceedings shall be had in respect to such improvements and assessments as are provided for in this subdivision for the construction of main or branch sewers according to a previously adopted plan. (1) Old section 2371 R. S., repealed. Sec. 89. [Councils of two or more municipalities authorized to construct joint sewers; procedure.] 1 The respective councils of any two or more municipal corporations shall have power to 256 the ohio municipal code. [Code § 89 provide for the construction of a main sewer and branches jointly by such corporations for the purpose of sewering and draining such corporations or any part thereof, and to agree up- on the plan and location of such main sewer, and the terms and conditions on which the same shall be constructed and maintained for common use, and the portion of the cost and expense thereof to be paid by each corporation. For this pur- pose said corporations may jointly appropriate land either within or without their respective corporations. The council of each corporation shall provide for assessing such portion of the cost and expenses of constructing any such main sewer or drain as it shall determine to be a proper charge upon the lots and lands within such respective corporations benefited thereby, and the excess over the assessment herein authorized shall be paid out of the sewer fund of the corporations respectively; or if the corporations or either of them are divided into* sewer districts, out of the sewer fund of the district or districts direct- ly or indirectly sewered in whole or in part thereby; and in case more than one district is so sewered thereby, the council shall apportion the amount to be paid by each district or as- sessed against the property therein, or the said councils, or either, may determine to place the whole cost, or any part thereof, upon the general duplicate; and bonds may be issued by either or both of said corporations to provide for the pay- ment of the cost and expense thereof as is provided in this subdivision, and the proceedings for the construction of such main sewer or drain, shall, so far as applicable, be conducted according to the provisions of this subdivision. The adver- tisement for bids for the construction thereof shall be joint, and shall be filed with the clerk of council, and the same shall be reported to the council of each corporation. Any contract made for the construction of such sewer shall be in the names of such corporations jointly, but each corporation shall be Code §§ 90, 91, 92] assessments, sewers. 257 liable only for such portion of the cost and expense as shall be specified in the ordinances providing for the same. (1) Old section (2406-120) K. S., repealed. Sec. 90. [Joint management of such system.] 1 Said main sewer or drain, branches and appurtenances, on completion, shall be the property of said corporations jointly, and said cor- porations may take all necessary steps to keep the same in proper repair and condition and to protect the same from dam- age and improper use. Said corporations shall have the pow- er by ordinance jointly passed, to prescribe the terms and con- ditions, including the price to be paid therefor, upon which other municipal corporations, public institutions or individuals, may connect with and use such main sewer or drain, and the disposition of the fund arising therefrom. 2 (1) Old sections. Compare §§ (2) Tapping sewers. See note (2406-146) and (2406-147) R. S., to § 77 of the Code, p. 245. repealed. Sec. 91. [Council may borrow money for construction of sew- ers.] 1 The council of any city or village shall have power to borrow money, at a rate of interest not exceeding six per centum per annum, to pay the cost and expense of constructing the main sewers, main drains, branches and ditches provided for in this subdivision. ( 1 ) Old section. — Compare § 2380 R. S., repealed. Sec. 92. [Council may provide for construction and mainte- nance of sewer pumping stations, etc.] 1 The councils of cities and villages, in accordance with the provisions of this title, may provide for the construction and maintenance of such sewer pumping stations, and equip the same with the necessary ma- chinery and apparatus and provide the necessary buildings therefor, as the council shall deem necessary. (1) Old section. Compare §(2406-121) R. ■ S., repealed. 258 the ohio municipal code. [Code §§ 93, 94 Sec. 93. [Sewage farm.] 1 Power and authority is hereby granted to any city or village to purchase and hold land outside of the corporate limits, to be used as a sewage farm, to con- struct and maintain thereon all the necessary appliances for the proper disposition of the sewage of such city or village, under such rules and regulations as shall be prescribed by council and approved by the state board of health. 2 (1) Old section. Compare § — See § 7, paragraphs 19 and 25; (2406-105) R. S., repealed. § 10, paragraph tenth, and § 11 of (2) Sewage plants and farms. the Code. (h) Miscellaneous Provisions. Sec. 94. [All assessments subject to certain sections of Revised Statutes.] All assessments provided for in this act shall be sub- ject to the provisions of sections 2268, 2278, 2279, 2282, 2284, 2285, 2286, 2287, 2288, 2289, 2290, 2291, 2294, 2295, 2297, 2298, 2299, 2300, 2302, 2318, 2321, 2326, 2327 and 2332 of the Revised Statutes of Ohio, so far as the same may be applicable, and such sections shall be and remain in full force and effect. [When special assessments to be certified to county auditor ; how collected; when such assessments to be collected by municipal treasurer.] 1 Whenever any special assessment is made as here- in provided, and the same has been confirmed by council and bonds, notes, or certificates of indebtedness of the corporation are issued in anticipation of the collection thereof, it shall be the duty of the clerk of the council, 2 on or before the second Monday in September, annually, to certify such assessment to the county auditor, stating the amounts and the time of pay- ment, and in accordance therewith the county auditor shall place the same upon the tax list, 3 and the county treasurer shall col- lect the assessment in the same manner as other taxes are collected, and when collected he shall pay the same to the treas- Code § 94] assessm'ts. miscellaneous provisions. 259 urer of the corporation to be by him applied to the payment of such bonds, notes, or certificates of indebtedness and interest thereon, and for no other purpose; and for the purpose of enforcing the collection of the assessment the county treasurer shall have the same power and authority now allowed by law for the collection of state and county taxes. In all other cases, such assessment shall be paid to and collected by the treasurer 4 of the municipality, and in any event it shall be the duty of the clerk of the council, when the receipt is pre- sented to him by the owner, showing the payment of any as- sessment on his property to enter such receipt on the margin of the record of the assessment. (1) Old section 2296 R. S., re- pealed. (2) In cities, where assessment books may be conveniently kept by the auditor, such installments may be by him reported to the clerk of council and certified by the latter. (3) Prima facie valid. — An as- sessment on the tax duplicate is presumptively valid and the burden is on the property owner to show in- validity. Murphy v. Sims, 13 Dec. 62. See also Bolton v. Cleveland, 35 O. S. 319. Placing on duplicate. — Where tract of land is cut in two by im- provement, whole assessment must not be put on whole tract on the duplicate, but on separate parcels. Spangler v. Cleveland, 35 O. S. 469. Nor should whole assessment be put on one of the lots. Younglove v. Hackman, 43 O. S. 69. (4) Paid to treasurer. — The above provision would seem to for- bid assignments of assessments to contractors. But see § 2285 R. S., re-enacted, infra. FORM OF CERTIFICATE TO AUDITOR OF ASSESSMENTS. Office of the Clerk of Council of the City [or Village] of To the Auditor of County, Ohio: I hereby certify that the special assessments hereinafter set forth have been duly levied by the council of the city [or village] of upon the lots and lands described below, and are herewith certified to you, as provided by law to be placed upon the tax list and collected as other taxes are collected: Owner No. and sub-division or other description of lot. Amount As- sessed. 260 the ohio municipal code. [Code § 94 Witness my hand and official seal this day of , 19. . . (Seal.) Clerk of the Council of the City [or Village] of Sec. 2268 R. S. [Assessment on owner of life estate.] When a special assessment is made on real estate subject to a life es- tate, the assessment shall be payable by the tenant for life ; but upon application by the life tenant to a court of competent jurisdiction, by action against the owner of the estate in fee, such court may apportion the cost of the assessment between the life tenant and the owner in fee, in proportion to the rela- tive value of the improvement to their estates, respectively, to be ascertained and determined by the court on principles of equity. 1 [67 v. 80, § 541.] (1) In partition case, the pro- vision of this section will be applied and payments already made prop- erly charged. Ward v. Ward, 9 C. C. 454. Apportionment is according to proportionate benefit, not actual benefit. Crawford v. Crawford, 4 Dec. (Re) 138. See further Cook v. Gilpin, 2 B. 82. Sec. 2278 R. S. [Notice of assessment to be published.] Before adopting the assessment so made, the council shall pub- lish notice for three weeks consecutively, in some newspaper of general circulation in the corporation, that such assessment has been made, and that the same is on file in the office of the clerk for the inspection and examination of persons interested there- in. 1 [66 v. 248, § 585; (S. & S. 833).] ( 1 ) Application of section. — § 2278 R. S., above, applies to assess- ments by benefits. This section and 2279 R. S., following, if appropri- ately placed in the Code, should fol- low § 68, supra (which is substan- tially a re-enactment of ofd § 2277 R. S.) and should precede § 69, su- pra, (which is substantially a re- enactment of old § 2280 R. S.). The special method provided for assess- ments by benefits was formerly con- tained in §§ 2277, 2278. 2279. 2280, 2281 a^d 2282 R. S. The rew Code repeals §§ 2277 and 2280 and incor- porates their provisions in §§ 68 and 69, respectively, omitting the classification of municipalities; re- peals the unimportant § 2281, with- out substituting anything in its place, and then in the final section on assessments (§ 94, supra) re- enacts §§ 2278, 2279 and 2282 of the old law of assessments by bene- fits, together with other sections of the revised statutes governing as- sessments in general. Tn the pres- ent edition of the Code these sec- tions of the new act and old sec- tions of the revised statutes re-en- acted are printed in the order in which they appear in the bill as it Code § 94] assessm'ts. miscellaneous provisions. 261 passed the General Assembly. In dition precedent to the levying of the matter of assessments by bene- assessments, where no damages tit, confusion may be avoided by re- caused by the improvement were in- ferring to the " Order of Procedure " eluded in the assessment. Finnell given under § 68, supra, where the v. Kates, 19 0. S. 405. various steps in such assessments Effect of notice. — After notic* and a reference to the laws in force of the assessment is given, all per- with respect to each may be found. sons interested are bound to take Necessity of notice. — Under notice of the subsequent proceedings, former sections it was held that the Chamberlain v. Cleveland, 34 O. S. publication of notice was not a con- 551. FORM OF NOTICE OF ASSESSMENT. Legal Notice. Notice is hereby given that the estimated assessment of the cost of im- proving street, from to , by ( here insert character of improvement), on the lots and lands benefited and to be charged therewith as set forth in a resolution No , to improve said street, passed , 19 .... , has been made and reported to council and said estimated assessment is now on file in the office of the clerk of the city [or village] of , for the inspection and examination of all persons interested therein. By order of the Council of the City for Village] of , 19... Clerk. Sec. 2279 R. S. [Objections to assessments to be filed.] If any person objects to the assessment, he shall file his objections, in writing, with the clerk, within two weeks after the expiration of the notice ; and thereupon the council shall appoint three dis- interested freeholders of the corporation to act as an equalizing board. [66 v. 249, § 586; (S. & S. 833).] FORM OF RESOLUTION APPOINTING EQUALIZING BOARD. Be it resolved by the council of the city for village] of , State of Ohio, two-thirds of the members of council concurring, That , and , three disinterested free- holders of said city [or village] be, and they are hereby appointed to act as an equalizing board to hear all objections to the estimated assessment heretofore reported to council by the estimating board appointed under a resolution passed on the day of , 19..., of the cost of improving street, from to and to equalize the same as to them seems proper, in accordance with law. Said board shall meet for the above purpose at (insert place) THE OHIO MUNICIPAL CODE. [Code § 94 on the day of , 19. . ., at. . . .M., and upon the completion of such equalization shall report such equalized assessment to eounc* 1 Passed , 19 ... . Attest : Clerk. President of Coun^ 1 - Sec. 2282 R. S. [Concurrence of two-thirds requisite to ap- point board.] A concurrence of two-thirds of the members of the council shall be necessary in appointing the equalizing board, and in confirming its assessment. [66 v. 249, § 589.] Sec. 2284 R. S. [Cost of any improvement shall include what.] The cost of any improvement contemplated in this chapter shall include the purchase money of real estate, or any interest there- in, when the same has been acquired by purchase, or the value thereof as found by the jury, where the same has been appro- priated, the costs and expenses of the proceeding, the damages assessed in favor of any owner of adjoining lands and interest thereon, 1 the costs and expenses of the assessment, the expense of the preliminary and other surveys, and of printing, publish- ing the notices and ordinances required, including notice of as- sessment, and serving notices on property owners, the cost of construction, interest on bonds, where bonds have been issued in anticipation of the collection of assessments, and any other nec- essary expenditure, 2 [1886, May 15; 83 v. 171, 172; Kev. Stat. 1880; 66 v. 241, § 544.] (1) Costs of appropriation. — eluded in the assessment. McGlynn The cost of land appropriated for v. Toledo, 22 0. C. 34 (affirmed, 47 an improvement and the costs and B. 712) ; Freeman v. Hunter, 7 C. C. expenses of the appropriation pro- 117; Fridman v. Norwood, 1 C. C. ceedings cannot now be assessed on (N. S.) 97; 25 C. C. 258; Bartley abutting property. See Dayton v. v. Cincinnati, 8 C. C. 226. Cases Bauman, 66 O. S. 379; C. L. & N. contra, McMakin v. Cincinnati, 7 Ry. v. Cincinnati, 62 O. S. 465; N. P. 203; Corry v. Cincinnati, 22 Youngstown v. Bonnell, 65 O. S. B. 194. 575; Dodsworth v. Cincinnati, 18 Or the cost of grading or lower- C. C. 288; Rhoades v. Toledo, 6 C. ing the street to the new grade. C. 9; Carlisle v. Cincinnati, 8 C. C. Carlisle v. Cincinnati, 8 C. C. (N. (N. S.) 46. S.) 46; Thale v. Cincinnati, 10 Cin. For former cases contra, see Cleve- Court Index. No. 103. land v. Wick, 18 O. S. 303; West- (2) What costs and expenses wood v. Dater, 23 B. 291; Straus v. included. — Expense of a retaining Cincinnati, 24 B. 422*; Norwood v. wall along street, Longworth v. Cin- Ogden, 18 C. C. 869; Krumberg v. cinnati, 34 O. S. 101; cost of Cincinnati, 29 O. S. 69; Meissner lateral and cross drain pipes, lb.; v. Toledo, 31 O. S. 387; Otis v. compensation of superintendent of Cleveland, 1 Clev. 91. work, but not compensation for Damages to abutting property services of salaried officers, It.; ^r change of grade cannot be in- Code § 94] assessm'ts. miscellaneous provisions. 263 small additional expense necessary to make the improvement a good job, as placing a French drain in street, or increasing width of improvement, though not provided for in the ordi- nance to improve, etc., Hastings v. Columbus, 42 O. S. 585; Taylor v. Wapakoneta, 26 C. C. 285; amount retained as guaranty of good work, but not if retained for repairs, Frid- man v. Norwood, 1 C. C. (N. S.) 97; 25 C. C. 258, (aff'd, 49 B. 99) ; necessary sheeting in a trench, not before provided for, Cincinnati v. Anchor White Lead Co., 44 O. S. 243; cost of broken stone beyond that called for in contract, Cincin- nati v. Goodman, 5 Rec. 153; ex- pense of curbing, included in street assessment, Ehni v. Columbus, 3 C. C. 494; fees of equalizing board, Chamberlain v. Cleveland, 34 0. S. 551, 569; expense of grading ap- proaches on intersecting streets, But- ler v. Toledo, 5 0. S. 225 ; Creighton v. Scott, 14 0. S. 438; expense of advertisement in more than one newspaper, although statute pro- vides for " advertisement in some newspaper," Cincinnati v. Davis, 58 O. S. 225, 237; Fridman v. Nor- wood, 1 C. C. (N. S.) 97; 25 C. C. 258 (aff'd, 49 B. 99); additional cost of retaining wall, McMakin v. Cincinnati, 7 N. P. 203 ; interest on installments, Steese v. Oviatt, 24 O. S. 248; interest from time fixed for payment, when assessment de- fective, but amount properly charge- able equals assessment, Gest v. Cin- cinnati, 26 0. S. 275; interest on amount justly due from the time the court found it, but not earlier, in the ordinary case, Burkhardt v. Cin- cinnati, 7 C. C. 260; Fricke v. Cin- cinnati, 1 N. P. 98. The fact that preliminary ex- penses, such as cost of advertising, serving notices, etc., have been paid out of the general funds of the mu- nicipality, does not prevent such ex- penses from being lawfully included in the assessment, to reimburse tke general fund. Adkins v. Toledo, 27 C. C. 417; 6 C. C. (N. S.) 433. Municipality does not have to de- duct from assessment the difference between interest which it has to pay on its bonds and interest which property owner pays the city. Borger v. Columbus, 3 N. P. (N. S.) #261; 15 Dec. 476; 27 C. C. 812; C C. C. (N. S.) 401. See Code, § 100, as to deduction under former statutes; see Fridman v. Norwood, 25 C. C. 258; 1 C. C. (N. S.) 97; Mudge v. Evanston, 7 C. C. (N. S.) 197. Items which cannot be in- cluded. — Compensation for services of salaried officers, Cincinnati v. Longworth, 34 O. S. 101; cost of repair of bad work, Spangler v. Cleveland, 35 O. S. 469; Watterson v. Bradley, 43 O. S. 456 ; percentage to pay collector's fees, Jonas v. Cin- cinnati, 18 O. 318; Spangler v. Cleveland, 35 O. S. 469; expenses for advertising, etc., where void as- sessment is enforced on ground of es- toppel, Corry v. Gaynor, 22 O. IS. 584, 597; interest on bonds which make the assessment exceed the per- centage of value of property allowed by law, Salem, v. Mulford, 22 C. C. 397 (affirmed, 62 O. S. 632); fees for service of notice in excess of lawful amount, McGlynn v. Toledo, 22 C. C. 34 (affirmed, 47 B. 712) ; item of expense not in estimate, whether to be included, see Knorr v. Cincinnati, 21 B. 297 (affirmed without report, 24 B. 371). Determination of council that an item of expense is properly to be included is not conclusive. Reynolds v. Clearwater, 4 Gaz. 129. Additional advertising, etc., is not necessary to allow items prop- erly included in necessary expendi- tures to be included in assessment. Hastings v. Columbus, 42 O. S. 585. Sec. 2285 R. S. [When payable; lien of; release of such lien.] 1 Special assessments shall be payable by the owners 2 of the prop- erty assessed personally, by the time stipulated in the ordinance providing for the same, and shall be a lien from the date of the assessment upon the respective lots or parcels of land assessed, 3 264 THE OHIO MUNICIPAL CODE. [Code § 94 and it shall be the duty of the city clerk, whenever presented with a receipt from the contractor 4 in whose favor an assess- ment is confirmed, or his assigns showing said assessment on any property for any improvement to have been paid, to at one© record said fact upon the margin of the record of said assessr ment, together with the date of such presentation, from which time said property shall be released from the lien aforesaid. [90 v. 50; 66 v. 242, § 545.] (1) Object of section is not to define property liable to assessment, but to prescribe the time when the assessment becomes a lien on the; property and charge against the owner. Douglass v. Cincinnati, 29 O. S. 165; Cincinnati v. Oliver, 31 O. S. 371. Validity of statutes creating per- sonal liability for assessments sus- tained. Hill v. Higdon, 5 O. S. 243; Gest v. Cincinnati, 26 O. S. 275. ( 2 ) Owners. — Lessee for ten years is not an owner within mean- ing of this section. Davis v. Cincin- nati, 36 O. S. 24. Those who were owners at the time of the assessment are liable to personal judgment. Toledo v. Barnes, 8 C. C. 684, 687. Holder of perpetual lease with privilege of purchase is an " owner." Clements v. Norwood, 32 B. 201. (3) Lien. — The assessment on property is a lien prior to a mort- gage or judgment. Moerlein Brew. Co. v. Westmeier, 4 C. C. 296. But see Donohue v. Brotherton, 7 N. P. 367. It is superior to a purchase money mortgage. Clifton v. Cincinnati, 3 B. 272. Lien is for the present value of- whole amount, although the assess- ment is payable in installments. Moerlein Brew. Co. v. Westmeier, 4 C. C. 296. A covenant against all claims whatsoever, would include a lien for assessments. Craig v. Heis, 30 0. S. 550. Assessment becomes a lien from the date of the passage of the as- sessing ordinance. Whipple v. To- ledo, 7 C. C. (N. S.) 520. The lien of municipality on real estate for assessments remains on such real estate unaffected by sales and transfers and can be collected as other taxes. Where the property is sold under judicial process, the city need not and should not be made a party. Installments payable at the time and upon the annual dupli- cate, must be paid out of the pro- ceeds of the sale, and other install- ments will continue a lien to be paid by the purchaser. Makley v. Whit- more, 61 O. S. 587, 595; Hagerty v. Columbus, 14 Dec. 1. Property owners, whose property has been appropriated by the mu- nicipality, are liable for remaining installments of street assessment levied on the property. Cincinnati v. Burnet, 3 O. L. K. 572. Where land on which there is an assessment lien is divided into par- cels and sold, the separate parcels are liable for the liens in the in- verse order of sale. Cincinnati v. Wynne, 19 C. C. 747 (aff'd, 65 O. S. 611). (4) Payment to contractor. — See § 94 of the Code and note (4) thereunder, p. 259. Sec. 2286 R. S. [Assessment and penalty recovered by suit.] If payment is not made by the time stipulated, the amount as- sessed, together with interest, and a penalty of five per cent. thereon, 1 may he recovered by suit 2 before a justice of the peace, or other court of competent jurisdiction, in the name of Code § 94] assessm'ts. miscellaneous pkovisions. 265 the corporation, against the owner or owners, 3 but the owner shall not be liable, under any circumstances, beyond his inter- est in the property assessed, at the time of the passage of the ordinance or resolution to improve. 4 [66 v. 242, § 546.] (1) Interest.— See note (2) to § 2284 R. S., supra, p. 263. Penalty. — No penalty can be col- lected where the assessment is not conclusive, because of irregularities. Upingcon v. Oviatt, 24 O. S. 232. See also Pike v. Cummings, 36 O. S. 213. If judgment was entered without including penalty, and without ob- jection, no penalty will afterwards be awarded. Evans v. Cincinnati, 3 B. 856. Where judgment is reversed and larger amount assessed, court can- not remit penalty. Finnell v. How- ell, 2 C. S. C. R. 150, 155. Where court reduces assessment because beyond statutory limit, no penalty can be recovered. Cincin- nati v. Fugman, 5 N. P. 14. Penalty is due and payable al- though no suit is brought. Toledo v. Piatt, 2 N. P. 304; and a tender must include interest and penalty. lb (2) Action to collect.— When assessment certified to auditor and put on the tax duplicate the action to collect by city does not lie. Fre- mont v. Hayes, 4 IT. P. 379. Such action can be brought only by the County Treasurer. Ry. Co. v. Bel- laire, 47 B., 865. Personal judgment. — Statute making lot owners personally liable is constitutional. Gest v. Cincin- nati, 26 O. S. 275. But no personal liability exists unless the statute expressly imposes it. Dreake v. Beasley, 26 O. S. 315. Personal liability exists only in case of one owning the lot at the date of the assessment and petition must aver ownership at that time. Corry v. Gay nor, 21 O. S. 277. Personal judgment cannot be iiad against one in possession who is not an owner. Davis v. Cincinnati, 36 O. S. 24. See further Lowden v. Cincinnati, 2 Disney, 203. Limitation on suit. — Statute of limitations runs not from date of assessing ordinance but from time fixed for payment. Reynolds v. Green, 27 O. S. 416; the limitation is six years. lb. As to whether statute of limitations applies to right to collect assessment, see Brenchweh v. Drake, 31 0. S. 652; Hartman v. Hunter, 56 O. S. 175; Linn St. Bldg. Ass'n v. Morgan, 47 B. 889 ; Wasteney v. Schott, 58 O. S. 410. Defenses. — No defense to suit to collect assessment, that city has not yet paid the money. Bliss v. Kraus, 16 O. S. 54; nor that proper plan for improvement was not adopted. Toledo v. Grasser, 7 N. P. 396. No set=off to the assessment can be allowed because of damages to property claimed by defendant, Ulm v. Cincinnati, 7 N. P. 278; nor be- cause of injury to defendant by slip- ping on improperly made street. Shroder v. Overmann, 5 N. P. 392; ana see Straus v. Cincinnati, 23 B. 359; nor for claim for materials furnished to contractor, Wilson v. Cincinnati, 5 N. P. 68; nor for claim against contractor for digging more material from lot owner's property than licensed to take, Hast- ings v. Columbus, 42 O. S. 585. Reduction for repairs made nec- essary by bad work should be made 266 THE OHIO MUNICIPAL CODE. [Code § 94 from the assessment. Hastings v. Columbus, 42 O. S. 585. Money received by municipality for rent of tools need not be de- ducted from assessment. McGlynn v. Toledo, 22 C. C. 34 (affirmed, 47 B. 712.) Pleading, practice and evidence. — Averment of " due passage " of resolution is sufficient on demurrer, though two-thirds vote for passage be required. Jessing v. Columbus, 1 C. C. 90. See also Burns v. Pat- terson, 2 H. 270. Answer denying that requisite number petitioned for improvements needs no reply. Corry v. Campbell, 25 O. S. 134, 140. Where claim has already been ad- judged a lien on the property, no question on demurrer can arise as to validity of improvement or statute of limitations. Columbus v. Schneider, 12 C. D. 781. Jury trial, whether necessary. Norris v. Casper, 8 N. P., 475, 476. Where assessments have exceeded benefits the trial court, in action to collect, may, upon proper pleadings determine what amount should be assessed; and court may also set* aside the assessment and remit the question of amount to city authori- ties. Walsh v. Sims, 65 O. S. 211. Burden of proof is on plaintiff to show assessment exceeded benefits, when this is the defense. Yost v. Railway Co., 24 C. C. 169; 2 C. C. (N. S.) 519. As to costs, see lb. Recovery back. — Voluntary pay- ment, what is, see Marietta v. Slo- comb, 6 0. S. 471; Whitbeck v. Minch, 48 O. S. 210; Stephan v. Daniels, 27 O. S. 527; Groesbeck v. Cincinnati, 51 O. S. 365; Cincin- nati v. James, 55 O. S. 180. Limit of time for recovery back, is one year, by § 5848 R. S. See Groesbeck v. Cincinnati, 51 O. S. 365. Injunction against assessments. — See notes to § 50 of the Code. (3) See note to § 2285 R. S., supra. (4) Limit of liability applies even where owner is one of three- fourths of property owners who pe- titioned for improvement and asked all costs to be placed on them. Per- sonal judgment cannot exceed the value of the property. Laird v. Cin- cinnati, 5 B. 903; 9 Rec. 479. Sec. 2287 R. S. [Lien may be enforced against all owners, or a part, etc.] Proceedings for the recovery of the assessment may be instituted by the corporation against all the owners, or each or any number of them ; or to enforce the lien, against all the lots or lands> or each lot or parcel, or any number of them embraced in any one assessment; but the judgment or decree shall be rendered severally or separately for the amount as- sessed ; and any proceeding may be severed, in the discretion of the court, for the purpose of trial, review, or appeal where an appeal is allowed. 1 [66 v. 242, §§ 547, 549.] (1) Enforcement of lien Lands of cemetery association ex- empt from taxation cannot be sold to pay assessment, but assessment may be enforced by such remedy as courts of equity afford. Lima' v. Cemetery Ass'n, 42 O. S. 128. Municipality cannot enforce lien after assessment has been certified to county auditor. Fremont v. Hayes, 4 N. P. 379. Municipality may buy in prop- erty on which it has a Hen. City v. Schneider, 7 N. P. 619. Code § 94] assessm'ts. miscellaneous. provisions. 267 Sec. 2288 R. S. [Lien as to non-resident owner.] In proceed- ings to enforce the lien, when the owner of any lot or land as- sessed is a non-resident of the state, or is unknown, notice shall be given by publication in the manner prescribed by law in similar cases. 1 [66 v. 242, § 548.] (1) Manner of Publication. — See §§ 5046, 5047, 5048 and 5049 R. S. Sec. 2289 R. S. [Costs, in case of error or defect in proceed- ings.] 1 If in any such action it shall appear that by reason of any technical irregularity or defect — whether in the proceed- ings of the board of improvements, or of the council, or of any other officer of the corporation, or in the plans or estimates — ■ the assessment has not been properly made against any defend- ant or upon any lot or parcel of land sought to be charged, 2 the court may nevertheless on satisfactory proof that expense has been incurred which is a proper charge against such defendant, or lot or parcel of land in question, render judgment for the amount properly chargeable against such defendant or on such lot or land, 3 but in such cases the court shall make such order for the payment of the costs as may be deemed equitable and proper. 4 [1883, March 9: 80 v. 52; Kev. Stat. 1880; 66 v. 242, § 550.] ( 1 ) Validity . — § 2289 R. S. pro- improve passed before time has ex- viding for judgment where assess- pired for filing claim, Toledo v. ment is invalid because of irregu- Railway, 4 C. C. 113; failure to ad- larities was held not a violation vertise for bids for full time re- of the United States Constitution. quired, Upington v. Oviatt, 24 O. Railway v. Columbus, 23 B. 3. S. 232; see also where rate of as- (2) What irregularities cured. sessment not uniform on all proper- — Irregularity in notice of resolu- ty assessed, Jaeger v. Burr, 36 O. tion and ordinance to improve, S. 164; part of street where side- Green v. Cincinnati, 7 C. C. 233; ir- walks laid not being brought up to regularity in estimate of cost of grade, McGlynn v. Toledo, 22 C. C. improvement, Wewell v. Cincin- 34, aff'd 47 B., 712; unlawful com- nati, 45 O. S. 407; as to what de- bination among bidders (in such fects in advertisement are cured, case property owners may obtain see Wilder v. Cincinnati, 26 O. S. a redaction to the extent of actual 284, 285, Cincinnati v. Goodman, injury), Hubbard v. Norton, 28 O. 5 Rec. 153; publication of notice S. 116; lowest bidder released at on Sunday, Hastings v. Columbus, his own request, Cincinnati v. Good- 42 O. S. 585; defective advertise- man, 5 Rec. 153. ment for bids, see Cincinnati v. Lowest bid not taken from Bickett, 26 O. S. 49; ordinance to mistake in judgment, assessment MS THE OHIO MUNICIFAL CODE. [Code § 94 collectible up to fair value of work, Cincinnati v. Hopple, 1 B. 104; no plans and specifications on file when contract made, Becher v. McCloud, 4 C. C. 305; advertisement for bid not as required, lb.; in such case the reasonable cost is recoverable, lb. Assessment ordinance requiring payment at date earlier than its pas- sage is an error that can be cured. Bolton v. Cleveland, 35 O. a 319. Defects not cured.— Failure to pass improvement ordinance as re- quired by law, Sullivan v. Pausch, 5 C. C. 196; omission to publish pre- liminary resolution, Welker v. Pot- ter, 18.0. S. 85; but see Upington v. Oviatt, 24 O. S. 232; failure to pass assessment ordinance, Brewer v. Bowling Green, 7 C. C. 489 ; fail- ure to serve land owners with notice of ordinance to improve, Joyce v. Barron, 67 O. S. 264, 268; but see Toledo v. McMahon, 9 C. C. 194; Kirby v. Winton Place, 7 N. P. 169; omission of notice of resolu- tion declaring necessity to improve, Schmidt v. Elmwood Place, 15 C. C. 351; Welker v. Potter, 18 O. S. 85; Stephan v. Daniels, 27 O. S. 527; Knecht v. Cincinnati, 18 C. C. 875; see also Kelly v. Cleveland, 34 0. S. 468. (Property assessed which was not included in ordinance) ; collu- sion between city officers and con- tractor, Cincinnati v. Kemper, 17 B. 116; work done before any deter- mination to assess, Folz v. Cincin- nati, 2 H. 261. (3) Amount properly chargea= ble. — As to ascertainment of such amount, see Wilder v. Cincinnati, 26 O. S. 284; Cincinnati v. Bicket, 26 O. S. 49; Central O. R. R. Co. v. Columbus, 23 B. 3. Court may allow interest from time assessment due on amount prop- erly chargeable. Gest v. Cincinnati, 26 O. S. 275. See further Mc- Cloud v. Columbus, 54 O. S. 439, where this section was applied. Where assessment covers" more feet than defendant owns, court may re- duce amount proportionately. Ride- nour v. Saffin, 1 H.- 464, 478. When illegal items are included in the assessment, city need not re-as- sess, but court may correct assess- ment. Dodson v. Cincinnati, 4 Rec. 312. Amount chargeable is not amount of benefits but that part of the as- sessment that should have been charged, if assessment had been le- gally made. Cincinnati v. Bickett, 26 O. S. 49. It is based on the fair average cost and not the cost in front of each lot. Wilder v. Cincin- nati, 26 0. S. 284. But, though court can correct as- sessment, it cannot make an entire- ly new assessment, as council is au- thorized to do by § 2290 R. S. Mock- er v. Cincinnati, 7 N. P. 279. As to right of court to fix amount properly chargeable, where assess- ment improperly made, not because of technical error, but because in excess of benefits, etc., see note 2 under § 53 of the Code, p. 202. Jury trial.— Under § 2289 giving the court power to determine the amount properly chargeable and award judgment therefor, the issue i3 not one triable by a jury but by the court. R. R. Co. v. Bellaire, 60 O. S. 301. Applies to injunctions. — Where property owner sues to enjoin collec- tion of assessment, § 2289 R. S. ap- plies and court may fix amount properly chargeable. Where plaintiff in such case ad- mits that part is due he must ten- der such part before he can have in- junction. Griswold v. Pelton, 34 O. S. 482. (4) Costs of a suit to reduce assessment should fall on municipal- ity. Burkhardt v. Cincinnati, 7 C, C. 260, 262. Code § 94] assessm'ts. miscellaneous provisions. Sec. 2290 R. S. [When re-assessment may be ordered. ] When it appears to the council that a special assessment is invalid, by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal, by a court of com- petent jurisdiction, the council may order a re-assessment, whether the improvement has been made or not 1 [66 v. 242, § 551.] (1) Right to re=assess. — If property which ought to have been assessed is omitted, the assessment will be enjoined, but the right to make re-assessment will not be prej- udiced. Upington v. Oviatt, 24 O. S. 232. A re-assessment may also be made where the action of the equalization board is unauthorized. Chamber- lain v. Cleveland, 34 O. S. 551. Where an assessment was held void because the city put an assess- ment at one rate on abutting prop- erty and another assessment at a different rate upon lots declared to be specially benefited, the right to re-assess was held not to be preju- diced. Akron v. Allen. 22 B. 260. Where a contractor was unable to recover an assessment because part of the work was enjoined, but recovered the amount from the city, the city could, on the removal of the injunction and completion of the work, reimburse itself by a re- assessment. Cincinnati v. Wilder, 9 Rec. 727. The right to make a proper re- assessment is not prejudiced where an assessment is held illegal be- cause the ordinance to improve a street provides for assessment by the front foot, while the assessment of damages to the abutters was by benefits. Dick v. Toledo, 5 C. D. 157; 11 C. C. 349. The curative sections apply and a re-assessment may be had, if an assessment is void because made on a wrong basis. Frey v. Findlay, 7 C. C. 311, 327. A re-assessment is valid, even though a portion of the money thereby derived is used for the extension of the improvement be- yond the limits designated. But- ler v. Toledo, 5 O. S. 225, 230. When re-assessment is precluded: See Kelly v. Cleveland, 34 O. S. 468. Who may re=assess. — The right to re-assess lies with council, and a court has no power to order a re- assessment. Mocker et al. v. Cin- cinnati, 4 Dec. 161; 5 N. P. 242. It is not error for the court to refuse to set aside an assessment and submit the question to the city authorities for re-assessment, where the assessment made by the city ex- ceeds in a substantial amount the special benefits conferred, and the trial court may, upon proper plead- ings, determine the amount to be assessed. Walsh v. Sims, Treasurer, 65 O. S. 211. Sec. 2291 R. S. [Proceedings upon re-assessment.] Proceed- ings upon a re-assessment, and for the collection thereof, shall be conducted in the same manner as is provided for the original assessment. [66 v. 242, § 552.] 270 the ohio municipal code. [Code § 94 Sec. 2294 R. S. [Special duty of courts.] The court of com- mon pleas and superior courts shall have the jurisdiction au- thorized by this chapter for the collection of any charge or debt, or the enforcement of any lien, notwithstanding the amount involved shall be less than that to which the jurisdiction is lim- ited in other cases; and those courts may make such special rules concerning the class of cases authorized to be brought un- der this chapter as will tend to expedite their disposition, and prevent unnecessary costs. [66 v. 242, § 553.] Sec. 2295 R. S. [Unpaid assessments to be certified to auditor.] The council may order the clerk or other proper officer of the corporation to certify any unpaid assessment or tax to the au- ditor of the county in which the corporation is situated, and the amount of such assessment or tax so certified, shall be placed upon the tax-list by the county auditor, 1 and shall, with ten per cent, penalty 2 to cover interest and cost of collection, be collected with and in the same manner as state and county taxes, and credited to the corporation; provided, that the said ten per cent, penalty shall in no case be added unless at least thirty days shall intervene between the date of the publication of the ordinance making the levy and the time of certifying the same to the county auditor for collection. 3 [1883, March 7: 80 v. 52; Rev. Stat. 1880; 66 v. 243, § 554.] (1) Section construed. — See R. if assessment not paid in time be- lt. Co. v. Sullivan, 32 O. S. 152. cause defective. Upington v. Ovi- Placing on duplicate.— Where att, 24 O. S. 232. assessment had been assigned to See further, Hartman v. Hunter, contractor it could not be placed 8 C. C. 623. on tax duplicate. Horn v. Columbus, (3) New provisions of code. — 1 C. C. 337. See § 94 of the Code, which provides Where assessment has been cer- that whenever bonds are issued in tified to auditor, municipality can- anticipation of the collection of not then collect by suit. Fremont assessments, all such assessments v. Hayes, 4 N. P. 379. (except, of course, those paid in Only county treasurer can sue. cash) shall be certified to the coun- Ry. Co. v. Bellaire, 67 O. S. 297. ty auditor and collected as other County auditor not entitled to taxes. In all other cases assess- compensation for preparing a special ments are collected by the treasurer delinquent assessment duplicate. of the municipality, and these, if Marshall v. Wooster, 38 B. 170. unpaid, may be certified as provided (2) Penalty cannot be collected in § 2295 R. S., above. Sec. 2297 R. S. [Duration of lien, etc.] The lien of an as- sessment * shall continue two years from the time the same is payable, and no longer, 2 unless the corporation shall, before the Oode § 94] assessm'ts. miscellaneous provisions. 271 expiration of the time, have caused the same to be certified to the auditor of the proper county, for entry upon the tax-list, for collection, 3 or shall have caused the proper action to be com- menced in some court having jurisdiction thereof, to enforce such lien against such lots or lands, in which case the lien shall continue in force so long as such assessment remains on the tax-list uncollected or so long as such action is pending, and any judgment obtained, under and by virtue thereof, re- mains in force and unsatisfied. [66 v. 243, § 556; (S. & S. 837).] ( 1 ) Lien distinguished from on its face that the two years have that given by § 1104 R. S. Hart- elapsed it is demurrable. Bonte v. man v. Hunter, 8 C. C. 623. Taylor, 24 O. S. 628. (2) Suit by municipality to col- (3) Limitation of actions to lect must be brought within the collect assessments. See no^e to two years and where petition shows § 2286 R. S., supra, p. 265. Sec. 2298 It. S. [When new action may be commenced.] If an action is commenced within due time, and a judgment therein for the plaintiff is reversed, or if the plaintiff fails in such action otherwise than upon the merits, and the time limited for the same has expired, [a new action may he commenced with-] in one year after such reversal or failure. [66 v. 243, § 557.] Sec. 2299 It. S. [Collection of assessment in advance.] The council may, if it deems expedient, cause the assessments to be collected before the work is done or contracted for. [66 v. 243, § 558.] Sec. 2300 It. S. [Deficiency or excess of assessments.] If an assessment proves insufficient to pay for the improvement and expenses incident thereto, the council may, under the limita- tions prescribed for such assessment, make an additional pro rata assessment to supply such deficiency ; and in case a larger amount is collected than is necessary, the same shall be returned to the persons from whom it was collected, in proportion to the amounts collected from such persons respectively; but this sec- tion shall be subject to the limitations contained in other sec- tions of this chapter. [66 v. 243, § 559.] Sec. 2302. [Added territory.] The provisions of this chap- ter shall embrace territory added to the corporation by annex- ation or otherwise. [66 v. 244, § 561.] Sec. 2318. [Proceedings of jury.] * The jury shall he sworn to inquire into and assess the actual damages in each case sep- arately, under such rules and instructions as shall he given it by the court; and when the jury cannot agree, it may be dis- 272 THE OHIO MUNICIPAL CODE. [Code § 94 charged; but the court may receive its verdict as to one or more of the claimants, and discharge it with respect to parties concerning whose claims it cannot agree; and in case of the discharge of the jury because of disagreement as to any or all of the claims, a new jury shall be summoned, and the same proceedings shall be had, with respect to the claims concern- ing which there was no verdict, as on the original trial. [66 v. 246, § 567; (S. & C. 1545).] ( 1 ) Application of section.— ments, and should follow § 56 of the This section refers to proceedings to Code, supra. assess damages caused by improve- Sec. 2321 R. S. [Assessment after completion of improvement.] 1 In all cases where the council determines to assess the dam- ages after the completion of any improvement provided for by this chapter, for which a claim for damages has been filed as hereinbefore provided, the mayor or solicitor shall, within ten days after the completion of such improvement, make writ- ten application to the court of common pleas, or a judge there- of in vacation, or^to the probate court of the county in which the corporation, or the larger part thereof, is situated, to sum- mon a jury, in the manner pointed out in chapter three of this division, 2 to assess the amount of damage in each particular case; and such court or judge shall fix the time and place of inquiry, and the assessment of damages, in the manner herein- before provided. [67 v. 82, § 570.] (1) Application of section. — (2) Sections referred to. — This This section refers to the assessment refers to the chapter in the Revised of damages caused by improvements, Statutes on the appropriation of when such damages are to be ascer- property by municipalities, now tained after improvements are made. superseded by §§ 10 to 22 inclusive If placed in appropriate order it of the Code, supra. should follow § 58 of the Code, supra. Sec. 2326 R. S. [Time allowed before suit can be brought.] No person who claims damages, arising from any cause, shall commence a suit therefor against the corporation until he files a claim for the same with the clerk of the corporation, and sixty days elapse thereafter, to enable the corporation to take such steps as it may deem proper to settle or adjust the claim; but this provision shall not apply to an application for an injunc- tion, or other proceeding to which it may be necessary for such applicant to resort in case of argent necessity. 1 [66 v. 247, § 575; (S. & C. 1541).] Code § 94] assessm'ts. miscellaneous provisions. 273 (1) Damages for personal in= Where no notice received, of jury are not included within the resolution to improve, property words " damages arising from any owner is not barred from commenc- cause " and claims for such dam- ing a suit for damages. Jacobs v. ages need not be filed. City v. Cincinnati, 2 N. P. 283. Davis, 43 O. S. 447. Sec. 2327 R. S. [Construction of provisions.] Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded ; but the proceedings shall be strictly construed in favor of the owner of the property as- sessed or injured, as to the limitations on assessment of pri- vate property, and compensation for damages sustained. 1 (1) Applied. — Cincinnati v. She- Cincinnati, 11 C. C. 336 (affirmed, rike, 47 O. S. 217, 222; Connor v. 55 O. S. 82). Sec. 2332 R. S. [Construction of sidewalks on one side only; upon other side.] If the board of public works, board of admin- istration, board of city affairs, board of improvements, 1 coun- cil or trustees of any municipal corporation deem it necessary to construct a sidewalk or gutter on one side only of any street, alley, turnpike or plank road with proper crossings from one side to the other, it shall be lawful to assess and collect the charge for constructing or repairing such sidewalk, gutter and crossings on the owners of the lots or lands abutting on both sides of such street, alley or road in like manner as if such side- walk and gutter had been constructed on both sides ; but when a sidewalk or gutter is so constructed, if it is deemed necessary to construct a sidewalk or gutter on the other or corresponding side of such street, alley or road, the charge therefor shall also be assessed on the owners of the lots and lands on both sides. 2 [90 v. 213; 89 v. 392; 66 v. 250, § 594; (S. & S. 838).] (1) Interpretation. — This must constructing a sidewalk on one side be taken to mean such board only only, leaving no space for sidewalk as is given authority in sidewalk on other side and assessing cost on improvements by the Code. both sides, it is unreasonable. Mills (2) Ordinance unreasonable.— v. Norwood, 26 B. 348, 6 C. C. 305. Where an ordinance provides for 274 the ohio municipal code. [Code § 95 Sixth. Power to Borrow Money. 1 (a) General Provisions. Sec. 95. [Power of municipality to borrow money and issue certificates of indebtedness therefor, in anticipation of general revenue fund; limitation.] 2 All municipal corporations shall have power to borrow money 3 and issue certificates of indebted- ness therefor, signed as municipal bonds are signed, in antici- pation of the general revenue fund in any fiscal year, but no loans shall be made exceeding the amount of taxes and reve- nues estimated to be received at the next semi-annual settlement of tax collections for said fund, after deducting all advances. The sums so anticipated shall be deemed as appropriated for the payment of the certificates at maturity. Such certificates of indebtedness shall not run for a longer period than six months, nor bear a greater rate of interest than six per cent., nor be sold for less than par with accrued interest. [Power of municipal corporation to issue bonds in anticipation of special assessments.] Municipal corporations shall likewise have power to issue bonds in anticipation of special assess- ments, 4 and such bonds may be in sufficient amount to pay the estimated cost and expense of the improvement for which such special assessments are levied, and in the issuance and sale of such bonds the municipality shall be governed by all the re- strictions and limitations with respect to the issuance and sale of other bonds, and the assessments as paid shall be applied to the liquidation of said bonds. 5 (1) Chapter of Revised Stat= 2708, which are re-enacted, and § utes relating to the power to borrow 2709, which is entirely superseded money and issue bonds was Chap. 2, by § 97 of the Code. Div. 9, Title XII R. S., §§ 2700 to (2) Old sections 2700 R. S. 2711-28. inclusive. Of these sec- (loan in anticipation of revenue), tions, all are exnresslv renewed ex- 2704 R. S. (borrowing money in an- cept §§ 2701, 2703, 2706, 2707 and ticipation of special assessments), Code § 95a] power to borrow money. 275 and 2705 R. S. (bonds for money borrowed in anticipation of special assessments), all repealed. (3) Power to borrow. — In the absence of restrictions a municipal- ity has implied power to borrow money to carry into effect other powers granted. Bank v. Chilli- cothe, 7 O. (2nd pt.) 31. But see Dunham v. Opes, 3 C. C. 274, 282, where it is said that this doctrine does not apply where there are re- strictions, as now exist in Ohio. Where a municipality is defending against paying a debt on the ground of its want of power to borrow, a strict construction of powers in its favor will not be adopted. Bank v. Chillicothe, 7 O. (2nd pt.) 31. (4) Bonds in anticipation of assessment. — Such bonds may be sold before the assessing ordinance is passed. Irwin v. Greenville, 1 Dayton, 140. As to injunction against payment of such bonds, because of irregular- ity in issuing, see Ampt v. Cincin- nati, 3 N. P. 184. Validity of bonds. Although the statute authorizing the assessment is invalid, and assessment cannot, therefore, be collected, the bonds au- thorized by same statute issued in anticipation of the assessment may be valid and enforceable. Loeb v. Columbia Twp., 179 U. S. 472. (5) Form of bonds.— It was held, under the former statutes that all bonds issued under the authority of Chap. 2, Div. 9, Title XII, R. S., must comply with § 2703 R. S., and express upon their face the purpose of issue and the ordinance under which issued. Keehn v. Wooster, 13 C. C 270. Sec. 95a. [Municipalities authorized to issue notes in anticipa- tion of collection of special assessments.] Municipal corpora- tions shall have power to borrow money and issue notes in anticipation of the collection of special assessments. Said notes shall be signed and sealed as municipal bonds are signed and sealed. They shall bear interest at a rate not exceeding six per cent, per annum and be due and payable not later than two years from the date of issue. Said notes shall not exceed in amount the estimated cost of the improvement, and shall re- cite upon their face the purpose for which they were issued. All assessments collected for the improvement, and all unex- pended balances remaining in the fund after the cost and expenses of said improvement have been paid, shall be applied to [in] the payment of the notes and the interest thereon until 276 the ohio municipal code. [Code § 96 both are fully provided for. Council ordinances and proceed- ings relating to the issue of said bonds [notes] shall not require publication. [1904, April 27, 97 v. 520.] Sec. 96. [Power of municipalities to issue refunding bonds.] Municipal corporations shall have power to issue bonds in the manner and for the purposes authorized by section 2701, Re- vised Statutes of Ohio, and the form and requisites of all bonds shall be such as are required by sections 2703, 2706, 2707 and 2708 of the Revised Statutes of Ohio. Sec. 2701 R. S. [Issue of bonds, etc., to extend time of pay- ment] The trustees 1 or council of any municipal corpora- tion, for the purpose of extending the time of the payment of any indebtedness, which from its limits of taxation such cor- poration is unable to pay at maturity, or when it appears to the said trustees or council for the best interest of the said munici- pal corporation, shall have power to issue bonds 2 of such cor- poration or borrow money so as to change but not to increase the indebtedness, 3 in such amounts and for such length of time and at such rate of interest as the council may deem proper, not to exceed the rate of six per centum per annum, payable annually or semi-annually; provided, however, that no indebt- edness of any such municipal corporation shall be funded, re- funded, or extended, unless such indebtedness shall first be de- termined to be an existing valid and binding obligation of any such municipal corporation 4 by a formal resolution of the trustees or council of such municipal corporation, which reso- lution shall also state the amount of the existing indebtedness to be funded, refunded or extended, the aggregate amount of bonds to be issued therefor, their number and denomination, the date of maturity, the rate of interest they shall bear, and the place of payment of principal and interest. [92 v. 368, 170; 89 v. 417; 70 v. 5, § 662.] (1) Trustees referred to above tended to give the right to issue apparently means trustees of hamlets bonds where a funded indebtedness and not Sinking Fund trustees, of the municipality exists. Herr- whose powers are denned in §§ 101- mann v. Cincinnati, 9 C. C. 357, 359 115 of the Code, inclusive. See (affirmed 52 O. S. 676). note " Status of hamlets " under Under this section council may. § 1 of the Code. when there are outstanding bonds, (2) Purpose. — This section does and before the maturity of such not give power to issue bonds of a bonds, issue refunding bonds to an municipality to meet deficiencies in amount equal to the original bond the various departments. It is in- issue, at a lower rate of interest. Code § 96] POWER TO BORROW MONEY. 277 and at longer time. But where the original bonds were sold at a pre- mium, council cannot issue addition- al bonds in excess of original bond issue, to be used to pay holders of original bonds for premiums so paid. Altaffer v. Nelson, Mayor, 18 C. C. 145. As to refunding interest see Cincinnati v. Guckenberger, 60 O. S. 353. The indebtedness for which the municipality may issue bonds under § 2701 R. S. must be such as the municipality has power to levy a tax to pay, or already evidenced by bonds, or such that bonds could have been issued at the time. The mere existence of claims for which in some manner the municipality is or may be made liable is not suffi- cient. Newton v. Toledo, 18 C. C. 756, 762 (affirmed 52 O. S. 649). Validity in general. — Bonds made out in the name of the " town of Perrysburg " when the correct name was the " incorporated village of Perrysburg " were held valid. Fosdick v. Perrysburg, 14 O. S. 472. Bonds to refund will not be valid if the original bond issue was uncon- stitutional. Keehn v. Wooster, 13 C. C. 270. Bonds issued on faith of Supreme Court decision, will not be invalid- ated by a subsequent decision deny- ing the right to issue such bonds. Gelpke v. Dubuque, 68 U. S. 175, followed, State v. Gibson, 8 N. P. 367. Bonds issued under authority of the legislature to pay the moral ob- ligation of a county though the claimants thereon had no cause of action cognizable in a court of law, will be upheld and their payment enforced against the county. N. Y. Life Ins. Co. v. Cuyahoga Co., 106 Fed. 123. Where a municipality has issued its bonds impressed with the seal of the city clerk, not having a seal of the corporation, but the bonds recit- ing that the seal attached is the "corporate seal," the municipality is estopped to deny the validity of such seal. Defiance v. Schmidt, 14 O. F. D. 408. Certain bonds of the city of Defi- ance recited on their face that they were "issued under and pursuant to the laws of the State of Ohio, and an act of the General Assembly passed Feb. 3, 1887, entitled, etc." Held that such bonds were valid, even though the particular act re- ferred to was unconstitutional and furnished no authority for their is- sue, since authority was elsewhere to be found in the statutes. Defi- ance v. Schmidt, 14 O. F. D. 408. Purchase for value without no= tice. — Where power is given to issue bonds on certain conditions, and the bonds purport to be issued under such law, they will be good in the hands of bona fide purchasers, notwithstanding irregularity in the acts of the authorities issuing them. State ex rel. v. Board of Ed., 27 O. S. 96. See further State v. Com- missioners, 37 O. S. 526. Where a municipality has power, as under this section, to borrow for certain purposes, a bona fide lender will be protected, although the money was desired for an illegal purpose. Ohio Farmers' Ins. Co. v. New Philadelphia, 17 B. 250. And the mere failure to comply with the statutory provisions relat- ing to the issue of bonds will not relieve the municipality from the obligation to repay the money bor- rowed on the faith of such bonds. Ampt v. Cincinnati, 3 N. P. 184. But bonds issued where no power to issue has been given by the leg- islature are invalid even in the hands of bona fide purchasers. Ampt v. Cincinnati, 3 N. P. 184, and cases cited. Where an injunction was allowed restraining the issuing of certain municipal bonds, the decree being entered before the date of the bonds or the time when they purported to be signed and before the ordinance 278 THE OHIO MUNICIPAL CODE. [Code § 96 authorizing them could go into op- eration under the statute, the fact that the bonds were in fact signed before the injunction was allowed, and sold will not protect the pur- chasers thereof as innocent purchas- ers for value. Altaffer v. Nelson, Mayor, 18 C. C. 145. But the rights of a bona fide holder are not affected by the fact that bonds bear a date prior to that of ordinance authorizing them. Kent v. Dana, 100 Fed. 56; 40 C. C. A. 281. A bond under § 2701 R. S. must show on its face the purpose for which issued, and the ordinance or resolution authorizing it, in order that a purchaser may claim to be a purchaser for value without notice. Keehn v. Wooster, 13 C. C. 270. Where the bond does not recite any ordinance or resolution author- izing its issue, it is not negotiable paper. Sullivan v. Urbana, 3 Dec. (Re.) 554. If such bond was in fact fraudulently issued, bona fide pur- chasers will not be protected. lb. The presumption is that the holder of bonds acquired them in good faith and for value. Ampt v. Cincinnati, 3 N. P. 184, and cases cited. *A purchaser cannot be charged with negligence in not anticipating that the law under which the bonds were issued would be held uncon- stitutional. Life Ins. Co. v. Cuya- hoga Co., 106 Fed. 123. The bona fide purchaser of county bonds issued by officers having no authority to issue them was held not to be protected. In such case the bonds are void. State v. Gib- son, 8 N. P. 367; Hubbard v. Fitz- simmons, 57 O. S. 436. Limitations that purchaser is bound to take notice of. See Miller v. Hixson, 64 O. S. 39. The recital in a bond that it is issued in pursuance of an act of the legislature and ordinances of the city council passed in pursuance thereof, does not put a purchaser upon inquiry as to the terms of the ordinances under which the bonds were issued. Evansville v. Dennett, 161 U. S. 434; Schmidt v. Defiance, 13 O. F. D. 229. Estoppel by recitals. — " It is now firmly established by decisions that if a municipality has power to and does issue bonds containing re- citals of fact and such bonds come into the hands of innocent purchas- ers, such city is estopped from de- nying the truthfulness of such recitals." Defiance v. Schmidt, 14 O. F. D. 408 ; Northern Bank v. Por- ter Township, 5 O. F. D. 256. Where payable. — Bonds can be made payable outside the state. Meyer v. Muscatine, 1 Wall. (U. S.) 384, 391; Lynde v. Wennebago Co., 16 Wall. (U. S.) 6. (3) Not to increase indebted- ness. — Where a municipality is is- suing bonds to refund its bonded indebtedness, it cannot, even by a separate resolution, issue additional bonds (besides those equal the amount of the original bonds) to pay compensation for premiums paid by holders of original bonds. Altaffer v. Nelson, Mayor, 18 C. C. 145. And see last sentence § 97 of the Code, infra. As to refunding interest, see Cincinnati v. Gucken- berger, 60 O. S. 353. ( 4 ) Indebtedness first declared. — In a petition in mandamus to compel the mayor to sign certain re- funding bonds, the absence of aver- ment that the council first declared the debt to be valid and described the bonds, will be fatal, on de- murrer. State v. Staley, 18 C. C. 406 (affirmed 60 O. S. 632). PORM OF RESOLUTION TO ISSUE BONDS UNDER SEC. 2701 R. S. Resolution To provide for the issue of bonds of the city [or village] of in the sum of $ , for the purpose of extending the time of pay- ment of certain indebtedness which from its limits of taxation the said city [or village] is unable to pay at maturity. Be it resolved by the council of the city [or village] of State of Ohio : Code § 96] power to borrow money. 279 Sec. 1. That certain indebtedness heretofore incurred by the city [or village] of , to-wit, that incurred in (here state the manner in which the indebtedness was incurred) to the amount of 1$ is hereby determined and declared to be an existing, valid and binding obligation of said city [or village]. Sec. 2. To provide means to extend the time of payment of said in- debtedness which from its limits of taxation the city [or village] ol is unable to pay at maturity there shall be issued the bonds of the city [or village] of to an aggregate amount of $ , which said bonds shall be in the denomination of $ each, and numbered consecutively from one to , all made payable at , in the city [or village] of , State of , and all bearing inter- est at the rate of ...per cent, per annum, payable annually [or semi-annually] at the same place; and said bonds shall be dated and shall run for a period of years from their date. Sec. 3. Said bonds shall express upon their face the purpose for which they were issued and that they were issued in pursuance of this resolution. They shall be prepared, issued and delivered under the direction of the finance committee of council (or other committee, if desired) and the city auditor [or village clerk] and shall be signed by the mayor of said city [or village] and by the city auditor [or village clerk] and sealed with the corporate seal of said city [or village] ; and interest coupons attached to said bonds shall be executed by the city auditor [or village clerk] with his signature thereto, or he shall have his signature printed or lithographed thereon. (If registered bonds are issued instead of coupon bonds, substitute the following for Sec 3. " Sec. 3. Said bonds shall express upon their face the purpose for which they were issued and shall refer to this resolution. They shall be prepared, issued and delivered under the direction of the Finance Committee of council (or other committee, if desired) and the city auditor [or village clerk] and shall be signed by the mayor of said city [or village] and by the city auditor [or village clerk] and sealed with the corporate seal of said city [or village]. Said bonds shall be registered in the office of the Trustees of the sinking fund in the name of the purchaser and shall bear interest as aforesaid.") Sec. 4. Said bonds shall be first offered at par and accrued interest to the trustees of the sinking fund in their official capacity and if the sinking fund trustees refuse to take any or all said bonds at par and interest, then said bonds not so taken shall be advertised for public sale and sold in the manner provided by law, but not for less than their par value and accrued interest. The proceeds from the sale of said bonds, except the premiums and accrued interest thereon, shall be used for the purpose of paying the indebtedness aforesaid and for no other purpose; and the premiums and accrued interest received from such sale shall be transferred to the trustees of the sinking fund to be applied by them in the manner provided by law. Sec. 5. This resolution shall take effect and be in force from and after the earliest period allowed by law. Passed 19 •• • ■ ■• • ., President of Council. Attest: , Clerk. 280 the ohio municipal code. [Code § 96 Note: In the form above given the action of council is called a " resolu- tion," in accordance with the provisions of § 2701 R. S., § 2703 R. S., infra, requires that bonds shall express upon their face the " ordinance " under which they are issued. It would seem, however, that bonds issued under § 2701 need not be authorized by both a resolution and an ordinance, and that one would include the other. See note to § 2703 infra. The form above given provides only for cases in which bonds are to be sold to take up and thus postpone the final extinguishment of, an existing indebtedness. This may readily be adapted to other circumstances con- templated in § 2701. If it is desired to exchange new bonds for old and reduce the rate of interest on obligations not matured, this may be done under § 97 of the Code, infra, and an adaptation of the above form may be used. FORM OF MUNICIPAL BOND. No $ UNITED STATES OF AMERICA. STATE OF OHIO. The city [or village] - of BOND. KNOW ALL MEN BY THESE PRESENTS: That the city [or village] of , a municipal corporation under the laws of the State of Ohio, is indebted to the bearer hereof in the sum of $ which said city [or village] promises to pay on the day of , in the year , at , in the city [or village] of , State of , with interest thereon at the rate of per cent, per annum, payable annually [or semi-annually] on the first day [or days] of , [or and ] in each year at , in the city [or village] of State of upon the presentation and. surrender of the interest coupons hereto attached as they severally become due. This bond is issued for the purpose of (here state purpose) and under authority of the laws of Ohio and of § of the Revised Statutes of Ohio [or of an act of the General Assembly of the State of Ohio passed on the day of . . ., , entitled an act, etc.] and under and in accordance with a certain resolution of the said city [or village] of , entitled (here state title of resolution) passed on the day of , 19 .... ; and all proceed- ings relating to this bond have been in strict compliance with the said laws, statute and resolution aforesaid. This bond is one of a series of bonds of like date and effect numbered consecutively from one to and amounting in the aggregate to $ , said bonds being in the principal sum of $ . . each. IN WITNESS WHEREOF, the said city [or village] of has caused its corporate name and seal to be hereunto affixed and the signatures of its mayor and auditor [or clerk] to be hereunto subscribed by said Code § 96] power to borrow money. 281 officers, duly authorized in the premises, this day of. 19 The city [or village] of Mayor. Auditor [or clerk], (Corporate Seal.) COUPON. On the day of the city [or village] of . . . , State of Ohio, promises to pay the bearer at in the city [or village] of State of , $ , being one year's [or six months'] interest due on that day on its Bond No City Auditor [or village clerk]. Sec. 2703 R. S. [Bonds to be explicit on their face.] All bonds issued under authority of this chapter * shall express upon their face the purpose for which they were issued, and under what ordinance. 2 [66 v. 262, § 664:.] (1) See note (1) to § 95 of the Code. (2) When recital required. — All municipal bonds issued under authority of former chapter begin- ning with § 2700 R. S., were held to be subject to requirement of § 2703 R. S. Keehn v. Wooster, 13 C. C. 270. So, bonds to extend the time of payment of certain indebtedness, must comply with this section. lb. But notes given for a municipal loan need not express upon their face the purpose for which given. ft 2703 applies only to bonds issued to be sold to the highest bidder. Ohio Farmers' Ins. Co. v. New Phil- adelphia, 17 B. 250. Sufficiency of recital. — Bonds given to refund void bonds, reciting merely that they were given to take up other bonds, " as provided in an ordinance" of the municipality, are not valid, where there was no ordi- nance for their issue. U. S. Trust Co. v. Mineral Ridge, 104 Fed. 851. See also, as to sufficiency of state- ment of purpose, Hensly v. Hamil- ton, 3 C. C. 201 j Keehn v. Wooster, 13 C. C. 270; Kent v. Dana, 100 Fed. 56, 40 C. C. A. 281; Clapp v. Marice City, 111 Fed. 103. Effect of non recital. — A bond not containing a reference to the ordinance or resolution authorizing it was held not to be negotiable paper. Sullivan v. Urbana, 3 Dec. (Re.) 554 (Ohio Law Journal). Municipality will not be estopped to deny legality. Keehn v. Wooster, 13 C. C. 270; and no one can claim to be innocent purchaser of such bond. lb. Estoppel by recitals. — See notes to § 2701 R. S., supra, p. 278. Ordinance referred to in § 2703 R. S. above, doubtless covers the " formal resolution " required in § 2701 R. S. supra. "Ordinance" and " resolution " mean the same thing when the procedure respect- ively required is complied with. Kerlin Bros. v. Toledo, 20 C. C. 603. 282 the ohio municipal code. [Code § 97 Sec. 2706 R. S. [Form and requisites' of municipal bonds, etc.] All bonds, notes or certificates of indebtedness issued by muni- cipal corporations shall be signed by the mayor and by the au- ditor, comptroller or the clerk thereof, and be sealed with the seal of the corporation, 1 and when issued for street improve- ments shall have the name of the street or portion thereof so improved, and for which the same were issued, legibly written or printed upon them. [1883, March 21 : 80 v. 66 ; Kev. Stat. 1880; 66 v. 86, § 666.] ( 1 ) Duty of officers. — It would Seal. — Where bonds are sealed be a breach of duty for the mayor with the seal of the city clerk, but to sign bonds containing false re- contain a recital that the seal is the citals as to matters and things re- corporate seal, the city will be es- quired to be done to make the bonds topped to deny validity of seal. lb. valid. Defiance v. Schmidt, 14 O. 1 . D. 408. Sec. 2707 E. S. [Bonds may have coupons attached.] Bonds issued as provided in this chapter 1 may, in the discretion of the council, have interest coupons attached. 2 [66 v. 262, § 667.] (1) See note (1) under § 95 of pons. State ex rel. v. Comm'rs, 6 the Code, supra, p. 274. O. S. 280, 286. (2) Interest coupons. — The Possession of interest warrants is power to issue interest bearing prima facie evidence of ownership bonds was held to include, of itself, of bonds and their non-payment. lb. the authority to attach interest cou- Sec. 2708 R. S. [Character of bonds in certain cases.] Where the corporation is divided into districts for sewerage purposes, bonds issued for money borrowed to pay the expense of con- structing or repairing sewers in any such district, shall have the name and number of the district for which they are issued legibly written or printed upon them. [66 v. 262, § 668.] Sec. 97. [Municipal bonds first offered to trustees of sinking fund.] J Municipal bonds shall be sold in the manner herein provided. Whenever any municipal corporation issues its bonds, it shall first offer them at par and accrued interest to the trustees or commissioners, in their official capacity, of the sinking fund, or, in case there are no such trustees or commis- sioners, to the officer or officers of such corporation having Code § 97] power to borrow money. 283 charge of its debts, in their official capacity, and only after their refusal to take all or any of such bonds at par and interest, bona fide for and to be held for the benefit of such corporation, sinking fund or debt, shall such bonds, or as many of them as remain, be advertised for public sale. [Not to be sold for less than par value.] In no case shall the bonds of the corporation be sold for less than their par value ; 2 nor shall such bonds when so held for the benefit of such sink- ing fund or debt, be sold, except when necessary to meet the requirements of such fund or debt. [Sold to highest bidder after notice by publication.] All sales of bonds, other than to the sinking fund, by any municipal cor- poration, shall be to the highest and best bidder, 3 after thirty days' notice in at least two newspapers of general circulation in the county where such municipal corporation is situated, set- ting forth the nature, amount, rate of interest and length of time the bonds have to run, with time and place of sale. 4 Ad- ditional notice may be published outside of such county by order of the council, [When may be sold at private sale.] provided, however, when any such bonds have been once so advertised and offered for public sale, and the same or any part thereof, remain unsold, then said bonds, or as many as remain unsold, may be sold at private sale at not less than their par value, under the direc- tion of the mayor and the officers and agents of the corporation by whom said bonds have been, or shall be, prepared, adver- tised and offered at public sale;' [Refunding of corporate indebtedness.] provided, further, that when it shall appear to the trustees or council of any mu- nicipal corporation, to be for the best interests of such corpo- ration to renew or refund any bonded indebtedness of such cor- poration which shall not have matured, and thereby reduce the rate of interest thereon, such trustees or council shall have 284 THE OHIO MUNICIPAL CODE. [Code § 97* authority to issue for that purpose new bonds, with semi-annual interest coupons attached, and to exchange the same with the holder or holders of such outstanding bonds, if such holder or holders shall consent to make such exchange and to such re- duction of interest." When new bonds are issued the same shall not in any case exceed in amount the outstanding bonded indebtedness to be renewed or refunded. (1) Old section.— § 2709 R. S. as amended in 95 O. L. 507, is sub- stantially re- written as § 97 above, though the old statute is not ex- pressly repealed by the Code. It is, however, clearly superseded. (2) Sale for less than par. — Bonds sold for less than par, though void in the hands of one who ille- gally bought them are not void as against an innocent purchaser into whose hands they subsequently came. State ex rel. v. Board of Education, 27 O. S. 96. ( 3 ) Highest bidder.— City coun- cil's discretion in determining which is the highest and best bid if bids were uncertain, will not be inter- fered with. Irwin v. Greenville, 1 Dayton, 140. See further as to discretion, Guckenberger v. Dexter, 5 N. P. 429; 60 O. S. 353. Where the terms of the highest bid are clearly understood by buyer and seller and the bid is accepted there can be complaint, as to ambi- guity in the terms, by other bidders. Atlas Bank v. Cincinnati, 11 Dec. 436. Compliance with advertise- ment.— A bid of 103 5-10 with in- terest is not ambiguous and suffi- ciently complies with an advertise- ment requiring the gross amount of the bid to be stated. Atlas Bank V. Cincinnati, 11 Dec. 436. A bid offering par and accrued interest to date complies with ad- vertisement stating that no bid will be received for less than par and accrued interest " to date of deliv- ery " for the bid will be construed as meaning payment of interest from date of issue to date of deliv- ery. Hayes v. Board of Education, 22 C. C. 32 (aff'd, 68 O. S. 685). Right to reject all bids. — See upon general subject of right to re- ject all bids whether or not ex- pressly conferred by statute, State ex rel. v. Cincinnati, 3 C. C. 542; State ex rel. v. Comm'rs, 36 O. S. 326; State v. Comm'rs, 39 O. S. 188; State ex rel. v. Comm'rs, 1 C. C. 194; State ex rel. v. Directors, 5 O. S. 234. (4) Sufficiency of advertise= ment. — An advertisement stating that the bonds are to be delivered on a certain day is sufficient and the sale is valid, although on the day set for delivery, but before the bidding, it is announced that the bonds will be delivered in install- ments covering a period of four months, giving the purchaser the benefit of the interest accruing upon tue later installments. Franklin v. Baird, 7 N. P. 571. A bidder cannot complain of a variance, as to the time of redemp- tion, between the advertisement and the resolution • authorizing the bonds, where the bonds were made payable according to the advertise- ' ment. State ex rel. v. Allison, 8 N. P. 170. Whether objection can be raised aa to sufficiencv of advertisement after Code § 97] power to borrow money. 285 bonds have been issued and the and best bidder after advertisement money is in the treasury, see State Cincinnati v. Guckenberger, 60 O. b. t at io -^ ,„ 353; Roberts & Co. v. Taft, 109 Fed. ex rel. v. Amlin, 13 Dec. 334. g25 . 4g c c A 6gl gee also § When sold.— Bonds for improve- n 5 f the Code, ment may be sold before the assess- (5) Private sale. — When bonds ing ordinance has been passed. Ir- were duly offered and bids received ~ .„ . ^ , _. A by proper municipal officers, but be- win v. Greenville, 1 Dayton, 140. f ^ ^ for awarding? municipal- Bonds sold before date will not be ity was enjoined from awarding the good in the hands of a bona fide bonds and thereupon all bids were purchaser when injunction against withdrawn (as they could be, any .. . . „ , , , ,, time before acceptance), the offi- their issue was allowed before the cerg might lawful f y sell such bonds date of the bonds. Altaffer v. Nel- a t private sale. Vadakin v. Crilly, son, mayor, 18 C. C. 145. 7 C. C. (N. S.) 341 (aff'd, 73 O. S. 380). Sinking fund bonds, issued to (6) Forms f ordinance or reso- refund or extend existing obhga- ]ution effecting such exchange and tions, as authorized by § 113 of the of the new bonds to be exchanged Code, are subject to the provisions for the old mav be adapte d from of §97 above (old §2709 R. .8.) forms iven under § 2 701 R. S. and can be sold only to the highest snpra p 278. FORM OF NOTICE OF SALE OF BONDS. Legal Notice. Sealed proposals will be received at the office of the auditor [or clerk] of the city [or village] of , State of Ohio, until 12 o'clock noon of , 19. . . ., for the purchase of bonds of the said city [or village] , in the aggregate sum of $ dated the day of , 19 .... , payable in years from date, each being in the sum of $ , and bearing interest at the rate of per cent, per annum, payable annually [or semi-annually], issued for the purpose of (here state purpose of issue) And under authority of the laws of Ohio and of § of the Revised Statutes of Ohio [or of an act of the General Assembly of the State of Ohio passed on the day of , , entitled an act *tc.], and under and in accordance with a certain ordinance [or resolution] of the said city [or village] entitled (here state title) passed on the *iay of , 19 Said bonds will be sold to the highest and best bidder for not less than par and accrued interest. All bids must state the number of bonds bid for and the gross amount of bid and accrued interest to date of delivery (and if desired, add, "All bids to be accompanied with a certified check, payable to the treasurer of the city [or village] for per centum of the amount of bonds bid for, upon condition that if the bid is accepted the bidder will receive and pay for such bonds as may be issued as above set forth, within ten days from the time of award, said check to be retained by the city [or village] if said condition is not fulfilled.") The city [or village] of reserves the right to reject any and all bids. Bids should be sealed and endorsed " bids for bonds." 19 Auditor [or clerk]. 286 the ohio municipal code. [Code §§ 98, 99 Sec. 98. [Registration of bonds.] 1 Municipal corporations may, on demand of the owner or holder of any of its coupon bonds heretofore or hereafter issued, issue in lieu thereof a registered bond, or bonds, of the corporations not exceeding in amount the coupon bonds offered in exchange. The registered bond or bonds shall be signed and sealed as other municipal bonds are signed and sealed, and bear the same rate of interest, be payable both principal and interest at the same time and place, as the coupon bonds for which the exchange is made. They shall be of such denomination as the holder of the coupon bonds may elect. The interest and principal of such regis- tered bonds shall when due be paid only to the person, cor- poration or firm, appearing by the records of the municipal corporation to be the owner thereof, or order; and such regis- tered bonds may be transferred on said record by the owner in person or by a person authorized so to do by power of attor- ney duly executed. The exchange and registration here re- quired shall be transacted by the trustees of the sinking fund at their business office where a registry shall be kept for that purpose which shall show the date, series, denomination and owner of such registered bonds, and the number and series of the coupon bonds for which they were exchanged. ~No regis- tered bonds shall be issued by a municipal corporation until the bonds and coupons offered in exchange shall have been can- celled or destroyed. The trustees of the sinking fund may demand of the holder of the coupon bonds a reasonable fee as compensation for the expense of making such exchange. [1904, April 27, 97 v. 516.] (1) Old section 2711 R. EL, repealed. [Sec. 99. [Deficiency bonds; limitation; submission of question to vote.] Council shall have power to issue deficiency bonds in such amount and denominations and for such periods of time, not exceeding fifty years and at such rate of interest not ex- Code § 100] LONGWOKTH BOND ACT. 287 ceeding six per cent, as it shall deem best whenever, in the opinion of council, it is necessary to supply a deficiency in the revenues of the corporation; provided, that the total amount of such deficiency bonds issued by any corporation, outstanding at any time, shall not exceed one per cent, of the total value of all property in such corporation as listed and assessed for tax- ation; and provided further, that the issuance of such bonds shall be approved by the votes of two-thirds of all the mem- bers elected to council, and approved by the votes of two-thirds of all the electors of the corporation voting upon such question at a regular or special election to be provided for by council. Forms for the above may be 2837 R. S., re-enacted in § 100 of adapted from those given under § the Code, infra, p. 294. Sec. 100. [General provisions relative to bonds.] All munici- pal corporations shall have power to issue bonds for the various purposes, to the amounts and with the limitations provided in the act passed April 29, 1902, entitled " An act to amend sec- tions 2835, 2836 and 2837 and to repeal section 2837a of the Kevised Statutes of Ohio, authorizing the issue of bonds by cities, villages, hamlets and townships," and such act shall be and remain in full force and effect; all premiums and accrued interest received by the corporation from a sale of its bonds shall be transferred to the trustees of the sinking fund to be by them applied on the bonded debt and interest account of the corporation; provided, that the premiums and accrued interest upon bonds issued for special assessments shall be applied by the trustees of the sinking fund to the payment of the prin- cipal and interest of those bonds and no others. {b) Longivorth Bond Act. 1 Sec. 2835 R. S. [Townships and municipalities may issue and sell bonds for purposes specified in this act.]- The trus- tees of any township, or the council of any municipal corpora- tion of the state of Ohio, shall have the power to issue and sell bonds in such amounts and denominations, for such period of time and at such rate of interest, not exceeding six per cent., and in such manner as is provided by law for the sale of 288 the ohio municipal code. [Code § 100 bonds by such township or municipal corporations, for any of the purposes provided for in this act, whenever such trustees or council by an affirmative vote of not less than two-thirds of the members elected or appointed thereto shall by resolution or ordinance deem the same necessary. 1. For procuring the real estate and right of way for any improvement authorized by this section, or for purchasing real estate with a building or buildings thereon, to be used for public purposes. 2. For extending, enlarging, improving, repairing or se- curing a more complete enjoyment of any building or im- provement authorized by this section, and for equipping and furnishing the same. 3. For sanitary purposes and for erecting a crematory or providing other means for disposing of garbage and refuse matters. 4. For improving highways leading into the township or corporation, or for building or improving a turnpike, or for purchasing one or more turnpike roads and making the same free. 5. For constructing wharves and landings on navigable waters. 6. For erecting infirmaries. 7. For erecting workhouses, prisons and police stations. 8. For erecting houses of refuge and corrections. 9. For erecting market houses and providing market places. 10. For erecting public halls and public offices. 11. For erecting or purchasing waterworks and supplying water to the township or corporation and the inhabitants thereof. 12. For erecting or purchasing gas works or electric light works, and for supplying light to the township or corporation and the inhabitants thereof. 13. For providing grounds for cemeteries or crematories, for enclosing and embellishing the same, and for erecting vaults. 14. For constructing sewers, sewage disposal works, flush- ing tunnels, drains and ditches. 15. For establishing free public libraries and reading rooms. 16. For the establishment of free public baths. 17. For erecting monuments to commemorate the services of soldiers, sailors and marines of the state and nation. 18. For improving any water course or water front. 19. For the payment of obligations arising from emergen- cies resulting from epidemics, or floods, or other forces of na- ture. 20. For purchasing and condemning the necessary land for park and boulevard purposes and for improving the same as well as for improving or completing the improvement of any existing boulevard, park, or parks. Code § 100] LONGWORTH BOND ACT. 289 21. For erecting hospitals and pest houses and for rebuild- ing, or improving existing hospitals and pest houses. 22. For resurfacing, repairing, or improving any existing street or streets as well as other public highways. 23. For opening, widening and extending any street or pub- lic highway. 24. For purchasing or condemning any land necessary for street or highway purposes, and for improving the same or paying any portion of the cost of such improvement. 25. For constructing levees and embankments or paving or improving the same, and for improving any water course passing through said township or municipal corporation. 26. For constructing or repairing viaducts, bridges and culverts, and for purchasing or condemning the necessary land therefor. 27. For erecting any building necessary for a fire depart- ment, purchasing fire engines, fire boats, constructing water towers, and fire cisterns, and paying the cost of placing under- ground the wires or other signal apparatus of any fire depart- ment. [Total bonded indebtedness permitted to be created by township or municipality in any one year.] The bonds herein authorized may be issued for any or all purposes enumerated herein, but the total bonded indebtedness hereafter created in any one fiscal year under the authority of this act by any township or municipal corporation shall not exceed one (1) per cent, of the total value of all property in such township or municipal corporation, as listed and assessed for taxation, ex- cept as otherwise provided in this act. 3 [Exception; may exceed said amount after submission of question to vote.] Whenever the trustees of any township or the council of any municipal corporation, shall by resolution or ordinance 4 passed by an affirmative vote of not less than two- thirds of all the members elected or appointed thereto, deem it necessary in any one fiscal year to issue bonds for all or any of the purposes 5 authorized in this act in any amount greater than one per cent, of the total value of all property in such township or municipal corporation as listed and assessed for taxation, then and in that event they shall submit the question of issuing any bonds in excess of said one per cent, to a vote of the qualified electors of such township or municipal corpora- tion at a general or special election in the manner hereafter provided in section 2837, Revised Statutes. [Amount of net indebtedness permitted to be incurred by township or municipality at any time; exception.] Provided, however, that the net indebtedness incurred by any township or municipal corporation, after the passage of section 2835, Revised Statutes, as amended April 29, 1902, for the purpose herein enumerated, shall never exceed four (4) per cent, of the total value of all property in such township or municipal corporation, as listed and assessed for taxation, unless an ex- 290 THE OHIO MUNICIPAL CODE. [Code § 100 cess of such amount is authorized by vote of the qualified electors of such township or municipal corporation in the man- ner hereafter provided in section 2837, Revised Statutes. ["Net indebtedness" defined.] In arriving at the net in- debtedness incurred, allowance shall be made only for the amount held in the sinking fund for the redemption of bonds theretofore issued under the provisions of section 2835 as amended April 29, 1902, and subsequently, and the net indebt- edness shall be held to be the difference between the par value of all such outstanding and unpaid bonds and the amount held in the sinking fund for their redemption. [Fiscal year for purposes of this act.] For the purposes of this act the fiscal year shall hereafter be the calendar year, from January 1 to December 31 inclusive, and an indebtedness shall not be deemed to have been created or incurred, where the work is to be done by or through the officers of the town- ship or municipal corporation, until the bonds therefor have been issued and sold. [1906, April 4, 98 v. 63; 97 v. 291; 95 v. 318.] (1) Held constitutional.— This act, amending old §§ 2835, 2836 and 2837 R. S., and known as the "Long- worth Bond Act," was held consti- tutional in Guckenberger v. Hender- son, 66 O. S. 692. Construction of old sections, before amendment, see Dunham v. Opes, 3 C. C. 274 (holding that the former sections outlined the exclu- sive method by which bonds could be issued, where the power was not given to council to act of its own motion, unless § 2687 R. S. con- ferred the power, which was not de- cided). Hensly v. Hamilton, 3 C. C. 201 (holding gas works to be a local improvement within the mean- ing of former sections ) . (2) Hamlets. — See note " Status of hamlets " under § 1 of the Code. (3) Dividing cost of improve- ment. — Whether a municipality may make a partial appropriation of property for a waterworks sys- tem, which will not involve the issu- ance of bonds in a sum greater than one per cent, of the tax dupli- cate and thus evade the submission of the question to popular vote, quere. Knauss v. Columbus, 13 Dec. 200. (4) Resolution or ordinance declaring necessity. — Condition precedent. — The proper adoption of the resolution or ordinance declar- ing it necessary to issue and sell the bonds of the corporation for a specified purpose as authorized by the above section, and providing therein for submission of the ques- tion to popular vote, is essential to the validity of all subsequent proceedings and to the bond issue. Gas and Water Co. v. Elyria, 57 O. S. 374. Character of resolution or ordi- nance. — Such resolution or ordi- nance is of a general and permanent nature and must be read on three different days, unless the rule is duly dispensed with. Gas and Water Co. v. Elyria, 57 O. S. 374. Such resolution or ordinance must provide for but one improve- ment and cannot combine two dis- tinct measures and if it does so, it will not be effectual for either pur- pose, lb. Manner of bond issue, it was held under former section, must be determined by council and this power could not be delegated to mayor. Gas and Water Co. v. Ely- ria, 57 O. S. 374. (5) Several improvements un- der one submission. — The question of increasing size of waterworks system and erecting electric plant in connection therewith, could be submitted as one question, if both were substantially one improve- ment. Ryan v. Orbison, 7 C. C. 30. But the purchase of waterworks and the erection of new ones, are distinct measures and require dif- ferent proceedings. Gas and Water Co. v. Elyria, 57 O. S. 374. Code § 100] LONGWOETH BOND ACT. 291 FORM OF ORDINANCE TO ISSUE BONDS WITHOUT SUBMISSION TO POPULAR VOTE. Ordinance No , To issue bonds for the purpose of Be it ordained by the council of the city [or village] of State of Ohio, two-thirds of the members elected thereto concurring: Sec. 1. That it is deemed necessary by the council of the city [or village] of , to issue and sell the bonds of said city [or village] in the sum of dollars, for the purpose of (here state purpose of bond issue) . Sec. 2. That the bonds of said city [or village] be issued in the sum of $ for the aforesaid purpose ; each of said bonds to be in the denomination of $ , and numbered consecutively from one to ......... and all made payable on the day of , , and bearing interest at the rate of per cent, per annum, payable annually [or semi-annually] [if coupon bonds, evidenced by coupons at- tached thereto] ; said bonds shall be dated and shall run for a period of years from said date; and said bonds shall be payable at in the city [or village] of , State of , Sec. 3. Said bonds shall express upon their face the purpose for which they are issued and that they are issued in pursuance of this ordinance. They shall be prepared, issued and delivered under the direction of the finance committee of council (or other committee if desired) and the city auditor [ or village clerk] and shall be signed bv the mayor of said city [or village] and by the city auditor [or village clerk] and sealed with the corporate seal of said city [or village] ; and the interest coupons attached to said bonds shall be executed by the city auditor [or village clerk] with his signature thereto, or he shall have his signature printed or lithographed thereon ; (If registered bonds are issued instead of coupon bonds substitute the following for Sec. 3. " Sec. 3. Said bonds shall express upon their face the purpose for which they are issued and that they are issued in pursuance of this ordinance. They shall be prepared, issued and delivered under the direction of the finance committee of the council (or other committee, if desired) and the city auditor [or village clerk] and shall be signed by the mayor of said city [or village] and by the city auditor [or village clerk] and sealed with the corporate seal of said city [or village]. Said bonds shall be registered in the office of the trustees of the sinking fund in the name of the purchaser and shall bear interest as aforesaid.") Sec. 4. Said bonds shall be first offered at par and accrued interest to the trustees of the sinking fund in their official capacity, and if the sinking fund trustees refuse to take any or all said bonds at par and interest, then said bonds not so taken shall be advertised for public sale and sold in the manner provided by law, but not for less than their par value and accrued interest. Sec. 5. The proceeds from the sale of said bonds, except the premiums and accrued interest thereon, shall be placed in the city [or village] treas- ury to the credit of the fund and shall be disbursed upon proper vouchers for the purpose of (here state purpose of the bond issue) and for no other purpose; and the premiums and accrued interest received from 292 the ohio municipal code. [Code § 100 such sale shall be transferred to the trustees of the sinking fund to be applied by them in the manner provided by law. See. 6. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed , 19 President of Council. Attest: ' Clerk. Note: Form of bond may be adapted from that given under §2701 R. S., re-enacted in § 96 of the Code, p. 280 ; and form of notice of sale of bonds from that given under § 97 of the Code, p. 285. Sec. 2835b R. S. [When limitation above prescribed not ap- plicable.] Provided further that the limitations of one per cent, and four per cent, prescribed in section 2835, Revised Statutes, shall not be construed as affecting bonds issued under authority of said section 2835 upon the approval of the electors of the corporation, nor shall bonds which are to be paid for by assessments specially levied upon abutting property, nor bonds issued for the purpose of constructing, improving and extend- ing waterworks when the income from such waterworks is suffi- cient to cover the cost of all operating expenses, interest charges and to pass a sufficient amount to a sinking fund to retire such bonds when they become due, nor any bonds issued prior to the passage of section 2835, Revised Statutes, as amend- ed April 20, 1902, be deemed as subject to the provisions and limitations of said section, or be considered in arriving at the limitations therein provided. [1906, April 4, 98 v. 66; 97 v. 520.] Sec. 2836 R. S. [Tax shall be levied to pay bonds and in- terest; exception.] For the payment of bonds issued under the authority of section 2835 of the Revised Statutes or issued after submission of the question to the people under the provis- ions of section 2837 of the Revised Statutes, the trustees of any township or the council of any municipal corporation shall, unless the interest on and redemption of such bonds is other- wise provided for, levy a tax in addition to all levies now au- thorized by law, every year during the period said bonds have to run sufficient to pay the interest on said bonds and to provide a sinking fund for their final redemption at maturity. [1906, April 4, 98 v. 66; 95 v. 321; 93 v. 360; 76 v. 158.] Sec. 2837 R. S. [Procedure when question of bond issue must be submitted to vote.] Before any bonds in excess of the Code § 100] LONGWORTH BOND ACT. 293 said one per cent, in any one year or in excess of the said four per cent, in the aggregate are issued or tax levied, as provided in sections 2835 and 2836, Revised Statutes, the question of issuing the same shall be submitted to the voters of the town- ship or municipal corporation at a general or special election,. And whenever the trustees of any township or the council of any municipal corporation shall by resolution or ordinance passed by an affirmative vote of not less than two-thirds of all the members elected or appointed thereto, declare it necessary to issue and sell the bonds of such township or municipal cor- poration as the case may be, for any or either of the purposes mentioned in section 2835 of the Revised Statutes in excess of the amounts therein authorized, and shall by such resolution or ordinance fix a date upon which the question of issuing and selling such bonds shall be submitted to the electors of such township, or municipal corporation, and shall cause a copy of such resolution or ordinance to be certified to the deputy state supervisors of the county in which such township or municipal corporation is situated, and such deputy state supervisors shall thereupon proceed to prepare the ballots and make all other necessary arrangements for the submission of such question to the electors of any such township or municipal corporation at the time fixed in said resolution. Such»election shall be held at the regular place or places of voting in such township or municipality, and shall be conducted, canvassed and certified in the same manner, except as otherwise provided by law, as November elections in such township or municipal corporation for the election of officers thereof. Thirty days' notice of the submission shall be given in one or more papers printed therein once a week for four consecutive weeks, stating the amount of bonds to be issued, the purpose for which they are to be issued, and the time and place of holding the election ; and if no news- paper is printed therein the notice shall be posted in a con- spicuous place and published once a week for four consecutive weeks in some newspaper of general circulation in the town- ship or municipal corporation ; [Number of votes necessary to authorize issue.] and if two- thirds of the voters voting at such election upon the question of issuing the bonds vote in favor thereof, then and not other- wise the bonds for such excess shall be issued and tax levied. Those who vote in favor of the proposition shall have written or printed on their ballots in quotation, "For the issue of bonds ; ' ' and those who vote against the same shall have writ- ten or printed on their ballots the words, "Against the issue of bonds." 294 the ohio municipal code. [Code § 100 [Total net indebtedness permitted.] Provided, however, that no township or municipal corporation shall hereafter cre- ate or incur a net indebtedness under the authority of this act in excess of eight per cent, of the total value of all property in such township or municipal corporation as listed and assessed for taxation. All bonds heretofore issued in good faith under the authority of section 2835, Revised Statutes, as amended April 29, 1902, and April 23, 1904, which at the time of issue, were within the limitations herein provided, shall be valid obli- gations of the township, city, village, or other municipal cor- poration which issued them and in arriving at the limitations of 8 per cent, herein provided, and of 4 per cent, in section 2835, Revised Statutes; provided, all such bonds, except those excluded by the provisions of section 28356, Revised Statutes, shall be considered. 1 [1906, April 4, 98 v. 66; 97 v. 190; 95 v. 321; 95 v. Ill; 91 v. 106; 91 v. 98; 90 v. 226; 76 v.. 158.] ( 1 ) The limitation of eight per the passage of the act was not to be cent, as it read even before amend- considered in ascertaining whether ment of 1906, was held to have only the prescribed limit of indebtedness a prospective operation, and indebt- had been reached. Tiffin v. Griffith, edness created or assumed prior to 74 O. S. (51 B. 183). FORM OF RESOLUTION DECLARING NECESSITY OF BOND ISSUE. Resolution. Declaring it necessary to issue bonds for the purpose of Be it resolved by the council of the city [or village] of , State of Ohio, two-thirds of all the members elected thereto concurring, that it is necessary to issue and sell bonds in the fiscal year beginning January first, 19 , for the purpose of (here state purpose of bond issue) in an amount greater than one per cent, of the total value of all property in said city [or village] as listed and assessed for taxation, towit : in the sum of $ , and that the question of issu- ing and selling the bonds of said city [or village] in excess of said one per cent., that is, in the sum aforesaid, be submitted to a vote of the qualified electors of said city [or village] at the general election to be held in said city [or village] on the day of November, 19. . . ., at the regu- lar place or places of voting in said city [or village] and said election shall be conducted, canvassed and certified in the same manner as other general municipal elections. (If the question is to be submitted at a special election the form should read: at a special election to be held in said city for that purpose on the day of , 19....) That the mayor be and he is hereby directed to give public notice of the time and place of holding said election in the manner provided by law. Code § 100] LO]NvxWOETH BOND ACT. 295 That the clerk be and he is hereby directed to certify a copy of this resolution to the deputy state supervisors of " . . . . County, Ohio. Passed , 19 Attest . . , President of Council. Clerk. FORM OF NOTICE OF ELECTION. Legal Notice. Notice is hereby given that in pursuance of a resolution of the council of the city [or village] of , passed on the day of , 19. . . ., there will be submitted to the qualified electors of said city [or village] at the general election in the city [or village] of , on the day of November, 19.., [or at a special election to be held in the city [or village] or on the day of , etc.] the question of is- suing bonds of said city [or village] in an amount in excess of one per cent, of the total value of all the property in such city [or village] as listed and assessed for taxation, that is to say, in the sum of $ for the purpose of . . . ( here state purpose of bond issue ) . (If the question is to be submitted at a special election the notice must further, where applicable, contain a designation of the voting place in each ward as fixed by the deputy state supervisors of election. Those who vote in favor of the proposition of issuing the bonds as afore- said shall have written or printed on their ballots the words " For the issue of bonds " and those who vote against the same shall have written or printed on their ballots the words " Against the issue of bonds." , 19.... Mayor. FORM OF ORDINANCE TO ISSUE BONDS AFTER AFFIRMATIVE POPULAR VOTE. Ordinance No To issue bonds for the purpose of Whereas, at a general election held in the city [or village] of , on the day of November, 19. . . ., [or at a special election held for that purpose on the day of , 19. . .], the question of issuing the bonds of said city [or village] in an amount in excess of one per cent, of the total value of all property in such city [or village] as listed or assessed for taxation, that is, in the sum of $ for the purpose of (here state purpose of bond issue) was submitted to a vote of the qualified electors of said city [or village] and, Whereas, two-thirds of the voters voting at such election upon the question of issuing said bonds voted in favor thereof, now therefore, Be it ordained by the council of the city [or village] of , State of Ohio. Sec. 1. That the bonds of the said city [or village] be issued in the sum of $ for the purpose of ( here state purpose of bond issue) ; each of said bonds to be in the denomination of $ numbered consecutively from one to , all made payable on the day of and bearing interest at the rate of per cent, per annum, payable annually [or semi-annually] [if 296 the ohio municipal code. [Code § 100 coupon bonds, evidenced by coupons attached thereto] said bonds shall be dated and shall run for a period of years ; and said bonds shall be payable at in the city [or village] of , State of Sec. 2. Said bonds shall express upon their face the purpose for which they are issued and that they are issued in pursuance of this ordinance. They shall be prepared, issued and delivered under the direction of the Finance Committee of council (or other committee, if desired) and the city auditor [or village clerk] and shall be signed by the mayor of said city [or village] and by the city auditor [or village clerk] and sealed with the corporate seal of said city [or village] and the interest coupons at- tached to said bonds shall be executed by the city auditor [or village clerk] with his signature thereto, or he shall have his signature printed or litho- graphed thereon; (If registered bonds are issued instead of coupon bonds, substitute the following for Sec. 2. " Sec. 2. Said bonds shall express upon their face the purpose for which they are issued and that they are issued in pursuance of this ordinance. They shall be prepared, issued and delivered under the direction of the Finance Committee of council (or other committee if de- sired) and the city auditor [or village clerk] and shall be signed by the mayor of said city [or village] and by the city auditor [or village clerk] and sealed with the corporate seal of said city [or village]. Said bonds shall be registered in the office of the trustees of the sinking fund in the name of the purchaser and shall bear interest as aforesaid.") Sec. 3. Said bonds shall be first offered at par and accrued interest to the trustees of the sinking fund in their official capacity, and if the sink- ing fund trustees refuse to take any or all of said bonds at par and in- terest then said bonds not so taken shall be advertised for public sale and sold in the manner provided by law, but not for less than their par value and accrued interest. Sec. 4. The proceeds from the sale of said bonds, except the premiums and accrued interest thereon, shall be placed in the city [or village] treas- ury to the credit of the fund and shall be used for the pur- pose of (here state purpose of the bond issue) and for no other purpose; and the premiums and accrued interest received from such sale shall be transferred to the trustees of the sinking fund, to be applied by them in the manner provided by law. Sec. 5. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed , 19 > President of Council. Attest, , Clerk. Note: Form of bond may be adapted from that given under § 2701 R. S., reenacted in § 96 of the Code, p. 280; and form of notice of sale of bonds from that given under § 97 of the Code, p. 285. Code §§ 101-103] sinking fund. 29? Seventh. Sinking Fund. 1 Sec. 101. [Tax for creating a sinking fund.] 2 All municipal corporations having outstanding bonds or funded debts shall, through their councils, and in addition to all other taxes au- thorized by law, levy and collect annually a tax upon all the real and personal property in the corporation sufficient to pay the interest and provide a sinking fund for the extinguishment of all bonds and funded debts and for the payment of all judg- ments final, except in condemnation of property cases, and the taxes so raised shall be used for no other purpose whatever. (1) Chapter of Revised Stat- inclusive, and 95 O. L. 5, all re- tries relating to the sinking fund pealed. was formerly Chap. 3, Div. 9, Title (2) Old section 2712 R. S. re- XII, §§ 2712 to (2729-11) R. S., pealed. Sec. 102. [Trustees of the sinking fund.] 1 In all municipal corporations the sinking fund shall be managed and controlled by a board designated as the trustees of the sinking fund, which in cities shall be composed of four citizens thereof, which shall also be the tax commission as provided herein, 2 not more than two of whom shall belong to the same political party, and who shall be appointed by the mayor. In villages the trustees of the sinking fund shall be the mayor, clerk and chairman of the fi- nance committee of council. (1) Old section. — Compare old (2) Tax commission. See § § 2715 R. S., repealed. 46 of the Code, supra. Sec. 103. [Compensation and bond.] 1 The trustees of the sinking fund shall serve without compensation and shall give such bond as council may require; provided, that any surety company authorized to sign such bonds shall be sufficient se- curity, and the costs thereof, together with all other incidental and necessary expenses of the trustees of the sinking fund, shall be paid by said trustees out of funds under their control. (1) Old section.— Compare old §§ 2715 and 2716 R. S., repealed. THE OHIO MUNICIPAL CODE. [Code §§ 104-106 Sec. 104. [Organization of board.] x The trustees of the sinking fund shall immediately after their appointment and qualification elect one of their number as president and another as vice-president, who shall in the absence or disability of the president perform his duties and exercise his powers, and such secretary, clerks or employes as council may provide by an ordinance which shall fix their duties, bonds and compensation ; provided, that where no clerks or secretary is authorized, the auditor of thq city or clerk of the village shall act as secretary of the board. [1904, April 27, 97 v. 517.] (1) Old section. — Compare old § 2717 K. S., repealed. Sec. 105. [Meetings; record of proceedings.] 1 The trustees of ,the sinking fund shall make their own rules ; but their meetings shall be open to the public, and all questions relatirf to the purchase or sale of securities, payment of bonds, interest or judgments or involving the payment or appropriation of money shall be decided by a yea and nay vote with the name of each member voting recorded on the journal, and no question shall be decided unless approved by a majority of the whole board. (1) Old section. — Compare old § 2718 R. S., repealed. Sec. 106. [Duty of trustees with respect to bonded indebted- ness of city.] * The auditor of the city or clerk of the village shall upon demand of the board report to it a full and detailed statement of the outstanding indebtedness of the corporation for bonds issued, and the board shall take charge of and keep a full record of the same and report to council at least once a year a full detailed statement of the same, together with the statement of their investments and general financial business of the city or village which shall be published in any annua] report published by the corporation. (1) Old section. — Compare old § 2719 R. S., repealed. Code §§ 1 07-109] sinking fund. 299 Sec. 107. [Auditor's or clerk's report to trustees.] 1 The city auditor or village clerk shall upon demand of the board, report to it balances belonging to the city or village, to the credit of the sinking fund, interest accounts, or for any bonds issued for or by the corporation ; and all officers or persons hav- ing the same shall immediately pay the same over to the trustees of the sinking fund, who shall deposit them in such place or places as the majority of such board shall select. (1) Old section. — Compare old § 2720 R. S., repealed. Sec. 108. [Report of trustees to council; duty of council.] 1 On or before the first Monday in May of each year the trustees of the sinking fund shall certify to council the rate of tax necessary to provide a sinking fund for the future payment of bonds issued by the corporation and for the payment of final judgments, except in condemnation of property cases, and for the amount necessary for the payment of interest on all bonded indebtedness, and the rents due on all perpetual leaseholds of the corporation not payable from a special fund, and the expenses incident to the management of the sinking fund, and council shall place the several amounts so certified in the tax ordinance before and in preference to any other item and for the full amount certified, and said taxes shall be in addition to all other taxes authorized by law. (1) Old sections. — Compare old §§ 2721 and 2721a R. S., repealed. Sec. 109. [How funds to be invested.] * The trustees of the sinking fund shall invest all moneys received by them in bonds of the United States, the State of Ohio, or of any munici- pal corporation, school, township or county bonds, in said state, hold in reserve only such sums as may be needed for effecting the terms of this act, and all interest received by them shall be reinvested in like manner. (1) Old section.— Compare old§ 2722 R. S., repealed. 300 the ohio municipal code. [Code §§ 110-112 Sec. 110. [Payment of obligations.] 1 The trustees of the sinking fund shall have charge of and provide for the payment of all honds issued by the corporation, the interest maturing thereon and the payment of all judgments final against the city or village, except in condemnation of property cases. They shall receive from the auditor of the city or clerk of the village all taxes assessments and money collected for said purposes and invest and disburse them in the manner provided by law. For the satisfaction of any obligation under their supervision the trustees of the sinking fund may sell or use any of the securities or money in their possession. [1904, April 27, 97 v. 517.] (1) Old section. — Compare old § 2723 R. S., repealed. Sec. 111. [How money to be drawn and deposited.] 1 Money shall be drawn by check only, signed by the president, and at least two members of the board, and attested by the secretary or clerk. All securities or evidences of debt held by the trustees for the corporation shall be deposited with the treasurer of the corporation or with a safety deposit company or companies within the corporation, or if none exists, then in a place of safety to be indicated or furnished by council, and when so deposited they shall be drawn only upon the application of three members and in the presence of at least two members of the city board, or upon the application and in the presence of at least two members of the village board. (1) Old section. — Compare old § 2724 R. S., repealed. Sec. 112. [Power of trustees to investigate transac- tions affecting sinking fund, etc.] 1 The trustees of the sink- ing fund shall have power to investigate all transactions involv- Code § 113] SINKING FUND. < 301 ing or affecting the sinking fund of [in] any branch or depart- ment of the municipal government, and they shall have such other powers and perform such other duties, not inconsistent with the nature of the duties prescribed for them by law, and [as] may be conferred or required by council. [1904, April 27, 97 v. 517.] (1) Old sections.— Compare old §§ 2727 and 2728 R. S., repealed. Sec. 113. [Trustees authorized to issue bonds for certain pur- poses.] 1 The trustees of the sinking fund for the purpose of refunding renewing or extending the bonded debt at a lower rate of interest or for buying the fee simple of real estate held by the corporation under special leases wherein is secured to the corporation the option to buy the fee simple at a fixed price, and where the money to buy can be procured at a less rate of interest on the price than is represented by the stipulated rents, shall have power to issue the coupon or registered bonds of the corporation for such periods not exceeding fifty years, in such denominations, payable at such place and at such rate of inter- est not exceeding six per cent., as the trustees may determine ; provided, that the aggregate amount of refunding, renewing or extending bonds so issued shall not exceed that of the bonds so refunded, renewed or extended. 2 (1) Old section. — Compare old the Code (old § 2709 R. S.), being § 2729a R. S., repealed. in pari materia, would govern. Cin- (2) Character of bonds. — See cinnati v. Guckenberger, 60 0. S. Cincinnati v. Anderson, 10 C. C. 353. For full opinions in lower 265, where it was held, under the courts, see 5 N. P., 429; 17 C. C. former § 2729a R. S., that such 115. See also Roberts & Co. v. Taft, bonds could not be made payable in 109 Fed. 825; 48 C. C. A. 681. See gold. § 115 of the Code. Competitive bidding required. Private contracts unauthorized. — Bonds issued under the above — The trustees of the sinking fund section must be sold to the highest were held to have no authority un- and best bidder after advertise- der old § 2729a R. S. to make a ments. The provisions of § 97 of private contract for refunding the 302 the ohio municipal code. [Code §§ 114, 115 bonded debt of the municipality. tract which would result in the add- Cincinnati v. Guckenberger, 60 0. S. ing of interest to the principal of 353. bonds and refunding the amount so Duty to provide for interest. — made up, their duty being to take J-f iiking fund trustees were held to care of the interest as it ma- 11 tve no authority to make a con- tures. lb. Sec. 114. [Recording of bonds.] All bonds henceforth issued by any city shall, before they become valid in the hands of any purchaser, be recorded in the office of the sinking fund trustees, and shall bear the stamp of said board of sink- ing fund trustees, containing the words " Recorded in the office of the sinking fund trustees," signed by the secretary. The record shall show date of issue, for what purpose issued, rate of interest, amount of issue, when due, principal and interest where payable. [1904, April 27, 97 v. 517.] Sec. 115. [Signing, attesting, etc.] All bonds issued by the trustees of the sinking fund 1 shall be signed by the mayor and president of such board of trustees, except that when the mayor of a village is also the president of such board of trustees he shall sign as such mayor and president of the board ; attest- ed by the auditor or clerk of the corporation and the secretary of the board of trustees of the sinking fund and have affixed the seal of the corporation issuing them ; they shall be sold as pro- vided in section 97 of this act and the trustees of the sinking fund shall have power on demand of the owner or holder of any coupon bond, to issue in lieu thereof a registered bond of the same denomination, bearing the same rate of interest and pay- able both interest and principal at the same time, and to pro- vide the method of effecting such exchange. ( 1 ) Forms of bond and notice of and § 97 of the Code, p. 285, which Bale. See those given under § 2701 may be readily adapted. R. S., re-enacted in Code £ 96, p. 280, Code §116] # 30tf III ORGANIZATION OF CITIES. 1. LEGISLATIVE. Sec. 116. [Council: number of members; how elected; term.] 1 The legislative power of every city shall be vested in, and exer- cised by, a council, composed of not less than seven members, four of whom shall be elected by wards and three of whom shall be elected by the electors of the city at large ; provided, that for the first twenty thousand inhabitants in any city, in addition to the original five thousand, there shall be two additional mem- bers of council, elected by wards, and for every fifteen thousand inhabitants thereafter there shall be one additional member similarly elected. Provided, further, that whenever the total number of members of council is fifteen or more, one member of every five shall be elected at large, and the remainder from wards. 2 Members of council shall serve for a term of two years and until their successors are elected and qualified. 3 (1) Old sections. — Compare old of council; no more and no less. |§ 1655, 1655a, 1658, 1661, 1672, Where there are 20,000 inhabitants 16726, 1673 R. S., all repealed. in addition to the original 5,000, (2) Interpretation of provi- two more are allowed, making nine sions. — In Zumstein v. Mullen, 48 for a city of 25,000, and under 40,- B. 177, 67 O. S. 382, where was un- 000 inhabitants. After passing the der consideration the number of 25,000 mark, it is provided that for members of council , fixed for Cin- every 15.000 inhabitants, one addi- cinnati, having a population of 325,- tional member shall be elected. Take 902, this section was construed as said first 25.000 from the total pop- follows: ulation of the city of 325,902 and " ... At least 5,000 in- there will remain 300,902. This di- habitants are required to constitute vided by 15,000, gives twenty mem- a city, and by the above section a bers to be elected by reason of said city of 5,000 and under 25,000 in- 300.902 inhabitants. The first 25/ habitants will have seven members 000 gave nine members, which added 304 THE OHIO MUNICIPAL CODE. [Code §116 to the twenty, makes twenty-nine in all as the total for the whole city. " Now as to the manner of elec- tion. The first 25,000 inhabitants gives nine members, six to be elect- ed from wards and three in the city at large. For every 15,000 after the first 25,000 one member is added, to be elected from a ward ; but when- ever the total number of members reaches fifteen or more, four out of every five are to be elected from wards, and one at large, so that only three would be elected at large so long as the number of members is under twenty, but at twenty, four would be elected at large, and at twenty-five members, five would be elected at large, and it would stand at five until the num- ber of members would reach thirty, but as the total number in Cincin- nati is only twenty-nine, only five can be elected at large, and the re- mainder, twentv-four, from wards." (3) Holding until successor qualifies.— See § 8 R. S. in Part II, providing that any person hold- ing an office of public trust shall continue until his successor is elect- ed or appointed and qualifies, unless otherwise provided by constitution or laws. Membership in council was held to be an " office " within the mean- ing of § 8 R. S. State ex rel. v. Kearns, 47 O. S. 566, 568. Where a statute provides that an officer shall serve until his succes- sor is elected and qualified, a fail- ure to elect a successor does not create a vacancy to be filled by ap- pointment under a general author- ity to fill vacancies, but the incum- bent holds over. State ex rel. v. Wright, 56 O. S. 540, 556; and the incumbent continues not as a mere de facto officer, but as the rightful possessor of the office. State v. Howe, 25 O. S. 588, 596. TABLE OF COUNCILMEN IN CITIES UNDER NEW CODE. (Adopted in Zumstein v. Mullen, 48 B. 177; 67 O. S. 382.) Pop. Total Council. By Wards. At Large 5,000 7 4 3 25,000 9 6 3 40,000 10 7 3 55,000 11 8 3 70,000 12 9 3 85,000 13 10 3 100,000 14 11 3 115,000 15 12 3 130,000 16 13 3 145.000 17 14 3 160,000 18 15 3 175,000 19 16 3 190,000 . 20 16 4 205,000 21 17 4 220,000 22 18 4 235,000 23 19 4 250,000 24 20 4 265,000 25 20 5 280.000 26 21 5 Code § 117] ORGANIZATION OF CITIES , COUNCIL. 305 TABLE OF COUNCILMEN IN CITIES UNDER NEW CODE.- —Continued. Pop. Total Council. By Wards. At Large. 295,000 27 22 5 310,000 28 23 5 325,000 29 24 5 340,000 30 24 6 355,000 31 25 6 370,000 32 26 6 385,000 33 27 6 400,000 34 28 6 Sec. 117. [Council to divide city into wards.] 1 The council shall, after each recurring federal census, and within three months after the issuance of the proclamation required in sec- tion 2 of this act, and whenever there is annexed thereto any territory containing, by the last federal census, such number of inhabitants as will entitle the city to an additional member of the council, subdivide the city into wards, equal in number to the members of the council in such city who are to be elected from wards therein; and all wards shall be bounded, as far as practicable, by county lines, streets, alleys, avenues, public grounds, canals, water courses, corporation lines, center lines of platted streets, or railroads, and be composed of adjacent and compact territory, and as nearly equal in population as practicable ; 2 and if the council shall fail to make such subdi- vision into wards within the time herein required, then the same shall, on the application of the president of the council, be made by the board of public service. [Election and term of members of council.] One member of the council shall be chosen from each ward in each odd numbered year for a term of two years commencing on the first day of January next after his election. (See 126.) [1906, April 16, 98 v. 195.] (1) Old sections, — Old §§ 1628 nexation of new territory, see form to 1632 R. S., repealed. given below. As to construction of (2) Redisricting ordinance af such ordinance under a former law, ter new Federal census or upon an- see State v. Cincinnati, 3 N. P. 127. 306 the ohio municipal code. [Code § 117 Duties of councils. — The old the department of public service, councils in office prior to the first health, university and library) ami Monday in May, 1903, were required fix their compensation and bonds under former § 117 of the Code (1) (§§126 and 227 of Code). (2) to subdivide the city into wards, They were authorized to fix the sal- (2) to determine the number of di- aries and bonds of all elective city rectors of public service and of pub- officers as well as the salaries and lie safety, respectively, and (3) to bonds of the directors of public fix the salaries and bonds of all offi- safety, not, however, to take effect cers elected at the first election un- during the first terms of such offi- der the Code and the salaries and cers or directors, the salaries and bonds of the directors of public bonds for such first terms having safety to be first appointed there- already been fixed by the old coun- under. These duties having been cils (§§ 126 and 117 of the Code), performed, the new councils going (3) They were required to establish into office on the first Monday in a board of health (§ 187 of the May, 1903, had the following duties Code}. to perform in perfecting the organ- The powers of present councils in ization of cities : ( 1 ) They were relation to fixing or changing the required to organize the various de- salaries and bonds of officers and partments of the city government, the number of directors of public determine the number of assistants, service and directors of public clerks and other subordinate em- safety are now found in §§ 126, 227, ployes in each department (except 138 of the Code. FORM OF ORDINANCE TO RE-DISTRICT CITY AFTER NEW FED- ERAL CENSUS OR ANNEXATION OF TERRITORY. Ordinance No To subdivide the city of into wards. Whereas, according to the last federal census, as shown by the proclama- tion of the secretary of state, the city of has a population of ; and whereas this council is authorized and directed by law to re-district said city and sub-divide the same into wards, now therefore: ( Or, if by council after annexation of territory : "Whereas, there has been annexed to the city of . . . . , in the manner provided by law, territory bounded and described as follows (here describe new territory annexed) ; and whereas, the territory so annexed contained according to the last federal census inhabitants ; and whereas by the annexation of said territory the city of is entitled to additional members of council; and whereas, by reason of said annexation, this council is authorized and directed by law to re-district said city and sub-divide the same into wards, now therefore:") Be it ordained by the council of the city of , State of Ohio : Sec. 1. That the city of be and it is hereby sub- divided into wards, which are equal in number to the members of council who are hereafter to be elected from wards according to law, and said wards are hereby created and established in this city, and the boundaries thereof shall be such as are hereinafter set forth, which boundaries are so fixed as that each ward shall contain as nearly as practicable an equal number of inhabitants. Sec. 2. That the boundaries of the wards shall be as follows: First Ward. The first ward shall contain all that territory bounded and described as follows : Code § 118], ORGANIZATION OF CITIES. COUNCIL. 307 Second Ward. Etc. Sec. 3. That all ordinances or parts of ordinances inconsistent here- with are hereby repealed, and this ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed 19 President of Council. Attest : Clerk. FORM OF ORDINANCE CHANGING THE NUMBER OF DIRECTORS OF PUBLIC SERVICE OR SAFETY. Ordinance No To fix the number of directors of public service [or public safety]. Be it ordained by the council of the city of State of Ohio : Sec. 1. That the number of directors of public service [or public safety] heretofore fixed and determined for the city of is hereby increased [or diminished] to ,and the number of said directors shall hereafter be Sec. 2. That all ordinances or parts of ordinances inconsistent herewith be repealed, and this ordinance take effect and be in force from and after the earliest period allowed by law. Passed , 19. . . . President of council. Attest : * Clerk." Sec. 118. [Officers of council.] 1 The members of council shall, within ten days from the commencement of their term, elect 2 a president pro tern., clerk, who shall also perform the duties of city clerk 3 unless otherwise specified in this act, and such other employes of council as may be necessary, and shall fix their duties, bonds and compensation. The officers and employes of council shall serve for two years, but may be removed at any time for cause, at a regular meeting by a vote of two-thirds of the members elected to council. (1) Old sections. — Compare oid to each member and by which the §§ 1655a, 1662 and 1676 R. S., re- majority can be fairly ascertained, pealed. may be adopted, if not forbidden by (2) Mode of election.— Where law. State ex rel. v. Green, 37 O. no mode of voting in the organiza- S. 227. Thus, election may be made tion of council is prescribed, any °y motion. lb. mode which insures a right to vote 308 THE OHIO MUNICIPAL CODE. [Code § 119 Refusal to vote by members pres- ent when election is being held am. when their names are called, can- not defeat the election. lb. A plurality of votes cast was held sufficient to elect. State ex rel. v. Anderson, 45 0. S. 196; State v. Miller. 62 O. S. 436. When the choice has been made by such vote it is not necessary to com- plete the election, that the presiding officer announce the vote. State v. Miller, 62 O. S. 436. • After the choice has thus been made no member of council can change the result by changing h: vote. lb. (3) Clerk, chosen as here, holds office by election and not by appoint- ment. State v. Squire, 39 O. S. 197 ; State ex rel. v. Witt, 72 O. S. 584. Duties as to Journal. — Under former § 1755 R. S. (repealed), pro- viding the duties of clerk, it was held that the clerk has no power to correct the journal of council, after the council has passed upon the record of its proceedings and mandamus will not lie to compel the clerk to do so. McClain v. Mc- Kisson, 15 C. C. 517. Auditor as city clerk. — § 134 of the Code by reference to § 1756 et seq. R. S., confers upon the audi- tor certain duties formerly de- volved upon the city clerk ; § 224 of the Code confers upon the audi- tor the duties formerly devolved upon the city clerk by "§§ 1737 to 1743 R. 8., inclusive. Appointments. — As to power of city clerk, under former statutes, in the matter of appointments, see Lillard v. Ampt, 4 N. P. 272. Sec. 119. [Council shall be judge of election and qualifications of its members; quorum; special meetings.] 1 Council shall be the judge of the election and qualification of its members ; 2 a majority of all the members elected shall be a quorum to do business, 3 but a less number may adjourn from day to day and compel attendance of absent members in such manner and under such penalties as shall be prescribed by ordinance, and council shall provide rules for the manner of calling special meetings. 4 [1904. April 21, 97 v. 136.] ( 1 ) Old sections. — Compare old §§ 1662 and 1679 R. 8., repealed. (2) Conclusiveness of council's determination. — Council's deter- mination as to election of members is conclusive and not reviewable by the courts. Stearns v. Wyoming, 53 0. S. 352; and quo warranto will not lie to oust a member, after coun- cil's finding. State ex rel. v. Berry, 47 O. S. 232. But the exclusive right of council to judge of the elec- tion of its members does not extend to a case where a councilman is as- suming to act as councilman from a ward which has no legal existence. State ex rel. v. O'Brien, 47 O. S. 464; so where councilman is ineligi- ble because not a citizen of the United States. State ex rel. v. Col- lister, 27 C. C. 529; 6 C. C. (N. S.) 33; and quo warranto will lie in such cases. lb. Nor does the exclusive right of council extend to a case where the question is not simply which of two persons has been properly selected Code § 120] ORGANIZATION OF CITIES. COUNCIL. 309 to fill a conceded vacancy, but whether a vacancy does in law ex- ist, which is to be filled by election or appointment. State ex rel. v. Darby, 12 C. C. 235 (aff'd, 52 O. S. 611). (3) Quorum. — Where a member of council has removed from his ward and thus, under the statutes nnd a municipal ordinance, left a vacancy, the number of members of council may be regarded as reduced thereby, and a quorum will consist of a majority of all the members elected and remaining qualified. State ex rel. v. Orr, 61 0. S. 384. (4) Special meetings. — In the absence of statutory or other provi- sions relating to special meetings or notice thereof, action taken at a spe- cial meeting where a quorum is pres- ent and where the proper number of all members elected concur, is not invalid, because some members were not present and were not notified of the meeting. State ex rel. v. Bow- ers, 26 C. C. 326; 4 C. C. (N. S. 345 (aff'd, 70 O. S. 423) ; see also Cupp v. Commissioners, 19 O. S. 173, 180; State v.Wilkesville, 20O.S.288. See. as to manner of calling spe- cial meetings, § 123. Sec. 120. [Qualifications of members of council; vacancies.] 1 Councilmen at large shall have resided in their .respective cities, and councilmen from wards shall have resided in their respec- tive wards, for at least one year next preceding their election. Every member of council shall he an elector of the city, shall not hold any other public office or employment, 2 except that of notary public or member of the state militia, and shall not be interested in any contract with the city. 3 Any member who shall cease to possess any of the qualifications herein required, or shall remove from his ward, if elected from his ward, or from the city, if elected from the city at large, shall forthwith forfeit his office. 4 Whenever the office of councilman becomes vacant the same shall be filled by election by council for the unexpired term, 5 and in case council fail within thirty days to fill such vacancy, the mayor shall fill the same by appointment. (1) Old sections. — Compare old § 1680 R. S., repealed (members must be residents) ; § 1681 K. S., re- pealed (must not hold other mu- nicipal office) ; § 1715 R. S., re- pealed ( removal of officer from cor- poration, a resignation) ; § 1655a R. S., repealed ( member of board of legislation not to be interested in contract) ; § 1717 R. S., repealed (councilmen ineligible to any other office) ; § 1724 R. S., repealed (fill- ing vacancies ) . (2) Holding other office. — Con- struction. — The words in former § 1717 R. S., repealed, " no member of council shall be eligible to any- other office, etc.," were construed to mean any other municipal office and not to prevent a councilman from holding an office not municipal. State ex rel. v. J^inney, 20 C. C. 325. See further. State ex rel. v. Brown, 60 O. S. 499. So, a member of council was held eligible to election as member of 310 THE OHIO MUNICIPAL CODE. [Code § 120 school board of a special school dis- trict. State ex rel. v. Kinney, 20 C. C. 325. But see contra, State ex rel. v. Keeler, 19 C. C. 149, and State ex rel. v. McMillan, 15 C. C. 163. Councilman was held eligible to election as county commissioner. State ex rel. v. Brown. 60 O. S. 499. A workhouse director was held in- eligible to council. Commissioners v. Cambridge, 7 C. C. 72. Councilman ineligible to appoint- ment as member of city decennial board of equalization. State ex rel. v. Kearns, 47 0. S. 566. Councilman held ineligible to ap- pointment as member of board of health. State ex rel. v. Craig, 69 O. S. 236. Effect of holding other office.— The appointment of member of coun- cil to an office he is ineligible to fill does not work an abandonment of his office as councilman. The ap- pointment to the second office is simply void. State ex rel. v. Kearns, 47 O. S. 566; State v. New- ark, 6 N. P. 523; State ex rel. v. Craig, 69 O. S. 236, 244. So the election to council of one already holding an office which would make him ineligible to be a councilman would not work an abandonment of the first office, but the election to council would be void. Commission- ers v. Cambridge, 7 C. C. 72. Whether appointments made by officers illegally holding their offices are void, que^c. State ex rel. v. Craig, 69 0. S 236, 244. (3) Interested in contract. — Compare provisions in § 45 of the Code, and see note thereunder, p. 177. (4) Change of bdundary— Ef- fect of change of ward boundaries, see State v. Choate, 11 O. 511; Scovill v. Cleveland, 1 O. S. 126. Effect of removal. — Where mem- ber has removed from the ward the office is vacant and the number of members of council is reduced ac- cordingly. State ex rel. v. Orr, 61 O. S. 384. In such case, a majority of members* elected to council, will consist of a majority of those re- maining qualified. lb. (5) Filling vacancies. — Term of appointee. — Under former statutes, where one section provided that an appointee to fill a vacancy in coun- cil should be appointed " for the unexpired term " and another sec- tion provided that all persons ap- pointed to fill vacancies in munici- pal offices should serve " till the next annual municipal election," it was held that the former, being specially applicable to council, would govern as to appointments in that body, and such appointee would hold for the unexpired term. State ex rel. v. Darby, 12 C. C. 235 (affirmed, 52 O. S. 611). An officer appointed to fill the un- expired term would hold until his successor is elected and qualified. See State ex rel. v. Darby, supra, holding that § 8 R. S. providing that all officers shall serve till suc- cessors are chosen and qualify would apply to a councilman chosen to fill an unexpired term. A misapprehension as to the true tenure of the appointee on the part of the appointing power or on the part of the appointee cannot abridge or extend the term fixed by law for his continuance in office. State ex rel. v. Darby, supra; State ex. rel. v. Slough, 12 C. C. 105, 111. See generally as to term of ap- pointee to fill vacancy, notes under § 228 of the Code. For discussion of question of ap plicability of § 11 JR. S. containing general provisions as to term of appointees to fill vacancies, where there are special statutes for the particular office, see State ex rel. v. McGregor, 44 O. S. 628; State v. Barbee, 45 O. S. 347. , When vacancy exists.— Where a member of council is ousted by quo warranto proceedings, on the ground that the ward he claims to represent has no legal existence, no Code §§121,122] organization of cities, council. 311 vacancy exists. State ex rel. v. elude the power to determine wheth- Kearns, 47 O. S. 566. er a vacancy does, in law, exist. The power of council to judge , State ex rel. v. Darby, 12 C. C. of election of members, does not in- 235 (affirmed^ 52 O. S. 611). Sec. 121. [Rules, journal, expulsion of members.] 1 Council shall determine its own rules and keep a journal of its proceed^ ings. 2 It may punish or expel any member for disorderly con- duct, or violation of its rules, and declare his seat vacant for absence without valid excuse, where such absence has con- tinued for two months; but no expulsion shall take place without the concurrence of two-thirds of all the members elected, and until the delinquent member shall have been no- tified of the charge or charges against him, and shall have had an opportunity to be heard. 3 ( 1 ) Old sections. — Compare old ( 3 ) Removal from office.— For §§ 1679 and 1684 R. S., repealed. provisions as to removal of officers (2) Power of council over by Probate Court, see §§ 1732-1736 journal. — In the absence of fraud R. S., inclusive, in Part II; and see or bad faith, the council has the Dorgan v. Columbus, 12 Dec. 121; right to determine when its jour- State ex rel. v. Ganson, 58 O. S. 313. nal truly sets forth its proceedings As to what is misconduct in and its action in correcting the jour- office, see State ex rel. Sutton, 4 B. nal is final and conclusive, and not 608; State ex rel. v. Roll, 7 W. L. subject to review by the courts. Mc- J. 121. Clain v. McKisson, 15 C. C. 517. Character of charges and finding, As to attacking record of a board see State v. Sullivan, 58 O. S. 504. collaterally, see generally, Lima v. As to removal of officers upon McBride, 34 O. S. 338, 351 and cases charges preferred by the mayor, see cited; State v. Gas Co., 18 O. S. § 225 of the Code and notes. 262. Sec. 122. [Ordinances and resolutions; how adopted.] 1 The action of council shall be by ordinance or resolution, 2 and on the passage of every ordinance or resolution the vote shall be taken by " yeas " and " nays," and entered upon the journal ; 3 pro- vided, however, that this shall not apply to the ordering of an election, or direction by council to any board or officer to fur- nish council with information as to the affairs of any depart- 312 the ohio municipal code. [Code § 122 ment or office. No* ordinance or resolution granting a franchise, 4 or creating a right, or involving the expenditure of money, or the levying of any tax, or for the purchase, lease, sale, or trans- fer of property, 5 shall be passed, unless the same shall have been read on three different days, and with respect to any such ordi- nance or resolution, there shall be no authority to dispense with this rule, except by a three-fourths vote of all members elected thereto. 6 No ordinance shall be passed by council without the concurrence of a majority of all members elected thereto. 7 (1) Old section.— See old § 1693 R. S., repealed, and compare old § 1655a R. S., repealed. (2) Cannot act separately. — Corporate acts cannot be performed by individual members of a board acting separately. State ex rel. v. Liberty Twp., 22 O. S. 144; Mc- Cortle v. Bates, 29 O. S. 419. Character of ordinances. — Ordi- nances are binding on strangers coming into the municipality. Mar- ietta v. Fearing, 4 O. 427. An ordinance making a contract gives parties to it vested rights which cannot be impaired by a re- peal of the ordinance. Lima Gas Co. v. Lima, 4 C. C. 22. To impose liability on the munic- ipality because of its ordinance the statute as to passage, etc., must be followed. Wellston v. Morgan, 65 O. S. 219. Oral evidence that ordinance was passed, was held admissible to prove it, if the records did not show its passage. Drott v. Riverside, 4 C. C. 312. Limitations on power of coun= cil. — Council has only the powers granted, and no others; its pro- ceedings must be within the powers conferred and in substantial con- formity to the statutes regulating them. Gas and Water Co. v. Elyria, 57 O. S. 374. See further, notes under § 7 of the Code, p. 43. Tower granted to council, other than mere ministerial power, cannot be delegated. Hengst v. Cincinnati, 7 N. P. 1; Ampt v. Cincinnati, 3 N. P. 223. Ordinances do not determine civil rights between individuals. Municipal ordinances declaring cer- tain acts to be nuisances, or permit- ting nuisance to exist, do not cre- ate or protect from, civil liability between individuals. Chambers v. Tns. Co., 1 Disney, 327, 336; Van- dyke v. Cincinnati, 1 Disney, 532; Veigel v. Lunkenheimer, 10 B. 293; Clark v. Fry, 8 O. S. 358. Ordi- nances regulating speed of steam or street railway cars in the streets do not determine civil liability between individuals, but may go to jury on question of negligence. Meek v. Pennsylvania Ry. Co., 38 O. S. 632; Ry. Co. v. Herrick, 49 O. S. 25, 32; Becker v. St. Ry. Co., 1 N. P. 359. But violation of a speed ordinance is not negli- gence per se. Meek v. Pennsylvania Railway Company, 38 O. S. 632 ; Bell v. Pistorius, 18 C. C. 73. See Code § 122] ORGANIZATION OF CITIES. COUNCIL. 313 also Hoppe v. Parmalee, 20 C. C. 303; L. S. & M. S. R. R. Co. v. Eh- lert, 19 C. C. 177; Ulrich v. To- ledo Consol. St. Ry. Co., 10 C. C. 635; C. Ii. & D. Ry. Co. v. Murphy, 17 C. C. 223; Watson v. Erie R. R., 8 N. P. 18; Ry. Co. v. Trainer, 18 C. C. 716; East Cleveland R. R. v. Rosecrans, 24 B. 220; Hart v. Dev- ereux, 41 O. S. 565. Distinction between ordinance and resolution. — An act required to he done by ordinance, is suffi- ciently done by legislation amount- ing to an ordinance, though called a resolution. Kerlin Bros. v. To- ledo, 20 C. C. 603. So an ordinance may be valid as a resolution, where resolution is required. lb. Action of council, though in the form of an ordinance may have the effect of a resolution, without the signature of the presiding officer. Blanchard v. Bissell, 11 O. S. 96, 101. When the action of council could have been taken by a motion or or- der, the mere fact that its action has taken the form of a resolution does not require all the formalities incident to a resolution to make it valid. Kerlin Bros. v. Toledo, 20 C C. 603. When required. — Waiver of per forma nee of a contract was held under former laws, not to require an ordinance or resolution. Hub bard v. Norton, 28 O. S. 116. Ap pointment of committee to effect a compromise of a suit need not be by resolution or ordinance. Com- missioners v. Cambridge, 7 C. C. 72. Where action of council extends over a long period and consists of a number of steps, the intent may be gathered from the whole proceed- ings, and it is not absolutely essen- tial that each step be formally taken. lb. Construction. — Ordinances are to be construed so as to carry out the intention. Cleveland v. Lenze, 27 O. S. 383, 390. The same rules that govern the construction of stat- utes are to be applied. Lowden v. Cincinnati, 2 Disney, 203, 207. Resolution directing lot owners to fill lots, will be construed to require filling in such way as will prevent recurrence of the nuisance. Bliss v. Kraus, 16 O. S. 54. Practical construction by con- duct of parties. — An ambiguous grant is not necessarily to be con- strued most strongly against the one claiming the franchise, and con- struction by conduct, as by later or- dinances, may apply. R. R. Co. v. Cincinnati, 16 B. 3G7. Where the terms of an ordinance granting a franchise are unambiguous, there is no room for construction by conduct of the parties; nor does the rule of construction by practice apply when the acts relied upon are not those of the officers making the contract, but of subsequent or other officers or agents of the municipality. Cincin- nati v. Cin. St. Ry. Co., 6 N. P. 140, 8 N. P. 80; Cincinnati v. Gas Light and Coke Co., 53 0. S. 278. Validity — In general. — Pre- sumption is in favor of the validity of ordinances. Moerder v. Fremont, 19 C. C. 394. Fraud and malice are not to be imputed to council, but the immunity from impeach- ment for fraudulent motives dees not attach to all acts of council which may assume the form of an ordinance. State v. Gas Co., 18 O. S. 262, 301. The provision of the Constitution vesting legislative power in the leg- islature is not violated by granting to councils of municipalities the power to pass ordinances. Markle v. Akron, 14 O. 586. 314 THE OHIO MUNICIPAL CODE. [Code § 122 Stating penalty in different sec- tion from that describing offenses, does not invalidate. Brown v. To- ledo, 7 N. P. 435. Misnomer of the municipality is not fatal if the meaning is clear. McCrea v. Washington, 18 B. 66. A court may correct error in punctuation. Chittenden v. Colum- bus, 26 C. C. 531; 5 C. C. (N. S.) 84. An ordinance is not void for un- certainty because the boundaries of streets of the district mentioned in it do not meet and that it gives one of the boundaries as a river without mentioning what river. Chittenden v. Columbus, 26 C. C. 531. An ordinance is not invalid be- cause it incorporates by reference a previous ordinance not properly passed. Such new ordinance is not amendatory of first ordinance. Co- lumbus v. Federal Gas & Fuel Co., 14 Dec. 261 (aff'd 72 O. S. 632). Reconsideration of ordinances and resolutions, see Adkins v. Toledo, 27 C. C. 417; 6 C. C. (N. S.) 433. Ordinance partly void. — An or- dinance may be partly void, and the rest valid, if the rest is separable. Piqua v. Zimmerlin, 35 O. S. 507 •Weaver v. Mt. Vernon, 7 N. P. 374 Steuer v. McConnell, 8 N. P. 205 Chittenden v. Columbus, 26 C. C. 531; 5 C. C. (N. S.) 84; Sterling v. Bowling Green, 26 C. C. 581; 5 C. < (N. S.) 217. But if the valid part depends on and is practically inseparable from the void part, the whole will be void. Cincinnati St. Ry. v. Smith, 29 0. S. 291 ; Hengst v. Cincinnati, 7 N. P. 1. Ordinance granting franchise for longer than legal period may be valid for legal time. Sommers v. Cincinnati, 8 Rec. 612. Ordinance indefinite. — An or- dinance forbidding "dense" smoke is void. Cin. v. Neff, 29 B. 364. But an ordinance merely requiring lot owners to "fill lots" is not void for uncertainty, because it does not pre- scribe the method of filling. Bliss v. Kraus, 16 0. S. 54. An ordinance is not void because hard to comply with, if compliance is possible. Cincinnati v. Miller, 29 B. 364. Inconsistent with constitution or statute. — Ordinances repugnant to the policy and spirit of the Con- stitution or general statutes are void. Canton v. Nist, 9 O. S. 439; Cincinnati v. Rice, 15 O. 225; Thompson v. Mt. Vernon, 11 O. S. 688. Statute on same subject. — An ordinance is not invalid because there is a statute covering the same subject. State v. Ulm, 7 N. P. 659. But the ordinance must contain the exceptions in the statute. Akerman v. Lima, 7 N. P. 92 ; Canton v. Nist, 9 0. S. 439. But where direct stat- utory authority for ordinance in question, and exceptions in other statutes, see Edis v. Butler, 8 N. P. 183 (aff'd 68 O. S. 645). See also Wellsville v. O'Connor, 24 C. C. 689 ; I. C. C. (N. S.) 253. Judicial review. — In the absence of bad faith or fraud, the discre- tion of council in passing ordinance will not be interfered with by the courts. Iron R. R. v. Ironton, 19 O. S. 299, 304; Sims v. Street R. R. Co., 37 O. S. 556; R. R. Co. v. Dayton, 23 0. S. 510. But if council has acted in bad faith and this 'is clearly averred, the Code §122] ORGANIZATION OF CITIES. COUNCIL, 315 court may inquire into the motives. State v. Cincinnati Gas, etc., Co., 18 O. S. 262; State ex rel. v. Gas Co., 37 O. S. 45. And when the action, of council depends for its validity on a con- dition precedent imposed by statute, its decision that such condition has been observed is not conclusive against direct attack. Roberts v. Easton, 19 O. S. 78, 86. But vhen council has acted, the presumption is, in the absence of evidence to the contrary, that it has acted lawfully, and all prerequisites to its action were complied with. Dalrvmple v. State, 26 C. C. 562; 5 C."C. (N. S.) 185; Reynolds v. Schweinefus, 27 O. S. 311; see also Coombs v. Lane, 4 0. S. 112; Ward v. Barrows, 2 O. S. 241 ; but see In re Huntsville Local Option Elec- tion, 25 C. C. 535. (3) Yea and nay vote. — Sev- eral ordinances cannot be passed on one call for votes. Sullivan v. Pausch, 5 C. C. 196; Campbell v. Cincinnati, 49 O. S. 463. Appointment of committee to ef- fect a settlement of litigation need not be made by yea and nay vote. Commissioners v. Cambridge, 7 C. C. 72. Whether action in the organiza- tion of council requires a yea and nay vote, quere. See State ex rel. v. Green, 37 O. S. 227, 230. Where the journal shows that a certain resolution was adopted by a certain number of votes and this number corresponds with the num ber of those present, it will be pre sumed that all present voted yes and such vote and record is suffi cient. Blair v. Cary, 24 C. C. 560 Passage how proved. — If rec ord does not show passage of ordi nance, oral evidence may be intro duced. Drott v. Riverside, 4 C. C 312. (4) Ordinance "granting a franchise." — For consideration of the meaning of this phrase, see State ex rel. v. Henderson, 38 O. S. 647; Morrow County v. Mt. Gilead, 8 N. P. 669. A preliminary ordinance desig- nating a route for a proposed street railway and providing for adver- tisement for bids was held not to be an ordinance granting a fran- chise, lb.; see also Aydelott v. Cin- cinnati, 11 C. C. 11, 17. Ordinance "creating a right." — For full discussion, see State v. Barr, 5 N. P. 435. See also In re Euclid Ave. Assessment, 6 N. P. 160. Ordinance "involving expen- diture." — It is not every ordinance that may result in the expenditure of money, that is intended to be in- cluded, but only such as directly involve such expenditure. State ex rel. v. Henderson, 38 O. S. 644. So a preliminary ordinance pro- viding for bids for street railway route was held not an ordinance "involving expenditure of money." 76. Ordinance increasing the number of police officers and fixing their salaries, held to be one involving expenditure of money. State v. Barr, 5 N. P. 435. (5) Sale or lease of property. —See §§23 to 27 of the Code and notes thereunder, pp. 103, 104, 109. (6) Three readings. — For mat- ter relating to the requirement of three readings, see notes to § 1694 R. S. p. 318. (7) Majority. — When legally elected members are less than total number of which council might con- sist, whether a majority of such members is a majority of council, quere. Commr's v. Cambridge, 7 C. C. 72. When there is a vacancy in coun- cil (as where a member removes from his ward and is therefore deemed to have resigned his office ) , a quorum will consist of all the members elected and remaining qualified. State ex rel. v. Orr, 61 O. S. 384. There need not be a majority of members elected to appoint commit- tee to effect compromise of suit. Commr's v. Cambridge, 7 C. C. 72. 316 the ohio municipal code. [Code § 123 Sec. 123. [Powers of council.] 1 The powers of council shall be legislative only, and it shall perform no administrative duties whatever and it shall neither appoint nor confirm any officer or employe in the city government except those of its own body, except as may he otherwise provided in this act. 2 All contracts requiring the authority of council for their execution shall he entered into and conducted to performance by the board or officers having charge of the matters to which they relate, and after authority to make such contract has been given and the necessary appropriation made, council shall take no further action thereon. 3 [Regular meetings; meetings open to public; special meet- ings.] The council shall not be required to hold more than one regular meeting in each week; and the meetings may be held at such time and place as may be prescribed by ordinance and shall, at all times, be open to the public, and the mayor, or any three members may call special meetings upon at least twelve hours notice to each member, served personally, or left at his usual place of residence. [1906, April 4, 98 v. 88.] (1) Old section. — Compare old government should be distinct and § 1655a R. S., repealed. independent of one another." Lil- (2) Purpose of restriction. — lard v. Ampt, 4 N. P. 305. Under former statutes, containing Construction. — As to question the prohibition that council should under former statutes, of what exercise no appointing power, it was would be considered an exercise of said that the statutory prohibition appointing power, within the mean- " was, doubtless, intended, as it is ing of such a restriction, see Lillard certainly well calculated, to relieve v. Ampt, 4 N. P. 305 and Bellows the municipal legislature from the v. Cincinnati, 11 O. S. 544. distracting and corrupting influ- (3) Proper officers must exe- ences almost necessarily issuing cute municipal contracts and the from the dispensation of offi- power to make public contracts can- cial and pecuniary patronage; not be delegated by one board or and places the municipal legislature, officer to another. Knauss v. Co in respect to the appointing power, lumbus, 13 Dec. 200. in a position substantially similar m , ,. *«.,«■ J .. f . -...».■'•■-, i * Street improvements. — After to that in which the General Assem- counc ii has made appropriation for bly of the State is placed by the street improvement it is without Constitution of the State." Bel- further authority in the matter. , ~. . .. n r, o kaa The letting of the contract, the su- lows v Cincinnati, 11 O. S 544 per vision and control of the work, 547. Such a restriction is intended are with the Board of Pub i ic gerv- to " emphasize the purpose that the i C e. State ex rel. v. Roebuck, 15 respective executive, legislative and Dec. 400. administrative functions of the city Code §124] ORGANIZATION OF CITIES. COUNCIL. 317 Sec. 124. [Provisions of Eevised Statutes which govern ordi- nances; publication of ordinances, resolutions, reports, statements, etc.] In passing, recording, publishing and authenticating ordinances, council shall be governed by the provisions of sec- tions 1694, 1695, 1 1696, 1697, 1698 and 1699 of the Eevised Statutes of Ohio, and for all purposes such sections shall be and remain in full force and effect ; and in addition thereto all ordinances and resolutions requiring publication shall be pub- lished in two newspapers of opposite politics, 2 published and of general circulation in such municipality, if such there be, and shall be published in a newspaper printed in the German language if there be in such municipality such a paper having a bona fide paid circulation within said municipality of not less than one thousand copies. Proof of such circulation shall be made by the affidavit of the proprietor or editor of such paper, which shall be filed with the city clerk of such muni- cipality. Except as otherwise provided in this act, in all mu- nicipal corporations the statements, ordinances, resolutions, or- ders, proclamations, notices and reports required by this act, 3 or the ordinances of any municipality to be published, shall be published in two newspapers of opposite politics of general circulation therein, if there be such in the municipality, and for the following times: The statement of receipts and dis- bursements required shall be published once, the ordinances and resolutions once a week for two consecutive weeks, proclama- tions of elections once a week for two consecutive weeks, no- tices of contracts 4 and of sale of bonds 5 once a week for four consecutive weeks; 6 all other matters shall be published once. (1) See note (2) under § 1695 not satisfy the requirement. Ohio R. S., p. 321. State Journal v. Brown, 19 C. C. /0 v n c .. .. 325; Columbus v. Barr, 27 C. C. (2) Papers of opposite poli= 264 fl c c (N S) 15 j tics. — Under such a provision as v ' this, it has been held that an inde- English newspapers. — In the pendent paper, though generally absence of requirements to the con- supporting a political party, does trary, publication in newspapers 318 THE OHIO MUNICIPAL CODE. [Code § 124 means English newspapers. Cincin- nati v. Bickett, 26 O. S. 49. ( 3 ) Interpretation of provision. — This provision should not be construed to make it mandatory on municipal authorities to publish statements, orders, etc., not other- wise required to be published. Opinion of attorney-general on file in his office, dated Dec. 3, 1902. ( 4 ) Notices of contracts.— § 143 of the Code requires advertise- ment for bids within the department of public service for " not less than two nor more than four consecutive weeks in a newspaper of general cir- culation," etc. A compliance with the requirements of § 124 will in- clude compliance with § 143. (5) Sale of bonds.— § 97 of the Code requires advertisement for sale of bonds for thirty days in at least two newspapers of general circula- tion, etc. An advertisement for thirty days and in two newspapers of opposite politics and of general circulation in the municipality would comply with the requirements of §§ 97 and 124. (6) Length of publication. — As to meaning of " once a week for two consecutive weeks," see Early Sec. 1694 R. S. [Must be read three times, unless, etc. ; subject and amendment of by-laws, etc.] By-laws, resolutions and ordi- nances of a general or permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule; 1 and the vote on such suspension shall be taken by yeas and nays, separately on each by-law, resolution or ordinance, and entered on the jour- nal. ISTo by-law or ordinance shall contain more than one sub- ject, 2 which shall be clearly expressed in its title, and no by-law or ordinance, or section thereof, shall be revived or amended, unless the new by-law or ordinance contain the entire by-law or ordinance, or section revived or amended; and the by-law or ordinance, section or sections so amended shall be repealed ; 3 and every such by-law, resolution and ordinance shall be adopted or passed by a separate vote of the council and the yeas and nays shall be entered upon the journal. [90 v. 136 ; 87 v. 36 ; 66 v. 166, §§ 98, 99 ; (S. & C. 1521).] v. Doe, 16 How. (U. S.) 610; Cin- cinati v. Fenner, 8 N. P. 342. Where the statute provides for the number of publications, publi- cations in excess of the limit fixed are unauthorized, and payment for the same is illegal. Printing Co. v. State, 68 O. S. 362; contra, Wassem v. Cincinnati, 2 C. S. C. R. 84. But a claim for such excessive publi- cations having been allowed and payment made, money cannot be re- covered back in absence of fraud or mistake of fact. Printing Co. v. State, 68 0. S. 362. But excessive publication does not invalidate the ordinance. lb.; Cincinnati v. Davis, 58 0. S. 225, 237. The publication is legal although the newspaper is printed only on Sunday. Hastings v. Columbus, 42 O. S. 585. Where publication is required to be made in " some newspaper " a discretion would seem to be given and publication might be made in more than one paper. Cincinnati v. Davis, 58 O. S. 225, 237. See also Wassem v. Cincinnati, 2 C. S. C. R. 84, (1) Requirement mandatory. — The requirement that certain or- dinances shall have three readings, unless dispensed with by three- fourths vote is mandatory. Camp- bell v. Cincinnati, 49 O. S. 463; Weaver v. Mt. Vernon, 7 N. P. 374; Bloom v. Xenia, 32 O. S. 461. A vote on the "passage of an or- dinance not read on three different days or the rule dispensed with as required by law, when the ordinance Code §124] ORGANIZATION OF CITIES. COUNCIL. 319 is one of a general or permanent na- ture, is simply a nullity. Smith v. Railroad Co., 8 N. P. 1. So a vote against an ordinance be- fore the three readings had been completed or properly dispensed with, is a nullity and does not pre- vent passage after three readings. Smith v. Columbus, etc., Ry Co., 8 N. P. 1. What is ordinance of a general or permanent nature. — Ordinance to condemn property for street pur- poses or to improve a street was held to be an ordinance of a general or permanent nature requiring three readings. Campbell v. Cincinnati, 49 O. S. 463. So was a resolution to issue bonds to procure water works and submit the question to popular vote. Gas and Water Co. v. Elyria, 57 O. S. 374. So was a resolution requiring a sidewalk in front of a single piece of property. Thatcher v. Toledo, 19 C. C. 311; Cincinnati v. Johnson, 18 C. C. 611; McGuire v. Ea^c Cleve- land, 1 C. C. (N. S.) 435, 438; 25 C. C. 497. As to resolution declaring neces- sity of street improvement, see Campbell v. Cincinnati, 49 O. S. 463; Thatcher v. Toledo, 19 C. C. 311, 315; Upington v. Oviatt, 24 0. S. 232. A resolution awarding a contract for the improvement was held not of a general or permanent nature. Cincinnati v. Bickett, 26 0. S. 49. Nor authorizing a committee to effect a settlement of litigation. Commissioners v. Cambridge, 7 C. C. 72. Nor an ordinance for lighting streets and assessing the costs. Federer v. Dayton, 1 Dayton, 142. Nor a preliminary resolution amounting to a mere order or di- rection to the clerk to advertise for bids for sale of part of a natural gas plant. Kerlin Bros. v. Toledo, 20 C. C. 603. Page 319 A resolution to be one of a gen- eral or permanent nature must be a necessary resolution, that is, it must be not only a necessary step toward the ultimate object but it must be a step which cannot be otherwise taken. Kerlin Bros. v. Toledo, 20 C. C. 603. When readings may be had. — An ordinance twice read may go on the third reading after an elec- tion which brings new members into council. Smith v. Columbus, etc., Railway, 8 N. P. 1. But a second reading will not be valid where it was at a special meet- ing for which notice had not been properly served. Shaw v. Jones, 4 N. P. 372. Suspension of rules. — More than one ordinance cannot be passed under a single suspension of rules. Bloom v. Xenia, 32 O. S. 461. Campbell v. Cincinnati, 49 O. S. 463; Sullivan v. Pausch, 5 C. C. 196. But the rule need not be suspend- ed before each reading. A single suspension of the rules before first reading is sufficient. Purcell v. Riverside, 1 C. C. 12. A suspension of the rules allows passage on one day and one read- ing. Shroder v. Overmann, 5 N. P. 392. Suspension of rules may be had at an adjourned meeting and the or- dinance put on its passage when suspension of rules was not had at the regular meeting. Madden v. Smeltz, 2 C. C. 168. Amendments made during the passage of an ordinance which do not materially change its provisions are not within the rule requiring three readings. Weaver v. Mt. Vernon, 7 N. P. 374; Mohn v. Col- lins, 32 B. 77; Chillicothe v. Gas & Fuel Co., 8 N. P. 88. 320 THE OHIO MUNICIPAL CODE. [Code § 124 (2) More than one subject. — Provision directory. Pirn v. Nich- olson, 6 O. S. 176; State v. Coving- ton, 29 O. S. 102. See also Circle- ville L. & P. Co. v. Buckeye Gas Co., 24 C. C. 684, 685. If one of two subjects is separable the whole ordinance will not be in- valid. McCrea v. Washington, 18 B. 66. Provision is not violated by an ordinance defining fifteen offenses against the municipality but all relating to the one subject of the punishment of offenses against the municipality. Wellsville v. O'Con- nor, 24 C. 0. 689; 1 C. C. (N. S.) 253 Different subjects. — Resolution to increase capacity of water works and to construct electric light plant in connection therewith, submitting the question to popular vote, was held not to contain two subjects. Ryan v. Orbinson, 7 C. C. 30. An ordinance granting a franchise to use the streets for electric light and power purposes and also mak- ing a contract for lighting the streets of the city, contains more than one subject. Morrow Co., etc., v. Mt. Gilead, 8 N. P. 669. So does a resolution for issuing bonds " for purchasing or construct- ing " gas wells. Hensly v. Hamil- ton, 3 C. C 201. So does a resolution providing for the purchase of water works and also the erection of new ones. Gas and Water Co. v. Elyria, 57 O. S. 374. ( 3 ) Repeals by implication. — A similar provision In the Consti- tution that " the section so amended shall be repealed " was held direc- tory and not to abrogate the rule as to repeals by implication. Lehman v McBride, 15 O. S. 573. A resolution declaring the neces- sity of constructing water works will be repealed by implication by resolution declaring the necessity for purchase of water works already constructed. Johnson v. Elyria, 6 N. P. 372. An ordinance intended to repeal a prior one but referring to it mere- ly by its caption will repeal the en- tire prior ordinance, although the caption is not the same as the lan- guage used in the body of the ordi- nance. Cincinnati Street Ry. Co. v. Lewis, 23 C. C. 127; 3 C. C. (N. S.) 115. An ordinance which council has power to pass may be passed con- trary to the provisions of a previ- ous ordinance, thus ignoring the pre- vious ordinance and repealing it by implication. Aydelott v. Cincin- nati, 11 C. C. 11. Sec. 1695 K. S. [Recording and publishing by-laws, ordinances, etc.; publication in book form sufficient] By-laws, resolutions and ordinances shall be authenticated by the signature of the presiding officer and clerk of the council. 1 Ordinances of a general nature, or providing for improvements shall be pub- lished in some newspaper of general circulation in the corpora- tion; if a daily, twice and if a weekly once, before going into operation. 2 No ordinance shall take effect until the expiration of ten days after the first publication of such notice. 3 And as soon as any by-law, resolution or ordinance is passed and signed, it shall be recorded by the clerk in a book to be fur- nished by the council for the purpose, 4 provided that whenever ordinances shall be revised, codified, re-arranged and pub- lished in book form and certified as correct by the city or vil- lage clerk and the mayor thereof, such publication in book form shall be taken and held to be in lieu of publishing the Code §124] ORGANIZATION OF CITIES. COUNCIL. 321 same in a newspaper or newspapers as required by law, and shall be a sufficient publication to all intents and purposes, and the ordinance or several ordinances so published in book form, under appropriate titles, chapters and sections, shall be held the same in law as though they had been published in a news- paper or newspapers, provided that any new ordinance so pub- lished in book form, which has never been published accord- ing to law, and which contains entitrely new matter shall be published as heretofore required by law. 5 [1883, February 22: 80 v. 26; 67 v. 68, § 100; (S. & S. 797; S. & C. 1525).] (1) Signature of presiding officer was held not necessary to the validity of an ordinance. To- ledo, etc., Railway v. Toledo, etc., Railway, 6 C. C. 362 (affirmed on other grounds, 50 0. S. 603), Blanchard v. Bissell, 11 0. S. 90. (2) Length of publication. — Notwithstanding this provision, the better practice would be to publish ordinances of a general nature or providing for improvements once a week for two consecutive weeks and in the newspapers required by § 124 of the Code, since this would in- clude the requirements of § 1695 R. S. Publication in general. — Not invalid because made in a newspaper published only on Sunday. Hast- ings v. Columbus, 42 O. S. 585. Publication is not necessary of the action of council not required to be done by resolution or ordinance. Kerlin Bros. v. Toledo, 20 C. C. 603. Publication for a longer time than required by statute will not be a misapplication of public funds. Wasem v. Cincinnati, 2 C. S. C. R. 84. Nor does excessive publication invalidate the ordinance. Cincin- nati v. Davis, 58 O. S. 225, 237. (3) When ordinances take ef- fect. — An action authorized by the ordinance cannot be taken on tne tenth day, but only after the tenth day. Fath v. Clifton, 7 N. P. 534. If the ordinance requires a notice for a certain length of time that length of time must expire in ad- dition to the ten days before action can be taken. Hensly v. Hamilton, 3 C. C. 201. Council may provide, subject to the statutory provision, when an ordinance shall take effect, whether it be an ordinance of a general na- ture or not. Hensly v. Hamilton, 3 C. C. 201. (4) Record in separate book is not essential to validity of ordi- nance. This provision is directory only. Upington v. Oviatt, 24 (). S 232 /5) See Sec. 124a, page 324. Sec. 1696 R. S. [Statement as to publication.] Immediately after the expiration of the period of such publication, the clerk shall enter on the record of ordinances, in a blank to be left for such purpose, under the recorded ordinance, a certificate stating in what newspaper and of what dates such publication was made, and sign his name thereto officially, and such cer- tificate shall be prima facie evidence that legal publication of such ordinance has been made. 1 [66 v. 166, § 101.1 322 the ohio municipal code. [Code §124 ( 1 ) Prima facie evidence. — those ' denying publication. O'Brien Clerk's certificate is sufficient proof v. Cleveland, 1 Clev. 100. of publication to put the burden on FORM OF CERTIFICATE OF PUBLICATION. I, , clerk of the city [or village] of - , State of Ohio, do hereby certify that the foregoing ordinance was duly pub- lished in and , two newspapers of opposite politics, published and of general circulation in said city [or village] and in , a newspaper printed in the German language and having a bona fide paid circulation within said municipality of not less than one thousand copies, as shown by the affidavit of the proprietor or editor of said German newspaper, filed with me. Said pub- lications were on the following dates: (here insert dates of publication in each newspaper. ) 19 Olerk of the city [or village of Note. — By § 196 of the Code the requirements of §§ 1)9 to 124 of the Code, inclusive, are made to apply to villages. FORM OF AFFIDAVIT OF CIRCULATION OF GERMAN NEWSPAPER. State of Ohio, County, % being duly sworn, says that he is the proprietor [or editor] of , a newspaper printed in the German language in the city [or village] of , State of Ohio; and that said newspaper has a bona fide paid circulation within said municipality of not less than one thousand copies. Subscribed and sworn to before me this day of , 19 [Seal.] \ Notary Public County, O. Sec. 1697 R. S. [Mode of publication.] In all municipal corporations in which there is no newspaper published it shall be sufficient publication of ordinances, resolutions, statements, orders, proclamations, notices and reports required by " An act to provide for the organization of cities and incorporated vil- lages," passed October 22, 1902, (96 O. L. extraordinary ses- sion, 1902) which require publication, to post up copies of such ordinance, resolution, statement, order, proclamation, notice or report at not less than five of the most public places in the corporation, to be determined by the council, for a period r* Or TH€ 'KUVERS\TY Code § 124] ORGANIZATION OF CITIES. COUNCIL. --^. ^ of not less than fifteen days prior to the taking effect thereof, except advertising for bids for the construction of public im- provements, which shall be published in at least one newspaper of general circulation in the corporation for not less than two nor more than four consecutive weeks, and notices of the sale of bonds which notices shall be published in such manner and for such time as is provided for in section 97 of " An act to provide for the organization of cities [and] incorporated vil- lages," passed October 22, 1902 (96 O. L. extraordinary ses : sion, 1902). The clerk shall make a certificate of such posting and the times, [when], and places where done, in the manner provided in the preceding section; and such certificate shall be prima facie evidence that the copies were posted up as required. [66 v. 166; 97 v. 447.] FORM OF CERTIFICATE OF POSTING. L . . . , clerk of the city [or village] of State of Ohio, do hereby certify that there is no newspaper published in said municipality, and that publication of the foregoing ordinance was duly made by posting true copies thereof at five of the most public places in said corporation as determined by the council, as follows: (here state places of posting) each for the period of fifteen days, commencing on the day of ...... 19.... 19,.... Clerk of the city [or village] of Sec. 1698 R. S. [Effect of non-publication.] It shall be deem- ed a sufficient defense to any suit or prosecution under an or- dinance, to show that no such publication or posting as herein required was made. 1 [66 v. 166, § 103; (S. & C. 1525).] (1) Premature action under tion of its publication is void. ordinance. — Any action taken un- Hensly v. Hamilton, 3 C. C. 201. der an ordinance before the comple- Sec. 1699 R. S. [By-laws, ordinances, etc., as evidence.] The printed copies of the by-laws or ordinances of a corporation, published under its authority, and transcripts of any by-laws, resolutions, or ordinances, or of any act or proceeding of a mu- nicipal corporation, recorded in any book, or entered on any minutes or journal, kept under the direction of such corpora- 32^ the ohio municipal code. [Code §§ 124a, 125 tion, and certified by its clerk, shall be received in evidence, through the state, for any purpose for which the original books, ordinances, minutes, or journals would be received. 1 [66 v. 166, § 104.] (1) Proof of ordinance by cer- Cincinnati, 3 N. P. 253; Akerman tified transcript made by clerk is v. Lima, 7 N. P. 92. State courts not erroneous. Ry. Co. v. Ry. Co., will not take judicial notice of mu- 12 C. C. 367. nicipal ordinances in the absence of Judicial notice of ordinances. a statute requiring it. Toledo v. — Municipal courts will take judi- Libbie, 19 C. C. 704 (affirmed with- cial notice of municipal ordinances, out report, 51 O. S. 562) ; Chitten- in prosecutions under such ordi- den v. Columbus, 26 C. C. 531 ; 5 nances; and a reviewing court oc- C. C. (N. S.) 84. See also Esch v. cupies same position as municipal Elyria, 27 C. C. 446; 7 C. C. (N. court. Strauss v. Conneaut, 3 C. C. S) 9. (N. S.) 445; 23 C. C. 320; Keck v. Sec. 124a. [Codification of ordinances, etc. ; publication in book form sufficient] Whenever ordinances which have been passed and published shall be revised, codified, rearranged and pub- lished in book form and certified as correct by the city or vil- lage clerk and the mayor thereof, such publication in book form shall be taken and held to be in lieu of publishing the same as required by section 124 and shall be a sufficient publication to all intents and purposes, but any and all ordinances passed subsequent to such revision and codification shall be subject to all the provisions of section 124 requiring publication in a newspaper or newspapers. Such revision and codification may be made under appropriate titles, chapters and sections and in one ordinance containing one or more subjects. 1 [1904, April 25, 97 v. 321.] (1) See § 1695 R. S., p. 320. Sec. 125. [Mayor's veto.] * Every ordinance or resolution of council shall, before it goes into effect, be presented to the mayor for approval. The mayor, if he approve the same shall Code § 126] ORGANIZATION OF CITIES. COUNCIL. 325 sign it, and return it forthwith to council; but if he do not approve it, he shall, within ten days after its passage or adop- tion, return the same with his objections to council, or, if council is not in session, return it to the next regular meeting thereof, which objections council shall cause to be entered upon its journal; provided, that the mayor may approve or disapprove the whole or any item, of an ordinance appropriat- ing money. If he do not return such ordinance or resolution within the time limited in this section, it shall take effect in the same manner as if he had signed it, unless council by ad- journment prevent its return. When the mayor disapproves an ordinance or resolution, or any part thereof, and returns it to council with his objections, council may, after ten days, reconsider the same, and if such ordinance, resolution or item, upon such reconsideration is approved by the votes of two- thirds of all the members elected to council, it shall then take effect as if signed by the mayor. 2 [Authentication of ordinances and resolutions.] Ordinances and resolutions shall be authenticated by the signature of the pre- siding officer and the clerk of council. [Style of ordinances.] The style of all ordinances shall be, " Be it ordained by the council of the city of , state of Ohio," (filling the blank with the name of the city). (1) Old sections. — Compare oH cutt v. Columbus, 26 C. C. 238; 6 §§1666, 1667 and 1668 R. S., re- C. C. (N. S.) 271. pealed; and §§ 1655a (1666-1) and Signature of mayor, "per clerk," (1666-2) R. S., repealed. on copy sent to council is valid. (2) Veto of part of an ordinance State ex rel. v. Henderson, 8 B. 201 by the mayor is valid. He may veto ( reversed on otner grounds, 38 O. part and leave the rest good. San- S. 644). fleet v. Toledo, 10 C. C. 460. No veto power in villages. — Effect of failure to present to See § 196 of the Code. mayor under former laws, see Wal- Sec. 126. [Salaries of municipal officers, clerks and employes.] * Council shall fix the salariesof all officers, clerks and employes in the city government, 2 except as otherwise provided in this act, 3 326 the ohio municipal code. [Code § 126 and, except as otherwise provided in this act, all fees pertain- ing to any office shall be paid into the city treasury.* The sal- ary of any officer, clerk or employe so fixed, shall not be in- creased or diminished during the term for which he may have been elected or appointed ; 5 provided, that the compensation of members of council, if any is fixed, shall be in accordance with the time actually consumed in the discharge of their offi- cial duties, but in no event shall exceed one hundred and fifty dollars per year, each, in cities having a population according to the last or any succeeding federal census, of 25,000, or less, and for every 30,000 additional inhabitants determined as aforesaid, said compensation may be, but shall not exceed, an additional one hundred dollars per year each, but the salary shall in no city be greater than twelve hundred dollars per an- num; and provided further, that the salaries of members of council shall be paid semi-monthly and a proportionate reduc- tion in said salaries shall be made for the non-attendance of any member upon any regular or special meeting thereof. (1) Old sections.— Compare old 8 C. C. (N. S.) 114. See §1745 §§ 1683, 1683a, 1655a, 1716 and 1717 R. S., p. 543. R. S. (repealed). But § 1751 R. S., providing that (2) Salaries fixed by council. all moneys received by the mayor, See § 227 of the Code and notes. except the fees of his office, shall be Form of ordinance fixing sala- paid into the city treasury, does not ries and bonds of officers, clerks and form an exception to provisions of employes, and organizing various code § 126, as § 1751 applies only departments of the city govern- to village mayors. Bellefontaine v. ment, see that given under § 227 of Haviland, 3 N. P. ( N. S. ) 99 ; 15 the Code. Dec. 482; Cambridge v. Smallwood, (3) Exceptions.— As to board 27 C. C. 302; 6 C. C. (N. S.) 230. of public service, see § 145 of the Upon the failure of the mayor to Code; board of health, § 189 and pay fees collected into city treasury sections of R. S. therein re-enacted; he may be compelled to do so in an university directors, §217; library action brought for that purpose by trustees, § 218. the city. Cambridge v. Smallwood, (4) Fees of mayor must be paid 27 C. C. 302; 6 C. C. (N. S.) 230. into city treasury except as otherwise (5) Increase or reduction dur- provided. This refers to municipal ing term. — Former § 1717 R. S. fees only. In state cases the mayor (repealed) on this subject, was held is allowed by § 1745 R. S. the same to relate only to officers of a munic- fees as justices of the peace, and ipal corporation proper. State ex such fees are not turned into city iel. v. Bd. Ed., 21 C. C. 785. treasury. Piqua v. Cron, 14 Dec. It did not apply to board of ex- 500; 2 N. P. (N. S.) 165; Ports- aminers for schools. lb. mouth v. Milstead, 28 C. C. 384; Code §§ 127, 128] organization of cities, council. 327 Compare Constitutional provision (Art. II., §20 of Constitution). Under this provision it was held that if the effect of a statute, what- ever its terms, was to increase an officer's salary during his term, it was void. State ex rel. v. Raine, 49 O. S. 580. The Constitutional provision was held not to forbid leg- islation reducing fees or percent- ages; salary was held to mean peri- odical payment. Thompson, Rela- tor, v. Phillips, 12 O. S. 617; so in- crease in per diem compensation was held not an increase in salary. Gobrecht v. Cincinnati, 51 O. S. 68. The Constitutional rule was held not to apply to an officer holding over until his successor is elected and qualified. Woehler v. Toledo, 6 B. 282; nor to a law reducing compen- sation of officer after election, but before his term began. State ex rel. v. Capeller, 3 B. 853. The Constitu- tional provision does not refer to municipal officers. State ex rel. v. Bd. of Ed., 21 C. C. 785. See, further, as to application of such a prohibition, State ex rel. v. Carlisle, 16 Dec. 263; 3 N. P. (N. S.) 544. Sec. 127. [Certain acts not repealed.] All acts or parts of acts which apply to all cities in the state, which are not incon- sistent herewith, and confer powers or impose duties upon the councils of cities, and all those which limit or restrict such councils shall be and remain in full force and effect; and all powers conferred by this act upon municipal corporations shall be exercised by council, unless otherwise provided herein. 1 (1) Other statutes relating to powers and duties of council, not expressly re-enacted by the Code, and not expressly repealed by it may be found in Part II hereof. 328 THE OHIO MUNICIPAL CODE. [Code § 128 2. EXECUTIVE. Sec. 128. [Executive power vested in whom.] 1 The executive power and authority of cities shall be vested in a mayor, presi- dent of council, auditor, treasurer, solicitor, department of pub- lic service, department of public safety and such other officers 2 and departments as are created by this act. ( 1 ) Old sections. — Compare old §§ 1707, 1707&, 1707d, 1707e, 1707/, 1708a, (1545-12), (1545-99), (1545- 268), and (1545-289) R. S. re- pealed, prescribing the officers in various cities. (2) Combining offices. — The new Code does not forbid the duties of two offices being performed by one person where such duties are not inconsistent. For example the city auditor may be elected clerk of council. Office and officer defined. — To constitute a public office "it is es- sential that certain independent public duties, a part of the sov- ereignty of the State, should be ap- pointed to it by law to be exer- cised by the incumbent, in virtue of his election or appointment to the office, thus created and defined, and not as a mere employe, subject to the direction and control of some one else." State ex rel, v. Jen- nings, 57 O. S. 415. See also State ex rel. v. McGonagle, 26 C. C. 685; 5 C. C. (N. S.) 292. Emoluments and method of choice are not the tests of what is an office. State ex rel. v. Anderson, 45 O. S. 196; State ex rel. v. Kennon, 7 0. S. 546. See further for discussion of def- inition of office and officer, Shaw v. Jones, 4 N. P. 372; State ex rel. v. Hamilton Co., 5 C. C. 602; State ex rel. v. Wilson, 29 O. S. 347 ; Walker v. Cincinnati, 21 O. S. 14; State ex rel. v. Rust, 4 C. C. 329; Wood Co. v. Pargillis, 10 C. C. 376; State v. I Anderson, 57 O. S. 429; Barker v. State, 69 O. S. 68; State ex rel. v. Coon, 26 C. C. 241; 4 C. C. (N. S.) 560. A deputy is not an officer. War- wick v. State, 25 O. S. 21 ; State v. Meyers, 56 O. S. 340. See also as to officers, notes to § 227 of the Code and § 1737 R. S. re-enacted in § 224 of the Code. Discretion of legislature.— Whether an officer shall be elected or appointed is a matter within the discretion of the legislature, and this discretion cannot be interfered with by the courts. State ex rel. v. Covington, 29 O. S. 102. Abolishment of office. — An office created by ordinance is abol- ished by the repeal of the ordinance and the incumbent thereby ceases to be an officer. State ex rel. v. Jen- nings, 57 O. S. 415. Creation of office. — An act au- thorizing council to establish a board and fill it, creates the office, though until the council acts, it is a mere potentiality. Smith v. Lynch, 29 O. S. 261. New boards as successors. — New boards having the same func- tions as old boards, are to be re- garded as their successors, and pow- ers given to the old boards and their successors may be exercised by the new. Hafer v. Cincinnati, 28 B. 131; Kirker v. Cincinnati, 48 O. S. 507. Code § 128] ORGANIZATION OF CITIES. EXECUTIVE. 329 Delegating power. — Officers cannot delegate discretionary power. Kelley v. Cincinnati, 7 N. P. 360; Moore v. Cassily, 16 C. 0. 708; Bd. of Ed. v. Mills, 38 O. S. 383; Snelbaker v. Jacob, 5 B. 73; Lip- pieman v. Cincinnati, 4 C. C. 327. See further Ampt v. Cincinnati, 17 C. C. 516 (affirmed 60 O. S. 621). Municipal liability for offi- cers' acts. — In the exercise of a public or governmental function, a municipality cannot be held liable for the torts of its officers or serv- ants, but where it is acting in its corporate capacity, as where it is making improvements of corporate property, the liability of the munic- ipality will be governed by the same rules as in the case of an individ- ual. Bloom v. Newark, 16 Dec. 393; 3 N. P. (N. S.) 480. Municipality is liable for the neg- ligence of its officers in managing public improvements. Dayton v. Pease, 4 O. S. 80; Toledo v. Cone, 41 O. S. 149; Johns v. Cincinnati, 45 O. S. 278. Municipality is liable for tort of park custodian, acting within scope of employment. Bloom v. Newark, 16 Dec. 393; 3 N. P. (N. S.) 480. Municipality may be bound by its properly constituted authorities whenever they have power to act in the premises. Cincinnati v. Mor- gan, 4 O. F. D. 50. But the municipality is not lia- ble for the acts of officers, not done in their official capacity, but for and between individuals. Dayton v. Pease, 4 O. S. 80; Bellaire Co. v. Findlay, 5 C. C. 418. De facto officers. — Definition and validity of acts, see notes, p. 503.. Admissions of officers, as to dangerous character of work being done, not a part of the res gestae, are not admissible to prove notice of character of work on the part of the municipality. Circleville v. Throne, 1 C. C. 359. Estoppel does not arise from acts of officers, where there is a want of power to act. Bd. of Ed. v. Sinton, 41 O. S. 504; Neil v. Barron, 7 N. P. 84. But where officers have authority municipality may be estopped by their acts and admissions, especially if municipality is acting in its pro- prietary capacity. Thomas v. Rail- way Co. 10 O. F. D. 544. Suits against officers in their official capacity. — See Karb v. State, 54 O. S. 383 ; Board of Health v. Columbus, 12 Dec. 553. Officers' personal liability. — Officers of municipality are not per- sonally liable, while acting within the scope of their authority and in good faith. Stewart v. Southard, 17 O. 402; Scovil v. Geddings, 7 O. (Part II) 211; Thomas v. Wilton, 40 O. S. 516; Rose v. Toledo, 24 C. C. 540; 1 C. C. (N. S.) 321. An officer is personally liable for a publication which is libelous per se though issued under performance of a public duty, if, in fact, the statement published was not per- tinent and material to the matter in hand. Mauk v. Brundage, 68 O. S. 89, 97. Where some members of a board in such case were actuated by malice and some were not, it ia 330 the ohio municipal code. [Code § 129 proper practice to render a verdict ordinance under which he received against all of the defendants for the funds was invalid. State v. compensatory damages and exem- Carter, 67 O. S. 422. plary damages against those found Liability for acts of subordinates, to have been guilty of malice. lb. see Meara v. Holbrook, 20 O. S. Criminal liability of officer for 137, 143. embezzlement not removed because (a) CHIEF OFFICERS. Mayor. Sec. 129. [Mayor: Election, term, qualifications, duties, etci] l The mayor shall be elected for a term of two years, and shall serve until his successor is elected and qualified. He shall be an elector of the corporation. The mayor shall be the chief con- servator of the peace within the corporation 2 and shall have such other powers and perform such other duties as are con- ferred and required in sections 1746, 1747, and 1748 of the Revised Statutes of Ohio; such as are provided in this act, and all other acts or parts of acts applying to all cities of the state and not inconsistent herewith. 3 [Appointment, removal and suspension of officers, clerks and employes.] The directors and officers provided in this act shall have the exclusive right, subject to the limitations herein pre- scribed to appoint all officers, clerks and employes in their sev- eral respective departments or offices, and shall likewise, subject to the limitations herein prescribed, have sole power to remove or suspend any such officers, clerks or employes. 4 [1904, April 7, 97 v. 78.] (1) Old sections 1744 R. S., un- Whether mayor is so far the rep- der Officers in Part II; § 1754 resentative of the city that he can R. S. } repealed. question regularity of judgments (2) Mayor obstructing process against it, quere. lb. against city.— Mayor may be pun- (3) Other statutes on powers ished for contempt of court if he and duties of mayor not expressly forcibly interferes with levy of ex- re-enacted and not repealed by the ecution against city property. Code may be found in Part II (§§ State ex rel. v. Holden, 12 Dec. 91. 1744, 1745 and 1752 R. S.) ; §§ Code § 129] ORGANIZATION OF CITIES. MAYOR. 331 1750 and 1751 are re-enacted in Code § 200, relating to mayor in villages. (4) Organizing departments. — As to determining what officers there shall be and their salaries and bonds, see § 227 of the Code, page 512. Filling vacancies. — As to mat- ters relating to filling of vacancies, see § 228 of the Code. Salary and fees, see notes. 126 and Sec. 1746 R. S. [Further duties.] He shall perform all the duties prescribed by the by-laws and ordinances of the corpora- tion ; and it shall be his special duty to see that all ordinances, by-laws, and resolutions of the council are faithfully obeyed and enforced ; 1 and he shall sign all commissions, licenses, and permits granted by authority of the council, or authorized by this title, 2 and such other instruments as by law or ordinance may require his certificate. 3 [66 v. 169, § 116 ; (S. & C. 1510, 1511).] (1) Provision mandatory. — Wheeler v. Gavin 5 C. C. 246, 250. The mayor cannot refuse to en- force ordinances because he may think them invalid, until the ques- tion is presented to him in a proper manner. lb. Personal liability. — Mayor is not liable personally for issuing a warrant for violation of an ordi- nance, because the ordinance is af- terward declared invalid. Wheeler v. Gavin, 5 O. C. 246. (2) Title referred to.— Tbe ref erence here is to Title XII R. S., of which this section formed a part. The new Code is, by § 212, made a part of Title XII. (3) Corporation deeds to be signed by mayor. Tiffin v. Shaw- han, 43 O. S. 178, 186. Sec. 1747 H. S. [Supervision of conduct of officers.] He shall supervise the conduct of all the officers of the corporation, in- quire into and examine the grounds of all reasonable complaints against any of them, and eause all their violations or neglect of duty to he promptly punished or reported to the proper au- thority for correction. 1 [66 v. 169; § 119.] (1) Corresponding provisions will be found in §§ 38 and 225 of the Code. In the former the may- or is given authority to appoint examiners to investigate any de- partment of the city government; in the latter he is empowered to pre- fer charges against any municipal officer believed by him to be guilty of misfeasance or non-feasance in office. See further as to general supervisory powers of the mayor, §§37 and 130 of the Code. Sec. 1748 R. S. [Mayor to record his protest against excess of expenditure.] If, in the opinion of the mayor, an expenditure is authorized hy the council exceeding the revenues of the cor- the ohio municipal code. [Code §§130, 131, 132 poration for the current year, it shall be his duty to protest against such expenditure, and enter such protest, and the rea- son therefor, on the journal of the council. 1 [66 v. 261, § 657.] (1) Supervision of mayor over expenditures.— 3ee §§ 35, 36, 37, 38 and 125 of the Code, Sec. 130, [Directors of several departments of city to meet with mayor for consultation and advice.] 1 Whenever the mayor shall de«m necessary, the directors of the several departments of the city shall meet with him at the time and place designated by said mayor, for consultation and advice upon the affairs of the city. (1) Old sections.— Compare old § (1545-121) R. S. (Columbus), re- § (1545-34) R. S. (Cleveland), and pealed. Sec. 131. [Mayor, directors and officers to attend meetings of council upon request.] * It shall be the duty of the mayor, the directors and of the several officers provided for in this act, to attend the meetings of council when specifically requested by council so to do, and to answer at such time such questions relative to the affairs of the city, under their respective man- agement and control, as may be put to any of them by any mem- ber of the council. (1) Old sections.— Compare old § (1545-115) R. S. (Columbus), re- §(1545-27) R. S. (Cleveland), and pealed. President of Council. Sec. 132. [President of council: Election, term, qualification, duties, etc.; when shall be acting mayor; vacancy in office of mayor.] The president of council shall be elected for a term of two years, and shall serve until his successor is elected and qualified. 1 He shall be an elector of the corporation, and shall Code §133] ORGANIZATION OF CITIES. AUDITOR. 333 preside at all regular and special meetings of council, but shall have no vote therein except in case of a tie. 2 When the mayor is absent from the city, or is unable for any cause to perform his duties, the president of council shall be the acting mayor. In case of the death, resignation or removal of the mayor, the president of council shall become the mayor, and serve for the unexpired term, and until the successor is elected and qual- ified; and the president pro tern, of council shall thereupon become president thereof, and shall have the same rights, duties and powers as his predecessor, and the vacancy thus created in council shall be filled as other vacancies, and council shall elect another president pro tern. Provided, further, that while the president of the city council is acting as mayor he shall not serve as president of council. (1) See note (3) under § 116 of be considered a member of council in the Code. determining the presence of a (2) Not a member in consti= quorum. tuting quorum. — The president of council under the new Oode is not to Auditor. Sec. 133. [Auditor; election, term, qualification, duties, etc.] 1 The auditor shall be elected for a term of two years, and shall serve until his successor is elected and qualified. He shall be an elector of the corporation. The auditor shall keep the books of the city, exhibit accurate statements of all moneys received and expended, and of all property owned by the city and the income derived therefrom, and of all taxes and assessments. At the end of each fiscal year, or oftener if required by council, he shall examine and audit the accounts of all officers and departments, and shall prescribe the form of accounts and reports to be rendered to his department, and the form and method of keeping accounts by all other depart- ments, and shall have the inspection and revision thereof; but 334 the ohio municipal code. [Code § 134 nothing* herein contained shall be construed to repeal or- im- pair the effect of an act entitled "An act to create a bureau of inspection and supervision of public offices, and to establish a uniform system of public accounting, auditing and reporting under the administration of the auditor of state/ ' passed May 10, 1902. 2 Upon the death, resignation, removal or expiration of the term of any officer, the auditor shall audit the accounts of such officer, and if such officer be found indebted to the city, he shall immediately give notice thereof to council and to the solicitor, and the latter shall proceed forthwith to collect the same. He shall not allow the amount set aside for any ap- propriation to be overdrawn, or the amount appropriated for one item of expense to be drawn upon for any other purpose, or unless sufficient funds shall actually be in the treasury to the credit of the fund upon which such voucher is drawn. Whenever any claim is presented to him, he shall have power to require evidence that such amount is due, and for this pur- pose may summon any agent, clerk or employe of the city, or any other person, and examine him upon oath or affirmation concerning such voucher or claim. [1906, April 16, 98 v. 196.] ( 1 ) Old section. — Compare old vision of all public offices, and es- § 1765a R. S., repealed. tablishing a uniform system of pub- (2) Uniform accounting law.— lie auditing and accounting, as The act of May 10, 1902, creating amended April 23, 1904, will be a bureau of inspection and super- found under Officers in Part II. Sec. 134. [Further as to powers and duties of auditor; seal.] 1 Detailed statements of the receipts and expenditures of the sev- eral officers and departments for the preceding month shall be made to the auditor by the heads thereof on the first Monday of each, month. The auditor shall countersign each receipt given by the treasurer before it shall be delivered to the person en- titled to receive the same, and shall charge the treasurer with the amount thereof ; and if the auditor shall approve any vouch- Code §134] ORGANIZATION OF CITIES. AUDITOR. 335 er contrary to the provisions of this act, he and his sureties shall be individually liable for the amount of the same. The auditor shall have the powers and perform the duties confer- red and required in sections 1756, 1757, 1758, 1759 and 1761, of the Revised Statutes of Ohio, and such other powers and duties as may now or hereafter be conferred or required by or- dinance or by any law applying to all cities of the state. 2 Coun- cil shall provide a seal for the auditor, in the center of which shall be the name of the city, and around the margin the words " City Auditor," an impression of which seal shall be affixed to all transcripts, orders, certificates or other papers requiring authentication. ( 1 ) Old sections. — Compare old ments by auditor to be furnished to §§ 1764 and 1765 R. S., repealed. mayor; see §§ 36 and 44 of the (2) Other provisions. — State- Code. Sec. 1756 R. S. [Auditor to make detailed statement of receipts and expenditures.] He shall, on or before the third Monday in March of each year, make and enter in the record book of the corporation, a detailed statement of all the receipts and expen- ditures, the number and amount of bonds issued, and for what purpose of the corporation for the preceding year, stating from what sources the money was received, and to whom paid, and for what purposes expended and showing the exact condition of the several funds of the corporation, and all outstanding li- abilities, if any, to whom due, and for what purpose. 1 [1883, March 21 : 80 v. 65 ; Rev. Stat. 1880 ; 67 v. 71, § 129.] (1) Further duties of similar character.— See §§36 and 133 of the Code. Sec. 1757 It. S. [Statement to be posted at voting precincts, or published in newspaper; penalty for neglecting; publication in book form sufficient.] He shall cause a copy of said detailed statement, which shall be approved by the mayor to be posted at the places of holding elections for officers of the corporation, on the first Monday of April, annually ; any incorporation hav- ing a population of over two thousand (2,000), the clerk shall have same published once in some newspaper published or of 336 the ohio municipal code. [Code §134 general circulation in the corporation, at least five days prior to the first Monday of April ; and, upon the order of the coun- cil, the clerk shall, at any time, furnish to it a detailed statement of all receipts and disbursements, for such periods as it may require. Any clerk refusing or neglecting to conform to the provisions of this and the next preceding section, shall be fined by the mayor, or police court as the case may be, not more than thirty dollars or less than twenty-five dollars for the use of the corporation. The provisions of sections one thousand seven hundred and fifty-six, and one thousand seven hundred and fifty-seven shall not apply to any municipal corporation that publishes annually a detailed statement of the receipts and ex- penditures in book form or in any other printed manner. [1883, March 21 : 80 v. 65 ; Eev. Stat. 1880 ; 67 v. .71, § 130.] Sec. 1758 U.S. Report to auditor of state, etc.] He shall, on or before the first Monday of June, in each year, report to the auditor of state the aggregate expenses of the corporation for the preceding year, under the following heads: school, police, streets, bridges, fire department, lights, poor, salaries, and in- terest; and also the amount of the general corporation tax for all the preceding objects, and for any others not enumerated, and the special taxes levied and collected by the corporation for the same period 1 : provided, that the city auditor, in any city having such officer, shall perform the duties imposed upon the clerk bv this and the two preceding sections. [67 v. 71, § 131; (S."& C. 1543).] ( 1 ) Reports to state auditor. — are required to be made in con- Under the act of May 10, 1902, made formity with said act, and blanks to remain in force by § 133 of the for this purpose are prepared in Code, a bureau of inspection and the office of the state auditor, who supervision of all public offices is is made the head of the bureau, created, and a uniform system of The new " uniform accounting law " public auditing and accounting is will be found under Officers in established. The reports of city Part II. auditors to the auditor of state Sec. 1759 It, S. [Shall certify to the court election of certain officers.] He shall certify to the court of common pleas of the county in which the corporation is situated, the election of every officer of the corporation having power to discharge the duties of a justice of the peace, or to take the acknowledgment of deeds, or to certify depositions or affidavits to be used within the limits of such corporation, with the date of such election, and the time when such officer became legally qualified to dis- Code §135] organization ov cities, treas'e. 337 charge the duties of such office; which certificate shall be made within ten days after such qualification. [66 v. 171, § 132 ; (S. & C. 1536).] FORM OF CERTIFICATE. To the Clerk of the Court of Common Pleas, County, Ohio : I, , auditor of the city of , State of Ohio, .hereby certify that on the day of , 19 .... , was duly elected ( here insert title of office) and qualified for said office on the day of , 19 IN WITNESS WHEREOF, I have hereunto set my hand and official seal this day of , 19 [Seal.] Auditor of the city of. Sec. 1761 R. S. [Penalty for neglect.] Every clerk 1 whose duty it shall be to make such certificate, or record the same when presented for record, 2 who neglects or refuses to perform the duties enjoined by this chapter, 3 shall pay to the treasurer of the corporation, for every such neglect or refusal, the sum of fifteen dollars, to be recovered in a civil action, at the suit of such corporation; and shall also be liable for all damages arising from such neglect or refusal ; and any corporation clerk who neglects to make report as provided in section seventeen hundred and fifty-eight shall forfeit one hundred dollars, to be recovered in a civil action, with costs, in the name of the cor- poration, and for ft? use. [66 v. 172, § 134; 67 v. 71, § 131 ; (S. & C. 1536).] ( 1 ) This refers to city auditor cord the certificate given under § and county clerk. See § 1760 R. S., 1759 R. 8., supra. under Officers in Part II. (3) This section was part of (2) See § V/60 R. S., in Part II, Chapter 5, Div. 4, Title XII, R. S. infra, which requires the clerk of Chapter 5 related to the powers and the Court o* Common Pleas to re- duties of city and village officers. Treasurer. Sec. 1S5. [Treasurer: Election, term, qualification, powers and duties.] The treasurer shall be elected for a term of two years, and shall serve until his successor is elected and qualified. He shall be an elector of the corporation. The powers and duties of the treasurer shall be such as are provided in sections 1767, 1768 and 1769 ? of the Kevised Statutes of Ohio; such as are provided in this act, and all other acts or parts of acts applying to all cities of the state and not inconsistent with this act. 1 338 the ohio municipal oode. [Code § .135 [Deposit of moneys.] 2 The treasurer, upon giving bond as required by the council, may, by and with the consent of his bondsmen, deposit all funds and public moneys of which he has charge in such bank or banks, situated within the county, which may seem, best for the protection of said funds, which said deposit shall be subject at all times to the warrants and orders of the treasurer required by law to be drawn 3 and all profits arising from said deposit or deposits shall inure to the benefit of said funds, 4 provided that such deposit shall in no wise release the treasurer from liability for any loss which may occur thereby. The council shall have authority to provide by ordinance for the deposit of all public moneys coming into the hands of the treasurer, in such bank or banks, situated within the county, as may offer, at competitive bidding, the highest rate of in- terest and give a good and sufficient bond issued by a surety company authorized to do business in Ohio, or furnish good and sufficient surety, in a sum not less than twenty per cent in excess of the maximum amount at any time to be deposited ; provided, that there shall not be deposited in any one bank an amount in excess of the paid in capital stock and surplus of such bank, and not in any event to exceed one million (1,000,000.00) dollars and to determine in such ordinance the method by which said bids shall be received, the authority which shall receive them, and which shall determine the sufficiency of the security offered, the time for the contracts for which deposits of public money may be made, and all details for carrying into effect the authority here given, provided that all such proceedings in connection with such competitive bidding and the deposit of money shall be conducted in such manner as to insure full publicity, and shall be open at all times to the inspection of any citizen ; and provided further, that as to any deposits made under authority of an ordinance of the council, Code § 135] organization of cities, treas'r. 339 pursuant hereof, neither the treasurer nor his bondsmen, if the treasurer has exercised due care, shall be liable for any loss occasioned thereby. 5 [1904, April 23, 97 v. 270.] (1) Other statute applying to legislative declaration of the princi- powers and duties of treasurer not pie announced in Eshelby v. Board repealed and not re-enacted by the of Education, 66 0. S. 71. Code may be found under Officers (5) Forms of ordinances pro- in Part II (§ 1773 R. S.). viding for the establishment of such Payments by county treasurer to depositaries of public moneys, may city treasurer of moneys belong- be drafted from the various depos- ing to municipality, see §§ 1047, itary acts in the Revised Statutes. 1122, 1122a, 1123 and 1771 R. S., See, for example, §§ (1136-14) et under title Officers in Part II. seq. (County of Cuyahoga) ; (2) Old section. — Compare old (1784-1) et seq. (Cleveland); § (1773-1) R. S., repealed. (1784-21) et seq. (Toledo); (1784- (3) Mandamus will lie to com- 41) et seq. (Tiffin). pel a treasurer to pay on order Validity of provision that coun- properly drawn on him, and if he cil may provide for deposit of refuses wilfully and oppressively, money by treasurer, upheld. State he is liable to a personal action. ex rel. v. Bowers, 26 C. C. 326, Bates v. Fries, 2 Disney, 511. (aff'd 70 O. S. 423). (4) Interest on public funds.— Duty of treasurer.— Treasurer The requirement that all profits de- has no discretion to refuse to obey rived from the ueposit of public ordinance, and mandamus will lie funds shall inure to the benefit of to compel obedience. lb. such funds, and this, even though Applies to school funds. — This the treasurer is liable for any loss section applies to school funds. lb. occasioned by such deposit, is a Sec. 1767 It. S. [Powers and duties of treasurer.] The treasur- er shall keep an accourate account of all moneys by him re- ceived, showing the amount thereof, the time when, from whom, and on what account received ; also of all disbursements by him made, showing the amount thereof, the time when, to whom, and on what account paid; and he shall so arrange his books that the amount received and paid on account of separate funds, or specific appropriations, shall be exhibited in separate accounts ; and in addition to the ordinary duties of such officer , he shall have such powers and perform such duties as are prescribed in this title, 1 or as may be required by ordinance of the corpora- tion not inconsistent with this title, and not incompatible with the nature of his office. [QQ v. 174, § 151.] ( 1 ) Title referred to. — This sec- The Code is, by § 212, made a part tion was part of Title XII R. S. of Title XII. Sec. 1763 U.S. [Further duties of treasurer.] He shall de- mand and receive from the county treasurer all taxes levied and assessments made and certified to the county auditor by author- ity of the council, and by the auditor placed on the tax-list for collection, and -from all persons authorized to collect or re- quired to pay the same; 1 all moneys accruing to the corpora- tion from judgments, fines, penalties, forfeitures, licenses > and costs taxed in the mayor's and police courts, and debts due the 340 the ohio municipal code. [Code §§136, 137 corporation ; and lie shall disburse the same on the order of such person or person [s] as may be authorized by law or ordinance to issue orders therefor. [66 v. 174, § 152.] ( 1 ) Taxes paid under protest. lected and belonging to the city, al- — City treasurer may compel coun- though paid under protest. Ratter- ty treasurer to pay over moneys col- man v. State, 44 0. S. 641. Sec. 1769 R. S. [Quarterly account] He shall settle and ac- count with the council quarterly, and also whenever the coun- cil may by resolution or ordinance require; and he shall re- port annually to the council, at the first regular meeting thereof in April, the condition of the finances of the corporation and the amount received by him, and the sources whence received, and the disbursements by him made, and on what account, dur- ing the year preceding the first day of April ; and such account shall exhibit the balance due on each fund which may have come into his hands during the year. [66 v. 174, § 153.] Sec. 136. [Further duties of treasurer.] The treasurer shall receive and disburse all funds of the city including the school funds, 1 and such other funds as arise in or belong to any de- partment or part of the city government. (1) As treasurer of school urer of school funds, see Knorr v. funds.— By § 4042 R. S. "in each Bd. of Ed., 9 B. 182; Eshelby v. Bd. city district the treasurer of the of Ed., 66 O. S. 71. As to additional city funds shall be treasurer of the bond before acting as treasurer of school funds." school fund, see Knorr v. Bd. of As to compensation and liability Ed., supra; Eshelby v. Bd. of Ed., of treasurer when acting as treas- supra. Solicitor. Sec. 137. [Solicitor: Election, term and qualifications.] The solicitor shall be elected for a term of two years, and shall serve until his successor is elected and qualified. The solicitor shall be an elector of the city, and admitted to practice law in the courts of Ohio. [Powers and duties.] The powers and duties of the solicitor shall be such as are provided in sections 1776, 1777, 1778, 1779 and 1780, of the Kevised Statutes of Ohio; such as are Code §137] ORGANIZATION OF CITIES. SOLICITOR. 341 provided in this act, and all other acts or parts of acts having uniform operation throughout the state and not inconsistent with this act, 1 and he shall prepare all contracts, bonds and other instruments in writing in which the city is concerned, and shall serve the several directors and officers mentioned in this act as legal counsel and attorney ; provided that no action, as provided in sections 1777 and 1778, to enjoin the performance of a contract or the payment of any bonds heretofore or here- after entered into or issued by a municipal corporation, shall be brought or maintained unless such action is commenced within one year from the date of such contract or bonds, and this provision shall apply to pending cases. 2 [Shall be prosecuting attorney of police court.] The solicitor shall also be prosecuting attorney of the police court, and shall receive for this service such compensation as council may pre- scribe, and such additional compensation as the county com- missioners shall allow; provided, that where council allows an assistant/or assistants to the solicitor, said solicitor may desig- nate an assistant or assistants to act as prosecuting attorney or attorneys of the police court. The duties of the solicitor as prosecuting attorney of the police court shall be such as are provided in section 1813 of the Eevised Statutes ; such as are provided in this act, and in all other acts or parts of acts ap- plying to all cities of the state -and not inconsistent herewith. 3 In case of the inability or absence of the solicitor or any of his assistants to act as prosecuting attorney of the police court, the provisions of section 1815 of the Revised Statutes shall apply. • (1) Other statutes relating to v. St. Ry. 1 N. P. (N. S.) 25; 13 powers and duties of solicitor, not Dec. 670. re-enacted and not repealed by the (3) As police court prosecutor. Code, may be found under Officers — Other statutes relating to duties in Part II. of solicitor as prosecuting attorney (2) Validity of limitation. — of the police court, not re-enacted The limitation in this section was and not repealed, may t>e found un- held unconstitutional in Horstman der Judicial in Part II. 342 the ohio municipal code. [Code §137 Sec. 1776 E. S. [Pay over money.] He shall pay over to the treasurer all moneys which may come into his hands belong- ing to the corporation, or which may come into his hands by way of fines, forfeitures, costs, or otherwise, and take the treas- urer's duplicate receipt therefor, one of which he shall file with the clerk of the corporation, or in case there be an auditor, then witb such auditor. [66 v. 175, § 158.] Sec. 1777 R. S. [City solicitor shall apply for injunction in certain cases.] He shall apply in the name of the corporation, 1 to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the corporation, or the abuse of its corporate powers, or the execution or perform- ance of any contract made in behalf of the corporation in con- travention of the laws or ordinance gfoveming the same, or which was procured by fraud or corruption. And he shall likewise, whenever an obligation or contract made on behalf of the cor- poration granting a right or easement, or creating a public duty, is being evaded or violated, apply for the forfeiture or the spe- cific performance of the same as the nature of the case may re- quire. And in case any officer or board fails to perform any duty expressly enjoined by law or ordinance, he shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty. 2 [87 v. 122; 81 v. 188, 189; Rev. Stat. 1880; 66 v. 175, § 159; (S. & C. 1559).] (1) Action in whose name. — The solicitor may bring the suit Where solicitor brings action in his in the name of a taxpayer, with own name as solicitor and taxpay- his consent, although not requested er, though in behalf of the munici- in writing to do so. Cincinnati St. pality, court may strike solicitor's Ry. v. Smith, 29 0. S. 291. name from title of cause and sub- No action of council is neces- stitute name of municipality. L. S. - sary to authorize solicitor to bring & M. S. Ry. Co. v. Elyria, 69 O. S. suit under this section. State ex 414. rel. v. Bowers, 26 C. C. 326 ; 4 C. C. (2) Construction — §§ 1777 and (N. S.) 345, (aff'd 70 O. S. 423). 1778 are remedial and should re- For general matter relating to ceive a construction which will actions under this and succeeding make the remedy a useful one. Gas section, see notes on page 343 et seq. and Water Co. v. Elyria, 57 0. S. Bond.— The solicitor need not 374, 383; Dorgan v. Columbus, 12 give bond in procuring injunction Dec. 121, 128; Rogers v. Railway under this section. Forsythe v. Co., 12 Dec. 136; Fergus v. Colum- Winans, 44 0. S. 277. bus, 6 N. P. 82. Code §137] ORGANIZATION OF CITIES. SOLICITOR. 343 Sec. 1778 R. S. [When taxpayer may institute suit.] * In case he fail upon the request of any taxpayer of the corporation to make the application provided for iu the preceding section, it shall be lawful for such taxpayer to institute suit for such purposes in his own name, on behalf of the corporation ; 2 pro- vided, that no such suit or proceeding shall be entertained by any court until such request shall have been first made in writ- ing, 3 and further, provided that no such suit or proceeding shall be entertained by any court until such taxpayer upon motion of the solicitor or corporation counsel shall have given security for the costs of the proceeding. [95 v. 317 ; 87 v. 122 ; 67 v. 72, § 160; (S. &C. 1559).] (1) Section given as amended in 95 O. L. 317. Though the sec- tion is referred to in the Code as the section contained In the Revised Statutes, the re-enactment is to be taken as including the section as amended; (§ 212 of the Code). Constitutionality of section up- held. Horstman v. St. Ry., 13 Dec. 670; 1 N. P. (N. S.) 25. (2) Purpose of provisions. — The object of §§ 1777 and 1778 is not to subserve the personal inter- ests or protect any individual right peculiar to the taxpayer, but to protect the municipal corporation. Knorr v. Miller, 5 C. C. 609 (af- firmed 27 B. 64) ; Gallagher v. Johnson, 31 B. 24; Hensly v. Hamilton, 3 C. C. 201; Peppard v. Cincinnati, 6 N. P. 57; State v. Bowers, 26 C. C. 326; 4 C. C. (N. S.) 345 (aff'd 70 O. S. 423). The only question in such case is whether there has been a violation of corporate rights and this is one between the municipality and its of- ficers. The other party to an al- leged illegal municipal contract can- not come into the case and ask to have his rights determined. John- son v. Farley, 8 N. P. 498. The taxpayer's right at common law to enjoin abuse of corporate power and misapplication of public funds by municipal officers existed and was recognized independent of these statutes, which limit and reg- ulate the bringing of such suits. Raynolds v. Cleveland, 13 Dec. 125 (reversed on other grounds, 24 C. C. 215) ; Cincinnati St. Ry. r. Smith, 29 O. S. 291. In what cases action lies. — The abuse of corporate powers, within the meaning of § 1777, includes the unlawful exercise or powers pos- sessed by the corporation as well as assumption of power not con- ferred. Gas & Water Co. v. Elvria, 57 O. S. 374. Injunction will lie to prevent a bond issue to raise a fund to be ap- plied for an object unauthorized and void. lb. Every contract made in violation of the law or ordinance governing the matter is an abuse of corporate power. Shaw v. Jones, 4 N. P. 372. A taxpayer may enjoin the mu- nicipality from allowing the use of its streets for laying pneumatic tubes for carrying packages by com- pressed air, where the grant is un- lawful. Ampt v. Cincinnati, 21 C. C. 300. Solicitor has power to bring ac- tion for forfeiture of franchises granted to a gas company. Colum- bus v. Federal Gas & Fuel Co., 14 Dec. 261 (aff'd 72 O. S. 637). As to injunction by taxpayer against change of grade of street, see Corry v. Cincinnati, 22 B. 194. City may bring action against in- terurban company coming into mu- nicipality by virtue of § 3443-11 for failure of such company to give transfers, etc., and otherwise com- ply with conditions imposed on city company. Cincinnati v. St. Ry. Co., 16 Dec. 220; 3 N. P. (N. S.) 489. Taxpayer may enjoin council 344 THE OHIO MUNICIPAL CODE. [Code § 13? from removing mayor under an in- valid ordinance, as both a misappli- cation of funds and an abuse of cor- porate power. Dorgan v. Colum- bus, 12 Dec. 121. But see Shaw v. Jones, 4 N. P. 372. Taxpayer may enjoin awarding municipal contract, as for a street improvement, to one not the lowest bidder. Tucker v. Newark, 19 C. C. 1, 3; Pease v. Ryan, 7 C. C. 44. Municipality may be enjoined from paying money to a water com- pany in pursuance of a contract, claimed to be illegal to pay hy- drant rentals for fire purposes, as a misappropriation of funds and per- formance of a contract in contra- vention of law. Defiance v. Coun- cil, 23 C. C. 96, (reversed on other grounds, 68 0. S. 520). Expenditure of public funds by municipal officers in exploitation of a particular system of valuing property for taxation may be en- joined without regard to the merits of the system. Crawford v. Madi- gan, 13 Dec. 494. Street railway grants. — Grant of franchise to street railway com- pany is a contract on behalf of the city within meaning of sec. 1777. Cincinnati St. Ry. Co. v. Smith, 29 O. S. 291. See, as to actions by taxpayers relating to street railway grants, notes under sec. 2501 R. S. on page 148. But want of consents 'of abutting owners will not be ground for tax- payer's injunction against street railway grant. See note 5, " Right of action for want of consents," p. 153. Where other remoay. — Action by taxpayer is not barred because there may be a remedy by the state by action of quo warranto. Horst- man v. St. Ry. Co., 13 Dec. 670; Elyria v. Ry. Co., 12 Dec. 609 (69 O. S. 414). Character of action. — Solicitor may have mandatory injunction to compel gas company to charge for gas, the price required by o -dinance. Gas Light Co. v. Zanesville, 47 O. S. 35. He may have a mandatory injunc- tion to compel a gas company to carry out its contract with the mu- nicipality. Toledo v. Gas Co., 5 C. C. 557. One with whom the municipality has made an illegal contract may be enjoined from performance, al- though the municipality has fully performed. Haskins v. Cincinnati Con. St. Ry. Co., 4 B. 1126. Legislation cannot be enjoined, but if the object of an ordinance is illegal, injunction will lie to prevent its being carried out. Moore v. Hoffman, 2 C. S. C. R. 453; Johnson v. Cincinnati, 26 B. 223. A taxpayer cannot complain that a city's acts, under legislative au- thority, will violate the obligation of the city's contracts. Only the creditor can complain in such case. Cincinnati v. Dexter, 55 O. S. 93. When sections do not apply. — These sections do not apply to ac- tions against board of education. Youmans v. Board of Education, 13 C. C. 207. But a taxpayer might, independently of these sections, bring suit to restrain the board of education from doing an illegal act. lb.; Weir v. Day, 35 O. S. 143, 146. Contract by police commissioners which is illegal, but does not in- volve a use of city funds, is not enjoinable under this section as an abuse of corporate power of the city. Fitzpatrick v. Bromwell Co. 5 N. P. 165. Police funds, under former stat- utes, were held not to be city funds, within the meaning of these sec- tions. Yaple v. Police Commission- ers, 2 C. C. 406. A taxpayer cannot maintain a suit to enjoin one railroad company from transporting the cars of an- other across the city streets on the ground that the contract between the two companies is ultra vires. Rogers v. Ry. Co., 47 B. 83. These sections have no applica- tion to an action by owners seeking to enjoin sale of their property to pay assessments, on the ground that the ordinance for the improvement is an unreasonable one. Mills v. Norwood, 6 C. C. 305. Nor an action by abutting prop- erty owner to enforce the proper use of the streets in front of his property. Herrick v. Cleveland, 7 C. C. 470. The lowest bidder for a munici- pal contract cannot, as such, en- join the offices from rejecting all bids, though as a taxpayer he might proceed under these sections, and then he must first apply to solicitor. Johnson v. Westside St. Ry., 10 B. 345; Johnson v. Cincinnati, 26 B, Code § 137] ORGANIZATION OF CITIES. SOLICITOR. 345 223; but see Lake Shore Foundry v. Cleveland, 8 C. C. 671; Mathers v. Cincinnati, 3 B. 709. Where there is no solicitor of the municipality, § 1777 R. S. does not apply and the taxpayer may sue on behalf of the corporation without previous written request. Cope v. Wellsville, 25 B. 250. An abutting owner as such can- not enjoin a contract for improve- ment because of defects in proceed- ings before any assessment has been levied against him or any work done. A taxpayer suing on behalf of the corporation might do this, under § 1778, but this is a special pro- vision and is not to be applied to other cases than those mentioned. Wood v. Pleasant Ridge, 12 C. C. 177. So an abutting owner cannot en- join laying natural gas pipes in street, because question not sub- mitted to popular vote as required by law. Only the public can sue in such case. Webb v. Ohio Gas Fuel Co., 16 B. 121. Sections do not provide for re- covery back of money unlawfully expended, but only the restraining of unlawful disbursements not yet made. Crawford v. Madigan, 13 Dec. 494. Nor for recovery of money al- leged to be fraudulently withheld from the municipality. Nicholson v. Maile, 15 Dec. 682; 3 N. P. (N. S. ) 201 ; State v. Zumstein, 4 C. C. 268. Nor for recovery of a claim against the municipality. State ex rel. v. Roebuck, 15 Dec. 400. When brought. — In enjoining illegal bond issue or tax levy it is not necessary to wait until the fund is Taised. Gas & Water Co. v. Elyria, 57 O. S. 374, 383. In en- joining street railway grant it is not material that franchise is not to go into effect until many years later. Horstman v. St. Ry. Co., 14 Dec. 545. An action to enjoin payment under a contract on ground of in- validity ab initio of contract, is barred under § 4985 R: S., in ten years from time contract was en- tered into. Defiance Water Co. v. Defiance, 68 0. S. 520. Where op- eration under illegal franchise con- stitutes public nuisance statute of limitations does not apply. Horst- man v. St. Ry. Co., 13 Dec. 670; 1 N. P. (N. S.) 25. Estoppel to sue. — For cases where municipality was held es- topped to sue because it had per- mitted operation under the right or contract for many years and al- lowed large expenditures to be made without objection, see Ampt v. Cin- cinnati, 34 B. Ill, 112; Pugh v. Elec. Light Co., 19 C. C. 594 ; Craw- ford v. Madigan, 13 Dec. 494; Co- lumbus v. Federal Gas & Fuel Co., 14 Dec. 261 (aff'd 72 O. S. 632); Columbus v. Bohl, 13 Dec. 569 ; 1 N. P. (N. S.) 469. But see Herten- stein v. Herrmann, 6 N. P. 93 (where suit brought only four days after work begun) ; Ross v. Colum- bus, 8 N. P. 420 (where action be- gun before grant of franchise.) See also on the subject of estoppel, De- fiance v. Council, 23 C. C. 96 (re- versed other grounds, 68 O. S. 520 ) , where making payments by city un- der contract held not to estop. See also Horstman v. St. Ry. Co., 12 Dec. 756 (no estoppel where mu- nicipality without power to act). See further note "Estoppel," p. 372. Action by one taxpayer is bar to similar action by another taxpayer, although not a resident at the time of first action. Hallock v. Colum- bus, 1 N. P. (N. S.) 205; 13 Dec. 488. See also Atlas Bank v. Colum- bia Tp., 13 Dec. 472. Contracts made under law formerly considered constitu tional. — Effect of subsequent contra ruling. — Where contracts have been made or obligations entered into on the faith of a certain, definite and apparently fixed construction of the constitution by the highest court, such contracts will not be invali- dated nor such obligations avoided by the subsequent judgment of the court that the former construction was erroneous. Friedman v. Cin- cinnati, 13 Dec. 404. See Alter v. Cincinnati, 56 O. S. 47; Atlas Bank v. Columbia Tp., 13 Dec. 472; Gault v. Columbus, 13 Dec. 575; 1 N. P. (N. S.)-201; Lewis v. Symmes, 61 O. S. 475; Douglas v. Pike Co., 101 U. S. 677. Contracts for necessary public im- provements entered into under a special act, but before May 1, 1903, may be upheld and work thereun- 346 THE OHIO MUNICIPAL CODE. [Code § 137 der allowed to continue, though the law may be unconstitutional under recent decisions of the Supreme Court. Columbus v. Bohl, 1 N. P., 469; 13 Dec. 569. Interest of taxpayer. — The tax- payer need not have a private inter- est peculiar to himself, and not shared by all taxpayers, in order to proceed. Rogers v. Ey. Co., 12 Dec. 136; Knorr v. Miller, 5 C. C. 609. As to whether, in order to main- tain the suit the taxpayer must show that by increase in taxation or otherwise, expense will be put upon him. See Buning v. St. Ry. Co., 1 C. C. 323; Cincinnati v. Alli- son, 12 Dec. 376; Sommers v. Cin- cinnati, 8 Rec. 612; and see Sloane v. Ry. Co., 7 C. C. 84; Knorr v. Miller, 5 C. C. 609 ; Landis v. Darke County (Supreme Ct. not rep.), 32 B. 313. Fergus v. Columbus, 6 N. P. 82. Time of payment of taxes is not material in determining whether the plaintiff is a taxpayer. State ex rel. v. Taylor, 16 Dec. 66. Motive of taxpayer in bringing the suit has been held to be imma- terial. Peppard v. Cincinnati, 6 N. P. 57; Raynolds v. Cleveland, 24 C. C. 215; 2 C. C. (N. S.) 139. But see contra, Gallagher v. John- son, 31 B. 24; Ampt v. Cincinnati, 2 N. P. (N. S.) 489; 15 Dec. 237. And see also Brown v. Toledo, 10 C. C. 642, 645; Johnson v. Farley, 8 N. P. 498; Fergus v. Columbus, C N. P. 82. However, in McClain v. McKisson, 15 C. C. 517 (affirm- ed 54 O. S. 673) it was held that the fact that the taxpayer was to be indemnified for his expenses by a beneficiary of the action, viz.: a lower bidder, would not defeat the right to sue, the taxpayer desiring for his own part to bring the suit. But see Vadakin v. Crilly, 7 C. C, (N. S.) 341 (aff'd 73 O. S. 380). Non resident taxpayer. — A tax- payer, though a non-resident, may sue under §§ 1777 and 1778 R. 8. McClain v. McKisson, 15 C. C. 517 ; (affirmed, 54 0. S. 673). Prosecuting error. — Taxpayer may, upon refusal of solicitor, after request, in case brought under § 1777, prosecute error himself. The right to do so is within the spirit of §§ 1777 and 1778. Pugh v. Elec- tric Light Co., 19 C. C. 594. Pleading and practice. — Charac- ter of Petition. — The action must be brought by the taxpayer for the use of the municipal corporation and not in his own behalf as tax- payer. Hensly v. Hamilton, 3 C. C. 201; Wood v. Pleasant Ridge, 12 C. C. 177; Hallock v. Columbus, 13 Dec. 488; 1 N. P. (N. S.) 205; and this is so when the solicitor brings the suit for the taxpayer. Miller v. Pearce, 2 C. S. C. R. 44, 51. Capacity of plaintiff to sue in a taxpayer's action must appear in the petition, and a mere allegation that he is a resident and taxpayer of the municipality without aver- ring that the suit is brought on be- half of the corporation is bad on demurrer; but this omission may be remedied by amendment by inter- lineation. State v. Hinkle, 13 Dec. 165; Shaw v. Jones, 4 N. P. 372. But the caption of the petition need not show that plaintiff is a tax- payer. Ampt v. Cincinnati, 5 N. P. 98. Where an injunction is brought to prevent the carrying out of the ob- ject of legislation on the ground that the legislation was not enact- ed in good faith, it is not sufficient to aver that trading of votes and persuasion of one member induced others to vote as they did. Mills v. Norwood, 26 B. 348. A mere averment that a certain bidder for a municipal contract was the lowest and that a certain other bidder was not the lowest and that the contract was awarded to the latter, does not, standing alone, state a cause of action. Cop- pin v. Herrmann, 7 N. P. 528 (affirmed, 63 O. S. 572). Plaintiff in an action in man- Code § 137] ORGANIZATION OF CITIES. SOLICITOR. 347 damus to compel the performance of a public duty is not required to plead or prove more than that the defendant officer is refusing to dis- charge a duty imposed upon him by law. State v. Hinkle, 13 Dec. 165. Petition asking court to restrain alleged illegal payments to a water company, when raises issue of va- lidity of contract with such com- pany, see Defiance v. Council, 23 C. C. 96 (reversed other grounds, 68 O. S. 520). Demurrer to petition on ground that plaintiff has not capacity to maintain the action, raises the ques- tion as to whether the action comes within scope of sections under which it is brought. Nicholson v. Maile, 15 Dec. 682; 3 N. P. (fc. 6.) 201. Where it is shown that the injury complained of is not threatened, in- junction will not lie. Fritter v. Bohl, 2 N. P. (N. S.) 365. Parties. — Two taxpayers may join in the same suit for injunc- tion. Mathers v. Cincinnati, 3 B. 551. The city and not council or offi- cers should be made defendant in an action to enforce the duty of council or other boards to keep the streets free from obstruction. Her- rick v. Cleveland, 7 C. C. 470. City need not be made a party where the action is to enjoin award- ing the grant of a street railway route to one not the lowest bidder. Knorr v. Miller, 25 B. 128; 27 B. 64. A successful bidder who received the award sought to be enjoined, should be made a party defendant. Fergus v. Columbus, 6 N. P. 82. So, a company claiming under the grant or ordinance sought to be en- joined should be made a party. Ampt v. Cincinnati, 6 N. P. 401. Situs. — Where a municipality is situated in two counties local ac- tions must be brought in the county where its municipal officers and gov- ernment are located. Fostoria v. Fox, 60 O. S. 340. (3) Request to solicitor. — Tax- payer cannot sue until he has re- quested the solicitor to sue and the solicitor has refused. Findlay Gas Light Co. v. Findlay, 2 C. C. 237. Request must be made, even though it would probably be futile. lb. And though the suit is to enjoin an act wholly beyond the power of the municipality. lb. Request by another taxpayer af- ter suit brought, will not be suffi- cient, lb. The petition should show request to solicitor and his refusal, but omission may be cured by amend- ment. Brown v. Toledo, 10 C. & 642. As to length of time solicitor may hold request without response be- fore it can be said he has neglected to act, see Ampt v. Cincinnati, 2 N. P. (N. S.) 489; 15 Dec. 237. Sec. 1779 R. S. [Duty of court; costs.] 1 If the court hearing such case is satisfied that such taxpayer had good cause to be- lieve that his allegations were well founded, or if the same is sufficient in law, it shall make such order as the equity and justice of the case demand ; 2 and in such case the taxpayer shall be allowed his costs ; provided that if judgment is finally ordered in favor of such taxpayer he may be allowed as part oi the costs a reasonable compensation for his attorney. 3 [95 v. 31,7; 66 v. 175, § 161; (S. & C. 1559).] (1) Section given as amended in 95 O. L. 317. See note (1) to § 1778 R. S., p. 343. (2) Decree. — Under the power to make such order as equity de- mands, the court cannot annex a 348 THE OHIO MUNICIPAL CODE. [Code § 13' taxpayer affects the question of his rights to costs and attorney's fees, see Brown v. Toledo, 10 C. C. 642; Peppard v. Cincinnati, 6 N. P. 57. Attorney's fees. — Under former § 1779, before amendment in 95 O. L. 317, the taxpayer was entitled to his costs and compensation to his attorney if he had good cause to believe his allegations were well- founded or if the same were in fact sufficient. The taxpayer may now be allowed attorney's fees only in case final judgment is rendered in his favor. Tn villages where there is no vil- lage solicitor, a taxpayer bringing an action under §§ 1777 and 1778 is not entitled to have attorney's fees included in the costs allowed him. Kissell v. Columbus Grove, 34 B. 50; 53 O. S. 650; Brundige v. Ash- ley, 62 O. S. 526. The amount of attorney's fees allowed, should be measured by what public officers receive, rather than by what an attorney in private practice would receive for the same service. Guckenberger v. Dexter, 18 C. C. 244. Sec. 1780 U.S. [Annual report.] He shall make a report annually to the council, at their first regular meeting in April, of the business of his office, and the moneys by him collected, during the year preceding the first day of April, and such other matters as he may deem proper, in order to promote the good government and welfare of the corporation. [66 v. 175, § 162.] Sec. 1813 R. S. [Prosecuting attorney and assistants.] The prosecuting attorney of the police court shall prosecute all cases brought before such court, and perform the same duties, as far as the same are applicable to the police court, as re- quired of the prosecuting attorney of the county; and except in cities of the first grade of the first class, the prosecuting at- torney may appoint not to exceed three -assistants who shall be assistant prosecuting attorneys of the police court, and per- form the same duties, so far as applicable to the police court as performed by the prosecuting attorney of the police court condition to its decree, enjoining an illegal award, that the city pay for work already done. Hertenstein v. Herrmann, 6 N. P. 93, 99. This section contemplates that the court is not to be bound by hard and fast rules, and a taxpayer is not entitled to relief where he seeks to compel the city to do what is manifestly inequitable and unjust. Friedman v. Cincinnati, 13 Dec. 404; Fergus v. Columbus, 6 N. P. 82, 93. Injunction pendente lite not granted where exercise of power by company under ordinance will be beneficial to city and no rights will be prejudiced thereby. Ross v. Co- lumbus, 8 N. P. 420. (3) Costs and fees. — If suit was founded on defects and irreg- ularities that might reasonably seem to justify it, court may appor- tion costs. Sloane v. People's Elec- tric Ry., 7 C. C. 84, 94. The taxpayer must show reasona- ble cause for suit, to claim costs. Miller v. Pearce, 2 C. S. C. R. 44. As to whether the motive of the Code §137] ORGANIZATION OF CITIES. SOLICITOR. 849 The persons thus appointed shall be subject to the approval of the city council and such assistants shall receive for their ser- vices in city cases such salaries as the council may prescribe, and the county commissioners may allow such further compensation as they deem proper. 1 [95 v. 86; 84 v. 26,«28; 66 v. 179, § 191; (S. & C. 1536).] ( 1 ) Section as amended. — This an exception in case of a grade and section is given as amended April 2, class of cities, see note " Grades and 1902, as under § 212 of the Code, classes under new Code," under § when a section is incorporated, an 1599 R. S., page 31 ; and see State amendment to it continues in effect, ex rel. v. Baker, 55 O. S. 1, and see though not mentioned. But as to note to § 190 of the Code, the effect of the provision making Sec. 1815 R. S. [Inability or absence of prosecuting attorney; substitute.] When there is a temporary inability or absence of such prosecuting attorney, or a vacancy of the office by resigna- tion, death, or otherwise, the judge of the police court, or if there be more than one judge of said court, then the judges thereof, shall appoint some competent member of the bar to per- form the duties of the office, 1 such appointee shall act until the removal of the inability, or the return of such prosecuting attor- ney, and in case of vacancy until his successor shall be elected at the next annual municipal election and has duly qualified. Said appointee shall qualify in the same manner, shall have the same power and authority to discharge the same duties, be sub- ject to the same liabilities, and shall receive the same salary as the officer whom said appointee secceeds [succeeds] ; but in case of inability or temporary absence of such prosecutor the judge may deduct such amount from the salary of such prose- cuting attorney. [94 v. 69; Kev. Stat, of 1880; 66 v. 179, § 193.] ( 1 ) Defective appointment. — prosecuting attorney is absent, as a Where the judge has erred in mak- condition precedent to appointment ing the appointment of an acting of an acting prosecutor, is not con- prosecutor, such appointee is never- elusive of the fact, in a suit by the theless, a de facto officer. Ermston appointee for compensation for his v. Cincinnati, 7 N. P. 635. services. lb. The finding of the judge that the 350 the ohio municipal code. [Code §§ 138-140 (b) department of public service. (1) General Administrative Powers. Sec. 138. [Department of public service; directors: number, election, term, qualifications, etc.] * In every city there shall be a department of public service which shall be administered by three or five directors and the number of said directors shall be fixed by ordinance or resolution of council. 2 Such directors shall organize as a board to be known as the " board of public service.' ' Directors of public service shall be elected for a term. of two years and shall serve until their successors are elected and qualified. They shall be electors of the city. They shall make their own rules and all regulations for the administration of affairs under their supervision. (1) Old sections. — Compare sec- §1545-270 (board of city commis- tions relating to "city commission- sioners, Akron and Youngstown) ; ers" in Code of 1852 (50 O. L. 249) § 1707^-2 et seq. (board of public and to "board of improvements" in affairs, Portsmouth) ; 89 O. L. 24 Code of 1869 (66 O. L. 233); also (board of improvements, Ravenna), § 2186 R. S. et seq. and §(1545-35) and other similar acts, all repealed. et seq. R. S. (director of public (2) Form of ordinance or works, Cleveland); §(1545-143) et resolution fixing the number of di- seq. R. S. (director of public works, rectors of public service, see that Columbus); §(1545-240) et seq. R. given under §117 of the Code, p. S. (board of public affairs, Spring- 307. field); §(1545-296) R. S. (depart- Constitutionality of provision ments of public improvements and authorizing council to determine public works, Hamilton > ; §2205 et number of directors of public serv- seq. R. S. (board of public service, ice, affirmed. Zumstein v. Mullen, Cincinnati); § 1707d-l et seq. 67 O. S. 38. (board of city affairs, Dayton) ; Sec. 139. [General powers of board.] 3 The directors of pub- lic service shall be the chief administrative authority of the city, and shall manage and supervise all public works and all pub- lic institutions, except whene otherwise provided in this act. ( 1 ) Old sections.— Compare old (1545-296) R. S. (Hamilton); §§ (1545-37) R. S. (Cleveland) (1545-145) R. S. (Columbus) (1545-247) R. S. (Springfield) (2212) R. S. (Cincinnati) and see § 2192 R. S., all repealed. Sec. 140. [Powers and duties.] 1 The directors of public service shall supervise the improvement and repair of streets, Code §141] cities, dep't of public service. 351 avenues, alleys, lands, lanes, squares, wharves, docks, land- ings, market houses, bridges, viaducts, aqueducts, sidewalks, sewers, drains, ditches, culverts, ship channels, streams and wa- ter courses; the lighting, sprinkling and cleaning of all pub- lic places, and the construction of all public improvements and public works, except as otherwise provided in this act. 2 ( 1 ) Old sections. — See note un- The powers of such a board as this, der § 139, supra, and see §§ 2207 as prescribed by the statutory pro- 8 ' „ , . , , visions, are to be strictly construed, and 2187 R. S., both repealed. It has only such powers as are e x- (2) Council has control and pressly conferred and such as may care of the streets, while the board arise by fair implication "because es- of public service supervises the im- sential to _, c J r * out , the * X P£* S F F powers. State ex rel. v. Boyden, provement of streets. See § 28 of 4 N p 32 2. See also as to con- the Code. struction of powers of municipal The authority to make appropria- officers, Bloom v. Xenia, 32 O. S. tion for improving streets is vested 461; Ravenna v. Penn. Co., 45 0. in council, but the supervision and S. 118; Buchanan Bridge Co. v. manner of doing the work are with Campbell, 60 O. S. 406 ; Comstock the Board of Public Service. State v. Nelsonville, 61 O. S. 288; Lan- ex rel. v. Roebuck, 15 Dec. 400. caster v. Miller, 58 O. S. 558 ; Wells- Powers strictly construed.- ton v ' Mor S an ' 65 °' S ' 219 ' Sec. 141. [Powers and duties.] 1 The directors of public ser- vice shall have the management of all municipal water, lighting and heating plants, parks, baths, market houses, ceme- teries, crematories, sewage disposal plants and farms, as well as all public buildings and other property of the corporation not otherwise provided for herein. 2 Said directors of public service shall also manage and con- trol all houses of refuge and correction, workhouses, city farm schools, infirmaries, hospitals, pest houses and all other chari- table and reformatory institutions now or hereafter established or maintained by any city; and in the control and supervision of such institutions said directors of public service shall be gov- erned by the provisions, so far as the same are consistent with this act, of sections 2050, 2051, 2052, 2053, 2053-1, 2053-2, 2054, 2055, 2056, 2057, 2058, 2059, 2060, 2061, 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070, 2071, 2072, 2073, 2074, 2075, 2076, 2077, 2078, 2081, 2092, 2093, 2094, 2099, 352 the ohio municipal code. [Code §141 2100, 2102, 2105, 2106, 2165, 2168, 2169, 2171 and 2172 of the Kevised Statutes of Ohio. (1) Old sections. — See notes to parks, see Cincinnati v. University, §§139 and 140, supra. 13 Dec. 284. (2) Scope of power. — As to (£) Houses of Refuge. 1 Sec. 2050 It. S. [When infants received.] The board 2 may, at its discretion, receive into such institution 3 infants under the age of sixteen years, committed to their custody in either of the following modes, to wit : 1. Infants committed by the mayor of the corporation, or any judge or justice of the peace of the county, on complaint and due proof by the parent, guardian, or next friend of such in- fant, that, by reason of incorrigible or vicious conduct, such infant has rendered his control beyond the power of such parent, guardian, or next friend, and made it manifestly requi- site that, from regard to the future welfare of such infant, and for the protection of society, he should be placed under the guardianship of the board of directors of such house of refuge and correction. 2. Infants committed by the authorities aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the directors of such institution, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity of the parent, guardian, or next friend, in whose custody such infant may be, or other cause, such parent, guardian, or next friend is incapable or unwilling to exercise the proper care and dis- cipline over such incorrigible or vicious infant. 3. Infants who are without a suitable home and adequate means of obtaining an honest living, or who are in danger of being brought up to lead an idle or immoral life, may be committed to the guardianship of the directors of such insti- tution, by the trustees of any township within the county in which such institution is situated, or by the mother, when the father is dead, or has abandoned his family, or does not pro- vide for their support, or is an habitual drunkard. 4 [66 v. 189, § 238.] (1) Former provisions relating except £g 2081 and 2090, are repealed. to houses of refuge, embraced §§ § 2081 is re-enacted in § 141 of the 2031 to (2090-7) R. S., inclusive, Code and § 2090 is made ineffective beina subdivisions I and II of Chap- by repeal of other sections. 6, Div. 5, Title 12. Of these, §§ Sections 2083 to (2090-7) R. S., 2031 to 2049 R. 8., inclusive, and inclusive, were provisions relating §§ 2079 to (2090-7) R. S., inclusive. Code §141] cities, dep't or public service. 353 to houses of refuge " heretofore es- tablished," meaning before May 7, 1869, and applied only to such as were established before that date. See House of Refuge v. Ryan, 37 0. S. 197. Now, however, the statutes re- enacted in the Code will apply to all houses of refuge. Power to establish houses of refuge and to maintain them wa3 formerly given in § 2031 R. S., re- pealed. This power is now con- ferred upon all municipalities in paragraph 20 of § 7 of the Code, page 59. (2) Board, referred to here, was, under the old sections, the " board of directors of the house of refuge and correction " mentioned in old section 2032 R. S., repealed. But as the control of houses of refuge is now given to the board of public service (§ 141, supra) the word " board " or the word " directors " where either occurs in this or sub- sequent sections on this subject, must be taken to refer to the board or directors of public service. ( 3 ) Institution here means house of refuge. This is made plain by the old sections (now repealed) preceding § 2050 R. S. (4) Validity. — As to the consti- tutionality of a statute such as this, see Prescott v. State, 19 O. S. 184; House of Refuge v. Ryan, 37 O. S. 197, 204. Support of infants. — Infants committed to a house of refuge and correction under § 2050 R. S. for " incorrigible conduct," are not committed " for offenses against a law of the State " within the mean- ing of § 2071 R. S., infra, and hence they must be supported as provided in § 2072 R. S., infra, and not by the county. State v. Schlatterbeck, 39 O. S. 268. Construction.— § 2050 R. S. pro- vides that the board may at its discretion, receive infants commit- ted for incorrigible conduct, etc.; §§ 2051, 2052 and 2053 R. S. infra, provide for commitment of such in- fants, convicted of crimes and of- fenses. House of Refuge v. Ryan, 37 O. S. 197. Sec. 2051 E. S. [Infants may be confined after conviction.] An infant under the age of sixteen years, convicted of a mis- demeanor, or an offense punishable by imprisonment under an ordinance of the city, or who has been ordered to be commit- ted as prescribed in the last section, may be confined in such house of refuge and correction, under such rules and regulations as the directors * may prescribe ; and the directors shall re- ceive and take charge of any children committed to their cus- tody by any court or officer, under a law of the stete. [67 v. 75, § 239; (S. & C. 689).] ( 1 ) Directors here must be taken to mean the directors of public service. See note 2050 R. S., supra. (2) under § Sec, 2052 R. S. [When infant may be put to hard labor.] A minor, over the age of sixteen years, convicted of a violation of any ordinance, and liable to be punished therefor by imprison- 854 the ohio municipal code. [Code §141 ment, or who may be liable to imprisonment for neglect or refusal to pay a fine imposed for the violation of an ordinance, may, in lieu thereof, be committed to the house of refuge and correction, and put to hard labor, in such manner as may be prescribed by ordinance of the council. [66 v. 190, § 240.] Sec. 2053 U.S. [Confinement of infants until of age.] Any infant, under the age of sixteen years, who may be liable to confinement in the jail in any county in which a house of refuge and correction is situated, or in the penitentiary of the state from such county, or at the reform farm, may, at the discretion of the court, or magistrate, giving sentence, be placed in such institution until of legal age, under the exclu- sive control and "guardianship of the directors thereof. \_QQ v. 190, § 241.] Sec. 2053 — 1 R. S. [Authority to commit children to houses of refuge; proviso.] All courts or officers, who, by virtue of law now in force or hereafter to be enacted, have authority to com- mit infants to the care and guardianship of boards of directors of houses of refuge, or to the board of commissioners for re- form schools, shall have the same power to commit such infants to the care and guardianship of the board of directors 1 of any house of refuge and correction in the state of Ohio, oi> ganized and erected by a municipal corporation with which the state of Ohio shall have made arrangements for the custody and care of such infants, that they now have to commit such youth, either to the custody of the board of commissioners of reform schools, or the directors of any house of refuge, whether such house of refuge and correction be located within the county where such commitment is made or not; provided, that all youths committed to any house of refuge under the provisions of this act who shall be, or whose parents or guardians shall be at the time of such commitment resident of any city or municipal corporation where such house of refuge is located, shall be kept and maintained at the expense of such city or municipal corporation. [73 v. 143.] (1) See note (2) to § 2050 E,. S., supra. Sec. 2053 — 2 It. S. [Boards in municipalities may receive children.] It shall be lawful for the board of directors 1 of any house of refuge and correction situate in any municipal corporation, with which the state of Ohio shall have made arrangements for the custody and guardianship of infants un- Code §141] cities, dep't of public service. 355 der the age of sixteen years, as provided in the preceding sec- tion, to receive into their care and guardianship all such in- fants committed to their custody. [73 v. 143.] (1) See note (2) to § 2050 R. S., supra. Sec. 2054 R. S. [Commitment on recommendation of grand jury.] If accusation of the commission of a crime is made against an infant under the age of sixteen years, before the grand jury of the county in which such house of refuge and correction is situated, and the charge appears to be supported by evidence sufficient to put the accused upon trial, the grand jury may, in its discretion, instead of finding an indictment against the accused, return to the court that it appears to them that the accused is a suitable person to be committed to the guardianship of the directors of the house of refuge and correction, and the court shall thereupon, on notice to the minor, and an opportunity to be heard, but without a jury, order such commitment 1 [66 v. 190, § 242; (S. & C. 690).] (1) Validity. — This section was Art. I. of the Constitution. Pres- held not repugnant to § 5 or § 10, cott v. State, 19 O. S. 184. Sec. 2055 R. S. [Commitment by court in certain cases.] If an infant, under the age of sixteen years, be arraigned for trial in a court having criminal jurisdiction in a county in which a house of refuge and correction is situated, on a charge of a violation of any criminal law of this state, or ordinance of the corporation, the judge may, with the consent of the accused, arrest, at any stage of the cause, further proceedings upon the part of the prosecution, and commit the accused to the guardianship of the directors * of such institution. [6Q v. 190, § 243: ( S. & C. 690).] (1) See note (2) to § 2050 R. S., supra. Sec. 2056 R. S. [Infants entitled to private examination and trial.] Infants under the age of sixteen years who are accused of an offen3e punishable by imprisonment in a county in which a house of refuge and correction is situated, shall be entitled to a private examination and trial, to which only the parties shall be admitted, unless one of the parents, the guardian, or other legal representative demands a public trial, in which cqse all proceedings shall be in the usual form. [66 v. 191, § 244; (S. &C. 690).] 356 the ohio municipal code. [Code §141 Sec. 2057 E. S. [Infants placed in refuge instead of jail.] An infant under the age of sixteen years who is committed for trial, or as a witness, in a county in which a house of refuge and correction is situated, shall be placed in such institution subject to the order of the court making such commitment, and in no case in the county jail. [66 v. 191, § 245; (S. & C. 690.).] Sec. 2058 R. S. [Disposition when refuge full.] If at any time a house of refuge and correction have as many infants under its charge as can be conveniently accommodated therein, or as many as the funds of such institution are adequate to maintain, the board * shall not be required to receive other infants, but shall order their chief officer to return that fact to any magistrate, court or person authorized to commit, who shall have sent an infant to such institution ; and thereupon the case of such infant shall be disposed of as if this chapter had not been enacted, and as if no proceedings had taken place under it. ]6Q v. 191, § 246; (S. & C. 690).] (1) See note (2) to § 2050 R. S., supra. Sec. 2059 R. S. [Statement of age, residence, cause, etc., to be furnished.] In all cases where an infant is committed to the instruction and discipline of a house of refuge and correction, under the guardianship of the directors * thereof, the court or judge ordering such commitment shall, at the same time, furnish to the directors or officers of such institution a true statement, in writing, of the age of such infant, and the rea- son for such commitment; and until such statement is fur- nished, the directors or officers aforesaid may decline to receive such infant. [6Q v. 191, § 247; (S. & C. 690).] (1) See note (2) to § 2050 R. S., supra. Sec. 2060 R. S. [What record of commitment shall contain.] In all cases where the commitment is ordered by an official person whose proceedings are usually evidenced by a record, or where the occasion of the commitment is* a criminal charge against the infant, no other record shall be made, unless de- manded by the infant, or his parents, or guardian, than that, in substance, such infant (naming him), who, on a day there- in named, was of the age of < years, having been br^u^ht before such court or officer, and the court or officer having ascertained by the testimony of the witnesses therein named. Code §141] CITIES. DEP ? T OF PUBLIC SERVICE. 357 that such infant was a suitable person to be committed to the discipline and instruction of the house of refuge and correc- tion, under the guardianship of the directors thereof, such in- fant was so committed, and delivered to the charge of such directors. [66 v. 191, § 248 ; (S. & C. 690).] Sec. 2061 R. S. [Duration of commitment to reformatory insti- tution; discharge, etc.] No commitment of an infant to a house of refuge and correction shall be for a shorter period than 'til [until] such infant shall be reformed or attain the age of majority except in case of infants committed to await their trial, or as witnesses, and except in such cases as the board may by its general rules, provide ; but any infant by whomso- ever or for whatever cause committed may at any time be discharged upon order of the board, 1 duly entered upon its minutes or may by order of the said board duly entered upon its minutes, be permitted to leave such institution until directed to return thereto by said board or the superintendent of such house; but said permission shall not in any way be construed to be a discharge from the said house and from the guardianship of the board of directors thereof. 2 [1881, April 20: 78 v. 253; Kev. Stat. 1880; 66 v. 191, § 249; (S. & C. 691).] (1) See note (2) to § 2050 R. S., habeas corpus. House of Refuge v. supra. Ryan, 37 O. S. 197, 201. (2) Validity. — A section provid- The father, if an unsuitable per- ing proceedings for and authorizing son, is not entitled to the custody commitment of homeless children is of the child, on the hearing of not repugnant to § 14 or § 16, Art. habeas corpus, on the ground that I of the Constitution of Ohio, as he had no notice of the proceedings the law provides full remedy by under which the child was commit- ted, lb. Sec. 2062 K. S. [How minors emploved.] The board 1 shall have power to place infants committed to its care, during their minority, at such employment for account of the institution or otherwise, and cause them to be instructed in such branches of useful knowledge, as may be suited to their years and capac- ities. [66 v. 192, § 250; (S. & C. 691).] (1) See note (2) to § 2050 R. S., supra. Sec. 2063 U.S. [Board may bind them as apprentices.] The board 1 shall have power, at discretion, to bind out the saio infants committed to its care, with their consent, as appren- tices during their minority, to such persons and at such places 358 the ohio municipal code. [Code §141 to learn such proper trades and employments as in its judgment will be most conducive to their reformation and amendment, jnd as will tend to the future benefit and advantage of such in- fants. [66 v. 192, § 251; (S. & C. 691).] (1) See note (2) to § 2050 R. S., supra. Sec. 2064 R. S. [Committee on indentures.] The board * shall for such purpose, have power to appoint a committee of one or more of its number, with power to execute and deliver, on behalf of the board, indentures of apprenticeship for any infant in such institution whom it may deem a proper person for an apprenticeship ; such indentures shall have the like force and effect as other indentures of apprenticeship under the laws of Ohio ; the indentures shall be filed and kept in the office of such institution, and it shall not be necessary to file or record them in any other place or office. [66 v. 192, § 252; (S. & C. 691).] (1) See note (2) to § 2050 R. S., supra. Sec. 2065 R. S. [When indentures to be canceled.] In case an infant so apprenticed prove untrustworthy and unreformed, the board * may, at its discretion, permit such infant to be re- turned to such house of refuge and correction, to be held in the same manner as before such apprenticeship, and may there- upon order the indentures for such infant to be canceled. [66 v. 192, § 253; (S. & C. 691).] (1) See note (2) to § 2050 R. S., supra. Sec. 2066 R. S. [When indentured infant returned to institu- tion.] If, in the opinion of the board, 1 an infant apprenticed by it has an unsuitable home, or if the person to whom such infant is indentured becomes unfit or incapable to properly raise or take care of such infant, the directors may, at their discre- tion, return such inf ai t to the institution from which it wa* indentured. [66 v. 192, § 254; (S. & C. 691).] (1) See note (2) to § 2050 R. S., supra. Sec. 2067 R. S. [Arrest of fugitives from refuge or apprentice- ship.] A fugitive from a house of refuge and correction, or a fugitive from apprenticeship under indentures executed as Code §141] cities, dep't of public service. 359 above provided, may be arrested and returned to such institu- tion by a sheriff or constable of any county in this state, or police officer of the corporation, or officer of such institution, on the written order of two directors * of such institution, di- rected to such officer, and may be delivered to the custody of such officer of the house of refuge and correction as the directors may name. .[66 v. 192, § 255; (S. & C. 691).] (1) See note (2) to § 2050 R. S., supra. Sec. 2068 R. S, [Stubborn infant: how dealt with.] When an infant is convicted of an offense against the laws of this state, punishable with imprisonment in the penitentiary, or in the jail of the county where such house of refuge and correction is situate, and, under existing laws, is sent to the house of refuge and correction, instead of the penitentiary or jail, and refuses to submit to the rules of the institution, and proves to be stubborn and irreclaimable, in the opinion of a majority of the board, 1 such infant may, by its order, be delivered into the custody of the sheriff of the county, with a written statement of the cause of commitment, and of the conduct and character of such infant, as exhibited in such institution, which state- ment shall be prepared and signed by the superintendent. [66 v. 193 (192), '§ 256.] (1) See note (2) to § 2050 R. S., supra. Sec. 2069 R. S. [Sheriff to notify prosecuting attorney in such case.] It shall be the duty of the sheriff to receive such in- fant into his custody, and file the statement in the office of the clerk of the Court of Common Pleas, or in the office of the clerk of the court in which such infant was tried, and to notify the prosecuting attorney of the county thereof. [66 v. 193, § 257.] Sec. 2070 U.S. [Stubborn infants: final disposition.] The prosecuting attorney on receiving such notice shall cause such infant to be brought before the Court of Common Pleas, ot before the court in which such infant was tried, to receive the sentence which the court deems just, according to the law, foi the offense of which such infant was convicted as aforesaid. [66 v. 193, § 258.] Sec. 2071 R. S. [How expenses shall be paid.] The expense of maintaining infants committed to a house of refuge and 360 the ohio municipal code. [Code §141 correction, by a court or magistrate of the county in which such institution is situated, or by the police or other court of the corporation, for offenses against a law of the state, or for trial, or as a witness, shall be paid by the county; and the expense of infants committed by [township trustees shall be paid by the township, and of those committed by] parents and guardians shall be paid by them, except in cases where the board 1 other- wise determine; all which expense shall be ascertained and fixed by the board. 2 [66 v. 193, § 259 ; (S. & C. 691).] (1) gee note (2) to § 2050 R. S., (2) Support of infants.— See supra. note (4) to § 2050 R. S. supra. Sec. 2072 R. S. [Deficiency: how raised.] The expense of maintaining and administering the affairs of houses of refuge and correction, above the receipts thereof, shall be audited and paid, from time to time, by the council of the corporation; and a tax for such expense shall be levied and collected as a part of the ordinary expenses of the corporation. 1 [66 v. 193, § 260.] (1) See note (4) to § 2050 R. S., supra. Sec. 2073 R. S. [Return to habeas corpus.] It shall be a suf- ficient return to a writ of habeas corpus, directed to any per- son or officer, inquiring into the cause or detention of an infant committed to a house of refuge and correction, that the infant named in the writ, was, on a day therein named, committed to the guardianship of the directors x of the house of refuge and correction, in the city or village of (as the case may be), by the person or officer who executed the commitment, naming him, until such infant should arrive at legal age, and that that period has not arrived ; but the court, nevertheless, or a judge thereof, shall have the power on habeas corpus specified in sec- tion two thousand and sixty-one. [66 v. 193, § 261; (S. & C. 692).] (1) See note (2) to § 2050 R. 8., supra. Sec. 2074 R. S. [Commitment: how far examinable.] Where a commitment has, in fact, been executed by a person author- ized by this chapter 1 to execute it, the existence of the circum- stances justifying its execution shall not be otherwise examin- able than in an action against the directors 2 of such institution, Code §141] cities, dep't of public service. 361 as provided in this chapter ; but the court or judge on habeas corpus shall have the power mentioned in said section two thou- sand and sixty-one. [66 v. 193, § 262 ; (S. & C. 692).] (1) See note (1) to § 2050 R. S. (2) See note (2) to § 2050 R. S., supra. supra. Sec. 2075 R. S. [Aggrieved party may apply to the board.] If a parent, guardian, master .to whom an infant has been appren- ticed, a person occupying the position of parent, protector, or guardian, in fact, or a relative by blood or marriage, not fur- ther remote than first cousin to such infant, feels aggrieved by the commitment of an infant to the directors of a house of refuge and correction, by a person authorized by this chapter 1 to commit such infant, he may make a written application to the board, 2 at such time as the directors, by rule or resolution, provide for hearing applications, not later than the next regular meeting of the board, to have the infant delivered to him; which application shall state the ground of the applicant's claim to the custody of such infant, and the reason for claim- ing such custody. [66 v. 194 (193), § 263; (S. & C. 692).] (1) See note (1) to § 2050 R. & (2) See note (2) to § 2050 R. S., supra. supra. Sec. 2076 It. S. [Decision of application.] Within ten days after hearing such application, the directors 1 shall decide ; and if they be of opinion that the welfare of such infant will be pro- moted by granting the application, they shall make an order to that effect; otherwise they shall decline the application. 2 [66 v. 194, § 264; (S. & C. 692).] (1) See note (2) to § 2050 R. S., of the board at which a majority is supra. present uniting in the action. Eat (2) How order made. — Such parte Walker, 8 B. 198. order should be made at a meeting Sec. 2077 R S. [Action against directors.] The applicant may, if the application be declined, upon first giving security for the payment of costs, commence an action against such di- rectors * in the Court of Common Pleas or Superior Court of the county in which the house is situated, for the recovery of the infant, or his liberation; which action shall be conducted in all respects as actions under the Code of Civil Procedure, except the case shall have precedence of all others in the time of trial. [66 v. 194, § 265 ; (S. & C. 692).] (1) See note (2) to § 2050 R. S., supra. 362 the ohio municipal code. [Code §141 Sec. 2078 R. S. [Costs in such cases.] The costs of such ac- tion shall be paid by the applicant, or out of the county treas- ury, unless the court certify in the journal entry of the judg- ment, that the refusal of the directors * to grant the applica- tion of the plaintiff was plainly unreasonable, or the original commitment manifestly improper and unnecessary, in which case the costs shall be taxed against the party in fault, on notice to him. [66 v. 194, § 266; (S. & C. 692).] (1) See note (2) to § 2050 R. S., supra. Sec. 2081 R. S. [Action against directors : where brought ; service.] Actions may be brought by and against the direc- tors 1 of the house of refuge and correction, before any court of competent jurisdiction ; and process may be served by leaving a copy of the writ with a director, or at the office of such insti- tution, with any officer thereof. [66 v. 194, § 269; (S. & C. 692).] ( 1 ) See note to § 2050 R. S., supra. (3) City Prisons and Station Houses. 1 Sec. 2092 R. S. [Sustenance, etc., for prisoners.] The mar- shal, chief of police, or superintendent, as the case may be, shall provide all persons confined in such prison or station- houses with necessary food during such confinement, and see that such places of confinement are kept clean and made com- fortable for the inmates thereof. [66 v. 186, § 216.] ( 1 ) Former provisions relating tutions," etc., and provides that " in to subject of corporation prisons the control and supervision of such and station houses were contained in institutions said directors of public subdivision 3, Chap. 6, Div. 5, Title service shall be governed by the XII R. 8., §§ 2091-2094 R. 8., in- provisions" of certain sections of elusive, of which only § 2091, giv- the Revised Statutes, among them ing control of such institutions to §§ 2092, 2093 and 2094, referring the marshal or chief of police, is re- to city prisons and station houses, pealed. But see §§ 147, 149 and 166 of the Management of prisons and Code, which confer all power with station houses. — § 141 of the Code respect to the government of the gives to board of public service the police department and the appoint- management and control of all ment of station house keepers upon houses of refuge, workhouses, the mayor and the board of public city farm schools, infirmaries, hos- safety; and see § 154 of the Code pitals, pest houses and " all other which gives to the board of public charitable and reformatory insti- safety certain powers with respect Code §141] cities, dep't of public service. 363 to the erection and repair of station in § '2091 R. S., repealed. This houses. power is conferred upon all munici- Power to establish prisons and palities in paragraph 20 of § 7 of station houses was formerly given the Code, page 59. Sec. 2093 R. S. [Provision therefor by council.] The coun- cil shall provide, by ordinance, for sustaining all persons sen- tenced to or confined in such prison or station-houses, at the expense of the corporation; and on the presentation of bills for food, sustenance, and necessary supplies, to the proper offi- cer, certified by such person as the council may designate, such officer shall audit the same, under such rules and regula- tions as the council may prescribe, and draw his order on the treasurer of the corporation in favor of the officer presenting such bill ; but the amount shall not exceed forty cents a day for any person so confined. [66 v. 186, § 217.] Sec. 2094 R. S. [Disposition of prisoners where there is no work-house.] In corporations in which there is no work- house, the council may, by ordinance, provide for the keeping of persons convicted and sentenced to hard labor, during the term of their imprisonment, at such pLce or places within the corporation as the council may determine. [66 v. 186, § 218.] (Jf.) Work-houses. 1 Sec. 2099 R. S. [Who shall be sentenced to work-house.] When a person over sixteen years of age is convicted of an offense, under the law of the state or an ordinance of a mu- nicipal corporation, and the tribunal before which the convic- tion is had is directed by law to commit the offender to the county jail or corporation prison, the court, mayor, or justice of the peace, as the case may be, shall sentence the offender to the work-house, if there is such house in the county ; provid- ed, that when a commitment is made from a city, village, oi township in the county, other than in the municipality contain- ing such work-house, the council of such city or village, or the trustees of such township, shall transmit with the mittimus a sum of money equal to forty cents per day for the time of such commitment, to be placed in the hands of the superintendent of such work-house, for the care and maintenance of such prison- er. 2 [73 v. 211, § 275.] (1) Former provisions relating R. S., §§ 2095 to (2107-17) R. S., to workhouses were contained in inclusive. Of these §§ 2095 to 209? Subd. 4, Chap. 6, Div. 5, Title XII R. S., inclusive, 2099a to 2099c R 364 the ohio municipal code. [Code § 141 S., inclusive, 2100a, 2100&, 2100a 1 , workhouses in Muskingum county. 2100e, and 2104 R. S.; are repealed For the sections not repealed and by the code, §§ 2107-1 to 2107-17 not expressly re-enacted, see Part inclusive were repealed April 26, II under Charitable and Reform- 1904 (97 O. L. 449). atory Institutions. The sections not specifically re- Power to establish work- enacted by § 141 of the Code, and houses, see paragraph 20 of § 7 not repealed are §§ 2100c (relating of the Code, page 59. to habitual offenders), 2101 (2) Validity. — This section was (prompt commitment and fees), held constitutional in Kimbleawecz 2103 (punishment for escape), v. State, 51 O. S. 228. 2107 (erection of workhouse by city Discretion of court.— It is dis- and county jointly), 2107a (1) cretionary with the court whether a (receiving persons sentenced from minor under the age of sixteen shall other counties), 2107a (2.) to 2107e be confined in the workhouse or (1) (workhouses erected by coun- house of refuge. Ex parte Walker, ties jointly), 2107a (3) to (2107w) 8 B. 198. Sec. 2100 U.S. [Labor of prisoners sentenced to work-house; their discharge.] A person so sentenced shall be received into such work-house, and shall be kept and confined at labor there- in, or if such labor cannot be furnished therein, then such per- son may be employed at hard labor elsewhere within the limits of the corporation where such employment shall be authorized by ordinance, and shall be subject to the rules, regulations and discipline thereof, until the expiration of his sentence, when such person shall be discharged; but no person committed or held in default of the payment of a fine, penalty, or costs of any prosecution, shall be released under the laws providing for the relief of insolvent debtors. 1 [1885, April 9 : 82 v. 117; Kev. Stat. 1880; 66 v. 195, § 276.] ( 1 ) Release of insolvent debtors provided in § 6379 R. S. Sec. 2102 R. S. [Discharge and record thereof; parole; rules and regulations and conditions.] Any board vested by statute with authority to manage any workhouse, now or hereafter established, shall have power to discharge, for good and suffi- cient cause, a person committed to such workhouse ; but a record of all such discharges shall be kept and reported to the council, in the annual report of the board, with a brief statement of the reasons therefor. Said board shall also have power to establish rules and regulations under which, and to specify the Code § 141] CITIES. DEPARTMENT OF PUBLIC SERVICE. 364ft conditions on which, any prisoner may be allowed to go upon parole outside of the buildings and enclosures, but to remain, while on parole, in the legal custody and under the control of said board, and subject at any time to be taken back within the enclosure of said institution ; and full power to enforce such rules, regulations and conditions, and to retake and reimprison any convict so upon parole, is hereby conferred upon said board, whose written order, certified by its secretary, shall be sufficient warrant for all officers named therein to authorize such officers to return to actual custody any conditionally released or paroled prisoner; and it is hereby made the duty of all' officers to execute said order the same as ordinary criminal process ; and said board may employ or authorize any person or persons to see that the conditions of said parole are not violated, and in case of such violation to return to said work- house any such prisoner so violating said parole, and the time between the violation of the conditions of such parole, or con- ditional release (by whatever name), as entered by order of such board on the records of the workhouse and the reimpris- onment or return of such prisoner, shall not be counted as any part or portion of time served under any sentence; and any prisoner at large upon such parole who fails to return to the actual custody of said workhouse as may be specified as one of the conditions of his parole, or commits a fresh crime and is convicted thereof, shall be, on the order of said board, treated as an escaped prisoner and subject to the penalties named in section two thousand one hundred and three (2103) of the Revised Statutes; provided, that no such parole shall be granted by any such board, without previous notice thereof to the trial judge. 1 [97 v. 488; 66 v. 196.] (1) Power to discharge. — an act of humanity as distinguished "Good and sufficient cause" must be from a pardon. Jiha v. Barry, 16 construed to mean a cause which Dec. 33; 3 N. P. (N. S.) 65 (aff'd arises from facts and circumstances Circuit Court without report), which supervene the commitment or The power to discharge is only in did not enter into the conviction or case sentence was imposed by the sentence. Such discharge must be municipal court. lb. Sec. 2105 R. S. [Officers to have police powers.] The super- intendent, assistant superintendent, and guards of the work- house shall have such powers of policemen as may be necessary for the proper performance of the duties of their position. [66 v. 196, § 281.] 365 the ohio municipal code. [Code § 141 Sec. 2106 R. S. [Infants received where there is no house of refuge.] The council of any corporation owning a work-house, but not owning a house of refuge and correction, shall have power to provide for receiving infants into such work-house, in the manner prescribed in subdivision one of this chapter; * and the board of directors of such work-house shall have power to make such rules and regulations in regard to the admission of infants, and their management, as are provided in that sub- division. [66 v. 196, § 282.] (1) Statutes referred to. — tions of this subdivision are re- Subdivision ( 1 ) here referred to enacted and found in " ( 2 ) Houses means the subdivision relating to of Refuge " supra. See note ( 1 ) houses of refuge. Part of the sec- to § 2050 R. S., p. 352. (5) Hospitals. 1 Sec. 2165 R. S. [Board to control hospital, etc.] The board 2 shall have the entire management and control of such hospital, when the same has been completed and ready for use, and of the furnishing thereof, subject to the ordinances of the council, and shal] establish such rules for its government, and the admission of persons to its privileges, as it may deem expe- dient ; and it shall also have power to employ a superintendent, steward, physicians, nurses, and such other employes as it may deem necessary, and fix the compensation of all persons so employed, which compensation shall be subject to the approval of the council. 3 [67 v. 71, § 295.] (1) Former provisions relating Charitable and Reformatory In- to hospitals formed Chap. 3 of Div. stitutions in Part II. §§ (2167- 6, Title XII, R. S., §§ 2153 to 9) to (2167-21) are re-enacted in § (2167-21) R. S. Of these, § 220 of the Code. (2167-3) as amended, 95 O. L. 259, Power to establish hospitals, and §§ (2167-7), (2167-8) are re- see paragraph 16 of § 7 of the pealed. Code, page 55. For sections not re-enacted here (2) Managing board is now the and not repealed, see §§ 2153 to board of public service (§141 of the 2164 R. S., inclusive, §§ 2166 to Code). (2167-2)R.S., inclusive, §§(2167-4) (3) Cited Hauck v. S^te, 45 to (2167-6) R. S., inclusive, under O. S. 439. (6) Infirmaries. 1 Sec. 2168 R. S. [Management of infirmaries. The manage- ment of the affairs of all corporation infirmaries now existing c r Code § 141] CITIES. DEPARTMENT OF PUBLIC SERVICE. 366 which may hereafter be established, arid the care of the in- mates thereof, the erection and enlargement of infirmary build- ings and additions thereto, and the repair and furnishing thereof, the improvement of the grounds therewith connected, and the granting of out-dopr relief to the poor, shall be vested in a board of three directors, which shall be called " the board of infirmary directors ; " 2 provided, that in cities of the second grade of the first class, 3 the board of infirmary directors shall consist of five members, not more than three of whom shall be of the same political party. [1883, March 7 ; 80 v. 46, 47 ; 77 v. 16; Kev. Stat. 1880; 72 v. 76, § 298.] ( 1 ) Former provisions relating word " board " oi the word " di- to infirmaries formed Chap. 4 of rectors " occurs in this and subse- Div. 6, Title XII R. S., §§ 2168 to quent sections on this subject, it (2180-4) R. S. Of these sections, must be taken to mean the board of §§ 2170 and (2170-1) R. S., are public service. repealed. ( 3 ) See note " Grades and classes For sections on the subject not under new Code " under § 1599 R. re-enacted here, and not repealed, S., page 31. see Part II, Charitable and Re- Accounting officer. — The board formatory Institutions, §§ 2173 of infirmary directors held to be an to (2180-4) R. S., inclusive. accounting officer within the mean- (2) Managing board would now ing of § 7075 R. S. Hauck v. State, be the board of public service (§ 45 O. S. 439. 141 of the Code). Whenever the Sec. 2169 U.S. [Location of pest-houses, etc.] The infirm- ary, or the pest-house of the corporation may be located either within or outside of the corporation limits, and the council is authorized to purchase and hold the necessary real estate on which to build the same. 1 [72 v. 76, § 298.] (1) Pest house outside corpo- 518; Lorain v. Rolling, 24 C. C. 82. rate limits can be so located with- Power to establish pest houses out the consent of the township and infirmaries, see paragraph 16 trustees. Lorain v. Rolling, 3 C. of § 7 of the Code, page 55. C. (N. S.) 660, 24 C. C. 82. Power to appropriate property When a nuisance, see Youngstown for, see code § 10, par. 5th, p. 81. Township v. Youngstown, 25 C. C. Sec. 2171 R. S. [To be governed by regulations applicable to hospitals.] In the management of an infirmary, in the care and treatment of the inmates thereof, and in the erection, enlargement, or repair of any building for infirmary purposes, or of any addition thereto, the directors * shall have the same powers, be governed by the same regulations, and perform the same duties, as far as applicable, as are vested in the commis* 367 the oirio municipal code. [Code § 142 sioners of hospitals, as provided in the preceding chapter, 2 and the power of the council in relation to such infirmaries, and the conduct of the directors thereof, shall be the same, so far as applicable, as provided in the chapter in relation to hospitals. [66 v. 200, § 300.] (1) See note (2) to § 2168 R. S., (2) See note (1) to § 2165 R. Si, supra. supra. Sec. 2172 U.S. [Their care for the inmates; separation of sexes, etc.] The directors ' shall further see that the inmates of such infirmary are comfortably provided for and kindly treated ; and they may, whenever deemed necessary, provide for the care and support of the males and females in separate build- ings, or in separate departments of the same building. [66 v. 200, § 301.] (1) See note (2) to § 2168 R. S., supra. (7) Platting Commission, 1 Sec. 142. [Board shall constitute platting commission.] 2 The directors of public service shall also constitute a platting commission for the city, whenever council shall deem it ex- pedient to plat any portion of the territory within the corporate limits in which the necessary or convenient streets, or alleys have not already been accepted by the corporation so as to become public streets ; and such directors, acting as such platting commission, shall have all the powers and perform all the duties conferred or required in sections 2629, 2630, 2631, 2632, 2633, 2634, 2635 and 2636 of the Eevised Statutes of Ohio. (1) Former provisions relating here except §§ 2626, 2627, 2628, to platting commission formed 2637, 2638, and 2639 R. S., which Chap. 12 of Div. 8, Title XII, R. S., are repealed. §§ 2626 to 2639 R. S., inclusive. (2) Old section.— Compare old All these sections are re-enacted § 2626 R. S., repealed. Sec. 2629 E. S. [To employ engineers, assistants, etc.] The commission 1 shall have power to employ an engineer, and such assistants as they may find necessary, and fix their salaries Code § 142] cities, department of public service. 368 within limits to be prescribed by council. [68 v. 36, § 1 ; 71 v. 116, § 1.] (1) Commission used here and taken to mean the board of public in subsequent sections on the sub- service acting as a platting com- ject of platting commission must be mission (§ 142 of Code). Sec. 2630 R. S. [Powers and duties of board.] It shall be the duty of such commission * to cause to be made a plat of the territory which they are ordered to lay out, as soon as the same can be conveniently done, showing the location of the streets and alleys already dedicated, and those proposed; and for the purpose of making the necessary surveys, they shall have power to enter upon all property within the limits of the corporation. [68 v. 36, § 1 ; 71 v. 116, § 1.] ( 1 ) See note ( 1 ) to § 2629 R. S., supra. Sec. 2631 R. S. [Notice of completion of plans to be published and plans exhibited.] When the whole plan, or any portion thereof, is completed, or when the location of any avenue, street, roadway, or alley has been finally determined upon by the commission, 1 a plat of the plan, avenue, street, roadway, or alley, shall be placed in the office of the city civil engineer, for the inspection of persons interested, and notice that it is ready for inspection shall be published in one or more newspapers of general circulation within such municipal corporation, for six consecutive weeks. 2 [68 v. 36, § 1 ; 71 v. 116, § 1.] (1) See note (1) to § 2629 R. S., (2) Publication.— See § 124 of supra. the Code and notes. Sec. 2632 R. S. [Commission to hear objections to plans and make alterations.] During such six weeks the commission * shall hold sessions at least once each week, at the time and place stated in the advertisement, and at such other times and places as it may deem proper, to hear any objections that may be urged against any portion of the plat, or the location of any avenue, street, roadway, or alley; and such alterations may be made as the commission shall deem proper. [68 v. 36, § 1 ; 71 v. 116, § 1.] (1) See note (1) to § 2629 R. S., supra. 369 the ohio municipal code. [Code § 142 Sec. 2633 R. S. [Copies of plans to be deposited in county re- corder's and city engineer's offices.] At the end of the time aforesaid, the commission * shall cause copies of the plat, as finally adopted, to be prepared, and such monuments or marks as it may think proper to be placed on the grounds, and shall deposit one copy, certified to by it, in the office of the county recorder, and another in the office of the city engineer, and such plan shall be deemed and taken to be the regularly adopted plan for streets and alleys in such territory; and no streets or alleys, except those laid down on such plan, shall subsequently be in any way accepted as public streets or alleys by the munici- pal corporation, nor shall any of the public funds be expended in the improvement or repair of streets or alleys subsequently laid out, and not on such plat: provided, however, that noth- ing herein shall be construed to prevent any municipal corpora- tion from exercising the power of condemnation, in any of the cases where it is now or may be hereafter by law authorized to condemn and appropriate property to public use, although it be not shown as a street on such plat. 2 [68 v. 36, § 1 ; 71 v. 116, § L] ( 1 ) See note ( 1 ) to § 2629 R. S., dedication.— See notes to § 2650 supra. R. S., re-enacted in § 28 of the (2) Common law and statutory Code, pp. 127, 128. Sec. 2634 R. S. [Acceptance of plan by owner; dedication of streets, etc.] The owners of any portion of the ground so plat- ted may at any time, by a declaration of their intention so to do, properly acknowledged and recorded in the county recorder's office, accept such plan so far as it concerns their property; and such acceptance, or the selling of lots referring to the plan, or the streets and alleys therein laid out, shall be a statutory dedication of the streets and alleys in the property described in the acceptance, or of the streets or alleys called for in the description of the lots so sold, so far as the grantor has a right to dedicate the same. 1 [68 v. 37, § 2.] ( 1 ) Common law and statutory . R. S., re-enacted in § 28 of the dedication. — See notes to § 2650 Code, pp. 127, 128. Sec. 2635 R. S. [Joint commission by adjoining municipal cor- porations.] When municipal corporations adjoin each other, it shall be lawful for the councils of such municipal corporations to agree, in any manner they may determine, upon the appoint- Code § 143] .cities, department of public service. 370 ment of a joint commission * for the purposes of this chapter; 2 and such commission, when appointed, shall have all the power over the territory of the municipal corporations described in the resolutions of the councils, that is hereby given to a commission appointed by a single council. [68 v. 37, § 3.] ( 1 ) Joint commission. — As to mission to the board of public strv- whether the provision for appoint- ice exclusively, quere. ing a joint commission is consistent See note (1) to § 2533 R. S., with the provisions of the Code giv- page 73. ing the powers of a platting com- (2) See note (1) to § 142 of the Code, supra. Sec. 2636. [Amendment of plans.] Plans can be amended after adoption, by like proceedings by which they were origin- ally adopted. [68 v. 37, § 5.] (8) Contracts by the Board of Public Service. Sec. 143. [As to contracts.] 1 The directors of public service may make any contract or purchase supplies or material or provide labor for any work under the supervision of that de- partment not involving more than five hundred dollars ($500). 2 When any expenditure within said department, other than the compensation of persons employed therein, exceeds five hundred dollars, such expenditure shall first be authorized and directed by ordinance of council and when so authorized and directed, the directors of public service shall make a writ- ten contract 3 with the lowest and best bidder 4 after adver- tisement for not less than two nor more than four consecu- tive weeks 5 in a newspaper of general circulation within the city. 6 The bids shall be opened at 12 o'clock noon, on the last day for filing the same by the clerk of such department of pub- lic service and publicly read by him. Each bid shall contain the full name of every person or company interested in the same, and shall be accompanied by a sufficient bond 7 or certi- fied check on some solvent bank, that if the bid is accepted a contract will be entered into and the performance of it properly 371 the ohio municipal code. [Code § 143 secured. If the work bid for embraces both labor and ma- terial they shall be separately stated with the price thereof. Tlie board may reject any and all bids. 8 The contract shall be between the corporation and the bidder, and the corporation shall pay the contract price in cash. Where a bonus is offered for completion of contract prior to a specified date, the depart- ment may exact a prorated penalty in like sum for every day of delay beyond a specified date. Where there is reason to believe there is collusion or combination among bidders, the bids of those concerned therein, shall be rejected. 9 [Alterations or modifications in contract.] Whenever it be- comes necessary in the opinion of the directors of the appro- priate department in cities, or of the council in villages, in the prosecution of any work or improvement under contract to make alterations or modifications in such contract, such al- terations or modifications shall only be made by such direct- ors in cities or council in villages, by resolution, but such resolution shall be of no effect until the price to be paid for the work and material^ or both, under the altered or modified con- tract, has been agreed upon in writing and signed by the con- tractor, and the mayor in villages, and the directors of the appropriate department in cities, on behalf of the corporation ; and no contractor shall be allowed to recover anything for work or material, caused by any alteration or modification, unless such contract is made as aforesaid; nor shall he, in any case, be allowed, or recover for such work and material, or either, more than the agreed price. 10 The provisions of section 794 of the Revised Statutes of Ohio, so far as the same may apply, shall remain in full force and effect. (1) Old sections. — Among the pealed (contracts by board of pub- old sections embodying provisions lie service in Cincinnati) ; 2224 R. similar to those in the section S., repealed (changes in such con- above, see § 2303 R. S., repealed; tracts, how made) ; §§ (1545-73) to and see §§ 2214 and 2215 R. S., re- (1545-79), all repealed (contracts Code § 143] cities, department op public service. 372 in Cleveland); §§(1545-150) to (1545-155) R. S., and 95 O. L. 266- 270, all repealed (contracts in Co- lumbus) ; § (1707d-9) R. S., re- pealed (contracts by board of city affairs in Dayton); §(1545-319) R. S., repealed (contracts by board of control in Hamilton); §(1545- 249) R. S., repealed (contracts by board of public affairs in Spring- field) ; §(1545-280) R. S., repealed (contracts by board of city commis- sioners in Youngstown and Akron) ; and see old §§ 1693 R. S. and 2690; R. S., repealed. Delegation of power. — The power to make public contracts can- not be delegated by one board or officer to another. Knauss v. Co- lumbus, 13 Dec. 200. But allowing engineer to deter- mine engineering matters with re- gard to bids is not a taking away of powers from the board. The engi- neer in such case is acting as agent. Ampt v. Cincinnati, 17 C. C. 516 (affirmed 60 O. S. 621). Municipality's liability on contract. — There is no implied li- ability ex contractu of a municipal- ity, and it can become obligated only in the manner fixed by statute. Wellston v. Morgan, 65 O. S. 219; see also McCloud v. Columbus, 54 O. S. 439; Lancaster v. Miller, 58 O. S. 558; Buchanan Bridge Co. v. Campbell, 60 O. S. 406; Comstock v. Nelsonville, 61 O. S. 288. See further note 6, p. 44, and note 2, p. 351. To state a good cause of action against a municipality in matters ex contractu the petition must de- clare upon a contract, agreement, obligation or appropriation made and entered into according to stat- ute. A petition on an account mere- ly or quantum meruit, in such cases is not sufficient. Wellston v. Mor- gan, 65 O. S. 219. Persons dealing with a municipal corporation must ascertain at their own peril that contract is made in accordance with statute. Wellston v. Morgan, 65 O. S. 219. Where a bidder has received a contract awarded illegally he must be held to have assumed the risks of a decision declaring the award invalid. Hertenstein v. Herrmann, 6 N. P. 93. Where the contract is illegal, the court has no authority to decree payment for the part performed. lb. Estoppel. — Where a municipal corporation has entered into a con- tract with an individual under and by virtue of a statute which is un- constitutional and the subject mat- ter of the contract is not ultra vires illegal or malum prohibitum, and the facts are such as against the corporation as would estop an indi- vidual from setting up as a defense the unconstitutionality of the stat- ute, the municipal corporation will also be so estopped. Mt. Vernon v. State, 71 O. S. 428. So where the municipality has proceeded, not in accordance with the statutes governing its action, but the subject matter is within its power, it may be estopped as an in- dividual would be estopped. Mc- Gonigalev. Defiance, 15 O. F. D. 100; Raynolds v. Cleveland, 8 C. C. (N. S.) 278; but see Lancaster v. Miller, 58 O. S. 558. So contract to supply municipal- ity with water tor period of thirty years without vote of the people, when statute required such vote, was held to estop municipality from denying its liability for period dur- ing which it has power to contract without a vote of the people. Mc- Gonigale v. Defiance, 15 O. F. D. 100. Form of action. — A controversy between a municipality and an in- dividual, parties to a contract, as to 372a THE OHIO MUNICIPAL CODE. [Code § 143 their respective rights under the contract, cannot be determined in proceedings in mandamus. Mt. Ver- non v. State, 71 O. S. 428. (2) Contract less than $500, for street improvement, may be let to lowest bidder, in discretion of board, but council cannot require such contract to be so let. State ex rel. v. Roebuck, 15 Dec. 400. Splitting up contract. — The board cannot split up a contract involving altogether more than $500 and let it in parts in successive awards, so as to evade the requirements of ad- vertisement, etc. Wing v. Cleve- land, 15 B. 50; Lancaster v. Miller, 58 O. S. 558; but where the board has, in good faith, elected to regard the construction of each section of an improvement as a matter distinct and independent, and has proceed- ed to contract separately for each section, each involving an expendi- ture of less than five hundred dol- lars, advertisements for bids would not be necessary. Lancaster v. Mil- ler, 58 O. S. 558. (3) Extent of power in mak- ing contracts. — The power con- ferred upon the board of public ser- vice is not simply to execute the contract, but to enter into it; the contract is merely authorized by council; it is made and entered into by the board of public service. Yar- yan v. Toledo, 28 C. C. 259; 8 C. C. (N. S.) 1. The board may prepare plans, es- timates, etc., for a contract, and this is not the exercise of legisla- tive power and is not conferred on council. 76. The board may properly make the contract for street improvement, though council has only designated in general terms the character of materials and the board is required to choose the particular material to be used, after bids are received. Scott v. Hamilton, 7 C. C. (N. S.) 493. A contract for part of a system of improvements is not invalidated be- cause the entire system % will cost more than council has appropriated. Yaryan v. Toledo, 28 C. C. 259; 8 C. C. (N. S.) 1. (4) Discretion conferred. — A power given the board to make a contract "with the lowest and best bidder" confers on such board a dis- cretion to determine which is the lowest and best bidder under all the circumstances, and this discretion cannot be interfered with by the court, in the absence of fraud or gross abuse. Scott v. Hamilton, V C. C. (N. S.) 493; State ex rel. Walton v. Herrmann, 63 O. S. 440 ; Coppin v. Herrmann, 7 N. P. 6 (aff'd 63 O. S. 572); Hubbard v. San- dusky, 9 C. C. 638 ; McClain v. Mc- Kisson, 15 C. C. 517; Coppin v. Herrmann, 6 N. P. 452; State v. Board of Education, 6 N. P. 347; Irwin v. Greenville, 1 Dayton 140; Columbus v. Board of P. S., 14 Dec. 715. The board is permitted under this section, to take the best proposition offered, and may take into consid- eration the quality, efficiency and feasibility of the thing to be fur- nished, the qualifications and re- sponsibility of the bidder and the price in view of all the other con- siderations. Yaryan v. Toledo, 28 C. C. 259; 8 C. C. (N. S.) 1; State el rel. v. Board, 4 C. C. 76. And it may decide to accept a higher priced article than the one named in the lowest bid, where advertisement was general enough to cover different kinds of material. State ex rel. v. St. Bernard, 10 C. C. 74; State ex rel. v. Bd. of Ed., 20 B. 156. But the discretion is a "sound Code § 143] cities, department of public service. 373 discretion," — a power to make a de- termination based on facts, after in- vestigation, and not a power to make a merely arbitrary determina- tion. Coppin v. Herrmann, 7 N. P. 528. To authorize a court to interfere on the ground of the insufficiency of the price received for sale of public property, the price must have been so small that the sale amount- ed to a reckless and improvident act. Kerlin Bros. v. Toledo, 20 C. C. 603. Where board finds that the low- est bidder is not reliable, it may accept the next lowest bid, and court will not interfere with this discretion, although it was not cor- rect on the facts. State ex rel. v. St. Bernard, 10 C. C. 74. But where the best bidder refuses to accept the contract, an award cannot be made to a third party, agreeing to accept it at the same price unless there is a readvertise- ment, etc. Franklin v. Baird, 7 N. P. 571. As to discretion of public officers in general, in the letting of con- tracts, see Boren v. Commr's, 21 O. S. 311; State v. Commr's, 36 O. S. 326; Pugh Printing Co. v. Deputy State Supervisors, etc., 22 C. C. 584; Wood Co. v. Pargillis, 10 C. C. 376; State v. Directors, 5 0. S. 234; State v. Commission- ers, 18 O. S. 386, 20 O. S. 425; State v. Yeatman, 22 O. S. 546. Sec. 143 of the Code controls and supersedes § 794 R. S. in consider- ing discretion of board in awarding contract to lowest and best bidder. Yaryan v. Toledo, 28 C. C. 259; 8 C. C. (N. S.) 1; and it supersedes § 799 R. S. Holbrook v. Toledo, 28 C. C. 284; 8 C. C. (N. S.) 31 (aff'd 73 O. S. 400). Remedy of bidder. — Unsuc- cessful bidder cannot as such enjoin the awarding of the contract to suc- cessful bidder. His only remedy if he can show the contract has been improperly awarded is to sue as a taxpayer. Carmichael & Co. v. Mc- Court, 27 C. C. 775; 6 C. C. (N. S.) 591. See also Akron v. France, 24 C. C. 63. Petition must allege that sucess- ful bid was not lowest and best. Columbus v. Board, 14 Dec. 715. Regularity of bids. — The bid to be valid must conform to the terms of the advertisement, and if it does not do so, no contract can be award- ed on it. State ex rel. v. Cincinnati, 1 N. P. 377. Where advertisement asked for bids for stone for a reservoir and the bid was for stone and grading, an award on such bid is illegal. Miller v. Pearce, 2 C. S. C. R. 44. The officers would have no discre- tion to amend a bid for alleged mis- take, unless the data for such change is apparent on the face of the bid. Beaver v. Blind Asylum, 19 O. S. 97; State ex rel. v. Betts, 4 C. C. 85; McGreevy v. Board, 20 C. C. 114; State ex rel. v. Cincin- nati, 1 N. P. 377. But defects in the form of the bid might be waived. Ross v. Board of Education, 42 O. S. 374. Where a bid includes items not called for in the advertisement for bids, and is in a lump sum, it will be taken as a bid for the work called for and no more, and cannot be reduced by estimating the cost of items not mentioned in adver- 373a THE OHIO MUNICIPAL CODE. [Code § 143 tisement. Boren v. Commr's, 21 0. S. 311. Where the advertisement calls for bids for new pipe, a bid for second- hand pipe cannot be accepted. Lake Shore Foundry v. Cleveland, 8 C. C. 671. The bid is not good if it con- tains a condition. State ex rel. v. Barnes, 35 O. S. 136. But where a bid in response to an advertisement for sale of a natural gas plant, puts a separate price on the part outside the city, the part within and both combined, it is in reality three bids and an award on the first bid will not be invalidate^ by a condition attached to the last bid. Kerlih Bros. v. Toledo, 20 C. C. 603. A bid cannot be rejected because the granite offered is not from one of five certain quarries, provided the granite offered is equal in qual- ity to the samples as called for in the specifications. State ex rel. v. Nieman, 6 N. P. 419. If a bid fully coresponds wi the specifications, the fact that the sample required to accompany it does not come up to the require- ment, will not invalidate the bid, for the sample is merely the bid- der's interpretation of the require- ments. Many v. Cleveland, 19 C. C. 58; but see Herrman v. State, 11 C. C. 504. The fact that a foreign corpora- tion has not obtained a license to do business in Ohio, will not make an acceptance of the bid invalid. Fergus v. Columbus, 6 N. P. 82. Provision requires separate state- ment of price of labor and material when bid embraces both, and this provision is mandatory; and custom of submitting bids otherwise, can- not override statutory requirement. Columbus v. Board of Public Ser- vice, 14 Dec. 715. (5) Provision mandatory. — The requirement of a preliminary advertisement for the benefit of per- sons to be affected, or for the infor- mation of the public, when a public contract is to be let, is mandatory and contract without such adver- tisement or after advertisement for less than statutory time is void. Welker v. Potter, 18 O. S. 85; Gas & Water Co. v. Elyria, 57 O. S. 374; Lancaster v. Miller, 58 O. S. 558; Buchanan Bridge Co. v. Campbell, 60 O. S. 406; Wing v. Cleveland, 14 B. 190; Upington v. Oviatt, 24 O. S. 232; McCloud v. Columbus, 54 O. S. 439. Sufficiency of advertisement. — Where advertisement omitted cer- tain items of work, but these were given in the specifications (referred to in the advertisement) the adver- tisement is sufficient. Ampt v. Cin- cinnati, 17 C. C. 516. Asking for bids in the alternative and providing for alterations, will not invalidate an advertisement for bids. Ampt v. Cincinnati, 17 C. C. 516. The board need not furnish speci- fications to bidders in any greater detail than is required to make the matter intelligent to persons com- petent to do the work, where the contract is of the character involved in building an extensive water works plant. Yaryan v. Toledo, 28 C. l 259; 8 C. C. (N. S.) 1. See further as to sufficiency of advertisement for bids, Clock Co. v. Commr's, 31 O. S. 415; Wing v. Cleveland, 14 B. 190; Cincinnati v. Goodman, 5 Rec. 153. Code § 143] cities, department of public service. 374 What requirements legal. — A pro- vision in an ordinance that bids shall contain a stipulation that common laborers are to receive at least $1.50 per day, and have an aight-hour work-day, was held voi I as violative of constitutional guar- anties. State ex rel. v. Norton, 5 N. P. 183. See further, Wheeling Bridge, etc., Co. v. Gilmore, 8 C. C. 658; State v. Lake Erie Iron Co., 25 B. 101. A statute providing that stipu- lations requiring an eight-hour day in work under public contracts,- shall be inserted in all such con- tracts was held unconstitutional, as in conflict with §§1 and 19, Art. 1, Const, of Ohio. Cleveland v. Clem- ents Bros. Co., 67 O. S. 197. And when stipulations are contained in a public contract they are of no effect. lb. The advertisement cannot legally require the bidder to specify the manufacturer whose materials he intends to use. Tucker v. Newark, 19 C. C. 1. As to requiring a bidder to pro- cure material from a particular place, such as stone from a particu- lar quarry, see State ex rel. v. Am- lin, 13 Dec. 335. As to advertisement calling for use of a patented article, see § 45& of the Code, p. 177. See under former statutes, Holbrook v. Toledo, 28 C. C. 284; 8 C. C. (N. S.) 31 (aff'd 73 0. S. 400) ; Hastings v. Columbus, 42 O. S. 385. Length of advertising. — Under similar statute, see Early v. Doe, 16 How. (U. S.) 10; Wing v. Cleve- land, 14 B. 190; Miller v. Pearce, 2 C. S. C. R. 44; Gilfillin v. Koke, 1 W. L. M. 704 ; Harmon v. Whitte- more, 1 B. 109; Smith v. R. R. Co., 8 N. P. 1; Simmons v. Toledo, 5 C. C. 124. (6) Newspaper means newspa- per printed in the English language, in the absence of provisions to the contrary. Cincinnati v. Bickett, 26 O. S. 49. It may be a newspaper printed only on Sunday. Hastings v. Co- lumbus, 42 O. S. 585. The requirement of publication "in a newspaper" does not forbid additional publications in other pa- pers. This is not a squandering of funds. Wasem v. Cincinnati, 2 C. S. C. R. 84. (7) Bonds. — Bidders cannot be required to furnish a written agree- ment by resident freeholders that they are able to, and will become sureties on thie bidder's bond. Moore v. Cincinnati, 15 B. 196. Resident sureties may be re- quired. Boren v. Comm'rs, 21 O. S. 311. Bond cannot be deemed insuffi- cient because the sureties are not on the tax duplicate for a sufficient amount, though in fact worth many times the amount required. State ex rel. v. Franklin Co., 1 C. C. 194. Where a bond is required to ac- company the bid, ability and will- ingness to give it, if required, are not sufficient. State v. Comm'rs, 17 C. C. 370. The surety on the bond will be presumed to have executed the bond with full knowledge of the terms of the contract and he cannot claim that it covered only a part of the work. Higgins v. Drucker, 22 C. C, 112. 375 THE OHIO MUNICIPAL CODE. [Code § 143 (8) Discretion to reject. — The right to reject any and all bids confers a discretion that cannot be controlled by the courts, even though exercised arbitrarily or by mistake. State ex rel. v. Cincin- nati, 3 C. C. 542. See also Strack v. Ratterman, 18 C. C. 36. Where a bidder refuses or fails to enter into the contract awarded him, officers may award it to an- other bidder. McClain v. McKis- son, 15 C. C. 517 (affirmed 35 E. 295). Reconsideration of rejection. — After rejection of all bids, coun- cil may still reconsider the action and award contract to one of orig- inal bidders. McClain v. McKisson, 15 C. C. 517 (affirmed 35 B. 295). But see State ex rel. v. Cincin- nati, 3 C. C. 542, where it was held that after a rejection by mistake because of supposed irregularities in ordinance and a re-enactment of the ordinance in corrected form, the award could not be made to a bid- der under the original ordinance, on his old bid. Rescinding contract. — Where a contract has been awarded and work done and money expended the mu- nicipality has no right unreason- ably to rescind the contract. Cin- cinnati v. Edison Elec. Co., 6 N. P. 416. A& to ground for rescission of con- tract, see further State v. Niemes, 6 N. P. 419. Where the city has unlawfully rescinded the contract it may be required by mandamus to execute the contract. State v. Niemes, 6 N. P. 419. As to what will amount to a rescission of the contract, see Rail- way Co. v. Carthage, 36 O. S. 631. When contract complete. — At the time of the acceptance of the bid and notice to the bidder the contract between the parties is com- plete and no additional stipulations can thereafter be inserted in the contract. Comm'rs v. Rhoades, 26 0. S. 411. And the bidder is entitled only to a contract embracing the stipula- tions, etc., contained in the records up to the time of acceptance. Hughes v. Clyde, 41 O. S. 339. (9) Combination among bid- ders. — An agreement between a bid- der who had already filed his bid and a bidder who was about to file his bid, that they should become partners in doing the work if the contract should be awarded to either of them, was held not an unlawful combination among bidders. Breslin v. Brown, 24 0. S. 565. When a contract was obtained by a collusion among bidders it does not follow that the contractor may not recover for performance of the contract, where the city authorities have not rescinded the contract af- ter notice of the collusion, but in- sisted on performance. Hubbard v. Norton, 28 0. S. 116. (10) Alterations.— What changes can be made without new bidding, see McMakin v. Cincinnati. 7 N. P. 203; see also Ampt v. Cin- cinnati, 6 N. P. 208 (aff'd 60 0. S. 621). Code § 143] cities, department of public service. 376 FORM OF ADVERTISEMENT FOR BIDS. Legal Notice. Sealed bids will be received by the Board of Public Service of the city of , State of Ohio, at the office of said board until twelve o'clock noon, , 19 , for furnishing the necessary labor and materials for (here insert general statement of work to be done), according to plans and specifications on file in said office. Each bid must contain the full name of every person or company interested in the same, and be accompanied by a bond in the sum of $ to the satisfaction of the board, or a certified check on some solvent bank, as a guaranty that if the bid is accepted, a contract will be entered into and its performance properly secured. Should any bid be rejected such check will be forthwith returned to the bidder, and should any bid be accepted such check will be returned upon the proper execution and securing of the contract. (If desired add: Bidders are required to use the printed forms, which will be furnished on application.) The right is reserved to reject any and all bids. By order of the Board of Public Service. 19 Clerk. Note. — If such an improvement as is referred to in § 794 R. S., infra, page 380, costing $10,000 or more, is to be made, the advertisement for bids must comply with the requirements of that section, and the bid and contract must be made in conformity therewith. FORM OF BID. 19.... The undersigned proposes to furnish all the material and to do all the work necessary in the construction of ( here state the improvement for which bid is made) according to the plans, specifications and profiles prepared by the city of , State of Ohio, therefor, and in strict compliance therewith, and under the direction and to the approval of the city engineer (or other proper officer) for the prices following, for materials and labor, respectively, to- wit: Excavation-, per yard. Stone, per perch, etc. , etc. Dollars (In words) Cents In words) Dollars (In figures) Cents (In figures) are the only persons or companies interested in this bid. Bidder. 377 the ohio municipal code. [Code § 143 FORM OF BOND ACCOMPANYING BID. Know all men by these presents, that we , of . . , and , of , are held and firmly bound unto the city of , State of Ohio, in the sum of dollars, for the payment of which, well and truly to be made, we hereby jointly and severally bind ourselves, -our heirs, successors, executors and administrators. The condition of this obligation is such that if the bid or proposal of for ( here state work ) , made this day to the Board of Public Service of the city of State of Ohio, is accepted and the contract awarded to the above named bidder, and the said bidder shall within days after notice of said award, enter into a contract with the city of , State of Ohio, for the work bid upon, and shall secure the performance of the same by bond or otherwise as may be prescribed, to the satisfaction of the board of public service of said city, then this obligation shall be null and void; otherwise to be of full force and virtue. Signed at the day of , 19 FORM OF RESOLUTION ACCEPTING BID. Be it Resolved, by the Board of Public Service of the city of State of Ohio: That the bid of for (here state the im- provement or work to be done) is the lowest and best bid for said work, that the same be accepted, and that a contract be entered into with said bidder for the same, in the name of the city, upon said bidder giving bond to the satisfaction of this board in the sum of $ within days from the passage of this resolution; and that the clerk transmit a copy hereof to said bidder. Adopted , 19 Attest: President of Board of Public Service. Clerk. FORM OF CONTRACT. Articles of Agreement Between the city of , party of the first part, and , contractor, party of the second part, for (here state work contracted for). This agreement, made and entered into this day of ., 19. . . ., by and between the city of , State of Ohio, party of the first part, and , contractor, party of the second part: Code § 143] cities, department of public service. 378 Witnesseth, That the said party of the second part has agreed and by these presents does agree, with the said party of the first part, for the consideration hereinafter named, to furnish all the materials and do all the work of whatever kind necessary to complete, in a good, substantial and workmanlike manner, ready for use, and in strict accordance with the specifications heretofore prepared therefor, and according to the plans, profiles and drawings on file in the office of the chief engineer (or other officer) of said city, and subject to all the terms and conditions of said specifications, and to the approval of said chief engineer, at the following rates : Excavation, per yard. Stone, per perch, etc., etc. Dollars (In words) Cents (In words) Dollars (In figures) Cents (In figures) The foregoing rates include all labor and materials. Said party of the second part further expressly covenants and agrees to do everything re- quired to be done by said specifications; and to refrain from everything forbidden by said specifications ; that the power reserved to or con- ferred upon any person or body in said specifications may be exercised by such person or body, and that the right is reserved to the board to order the omission of or addition to any portion c»f the work or materials called for by the plans and specifications or to make any alterations what- ever in the nature of the work or materials called for therein, when made according to law. And said party of the second part further agrees that the amount of compensation to be paid for any additional work shall be at the prices fixed in this contract, if such additional work is of a class pro- vided for in the bid and contract; and in case any portion of the work is omitted, to waive all claims for damages because of such omission and not to demand any pay for the portion of work so omitted. In case the contractor, party of the second part, shall be required to do any work of a class not provided for in the bid and this contract, said party of the second part agrees that the amount to be allowed him shall be fixed by written agreement between the said contractor and the said board before said work is commenced, and in case of failure to agree, then by the chief engineer of the said city. The said party of the second part agrees that the said board or said chief engineer may cause any work or materials not in accordance with the specifications and this contract to be taken up, removed and replaced at the expense of the contractor, party of the second part. The party of the first part agrees and binds itself, upon the completion of the work to the approval of the chief engineer of said city, to pay to the said party of the second part the amount of money due under this agree- ment. Full payment will be made upon the acceptance of the work or as 379 the ohio municipal code. [Code § 143 coon thereafter as the city treasurer of said city shall place funds at the disposal of the said board. In Witness Whereof, the said city of ,. State of Ohio, party of the first part, has caused to be hereunto affixed its corporate name and seal by its Directors of Public Service, in accordance with a resolution duly passed, and the contractor, party of the second part, has hereunto subscribed t*is name, at , the day and year aforesaid. The City of By [Seal.] Directors of Public Service. Attest: Contractor. Clerk, Board of Public Service. Note. — Instead of full payment upon acceptance of work provision may be made for the payment of a certain percentage upon estimates and the retention of a percentage for a specified time as a guaranty of the qual- ity of the work. Provision may also be made against claims for extras unless ordered in writing by the board at a price agreed upon in advance and against sub-letting the contract or assigning payments due under it. Stipulations may also be made for the dates of beginning and com- pleting the work and power may be reserved by the city to cancel the contract upon violation by the contractor of any of its terms or condi- tions, and for the completion of the work by the city in such event, at the contractor's expense. Such provisions may be embodied in the specifications, and the latter made a part of the contract. FORM OF BOND FOR COMPLETION OF CONTRACT. Know all men by these presents : That we, principal, and and , sureties, are held and firmly bound unto the city of , State of Ohio, in the sum of $ , to be paid to the said city, its suc- cessors or assigns, for which payment, well and truly to be made, we hereby bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents. Signed by us this day of , 19 The condition of the above obligation is such that whereas the said has on this day of , 19 .... , entered into a contract with said city for ( here state work contracted for) , in a manner in said contract and specifications set forth ; Now, Therefore, if the said shall honestly and faithfully discharge and perform all and singular the obligations of said Code § 143] cities, department of public service. 380 contract, then this obligation shall be void; otherwise to remain in full force and virtue. FORM OF AFFIDAVIT OF JUSTIFICATION OF SURETY. State of Ohio ) County, } ss ' being duly sworn deposes and says that he is a freeholder in the county of . . . .' , State of Ohio, and resides at , in said county, and that he is worth the sum of $ , over and above all his debts and liabilities, including his liabilities as bail, surety, or otherwise, and over and above all his property which is exempt by law from execution. Subscribed and sworn to before me this day of , 19 Notary Public. Sec. 794 R. S. [State, county, city, and other officers shall re- quire separate bids for contract work or materials; manner in which contracts shall and shall not be awarded.] When any board of commissioners, board of trustees, officers, or board of direct- ors of the state, or of any county, township, city, town, village, school or road district of the state, or of any public institution belonging to the same, or any common council or other muni- cipal authority, who are now or at any time shall be authorized to contract or engage for the erection, repair, alteration, or re- building of any state-house, court-house, penitentiary, jail, in- firmary, asylum, poor house, work house, school house, bridge, culvert, or other public building or improvement, and who are now or hereafter may be required by law to advertise for and receive proposals for the furnishing of materials and doing the work necessary for the erection of the same, such officer, board, or other authority, shall require separate and distinct proposals 1 to be made for furnishing the materials or doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor, employment, or business necessary to be used in making such public improve- ment; and in no case where more than one such trade or kind of mechanical labor, employment or business is required to fur- nish the materials for, and do any such work, shall any con- tract for the whole of the job, or any greater portion thereof than is embraced on [in] one trade or kind of mechanical la- 381 THE OHIO MUNICIPAL CODE. [Code § 143 bor, employment or business, be awarded by any such officer, board, or authority, unless the separate bids do not cover all the work and materials required, or the bids for the whole, or for two or more kinds of work or materials are lower than the separate bids in the aggregate ; and in all cases the con- tracts for the doing of the work belonging to each separate trade, or kind of mecnanical labor, employment or business, or the furnishing of the materials for the same, or both, at the discretion of said officer or board, or other authority, shall be awarded to the lowest and best separate bidder therefor, and a contract for the same shall, in all cases, be made directly with him or them by said officer, board, or other authority, in the same manner and upon the same terms, conditions, and limita- tions, as to giving bond, 2 with security and otherwise, as are now prescribed by law, unless the same is let as a whole, or to bidders for more than one kind of work or materials, as afore- said; but the provisions of this section shall not apply to the erection of buildings and other structures of a less cost than ten thousand dollars. [1888, April 13: 85 v. 218; Rev. Stat. 1880; 74 v. 186, § 1.] (1) Separate bids for each dis= tinct part. — Separate prices for labor and material held not neces- sary in case of a bid for new pump- ing machinery. Such a bid could not be thus split up. Fergus v. Columbus, 6 N. P. 82, 91. So of a bid for heating and ven- tilating systems. State v. Bd. of Education, 14 C. C. 15. Where the contract calls for bids on a number of details of the work, the labor as well as the material to be separately priced on each, and the price of the labor and material combined to be given, the bidder whose total was the lowest is not on that account entitled to the con- tract for all the items. State ex rel. v. Commissioners, 36 B. 176. See furher State v. Commissioners, 39 O. S 188. Section 794 R. S. does not apply where the contract is let for the entire job, under § 799 R. S. State v Commissioners, 39 O. S. 188. Where the proposals made in com- pliance with the terms of the ad- vertisement of the official board let- ting the contract, contain separate bids for furnishing material and do- ing work for each separate trade or kind of work, though they cover the entire work to be done, are within the terms of section 794, and are bids not for the work as a whole but for the separate items thereof, and a bidder will not be entitled to a contract for the whole work for the reason that the total of his sep- arate bids covering all the details of the work is less than the total of the separate bids of any other bid- der. State ex rel. v. Hanna, 13 Dec. 321. Joint bids. — A contract covering work and materials included within two or more of the different trades or mechanical occupations may be awarded to a single bidder bidding jointly upon the same, whenever such joint bid is less than the ag- gregate of lowest separate bids cov- ering the work and materials in- cluded in the same trade or mechanical occupation. lb. Contract for whole work can be awarded to a bidder upon a single bid, only when separate bids do not cover all the trades or mechanical occupations, or where the separate bids covering all the trades whether being as many in number as the dif- ferent trades or less by reason of joint bids covering two or more trades, being lower than the sepa- rate ones, are in the aggregate more than a single bid for the entire job. 76.; see also Huston v. Franklin, 15 Dec. 231; 2 N. P. (N. S.) 582. Remedy of bidder.— The only Code §§ 143a, 144] cities, dep't oe public service. 381a remedy by which a person making party to whom contract has been a bid alleged to be the lowest re- awarded from proceeding further sponsible bid, can prevent award of with work, set aside contract and contract to another, is injunction refer matter back to officials for to restrain officials from making further proceedings. lb. such contract, and requiring the After work is already completed matter to be referred back for pro- and paid for, no right of action for ceedings according to statute; man- damages exists on part of plaintiff damus will not lie to compel award claiming to be lowest responsible to plaintiff. Akron v. France, 24 bidder. lb. C. C. 63, 4C. C. (N. S.) 496. (2) Bonds of bidders.— See § Where award is already com- 799a R. S. under Officers in Part menced the only remedy is to enjoin II. Sec. 143a. [May contract for furnishing 1 of water power.] That the directors of the board of public service, of all munic- ipal corporations, by and with the consent of the councils of such municipal corporations, are hereby empowered to enter into and contract with the owners of any hydraulic or other natural or artificial watercourse to furnish water power for the propelling of machinery now or hereafter to be [erected] directed in the waterworks, electric light or gas plants of such municipal corporations, or to acquire by purchase or transfer from others owning such rights, such water power privileges, and for the purpose of carrying into effect such contracts or leases, the said directors of public service may enter into such contracts for any term of years, and the provisions of section 143 and of section 45 of this act herein referred to and to which this is supplemental, shall not apply. [1904, April 25, 97 v. 320.] Sec. 144. [How contracts to be made.] 1 All contracts made by the directors of public service shall be executed by them in the name of the city, and a duplicate copy shall be filed in the office of the department of public service, and a copy with the audi- tor of the city, and no liability shall be created against the city as to any matters under the supervision of said departments except by its express authority. 2 No resolution or order shall be adopted unless concurred in by a majority of the directors THE OHIO MUNICIPAL CODE. -[Code §145 of public service, and no director of public service or officer or employe of said department shall be interested in any con- tract under its supervision. 3 The directors of public service shall keep a record of their proceedings, a copy of which, certified by the clerk of the department, shall be competent evidence in all courts. ( 1 ) Old sections. — Compare old make for the parties the contract §§ 2209, 2216, 2217, 2218, 2221 R. that might legally be made. Chil- S. (repealed). licothe v. Gas & Fuel Co., 8 N. P. (2) Defective contract.— Where 88. the contract was not made in com- (3) Officer interested in con- pi iance with law, it is simply void tract. — See note (3) to § 45 of and the court has no authority to the Code, page 176.. (9) Employes in Department of Public Service. Sec. 145. [Employment of superintendents, inspectors, clerks, laborers, etc.] 1 The directors of public service may employ such superintendents*, inspectors, engineers, harbor masters, clerks, laborers, and other persons, as may be necessary for the execution of the powers and duties of this department, and may establish such subdepartments for the administration of affairs under said directors as may be deemed proper. 2 The compensation and bonds of all persons appointed or employed by the department of public service shall be fixed by said di- rectors, and no person shall be removed except for cause sat- isfactory to said directors, or a majority of them. 3 ( 1 ) Old section. — Compare old suspend any subordinate officers or § 2211 R. S., repealed. employes in its department. § 129 (2) Watchmen. — Under former of the Code. statutes it was held that such a Delegating power. — Such a board board as this, having under its care cannot delegate its power to re- property needing the services of move employes. Kelley v. Cincin- watchmen in addition to the gen- nati, 7 N. P. 360. eral police patrol, would have the Suspension of employes by subor- power to employ such watchmen amate officers. — Subordinate offi- as were necessary. State ex rel. v, cers, such as the superintendent of Boy den, 4 N. P. 322. .the street cleaning department, who (3) Power of removal. — Board may have a large number of men has exclusive power to remove or under him, must have, from the ne- Code §146] cities, department of public safety. cessities of the case, power to sum- suspension can last only until re- mar ily suspend for insubordination ported to board and acted upon by or dereliction of duty. But such it. Kelley v. Cincinnati, supra. (c) DEPARTMENT OF PUBLIC SAFETY. (1) Organization and general 'powers. Sec, 146. [Department of public safety; directors, number, ap- pointment, qualifications, terms, etc.] 1 In every city there shall be a department of public safety, which shall be administered by two or four directors, as council shall, by resolution or or- dinance, 2 determine, provided, that when the number of di- rectors has been fixed by council, the same shall not be changed during the term for which any one of said directors has been appointed. The directors of public safety shall be electors of the city, well known for their intelligence and integrity, and shall be appointed by the mayor, with the advice and con- sent of two-thirds of all the members elected to council, 3 for terms of four years; provided, that if the number of said di- rectors is two, then at the first appointment hereunder, one director- shall be appointed for four years, and one for two years; and thereafter as the terms expire, one director shall be appointed for four years ; and if the number of said direct- ors is four, then at the first appointment hereunder, two shall be appointed for two years and two for four years, and there- after as the terms expire two directors shall be appointed for four years, and the mayor shall have power to fill all vacan- cies for unexpired terms, in like manner as original appoint- ments are made. Not more than half of the number of di- rectors of public safety shall belong to the same political party 4 and in making appointments or filling vacancies the mayor shall preserve this requirement; [When appointments not made and confirmed within 30 days, governor to appoint.] provided, however, that if said original 384 THE OHIO MUNICIPAL CODE. [Code §146 appointments are not made and confirmed within thirty days from and after the time herein fixed for said appointments, and, if any vacancy is not filled within thirty days from the date when said vacancy occurs and in the manner herein spe- cified, then and in either such event the governor 5 of the state of Ohio shall make said original appointments or fill such vacancy in the manner provided herein. [Bonds; compensation; organization.] The bonds and com- pensation of the directors of public safety shall be fixed by council. 6 The directors shall organize as a board, which shall be known as the " board of public safety." One of their num- ber shall be chosen each year to act as president, and it shall require a majority of the members to constitute a quorum or to pass any measure or authorize any act. (1) Old sections. — Compare old §§ (1545-40) R. S. (Director of Police, Cleveland); (1545-48) R. S. (Director of Fire Service, Cleve- land) ; (1545-134) R. S. (Director of Public Safety, Columbus) ; (1545-208) R. S. (Police and Fire Board, Springfield); (1545-270), (1545-275) R. S. Board of City Commissioners, Akron and Youngs- town) ; (1545-296) R. S. (Depart- ment of Police, and Department of Public Safety, Hamilton); §§ 1870 and 2436 R. S. (Police Commission- ers and Fire Trustees, Cincinnati), all repealed. (2) Form of resolution or ordi= nance, fixing or changing the num- ber of directors of public safety; see that given under § 117 of the Code, page 307. Constitutionality of provision authorizing councils to determine number of directors of public safe- ty, see Zumstein v. Mullen et al., 48 B., 177, 67 O. S. 382. (3) Consent of council to ap- pointment must be manifested by some affirmative act and not mere acquiescence. State ex rel. v. Dar- by, 12 C. C. 235 (aff'd 52 O. S. 611). (4) Political qualification. — See State ex rel. v. Ratterman, 58 O. S. 731. (5) Appointment by governor. — Validity of act authorizing ap- pointment of police board by gov- ernor upheld in State v. Covington, 2!) O. S., 102; State v. Baughman, 38 O. S., 455. But see State ex rel Knisely et al. v. Jones et al., 66 O. S. 453, where a special act on this subject was held void, and where the question as to whether such appointments by the governor violate the principles of local self- government or involve the confer- ring unon the governor of powers which he is not competent to re- ceive and exercise, is raised but not determined. See also State ex rel. v. Commas, 54 O. S. 333. (6) Form of ordinance fixing salaries and bonds; see that given under § 227 of the Code. Code §§147, 148] cities. dep ? t of public safety. 385 Sec. 147. [General powers and duties.] 1 All powers and duties connected with and incident to the appointment, regula- tion and government of the police and fire departments of the city, together with the control of the fire alarm telegraph and telephone systems shall be vested in the mayor and the board of public safety as hereinafter provided. The mayor shall be the chief conservator of the peace within the limits of the corporation. The directors of public safety shall make all contracts with reference to the management of the police and fire department, subject to the restrictions hereinafter im- posed. 2 (1) Old sections relating to po- sections relating to villages. (See lice boards and officers were former- § 207 of the Code.) ly contained in Chap. 5, Div. 5, Ti- (2) Contracts. — See § 154, in- tle XII., R. S., §§ 1870 to (2030- fra, page 391. 23 ) R. S., all repealed. And see Employing attorney. — It was note (1) under § 146, supra. held, under former statutes, that Old sections relating to the fire the board having charge of police department were formerly contain- department may employ such coun- ed in Chap. 2, Div. 8, Title XII., sel as it may select, when neces- R. S., §§ 2436 to (2477-91) R. S. sary to preserve or secure the fund all repealed, except §§ 2470 R. S. entrusted to its control. Yaple v. and 2471 to 2475 R. 8., inclusive, Commissioners, 2 C. C. 406, aff'd Which are re-enacted in the Code 25 B., 336. Sec. 148. [Police department; emergency policemen.] The chief of police shall be the executive head of the department, under the direction of the mayor ; provided, that the chief shall have exclusive control of the stationing and transfer of all patrolmen and other officers and employes in the department, under such general rules and regulations as may be prescribed by the board of public safety; and provided, further, that in case of riot or other like emergency, the mayor shall have power to appoint additional patrolmen and officers for tem- porary service (who need not be in the classified list of such department), the number of which shall be first determined by resolution of the board of public safety, but the length of 386 the ohio municipal code. [Code §149 time for which such additional officers or patrolmen shall be employed shall be limited to the time during which such emergency may exist. Sec. 149. [Police department.] 1 The police department of each city shall be composed of a chief of police and such in- spectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen, and other police court officers, station house keep- ers, drivers, and substitutes as shall have been provided by ordinance or resolution of council. The directors of public safety shall have the exclusive man- agement and control of all other officers, surgeons, secretaries, clerks and employes as shall have been provided by ordinance or resolution of council. The directors of public safety may commission private po- licemen who may not be in the classified list of said depart- ment under such rules and regulations as council shall pre- scribe. The chief of police shall be appointed from the classified list of such department. 2 (1) Organizing police and fire sistant marshals, firemen, telephone departments. — The new Code re- and telegraph operators as council quires the councils to fix the num- determines in its ordinance. Forms ber, salaries and bonds of all of- for these two ordinances are given ficers and other members of the po- hereunder and under § 150 infra. lice and fire departments, and the Council may also provide for departments so established are to other officers, surgeons, secretaries, be classified for appointments there- clerks and employes under the board in by the board of public safety. of public safety, and fix their sal- (§§ 149, 150 and 153 of the Code.) aries and bonds. §§ 149 and 150 The police department must con- of the Code. Whether or not sist of a chief of police, and such these latter positions are also inspectors, captains, lieutenants, to be regarded as within either the sergeants, corporals, detectives, pa- police or fire departments proper trolmen, police court officers, sta- and a part of the classified serv- tion house keepers, drivers and sub- ice is not clear. (See §§ 149, 150, stitutes as council determines in its 153, 158, 162 and 167 of the Code.) ordinance. The fire department It is certain that no officer, sec- must consist of a chief of the fire retary or other employe serving in department, and such marshals, as- the police or fire department of any Code § 150] cities, department of public safety. 387 city at the time of the passage of (2) Appointment of Chief. — the new Code can be removed or By the words " classified list " ia reduced in rank or pay, except in meant the register prescribed by accordance with the provisions of Section 164. State ex rel. v. Wy- the Code, whether his position, un- man, 49 B. 496. der the new organization, be within See, as to right to appoint super- the classified service or not. See intendent of police under old depart- further, note under § 167 of the ment as chief of police under new Code, infra. code, notes under Section 167 infra. FORM OF ORDINANCE ORGANIZING POLICE DEPARTMENT. Ordinance No Fixing the number, salaries and bonds of members of the police department. Be it ordained by the council of the city of , State of Ohio: Sec. 1. That the police department of the city of shall be composed of the following officers and other members, who shall receive the respective salaries hereinafter provided, payable out of the police fund of the city, and shall give the respective bonds herein- after required: 1. A chief of police, who shall receive $ per annum, and ihall give bond in the sum of $ 2 inspectors of police, etc. 3 f captains, etc. 4 lieutenants, etc. 5 sergeants, etc. 6 corporals, etc. 7 detectives, etc. 8 patrolmen, etc. (Enumerating such force as is desired by council.) Sec. 2. The police department as constituted herein shall be classified, tor appointments thereto, by the board of public safety, as required by law. Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law, but shall not affect the tenure of office or employment or the rank or pay of any officer, secretary, clerk, sergeant, patrolman, or other employe now serving in the police department of this city. Passed 19 Attest: President of Council. Clerk. Note. — An ordinance providing for other officers, surgeons, secretaries, clerks, etc., under the board of public safety, as authorized by the second paragraph of § 149 of the Code, may be adapted from the above. Sec. 150. [Fire department; emergency firemen.] The chief of the fire department shall be the executive head of the depart- ment, under the direction of the mayor; provided, that the chief shall have exclusive control of the stationing and trans- 388 the ohio municipal code. [Code §150 ferring of all firemen and other officers and employes in the department, under such general rules and regulations as may- be prescribed by the board of public safety; and provided further that in case of riot or other like emergency the mayor shall have power to appoint additional firemen and officers for temporary service (who need not be in the classified list of such department), the number of which shall be first de- termined by resolution of the board of public safety, but the length of time for which such additional officers or firemen shall be employed shall be limited to the time during which such emergency may exist. The fire department of each city shall be composed of a chief of the fire department and such marshals, assistant marshals, firemen, telephone and telegraph operators as shall have been provided by resolution or ordinance of council. The directors of public safety shall have the exclusive management and control of such* other offi- cers, surgeons, secretaries, clerks, and employes as shall have been provided by ordinance or resolution of council. The chief of the fire department shall be appointed from the classified list of such department. FORM OF ORDINANCE ORGANIZING FIRE DEPARTMENT. Ordinance No. . Fixing the number, salaries and bonds of members of the Fire Department. Be it ordained by the Council of the city of , State of Ohio: Section 1. That the fire department of the city of shall be composed of the following officers and other members, who shall receive the respective salaries hereinafter provided, payable , out of the fire fund of the city, and shall give the respective bonds herein- after required : 1. A chief of the fire department, who shall receive $ per aa- num, and shall give bond in the sum of $....' 2 Marshals, etc. 3. Assistant marshals, etc. 4 Firemen, etc. 5 Telephone and telegraph operators, etc. (Enumerating such force as is desired by council.) Code §§151, 152] cities, dep't of public safety. 389 Section 2. The fire department as constituted herein shall be classified, for appointments thereto, by the Board of Public Safety, as required by law. Section 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law, but shall not affect the tenure of office or employment or the rank or pay of any officer, secretary, clerk, or other employe now serving in the fire department of this city. Passed , 19 Attest : Clerk. President of Council. Note. — An ordinance providing for other officers, surgeons, secretaries, clerks, etc., under the Board of Public Safety, as authorized by the last sentence of the first paragraph of § 150 of the Code, may be adapted from the above. Sec. 151. [General duties of police and fire departments.] t^ police force shall preserve the peace, protect persons and prop- erty and obey and enforce all ordinances of council and all criminal laws of the state and the United States. The fire department shall protect the lives and property of the people, in case of fire, and both the police and fire departments shall perform such other duties, not inconsistent herewith, as coun- cil may by ordinance prescribe. 1 The police and fire departs ments in every city shall be maintained upon the merit sys- tem, as provided in this act (1) Municipal power. — The Columbus, 58 O. S. 538; Cincin- police department of a municipality nati v. Cameron, 33 O. S. 336; Day- derives its authority from the state; ton v. Pease, 4 O. S. 80, 97-99; and when such municipality is not Thomas v. Findlay, 6 C. C. 241; see expressly or by necessary implica- also Blunk v. Dennison Co., 71 0. S. tion authorized to do so, it can 250. neither enlarge nor restrict the du- Fire department is not subject to ties of such department or its offi- a speed ordinance. Toledo Ry. & cers as defined by the legislature. L. Co. v. Ward, 25 C. C. 399 (aff'd Cleveland v. Payne, 72 O. S. 347. 71 O. S. 492). Municipal liability. — The pow- Likewise, the power to establish er to establish and control a fire de- a police department and regulate partment is governmental in its na- the police, is governmental, and mu- ture, and a municipality is not lia- nicipality is not liable for failure ble for damages resulting from its to provide sufficient police protec- failure to provide agencies for ex- tion, or for the negligence of police tinguishing fires, or for negligence officers. Western College v. Cleve- of the employes or officers in the land, 12 O. S. 375; Robinson v. fire department. Wheeler v. Cin- Greenville, 42 O. S. 625; Alvord cinnati, 19 O. S. 19; Frederick v. v. Richmond, 3 N. P. 136. Sec. 152. [ Power of chief of police and chief of fire department as to suspension of deputies, officers or employes. 1 * The chief of 390 the' ohio, municipal code. [Code §152 the police and the chief of the? fire department shall have ex- clusive right to suspend any of the deputies, officers or em- ployes in his respective department and under his manage- ment and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority, or for any other reasonable and just cause. 2 [Procedure thereupon.] If any such employe be suspended as herein provided, the said chief of police or the chief of the fire department, as the cas,e may be, shall forthwith in writing, certify such fact, together with the cause of such suspension, to the mayor, who shall within five days from the receipt of the same, proceed to inquire into the cause of such suspen- sion and render his judgment thereon and his judgment in the matter shall be final, except as otherwise provided in this act. [Power of mayor as to suspension of chief of police or chief of fire department.] The mayor shall have the exclusive right to suspend the chief of the police department or the chief of the fire department for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority or for any other reasonable and just cause. 3 In the event that either the said chief of po- lice or chief of the fire department shall be suspended as here- in provided it shall be the duty of the mayor to forthwith cer- tify such fact, together with the cause of such suspension, to the board of public safety, which shall within five days from and after the date of the receipt of such notice proceed to hear said charges and render its judgment thereon, which shall be final. (1) Old section. — Compare old of police or any officer appointed § 1749 R. S v giving the mayor by the mayor. power to suspend any lieutenant (2) Power. — Even where an oflft- Code §§ 153, 154] cities, department op public service. 391 :-er is not expressly given power to suspend subordinates, he may have, from necessity, implied power to suspend for a reasonable time. Kelley v. Cincinnati, 7 N. P. 360. Where city has failed to provide necessary funds, this is a valid ground for suspension of member of lire department. Osborne v. Colum- bus, 15 Dec. 561; 3 N. P. (N. S.) 1. Effect of act of reviewing board. — Where the reviewing board disapproves the suspension the va- cancy created by the suspension is thereby terminated and the person appointed to fill the vacancy, ceases to be an officer. State v. Hein- miller, 38 O. S. 101. Effect on wages. — A policeman suspended for cause is not entitled to wages during the time of sus- pension, even though the cause was afterwards declared insufficient by the authority reviewing. Steuben- ville v. Culp, 38 O. S. 18; State v. Heinmiller, 38 0. S. 101. A member of fire department wrongfully suspended may not sit quietly by without performing any service or taking action to have himself reinstated, and hold city liable for his compensation. Os- borne v. Columbus, i5 Dec. 561 ; 3 N. P. (N. S.) 1. Majority decision is sufficient. State ex rel. v. Barrett, 22 C. C. 104. Board equally divided. — Where an officer is suspended, and his sus- pension reported to the trial board for approval, if the board is equal- ly divided the officer is entitled to resume work. Kelley v. Cincinnati, 7 N. P. 360. (3) Power of mayor.— The power of the mayor to suspend is limited to the statutory causes for suspension. He has no implied power to suspend. State ex rel. v. Bryson, 44 O. S. 457, 469. Sec. 153. [Classification of service in police and fire depart- ment.] The directors of public safety shall classify the serv- ice in the police and fire departments in conformity with the ordinance of council determining the number of persons to be employed therein, and shall make all rules for the regu- lation and discipline of such departments and for the quali- fication and examination of all appointees thereunder, except as otherwise provided in this act 1 (1) Rules. — A rule of the fire de- partment forbidding an officer to assign his salary or to incur indebt- edness which he is unable to pay, was held not unreasonable. State v. Hyman, 22 C. C. 213; so also a rule requiring an officer not to be guilty of conduct unbecoming an officer and a gentleman or preju- dicial to the good order of the de- partment, lb. Fines. — Whether fines can be assessed against a policeman as a means of enforcing discipline, see Kinney v. Toledo, 1 N. P. 374. Sec. 154. [Contracts relative to police or fire department.] The directors of public safety shall have power to make all contracts and expenditures of money for acquiring lands for the erection or repairing of station houses, and for the erec- tion and building of all station houses, police stations, fire department buildings, fire cisterns, and plugs that may be required, and for the purchase of engines, apparatus, and all other supplies necessary for the police and fire departments; 392 the ohio municipal code. [Code § 155 provided, that no obligation involving an expenditure of more than five hundred dollars shall be created except upon the ap- proval of the city council and by written contract which shall be awarded to the lowest and best bidder after advertising for ten days in a newspaper of general circulation in the city. They shall make no sale or disposition of any property belong- ing to the city without first being authorized by resolution or ordinance of the city council. 1 [1904, April 25, 97 v. 388.] (1) Contracts and sales. — See municipal property, see §§ 24, 25, notes to § 143 of the Code, p. 371 26 and 27 of the Code. et seq. As to sales or lease of (2) Police, Fire and Sanitary Police Pension Funds. Sec. 155. [Relief of members of police or fire department disa- bled in the discharge of their duty.] Council may provide by general ordinance for the relief out of the police or fire funds, of members of either department temporarily or permanently disabled in the discharge of their duty; but nothing herein contained shall be held to impair, restrict or repeal any por- tion of the act passed April 23, 1902, entitled, " An act au- thorizing the levy of taxes in municipalities to provide for firemen's, police and sanitary police pension funds, and to create and perpetuate boards of trustees for the administra- tion of such funds." 1 (1) Power of legislature to Special* acts creating a school change pension laws. — Under for- teachers' pension fund limited in mer pension laws it was held with- operation to certain school dis- in the power of the legislature to tricts were held unconstitutional, change or wholly abolish pensions State ex rel. v. Hubbard, 22 C. C. to disabled firemen.. Price v. Far- 252, aff'd, 65 0. S., 574. ley, 22 C. C. 48. [An act authorizing the levy of taxes in municipalities to pro- vide for firemen's, police and sanitary police pension or relief funds, and to create and perpetuate boards of trustees for the administra- tion of such funds.] [Sec. 1.] (a) [Trustees of the firemen's pension fund.] In any municipal corporation in this state having, or which may here- Code § 155] cities, department of public safety. 393 after have, a fire department supported in whole or in part at the public expense, the council, board of legislation or other legislative body may, by ordinance, declare the necessity for the establishment and maintenance of a firemen's pension fund for the purpose hereinafter enumerated; and thereupon there shall be created a board of trustees in the manner herein pro- vided, who shall be known as the " trustees of the firemen's pension fund," and who shall administer and distribute the fund authorized to be raised by this section. (b) [How board chosen; tie vote.] The board of trustees of the firemen's pension fund shall consist of the members of the board of public safety or other officer having charge or control of the fire department in any municipal corporation availing itself of the provisions of this section, and five other persons, members of the department of such municipal corpora- tion, to be chosen as follows: The board of public safety or other board or officer having charge or control of the fire de- partment shall give notice of an election to be held on the second Monday of the month following the determination of said board or officer to create a firemen's pension fund under the authority of this section ; said notice shall be by posting the same in a conspicuous place at the headquarters of said de- partment, and at the houses of the several companies com- posing the same; each person in the fire department, who, by its rules, is designated as a member thereof, shall, between the hours of nine o'clock in the forenoon and six o'clock in the afternoon on the day designated, send or cause to be sent, by mail or otherwise, in writing, the name of five persons, members of such department, who shall be the choice of the member so voting; and all votes so cast shall be counted and canvassed by the board or officer having charge or control of the said fire department, who shall announce the result, and the five members of the fire department receiving the highest number of votes shall become members of the board of trus- tees of the firemen's pension fund for the ensuing year. In case of a tie vote being received by any two members persons for the office of trustee, such tie vote shall be decided by cast- ing lots, or in any other way which may be agreed upon by the persons for whom such tie vote was cast. [Term of members; vacancy.] The members so elected shall serve for- one year or until their successors are elected, and the election for such members of the board of trustees shall be held annually upon the second Monday of the same month upon which the first election occurs. In case of a vacancy by THE OHIO MUNICIPAL CODE. [Code § 155 death, resignation or otherwise among the five members so elected the remaining member or members so elected shall choose the successor or successors until the next annual elec- tion; provided, that upon the petition of a majority of the members of the fire department in any such municipality, the board or officer having charge or control of said department may designate a less number than live members of said de- partment to be elected trustees of said firemen's pension fund. [Officers of board.] The presiding officer of the board- of pub- lic safety or other board having charge or control of the fire department, or the officer in charge or control of said depart- ment, shall be president of the board of trustees of the fire- men's pension fund created under this section, and the secre- tary, clerk or corresponding officer of the fire department shall be secretary of such board of trustees of the firemen's pension fund, and in case there be no secretary, clerk or corresponding officer of said fire department, the board of trustees of the fire- men's pension fund shall appoint the secretary of their board. It shall be the duty of such secretary to keep a full record of all the proceedings of the board of trustees of the firemen's pension fund, and said trustees may Sjl his compensation for this work, which shall be paid out of said pension fund. (c) [Firemen's pension fund; how created.] In every muni- cipality availing itself of the provisions of this section, there shall be a firemen's pension fund, which shall be maintained as follows: The council, board of legislation, or other legislative body of such municipality, are hereby authorized to levy an- nually at the time and in the manner provided by law for other municipal levies, and in addition to all the other levies author- ized by law, a tax of not more thar Jiree-tenths of a mill on each dollar upon all the real and personal property as listed for taxation in such municipality, and in the manner of such levy the board of trustees of the firemen's pension fund shall be subject to all the provisions of law controlling the heads of departments in any such municipality, and shall fulfill all the duties required of such heads of departments; provided, that a failure of such board of trustees to act in the manner required by law of the heads of departments in any such mu- nicipalities in the making of such levy, shall not limit the power of the council, board of legislation or legislative body to make said levy; and provided further that in- case the council, board of legislation or other legislative body, shall fail in any year to make the maximum levy herein authorized, then and in that event, there shall, in addition to the amount Code § 155] cities, department of public safety. 395 realized therefrom, be passed to the credit of the firemen's pension fund such portion of the tax raised under an act of the general assembly, passed May 14, 1886, and as amended, March 26, 1888, April 28, 1890, and February 20, 1896, and entitled " An act providing against the evils resulting from the traffic in intoxicating liquors/' required in said act to be passed to the credit of the general fund in any such muni- cipality, as will equal, when added to the amount realized from said levy, the amount that would be realized from a three- tenths of a mill levy on each dollar upon all the real and per- sonal property as listed for taxation in such municipality, or such part thereof as shall be necessary to meet the pension pay- roll; provided that such portion so used of the tax raised under said act of the general assembly aforesaid shall not exceed sixteen-thirtieths of the amount of said tax required in such sections to be passed to the credit of the general fund in any such municipality. All fines imposed upon any member of the fire department in any such municipality by way of discipline or punishment by the board or officer having charge or control of said department, and all proceeds of suits for penalties for the violation of any statute of this state, or ordi- nance of such municipality, with the execution of which the fire department is charged, and license or other fees payable under the same, shall be credited to said pension fund ; and the board of trustees of said fund are authorized to take by gift, grant, devise or bequest, any moneys or real or personal prop- erty, upon such terms as to the investment or expenditure thereof as may be fixed by the grantor or determined by said trustees. The trustees of the firemen's pension fund may also receive such uniform amounts from each person designated by the rules of the fire department a member thereof as he may voluntarily agree to, to be deducted from the monthly pay of said person, and the monthly amounts so received shall be used as a fund to increase the pension which may be granted to such persons or their beneficiaries. 1 ( 1 ) Enforced contributions in- of rights of the Const, of Ohio. State valid. — Under a special school ex rel. v. Hubbard, 22 C. C. 252, teachers' pension act, it was held (aff'd, 65 O. S., 574) and teach- that deductions from salaries to ers accepting positions after notice support the fund, made without of such deductions, are not estopped consent of the teachers, is forbid- to attack validity of law. lb. den by § 2, Art. 12, and the bill 396 the ohio municipal code. [Code § 155 (d) [Who custodian of fund; bond.] The treasurer of every municipality having a firemen's pension fund shall be the cus- todian of said fund and shall pay out the same upon the proper order of the board of trustees. Said treasurer shall execute a bond for the faithful performance of his duties with respect to this fund, and in such sum and form as shall be satisfactory to said board of trustees. (e) [How fund invested.] The board of trustees of said pen- sion fund may invest any moneys received by them other than those raised by taxation under this section, in interest bearing bonds of the United States, of the state of Ohio, or of any county, township, school district or municipal corporation in this state. Said board of trustees shall make a report to the council, board of legislation or other legislative body of the municipality of the condition of said fund on the first day of January of each year. (/) [Rules and regulations.] The board of trustees of the firemen's pension fund shall make all rules and regulations for the distribution of said fund, including the qualifications of those to whom any portion of said fund shall be paid, and the amount thereof; provided, that no such rules and regulations shall be in force until the same have been approved by the board of public safety, or other board or officer having charge or control of the fire department in any such municipality. (g) [Who beneficiaries of fund.] All persons drawing pen- sions or entitled to the same from existing firemen's pension funds, are hereby made beneficiaries in any pension funds cre- ated under this section in the same municipality where said persons are beneficiaries in said existing pension funds, and shall remain such, receiving such amounts and subject to the rules and regulations adopted by the board of trustees of said firemen's pension fund as aforesaid. [Upon organization board shall become successor of similar board now existing in any municipality.] Upon the organization of any board of trustees of a firemen's pension fund created under this section, all moneys, credits, investments and property of every kind and description held by existing firemen's pension boards in any municipality where new board are organized under this section, shall by said existing boards be delivered, transferred and conveyed to said new boards, and the said new boards created under this section are hereby made the suc- cessors of the existing boards as to the ownership of all such property. [95 v. 223; 1904, April 23, 97 v. 242.] Code § 155] cities, department of public safety. 397 [Sec. 2.] (a) [Trustees of the police relief fund.] In any mu- nicipal corporation in this state having, or which may here- after have, a police department supported in whole or in part at the public expense, the council, board of legislation or other legislative body may, by ordinance, declare the necessity for the establishment and maintenance of a police relief fund for the purposes hereinafter enumerated; and thereupon there shall be created a board of trustees in the manner herein pro- vided, who shall be known as the " trustees of the police re- lief fund," and who shall administer and distribute the fund authorized to be raised by this section. (b) [How board made up; tie vote.] The board of trustees of the police relief department shall consist of the members of the board of public safety, police commissioners or other board or officer having charge or control of the police department in any municipal corporation avail itself of the provisions of this section, and five other persons, members of the police department of such municipal corporation, to be chosen as follows: The board of public safety, police commissioners or other board or officers having charge or control of the police department, shall give notice of an election to be held on the second Monday of the month following the determination of said police commissioners or other board or officer to create a police relief fund under the authority of this section; said notice shall be posted by the same in a conspicuous place at the headquarters of said department and at various station houses within the municipality; each person in the police de- partment, who, by its rules, is designated a member thereof, shall, between the hours of nine o'clock in the forenoon and six o'clock in the afternoon, on the day designated, send or cause to be sent by mail or otherwise, in writing, the names of five persons, members of such department, who shall be the choice of the members so voting; and all votes so cast shall be counted and canvassed by the board of public safety, police commissioners or other board or officer having charge or con- trol of the said police department who shall announce the result, and the five members of the police department receiving the highest number of votes shall become members of the board of trustees of the police relief fund for the ensuing year. In case of a tie vote being received by any two persons for the office of trustee, such tie vote shall be decided by casting lots, or in any other way which may be agreed upon by the persons for whom such tie vote was cast. 398 the ohio municipal code. [Code '§ 155 [Term of members; vacancies.] The members so elected shall serve for one year and until their successors are elected, and the election for such members of the board of trustees shall be held annually upon the second Monday of the same month upon which the first election occurs. In case of a vacancy by death, resignation or otherwise among the five members so elected, the remaining member or members so elected shall choose the successor or successors until the next annual election; pro- vided, that upon the petition of a majority of the members of the police department in any such municipality, the board of public safety, police commissioners or other board or officer having charge or control of said department to be elected trustees of said police relief fund. [Officers of board.]. The presiding officer of the board of pub- lic safety, police commissioners or other board having charge or control of the police department, or the officer in charge or control of said department, shall be the president of the board of trustees of the police relief fund created under this section, and the secretary, clerk or corresponding officer of the police department shall be secretary of said board of trustees of the police relief fund, and in case there be no secretary, clerk or corresponding officer of said police department, the board of trustees of the police relief fund shall appoint the secretary of their board. It shall be the duty of such secretary to keep a full record of all the proceedings of the board of trustees of the police relief fund, and said trustees may fix his compen- sation for this work, which shall be paid out of said relief fund. (c) [Police relief fund; how created.] In every municipal- ity availing itself of the provisions of this section there shall be a police relief fund, which shall be maintained as follows: The council, board of legislation or other legislative body of such municipality are hereby authorized to levy annually at the time and in the manner provided by law for other muni- cipal levies, and in addition to all other levies authorized by law, a tax of not more than three-tenths of a mill on each dol- lar upon all the real and personal property as listed for taxa- tion in such municipality, and in the matter of such levy the board of trustees of the police relief fund shall be subject to all the provisions of law controlling the heads of departments in any such municipality, and shall fulfill all the duties re- quired of such heads of departments ; provided that the failure of such board of trustees to act in the manner required by law of the heads of departments in any such municipality in the making of such levy, shall not limit the power of the council, Code § 155] cities, department of public safety. 399 board of legislation, or other legislative bodies, to make said levy; and provided, further, that in case the council, board of legislation or other legislative body, shall fail in any year to make the maximum levy herein authorized, then and in that event, there shall, in addition to the amount realized therefrom, be passed to the credit of the police relief fund such portion of the tax raised under an act, entitled " An act providing against the evils resulting from the traffic in intoxicating liquors " passed May 14, 1886, and as amended March 26, 1888, and April 28, 1890, and February 20, 1896 and re- quired by said act to be passed to the credit of the general fund in any municipality, as will equal, when added to the amount realized from said levy, the amount that would be realized from a three-tenths of a mill levy on each dollar upon all the real and personal property as listed for taxation in such municipality, or such part thereof as shall be necessary to meet the pension pay-roll ; provided, that such portion so used of the tax raised by said act, shall not exceed thirteen-thirtieths of the amount of said tax required in said sections to be passed to the credit of the general fund in any such municipality. All fines imposed upon any member of the police department in any such municipality by way of discipline or punishment, by the police commissioners or other board or officers having charge or control of said department, all rewards, fees or pro- ceeds of gifts and emoluments that may be allowed by the police commissioners or other board or officer having charge or control of said police department, to be paid and given for or on account of any extraordinary service of any member of the force, and all moneys arising from the sale of unclaimed property or money, after deducting all expenses incident thereto, shall be credited to said police relief fund ; and the board of trustees are authorized to take by gift, grant, devise or bequest, any moneys or real or personal property, upon such terms as to the invest- ment or expenditure thereof as may be fixed by the grantor or determined by said trustees. The trustees of the police relief fund may also receive such uniform amounts from each person designated by the rules of the police department a member thereof, as he may voluntarily agree to, to be deducted from the monthly pay of said person, and the monthly amounts so received shall be used as a fund to increase the pensions which may be granted to such persons or their beneficiaries, or in the discretion of the board of trustees of the police. relief fund, the money derived from such monthly deductions may be used to relieve members of the force who contribute thereto, when sick 400 the ohio municipal code. [Code § 155 or disabled from the performance of duty, for funeral expenses, relief of their families in case of death or for pensions when honorably retired from the force. 1 (d) [Who custodian of fund; bond.] The treasurer of every municipality having a police relief fund shall be the custodian of said fund, and shall pay the same upon the proper order of the board of trustees. Said treasurer shall execute a bond for the faithful performance of his duties with respect to this fund, and in such sum and form as will be satisfactory to said board of trustees. (e) [Investment of fund.] The board of trustees of said po- lice relief fund may invest any moneys received by them other than those raised by taxation under this section in interest bearing bonds of the United States, of the state of Ohio, or of any county, township, school district or municipal corporation in this state. Said board of trustees shall make a report to the council, board of legislation or other legislative body of the municipality of the condition of said fund on the first day of January of each year. (/) [Rules and regulations.] The board of trustees of the police relief fund shall make all rules and regulations for the distribution of said fund, including the qualifications of those to whom any portion of said fund shall be paid, and the amount thereof; provided, that no such rules and regulations shall be in force until the same have been approved by the board of public safety police commissioners or other board or officer having charge or control of the police department in any such municipality. (g) [Who beneficiaries of fund.] All persons drawing pen- sions or enjoying or entitled to the same or other relief from eixisting police [relief] or pension funds are hereby made bene- ficiaries in any police relief funds created under this section in the same municipality where the same persons are bene- ficiaries in said existing police pension or relief funds, and shall remain such, receiving such amounts and subject to the rules and regulations adopted by the board of trustees of said police relief fund as aforesaid. [Upon organization board shall become successor of similar board now existing in any municipality.] Upon the organiza- tion of any board of trustees of a police relief fund created under this section, all moneys, credits, investments and property of every kind and description held by existing police pension or relief boards in any municipality where new boards are organized under this section, shall by said existing boards be de- Code § 155] cities, department of public safety. 401 livered, transferred and conveyed to said new boards, and the said new boards created under this section are hereby made the successors of the existing boards as to the ownership of all such property. [95 v. 223; 1904, April 23, 97 v. 245.] [Sec. 3.] (a) [Trustees of the sanitary police pension fund.] In any municipal corporation in this . state, having or which may hereafter have, a sanitary police force, supported in whole or in part at the public expense, the council, board of legisla- tion or other legislative body may, by ordinance, declare the necessity for the establishment and maintenance of a sanitary police pension fund for the purposes hereinafter enumerated ; and thereupon there shall be created a board of trustees, in the manner herein provided, who shall be known as the " trus- tees of the sanitary police pension fund," and who shall ad- minister and distribute the fund authorized to be raised by this section. (b) [How board chosen; tie vote.] The board of trustees of the sanitary police pension fund shall consist of the board or officer having charge or control of the health department in any municipal corporation availing itself of the provisions of this section, and five other persons, members of the sanitary police force of such corporation, to.be chosen as follows: The board or officer having charge or control of the health depart- ment shall give notice of an election to be held on the second Monday of the month following the determination of said board or officer to create a sanitary police pension fund under the authority of this section; said ._otice shall be by posting the same in a conspicuous place at the headquarters of said force; each person in the sanitary police force, who, by its rules, is designated a member thereof shall, between the hours of nine o'clock in the forenoon and six o'clock in the afternoon on the day designated, send or cause to be sent, by mail or otherwise, in writing, the names of five persons, members of such sanitary police force, who shall be the choice of the mem- ber so voting; and all votes so cast shall be counted and can- vassed by the board or officer having charge or control of the said health department, who shall announce the result, and the five members of the sanitary police force receiving the highest number of votes shall become members of the board of trustees of the sanitary police pension fund for the ensuing year. In case of a tie vote being received by any two persons for the office oi trustee, such tie vote shall be decided by casting lots, or in any other way which may be agreed upon by the persons for whom such tie vote was cast. 402 THE OHIO MUNICIPAL CODE. [Cod© §155 [Term of members; vacancies.] The members so elected shall serve for one year and until their successors are elected, and the election for such members of the board of trustees shall be held annually upon the second Monday of the same month upon which the first election occurs. In case of a vacancy by death, resignation or otherwise among the five members so elected, the remaining member or members so elected shall choose the successors until the next annual election; provided, that upon the petition of a majority of the members of the sanitary police force in any such municipality, the board or officer having charge or control of the health department may designate a less number than five members of said sanitary police force to be elected trustees of said sanitary police pen- sion fund. [Officers of board.] The presiding officer of the board having charge or control of the health department, or the officer in charge or control of said health department, shall be president of the board of trustees of the sanitary police pension fund created under this section, and the secretary, clerk, or corre- sponding officer of the health department shall be secretary of the board of trustees of the sanitary police pension fund, and in case there be no secretary, clerk, or corresponding officer of said health department, the board of trustees of the sanitary po- lice pension fund shall appoint the secretary of their board. It shall be the duty of such secretary to keep a full record of all the proceedings of the board of trustees of the sanitary police pension fund, and said trustees may fix his compensa- tion for this work, which shall be paid out of said pension fund. (c) [Sanitary police pension fund; how created.] In every mu- nicipality availing itself of the provisions of this section there shall be a sanitary police pension fund, which shall be main- tained as follows: The council, board of legislation, or other legislative body of such municipality, are hereby authorized to levy annually, at the time and in the manner provided by law for other municipal levies, and in addition to all other levies authorized by law, a tax not exceeding one-thirtieth of a mill on each dollar upon all the real and personal property as listed for taxation in such municipality, and in the mat- ter of such levy the board of trustees of the sanitary police pension fund shall be subject to all the provisions of law con- trolling the heads of departments in any such municipality, and shall fulfill all the duties required of such heads of de- partments; provided, that a failure of such board of trustees to act in the manner required by law of the heads of depart- Code § 155] cities, department of public safety. 403 ments in any such municipality in the making of such levy, shall not limit the power of the council, board of legislation or other legislative body to make said levy; and provided fur- ther, that in case the council, board of legislation or other legis- lative body, shall fail in any year to make the maximum levy herein authorized, then and in that event there shall, in addi- tion to the amount realized therefrom, be passed to the credit of the sanitary police pension fund such portion of the tax raised under an act passed and amended as aforesaid, required in said act to be passed to the credit of the general fund in any such municipality, as will equal, when added to the amount realized from said levy, the amount that would be realized from a one-sixtieth of a mill levy on each dollar upon all the real and personal property as listed for taxation in such mu- nicipality, or such part thereof as shall be necessary to meet the pension pay-roll; provided, that such portion so used, of the tax raised under said sections 4364-9 to 4364—17 inclusive, shall not exceed one-thirtieth of the amount of said tax required in such sections to be passed to the credit of the general fund in any such municipality. All fines imposed upon any member of the sanitary police force in any such municipality by way of discipline or punishment by the board, or officer having charge of the health department, and all proceeds of suits for penalties for the violation of any statute of this state, or ordinances of such municipality, with the execution of which the health de- partment is charged, and license or other fees payable under the same, shall be credited to said pension fund ; and the board of trustees of said fund are authorized to take by gift, grant, devise or bequest, any moneys or personal property, upon such terms as to the investment or expenditure thereof, as may be fixed by the grantor or determined by said trustees. The trustees of the sanitary police pension fund may also re- ceive such uniform amounts from each person designated by the rules of the sanitary police force a member thereof, as he may voluntarily agree to, to be deducted from the monthly pay of said person, and the monthly amounts so received shall be used as a fund to increase the pension which may be granted to such persons or their beneficiaries. 1 (1) See note under § 1 (c) of this act, page 395. (d) [Who custodian of fund; bond.] The treasurer of every municipality having a sanitary police pension fund shall be the custodian of said fund and shall pay out the same upon the proper order of the board of trustees. Said treasurer shall execute a bond for the faithful performance of his duties with 404 the ohio municipal code. [Code § 156 respect to this fund, and in such sum and form as shall be satisfactory to said board of trustees. (e)< [Investment of funds.] The board of trustees of said sanitary police pension fund may invest any moneys received by them other than those received by taxation under this sec- tion, in interest bearing bonds of the United States, or of the state of Ohio, or of any county, township, school district or municipal corporation in this state. Said board of trustees shall make a report to the council, board of legislation or other legislative body of the municipality of the condition of said fund on the first day of January of each year. (/) [Rules and regulations.] The board of trustees of the sanitary police pension fund shall make all rules and regula- tions for the distribution of said fund, including the quali- fications of those to whom any portion of said fund shall be paid and the amount thereof; provided, that no such rules and regulations shall be in force until the same have been approved by the board or officer having charge or control of the health department in any such municipality. (g) [Who beneficiaries of fund.] All persons drawing pen- sions or entitled to the same from existing sanitary police pension funds, are hereby made beneficiaries in any pension funds created under this section in the same municipality where said persons are beneficiaries in said existing pension funds, and shall remain such, receiving such amounts and sub- ject to such rules as govern the distribution of said existing sanitary police pension funds. [Upon organization board shall become successor of similar board now existing in any municipality.] Upon the organiza- tion of any board of trustees of a sanitary police pension fund, created under this section, all moneys, credits, investments and property of every kind and description held by existing sanitary police pension boards in any municipality where new boards are organized under this section, shall by said existing boards be delivered, transferred and conveyed to said new boards, and the said new boards created under this section are hereby made the successors of the existing boards as to the ownership of all such property. [95 v. 223; 1904, April 23, 97 y. 248.] (8 ) Merit System in Police and Fire Departments. Sec. 156. [In what cases mayor to prefer charges against a di- rector of public safety; duty of council thereupon.] The board of i ublic safety shall enforce and administer the merit .system as provided in this act. It is hereby made the duty of the Code §157] cities, department of public safety. 405 mayor to prefer charges with council against any director of public safety for incompetence, neglect of duty, malfeasance in office, habitual drunkenness or gross immorality ; * and any manifest failure on the part of any director of public safety to enforce the provisions of this act according to its true intent and purpose shall be deemed incompetence. Upon such charges being filed with the council it shall be the duty of council to proceed to inquire into said charges in the manner provided in this act for the removal of other officers of the municipality. 2 (1) Statutory causes for re- moval exclusive. — The causes for removal provided by statute exclude all other causes. Dorgan v. Colum- bus, 12 Dec. 121; State v. Ganson, 58 O. S. 313. See, for other causes of removal of directors, § 225 of the Code. Definitions. — Misconduct in of- fice means as such officer and not otherwise. Graham v. Stein, 18 C. C. 770. Where an officer commits an of- fense for which he may be indict- ed, but which does not touch his particular character as such of- ficer, he ought not to be removed until he has been indicted and con- victed criminally. Graham v. Stein, 18 C. C. 770; State v. Chapman, 11 O. 430. Incompetency in a legal sense means a lack of fitness to discharge the duties of the position, and of- ficial delinquency or corruption would be a disqualification render- ing an officer incompetent. State v. Fire Commissioners, 26 O. S. 24. Misconduct implies wantonness and not honest mistakes. State ex rel. v. Roll, 7 W. L. J. 121. Charges. — A charge setting out facts showing that the officer cursed the board and refused to come to order, would amount to a charge of " misconduct in office." State ex rel. v. Sutton, 4 B. 608. It is not necessary that the word "incompetency " be used in the charge, when this is the ground, if acts evidencing incompetency, are shown. State v. Fire Commission- ers, 26 O. S. 24. As to definiteness of charges, etc., see notes under § 225 of the Code. (2) Proceeding.— See § 225 of Code. And see generally for mat- ters relating to nature of power of removal, etc., notes thereunder. Sec. 157. [Members of the board of public safety not to hold other office; oath.] No member of said board of public safety shall hold any other lucrative office or employment under the United States, the state of Ohio, county, or any municipal corporation or political division thereof, 1 and shall, before en- 406 the ohio municipal code. [Code §§158, 159 tering upon the discharge of his duty, take the oath prescribed by the constitution of the state. 2 (1) Holding other office.— Com- (2) Oath.— See §§ 1737 and 1740 pare § 120 of the Code, and see R. S., re-enacted in § 224 of the note (2) thereunder, page 176. Code and see notes to these sections. Sec. 158. [Classification of offices, places of appointment and employment.] The board of public safety shall within thirty days after the organization of such board, classify all offices and places of appointment and employment in each city in the department of public safety, with reference to the examinations hereinafter provided for. The offices, employment and places so classified by the said board of public safety shall constitute the classified service of the department of said city and no appointments to such places shall be made except under and according to the rules hereinafter mentioned. [Information to be furnished to mayor.] Immediately upon the classification of such department, such board shall furnish to the mayor a list of all offices, employment and places in any way connected with such department within said classified ser- vice, with the names of the incumbents, their compensation and the nature of their duties; and said board shall from time to time promptly furnish to the said mayor in writing at his request all other information desired by him for the" proper fulfillment of his duties. Sec. 159. [Application for examination.] Every application, in order to entitle the applicant to appear for examination or to be examined, must state in his or her own handwriting the facts, under oath, on the following subjects: 1st. Full name, residence and postoffice address. 2d. Nationality. 3d. Age. 4th. Place of birth. 5th. Health and physical capacity for public service. Code §§160, 161] cities, dep't of public safety. 407 6th. Previous employment in public service. 7th. Business or employment, and residence for the previous five years. 8th. Education. 9th. Such other information as may be reasonably required by said board touching the applicant's fitness for public service. Sec. 160. [Who not to be appointed or retained in office.] No person habitually using intoxicating beverages to excess shall be appointed to or retained in any office, appointment or employment, to which the provisions of the merit system as provided in this act are applicable; nor shall any vendor of intoxicating liquors be so appointed or retained. No person shall be appointed to any office, place or em- ployment to which the provisions of the merit system as con- tained in this act are applicable within one year after his conviction of any offense against the laws of this state; and if any person holding such appointment shall be convicted of the violation of any such law he shall be immediately dis- charged. No person shall be eligible for appointment unless he be a citizen of the state of Ohio and of the city in which such appointment is made, and shall have been a resident of such city for at least one year prior to the time of such appointment. Sec. 161. [Rules and regulations.] Said board of public safety shall make all proper and necessary rules to carry out the purposes of the merit system as contained in this act, and for examinations, appointments, promotions and removals in accordance with its provisions. 1 One of the said rules shall provide that any personal solici- tation to any officer or member of said board or to the ap- pointing power, in favor of any candidate by any person whom- soever, unless fraudulently done in order to injure him, shall be taken to be, and deemed to have been done at the instance 408 THE OHIO MUNICIPAL CODE. [Code §162 of the candidate himself and shall disqualify him from com- peting at any examination for appointment for, and during the term of one year thereafter. Said hoard may from time to time make changes in the original rules, and all examinations shall be under the direction of said board, and all rules and all changes therein shall forth- with be printed for distribution by said board, and the board shall give notice of the time and place where said rules may be obtained by publication in a newspaper in such city or of general circulation therein, and in each of such publications there shall be specified the date, not less than ten days subse- quent to the date of such publication, when said rules shall go into operation. (1) Enforcement of rules. — C. C. 213; State ex rel. v. Barrett, Courts will not review testimony 22 C. C. 104; State ex rel. Hussey fcaken in trial for infractions of v. Hyman, 21 C. C. 187. rules. State ex rel. v. Hyman, 22 Sec. 162. [Examination of applicants for office or places of ap- pointment.] All applicants for offices or places of employment in such classified service shall be subjected to examination, which shall be competitive and free to all citizens of the United States, with specified limitations as to residence, health, habits and moral character herein provided ; provided that no educa- tional test shall be made of an applicant other than that actually required for the particular position for which he applies. Such examinations shall be practical in character and relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the positions to which they seek to be appointed, and shall include tests of physical qualifications and health and where appropriate, of manual skill. No question in any examination shall relate to political or religious opinions or affiliations. Code §§163-1 65 J cities, dep't of public safety. 409 Sec. 163. [Publication of notice of examination.] Notice of the time and place and general scope of every examination shall be given by said board by publication once each week for two weeks preceding such examination, in at least two daily news- papers of opposite politics published in such city or of general circulation therein, if such there be, and such notice shall be posted by said board in a conspicuous place in the office of the mayor, the clerk of the city council, and of said board, two weeks before such examination ; such further notice of exam- inations may be given as is by the board prescribed. Sec. 164. [Register of names of persons eligible to appoint- ment.] From the results of the examinations made by said board, said board shall prepare a register, for each grade or class of positions in the classified service of such city, of the names of the persons whose general average standing upon such examination for such grade is not less than the minimum fixed by the rules of said board and where otherwise eligible; and such persons shall take rank upon the register as candidates, in the order of their relative examinations, as determined by examination, without reference to priority of the time of ex- amination. Sec. 165. [Promotion; examination for promotion.] The board shall, by its rules, provide for promotions in the classified service, on the basis of ascertained merit, and seniority in service, and on examination, and shall provide in all cases where it is practicable, that vacancies shall be filled by promotion. Examinations for promotion may be competitive or non-com- petitive as the board may determine, among members of the next lower rank, and it shall be the duty of the board to submit to the mayor the names of not more than three applicants having the highest rating, for each promotion. The method of examination and the rules governing the same, and the method of certifying shall be the same as provided 410 the ohio municipal code. [Code § 166. for applicants for original appointment; or such examinations may be non-competitive as provided by this section. Sec. 166. [Method of appointment.] The mayor shall notify said board of any vacancy which may exist in the classified department of such city, and said board shall certify to said mayor the names and addresses of the three candidates standing highest upon the register, for the class or grade to which said position belongs. The mayor shall notify said commission of each position to be filled, separately, and the mayor shall fill such place by appointment of one of the persons certified to him by said board, which appointment shall be on probation for such length of time as shall be fixed by the rules of said board ; such board may strike off names of candidates from the register after they have remained thereon for more than two years. 1 At or before the expiration of the period of probation, the mayor of the city in which the candidate is employed or has been appointed, may, by and with the consent of said board, discharge him upon giving in writing to said board his reason therefor. If at the end of such period of probation such person has not been discharged his appointment shall be deemed com- plete. [Temporary appointments.] To prevent the stoppage of public business or to meet extraordinary exigencies, as provided in this act, the mayor may make temporary appointments. (1) Filling vacancies. — The departments, by special provisions provision as to examination does in the code for those departments, not apply to men who were in office lb. when the code went into effect. Certifying names. — Wheth- State ex rel. v. Hall, 2 C. C. (N. S.) er mandamus will lie to compel 237, 25 C C. 361. Code § 213, re- board to certify names fo mayor, lating to retention of all officers quere. State ex rel. v. Hall, 2 C. until their successors are chosen C. (N. S.) 237, 25 C. C. 361. is controlled, as to police and fire Code § 167] cities, dep't of public safety. 410a Sec. 167. [No removal or discharge except for cause.] No offi- cer or employe in the department of public safety shall be re- moved or discharged except for cause ; and the cause of removal of any person shall be forthwith stated in writing by the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection. No officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay except in accordance with the provisions of this act. 1 (1) Constitutionality.— The lat- ter part of this section was held not in contravention of section 27, arti- cle 22 of the Constitution. State ex rel. v. Hall, 2 C. C. (N. S.) 237, 25 C. C. 361; contra, Bender v. Cushing, 14 Dec. 65. Reorganization under new code. — The intention of the legis- lature was, not that every mem- ber of the police and fire depart- ment in every municipality when the code went into effect should remain in office when the new department was established by ordinance, but that when the new department was established and the number of places provided, those places should be filled from among the members of the department. The places under the new department might be less than under the old. State ex rel. Hall, 2 C. C. (N. S.) 237, 25 C. C. 361, and the new reorganiza- tion must be made to fit, so far as possible, the conditions existing un- der the old charter or law under which the former departments were organized, for the purpose of pre- serving the personnel of the de- partments and the standing of the members composing them. State ex rel. v. Stroble, 2 C. C. (N. S.) 293; 25 C. C. 762. A superintend- ent of police, being the chief of police under the former law, would be the one chosen chief of police under the new Code. lb. While the legislature intended that officers and employes already in the department at the time of reorganization under the new Code should, so far as possible, not be disturbed, yet it did not intend that a vacancy in any office in the de- partment could be filled only from the list of incumbents of offices and employments. State ex rel. v. Wy- man, 71 0. S. 1. Term of appointees. — An ap- pointment made, the employment "to cease at the pleasure of the board," held contrary to the spirit and letter of first clause of section 167. Bender v. Cushing, 14 Dec. 65. 411 the ohio municipal c^de. [Code §§ 168-171 Sec. 168. [Mayor to give notice of appointment, resignations, vacancies, etc.] Immediate notice in writing shall be given by the mayor to said board, of all permanent appointments in such department, and of all promotions, resignations or vacan- cies from any cause, in such department, and of the date thereof, and a record of the same shall be kept by said board. Sec. 169. [Investigation of enforcement of merit system.] The mayor, or any one appointed by him, shall investigate the enforcement of the merit system, as provided in this act, and all the rules prescribed by the board of public safety, and the conduct and action of the appointees in such department, and may inquire as to the nature, tenure and compensation of all offices or places in the public service thereof. In the course of such investigation, the mayor or such appointee shall have power to administer oaths and said mayor or appointee shall have power to secure by supoena both the attendance and testi- mony of witnesses and the production of books and papers relevant to such investigation; such subpoena shall be served by any officer authorized to serve civil process. Sec. 170. [Report of the board to mayor.] Said board of public safety, shall, at the time provided for the making of reports by municipal officers to the mayor, make and deliver to the mayor, and to council, a report showing the rules in force in such department, the practical' effects thereof and any sug- gestions it may approve for the more effectual accomplishment of the purposes of said department. The mayor, or council may require a report from said board of public safety at any other time. Sec. 171. [Clerk of board; duties.] The clerk of the board of public safety shall keep the minutes of its proceedings, pre- serve all reports made to it and made by it, keep a record of all Code §§ 172-174] cities, dep't of public safety. 412 examinations held under its direction, and perform such other duties as the board of public safety shall prescribe. Sec. 172. [Offenses in connection with merit system.] No per- son or officer shall wilfully or corruptly, by himself or in co- operation with one or more persons, defeat, deceive or obstruct any person, with respect to his right to examination, or falsely or corruptly mark, grade or estimate or report upon the ex- amination or proper standing of any person examined here- under, or aid in so doing, or wilfully or corruptly make any false representation concerning the same or concerning the person examined, or wilfully or corruptly furnish to any person any special or secret information for the purpose of either im- proving or injuring the prospects or chances of any person so examined or to be examined, or to be appointed, employed or promoted; or wilfully impersonate any other person or permit or aid, in any manner, any other person to impersonate him in connection with any examination or registration or applica- tion, or request to be examined or registered, or who shall make known or assist in making known to any applicant for examina- tion, in advance of such examination, any question to be asked on such examination shall for each offense be deemed guilty of a misdemeanor. Sec. 173. [Bribery.] No applicant for appointment in said department, either directly or indirectly, shall pay or promise to pay any money or other valuable thing to any person whom- soever, for or on account of his appointment or proposed ap- pointment, and no officer or employe shall pay or promise to pay either directly or indirectly to any person any money or valuable thing whatsoever for or on account of his promotion. Sec. 174. [Recommendations for appointment or promotion.] No applicants for appointment or promotion in said department shall ask for or receive a recommendation or assistance from 413 the ohio municipal code. [Code §§ 175-177 any officer or employe in said department or any other depart- ment of the city government, or from any person, upon the consideration of any political service rendered or to be rendered to or for any such person, or for the promotion of such person to any office or appointment. Sec. 175. [Political assessments and contributions.] No per- son shall solicit orally or by letter, or be in any manner con- cerned in soliciting any assessment, contribution or payment for any party or any political purpose whatsoever from any officer or employe who is included within the department of public safety of the city government of any such city. Sec. 176. [Political assessments and contributions.] No per- son shall in any room or building occupied for the discharge of the official duties of any officer or employe in the department of public safety of any city, solicit orally or by written communi- cation, delivered therein, or in any other manner, or receive therein any contribution of money or other thing of value for any party or political purpose whatsoever. No officer, agent, clerk or employe in the government of such city who may have charge of or control of any building, office or room occupied by the department of public safety or any branch thereof, for any such purpose, shall permit any person to enter the same for the purpose of therein soliciting or delivering written or oral solicitations or receiving or giving notice of any political assessments. Sec. 177. [Political assessments and contributions. J No officer or employe in the department of public safety shall directly or indirectly give or hand over to any officer or employe in said department or to any officer, or employe in said service or to any public official or other person whomsoever any money or other valuable thing on account of or to be applied to the pro- motion of any party or political object whatever. Code §§ 178-181] cities, dep't of public safety. 414 Sec. 178. [Political assessments and contributions.] No offi- cer or employe in the classified service of any city shall dis- charge, degrade or promote or in any manner change the official rank or compensation of any officer or employe in the depart- ment of public safety or promise or threaten to do so on account of such officer or employe withholding or neglecting to make any contribution of money or other valuable thing to any party or political purpose, or for refusal or neglect to render any party or political service. Sec. 179. [Corrupt use of political authority or influence.] No person while holding any office in the department of public safety or while seeking nomination therefor, or election thereto, or appointment to any such office, shall corruptly use or promise to use, either directly or indirectly, any official au- thority or influence (whether then possessed or merely antici- pated) in the way of conferring upon any person or in order to secure or aid any person in securing any office or public employment, or any nomination, confirmation, promotion or increase of salary upon the consideration or condition that the vote or political influence or action of the last named person or any other, shall be given or used in behalf of any candidate, officer, or party, or upon any other corrupt condition or consider- ation. Sec. 180. [Auditor shall not allow claims for services of per- sons employed in violation of this act.] No clerk, auditor or ac- counting officer of any city shall allow the claim of any public officer for services of any deputy or other person employed in the department of public safety in violation of the provisions of this act Sec. 181. [Mayor's certification to auditor of appointments and vacancies.] The mayor shall certify to the auditor all appoint- ments to offices and places in the department of public safety 415 the ohio municipal code. [Code §§ 182, 183 of such city, and all vacancies occurring therein, whether by dismissal, removal, resignation or death, and the date thereof. Sec. 182. [Kefusal to obey subpoena.] Any person who shall be served with subpoena to appear and testify or to produce books and papers, which subpoena has been issued by the mayor or by any person appointed by or acting under his control, in the course of an investigation conducted under the provisions of section 169 of this act, and who shall refuse or neglect to appear or testify, or to produce books and papers relevant to said investigation as noted in such subpoena shall be guilty of a misdemeanor, and shall, on conviction, be punished as pro- vided in section 183 of this act. [Witness* fees and mileage.] The fees for witnesses, for at- tendance and travel shall be the same fees as witnesses receive before the court of common pleas of this state, which fees and the fees of the officer serving such witnesses shall be paid from the appropriation for the expenses of said department. [Procedure for compelling attendance of witnesses; perjury.] The court of common pleas of the county in which such city is situate, or any judge of said court, either in term time or vacation, upon application of the mayor, or his appointee, may, in his or their discretion, compel the attendance of witnesses, the production of books and papers and the giving of testimony before such mayor or appointee, by attachment for contempt or otherwise, in the same manner as the production of evidence may be compelled before said court. Every person, who, having taken oath or made affirmation before said mayor, or his ap- pointee conducting an examination and authorized to admin- ister oaths, shall wilfully swear or affirm, corruptly or falsely, shall be guilty of perjury, and upon conviction shall be punished accordingly. Sec. 183. [Penalty for violation of this act relating to the merit system.] Any person who shall wilfully or through cuip- Code §§ 184-186] cities, dep't of public safety. 416 able negligence, violate any of the provisions of this act, relating to the merit system in the department of public safety, or of any rule promulgated in accordance with the provisions thereof, shall be. guilty of a misdemeanor, and shall, on conviction thereof, be fined in a sum of not less than fifty dollars and not exceeding one thousand dollars, or be imprisoned in the county jail for a term hot exceeding six months, or both, in the discre- tion of the court. Sec. 184. [Conviction under preceding section shall work for- feiture of office and disqualification to hold.] If any person shall be convicted under the next preceding section, any public office or place of public employment which such person may hold, shall by force of such conviction be rendered vacant, and such person shall be incapable of holding any office or place of public employment in such city for the period of live years from the date of such conviction. Sec. 185. [Prosecutions, who to institute.] Prosecutions for violations of the merit system, as contained in this act, shall be instituted by the prosecuting attorney of the county in which the offense is alleged to have been committed, by the city solici- tor, or by the mayor, acting through special counsel, employed by him, and said suits shall be conducted and directed by the prosecuting officers who institute them unless they request the aid of other prosecuting officers. Sec. 186. [Right of person removed by the mayor to appeal to board of public safety.] Any person in the department of pub- lic safety in any city who shall be removed from his position of employment or appointment, by the mayor, shall have the right to appeal from the decision of such officer, to the board of public safety within ten days from and after the date of his removal, and said board of public safety shall hear said appeal within ten days from and after the filing of the same with it, and its judgment in the matter shall be final. 1 417 the ohio municipal code. [Code § 187 (1) Trial and removal. — The by majority of trial board is suffi- action of the proper tribunal for cient. State ex rel. v. Barrett, 22 the removal of a police officer was, C. C. 104. under former statutes, held final so A finding " from the evidence and far as the question of the truth also from facts within personal of the charges is concerned. State knowledge " is not a proper exer- ex rel. v. Barrett, 22 C. C. 104; cise of power, unless the facts are State ex rel. v. Hyman, 22 C. C. shown and an opportunity to refute 213; State ex rel. Hussey v. Hy- them given. State v. Sullivan, 58 man, 21 C. C. 187. O. S. 504. As to definiteness of charges, see Nature of power of removal, State ex rel. v. Barrett, 22 C. C. remedies, etc. — See notes to § 225 104. of the Code. Proceedings in trial. — Decision (d) boaed of health. 1 Sec. 187. [Board of health ; appointment, etc. ; when board of pnblic service may be.] 2 The council of each city and village shall establish a board of health; 3 such board shall be com- posed of five members to be appointed by the mayor and con- firmed by the council who shall serve without compensation and a majority of whom shall constitute a quorum; provided, that whenever the council of any city shall declare by ordinance that it will be for the best interests of said city that the board of public service act as a board of health for the city, then upon the passage of said ordinance the board of public service of said city shall be the duly authorized board of health thereof and shall have all the powers and perform all the duties pre- scribed by law for boards of health; and the mayor shall be president by virtue of his office. In villages the council may appoint a health officer instead of a board of health and fix his salary and term of office, such appointee to be approved by the state board of health, who shall have all the powers and perform all the duties granted to or imposed upon boards of health, except that all rules, regulations or orders of a general char- acter and required to be published, made by such health officer, shall be approved by the state board of health. [In what cases state board of health may appoint health officer.] And if any city, village or township fails or refuses to establish a board of health or appoint a health officer, the state board Code § 187] CITIES. BOARD OF HEALTH. 418 of health may appoint a health officer for such city, village or township and fix his salary and term of office, and such health officer shall have the same powers and duties as health officers appointed in villages in lieu of a board of health, as • herein provided, and the salary of such health officer, as fixed by the state board of health, and all necessary expenses incurred by him in performing the duties of a board of health shall be paid by and be a valid claim against the city, village or town- ship for which such health officer is appointed to serve. [1904, April 26, 97 v. 460.] (1) Board of health statutes re-enacted by the Code. — The laws on the subject of boards of health formerly comprised Chap. 1, Div. 6, Title XII. of Bates' Re- vised Statutes, §§ 2113 to 2148-9, inclusive. This entire chapter was redrafted by the Legislature on May 7, 1902, and all the sections there- in (except 2122-1, referring to gar- bage crematory in Columbus; 2131a, referring to sanitary police in Cleveland; 2132a, providing rules in certain cities; 2134-1, 2134-2 and 2134-3, regulating sale of ice; 2141-1, abolishing board in certain villages; 2142a, 21426, 2142c, 21420* and 2142e, providing for sanitary plants; 2142e-l to 2142e-7, inclu- sive, authorizing sanitary boards in certain cities; and 2148-1 to 2148-9, inclusive, establishing a san- itary police pension fund in Cleve- land), were repealed, and new sec- tions substituted, numbered from 2113 to 2148, without regard to the particular subject matter of the old sections. (95 0. L. 421). The new Code, in«§ 189, infra, re-enacts all these sections, as thus amended and renumbered, except 2113, 2114, 2117 and 2133. Of these, 2113 and 2133 are repealed by the Code; 2114 is re-enacted as later amended May 12, 1902 (95 O. L. 643), and 2117 is neither re-enacted nor expressly re- pealed. §§2115 and 2128 were again amended in 1904 and 2122 was again amended in 1906. This edi- tion of the Code, therefore, con- tains, under §189, §§2115 to 2148 R. S., inclusive, as amended May 7, 1902, (2115, 2122, 2128 being given as last amended) and §2114 as amended May 12, 1902. For sec- tions carried in Part II. see next succeeding note. Board of health statutes in Part II. — Under Board of Health in Part II. will be found all sec- tions of the Revised Statutes on this subject not re-enacted in § 189 of the Code, or not expressly re- pealed by the Code, except §§ 2148-1 to 2148-9, inclusive, which estab- lished a sanitary police pension fund in Cleveland, and which are now superseded by the general act on police, fire and sanitary police pension funds, re-enacted in §§ 155 of the Code. The sections thus car- ried in Part II. are as follows: §§ 2117 as amended May 12, 1902 (95 0. L. 424); 2122-1; 2131a; 2132a; 2134-1; 2134-2; 2134-3, 2141-1; 2142a, 21426, 2142c, 2142a", 2142e; 2142e-l to 2142e-7 inclusive, §§ 409-26, 409-28 and an act relating to garbage bonds (95 O. L. 477) are also carried in Part II. (2) Old section 2113 R. S. re- pealed. (3) Defective ordinance. — Where an ordinance establishing a board of health was defective be- cause not read three times it was 4:19 the ohio municipal code. [Code § 188 held that the board was neverthe- exercise them in a most summary less a de facto board and its acts manner. 16. valid. Smith v. Lynch, 29 O. S. 261. Majority of quorum of health Character of board. — Boards of board was held sufficient to transact health, as such, were held not to business. State ex rel. v. Massillon, be bodies corporate and to have 13 Dec. 292; 24 C. C. 249, 2 C. C. no express statutory authority to (N. S.) 167. maintain a suit to prevent the pol- Provision mandatory requiring lution of a stream, or to sue or be council to establish a board of sued upon any cause of action. health. State ex rel. v. Massillon, Board of Health v. Columbus, 12 24 C. C. 249, 253; 2 C. C. (N. S.) Dec. 553. 167. Such boards have certain legis- Appointment of member to lative, quasi judicial and executive place under board not valid. State powers, and may, in some cases, ex rel. v. Newark, 6 N. P. 523. FORM OF ORDINANCE TO ESTABLISH BOARD OF HEALTH. Ordinance No To Establish a Board of Health. Be it ordained by the council of the city [or village] of , State of Ohio, Sec. 1. That under and in pursuance of the authority conferred and the duty imposed upon council by an act entitled, " An act to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse of such power, as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes in- consistent herewith," passed by the General Assembly of Ohio in extra- ordinary session on the 22nd day of October, 1902, that the council establish and it does hereby establish a Board of Health for the said city [or village] of , to be constituted and its members appointed in accordance with § 187 of said act above referred to. The members of the Board of Health shall give bond in the sum of $ Sec. 2. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed 19 President of Council. Attest: Clerk. Sec. 188. [Quarantine regulations.] * The state board of health, or the board of health of any city, village or township, in time of epidemic or threatened epidemic, or when any danger- ous communicable disease is unusually prevalent, may, after a personal investigation by the members or executive officer of such board to establish the facts in the case, and not otherwise, impose a quarantine on vessels, railroads, stages, or any other public or private vehicles conveying persons, baggage or freight, Code § 189] cities, boakd of health. 420 or used for such, purpose, and may make and "enforce such rules and regulations as such board may deem wise and necessary for the protection of the health of the people of the community or state; provided, however, that the running of any train or of any cars on any steam or electric railroad, or of steamboats, vessels or other public conveyances shall not be prohibited. A true copy of such, quarantine rules and regulations adopted by a local board of health, shall be immediately furnished by such board to the state board of health. Such quarantine rules and regulations, when established by a local board of health, after careful investigation by the state board of health, may be altered, relaxed or abolished by order of said state board and thereafter no change shall be made except by the order of the state board of health, or by the local board, to meet some new and sudden emergency. ( 1 ) Old section.— This embodies Bates' Revised Statutes. ( § 212 of the provisions of old § 2133 as the Code.) numbered in the amendments to In the amendments in 95 Ohio §§ 2113 to 2148 R. S. } inclusive, in Laws, the numbering of the sections 95 O. L. 421. The repeal of § 2133 is changed. § 2133 R. S. related in § 231 of the Code was evidently to milk inspectors, while 2133 in intended to mean § 2133 as num- the amendments relates to quaran- bered in the amendments in 95 O. tine, corresponding to the provisions L. 421, and not as numbered in in the section of the Code above. Sec. 189. [Certain laws not repealed; quarantine regulations.] The board of health herein provided for shall have all the powers and perform all the duties, not inconsistent with this act, which are conferred or required in sections 2115, 2116, 2118, 2119, 2120, 2121, 2122, 2123, 2124, 2125, 2126, 2127, 2128, 2129, 2130, 2131, 2132, 2134, 2135, 2136, 2137, 2138, 2139, 2140, 2141, 2142, 2143, 2144, 2145, 2146, 2147 and 2148 of the Revised Statutes of Ohio, as amended May 7, 1902 (95 O. L., 421), and section 2114, of the Revised Statutes of Ohio, as amended May 12, 1902, (95 O. L., 643), and for all purposes such sections as amended shall remain in full 421 the ohio municipal code. [Code § 189 force and effect; and nothing herein contained shall be held to impair, restrict or repeal any portion of the act passed April 23, 1902, entitled "An act authorizing the levy of taxes in municipalities to provide for firemen's, police and sanitary police pension or relief funds, and to create and perpetuate boards of trustees for the administration of such funds " ; ■ provided, further, that local boards of health shall not have power to close public highways or to prohibit travel thereon, nor to interfere with public officers not afflicted with or directly exposed to any contagious or infectious disease, in the dis- charge of their official duties; nor to establish a quarantine of one city, village or township against another city, village or township, as such, without permission first obtained from the state board of health, and under such regulations as may be established by the state board. All employes 2 now serving in the health department shall continue to hold their said positions and shall not be removed from office or reduced in rank or pay, except for cause, assigned and after a hearing has been afforded them before the board. (1) Pension laws. — For these cer is not an employe as that word laws see § 155 of the Code, page is used in this section. State ex 392. rel. v. Craig, 69 O. S., 236. (2) Employes.— The health offi- Sec. 2114 R. S. [Term of office of members.] The term of office of the members of the board shall be five years from the date of appointment, and until their successors are appointed and qualified, except that those first appointed shall be classi- fied as follows: One to serve for five years; one for four years; one for three years; one for two years, and one for one year, and thereafter one shall be appointed anually. Provided that in all municipalities now having a board of health, in place of the two members of such board of health whose term of office shall first expire, one shall be appointed for five years. ; in place of the two members of the board whose term of office shall next expire one shall be appointed for two years, and one for three years, and in place of the two members of the board whose term of office shall thereafter expire one shall be ap- pointed for four years, and one for five years, and thereafter Code § 189] cities, board of health. 421a < one shall be appointed annually. [May 12, 1902, 95 v. 643 ; 95 v. 423; 66 v. 201, S. & S. 828.] Sec. 2115 R. S. [Board shall appoint health officer, clerk, etc.] The board of health shall appoint a health officer, 1 who shall be the executive officer, who shall furnish his name and address and such other information as may be required by the state board of health; and may appoint a clerk, and may appoint, with the consent of council, as many ward or district physi- cians, or one ward physician for each ward in their city as they may deem necessary, whose duty it shall be to care for the sick poor in his district or ward and to care for the person or persons quarantined in his ward when such person or persons are unable to pay for medical attendance, and to care for all persons sent from his ward to the municipal pest house when such persons are unable to pay for medical attendance. The board of health shall also have power to appoint, with the consent of council, as many persons for sanitary duty as in its opinion the public health and sanitary condition of the cor- poration may require, and such persons shall have a general police powers, and be known as the sanitary police. The board shall have exclusive control of their appointees, and define their duties and fix their salaries, 2 but no member of the board of health shall be appointed as health officer; neither shall a member of the board of health nor the health officer be ap- pointed as one of the ward physicians. All such appointees shall serve during the pleasure of the board. [97 v. 331; 95 v. 423 ; 90 v. 88 ; 85 v. 59 ; 66 v. 202 (S. & C. 828). (1) Provision mandatory.— Sec. Increase of salary, of health offi- 2115 providing that Boards of cer while in office is valid; health Health shall appoint health officers officer is not an " officer or ap- is mandatory in character and the pointee " within the meaning of establishment of a Board of Health statute prohibiting Increase of sal- is a police regulation of the State, ary during term of office. lb. State ex rel. v. Massillon, 24 C. C. Term of appointees, how ended. 249, 2 C. C. (N. S.) 167. —The appointment of another of- (2) Certificate of funds on ficer in the place of one serving as hand, with which to pay health offi- appointee of the board indicates the cer's compensation is not necessary pleasure of the board that the for- before the board makes appropria- mer appointee shall no longer serve, tion for payment of his services. State ex rel. v. Craig, 69 O. S. 236. Sec. 45 of the Code does not apply. 76. 422 the ohio municipal code. [Code § 189 * Sec. 2116 R. S. [President pro tern.; meetings of board; duties of clerk.] The board of health in cities and villages shall elect one of their number president pro tern., who shall preside in the absence of the mayor, and shall do and perform all duties in- cumbent upon the president. The board shall meet for the transaction of business at least once in each calendar month, and as much oftener as is necessary for the prompt and thorough transaction of its business. All special meetings of the board shall be called by the president or three members thereof. The clerk of the board shall keep a full and accurate record of all proceedings of the board, together with a record of all births, deaths and cases of contagious diseases reported to the health officer, and at the expiration of his term of office shall turn over to his successor all books, records, papers, and other matter belonging to the board. Each board of health, or the health officer where there is no board of health, shall procure suit- able books, blanks, and other things actually necessary to the transaction of its business. Among the books to be procured and kept shall be a suitable book or books for the registration of births and deaths, and cases of infectious or contagious disease. [95 v. 423; Bates K. S., § 2120.] (1) § 2117 R. S., which follows health in townships. For this sec- this is not re-enacted and not re- tion, see under Board of Health, pealed. It relates to boards of Part II, p. 593. Sec. 2118 R. S. [Orders and regulations of city, village, hamlet or townshp board.] The board of health of any city, village, hamlet or township may make such orders and regulations as it may deem necessary for its own government, for the public health, the prevention or restriction of disease, and the preven- tion, abatement or suppression of nuisances. 1 All orders and regulations not for the government of the board, but intended for the general public, shall be adopted, advertised, recorded and certified as are ordinances of cities and villages ; 2 and the record thereof shall be given, in all courts of the state, the same force and effect as is given such ordinances ; and in townships the posting of such orders and regulations in five conspicuous places within the township shall be deemed a sufficient notice thereof. [95 v. 424; Bates E. S., § 2122.] Code § 189] CITIES. BOARD OF HEALTH. 423 ( 1 ) Municipal liability. — The municipality or its officers in their official capacity are not liable for damages resulting from the neg- ligence of the board of health or health officer. Turner v. Toledo, 15 C. C. 627. Boards of health are invested with legislative, quasi- judicial and execu- tive or governmental powers, in the exercise of which, proceedings of a most summary character are per- mitted, but they are not liable for negligence in the discharge of their official functions. Board of Health v. Columbus, 12 Dec. 553. Scope of power. — Boards of health have power to make reason- able regulations for the sanitary inspection of houses of prostitution, and the examination of their in- mates to prevent infectious diseases and to promote the public health. Cincinnati v. Allison, 12 Dec. 376. A regulation by a board of health requiring all known prostitutes to submit to a personal examination once every week by a district phy- sician and providing for the is- suance of certificates to those free from venereal disease and requiring the expense of the regulation to be paid by the persons examined, is not unreasonable; but the fees charged must be paid into the city treasury and cannot be paid directly to the physicians. lb. The board may require all physi- cians to register, but it cannot make the right to register depend on approval of officer or board after passing on qualifications. State ex rel. v. Prendergast, 8 C. C. 401. Whether board can require vacci- nation of all pupils as condition to right to attend school, quere. Carr v. Board Ed., 1 N. P. (N. S.) 602, 13 Dec. 430; such power is prob- ably given only to Board of Edu- cation. But where latter board adopts the order, it may be enforced. lb. A health ordinance requiring a permit from the board of health before milk could be sold in the city, and authorizing examination and inspection of milk sold and the places where cows were kept, was held valid. Walton v. Toledo, 23 C. C 547; 3 C. C. (N. S.) 295, (aff'd 69 O. S. 548). See further notes to paragraphs 3 and 16, § 7 of the Code, pages 46 and 55. Boards of health as such are not bodies corporate, and have no ex- press statutory authority to main- tain a suit to prevent the pollution of a stream, or to sue or be sued upon any cause of action. Board of Health v. Columbus, 12 Dec. 553. (2) See § 124 of the Code, page 317. Sec. 2119 R. S. [Penalty for violation of this act.] Whoever violates any provisions of this chapter, 1 or any order or regula- tion of the board of health made in pursuance thereof, or ob- structs or interferes with the execution of any such order, or wilfully or illegally omits to obey any such order, shall be fined in any sum not exceeding one hundred dollars or imprisoned for any time not exceeding ninety days, or both ; but no person 424 the ohio municipal codb. [Code §189 shall be imprisoned under this section for the first offense, and the prosecution shall always be as and for a first offense, and unless the affidavit upon which the prosecution is instituted con- tains the allegation that the offense is a second or repeaated offense. [95 v. 424; Bates E. S., § 2137.] (1) See note (1) tc § 187 of the Code, page 418, Sec. 2120 R. S. [Violation by a corporation.] If such viola- tion, obstruction, interference or omission be by a corporation, it shall forfeit and pay to the proper city, village, hamlet or township, any sum not exceeding three hundred dollars, to be collected in a civil action brought in the name of the city, vil- lage, hamlet or township; and any officer of such corporation having authority over the matter, and permitting such violation, shall be subject to fine or imprisonment, or both as heretofore provided. The judgment herein authorized being in the nature of a penalty, or exemplary damage, no proof of actual damages shall be required, but the court or jury, finding other facts to justify recovery, shall determine the amount by reference to all the facts, culpatory, exculpatory or extenuating, adduced upon the trial. [95 v. 425; Bates K. S., § 2138.] Sec. 2121 R. S. [Prosecutions; how instituted.] Prosecutions under this chapter 1 and the civil action provided for in the preceding section, shall be instituted before any justice of the peace within the county, or justice of the peace, mayor or police judge of the city or village where the offense was committed, or the offending person resides. If imprisonment is, or may be a primary penalty, the court shall, after plea of not guilty, unless a trial by jury is waived, issue a venire to any constable of the county, containing the names of sixteen electors residing within the county, to serve as jurors to try such cause. Each party shall be entitled to two peremptory challenges, and chal- lenges for cause in all particulars, as in criminal cases in the court of common pleas. If the sixteen names be exhausted without obtaining a panel of twelve, the court may direct the constable to summon any of the bystanders to fill the panel to twelve, or on demand, shall issue other venires for four electors at a time, until the panel of twelve is full. In prosecutions under this chapter, no deposit for costs shall be required ; and a judgment or verdict of guilty shall be immediately followed by sentence and execution thereof, unless suspended pending the preparation and allowance of a bill of exceptions; and all fines collected under this chapter shall be paid to the treasurer of the Code §189] cities, board of health. 425 municipality or township and credited to the sanitary fund of the board of health instituting the prosecution. No fine im- posed in any prosecution under this section shall be remitted by the magistrate before whom the complaint is made. [95 v. 425 ; Bates E. S., § 2139.] (1) See note (1) to $ 187 of the Code. Sec. 2122 R. S. [Abatement of nuisances by board of health.] The board of health shall abate and remove all nuis- ances within its jurisdiction. 1 It may compel the owners, agents, assignees, occupants, or tenants of any lot, property, building or structure upon or in which any nuisance may be, to abate and remove the same by orders therefor, and treat the neglect or refusal to obey orders for such purpose as a misdemeanor punishable as hereinbefore provided. The board of health may, except in cities having a building department, or otherwise exercising the power to regulate the erection of buildings, regulate the location, construction and repair of all water-closets, privies, cesspools, sinks, plumbing and drains; and in such cities having such departments or exercising such power, the council shall by ordinance prescribe such rules and regulations as are approved by the board of health, and shall provide for the enforcement thereof. The board may also regulate the location, construction and repair of all yards, pens and stables, and the use, emptying and cleaning thereof and of all water-closets, privies, cesspools, sinks, plumbing, drains, or other places where offensive or dangerous substances or liquids are or may accumulate, and when any building, erection, excavation, premises, business, pursuit, matter or thing, or the sewerage, drainage, plumbing, or ventilation thereof is, in the opinion of the board of health, in a condition dangerous to life or health, and when any building or structure is occupied or rented for living or busi- ness purposes and sanitary plumbing and sewerage, are feas- ible and necessary, but neglected or refused, the board of health may declare the same a public nuisance and may order the same to be removed, abated, suspended, altered, or other- wise improved or purified by the owner, agent or other person or persons having control of the same, or being responsible for the condition; and the refusal or neglect to obey said order shall be a misdemeanor, punishable as hereinbefore provided. The board may also, by its officers and employes, remove, abate, suspend, alter, or otherwise improve or purify the same, and certify the costs and expense thereof to the county auditor, to be assessed against the property, and thereby made a lien upon the same, and collected as other taxes. [98 v. 188; 95 v. 426; Bates R. S. (3rd Ed.) 2116, 2128.] (1) Nuisances, — See notes to paragraph 3, § 7 of the Code, p. 46. 4:26 the ohio municipal code. [Code §189 FORM OF NOTICE TO ABATE NUISANCE. City [or village] of , Office of the Board of Health. 19 To You are hereby notified that the board of health adopted the following resolution, on , 19 .... , " Resolved, that in the opinion of the board of health the (here name the nuisance) on the following described premises (here describe premises ) , constitutes a public nuisance and the same is hereby declared to be a public nuisance and ordered to be abated, by (here state alteration, disinfection or whatever required ) within days after the service of notice of this resolution upon the owner of said prem- ises, or the same may be done at the expense of the city [or village] and charged to said owner, and assessed against his property; and disobedience of this order shall be punished as provided by law; and the clerk is directed to serve notice of this resolution and order upon the owner, agent or other person having control of or occupying said premises." This resolution and order must be complied with, within days from the service of this notice. By order of the Board of Health. Clerk. Sec. 2123 It. S. [Proceedings where order of board is neg- lected or disregarded.] In all cases where the order of the board of health is neglected or disregarded, in whole or in part, the board may elect to cause the arrest and prosecution of the person or persons offending as hereinbefore provided, or may elect to do and perform, by its officers and employes, what the offending party should have done. If the latter course is chosen, before the execution of the order of the board is begun, it shall cause a citation to issue, and be served upon the person or persons responsible, if residing within the jurisdiction of the board ; but if not, shall cause it to be mailed by registered letter to said person, if the address is known or can be found by ordinary diligence ; and if the address cannot be found by ordinary dili- gence, shall cause the citation to be left upon the premises, in charge of any person residing thereon; otherwise it shall be posted conspicuously thereon. The citation shall briefly recite the cause of complaint, and require the owner or other person or persons responsible, to appear before the board of health at a time and place stated, or as soon thereafter as a hearing can be had, and show cause, if any, why the board should not pro- ceed and furnish the material and labor necessary to, and re- move the cause of complaint. [95 v. 426; Bates R. S., § 2120.] Code §189] cities, board of health. 427 Sec. 2124 U.S. [Further proceedings.] If the person or per- sons cited appear, he or they shall be fully apprised of the cause of complaint and given a fair hearing. The board shall then make such order as it deems proper, and if material or labor is necessary to satisfy the order, and the person or persons cited promise, within a definite and reasonable time, to furnish the same, the board shall grant such time ; but if no such prom- ise is made, or kept, the board shall furnish the material and labor, cause the work to be done, and certify the cost and ex- pense to the auditor of the county. If the material and labor are itemized, and the statement is accompanied by the certificate [of the president] of the board, attested by the clerk, reciting tiie order of the board, and that the amount is correct, the au- ditor shall have no discretion, but shall place the sum against the property upon which the material a*nd labor were expended, which shall, from the date of entry, be a lien upon the property, and be paid as other taxes are paid. [95 v. 426 ; Bates R. S., § 2129.] Sec. 2125 R. S. [Duty of physician, house owner, etc., to give notice of prevalence of infectious diseases; duty of board there- after.] Every physician or other person called to attend any person who is suffering from smallpox, cholera, plague, yellow fever, typhus fever, diphtheria, membranous croup, scarlet fever, or typhoid fever, or any other disease dangerous to the public health, or required by the state board of health to be reported, shall report the same to the health officer within whose jurisdiction such person is found, giving in such report the name, age, sex and color of the patient, and the house or place in which such person may be found ; and in like manner it shall be the duty of the owner or agent of the owner of a building in which a person resides who has any of the diseases herein named or provided against, or in which are the remains of a person having died of any such disease, and the head of the family, immediately after becoming aware of the fact, to give notice thereof to the health officer ; and when complaint is made or a reasonable belief exists that an infectious or contagious disease prevails in any house or other locality which has not been reported as hereinbefore required, the board shall cause such house or locality to be inspected by its health officer, and on discovering that such infectious or contagious disease exists, the board may, as it deems best, send such person so diseased to a quarantine hospital or other place provided for such per- sons, or may restrain them and others exposed within said hons° or locality from intercourse with other persons, and prohibit 428 the ohio municipal code. [Code §189 ingress and egress to or from such premises. 1 [95 v. 427; Bates K. S., § 2118 and latter part of § 2117.] (1) Scope of power. — The The board would have power to power here given, in case of in- make a contract with persons for fectious disease in any house, is the care of patients with infectious very broad. Under it the board diseases quarantined in their houses, may quarantine a house, and the and the municipality would be owner could not recover damages, bound by this contract. lb. although it might be a very serious Action against physician. — loss to him. Turner v. Toledo, 15 Proper action against physician C. C. 627, 634. for failure to report small pox, etc., If, however, an injury is inflict- was held to be a civil action in the ed in such case, by malice of the name of the state to recover the public officers, the owner would have penalty and not by warrant for ar- a remedy. lb. . rest. State v. Chandler, 7 B. 97. Sec. 2126 R. S. [Quarantine of person having, or having been exposed to, contagious disease.] It shall be the duty of the board of health when a case of smallpox, cholera, plague, yellow fever, typhus fever, diphtheria, membranous croup, or scarlet fever is reported within its jurisdiction, to at once cause to be placed in a conspicuous position on the house wherein any of the aforesaid diseases occur a quarantine card having printed on it in large letters the name of the disease within, and to prohibit entrance to or exit from such house without written permission from the board of health; and no person quarantined by a board of health on account of having a contagious disease, or for having been exposed thereto, shall leave such quarantined house or place without the written permission of the board of health ; and every physician attending a person affected with any of the aforementioned diseases shall use such precautionary measures to prevent the spread of the disease as may be required by the board of health. No person shall remove, mar, deface or destroy such quarantine card, which shall remain in place until after the patient has been removed from such house, or has recovered and is no longer capable of communicating the disease, and the said house and the contents thereof have been properly purified and disinfected by the board of health ,and where other inmates of said house have been exposed to and are liable to become ill of any of said diseases, for a period thereafter counting from the completion of disinfection, as follows, to-wit : in diphtheria or membranous croup, 14 days; in smallpox, 17 days; in scarlet fever, 10 days; in cholera or yellow fever, 7 days; in typhus fever, 21 days; and in cases of measles, chickenpox and whooping cough, or either of them, the board of health may Code §189] cities, board of health. 429 require the same report of cases and may enforce the same quarantine and other preventive measures as are provided for in this chapter in case of scarlet fever, or diphtheria. The board of health may employ as many persons as it deems neces- sary to execute its orders and properly guard any house or place containing any person or persons affected with any of the diseases named herein, or who have been exposed thereto, and such persons shall be sworn in as quarantine guards, shall have police powers, and may use all necessary means to enforce the provisions of this chapter for the prevention of contagious or infectious disease, or the orders of any board of health made in pursuance thereof. 1 [95 v. 427. J (1) As to contracts under this C. C. 822; 6 C. C. (N. S.) 398. section, see Meily v. Columbus, 27 Sec. 2127 It. S. [Penalty for appearance in public place of per- son suffering with contagions disease; penalty for unlawful dis- posal of infected property.] Any person who, while suffering from smallpox, cholera, plague, yellow fever, diphtheria, mem- branous croup, scarlet fever, wilfully or unlawfully exposes himself in any street, shop, inn, theatre or other public place or public conveyance, or being in charge of any person so suffer- ing so exposes such sufferer, or gives, lends, sells, transmits or exposes, without previous disinfection by the board of health, or under its direction, any bedding, clothing, rags or other thing which has been exposed to infection from any such disease, or who knowingly lets for hire any house, room or part of a house in which any person has been suffering from any such disease, prior to such house, room, or part of a house having been dis- infected by the board of health, shall be guilty of a misde- meanor and punishable as hereinbefore provided. [95 v. 428. J Sec. 2128 R. S. [Disinfection of house in which person has been ill with contagious disease; procedure; destruction of infected prop- erty; compensation for property destroyed.] It shall be the duty of every physician who is attending a person affected with smallpox, yellow fever, typhus fever, diphtheria, membranous croup, or scarlet fever, when such person has recovered and is no longer liable to communicate the disease to others, or has died, to furnish a certificate to the proper board of health of such recovery or death, and as soon thereafter as the board of health deems it advisable its health officer or other person ap- pointed for the purpose shall thoroughly disinfect and purify the house and contents thereof in which such person has been ill or has died, which disinfection and purification shall be done in acordance with the rules and regulations adopted and promulgated by the state board of health, and the local board of health may purchase such disinfecting apparatus and sup- 430 the ohio municipal code. [Code § 189 plies as it deems necessary for such purpose; and upon the request of the owner or occupant of any dwelling house, or the head of any family, the board of health shall purify and disinfect any room which has been occupied by any person suffering from pulmonary tuberculosis, commonly called con- sumption, or room in which any person has died from said disease ; the expenses of disinfection shall be paid by the local board of health, and said board may destroy any infected clothing, bedding, or other article which cannot be made safe by disinfection, and shall furnish to the owner thereof a receipt, of which it shall keep a full and accurate copy, for articles so destroyed, which receipt shall show the number, character, con- dition and estimated value of the articles destroyed and when any buildings, hut, or other structure has become infected with smallpox or other dangerous communicable disease, and cannot, in the opinion of the board of health, be made safe by disinfec- tion, the board may have such building, hut, or other structure appraised and destroyed, and the council of cities and villages, or other board or body having the powers of council, and the trustees of hamlets and townships, upon the presentation of the original receipt or written statement of the appraisers for arti- cles or houses so destroyed, shall pay to the owner thereof, or other person authorized by the owner to receive the same, the estimated value of such destroyed articles, or such sum as the council or other legislative body may deem a just compensation therefor, and in the event the owner is not satisfied with the amount so allowed he may sue for the value thereof. [Maintenance of person confined in quarantined house.] When a house or other place is quarantined on account of contagious diseases it shall be the duty of the board of health having juris- diction to provide for all persons confined in such house or place, food, fuel, and all other necessaries of life, including medical attendance, medicine and nurses, when necessary; and expenses so incurred, except those for disinfection, quarantine, or other measures strictly for the protection of the public, when properly certified by the president and clerk of the board of health, or health officer where there is no board of health, shall be paid by the person or persons quarantined, when able to make such payment, and when not by the city, village, hamlet or township in which he or they were quarantined, provided that when a person with a contagious disease quarantined in any county is a legal resident of some other county of this state, and is unable to pay such expenses, they shall be paid by the county in which he has a legal residence, if notice and a sworn state- ment of the amount of such expenses are sent to the infirmary directors of said county within thirty days after the quarantine in such case was discharged; provided, further, that the ex- Code § 189] cities, board of health. 431 penses for quarantining a county infirmary or other county public institution, shall be paid by the county when properly certified by the president and clerk of the board of health or health officer, where there is no board of health, of the mu- nicipality, or township in which said institution is located. [1904, May 3, 97 v. 540; 95 v. 428.] Sec. 2129 R. S. [Person residing in quarantined house shall not attend any public gathering until quarantine is removed.] Xo person residing in or occupying any house in which there is a person suffering from smallpox, cholera, plague, typhus fever, diphtheria, membranous croup, or scarlet fever, shall be permitted to attend any public, private, or parochial school or college or Sunday school, or any other public gathering, until the quarantine provided for in such diseases in section 2126 has been removed by the board of health, and all school principals, Sunday school superintendents, or other persons in charge of such schools, are hereby required to exclude any and all such persons until such time as they may present a written permit of the board of health to attend or re-enter such schools. [95 v. 429.] Sec. 2130 R. S. [Hospital for treatment of persons suffering from contagious disease; bond issue.] The council or other legislative body of any city may purchase land or lands within or without its boundaries and erect thereon suitable hospital buildings for the isolation, care or treatment of persons suffer- ing from a dangerous contagious disease, and provide for the maintenance of such hospital ; the plans and specifications for such building or buildings shall be approved by the board of health, and the council or other legislative body is hereby autho- rized to issue bonds ; if after an election held for that purpose, two-thirds of the votes cast at said election are in favor of said issue, in any amount not to exceed $25,000, and at a rate of interest not to exceed 5 per cent per annum, the principal to be paid within ten years and the proceeds applied for the pur- poses aforesaid, and after the erection of such hospital buildings the council or other legislative body may annually make such appropriations for their use, care and maintenance as in its judgment are necessary. Said hospital buildings shall be under the charge and control of the board of health of such city, said board to appoint all employes or other persons necessary to the use, care and maintenance of such hospital buildings, and to regulate the entrance of patients thereto, and their care and treatment therein. When any person suffering from any dan- gerous contagious disease is found in any hotel, lodging house, boarding house, tenement house or other public place in any city, the board of health may, if it deems it necessary for the protection of the public health, remove such person to the hos- 432 the ohio municipal code. [Code §189 pital herein provided for, where all needful provisions shall be made for his care and treatment, and the expenses so incurred shall be paid by such person, if such person is able to pay said expenses. [Quarantine hospital.] Any city, village, hamlet or township may establish a quarantine hospital, within or without its own limits, but if such place be without its limits, the consent of the municipality or township within which it is proposed to establish it shall be first obtained, 1 provided that such consent shall not be necessary if such hospital is more than 800 feet from any occupied house or public highway; and when great emergency exists, the board of health may seize and occupy and use temporarily for such quarantine hospital any suitable vacant house or building within its jurisdiction, and the board of health of the city, village, hamlet or township having a quarantine hospital shall have exclusive control of the same. [95 v. 430.] (1) Pest house. — See note to § 2169 K. S. p. 366. Sec. 2131 R. S. [Disposal of bodies of persons dying of conta- gious diseases.] The bodies of persons who have died of small- pox, cholera, plague, yellow fever, typhus fever, diphtheria, membranous croup, scarlet fever, or other dangerous contagious or infectious disease shall be buried or cremated within twenty- four hours after death except by written permission of the board of health, and no public or church funeral shall be held in connection with the burial of a person who has died of any of the above named diseases, and the body of any such person shall not be taken into any church, chapel, or other public place, and only the adult members of the family and such other persons as are actually necessary shall be present at the burial or cremation of such body. [95 v. 430.] Sec. 2132 It. S. [Admission of persons suffering with contagious disease into prisons or benevolent institutions.] No person suf- fering from smallpox, or other dangerous contagious or infec- tious disease shall be sent to or admitted into any prison, jail, workhouse, infirmary, childrens' or orphans' home or state hos- pital or institution for the insane, epileptic, blind, feeble-mind- ed, or deaf and dumb, or other state or county benevolent insti- tution, and no person who has been exposed to, and is liable to become ill of any such disease shall be sent to any such hospital, home or institution hereinbefore mentioned without first mak- ing known the facts concerning such exposure to the superin- tendent, manager or other person in charge thereof; and when smallpox or other dangerous contagious or infectious disease is present in any jail or prison, and a prisoner therein who has Code §189] cities, board of health. 433 been exposed to any such disease has been sentenced to the peni- tentiary, such prisoner shall be confined and isolated in such jail or prison or other proper place upon the order of the proper court for such time as is necessary to establish the fact that he had not contracted the disease to which he was exposed. [Contagious disease in prison or benevolent institution.] When smallpox, cholera, yellow fever, diphtheria, scarlet fever or other dangerous contagious or infectious disease appears in any prison, jail, workhouse, infirmary, childrens' or orphans' home, state hospital for the insane, or epileptic, or institution for the blind, feeble-minded or deaf and dumb, or other state or county benevolent institution, the superintendent or manager thereof shall at once isolate the person or persons affected with any such disease and enforce the provisions of this chapter for the pre- vention of contagious diseases, in so far as they can be applied, and the rules, regulations and orders of the state board of health to that effect, and the trustees or managers of any such institu- tion shall have authority to erect any necessary temporary build- ings for the reception of any such person or persons, or for the detention of any person or persons who have beeen exposed to any such disease and may remove any such persons to and con- fine them in such building or buildings; and such trustees or managers may contract for the care, treatment or detention of any such persons with any corporation having a hospital or other proper place for the isolation and care of persons suffering from contagious disease, or exposed thereto, and may remove such person to such hospital or place, provided that in the case of persons detained in any institution as punishment for any crime an order for such removal shall be obtained from the court hav- ing imposed such punishment, and said court, in such order for removal, may require such provisions to be made for safely guarding such prisoner while in such hospital or place as it may deem necessary. [95 v. 431.] Sec. 2134 R. S. [Effect of declaring quarantine.] Whenever quarantine is declared all railroads, steamboats, or other com- mon carriers, and the owners, consignees, or assignees of any railroad, steamboat, stage, or other vehicle used for the trans- portation of passengers, baggage or freight, shall submit to any rules or regulations imposed by any board of health or health officer; they shall submit to any examination required by the health authorities respecting any circumstance or event touch- ing the health of the crew, operatives or passengers, and the sanitary condition of the baggage and freight; and any owner, consignee or assignee, or other person interest- 434 the ohio municipal code. [Code §189 ed as aforesaid, who makes any unfounded statement or dec- laration respecting the points under examination,, shall, upon conviction thereof before any court or justice of the peace, hav- ing jurisdiction be subjected to the penalties herein provided for violations of the requirements of this chapter and the orders of the state or local boards of health. [95 v. 432 ; Bates R. S., § 2144.] Sec. 2135 R. S. [To whom and what quarantine rules shall ap- ply.] All rules and regulations passed by the board of health or health officer, shall apply to all persons, goods, or effects ar- riving by railroad, steamboat, or other vehicle of transportation, after quarantine is declared. [95 v. 432 ; Bates R. S., § 2145.] Sec. 2136 U.S. [Needful buildings may be erected; disinfec- tion, etc., of property.] The state board of health or any local board of health shall be authorized to erect any temporary wooden buildings or field hospitals deemed necessary for the isolation or protection of persons or freight supposed to be infected, and may employ nurses, physicians and laborers suf- ficient to operate the same properly, and sufficient police to guard the same. The board of health may cause the disinfec- tion, renovation or complete destruction of bedding, clothing, or other property belonging to corporations or individuals, when such action seems to such board necessary, or a reasonable precaution against the spread of contagious or infectious dis- eases. [95 v. 432 ; Bates R. S., § 2146.] Sec. 2137 R. S. [Board of health in its relation to schools and school buildings; gratuitous vaccination.] The board of health is hereby required to inspect semi-annually, and oftener if in the judgment of the board it shall be deemed necessary, the sanitary condition of all schools and school buildings within its jurisdiction and may, during an epidemic or threatened epi- demic, or when any dangerous communicable disease is unusual- ly prevalent, close any school and prohibit public gatherings for such time as it may deem necessary, and may disinfect any school building. The board shall abate all nuisances and may remove or correct all conditions detrimental to health or well- being found upon school property by serving an order upon the board of education, school board, or other person or persons responsible for such property, for the abatement of such nui- sance or condition within a reasonable but fixed time, and any person failing to comply with such order, unless it is shown that there was good and sufficient reason therefor, shall be fined in any sum not exceeding one hundred dollars. The board may Code §189] citibs. board of health. 4#6 appoint such number of inspectors of schools and school build- ings as it may deem necessary to properly carry out the pro- visions of this section. The board of health may take measures and supply agents and afford inducements and facilities for gratuitous vaccination. [95 v. 433 ; Bates E. S., § 2135.] Sec. 2138 E. S. [Power of municipality or township to borrow money and levy tax therefor in time of epidemic or threatened ep- idemic] In case of any epidemic, or threatened epidemic, or during the unusual prevalence of any dangerous communicable disease, the council of any city or village or trustees of any hamlet or township, if funds are not otherwise available, shall borrow until such time as the next levy and collection thereof be made, and at a rate of interest not to exceed six per cent, per annum, any sum of money that the local board of health may deem necessary to defray the expenses necessary to prevent the spread of any dangerous communicable disease, and the board of health may proceed to expend the amount so author- ized to be borrowed, which sum, or so much thereof as may be expended, sh&L* be a valid claim against the city, village, hamlet, or township, payable from the fund so created; and when expenses are incurred by the board of health, under the provisions of this chapter, 1 it bbnll be the duty of council, upon application and certificate fro;r» the board of health, to pass the necessary appropriation ordin^ees to pay the ex- penses so incurred and certified; and the council is hereby empowered to levy (subject only to the restrictions contained in the ninth division of this title). 2 and set apart the necessary sum to pay such expenses, and to carry into effect the provision? of this chapter, and the provisions of section 2702 3 shall not apply to the necessary expenses of the board of health, and the trustees of each township may annually levy and set aside for the expenses of the township board of health such sum as they deem necessary. [95 v. 433; Bates R. S. §§ 2148.] (1) See note (1) under § 187 of enacted in § 96 of the Code, and the Code, page 418. the provisions corresponding to (2) The ninth division of Title those in the ninth division are now XII., here referred to, related to contained in §§ 95 to 100 both in- " Finance and Taxation," and con- elusive, and § 32 to 49 both inclu- tained §§ 2681 to (2729-11) R. S. sive, of the Code. All these sections are repealed, ex- (3) § 2702 is repealed by the cept 2681 (relating to hamlets) and Code and the provisions correspond- 2709 (identical with Code § 97), Ing to it are contained in § 45 of and those sections which are re- the Code. 436 the ohio municipal code. [Code §189 Sec. 2139 R. S. [Inspectors; appointment and duties; record of meat and milk dealers; permit.] The board of health may ap- point such number of inspectors of dairies, slaughterhouses, shops, wagons, appliances, food and water supplies for animals, milk, meat, butter, cheese and substances purporting to be butter or cheese, or having the semblance of butter or cheese and such other persons as may be necessary to carry out the provisions of this chapter, 1 define their duties, and fix their compensation, and the health officer may be appointed and authorized by said board to perform all the duties of such inspectors; and such inspectors may, for such purpose, enter any house, vehicle, or yard; and the board of health shall keep for public inspection a record of the names, residences, and places of business of all persons engaged in the sale of milk or meat, and may require permits, to be renewed semi- annually and for which a charge of not more than fifty cents may be made, after inspection, to vend either milk or meat, and the board may refuse to grant such permit or revoke one already given if, upon inspection, the cows or milk are found to be kept in an unsanitary condition ; and the board may require a certificate from a licensed veterinarian showing the cows fur- nishing milk brought for sale within its jurisdiction are free from tuberculosis or other dangerous disease, and should scarlet fever, typhoid or other dangerous contagious or infectious dis- ease occur in the family of any dairyman or among his em- ployes, or in any house in which milk is kept for sale, it shall be the duty of such dairyman or vendor of such milk to immediately notify the health officer of the city, village or hamlet in which such milk is sold, or is offered for sale, of the facts of the case, and the health officer may order the sale of such milk stopped, pending an investigation to be made without delay, and for such time thereafter as the board of health may require; and the board of health may make and enforce such orders as it may deem necessary to prevent the sale of impure, adulterated, and unwholesome milk, or milk liable to carry disease. [95 v. 434; Bates R. S. § 2133.] (1) See note (1) to § 187 of the Code, page 418. Sec. 2140 U.S. [Places where meat, butter, cheese, etc., are made, subject to inspection; analysis of milk, butter, etc.] All dai ries, including the cows, cow stables, milk-houses, and milk- vessels, the owners of which offer for sale within the limits of the corporation milk or butter manufactured by such owners, Code §189] cities, board of health. 437 shall be subject to inspection by the inspectors, and also any manufactory of butter or cheese, or place where such sub- stances or either of them are sold, shall be subject to inspection by the inspectors; the inspector may enter any place where milk is sold, or kept for sale, and all carriages used for the conveyance of milk within the corporate limits; and also any manufactory or place where butter or cheese, or substances hav- ing the semblance of butter or cheese, are manufactured, or any place where such substances are sold, or kept for sale within the corporate limits; and whenever he has any reason to be- lieve milk found therein is impure or adulterated, or any but- ter or cheese, or substances having the semblance of butter or cheese found therein contain any impure, unwholesome or dele- terious substances, or is being sold or offered for sale under any false, or deceptive name or designation, that any butter or cheese not made from pure cream or milk, or any substance having the semblance of butter or cheese, is being sold or offered for sale, without being branded or stamped, as re- quired by section seven thousand and ninety, he shall take specimens thereof and subject them to satisfactory tests; or, if the board of health so direct, to chemical analysis, the result of which he shall record and preserve as evidence, and a certi- ficate of such result, sworn to by the analyst shall be admis- sible in evidence in all prosecutions under this chapter, or any law of this state. [95 v. 435 ; Bates K. S., § 2134.] Sec. 2141 R. S. [Registration of births, marriages, deaths, in- terments, etc.; removal or conveyance of corpse.] The board of health may create a complete and accurate system of registra- t\on of births, marriages, deaths and interments occurring with- in its jurisdiction, for the purpose of legal and genealogical investigations., and to furnish facts for statistical, scientific [and sanitary] inquiries; and no corpse shall be buried or cre- mated within the state of Ohio, or taken out of the state with- out a permit from the board of health where the death occurred, and before granting such permit the board of health, if the corpse is to be transported beyond its jurisdiction, shall re- ceive from the undertaker or person in charge of the corpse a written certificate certifying that it has been prepared in accordance with the rules of the state board of health, and any person wilfully making a false statement relative to the preparation of a corpse shall be punished as provided in section 2119 of this chapter; * and no sexton, superintendent, or other person in charge of any cemetery, burial grounds, or crematory shall receive a corpse for burial, or cremation, unless accom- 438 the ohio municipal code. [Code §189 panied with the permit of the board of health provided for herein, and no common carrier, its agent, conductor or other employe shall receive for conveyance, or convey the remains of a deceased person without having first complied with such regulations as shall be made by the state board of health. [95 v. 434; Bates K. S. § 2116 (latter part), and § 2119.] (1) See note (1) to § 187 of the Code, page 418. FORM OF BURIAL PERMIT. City [or village] of Office of the Board of Health. 19.... Permission is hereby given to bury in cemetery [or cremate or remove out of the state] the remains of , who died 19. . . ., at , aged , By order of the Board of Health. Clerk. Sec. 2142 U.S. [Scavengers; employment of.] The council may grant power to the board of health to employ such num- ber of scavengers for the removal of swill, garbage and offal from the houses, buildings, yards, and lots within the city or village as it may deem necessary; and the board in such cases may make the contracts [therefor] thereof, subject to the approval of the council, and to be signed by the proper officers of the council, and may regulate the work to be done, and it shall be the duty of council, upon the request of the board of health, to lease or purchase suitable land or lands, the location of which shall be approved by the board of health, to be used as a dump ground for garbage, swill, offal, night soil and other noxious substances to be removed from such city or village. [95 v. 435.] Sec. 2143 R. S. [Definition of sanitary plant ; plans and esti- mates; condemnation of lands for sanitary plant.] The expres- sion " sanitary plant " as herein used, shall be held to mean a structure with the necessary land and all the necessary fixtures and appliances and appurtenances required for the treatment and purification and disposal, in a sanitary manner, of either or both the Jiquid or solid wastes of the municipality. Upon the recommendation of the board of health of any city, village, or hamlet, or if in any municipality, the powers usually vested Code §189] cities, board of health. . 439 in a board of health, have been vested in any other officer or board, then upon the recommendation of such officer or board, the city council, legislative body or other governing board, of any municipality, is hereby authorized to cause plans and estimates to be prepared and to acquire by condemnation or otherwise such land or lands within or without corporate limits, as may be necessary to provide for the proper disposal, in a sanitary manner, of the sewage and the garbage and waste matters, or either or any of them of the municipality, and such council, legislative body or other governing board of the municipality, is hereby authorized, upon first obtaining the approval of the state board of health, to contract for, erect and maintain a sanitary plant or plants, on the land or lands ac- quired under the provisions of this act, together with all build- ings, machinery, appliances and appurtenances, necessary for the disposal, in a sanitary and economic manner, of the sew- age and garbage, night soil, dead animals, offal, spoiled meats, and fish or any putrid substance, or any liquid or solid wastes, or any substance injurious to health of the municipality. [95 v. 435; Bates E. S. § 2142a.] Sec. 2144. It. S. [Collection, removal and disposal of garbage, night soil, etc.] The said council, legislative body or other governing board, is hereby authorized to contract, for a period not exceeding five years for the collection and removal of such garbage, night soil, dead animals and other solid waste sub- stances, at the expense of such municipal corporation, or at the expense of persons responsible for the existence of such waste substance. [95 v. 436 ; Bates K. S. § 21426.] Sec. 2145 It. S. [How funds raised for such purpose.] For the purpose of carrying into effect the foregoing powers, the coun- cils of cities, legislative bodies or governing boards of any municipal corporation or township may use any funds raised, or heretofore authorized in any manner and necessary for said purposes, and in case no funds are available and no bonds have been hertofore authorized for said purposes, and it be necessary to issue and sell bonds for said . purposes, then the question of issuing any bonds of the municipality shall be submitted at an election conducted therefor in conformity with provi- sions of section 2836, 1 except that a majority of the votes cast shall be deemed sufficient to authorize the municipal cor- poration to issue said bonds under this act, and the council or other legislative body shall not have authority to issue the said bonds unless a majority of the qualified electors of such munici- 440 the ohio municipal codb. [Code §189 pality voting shall be in favor of the proposition to issue said bonds for said purposes. [95 v. 436 ; Bates K. S. § 2142c] ( 1 ) This section, as amended and Act, may be found under § 100 of made part of the Longworth Bond the Code, page 287. Sec. 2146 R. S. [Appointment of sanitary board.] Before sub- mitting said proposition to a vote of the people, the city council, or other legislative body of said municipal corporation may by resolution, determine to have all the work in connection with the erection and maintenance of said sanitary plant and the acqui- sition of the necessary real estate therefor, put under the con- trol of a sanitary board, which shall be appointed before the vote is taken. [Constitution of board; how appointed; term.] Said board shall consist of two citizens from each of the two political par- ties casting the highest, vote at the last preceding municipal election, who shall be appointed by the mayor by and with the consent and approval of the city council, or ofher legislative body of said municipal corporation, and shall serve for a term of two years and until their successors are duly appointed. [Compensation and powers of board.] Said board shall have such reasonable compensation as the city council or other legis- lative body of said municipal corporation may prescribe, and shall have entire control of the erection and maintenance of said sanitary plant and the purchase of the necessary real estate therefor on behalf of said municipal corporation and may, in its discretion, modify said original plans and specifications, subject, however, to the approval of the state board of health, and provided, that the total cost thereof shall not exceed the original estimate. [95 v. 436 ; Bates K. S. § 2142d.] Sec. 2147 R. S. [Levy for sanitary fund.] For the purpose of providing a fund for the payment of the principal and inter- est of the bonds issued under this act, and of maintaining said sanitary plant or plants, said city council or other legislative body shall, in addition to the other levies authorized by law, levy annually a sufficient tax therefor on all the property sub- ject to taxation in said municipal corporation and such taxes shall be levied and collected in the same manner as other taxes ; and the proceeds thereof shall constitute the " sanitary fund " of said municipal corporation, and shall be held like other funds of said municipal corporation subject only to the written order of said city council or other legislative body, or governing or sanitary board of said municipal corporation Code §190] cities, judicial. 441 which shall have control of said work. [95 v. 437 ; Bates E. S. § 2148*] Sec. 2148 R. S. [Sanitary report; its contents, etc.] It shall be the duty of the board of health, or health department, on or be- fore the fifteenth day of January of each year to make a report, in writing, to the council of the corporation, and to the state board of health, which shall be for the preceding calendar year, upon the sanitary condition and prospects of such city or village, which report shall contain the statistics of deaths, the action of the board and its officers and agents, and the names thereof for the past year; and it may contain other useful information, and the board shall suggest therein any further legislative action deemed proper for the better protection of life and health; and it shall be the duty of said boards of health and health departments to promptly furnish such special re- ports as may be called for by the state board of health. [95 v. 437; Bates K. S. § 2136.] 3. JUDICIAL. 1 Sec. 190. [Police court.] In every city where a police court is now established by law, whether by general acts or by acts designating the city by grade or class or otherwise, 2 said police court shall continue to exercise all powers and functions con- ferred by said general or special acts, and shall be known as the police court of the city in which the same now exists. (1) Constitutional provisions therein; but no such change, addi- governing the legislature in estab- tion, or diminution, shall vacate lishing inferior courts and fixing the office of any judge." Art. 4, § their jurisdiction. Art. 4, § 15 of 18 provides that " the several the Const, of Ohio provides that judges of the Supreme Court, of the "the General Assembly may increase, Common Pleas, and of such other or diminish, the number of the courts as may be created, shall, judges of the Supreme Court, the respectively, have and exercise number of the districts of the Court such power and jurisdiction, at of Common Pleas, the number of chambers, or otherwise, as may be judges in any district, change the directed by law." districts, or the sub-divisions there- The municipal Code passed Oc- of, or establish other courts, when- tober 22, 1902, did not receive the ever two-thirds of the members votes of two-thirds of the members elected to each house shall concur elected to each house of the Gen- 442 THE OHIO MUNICIPAL CODE. [Code §§191, 192 eral Assembly. The enactment of a uniform municipal police court law would have required such a vote. Steamboat Northern Indiana v. Milliken, 7 O. S. 383; State v. Voris, 8 N. P., 16. The judicial sections of the Code, with respect both to city and village police courts, must there- fore be considered merely as declara- tory of the intent of the legisla- ture to leave in force the various systems of municipal courts as pre- viously established by general or special laws. It will be observed, however, that several sections of the Revised Statutes relating to police judges and the jurisdiction of po- lice courts are included in the list of repeals in § 231 of the Code. A two-thirds vote of the legisla- ture is not required to abolish courts established by statute or to limit or restrict their jurisdiction. State eu rel. v. Wright, 7 O. S. 333; State v. Kinninger, 46 O. S. 570, 574; State v. Voris, 8 N. P. 16; Sec. 191. [Jurisdiction thereof; how judges, clerks, etc., cho- sen.] The police court of each city as heretofore established and now existing shall have the jurisdiction conferred in any general or special act creating or governing the same, and the judge or judges and clerk, assistant clerks, and all other officers and employes of said court, except the prosecuting attorney, 1 shall be elected 2 or appointed and shall continue to exercise their powers and duties in the manner provided in said existing laws. Backenstoe v. State, 2 N. P. (N. S.) 178. Statutes relating to Police Courts, referred in §§ 190, 191 and 192 of the Code, and still in force, will be found under the title Judicial in Part II. (2) Validity of special acts. — The Supreme Court has upheld spe- cial acts establishing local courts, declaring that § 1 of Art. 4 of the Constitution of Ohio vests in the legislature full power to determine what other courts it will establish, local, if deemed proper, either for separate counties or districts, and to define their jurisdiction; and holding that the power thus con- ferred is not limited by § 26 of Art. 2 of the Constitution, which ordains that all laws of a gen- eral nature shall have uniform op- eration throughout the state. State ex rel. v. Bloch, 65 O. S. 370. See also Meyer v. Dempsey, 62 O. S. 637; State v. Archibald, 52 O. S. 1. (1) City solicitor as prosecut- ing attorney of the police court, »ee § 137 of the Code. (2) Election of police judge and clerk, where not provided for in special acts, see § 230 of the Code. The judge must be elected, and clerk also if court is a court of record. Constitution of Ohio, Art. IV., §§ 10 and 16. Sec. 192. [Certain acts not repealed.] All acts or parts of acts providing for such police courts, or regulating the proced- Code §192] cities, judicial. 443 ure therein, including an act entitled "An act to amend section 6565 of the Kevised Statutes of Ohio/' passed April 10th, 1902, shall be and remain in full force and effect 1 (1) For acts relating to police code, whether they would neverthe- courts, see title Judicial in Part less remain in force by virtue of II. sections 190, 191 and 192, see Lem- Where acts expressly repealed. bo v. State, 14 Dec. 384; Howard — Where acts relating to police v. State, 14 Dec. 483 ; Bachenstoe v. courts are expressly repealed by the State, 2 N. P. (N. S.) 178. 444 the ohio municipal code. [Code §§193, 194 IV ORGANIZATION OF VILLAGES. 1. LEGISLATIVE. Seo. 193. [Council; number of members, election, term, etc.] 1 The legislative power of every village shall be vested in, and exercised by, a council, composed of six members, who shall be elected by the electors of the village, at large, for terms of two years and shall serve until their successors are elected and qualified. At the first municipal election after the taking effect of this act, three councilmen shall be elected for two years, and three councilmen for one year; and each year thereafter three councilmen shall be elected for a term of two years, and shall serve until their successors are elected and qualified. 2 (1) Old section. — Compare old (2) See note 3 under § 116 of { 1672 R. S., repealed. the Code, p. 304. Sec. 194. [Council shall fix bonds and compensation of all offi- cers to be elected or appointed.] Not later than the first day of January next after the passage of this act, the present council in each municipal corporation classified as a village in this act, shall iix the compensation and bonds of all officers to be elected at the first election held under the authority of this act, as well as the compensation and bonds of all officers to be first appointed hereunder ; 1 provided that no compensation shall be allowed to members of council ; * and provided, further, that the com- pensation so fixed shall not be increased or diminished during the term for which any such officer may be elected or appointed. 3 (1) See notes under §117 of the is inconsistent with section 197 aa Code. amended. See note 4 under § 197 (2) Compensation of council- infra. men. — This section is repealed by (3) See note (4) to § 126 of Code, act of April 20, 1904, so far as it p. 326. Code §§ 195-197] villages. cotj^cil. 445 Sec. 195. [President pro tem; village employes.] The council shall, at the first meeting in the month of May of each year, immediately proceed to elect a president pro tem. from their own number, and from time to time provide such employes for the village as they may determine. 1 The president pro tem. of council shall serve for a period of one year, but the employes can be removed at any regular meeting by a majority of the members elected to council. 2 (1) Exception.— See note (2) (2) Compare § 118 of the Code, under § 197 of the Code, infra. and see notes thereunder. Sec. 196. [Powers of council.] Councils of villages shall be governed by the provisions, so far as applicable, of sections 119, 120, 121, 122, 124 and 125 of this act. 1 [Mayor shall have no veto power.] Provided, however, that the provisions of section 125 of this act, so far as said provisions relate to the veto power of the mayor, shall not be applicable to villages; and wherever in said sections the word " city " ap- pears, the word " village " shall be substituted for this purpose. ( 1 ) These sections provide for the government of councils in cities. Sec. 197. [Compensation and bonds of officers, clerks and em- ployes.] Council shall fix the compensation and bonds of all officers, clerks and employes in the village government, 1 except as otherwise provided in this act. 2 All bonds shall be made with sureties subject to the approval of the mayor. The com- pensation so fixed shall not be increased or diminished during the term for which any officer, clerk or employe may have been elected or appointed ; 8 provided that members of council may receive as compensation the sum of two dollars for each meet- ing, not to exceed twenty-four meetings in any one year, 4 and they shall have such other powers as are conferred upon coun- cils of villages by section 1678 of the Revised Statutes of Ohio. [1904, April 20, 97 v. 118.] ( 1 ) Form of ordinance fixing ficers and employes, see that given compensation and bonds of of- under §227 of the Code. 446 the ohio municipal code. [Code §§198, 199 Compensation. — See generally men.— The act of April 20, 1904, notes to § 227 of the Code. . amending § 197 contains the fol- (2) Exceptions.— See §§ 189, lowing language, in the repealing 217 and 218 of the Code, § 2115 section . . . "section ^4 of an R. S. re-enacted in § 189 of the act entitled, An act [etc., the Code, and § 2409 R. S., re-enacted Municipal Code] passed October in § 205 of the Code. 22nd, 1902, so far as its provisions (3) See note (5) to § 126 of the are inconsistent with the provisions Code, page 326. of this act, is hereby repealed." (4) Compensation of council- Sec. 1678 R. S. [Prerogative.] The council shall have the management and control of the finances and property of the corporation, except as may be otherwise provided, and have such other powers and perform such other duties as may be conferred by law. 1 [66 v. 163, § 84.] I (1) Powers strictly limited. — See note (6) to § 7 of the Code, page 44. Sec. 198. [Contracts; how made.] All contracts made by the council of any village shall be executed in the name of the village and signed on behalf of the village by the mayor and clerk, and shall be made subject to the provisions of sections 143 and 144 of this act, so far as the same are applicable. ' ( 1 ) Making of contracts. — The Forms of advertisement, bids, sections above referred to are those etc., see those given under § 143 of which govern the making of con- the Code, page 376. tracts by the board of public service in cities. 2. EXECUTIVE. (a) chief officers. Sec. 199. [Executive power vested in whom.] 1 The execu- tive power and authority of villages shall be vested in a mayor, clerk, treasurer, marshal, street commissioner, and such other officers and departments as are created by this act. 2 Provided, however, that the village council may, when it deems it neces- sary, provide legal counsel for the village, or any department or official thereof, for a period not exceeding two years, end provide compensation for the same. 3 Code §199] VILLAGES. EXECUTIVE. 447 (1) Old section 1706 R. S., re- pealed. ( 2 ) Officers. — Questions relating to powers, liabilities, etc., of mu- nicipal officers, see notes under $ 128 of the Code, page 328. Board of health or health officer. — Sec. 187 of the Code re- quires village councils to establish a board of health or appoint a health officer. For form of ordi- nance establishing board of health, see that given under § 187, page 419. Trustees of public affairs. — Sec. 205 of the Code requires vil- lage councils to establish a board of trustees of public affairs in all vil- lages owning, leasing or construct- ing water-works, electric light plants, artificial or natural gas plants or similar public utilities. For form of ordinance establishing such board see that given under § 205, page 458. (3) Village solicitor may be employed for a period not exceed- ing two years, either by a direct res- olution of council designating the name of the attorney chosen and the terms of his employment; or by or- dinance for the selection by it of a solicitor at stated periods of not exceeding two years; or by resolu- tion directly employing an attorney for any department or officer of the corporation, for some specific legal work, or for a specially designated period not exceeding two years. Certificate that money is in the treasury is not required before con- tract can be made for employment of legal counsel. See § 45 of the Code, page 173. FORM OF ORDINANCE PROVIDING FOR VILLAGE SOLICITOR. Ordinance No. Providing for the employment of a Village Solicitor. Be it ordained by the council of the village of . . , State of Ohio: Sec. 1. That legal counsel shall be provided for this village, and the person employed as such counsel shall be known as the " Solicitor of the Village of " Such solicitor shall be employed by council at its first meeting after the passage of this ordinance; and there- after at the first meeting of council in May annually, a person shall be employed as such solicitor for the ensuing year. Sec. 2. The salary of the solicitor shall be dollars during the period of his service, payable Sec. 3. The solicitor shall be an attorney-at-law, admitted to practice in the courts of Ohio. It shall be the duty of said solicitor to act as attorney and counsel for the village and the officers thereof in their offi- cial capacity, and, as such attorney, to prosecute and defend all actions by or against the village or any department or officer thereof during the term of his employment; and to render legal opinions to the council and to any department or officer of the village upon request in writing. 448 the ohio municipal code. [Code §200 Sec. 4. This ordinance shall take effect and be in force from and after the earliest period allowed by law. 19 President. Attest: Clerk. Mayor. Sec. 200. [Mayor: election, term, qualifications, powers and duties.] 1 The mayor shall be elected for a term of two years, and shall serve until his successor is elected and qualified. 2 He shall be an elector of the corporation. He shall be the chief conservator of the peace within the corporation, 3 and shall have such other powers and perform such other duties as are con- ferred and required in sections 1746, 1747, 1748, 1750 and 1751, of the Revised Statutes of Ohio; such as are provided in this act, and all other acts or parts of acts applying to all villages of the state, and not inconsistent herewith, 4 provided, that the mayor shall pay over to the treasurer of the village, monthly, 5 all fines, license fees, or other moneys of whatever character which may be collected by him, and shall receive such fees as are provided for by section 1843 of the Revised Statutes of Ohio. The mayor shall be the president of council and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie. [Vacancy in office of mayor; how filled.] When the mayor is absent from the village, or is unable for any cause to perform his duties, the president pro tern, of council shall be acting mayor. 6 In case of the death, resignation T or removal of the mayor, the president pro tern, of council shall become the mayor and serve for the unexpired term, and until the successor is elected and qualified, and the vacancy thus created in council shall be filled as other vacancies 8 therein, and council shall Code § 200] VILLAGES. MAYOR. 449 elect another president pro tern, from their own number, who shall have the same rights, powers and duties as his predecessor. [Mayor's compensation.] The mayor in addition to the fees provided for in section 1843 of the Kevised Statutes of Ohio, shall receive such salary, payable quarterly out of the corpora- tion treasury, as may be provided by ordinance, 9 but the amount shall not be increased or diminished during his term of office. (1) Old sections. — Compare § absence of mayor do not include 1744 R. S. under Officers in Part judicial functions exercised by II., and §§ 1753, 1754 R. S. (re- mayor. State v. Hance, 26 C. C. pealed). 273, . (2) See note to § 116 of the (7) When resignation takes Code, page 303. effect. — Acceptance by council is (3) See note (2) under § 129 of not necessary before mayor's resig- the Code, page 330. nation can take effect. Reiter v. (4) Other statutes relating to State, 51 O. S. 74. powers and duties of mayor, not (8) Vacancies in village coun- re-enacted and not repealed by the cil are filled by election by council Code may be found under Officers for unexpired term, and upon fail- in Part II. ur e of council to act within thirty (5) Compare § 1751 R. S., re- days, then by appointment by may- enacted, which requires the mayor or. See § 120 of the Code, made to pay over such moneys weekly. applicable to villages by §196, su- The requirement of monthly settle- pra. ments expressly made above, un- (9) Form of ordinance fixing doubtedly governs. State ex rel. salary and bond of mayor and other v. Hamilton, 47 O. S. 52; State ex municipal officers and employes, see rel. v. Bailey, 37 O. S. 98, 103. that given under § 227 of the Code, (6) Acting mayor's powers, in infra. villages, which he may exercise in Sec. 1746 R. S. [Further duties.] 1 He shall perform all the duties prescribed by the by-laws and ordinances of the corpora- tion ; and it shall be his special duty to see that all ordinances, by-laws, and resolutions of the council are faithfully obeyed and enforced; and he shall sign all commissions, licenses, and per- mits granted by authority of the council, or authorized by this title, and such other instruments as by law or ordinance may require his certificate. [66 v. 169, § 116; (S. & C. 1510, 1511).] (2) This section is also re-enact- ed in § 129 of the Code, applying to cities. See notes to it there. Sec. 1747 R. S. [Supervision of conduct of officers.] 1 He shall supervise the conduct of all the officers of the corporation, in- 450 the ohio municipal code, [Code §200 quire into and examine the grounds of all reasonable complaints against any of them, and cause all their violations or neglect of duty to be promptly punished or reported to the proper au- thority for correction. [66 v. 169 ; § 119.] (I) This section is also re-enact- sd in § 129 oi the Code, applying to cities. Sec. 1748 R. S. [Mayor to record his protest against excess of expenditure.] 1 If, in the opinion of the mayor, an expenditure is authorized by the council exceeding the revenues of the cor- poration for the current year, it shall be his duty to protest against such expenditure, and enter such protest, and the reason therefor, on the journal of the council. [66 v. 261, § 657.] (1) This section is also re-enact- ed in § 129 of the Code, applying to cities. Sec. 1750 R. S. [Annual report to council.] He shall, at the first regular meeting of the council in April of each year, and at such other times as he may deem expedient, report to the coun- cil concerning the affairs of the corporation, and recommend such measures as to him may seem proper. [QQ v. 179, § 122.] Sec. 1751 R. S. [Disposition of fines, etc.] All fines and for- feitures which may be collected by the mayor, or which may in any manner come into his hands, and all moneys which may be received by him in his official capacity, other than his fees of office, shall be by him paid over to the treasury of the corpora- tion weekly, 1 and at the first regular meeting of the council in each and every month, he shall submit a full statement of all such moneys received, from whom and for what purpose re- ceived, and when paid over; but all fines, penalties, and forfei- tures collected by him in state cases shall be by him paid over to the county treasurer monthly. 2 [QQ v. 170, § 123.] ( 1 ) Compare § 200 of the set off uncollected costs on the may- Code, which requires that such or's docket. Deatrick v. Defiance, 1 moneys shall be paid over month- C. C. 340. The fact that council ly, and see note (5) to said sec- made a settlement with the mayor tion. • allowing such set off, will not bar Set off. — Mayor cannot, in action for full amount of fines, etc. an action by city against him to re- lb. cover fines, etc., collected by him, (2) In prosecutions in the Code § 201] VILLAGES. CLERK. 451 name of the state, fines and costs Mayor's fees. — This section has received from persons convicted of been held to apply only to village misdemeanors under statutes must mayors, and not to mayors in cities, be paid into the county treasury and Cambridge v. Smallwood, 27 C. C. where paid into the municipal treas- 302; 6 C. C. (N. S.) 230; Belle- ury, the municipality is liable there- fontaine v. Haviland, 15 N. P. 482 ; for to the county. Cleveland v. 3 N. P. (N. S.) 99. Jewett, 39 O. S. 271. Sec. 1843 R. S. [Fees of officers.] The costs of the mayor and other officers, in all cases, shall be fixed by ordinance, but in no case greater than the fees for similar services before jus- tices of the peace ; and in case of conviction the fees of officers, jurors, and witnesses shall be taxed against the parties con- victed; and in case of acquittal of the violation of an ordi- nance, the costs, except the fees of the mayor and marshal, shall be taxed against the corporation. 1 [66 v. 180, § 197.] (1) Where persons convicted Jones v. Commissioners and Lewis work out their fines and costs, v. State, 57 0. S. 189. the mayor is not entitled to collect Necessity of ordinance. — Un- his fees from the municipality. til an ordinance is passed fixing the Gibson v. Zanesville, 31 O. S. 184. fees, the mayor is not entitled to Limitation of fees. — An officer charge. Bellefontaine v. Haviland, whose compensation is paid in fees 15 N. P. 482; 3 N. P. (N. S.) 99. is authorized to charge fees in those Other statutes on mayor's cases only which are provided by court will be found under title statute. State v. Lewis, 22 C. C. Judicial in Part II. 618; affirmed by Supreme Court, see Clerk. Sec. 201. [Clerk: election, term and qualifications ; powers and duties; seal.] 1 The clerk shall be elected for a term of two years and shall serve until his successor is elected and qualified. He shall be an elector of the corporation. The clerk shall attend all meetings of council and keep a record of its proceedings, 2 and of all rules, by-laws, resolutions and ordinances passed or adopted, and the same shall be subject to the inspection of all persons interested; and in case of the absence of the clerk, council shall appoint one of its own mem- bers to perform his duties for the time. The clerk shall perform all the duties of an auditor required in sections 133 and 134 of this act, and whenever the words, " city " or " auditor " appear in said sections, the words, " vil- lage " or " clerk " shall be substituted for this purpose. The clerk shall also have the powers and perform the duties con- 452 the ohio municipal code. [Code §201 ferred and required in sections 1756, 1757, 1758, 1759, 1761, 1762, and 1763, of the Revised Statutes of Ohio, and such other powers and duties as may now or hereafter be conferred or re- quired by ordinance or by any law applying to all villages of the state. Council shall provide a seal for the clerk, in the center of which shall be the name of the village, and around the margin the words, " village clerk," an impression of which seal shall be affixed to all transcripts, orders, certificates or other papers requiring authentication. 3 (1) Old sections. — Compare old (3) Seal of clerk is not the seal |§ 1755 and 1764 R. S., repealed. of the municipality for the purpose (2) Correction of journal. — of the signing and sealing of deeds Clerk has neither the power nor of the corporation, and its use for the right to correct the journal of this purpose will not be effectual in council, after council has passed such deeds. Tiffin v. Shawhan, 43 upon the record of its proceedings; O. S. 178. The corporate seal of and mandamus will not lie to com- the village is provided by council pel the clerk to do so. McClain v. ' and is in the keeping of the mayor. McKisson, 15 C. C. 517, aff'd 54 lb. And see § 1745 R. S., under O. S., 673. Officers in Part II. Sec. 1756 R. S. [Clerk to make detailed statement of receipts and expenditures.] 1 He shall, on or before the third Monday in March of each year, make and enter in the record book of the corporation, a detailed statement of all the receipts and ex- penditures, the number and amount of bonds issued, and for what purpose of the corporation for the preceding year, stating from what sources the money was received, and to whom paid, and for what purposes expended and showing the exact condition of the several funds of the corporation, and all outstanding liabilities, if any, to whom due, and for what purpose. [1883, March 21 : 80 v. 65 ; Rev. Stat. 1880 ; 67 v. 71, § 129.] (1) This section is also re-enact- ed in § 134 of the Code, where it is made to apply to city auditors. Sec. 1757 R. S. [Statement to be posted at voting precincts, or published in newspaper; penalty for neglecting; publication in book form sufficient.] 1 He shall cause a copy of said detailed Code §201] VILLAGES. CLERK. 453 statement, which shall be approved by the mayor to be posted at the places of holding elections for officers of the corporation, on the first Monday of April, annually ; any incorporation having a population of over two thousand (2000), the clerk shall have same published once in some newspaper published or of general circulation in the corporation, at least five days prior to the first Monday of April ; and, upon the order of the council, the clerk shall, at any time, furnish to it a detailed statement of all receipts and disbursements, for such periods as it may require. Any clerk refusing or neglecting to conform to the provisions of this and the next preceding section, shall be fined by the mayor, or police court as the case may be, not more than thirty dollars or less than twenty-five dollars for the use of the cor- poration. The provisions of section one thousand seven hundred and fifty-six, and one thousand seven hundred and fifty-seven shall not apply to any municipal corporation that publishes annually a detailed statement of the receipts and expenditures in book form or in any other printed manner. [1883, March 21: 80 v. 65; Eev. Stat 1880; 67 v. 71, § 130.] (1) This section is also re-enact- ed in § 134 of the Code, where it is made to apply to city auditors. Sec. 1758 R. S. [Report to auditor of state, etc.] 1 He shall, on or before the first Monday of June, in each year, report to the auditor of the state 2 the aggregate expenses of the corpora- tion for the preceding year, under the following heads : school, police, streets, bridges, fire department, lights, poor, salaries, and interest ; and also the amount of the general corporation tax for all the preceding objects, and for any others not enumerat- ed, and the special taxes levied and collected by the corporation for the same period : provided, that the city auditor, in any city having such officer, shall perform the duties imposed upon the clerk by this and the two preceding sections. [67 v. 71, § 131 ; (S. & C. 1543).] (1) This section is re-enacted in May 10, 1902 (95 O. L. 511) which § 134 of the Code, where it is made will be found under Officers in to apply to city auditors. Part II. Application for forms (2) Reports to state auditor and blanks may be made to the by public accounting officers are re- " Bureau of inspection and super- quired to be made in conformity with vision of public offices," in the of- the uniform accounting law, passed fice of the auditor of state. Sec. 1759 R. S. [Shall certify to the court election of certain officers.] 1 He shall certify to the court of common pleas of the UNIVERSITY 454 the ohio municipal code. [Code §201 county in which the corporation is situated, the election of every officer of the corporation having power to discharge the duties of a justice of the peace, or to take the acknowledgment of deeds, or to certify depositions or affidavits to be used within the limits of such corporation, with the date of such election, and the time when such officer became legally qualified to discharge the duties of such office; which certificate shall be made within ten days after such qualification. [66 v. 171, § 132; (S. & C. 1536).] ( 1 ) This section is also re-enact- ed in § 134 of the Code, where it is made to apply to city auditors. FOEM OF CERTIFICATE. To the Clerk of the Court of Common Pleas, County, Ohio: I, , Clerk of the village of , State of Ohio, hereby certify that on the day of , 19 .... , was duly elected (here insert title of office) and qualified for said office on the day of , 19 IN WITNESS WHEREOF, I have hereunto set my hand and official seal this day of , 19 Clerk of the village of (Seal.) Sec. 1761 R. S. [Penalty for neglect.] 1 Every clerk whose duty it shall be to make such certificate, or record the same when presented for record, who neglects or refuses to perform the duties enjoined by this chapter, shall pay to the treasurer of the corporation, for every such neglect or refusal, the sum of fifteen dollars, to be recovered in a civil action, at the suit of such corporation; and shall also be liable for all damages arising from such neglect or refusal ; and any corporation clerk who neglects to make report as provided in section seventeen hundred and fifty-eight shall forfeit one hundred dollars, to be recovered in a civil action, with costs, in the name of the cor- poration, and for its use. [66 v. 172, § 134; 67 v. 71, § 131 ; (S. &C. 1536).] (1) This section is also re-enact- ed in § 134 of the Code where it is made to apply to city auditors. Sec. 1762 R. S. [When clerk shall perform duties of auditor, etc.] In corporations in which there is no city auditor,, the clerk shall perform the duties of auditor, under the direction Code §§ 202, 203] villages, treasurer. 455 of the council, and such other duties pertaining to his offiec as may be prescribed by the council ; x and he shall have the charge and custody of the laws and ordinances, and the books, records, and papers of the corporation, and shall carefully keep and preserve them in his office, and shall prepare and certify all transcripts that may be required of any record or paper in his office, and shall be entitled to receive therefor the same fees as other officers for similar services. [1904, April 25, 97 v. 383; 66 v. 172, § 135.] ( 1 ) Appointing power. — The tendent or janitor of a public or council was held not to have au- city hall. Lillard v. Ampt, 4 N. P. thority to confer on the clerk 305. the power to appoint a superin- Sec. 1763 R. S. [Shall deliver books, etc., to city auditor.] Upon the creation of the office of city auditor, 1 the clerk shall, upon demand deliver to the incumbent of such office, when duly qualified, all the records, books, papers, vouchers, and docu- ments in his possession pertaining to the duties of such auditor. [66 v. 172, § 136.] (1) This section inapplicable except upon advancement of village to city. Treasurer. Sec. 202. [Treasurer: election, term and qualification; pow- ers and duties.] The treasurer shall be elected for a term of two years, and shall serve until his successor is elected and qualified. He shall be an elector of the corporation. He shall have all the powers, perform all the duties, and be subject to all the provisions contained in section 135 of this act with respect to the office of city treasurer, and whenever the word " city " appears in said section the word " village " shall be substituted for this purpose. 1 (1) Sections governing village Revised Statutes re-enacted therein, treasurers. — See note to § 135 of which by § 202 above are made ap- the Code, and see sections of the plicable to village treasurers. Street Commissioner. Sec. 203. [Street commissioner: appointment, term, qualifica- tion, vacancies, duties.] 1 The street commissioner shall be ap- 456 the ohio municipal code. [Code §204 pointed by the mayor and confirmed by council for a term of one year and shall serve until his successor is appointed and qualified. He shall be an elector of the corporation. Vacan- cies in the office of street commissioner shall be filled by the mayor for the unexpired term. The street commissioner, or an engineer when one is so provided for by council, under the direction of council, shall supervise the improvement and repair of streets, 2 avenues, alleys, lands, lanes, squares, wharves, land- ings, market houses, bridges, viaducts, sidewalks, sewers, drains, ditches, culverts, ship channels, streams and water courses; the lighting, sprinkling and cleaning of all public places, and shall perform such other duties, consistent with the nature of his office, as council may require, and shall have such assistants as council may provide, who shall be employed by the street com- missioner and shall serve for such time and at such compensa- tion as may be fixed by council. The marshal in any village shall be eligible to appointment as street commissioner. (1) Old section. — See § 1706 (2) Corresponding provisions R. S., repealed. applicable to cities. — Compare Other statute.— See § 1782 R. §§ 140 and 141 of the Code and S. under Officers in Part II. see notes thereunder, pp. 851, 352. (b) care of parks and institutions. Sec. 204. [Provision for care, supervision and management of public institutions. ] * The council shall provide by resolution or ordinance for the care, supervision, and management of all public parks, baths, libraries, market houses, crematories, sew- age disposal plants, houses of refuge and correction, workhouses, infirmaries, hospitals, pest houses, or any of said institutions, now owned or maintained or which may hereafter be established by any village. Provided, that whenever the council may de- termine to plat any of the streets as authorized by law, the council shall provide for the platting thereof. 2 Code §205] villages, trustees of public affairs. 457 (1) Corresponding provisions therein, and see notes thereto, page applicable to cities.— Compare 851 et seq. § 141 of the Code and sections of (2) Platting commission in the Revised Statutes re-enacted cities. — Compare § 142 of the Code. (c) TRUSTEES OF PUBLIC AFFAIRS. Sec. 205. [Board of trustees of public affairs; election, term, etc., :>r members; vacancies.] 1 In all villages in which water- works, electric light plants, artificial or natural gas plants or other similar utilities are situate at the time of the passage of this act, or which at such time are in process of construction, 2 or when council orders 3 water-works, electric light plants, natural or artificial gas plants, or other similar public utility to be constructed or to be leased, or purchased from any individ- ual company or corporation, council shall at such time establish a board of trustees of public affairs for such village, consisting of three members who shall be residents of the village and shall be each elected for a term of two years ; provided, however, that in the event that the council shall in accordance with' the provisions of this act, establish such board of trustees of public affairs, the mayor of such village shall appoint the members of such board subject to confirmation by the council, who shall hold their respective offices until such time as their successors shall have been elected in accordance with the provisions hereof, and such successors shall be elected at the next regular election of municipal officers held in such village. In case of any vacancy from death, resignation or otherwise, the same shall be filled for the unexpired term by appointment by the mayor subject to confirmation by the council. [Organization; powers and duties.] Said board shall organ- ize by electing one of its number, president, and shall have au- thority to elect a clerk, who shall be known as the clerk of the board of trustees of public affairs. Said board shall have all 458 the ohio municipal code. [Code §205 the powers and perform all the duties that are provided to be performed by the trustees of water-works in sections 2407, 2409, 2410, 2411, 2412, 2413, 2414, 2415, 2416, 2417, 2418, 2419, 2420, 2421, 2422, 2423, 2425, 2426, 2427, 2428, 2429, 2430, 2431, 2432, 2433, 2434 and 2435 of the Kevised Statutes of Ohio, and such other duties as may be prescribed by law or ordinance not inconsistent herewith. 4 [1906, April 16, 98 v. 252.1 ( 1 ) Old sections. — Compare old etc. But under the present section §§ 2408 R. S. and 2487 R. 8., re- council may establish such "board, pealed. when it orders water-works, etc. (2) Process of construction. — (3) Power to establish and Meaning of this term, see State ex maintain water- works, lighting, rel. v. Chillicothe, 7 O. S. 355. power, heating and natural gas Where the power was given to es- plants is given to all municipalities tablish a board only when water- in paragraph 15 of § 7 of the Code, works, etc., were already construct- page 54. ed or "in progress of construction," (4) Other statutes relating to such board could not be chosen water-works not re-enacted or re- when the municipality had done no pealed by the Code will be found in more than authorize borrowing Part II. money to construct water-works, FORM OF ORDINANCE ESTABLISHING BOARD OF TRUSTEES OF PUBLIC AFFAIRS. Ordinance No To establish a Board of Trustees of Public Affairs for the Village of Be it ordained by the council of the village of , State of Ohio: Sec. 1. That a board of trustees of public affairs for the village of consisting of three members, residents of said vil- lage, be, and hereby is, established as provided in § 205 of the act of the General Assembly passed October 22, 1902 (96 Ohio Laws, page 85), and that the members of said board shall be elected in accordance with, and shall be subject to, all the provisions of the said act. Sec. 2. That the members of said board shall each receive $ per annum, payable and shall each give bond in the sum of $ in the manner pro- vided by law. Code §205] villages, trustees of public affairs. 459 Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed 19 President. Attest: Clerk. Sec. 2407 R. S. [General power of council as to land, etc., for waterworks.] The council of a city or village shall have power to take possession of any land obtained for the construction or extension of water-works, reservoirs, or the laying down of pipe, and also any water rights or easements connected with the use of water; and any land, water right, or easement so taken possession of for water-works purposes shall not be used for any other purpose, except by authority of the trustees and consent of the council. [66 v. 205, § 334; (S. & O. 1529).] Sec. 2409 R. S. [Salary of trustees; duties of trustees or board; duties as to electric light plants in certain villages and cities.] The trustees shall receive a fixed salary, to be determined by the council, and the trustees or board shall manage, conduct and control the works, 1 furnish supplies of water, collect water- rents, and appoint all necessary officers and agents, and fix the term of office and the amount of salary of each officer and agent so appointed. 2 Provided, that in all villages situate in coun- ties containing cities of the first grade of the first class and in all cities of the fourth grade of the second class 3 owning and operating in connection with its water-works an electric light plant for commercial or street lighting, or both, or when such plant is in progress of construction, or when council orders such plant to be constructed in connection with the water-works, it shall be the duty of such trustees, in addition to the duties above mentioned, to manage, conduct, control and operate such plant in connection with the water-works, furnish light, collect light rents from private consumers, appoint all necessary officers and agents, and fix the term of office and the amount of salary of each officer and agent so appointed, and all money collected for electric light purposes shall be deposited weekly with the treasurer of the corporation, and all money arising from a levy for light purposes, or from the proceeds of the sale of bonds issued for the purpose of constructing or improving the electric light plant, shall be paid out by the treasurer of the corporation on the order of such trustees, which order shall be countersigned by the clerk of the board of trustees ; and all the provisions of 460 THE OHIO MUNICIPAL CODE. [Code §205 this chapter relating to the powers, duties, privileges and govern- ment of the trustees of the water-works shall, so far as ap- plicable, control such trustees in the management of such elec- tric light plant. [92 v. 192 ; 90 v. 118 ; 66 v. 206, § 336.] ( 1 ) Powers. — Trustees may con- tract with a mill-owner for part of his slack water for use in water- works. Fremont v. June, 8 C. C. 124. Purchasing or leasing real es- tate. — The board has not the power to purchase or lease real estate. This power is in council. Dayton v. Cooper Co., 7 N. P. 495, and the municipality will not be estopped by acts of the trustees in leasing re«J estate. lb. Municipality, as a riparian proprietor, has the right to take water from a stream for the use of its water -works, and other ri- parian owners cannot complain, if no more is taken than required for the works. Canton v. Shock, 66 O. S. 19. But see contra, Warder v. Springfield, 17 B. 398. But the municipality cannot take more than a reasonable amount in supplying manufacturers with water power, and it cannot supply inhabi- tants outside the municipality. Canton v. Shock, 66 O. S. 19. Sections construed. — The inten- tion of these sections on the subject of water- works seems to be to give the board full control of the water- works, including contracting for en- largements and improvements, and the disbursement of the water- works fund. State v. Griffin, 4 C. C. 156; Cincinnati ex rel. v. Cin- cinnati, 11 C. C. 309. The board would have power to appoint experts to investigate as to the condition, sufficiency of pres- ent works, etc. Cincinnati ex rel. v. Cincinnati, 11 C. C. 309. Municipal liability. — Municipal- ity was held liable for injury caused by a defective service pipe leading from a main water pipe, af- ter notice of a leak and failure to repair. Cincinnati v. Jacob, 18 B. 65. See generally as to municipal liability notes under § 28 of the Code, p. 116. (2) Removal of appointees. — Where the board has the power to fix the terms of officers, and fixes the term as one year, " unless sooner removed," it may remove at any time without charges or a hearing. Lawrence v. Cincinnati, 3 Rec. 598. ( 3 ) See note " Grades and class- es under new Code " under § 1599 R. S., page 31, and see State v. Baker, 55 O. S. 1. Sec. 2410 It. S. [By-laws, etc.] The trustees shall be author- ized to make such by-laws and regulations as they may deem necessary for the safe economical, and efficient management and protection of the water-works, and such by-laws and regu- lations shall have the same validity as ordinances, when not repugnant thereto, or to the constitution and laws of the state. [66 v. 206, § 337.] Sec. 2411 R. S. [Assessment and collection of water rents; Cincinnati.] For the purpose of paying the expenses of con- Code §205] villages, trustees of public affairs. 461 ducting and managing the water-works and also for the purpose and in the manner set out and provided in section 2411a of the Revised Statutes of Ohio, 1 the trustees or board shall have the power to assess and collect from time to time a water-rent of sufficient amount, in such manner as they may deem most equitable, upon all tenements and premises supplied with wa- ter ; 2 and where more than one tenant or water taker is sup- plied with water from one hydrant or off the same pipe, and when the assessments therefor shall not be paid when due, the board shall look directly to the owner of the property for the entire rent or so much therefor [thereof] as remains unpaid for water furnished said premises, to be collected in the same manner as other city taxes, except that in cities of the first grade of the first class, 3 the board of administration may pro- vide for assessing the cost and expenses of laying or extending water mains upon the lots or lands bounding or abutting upon the streets, lanes, alleys, highways, market spaces, public land- ings and in commons in or along which such water mains are laid or extended by the foot front [,] according to the valua- tion of the same on the tax list or according to the benefits as they shall determine. [94 v. 57; 90 v. 198; 86 v. 364; 84 v. 10 ; Eev. Stat of 1880 ; 71 v. 109, § 338.] (1) The section here referred to polis v. Trustees, 2 N. P. 161; Alter is repealed by the Code. It related v. City, 56 O. S. 47. to bond issues for establishment of Power limited. — Power to assess filtration plants by cities of third and collect water rents is limited grade of second class. by the statute conferring it. See (2) Nature of water rent. — Ramsey v. Columbus, 12 Dec. 725. Water rent is an assessment rather (3) See note "Grades and class- than a tax. If not paid, the prop- es under new Code " under § 1599 erty may be sold to pay it. Galli- R. S., p. 31, and see State v. Baker, 55 O. S. 1. Sec. 2412 R. S. [Disposition of surplus.] If there is any- surplus, after paying the expenses of conducting and managing the water-works, the same may be applied to the repairs, en- largement, or extension of the works, or of the reservoirs, the payment of the interest of any loan made for their construction, or for the creation of a sinking fund for the liquidation of the debt; and the amount authorized to be levied and assessed for water-works purposes shall be applied by the council to the creation of a sinking fund for the payment of the indebtedness incurred for the construction and extension of water-works, and for no other purpose whatever. [87 v. 4; 86 v. 299; Rev. Stat. 1880 ; 66 v. 206, § 339.] 162 the ohio municipal code. [Code §205 Sec. 2413 R. S. [Monthly reports and weekly deposits.] The trustees or board shall make monthly reports to the council of the receipts and disbursements of money belonging to the water-works, and an annual report of the condition of the same, which report the council may cause to be published in some newspaper of general circulation in the corporation; and all money collected 1 for water-works purposes shall be deposited weekly, by the collectors thereof, with the treasurer of the cor- poration, and one of the receipts therefor shall be by such col- lectors deposited with the trustees, board, or authorized agent. [66 v. 206, § 340.] (1) Charge for reading me- ters, in addition to the charge for ters. — Consumers cannot be water used. Bancroft v. Wall, 29 charged for monthly reading of me- B. 306. Sec. 2414 R. S. [Money to be kept as a distinct fund.] Money so deposited shall be kept as a separate and distinct fund, subject to the order of the trustees or board; and all orders drawn by the trustees or board, 1 on the treasurer of the cor- poration, shall be signed by one of the trustees or board, and countersigned by the clerk of the water-works, or of the board of public works. [66 v. 206, § 341.] (1) Orders must show on their for improvement of water-works al- face that they were issued by order ready constructed, is to be paid by of the board, or the treasurer will order of the trustees and the treas- not be bound to honor them. Trus- urer must pay such order. State v. tees v. Corzilius, 35 O. S. 69. Griffin, 4 C. C. 156. Money raised by bond issue, Sec. 2415 U.S. [Trustees or boards may make contracts, etc.] The trustees or board shall be authorized to make contracts for the building of machinery, water-works, buildings, reservoirs, and the enlargement and repair thereof, and the manufacture and laying down of pipe, and the furnishing and supplying with connections all necessary fire hydrants for fire department purposes, and keeping the same in repair, and for all other necessary purposes to the full and efficient management and construction of water-works. [70 v. 11, § 342.] Sec. 2416 R. S. [Annual investigation.] The council of any corporation, in which water-works are situated, or in progress of construction, shall be authorized to appoint a committee for the investigation of all books and papers, together with all matters pertaining to the management of the water-works, at Code §205] villages, trustees of public affairs. 463 least once a year, and oftener, if necessary, by reason of any neglect of duty, or malfeasance on the part of any officer of the works, and any officer of the works, found by such com- mittee so offending, shall be liable to removal from office by the council. [66 v. 206 (207), § 343; (S. & C. 1529).] Sec. 2417 R. S. [No charge for water to extinguish fires.] No charge shall be made by the trustees or board for supplying water for extinguishing fires or cleaning fire apparatus, or for furnishing and supplying connections and fire hydrants, and keeping the same in repair, for fire department purposes, or the cleaning of market-houses, or for the use of public school build- ings, or for the use of any public buildings belonging to the corporation, or for any hospital, asylum, or other charitable in- stitution devoted to the relief of the poor, the aged, infirm, or destitute persons, or orphan children, and in cities of the first grade of the first class the board of city commissioners may, when it deems expedient, supply water without charge to any zoological garden in or near such cities, so long as the company or association owning such garden pays no dividend to its stockholders; but any member of such board may at any time enter such garden and examine into any waste or unnecessary use of the water, and the board may, at any time, revoke the grant of such free use of water. 1 [70 v. 11, § 344; 76 v. 84, § 1; (S. & C. 1529).] (1) Validity. — This section was It was held to apply to state in- held constitutional in Gallipolis v. stitutions as well as municipal. lb. Trustees, 2 N. P. 161. Sec. 2418 R. S. [Protection of attachments, etc.] Attachments of whatever nature made to the water-pipes, or other fix- tures belonging to the water-works, and intended for public use, shall be subject to the same supervision, rules, and regu- lations, as are made for the protection of water-works against abuse, destruction, and inordinate or unnecessary use or waste of water, or the trustees may make general or special rules and regulations for such purpose. [6Q v. 207, § 345.] Sec. 2419 It. S. [Rules as to contracts.] The trustees or board, before entering into any contract for work to be done, the estimated cost of which exceeds ^ve hundred dollars, shall cause at least two weeks' notice to be given, in one or more daily newspapers of general circulation in the corporation, that proposals will be received by the trustees, for the performing of the work specified in such notice ; and the trustees shall contract 464 the ohio municipal code. [Code §205 with the lowest bidder, if in their opinion he can be depended on to do the work with ability, promptness, and fidelity; and if such be not the case, the trustees may award the contract to the next lowest bidder, or decline to contract, and advertise again. 1 [Q6 v. 207, § 346 ; (S. & C. 1529).] ( 1 ) Awarding contract.^ See, lowest bidder, if the board does not generally, notes to § 143 of the Code. deem him qualified. Fergus v. Discretion of board. — In deter- Columbus, 6 N. P. 82; McClain v. mining which of several bidders for McKisson, 15 C. C. 517 (affirmed pumping machinery is the lowest, 54 O. S., 673. the board is vested with a discretion. Certificate of money in treas- Fergus v. Columbus, 6 N. P. 82. ury, held not necessary in case of Next lowest bidder was held to such contracts, under former laws, mean the next qualified bidder and Fergus v. Columbus, 6 N. P. 82. not to require award to the next Sec. 2420 R. S. [Contractors must give bond, etc.] The trustees or board shall require bond to be given, 1 with good and sufficient security, for the faithful performance of the work; but no member of the board of trustees, or public works, shall be such security ; nor shall any trustee, or member of the board of public works, be a contractor, or in any wise, either directly or indirectly, interested in any such work to be contracted for, 2 provided that in case of emergency, council may, by a vote of two-thirds of all the members elected, authorize the trustees or board to enter into such contracts without advertising. [66 v. 207, § 347; (S. & C. 1530).] (1) Bond.— See note (7) to § contract.— See note (3) to §45 of 143 of the Code, p. 374. the Code, page 176. (2) Members interested in Sec. 2421 R. S. [Extension of aqueducts, etc., beyond corpor- ation limits; mains and water-pipes extended, at expense of in- dividuals, under supervision of water- works officer.] The trustees or board or council of any corporation owning water-works, may, on the written request of any number of citizens living outside of the limits thereof, extend, construct, lay down and maintain aqueduct and water-pipes to any distance outside the corporation limits, not exceeding four miles, and for this pur- pose shall have the right to make use of such of the public streets, roads, alleys and public grounds as may be necessary therefor. And when any person or persons, at his or their expense have heretofore or may hereafter lay down and extend Code §205] villages, trustees of public affairs. 465 any mains and water-pipes beyond the limits of such corpora- tion, as herein provided, and such corporation has, by resolution of its trustees of water-works, council, board of control or ad- ministration, or city commissioners, or either of them, author- ized its superintendent, or other officer of the water-works, to superintend or supervise the laying and extension of such mains and water-pipes, such corporation is hereby authorized and re- quired to furnish water to the residents and property holders on the line of such mains and water-pipes, but subject to the same rules and regulations except as to rates, which shall not exceed those charged within the corporation by more than one- tenth thereof, that such corporation furnishes water to its own citizens ; and all ordinances except those relative to taxation or assessment, resolutions, rules and regulations relative to the con- struction, maintenance and operation of water-works, mains, hydrants, service-pipes and connections, and the protection thereof, now in force and operation on the municipality, or which may hereafter be passed and adopted, shall operate in like manner in the territory outside of the municipality when such extension has been made, and for the enforcement of the same the jurisdiction of the mayor and police shall extend into and over said territory. S.aid corporation shall take full charge and control of said mains and water-pipes, keep the same in re- pair at its own expense, and in the event of annexation to the corporation of the territory wherein such mains and water- pipes have been laid, such corporation shall pay to such person or persons a just compensation therefor, and shall thereupon become the owner thereof. [90 v. 35; 66 v. 207, § 348; (S. & S. 866).] Sec. 2422 It. S. [Construction and regulation thereof.] Such aqueducts and pipes shall be so constructed and laid as not to interfere, unnecessarily with the use of such streets, roads, alleys and public grounds, as public highways, and public grounds ; and the corporation so extending and establishing any parti of its water-works outside of its limits, shall have the same power and jurisdiction to prevent or punish any pollution of, or injury to, the water so conveyed, or any injury to the works, or any portion thereof, as they may have within the limits of the corporation. [66 v. 208, § 349.] Sec. 2423 It. S. [Water- works in contiguous cities or villages.] Any city or village owning water-works, whose territory is con- tiguous to that of another city or village, may with the assent of such other city or village, establish and maintain such por- tion of its water-works,, as it deems advisable, within the limits 466 THE OHIO MUNICIPAL CODE. [Code §205 of such other city or village, and shall have the right to make use of such of the public streets, alleys, and public grounds of such other city or village as shall be necessary, for the purpose of constructing, laying down, and maintaining all such aque- ducts and water-pipes as shall be required in connection with such water-works, for the conveyance of water along and across such streets, alleys, and public grounds. [66 v. 208, § 350; (S. &C. 1538).] Sec. 2425 R. S. [Authority to supply contiguous cities or vil- lages with water.] Any city or village which has established, or hereafter establishes water-works, may enter into a contract with any contiguous city or village for the supply of the latter with water, upon such terms as shall be mutually agreed upon by the councils of the respective municipal corporations; and any city or village which has water-works, is hereby authorized and empowered to dispose of any surplus water, for manufac- turing or other purposes, by lease or otherwise, upon such terms as may be agreed upon by the board of trustees of the water- works., or public works, and approved by the council of such city or village ; and all moneys received for such surplus water, shall be applied to the payment of the principal and interest of the bonds issued for the construction of such water-works, or other expenses incident to the maintenance of the water-works ; provided, that no lease shall be made for a longer term than twenty years. 1 [69 v. 25, § 352 (S. & C. 1539.)] (1) Villages not contiguous clause of this section. Wright v. cannot be contracted with for water Kennedy Heights, 1 C. C. (N. S.) supply under either first or second 195; 25 C. C. 409. Sec. 2426 U.S. [Cost thereof, how raised.] The amount to be paid for such supply, shall be raised by such city or village in the manner provided for the payment of the expense of con- ducting and managing water-works constructed wholly by a city or village; and the amount so received by the city or village furnishing such supply, shall be applied to the payment of the interest on the sum borrowed for the construction of such water- works, or to defray the expense of their management, as the board of trustees for water-works, or board of public works, shall direct. [66 v. 208, § 353.] Sec. 2427 R. S. [Works to be joint property.] Upon the an- nexation of one municipal corporation to another, the water- works theretofore construed by either, shall thereby become the joint property of the united corporation, and shall thereafter be managed by the board of trustees of the corporation to which such annexation is made, or board of public works, as the case may be. [66 v. 208, § 354; (S. & C. 1539).] Sec. 2428 It. S. [Termination of contract upon annexation, etc.] Any contract entered into by one municipal corporation Code §205] villages, trustees of public affairs. 467 for the supply of water to the other, as hereinbefore- provided, shall be terminated by such annexation ; and so much of the debt incurred by either, in the construction of water- works, as remains unpaid, shall thereafter be a charge upon the united corporation, to the same extent that the separate debt of either, incurred as aforesaid, was, before such union, a charge upon the corporation which constructed the same. [66 v. 209, § 355; (S. &C. 1539).] . Sec. 2429 It. S. [Tax for payment of certain interest.] For the purpose of paying the interest on the money borrowed for the erection and completion of water-works, during the erection and completion thereof, and before they shall have been put in oper^ ation, a tax of sufficient amount shall be assessed and collected, each and every year, in the usual manner of levying and col- lecting taxes in the corporation upon all the taxable property thereof. [66 v. 209, § 356; (S. & C. 1527).] Sec. 2430 It. S. [Tax for payment of interest on loans; Toledo.] For the purpose of paying the interest on any loan which any city or village may heretofore have made, or may hereafter make, for the erection or extension of water-works, and after they shall have been put in operation, and for the building of machinery, a tax of sufficient amount may be assessed and collected, in addition to the amount now authorized by law, by the common council, in each year, upon all the taxable prop- erty, both real and personal, in said city or village, provided that in cities of the third grade of the first class 1 one-fourth of the annual interest upon any such loan or loans shall be con- sidered and treated as expenses of operation, and shall be paid from the revenues derived from such water-works, and a tax shall be levied for only three-fourths of said interest. [90 v. 326; 88 v. 153; 66 v. 209, § 357.] (1) See note "Grades and class- E. S., page 31, and see State v. es under new Code," under § 159P Baker, 55 O. S. 1. Sec. 2431 It. S. [Tax a iien apon property.] The tax, when levied and assessed, shall be a lien upon the property upon which the same is levied, and a charge against the owners thereof, and shall be certified to the auditor of the county, and placed upon the tax-list in a separate column thereof, and col- lected as other taxes ; and the same shall be paid to, and be under the control of, the trustees of the water-works, or board of public works, as the case may be. [66 v. 209, § 358.] Sec. 2432 It. S. [Laying pipes in highway.] The council, or the board of administration in cities of the first grade of the 468 the ohio municipal code. [Code §205 first class, may prescribe, by ordinance, or said board of admin- istration may provide by resolution for the laying down of water-pipes in all highways about to be paved, macadamized or otherwise permanently improved, and for the assessment of the cost and expense thereof upon the lots or parcels of land adjoining or abutting upon the highways in which the same are laid ; but in no case, except as a sanitary measure, shall the council require any house connections to be built further from the main pipe than the outer line of the curbstone. [90 v, 198; 66 v. 209, § 359.] Sec. 2433 R-. S. [Criminal jurisdiction; territorial limits.] The jurisdiction of any municipal corporation to prevent the pollu- tion of its water supply and to provide penalty therefor, shall extend twenty miles beyond the corporation limits. Whoever pollutes any running stream, the water of which is used for domestic purposes by any municipality by putting therein any putrid or offensive substance, (other than fresh or salt water), injurious to health shall be guilty of a misdemeanor, which shall be punishable by a fine of not less than five or more than &ve hundred dollars. It shall be the duty of the board of public service or board of trustees of public affairs of any municipal corporation to enforce the provisions of this section. [97 v. 135; 66 v. 209.] Sec. 2434 E. S. [Municipalities, except cities of the first grade, first class, empowered to contract for a water supply; contract to be submitted to a vote of electors.] Any municipal corpora- tion, except cities of the first grade of the first class * shall have power to contract with any individual or individuals, or any other incorporated company for supplying water for fire pur- poses, or for cisterns, reservoirs, streets, squares, and other public places within the corporate limits, or for the purpose of supplying the citizens of such municipal corporation with water for such time, and upon such terms as may be agreed upon. Provided, that no such contract shall be executed or binding upon any such municipal corporation until the same shall have been ratified by a vote of the electors thereof, at a special or general election, and such municipal corporation shall have the same power to protect any such water supply and prevent the pollution thereof as though such water-works were owned by said municipal corporation. 2 [1885, January 29 : 82 v. 11; 80 v. 71 ; 78 v. 42 ; Eev. Stat. 1880 ; 71 v. 93, § 54.] (1) See note 6, p. 31. of such a contract. Defiance v. (2) Certificate of money in Council, 23 C. C. 96, (reversed on treasury held not necessary in case other grounds, 68 O. S. 520). Sec. 2435 R. S. [Limitation in creating debts.] Except as oth- erwise provided in this title, the board of public works, in cities of the first grade of the first class 1 shall not hereafter be per- Code § 206] villages, police and fire departments. 469 mitted to create any debt for the prosecution of work upon the water-works, beyond the yearly net income of the water-works, nor make any contract in any year that can not be met and paid from the income of the water-works for the year; and all debts created in violation of these provisions shall be absolutely void ; nor shall the . council create any debt, or borrow any money for the use of the water-works, except as authorized in this title. T72 v. 87, § 3.1 ( 1 ) See note to § 2430 R. S., p. 467. (d) POLICE 1 AND EIRE DEPARTMENTS. Sec. 206. [Marshal: election, term, qualification, powers and duties; deputy marshal, policemen, etc.; appointment, compensa- tion, etc.] 2 The marshal shall be elected for a term of two years, shall serve until his successor is elected and qualified and shall be an elector of the corporation. He shall be the peace officer of the village, and the executive head, under the mayor, of any police force now or hereafter established. He shall have such powers and perform such duties as are conferred and required in sections 1848, 1849, 1850, 1851, 1852, 1853 and 1854, of the Revised Statutes of Ohio. Council may pro- vide for such deputy marshals, 3 policemen, night watchmen and special policemen as it may deem best, and fix their duties, periods of service, bonds and compensation, and they shall be appointed by the mayor, and confirmed by the council and may be removed by him for cause which shall be stated in writing to council. The marshal and the deputy marshals, policemen, or night watchman under him, shall have such powers as are now conferred by law upon police officers in all villages of the state, and such other powers, not inconsistent with the nature of their offices, as may be conferred by ordinance. ( 1 V Power to organize and where the mayor made appointments maintain police department is of night watchmen and policemen, conferred upon all municipalities it was held he could not appoint un- in paragraph 14 of § 7 of the til authorized by ordinance of coun- Code, page 53. cil to do so. Schwegman v. St. (2) Old section 1847 R. S., re- Bernard, 12 Dec. 9. pealed; and compare old § 2023 R. Duties of deputy marshals. — S., repealed. For construction of §§ 1848 and (3) Appointment of deputy 1849 R. S. and the powers and du- marshals. — Under former statutes ties of deputy marshals in villages. 470 the ohio municipal code. [Code §206 see Schwegman v. St. Bernard, 12 ments made. Uhrig v. Reading, 8 Dec. 9. N. P. 573. Certificate of money in treas= Powers and duties of deputies ury, necessary to meet salaries, was are same as those of marshals. Uh- held necessary before such offices rig v. Reading, 8 N. P. 573. could be provided for or appoint- « Sec. 1848 U.S. [Duties of marshal.] He shall execute and return all writs and process to him directed 1 by the mayor, and shall, by himself or deputy, attend on the sittings of said court, to execute the orders and process thereof, and to preserve order therein, 2 and his jurisdiction, and that of his deputies, in the execution of all such writs and process, and in criminal cases, and in all cases of a violation of the ordinances of the corpora- tion, shall be co-extensive with the county, and in civil cases shall be> co-extensive with the jurisdiction of the mayor in the same. [71 v. 76, § 141.] (1) Reward for arrest offered tion for the service. Smith v. Com- by person from whom property was missioners, 9 O. 25. stolen, cannot be claimed by officer (2) Duties in court. — The fact arresting under magistrate's war- that the marshal arrested the ac- rant given him for the purpose. cused under a warrant, does not Gillmore v. Lewis, 12 O. 281. disqualify the marshal to perform Officer going outside the state and his duties in the selection of the arresting accused under a magis- jury to try the cause. Mineral City trate's warrant, is acting beyond his v. Render, 51 O. S. 122. powers, and cannot claim compensa- Sec. 1849 R. S. [To suppress riots, etc.] He shall suppress all riots, disturbances, and breaches of the peace, and to that end may call upon the citizens to aid him; he shall arrest all disorderly persons in the corporation, and pursue and arrest any person fleeing from justice in any part of the state ; he shall ar- rest 1 any person in the act of committing any offense against the laws of the state, or the ordinances of the corporation, and forthwith bring such person before the mayor, or other com- petent authority, for examination or trial ; and he shall receive and execute any proper authority for the arrest and detention of criminals fleeing or escaping from other places or states. [66 v. 173, § 142.] (1) Arrest without warrant. — In cases of breach of the peace, See § 7129 R. S., providing for ar- arrest without warrant cannot be rest without warrant; § 1849 must made unless the offense was com- be construed with § 7129. State v. mitted in the presence of the officer. Lewis, 50 O. S. 179. lb. Code §206] villages, police and fire departments. 471 Where the officer is justified In reasonable cause to believe that the making arrest without warrant it is person arrested was guilty of the 01- not necessary to the lawfulness of fense. Burch v. Franklin, 7 !N. P. the arrest that the offender be in- 155. formed of the cause of the arrest, Violating, city ordinances. — where the officer and cause of ar- Council may order arrest without rest were known to him. Wolf v. warrant of persons violating city or- State, 19 0. S. 248. dinances, if in view of officer. White An officer acting bona fide may ar- v. Kent, 11 O. S. 550. rest without warrant one carrying Holding until warrant ob- concealed weapons, if the informa- tained. — Person arrested without tion leading to the arrest would jus- warrant can be detained only as tify a prudent man in so acting. long as is reasonably required to Ballard v. State, 43 O. S. 340. secure warrant. Leger v. Warren, Officer without warrant cannot ar- 62 O. S. 500. As to reasonableness rest on mere suspicion that the per- of delay, see Raitz v. Green, 13 C. son arrested is a deserter from the C. 455. army. Kendall v.' Scheve, 3 C. C. Fugitive from another state 526. But a well-grounded suspicion may be held a reasonable time until would be enough. State v. West, requisition papers can be issued. 3 O. S. 509. Rea v. Smith, 2 Handy, 193. The officer must believe and have Sec. 1850 R. S. [Powers, responsibilities, fees, etc.] He shall have, in the discharge of his proper duties, like powers, be sub- ject to like responsibilities, and shall receive the same fees, as sheriffs and constables in similar cases, for services actually per- formed by himself or his deputies, and such additional com- pensation as the council may prescribe ; but in no case shall he receive any fees or compensation for services rendered by any watchman or other officer, nor shall he receive for guarding, safe keeping, or conducting into the mayor's or police court, any person arrested by himself or deputies, or by any other officer, a greater compensation than twenty cents. [66 v. 173, § 143.] Sec. 1851 R. S. [Disposition of fines, etc.] All fees, costs, fines, and penalties by him collected, shall immediately be paid over to the mayor, and he shall report to the council monthly the amount thereof, and from whence and for what purpose collected, and when paid over. [66 v. 173, § 144.] Sec. 1852 R. S. [Disposition and record of stolen property.] All stolen or other property taken by the members of the police force, in cities of the second class, shall be delivered to the marshal, or officer performing like duties, who shall, in a book to be kept for that purpose, keep a record of the same, together with the name of the person from whom taken, the probable value of the article, and such other information as may seem to him necessary. [74 v. 75, § 1.] 472 the ohio municipal code. [Code §207 Sec. 1853 R. S. [To be held subject to order of mayor.] Such officer shall permit all persons to examine such record at their pleasure; he shall hold all such goods or property subject to the order of the mayor, and dispose of the same as the mayor may direct; and when any such goods or property are sold by him, he shall forthwith pay all sums arising from such sale into the city treasury. [74 v. 75, § 1.] Sec. 1854 R. S. [Report to mayor in regard to stolen property.] Such officer shall, every thirty days, deliver to the mayor of his city a statement, in writing, of all articles of goods or prop- erty which have come into his hands by virtue of his office, which shall show what disposition has been made of the same ; which statement must be sworn to by such officer, who is hereby made responsible to the mayor for all such articles, or their true value. [74 v. 75, § 2.] Sec. 207. [Fire department: organization, etc.] 1 In any vil- lage which now maintains, or may hereafter establish, a fire department, the head of said department shall be a fire chief, an elector oi the corporation, who shall be appointed by the mayor, for a term of two years. 2 Council may provide for the employment of such firemen as it may deem best, and fix their compensation, or for the services of volunteer firemen. All firemen, other than volunteers, shall be appointed by the mayor for terms of one year, by and with the advice and consent of council. In the management of the fire department and the prevention of fires, council shall have all the powers conferred by general law in sections 2470, 2471, 2472 and 2473, of the Eevised Statutes of Ohio, and the fire chief shall have all the powers conferred upon a fire engineer in sections 2474 and 2475, of the Kevised Statutes of Ohio. (1) Power to organize and Power of the mayor under former maintain fire department is statutes to remove fire chief and de- conferred upon all municipalities clare a vacancy. See State ex rel. in paragraph 14 of § 7 of the v. Bryson, 44 0. S. 457; State v. Code, page 53. ' Heinmiller, 38 O. S. 101. (2) Removal of fire chief — Sec. 2470 R. S. [Powers of council as to fire department.] The council of any city or village shall have power to estab- Code §207] villages, police and fire departments. 473 lish all necessary regulations to guard against the occurrence of fires, and protect the property and lives of the citizens against damage and accidents resulting therefrom ; and for this purpose, to establish and maintain a fire department, and pro- vide for the establishment and organization of fire engine and hose companies, and provide such by-laws and regulations for the government of such companies as may be deemed necessary and proper: provided, that no active volunteer fireman, or one who has served ^.ve years consecutively as a volunteer fire- man, shall be required to serve on juries, or perform military duty in time of peace, or labor on the highways. 1 [67 v. 76, § 326; 69 v. 54, § 1.] (1) Municipal liability. — See note ( 1 ) under § 151 of the Code, page 389. Sec. 2471 R. S. [To purchase fire engines, etc.] The council may also purchase, for its own use, or for the use of such com- panies, all necessary fire engines, either steam or hand, hose carriages and hose, and all such other apparatus and instru- ments as shall be deemed necessary to the extinguishment of fires, and establish lines of fire alarm telegraph within the limits of the corporation. 1 [66 v. 204, § 327.] ( 1 ) Municipal liability for fail- for extinguishing fires, see notes ure to provide necessary agencies under § 151 of the Code, page 389. Sec. 2472 R. S. [To erect necessary buildings, etc.] The council may also provide or erect all necessary and suitable buildings, containing rooms for fire engines, hose carriages, fire apparatus, and instruments, and for the meetings of the fire and hose companies. 1 [66 v. 204, § 328.] (1) Not subject to levy on not subject to levy under a judg- execution. — A building erected ment against the city. Cincinnati for a fire engine house, but rented v. Frost, Stearns & Co., 5 B. 684. by the city for other purposes, is Sec. 2473 U.S. [To regulate the erection of structures, etc.] The council shall have power to regulate the erection of houses and business structures and, on the petition of the owners of not less than two-thirds of the ground included in any square, or half-square, prohibit the erection on any such square, or half -square, of any building, or addition to any building more than ten feet high, unless the outer walls be made of iron, stone, brick and mortar, or of some of them, and to provide for the removal of any building or additions erected contrary to such 474 the ohio municipal code. [Code §207 prohibition ; 1 and in cities of the first class 2 the council may prohibit, within such limits as it may deem proper, the erec- tion of buildings, unless the outer walls be constructed of iron, brick and mortar, or stone, brick and mortar. [91 v. 124 ; 66 v. 204, §§ 329, 333.] ( 1 ) Buildings already erected ( 2 ) See notes " Grades and class- before the passage of the ordinance es under new Code " under § 1599 may be moved from one part of the R. S., page 31. prescribed limits to another. Cleve- land v. Lenze, 27 O. S. 383. FORM OF PETITION FOR REGULATION OF ERECTION OF BUILDINGS. To the council of the village of , State of Ohio : The undersigned, being the owners of two-thirds of the ground included in the square [or half* square] bounded as follows: (here insert street boundaries of square or half square ) , in the village of , hereby petition your honorable body to pass the proper legislation to pro- hibit the erection on such square [or half square] of any building or addi- tion to any building more than ten feet high, unless the outer walls be made of iron, stone, brick or mortar, or of some of them, and to provide for the removal of any buildings or additions erected contrary to such prohibition. , owner of feet front. , owner of feet front. etc., etc. FORM OF ORDINANCE TO REGULATE THE ERECTION OF BUILDINGS. Ordinance No To regulate the erection of buildings on the square bounded Be it ordained by the council of the village of , State of Ohio: Sec. 1. That in pursuance of a petition by the owners of two- thirds of the ground included in the square [or half square] bounded by (here insert boundaries) presented to council for that purpose and the power vested in the council by law, the erection on said square [or half square] of any building or addition to any building, more than ten feet high, unless the outer walls be made of iron, stone, brick, or mortar, or of some of them, be and the same is hereby prohibited. Sec. 2. That any building or buildings or additions to any building erected contrary to the provisions of this ordinance shall, after thirty days' notice to the owner to remove the same, be removed by the fire chief and the expense of such removal charged to the owner. Code §208] villages, police and fire departments. 475 Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed 19 Mayor. Attest : ' Clerk. Sec. 2474 U.S. [To invest fire engineer with power, etc.] The council may invest the fire engineer, 1 or any other officer of the fire or police department, with the power, and impose on him the duty, to be present at all fires, investigate the cause thereof, examine witnesses, and compel their attendance and production of books and papers, and to do and perform all such other acts as may be necessary to the effective discharge of such duties, [66 v. 205, § 330.] ( 1 ) This officer would now be the fire chief. Sec. 2475 U.S. [Engineer, etc., may make arrests, etc.] Such officer shall have power to administer oaths, make ar- Tests, and enter, for the purpose of examination, any building which, in his opinion, is in danger from fire; and he shall re- port his proceedings to the council at such times as may be required. 1 [66 v. 205, § 331.] (1) Section cited in State ex rel. v. Bryson, 44 O. S. 457, 469. 3. JUDICIAL. Sec. 208. [Police court.] 1 In every village where a police court is now established by law, whether by general acts or by acts designating the village by grade or class or otherwise said police court shall continue to exercise all powers and func- tions conferred by said general or special acts, and shall be known as the police court of the village in which the same now exists. 2 (1) See notes to § 190 of the §§ 208, 209 and 210 of the Code, Code, page 441. and not repealed, will be found un- (2) Statutes relating to police der title Judicial in Part II. and mayor's courts, referred to in 476 the ohio municipal code. [Code §§209, 210 Sec. 209. [Jurisdiction thereof; how judge, clerk, etc., chosen.] The police court of each village as heretofore established and now existing shall have the jurisdiction conferred in any general or special act creating or governing the same, and the mayor as judge of said court and the clerk, assistant clerks and all other officers and employes of said court, shall be elected or appointed and shall continue to exercise their powers and duties in the manner provided in said existing laws. 1 (1) See notes to § 191 of the Code, page 442. Sec. 210. [Certain acts not repealed.] All acts or parts of acts providing for such police courts, or regulating the pro- cedure therein, including an act entitled, " An act to amend section 6565 of the Revised Statutes of Ohio," passed April 10, 1902, shall be and remain in full force and effect. 1 ( 1 ) See note to § 192 of the Code, page 443. Code §211] MISCELLANEOUS. SAVING EXISTING BIGHTS. 477 MISCELLANEOUS PROVISIONS 1. SAVING OF EIGHTS UNDEE PEEVIOUS LAWS. Sec. 211. [Municipalities created under this act shall succeed to all the rights and liabilities of original municipality ; new rem- edies are cumulative; municipal boundaries.] 1 All rights and prop- erty which are vested 2 in any municipal corporation under its former organization, shall be deemed vested in the same mu- nicipal corporation under the organization provided by this act; and no rights or liabilities, either in favor of or against such corporation, existing at the time of the taking effect of this act, and no suit, prosecution or proceeding shall be in any manner affected by such change, but the same shall stand or proceed as if no such change had been made ; provided, that where a different remedy is given in this act, which can be made applicable to any rights existing at the time it goes into effect^ such remedy shall be deemed cumulative to those al- ready provided, and may be used accordingly. The bounda- ries of all municipal corporations as now established pursuant to any special or general acts shall be and remain as the same are now established, until such time as the same shall be changed in accordance with the provisions of this act. (1) Old sections 1538 and ment were held to constitute a pro- 1539 E. S., repealed, saving clauses ceeding, and when pending at the under the Code of 1869. time the law under which they were (2) Vested rights and proper- taken was repealed, they remain ty remaining. — The steps leading valid as the basis of assessment or to an assessment for street improve- re-assessment. Raymond v. Cleve- 478 THE OHIO MUNICIPAL CODE. [Code §212 land, 42 O. S. 522. Cincinnati v. Seasongood, 46 O. S. 296. Where a contract for improve- ment has been made and the work commenced under an act of the leg- islature, the right to make an as- sessment to pay the costs will not be affected by repeal of the act, where there is a saving clause such as in the above section. Corry v. Gaynor, 22 O. S. 584; Hubbard v. Norton, 28 O. S. 116; and see Goodale v. Fennell, 27 0. S. 426. Whether a section such as this would have any application to im- provements begun after the act took effect, see Toledo v. Toledo, 22 B. 131, 135. Municipal corporations not re- created. — The Code of 1852 was held not to have annihilated and re- created pre-existing municipal cor- porations of the State, but to have re-organized and continued them, leaving their corporate identity un- affected. Fosdick v. Perrysburg, 14 O. S. 472. Under the present Constitution the legislature can neither create a corporation by special act nor con- fer additional corporate power by special act on those already existing any more than it can do these things in respect to private corporations. State v. Cincinnati, 20 O. S. 18; State v. Cincinnati, 23 O. S. 445; State v. Mitchell, 31 O. S. 592. Sec. 212. [How words of enactment or repeal to be construed.] Wherever existing statutes are expressly made to remain in effect by this act, whether by sectional numbers or by title, division and chapter, such statutes, with all other acts amenda- tory thereof or supplementary thereto, shall be of the same force and effect as if fully set forth and incorporated herein; wherever existing statutes are expressly repealed by this act, such repeal shall apply to all acts amendatory thereof or sup- plementary thereto; all sections, subsections, titles, divisions and chapters referred to in this act shall be those contained in the third edition of Bates' Annotated Ohio Statutes, as ap- proved by the act of April 23, 1902 (95 O. L., 241), and this act shall be a part of title XII of said statutes. 1 (1) Construction of Code. — " A code of statutes- relating to one subject is presumed to be governed by one spirit and policy and intend- ed to be consistent and harmonious, and all of the several sections are to be considered in order to arrive at the meaning of any part, unless a contrary intent is clearly mani- fest." Cincinnati v. Guckenberger, 60 O. S., 353. Effect of Codification and Re- vision. — The revision of all stat- utes on a particular subject pre- sumably does not change the con- struction of the original, although the language has been changed. State ex rel. v. Shelby Co., 36 O. S. Code §213] MISCELLANEOUS. SAVING EXISTING EIGHTS. 479 326; Allen v. Russell, 39 0. S. 336; State ex rel. v. Auditor, 43 O. S. 311, 315; State ex rel. v. Stockley, 45 O. S., 304, 308. But a clause added in a revision which qualifies the former operation of a statute must be given effect. Collins v. Millen, 57 0. S. 289. See also Giffin v. Brooks, 3 O. C. 110. Mere change in 'phraseology in a revision does not change for- mer construction unless evidently- intended. Ash v. Ash, 9 O. S. 383; Tyler v. Winslqw* 15 O. S. 364, 368 ; Hamilton v. Stbt. R. B. Hamilton, 16 O. S. 428, 432; Stannard v. Case, 40 O. S. 211, 214; Conger v. Barker, 11 O. S. 1; Boley v. Oh. L. Ins. and Trust Co., 12 O. S. 139, 144; Dutoit v. Doyle, 16 O. S. 400, 405; Brower v. Hunt, 18 O. S. 311, 338. Amendment of act incorpo- rated. — See Brigel v. Starbuck, 34 O. S. 280; Stall v. Macalester, 9 O. 19 ; Clarke v. Thomas, 34 O. S. 46. Repeal of act incorporated. — See Ludlow v. Johnston, 3 O. 553. Amendatory and supplemen- tary acts. — Ham v. Kunzi, 56 O. S. 531; Fidelity, etc., Co. v. Hahn, 33 B. 286 ; Cincinnati v. Taft, 63 O. S. 141; State v. Commr's, 16 C. C. 218 (affirmed 57 O. S. 661). Former law invoked to remove doubt. — State ex rel. v. Brewster, 44 O. S. 249, 252; Heck v. State, 44 O. S. '536, 538. Repeals by implication. — Where a law revises the entire subject mat- ter of a former act and is evidently a substitute for it, the earlier act must be regarded as repealed by implication. Shelby Co. v. Frego, 26 O. S. 488, 491; Lorain Plank Road v. Cotton, 12 6. S. 263 ; Moore v. Vance, 1 O. 1, 10. And where a later statute flatly contradicts an earlier one, the earlier one is repealed by implica- tion. Work v. Massie, 6 O. 503. But where the two statutes can well stand together there can be no repeal by implication. See State v. Davis, 23 O. S. 434. Repeal of repealing act does not revive original act, § 78 R. S. Sec. 213. [Certain officers and employes shall continue to act nntil displaced under provisions of this act.] 1 All officers elect- ed by the people or appointed by any authority, and all em- ployes under any boards or officers in any municipal corporation, and all officers or employes in any educational, charitable, benevolent, penal or reformatory institution in any such cor- poration, now serving as such, shall remain in their respective offices and employments and continue to perform the several duties thereof under existing laws, and receive the compensa- tion therefor until their successors are chosen or appointed and qualified or until removed by the proper authority in accordance with the provisions of this act. 2 (1) Old section.^- Compare § (2) In what cases. — An offi- 1542 R. S. repealed. cer does not hold over unless his 480 THE OHIO MUNICIPAL CODE. [Code § 214 successor is provided for. McHugh v. Cincinnati, 1 C. S. C. R. 145. An officer removed for misconduct does not hold over. State ex rel. v. Hawkins, 44 O. & 98. A clerk of board of water works trustees at time of enactment of new Code, would continue in em- ployment until removed by board of public service. Hutchinson v. Lima, 27 C. C. 545; 6 C. C. (N. S.) 529. Where a new code creates a new office, but makes no provision for filling it, it simply creates a va- cancy to be filled until the next general election. State v. Cook, 20 O. S. 252. When section applicable. — This general provision does not con- trol, when specific provision is other- wise made, as in case of police and fire departments. State ex rel. v. Hall, 25 C. C. 361; 2 C. C. N. S.) 237. Character of holding, — Where an officer is holding over there is no vacancy during the period of such holding and the incumbent is a de jure officer. State ex rel. v. Howe, 25 O. S. 588. See also State ex rel. v. Killits, 8 C. C. 30. Officer continuing to act as such in good faith, though after the of- fice is abolished, cannot be regarded as criminally usurping office. Kreidler v. State, 24 O. S. 22. Salary. — In the case of an offi- cer whose duties were specific and limited and not continuous during the year, the annual salary must be apportioned, not by the time of service but by the duties actually performed and may be wholly earned at the time the office was abolished. Ex parte Lawrence, 1 O. S. 431. The prohibition against affecting the salary of an officer during his existing term does not apply to an officer holding over. Woehler v. To- ledo, 6 B. 282. De facto governments of mu- nicipalities prior to first Monday in Mav, 1903, see Citizens' Light & Heat Co. v. Springfield, 47 B. 710; Friedman v. Cincinnati, 13 Dec. 404; Columbus v. Federal Gas & Fuel Co., 14 Dec. 261 (aff'd Cir. Ct. Mch. 20, 1904). Sec. 214. [By-laws, ordinances and resolutions heretofore passed or adopted shall remain in force.] 1 All by-laws, ordinances and resolutions heretofore lawfully passed or adopted by the council, board of legislation or other legislative body in any municipal corporation, and not inconsistent with this act, shall remain in force until duly altered or repealed. 2 ( 1 ) Old section. — Compare old § 1543 R. S. repealed. (2) Ordinances continuing in force. — Only such ordinances would continue in force, as, if passed un- der the new Code, would be author- ized by its provisions. See Neff v. Bates, 25 O. S. 169; Hubbard v. Norton, 28 O. S. 116. On the other hand, an ordinance formerly passed but not authorized by the laws then in force would not be valid, even though authorized by the new Code, notwithstanding the provision continuing in force all former ordinances not inconsistent with the new Code. Cotter v. Doty, 5 O. 393, 398. An ordinance that was unconsti- tutional would, of course, not be continued in force. See Zanesville v. Auditor, 5 O. S. 589. An ordinance fixing a salary would continue in force, if the authority passing the ordinance has the power under the new Code and the salary does not exceed the maximum there- in provided, even though the law under which the ordinance was passed is repealed by the Code. Moore v. Cincinnati, 26 O. S. 582. An ordinance providing for the Code §§215, 216] miscellaneous, pending impp/mts. 481 annexation of contiguous territory, a provision such as that in the not inconsistent with the new Code, above section. Croll v. Franklin, 40 was held to continue in force, under O. S. 340. 2. CERTAIN ACTS FOE PENDING IMPROVEMENTS. Sec. 215. [Certain acts not to be construed as altered, amended or repealed.] Nothing in this act shall be construed to alter, repeal or amend an act entitled, " An act to create a board of supervision in the erection simultaneously of public, municipal and county buildings," passed May 6, 1902, or sections 2435-1, 2435-2, 2435-3, 2435-4, 2435-5, 2435-6, 2435-7, 2435-9, 2435-10, 2435-11, 2435-12, 2435-13, 2435-14, 2435-15, 2435-16, 2435-17 and 2435-18 of the Revised Statutes of Ohio, 1 nor any other acts or parts of acts authorizing public improve- ments or the enlargement or extension of waterworks, in any municipality by a board of waterworks trustees heretofore es- tablished by law, having authority to make enlargements and extensions of waterworks and having such enlargements and extensions in progress of construction ; but in all such cases said boards of supervision in the erection simultaneously of public municipal and county buildings, or commissioners of waterworks or boards of waterworks trustees shall continue in office and perform all of the functions and duties and exercise all of the powers now possessed by them until the completion of such improvements in progress of construction, and there- upon the works so completed shall be turned over to the ap- propriate authority of the municipality. 2 (1) The act and sections men- by a general municipal Code, see tioned here will be found in Part State v. Davis, 23 O. S. 434; Pos- II. dick v. Perrysburg, 14 O. S. 472. (2) Special acts not repealed Sec. 216. [Board of supervision in the erection of public, mu- nicipal or county buildings; appointment of by board of public service; powers of such board.] Whenever any city, or the county in which the city is located, has in contemplation, or in 482 the ohio municipal code. [Code § 216 process of construction, buildings for public, municipal or county purposes, within the boundaries of such city, the di- rector of public service may provide for the employment of three persons, to be named by them, of whom at least two shall be architects, and who shall be employed at a salary not ex- ceeding five thousand ($5,000) per annum each, to be fixed by the directors of public service, and paid by the city from the general fund. Such persons shall have, under the supervision of the directors of public service, control of the location of all public, municipal or county buildings, to be erected upon the ground acquired within the limits of the city, and of the size, height, style and general appearance of such buildings and all plans and specifications for the erection of the buildings aforesaid shall be submitted for approval to the persons herein authorized to be employed and approved by them before they are adopted by the authorities engaged in the con- struction thereof; [Commission for the erection of city hall; appointment of by board of public service.] provided, further, that whenever any city has in contemplation or in process of construction, or furnishing, a city hall, the director of public service may pro- vide for the employment of five citizens of said city, to be named by them, not more than three of whom shall belong to the same political party, who shall constitute a commission under the supervision and directions of the directors of public service, for procuring the necessary land for the construction and furnishing of such city hall. Said commissioners shall have power, subject to the approval of the directors of public service, to acquire, in the name of the city, by purchase or appropriation, land for city hall purposes, and shall have power to employ architects, and approve plans and specifications. [Powers, duties, compensation, organization, etc.] They shall make all contracts necessary for the construction and furnish- Code §216] MISCELLANEOUS. PENDING IMPROVEMENTS. 483 ing of such city hall, which contracts shall be in the name of the city, and shall be made after advertisement and. bidding, as provided by law for the making of other municipal contracts, and shall be subject to the approval of the directors of public service. Such commissioners shall select from their number a president, and may appoint a clerk, and such other em- ployes as may be necessary, and, subject to the approval of the directors of public service, fix their compensation, and shall keep a full record of their proceedings. Such commissioners shall each receive such sum, not exceeding five dollars ($5.00) each per meeting, as the directors of public service may fix, which compensation, however, shall not in any case exceed twelve hundred dollars ($1,200.00) per annum each, and the compensation,' of such commissioners, and expenses shall be paid in like manner as the cost of such city hall. [Commission for erection, etc., of market houses, or public halls; appointment of by board of public service; compensation, etc.] 1 Provided, further, that whenever any city has in contemplation or in process of construction, any market house or houses, or public hall in connection therewith, the directors of public serv- ice may provide for the employment of three citizens of each [such] city, to be named by them, who shall constitute a com- mission, which shall have power, subject to the approval of the directors of public service, to contract, in the name of such city, for and supervise the building and furnishing of, any market house or houses or public hall in connection therewith, for such city, and, subject to the like approval, to acquire any lands that may be necessary for such purpose, either by pur- chase or appropriation in the name of said city in the manner provided by law. Such person so appointed shall receive such compensation, not exceeding five dollars ($5.00) each for each meeting attended by them as the directors of public service may fix, which compensation, however, shall in no case exceed 484 the ohio municipal code. [Code §216 twelve hundred dollars ($1,200.00) per annum each. Such commission may appoint a secretary and other necessary em- ployes, and, subject to the approval of the directors of public service, fix their compensation, and adopt plans and specifica- tions for erecting, completing and furnishing such market house or houses or public hall in connection therewith in any such city. The compensation of such commissioners and ex- penses, shall be paid in like manner as the cost of such build 1 ings. [Persons appointed pursuant to certain acts heretofore passed shall continue to act until purposes of appointment are fulfilled.] Provided, further, that any person or persons heretofore ap- pointed pursuant to the provisions of an act entitled, " An act to create a board of supervision in the erection simultaneously of public, municipal and county buildings," passed May 6, 1902 (95 O. L., 879) , 1 or of an act entitled " An act to au- thorize cities of the second grade of the first class to secure the necessary lands and to borrow money therefor, and for the purpose of building and erecting thereon a city hall and the furnishing of the same," passed April 19, 1898 (93 O. L., 549), 1 and amended May 6, 1902 (95 O. L., 877), 1 or an act entitled " An act relating to market houses in cities of the sec- ond grade of the first class," passed April 26, 1898 (93 O. L., 668 ),* or by whatever authority for the purpose provided herein, shall continue to act for the purposes for which he or they were appointed, with the power herein granted and no others, until the completion of the improvement in connection with which they were appointed, and thereupon the work so completed shall be turned over to the proper authority of the municipality. [Provisions for the payment of bonds issued for construction of city hall.] Any city may use or apply any money re- ceived from any gas or electric [light] company under any Code § 217] MISCELLANEOUS. universities. 485 agreement heretofore or hereafter made, for the purpose of pay- ing interest or principal of any bonds issued by such city for city hall purposes; and for the purpose of providing such further sums as may be necessary to pay the interest on any bonds for any of the purposes herein named, and the principal of the same at maturity, the council shall, in addition to the other levies authorized by law, levy annually a sufficient tax therefor on all property of the city subject to taxation, and such taxes shall be levied and collected as other taxes. [Contracts and bonds heretofore made or issued for purposes kerein authorized declared valid obligations; additional bonds au- thorized.] All contracts heretofore entered into by any city for the purposes herein specified and all bonds heretofore is- sued and sold by any city for any such purposes, shall be and remain valid, legal and binding obligations of such city, and all funds remaining from the sale of any such bonds shall be applied only for the purpose for which such bonds were sold; and any such city shall have power to issue and sell such addi- tional bonds as may be necessary, up to the limit named in said acts, or any of them, for the purposes herein named. 2 [April 27, 1904, 97 v. 517.] (1) Constitutionality. — The (2) These acts will be found in paragraph continuing the Cleveland Part II. Market House commission held un- Amendments of 1904. — Orig- constitutional. Slatmyer v. Spring- inal section 216 of the Code was born, 26 C. C. 100; 5 C. C. (N. S.) first amended April 23, 1904, 97 O. 89 (aff'd 72 0. S. 683). L. 255. An act approved April 27, Members cannot act under the 1904, 97 O. S. 517, again amended new law. The control of market the same section, without any refer- houses is in board of public ser- ence to the previous amendment, vice. lb. The text above follows the later act. 3. MUNICIPAL mSTIVEKSlTIES. Sec. 217. [Administration, management, etc., of municipal university and property thereof to be under board of directors ap- pointed by the mayor.] 1 In any municipal corporation having a university supported in whole or in part by municipal taxa- 486 the ohio municipal code. [Code §217 tion all the authority, powers and control vested in or belonging to said corporation with respect to the management of the es- tate, property and funds given, transferred, covenanted or pledged to said corporation in trust or otherwise for such uni- versity, as well as the government, conduct and control of such university shall be vested in and exercised by a board of di- rectors consisting of nine electors of said municipal corporation, who shall be appointed by the mayor of such municipal corpo- ration, three for a term of two years, three for a term of four years and three for a term of six years; and thereafter as the terms expire the mayor of such municipal corporation shall appoint three directors for a term of six years 3ach and shall fill all vacancies in said board. Such board of directors shall be known as " The Board of Directors of — ' — ' Univer- sity " (filling out blank with the name of the university). [Powers and duties of such board.] They shall serve without compensation and shall have all the powers and perform all the duties now and hereafter conferred or required by law in the government of said university, and the execution of any trust with respect thereto imposed upon the municipal corporation; and all acts or parts of acts not inconsistent herewith which govern such universities shall be and remain in full force and effect and sections 4095, 4096, 4097, 4099, 4100, 4101, 4102. 4103 and 4104 of the Revised Statutes of Ohio, as amended May 12, 1902, shall remain in full force and effect. 2 ( 1 ) Old sections. — Section 4098 expressly repealed by the Code, but R. S. provided for a board of direct- since the above § 217 covers the ors of nineteen members for the subject matter of both and was management of trusts for educa- clearly meant to supersede them, tional purposes and universities in they must be regarded as repealed municipalities, and § 4098-1 pro- by implication. See note to § 212 vided for the appointment of the of the Code, p. 478. board of directors of universities (2) Amendments of 1904. — in cities of the first grade of the first The sections here mentioned were class (Cincinnati) by the Superior again amended May 3, 1904, and Court. These two sections are hot are given as last amended. Code § 217] MISCELLANEOUS. UNIVERSITIES. 486a Section 4105 R. S. was neither re-enacted nor repealed by the Code. This section as it stood at the time the Code went into effect was a spe- cial act applying to Toledo alone and was probably repealed by impli- cation. As amended in 1904, how- ever, this section is a general act. It is therefore carried in this edi- tion of the Code and will be found in the miscellaneous statutes in Part II., p. 844. Validity,— The §§ 4095 to 4104 inclusive (as written before amend- ments of 1904), providing for the acceptance by certain cities of trust unds for educational purposes, were neld not unconstitutional for want of corporate capacity on the part of the municipalities to receive and execute the trust nor because the acts were special. State ex rel. v. Toledo, 3 C. C. (N. S.) 468, 23 C. C. 327 ; and see also Perin v. Carey, 65 U. S. 465. Nor is a tax levy to aid such in- stitutions as here provided for, un- constitutional. State ex rel. v. To- ledo, 23 C. C. 327. Character of board. — A board of trustees such as provided for in these sections, is a legal board vested with certain powers, but is not a corporation. lb.; see also State v. Powers, 38 O. S. 54. Actions against board. — Quo icarranto will not lie to oust the members of such board because they exceed their pqwers in extending the course of instruction. Injunction would be the proper remedy, and courts of equity would have juris- diction in such cases. State ex rel. v. Toledo, 3 C. C. (N. S.) 468, 23 C. C. 327. University. — The word "univer- sity" in Sec. 217 must be construed according to the legislative intent and not in its strict, technical sense, in construing gifts to a "uni- versity." Waddick v. Merrell, 26 C. C. 437. Erection of dwelling for president of university, held a proper appli- cation of university funds derived from taxation. Cincinnati v. Jones, 28 C. C. 210. Sec. 4095 R. S. [Board of directors of educational institution may accept educational trusts.] The board of directors of the university, college or other educational institution of any municipal corporation, in the name and on behalf of such cor- poration, may accept and take any property or funds hereto- fore or hereafter given to such corporation for the purpose of founding, maintaining or aiding a university, college or institu- tion for the promotion of education, and upon such terms, con- ditions and trusts not inconsistent with law as the said board of directors may deem expedient and proper for that end. [1904, May 3, 97 v. 541; 92 v. 358; 67 v. 86.] Sec. 4096 R. S. [How trust funds to be applied.] For the further endowment, maintenance and aid of any such univer- sity, college or institution heretofore or hereafter founded, the 487 the ohio municipal code. [Code § 217 board of directors thereof may, in the name and in behalf of such municipal corporation, accept and take as trustee and in trust for the purposes aforesaid any estate, property or funds which may have been or may be lawfully transferred to the municipal corporation for such use by any person, persons or body corporate having the same, or any annuity or endowment in the nature of income which may be covenanted or pledged to the municipal corporation, towards such use by any person, persons or body corporate ; and any person, persons or body cor- porate having and holding any estate, property or funds in trust or applicable for the promotion of education, or the advance- ment of any of the arts or sciences, may convey, assign and deliver the same to such municipal corporation as trustee in his, their or its place, or covenant or pledge its income or any part thereof to the same ; and any such estate, property, funds or income shall be held and applied by such municipal corpora- tion in trust for the further endowment, maintenance and aid of such university, college or institution, in accordance never- theless with the terms and true intent of any trust or condition upon which the same was originally given or held. 1 [1904, May 3, 97 v. 541 ; 92 v. 358 ; 67 v. 86.] (1) Terms of donations. — The donation, if the terms under which directors of an institution of learn- it is offered are not acceptable, but ing are at liberty under § 4096, re- donations which are accepted must lating to trust funds for the en- be accepted in accordance with the dowment, maintenance and aid of terms prescribed. State ex rel. v. such schools, to reject a proposed Schauss, 3 C. C. (N. S.) 388. Sec. 4097 R. S. [Trusteeship to vest in city, etc.] Upon such transfer and the acceptance thereof by the municipal corpora- tion and its successors, as trustees shall become and be per- petually obligated and held to observe and execute such trust in all respects according to any other or further terms or con- ditions lawfully agreed upon at the time of such transfer and Code § 217] MISCELLANEOUS. UNIVERSITIES. 488 acceptance; and any court having jurisdiction of the appoint- ment of trustees of such trust for educational purposes, may, in a proceeding for that purpose duly instituted and had, ap- point and constitute such municipal corporation with the con- sent of its council, trustee of the estate, property and funds so transferred to it, and may dispense with bond and surety upon the part of the municipal corporation for the perform- ance of such trust, unless the same is required by the original terms or conditions thereof, and shall upon the due transfer and acceptance of such trust by the municipal corporation, release' and fully discharge the trustee, or trustes so trans- ferring the same; and any acceptance or acceptances by such municipal corporation of any or all property, funds, rights, trust estate or trusts heretofore given, granted, assigned, or otherwise conveyed or transferred to, or bestowed upon any such municipal corporation or to or upon any such university, college or institution in good faith, and which are still held and retained by such municipal corporation, or any such uni- versity, college or institution, shall be held and deemed to be valid and binding as to all parties. [1904, May 3, 97 v. 542 ; 67 v. 86.] Sec. 4099 R. S. [Powers of board of directors.] As to all matters not herein or otherwise provided by law, such board of directors shall have all the authority, power and control vested in or belonging to such municipal corporation as to the management and control of the estate, property and funds, given, transferred, covenanted or pledged to the municipal corporation for the trusts and purposes aforesaid, and the gov- ernment, conduct and control of such university, college or in- stitution ; it may appoint a clerk and all agents proper and necessary for the care and administration of the trust property, and the collection of the income, rents and profits thereof; it may appoint the president, professors, tutors, instructors, agents and servants necessary and proper for such university, college or institution, and fix their compensation; it may provide all the necessary buildings, books, apparatus, means and appli- ances, and may pass all such by-laws, rules and regulations con- cerning the president, professors, tutors, instructors, agents, and servants, and the admission, government and tuition of 489 the ohio municipal code. [Code § 217 students, as it may deem wise and proper, and it may, by suit- able by-laws, delegate and commit the admission, government, management and control of the students, courses of studies, dis- cipline and other internal affairs of such university, college or institution, to a faculty which the board of directors may ap- point from among the professors. 1 The solicitor of such municipal corporation shall, when- ever requested so to do by resolution of said board, prosecute and defend, as the case may be, for and in behalf of the cor- poration, all complaints, suits and controversies in which the corporation or such board is a party, and which relate to any property, funds, trusts, rights, claims, estate or affairs, which shall or may be under the control or direction of said board, or which shall, in any manner, relate to the conduct or govern- ment of such university, college or institution. [1904, May 3, 97 v. 542; 67 v. 86.] (1) Discretion of board in man- wise policy is being pursued. State agement of affairs of institution, ex rel. v. Schauss, 3 C. C. (N. S.) cannot be interfered with by the 388. courts, on the ground that an un- Sec. 4100 E. S. [Citizens not to be charged for admission of children.] Citizens of such municipality shall not be charged for instruction in the academic department, except in profes- sional courses therein. Such board of directors may charge fees to students in other departments and to students in pro- fessional courses in the academic department, and shall have power in its direction [discretion] from time to time to make such university, college or institution free in any or all of its departments to citizens of such county in which such university, college or institution may be located. The board of directors may in their discretion receive other students on such terms as to tuition or otherwise as they may see fit. [1904, May 3, 97 v. 543; 92 v. 359; 66 v. 86.] Sec. 4101 E. S. [Account of receipts and expenditures of en- dowment fund; how said fund may be invested.] The accounts of such trust estate, property and funds, and of the income and expenditure thereof, shall be kept by the auditor of such Code § 217] MISCELLANEOUS. UNIVERSITIES. 490 municipal corporation entirely distinct from all other accounts or affairs of the municipal corporation, and the moneys shall be kept by the treasurer of the municipal corporation distinct from other moneys. And the said board of directors shall, at all times, confine their disbursements for current expenses within the income of the trust, estate, property and funds, and shall annually report to the mayor and council of such munici- pal corporation a full statement of the accounts of administra- tion of such trust and other funds ; and said board of directors is hereby authorized to invest any part of the funds belonging to, or set apart for the use of such university, college or institu- tion, or to any department thereof, as it may, from time to time, deem proper, in bonds of the United States or of the State of Ohio, or of any municipal corporation in the State of Ohio, or any county or school district in the State of Ohio, or in any other bonds or first mortgage securities approved by the board of directors; and said board is further authorized to use any funds under its control for the improvement of real estate belonging to, or set apart for the use of, such university, college or institution. [1904, May 3, 97 v. 543; 80 v. 86; 67 v. 86.] Sec. 4102 R. S. [When board may confer degrees.] The board of directors of such university, college or institution, may, upon the recommendation of* the faculty thereof, confer such degrees and honors as are customary in universities and colleges in the United States, and such others as with reference to the course of studies and attainments of the graduates in special departments it may deem proper. A university supported in whole or in part by municipal taxation, is hereby defined as an assemblage of colleges united under one organization or management, affording instruction in the arts, sciences and the learned professions, and conferring degrees. [1904, May 3, 97 v. 544; 67 v. 86.] Sec. 4103 R. S. [Council may provide site for municipal uni- versity.] The council of any such municipal corporation may set apart, or appropriate as a site for the buildings and grounds of any such university, college or institution, any public grounds of the city not especially appropriated or dedicated by ordinance 490a the ohio municipal code. [Code § 217 to any other use, any other law to the contrary notwithstanding ; and the board of education of any such municipal corporation may also, for a like purpose, set apart, convey or lease for a term of years, any grounds or building owned or controlled by such board of education. Any grant for the use of such grounds or buildings heretofore or hereafter made by any coun- cil or board of education, may be modified, changed or extended as to the time when the same shall take effect and be in force, or otherwise, by agreement between said council, or board of edu- cation, and the board of directors of such university, college or institution, and said council shall be taken and held to be the representative of such municipal corporation vested with the title, right of possession and entire control of such property for the purposes of a new grant. 1 [1904, May 23, 97 v. 544; 89 v. 251; 82 v. 121; 67 v. 86.] (1) Control of grounds granted 741, 1. N. P. (N. S) 105. Enclosure by municipality for university pur- of athletic field held a proper use of poses vests in university trustees. university grounds. lb. University v. Cincinnati, 13 Dec. Sec. 4104 R. S. [When and how tax to be levied.] The council may assess and levy annually taxes on all the taxable property of such municipal corporation to the amount of five- tenths of one mill on the dollar valuation thereof, to be applied by said board to the support of such university, college or in- stitution, and may also levy and assess annually five one-hun- dredths of one mill on the dollar valuation thereof, for the es- tablishment and maintenance of an astronomical observatory, or for other scientific purposes, to be determined by the board of directors and to be used in connection with such university, college or institution, the proceeds of which shall be applied by the board of directors for such purposes exclusively; provided, however, that the taxes specified in this section shall only be levied and assessed when the chief work of such university, college or institution is the maintenance of courses of instruction, in advance of, or supplementary to, the instruc- tion authorized to be maintained in high schools by boards of education. Said levies shall be made by council at the same time, and in the same manner as other levies for other munici- pal purposes, and shall be certified by council and placed upon the tax duplicate in the same manner as other municipal levies. The funds of any such university, college or institution shall be paid out by the treasurer upon the order of the board of direc- tors and the warrant of the auditor. [1906, April 11, 98 v. 129; 97 v. 544; 95 v. 548; 94 v. 399; 90 v. 150; 67 v. 86; 75 v. 133.] Code § 218 j miscellaneous. H HftAfrra g . 491 4. MUNICIPAL LIBEAEIES AND TKUSTEES. Sec. 218. [Administration, erection, equipment, etc., of free public municipal libraries to be placed under board of trustees appointed by the mayor; powers and duties of such board.] The custody, control and administration, together with the erection and equipment, of free public libraries established by municipal corporations, 1 shall be vested in six trustees, not more than three of whom shall belong to the same political party, and not more than three of whom shall be women, who shall be appointed by the mayor to serve without compensa- tion for a term of four years and until their successors are appointed and qualified; provided, however, that in the first instance three of such trustees shall be appointed for a term of two years,. and three thereof for a term of four years, and all vacancies shall be filled by like appointment for the unexpired term. Said trustees shall employ the librarians and necessary assistants, fix their compensation, adopt the necessary by-laws and regulations for the protection and government of the li- braries and all property belonging thereto, and exercise all the powers and duties connected with and incident to the govern- ment, operation and maintenance thereof. It shall require four of said trustees to constitute a quorum and four votes to pass any measure or authorize any act, which votes shall be taken by the yeas and nays and entered on the record of proceedings of [said] trustees, and in the making of contracts said trustees shall be governed by the provisions of law applicable thereto. [Women may be members of such board if qualified.] Every woman born or naturalized in the United States, of the age of twenty-one (21) years and upward, who shall have been a resident of the state at least one year, and of the city or village in which any such library may be established, for the period of thirty days, shall be qualified to be appointed and serve as such trustee. 492 the ohio municipal code. [Code § 218a [City council authorized to levy tax to compensate private com- pany for maintaining free public library.] The council of each city shall have power to levy and collect a tax not exceeding one mill on each dollar of the taxable property of the municipal- ity, annually, and to pay the same to a private corporation or association maintaining and furnishing a free public library for the benefit of the inhabitants of the municipality as and for compensation for the use and maintenance of the same and without change or interference in the organization of such cor- poration or association, requiring the treasurer of such corpora- tion or association to make an annual financial report, setting forth all the money and property which has come into its hands during the preceding year, and its disposition of the same, to- gether with any recommendation as to its future, necessities. [1904, March 15, 97 v. 34.] (1) Power to establish and Power to issue bonds by libra- maintain free public libraries is ry boards, see "An act to provide given to all municipalities in para- for the erection and equipment of graph 22 of § 7 of the Code, page public library buildings," 98 O. L. 01. 260. 5. TAX AUTHORIZED FOR USE OF ART GALLERY. Sec. 218a. [City council authorized to levy tax to compen- sate private company for maintaining free art gallery.] The council of each city shall have power to levy and collect a tax not exceeding one-quarter of one mill on each dollar of the taxable property of the municipality, annually, and to pay the same to a private corporation or association maintaining and furnishing a free museum or gallery for the exhibition of paintings, sculpture and other works of art, and, in connection therewith, an academy for advancing, improving and promot- ing painting, sculpture, drawing, architecture and other line Code § 219] MISCELLANEOUS. HOSPITALS. 492a arts, and furnishing instruction therein by lectures and other- wise, for the benefit of the inhabitants of the municipality as and for compensation for the use and maintenance of the same, and without change or interference in the organization of such corporation or association, requiring the treasurer of such corporation or association to make an annual financial report, setting forth all the money and property which has come into its hands during the preceding year, and its disposition of the same, together with any recommendation as to future neces- sities. [1906, April 14, 98 v. 146.] 6. TAX AUTHORIZED FOR USE OF HOSPITAL. Sec. 219. [City council authorized to levy tax to compen- sate private company for maintaining free public hospital.] The city council of each city shall have power to levy and col- lect a tax not exceeding one mill on each dollar of the taxable property of the municipality, annually, and to pay the same to a private corporation or association maintaining and furnish- ing a free public hospital for the benefit of the inhabitants of the municipality, or to private corporation or association main- taining a public hospital, not free except to such inhabitants of the municipality as are in the opinion of a majorit}' of the trustees of such hospital unable to pay, as and for compensa- tion for the use and maintenance of the same and without change or interference in the organization of such corporation or association, requiring the treasurer of such corporation or association to make an annual financial report, setting forth all the money and property which has come into its hands dur- ing the preceding year and its disposition of the same, to- gether with any recommendation as to its future necessities. 11906, April 11, 98 v. 123.] 493 the ohio municipal code. [Code § 220 (1) Power to establish and their support by §§ 32 and 33 of maintain municipal hospitals, the Code, pages 157 and 158. as distinguished from the hospitals City hospitals are under the control referred to in the above section, is of the board of public service, conferred upon all cities and vil- (§ 141 of the Code) and village hos- lages by paragraph 16 of § 7 of the pitals are under the control of coun- Code, page 55, and to levy taxes for cil. (§ 204 of the Code.) T. PAKKS AND HOSPITALS FOUNDED BY GIFT. Sec. 220. [Management and administration of property or funds to be used for park or hospital purposes; in certain cases such property or fund to be managed, administered, etc., by board of trustees to be appointed by sinking fund trustees.] In any municipal corporation which has become or may hereafter be- come the owner or trustee of property for any park or hospital purposes, or of funds to be used in connection therewith, by deed of gift, devise or bequest, said property or funds shall be managed and administered in accordance with the provisions or conditions of said deed of gift, devise or bequest, provided that in all cases where such deed of gift, devise or bequest rer quires the investment, or change of investment of the principal of said property or funds, or any part thereof, to be made upon the approval of any advisory committee appointed by any court or judge, then such property or funds, secured by deed of gift, devise or bequest, for any such purposes, and any hos- pital or park property for the care or management of which in whole or in part, said fund is used, shall be managed, con- trolled and administered, the park funds and property by a board of park trustees, and the hospital funds and property by a board of hospital trustees, each board consisting of four resi- dent electors of said municipal corporation who shall be ap- pointed by the sinking fund trustees of said municipal corpora- tion and shall serve, without compensation for the term of four years and until their successors are appointed and qualified. Said trustees shall be appointed in the first instance to serve for one, two, three and four years respectively, and thereafter their successors shall be appointed one each year to serve for Code § 220] miscellaneous, endowed, parks, etc. 494 the term of four years, provided, however, that of the four trustees so appointed not more than two shall be of the same political party. In case of vacancy by death, resignation or otherwise in such board of trustees, the same shall be filled in like manner for the remainder of the term. Said board of trustees shall have the right to apply, control and invest and reinvest the funds coming or arising from such gift, devise or bequest according to the terms and conditions on which ac- quired; and shall respectively be the successors of any board or officers now having control or management of any such property or funds herein described, and said funds or other property then held and controlled by any theretofore existing park or hospital board, and the duties vested in or imposed upon such boards or officers shall be transferred to the trustees herein provided. Such park board herein provided for shall be governed by the provisions of sections 2515-39, 2515-40,. 2515-41, 2515-42, 2515-43, 2515-44, 2515-45, 2515-45e, 2515-45/, 2515-450, 2515-457&, 2515-45^ 2515-45; and 2515-45& of the Revised Statutes of Ohio, and such hospital board herein provided for shall be governed by the provisions of sections 2167-9, 2167-10, 2167-11, 2167-12, 2167-13, 2167-14, 2167-15, 2167-16, 2167-17, 2167-18, 2167-19, 2167-20, and 2167-21, of the Revised Statutes of Ohio. Sec. 2515— 39 R. S. [Compensation; oath; bond.] § 3. The members of said board of park commissioners shall serve with- out compensation, and before entering upon the discharge of their duties shall each take the oath of office prescribed by law, and shall give bond in the sum of twenty-five hundred ($2,500) dollars, conditioned according to law, and to the approval of the mayor and council of such city. [93 v. 463.] Sec. 2515 — 40 R. S. [Meetings; rules and regulations; record; passage of resolution or order; quorum; clerk.] § 4. Such board of park commissioners shall hold meetings at least once a month, and shall adopt all necessary rules for the regulation of its business ; it shall keep a complete record of all its pro- ceedings, which record, or a copy thereof, duly certified by the clerk of said board, shall be competent evidence of the transac- tions of said board in all the courts of this state; the ayes and 495 the ohio municipal code. [Code § 220 nays shall be called upon the passage of every resolution oi order; three members of the board shall constitute a quorum for the transaction of all business, but no resolution or order shall be adopted unless three members shall vote in its favor. The city clerk shall act as the clerk of such board of park com- missioners, and shall receive no additional salary or compensa- tion for such services [93 v. 463.] Sec. 2515^41 R. S. [Board's: control.] § 5. Such board of park commissioners shall have the entire management and con- trol of all parks now belonging to any such city, or which may hereafter be acquired and of all the streams within and flowing through any park controlled by such board. Such board of park commissioners shall also have the entire management and control of all improvements of every nature within the park or parks of any such city; and of all moneys derived from levies made for park purposes, and of all moneys from the general fund appropriated by the council for such purposes, and of the proceeds of all bonds issued or sold for park purposes, and of all moneys or other property donated to any such city for park purposes ; all of which moneys shall be placed in a special fund called the " park fund," and shall be disbursed by the treasurer of any such city, only upon a warrant of the city clerk, drawn in accordance with the order of such board of park commis- sioners. [93 v. 463.] Sec. 2515—42 R. S. [Board's powers.] § 6. Such board of park commissioners shall have power to make contracts for the improvements of the grounds, the erection of the necessary bridges and structures therein, and to adopt rules for the pro- tection, care and government of the parks under its charge, and such rules, when approved by the council of any such city, shall have the same effect and may be enforced by the same penalties as ordinances of the city. [93 v. 464.] Sec. 2515—43 R. S. [Power to incur liability.] § 7. Such board of park commissioners shall have no power to incur any liability for park purposes beyond the amount of the funds levied therefor or appropriated to their order by the council for such purposes. [93 v. 464.] Sec. 2515 — 44 R. S. [Employment of superintendents, etc.] § 8. Such board of park commissioners may employ such super- intendents, landscape gardeners and other employes as it may deem necessary for the execution of its duties, and fix their salaries or compensation; and any such persons may be re- moved by such board at any time. [93 v. 464.] Sec. 2515 — 45 R. S. [Report to council; detailed estimates.] § 9. Such board of park commissioners shall annually, on the first Monday in April, make a report to the council of their proceedings in respect to parks, with a detailed state- Code § 220] miscellaneous, endowed parks, etc. 496 merit of their receipts and expenditures during the year; and they shall also at the same time submit to the council a detailed estimate of the amount of money necessary to maintain and improve such park or parks for the ensuing year. [93 v. 464.] Sec. 2515 — 45e R. S. [Park commissioners to have control of improvement of natural watercourses,] § 5. Such board of park commissioners shall have entire management and control of all work of straightening, cleaning, deepening, or otherwise im- proving any natural watercourse, whether partly or wholly used for sewer purposes or not, within such city, and shall be empowered to purchase, acquire or condemn any water rights, easements or privileges in connection with any natural water- course through such city, and to acquire or condemn such real estate as may be necessary for such purposes. [94 v. 717.] Sec. 2515-^-45f R. S. [Contracts; bids when.] § 6. It shall be the duty of such board of park commissioners, before enter- ing into any contract for the performance of any work, the cost of which exceeds one thousand dollars, to cause plans and specifications and forms of bids to be prepared, and when adopted by such board, it shall have the same printed for dis- tribution among bidders. [94 v. 718.] Sec. 2515 — 45gR. S. [Notice for proposals.] §7. The board shall not enter into any contract for work or supplies where the estimated cost thereof exceeds one thousand dollars, without first causing thirty days' notice in one newspaper of general circulation in the corporation that sealed proposals may be re- ceiyed for doing the work or furnishing such materials and supplies. [94 v. 718.] Sec. 2515 — 45hR. S. [Bond to accompany bids.] §8. Each bid shall be accompanied by a bond, signed by sufficient se- curity, for the acceptance of the contract, if awarded by the board. [94 v. 718.] Sec. 2515— 45iR. S. [Opening bids, etc.] § 9. All bids for work and supplies shall be enclosed in a sealed envelope and same deposited with the clerk of the board, and such sealed en- velope shall have endorsed thereon the nature of the same, and all bids shall be opened at a regular meeting of the board. [94 v. 718.] Sec. 2515 — 45j R. S. [Awarding contracts.] § 10. The board shall enter into contract with the lowest responsible bidder, upon his giving bond to the corporation with such sureties as the board shall approve, that he will perform the work or fur- nish the material and supplies in accordance with his con- tract, and such board shall be the final judges as to who are 497 the ohio municipal code. [Code § 220 responsible bidders, and on the failure of such bidder, within a reasonable time, to be fixed by the board, to enter into bond with surety as before provided, the contract may be made with the next highest responsible bidder, and so on until the con- tract is effected by the contractor giving bond as aforesaid; provided that the board may reject any and all bids, and that no member of the said board shall be in any manner, either di- rectly or indirectly, interested in any contract. [94 v. 718.] Sec. 2515— 45k R. S. [Reports and estimates.] § 11. Such board of park commissioners shall annually, on the first Mon- day of April of each year, make a written report to the council of such city, of their proceedings, with a detailed statement of their receipts and expenditures, during the year. And they shall also at the same time submit to the council a detailed estimate of the amount of the money necessary to dredge, straighten, clean, deepen, and otherwise improve such water- courses and purchase and acquire such water rights, easements and privileges. [94 v. 718.] Sec. 2167— 9 R. S. [Compensation; oath; bond.] §3. The members of said board of hospital trustees shall serve without compensation, and before entering upon the discharge of their duties shall take the oath of office prescribed by law, and shall each give bond in the sum of twenty-five hundred ($2,500) dollars, conditioned according to law and to the approval of the mayor and council of such city. [93 v. 709.] Sec. 2167 — 10 R. S. [Meetings; rules and regulations; record; passage of resolution or order ; quorum ; no member to be interested in contract; clerk.] § 4. Such board of hospital trustees shall hold meetings at least once a month, and shall adopt all neces- sary rules for the regulation of its business; it shall keep a complete record of all its proceedings, which record, or a copy thereof, duly certified by the clerk of said board, shall be competent evidence of the transactions of said board in all the courts of this state ; the ayes and nays shall be called upon the passage of every resolution or order; three (3) members of the board shall constitute a quorum for the transaction of all business, and no resolution or order shalLbe adopted or con- tract or other obligation entered into unless three (3) members shall vote in its favor ; and no member of the said board shall be interested, directly or indirectly, in any contract concerning any hospital under the control of said board. The city clerk shall act as the clerk of such board of hospital trustees, and shall receive no additional salary or compensation for such services. [93 v. 709.] Code § 220] miscellaneous, endowed parks, etc. 498 Sec. 2167—11 R. S. [Board's control.] § 5. Such board of hospital trustees, subject to the ordinances of council, shall have the entire management and control of any hospital or hospitals now belonging to any such city, or which it may hereafter acquire, and shall establish such rules for the govern- ment thereof and the admission of persons thereto as it may deem expedient; such board of hospital trustees shall also have the entire control of the expenditure of all moneys which any such city may, from time to time, have available for hos- pital purposes from whatever sources the same may have been derived, and the same shall be disbursed by the treasurer of any such city only upon the warrant of the city clerk, drawn in accordance with the order of such board of hospital trustees. [93 v. 709.] Sec. 2167—12 R. S. [Further as to same.] § 6. Such board of hospital trustees shall have the entire management and con- trol of the erection, rebuilding and repair of all buildings used for hospital purposes, and shall also have the entire management and control of all grounds used for hospital pur- poses, and shall adopt rules and regulations for the protection, care and government of all such buildings and grounds under its charge, and such rules, when approved by the council of any such city, shall have the same effect and may be enforced by the same penalties as ordinances of the city. [93 v. 709.] Sec. 2167 — 13 R. S. [Procedure before entering into con- tracts.] § 7. It shall be the duty of such board of hospital trustees before entering into any contract for the erection of a hospital building, or for the rebuilding or repair of any hospi- tal building, the cost of which exceeds one thousand ($1,000) dollars, to cause plans, specifications, detailed drawings and forms of bids to be prepared, and when adopted by the board, it shall have the same printed for distribution among the bid- ders. [93 v. 709.] Sec. 2167— 14 R. S. [How contracts to be made.] § 8. All contracts shall be made in the name of the corporation, and it shall be stipulated therein that the contractors will not execute any extra work or make any modifications or alterations in the specifications and plans, unless ordered in writing by the board ; that they will not claim pay for the same unless such written order is given, and the extra price or compensation fixed and agreed upon; and copies of the plans and drawings attested by the contractor, and the original bids, specifications and con- tracts shall be deposited in the office of the clerk of the cor- poration. [93 v. 710.] 499 the ohio municipal code. [Code § 220 Sec. 2167—15 R. S. [Notice for bids.] § 9. The board shall not enter into any contract for work, or supplies, where the estimated cost thereof exceeds one thousand ($1,000) dol- lars, without first causing thirty (30) days' notice to be given in one newspaper of general circulation in the corporation, that sealed proposals will be received for doing the work or fur- nishing the materials and supplies. [93 v. 710.] Sec. 2167— 16R.S. [Bids.] § 10. Each bid shall be ac- companied with a bond, signed by sufficient security, for the acceptance of the contract, if awarded by the board, to fully secure any difference between the amount of such bid and the next higher bid ; and such amount shall be collected by the board and paid into the hospital fund, in case of the refusal by the bidder to enter into contract according to his bid, within such reasonable time, as the board may determine. [93 v. 710.] Sec. 2167—17 R. S. [Same.] § 11. All bids shall be en- closed in a sealed envelope, and deposited with the clerk of the board, and such sealed envelope shall have endorsed thereon the nature of the same ; and all bids shall be opened at a regular meeting of the board. [93 v. 710.] Sec. 2167— 18 R. S. [With whom board to contract.] § 12. The board shall enter into contract with the lowest responsible bidder, upon his giving bond to the corporation with such se- curity as the board shall approve, that he will perform the work and furnish materials or supplies in accordance with his con- tract; and on the failure of such bidder within a reasonable time, to be fixed by the board, to enter into bond with the se- curity before provided, a contract may be made with the next lowest responsible bidder, and so on, until a contract is effected by a contractor giving bond as aforesaid; provided that the board may reject any and all bids. [93 v. 710.] Sec. 2167 — 19 R. S. [Power of board to incur liabilities.] § 13. Such board of hospital trustees shall have no power to incur any liability for hospital purposes beyond the amount of the funds levied, or otherwise received for such purpose. [93 v. 710.] Sec. 2167 — 20 R. S. [Employment of superintendents, physi* cians, etc.] § 14. Such board of hospital trustees may employ such superintendents, physicians, nurses and other employes as it may deem necessary for the execution of its duties, and fix their salaries or compensation; and any of such persons may be removed by such board at any time. [93 v. 710.] Sec. 2167 — 21 R. S. [Report to council; estimate.] Such board of hospital trustees shall annually, on the first Mon- Code § 220] miscellaneous, endowed parks, etc. 500 day in April, make a report to the council of their proceedings in respect to hospitals, with a detailed statement of their re- ceipts and expenditures during the year; and they shall also at the same time submit to the council a detailed estimate oi the amount necessary to maintain and improve such hospital for the ensuing year. [93 v. 710.] 501 [Code §§ 222—224 VI ELECTION, APPOINTMENT AND RE- MOVAL OP OFFICERS. Sec. 222. 1 [Municipal officers; election and beginning of term.] 2 All elective municipal officers, and judges and clerks of police courts and assessors shall be chosen on the first Tues- day after the first Monday in November in the odd numbered years, for a term of two years, except judges of police courts who shall be chosen for a term of four years, and their respec- tive terms of office shall commence on the first day of January next after their election. [1906, April 14, 98 v. 172; 97 v. 39.] (1) There is no Code §221. Municipal elections. — Other (2) Old section. — Compare old provisions relating thereto will be § 1723 R. S. (repealed). found under the title Officers, Election and Removal, in Part II. Sec. 223. [Appointment of municipal officers.] The direc- tors of public safety, directors of the university, street commis- sioner or any board or officer whose appointment is required by this act shall be appointed not earlier than the second Mon- day in May and not later than the first Monday in June, 1903, and subsequently, after the expiration of the terms of said boards and officers, their successors shall be appointed not earlier than the second Monday in January, and not later than the first Monday in February, and the boards and officers serv- ing when this act goes into effect shall hold their respective offices until their successors are appointed as required herein. [Amended 1904, March 17, 97 v. 39.] Sec. 224. [Oaths and bonds; "city clerk/ ' meaning of words.] With respect to oaths of office and official bonds and the effect of the failure to take or give the same, sections Code § 224] election and removal of officers. 502 1737, 1738, 1739, 1740, 1741, 1742, and 1743, of the Revised Statues of Ohio, where not inconsistent with this act, shall be and remain in full force and effect ; and where the words ' ' city clerk" appear in said sections they shall be construed to mean, in a city, the auditor, and in a village, the clerk. Sec. 1737 R. S. [Qualifications; oaths; solicitor.] 1 Each offi- cer 2 of the corporation, or any department or board thereof, whether elected or appointed as a substitute for a regular offi- cer, shall be an elector 3 within the corporation, except as herein expressly provided, and before entering upon his official duties, shall take an oath or affirmation to support the constitution of the United States and the constitution of Ohio, and an oath or affirmation that he will faithfully, honestly, and impartially discharge the duties of the office, 4 and the provisions as to offi- cial oaths shall extend to deputies, but they need not be elec- tors. And no person shall be eligible to the office of solicitor of the corporation who is not an attorney and counselor of [at] law duly admitted to practice in this state as provided by law. [92 v. 68; 66 v. 162, § 79; (S. & C. 1525).] ( 1 ) Other provisions. — Com- pare provisions in Art. XV., Sec. 4 Const., requiring all officers to be electors ; § 2 R. S. requiring all of- ficers, including deputies, to take oath of office. (2) Who is an officer— Defi- nition of office, see Shaw v. Jones, 4 N. P. 372; State v. Jennings, 57 O. S. 415. A fireman appointed by proper municipal authorities and having no control over fire department or property, but merely subject to the fire chief and board, and paid by the month, is not an officer. State v. Jennings, 57 O. S. 415. So it was held an employe of a city to trim lights in its electric light department is not an officer. State v. Anderson, 57 0. S. 429. And an engineer employed to run an engine in electric light depart- ment is not an officer. 76. Clerk of water works board or clerk of board of public service, not an officer. Hutchinson v. Lima, 27 C. C. 545; 6 C. C. (N. S.) 529. Workhouse matron not an officer, but an employe. Jameson v. Cin- cinnati, 28 C. C. 41; 7 C. C. (N. S.) 100. Deputy is held not to be an officer within Art. XV., § 4, of Constitu- tion. Warwick v. State, 25 O. S. 21 ; nor within the meaning of the penal laws relating to officers, State v. Meyers, 56 O. S. 340, 349; but a deputy is required by § 1737 R. S. above, to take an oath of office. There is no requirement that he give bond, and he would not, according to the cases above, be an officer men- tioned in the statute requiring "offi- cers" to give bond. (3) Officers must be electors. — Persons not citizens of the United States, and therefore not electors, cannot be officers. State ex rel. v. Collister, 27 C. C. 529; 6 C. C. (N. S.) 33. And a person disqualified at the time of his election cannot 503 THE OHIO MUNICIPAL CODE. [Code § 224 thereafter, by removing the disqual- ification, hold the office, lb. Females are ineligible to office, not being electors. State ex rel. v. Rust, 4 C. C. 329; State v. Adams, 58 0. S. 612; State v. McKinley, 57 0. S. 627. But since a deputy is not an officer a female may be a deputy. Warwick v. State, 25 O. S. 21. De facto officers defined. — Ex parte Strang, 21 O. S. 610; Ermston v. Cincinnati. 7 N. P. 635; State v. Gardner, 54 0. S. 24; Git- sky v. Newton, 17 C. C. 484, aff'd 60 O. S. 605; State v. O'Brien. 47 O. S. 464; Brenier v. Becker, 37 O. S. 72; State v. Ailing, 12 O. 16; State ex rel. v. Constable, 7 0. (pt. 1) 7. Acts of de facto officers valid. —Heck v. Findlay, etc., 16 C. C. Ill, aff'd 62 O. S. 654; State v. Bingham, 14 C. C. 245; Ickes v. State, 16 C. C. 31; State ex rel. v. Constable, 7 O. (1st pt.) 7; Smith v. Lynch, 29 O. S. 261; Kirker v. Cincinnati, 48 O. S. 507; Guernsey Co. v. Cambridge, 7 C. C. 72; Moli- tor v. State, 6 C. C. 263, aff'd 29 B. 152. An officer holding under an un- constitutional law is a de facto offi- cer, and his acts cannot be collat- erally attacked. Ex parte Strang, 21 O. S. 610; Heck v. Findlay, 16 C. C. Ill (aff'd 62 O. S. 654); State v. Gardner, 54 O. S. 24; Git- sky v. Newton, 17 C. C..484; State ex rel. v. Bingham, 14 C. C. 245. As to validity of acts of officers or boards under an unconstitutional statute or ordinance, see Findlay v. Pendleton, 62 O. S. 80; Kirker v. Cincinnati, 48 O. S. 507; Smith v. Lynch, 29 O. S. 261. (4) Necessity of oath. — All of- ficers must take an oath of office, no matter whether the statute pre- scribes an oath or not. If an office is created in any way, before the person to occupy it enters upon his official duties, he must take an oath of office. State ex rel. v. Kennon, 7 O. S. 546. But it has been held that members of a board of review having taken an oath of office as members of such board, need not take another oath when acting as the decennial board of equalization. N. C. Har- mony Lodge v. Hagerty, 28 B. 66. As to person appointed tempora- rilv to assist officer, see Martin v. State, 16 O. 364. To be entitled to a salary an offi- cer must take the oath and qualify according to law. State v. Eshelby, 2 C. C. 468. See further notes under § 1740 R. S., p. 507. FORM OF OATH OF OFFICE. State of Ohio, . County, I, , do solemnly swear [or affirm] that I will sup- port the constitution of the United States and the constitution of the State of Ohio, and that I will faithfully, honestly and impartially dis- charge the duties of the office of of the city [or village] of , State of Ohio, during my continuance in said office. Sworn to [or affirmed] before me and subscribed in my presence this. . . . day of , 19.... Notary Public. Code § 224] election and eemoval of officers. 504 Sec. 1738 R. S. [Official bonds.] The official bonds of all municipal officers shall be prepared by the solicitor ; they shall, except as otherwise provided in this title, be in such sum as the board of trustees l - or council shall prescribe, by general or special ordinance, and be subject to the approval of the mayor, except that the mayor's bond shall be approved by the council, or if it [is] not legally organized, by the clerk of the Court of Common Pleas of the county in which the corporation or the larger part thereof is situate; the condition that the person elected or appointed shall faithfully perform the duties of the office, shall be sufficient ; 2 and the fact that the instrument is without a seal ; that blanks, like the date or amount, have been filled subsequent to the execution of it, but before its accept- ance, without the consent of the sureties ; that all the obligees named in the instrument have not signed it; that new duties have been imposed on the officer; or that any merely formal objection exists, shall not be available in any suit on the in- strument. 3 [66 v. 163, § 81; 74 v. 142, § 80.] ( 1 ) Trustees here evidently means trustees of hamlets and not any board of trustees there may be in cities or villages. As to status of hamlets see note under § 1 of the Code. , (2) Condition in bond. — As to sufficiency of condition, com- pare § 7 R. S. under Officers in Part II. An official bond conditioned for the faithful discharge of the duties of an office " according to law " em- braces duties required by laws in force during the term of the officer, whether enacted at or after the exe- cution of the bond. Dawson v. State, 38 O. S. 1 ; King v. Nichols, 16 O. S. 80. If bond omits tho condition re- quiring officer to pay over all moneys received by him, it is im- material, as it would be cured by § 7 R. S. State ex rel. v. Slough, 12 C. C. 105. Acceptance of bonds. — Formal acceptance of officers' bond is not necessary. Receiving the bond with- out objection is sufficient. Barret v. Reed, 2 O. 409, 413; Rogers v. Pugh, 1 Disney, 443. Where proper bond is tendered, it must be accepted, and no discretion to refuse it is allowed. State v. Cincinnati, 11 O. S. 544; and man- damus will lie to compel acceptance. lb.; State ex rel. v. Lewis, 10 O. S. 128; O'Connell v. Boyle, Ohio Dec. (Dayt.) 280. Rejection of bond may be shown by parol. Westerhaven v. Clive, 5 O. 136. Character of bond.— See § 3641c R. S. in Part II., p. 539. Validity. — Bond may be good in part and bad in part, and though defective under the statute, it may be a good bond at common law. State v. Findley, 10 O. 51. The bond will be valid though the name of surety is omitted from body of bond. McClain v. Simington, 37 O. S. 484 ; Partridge v. Jones, 38 O. S. 375. Mistake in name of obligee, does not invalidate the bond. Barret v. Reed, 2 O. 409. 505 THE OHIO MUNICIPAL CODE. [Code § 224 (3) Liability of sureties.— Defective bond. — Sureties who exe- cute a bond may be liable on a bond reciting the name of the officer, though the officer has not signed it. State v. Bowman, 10 O. 445. Extent of liability. — General principles. — Sureties are liable for acts of the official virtute officii within his official authority but un- faithfully or improperly done, but not for acts of the official colore officii with pretense of official au- thority. Storey v. Jennings, 4 O. S. 418; Drolesbaugh v. Hill, 64 O. S. 257; nor where the official has been guilty of misconduct wholly outside of the line of his official duty as prescribed by law. State v. Medary, 17 Ohio 554; State v. Griffiths, 74 O. S. — (51 B. 259; State v. Cottle, 8 C. C. (N. S.) 120. Officer acting beyond duty. — In- terest arising from money deposited by treasurer, is covered by his bond, whether the deposit was authorized or not. Eshelby v. Bd. of Educa- tion, 66 O. S. 71; Glenville v. Engle- hart, 19 C. C. 285. But where a clerk performed an act which was beyond the duties of his office, it was held his sureties were not liable. Carpenter v. Sloane, 20 O. 327. It was held the sureties on a county treasurer's bond were liable for taxes collected by him and mis- applied, though the levy of the taxes was illegal. Feigert v. State, 31 O. S. 432. They are liable for sums drawn by clerk when not authorized by council or larger than allowed by council, and appropriated to his own use, and money received from cash- ing and appropriating to his own use claims allowed by council and belonging to other persons. Green- ville v. Anderson, 58 0. S. 463. Acting as other officer. — Bond for faithful performance of duties by member of a board, will not cover defalcations of such officer while act- ing as an apointee of the board (such as commissioner appointed by board) even though members of the board only are eligible to such ap- pointment. State v. Medary, 17 O. 554. Acts during other term. — A bond given for the first term does not cover acts of the officer during his second term, no valid bond being given for the second term. State v. Crooks, 7 O. (2nd. pt.) 221; State v. Corey, 4 W. L. M. 563. Whether sureties on the bond of an officer holding over until his suc- cessor qualifies, would be liable dur- ing the time of such holding over, guere. State ex rel. v. Killits, 8 C. C. 30. Where the officer's bond was not accepted until part of his term had expired, and he had collected money both before and after the bond was accepted, the sureties will be liable for peculations from all sums col- lected, if not shown from what par- ticular fund the money was stolen by the officer. Reed v. Board of Education, 39 O. S. 635. The defalcation is presumed to have occurred during the term for which the last bond was given. Pummill v. Baumgartner, 3 N. P. 40; Kelly v. State, 25 O. S. 567; State v. Corey, 4 W. L. M. 563. Where new duties imposed. — The surety is liable for default in con- nection with new duties imposed on the officer since giving of bond, if such duties are appropriate to his office, but not if the duties are not appropriate to the office. St. Marys v. Rowe, 15 Dec. 687; 2 N. P. (N. S.) 645. The new duty imposed by ordinance on clerk of council to col- lect special assessments is not ap- propriate to his office, and will not make his sureties liable for default in this connection. lb. After death of principal. — Sure- ties are liable for failure of personal representative of officer to pay over money that came into officer's hands officially. Peabody v. State, 4 O. S. 387. Defenses of surety. — Negligence oi the treasurer in paying warrants drawn by the city clerk does not re- lieve sureties on clerk's bond. Green- ville v. Anderson, 58 O. S. 463. Omission of principal to take the oath of office does not relieve sure- ties of liability. State v. Find ley. 10 O. 51; Gage v. Payne, Wright. 678. Code § 224] election and removal of officers. 506 It is no defense that the money was not demanded from the prin- cipal until after his term expired. King v. Nichols, 16 O. S. 80; nor that demand was not made until after death of principal. Peabody v. State, 4 O. S. 387. The sureties may have any de- fense that the principal could set up, including the statute of limita- tions. State v. Blake, 2 O. S. 147; State v. Conway, 18 O. 234. As to the limitations of actions on official bonds, see State v. Blake, 2 O. S. 147. It was held no defense to a suit on a county treasurer's bond, that the money was stolen from him without any fault of his own. State v. Harper, 6 O. S. 607. The rule that an act by the cred- itor, prejudicial to the surety, dis- charges him, does not apply to sure- ties on official bonds for faithful performance. State v. Alden, 12 O. 59. Blanks in bond filled after exe- cution. See § 6 R. S. under Offi- cers in Part II. Pleading and practice. — In ac- tion against obligors on bond the personal representative of principal is not a necessary party. Hunt v. Gaylor, 25 O. S. 620. Petition on an official bond must aver the condition of the bond, and not merely that it was given ac- cording to law. Bisack v. Pape, 1 B. 126; it must aver also, the of- fice and the appointment or election to it. Court of Common Pleas v. Seargent, W. 482; but it need not aver that the officei* qualified. State v. Piatt, 15 O. 15. FORM OF OFFICIAL BOND. Know all men by these presents; That we principal, and and , sureties, are held and firmly bound unto the city [or village] of , State of Ohio, in the sum of $ . .to be paid to the said city [or village], for the payment whereof well and truly to be made we jointly and severally bind ourselves, our heirs, executors and administrators firmly by these presents. Witness our hands this day of , 19 ... . The condition of the above obligation is such that, Whereas, the said was, on the day of elected [or appointed] to the office of of the city [or village] of , State of Ohio for the term of years and until his successor is elected [or appointed] and qualified. Now therefore, if the said faithfully performs the duties of the said office during his continuance therein then this obligation shall be void and of no effect; otherwise to be and remain in full force, effect and virtue. Executed in presence of 507 THE OHIO MUNICIPAL CODE. [Code § 224 Sec. 1739 R. S. [Approval of bond; additional bond.] Each officer named in chapter two of this division, 1 and all others, ex- cept as in this title provided, who may be required so to do, by law or ordinance, shall give bond, before entering on the duties of the office ; each officer may be required by the council, in its discretion, at any time, to give a new or additional bond; each bond, except the bond of the clerk, shall, upon its approval, be delivered to the city clerk, who shall immediately record the same in a record provided for that purpose, and file and carefully preserve the same in his office; and the bond of the clerk shall be delivered to the city auditor, who shall in like manner record and preserve the same. 2 [74 v. 142, § 80.] (1) Chapter and Division here referred to are Chap. 2, Div. 4, Ti- tle XII, R. S. ? containing former statutes relating to officers of cities and villages. (2) Additional bonds.— Where an officer is required to give an ad- ditional bond., either or both sets of bondsmen are liable for his de*%ults. State v. Crooks, 7 0. (2nd pt./ 221; but both cannot be joined in same action. lb. And the additional bond covers defalcations during the entire term. Thorne v. Megrue, 3 Rec. 140. Sec. 1740 U.S. [Effect of failure to take oath or give bond.] The council may declare vacant the office of any person elected or appointed to an office who shall fail to take the oaths re- quired in section seventeen hundred and thirty-seven or to give any bond required of him, within ten days after he has been notified of his appointment, or election, or obligation to give a new or additional bond, as the case may be. 1 [67 v. 70, § 80.] (1) Effect of failure to take oath, etc. — See § 2 R. S., under Officers, in Part II, providing that failure to take oath does not affect liability of sureties; and § 19 R. S. providing that failure to give bond as required shall be deemed a refusal of the office and the same shall be considered vacant. By the above section 1740 R. S.j however, the failure to take oath or give bond does not ipso facto vacate the office. The oath of office and bond have been held not conditions precedent to entering upon the duties of the office. State v. Findley, 10 O. 51; State ex rel. v. Pollner, 18 C. C. 304. As to time of giving bond, see subject discussed in State ex rel. v. Comm'rs, 61 O. S., 506; State ex rel. Witham v. Nash, 65 O. S., 549. Sec. 1741 R. S. [If new bond required, notice to be given.] When the council declares, by resolution, that an officer shall give a new bond, written notice shall be served by the clerk * of (Dode § 225] election and removal of officers. 508 the corporation upon the officer designated, and a copy of the notice, with a statement of the time and place of service, shall be recorded in the proceedings of the council. [74 v. 114, §2.] (1) See § 224 of the Code, page 502. Sec. 1742 R. S. [Office vacant if notice not complied with.] If the officer fail to give such new bond, with sureties, to the satisfaction of the council, within ten days after such service, the council shall declare the office vacant, and the vacancy shall be filled in the manner provided in this title. [74 v. 114, § 2.] Sec. 1743 U.S. [How sureties affected.] When the new bond is accepted, or the council declares the office vacant, the sureties in the original bond shall cease to be liable for the acts of the officer done thereafter, but not for the acts then already done. [74 v. 114, § 3.] Sec. 225. [Impeachment of head of department or officer; pro- cedure.] 1 It is hereby made the duty of the mayor to have a general supervision over each department and the officers pro- vided for in this act, and where the mayor has reason to believe that the head of any department or officer provided for in this act has been guilty in the performance of his official duty of bribery, misfeasance, malfeasance, non-feasance, 2 misconduct in office, or any gross neglect of duty, gross immorality or habitual drunkenness, he shall immediately file with the council written charges 3 against said head of department or officer, setting forth in detail a statement of such alleged bribery, misfeasance, malfeasance, non-feasance, misconduct in office, gross neglect of duty, gross immorality or habitual drunkenness, and he shall serve or cause to be served at the time of the filing of said charges or as soon thereafter as possible, a true copy of such charges with the head of the department or officer against whom said charges are made, and may serve the same in person or by leaving a copy of said charges at the office of the head of such department or officer and make due return to council of such 509 the ohio municipal code. [Code § 225 service as is provided for the return of the service of summons in a civil action. 4 Said charges when so filed with council shall be for hearing at the next regular meeting of council, unless council shall extend the time for the hearing of the same, which shall only be done on the application of the accused. 5 The ac- cused shall have the right to appear in person and by counsel and examine all witnesses and answer all charges against him ; and the judgment or action of council shall be final provided that it shall require the votes of two-thirds of all members elected to council to remove such officer. 6 Pending any of said proceedings such head of department or officer may be suspended by a majority vote of all members elected to council, but such suspension shall not be for a longer period than fifteen days unless the hearing of said charges shall be extended upon the application of the accused, and in such event the suspension shall not exceed a period of thirty days. Provided, that for the purpose of investigating charges against the head of any de- partment or officer as aforesaid, the council, shall have power to issue subpoenas, or compulsory process to compel the attend- ance of persons and the production of books and papers bef o?e the council, and shall have power to provide by ordinance for exercising and enforcing this provision. And provided further that in all cases in which the attendance of witnesses may be compelled for the investigation of any charges as aforesaid, any member of the council shall have power to administer the requisite oaths ; and such council shall have such power to com- pel the giving of testimony by the attending witnesses as is con- ferred on courts of justice. In all such cases witnesses shall be entitled to the same privileges, immunities and compensation as are allowed witnesses in civil cases, and the costs of all such Code § 225] election and removal of officers. 509a proceedings shall be payable out of the general fund of the municipal -corporation. [1904, April 25, 97 v. 385.] (1) Old section. — Compare old § 1685 R. S., repealed, providing for removal of officers by vote of council. And see §§1732 to 1736 R. S. inclusive, relating to removal of officers by Probate Court, in Part II. Other provisions relating to removals. — Generally; by heads of depart- ments, § 129 of the Code. In department of public service. — Power to remove all officers, em- ployes, etc., appointed by the board, *given to the board, § 129 of the Code. Cause for removal must be such as is satisfactory to directors. § 145 of the Code. In department of public safety. — Members of board, causes for re- moval and method, § 156 of the Code. Officers, employes, etc., ap- pointed by board, cause for removal (conviction of crime), § 160; meth- od of removal (board to provide rules), § 161; filing of charges by mayor, § 167 ; appeal to board from mavor, § 186; power to remove, § 129. Under Council, §§118 and 195 of the Code. Under University Board, § 217 of the Code. Under Library Board, § 218 of the Code. Under Board of Health, § 2115 R. S., re-enacted in § 189 of the Code. Suspensions; of deputies, officers, etc., by chief of police and fire chief; of chiefs, by mayor. § 152. Removals by Probate Court. — §§ 1732 to 1736 R. S. inclusive, under Officers in Part II. Legislative power to provide for removal. — The power given to the legislature to provide for the organization of municipalities car- ries with it, as an incident to its exercise, the power to provide a mode of removal of officers. State v. Hawkins, 44 O. S. 98, 110. The legislature alone can deter- mine the causes for which an elec- tive officer may be removed. State v. Ganson, 58 O. S. 313. Character of power. — The power to remove officers is not nec- essarily a judicial power, and may be conferred by the legislature upon legislative bodies and executive of- ficers. Dorgan v. Columbus, 12 Dec. 121, 123. The power to remove, given to a board or officer, cannot be dele- gated. Kelley v. Cincinnati, 7 N. P. 360. The removal of officers and heads of departments does not affect sub- ordinates or give the removing board power to remove such subor- dinates. State v. Hudson, 44 O. S. 137. (2) What officers.— The phrase "head of any department or offi- cer" does not include city council- men. Cleveland Illuminating Co. v. Hitchens et al., 15 Dec. 522; 3 N. P. (N. S.) 57. (Aff'd Cir. Ct. no rep.) Councilmen may be removed from of- fice in manner provided in Sec. 1732 R. S. et seq. (p. 557). lb. Definitions. — Misfeasance is do- ing a lawful act in an improper manner. Colburn v. Newfarth, 16 B. 54. Malfeasance is doing a wrongful act, such as approving fraudulent bills, purchasing property for pri- vate use, etc. 76. Misconstruction of a statute, about which there might be a dif- ference in opinion, would not be evi- dence of incompetency. State v. lioglan, 64 O. S. 532. Misconduct in office means as such officer and not otherwise. Graham v. Stein, 18 C. C. 770. Misconduct in office, defined. State v. Bair, 50 B. 11. Where an officer commits an of- fence for which he may be indicted, 510 THE OHIO MUNICIPAL CODE. [Code § 225 but which does not touch . his par- ticular character as such officer, he ought not to be removed until he has been indicted and convicted criminally. Graham v. Stein, 18 C. C. 770; State v. Chapman, 11 0. 430. Incompetency in a legal sense means a lack of fitness to discharge the duties of the position, and of- ficial delinquency or corruption would be a disqualification render- ing an officer incompetent. State v. Fire Commissioners, 26 0. S. 24. Misconduct implies wantonness and not honest mistakes. State ex rel. v. Holl, 7 W. L. J. 121. Statutory causes and method exclusive. — Where the legislature has prescribed by statute the causes for removal of officers and also pro- vided the mode of procedur. to ac- complish the removal, the enumera- tion in the statutes of the causes of removal, excludes every other cause. Dorgan v. Columbus, 12 Dec. 121. And the method provided by the statute is exclusive. Dorgan v. Co- lumbus, 12 Dec. 121, 123; State v. Ganson, 58 O. S. 313. The statutory method of removal being exclusive, quo warranto will not lie. State v. Ganson, 58 0. S. 313. (3) Charges. — Charges preferred against a public officer upon which his removal is sought, must be spe- cific, and state facts and not mere conclusions. Kerr v. Hinkle, 12 Dec. 365. As to definiteness of charges, see State ex rel. v. Barrett, 22 C. C. 104. When a public officer may be re- moved for specific causes, such facts must be stated as in judgment of law constitute the cause relied on, and an opportunity afforded the of- ficer to be heard before he can be legally removed. State v. Hoglan, 64 O. S. 532; State v. Sullivan, 58 0. S. 504. Incompetency charged need not have been shown by acts during the term in which the officer was re- moved, but may have been evidenced by acts during a previous term. State v. Fire Commissioners, 26 O. S. 24. A charge setting out facts show- ing that the officer cursed the board and refused to come to order, would amount to a charge of " misconduct in office." State ex rel. v. Sutton, 4 B. 608. It is not necessary that the word " incompetency " be used in the charge, when this is the ground, if acts evidencing incompetency, are shown. State v. Fire Commission- ers, 26 0. S. 24. (4) Notice. — Where notice is re- quired, a removal without notice is a nullity and the effect is to leave the charges pending. State ex rel. v. Sutton, 4 B. 608. As to what is notice within rea- sonable time. lb. Where the officer appears before the trial board and asks investiga- tion, he waives any notice that may be required, and gives the board jurisdiction. State ex rel. v. Fire Commissioners, 26 O. S. 24. (5) Proceedings in trial. — A finding " from the evidence and also from facts within personal knowl- edge " is not a proper exercise of power, unless the facts are shown and an opportunity to refute them given. State v. Sullivan, 58 0. S. 504, 516. The power to suspend pending proceedings in trial is not incident to the power to remove, but must be expressly given. State ex rel. v. Sutton, 4 B. 608. As to degree of proof necessary to establish misfeasance or malfeasance Code §226] election and removal of officers. 511 in office, see Colburn v. Neufarth, 16 B. 54. (6) Remedies of officer. — Where power to remove is con- ferred on executive officer by law, injunction will not lie at suit of party to be removed to restrain tne removal. Kerr v. Hinkle, 12 Dec. 365; Littleton v. Infirmary Direct- ors, 18 C. C. 891; but see Weber v. Bishop, 4 B. 775, 777. Courts will not interfere by in- junction to prevent removal of an officer on the ground that the of- ficials charged with authority to hear and determine the charges and make removal, are acting from im- proper motives. Reeves v. Griffin, 29 B. 281. Or, on the ground that the sta- tute under which the trial board holds office is unconstitutional. lb. Trial cannot be enjoined on the ground of hostility of the investi- gating committee. Miller v. Di- rectors, 4 B. 690. The officer, in case of removal wrongfully has a remedy by man- damus to compel reinstatement. Reeves v. Griffin, 29 B. 281. But the action of a board in re- moving an officer for incompetency, is an exercise of discretion vested in the board, and such action cannot be reviewed in a suit in mandamus to compel reinstatement. State ex rel. v. Fire Commissioners, 26 O. S. 24, 27. An injunction may be allowed at the suit of a taxpayer to restrain council from illegally removing an officer, as such step would involve an expenditure of money and would be an abuse of corporate power. Dorgan v. Columbus, 12 Dec. 121. Courts will not pass upon the sufficiency of the facts upon which charges are made for the removal of public officers. State v. Haw- kins, 44 O. S, 98; State v. Bryson, 44 O. S. 457; State v. McClain, 58 0. S. 313; State v. Sullivan, 58 O. S. 504; State v. Hoglan, 64 O. S. 532. Sec. 226. [Removal of mayor by governor of state.] In case of misconduct in office, or bribery, or any gross neglect of duty, gross immorality or habitual drunkenness 1 of any mayor, the governor of the state shall remove him from office, upon notice and after affording to the said mayor, a full and fair op- portunity to be heard in his defense. 2 The proceedings for his removal shall bo commenced by the governor putting on file in his office, a written statement of the alleged causes for the mayor's removal, and he shall cause a copy of said statement to be served upon the mayor not less than ten days before the hearing of the matter. The proceedings had by the gov- ernor upon such removal shall be public and a full detailed statement of the reasons of such removal shall be filed by the governor in the office of the secretary of state and shall be made 512 THE OHIO MUNICIPAL CODE. [Code §227 a matter of public record therein. The decision of the gov- ernor, when so filed, with the reasons therefor, shall be final and pending such investigation by the governor, he may sus- pend the mayor for a period of thirty days. (1) Statutory causes and method exclusive. — The causes for removal and method of proced- ure given in the statute, exclude all others. Dorgan v. Columbus, 12 Dec. 121 j State v. Ganson, 58 O. S. 313. Misconduct means misconduct as such officer, and not otherwise. Graham v. Stein, 18 C. C. 770. Validity, see Opinion, 50 B. 114. (2) See generally, for matters re- lating to nature of power of remov- al, notice, remedies, etc., notes un- der § 225 supra. Sec. 227. [Council shall determine number, compensation and amount of bond of officers, clerks and employes in any department of city government; exception.] Except in the department of public service, council shall by ordinance or resolution, except as otherwise provided in this act, 1 determine the number of officers, clerks and employes in any department of the city government, 2 and shall fix by ordinance or resolution their re- ( spective salaries 3 and compensation and the amount of bond to be given for each officer, clerk or employe in any department of the city government, if any be required, and said bonds shall be made by such officer, clerk or employe with surety subject to the approval of the mayor of said city. (1) Other exceptions. — As to board of health, see § 189 of the Code and sections of R. S. therein re-enacted; university directors, § 217; library trustees, § 218; trus- tees of public affairs in villages, § 2409 R. S v re-enacted in § 205 of the Code, page 459. (2) Combining offices or ap- pointments, see note (2) to § 128 of the Code, page 328. Village council to fix salaries, «tc— See §§ 195 and 197 of the Code, page 445. (3) Character of salary.— Sal- ary is not a property right of an officer and injunction will not lie to protect it. Reeves v. Griffin, 29 B. 281. Liability for salaries of em- ployes, fixed by an ordinance does not attach to the municipality un- less services are actually performed, and this even though they are per- mitted to report for duty and are not discharged or removed. State v. Philbrick, 13 Dec. 158. Officer suspended is not entitled Code §227] election and removal of officers. 513 to salary during time of suspension. Steubenville v. Culp, 38 O. S. 18. Officer not qualifying. — An offi- cer who has not qualified is not en- titled to salary. State ex rel. v. Eshelby, 2 C. C. 468. De facto officer is not entitled to maintain an action for the salary of the office for the period of his service. Ermston v. Gincinnati, 7 N. P. 635; State ex rel. v. Newark, 6 N. P. 523; Knorr v. Bd. of Ed., 9 B. 182. But see Cincinnati v. Green, 2 C. S. C. R. 278. But if a municipality has al- ready paid a de facto officer the salary for the time he served, it cannot be compelled to pay a de jure officer, who ousts the incum- bent, for the same period. State v. Eshelby, 2 C. C. 468. Where no salary fixed. — There are no fees or salaries attached lo an office except such as are pre- scribed by statute or ordinance. If no fees or salary have been fixed, the person filling the office cannot claim compensation, even though hia services were rendered at the re- quest of a superior. Halpin v. Cin- cinnati, 2 Gaz. 386. Lease's Claim, 4 C. C. 3 ; Strawn v. Commissioners, 47 0. S. 404, 408; Clark v. Com- missioners, 58 O. S. 107; Butler Co. v. Welliver, 12 C. C. 440; Clark v. Lucas Co., 14 C. C. 349; Tuall v. Lucas Co., 3 N. P. 112. And if paid for services where no compensation is provided for the office, the money paid may be recov- ered back. Swartz v. Wayne Co., 35 B. 275; Jones v. Commissioners, 57 O. S. 189. Extra compensation. — Where salaries and fees are regulated, offi- cer cannot charge for other services or claim any fees by implication. Debolt v. Cincinnati Township, 7 O. S. 237. Recovery of overpayment. — As to how overpayment to officer may be recovered, see Jones v. Com- missioners, 57 O. S. 189; Ridenour y. State, 14 C. C. 393, 400; State v. Brown, 20 C. C. 57. Construction of ordinance. — For construction of ordinances fix- ing salaries under previous laws, see Hatch v. Cincinnati, 17 O. S. 48. FORM OF GENERAL ORDINANCE FIXING SALARIES AND BONDS OF OFFICERS AND ORGANIZING DEPARTMENTS. Ordinance No. To fix the salaries and bonds of certain officers, to determine the number of assistants, clerks and employes in certain departments and to fix their salaries and bonds. Be it ordained by the council of the city of ,. State of Ohio : Sec. 1. (Mayor's office) . That the salary of the mayor shall be dollars per annum, payable , and he shall give bond in the sum of dollars. In the office of the mayor there shall be one sec- retary, one clerk, one stenographer and one messenger, who shall be ap- pointed by the mayor, and perform such appropriate duties relating to 514 the ohio municipal code. [Code §228 the mayor's office as shall from time to time be assigned by him. They shall receive the following salaries, payable Secretary dollars per annum. Etc., etc. Sec. 2. (Auditor's office.) (Add sections for other departments desired to be provided for.) Sec. 3. That all ordinances or parts of ordinances inconsistent herewith be repealed and this ordinance take effect from and after the earliest period allowed by law. Passed 19 President of Council. Attest : Clerk. Note: The above form of ordinance may be used in fixing salaries and bonds and in organizing all departments of the city service for which coun- cil is authorized to provide. The number of employes and salaries in the departments of public service, health, university and library are within the ex- clusive control of the officers in charge thereof. See §§ 145, 189, 217 and 218 of the Code, and § 2115 R. S., re-enacted in § 189 of the Code. Changes made in salaries already fixed will not go into effect until the expiration of existing terms of the officers affected. (§ 126.) Sec. £28. [Vacancies; how filled.] 1 In case of death, resigna- tion, removal or disability of any officer or director in any department of any municipality, the mayor of such city shall fill the vacancy by appointment, and said appointment shall continue for the unexpired term and until a successor shall be duly elected and qualified, or until such disability is removed. 2 [1904, April 7, 97 v. 78.] ( 1 ) Old section. — Compare old but the incumbent holds over. State § 1713 R. S., repealed. ex rel. v. Wright, 56 O. S. 540, 554; (2) When vacancy occurs. — State ex rel. v. Kearns, 47 O. S. 566. Where the law provides that an And the incumbent holds over elective officer's term continues un- even though he was an appointee to til his successor is elected and qual- fill a vacancy. State ex rel. v. ified, if a successor is not regularly Darby, 12 C. C. 235 (aff'd 52 O. S. elected, a vacancy is not created, 611). But see State v. Corey, 4 which can be filled by appointment, W. L. M. 563. Code § 229] election and removal of officers. 515 Death before beginning of term, but after election and qualifying would create a vacancy. State ex rel. v. McGregor, 44 O. S. 628. But such vacancy does not begin until end of term of incumbent. State ex rel. v. Dahl, 55 O. S. 195. But death on election day, before the polls are closed would not create a vacancy. State ex rel. v. Speidel, 62 O. S. 156. Council, though given the right to judge of the election and qualifica- tion of its own members, has not the power to decide whether there is any vacancy or office to be filled. State ex rel. v. Darby, 12 C. C. 235 (aff'd 52 O. S. 6x1). When the appointment to an office is a nullity for the reason that the appointee is by statute ineligible to such office, a legal appointment to such office may be made, without first ousting such first appointee by proceedings in quo warranto. State ex rel. v. Craig, 69 O. S., 236. Vacancy by resignation, occurs at date of resignation, and not when resignation is accepted. Reiter v. State, 51 O. S. 74. No vacancy where incumbent can hold over. — There is no vacan- cy as long as there is an incumbent who can legally hold over until his successor is elected and qualified. State ex rel. v. McCracken, 51 O. S. 123, 129; State ex rel. v. Thompson, 9 C. C. 161. Term of appointee. — Compare § 11 R. S. under Officers in Part II. The fact that the commission was made out for the wrong period of time, will not abridge or extend the term of the appointee to vacan- cy. State ex rel. v. Darby, 12 C. C. 235 (aff'd 52 O. S. 611); State ex rel. v. Slough, 12 C. C. 105, 111. Sec. 229. [Declaration of unconstitutionality of one section of this act shall not affect validity of any other section not so held invalid.] In the event that any section or part, of a section included within the provisions of this act shall be held by any court to be invalid or unconstitutional, such decision shall not be held to invalidate or impair the validity, force or effect of any other section or part of a section of this act, except the section or part of a section so held invalid or unconstitutional by such court. 1 (1) Effect of unconstitution- ality of part of an act.— The rule as to the effect of the uncon- stitutionality of a particular sec- tion or part of an act upon other sections of the same act, is that if the unconstitutional part is so inseparably connected with other sections as to raise a pre- sumption that the legislature would not have passed the latter without the former, all sections so connected are void. State v. Perry Co., 5, 0. S. 497; Monroe v. Collins, 17 O. S. 665, 684; Bowles v. State, 37 O. S. 35; Exchange Bank v. Hines, 3 O. S. 1; Taylor v. Ross Co., 23 O. S. 22; R. R. v. Commissioners, 31 0. S. 338; Treasurer v. Bank, 47 O. S. 503; State v. Frame, 39 O. S. 399; State v. Buckley, 60 O. S. 273. See also Stevens v. State, 61 0. S. 597; State v. Kinney, 56 O. S. 721; Pump v. Commissioners, 69 O. S. 448. The rejection of some of the pro- visions of a statute for unconstitu- tionality, will not vary the sense or meaning of its remaining provisions, which are to be construed as well in the light of those rejected, as of those which remain. State v. Dom- baugh, 20 0. S. 167. 516 the ohio municipal code. [Code §§230, 231 Sec. 230. [Election and term of police judge and clerk; vacan- cies in office of; how filled.] Except where otherwise provided in the acts creating police courts and fixing the terms of judges and clerks thereof, which acts are herein made to remain in full force and effect, such judges and clerks shall be elected in each municipality where such officers are now provided for by law, at the first election held under this act on the first Monday in April, 1903, for terms of three years, and thereafter their successors shall be elected for a like term; and except as otherwise provided in the acts creating said courts, vacancies in the office of judge of the police court shall be filled by the governor for the unexpired term, and vacancies in the office of clerk of the police court shall be filled by the mayor for the unexpired term. 1 (1) See §§ 190, 191, 192 (city of the Code (village police courts) police courts) and §§ 208, 209, 210 and notes under such sections. Sec. 231. [When this act shall take effect.] For the purpose of carrying into effect the powers and duties conferred and im- posed upon present councils, boards of legislation, or other legis- lative bodies, by the provisions of this act, and for the purpose of conducting the first election to be held in every municipality hereunder, and of preparing for the change in the organization of municipalities herein provided for, this act shall take effect from and after the fifteenth day of November, 1902 ; and for all other purposes this act, and every portion of the same, in- cluding the repeal of existing laws, shall take effect on the first Monday in May, 1903, 1 and the following sections of the Ke- vised Statutes of Ohio are hereby repealed: (1) When repeals go into tU Effect on curative provisions in §§ feet.— A statute providing that it 31 and 137 of the Code, see Horst- shall " go into effect on May 1st man v. St. Ry. Co., 13 Dec. 378. next," postpones the repealing clause When status of municipalities as well as its general provisions. changed. — The status of cities and McArthur v. Franklin, 16 O. S. 193. villages and their governments was Repealing clause of new Code does not changed by the municipal code not go into effect until the first until after the April election follow- Monday in May, 1903. State v. ing the passage of the Code. Pol- Barr, 13 Dec. 382. lock v. Toland, 25 C. 0. 75. Code §231] REPEALS. 517 Repeals. 1537-1, 1538, 1539, 1540, 1541, 1542, 1543, 1545, 1545-1, 1545-2, 1545-3, 1545-4, 1545-5, 1545-6, 1545-7, 1545-8, 1545-9, 1545-10, 1545-11, 1545-12, 1545-13, 1545-14, 1545-15, 1545-16 1545-22 1545-28 1545-34 1545-40 1545-44 1545-50 1545-56 1545-62 1545-68 1545-74 1545-80 1545-86 1545-90 1545-96 1545-102 1545-17, 1545-23, 1545-29, 1545-35, 1545-41, 1545-45, 1545-51, 1545-57, 1545-63, 1545-69, 1545-75, 1545-81, 1545-87, 1545-91, 1545-97, 1545-18, 1545-24, 1545-30, 1545-36, 1545-42, 1545-46, 1545-52, 1545-58, 1545-64, 1545-70, 1545-76, 1545-82, 1545-88, 1545-92, 1545-98, 1545-19, 1545-25, 1545-31, 1545-37, 1545-43, 1545-47, 1545-53, 1545-59, 1545-65, 1545-71, 1545-77, 1545-83, 1545-88a, 1545-93, 1545-99, 1545-20, 1545-26, 1545-32, 1545-38, 1545-43a, 1545-48, 1545-54, 1545-60, 1545-66, 1545-72, 1545-78, 1545-84, 1545-886, 1545-94, 1545-100, 1545-21, 1545-27, 1545-33, 1545-39, 1545-436, 1545-49, 1545-55, 1545-61, 1545-67, 1545-73, 1545-79, 1545-85, 1545-89, 1545-95, 1545-101, 1545-107, 1545-103, 1545-104, 1545-105, 1545-106, 1545-108, 1545-109, 1545-110, 1545-111, 1545-112, 1545-113, 1545-114, 1545-115, 1545-116, 1545-117, 1545-118, 1545-119, 1545-120, 1545-121, 1545-122, 1545-123, 1545-124, 1545-125, 1545-126, 1545-127, 1545-128, 1545-129, 1545-130, 1545-131, 1545-132, 1545-133, 1545-134, 1545-135, 1545-136, 1545-137, 1545-138, 1545-139, 1545-140, 1545-141, 1545-142, 1545-142a, 1545-143, 1545-144, 1545-145, 1545-146, 1545-147, 1545-148, 1545-149, 1545-150, 1545-151, 1545-152, 1545-153, 1545-154, 1545-155, 1545-156, 1545-157, 1545-158, 1545-159, 1545-160, 1545-161, 1545-162, 1545-163, 1545-164, 1545-165, 1545-165a, 1545-1656, 1545-165c, 1545-165d, 1545-165e, 1545-165/, 1545-165^, 1545-165/i, 1545-165^ 1545-166, 1545-167, 1545-168, 1545-169, 1545-170, 1545-171, 1545-172, 1545-173, 1545-174, 1545-175, 1545-176, 1545-177, 1545-178, 1545-179, 1545-180, 1545-181, 1545-182, 1545-183, 1545-184, 1545-185, 1545-186, 1545-187, 1545-188, 1545-189, 1545-190, 1545-191, 1545-192, 1545-193, 1545-194, 1545-195, 1545-196, 1545-197, 1545-198, 1545-199, 1545-200, 1545-201, 1545-202, 1545-203, 1545-204, 1545-205, 1545-206, 1545-207, 1545-208, 1545-209, 1545-210, 1545-211, 1545-212, 1545-213, 1545-214, 1545-215, 1545-216, 1545-217, 1545-218, 1545-219, 1545-220, 1545-221, 1545-222, 1545-223, 1545-224, 1545-225, 1545-226, 1545-227, 1545-228, 1545-229, 1545-230, 1545-231, 1545-232, 1545-233, 1545^234, 1545-235, 1535-236, 1545-237, 1545-238, 1545-239, 1545-240, 1545-241, 1545-242, 1545-243, 1545-244, 1545-245, 1545-246, 1545-247, 1545-248, 1545-249, 1545-250, 1545-251, 518 the ohio municipal code. [Code §231 1545-252, 1545-253, 1545-254, 1545-255, 1545-256, 1545-257, 1545-258, 1545-259, 1545-260, 1545-261, 1545-262, 1545-263, 1545-264, 1545-265, 1545-266, 1545-267, 1545-268, 1545-269, 1545-270, 1545-271, 1545-272, 1545-273, 1545-274, 1545-275, 1545-276, 1545-277, 1545-278, 1545-279, 1545-280, 1545-281, 1545-282 (1), 1545-282 (2), 1545-283, 1545-284, 1545-285, 1545-286, 1545-287, 1545-288, 1545-289, 1545-290, 1545-291, 1545-292, 1545-293, 1545-294, 1545-295, 1545-296, 1545-297, 1545-298, 1545-299, 1545-300, 1545-301, 1545-302, 1545-303, 1545-304, 1545-305, 1545-306, 1545-307, 1545-308, 1545-309, 1545-310, 1545-311, 1545-312, 1545-313, 1545-314, 1545-315, 1545-316, 1545-317, 1545-318, 1545-319, 1545-320, 1545-321. 1545-322, 1545-323, 1545-324, 1546, 1547, 1548, 1549, 1550, 1551, 1552, 1572, 1573, 1574, 1575, 1576, 1577, 1578, 1579, 1580, 1581, 1582, 1583, 1584, (1584-1), (1584-2), 1585, 1586, 1587, 1588, 1588a, 1588o-l, 1617, 1618, 1619, 1620, 1621, 1622, 1623, 1624, 1625, 1626, 1627, 1627a, 16276, 1627c, 1627d, 1628, 1629, 1630, 1631, 1632, 1633, 1634, 1635, 1636, 1637, 1638, 1639, 1640, 1641, 1642, 1643, 1644, 1645, 1646, 1647, 1655, 1655a, 16556, 1656, 1657, 1658, 1660, 1661, 1662, 1663, 1664, 1665, 1666, 1666-1, 1666-2, 1667, 1668, 1669, 1670, 1671, 1672, 1672b, 1673, 1673a, 1674, 1675, 1676, 16766, 1677, 1679, 1680, 16806, 1681, 1682, 1683, 1683a, 1684, 1685, 1686, 1687, 1688, 1690, 1692, (1692-1), 1692a, 16926, 1692c, 1692d, 1692c, 1692/(1), 1692/(2), 1692#, 1692^, 1693, 1694a, 1699-1, 1699-2, 1699-3, 1706, 1707, 1707-1, 1707-2, 1707-3, 17076, I707c(2), I707d, 1707^-1, 1707^-2, 1707d-3, 1707J-4, 1707^-5, 1707d-6, 1707^-7, 1707d-8, l707d-9, 1707d-10, 1707^-11, 1707(2-12, I707d-13, I707d-14, 1707a 7 -15, 1707^-16, l707aVL7, 1707d-18, 1707aVL9, 1707d-20, 1707J-21, 1707d-22, l707d-23, l707d-24, 1707d-25, 1707^-26, 1707d-27, 1707d-28, 1707d-29, 1707d-30, I707a 7 -31, 1707d-32, l707d-33, 1707^-34, 1707^-36, 1707d-37, 1707d-38, 1707d-39, 1707d-40, l707d-41, l707d-42, 1707d-43, 1707d-44, 1707d-45, 1707a 7 -46, 1707d-47, l707d-48, l707d-49, 1707 d-50, 1707d-51, 1707c, 1707/, 1707/-1, 1707/-2, 1707/-3, 1707/-4, 1707/-5, 1707/-6, 1707/-7, 1707/-8, 1707/-9, 1707/-10, 1707/-11, 1707/-12, 1707/-13, 1707/-14, 1707/-15, 1707/-16, 1707/-17, 1707/-18, 1707/-19, 1707/-20, 1707/-21, 1707/-22, 1707/-23, 1707/-24, 1707/-25, 1707/-26, 1707/-27, 1707/-28, 1707/-29, 1708, 1708a, 17086, 1708c, 1709, 1709a, 17096, 1710, 1711, 1712, 1713, 1714, 1715, 1716, 1717, 1719, 1720, 1720a, 17206, 1720c-(l), l720c-(2), 1720-1, 1720-2, 1720-3, 1720-4, 1720-5, 1720-6, 1721-1, 1721-2, 1722, 1724, 1744a, Code §231] REPEALS. 519 1744&, 1749, 1753, 1754, 1755, 1764, 1765, 1765a, 1765-1, 1765-2, 1766, 1770, 1770-1, 1771-1, 1771-2, 1771-3, 1772, 1773-1, 1781, 1781a, 1784-1, 1784-2, 1784-3, 1784-4, 1784-5, 1784-6, 1784-7, 1784-8, 1784-9, 1784-10, 1784-11, 1784-12, 1784-13, 1784-14, 1784-15, 1784-16, 1784-17, 1784-19, 1784-25, 1784-31, 1784-37, 1784-43, 1784-49, 1784-55, 1784-61, 1784-20, 1784-26, 1784-32, 1784-38, 1784-44, 1784-50, 1784-56, 1784-21, 1784-27, 1784-33, 1784-39, 1784-45, 1784-51, 1784-57, 1784-22, 1784-28, 1784-34, 1784-40, 1784-46, 1784-52, 1784-58, 1784-23, 1784-29, 1784-35, 1784-41, 1784-47, 1784-53, 1784-59, 1784-18, 1784-24, 1784-30, 1784-36, 1784-42, 1784-48, 1784-54, 1784-60, 1847, 1847-1, 1847-2, 1847-3, 1847-4, 1855, 1856, 1857, 1858, 1859, 1860, 1861, 1862, 1863, 1870, 1871, 1872, 1873, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1900-1, 1901, 1902, 1903, 1903-1, 1904, 1905, 1905a, 1906, 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918, 1919, 1920, 1921, 1922, 1923, 1924, 1925, 1928, 1929, 1929-1, 1930, 1931, (1931-1), (1931-2), 1932, 1933, 1934, 1935, 1936, 1937, 1938, 1939, 1940, 1941, 1942, 1943, 1944, 1945, 1945-1, 1945-2, 1946, 1947, 1948, 1949, 1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, 1961, 1962, 1963, 1964, 1965, 1966, 1967, 1968, 1969, 1970, 1971, 1972, 1973, 1974, 1975, 1976, 1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1986a, 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1997-1, 1998 (1), 1998 (2), 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2007-1, 2008, 2009, 2010, 2011, 2012 (1), 2012 (2), 2013 (1), 2013 (2), 2014 (1), 2014 (2), 2015, 2016, 2017, 2018, 2019, 2020, 2021 (1), 2021 (2), 2022 (1), 2022 (2), 2022-1, 2022-2, 2022-3, 2022-4, 2022-5, 2022-6, 2022-7, 2022-8, 2022-9, 2022-10, 2022-11, 2022-12, 2022-13, 2022-14, 2022-15, 2022-16, 2022-17, 2022-18, 2022-19, 2022-20, 2022-21, 2022-22, 2022-23, 2022-24, 2022-25, 2022-26, 2022-27, 2022-28, 2022-29, 2022-30, 2022-31, 2022-32, 2022-33, 2022-34, 2022-35, 2022-35a, 2022-356, 2022-35c, 2022-35d, 2022-35e, 2022-35/, 2022-35#, 2023, 2024, 2025, 2026, 2027, 2028, 2029, 2030, 2030-i, 2030-2, 2030-3, 2030-4, 2030-5, 2030-6, 2030-7, 2030-8, 2030-9, 2030-10, 2030-11, 2030-12, 2030-13, 2030-14, 2030-15, 2030-16, 2030-17, 2030-18, 2030-19, 2030-20, 2030-21, 2030-22, 2030-23, 2031, 2032, 2033, 2034, 2035, 2036, 2037, 2038, 2039, 2040, 2041, 2042, 2043, 2044, 2045, 2046, 2047, 520 the ohio municipal code. [Code §231 2048, 2049, 2079, 2080, 2082, 2083, 2084, 2085, 2085-1, 2086, 2087, 2088, ^2089, 2090-1, 2090-2, 2090-3, 2090-4, 2090-5, 2090-6, 2090-7, 2091, 2095, 2096, 2096a, 2096a-l, 2097, 2098, 2099a, 20996, 2099c, 2100a, 21006, 2100a 1 , 2100e, 2104, 2112-1, 2112-2, 2112-3, 2112-4, 2112-5, 2112-6, 2112-7, 2112-8, 2112-9, 2112-10, 2112-11, 2112-12, 2112-13, 2112-14, 2112-15, 2112-16, 2112-17, 2112-18, 2112-19, 2167-7, 2167-8, 2170, 2170-1, 2186, 2187, 2188, 2189, 2190, 2191, 2192, 2193, 2194, 2195, 2196, 2197, 2198, 2204, 2205, 2206, 2207, 2208, 2209, 2210, 2211, 2212, 2213, 2214, 2215, 2216, 2217, 2218, 2219, 2220, 2221, 2222, 2223, 2224, 2224a, 22246, 2225, 2226, 2227, 2228, 2229, 2230, 2231, 2231-1, 2232, 2232a, 2233, 2233-1, 2233-2, 2233-3, 2233-4, 2233-5, 2234, 2235, 2.235a, 2236, 2237, 2238, 2239, 2240, 2241, 2242, 2243, 2244, 2245, 2246, 2247, 2248, 2249, 2250, 2251, 2252, 2253, 2254, 2255, 2256, 2257, 2258, 2259, 2260, 2261, 2262, 2263, 2264, 2264a, 22646, 2265, 2266, 2267, 2269, 2270, 2270a, 22706, 2270c, 2270a 7 , 2270c, 2270/, 2271, 2272, 2273, 2274, 2275, 2275a, 2275c, 2276, 2277, 2280, 2281, 2283, 2289a, 22896, 2289c, 2289a 7 , 2292, 2292a, 2293, 2293a, 22936(1), 22936(2), 2293c, 2293^(1), 2293d(2), 2293d(3), 2293c(l), 2293c(2), 2293/(1), 2293/(2), 2293/(3), 2293/(4), 2293#, 22937*, 2293/i-l, 22937i-2, 22937i-3, 2293-1, 2293-2, 2293-3, 2293-4, 2293-5, 2293-6, 2293-7, 2293-8, 2293-9, 2293-10, 2293-11, 2293-12, 2293-13, 2293-14, 2293-15, 2293-16, 2293-17, 2293-18, 2293-19, 2293-20, 2293-21, 2293-22, 2293-23, 2293-24, 2293-25, 2293-26, 2293-27, 2293-28, 2293-29, 2293-30, 2293-31, 2293-32, 2293-33, 2293-34, 2293-35, 2293-36, 22"93-37, 2293-38, 2293-39, 2293-40, 2293-41, 2293-42, 2293-43, 2293-44, 2293-45, 2293-46, 2293-47, 2293-48, 2293-49, 2293-50, 2293-51, 2293-52, 2293-53, 2293-54, 2293-55, 2293-56, 2293-57, 2293-58, 2293-59, 2293-60, 2293-61, 2293-62, 2293-63, 2293-64, 2293-65, 2293-66, 2293-67, 2293-68, 2293-69, 2293-70, 2293-71, 2293-72, 2293-73, 2293-74, 2293-75, 2293-76, 2293-77, 2293-78, 2293-79, 2293-80, 2293-81, 2293-82, 2293-83, 2293-84, 2293-85, 2293-86, 2296, 2300-1, 2300-2, 2300-3, 2303, 2303a, 2304, 2305, 2306, 2306-1, 2306-2, 2306-3, 2306-4, 2306-5, 2306-6, 2306-7, 2306-8, 2306-9, 2307, 2308, 2309, 2310, ' 2310a, 2311,, 2312, 2314-1, 2314-2, 2314-3, 2314-15a, 2314-156, 2314-15c, 2314-150 7 , 2314-15c, 2314-15/, 2314-15^, 2314-157i, 2314-15*', 2314-15;, 2314-15&, 2314-15 7 , 2314-15m, 2314-16, 2314-17, 2314-18, 2314-19, 2314-20, 2314a, 23146, 2315, 2316, 2317, 2319, 2320, 2322, 2323, Code §231] repeals. 521 2324, 2325, 2328, 2329, 2329a, 2330, 2330a, 23306, 2330c 2331, 2333, 2333a, 2334, 2334a, 23346, 2334c, 2334-1 2334-2, 2334-3, 2334-4, 2334-5, 2335, 2336, 2337, 2338, 2339 2340, 2341, 2342, 2343, 2344, 2345, 2346, 2347, 2348, 2349 2350, 2351, 2352, 2353, 2354, 2355, 2356, 2357, 2358, 2359 2360, 2361, 2362, 2363, 2364, 2365, 2365-3, 2365-4, 2365-5 2365-6, 2365-7, 2365-8, 2365-9, 2365-10, 2365-11, 2365-12 2365-13, 2365-14, 2365-15, 2366, 2367, 2368, 2368a, 2368a-l 2368a-2, 2368a-3, 2369, 2370, 2370a, 2371, 2372, 2373, 2374 2375, 2376, 2377, 2378, 2379, 2380, 2380a, 2381, 2382, 2383 2384, 2385, 2386, 2387, 2388, 2389, 2390, 2391, 2392, 2393 2394, 2395, 2396, 2397, 2398, 2398a, 2399, 2400, 2401, 2402 2403, 2404-1, 2404-2, 2404-3, 2404-4, 2405, 2406, 2406a 24066, 2406c, 2406-1, 2406-2, 2406-3, 2406-4, 2406-5 2406-6, 2406-7, 2406-8, 2406-9, 2406-10, 2406-11, 2406-12 2406-13, 2406-14, 2406-15, 2406-16, 2406-17, 2406-18 2406-19, 2406-20, 2406-21, 2406-22, 2406-23, 2406-24 2406-25, 2406-26, 2406-27, 2406-28, 2406-29, 2406-30 2406-31, 2406-32, 2406-33, 2406-34, 2406-35, 2406-36 2406-37, 2406-38, 2406-39, 2406-39a, 2406-396, 2406-39c 2406-39d, 2406-39e, 2406-39/, 2406-39^, 2406-39&, 2406-39i 2406-39;, 2406-39&, 2406-39?, 2406-39m, 2406-39n, 2406-40 2406-41, 2406-42, 2406-43, 2406-44, 2406-45, 2406-46 2406-47, 2406-48, 2406-49, 2406-50, 2406-51, 2406-52 2406-53, 2406-54, 2406-55, 2406-56, 2406-57, 2406-58 2406-59, 2406-60, 2406-61, 2406-62, 2406-63, 2406-64 2406-65, 2406-66, 2406-67, 2406-68, 2406-69, 2406-70 2406-71, 2406-72, 2406-73, 2406-74, 2406-75, 2406-76 2406-77, 2406-78, 2406-79, 2406-80, 2406-81, 2406-82 2406-83, 2406-84, 2406-85, 2406-86, 2406-87, 2406-88 2406-89, 2406-90, 2406-91, 2406-92, 2406-93, 2406-94 2406-95, 2406-96, 2406-97, 2406-98, 2406-99, 2406-100 2406-101, 2406-102, 2406-103, 2406-104, 2406-105, 2406-106 2406-107, 2406-108, 2406-109, 2406-110, 2406-111, 2406-112 2406-113, 2406-114, 2406-115, 2406-116, 2406-117, 2406-118 2406-119, 2406-120, 2406-121, 2406-122, 2406-123, 2406-124 2406-125, 2406-126, 2406-127, 2406-128, 2406-129, 2406-130 2406-131, 2406-132, 2406-133, 2406-134, 2406-135, 2406-136 2406-137, 2406-138, 2406-139, 2406-140, 2406-141, 2406-142 2406-143, 2406-144, 2406-145, 2406-146, 2406-147, 2406-148 2406-149, 2406-150, 2408, 2408a, 2411a, 2411-2, 2411-3 2417a, 2435-19, 2435-20, 2435-21, 2435-22, 2435-23, 2435-24 2435-25, 2435-26, 2435-27, 2435-28, 2435-29, 2435-30 2435-31, 2435-32, 2435-33, 2435-34, 2435-35, 2435-36 522 the ohio municipal code. [Code §231 2435-37, 2435-38, 2435-39, 2435-40, 2435-41, 2435-42, 2435-43, 2435-44, 2435-45, 2435-46, 2435-47, 2435-48, 2435-49, 2435-50, 2435-51, 2435-52, 2435-53, 2435-54, 2435-55, 2435-56, 2435-57, 2435-58, 2435-59, 2435-60, 2436, 2437, 2438, 2439, 2440, 2440a, 2441, 2442, 2443, 2444, 2445, 2445a, 24456, 2445c, 2446, 2447, 2448, 2449, 2450, 2451, 2452, 2453, 2454, 2454-1, 2454-2, 2455, 2456, 2457, 2458, 2459, 2460, 2461, 2462, 2463, 2463-1, 2464, 2465, 2466, 2467, 2468, 2469, 2470-1, 2470-2, 2470-3, 2470-4, 2470-5, 2470-6, 2470-7, 2470-8, 2476, 2476-1, 2476-2, 2476-3, 2476-4, 2476-5, 2476-6, 2476-7, 2476-8, 2476-9, 2476-10, 2476-11, 2476-12, 2476-13, 2476-14, 2476-15, 2476-16, 2476-17, 2476-18, 2476-19, 2476-20, 2476-21, 2476-22, 2476-23, 2476-24, 2476-25, 2476-26, 2476-27, 2476-28, 2476-29, 2476-30, 2476-31, 2477(1), 2477(2), 2477-1, 2477-2, 2477-3, 2477-4, 2477-5, 2477-6, 2477-7, 2477-8, 2477-9, 2477-10, 2477-11, 2477-12, 2477-13, 2477-14, 2477-15, 2477-16, 2477-17, 2477-18, 2477-19, 2477-20, 2477-21, 2477-22, 2477-23, 2477-24, 2477-25, 2477-26, 2477-27, 2477-28, 2477-29, 2477-30, 2477-31, 2477-32, 2477-33, 2477-34, 2477-35, 2477-36, 2477-37, 2477-38, 2477-39, 2477-40, 2477-41, 2477-42, 2477-43, 2477-44, 2477-45, 2477-46, 2477-47, 2477-48, 2477-49, 2477-50, 2477-51, 2477-52, 2477-53, 2477-54, 2477-55, 2477-56, 2477-57, 2477-58, 2477-59, 2477-60, 2477-61, 2477-62, 2477-63, 2477-64, 2477-65, 2477-66, 2477-67, 2477-68, 2477-69, 2477-70, 2477-71, 2477-72, 2477-73, 2477-74, 2477-75, 2477-76, 2477-77, 2477-78, 2477-79, 2477-80, 2477-81, 2477-82, 2477-83, 2477-84, 2477-85, 2477-86, 2477-87, 2477-88, 2477-89, 2477-90, 2477-91, 2477-92, 2477-93, 2477-94, 2487, 2488, 2488a, 2489, 2489-4, 2489-5, 2489-6, 2491-1, 2491-2, 2491a, 24915, 2491c, 2491^(1), 2491d(2), 2491c(2), 2491d(3), 2491c, 2491/, 2492, 2493, 2493-1, 2493-2, 2493-3, 2493-4, 2493-5, 2499-1, 2499-2, 2500a, 25006, 2500c, 2502, 2505/, 2506, 2507, 2508, 2509, 2509a, 25096, 2509c, 2510, 2510-1, 2510-2, 2510-3, 2510-4, 2510-5, 2510-6, 2510-7, 2510-8, 2510-9, 2510-10, 2510-11, 2510-12, 2510-13, 2510-14, 2510-15, 2510-16, 2510-17, 2510-18, 2510-19, 2511, 2512, 2513, 2514, 2515, 2515-1, 2515-2, 2515-3, 2515-4, 2515-5, 2515-6, 2515-7, 2515-8, 2515-9, 2515-10, 2515-11, 2515-12, 2515-13, 2515-14, 2515-15, 2515-16, 2515-17, 2515-18, 2515-19, 2515-20, 2515-21, 2515-22, 2515-22a, 2515-225, 2515-22c, 2515-220 7 , 2515-22c, 2515-23, 2515-24, 2515-25, 2515-26, 2515-27, 2515-28, 2515-29, 2515-30, 2515-31, 2515-32, 2515-33, 2515-33a, 2515-336, 2515-33c, 2515-33d, 2515-33c, 2515-33/, Code §231] REPEALS. 523 2515-33#, 2515-337i, 2515-33i, 2515-33;, 2515-34, 2515-35, 2515-36, 2515-37, 2515-38, 2515-45a, 2515-456, 2515-45c, 2515-45d, 2515-46, 2515-47, 2515-48, 2515-49, 2515-50, 2915-51, 2515-52, 2515-53, 2515-54, 2515-55, 2518, 2518a, 2519, 2520, 2550-1, 2550-2, 2550-3, 2550-4, 2550-5, 2558a, 2559, 2559o(l), 2559a(2), 25595, 2560, 2561, 2562, 2563, 2564, 2565, 2575-2, 2575-3, 2575-4, 2575-5, 2575-6, 2575-7, 2575-8, 2575-9, 2575-10, 2575-11, 2575-12, 2575-13, 2575-14, 2575-18, 2575-24, 2575-30, 2575-36, 2575-42, 2575-48, 2575-54, 2575-60, 2575-66, 2575-72, 2575-78, 2575-84, 2575-90, 2575-96, 2575-19 2575-25 2575-31 2575-37 2575-43 2575-49 2575-55 2575-61 2575-67 2575-73 2575-79 2575-85 2575-91 2575-97 2575-15, 2575-16, 2575-17, 2575-21, 2575-22, 2575-23, 2575-27, 2575-28, 2575-29, 2575-33, 2575-34, 2575-35, 2575-39, 2575-40, 2575-41, 2575-45, 2575-46, 2575-47, 2575-51, 2575-52, 2575-53, 2575-57, 2575-58, 2575-59, 2575-63, 2575-64, 2575-65, 257t>-69, 2575-70, 2575-71, 2575-75, 2575-76, 2575-77, 2575-81, 2575-82, 2575-83, 2575-87, 2575-88, 2575-89, 2575-93, 2575-94, 2575-95, 2575-99, 2575-100, 2575-101, 2575-102, 2575-103, 2575-105, 2575-106, 2575-107, 2575-108, 2575-109, 2575-111, 2575-112, 2575-113, 2575-114, 2575-115, 2575-117, 2575-118, 2575-119, 2575-120, 2575-121, 2575-123, 2575-124, 2575-125, 2575-126, 2575-126a, 1266, 2575-126c, 2575-127, 2575-128, 2575-129, 2575-130, 2575-131, 2575-132, 2575-133, 2575-134, 2575-135, 2575-136, 2575-137, 2575-137a, 2575-138, 2575-139, 2576, 2577, 2578, 2579, 2580, 2581, 2581-1, 2581-2, 2581-3, 2581-4, 2581-5, 2581-6, 2581-7, 2581-8, 2581-9, 2581-10, 2581-11, 2581-12, 2581-13, 2581-14, 2581-15, 2581-16, 2581-17, 2581-18, 2582, 2583, 2584, 2585, 2586, 2587, 2588, 2589, 2590, 2591, 2592, 2593, 2594, 2595, 2596, 2596-1, 2596-2, 2596-3, 2596-4, 2596-5, 2596-6, 2596-7, 2596-8, 2596-9, 2601-1, 2601-2, 2601-3, 2626, 2627, 2628, 2637, 2638, 2639, 2640, 2641, 2651-1, 2651-2, 2651-3, 2651-4, 2651-5, 2651-6, 2651-7, 2651-8, 2651-9, 2651-10, 2651-11, 2651-12, 2651-13, 2651-14, 2651-15, 2651-16, 2651-17, 2651-18, 2665, 2666, 2667, 2668, 2668-1, 2668-2, 2668-3, 2668-4, 2668-5, 2668-6, 2^68-7, 2668-8, 2669a, 2670-2, 2670-3, 2672-1, 2672-2, 2672-3, 2672-4, 2672-5, 2672-6, 2672-7, 2672-8, 2672-9, 2672-10, 2672-11, 2672-12, 2672-13, 2672-14, 2672-15, 2672-16, 2672-17, 2672-18, 2672-19, 2672-20, 2672-21, 2672-22, 2672-23, 2672-24, 2575-20, 2575-26, 2575-32, 2575-38, 2575-44, 2575-50, 2575-56, 2575-62, 2575-68, 2575-74, 2575-80, 2575-86, 2575-92, 2575-98, 2575-104, 2575-110, 2575-116, 2575-122, 2575- 524 the ohio municipal code. [Code §231 2672-25, 2672-26, 2672-27, 2672-28, 2672-29, 2672-30, 2672-31, 2672-32, 2672-33, 2672-34, 2674-35, 2674-36, 2672-37, 2672-38, 2672-39, 2672-40, 2672-41, 2672-42, 2672-43, 2672-44, 2672-45, 2672-46, 2672-47, 2672-47a, 2672- 476, 2672-48, 2672-49, 2672-50, 2672-51, 2672-52, 2672-53, 2672-54, 2672-55, 2672-56, 2672-57, 2672-58, 2672-59, 2672-60, 2672-61, 2672-62, 2672-63, 2672-64, 2672-65, 2672-66, 2672-67, 2672-68, 2672-69, 2672-70, 2672-71, 2672-72, 2672-73, 2672-74, 2672-75, 2672-76, 2672-77, 2672-78, 2672-79, 2672-80, 2672-81, 2672-82, 2672-83, 2672-84, 2672-85, 2672-86, 2672-87, 2672-88, 2672-89, 2672-90, 2672-91, 2672-92, 2672-93, 2672-94, 2672-95, 2672-96, 2672-97, 2672-98, 2672-99, 2672-100, 2672-101, 2672-102, 2672-103, 2672-104, 2672-105, 2672-106, 2672-107, 2672-108, 2672-109, 2672-110, 2672-111, 2672-112, 2672-113, 2672-114, 2672-115, 2672-116, 2672-117, 2672-118, 2672-119, 2672-120, 2672-121, 2672-122, 2672-123, 2672-124, 2672-125, 2672-126, 2672-127, 2672-128, 2672-129, 2672-130, 2672-131, 2672-132, 2672-133, 2672-134, 2672-135, 2672-136, 2672-137, 2672-138, 2672-139, 2672-140, 2672-141, 2672-142, 2672-143, 2672-144, 2672-145, 2672-146, 2672-14 7, 2672-148, 2672-149, 2672-150, 2672-151, 2673, 2673a, 2674, 2675, 2675-5, 2675-10, 2682, 2683, 2683-1, 2684, 2685, 2686. 2687, 2688, 2688-1, 2688-la, 2688-2 2688-3, 2688-4, 2688-5, 2688-6, 2688-7, 2689, 2689a(l), 2689a(2), 26896, 2689-1, 2690, 2690a, 2690d, 2690e, 2690/, 2690#, 2690/t, 2690t, 2690;, 2690&, 2690?, 2690m, 2690n, 2690o, 2690p, 2690^, 2691, 2691-1, 2691-2, 2691-3, 2692, 2693, 2694, 2695, 2696, 2697, 2698, 2699, 2699-1, 2699-2, 2699-3, 2699-4, 2699-5, 2700, 2700a, 2700-1, 2701a, 2702, 2702a, 2702-1 2702-2, 2702-3, 2704, 2705, 2705-1, 2705-2, 2705-3, 2705-4, 2705-5, 270S-6, 2710, 2711, 2711-1, 2711-2, 2711-3, 2711-4, 2711-5, 2711-6, 2711-7, 2711-8, 2711-9, 2711-10, 2711-11, 2711-12, 2711-13, 2711-14, 2711-15, 2711-16, 2711-17, 2711-18, 2711-19, 2711-20, 2711-21, 2711- 22, 2711-23, 2711-24, 2711-25, 2711-26, 2711-27, 2711-28, 2712, 2713, 2714, 2715, 2716, 2717, 2718, 2719. 2720, 2721, 2721a, 2722, 2722-1, 2723, 2723a, 2724, 2725, 2726, 2727, 2728, 2729, 2729a, 27296, 2729d, 2729e, 2729f, 2729^(1), 2729^(1), 2729i(l), 2729(7(2), 27297i(2), 2729^(2), 2729-1, 2729-2, 2729-3, 2729-4, 2729-5, 2729-6, 2729-7, 2729-8, 2729-9, 2729-10, 2729-11, 3471-4, 3471-4a, 2113, 2133, 3438, And the following acts are repealed : An act entitled, " An act to supplement section 2729a of the Eevised Statutes, passed January 29, 1885," passed F*4>mary 4, 1902 (95 O. L. pp. 5-6). Code §231] . repeals. 525 An act entitled, " An act to supplement section 1692 of the Kevised Statutes of Ohio by adding thereto, subsection 41," passed February 20, 1902 (95 O. L. pp. 16-17). An act entitled, " An act to amend section 2267 of the Re- vised Statutes of Ohio," passed March 4, 1902 (95 O. L. pp. 35-36). An act entitled, " An act to amend section 2397 of the Re- vised Statutes of Ohio, and to supplement said section by adding thereto section 2379a/' passed March 25, 1902 (95 O. L. p. 67). An act entitled, " An act to authorize the council of any city of the fourth grade, second class, which at the last federal census had a population exceeding 16,000, to issue and sell bonds to enlarge and extend waterworks," passed March 26, 1902 (95 O. L. pp. 68-69). An act entitled, " An act to further supplement section 1692 of the Revised Statutes of Ohio," passed April 1, 1902 (95 O. L. p. 78). An act entitled, " An act to amend section 2440 of the Re- vised Statutes of Ohio," passed April 2, 1902 (95 O. L. pp. 83-84). An act entitled, " An act to amend section 2232 of the Re- vised Statutes of Ohio," passed April 14, 1902 (95 O. L. 131). An act entitled, "An act to supplement section 2476-27 of the Revised Statutes of Ohio," passed April 15, 1902 (95 O. L. pp. 143-144). An act entitled, " An act to amend section l707d-32 of the Revised Statutes of Ohio as amended March 11, 1898 (Vol. 93 O. L., page 44)" passed April 15, 1902 (95 O. L., p. 148). An act entitled, " An act to amend, supplement and repeal certain sections of subdivision 3, of chapter 5, division 5, title 12, of the Revised Statutes of Ohio," passed April 17, 1902 (95 O. L. pp. 203, 204, 205, 206). An act entitled; " An act to amend section 1708a of the Re- vised Statutes of Ohio," passed April 17, 1902 (95 O. 1. pp. 206-207). An act entitled, " An act to amend section 1 of an act en- titled, ' An act to provide for the construction of sewers in cities of the third grade of the second class, having a board of public affairs/ passed April 15, 1889 (O. L. Vol. 86, p. 360), as amended April 18, 1896 (O. L. Vol. 92, p. 197)," passed April 23, 1902 (95 O. L. p. 236). An act entitled, " An act to amend section 2406-95 of the Revised Statutes," passed April 23, 1902 (95 O. L. 239). An act entitled, " An act to supplement section 2709 of 526 the ohio municipal code. [Code §231 the Revised Statutes of Ohio, with sectional numbering 2709- 1," passed April 23, 1902 (95 O. L. pp. 242-243). An act entitled, " An act to amend section 1709a of the Revised Statutes of Ohio," passed April 23, 1902 (95 O. L. pp. 247-248). An act entitled, " An act to amend supplemental section 2823a of the Revised Statutes of Ohio as passed April 17, 1891 (88 O. L. 318), relating to the levy of taxes by county commissioners in counties containing cities of the first grade, second class, and providing that such commissioners shall ap- portion such levy to separate funds," passed April 23, 1902 (95 O. L. p. 255). An act entitled, " An act to supplement section 2701 of the Revised Statutes of Ohio," passed April 23, 1902 (95 O. L. p. 256). An act entitled, " An act to supplement section 2167-3 of the Revised Statutes of Ohio," passed April 23, 1902 (95 O. L. p. 259). An act entitled, " An act to supplement section 2505c of the Revised Statutes of Ohio," passed April 25, 1902 (95 O. L., p. 264). An act entitled, " An act to amend sections 2476-17 and 2476-18 of the Revised Statutes of Ohio," passed April 25, 1902 (95 O. L., pp. 265-266). An act entitled, " An act to further supplement sections 1545-89, to 1545-165 inclusive of the Revised Statutes of Ohio," passed April 25, 1902 (95 O. L., pp. 266-267-268- 269-270). An act entitled, " An act to authorize cities of the second class, fourth grade, to issue bonds for cemetery purposes," passed April 23, 1902 (95 O. L., 244). An act entitled, " An act to supplement section 1692 of the Revised Statutes of Ohio," passed April 25, 1902 (95 O. L., 274). An act entitled, " An act to provide for the merging, main- tenance and government of public libraries in cities of the second class, fourth grade," passed April 29, 1902 (95 O. L., pp. 317-318). An act entitled, " An act to supplement section 2667 of the Revised Statutes of Ohio," passed April 30, 1902 (95 O. L., p. 332). An act entitled, " An act to amend section 1545-276 of the Revised Statutes of Ohio," passed May 2, 1902 (95 O. L., pp. 339-340). Code §231] repeals. 527 An act entitled, " An act to amend section 2100a of the Kevised Statutes of Ohio/' passed May 2, 1902 (95 O. L., 349). An act entitled, " An act to amend section 1699-3 of the Revised Statutes of Ohio," passed May 2, 1902 (95 O. L., 356). An act entitled, "An act to amend section 1831 of the Re- vised Statutes of Ohio," passed May 2, 1902 (95 O. L., pp. 353-354). An act entitled, " An act to amend section 1895 of the Revised Statutes of Ohio," passed May 6, 1902 (95 O. L., p. 363). An act entitled, " An act to amend section (1545-282) (1) Sec. 15, relative to rate of taxation in certain cities," passed May 6, 1902 (95 O. L., pp. 367-368). An act entitled, " An act to supplement sections 1655 and 1708 of the Revised Statutes of Ohio," passed May 6, 1902 (95 O. L., pp. 380-381-382-383-384-385-386-387-388). An act entitled, " An act to supplement section 1569 of the Revised Statutes," passed May 7, 1902 (95 O. L., pp. 411- 412). An act entitled, " An act to further supplement section 2334 of the Revised Statutes of Ohio," passed May 7, 1902 (95 O. L., p. 416). An act entitled, " An act to authorize cities to issue bonds for park purposes," passed May 7, 1902 (95 O. L., 438). An act entitled, " An act to amend section 1655a of the Re- vised Statutes of Ohio," passed May 9, 1902 (95 O. L., pp. 457-458-459). An act entitled, " An act to further supplement section 1709 of the Revised Statutes of Ohio," passed Mav 9, 1902 (95 O. L., 447). An act entitled, " An act to supplement section 2408 of the Revised Statutes of Ohio with supplementary section 2408a," passed May 10, 1902 (95 O. L., pp. 485-486). An act entitled, " An act to amend section 2689a of the Re- vised Statutes of the state of Ohio," passed May 10, 1902 (95 O. L., pp. 508-509-510). An act entitled, " An act to amend section 1692f (2) of the Revised Statutes of Ohio," passed May 10, 1902 (95 O. L., pp. 526-527). An act entitled, " An act to amend section 1939 of the Revised Statutes of Ohio," passed Mav 10, 1902 (95 O. L., p. 532)/ An act entitled, " An act to amend section 1788 of the Re- 528 the ohio municipal code. [Code §231 vised Statutes of Ohio/' passed May 10, 1902 (95 O. L., p. 535). An act entitled, " An act to further supplement section 1692 of the Kevised Statutes of Ohio," passed May 10, 1902 (95 O. L., p. 561). An act entitled, " An act to amend section 2408 of the Re- vised Statutes as amended April 11, 1890 ( — Ohio L. 172)," passed May 12, 1902 (95 O. L., pp. 562-563)). An act entitled, " An act to amend section 2683 of the Re- vised Statutes of the state of Ohio, to authorize tax levies for special purposes," passed May 12, 1902 (95 O. L., 570). An act entitled, " An act to amend section 1545-276 of the Revised Statutes of Ohio as amended May 2, 1902," passed May 12, 1902 (95 O. L., pp. 589-590). An act entitled, " An act to amend section 1946 of the Re- vised Statutes of Ohio," passed May 12, 1902 (95 O. L. pp. 594, 595). An act entitled, " An act to further supplement section 2330 of the Revised Statutes of Ohio," passed May 12, 1902 (95 O. L. 604). An act entitled, " An act to further supplement section 1692 of the Revised Statutes of Ohio," passed May 12, 1902 (95 O. L. 561). An act entitled, " An act to further supplement section 2330 of the Revised Statutes of Ohio," passed May 12, 1902 (95 O. L. 604). An act entitled, " An act to provide for certain contracts in regard to bridges between cities of the second grade of the second class and street railroad purposes," passed April 25, 1902 (95 O. L., p. 806). An act entitled, " An act to provide for bridge bonds for cities of the second grade of the second class, passed March 12, 1902 (95 O. L., pages 696, 697 and 698). This act shall supersede all acts and parts of acts, not herein expressly repealed, which are inconsistent herewith. 2 (2) Repeals by implication. — General revision as a substitute Not favored. — Ludlow v. Johnston, repeals former statutes by implica- 3 O. 553; Dodge v. Gridley, 10 O. tion. Lorain Plank Rd. v. Cotton, 173; Raudebaugh v. Shelley, 6 O. S. 12 O. S. 263; Moore v. Vance, 307; Buckingham v. R. R. 10 O. S. 1 O. 1; Shelby Co. v. Frego, 26 O. S. 25 ; Gallup v. Lorain Co., 20 O. S. 488 ; State v. Craig, 22 C. C. 217. 324; State ex rel. v. Franklin Co., Later Contradictory Statute re- 20 O. S. 421 ; Ruffner v. Hamilton peals earlier by implication. Work Co., 1 Disney, 39. v. Massie, 6 O. 503; Pierce v. Bd. Code §231] REPEALS. 529 of Ed., 1 N. P. 286, 289; Met. Tr. Co. v. Ry. Co., 12 0. F. D. 584. Special act by general law not repealed by implication unless nec- essary to give meaning to later enactment. Fosdick v. Perrysburg, 14 O. S. 472; Shunk v. First Natl. Bank, 22 O. S. 508, 515; State v. Kelley, 25 O. S. 29, 33; State v. Newton, 26 O. S. 200; Commission- ers v. Bd. P. W. 39 O. S. 628; State ex rel. v. Davis, 23 O. S. 434; Knox Co. v. McComb, 19 O. S. 320; Ex parte Van Hagan, 25 O. S. 426; White v. State, 11 Dec. 794. General law by, special act re- pealed by implication where the two are irreconcilable. Pease v. Ryan, 7 C. C. 44; Wright v. Munger, 5 O. 441 ; Thomas v. Evans, 73 O. S. 140. See notes under § 212 of the Code, page 478. "Inconsistent herewith"— meaning of, see State ex rel. v. Craig, 22 C. C. 441. RELATED STATUTES i OFFICERS. 1. GENEKAL PKOVISIONS. Sec. 1R. S. [Oath includes affirmation.] The word oath in- cludes affirmation ; and, whenever an oath is required or autho- rized hy law, an affirmation, in lieu therof, may be taken by any person having conscientious scruples to taking an oath ; and an affirmation has the same force and effect as an oath. 1 [51 v. 57, § 596; (S. & C. 1130).] ( 1 ) Who may administer oaths. When oath binding. — See Brock —See Harmon v. Stockwell, 9 O. 93; v. Milligan, 10 0. 121. Warwick v. State, 25 O. S. 21. Sec. 2 U.S. [All officers must take an oath of office.] Each person chosen or appointed to an office under the constitution or laws of the state, and each deputy or clerk of such officer, shall, before entering upon the discharge of his duties, take an oath of office, 1 but the failure to take such oath does not affect his liability or the liability of his sureties. 2 (1) See § 1737 R. S., under § 224 (2) See § 1740 R. S. under § 224 of the Code, and notes, p. 502. of the Code, and notes, p. 507. Sec. 3R. S. [Oath of office of judges; oath of office of other officers.] The oath of office of each judge of a court of record shall be, to support the constitution of the United States and the constitution of this state, and to administer justice without respect to persons, and faithfully and impartially to discharge and perform all the duties incumbent on him as such judge, 531 632 THE OHIO MUNICIPAL CODE. according' to the best of his ability and understanding ; and the oath of office of every other officer, deputy, or clerk, shall be, to support the constitution of the United States and the constitu- tion of this state, and faithfully to discharge the duties of his office. 1 [50 v. 67, § 19; (S. & C. 381).] (1) Form of oath.— See notes to § 1737 R. S., re-enacted in § 224 of the Code, p. 502. Sec. 4R. S. [Seal; of what it may consist.] Wherever an of- cial or a corporate seal x is required to be affixed to any instru- ment of writing, an impression of such seal upon either wax, wafer or other adhesive substance, or upon the paper or ma- terial on which such instrument is written, shall be alike valid and sufficient; private seals are abolished, and the affixing of what has been known as a private seal to any instrument whatsoever, shall not give such instrument any additional force or effect, or in any wav change the construction thereof. [1884, April 14 : 81 v. 198 ; 80 v. 79 ; Rev. Stat. 1880 ; 29 v. 349, § 1 ; (S. & C. 1385).] ( 1 ) Corporate seal of municipal- ity. See note (3) to § 7 of the Code, page 43. Sec. 5 R. S. [Depositaries of official bonds must record them ; a certified copy of the record made evidence.] Every officer, 1 on re- ceiving an official bond which by law is required to be filed or deposited with him, shall immediately, on receiving such bond, record the same in a book to be kept by him for that purpose ; and a certified transcript of the record of any such bond shall be taken and held, in all courts and places, as conclusive evi- dence of such record, and prima facie evidence of the execution and existence of such bond. [41 v. 13, § 1 ; (S. & C. 192).] (1) Bonds of municipal offi= Filing bonds of municipal offi- cers. — See § 1738 R. S. (re-enacted cers. — See § 1738 R. S. (re-enacted in § 224 of the Code) and notes in § 224 of the Code) and notes thereunder, p. 504. thereunder, p. 504. Sec. 6 R. S. [What bonds good when signed in blank.] All official bonds, and all bonds of executors, administrators, guard- ians and trustees, and all bonds required or authorized to be taken by or before any court, judge, public board or officer, judicial or ministerial, and all bonds of indemnity, and all other bonds conditioned to become void upon the performance OFFICERS. 533 by the parties thereto, or any of them, of the stipulations therein contained, shall bind and render liable thereon all the obligors therein, both principals and sureties, whether at the time of the signing of the same by such obligors, or any of them, the amounts of such bonds to be filled in or left in blank, if such amounts be filled in before, or at the time of the approval or acceptance of such bond ; and such filling in may be done in the absence of any or all of the obligors, and without any express authority for that purpose from them or any of them. 1 [1883, March 29 : 80 v. 79 ; Eev. Stat. 1880 ; 66 v. 15 ; §§ 1, 2.] (1) Effect of blanks.— See § McLain v. Simington, 37 O. S. 484; 1738 K. S. (re-enacted in § 224 of Partridge v. Jones, 38 O. S. 375. Code) and notes thereunder, p. 504. See also early cases of State v. Bor- What blanks may be filled. — ing, 15 O. 507; Famulener v. An- Stevens v. Allmen, 19 O. S. 485; derson, 15 O. S. 473. Sec. 7 R. S. [What is sufficient as the condition of an official or public bond.] A bond payable to the state of Ohio, or other payee as may be directed by law, reciting the election or ap- pointment of a person to an office or public trust under or in pursuance of the constitution or laws, and conditioned for the faithful performance, by such person, of the duties of the office or trust, shall be sufficient, notwithstanding any special pro- vision made by law for the condition of such bond. 1 (1) Condition in municipal (re-enacted in § 224 of the Code) officer's bond. — See § 1738 R. S. and notes thereunder, p. 504. Sec. 8 R. S. [Officers to hold till their successors are qualified, unless otherwise provided.] Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws. 1 (1) Holding until successor ?& rel. v. Kearns, 47 O. S. 566, 568. qualifies. — See § 116 of the Code See further as to what is an office, (relating to term of members of State v. Kennon, 7 O. S. 546; State council) and note 3 thereunder, p. v. Taylor, 12 O. S. 130; Walker v. 304. Cincinnati, 21 O. S. 14; Warwick v. Compare also Code §§ 129, 132, State, 25 O. S. 21; State v. Wilson, 133 and others, relating to terms of 29 O. S. 347. other municipal officers. An officer whose term is fixed and What officers. — Membership in limited by the constitution holds council was held to be an office with- only until the end of such term and in the meaning of § 8 R. S., State cannot hold over until his successor 534 THE OHIO MUNICIPAL CODE. qualifies, as provided in § 8 R. S., State ex rel. v. Brewster, 44 O. S. 589. An officer appointed to fill an un- expired term, holds until his suc- cessor is chosen and qualifies. State v. McGregor, 44 O. S. 628; State ex rel. v. Darby, 12 C. C. 235, 239 (aff'd 52 0. S, 611). See also State ex rel. v. Thrall, 59 0. S. 368. Meaning of successor. — Suc- cessor as used in § 8 was held to mean a regular successor and not a mere temporary appointee. State v. Wright, 56 0. S. 540, 554. The holding over continues where the time of qualifying and taking office by the successor has been ex- tended by statute. State ex rel. v. Killits, 8 C. C. 30. Character of holding over.— The holding over is a continuance of the original term of office. State v. Howe, 25 O. S. 588. Sec. 9R. S. [Deputies and clerks; their terms, etc.] A dep- uty or clerk, appointed in pursuance of law, shall hold the ap- pointment only during the pleasure of the officer appointing him ; x and the principal may take from his deputy or clerk a bond, with sureties, conditioned for the faithful performance of the duties of the appointment ; but, in all cases the principal is answerable for the neglect or misconduct in office of his deputy or clerk. (1) No holding over.— A depu- ty, since he must hold during the pleasure of the officer appointing him, cannot claim the office under a successor to the principal, though the deputy was appointed for a defi- nite term which had not expired. Brady v. French, 6 N. P. 122. Whether a deputy clerk legally appointed during first term and holding over during second term, without reappointment, is a de facto officer, quere. State v. Townley, 67 O. S. 21. 27. Sec. 10 R. S. [Power of deputy.] A deputy, when duly qual- ified, shall have power to perform all and singular the duties of his principal. 1 (1) Character of deputy. — Compare § 4949 R. S. Deputy is not a public officer with- in penal laws. State v. Meyers, 56 O. S. 340, 349. See further note (2) to § 1737 R. S., re-enacted in § 224 of the •Code, p. 502. Duties. — As to duties that may be performed by various deputies, such as deputy clerks of court, sher- iffs, etc., see Chapin v. Allison, 15 O. 566; Walke v. Bank, 15 O. 288; Haines v. Lindsey, 4 O. 88; Ander- son v. Brown, 9 O. 151; Hulse v. State, 35 O. S. 421; Warwick v. State, 25 O. S. 21. Sec. 11 R. S. [Term of appointee to elective office.] When an elective office becomes vacant, and is filled by appointment, such appointee shall hold the office till his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the OFFICERS. 535 occurrence of the vacancy ; 1 but this section shall not be con- strued to postpone the time for such election beyond that at which it would have been held had no such vacancy occurred, nor to affect the official term, or the time for the commencement of the same, of any one elected to such office before the occur- rence of such vacancy. (1) Municipal offices. — As to manner of filling vacancies and terms of appointees, in municipal offices, see § 228 of the Code. Effect of special provisions. — When there is a special statute pro- viding for the manner of appoint- ment to fill vacancies in particular offices and the terms of such appoint- ees, such special statute must be re- garded as an exception to the gen- eral provisions of § 11 It. S. State ex rel. v. McGregor, 44 O. S. 628; see also Cincinnati v. Holmes, 56 O. S. 104, 114. Vacancy. — As to when a vacancy occurs see note (2) to § 228 of the Code. First proper election. — The words " first proper election " were held to mean the first recurrence of the regular election for that par- ticular office, under the law regu- lating elections to that office. State v. Barbee, 45 O. S. 347 ; State ex rel. v Hadley, 59 O. S. 167, 169; State v. Slough, 12 C. C. 105; Harte v. Bode, 4 N. P. 421; State ex rel. v. Nash, 66 0. S. 612, 620. Appointment to fill vacancy. — Officer cannot generally make ap- pointment to begin after expiration of term of officer appointing; but where statute requires appointment at a particular time, it may be made at that time without regard to the time when service begins. State ex rel. v. Ermston, 14 C. C. 614. Appointment for less or more than the legal time will not abridge or extend the term of the appointee as fixed by the statute. State ex rel. v. Darby, 12 C. C. 235 (aff'd 52 O. S. 611) ; State ex rel. v. Slough, 12 C. C. 105. Sec. 16 R. S. [Official seals.] * * * The seals of all oth- er state, county, and municipal officers 1 shall be one inch and three-fourths in diameter, and shall be surrounded by the proper name of the office. * * * [1886, April 1 : 83 v. 60.] (1) Corporate seal of munici- pality. See note (3) to § 7 of the Code, page 43. Seal of city auditor.— See § 134 of the Code. Seal of village clerk.— See § 201 of the Code. Sec. 17 R. S. [Debts not to be contracted by public officers without authority.] An officer or agent of the state or of any county, township, or municipal corporation, 1 who is charged or intrusted with the construction, improvement, or keeping in repair of any building or work of any kind, or with the manage- ment or providing for any public institution, shall not make any contract binding or .purporting to bind the state, or such 536 THE OHIO MUNICIPAL CODE. county, township, or municipal corporation, to pay any sum of money not previously appropriated for the purpose for which such contract is made, and remaining unexpended and applic- able to such purpose, unless such officer or agent has been au- thorized to make such contract ; and if any such officer or agent make or participate in making a contract without such appro- priation or authority, he shall be personally liable thereon, and the state, county, township, or municipal corporation in whose name or behalf the same was made, shall not be liable thereon. [54 v. 77, §§ 1, 2; (S. & C. 889).] (1) Restrictions as to munici- Code and notes thereunder, pp. 172 pal contracts. — See § 45 of the to 177 inclusive. Sec. 19 R. S. [An office is vacant if the person elected or ap- pointed thereto does not qualify.] Any person elected or ap- pointed to an office of whom bond or security is by law required previous to the performance of the duties imposed on him by his office, who refuses or neglects to give such bond or find such security, agreeably to, and within the time for that purpose prescribed by law, and in all respects to qualify himself for the performance of such duties, shall be deemed to have refused to accept the office to which he was elected or appointed, and the same shall be considered vacant, and be filled as provided by law. 1 [29 v. 407, § 4; (S. & C. 888).] (1) Failure to qualify. — Com- — Under § 19 R. S. and a section pare § 1740 R. S. (re-enacted in § requiring proper authorities to " de- 224 of the Code) and see notes there- clare office vacant" on failure to under, p. 507. give bond, if one elected to office Acceptance delayed. — Where fails, without justification, to give bond is given within time required bond, a vacancy is created beginning by law but is not accepted till after on the day the bond should have the term begins, the acceptance will been given. State ex rel. v. Commis- relate back and the bond will be sioners, 61 0. S. 506. sufficient. State v. Tool, 4 O. S. § 19 cited, Reiter v. State, 51 O. 553. S. 74. Effect of failure to give bond. Sec. 20 R. S. [Gifts, devises, and bequests may be made to pub- lic authorities.] The state, county commissioners, township trustees, cemetery trustees, the councils, boards or officers of mu- nicipal corporations, and the boards of directors, trustees or oth- er officers of any of the benevolent, educational, penal or reform- atory institutions, wholly or in part under the control of the state, or any of said municipalities or institutions shall be OFFICERS. 537 capable of receiving by gift, devise or bequest, moneys, lands or other properties, for their benefit or the benefit of any of those under their charge, and to hold and apply the same according to the terms and conditions of the gift, devise or bequest; 1 but this section shall not be held to affect or change the statutory provisions as to devises or bequests for such purposes. [1881, April 8 : 78 v. 109 ; Kev. Stat 1880 ; 66 v. 8, § 1 ; 74 v. 38, § 20; 75 v. 42, § 1.] (1) Power to receive. — See § 7 of the Code, page 43; and para- graph 26 of §7, page 61. Character of devises. — For cases sustaining devises to public authorities, see Scott v. Trustees, 39 O. S. 153; Christy v. Commission- ers, 41 O. S. 711; Chapin v. School District. 3Dec. (Re) 321. Seefurther Urmey v. Wooden, 1 O. S. 160. Investment of funds received, see Scott v. Trustees, supra. Void devises.— § 20 R. S. must be construed in connection with § 5915 R. S., (making bequests for charitable purposes void, if made within one year of death, etc. ) , and bequests in violation of § 5915 will be absolutely void, and the public authorities will not have power to receive the same. Folsom v. Haas, 9 C. C. 473. Sec. 21 R. S. [Concerning illegal loans or deposits by public officers.] The state, any county, township, municipal corpora- tion, or school board, shall not be precluded by the illegal loan or deposit by any officer or agent of public money, funds, prop- erty, bonds, securities, or assets, belonging to it, from suing for and recovering the same; 1 and such suit shall not be held to be an adoption or satisfaction of such illegal transaction. 2 [60 v. 64, § 1 (S. & S. 920).] (1) Application of section. — Where a municipality has purchased property for the purpose of donat- ing the same to a manufacturing corporation, which purpose is with- out authority of law, and has con- veyed the same, it cannot claim to recover back the property and hold it under the provisions of § 21 R. S. for the original purchase was in- valid. Markley v. Village of Min- eral City, 58 O. S. 430. Former rule. — In State v. But ties, 3 O. S. 309, it was held the state could not sue to recover an unauthorized loan without ratifying the loan. Sec. 1049 R. S. [Duty of public officers with respect to county auditor's report as to number of horses, cattle, etc., and local indebtedness.] The auditor shall, on or before the first day of July, annually, make out and transmit to the auditor of state, an abstract of the number of horses, neat cattle, she^n, hogs, mules, and asses in his county, as the same are returned 538 THE OHIO MUNICIPAL CODE. to his office by the assessors; and he shall also, on or before the first day of October, annually, transmit to the state audi- tor, a complete abstract of the funded and unfunded indebted- ness of his county, and of each township, city, village, hamlet, and of every school district therein, as the same may be on the first day of September preceding, with the rate of interest pay- able thereon, the date of maturity, and the purpose for which the same has been created ; and, also, what provision of money has been made for the payment of any such indebtedness, what amount has been collected, and whether remaining in the coun- ty, township, city, village, hamlet, or school district treasury; and to enable the county auditor to make this statement, the various officers of all townships, cities, villages, hamlets, and school districts are required to furnish him with information in that behalf, at such time and in such manner as he requires ; and he shall furnish them blanks for that purpose* [66 v. 26, §2; 70 v. 251, §§1,2, 3.] Sec. 6969 R. S. [Officer or agent of state who is interested in contracts for use of state.] It shall be unlawful for any person holding any office of trust or profit in this state, either by elec- tion or appointment, or any agent, servant or employe of such officer, or of a board of such officers to become directly or indi- rectly interested in any contract for the purchase of any prop- erty, supplies or fire insurance for the use of the county, township, city, village, hamlet, board of education or public in- stitution with which he is connected. And it shall be unlaw- ful for any such person, agent, clerk, servant or employe to become interested in any contract for the purchase of property, supplies or fire insurance for the use of any county, township, city, village, hamlet, board of education or public institution with which he is [not] connected when the amount of such contract exceeds the sum of fifty dollars, unless the contract is let on competitive bids, duly advertised as provided by law. Any person violating the provisions of this act shall be im- prisoned in the penitentiary not more than ten years nor less than one year. 1 [94 v. 391 ; K. S. of 1880 ; 73 v. 86, § 21 ; 73 v. 31, § 22 ; 73 v. 43, § 34.] (1) Officer interested in con= tract. — See § 45 and see note (3) thereunder, p. 176. Sec. 6976 R. S. [Municipal officer or township trustee finan- cially interested in public work.] An officer or- member of the council of any municipal corporation or the trustee of any town- OFFICERS. 539 ship who is interested directly or indirectly in the profits of any contract, job, work or services for the corporation or town- ship, or acts as commissioner, architect, superintendent or en- gineer in any work undertaken or prosecuted by the corporation or township during the term for which he was elected or ap- pointed, or for one year thereafter, shall be fined not more than one thousand dollars nor less than fifty dollars, or imprisoned not more than six months nor less than thirty days, or both, and shall forfeit his office. 1 [94 v. 406; 90 v. 29; 66 v. 164, § 92.] (1) See note under § 6969 R. S. page 538. Sec. 3641c. [Sufficiency of bonds, etc., executed or guaranteed by companies.] In all cases in which any bond, recognizance or undertaking is now or hereafter may be required or permitted by law, or ordinance, or the head of any department of this state, or any division of government of [or] municipality thereof, with one or more sureties, the execution of the same or the guaranteeing thereof, as the case may be, as surety, shall be sufficient by a company or companies authorized by the laws of this state to guarantee the fidelity of persons holding places of public or private trust, to guarantee the performance of contracts other than insurance policies, and to execute and guarantee bonds and Undertakings in actions or proceedings or by law allowed ; [All official or fiduciaries' bonds must be guaranteed by surety company; exception,] and the execution or guaranteeing, as surety, of all bonds and undertakings for the faithful perform- ance of official or fiduciary duties, or the faithful keeping, applying or accounting for funds or property, or for one or more of such purposes, excepting bonds of the superintendent of insurance and of notaries public, or of executors, adminis- trators, guardians, trustees or other fiduciaries, whose bonds are fixed by the court at an amount not in excess of two thou- sand dollars is hereby required to be by such company or com- panies. But no such company shall qualify as surety upon any one bond or undertaking, herein required to be a corporate surety bond or undertaking, for more than twenty per cent, of its paid up capital. And any such bond, recognizance or undertaking when so executed and guaranteed, shall be in all respects, a full and complete compliance with every requirement of law, ordinance, rule or regulation that such bond, under- takfog *r recognizance shall be executed and guaranteed by one 539a THE OHIO MUNICIPAL CODE. surety or two or more sureties, or that such sureties shall be residents or householders or freeholders ; [Allowance for premium paid company.] and any judge, court or officer, whose duty it is to pass upon the account of any assignee, trustee, receiver, guardian, executor, administrator or other fiduciary, required by law to give bond or undertaking as such, and whenever any such assignee, receiver, trustee, guardian, executor, administrator or other fiduciary, has given bond or undertaking with a surety company or companies as surety or sureties thereon, as herein provided, shall allow, in the settlement of the account of such assignee, receiver, trustee, guardian, executor, administrator or other fiduciary a reason- able premium, subject to the limitations hereinafter provided, paid to any such company or companies for becoming his surety on such bond or undertaking; [How premium paid. Amount of premium.] in all other cases, where by the foregoing provisions of this act a corporate surety or guarantor is required, the premium to be paid to any such company or companies for becoming such surety or guarantor shall be paid out of the general funds of the divisions of gov- ernment by or for which the person giving such bond or under- taking was appointed or elected; provided, however, that the premium shall in no case exceed in the aggregate one-half of one per cent, per annum on the amount of such bond or under- taking, unless such bond or undertaking shall be in double the amount of the liability of the party principal therein, when such premium shall not exceed in the aggregate one-fourth of one per cent, per annum on the amount of such bond or under- taking, provided, also that such company or companies have complied and continue to comply with the laws of this state relative to such companies, and with such requirements as to justification, as may be prescribed by the head of the depart' ment, court, judge, or officer required to approve or accept thf same. [When personal security bond may be given.] Provided, fur- ther, that if any person required to give any such bond or under- taking shall make affidavit that he has applied to any such company or companies, as the case may be, for such bond or undertaking, and that the same has been refused by such com- pany or companies, or rejected, in accordance with the pro- visions hereof by the head of the department, court, judge, of officer required to approve or accept the same ; upon filing such affidavit with such head of department, court, judge, or officer, OFFICERS. 539& such person may give such bond or undertaking with such personal surety or sureties and such justification of sureties as would be required by law except for the passage of this act ; [Surety company shall not require or receive collateral security.] provided, further, that no surety company or companies execut- ing bonds for public officials shall require or receive collateral or other security from the public officials for whom such bond or bonds are executed. [97 v. 182; 92 v. 320; 90 v. 157; 88 v. 14.] Validity. — The above section, as quires surety companies as sureties amended in 1904, and known as on certain bonds. State ex rel. v. the Crafts Bond law, was held un- Robins, 71 O. S. 273; Haunts v. Lan- constitutional, in so far as it re- man Co., 15 Dec. 64. 2. PROVISIONS AS TO CERTAIN OFFICERS. Council. 1 Sec. 1689 R. S. [Voting precincts.] Whenever the electors in any ward of any city exceed seven hundred and fifty, the council shall divide the ward into as many voting precincts as it may deem proper, and the combined vote of such precincts shall be returned as the vote of the ward, and whenever the electors in any village exceed seven hundred and fifty, the council may divide the village into as many voting precincts as it may deem proper, and the combined vote of such precincts shall be re- turned as the vote of the village ; but this section shall not apply when provision is otherwise made by law. [1889, April 2 : 86 v. 176, 1Y7 ; 82 v. 15 ; Rev. Stat. 1880 ; 71 v. 135, § 10.] ( 1 ) Title, division and chapter. § 1678 R. S., the only other sec- — §§ 1689 and 1691 R. S. given tion not repealed in that chapter, here formed 'part of Chap. 2, Div. is re-enacted in § 197 of the Code. 3, Title XII R. S., relating to coun- cil and board of aldermen. Sec. 1691 R. S. [Council restricted as to contracts.] The coun- cil shall not enter into any contract which is not to go into full operation during the term for which all the members of such council are elected. 1 [66 v. 261, § 660.] ( 1 ) Scope of restriction. — See tion." Logan Nat. Gas Co. v. Chilli- Kerlin Bros. v. Toledo, 20 C. C. 603, cothe, 65 O. S. 186, 207. 621. The restriction does not apply to It was held that the contracts re- contracts with gas companies for ferred to in § 1691 R. S. are con- furnishing , gas, that is, ordinances tracts "for services performed, and regulating the price of gas. lb. supplies furnished for the corpora- See further, on scope of restric- tion, Jonas v. City, 18 O. 318. 540 the ohio municipal code. Assessors. 1 Sec. 1718 R. S. [Election of asessors.] In municipal corpo- rations divided into wards, an assessor shall be elected in each ward at every annual election. He shall take the same oath, give the same bond and perform the same duties as are provided with respect to township assessors. Provided, that in any township, composed in part of a municipal corporation or muni- cipal corporations, the county commissioners may, by order entered on their journal, constitute the territory outside such municipal corporation or corporations one or more assessor districts, in each of which an assessor shall be elected, annually, in accordance with law. Provided, also, that nothing herein shall interfere with the duties now devolving upon deputy state supervisors of elections. [91 v. 76; 56 v. 156, § 1; 76 v. 55; (S. & S. 85).] (1) Title, division and chapter. ter are repealed by the Code, except — Sections under this heading were those given here, and §1721 R. S. contained in Chap. 2, Div. 4, Title given infra. XII R. S. All sections of this chap- Sec. 1718a R. S. [Assessors in certain cities shall appoint as- sistants; bond and oath.] In cities of the third grade of the first class each ward assessor shall, with the approval of the auditor of the county in which said city is situated, appoint some well-qualified citizen of such city to act as assistant who shall serve at a compensation of two dollars per day for each day or part of a day actually employed, and ea«h assistant so appointed shall within the ward assigned, [whom] under the direction of the assessor appointing him, after giving a bond in the sum of two hundred dollars and taking an oath as pre- scribed by law, performing [perform] all the duties enjoined upon, vested in or required of assessors, and shall be subject to all provisions of law relating to assessors. [1883, April 18 : 80 v. 182.] Sec. 1718b (1) It. S. [Assessors and assistants in Cleveland.] In every city of the second grade of the first class, not exceeding forty-two assessors, and such number of assistants as the auditor shall deem necessary, shall be appointed by the county auditor, not more than one-half of whom shall be from the same political party, and such appointments shall be subject to confirmation by the tax commission, and each assessor, and assistant, shall receive for services a compensation of four dollars per day for each day actually employed in the performance of his duties, to be paid out of the county treasury. Every assessor so ap- OFFICERS. 541 pointed shall, in addition to the general duties hereinafter pre- scribed, perform the same duties as are provided with respect to township assessors, and before entering upon his office shall take an oath and give bond in the sum of one thousand dollars, pay- able to the state, with two or more freehold sureties, approved by said tax commission, conditioned for the faithful and im- partial performance of all his duties so prescribed, which bond, with his oath of office indorsed thereon, shall be filed and pre- served by the county auditor in his office. 'No person shall be appointed or shall hold the office of assessor under the provisions of this section, who holds or is elected to any national, state, county, municipal or township office, or who is an employee of any national, state, county, municipal or township officer. [87 v. 138 ; 88 v. 341 ; repealed 89 v. 286 ; re-enacted 94 v. 378.] Sec. 1718b (2) R. S. [Assessors in Cincinnati.] In cities of the first grade of the first class assessors shall not be elected, but the board of review shall, on the first Monday of April in each year, or as soon thereafter as said board of review shall be appointed and qualified, appoint an assessor for each ward, who shall be a resident elector therein, and who shall take the same oath, give the same bond and perform the same duties as are provided with respect to township assessors, and in all cases where an assistant to such assessor shall be necessary, said board of review shall also appoint such assistant, who shall have the same qualifications as such assessor. In making all appointments of assessors said board shall be governed solely by considerations of fitness for the duties of the office, and shall entirely disregard political opinions and party affiliations. [88 v. 225.] Sec. 1718c R. S. [Assessors in Springfield and Ports- mouth..] In cities of the second class, third grade a, and third grade c, there shall be appointed by the board of tax commissioners, in April of each year, an assessor for each ward, who shall be an elector thereof, and shall take the same oath, and give the same bond, receive the same compensation, and perform the same duties as are provided in respect to town- ship assessors. [93 v. 614; 89 v. 18; 88 v. 160.] County Treasurer having charge of City and School Funds. Sec. 1721 R. S. [Oath, bond, etc., of county treasurer; exami- nation of funds.] In all cases where the treasurer of a county becomes treasurer of the city and school funds by virtue of other provisions of this title, 1 he shall qualify in every respect as if he were elected to the office, by taking the official oath 542 THE OHIO MUNICIPAL CODE. and giving separate bonds acceptable severally to the city coun- cil and school board of such city; said bond as city treasurer shall be made a part of the record of the proceedings of the city council when accepted and approved, and shall be care- fully preserved by the city clerk, and the bond as treasurer of school funds shall be made a part of the record of the pro- ceedings of the board of education, when accepted and ap- proved, and shall be carefully preserved by the clerk of said board; and in all examinations of the county funds by the auditor and county commissioners, as provided by law, there shall, at the same time and in the same manner, be an examin- ation of the city and school funds by at least one person for each fund, who shall be appointed by the county commissioners ; and in examinations of the county treasury, by order of the probate judge, the accountants appointed by the judge shall count, examine and certify as to the condition of the city and school funds at the same time, and in the same manners as required by law in regard to the county funds, [88 v. 85; 70 v. 66, § 1.] (1) This refers to Title XII. R. S. Mayor. 1 Sec. 1744 R. S. [Jurisdiction, powers, etc., of mayor.] The mayor shall be a conservator of the peace throughout the cor- poration, and within the limits of the same shall have all the jurisdiction and powers of a justice of the peace in all civil cases, and his proceedings therein may be reviewed in the same manner, and he shall have jurisdiction in criminal cases as hereinafter provided. 2 [66 v. 169, § 114; (S. & C. 1510, 1511).] ( 1 ) Title, division and chapter. Other sections in Chap. 5, relating — The sections included under this to these offices, and not repealed, are heading and under the headings re-enacted in the Code. " Clerk " and " Street Commis- For re-enacted sections relating to sioner," form part of Chap. 5, Div. the mayor, see §§ 129 and 200 of 4, Title XII. R. S. Under the head- the Code. ings "Solicitor," "Treasurer," (2) Concurrent jurisdiction. — "Auditor" and "Sealer of Weights Under § 1744 R. S. the jurisdiction and Measures " are included, be- of the mayor in bastardy cases is sides the unrepealed sections of concurrent with that of a justice of Chap. 5, not re-enacted, (except sec. the peace. Miller v. Oehler, 36 0. S. 1122a, repealed in 1904), some sec- 624. tions relating to those offices, found § 1831 R. S. confers on police jus- in other parts of the Revised tices the same power to hear and de- Statutes. OFFICERS. 543 termine eases that the mayor has. Morgan v. Tighe, 12 C. C. 719. Jurisdiction in damage cases. — Mayor has jurisdiction in a suit for damages against a railroad com- pany. R. R. Co. v. Scahill, 33 B. 250. Validity. — Act conferring juris- diction and powers of a justice of the peace, on mayors, is constitu- tional. Steamboat Indiana v. Mill:- ken, 7 O. S. 383. Powers. — Mayor is not author- ized to accept money in lieu of bail. Columbus v. Dunnick, 41 O. S. 602. In prosecutions for violation of or- dinances, it is not error to refuse a change of venue. Volk v. Wester- ville, 3 N. P. (N. S.) 241. Sec. 1745 R. S. [Duties, fees, office, etc.] He shall keep a docket, and shall be entitled to receive the same fees that are or may be allowed justices of the peace for similar services, 1 and he shall keep an office at some convenient place in the cor- poration, to be provided by the council, and shall be furnished by the council with the corporate seal of the corporation, 2 in the center of which shall be the words, "Mayor of the city of ," or, "Mayor of the village of ," as the case may be. 3 [66 v. 169, § 115.] (1) When fees not allowed. — Where salary of mayor is fixed and it is further provided that he shall not be allowed fees for any services performed, except those provided by law, the fees received are for the benefit of the municipality. Hatch v. Cincinnati, 17 O. S. 48. An officer whose fees are regulated by statute can charge fees for those services only to which compensation is by law fixed. Debolt v. Trustees, 7 O. S. 237. Fees in state cases need not be turned into city treasury, notwith- standing § 126 of the Code. See § 126 and note 4 thereunder, p. 32G. (2) Execution of corporation deed. — To £he mayor is confided the corporate seal and he is the chief administrative and executive officer and it would seem is the proper per- son to sign deed by corporation. Tiffin v. Shawhan, 43 O. S. 178, 186. Whether council can authorize clerk to execute a deed for city is a question. lb. (3) See § 7 of the Code, p. 43 and note (3) thereunder. Sec. 1752 R. S. [Appeal and error.] Appeals may be taken from the decision of the mayor in civil cases, in the same man- ner as from justices of the peace: provided, that when a city or village extends into two or more counties, the appeal shall be taken to the court of common pleas of the county in which one or more of the defendants reside: a' conviction under an ordinance of any municipal corporation may be reviewed by pe- tition in error, in the same manner and to the same extent as was heretofore permitted on writs of error and certiorari, and the judgment of affirmance or reversal may be reviewed in the same manner ; and for this purpose a bill of exceptions may be taken, 1 or a statement of facts embodied in the record on the application of any party ; but no such petition shall be filed ex- cept on leave of the court or a judge thereof, 2 and such court or 544 THE OHIO MUNICIPAL CODE. judge has power to suspend the sentence, as in criminal cases. 3 [66 v. 170, § 125 ; 72 v. 42, § 1.] (1) Allowing bill of excep- tions. — Mayor has no authority to extend the time for preparing a bill of exceptions in the prosecution for a violation of an ordinance. Nor is there any statute making the pro- visions of the civil practice before a justice of the peace applicable to criminal prosecutions before the mayor. Village of Bradner v. Grun- detisch, 15 C. C. 32. But see Ger- mantown v. Basore, 22 C. C. 417, 421. Review on weight of evidence. — Former statutes provided that conviction in police court might be examined into by upper court on writ of error and reviewed on weight of evidence. The present sec- tion merely changes the remedy and allows a bill of exceptions, but does not interfere with review on weight of evidence. Slaughter v. Columbus, 61 O. S. 53 ; Germantown v. Basore, 22 C. C. 417. For holding under former law, see Van Buskirk v. New- ark, 26 O. S. 37. This section only applies where judgment is for violation of a mu- nicipal ordinance. Fike v. State, 4 C. C. (N. S.) 81, 25 C. C. 554. (2) Leave to file petition in error. — Conviction in mayor's court for breach of ordinance may be re- viewed by Court of Common Pleas, but leave to file a petition in error is a condition precedent. Miller v. Bellefontaine, 2 C. C. 139. And refusal of Common Pleas Court to allow a petition in error to be filed is not reviewable in the Cir- cuit Court. Canfield v. Brobst, 71 O. S. 42. (3) Power to suspend sen- tence. — A mayor cannot suspend sentence and take bond unless an or- der to do so is made by Court of Common Pleas. Scio v. Hollis, 7 N. P. 281, 282. Clerk. 1 Sec. 1760 U.S. [Clerk of court shall record, etc.] The clerk of the court of common pleas shall record the certificates men- tioned in the last section, 2 in the book in which the record of the election and qualification of justices of the peace are kept ; and the same fees shall be allowed to the officers certify- ing and recording the same as are allowed for certifying and recording the election and qualification of justices of the peace. [66 v. 171, § 133; (S. & C 1536).] (1) Title, division and chapter. See note (1) under § 1744 lv. S. supra. For re-enacted sections re- lating to the clerk, see §§ 134 and 201 of the Code. (2) The section referred to it 1759 R. S.), is re-enacted in §§ 134 and 201 of the Code. It relates to the duty of the clerk to certify to the court the election of certain of- ficers. Treasurer. 1 Sec. 1771 R. S. [Duty of county treasurer.] The county treas- urer shall, on the first Monday of February and August in each year, pay over to the treasurer of the corporation all moneys OFFICERS. 545 received by him up to that date arising from taxes levied and assessments made belonging to the corporation. 2 [66 v. 175, § 155.] ( 1 ) Title, division and chapter. — County treasurer must pay over — See note (1) under § 1744 R. S., to treasurer of municipality all p. 542. For re-enacted sections re- moneys arising from taxes and as- lating to municipal treasurer, see § sessments belonging to the corpora- 135 of the Code. tion, although paid under protest. (2) Money paid under protest. Ratterman v. State, 44 O. S. 641. Sec. 1773 R. S. [Duty of outgoing treasurer as to delivering money, etc., to successor.] The corporation treasurer, and the county treasurer, when acting as such, shall each, at the ex- piration of his term of office, or on his resignation or re- moval, deliver to his successor, all moneys, books, papers and other property in his possession as treasurer; and in the case of the death or incapacity of such treasurer, his legal repre- sentatives shall, in like manner, pay over and deliver the money and property which was so in the treasurer's hands, to the person entitled thereto. [55 v. 92, § 22 ; S. & C. 1602.] Sec. 1047 R. S. [How the county auditor shall keep acounts with townships, cities, villages, hamlets, .and special school dis- tricts.] The auditor shall open an account with each township, city, village, hamlet, and special school district in his county, in which, immediately after his semi-annual settlement with the treasurer, in February and August of each year, he shall credit each with the net amount so collected for its use; and on application of any township, city, village, hamlet, or school treasurer, the auditor shall give him a warrant on the county treasurer, for the amount then due to such treasurer, and shall charge him with the amount of such warrant ; but the person so applying for such warrant, shall deposit with the auditor a cer- tificate from the clerk of the township, city, village, hamlet, or district, stating that such person is treasurer thereof, was duly elected or appointed, and that he has given bond according to law. 1 [56 v. 128, § 22; S. & C. 100.] (1) Mandamus to compel er orders. Cass Tp. v. Dillon, 16 treasurer to pay over money, 0. S. 38. may be allowed, where treasurer re- Section cited, Brown v. Van Wert, fuses, upon presentation of the prop- 4 C. C. 407, 422. Sec. 1122 R. S. [County treasurer's payments to local treasur- ers.] The county treasurer shall, immediately after each semi- 546 THE OHIO MUNICIPAL CODE. annual settlement with the auditor of his county, on demand, and presentation of the warrant of the county auditor therefor, pay over to the township treasurer, city treasurer, or other prop- er officer, all moneys in the county treasury belonging to any township, city, village, hamlet, or school district; but if any township treasurer or other proper officer aforesaid, requires, or the trustees of any township, the council of any city, village, hamlet, or the board of education of any school district, respec- tively, so direct, the moneys mentioned in this section shall remain in the county treasury, to be thence drawn by the proper local treasurer on the warrant of the county auditor, in sums of not less than one hundred dollars. And if any county treas- urer shall retain, or if any township treasurer, or other local treasurer shall permit to remain in the county treasury, the moneys mentioned in this section, in any other manner than herein provided, the party so offending shall forfeit and pay for every such offense a sum not exceeding one thousand dol- lars, nor less than one hundred dollars, to be recovered in an action at the suit of the state, for the use of the county. 1 [1889, March 28 : 86 v. 168 ; Rev. Stat. 1880 ; 56 v. 101, § 12 ; (S. & C. 1478).] (1) See § 1771 R. S., p. 544. Sec. 1123 R. S. [Advance payments may be made to local authorities.] Whenever the local authorities so request, the county auditor may draw, and the county treasurer shall pay on such draft to township, city and village treasurers, and the treasurer of any board of education, from June twentieth and December twentieth to the date of the semi-annual distribution, each year, any sum not exceeding two-thirds of the current col- lection of taxes for such local authorities, respectively, in ad- vance of the semi-annual settlements. [1904, April 25, 97 v. 378; 86 v. 43; 70 v. 184.] [An act to provide for the release and discharge of county, city, vil- lage, township and school district treasurers and their sureties in cer- tain cases.! [Sec. 1.] [Provisions for release and discharge of county, city, village, township or school district treasurers and their sureties in certain cases.] When without fault or negligence of the officer entrusted by law with the care of the same, a loss of public funds entrusted to a county, city, village, township or school treasurer, by virtue of his office, is caused by fire, rob- bery, burglary or inability on the part of the bank to refund officers. 546a public money lawfully in its possession belonging to such public funds; the county commissioners, in case of such loss by a county treasurer, and the city or village council, town- ship trustees and boards of education, in like cases of loss by city, village, township and school treasurers, respectively, are hereby authorized and empowered, to release and dis- charge such treasurer and the sureties upon his official bond from all liability to or demands of the county, city, village, township or school district interested, for such loss so created and arising; provided that before such release and discharge shall be affected such board of county commissioners, city or village council, township trustees or board of education, effect- ing such release and discharge, shall find ; that such loss of public funds was not occasioned by the fault or negligence of such treasurer, and shall cause an entry of such finding to be made upon the record book of the proceedings of the council or board; provided further that in case of loss by county treasurers, the county commissioners, and in cases of loss by city or village treasurers, the city or village council, and in cases of loss by township treasurers, the township trustees, and in cases of loss by school treasurers, the board of education of the school district ; having first made and caused to be entered the finding of no fault or negligence as above provided, may and they are hereby authorized, at the next en- suing general election to be held in such county, city, village, township or school district, respectively, to submit to the quali- fied electors of said county, city, village, township or school dis- trict interested the question of discharging such treasurer and the sureties upon his official bond from liability on account of such loss of funds. Provided further that whenever twenty-five per cent, of the qualified electors of such county, in cases of county treas- urers, or a like percentage of qualified electors in cases of city, village, township or school treasurers, shall petition the coun- cil or board for the privilege to determine by ballot whether any treasurer and the sureties on his official bond shall be released and discharged, such council or board shall, and they are hereby required to submit such question to the qualified electors of said county, city, village, township or school dis- trict interested, as herein provided. Provided that any tax- payer of the county, township, municipality or school district affected may within five days after any finding of release or discharge provided for in this act is made, take an appeal therefrom to the common pleas court of the county, and until such appeal is finally determined such finding and other pro- ceedings shall not affect such release and discharge. Notice in writing of such intention to appeal shall be filed with the -clerk or auditor of the board or council making such finding within five days thereafter, and a transcript of the said find- 546& THE OHIO MUNICIPAL CODE. ing and other proceedings shall within thirty days after said finding be filed in said common pleas court and docketed therein as other cases. Whereupon the court shall proceed to try and determine the question whether such public funds were lost by the fault or negligence of such treasurer ; and in case it be found that they were, the finding of the board or council below ordering such discharge shall be vacated; but in case they were not, then such finding shall remain in full force, and the court shall cause its judgment to be certified to the board or council making such finding. [1906, April 11, 98 v. 122.] [Sec. 2.] [How question of release submitted to vote; notice^ etc.] The deputy state supervisors of elections of the county interested or within which such city, village, township or school district is located, shall cause notice of the submission of said proposition to the electors ; in case of relief of county or city treasurers by publication in two newspapers of opposite politics in said county or city for at least thirty (30) days next prior to the date upon which such election is to be held, and in case of relief of village or township treasurers twenty (20) days' notice of such election shall be given by posting notices thereof in five (5) public places within the village or township; and in cases for the relief of school treasurers, ten (10) days' notice of such election shall be given by posting notices thereof in five (5) public places in the school district interested. [1906, April 11, 98 v. 122.] [Sec. 3.] [Ballots, how printed.] The ballots for said elec- tion shall have printed thereon, "Discharge of treasurer and sureties — yes." "Discharge of treasurer and sureties — no." And shall have a place at the left of each proposition for the voter to mark according to law, the proposition he favors. [1906, April 11, 98 v. 122.] [Sec. 4.] [Entry of result of election.] If a majority of the votes cast upon such proposition at such election shall be in favor of the discharge of the said treasurer and his said sure- ties, the board of county commissioners in cases of county treasurers, and the city or village council in cases of village treasurers, and the township trustees in cases of township treasurers, and boards of education in cases of school district treasurers, shall cause to be made an entry of the result of the election in the record book of proceedings of the council or board ordering such election and shall thereupon release and discharge said treasurer and his sureties on his official bond from all liability on account of such loss. But if a majority of the votes cast shall be against such discharge then entry of such result of such election shall be made in the record book of proceedings of the council or board ordering such election and no further action therein shall be taken by such council or board. [1906, April 11, 98 v. 122.] officees. 547 Auditor. 1 An act authorizing and directing the city auditors and account- ing officers of municipal corporations to credit to the general fund all cash balances remaining in any fund which can no longer be used for the purpose for which it was created. [Sec. 1.] [Transfer to general fund of cash balances remaining in any fund which can no longer be used for the purpose for which created.] That whenever any municipal corporation in this state has been authorized by any special or general act to issue bonds or otherwise to create a fund for any public improvement, and the authority so conferred has been exercised or exhausted by said municipal corporation, or the act authorizing the crea- tion of such fund has been declared invalid by the judgment of any court of competent jurisdiction, and there remains a cash balance in said fund unexpended, for the purpose for which it was created, the auditor or other accounting officer of said municipal corporation is directed and authorized to immediate- ly transfer such cash balance to the credit of the general fund of such corporation. [Sec. 2.] [Same.] That whenever in any municipal corpora- tion there exists at the end of the year, to-wit, on the 31st day of December, a cash balance in any fund, other than a fund created for some public improvement, and for any reason the said cash balance can no longer be lawfully used for the purpose or purposes for which the fund was created, it shall be the duty of the auditor or other accounting officer of such municipal corporation to transfer said cash balance so remaining at the end of the year to the general fund of said corporation. [Sec. 3.] [Effect of transfer.] When any of the moneys au- thorized in this act to be transferred to the general fund of any municipal corporation have been so transferred said moneys shall be available for the general purposes of the corporation, as other moneys in said general fund. [May 12, 1902 : 95 v 596.] (1) For re-enacted sections relating to auditor, see § 134 of the Code. 548 THE OHIO MUNICIPAL CODE. SOLICITOE. 1 Sec. 1774 R. S. [Duties of solicitor or corporation counsel as to suits.] The solicitor or corporation counsel shall, whenever required so to do by resolution of the council, or of the council or board of administration in cities of the first grade of the first class, or of the council or board of control in cities of the second grade of the first class, prosecute or defend, as the case may be, for and in behalf of the corporation, all complaints, suits and controversies in which the corporation is a party, except cases before the police court where there is a prosecuting attorney for such court and such other suits, matters and con- troversies as he shall, by resolution or ordinance, be directed to prosecute; but shall not be required to prosecute any action before the mayor for the violation of any ordinance without first advising such action. 2 [90 v. 132 ; 85 v. 249 ; Kev. Stat. 1880; 66 v. 175, §157.] ( 1 ) Title, division and chapter. — See note (1) to § 1744 R. S., p. 542. For re-enacted sections relat- ing to solicitor, see § 137 of the Code. (2) Duties of solicitor.— The solicitor is a public officer elected by the people, and, when required to do so by resolution of council, he shall prosecute and defend for and in behalf of corporation, except in certain cases. State ex rel. v. Boyce, 43 0. S. 46, 52. Not necessary that city solicitor sign petition. Deatrick v. City of Defiance, 1 C. C. 340, 342. City solicitor is not attorney or counsel for police commissioners. Yaple v. Commissioners, 2 C. C. 406. It is the duty of the solicitor to furnish vouchers in condemnation cases when required of him by city ordinance, and mandamus will lie on his failure to do so. Ryan v. Hoff- man, 26 O. S. 109. Whether solicitor can bring suit, not under power given by § 1777 R. S., without resolution of council instructing him to do so, see State ex rel. v. Boyce, 43 O. S. 46, 52; Toledo v. Toledo Ry. & Light Co., 2 C. C. (N. S.) 97. An entry endorsed by the citj solicitor, but filed subsequent to his retirement from office, no notice thereof being given to his succes- sor, is not in compliance with the rule of court providing that when an entry is approved by counsel it shall be so endorsed and presented to the court. Wolcutt v. Columbus, 13 Dec. 561. The word " person " as used in Section 5321 R. S., applies to mu- nicipal corporation. Hence, when a municipal corporation attempts to confess judgment under the pro- visions of Sections 5321 and 5322 R. S v it is necessary to the validity of such proceeding that the city's legal representative appear in open court and confess judgment on be- half of the city. 76. The city solicitor, as legal ad- viser of the city, has, as such rep- resentative, the standing to ask a revocation of proceedings by which a judgment by default and on con- fession was obtained, notwithstand- ing that the city council itself has not applied to the court for such revocation. lb. OFFICERS. 549 Sec. 1775 R. S. [City solicitor shall give opinions; Cincinnati.] When any officer of the corporation entertains doubts concern- ing the law in any matter before him in his official capacity, and desires the opinion of the solicitor, he shall clearly state to the solicitor, in writing, the question upon which the opinion is desired, and thereupon it shall be the duty of the solicitor, within a reasonable time, to reply orally or in writing to every such inquiry; and the right here conferred upon officers shall extend to the council, and to each board provided for in this title: provided, however, that in cities of the first grade of the first class, the city solicitor shall, in his official capacity, also act as the legal adviser of, and attorney for the board of police commissioners. 1 [1888, April 13: 85 v. 225; Kev. Stat. 1880.] ( 1 ) See Yaple v. Commissioners, Classes under new Code " under § 2 C. C. 406. See note " Grades and 1599 R. S., p. 31. Sec. 3977. [Prosecuting attorney or city solicitor to act as counsel of school boards.] The prosecuting attorney shall be the legal adviser of all boards of education in the county in which he is serving, except in city school districts, he shall prosecute all actions against a member or officer of a board of education for malfeasance or misfeasance in office, he shall be the legal counsel of said boards or the officers thereof in all civil actions brought by or against them and shall conduct the same in his . official capacity ; provided, that when said civil action is between two or more boards of education in the same county said prosecuting attorney shall not be required to act for either of them. In city school districts the city solicitor shall be the legal adviser and attorney for the board of education and shall perform the same services for said board of education as is herein required of prosecuting attorneys for other boards of education. The duties herein prescribed shall devolve upon any official serving in a capacity similar to that of prosecuting attorney or city solicitor for the territory wherein a school dis- trict is situated, regardless of his official designation. !Nb prosecuting attorney, city solicitor or other official acting in a similar capacity shall be a member of the board of education. No compensation in addition to such officers' regular salary shall be allowed for such services. [1904, April 25, 97 v. 355 ; 79 v. 26; 70 v. 195.] 550 THE OHIO MUNICIPAL CODE. Street Commissioner. 1 Sec. 1782 K. S. [Duties of various officers, and their compensa- tion.] In municipal corporations that have a street commis- sioner, fire engineer, civil engineer, or superintendent of markets, those officers shall severally perform the duties pre- scribed by this title, and such other duties not incompatible with the nature of their office, as the council may by ordinance require; and each shall receive such compensation for his services, by fees or salary, or both, as may be provided by ordinance. [66 v. 176, §§ 164, 165.] ( 1 ) Title, division and chapter. For provisions relating to street See note (1) to § 1744 R. S., p. 542. commissioner, see § 203 of the Code. Sealer of Weights and Measures. 1 Sec. 1783 R. S. [Duty of sealer of weights and measures.] The city or village sealer shall, at least once in three years, compare the copies of the standards in his possession with those in the office of the county sealer. 2 [58 v. 78, § 10 ; S, 6 S. 925.] (1) Title, division and chapter. But power to provide for weigh- See note (1) to § 1744 R. S., p. 542. ing and measuring articles sold does For authority to regulate weighing not authorize an ordinance forbid- and measuring, see paragraph 12, § ding the delivery of an article sold 7 of the Code, page 52. outside the city, unless weighed by (2) Power of council. — Under city weigher. Heminger v. Cleve- the general laws relating to land, 3 W. L. M. 46. weights and measures a munici- A city may by ordinance appoint pality would have power to appoint a city weigher but cannot forbid an inspector, or sealer of weights others from following the business and measures, and to enforce, by of a weigher. Cincinnati v. Broad' fine, the use of weights and meas- well, 3 Dec. (Re) 286. ures sealed by such inspector. Hud- dleson v. Ruffin, 6 O. S. 604. Sec. 1784 R. S. [Comparison and sealing weights and meas- ures.] The city or village sealer shall compare all weights and measures which are brought to him for that purpose, with the OFFICERS. 551 copies in his possession, and when such weights and measures are made exactly to agree with said copies, he shall seal and mark such weights and measures. [58 v. 78, § 11 ; S. & S. 925.] Sec. 1061 R. S. * * * * * [Sealer of weights and measures in Toledo; appointment, etc.] Provided, however, that in cities of the third grade of the first class there shall be appointed by the mayor, and confirmed by the common council, one sealer of weights and measures, a competent person for the position, who shall receive a salary of fifteen hundred ($1,500) dollars per annum, to be paid by the city, and which shall be in lieu of all fees or charges otherwise allowed by law. Such sealer shall hold his office for a term of two years and until his suc- cessor is appointed and qualified, and he shall be authorized to appoint a competent deputy, at his own expense, to assist him in the performance of his duties. Before entering on his duties, such sealer shall take the oath of office required by law, and give a bond to the city, conditioned for the faithful per- formance of his duties, with security, to the approval of the common council, in the sum of one thousand ($1,000) dollars. [State sealer to furnish copies of standards.] State sealer of weights and measures, as provided in section 145, Revised Stat- utes of Ohio, shall furnish, for the use of such sealer, all nec- essary and approved standard measures, and also all standard weights required, under fifty pounds, with necessary subdi- visions. [Sealer to furnish standard weights.] Such sealer shall fur- nish,, at his own expense, not less than two thousand pounds of standard weights to be used in testing wagon and other large scales, and shall use not less than one thousand pounds in test- ing wagon scales, and not less than two thousand pounds in testing railroad track scales. [Duty of sealer.] It shall be the duty of the sealer to faith- fully devote his time to the performance of the duties of his office, and to test all weights, measures, scales, beams, steel- yards, and other machinery used for weighing or measuring, within such city, at least once in every year; and, upon being notified, in writing, by any person that any weight, measure, scale, beam, steelyards, or other machinery for weighing or measuring any article intended to be purchased or sold in such city, is inaccurate, or believed to be so, or not according to the standard, to at once make an examination of the same; [Sealer has police powers.] And in the exercise of such du- ties he shall have full police powers to enforce any and all rea- 552 THE OHIO MUNICIPAL CODE. sonable measures for testing such weights and measures, and also in ascertaining whether false or short weights and meas- ures are being given in any sales or transfers of articles of merchandise taking place within such city ; [Approval of weights or measures.] And after he shall have found such weights and measures to be correct and according to the standard prescribed by law, he shall seal or mark the same with a stamp, or by pasting a card thereon, as he may deem most proper, with the letters " C. S.," the initials for " City Sealer/' which said cards and seals shall be provided by the city. [Confiscation and destruction of unlawful weights and measures; use of weights, etc., not standard, prohibited.] If such sealer shall find, upon examination of any weights or measures used by any person, that the same do not conform to the standard prescribed by law, he shall have authority to confiscate such weights or measures and destroy the same. No person shall use weights, measures, scales, beams, steelyards, or other ma- chinery for weighing or measuring any article intended to be purchased or sold in such city, or any weight or measurement in which other persons or the public are interested, which do not conform to the standards prescribed by law. [False or short weight or measure.] No person shall give or direct or permit any person in his employ to give any false or short weight or measure in the sale or transfer of any prop- erty in such city, whereby any person may be defrauded or injured. [Altering weight, measure, etc.] No person shall alter or permit to be altered, or knowingly use or permit to be used, after the same shall have been altered, any weight, measure, scale, beam, steelyards, or other instrument for weighing or measuring, after the same shall have been tested, marked and sealed, which, by reason of such alteration, shall not conform to the legal standard. [Persons required to exhibit to sealer weights, etc., for exami- nation, testing and marking.] It shall be the duty of every person or persons, when called upon, to exhibit to such sealer all weights, measures, scales, beams, steelyards, or other ma- chinery by them used or intended to be used for weighing or measuring any article or commodity, bought or sold, and per- mit said sealer to examine, test, and mark the same. [Penalty.] Any person violating any of the provisions of this act, or any section thereof, shall, upon conviction thereof in any court having jurisdiction thereof, be fined not less than OFFICERS. 553 five ($5.00) dollars nor more than twenty-five ($25.00) dol- lars for the first offense, or imprisoned not more than thirty days, or both ; and, upon conviction for any subsequent offense, shall be fined not less than twenty-five ($25.00) dollars nor more than one hundred ($100.00) dollars, or imprisoned not more than sixty days, or both, and shall stand committed until such fine and costs are paid. [93 v. 201 ; 91 v. 302 ; 58 v. 78, § 17; S. &S. 925.] Sec. 145 R. S. [State sealer to furnish copies of standards.] The state sealer shall furnish like copies of the original stand- ards to the sealer of any city or village upon application there- for, and payment of the costs thereof, by such city or village. 1 [58 v. 78, § 9 ; S. & S. 924.] ( 1 ) Appointment of sealers or power to prescribe duties of such of- inspectors of weights and measures ficers. Huddleson v. Ruffin, 6 O. S. by municipalities was held to be au- 604. thorized by a section such as this; See paragraph 12 of § 7 of the and incident to the creation of the Coue, page 52. office, the municipalities would have Fire and Police Officers. Sec. 409 — 51 R. S. [Duties of marshal in connection with oth- er officers to investigate fires.] The state fire marshal and the chief of the fire department of every city or village in which a fire department is established, and the mayor of every incor- porated village or town in which no fire department exists, and the township clerk of every organized township without the limits of any organized village or city, shall investigate the cause, origin and circumstances of every fire occurring in such city, village, town or township by which property has been de- stroyed or damaged, and shall especially make investigation as to whether such fire was the result of carelessness or design. Such investigation shall be begun within two days, not includ- ing the Sunday of the occurrence of such fire, "and the fire marshal shall have the right to supervise and direct such in- vestigation whenever he deems it expedient or necessary. [Notification of fire to marshal.] The officer making investi- gation of fires occurring in cities, villages, towns or townships shall forthwith notify said fire marshal, and shall within one week of the occurrence of the fire, furnish to the said fire mar- shal a written statement of all the facts relating to the cause and origin of the fire, and such other information as may be called for by the blanks provided by the said fire marshal. * * * [95 v. 472, 94 v. 387.]. 654 THE OHIO MUNICIPAL CODE. Sec. 409 — 54 R. S. [Right of marshal and other officers upon complaint to enter buildings for purpose of investigation.] The state fire marshal, his deputies and assistants, the chief of fire department of all villages and cities where a fire depart- ment is established, and the mayor of cities or villages where no fire department exists, and the clerks of each township in the territory without the limits of an organized city or village, upon complaint of any person having an interest in any build- ing or property adjacent, and without any complaint, shall have a right at all reasonable hours, for the purpose of exami- nation, to enter into and upon all buildings and premises within their jurisdiction. [May order repair of building or removal of inflammable or explosive material.] Whenever any of said officers shall find any building, or other structure, which, for' want of proper repair, or by reason of age and dilapidated condition, or for any cause, is especially liable to fire, and which is so situated as to endanger other buildings or property, and whenever any of such officers shall find in any building, or upon any premises, combustible or explosive material, or inflammable conditions, dangerous to the safety of said buildings or premises, they shall order the same to be removed or remedied, and such order shall be forthwith complied with by the owner or occupant of said building or premises; [Right of aggrieved person to appeal to state fire marshal.] provided, however, that if the said occupant or owner shall deem himself aggrieved by such order, he may, within twenty- four hours appeal to the state fire marshal, and the cause of the complaint shall be at once investigated by the direction of the latter, and unless by his authority the order is revoked, such order shall remain in force and be forthwith complied with by said owner or occupant. [Penalty for non-compliance.] Any owner or occupant of buildings or premises failing to comply with the orders of the authorities, above specified, shall be punished by a fine of not less than ten dollars ($10.00) nar more than fifty dollars ($50.00) for each day's neglect. [95 v. 473; 93 v. 388.] Sec. 409—55. R. S. [Penalty for neglect of official duty.] Any officer referred to in section 409 — 51 herein, who neglects to comply with any of (the) requirements of this act shall be punished by a fine of not less than twenty-five dollars, nor more than two hundred dollars. [95 v. 474; 93 v. 388.] Sec. 7129 R. S. [Who may arrest.] A sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman, or police officer, shall arrest and detain any person found violating any law of this state, or any legal ordinance of a city or village, until a legal warrant can be obtained. [66 v. 291, § 21.] Sec. 1315 R. S. [No witness fees to policeman in cases speci- fied.] No watchman or other police officer is entitled to witness fees in any cause prosecuted under any criminal law of the OFFICERS. 555 state, or any ordinance of a city of the first or second class, before any police judge or mayor of any such city, justices of the peace, or other officer having jurisdiction in such causes. [56 v. 22, §1;S. &C. 647.] Sec, 6858—1 R. S. [Disposition of stolen or other property recovered by police.] All stolen or other property recovered by members of the police force shall be deposited and kept in a place designated by the mayor; every such article or prop- erty shall be entered in a book, kept for that purpose, to- gether with the name of the owner, if ascertained, and the name of the place where found, and of the person from whom taken with general circumstances, and the date of its receipt and the name of the officer receiving the same; and an inventory of all money, or other property, shall be given to the party from whom the same was taken, and in case the same is not, within thirty days after such arrest and seizure, claimed by some person, it shall unless otherwise ordered by the board, be delivered to the person from whom the same was taken, and to no other person, either attorney, agent, factor, or clerk except by special order of the mayor; and in case such money or property is, within thirty days claimed by any other person it shall be retained by such custodian until after the discharge or conviction of the person from whom the same was taken and so long as it may be required as evidence in any case in court; and if such claimant estab- lish, to the satisfaction of the police judge, that he is the rightful owner, the same shall be restored to him, otherwise, it shall be returned to the accused person, personally, and not to any attorney, agent, factor, or clerk of such accused person, except upon special order of the mayor after all liens and claims in favor of the city, against the same shall have been discharged and satisfied. [1906, March 17, 98 v. 60.] Sec. 6858—2 R. S. [Penalty against officer for neglecting or refusing to dispose of property as herein provided.] In case of the neglect or refusal of any officer or patrol- man to deposit the^ property taken or found on the possession of any person arrested, as provided in the pre- ceding section, he shall be deemed guilty of a misdemeanor, and subject to indictment, or information, and be fined in a sum not exceeding three thousand dollars, and in no case less than twice the value of the property, or be imprisoned in the county jail not exceeding one month or both; and the sentence of the court in all such cases shall operate to vacate the office of the person so convicted. [1906, March 17, 98 v. 60.] Sec. 6858 — 3 R. S. [Sale of unclaimed goods; disposal of proceeds.] All goods unclaimed for the period of one year shall be sold by the superintendent of police at public auction, after giving due notice thereof, by advertisement published three times in a newspaper of general circulation in such icounty. The proceeds realized from such sale at public auction shall 556 THE OHIO MUNICIPAL CODE. be paid over to the treasurer of the police relief fund to be placed to the credit of said fund, in all municipalities where there is such a fund and trustees and officers thereof ; provided, however, that in municipalities where there is no police relief fund and trustees and officials thereof, said proceeds of said sales at public auction shall be turned over to the treasurer of such municipality, to be credited to the general fund of such municipality. [1906, March 17, 98 v. 60.] 3. ELECTION AND KEMOVAL OF OFFICERS. 1 Sec. 1725 R. S. [Designation of election.] The council of every municipal corporation shall designate the place or places for holding the regular elections; and in all corporations di- vided into wards, there shall be a place or places in each ward designated for holding elections. [67 v. 70, § 72.] (1) Sections given here formed ipalities that have failed to elect part of Chap. 3, Div. 4, Title XII officers, were repealed by the Hypes R. S. No sections of this chapter Election Law (97 v. 238). are repealed by the Code, except Code provisions on election, ap- § 1724 R. S. But § 1723 R. S., pro- pointment and removal of officers, viding time of annual elections in see §§222, 223, 225, 226, 228, 230 municipalities and § 1736 — 1 R. S., of the Code in Part I. providing for election in munic- Sec. 1726 R. S. [Mayor's election proclamation.] The mayor, previous to any election for a municipal officer or officers, shall issue a proclamation to the electors of the corporation, or of the respective wards or districts, as the case may require, set- ting forth the time and places of election, and the officers to be chosen, and cause such proclamation to be published in some newspaper printed in the corporation, at least ten days previous to the election, or, if no such newspaper is published in the corporation, such notice may be- given by posters. [66 v. 161, §73.] FORM OF MAYOR'S ELECTION PROCLAMATION Election Notice. $ The qualified electors of the city [or village] of , State of Ohio, are hereby notified that an election will be held at the usual voting places in said city [or village] on , the day of , 19 , between the hours of A. M. and P. M., at which election the following officers will be chosen: (here insert names of officers to be elected.) Given under my hand and the corporate seal of the city [or village] of , this day of , 19 Mayor. Sec. 1727 R. S. [Who are electors.] A person who, at the time of an election for municipal officers, is an elector for county officers, and resides in the ward, or corporation, if there be no wards, in which he offers to vote, is a qualified elector; and the elections shall be held and conducted in all respects, in the manner prescribed by law in case of township elections. [66 v. 162, § 74.] OFFICERS. 557 Sec. 1728 R. S. [Election returns; when opened] Returns of municipal elections in corporations which are divided - into election districts or wards, shall be made to the clerk or auditor of the corporation, and be opened by him within the time pre- scribed for the opening of the returns of county elections. [1904, April 25, 97 v. 190; 66 v. 162, § 75.] Sec. 1729 R. S. [Abstracts of votes.] The clerk or auditor, or in his absence or disability, some person to be selected by the council, shall call to his assistance the mayor, and in his presence, make an abstract and ascertain the candidates elec- ted, as required by law with respect to county officers ; and he shall, in like manner, make a certificate as to each candidate so elected, and cause the same to be delivered to him, or left at his usual place of abode; provided, that if there is no mayor, or the mayor is absent or disabled, or a candidate at such elec- tion, the clerk shall call to his assistance a justice of the peace of the county. [1904, April 25, 97 v. 190; 66 v. 162, § 76.] FORM OF CERTIFICATE OF ELECTION. I, , clerk of the village of , State of Ohio, do hereby certify that at the election held in said village on , 19 , was duly elected of the said village of Witness my hand and official seal, this day of , 19 Clerk of the village of. Sec. 1731 E. S. [Tie vote; decision by lot.] If the result can not be determined from the votes cast, for the reason that more than the number of persons to be elected have an equal number of votes for the same office, then the officers whose duty it is to ascertain the persons elected, shall determine by lot which of such persons shall be declared elected; and the elec- tion of any municipal officer, except a member of the council, may be contested 1 in the manner provided by law for con- testing the election of justices of the peace, except in cities of the first grade of the first class, such election may be contested only in the manner provided for contesting the election of county officers. [67 v. 70, § 78.] ( 1 ) Contested election. — As to As to contesting mayor's election powers and duty of jury in contest- in village, see State ex rel. v. Simp- ed election case, see State ex rel. v. son, 5 B. 422. Wright, 56 O. S. 540. Sec. 1732 R. S. [Charge of malfeasance, etc., in office; citation by probate judge.] On complaint, under oath, filed with the probate judge of the county in which the corporation, or the larger part thereof, is situated, by any elector of the corpora- 558 THE OHIO MUNICIPAL CODE. tion, signed and approved by four other electors thereof, charg- ing that any member of the council or alderman has received, directly or indirectly, any compensation for his services as councilman, alderman, committeeman, or otherwise, contrary, to the provisions of section sixteen hundred and eighty-three 1 or that any alderman, member of the council, or any officer of the corporation, is or has been interested, directly or indi- rectly, in the profits of any contract, job, work, or services, or is or has been acting as commissioner, architect, superintend- ent, or engineer in any work undertaken or prosecuted by the corporation contrary to the provisions of section sixty-nine hundred and seventy-six, 2 or that any alderman, member of council, or any officer of the corporation has been guilty of mis- feasance or malfeasance in office, such probate judge shall forthwith issue a citation to such party, charged in the com- plaint, for his appearance before him within ten days from the filing of such complaint, and also furnish the accused and city solicitor with a copy thereof: provided, that the probate judge shall require the party complaining to furnish sufficient security for costs before acting upon such complaint 3 [68 v. 113, § 1.] (1) Section 1683 R. S. is repealed (3) Removals.— See §§ 118, by the Code. See §§ 126 and 194 121, 129, 145, 225 and 226 of the of the Code. Code. See notes to §§ 225 and 226 (2) See this section supra, p. 538. of the Code. Sec. 1733 R. S. [Proceedings thereon.] On the day fixed by such judge for the return of the citation, it shall be the duty of the solicitor to appear on behalf of the complainant to con- duct the prosecution, and the accused may also appear by coun- sel, and a time shall be set for hearing the case, which time shall not be more than ten days after such return; and if a jury is demanded by either party, the probate judge shall di- rect the summoning of twelve men, in the manner provided in the seventh division of this title: provided, that in villages and cities in which there is no office of solicitor, or where the solicitor is accused of any misfeasance or malfeasance in his. office, it is hereby made the duty of the prosecuting attorney of the county to appear on behalf of such complainant to con- duct the prosecution. [68 v. 113, § 2.] Sec. 1734 R. S. [Challenge of jurors.] On the day fixed for 'the trial, if a jury is impaneled, either party may, in addition to the peremptory challenges allowed by law in other cases, object, for good cause, to any juryman summoned; and any vacancies occurring for any cause, may be filled by the probate judge from the bystanders, until the panel is full, unless the OFFICERS. 559 party charged, or his counsel, demand a special venire to fill such vacancy. [68 v. 113, § 3.] Sec. 1735 R.S. [The trial.] On the day designated for the trial, it shall take placo, unless continued, on affidavit for good cause, to another fixed time, not exceeding ten days ; and on the trial it shall be the duty of the solicitor to appear for the prosecution, examine witnesses designated by the complainant, and such others as he may discover, and either party may have process from the probate judge to compel the attendance of witnesses. [68 v. 114, § 4.] Sec. 1736 R.S. [Removal of officer, if found guilty; costs.] If the charges in the complaint are sustained on the trial by the verdict of the jury, or the decision of the probate judge when there is no jury, such judge shall enter the charges and findings thereon upon the record of the court, and make an order removing such officer from office and forthwith transmit a cer- tified copy of the same to the presiding officer of the council, whereupon the vacancy shall be filled as provided by law ; and the costs and expenses of the trial shall be charged upon the party filing the complaint, the accused, or the municipal cor- poration, or apportioned among them, as the judge may see fit to direct, and shall be collected as in other cases : provided, no costs or expenses shall be charged to the accused, if upon such trial he is acquitted; and provided further, that if pro- ceedings in error are instituted by the officer complained of, to reverse or vacate the order of the probate court, such offi- cer shall not exercise the functions of his office until such order is finally reversed or vacated. [68 v. 114, § 5.] 560 THE OHIO MUNICIPAL CODE. 4. UNIFORM ACCOUNTING BY OFFICERS. An act to create a bureau of inspection and supervision of public offices, and to establish a uniform system of public accounting, au- diting and reporting, under the administration of the auditor of State. [Sec. 1.] [Bureau of inspection and supervision of public of- fices. Chief inspector, etc.; deputies and clerk; appointment, sal- ary and expenses.] There is hereby established in the depart- ment of the auditor of state, a bureau to be known as the bureau of inspection and supervision of public offices; the principal officer of said bureau shall be known as the chief inspector and supervisor of public offices; the auditor of state shall be, ex officio, chief inspector and supervisor of public offices, and as such chief inspector and supervisor, shall appoint not exceeding three deputies, no more than two of whom shall be of the same political party, who shall each receive a salary not exceeding two thousand dollars per annum, and a clerk who shall receive a salary not exceeding fifteen hundred dollars per annum, and in addition thereto an allowance for all necessary traveling and hotel expenses while absent from their places of residence in the discharge of their official duties. [May 10, 1902, 95 v. 511.] [Sec. 2.] [Duty of auditor of state.] The auditor of state through said bureau shall formulate, prescribe and install a system of accounting and reporting, in conformity with the provisions of this act, that shall be uniform for every public office and every public . account of the same class, and which *>hall exhibit true accounts and detailed statements of funds collected, received and expended for account of the public for any purpose whatever, and by all public officers, employes or other persons, such accounts to show the receipt, use and dis- position of all public property, and the income, if any, de- rived therefrom, and of all sources of public income and the amounts due and received from each source, all receipts, vouchers and other documents kept, or that may be required to be kept, necessary to isolate and prove the validity of ev- ery transaction, and all statements and reports, made or re- quired to be made, for the internal administration of the office to which they pertain, and all reports published, or that may be required to be published, for the information of the people, regarding any and all details of the financial adminis- tration of public affairs. [May 10, 1902, 95 v. 512.] [Sec. 3.] [Separate accounts.] Separate accounts shall be kept for every appropriation or fund made by a taxing body, , OFFICERS. 561 showing date and manner of each payment made out of the funds provided by such appropriation, the name, address and vocation of each person, organization, corporation or associa- tion, to whom paid, and for what purpose paid. Separate ac- counts shall be kept for each department, public improvement, undertaking, institution and public service industry under the jurisdiction of every taxing body, and of the state, and all service rendered by, or property transferred from one depart- ment, public improvement, undertaking, institution or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, in- stitution or public service industry receiving the same, and no department, public improvement, undertaking, institution or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another department, public improvement, undertaking, insti- tution or public service industry. All unexpended balances or appropriations shall be transferred to the fund from which, appropriated whenever the account with an appropriation is closed. [1904, April 23, 97 v. 272 ; 95 v. 512:] [Sec. 4.] [Public service industries.] Separate accounts shall be kept for every public service industry which shall show the true and entire cost of the ownership and operation thereof, the amount collected annually by general or special taxation for services rendered to the public and the amount and char- acter of the service rendered therefor, and the amount collected annually from private users, if any, for service rendered to them, and the amount and character of the service rendered therefor. [May 10, 1902, 95 v. 512.] [Sec. 5.] [Comparative statistics.] The auditor of state through said bureau shall require from every taxing district and public institution financial reports covering the full period of each fiscal year, in accordance with the forms and methods prescribed by him, which shall be uniform for all accounts of the same class, which said reports shall be prepared, certified and filed with said bureau within thirty days after the close of each fiscal year by the auditing department of said taxing dis- trict or public institution. Such reports shall contain an accu- rate statement in summarized form, of all collections made by or receipts received by the officers from all sources, all accounts due the public treasury but not collected, and of all expendi- tures for every purpose and by what authority authorized, and also: (a) A statement of all costs of ownership and operation 562 THE OHIO MUNICIPAL CODE. and of all income of each and every public service industry owned and operated by a municipality. (b) A statement of the entire public debt of every taxing district to which power has been delegated by the state to create a public debt, showing the purpose for which each item of the debt was created, the provisions made for the payment of the debt, together with such other information as may be required by the auditor of state. Such reports shall be certified as to their correctness by said auditor of state, his deputies, or by a state examiner, or other person legally authorized to make such certificate. Their substance shall be published in an annual volume of comparative statistics that shall be issued for each class of accounts at the expense of the state as a public document, and shall be submitted by the auditor of state to the governor for transmittal to the legislature at the next regular session, or at a special session when required. [1904, April 23, 97 v. 272 ; 95 v. 513.] [Sec. 6.] [Duty of public officer.] It shall be the duty of every public officer and employe to keep all accounts of his office in the form prescribed and to make all reports required by the auditor of state. Refusal or neglect to perform these duties shall be deemed an offense against the efficiency of public administration and the welfare of the people, and shall be pun- ished by removal from office, after trial and conviction by a court of competent jurisdiction. Every public officer and em- ploye whose duty it is to collect or receive payments due the public shall deposit all public moneys collected or received by him with the treasurer of the taxing district once every twenty-four consecutive hours. In case a public officer or employe collects or received funds for the account of a taxing district of which he is not an officer or employe, he shall during the Saturday of each week, pay to the proper officer of the taxing district for account of which the collection was made or payment received, the full amount collected or received during the current week for the account of such taxing district. [95 v. 514; 97 v. 273.] [Sec. 7.] [State examiners; appointment, salary, etc.] After the bureau of inspection and supervision shall have formulated and installed the system of uniform accounting in any or all classes of public offices, the auditor of state is hereby empowered to appoint additional assistants as required to administer the provisions of this act ; said additional assistants shall be known as state examiners who shall each be paid five dollars per day OFFICERS. 563 for the time necessary to the performance of his duties, and in addition thereto his necessary expenses incurred, [May 10, 1902, 95 v. 514.] [Sec. 8.] [Powers of auditor of state.] The auditor of state, a deputy inspector and surveyor, and every state examiner shall have power by himself or by any person legally appointed to perform the service, to examine into all financial affairs of every public office and officer, and shall make such examina- tion at least once a year. On every such examination inquiry shall be made as to the financial conditions and resources of the taxing district; whether the constitution and statutory laws of the state, the ordinances and orders of the taxing district and the requirements of the bureau of inspection and super- vision of public offices have been property complied with; and into the methods and accuracy of the accounts and reports. The auditor of state, his deputies, every state examiner and every person legally appointed to perform such service, shall have and may exercise all the authority to issue subpoena and compulsory process and to direct the service thereof by any constable or sheriff, to compel the attendance of witnesses and the production of books and papers before him at any desig- nated time and place, to administer oaths and, to punish for -disobedience of subpoena, or refusal to be sworn or to answer as a witness, or to produce books and papers, which is con- ferred by law upon courts or officers authorized to take depo- sitions. Wilful false swearings in such examinations shall be perjury, and shall be punishable as such. A report of such examination shall be made in duplicate, one copy to be filed in the office of the auditor of state and one in the auditing department of the taxing district reported upon. If any such examination discloses malfeasance, misfeasance or non-feasance in office on the part of any public officer or employe, an addi- tional copy of such report shall be made and forwarded to the proper legal authority of the taxing district for such legal action as is proper in the premises. Refusal, neglect or failure on the part of the proper legal authority of the taxing district to take prompt and efficient legal action by civil process to carry into effect the findings of any such examination or to prosecute the same to a final conclusion, shall give to the auditor of state, through the attorney-general's department of state, the right to institute the necessary civil proceedings or to participate therein, and to prosecute the same in any of the courts of the state to a final conclusion. [95 v. 514; 97 v. 273.] 564 THE OHIO MUNICIPAL CODE. [Sec. 9.] [Expense of maintaining and operating bureau; how paid.] The expense of maintaining and operating the bureau herein provided for shall be paid by the several counties out of the general county fund, in proportion to their population as shown by federal census next preceding the levy hereby authorized, and the auditor of state is hereby authorized and empowered to levy upon, and collect from each county in the state its proportion of said expenses; said amount shall be paid semi-annually during the months of June and December of each year following the passage of this act, and shall in the aggregate be only sufficient to pay said expenses. The same shall be paid in vouchers of the auditor of state, and all funds received by the auditor of state on this account shall be cov- ered into the state treasury to the credit of bureau of inspec- tion and supervision account. [May 10, 1902, 95 v. 514.] [Sec. 10.] [Expense of audit.] The expenses of auditing public accounts shall be borne by each taxing district for the auditing of all accounts under its jurisdiction, and the auditor of state is hereby authorized and empowered to certify the expense of such audit to the auditor of the county in which said taxing district is situated, who shall promptly issue his warrant on the county treasurer payable out of the general fund of the county, said fund, except as to auditing the finan- cial affairs and making inspections and examinations of the county, to be reimbursed by the county auditor out of the moneys due said taxing district at the next semi-annual settle- ment of the collection of taxes. 1 [95 v. 514; 87 v. 274.] Validity.— This act held consti- 72 O. S. 487. tional. State ex rel. v. Schumate, 5. PROVISION AS TO CONTRACTS BY OFFICERS. Sec. 799a R. S. [Limitation on the amount of bonds hereinbe- fore required; qualification of sureties; penalty.] The bonds pro- vided for and required to be taken by any board or officer of the county, township, city, town, village or school district of the state, by virtue of sections seven hundred and ninety-four, 1 seven hundred and ninety-five, seven hundred and ninety-six and seven hundred and ninety-seven, as amended, and sections seven hundred and ninety-eight and seven hundred and ninety- nine of the Revised Statutes, shall not exceed fifty per cent, of the estimated cost of any public building, bridge superstructure or bridge substructures, or repairing, altering or rebuilding the same, and the officers named herein may require the person OFFICERS. 565 or persons on the bond of the successful bidder or bidders to qualify that they are residents of the state of Ohio, and are jointly worth a greater sum than the amount named in the bond over and above all liabilities and exemptions allowed by law. Any officer violating any of the provisions of chapter twelve 2 shall be fined in any sum not exceeding one thousand dollars. [1888, April 13: 85 v. 218, 222.] ( 1 ) § 794 is re-enacted in § 143 section occurs, there is no " Chapter of the Code. 12." (2) In Title VI. in which this 566 THE OHIO MUNICIPAL CODE. II JUDICIAL. 1. POLICE COURT. 1 (a) Jurisdiction of Court and Judge. 2 Sec. 1785 R. S. [Police court.] In cities of the first class, and in cities of the third grade, third grade a, and third grade c, of the second class, 3 there shall be a court, held by the police judge, which court shall be styled the police court, 4 and be a court of record. 5 Provided that in cities of the third grade c, the city council by a two-thirds vote may abolish the office of police judge and vest the mayor of said city with all the powers of a police judge as provided by the Revised Statutes of the state of Ohio; and when such office of police judge has been so abolished, it shall not be again re-established except by a like vote of council, but no action of counsel shall extend or curtail the term of office of a mayor or police judge who may be serving at the time the change may be made by council. [93 v. 615 ; 89 v. 19 ; 88 v. 161 ; 84 v. 26, 27 ; 82 v. 54, 58 ; Rev. Stat. 1880; 72 v. 51, § 168.] (1) Title, division and chapter. and may be prosecuted in the name The sections given under 1 were of the corporation. Markle v. Ak- contained in Chap. 1, Div. 5, Title ron, 14 O. 586. XII of Revised Statutes. ( 5 ) Court of record. — See Terry (2) Sections under (a) were con- v. State, 22 C. C. 16. tained in sub-division 1 of Chap. 5, Special police court acts among Div. 5, Title XII R. S. the sections contained in the repeals (3) See note under § 190 of the by the Code are as follows: Akron, Code. 17076 R. S.; Cincinnati, 1708a (4) Prosecutions brought in R. S.; Cleveland, 1545-13, 1544-45, the name of corporation. — Of- 1545-71 R. S.; Columbus, 1545-100, fenses against municipal corpora- 1545-122, 1545-138,1545-148 R. S.; tions are regarded as quasi-criminal, Dayton, 1744a R. S. Sec. 1785a R. S. [Police court in certain cities.] In cities of the first grade of the second class, there shall he a court held by the police judge, which court shall he styled the police court POLICE COURTS. 567 and be a court of record. The provisions of the Revised Stat- utes and the amendments thereto relating to police courts and the officers thereof, not inconsistent with this act, are hereby made applicable to police courts and the officers thereof in cities of the first grade of the second class. [88 v. 67.] Sec. 1785b R. S. [Election of police judge and prosecuting at- torney.] In such cities of the first grade of the second class, there shall be chosen by the electors, at the first annual mu- nicipal election after the passage of this act, a police judge and prosecuting attorney of the police court, each of whom shall serve for the term of three years and until their succes- sors are elected or appointed and qualified, and thereafter as the terms of such officers expire, their successors shall in like manner be elected to serve for three years; vacancies shall be filled by the mayor for the unexpired term. In such cities the secretary of the board of police commissioners shall be ex officio clerk of the police court. [88 v. 67.] Sec. 1785c U.S. [Dayton police court; laws governing.] In cities of the second grade of the second class there shall be a court held by the police judge, which court shall be styled the police court, and be a court of record. The provisions of the Revised Statutes and the amendments thereto relating to police courts and the officers thereof, not inconsistent with this act, are hereby made applicable to police courts and the officers thereof in cities of the second grade of the second class. [89 v. 136.] Sec. 1785dR. S. [Election and term of judge and clerk; va- cancies; prosecuting attorney.] In such cities of the second grade of the second class there shall be chosen by the electors, at the first annual municipal election after the passage of this act, a police judge, who shall serve for the term of three years and until his successor is elected or appointed and qualified; and a clerk of the police court, who shall serve for the term of three years and until his successor is elected or appointed and qualified; and thereafter, is the terms of such officers expire, their successors shall in like manner be elected to serve for the terms provided above, respectively, for such officers. Vacan- cies in the office of police judge shall be filled by the governor for the unexpired term. Vacancies in the office of the clerk of the police court shall be filled by the mayor for the unex- pired term. A prosecuting attorney of the police court shall be appointed by the board of police directors of such city within three days after the first election and qualification of the police judge provided for herein. The prosecuting attorney shall 568 THE OHIO MUNICIPAL CODE. serve for the term of three years and until his successor is elected or appointed and qualified, and thereafter, as the term of such officer expires, his successor shall in like manner be ap- pointed by such board of police directors to serve for a like term. Vacancies shall be filled by such board of police direc- tors for the unexpired term. The clerk and the prosecuting at> torney shall receive no fees or perquisites, but the clerk shall receive an annual salary of twelve hundred dollars, and the prosecuting attorney shall receive an annual salary of fifteen hundred dollars, both payable monthly out of the city treas- ury. [89 v. 136.] Sec. 1785e R. S. [Ashtabula police court.] In cities of the fourth grade a of the second class there shall be a court held by a police judge, which court shall be styled the police court, and be a court of record. The provisions of the Eevised Stat- utes and all acts amendatory and supplementary thereto relating to police courts throughout the state, and the officers thereof, not inconsistent with the provisions of this act, are hereby made applicable to police courts and the officers thereof, in cities of the fourth grade a of the second class. [91 v. 59.] Sec. 1785f R. S. [Election and term of judge; vacancies; clerk; deputy.] In cities of the fourth grade a of the second class there shall be chosen by the electors, at the first annual mu- nicipal election after the passage of this act, a police judge, who shall serve for the period of three years and until his suc- cessor is elected or appointed and qualified, and thereafter, as the term of such judge expires, his successor shall in like manner be elected, to serve for the period of three years ; vacan- cis in the office shall be filled by the governor. Such judge shall be ex officio clerk of his own court, with all of the powers and duties now conferred upon clerks of the police courts by the provisions of the Eevised Statutes, and the acts amendatory and supplementary thereto, not inconsistent with this act; pro* vided, that he shall be entitled to a deputy clerk of the police court who may perform any duty of his principal, who shall be appointed by such police judge by and with the consent of the council of such cities, when by them deemed necessary, and who shall receive such compensation for his services as the council shall prescribe. Such judge and ex officio clerk and also such deputy clerk of the police court shall give such bond, with sureties, as the council of such cities may require. [91 v. 59.] Sec. 1785gR. S. [Election of police judge in Portsmouth; clerk of police court; vacancy.] In cities of the second class, POLICE COURTS. 569 third grade c, there shall be chosen by the electors therein, at the first annual municipal election held after the passage of this act, a police judge, who shall serve for the term of three years, and until his successor is elected or appointed and qualified, and thereafter, as the term of such officer expires, his succes- sor shall in like manner be elected to serve for the term herein provided, and the police judge in such city shall be ex officio clerk of the police court; and a vacancy in the office of such police judge shall be filled by the governor until the next mu- nicipal election, when it shall be filled for the unexpired term. [93 v. 615.] Sec. 1786 R. S. [Seal.] Said court shall have a seal, with the name of the state in the center, and the style of the court in the margin; and it shall be the duty of council to furnish such seal. [72 v. 51, § 168.] Sec. 1787 R. S. [General jurisdiction to inquire into crimes, etc.] The jurisdiction of said court to make inquiry in criminal cases shall be the same as that of a justice of the peace, 1 and the judge shall have the same power to take ac- knowledgment of deeds, 2 and other instruments of writing, ad- minister oaths, and take and certify depositions. [66 v. 176, § 166; (S. & S. 797; S. & C. 1520, 1521).] (1) What jurisdiction may be The information being unsupported conferred. — Police courts may be by oath or affirmation, held, a mo- given jurisdiction of offenses com- tion to quash will lie. Eichenlaub mitted outside city limits. Ex v. State, 36 O. S. 140. parte Hagenschneider, 7 N. P. 313; Mistake in sentence. — See Lee Fletcher v. State, 18 C. C. 674. v. State, 32 O. S. 113. But see contra, State v. Voris, 8 (2) Acknowledgments. — A jus- N. P. 16. tice of the peace or mayor may take Information supported by oath. acknowledgments outside his coun- — One charged with a misdemean- ty. Crumbaugh v. Kugler, 2 O. S. or was prosecuted by information. 373; Moore v. Moore, 3 O. S. 154. An act to confer jurisdiction upon police courts. 1 [Sec. 1.] [Police court; final jurisdiction of.] The police court shall have jurisdiction of any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city or within four miles thereof, to hear and finally determine the same, and to impose the prescribed pen- alty ; but cases in which the accused is entitled to a jury trial, shall be so tried unless a jury be waived. [1904, Jan. 22, 97 v. 7.] 570 THE OHIO MUNICIPAL CODE. (1) Sec. 1788 R. S. — This act eluded in list of repeals in the corresponds to what was originally code. See note under § 191 of the section 1788 K. S. which was in- Code. Sec. 1788 — 1 R. S. [Police jurisdiction in Zanesville.] Power and authority is hereby vested in the council of all cities which by the last preceding federal census had a population of not less than 21,009 and not more than 21,020, or which at any subsequent federal census may have such population to pro- vide by ordinance for the extension of the jurisdiction of the city ordinances for police regulation for the distance of one mile outside the corporate limits of said city. [92 v. 743.] Sec. 1788— 2 R. S. [As to warrants and affidavits.] Upon the passage of such ordinance by the council of any city, having such population, all ordinances of said city for police regula- tion will be obeyed and respected, and all affidavits and war- rants shall be good as to jurisdiction if the offense charged was committed with the radius of one mile outside of the limits of said city. [92 v. 743.] Sec. 1789 R. S. [Hearing in felonies.] In felonies commit- ted within the county, the court shall have the powers of a justice of the peace to hear the case, and discharge, recognize, or commit; and if, upon such hearing, the court is of the opinion that the offense is only a misdemeanor, and that the court may entertain jurisdiction of it under [the last] section a plea of guilty of such misdemeanor may be received, and sentence and judgment pronounced ; but if in such case the ac~ cused decline to enter such plea, the court, without discharging the accused, shall cause the prosecuting attorney to immedi- ately file in the court an information against the accused for such misdemeanor, on which charge he shall be tried in that court, after an entry has been made discharging him of the felony. 1 ( 1 ) Cannot convict of felony. — convict a person charged with a f el- Police Court has no authority to ony. State v. Hamilton, 3 C. C. 10. Sec. 1790 R. S. [Where, on charge of misdemeanor, proof shows felony.] Where the charge is the commission of a mis- demeanor, and the proof shows that the party has committed POLICE COURTS. 571 a felony, the court, upon the proper affidavit being filed, shall discharge the party as to the misdemeanor, and admit him to bail or commit him, as the case may be, for the felony. Sec. 1791 R. S. [General powers.] The court shall have power to issue process, preserve order, and punish contempts, summon and impanel jurors, grant new trials and motions * in arrest of judgment, suspend execution of sentence upon no- tice of intention to apply for leave to file a petition in error, 2 and such other powers incident to the Court of Common Pleas, 3 as may be necessary for the exercise of the jurisdiction herein conferred, and the enforcement of the judgments and orders of tha court. ' [72 v. 51, § 168 ; S. & C. 1521.] (1) New trial and motions. — Granting new trials in Police Court are governed by same rules as those in Courts of Common Pleas in crim- inal cases. Germantown v. Basore, 22 C. C 417. Time for filing motion for new trial. See Evans v. State, 23 C. C. 103; 3 C. C. (N. S.) 23 (aff'd 68 O. S. 700). (2) Reviewable on weight of evidence. — Judgments of a mayor of conviction for the violation of an ordinance may be reviewed on the weight of the evidence. Flatau v. Mansfield, 14 C. C. 592, 595. Contra Williams v. State, 25 0. S. 628. Since the decision in Williams v. State supra, the law has been changed by statute and that case no longer applies, and a conviction either in a police court or mayor's court may be reveiwed on the weight of the evidence. Ger- mantown v. Basore, 22 C. C. 417. See also Slaughter v. Columbus, 61 O. S. 53. But a judge of police court hav- ing the opportunity to see the wit- nesses is best qualified to judge of their credibility, and his findings should not be disturbed unless man- ifestly wrong. Evans v. State, 23 C. C. 103; Niefeld v. State, 23 C. C. 246. (3) Powers incident to Court of Common Pleas. — Judge of po- lice court or mayor may allow time to sign bill of exceptions. German- town v. Basore, 22 C. C. 417, 421. They are governed by same rules as in civil cases in Court of Com- mon Pleas. lb. May punish for contempt. — By this section the police court has power to punish by contempt fail- ure to answer subpoena. Woods v. State, 30 B. 290. Written charges are not neces- sary, lb. Sec. 1792 U.S. [In what name prosecutions carried on.] Prosecutions for offenses against the laws of the state shall be brought and conducted in the name of the state, and prose- cutions for violations of city ordinances shall be brought and conducted in the name of the corporation ; and in any case a new trial may be granted within the same time and for the same cause as in like cases in the Court of Common Pleas. 1 [66 v. 177, § 196 (169) ; (S. & S. 798).] 572 THE OHIO MUNICIPAL CODE. ( 1 ) Averments necessary in in- averred in information. See Massa formation. — As to what must be v. State, 3 C. C. 9. Sec. 1793 R. S. [Terms of the court.] The police court shall always be open for the transaction of business, but may adjourn from day to day, or from time to time, and shall be considered as holding monthly terms, each commencing on the first Monday of the month. 1 [72 v. 51, § 171; (S. & S. 799).] ( 1 ) Holidays. — Courts may ad- unlawful to hold court on holiday, journ on a legal holiday. Jones v. State v. Thomas, 61 O. S. 444. State, 14 C. C. 35. But it is not Sec. 1794 R. S. [Mode of prosecuting, etc.] The mode in which business shall be brought before the court shall be fixed by ordinance of the city council or rule of court. 1 [72 v. 51, §171; (S. &S. 799).] (1) Limitation. — The require- pensed with by §§ 1794 and 1795 ment that a warrant must be found- R. S. Eichenlaub v. State, 36 O. ed on oath or affirmation, is not dis- S. 140, 144. Sec. 1795 U.S. [Rules.] The judge shall adopt such rules of practice and procedure as will give each party a proper statement of any charge against him, and a full opportunity of being heard, which rules shall be placed in the court room. [66 v. 177, §173; (S. & S. 799).] Sec. 1796 R. S. [As to dispatch of business; interpreter.] The business of the court shall be dispatched with all the speed con- sistent with a full, fair trial or hearing of the cases. In cities where there is more than one police judge — the judges of the police court may appoint an interpreter for said court — and in case they fail to agree, the clerk of said court may appoint an interpreter for said court for the term of two years who shall receive as compensation fifteen hundred dollars per year. Said interpreter shall attend all sessions of said court and obey all orders of the judges of said court; he shall receive no fees while acting in the capacity of interpreter and said judges shall have power for adequate cause to remove said interpreter. [1904, April 25, 97 v. 387; 90 v. 256; 88 v. 99; 66 v. 177.] Sec. 1797 R. S. [Salary of judge.] The judge of the police court shall receive no fees or perquisites, but shall receive such annual compensation, not exceeding two thousand dollars, as the council may prescribe, payable quarterly out of the city treas- POLICE COURTS. 573 ury, and such further compensation payable out of the county treasury, as the commissioners of the county may deem proper ; but in cities of the first grade of the first class such judge shall receive not less than fifteen hundred dollars a year from the city treasury, and not less than fifteen hundred dollars a year from the county treasury ; and m cities of the first grade of the second class, such judge shall receive a salary of two thousand dollars per year, payable monthly, out of the city treasury ; and nothing in this section shall prohibit, any police judge from receiving the fees from [for] taking the acknowledgment of instruments, depositions and affidavits which are allowed to justices of the peace for like service. [88 v. 67 ; 66 v. 177, § 170; (S. &S. 798).] Sec. 1797a R. S. [Salary of judge in Dayton; fees.] In cities of the second grade of the second class, the judge of the police court shall receive no fees or perquisites, but shall receive an annual salary of two thousand dollars, payable monthly out of the city treasury, and nothing in this section shall prohibit such police judge from receiving the fees for taking the ac- knowledgment of instruments, depositions and affidavits which are allowed to justices of the peace for like services, [89 v. 137.] Sec. 1797b R. S. [Compensation of Ashtabula police judge; fees; fines.] In cities of the fourth grade a Of the second class the police judge and ex officio clerk of the police court, in criminal cases or prosecutions, shall receive no fees, fines or perquisites, but shall receive such annual compensation as the council of such cities shall prescribe by ordinance, payable quarterly out of the city treasury, and such further compensa- tion payable out of the county treasury as the commissioners of the county may deem proper; provided, that such judges shall receive from the county treasury not less than two hun- dred dollars; provided further, that nothing in this section* shall prohibit any such judge and ex officio clerk from receiving such fees in civil cases, and for taking acknowledgments of instruments, depositions, affidavits, etc., as are allowed justices of the peace for like services; and all fines and fees collected for the violation of ordinances shall be turned over to the city treasurer, by such judge, on or before the fifth day of each month, and he shall make a written statement of the number and amount of the same, and file the same with the city clerk before the first regular meeting of the council of such cities in each month, who shall report the same to the council and make a minute of the same upon the council .journal ; and all 574 THE OHIO MUNICIPAL CODE. fines or fees collected by him for violations of the state laws shall, on or before the first day of January, April, July and October, respectively, of each year, be turned over to the county treasurer. [91 v. 59.] Sec. 1797c U.S. [Clerk of police court in Portsmouth; com- pensation; fees for taking acknowledgments, etc.] In cities of the second class, third grade c, the police judge shall be ex officio clerk of the police court, and shall receive such compen- sation for the performance of both the duties of police judge and clerk of police court as may be allowed him by ordinance of council, and the county commissioners, as provided in sec- tion 1808 and no more; provided, that any such police judge may receive such fees for taking acknowledgments, depositions, and affidavits, as are allowed by law to justices of the peace for like services. [93 v. 615.] Sec. 1798 It. S. [Provisions as to jurors, witnesses, etc.] . The court shall have power to compel the attendance of witnesses, jurors, and parties ; jurors shall have the qualifications and be subject to the challenges of those in the court of common pleas in like cases; they shall be selected, summoned, and impaneled in accordance with an ordinance of the council, or if no such ordinance is in force, in accordance with a rule of the court ; 1 and they shall receive the same fees as are allowed jurors in the court of common pleas in such cases, which shall be payable out of the county treasury in state cases, and out of the city treasury in cases for the violation of ordinances. 2 [66 v. 177, § 172.] (1) Struck jury. — There is no the violation of an ordinance, is il- law authorizing a struck jury in po- legal. Thomas v. Village of Ash- lice court. State ex rel. v. Erms- land, 12 O. S. 124. ton, 4 C. C. 81. (2) Payment of jury fees.— Where no provision for jury. — When municipality and when state Where there is no trial by jury pro- pays jury fees, see State ex rel. v. vided a sentence of imprisonment by Cappeller, 5 B. 363. the mayor, of a person charged with Sec. 1799 R. S. [Witnesses' fees.] Witnesses in the police court shall be allowed the same fees in cases arising from a violation of the ordinances, as are allowed in like cases before justices of the peace, which shall be paid in the same manner ; and in state cases the same fees as in like cases in the court of common pleas, which shall be paid in the same manner. 1 [66 v. 178, § 178; (S. & C. 1537).] (1) For witness fees in cases be- fore justices of peace and Common Pleas Court, see § 1301 R. S. POLICE COURTS. 575 Sec. 1800 R. S. [Other fees.] Other fees in the police court shall be the same in state cases as are allowed in the probate court, or before justices of the peace, in like cases; and in cases for violation of ordinances such fees as the council shall, by ordinance, prescribe, not exceeding the fees for like services in state cases. [66 v. 178, § 177.] Sec. 1801 R. S. [Recognizances.] In felonies, the court shall recognize such of the witnesses as will probably be re- quired in the court of common pleas to appear in that court; one instrument, in which, under the penalty named, the wit- nesses shall severally undertake to appear before the court of common pleas of the county forthwith, or at the next term, as the case may be, shall be sufficient ; all recognizances, wheth- er of the accused or the witnesses, shall, when taken, be certi- fied and entered on the journal, and forthwith delivered to the clerk of the court of common pleas ; and neither coverture, nor minority, shall be a defense to any recognizance. [66 v. 178, § 176.] Sec. 1802 R. S. [Acting police judge; Toledo.] During the absence, inability or disability of the judge, the mayor may hold the court, or may select for the purpose a reputable mem- ber of the bar, or a justice of the peace, residing within the city, who' shall have the jurisdiction and powers conferred upon judges of police courts, be styled " acting police judge " and, as such, sign all process and records during the time he shall serve, and perform all other acts pertaining to the office; and in case the mayor hold the court, he shall have all the powers, and perform all the duties of the judge ; * except, that in cities of the third grade of the first class, during the absence, inability or disability of the judge, the clerk of police court shall select for the purpose of holding court a reputable member of the bar, or a justice of the peace, residing within the city, who shall have the jurisdiction and powers conferred upon judges of police courts, be styled " acting police judge," and, as such, sign all process and records during the time he shall serve, and perform all other acts pertaining to the office. [April 29, 1902, 95 v. 293 ; 70 v. 248 ; 66 v. 170 ; (S. & S. 800).] (1) Validity. — The power given — Even if the power to appoint is the mayor to appoint, in the tern- not constitutional, yet the person porary absence of police judge is acting under the appointment will not in contravention of Art. 4, § 33 be a de facto judge. Ex parte of the Constitution. Molitor v. Strang, 21 O. S. 610; Brown v. To- State, 6 C. C. 263. ledc, 7 N. P. 435. Where appointment defective. The acts of a de facto officer, 576 THE OHIO MUNICIPAL CODE. when questioned collaterally, are as 263; and this is so even though the valid and binding as those of an of- one appointing had only colorable ficer de jure. Ex parte Strang, 21 authority to appoint. Ex parte O. S. 610; Molitor v. State, 6 C. C. Strang, 21 O. S. 610. Sec. 1803 U.S. [Compensation of acting police judge.] The person selected as judge shall be paid for the time occupied in the same manner and at the same rate as the police judge, and the amount so paid shall not he deducted from the com- pensation of the police judge; provided the said absence, in- ability or disability of the police judge, and the holding of the court by such acting police judge, shall not exceed sixty days in any one year; and all courts shall take judicial notice of the selection and powers of such person. [1882, April 11 ; 79 v. 85 ; Kev. Stat 1880 ; 70 v. 248, § 174 ; 66 v. 170, § 124.] (b) Clerk of Police Court. 1 Sec. 1804 U.S. [Clerk of police court: his powers.] The clerk of the police court shall have power, when an affidavit is filed with him for a peace warrant, search warrant, or charging any person with the commission of an offense, to issue a war- rant under seal of said court to arrest the accused or search the place described; to admit to bail any person accused of a misdemeanor or violation of an ordinance for his appearance at the next sitting of the police court or mayor, as the case may be ; and the bond given to continue until the case is finally disposed of ; and also to admit to bail any person accused of a felony when the amount of bail has been fixed by the court or mayor, as the case may be; to appoint one or more deputies to be approved by the council, to administer oaths and to per- form all other things which may be performed by the clerk of the court of common pleas in like cases. 2 [92 v. 98 ; 84 v. 26, 27; 83 v. 68; Kev. Stat. 1880; 67 v. 72, § 185; 66 v. 178, § 182.] ( 1 ) The sections under this head- Issuing a warrant is a ministerial ing were contained in sub-division 2 and not a judicial act. Molitor v. of Chap. 1, Div. 5, Title XII R. S. State, 6 C. C. 263. (2) Section constitutional. — Sec. 1805 U.S. [Duties as to papers.] He shall file and preserve all informations, process, motions, and papers of every description used in the court., except such as he may be re- quired to transmit to another court, [66 v. 179, § 187; (S. & C. 1537).] POLICE COURTS. 577 Sec. 1806 R. S. [Journal; record.] He shall keep a journal of all orders and judgments of the court, and on the opening of the court on any day, the minutes of the preceding day shall be read, and signed by the judge, the errors, if any, being first corrected; and the entries on the journal in any case, in connection with the information and other papers, shall con- stitute and have the force of, a final record. [66 v. 179, § 187; (S. & C. 1537).] . Sec. 1807 R. S. [Report.] He shall, on the first Monday of every month, make, under oath, to the city auditor, a report of all fines, penalties, fees, and costs imposed by the court in city cases, showing in what cases the same have been paid, and in what cases they remain unpaid; and also, at the same time, he shall make a like report to the county auditor as to state cases; and he shall immediately pay into the city and county treasuries, respectively, the amount then collected, or which may have come into his hands, from all sources, during the preceding month. [66 v. 179, § 189.] Sec. 1808 R. S. [His bond and compensation.] He shall give such bonds, with sureties, as may be required by the council and county commissioners, and shall receive for his services, in city cases, a fixed salary to be prescribed by ordinance of the council, not more than two thousand dollars per annum, and for state cases such further allowance, not more than two thou- sand dollars per annum, payable out of the county treasury, as the county commissioners may deem proper. [1904, April 19, 97 v. 101; 93 v. 615; 91 v. 195; 91 v. 158; 89 v. 19; 88 v. 161; 84 v. 26, 27; 83 v. 68; Eev. Stat. 1880; 66 v. 178.] Sec. 1809 R. S. [Powers, salary, and bonds of deputy clerk; Cincinnati, Cleveland and Toledo.] A deputy olerk of the po- lice court may perform any duty of the principal; he shall receive such compensation as the council may prescribe, but not exceeding fifteen nor less than seven hundred dollars per year; and such further compensation in cities of the first class of the first grade as the county commissioners shall determine, but not exceeding six hundred dollars per year and such further compensation in cities of the first class of the sec- ond or third grade as the county commissioners shall determine, but not exceeding five hundred dollars per year ; and the princi- pal may take from him an undertaking, with sureties, for the faithful performance of such official duties. [92 v. 401 ; 85 v. '7; 83 v. 68; Eev. Stat. 1880; 67 v. 72, § 135; (S. & S. 799).] Sec. 1810 R. S. [Inability or absence of clerk; substitute.] 578 THE OHIO MUNICIPAL CODE. When there is a temporary inability or absence of the clerk and no deputy has been appointed, or where a vacancy of the office occurs by resignation, death, or otherwise, the judge, or if there be more than one judge then the judges, of said court may appoint some competent person who, upon giving the bond and taking the oath of office prescribed, shall have the powers and perform the duties of the clerk ; and the person so appoint- ed shall be paid out of the city treasury, on the order of the council, at the same rate the clerk is paid for similar services ; but in no case of temporary inability, or absence, such appoint- ment shall be valid only until the inability be removed or the clerk return. [94 v. 69 ; Rev. Stat, of 1880 ; 66 v. 179, § 186.] Sec. 1811 R. S. [Clerk and deputy not to practice in certain cases.] Neither the clerk nor his deputy shall be concerned as counsel or agent in the prosecution or defense of any case that is or has been before the court. 1 [66 v. 179, § 188.] (1) See § 1817a R. S. infra, p. 581. Sec. 1812 U.S. [Surplus fees after payment of expenses.] If there be any surplus of the fees collected for the city, after payment of the expenses of the police court required to be paid by the city, such surplus shall, in cities of the first class, except as otherwise provided by law, be appropriated by council for the benefit of the common schools of the city. [1887, Feb. 17: 84 v. 26, 27; Rev. Stat. 1880; 66 v. 179, § 190.] (c) Prosecuting Attorney. 1 Sec. 1814 R. S. [Salary.] He shall receive for his services in city cases such salary as the council may prescribe, which shall be paid out of the city treasury; and the county com- missioners shall allow him such further compensation as they deem proper, not exceeding fifteen hundred dollars per annum, which shall be paid out of the county treasury; but in cities of the first grade of the second class the prosecuting attorney shall receive an annual salary of fifteen hundred dollars pay- able monthly out of the city treasury. [90 v. 169 ; 88 v. 68 ; QQ v. 179, § 192; (S. & C. 1536).] (1) The sections under headings omitted here, are incorporated in § "c" and "d" were contained in sub- 137 of the Code, under which sec- division 3, Chap. I, Div. 5, Title tion they may be found. XII R. S. §§ 1813 and 1815 R. S. police courts. 579 (d) Police Judicial Districts in Cleveland. Sec. 1815 — 1 R. S. [Police judicial districts and police jus- tices (Cleveland) ; jurisdiction, etc.] In cities of the first class and second grade, the city council shall have the power to des- ignate as many police judicial districts as may from time to time be necessary, and shall provide for the election, term of office and compensation and territorial jurisdiction of a police justice for each police judicial district, but nothing in this act shall prevent police judges from having jurisdiction in any and all cases in any police judicial district as herein provided for. The city council shall provide a place where each police justice shall hold his court, prescribe the procedure therein, appoint a clerk for each district, fix his compensation, term of office and his duties, subject to the provisions of this act. These courts shall have official seals, to be furnished by the city, on which shall be engraved the state arms and the words " Police judicial district ~No. — of Ohio." [89 v. 306.] Sec. 1815 — 2 R. S. [Regulations governing courts.] Said po- lice court justices shall hold their courts under and subject to such regulations as may be prescribed by the citv council. [89 v. 306.] Sec. 1815 — 3R. S. [Jurisdiction and powers of police justices; sessions; process.] Said police justices shall have final juris- diction in all cases of violation of any ordinance of the city in which they are located, except in cases where the accused is entitled to a jury trial, and demand the same, or in cases where the validity of an ordinance is involved ; in which cases, the police justice shall forthwith certify the case with all the papers and certified copies of the docket entries to the police court. The said police justices shall have power to issue pro- cesses and preserve order and punish for contempt, grant mo- tion for new trials, motions in arrest of judgment, suspend exe- cutions of sentence upon notice of intention to apply for leave to file petition in error, and shall exercise all other powers nec- essary in the exercise of their jurisdiction. Said court shall always be open for business, and the processes issued by said courts shall be served by the police force of said cities. [89 v. 306.] Sec. 1815 — 4R. S. [Rules of practice and procedure.] Said police justices shall have power to make such rules of practice and procedure as are necessary to the exercise of their juris- diction and allow the accused a full opportunity of being heard. [89 v. 306.] 580 THE OHIO 'MUNICIPAL CODE. Sec. 1815 — 5 R. S. [Powers, duties and bond of clerks.] The clerks of said police districts shall have power to administer oaths, admit to bail, qualify sureties on bail bonds, and shall keep a full record of the proceedings of said courts; shall collect all fines and penalties and pay the same into the city treasury; and shall give a good and sufficient bond for the faithful performance of the duties in such sum as the city council shall determine. [89 v. 306.] Sec. 1815 — 6 R. S. [Compensation of police justices.] The compensation of a police justice shall not be less than $1,500 per annum, payable quarterly from the city treasury. [89 v. 306.] Sec. 1815 — 7 R. S. [Election, appointment, etc., of justices.] Said police justices shall be elected on the first municipal elec- tion held after the passage of this act; and the mayor of any city of the second grade and first class may appoint some suit- able person or persons for each police judicial district in their respective cities, who shall hold the position until said election, with the full powers and subject to all the provisions of this act; provided, the city council shall make the divisions as pro- vided in section 1 [§(1815 — 1)] of this act; and if a vacancy should occur or any police justice be unable from absence, sickness or other cause to hold court, then the mayor may des- ignate some suitable person, who shall hold court during said absence or inability of the police justice, or until the vacancy is filled by election. [89 v. 306.] Sec. 1815— 8 R. S. [Power of clerk to adjourn court.] The clerk of each police judicial district shall have power to ad- journ court in the absence of the justice. [89 v. 306.] 2. POLICE POWER OF MAYOR, POLICE JUSTICE, ETC. 1 (a) Iisr Cities Except of the Fibst Class. 2 Sec. 1816 R. S. [Final jurisdiction in city cases.] In cities, other than those which have a police court, the mayor shall have, final jurisdiction to hear and determine any prosecution for the violation of an ordinance of the corporation, unless im- prisonment is prescribed as part of the punishment. [66 v. 169, § 114; 69 v. 192, § 117.] (1) Sections under this heading (2) This was subdivision 1 of were contained in Chap. 2, Div. 5, Chap. 5. Title XII R. S. Sec. 1817 R. S. [Final jurisdiction of certain state cases.] He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the POLICE COURTS. 581 constitution, entitled to a trial by jury, 1 and his jurisdiction in such cases shall be co-extensive with the county. [66 v. 169, §114; 69 v. 192, §117.] ( 1 ) No jury trial, when.— In State v. Borham, 72 0. S. 358. See cases where fine is the punishment, also Dominick v. State, 27 C. C. and imprisonment is provided only 305; 6 C. C. (N. S.) 192. when fine is not paid, defendant has Change of venue in misde-. no right to jury trial, and mayor meanor prosecutions before mayor may try the case. Ward v. State, not authorized. Fike v. State, 25 5 N. P. 8 1 ; see also Inwood v. State, C. C. 554. And see Kappes v. State, 42 0. S. 186; Peters v. State, 8 N. 25 C. C. 723; 4 C. C. (N. S.) 14. P. 595; 67 O. S. 494. Review on weight of evidence. Entering a plea of guilty is a — A conviction for a misdemeanor waiver of jury trial. Hillier v. before a mayor, over which he has State, 26 C. C. 777; 5 C. C. (N. S.) final jurisdiction, may be reviewed 245. by a proceeding in error on the Final jurisdiction under the cir- ground that the conviction is against cumstances mentioned is clearly the weight of the evidence. Koch v. given in this section, and it must be State, 73 0. S. 131. See Fike v. construed as an exception to the State, 25 C. C. 554; 4 C. C. (N. S.) general provisions of § 7146 R. S. 81. Sec. 1817a U.S. [Clerk of mayor's court not to be concerned in prosecution or defense.] Neither the clerk of the mayor's court, nor his deputy, shall be concerned as counsel or agent in the prosecution or defense of any case that is or has been, before the court of which such person is clerk or deputy. [1881, March 11: 78 v. 50.] Sec. 1813 It. S. [Jurisdiction where jury is waived.] He shall have such jurisdiction in the cases mentioned in the last two sections, notwithstanding the right to a jury, if before the commencement of the trial, the accused waive a jury trial. 1 [66 v. 169, § 114; 69 v. 192, § 117.] (1) When record silent as to is silent as to waiver, no jurisdic- waiver. — When defendant is en- tion is shown. Ward v. State, 5 N. titled to jury trial, and the record P. 81. Sec. 1819 R. S. [Certain city cases must be tried by jury.] If the charge is the violation of an ordinance in a matter with re- spect to which imprisonment may be a part of the punishment, and the accused does not waive a jury, the mayor shall, never- theless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as misdemeanors are tried in the court of common pleas on indictment. 1 [66 V. 169, § 114; 69 v. 192, § 117.] (1) Cited in Morgan v. Nolte, 37 O. S. 23. Sec. 1820 R. S. [Certain state cases may be tried by jury.j If the charge is the commission of a misdemeanor, prosecuted in the name of the state, and the accused, being entitled to a jury, 582 THE OHIO MUNICIPAL CODE. does not waive the right, the mayor may, nevertheless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as such cases are tried in the court of common pleas on the indictment. [6Q v. 169, § 114; 69 v. 192, § 117.] Sec. 1821 R. S. [In certain state cases accused may be recog- nized, etc.] The mayor may, however, decline to have such state case tried before him by a jury, if in his opinion the public interest will thereby be promoted, and, having entered that fact on his minutes, inquire into the complaint, discharge the accused, or recognize him to the court of common pleas or probate court, as the case may be, or commit him in de- fault of bail. 1 |_66 v. 169, § 114; 69 v. 192, § 117.] (1) Money in lieu of bail. — ury, it cannot be recovered back. Where a person arrested for violat- Columbus v. Reinhard, 1 C. C. 289. ing a penal statute, makes an Mayor has discretion to refuse a agreement with mayor to deposit jury trial and hold the accused to money in lieu of bail, and said answer to a higher court. Hillier v. money is deposited into the treas- State, 26 C. C. 777; 5 C. C. (N. S.) 245. Sec. 1822 E. S. [Jurisdiction in felonies, etc.] In felonies, and other criminal proceedings not herein provided for, such mayor shall have jurisdiction and power, throughout the county, concurrent with justices of the peace. 1 [QQ v. 169, § 114; 69 v. 192, § 117.] (1) Criminal jurisdiction of jus- tices of the peace is provided in § 610 R. S. (b) In Villages. 1 Sec. 1823 R. S. [Final jurisdiction under ordinances.] In villages, the mayor shall have final jurisdiction to hear and determine any prosecution for the violation of an ordinance of the corporation, unless imprisonment is prescribed as part of the punishment. 2 \_6Q v. 169, § 114; 69 v. 192, § 117.] ( 1 ) This was Subd. 2 in Chap. 2, cused of violating an ordinance, who Div. 5, Title XII R. S. § 1843 after giving bail to appear at a cer- omitted here is incorporated in § tain time fails to appear at the 200 of the Code, page 451 hour fixed for trial. Truman v. (2) In absence of accused.— Walton, 59 0. S. 517. The mayor cannot try a person ac- Sec. 1824 R. S. [Jurisdiction in certain state offenses.] He shall have final jurisdiction to hear and determine any prosecu- tion for a misdemeanor, unless the accused is by the constitution entitled to a trial by jury; and his jurisdiction in such cases POLICE COURTS. 583 shall be co-extensive with the county. 1 \_Q6 v. 169, § 114; «»«.> v. 192, § 117.] (1) Tribunals of limited juris* Affidavit of prejudice not al- diction must at their peril keep lowed. § 550 R. S. has no applica- within their jurisdiction and are tion to mayors. Carey v. State, 70 answerable to anyone whose rights O. S. 121 ; nor has § 6529 R. S. are invaded; and, honesty of pur- Kappes v. State, 5 C. C. (N. S.) 183. pose, while it may mitigate dam- Information not necessary to be ages, cannot justify a usurpation of filed. Misdemeanor cases may be in- power. Truman v. Walton, 59 0. S. stituted upon filing affidavit. Ku- 517; Truesdell v. Combs, 33 0. S. bach v. State, 2 C. C. (IS. S.) 133; 186. 25 C. C. 489. Constitutionality. — This section Jury not necessary where fine giving jurisdiction coextensive with only is punishment. Kubach v. the county is constitutional. Carey State, 2 C. C. (N. S.) 133; 25 C. C. v. State, 70 0. S. 121; Kubach v. 489; Harlow v. State, 1 N. P. (N. State, 2 C. C. (N. S.) 133, 25 C. C. S.) 323; Wells v. State, 1 N. P. 489. ■ .(N. S.) 309. Sec. 1825 R. S. [Jurisdiction when jury is waived.] He shall have the jurisdiction in the cases mentioned in the last two sec- tions, notwithstanding the right to a jury, if before the com- mencement of the trial, a waiver in writing, subscribed by the accused, is filed in the case. [66 v. 169, § 114; 69 v." 192, § 117.] Sec. 1826 R. S. [When violation of ordinance tried by jury.] He may summon a jury, and try the accused, in any prosecu- tion for the violation of an ordinance, where imprisonment is a part of the prescribed punishment, and the accused does not waive a jury; and in such case, judgment shall be rendered in accordance with the verdict, unless a new trial, for sufficient cause, is granted. [66 v. 169, § 114; 69 v. 192, § 117.] Sec. 1827 R. S. [When he may recognize, etc., for violation of ordinance.] He may decline to permit the trial, mentioned in the last section, if in his opinion the public interest will be thereby promoted, and having entered that fact on his docket, proceed to inquire into the complaint, and discharge the ac- cused, recognize 1 him to the court of common pleas, 2 or com- mit him in default of bail; and in such case the court of common pleas shall have jurisdiction of the offense. ^()Q v. 169, § 114; 69 v. 192, § 117.] (1) When mayor may recog= Pleas Court. — When upon viola- nize. — On disagreement by jury, tion of a village ordinance, a mayor the mayor may recognize accused to certifies the case to the Court of appear before Common Pleas Court, Common Pleas, the proper course is instead of retrying him. Earhart to proceed to trial upon the affida- v. Village of Lebanon, 5 C. C. 578. vit filed before the mayor. Finnical (2) Procedure in Common v. Village of Cadiz, 61 0. S. 494. Sec. 1828 R. S. [When misdemeanor may be tried by jury.] In misdemeanors prosecuted in the name of the state he may 584 THE OHIO MUNICIPAL CODE. summon a jury and try the case notwithstanding the accused has a right to a jury which he has not waived, if a request for such trial subscribed by the accused is filed in the case, before the commencement of the trial; provided, that in villages sit- uated in counties containing a city of the first grade of the first class such request by the accused shall not be necessary. And in such case the trial shall be had on the affidavit in the same manner and with like effect as a trial is Had on an in- dictment for such offense in the court of common pleas. [89 v. 362; 6Q v. 169, § 114; 69 v. 192, § 117.] Sec. 1829 R. S. ] When he may recognize in such cases.] If in the opinion of the mayor the public interest will thereby be promoted, he may decline to permit such trial, and having en- tered that fact on his docket, proceed to inquire into the com- plaint, and discharge the accused, recognize him to the court of common pleas or probate court, as the case may be, or commit him in default of bail. [QQ v. 169, § 114; 69 v. 192, § 117.] Sec. 1830 R. S. [Jurisdiction in felonies, etc.] In felonies, and other criminal proceedings not herein provided for, such mayor shall have jurisdiction and power throughout the county, con- current with justices of the peace. 1 \_6Q v. 169, § 114; 69 v. 192, § 117.] ( 1 ) Jurisdiction. — In felonies to the Court of Common Pleas or the mayor has only the powers of Probate Court. Truman v. Walton, an examining court and can only 59 O. S. 517, 526. discharge or recognize the accused Sec. 1830 — 1 R. S. [Denning boundary line between villages adjoining each other on opposite sides of railroad, and their sep- arate jurisdiction.] Whenever two villages adjoin each other on opposite sides of the line of any railroad in any county containing a city of the first grade of the first class, the "boun- dary line between such villages, except where the same had been established previous to the passage of the act hereby re- pealed, shall be along the middle of the right of way of said railroad. And the boundary lines of villages affected by said act passed March 31st, 1881, are hereby changed and re-es- tablished on the lines established previous to the passage of said act. [88 v. 242 ; 78 v. 93.] Sec. 1830 — 2 R. S. [Jurisdiction of municipality over right of way of railroad adjoining or forming part of boundary line.] Whenever the line of a railroad adjoins or forms a part of the boundary line of a municipal corporation, such municipal corporation shall have jurisdiction over the entire width of the right of way of the line of railroad, so adjoining or forming a part of the boundary line of such municipal corporation, for POLICE COURTS. 585 the punishment of the violation of the ordinances of such mu- nicipal corporation. [92 v. 428.] Sec. 1831 R. S. [Appointment of police justice ; powers and duties.] In villages the council may, upon the recommenda- tion of the mayor, by an affirmative vote of two-thirds of all the members elected, appoint some justice of the peace, resident of the corporation, or if there be no such justice of the peace, other suitable person resident of the corporation or a justice of the peace for the township in which such corporation is situate, police justice, who shall, during the term of office of such mayor, unless removed on suggestion of such mayor by a two- thirds vote of all the members of the council, have concurrent jurisdiction of all prosecutions for violations of ordinances of the corporation with full power to hear and determine the same, and shall have the same powers, perform the same duties, and be subject to the same responsibilities in all such cases as are prescribed in the Revised Statutes of Ohio, to be performed by and are conferred upon the mayors of such corporations. Any person so appointed police justice, other than a justice of the peace, shall take an oath of office and give bond in such sum for the faithful performance of his duties as the council may require. [98 v. 159; 95 v. 353; 93 v. 12; 89 v. 139; 69 v. 192.] Sec. 1832 R. S. [Manner of signing process ; his seal, powers, etc.] Such justice of the peace so appointed shall be styled 11 Police justice," in which style he shall sign all process and records during the time he shall serve ; he shall have a seal, to be provided by the council, with the name of the state in the center, and the words, "Police justice of the village of f " around the margin ; and all the provisions of this chapter appli- cable to the mavor of a village shall apply to such police justice. [69 v. 192, § 117.] (c) In Hamlets. 1 Sec. 1833 R. S. [Power of president of board and justice of the peace.] A justice of the peace of a township in which a hamlet, or any part of it, may be situated, or the president of the board of trustees of such hamlet, 2 shall have juris- diction in any prosecution for the violation of any ordinance of such corporation, to hear and finally determine the same, and impose the prescribed punishment, unless imprisonment is a part of the prescribed punishment. [73 v. 170, § 56.] (1) This was subdivision 3, chap. (2) See note "Status of Ham- 2, div. 5, Title XII., R. S. lets " under § 1 of the Code. Sec. 1834 R. S. [When he may finally hear and determine.] If imprisonment is a part of the prescribed punishment for such offense, the justice or president shall have jurisdiction to 586 THE OHIO MUNICIPAL CODE. hear and determine the case, and inflict the prescribed punish- ment, if the accused before the commencement of the trial, subscribes and files in the case a waiver of a jury. [73 v. 170, §56.] Sec. 1835 It. S. [When he shall recognize, etc.] If in the cases mentioned in the last section, the accused does not sub- scribe such waiver, the justice or president shall inquire into the complaint, and discharge the accused, or recognize him to appear before the court of common pleas, or commit him ia default of bail, and in such case the court of common pleas shall have jurisdiction of the offense, and shall direct the pros- ecuting attorney to file an information against the accused, on which he shall be tried. [73 v. 170, § 56.] Sec. 1836 R. S. [Disposition of fines.] Fines collected by any officer for the violation of an ordinance of a hamlet, shall be by him paid over to the clerk of the corporation, to be ap- plied to corporation purposes. [73 v. 170, § 56.] (d) Further Provisions Concerning the Powers of the Mayor and Other Officers in Cities and Villages in Matters of a Criminal or Police Nature. 1 Sec. 1837 R. S. [Further as to powers of mayors in cities and villages in criminal matters.] The mayor shall have, within the corporate limits, all the powers conferred upon sheriffs to suppress disorder and keep the peace; and he shall award and issue all writs and process that may be necessary to en- force the administration of justice throughout the corporation, and for the lawful exercise of his jurisdiction, according to the usages and principles of law; he shall subscribe his name and affix his official seal to all writs, process, transcripts, and other official papers; and, in cities having no police judge, in the absence or during the disability of the mayor, he may designate a justice of the peace to perform his duties in criminal matters, which justice shall, during the time, have the same power and authority as the mayor. 2 \_6Q v. 169, § 118.] (1) This was subdivision 4, chap. is not liable in an action, for false 2, div. 5, Title XII., R. S. § 1843 imprisonment. Wheeler v. Gavin, 5 R. S. omitted here, is incorporated C. C. 246. in § 200 of the Code, page 451. But he is liable when he does not (2) Liability of mayor. — When keep within his prescribed jurisdic- a person is arrested on a warrant tion. Truesdell v. Combs, 33 O. S. for violating an ordinance sub- 186; Truman v. Walton, 59 O. S. aequently held invalid, the mayor 517. POLICE COURTS. 587 Sec. 1838 R. S. [Proclamation as to sale of liquors on election day.] The mayor shall, three days previous to and on the day of any election, issue a proclamation to the public, setting forth therein the substance of the enactments to prohibit the sale of intoxicating liquors on that day ; and it shall be' the duty of the mayor to take proper measures for the enforcement of such enactments. [61 v. 24, § 1 ; S. & S. 344.1 Sec. 1839 U.S. [Ordinances as to juries; qualification of jur- rors, etc. ] The council of any city or village shall have power to prescribe by ordinance for summoning and impaneling juries under this division; and the jurors so summoned shall have the qualifications of jurors in the court of common pleas, and may be impaneled to try any case which, by the constitu- tion, or the provisions of this division, is triable by jury. \_QQ v. 180, § 194.] Sec. 1840 R. S. [Talesmen.] When any juror so summoned, upon challenge or inquiry, is found incompetent, he may be dismissed, and a talesman called by the marshal, or other officer attending the trial, and the panel shall be filled in the same manner as panels are filled in the court of common pleas. [66 v. 180, § 195.] Sec. 1841 R. S. [Penalties, etc., of jurors; fees of jurors and witnesses.] Jurors so summoned shall perform like duties, and be subject to like rules and penalties, as jurors before justices of the peace; and witnesses and jurors shall, except as herein otherwise provided, receive the same compensation as witnesses before justices of the peace. [66 v. 180, § 196.] Sec. 1842 R. S. [How fees paid.] In cases for the viola- tion of ordinances, the fees of witnesses and jurors shall be paid, on the certificate of the officer presiding at the trial, out of the corporation treasury, and in state cases on like certificate out of the county treasury. 1 [66 v. 180, § 196.] (1) § 1843 R. S., omitted here, is re-enacted in § 200 of the Code, page 451. Sec. 1844 R. S. [Contempt; rules.] The officer presiding at any such trial shall have like power to punish contempts, and compel the attendance of jurors and witnesses, and to establish, rules for the examination and trial of all cases brought before him, as is or may be conferred on justices of the peace. [66 v. 180, § 198.] Sec*. 1845 R. S. [Supervision of prison, etc.] The mayor, and in his absence, the president of the council, shall have power to grant to magistrates of adjoining or contiguous townships 588 THE OHIO MUNICIPAL CODE. the temporary use of the corporation prison, station or watch- houses, to confine criminals, or other persons dangerous to the peace of the community, until they can be safely removed therefrom to the county jail, or other place of security. [66 v. 170, § 120.] Sec. 1846 It. S. [When offender may be confined until fine and costs paid.] When a fine is the whole or part of a sentence, the court, mayor, or president of the board of trustees, may order that the person sentenced shall remain confined in the county jail, work house, or prison, until the fine and costs be paid, or secured to be paid, or the offender be otherwise legally dis- charged. 1 [66 v. 314, § 180; 60 v. 66, § 1 ; S. & S. 610.] (1) When mayor not entitled Legislature has by law authorized to costs. — When a person works execution against the person in a out his fine and costs, at a city criminal case only where fine is im- Workhouse, the city is not liable to posed as part of the penalty, except the mayor for his costs. Gibson v. under § 6801 R. S. Luetzler v. Zanesville, 31 O. S. 184. Perry, 18 C. C. 826. Execution against person. — (e) Jurisdiction in Cases of Food Adulteration, Etc. Sec. 3718a R. S. [Jurisdiction of justices, police judges and mayors in prosecutions for adulteration of food, etc., and for cruel- ty to animals or children.] Any justice of the peace, police judge, or mayor of any city or village, shall each have jurisdic- tion within his county, 1 in all cases of violation of the laws to prevent the adulteration of food and drink, the adulteration or deception in the sale of dairy products, or any other foods, and drugs and medicines, and any violation of the law for the pre- vention of cruelty to animals or children, or under § 3140-2, 4364-24, 4364-25, 6984, 6984a of the Eevised Statutes of Ohio. [Judicial proceedings in such cases before justices.] In any such prosecution where imprisonment may be a part of the pun- ishment> if a trial by jury be not waived, 2 the said justice of the peace shall, not less than three nor more than five days be- fore the time fixed for trial, certify to the clerk of the court of common pleas of his county that such prosecution is pending before him. Thereupon said clerk shall proceed to draw, in the presence of representatives of both parties, from the jury wheel or box containing the names of persons selected to serve as petit jurors in the court of common pleas in said county, twenty bal- lots or names, which shall be drawn and counted in the .same manner as for jurors in said court of common pleas. Said clerk shall forthwith certify the names so drawn to said justice of the POLICE COURTS. 589 peace, who, upon receipt thereof, shall issue to any constable of the county a venire containing such names to serve as jurors to try such case and make due return thereof. The jurors shall be subject to the same challenges as jurors are subject to in crim- inal cases, except capital cases, in the court of common pleas. If the venire of twentv names be exhausted without obtaining the required number to fill the panel, the justice shall fill the panel with talesmen in the manner provided for criminal cases in said court of common pleas. [Costs.] In all cases prosecuted under the provisions of this act, no costs shall be required to be advanced or be secured by i*ny person or persons authorized under the law to prosecute such cast ... , and if the defendant be acquitted or discharged from custody, b nolle or otherwise, or if he be convicted and com- mitted in deiault of paying fine and costs, all costs of such case shall be certified by said justice of the peace under oath to the county auditor, who, after correcting any errors in the same, shall issue a warrant on the county treasury, in favor of the person or persons to whom such costs and fees shall be paid. [Attorney in prosecuting for cruelty to animals or children.] And in cases brought for any violation of law for the prevention of cruelty to animals or children, or under § 3140-2, 6984, 6984a or (7017-3) Revised Statutes of Ohio, any humane so- ciety or their agents may employ an attorney to prosecute the same, who shall be paid for his services out of the county treas- ury in such sum as any judge of the court of common pleas or probate judge, within said county, or the county commissioner may approve as just and reasonable. [Jurisdiction and power of constable in such cases; fees.] In pursuing or arresting any defendant and in subpoenaing the wit- nesses, the jurisdiction and powers of the constable or other court officer acting in such capacity, in all such cases, shall be the same as that of the sheriff of the county in criminal cases in the common pleas court, and he shall receive the same fees therefor as are allowed said sheriff. [Fees of jurors and witnesses.] Jurors in all such cases and witnesses subpoenaed in all such cases shall be entitled to like mileage and fees, as are allowed in criminal cases in the court of common pleas, and in all other respects, in so far as the same may be applicable, the procedure provided for in criminal cases in the common pleas court not otherwise inconsistent herewith, shall be followed. [Affidavit; what to contain.] And provided further, that where, in any such laws, after the first offense, a different pun- ishment is provided for subsequent offenses, the information or 590 THE OHIO MUNICIPAL CODE. affidavit, in order to avail the state of the benefit of such addi- tional punishment, shall so charge that it is the second or subse- quent offense, and unless such special charge is so made, the punishment shall in all cases be as of the first offense. All costs and moneys which are to be paid by the county treasurer as herein provided, shall be paid out of the general revenue fund of said county. [New trial.] And in any case prosecuted under the pro visions of this section, a new trial, after a verdict of conviction, may be granted, for any of the reasons enumerated in section seventy-three hundred and fifty of the Revised Statutes, upon the written application of the defendant, filed within three days after the rendition of the verdict; provided that the causes enumerated in subdivision two, three and five of said section must be sustained by affidavits or other evidence showing their truth and may be controverted by like evidence. [May 10, 1902, 95 v. 517; 94 v. 92; 91 v. 412; 90 v. 335; 85 v. 144; 81 v. 181.] ( 1 ) Jurisdiction. — Under this ( 2 ) Jury trial. — Unless affidavit section prior to the last amend- charges the particular case to be a ment see State v. Peters, 67 O. S. second offense, imprisonment cannot 494. be imposed and accused may be tried Jurisdiction given to justices by before mayor or justice, without a this section does not give them ju- jury. State ex rel. v. Smith, 69 O. risdiction of violations of § 6957 S. 196; see Peters v. State, 8 N. P. E. S. Marvin v. State, 5 N. P. 209. 595 ; 67 O. S. 494. Mandamus will lie to compel ex- Waiver of jury need not be in ercise of jurisdiction. State ex rel. writing; Martindale v. State, 2 v. Smith," 69 O. S. 196. C. C. 2. 3. FIXES AXD TMPKISONMENT. 1 Sec. 1864 It. S. [How fines, etc., recovered.] Fines, penalties, and forfeitures may, in all cases, and in addition to any other mode provided, be recovered by suit or action before any justice of the peace, or other court of competent jurisdiction, in the name of the proper municipal corporation, and for its use ; and in any suit or action where pleading is necessary, it shall be sufficient if the petition set forth generally the amount claimed to be due in respect of the violation of the by-law or ordinance, referring to its title, and the date of its adoption or passage, and showing, as near as may be practicable, the true time of the alleged violation. [66 v. 167, § 108 ; (S. & C. 1507).] (1) Sections under this heading and 1863 of that chapter are re- were contained in chap. 4, div. 5, pealed. The rest are contained Title XII., R. S. §§ 1861, 1862 herein. Sec. 1865 It. S. [Suits must be commenced within one year.] Suits or prosecutions for the recovery of fines, penalties, or for- POLICE COURTS. 591 feitures, or for the commission of any offense made punishable by any by-law or ordinance of any municipal corporation, shall be commenced within one year after the violation of the ordinance, or commission of the offense, and not afterward. [66 v. 167, § 109; (S. & C. 1507).] Sec. 1866 R. S. [Party to be committed in default of pay- ment.] When a fine is imposed for the violation of an ordinance of the corporation, and the same is not paid, the party convicted shall, by order of the mayor, or other proper authority, or on process issued for the purpose, be committed until such fine and the costs of prosecution are paid, or the party is discharged by due process of law. 1 [66 v. 168, § 110; (S."& C. 1553).] ( 1 ) Constitutional. — Where act paid, unless the statute so provides, authorized the arrest on execution Lougee v. State, 11 O. 68. of person against whom a fine has Under a statute such as this, it been adjudged, imprisonment until was held a fine might be collected fine is paid is not unconstitutional. either by commitment of person or In re Beall, 26 O. S. 195. execution against his chattels. But a court cannot impose a fine Huddleson v. Ruffin, 6 O. S. 604. and order commitment until fine is Sec. 1867 R. S. [Imprisonment, where to be made.] Impris- onment under the ordinances of a municipal corporation shall be in the work-house or other jail of the corporation, if the corpora- tion is provided with such work-house or a jail; and any cor- poration not provided with a work-house, or other jail, shall be allowed, for the purpose of imprisonment, the use of the jail of the county, at the expense of the corporation, until such, corporation is provided with a prison, house of correction, or work-house; and all persons so imprisoned in the county jail shall be under the charge of the sheriff of the county, who shall receive and hold such persons in such manner as may be pre- scribed by the ordinances of the corporation, until discharged by due course of law. [66 /. 168, § 111 ; (S. & C. 1554).] Sec. 1868 R. S. [Imprisonment in county jail may be prohib- ited.] The county commissioners may, at their discretion, on giving ninety days' written notice to the council of any corpora- tion, prohibit the use of the county jail for the purpose au- thorized in this chapter. [66 v. 168, § 112; (S. & C. 1554).] Sec. 1869 R. S. [Limit of such prohibition.] If, within ninety days after such notice is given, the council of such cor- poration efficiently provide, by the passage of appropriate or- dinances, and the making of the necessary contracts for the immediate erection of a prison, work-house, or house of cor- rection, the corporation shall continue, notwithstanding the 592 THE OHIO MUNICIPAL CODE. notice and prohibition provided for in the preceding section, to have the use of the county jail for the purpose of imprison- ment, until such prison, workhouse, or house of correction is erected and ready for use. [66 v. 168, § 113; (S. & C. 1554).] 4. BILLS OF EXCEPTIONS. Sec. 6565 R. S. [Bills of exceptions on trial before justice, mayor or police judge; how exceptions taken; signing, filing and transmission to clerk of courts.] In all cases before a jus- tice of the peace, mayor or police judge, whether tried by jury or the justice, mayor or police judge, either party shall have the right to except to the decisions of the justice, mayor or police judge, upon any matters of law arising in the case. The party objecting to the decision must except at the time the de- cision is made and time shall be given to reduce the exception to writing, but not more than ten days nor lees than five days beyond the date of overruling the motion for a new trial, if such motion be made, or from the date on which the decision of the justice, mayor or police judge, is rendered ; when the decision objected to is entered on the record and the grounds of the objection appear in the entry, the exception may be taken by the party causing same to be noted at the end of the entry, that he excepts, but when the decision is not entered on the record or the grounds of the objection do not sufficiently appear in the entry, or exception is to the decision of the court on a motion to direct a nonsuit, or to arrest the testimony from the 'jury, or for a new trial, because the verdict, or if a jury is waived the finding of the court is against the law and the evi- dence, or on the admission or rejection of evidence, the party excepting must reduce this exception to writing and present the same to the trial justice, mayor or police judge., or his successor, within the time herein limited, and if the same is correct he shall sign said bill of exceptions and file the same with the papers in the case, and note such signing and filing in his docket, and transmit the same with the transcript of his docket and original papers, within ten days of the date of such signing, to the clerk of the court of common pleas and by him filed and entered upon his trial docket as in other cases. The party demanding such transcript shall, if required, pay the fees of the justice, mayor or police judge, therefor in ad- vance. 1 [April 10, 1902; 95 v. 121; 93 v. 104; 90 v. 358; 80 v. 79, 81; Rev. Stat. 1880; 66 v. 7, § 93; (S. & C. 786).] Review of judgment of mayor see Whitman v. State, 7 C. C. (N. upon issue raised by plea in bar, S.) 334. BOARD OF HEALTH. 593 III BOARD OF HEALTH. 1 Sec. 2117 R. S. [Township board of health; duties and powers; organization.] In each township the trustees of the township shall constitute a board of health, which shall be for the town- ship outside the limits of any city or village, and such boards shall have the same duties and powers as are herein imposed or granted to boards of health in cities and villages. They shall annually elect one of their number president, and the township clerk shall be clerk of the board of health ; they shall appoint a health officer and may appoint as many sanitary officers as they deem necessary to carry out the provisions of this act, and define their duties and fix their compensation, and such appointees shall serve during the pleasure of the board. Township boards of health shall meet annually and at such other times as they may deem necessary. [1902, May 7 : 95 v. 424.] (1) Board of health statutes. Board of Health under new ■ — For history of sections and ex- Code, in cities and villages ; see planations of those carried in Parts § 187 et seq. of the Code, page 417. I. and II., see note 1 to § 187 of the Code, page 418. Sec. 2122 — 1 R. S. [Garbage crematory in Columbus.] The boards of health of cities of the first grade of the second class be and they are hereby authorized to erect and maintain gar- bage crematories or furnaces and to contract for a period not exceeding ten years for the removal and disposition of garbage, dead animals and animal offal, and the councils of such cities, in addition to taxation authorized to be levied for other pur- poses, be and they are hereby authorized to levy upon each dollar of the taxable property of said cities, as the same is listed for taxation upon the grand duplicate, two-fifths of a mill a year for one year, in order to raise money to build, equip and maintain a garbage crematory or furnace. Said tax shall be collected as are other taxes, and money arising therefrom shall constitute a separate fund to be called the " garbage furnace 594 THE OHIO MUNICIPAL CODE. fund," and shall be applied solely to the purposes for which it is raised. [89 v. 310.] Sec. 2131a. R. S. [Appointment of sanitary police in Cleveland; specials; powers, duties and salaries; removal of police now in office.] In all cities of the second grade of the first class, the board of health shall have power to appoint as many persons for sanitary duty as in its opinion the public health and sanitary condition of the corporation may require, not exceeding one for each ten thousand inhabitants, as shown by the last police census in such cities; but the board shall have the power in cases of emergency, to appoint as many special sanitary police as it may think proper, and such appointees as special police shall serve during the pleasure of the board ; and all such per- sons shall have general police powers, be known as sanitary police, shall be electors of such cities and perform such duties as the board of health may direct; and for such services shall receive a salary, fixed by the board, of not less than seven hun- dred and eighty dollars per annum. Provided that the sanitary police now in office shall not be removed except in the manner provided for by section two thousand one hundred and thirty- two (a). [1888, March 6: 85 v. 60; 83 v. 115.] Sec. 2132a U.S. [Removals and suspensions generally; rules and regulations.] In all cities of the second grade of the first class, the board of health may, for cause to be assigned, on a public hearing, on due notice, and by the vote of a majority of all members elected, according to rules promulgated by it, remove or suspend from office, or for any definite time deprive from pay, any member of such sanitary police force or any employe of such board ; and no employe of such board of health shall' be dismissed for other reasons ; it may make rules and regulations for the government and discipline of the employes, and cause the same to be published. [1888, March 6: 85 v. 60;' 83 v. 115.] Sec. 2134 — 1 R. S. [Regulation of sale of ice for domestic pur- poses.] No ice shall be cut for the purpose of being sold or used for domestic purposes in any city or village of this state from any pond, lake, creek or river within the limits of any such city or village, unless a permit therefor shall first be obtained from the board of health of such city or village, and no person or persons shall sell or deliver any ice in any city or village in this state for domestic purposes without first obtain- ing a permit therefor from the board of health of such city or village, and it shall be lawful for any such board of health to refuse a permit and to revoke any granted by them, as afore* BOARD OF HEALTH. 595 -said, when in their judgment the use of any ice cut or sold, or to be cut or sold, for domestic purposes, under the same is or would be detrimental to the public health. [1902, April 29: 95 v. 330; 94 v. 370.] Sec. 2134 — 2 R. S. [Board of health may prohibit sale of ice for domestic purposes.] The board of health of any city or vil- lage may prohibit the sale or use of any ice for domestic purposes within the limits of such city or village when, in their judgment the same is unfit for use, and the use of the same would be detrimental to the public health and the said board may prohibit and through its officers stop, detain and prevent the bringing of any such ice for the purpose of sale or use for domestic purposes into the limits of such city or village, and also in the same manner stop, detain and prevent the sale of any such ice for domestic purposes within the limits of such city or village when, in their judgment the same is unfit for use, and the use of the same would be detrimental to the public health, and the said board may prohibit and through its officers stop, detain and prevent the bringing of any such ice for the purpose of sale or use for domestic purposes into the limits of any such city or village, and also in the same manner stop, detain and prevent the sale of any such ice for domestic pur- poses found within the limits of such city or village. [1902 April 29: 95 v. 330; 94 v. 370.] Sec. 2134 — 3 R. S. [Penalty.] Whoever violates any provi- sions of this act, or any order or regulation of the board of health made in pursuance thereof, shall be fined in any sum not exceeding one hundred dollars. [19Q2, April 29: 95 v. 330 ; 94 v. 371.] Sec. 2141 — 1 R. S. [Authorizing the abolition of boards in cer- tain villages.] In all incorporated villages of this state, having at the last federal census, not more than 1,781 inhabitants located in any county containing a city of the first class, second grade, the council may upon appointment of a suitable com- mittee from its own members to look after the sanitary affairs of the said village, by resolution concurred in by at least three-fourths of all the members elected to such council, de- clare the board of health of said village no longer needed and abolish the same; provided that nothing herein shall, be so construed as to prevent the appointment of such board of health at any time hereafter by the said council whenever in their judg- ment the best interests of the municipality demand [s] it. [87 v. 376.] 596 THE OHIO MUNICIPAL CODE. Sec. 2142a R. S. [Definition of " sanitary plant."] The expres- sion " sanitary plant " as herein used, shall be held to mean a structure with the necessary land and all the necessary fixtures and appliances and appurtenances required for the treatment and purification and disposal, in a sanitary manner, of either or both the liquid or solid wastes of the municipality. [Plans and estimates; condemnation of lands for sanitary plant.] Upon the recommendation of the board of health of any city, village or hamlet, or if in any municipality, the powers usually vested in a board of health, have been vested in any other officer or board, then upon the recommendation of such officer or board, the city council, legislative body or other governing board, of any municipality, is hereby authorized to cause plans and estimates to be prepared and to acquire by condemnation or otherwise such land or lands within or without its corporate limits, as may be necessary to provide for the proper disposal, in a sanitary manner, of the sewage and the garbage and waste matters, or either or any of them of the municipality, and such council, legislative body or other governing board of the municipality, is hereby authorized, upon first obtaining the approval of the state board of health, to contract for, erect and maintain a sanitary plant or plants, on the the land or lands acquired under the provisions of this act, together with all buildings, machinery, appliances and appurtenances, necessary for the disposal, in a sanitary and economic manner, of the sewage and garbage, night-soil, dead animals, offal, spoiled meats, and fish or any putrid substance, or any liquid or solid wastes, or any substance injurious to health, of the municipal- ity. [94 v. 343, 383.] Sec. 2142b R.S. [Collections, removal and disposal of garbage, night-soil, etc.] The said council, legislative body or other governing board, is hereby authorized to contract, for a per- iod not exceeding five years for the collection and removal and disposal of such garbage, night>soil, dead animals and other solid waste substances, at the expense of such municipal cor- poration, or at the expense of persons responsible for the ex- istence of such waste substance. [94 v. 343, 384.] Sec. 2142c R. S. [How funds raised for such purpose.] For the purpose of carrying into effect the foregoing powers, the coun- cils of cities, legislative bodies or governing boards of any municipal corporation or township may use any funds raised, or heretofore authorized in any manner and necessary for said purposes, and in case no funds are available and no bonds have been heretofore authorized for said purposes, and it be neces- BOARD OF HEALTH. 597 sary to issue and sell bonds for said purposes, then the question of issuing any bonds of the municipality shall be submitted at an election conducted therefor in conformity with provisions of section 2836, except that a majority of the votes cast shall be deemed sufficient to authorize the municipal corporation to issue said bonds under this act, and the council or other legislative body shall not have authority to issue the said bonds unless a majority of the qualified electors of such municipality voting shall be in favor of the proposition to issue said bonds for said purposes. [94 v. 343, 384.] Sec. 2142dR. S. [Appointment of sanitary board.] Before submitting said proposition to a vote of the people, the city council, or other legislative body of said municipal corporation may by resolution determine to have all the work in connection with the erection and maintenance of said sanitary plant and the acquisition of the necessary real estate therefor, put under the control of a sanitary board, which shall be appointed before the vote is taken. [Constitution of board; how appointed; term.] Said board shall consist of two citizens from each of the two political parties casting the highest vote at the last preceding municipal election, who shall be appointed by the mayor by and with the consent and approval of the city council, or other legislative body of said municipal corporation, and shall serve for a term of two years and until their successors are duly appointed. [Compensation and powers of board.] Said boards shall have such reasonable compensation as the city council or other legis- lative [body] of said municipal corporation may prescribe, and shall have entire control of the erection and maintenance of said sanitary plant and the purchase of the necessary real estate therefor on behalf of said municipal corporation and may, in its discretion, modify said original plans and specifications, subject however to the approval of the state board of health, and provided, that the total cost thereof shall not exceed the original estimate. [94 v. 344, 384.] Sec. 2142e R. S. [Levy for sanitary fund.] For the purpose of providing a fund for the payment of the principal and in- terest of the bonds issued under this act, and of maintaining said sanitary plant or plants, said city council or other legisla- tive body shall, in addition to the other levies authorized by law, levy annually a sufficient tax therefor on all the property subject to taxation in said municipal corporation and such taxes shall be levied and collected in the same manner as other taxes; and the proceeds thereof shall constitute the iC sanitary fund " 598 THE OHIO MUNICIPAL CODE. of said municipal corporation, and shall be held like other funds of said municipal corporation subject only to the written order of said city council or other legislative body, or governing or sanitary board of said municipal corporation which shall have control of said work. [94 v. 344, 385.] Sec. 2142e — 1 R. S. Sanitary board in cities second class fourth grade, may be appointed, when; Question to be submitted to voters.] § 1. Whenever the state board of health declare it necessary for any city of the fourth grade of the second class to adopt measures for the relief and improvement of its sanitary condition, by the proper disposal of its sewage or garbage, or both, the city council of said city may, by resolution, authorize the establishment of a " sanitary board " for the purpose of constructing, operating and maintaing a " sanitary plant " for the proper disposal of the sewage or garbage, or both, of said city in the manner hereinafter provided; and the provisions of section 2142 1 of the Revised Statutes of Ohio shall not apply to any city which provides itself with a " san- itary plant " in accordance with the provisions of this act. (1) Section referred to.— The 2142 R. S., repealed in 95 v. 421. section in the amendments in 95 v. See note (1) to § 187 of the Code, 421, numbered § 2142, does not re- page 418. late to the same subject as old § [Question to be submitted to voters.] Provided, however, that the within act is not to take effect or become in any way operative until the same is submitted to the qualified electors of said city of the second class of the fourth grade, at some gen- eral or special election after due notice has been given as provided by law and a majority of said electors voting on said proposition voting in favor of same. [94 v. 71.] Sec. 2142e — 2 R. S. [Duties, etc., of sanitary board.] § 2. Part 1. The sanitary board shall consist of four electors who shall be citizens of said city, two of whom shall be chosen from each of the two political parties casting the largest number of votes at the last preceding municipal election ; they shall be appointed by the mayor, by and with the consent of the city council and shall serve for such compensation as the city council may allow, which shall be not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00) each per annum; their term of office shall be two years, except that the mayor may designate two of the first appointees to serve for one year only BOARD OF HEALTH. 599 Part 2. [Board to adopt plan.] Said board shall prepare and adopt plans for the disposal of the sewage or garbage, or both, of said city, and procure the approval thereof by the state board of health. Part 3. [Approval of city council.] Said plan shall thereup- on be reported to the city council of said city with estimated cost of executing the same, and when approved by the city council, shall thereupon be certified back to said sanitary board, who shall thereafter have exclusive control of the erection and maintenance of said sanitary plant on behalf of the said city. Part 4. [Where council has prepared plans previous to ap- pointment of sanitary board.] Provided, however, that in case the city council of any such city shall have had the plans for a sanitary plant prepared, and approved by the state board of health prior to the appointment of a sanitary board as provided in this act, the sanitary board thereafter appointed may, upon notice and request from the city council, proceed to carry said plans into execution as hereinafter provided, and shall have entire charge and control thereof the same as if prepared by it ; and out of the sanitary construction fund the sanitary board shall refund to the city any and all expense incurred by the city in procuring and perfecting said plans. Part 5. [Board shall advertise for bids.] When said plans have been adopted or approved by the city council as heretofore provided, the said sanitary board shall at once proceed to ad- vertise for bids and execute contracts in the name of the city for which the work, subject to the same regulations and re- strictions as provided in section 2303 1 of the Revised Statutes of Ohio, provided that the sanitary board shall have the entire control of the advertising for bids and letting of all contracts, instead of the various city officers named in said section 2303 ; provided, however, that the said sanitary board may, by and with the consent of ihe city council of said city, after it has duly advertised for bids for any part of said plant and has failed to receive any reasonable and satisfactory bid therefor, proceed to buy the necessary materials and construct any such part or parts of said sanitary plant under the immediate super- vision of its engineer and managing officers. (1) § 2303 R. S. repealed by the see note (1) to § 143 of the Code, Code. See § 50 et seq. of Code; and page 371. Part. 6. [Powers.] Said sanitary board may, in order to carry out the provisions of this act, employ officers and the requisite expert and professional assistants, purchase materials, 600 THE OHIO MUNICIPAL CODE. employ laborers, erect buildings, purchase and lease real estate in the name of said city, either within or without its corporate limits, and if necessary, to appropriate the same, it shall pro- ceed in the manner and form provided in chapter three, division seven, title twelve of the Revised Statutes of Ohio. 1 (1) This chapter is now super seded by §§ 10 to 22 of the Code. Part 7. [Money shall be paid out only on orders.] No money shall be paid out of the sanitary fund of said city except upon the written order of the sanitary board, signed by its president and attested by its secretary or clerk. Part 8. [Quarterly report to council.] Said sanitary board shall keep a record of all its. meetings and of all orders issued on the sanitary funds of said city; a report of its receipts and expenditures shall be made to council every three months, or as often as required by council ; the " aye " and " nay " vote shall be taken and recorded on every resolution involving the expenditure of money Or entering into a contract. [94 v. 72.] Sec. 2142e — 3 R. S. [Change of watercourses.] § 3. The sani- tary board of said city is authorized if, in their judgment, it be- comes necessary so to do in the interest of the health of said city, and the operation of a sanitary plant, to change the channel of any unnavigable watercourse outside, as well as inside, the cor- porate limits of said city, by deepening, widening and straight- ening the same, and removing or altering any and all dams or other obstructions in said channel; provided, that in making this improvement, they first procure the approval of the plans by the state board of health and then proceed in the manner prescribed by section 2304 1 of the Revised Statutes of Ohio, regulating the procedure of city councils in making public improvements within their respective cities; ( 1 ) § 2304 R. S. repealed by new Code. See § 50 et seq. of Code. [Claims for damages.] and all claims for damages against said municipal corporation growing out of said proposed im- provement shall be filed and the rights of all parties determined by the city council as provided in subdivision 2 of chapter 4, division 7, title 12 of the Revised Statutes of Ohio; 1 pro- vided, however, that immediately upon the filing of any such claim with the city clerk, the same shall be certified by him to the sanitary board and if the same shall not have been settled and discharged by the said sanitary board within sixty days from the date of filing, it shall be returned to said city clerl: BOARD OF HEALTH. G01 and acted -upon by said council of said city like other claims for damages arising out of improvements in said city ; and any judgment recovered against said city on any such claim shali be paid out of the sanitary construction fund of said city, and the said sanitary board may, upon its written request to the city council of said city, take entire control and supervision of litigation growing out of said claims; and no suit shall be brought against the city on [any] such claim until one hundred and twenty (120) days shall have elapsed from the filing there- of. [94 v. 73.] (1) See §§ 54 to 58 inclusive, and § 94 of the Code. Sec. 2142e— 4R. S. [To sell bonds, etc.] § 4. The city coun- cil of any city which has approved the plans for a sanitary plant as provided in section 2 of this act, or the changing [of] the channel or removal of obstructions in any watercourse as pro- vided in section 3 of this act, is hereby authorized to, and must, upon the written request of the sanitary board, proceed to issue and sell bonds of said city in the amount so requested by said sanitary board from time to time, as the work progresses, which shall not, in the aggregate, exceed the estimated cost of the said sanitary plant, and change or removal of obstructions from any watercourse, which bonds shall be entitled " sanitary construction bonds " and shall bear interest not exceeding six per cent, per annum, payable semi-annually, and of denom- inations of not more than one thousand dollars ($1,000.00) nor less than one hundred dollars ($100.00) each, made payable at such times as said council may, by resolution, prescribe, but not to exceed fifteen (15) years from date of issue. Said bonds shall not be sold for less than par, and the proceeds thereof shall be paid to the city treasurer and shall constitute a special fund to be known as the " sanitary construction fund," which shall be subject only to the orders of the sanitary board and shall be used for the purpose of acquiring the necessary real estate and constructing a sanitary plant with its appurte- nances as provided by this act. Said sanitary boards shall conform to the requirements of chapter 2, division 9, title 12 of the Revised Statutes of Ohio, 1 except as the provisions of said chapter have been modified in this section. [94 v. 74.] (1) Chapter referred to. — §§ 2, referred to, is repealed by the 2701, 2703, 2706, 2707, 2708 are Code. See §§ 95 to 100, inclusive, re-enacted in § 96 of Code. § 2709 of the Code, for present provisions as amended (95 v. 507) is not on the subject, repealed; the remainder of chapter 602 THE OHIO MUNICIPAL CODE. Sec. 2142e — 5 It. S. [Sanitary extension.] §5. Whenever it is deemed necessary by the state board of health and the sanitary board of any such city which has built a sanitary plant or changed a channel on account of obstructions in any water- course, and appointed a sanitary board under the provisions of this act, to enlarge or extend the sanitary plant to provide for the increased demands of said city, the sanitary board may prepare plans for the same, which, when approved by the state board of health, shall be submitted to the city council, together with an estimate of the cost of executing the same, and the same proceedings shall be had thereon as are herein provided in sections 2, 3 and 5 of this act, for the original construction of a sanitary plant and subject to the same con- trol by the sanitary board of said city, except that the fund aris- ing from the sale of the bonds to enlarge or extend a sanitary plant, shall be denominated " sanitary extension fund " and shall be used for no other purpose; and the bonds sold to raise said fund shall be denominated " sanitary extension bonds;" provided, however, no sanitary extension bonds shall be sold by any such city until at least five years have elapsed since the last preceding " sanitary bonds " have been issued and sold. [94 v. 74.] Sec. 2142e— -6 R. S. [The tax.] § 6. For the purpose of pro- viding a fund for the payment of the principal of said sanitary construction bonds and sanitary extension bonds respectively, at maturity, and of paying the interest on said bonds, said coun- cil shall, in addition to the other levies authorized by law, levy annually a sufficient tax on all the property subject to taxation in said city, and such taxes shall be levied and collected in the same manner as other taxes ; and the proceeds thereof shall constitute the " sanitary construction fund " and the " sanitary extension fund " respectively, of said city, and shall be held by the city treasurer like other city funds, subject only to the written order of the sanitary board of said city, as hereinbefore provided. [94 v. 75.] Sec. 2142e— 7 R. S. [Maintenance.] § 7. For the operation, repair and maintenance of said plant, erected under the provi- sions of sections 2 and 3 of this act, the city council of said city is hereby authorized and directed to levy a tax, annually, not exceeding one-half mill per annum, on every dollar of taxable property, both real and personal, listed for taxation in said city, in addition to the amount otherwise authorized by law, to be collected like other taxes, and to be used for no other purpose ; the proceeds of said tax shall constitute the " sanitary BOARD OF HEALTH.V^' TORN\]^^ 603 maintenance fund" and shall be held by the city treasurer like other city funds, subject only to the written order of the sanitary board of said city. In order to determine the amount of said levy, the sanitary board of said city shall, on or before the first day of April of each year, submit to the city council, in writing, an estimate of the probable expenses of operating, repairing and maintaining said sanitary plant for one year, and said city council shall thereupon levy a sufficient tax to produce said funds, subject to the limitations hereinbefore contained. [94 v. 75.] An act to provide for the cost of collecting, removing and dispos- ing of garbage, dead animals and animal offal where provision could not be made therefor. [Sec. 1.] [" Garbage bonds;" when municipality may issue; tax levy.] In any municipality which has heretofore entered into any contract for the collection, removal and disposal of garbage, dead animals, and animal offal, after the date fixed for making provision for the expenditures arising thereunder during the year in which any such contract goes into operation, and where such provision was not in fact made, the board of public service, if there be such a board, or its successor, and if there be no such board, the council or trustees of any such municipality, is here- by authorized to issue bonds, in the name of such municipality, in an aggregate amount not exceeding thirty-seven thousand three hundred and fifty dollars, to meet the expenditures esti- mated to be incurred under such contract, during the year for which no provision was made as aforesaid. In anticipation of the funds arising from the sale of such bonds, it shall be lawful for any such municipality, by its proper officer and boards to make an estimate of the money needed to meet its obligations, arising under such ' contract, for such year or part thereof, and to provide for their payment, in the manner prescribed by law, out of the proceeds arising from the sale of any such bonds. Said bonds shall be of such denomination as the issuing board may determine, be made payable in not less than twenty years nor more than thirty years from the date of their issue, and shall bear interest at a rate not exceeding 3% per cent, per annum, and they shall be designated as " garbage bonds." They shall be signed, sealed and sold in the manner and subject to the conditions prescribed by law, and shall be secured by the pledge of the faith of the municipality and a tax, which it is hereby made the duty of its legislative board to levy, annually, upon all the taxable property within the municipality, sufficient in amount to pay the interest of the bonds annually, and to 604 THE OHIO MUNICIPAL CODE. provide a sinking fund to redeem them at maturity, and such tax may be in addition to the amount now authorized by law to be levied for municipal purposes. In municipalities which have a board designated as the trustees of the sinking fund, the rate of tax to be levied as above, shall be fixed and certified by such board. [May 10, 1902, 95 v. 477.] Sec. 409 — 26 R. S. [Powers of Cincinnati board of administra- tion as to sewerage.] Iu cities of the first grade of the first class, the duly constituted authorities, as provided by law, shall have authority and control in introducing a system of sewerage, and in locating, constructing and extending all sewers withii? the limits of any such city, whether the same be for general sew- erage or for surface water only, and for such purpose may con^ demn the necessary right for an outlet or extension of sewer? beyond the limits of the city; and whenever any sewer or sys- tem of sewers has an outlet into any stream, above the intake of any water works system, drawing water from such stream, the board of administration of such cities shall have power and authority to prohibit any connection with such sewer or system of sewers, for any other purpose than for draining sur- face water therein ; provided, however, that nothing in this act shall be held to abridge or in any way to interfere with the authority now vested by law in the state board of health. [92 v. 759.] Sec. 409 — 28 It. S. [Local reports to state board of existence of contagions or infectious diseases; in case of epidemic, sanitary officer may be appointed to enforce orders.] It shall be the duty of the boards of health, health authorities or officials, and of physicians in localities where there are no health authorities or officials, to report to the state board of health, promptly upon the discovery thereof, the existence of any one of the following diseases which may come under their observation, to-wit : Asiatic cholera, yellow fever, smallpox, scarlet fever, diph- theria, membranous croup, typhus or typhoid fever, and of such other contagious or infectious diseases as the state board of health may from time to time specify. And when any con- tagious or infectious disease shall become or threaten to be- come epidemic in any city, village, hamlet or township, and the local authorities shall neglect or refuse to enforce efficient measures for its prevention, the state board of health, or the secretary as its executive officer, on the order of the president of said board, may appoint a medical or sanitary officer and such assistants as he may require, and authorize him to enforce such orders or regulations as said board or its executive officer may deem necessary. [1902, May 7 : 95 v. 421.] BOARD OF HEALTH. 604a [An act to provide for annual conferences of health officers.] [Sec. 1.] [Provision for annual conferences of health offi- cers.] That the state board of health may make suitable pro- vision for annual conferences of health officers and represen- tatives of local boards of health for the consideration of the cause and prevention of dangerous communicable diseases and of other measures to protect and improve the public health. And it shall be the duty of the board of health or other body or person appointed or acting in lieu of a board of health to appoint one delegate to such annual conferences, and the actual necessary expenses of such delegate in attendance at such meetings shall be provided for and paid by the city, village or township which he is appointed to represent, provided he pro- cures a certificate from the secretary of the state board of health that he was in actual attendance at the sessions of such conferences. The state board of health may provide for one annual con- ference of representatives of city boards of health, another for representatives of village boards of health, and one or more for representatives of township boards of health, or make such other division of conferences as it may deem best, but no meeting shall continue longer than three consecutive days and no board of health shall be required or authorized to send a delegate to more than one conference in any one year. [1906, April 16, 98 v. 205.] Sec. 6923 R. S. [Unlawful deposit of dead animals, offal, etc., in or upon land or water.] Whoever puts the carcass of any dead animal, or the offal from any slaughter house, or butcher's establishment, packing house, or fish house, or any spoiled meat, or spoiled fish, or any putrid substance, or the contents of any privy vaults, upon or into any lake, river, bay, creek, pond, canal, road, street, alley, lot, field, meadow, public ground, market space or common, and whoever being the owner or occupant of any such place, knowingly permits any such thing to remain therein, to the annoyance of any of the citizens of this state, neglects or refuses to remove or abate the nuisance occasioned thereby, within twenty-four hours after knowledge of the existence of such nuisance upon any of the above described premises, owned or occupied by him, or after notice thereof in writing, from any road superintend- ent, constable, trustee, or health officer of any municipal corporation or township in which such nuisance exists, or from a county commissioner of such county, shall be fined not 604& THE OHIO MUNICIPAL CODE. more than fifty dollars nor less than ten dollars, and pay the cost of prosecution, and in default of the payment of said fine and cost, be imprisoned not more than thirty days, but the pro- visions hereinbefore made shall not prohibit the depositing of the contents of privy vaults and catch basins into trenches or pits not less than three (3) feet deep, excavated in any lot, field or meadow, the owner thereof consenting, outside the limits of any municipal corporation, and not less than thirty rods dis- tant from any dwelling, well or spring of water, lake, bay or pond, canal, run, creek, brook or stream of water, public road or highway; provided, that said contents deposited in said trenches or pits are immediately thereafter covered with dry earth to the depth of at least twelve inches; nor shall said provisions prohibit the depositing of said contents into fur- rows situate and distinct, as specified for said trenches or pits; provided, the same are immediately thereafter wholly covered with dry earth by plowing or otherwise; and, provided, also, that the owner or occupant of the land in which said furrows are plowed consents, and is a party thereto ; provided, also, that the board of health of any municipal corporation may allow said contents to be deposited within corporate limits into trenches or pits or furrows, situate, distant and to be covered as aforesaid. [Dayton.] Provided, further, that in cities of the second grade of the second class having and maintaining a crema- tory, the contents of privy vaults in said cities and towns shall be deposited at said crematory, and whoever shall haul away and deposit the contents of any such privy vault, in any such municipal corporation, at any other place than at such crema- tory, shall be fined not more than fifty dollars nor less than ten dollars, and pay the cost of prosecution, and in default of the payment of said fine and costs, be imprisoned not more than thirty days. [1906, April 16, 98 v. 329; 93 v. 298; 87 v. 349; 85 v. 268; 63 v. 102; 30 v. 22.] CHARITABLE AND REFORMATORY INSTITUTIONS. 605 IV CHARITABLE AND REFORMATORY INSTITUTIONS; SOLDIERS' RELIEF. 1. GEKEKAL PKOVISIONS. Sec, 633 — 11 It. S. [All institutions open to inspection of county commissioners or board of health.] Every private or pub- lic hospital, reformatory home, house of detention, private asylum, and any institution exercising or pretending to exer- cise a reformatory or correctional influence over individuals in the state of Ohio, shall be open at any and all times for the in- spection of the commissioners of the county in which any such institution is situated, or the board of health of the township, or other municipality in which any such institution is situated. [92 v. 212.] Sec. 633 — 14 It. S. [Penalty for denying or obstructing investi- gations.] Any official, agent, or employe, or other person re- fusing to permit or in any manner interfering with the inspec- tion of any such public or private hospital, reformatory home, house of detention, private asylum, or any institution exercising or pretending to exercise a reformatory or correctional influence over individuals, by the county commissioners of the county in which such institution, or institutions, are situated, or by the board of health, of the municipality in which the same is sit- uated, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be punished by a line of not less than twenty-five (25) dollars, or six months' imprisonment, or both, and for each subsequent offense a fine of not less than one hun- dred (100) dollars, and six months' imprisonment. [92 v. 212.] Sec. 633—15 R. S. [Board of county visitors; appointment, qualifications, term, compensation, vacancies.] The judge of probate court in all counties shall between the first day of March and the first day of April appoint six persons, three of whom shall be women, and not more than three of whom shall have the same political affiliations, two of whom, as in- dicated by the appointing judge, upon the fixed appointment, shall serve for one year, two for two years, and two for three years, beginning the first day of May, who shall constitute a board of county visitors for the inspection of all charitable 606 THE OHIO MUNICIPAL CODE. and correctional institutions supported in whole or in part from the county or municipal funds. All vacancies in the board, whether occasioned by expiration of term, removal or otherwise, shall be filled in the manner that the original ap- pointment is made and, when occurring at any time before the expiration of the term of appointment, shall be for the balance of the term only. A certificate of appointment shall be issued to all persons appointed and a copy, giving full names and addresses, shall be sent to the board of state chari- ties at Columbus. No person shall be qualified to serve on this board who is in any manner officially connected with any charitable or correctional institution within the county sup- ported wholly or partly at public expense. Said board of county visitors shall serve without compensation, but actual expenses incurred in the discharge of its duties and actual necessary expense incurred by any member or members to be selected by said board in visiting any other charitable or cor- rectional institution for the purpose of information and at- tendance upon any convention or meeting held within the state of Ohio in the interest of and to deliberate upon chari- table or correctional methods and work to an amount not ex- ceeding one hundred dollars ($100.00) per annum shall be allowed by the county commissioners, and the county auditor shall issue a warrant for the amount which shall be paid by the county treasurer, provided that the judge of the probate court has issued a certificate that the members of the board have satisfactorily performed their duties as provided in sub- sequent sections. [98 v. 28; 94 v. 70; 93 v. 57; 89 v. 161; 79 v. 107.] Sec. 633—16 R. S. [Duties of board of visitors.] It shall be the duty of such board of visitors, by personal visitation or otherwise, to keep themselves fully advised of the condition and management of all charitable or corrective institutions supported in whole or in part by county or municipal taxation, or which are under county or municipal control, and especially the infirmary, county jail, municipal prisons, and children's home; and from time to time they shall recommend to the county commissioners and to other officials responsible there- for such changes and additional provisions as they may deem essential for their economical and efficient administration, and at least once in every three months all of said institutions shall be visited by said board, or a committee of its members. Failure in the performance of these duties on the part of any member of this board for one year shall be sufficient cause for his or her removal by the judge of the probate court. [98 v. 28; 79 v. 107.] Sec. 656 R. S. [Powers and duties of board of state charities ; governor may! order investigation by board.] 1 The board of state charities shall be provided with a suitable room in the state house. Regular meetings of the board shall be held quar- CHARITABLE AND REFORMATORY INSTITUTIONS. 607 terly, or oftener if required. They may make such rules and orders for the regulation for their own proceedings as they may deem necessary. They shall investigate the whole system of public charities and correctional institutions of the state, ex- amine into the condition and management thereof, especially of municipal and state prisons and reformatories, workhouses, jails, infirmaries, children's homes and state institutions, and the officers in charge of all such institutions and those who are in any way responsible for the administration of public funds used for the relief or maintenance of the poor, shall furnish the board or its secretary such information and statistics • as they may require ; and, to secure accuracy, uniformity and com- pleteness in such statistics, the board may prescribe such forms of report and registration as they may deem necessary. AH plans for new jails, workhouses, children's homes, infirmaries, state institutions and municipal lockups or prisons, and for im- portant additions to or alterations in such existing institutions shall, before their adoption by the proper officials, be submitted to the board for criticism and approval. The governor, in his discretion, may, at any time, order an investigation by the board, or by a committee of its members, of the management of any penal, reformatory or charitable institutions of the state, and said board or committee, in making any such investigation, shall have power to send for persons and papers, and to ad- minister oaths and affirmations ; and the report of such investi- gation, with the testimony, shall be made tothe governor, and shall be submitted by him, with his suggestions, to the General Assembly. [93 v. 105; 1880, April 15: 77 v. 227; Rev. Stat. 1880; 73 v. 165, §2; (S. & S. 51).] (1) Conferences with officers of board of charities, see § 656a It. S. benevolent, penal and reformatory (98 0. L. 29). institutions may be called by state Sec. 781—26 R. S. [Certain city councils may establish homes for the friendless in certain cases; joint contribution of funds etc.] The city council of the city of the second class, situated in such county as aforesaid, 1 shall have the same power to estab- lish, support and regulate, within and for such city, such a home and school as is described in the first section [§ (781 — l)] 2 of this act; and in regard thereto, said council and the members thereof shall have the same powers, rights, and duties, and be subject to the same prohibitions and penalties, as have herein- before been vested in, imposed upon, and provided for the county commissioners of any county described in the said first section [§ (781 — 1)] ; and any such city home shall be named Home for the Friendless, the name of the city pre- ceding the word home; provided, however, that in all cases where a city of the second class shall be situated within the limits of a county, described in the first section [§ (781—1)] 608 THE OHIO MUNICIPAL CODE. of this act, the city council of said city shall not proceed to establish or provide for the support of any such Home, with- out first communicating to the county commissioners of said county a copy of a resolution passed by said council, to the effect that said council proposes to establish or support such a home ; and if within four calendar months of their receipt of said copy, said commissioners shall not make and adopt an order to the effect that they will establish or provide a county home, the aforesaid' city council may proceed to establish, or adopt and support a city home. Such acts as have been here- inbefore required to be done by, through, or in connection with the county auditor, treasurer, county treasury, commission- ers, journal, or other county officer, office, both, or depart- ment, in the case of a county home, shall be done through, by, or in connection with the corresponding city officer, office, both, or department, in the case of city home: provided, further, that any city of the second class situate in any such county as aforesaid, may, through its city council, acting in conjunction with the commissioners of such county, contribute to the pur- chase of land, erection of buildings, and support of such home, or the commissioners of such county may contribute in like manner to such home in such city ; but in the event of such joint contributions and co-operation, such home shall be under the control of the county commissioners in case the county con- tribute more largely than the city, and said home shall be con- trolled by the city council in case the city make the greater expenditure in that behalf. (70 v. 277.) (1) See § 781-1 R. S. employment, and reformation of ex- (2) Home for the Friendless. posed, helpless, evil-disposed or vi- 1 — § (781-1) provides for "a cious women and girls " to be known home and school for the instruction, as the " Home for the Friendless." Sec. 781 — 30 R. S. [Certain moneys shall be paid over to the home of friendless girls.] All justices of the peace, all police courts in the city of Toledo, and the courts of common pleas, and all courts of record in the county of Lucas, be authorized and required to pay over to the retreat, a home for friendless girls, in the city of Toledo, all fines and forfeitures arising from the prosecution of houses of ill-fame or prostitution, or the inmates, residents or visitors thereof in the city of Toledo. The said courts shall pay over, monthly, all sums of money so collected, taking therefor a receipt from the treasurer of said retreat, which shall be a voucher for said courts in any settle- ment with the city or county treasurer, for the sums thus col- lected by said courts. [1888, April 13 : 85 v. 535 ; 83 v. 392.] CHARITABLE AND REFORMATORY INSTITUTIONS. 609 Sec. 929 — 1 E. S. [Counties and cities may appropriate not to exceed six thousand dollars in aid of children's homes. ] In any county in the state of Ohio, where there now is or hereafter may be an incorporated " children's aid society/' or " children's home/' or " industrial school/' Or " industrial school andj home/' or any other incorporated society, whose object is the care, aid and education of neglected or destitute children, the county commissioners of such county, or the city council of any city or cities in such county, in addition to the powers now conferred upon such commissioners or city council, are hereby authorized, if they deem it judicious to aid any such institu- tion to purchase land, erect buildings, either by subscription with others to raise a fund for that purpose, or by direct aid or donation, or otherwise, in amount not exceeding six thoi - sand dollars, as they may deem expedient. [90 v. 27, 11 .; 66 v. 11.] Sec. 974 R. S. [Duty of trustees and directors of infirmaries as to outside relief; costs of relief, how paid; reports to board of state charities, to contain what. ] When, in any county having an infirmary, the trustees of a city or township shall, after mak- ing the inquiry provided for, be of the opinion that the person complained of is entitled to admission to the county infirmary, they shall forthwith transmit a statement of said facts, so far as they have been able to ascertain the same, to the infirmary directors, and if it appears that such person is legally settled in said township or has no legal settlement in this state, or that such settlement is unknown, and the directors are satis- fied that said person should become a county charge, they shall forthwith receive said person and provide for him or her in said institution, or otherwise, and thereupon the liabilties of the township in the case shall cease, but the infirmary directors shall not be liable for any relief furnished, or expenses incurred by the township trustees. The infirmary directors shall report quarterly to the board of state charities, the names of all persons to whom relief has been given outside of the infirmary, whether medical or otherwise, together with their age, sex and nationality, whether such persons are married or single, and if married the number of persons in the family, and the ages of each ; also the reasons for extending relief, the nature of the relief given, the amount of same, and any other information that may be prescribed by said board. [93 v. 266 ; 83 v. 202, 203; 80 v. 108; Eev. Stat. 1880; 74 v. 32, § 24; 76 v. 10, § 1.] 610 THE OHIO MUNICIPAL CODE. Sec. 985 R. S. [Penalty for bringing pauper into city, town- ship, or county with intent to charge with support.] If a person transports, removes, or brings, or causes to be transported, re- moved, or brought, any poor or indigent person into any city, township, or county in this state, without lawful authority, and there leaves such poor indigent person, with intent to make such city, township or county chargeable with the support of such person, such person so offending shall forfeit and pay the sum of fifty dollars for every such offense, for the use of the poor of the city or township in which such person is left, to be recovered by civil action, in the name of the state, before any court of competent jurisdiction. 1 [93 v. 268; 77 v. 39; Rev. Stat. 1880; 77 v. 23, § 35; (S. & S. 534; S. & C. 932).] (1) Recovery of expense of a public charge. See Howard v. support of wife, who has been Whetstone Tp v 10 O. 365; Spring- abandoned by husband and become field Tp. v. Demott, 13 O. 104. Sec. 922 — 1R. S. [Morgue for Cuyahoga Co. and Cleveland; coroner's duties.] The county commissioners of Cuyahoga county be and they are hereby authorized to purchase a site for and erect a public morgue for the joint use of the city of Cleveland and the county of Cuyahoga, at an expense not to exceed $40,000, and shall provide for the maintenance of the same out of any moneys in the general fund, provided, how- ever, that no special tax shall be levied for the construction of the same, but shall be paid out of any fund not otherwise ap- propriated. That the county coroner shall have charge of said morgue and it shall be the duty of said coroner to see that all dead bodies brought to said morgue are properly kept and pre- served until identified or claimed for burial and he shall collect from the friends or relatives of any person whose dead body was found within his county and which was caused to be kept and preserved as aforesaid, and who at the time of his or her said death was not a bona fide resident of said county, a sum not to exceed $10, which sum shall be by said coroner turned over to the county treasurer of said county to be credited to the fund out of which said morgue is maintained. The cor- oner of said county shall before turning over dead bodies, as provided by section 3763 of the Revised Statutes of Ohio, cause such bodies to be photographed, and together with any other means of identification* of said body shall cause the same to be preserved with the record of said death. [92 v. 678 ; 88 v. 898.] Franklin Co. morgue authorized, 90 O. L. L. 171; 91 v. 718. CHARITABLE AND REFORMATORY INSTITUTIONS. 611 2. WORKHOUSES. 1 General Provisions. Sec. 2100c R. S. [Cumulative sentence; habitual offender.] Every person who, after having been convicted, sentenced and imprisoned, in any workhouse for an offense committed here- tofore or hereafter in this state in violation of an ordinance of [a] municipality, or a law of this state, shall be convicted of a second misdemeanor whether committed in violation of an ordinance of a municipality or a law of this state, punishable by imprisonment in any workhouse, within this state, shall for such second offense, be punished by imprisonment for not less than double the penalty imposed for the first offense; and in case of two previous convictions for such misdemeanors, the penalty for a third misdemeanor shall not be less than double the penalty imposed in the last of such previous misdemeanors. But no greater punishment shall be inflicted for the second or third misdemeanor, than the maximum penalty provided by law or ordinance for the particular offense committed. Every person who, after having been three times convicted, sentenced and imprisoned in any workhouse or workhouses for offenses committed heretofore or hereafter in this state, whether in vio- lation of law or ordinance, shall be convicted of a fourth misr demeanor, whether committed in violation of an ordinance of a municipality or law of this state, punishable by imprisonment in any workhouse within this state, shall, upon conviction for such offense be held and deemed to be an habitual offender and shall be imprisoned in a workhouse for a period of not less than one year nor more than three years. - In all such cases the court may order that the offender stand committed to such workhouse until the costs of prosecution be paid. The fact of former conviction or convictions shall be charged in the in- formation or complaint and, if proved, shall be stated in the commitment. A pardon for a former offense granted on the ground of innocence shall operate as a full defense in any charge under this section of a prior conviction for such offense. [92 v. 359; 90 v. 178.] (1) Title, division and chapter. — In cities, see § 141 of. the Code, — Sections under this heading were page 351 et seq. In villages, see § formerly contained in subd. 4, chap. 204 of the Code, page 456. 6, Div. 5, Title XII., R. S. Other For provisions relating to Houses provisions not given here, are re- of Refuge, see § 141 of the Code, enacted in § 141 of the Code, p. 351. and sections of Revised Statutes re- Workhouses under new Code. enacted therein, p. 352. Sec. 2101 R. S. [Prompt commitment; fees.] The officer hav* ing the execution of the final sentence of any court, magistrate, 612 THE OHIO MUNICIPAL CODE. or mayor, shall cause the convict to be conveyed to the work- house as soon as practicable after the sentence is pronounced; and all officers shall be paid the fees therefor allowed by law for similar services in other cases — such fees to be paid, when the sentence is by the court, out of the county treasury, and when by the magistrate, out of the township treasury. [66 v. 196, § 277.] Sec. 2103 It. S. [Punishment for escape or attempt to escape.] A person lawfully committed to a workhouse who escapes there- from, or breaks the same with intent to escape therefrom, or who attempts by force, or in any other way, to escape there- from, whether such escape be effected or not, shall, upon con- viction before the police court, court of common pleas for the proper county, or the authority by which such person was orig- inally committed, be punished by confinement in such work- house for a term not exceeding double the term for which the person was so sentenced; and unless the former sentence has expired, the term shall commence from and after the expira tion of the former sentence. [66 v. 196, § 279.] Sec. 2107 It. S. [Commissioners may unite with city in erecting workhouse.] The commissioners of any county may unite with any city or village located in such county in the acquirement or erection, management and maintenance of a workhouse for the joint use of such county and city, or village, upon such terms as such county and city, or village may agree; and the commis- sioners are authorized to levy and collect the necessary funds therefor from the taxable property of the county ; that the work- house shall be managed and controlled by a joint board com- posed of the county commissioners and the board of public service of the city or the board of trustees of public affairs in villages; the said joint board shall have all the powers and duties in the management, control and maintenance of such workhouse as are conferred upon the board of public service in cities, and in addition thereto such board shall also have the right to construct sewers for said workhouse and pay for the same out of the funds raised by taxation for the maintenance of such institution and such board shall also have power to lease or purchase suitable property and buildings for a work- house, or real estate, for the purpose of erecting and maintain- ing, a workhouse thereon, provided that said board shall not expend more than $10,000.00 for any such purpose unless the amount be approved by a majority of the voters of the county, exclusive of the city or village voting at some general election. [97 v. 448 ; 81 v. 129 ; 68 v. 114.] Sec. 2107a (1) It. S. [City or district workhouse may receive persons sentenced from other counties.] Any city or district hav- ing, or that may hereafter erect, within its limits, a workhouse, CHARITABLE AND REFORMATORY INSTITUTIONS. 613 may receive as inmates of such workhouse persons sentenced thereto as provided by law, from counties other than the one in which such workhouse is situated, upon such terms and dur- ing such length of time as may be agreed upon by the commis- sioners of such counties, or by the council of any municipality, and the county [council] of such city, or the board of district workhouses, or other authority having the management and control of such workhouse. Provided, that such convicts so received shall in all respects be and remain under the control of the board of workhouse directors, and subject to the rules, regulations and discipline of such workhouse, the same as other convicts therein detained. [1883, April 19 ; 80 v. 220.] Sec. 2107a (2) E. S. [Commissioners of counties may unite in erecting a workhouse; submitted to electors.] The commission- ers of any counties may unite in the erection, management and maintenance of a workhouse for the joint use of such counties, provided that before said workhouse can be established the question of the establishment of said workhouse shall be first submitted to the qualified electors of each of said counties at a general election and that a majority of the qualified electors voting upon this proposition in each county shall have voted in favor of the establishment of said workhouse ; and provided further, that a notice of the submission of the question of building a workhouse to a vote at any general election shall be published for four weeks prior to said general election in a newspaper of general circulation of each county interested. [1883, March 29: 80 v. 81.] Sec. 2107b (1)R. S. [Board of directors.] The construction, management and control of any workhouse established under section 2107a (2) of this chapter, and the maintenance and care of the convicts therein, shall be vested in a board of di- rectors, who shall be called the board of workhouse directors, and shall be composed of two persons from each county, who are electors of the county from which they are appointed, and are freeholders therein, to be appointed by the board of county commissioners of each county composing said district, who shall belong to different political parties, one of whom shall hold his office for the term of six years, and one for the term of three years. The board of workhouse directors shall, at the first meeting, and annually thereafter, at the first meeting in May, elect a president, and at the same meeting appoint a sec- retary, who shall make a complete record of all the proceed- ings, and such other officers as may be necessary, and fix their compensation for their services. The board of directors shall not be entitled to any compensation for their services, but shall have all legitimate expenses paid connected with their duties, [90 v. 193; 80 v. 81, 82.] 614 THE OHIO MUNICIPAL CODE. Sec. 2107c (1) R. S. [Board to determine location, estimate cost, and certify same to county commissioners; commissioners to make levy; may issue bonds; the cost of maintaining; how paid.] When- ever any board of workhouse directors have complied with the requirements of section twenty-one hundred and seven (b), they shall proceed to determine the location of said workhouse, and make an estimate of the cost thereof, including the cost of purchasing grounds for location, which, together with all other transactions of the board, shall be made a complete record thereof by the secretary in a book to be kept for that purpose, which record shall be approved by the board and countersigned by the president, and shall be open at all times to the inspection of any resident of the district. After the selection of a loca- tion and the approval of estimates as to the cost of purchasing a site and the construction of necessary buildings and appli- ances for said workhouse, the board shall certify over the seal of the president and secretary, to each of the " boards of county commissioners " within the district, the full amount of the estimated cost of location, construction, and maintenance of such workhouse for one year from the first regular meeting in May, next succeeding this certification. Thereupon each board of county commissioners shall levy upon the general duplicate of the county in which they are commissioners, a tax equal to each of said county's proportion of the entire estimated cost, in the proportion of each of said county's valuation in the gen- eral duplicate to the aggregate valuation of all of the counties joining the formation of the board and district. After such levies are made by each of the county boards of commissioners, each of said boards may anticipate said levies by the issuing of bonds, as provided in other clscs, in sections eight hundred and seventy-one, and eight hundred and seventy-two, of the Revised Statutes. The avails arising from the sale of such bonds shall be paid over to the treasurer of the board of workhouse direc- tors, after said treasurer has filed with the board a bond, to be approved by the board, in double the amount of the estimated expense of construction and maintenance of said workhouse, and all payments for construction, maintenance, or any other purpose or expense whatever, shall be paid by said treasurer, when said bills shall have been approved by a majority of the board at any regular or adjourned meeting, and when a voucher therefor is issued by the secretary and countersigned by the president of the board. The cost of maintaining any work- house established under the provisions of this act, over and above the proceeds arising from the sale of the products thereof, CHARITABLE AND REFORMATORY INSTITUTIONS. 615 shall be paid by each of the counties comprising the district, in proportion to the number of inmates furnished said workhouse by each county, to the aggregate number furnished by all ; and said expense shall be paid quarterly by each of the boards of county commissioners, of the counties forming the district, upon the certificate of the secretary of the board of workhouse di- rectors, approved by the board and countersigned by the presi- dent. And the boards of county commissioners are hereby authorized to levy a tax upon the general duplicate of the county, under the provisions of section twenty-eight hundred and twenty-three, of the Revised Statutes, such a sum as may be necessary, but not to exceed one-tenth of one mill, for the aforesaid maintenance. [1883, March 29 : 80 v. 81, 82.] Sec. 2107d(l) R. S. [Directors may enlarge buildings or grounds ; may admit other counties. ] The board of workhouse directors may enlarge or improve the buildings, shops or grounds from any surplus that may arise from sale of the products or from the levy for maintenance made by the counties forming the district, but no levy for maintenance shall be made when it has not been necessary to use more than one-half of the avails of the levy of the year preceding. And any surplus arising from the carrying on of the district workhouse shall be returned to the general fund of each of the counties compris- ing the district, in the proportion to the number of inmates furnished by each of said counties to the whole number fur- nished by the district for the current year. The board of workhouse directors may receive any other county into the dis- trict upon such terms and conditions as the board may deter- mine, and when any county is thus admitted they shall be entitled to a member of the board as provided in section twenty- one hundred and seven (b). [1883, March 29: 80 v. 81, 83.] Sec. 2107e(l) It. S. [Who shall be confined therein; term; pro- cedure when sentencd by court of common pleas; when convicted by any other court; may be confined in jail a reasonable period.] When a person has been convicted of a misdemeanor by any court or magistrate of this state, in a district in which there is a workhouse, it shall be competent for such court or magistrate to sentence such person to such workhouse for a period not exceeding the maximum period of confinement in the jail of the county allowed by statute for such offenses ; and in all such cases the court or magistrate may further order that such person stand committed to such workhouse until the eosts of prosecu- tion are paid, or he be discharged as herein provided ; and in all cases where a fine may be imposed in punishment in whole 616 THE OHIO MUNICIPAL CODE. or in part for an offense and the court or magistrate could order that such person stand committed to the jail of the county until such fine and the costs of prosecution are paid, such eourt or magistrate may order that such person stand committed to such workhouse until such fine and costs are paid, or until he be discharged at the rate of sixty cents per day for each day of confinement, or be otherwise legally discharged. When a per- son is sentenced to such workhouse by the court of common pleas, the clerk shall make and deliver to the sheriff a certified copy of the docket and journal entries showing the crime charged and the sentence of the court, which shall be delivered by the sheriff to the proper officer in charge of such workhouse, and shall be his warrant for detaining such person in custody therein ; in cases of such convictions by any other court or mag- istrate, 1 such court or magistrate shall make a certified tran- script of the docket in such case, which shall in like manner be delivered to the marsnal or constable, or sheriff by such court or magistrate, which shall be delivered by such officer to the proper officer in charge of such workhouse, and shall be his warrant for detaining such person in custody therein ; in all cases of sentence to a workhouse under the provisions of this act, the person so sentenced may be confined in the jail of the county for such period as may be reasonably necessary for the officer to procure the papers and make arrangements to trans- port him to such workhouse. [1883, March 29 : 80 v. 81, 83.] (1) Prisoners coming from timus. Edis v. Butler, 8 N. P. 183 other counties. — When persons (aff'd 68 0. S. 645). from other counties are committed But the mittimus is not neces- to a workhouse, a full transcript of sary when officer who brings pris- the docket of the magistrate com- ner also brings the transcript, mitting should accompany the mit- Anonymous, 7 N. P. 554. Joint City and County Workhouse in Muskingum County. .Sec. 2107a(3) R. S. [Commissioners authorized to unite with Zanesville in erection and maintenance of a workhouse.] The commissioners of any county containing a population by the last census of 49,774 may unite with any city, located in said county, in the erection, management and maintenance of a workhouse for the joint use of such county and city; and the commissioners are authorized to levy and collect the necessary funds therefor from the taxable property of the county; pro- vided, that the commissioners shall not collect and expend a, greater amount than shall be collected and expended by such CHARITABLE AND REFORMATORY INSTITUTIONS. 617 city for the same purpose ; and provided further, that not more than ten thousand dollars shall be levied or appropriated by the commissioners for the purpose unless the amount be approved by a majority of the voters of the county, exclusive of the city, voting at some general election. [1887, March 19 : 84 v. 136.] Sec. 2107b (2) R. S. [Board of directors.] The direction, management and control of any such joint workhouse, and the maintenance and care of the convicts therein, shall be vested in a board of five directors, who shall be called, " the board of joint city and county workhouse directors," and such directors shall be freehold electors of such county, and shall serve with- out compensation, and not more than three members of " the board of joint city and county workhouse directors " shall be of the same political party faith. [91 v. 385 ; 84 v. 136, 137.] Sec. 2107c (2) R. S. [Appointment of board; terms of members.] The directors shall be appointed by the mayor of the city hav- ing such joint workhouse, with the approval of the council of such city, and shall hold their office for five years, except that at the first appointment one director shall be appointed for one year, one for two years, one for three years, one for four years, and one for five years, and thereafter one shall be appointed an- nually, but hereafter all appointments shall be made in conform- ity with section 21076 [91 v. 386; 84 v. 136, 137.] Sec. 2107d(2) R. S. [President, secretary and clerk of board.] The board of such joint city and county workhouse directors shall elect annually, at its first regular meeting in May, one of its members as president, and at the same meeting appoint a secretary and clerk, who shall make a complete record of all its proceedings, and the said board may appoint such other officers as may be necessary, and fix the compensation of all officers for their services. [1887, March 19: 84 v. 136, 137.] Sec. 2107e(2) R. S. [Contracts.] Contracts may be made by or on behalf of the board ; but it shall be essential to the validity of every such contract, that the same be assented to at a regu- lar meeting by a majority of all the members, and a minute thereof entered on the journal of its proceedings. [1887, March 19: 84 v. 136, 137.] Sec. 2107fR. S. [Superintendent and other employes.] The board shall have power to appoint a superintendent, deputy superintendent and such subordinate officers, guards and em- ployes as may be necessary, fix their compensation and pre- scribe their duties, and to make all such regulations for their 618 THE OHIO MUNICIPAL CODE. management and government as it may deem expedient. [1887, March 19 : 84 v. 136, 137.] Sec. 2107gR. S. [Rules and Regulations.] The board shall have power to make, establish and enforce rules and regulations for its own government, and the government and control of the institution, its officers and inmates, and make contracts for supplies and the labor of its inmates. [1887, March 19: 84 V. 136, 137.] Sec. 2107h R. S. [Books: how kept.] The books of the insti- tution shall be so kept as to clearly exhibit the time, state and condition of the inmates, the number received and discharged, and by what court, and for what cause committed, the length of time of the commitment of each person, the number of days' labor performed by each convict, and the nature and value of such labor to such institution, and the relative costs and ex- pense^ incurred by the institution in managing and taking care of each convict, and the number employed in each branch of industry carried on, and the receipts from and expenditures for and on account of each department of business. [1887. March 19:84v. 136,137.] Sec. 2107iR. S. [Quarterly statements.] The board shall cause quarterly statements to be made, specifying minutely all receipts and expenditures, from whom and for what purpose received, and to whom and for what purpose paid, with proper voucher for each item, and submit such statement properly cer- tified to the council of such city, and the commissioners of such county, for their examination and approval [1887, March 19: 84 v. 136, 138.] Sec. 2107j R. S. [Annual report.] The accounts of the insti- tution shall be annually closed and balanced on the first Mon- day of January in each year. And full reports of the pre- ceding year shall then be made and submitted to the city coun- cil and county commissioners, which shall be published in some newspaper of such city of general circulation in the county, or in such other form as the board of directors may determine ; and the city council and county commissioners, or either of such bodies, may require such other reports and exhibits of the condition and management of such institution as they may deem proper. [1887, March 19: 84 v. 136, 138.] .Sec. 2107k R. S. [Powers and duties of superintendent.] The superintendent of such workhouse shall have the control and management of its affairs, subject to the laws of the state and the ordinances of the corporation, and the rules and regulations CHARITABLE AND REFORMATORY INSTITUTIONS. 619 adopted by the board for its government. And it shall be his duty to obey all written orders and instructions of the board not inconsistent with the laws, rules, and regulations relating to the government of the institution. [1887, March 19: 84 v. 136, 138.] Sec. 2107 1 R. S. [General powers of superintendent.] The superintendent shall be responsible for the manner in which the institution is managed and conducted, shall reside at the same, devote his time and attention to the proper business thereof, and visit and examine into the condition of every de- partment thereof, and of each person confined therein, daily, or as often as good order or necessity may require, and he shall exercise a general supervision and direction in regard to all matters of discipline, police regulation and business of the institution. [1887, March 19 : 84 v. 136, 138.] Sec. 2107m R. S. TDeputy superintendent.] In the absence or inability of the superintendent, the deputy superintendent of the institution shall, so far as relates to the discipline thereof, perform the duties of the superintendent. [1887, March 19 : 84 v. 136, 138.] Sec. 2107nR. S. [Removal of officers and employes.] The board for misconduct or willful neglect of duty, and upon suffi- cient proof thereof, may remove any officer or employe of the institution, except the superintendent thereof, who shall be re- moved for cause and in the manner provided for the removal of city officers; and any employe of the superintendent may be discharged at his discretion, but no officer shall be removed by the board, until he has had an opportunity to be heard in his defense. [1887, March 19: 84 v. 136, 138.] Sec. 2107oR. S. [Cost of maintaining such workhouse, how paid; levy of tax; dividing deficiency in products of workhouse.] The costs of maintaining such joint city and county workhouse over and above the proceeds arising from the sale of the prod- ucts thereof, shall be borne by such city and county jointly, and such expenses shall be paid quarterly by such city and county out of the respective treasuries thereof, upon the cer- tificate of the secretary of such joint city and county workhouse on the approval of the council of such city, and the commis- sioners of such county. And the board of county commission- ers of any county having such joint city and county work- house, are hereby authorized and required to levy upon the general tax duplicate of the county outside of the corporate limits of such city, such sum as may be necessary, not exceed- ing five-tenths* of one mill on the dollar valuation; and the city 620 THE OHIO MUNICIPAL CODE. council of such city are hereby authorized and required to levy upon the general tax duplicate of such city, such sum as may be necessary, but not exceeding one mill on the dollar valuation for the aforesaid maintenance; and the board of such joint city and county workhouse directors, the city council of such city and the county commissioners of such county, in ascertaining and determining at the end of each quarter the amount to be paid to such board to meet any deficiency in the products of such joint workhouse to maintain the same, shall take into ac- count and be governed by the number of convicts furnished by such city and such county, the number of- days' labor per- formed by the convicts from each, the value of such labor, and the relative costs and expenses of taking care of, managing, and disciplining the convicts of each, and give to such city and county each full credit for the value of the products of such workhouse produced by the labor, skill and diligence of the convicts from each, and charge to the account of each (city and county) the costs to such institution of working, managing, maintaining, taking care of, and disciplining its convicts, ana make assessments upon such city and county for the mainte- nance of such institution accordingly. [1887, March 19 : 84 v. 136, 138.] Sec. 2107p It. S. [Inmates from other counties.] Any city and county or county having or that may hereafter erect a joint city and county workhouse, or a county workhouse, may receive as inmates of such joint city and county workhouse, or county workhouse, persons sentenced thereto as provided by law, from counties and municipal corporations having no workhouse, upon such terms and for such length of time as may be agreed upon by the commissioners of such county or the council of such mu- nicipal corporation, and the board of such joint city and county workhouse directors, or county workhouse directors ; provided, that such convicts so received shall, in all respects, be and re- main under control of the directors of such workhouse, and sub- ject to the rules, regulations and discipline of such workhouse the same as other convicts therein detained. [91 v. 180 ; 84 v. 136, 139.] Sec. 2107q R. S. [Counties and cities having no workhouse may make provisions for care of prisoners in workhouse of other county, etc.; payment of expenses; fees of officers.] The commis- sioners of any county, or the council of any municipal corpora- tion, wherein there is no workhouse, may agree with the coun- cil of any municipal corporation or other authority having con- trol of the workhouse of any other city, or with the directors of CHARITABLE AND REFORMATORY INSTITUTIONS. 621 any district or joint city and county workhouse, or county workhouse, upon terms and conditions, upon which persons convicted of misdemeanor, or of the violation of any ordinance of such municipal corporation by any court of [or] magistrate of such county or municipal corporation, having no workhouse, may be received into such workhouse, under sentence of such court or magistrate; and the county commissioners of any such county, and the council of any such municipal corporation, are authorized to pay the expenses incurred under such agreement out of the general fund of such county, or of the municipal corporation, upon the certificate of the proper officer of such Workhouse ; and the sheriff or other officer transporting any per- son to such workhouse shall have the following fees therefor: Six cents per mile for himself, going and returning, and five cents per mile for transporting such convict, and five cents per mile going and coming for the service of each guard, to be al- lowed as in penitentiary cases; the number of miles to be com- puted by the usual routes of travel, to be paid in state cases out of the general fund of the county, on the allowance of the county commissioners, and in case for the violation of the ordi- nances of any municipal corporation by such municipal corpora- tion on the order of the council thereof. [91 v. 180 ; 84 v. 136, 139.] Sec. 2107rR. S. [Sentence and order of court in such cases; credits on fines. ] When any person has been convicted of a mis- demeanor or of the violation of any ordinance of a municipal corporation, by any court or magistrate of this state, or of such municipal corporation, in a county or municipal corporation having no workhouse, and the commissioners of such county, or council of such municipal corporation have made provisions as allowed by law for receiving persons so convicted into the workhouse of a city in any other county or district, or a joint city and county workhouse, or a county workhouse in this state, it shall be competent for such court or magistrate, in its dis- cretion, where imprisonment in the county or municipal jail may by law or ordinance be imposed in punishment of such of- fense, to sentence such person to such workhouse for a period not exceeding the maximum period of confinement in the county or municipal jail allowed by statute or ordinance for such of- fense ; and in all such cases such court or magistrate may fur- ther order that such person stand committed to such workhouse until the costs of prosecution are paid, or he be discharged, as herein provided ; and in all cases where a fine may be imposed in whole or in part punishment of an offense, or for violation 622 THE OHIO MUNICIPAL CODE. of an ordinance of any municipal corporation, and such court or magistrate could order that such person stand committed to the jail of the county or municipal corporation until such fine and costs of prosecution are paid, such court or magistrate may order that such person stand committed to such workhouse until such fine and the costs of prosecution are paid, or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or be otherwise legally discharged. [91 v. 181 ; 84 v. 136, 140.] Sec. 2107s R. S. [Warrant for commitment and detention; con- finement in jail.] When a person is sentenced to such work- house by the common pleas court, the clerk thereof shall make and deliver to the sheriff a certified copy of the docket and journal entries, showing the crime charged and the sentence of the court, which shall be delivered by the sheriff to the proper officer in charge of such workhouse, which shall be his warrant for detaining such person in custody therein ; in cases of such, convictions by any other court, or magistrate such court or mag- istrate shall make a certified transcript from the docket in such case, which shall in like manner be delivered to the marshal or constable, or sheriff, by such court or magistrate, which shall be delivered by such officer to the proper officer in charge of such workhouse, which shall be his warrant for detaining such person in custody therein ; in all cases of sentences to a work- house, the person so sentenced may be confined in the jail of the county or corporation prison for such period as may be reasonably necessary for the officer to procure the papers and make arrangements to transport him to such workhouse. [1887, March 19: 84 v. 136, 140.] Sec. 2107tR. S. [Payment of fines and costs.] When a per- son is committed to such workhouse under sentence that he stand committed to such workhouse until the fine and costs of prosecution assessed against him are paid, as provided in sec- tion two thousand one hundred and seven (p) of this act, such person may pay in money, in whole or in part, to the board of workhouse directors, such fine and costs assessed against him, and the said board shall receive and turn the same quarterly, into the treasury of the county from which such person was committed; provided, that such person was so committed for the violation of any law of the state ; and when any person so committed for the violation of an ordinance of a municipal corporation shall make such payment to such board, it shall be its duty to receive and quarterly turn the same into the treas- CHARITABLE AND REFORMATORY INSTITUTIONS. 623 ury of the municipal corporation from which such person was committed. [1887, March 19: 84 v. 136, 141.] Sec. 2107u R. S. [Improvement, etc., of grounds, buildings, etc.] The board of joint city and county workhouse direc- tors, or county workhouse directors, may enlarge or improve the buildings, shops or grounds from any surplus that may arise from income of such workhouse, or from the levy for such main- tenance made by such county and city, or county; but no levy for maintenance shall be made when it has not been necessary to use more than one-half of the avails of the levy of the year preceding; and any surplus arising from the carrying on of [the] such joint workhouse shall be returned to the general fund of such city and county in the proportion that such sur- plus may have been produced by the labor of the convicts of each, and any surplus arising from the carrying on of such county workhouse shall be returned to the general fund of the county. [91 v. 181; 84 v. 136, 141.] Sec. 2107vR. S. [Fees of officers.] In all cases of sentence and commitment to such joint city and county workhouse, all officers shall be paid the same fees therefor allowed by law for similar services in other cases; such fees in cases of misde- meanor, shall be paid out of the county treasury of the county from which such commitment was made, and when such sen- tence is for violation of an ordinance, such fees shall be paid out of the treasury of the municipal corporation from which such commitment was made. [1887, March 19: 84 v. 136, 141.] Sec. 2107w R. S. [Workhouse directors may provide for parole of prisoners.] The foregoing board of joint city and county workhouse directors shall have power to establish rules and reg- ulations under which and specify the conditions on which any prisoner may be allowed to go upon parole outside of the build- ings and enclosures, but to remain, while on parole, in the legal custody and under the control of the board, and subject at any time to be taken back within the enclosure of said institution; and full power to enforce such rules and regulations, and condi- tions, and to retake and re-imprison any convict so upon parole, is hereby conferred upon said board, whose written order, cer- tified by its secretary, shall be a sufficient warrant for all offi- cers named therein, to authorize such officer to return' to actual custody any conditionally released or paroled prisoner; and it is hereby made the duty of all officers to execute said order the same as ordinary criminal process ; and said board may employ or authorize any person or persons to see that the conditions of 624 THE OHIO MUNICIPAL CODE. said paroles are not violated, and in case of such violation to return any such prisoner so violating said parole to said work- house, and the time between the violation of the conditions of such parole or conditional release (by whatever name), as en- tered by order of the board in the record of its meetings, and the re-imprisonment or return of such prisoner shall not be counted as any part or portion of time served under any sentence; and any prisoner at large upon such parole who fails to return to the actual custody of said workhouse as may be specified as one of the conditions of his parole, or commits a fresh crime and is convicted thereof, shall be, on the order of said board, treated as an escaped prisoner and subject to the penalties named in section two thousand one hundred and three (2103) of the Eevised Statutes, [87 v. 39.] Agreement for Use of Work-House. Sec. 6801a E. S. [Counties having no work-house may contract with work-house authorities; fees for transporting persons to work-house.] It shall be competent for the commissioners of any county or the council of any municipality, wherein there is no work-house, to agree with the city council or other authority having control of the work-house of any city in any other county, or with the board of district work-houses having a work-house, upon terms and conditions upon which persons convicted of misdemeanors, or of the violation of any ordinance of such municipality, by any court or magistrate of such county or municipality having no work-house, may be received into such work-house under sentence of such court or magistrate ; and the county commissioners, or the council of any municipality are authorized to pay the expenses incurred under such agreement, out of the general fund of the county or municipality, upon the certificate of the proper officer of such work-house; and the sheriff or other officer transporting any person to such work- house shall have the following fees therefor : six cents per mile for himself, going and returning, and five cents per mile for transporting each convict, and five cents per mile going and coming for the services of each guard, to be allowed as in peni- tentiary cases, the number of miles to be computed by the usual routes of travel, to be paid in state cases out of the general fund of the county, on the allowance of the county commissioners, and in cases for the violation of the ordinances of any munici- pality, bv such municipality on the order of the council thereof. [1884, March 26 : 81 v. 84; 80 v. 220.] Sec. 6801b R. S. [Courts may sentence to work-house for jail offense.] When any person has been convicted of a misdemean- CHARITABLE AND REFORMATORY INSTITUTIONS. 625 or, or of the violation of any ordinance of a municipality by any court or magistrate of this state or such municipality, in a county or municipality having no work-house, and the commis- sioners of such county, or council of such municipality, have made provisions as allowed by law for receiving persons so con- visted into the work-house of a city in any other county or dis- trict in the state, it shall be competent for such court or magis- trate, in its discretion, where imprisonment in the county or municipal jail, may by law or ordinance be imposed, in punish- ment of such offense, to sentence such person to such work-house for a period not exceeding the maximum period of confinement in the county or municipal jail allowed by statute or ordinance for such offense ; and in all such cases, such court or magistrate may further order that such person stand committed to such work-house until the costs of prosecution are paid, or he be dis- charged as herein provided ; and in all cases where a fine may be imposed in whole or part in punishment of an offense, or for a violation of an ordinance of any municipality, and such court or magistrate 1 could order that such person stand committed to the jail of the county or municipality until such fine and the costs of prosecution are paid, such court or magistrate may order that such person stand committed to such work-house until such fine and the costs of prosecution are paid, or until he be dis- charged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such work- house, or be otherwise legally discharged. [1884, March 26: 81 v. 84; 80 v. 221.] Sec. 6801c R. S. [Proceedings when committed by common pleas court; when committed by other court.] Where under the provisions of the preceding sections, a person is sentenced to such work-house by the court of common pleas, the clerk shall make and deliver to the sheriff a certified copy of the docket and journal entries showing the crime charged and the sentence of the court, which shall be delivered by the sheriff to the proper officer in charge of such work-house and shall be his warrant for detaining such person in custody therein ; in cases of such con- victions by any other court or magistrate, such court or magis- trate shall make a certified transcript of the docket in such case, which shall in like manner be delivered to the marshal, or con- stable, or sheriff by such court or magistrate, which shall be delivered [by] such officer to the proper officer in charge of such work-house and shall be his warrant for detaining such person in custody therein ; in all cases of sentences to work-house under the provisions of this act, the person so sentenced may be con- 626 TEE OHIO MUNICIPAL CODE.' fined in the jail of the county for such period as may be reason- ably necessary for the officer to procure the papers and make arrangements to transport him to such work-house. [1883, April 19: 80 v. 221.] 3. HOSPITALS. 1 Sec. 2153 R. S. [Board of hospital commissioners.] When the council of a city or village enters upon and takes possession of grounds purchased, appropriated, or otherwise obtained for hospital purposes, and, by resolution or ordinance, determines to erects thereon or rebuild a hospital, the erection and repair thereof, or any addition thereto, and the management, direc- tion, and control of the same, shall be vested in a board of five commissioners, called the "-Board of Hospital Commission- ers." 2 [66 v. 197, § 283.] (1) Title, division and chapter. Liability for negligence. — There • — Sections here given formed is no liability on the part of a cor- part of Chap. 3, Div. 6, Title XII., poration maintaining a charity R. S., relating to hospitals. For hospital for the negligence of a re-enacted sections (2165, and nurse selected with due care. Con- 2167-9 to 2167-21, inclusive) see §§ nor v. Sisters of the Poor, 7 N. P. 141 and 220 of the Code, pp. 365 514. and 497. Power to establish and main- (2) Managing board. — In cities tain hospitals is conferred upon all see § 141 of the Code, page 351. municipalities in paragraph 16 of In villages, see § 204 of the Code, § 7 of the Code, page 55. Power to page 456. appropriate property for hospital Scope of authority. — See Zanes- purposes, see § 10 of the Code, page ville v. Crossland, 8 C. C. 652, re- 81. versed in 56 0. S. 735. Sec. 2154 R. S. [Who shall compose the board.] The board 1 shall consist of the mayor, who shall, by virtue of his office, be its president, and four trustees, to be appointed by the mayor, with the consent of the council, each of which commissioners shall be resident freehold electors of the corporation, and they shall not receive any compensation for their services. [66 v. 197, § 284.] ( 1 ) Managing board. — In cities In villages, see § 204 of the Code, Bee § 141 of the Code, page 351. page 456. Sec. 2154a R. S. [In Portsmouth board of public affairs 1 to exercise powers of hospital commissioners.] In cities of the sec- ond class, third grade c the board of public affairs shall have the powers, and perform the duties conferred and imposed CHARITABLE AND REFORMATORY INSTITUTIONS. 627 upon the board of hospital commissioners, in such cities, by chapter three, division six, title twelve of the Revised Statutes of Ohio. [93 v. 616.] (1) See note (1) to § 2154 R. S., supra. Sec. 2155 R. S. [Their terms of office.] The term of office of the appointed members of the board * shall be four years, but the members first appointed shall hold their offices, respec- tively, as shall be determined by lot, at the first meeting of the board, for the period of one, two, three, and four years, and thereafter one member shall be appointed each year for the full term of four years; and a majority of the board shall constitute a quorum. [QQ v. 197, § 285.] (1) See note (1) to § 2154 R. S., supra. Sec. 2156 R. S. [Their powers, compensation of appointees, etc.] The board 1 shall have power to appoint a clerk, an architect, a superintendent, and other necessary employes, fix their compensation, and adopt a suitable plan for such hospital, and make all contracts for the erection and furnishing of the same; but the salary of the appointees, and the plan of the hospital, before any contract for its erection is entered into, shall be submitted to and approved by the council. [66 v. 197, § 286.] (1) See note (1) to § 2154 R. S., supra. Sec. 2157 R. S. [Regular meetings, and record thereof.] The board 1 shall hold regular meetings at such time and place as may be agreed upon, and cause to be kept a full record of its proceedings ; and no contract which it enters into shall be valid until assented to at a regular meeting and concurred in by a majority of all the members, and such assent entered on the minutes of its proceedings. [66 v. 197, § 287.] (1) See note (1) to § 2154 R. S., supra. Sec. 2158 R. S. [No expenditure without authority of board; no member to be interested, etc.] No money shall be paid for the erection, rebuilding, or repair of a hospital, or for an addi- tion thereto, or for supplies therefor, unless first authorized by the board, 1 and upon the warrant of the proper officer of the corporation; and no member of the board shall be in- terested, 2 directly or indirectly, in any contract concerning the institution. [66 v. 197, § 288.] THE OHIO MUNICIPAL CODE. (1) See note (1) to § 2154 R. S., tract.— See § 45 of the Code and supra. note 3 thereunder, page 177. (2) Officer interested in con- Sec. 2159 R. S. [Plans, specifications, etc.] It shall be the duty of the board, 1 before entering into any contract for the erection of a hospital building, to cause plans, specifications, detailed drawings, and forms of bids to be prepared ; and when adopted by the board, it may, at its discretion, cause the plans and drawings to be lithographed, and the specifications, and forms of bids, and a form of contract and bond, to be prepared by the solicitor of the corporation, and have the same printed for distribution among the bidders. [66 v. 198, § 289.] (1) See note (1) to § 2154 R. S., supra. Sec. 2160 R. S. [Terms of contracts, etc.] All contracts shall be made in the name of the corporation, and it shall be stipulat- ed therein that the contractors will not execute any extra work, or make any modifications or alterations mentioned in the specifications and plans, unless ordered in writing by the board ; 1 that they will not claim any pay for the same unless such written order is given, and the extra price of compensa- tion fixed and agreed upon; and copies of the plans and draw- ings, attested by the contractor, and the original bids, speci- fications, and contracts shall be deposited in the office of the clerk of the corporation. 2 [66 v. 199 (198), § 290.] (1) See note (1) to § 2154 R. S., to contractor, it was held that the supra. action of the board amounted to (2) Waiver of written orders. a waiver of written orders and — Where hospital board reserved contractor could recover for work the right to change, alter, or mod- done. Cincinnati v. Cameron, 33 ify plans, and exercised the right, 0. S. 336. But see Wellston v. Mor- but no written orders were issued gan, 65 O. S., 219. Sec. 2161 R. S. [Proposals to be advertised for.] The board 1 shall not enter into any contract for work or materials, except as relates to procuring plans, drawings, specifications, and forms of bids, without first causing thirty days' notice to be given in one or more newspapers of general circulation in the corporation, that sealed proposals will be received for doing the work or furnishing the materials. \_66 v. 199 (198), § 291.] (1) See note (1) to § 2154 R. S., supra. CHAEITABLE AND REFORMATORY INSTITUTIONS. 629 Sec. 2162 R. S. [Bids to be accompanied by bond, etc.] Each bid shall be accompanied with a bond, signed by sufficient sure- ties, for the acceptance of the contract, if awarded by the board, 1 to fully secure any difference between the amount of such bid and the next higher bid; and such amount shall be collected by the board, and paid into the hospital fund, in case of refusal by the bidder to enter into contract according to his bid, within such reasonable time as the board may deter- mine. [66 v. 199 (198), §292.] (1) See note (1) to § 2154 R. S., supra. Sec. 2163 It. S. [Bids to be sealed, indorsed, etc.] All bids shall be inclosed in a sealed envelope and deposited with the clerk of the board, and such sealed envelope shall have indorsed thereon the nature of the same ; and all bids shall be opened at a regular meeting of the board. 1 [66 v. 198, § 294.] (1) See note (1) to § 2154 R. S., supra. Sec. 2164 R. S. [Contract with lowest bidder.] The board 1 shall enter into contract with the lowest responsible bidder, 2 upon his giving bond to the corporation, with such surety as the board shall approve, that he will perform the work and furnish materials in accordance with his contract; and on failure of such bidder, within a reasonable time, to be fixed by the board, to enter into bond with the surety before pro- vided, a contract may be made with the next lowest responsible bidder, and so on, until a contract is effected by a. contractor giving bond as aforesaid; provided, that the board may reject •any and all bids. 3 [66 v. 198, § 293.] (1) See note (1) to § 2154 R. S., (3) § 2165 R. S. is re-enacted supra. in § 141 of the Code. (2) Letting of contracts. — See notes to § 143 of the Code. Sec. 2166 R. S. [Council may enter into agreement with any corporation, etc.] 1 The council may enter into an agreement with a corporation or association, organized for charitable pur- poses in such municipal corporation, for the erection and man- agement of a hospital for the sick and disabled, and for a per- manent interest therein, to such extent and upon such terms and conditions as may be agreed upon between the council and such corporation or association; and the council sh^ll provide" for the payment of the amount agreed upon, for any interest so ac- quired, either in one payment, or installments, or so much, 630 THE OHIO MUNICIPAL CODE. from year to year, as the parties may stipulate. 2 [66 v. 199, § 296.] (1) Public use of private cor= (2) Contracting power of poration's hospital. — See para- council. — See Zanesville v. Cross- graph 23 of § 7 of the Code, page land, 8 C. C. 652, reversed, with- 61. out report, in 56 O. S. 735. Sec. 2167 R. S. [Exception of application as to Commercial Hospital of Cincinnati.] The provisions of this chapter shall, so far as applicable, govern hospitals heretofore established and erected ; but nothing in this title repeals any part of the act of March 11, 1861, " regulating the Commercial Hospital of Cincinnati," or the acts amendatory thereof and supplemen- tary thereto. 1 [67 v. 33, § 297.] (1) Government of Cincinnati by virtue of numerous legislative Hospital. — The government of the enactments, a municipal institution, commercial hospital of Cincinnati The new Code now confers upon was held under former laws to be the board of public service in all in the board of trustees and city cities the management and control to have no authority over it. State of municipal hospitals. See § 141 v. Cincinnati, 23 O. S. 445; State of the Code. The sections which v. Davis, 23 O. S., 434. But in Cin- follow, 2167-1 to 2167-6 R. S., in- cinnati v. Trustees, 66 O. S., 440, elusive, are special acts for the gov- it was held that the Cincinnati hos- ernment of the Cincinnati hospital, pital, whether originally a state or and are not expressly repealed by a municipal institution, had become, the Code. Sec. 2167 — 1 E. S. [Cincinnati hospital.] The public infirm- ary in the city of Cincinnati, established by an act entitled " an act establishing a commercial hospital and lunatic asylum' for the State of Ohio," passed January 22, 1821, shall hereafter be called and known by the name of the " Commercial Hospital of Cincinnati," 1 and shall remain upon the present hospital lot, and shall be used for the reception and care of such sick persons as may by law be entitled to admission therein for treatment as patients. [58 v. 151.] ( 1 ) By a supplementary act pital of Cincinnati " was changed passed April 3, 1868 (65 v. 232) to the "Cincinnati Hospital." the name of the " Commercial Hos- Sec. 2167 — 2R. S. [Government and control thereof; trustees: how appointed; term of office.] The government and control of said hospital shall be vested in a board of seven trustees, 1 to be created as follows : The mayor of the city of Cincinnati and the director of the city infirmary of said city eldest in CHAEITABLE AND REFORMATORY INSTITUTIONS. 631 commission shall, ex-officio, be members of said board ; one trus- tee shall be appointed by the governor of the state, two by the judges of the superior court of Cincinnati, and two by the judges of the court of common pleas of Hamilton county. The term of office of said trustees so appointed shall be five years, except that those first appointed shall be classified by lot, so that their terms shall expire in one, two, three, four and five years respectively. All vacancies from any cause shall be filled for the unexpired terms as originally provided. Said trustees shall receive no compensation. [58 v. 151.] (1) Government of Cincinnati hospital.— See note to § 2167 R. S., supra. Sec. 2167 — 3 R. S. [Trustees to make rules and appoint attend- ants.] 1 The trustees 2 shall have the exclusive management of said hospital; they shall make rules and regulations for the conduct and government of the same; they shall appoint such officers and servants of said hospital, including all medical at- tendants resident therein, as they may deem necessary, and may remove them at pleasure, and shall fix their compensation. [58 v. 151.] (1) Supplemental § 2 167-3a R. S, (2) See note to § 2167 R. S., 95 0. L. 259 was repealed by Code. supra. Sec. 2167 — 4 R. S. Board of trustees may levy a tax for certain purposes ; proviso ; board to make rules for the government of the hospital.] That the board of trustees 1 of the Cincinnati Hos- pital are hereby authorized to levy a tax not exceeding forty- eight one-hundredths of one mill on the dollar valuation on the grand duplicate of all taxable property in said city of Cincin- nati, in each and every year, and certify the same to the auditor of the city of Cincinnati, on or before the first Monday of June annually; and the county auditor shall place the same on the tax duplicate of said county, the receipts whereof shall be paid into the county treasury, as a special fund for the payment of all expenses incurred for building, rebuilding, furnishing, sup- plying, and supporting said hospital and grounds; and the city treasurer shall disburse the same, on the order of the board of trustees, signed by the president^ and countersigned by the secretary of said board; provided, that the said trustees shall levy only the amount of taxes necessary for the purposes before mentioned ; and the amount which the council of the city of Cin- nati is now authorized to levy, shall be and is hereby reduced 632 THE OHIO MUNICIPAL CODE. by the amount which the said trustees shall certify to the said auditor, as herein provided ; and in no one year shall the amount so certified by the said trustees, and the amount authorized to be levied by council, exceed the amount which said council has a right by law to levy. The board of trustees shall adopt rules and regulations for the government of said institution, and for the admission of patients and discharge of convalescents from said hospital and said branch hospitals, as may be established by law. [1878, May 13 ; 75 v. 1166 ; 72 v. 197 ; 61 v. 142 ; 58 v. 161, 162; 58 v. 151.] (1) See note to § 2167 R. S., supra. Sec. 2167 — 5R. S. [Duties and rights of the faculty of the medical college of Ohio; trustees to make suitable provisions; power of the trustees ; admission of pupils of other colleges into the hospital; library; medical library may be deposited in public library of the city of Cincinnati; proviso.] It shall be the duty of the faculty of the medical college of Ohio, 1 to visit and attend the patients in said hospital, and to render them proper medical and surgical advice and service without compensation therefor, in consideration of which said faculty shall have the privilege of introducing the pupils of said college into said hospital, under such regulations as the trustees 2 may prescribe, to witness the medical and surgical treatment of patients. The trustees may make such provisions as to them may seem ad- visable, for medical and surgical advice and service to said patients additional to or other than that rendered by said faculty; but no compensation shall be paid therefor, except to medical attendants resident in the hospital. The trustees shall, under such regulations as they may prescribe, admit medical students, not pupils of said college, to witness tbe medical and surgical treatment of patients in said hospital. The trustees shall have the power, whenever they may deem it for the welfare of said patients so to do, to dismiss the faculty of said college from attendance on said hospital. The trustees may affix to the introduction or admission into said hospital of the pupils of said college or other medical students, such fee as they may deem proper ; but the same shall be alike to all, and shall be paid to the treasurer of the city of Cincinnati, and be used as a fund for establishing and maintaining a medical li- brary and museum for said hospital ; and said board of trustees shall, from time to time appropriate and apply said fund for the purchase of a library of scientific books and specimens, and illustrations directly connected with, and collateral to, the culti- CHARITABLE AND REFORMATORY INSTITUTIONS. 633 vation of medical and surgical science, which shall be open at reasonable hours to all physicians of the city of Cincinnati, and to all such pupils and medical students admitted to the privi- leges of said hospital, as aforesaid, free of charge. The trus- tees shall expend, annually, at least two-thirds of said fund for books, periodicals, and binding for said medical library, and the said medical library shall be kept in said commercial hospital of Cincinnati, but in the discretion of the board of trustees of the said commercial hospital of Cincinnati may be deposited in the fire-proof building of the public library of Cincinnati; provided,, the managers of said public library shall receive it free of charge, provide separate alcoves or apartments for it, catalogue, and furnish a distinctive label to each book of said medical library, and keep it accessible to those entitled to its use. The trustees shall publish annually, a statement of the receipts and expenditures of said fund. [1875, March 27 : 72 v. 223 ; 67 v. 120 ; 58 v. 151.] ( 1 ) Faculty of college. — The Powers. — They may appoint resi faculty are to render such services dent physicians and the city is li- without compensation as is consist- able for a reasonable sum for their ent with their duties as professors services. lb. and practitioners. Alexander v. (2) See note to § 2167 R. S., Cincinnati, 2 H. 183. supra. Sec. 2167 — 6R. S. [Meetings of the trustees; record; report.] The trustees * shall hold meetings according to such rule as they may adopt; they shall keep a record of their proceedings; and four members must concur in any act of the board. They shall annually, on or before the first day of March, make a report to the mayor of the city of Cincinnati of their management of the hospital, its condition and wants, with such information as to the patients therein, and the medical and surgical treatment of them, as said trustees may deem of public interest. [58 v. 151.] (1) See note to § 2167 R. S., supra. 4. INFIRMARIES. 1 Sec. 2173 R. S. [Appointment of overseers of the poor.] The council shall provide by ordinance for the appointment by the mayor, subject to the approval of the council, of such number of persons as may be deemed necessary, not to exceed one in each ward, to act as overseers of the poor, 2 and shall prescribe the duties of such persons in relation to the care of the poor. 634 THE OHIO MUNICIPAL CODE. and their removal, when necessary, to the infirmary; but such persons shall not receive any compensation for their services: provided, that in cities of the first grade of the first class, the board of infirmary directors 2 may divide such cities into dis- tricts, not exceeding six in number, bounded by ward -lines, and may appoint one overseer of the poor for each of said districts. Such overseers shall act under the supervision of said board, and shall each serve such length of time not exceeding one year, and each receive such pay, not exceeding six hundred dollars per annum, as said board shall prescribe, and they shall be subject to removal at the pleasure of said board. The said overseers shall have charge of the poor in their respective dis- tricts, and shall recommend in writing to the board such as- sistance as they may deem proper, but shall not themselves be allowed to directly furnish the assistance. Said board shall also have, in addition to the powers conferred by law upon all boards of infirmary directors, the power to appoint a superin- tendent, clerk, store-keeper, physician, and matron, and to pre- scribe their duties, fix their terms of office and compensation, and also to remove them at pleasure. [1880, February 25 : 77 v. 16, 17; Eev. Stat. 1880; 72 v. 12, § 302.] (1) Title, division and chapter, enacted, see § 141 of the Code, page — Sections under this heading 351. formed part of Chap. 4, Div. 6, Ti- Power to establish and main- tie XII., R. S. All the sections of tain infirmaries is conferred upon this chapter as given in the Revised all municipalities in paragraph 16 Statutes are left unrepealed except of § 7 of the Code, page 55. § 2170 and (2170-1). §§ 2180-1 to Managing board for infirmaries. 2180-4, inclusive, relating to infirm- In cities, see § 141 of the Code, page ary debts in Cincinnati, are obso- 351. In villages, see § 204 of the lete. Code, page 456. For sections on Infirmaries re- Sec. 2174 R. S. [Duties of infirmary directors in case of partial relief.] Upon complaint being made or information given to the directors, 1 that any person residing in the city is in a con- dition that requires public assistance or support, said directors shall inquire into the condition and necessities of such person, and if satisfied that relief ought to be granted at public expense, and that such person requires temporary or partial relief only, and that for any cause it would not be prudent to remove such person to the city infirmary, such directors may afford such re- lief, at the expense of the city, without such removal ; and the directors of any city infirmary have the same power of remov- ing paupers settled in some other county in this state which, CHARITABLE AXD REFORMATORY INSTITUTIONS. 635 by law, is conferred on county infirmary directors. [73 v. 233, § 22.] (1) See note (2) to § 2173 R. S., supra. Sec. 2174 — 1 R. S. [Lucas county may give outside relief.] In all counties containing a city of the third grade, first class, if the infirmary directors, 1 after making proper investigation in regard to any case brought to their notice, are satisfied that the person or persons are in a condition requiring public relief, and the circumstances in the case are such as to render their removal to the infirmary inexpedient, they may render such other relief as in their judgment is required ; and for the pur- pose of avoiding fraud and imposition and enabling said board to intelligently determine what persons in such city are entitled to public relief ; and if there now be in such city a society incor- porated under the laws of this state, any part of the purposes or business of which it is to make, inquire into, keep and fur- nish written reports of the condition and circumstances of per- sons living within such city, entitled to, or demanding public assistance, or relief, said board of infirmary directors is hereby authorized and directed to enter into contract with such society for making and furnishing to such board, upon its written requi- sition, reports of said society, upon all such persons within said city and county, demanding of said board public relief; and for the services of such society in making such investigations and reports, said board is hereby authorized to pay to such so- ciety not to exceed the sum of two hundred dollars ($200.00) per month, and the same shall be deemed a part of the legitimate expenses of said board, and be allowed by the county commis- sioners and auditor and paid as such. [1902, April 15 : 95 v. 149.] (1) See note (2) to § 2173 R. S., supra. Sec. 2175 R. S. [Duties of city infirmary directors in case of no legal settlement] The directors 1 of an infirmary erected and established in any city for the accommodation of its poor, shall not require the directors of the county infirmary of the county in which such city is situated, to receive and provide for persons having no legal settlement within this state, 2 or whose place of residence is unknown, or to charge the commis- sioners of the county with the expense of providing for such persons in the city infirmary; but the directors of such city infirmary shall furnish relief and support to such persons in said city infirmary, applying therefor the same as county in- 636 THE OHIO MUNICIPAL CODE. firmary directors are required to do, and have like power of removing such persons as county infirmary directors have to such other city or county infirmary where such pauper's legal settlement is ; but the provisions of this section shall only apply to counties in which there is a countv and a city infirmary. [73 v. 233, § 23.] ' (1) See note (2) to § 2173 R. S., supra. (2) Legal settlement, how gained. — Residence for a year of pauper is necessary and it must be open and notorious. Henrietta Twp. v. Brownhelm Twp., 9 O. 76. But the authorities do not have to be informed; bona fide residence is all that is necessary. Henrietta Twp. v. Oxford Twp., 2 0. S. 32. Residence must be accompanied with the intention to make it the place of abode. lb. How lost. — Settlement is not lost by residing elsewhere for a year, provided there is an intention to return. lb. By voting in another state and acquiring a legal settlement there, the former legal settlement is lost. Crane Twp. v. Antrim Twp., 12 O. S. 430. Pauper, who is. — One having credit and no property is not a pau- per. Beach v. Marion Twp., 2 W. L. M., 95. But one having prop- erty elsewhere, but who is unable to support himself, is entitled to re- lief. 76. Sec. 2176 R. S. [Concerning orphan asylums in cities of the first and second class.] In all cities in which orphan asylums have been or may be established by law, or as private institu- tions, the directors 1 of the city infirmary or other persons having charge of the poor in such cities, may make such ar- rangements with the trustees or the person having charge of said asylums, for the support and education of all orphan or other children coming under their control by virtue of the laws in force at the time, as they deem proper, and shall allow such compensation as is reasonable and just, to be paid out of the poor fund of such city. 2 [51 v. 412, § 2 ; S. & C. 891.] (1) See note (2) to § 2173 R. S., supra. (2) §§ 2177, 2178, 2179, and 2180 R. S. were repealed in 77 O. L., 16. Sections 2180-1, 2180-2, 2180-3, and 2180-4 provided for the payment of certain former debts and warrants against the infirmary in the city of Cincinnati, and are now obsolete. 5. CHILDBED'S HOMES. 1 Sec. 2181 R. S. [Powers of trustees and managers.] In cities of the first and second class, where children's homes or indus- trial schools may be established under the incorporation law CHARITABLE AND REFORMATORY INSTITUTIONS. 637 of the state, the trustees and managers of such institutions may take under their guardianship all children who may be placed under their care and management in either of the following modes : First. Children under sixteen years of age, who are volun- tarily surrendered by the father and mother, or in case of the death, or long continued or willful absence of the father, by the mother, or by their guardians, to the care of such trustees and managers, they being by virtue of such surrender invested with the same power over the persons of the children as the parents or guardians. Second. Children under sixteen years of age who, upon the application of the trustees and managers, may be committed to their care by any judge of probate court, or mayor of such city, on account of vagrancy or exposure to want and suffering, or neglect or abandonment by their parents or guardians., or other persons having custody of such children, or in accordance with the request of their mother or next friend in case of the habitual intemperance, abuse, or neglect of their father; and such judge of probate court, or mayor, so committing any child to the care of the trustees and managers, shall annex to the commitment an abstract of the evidence taken by him and on which his adjudication was founded, which evidence shall have been taken under- oath. [63 v. 51, § 1 ; S. & S. 726.] ( 1 ) Title, division and chapter. and none are re-enacted by the — Sections carried here formed Cede. Chap. 5, Div. 6, Title XII. R. S. Aid of children's homes.— See None of these sections are repealed § 929-1 R. S., supra, page 609. Sec. 2182 R. S. [May act as guardian of children, and procure them homes.] The trustees and managers shall have the guar- dianship of such children during their minority, and may, when it may seem proper, place them in suitable homes, having scrupulous regard to the religious and moral character of the persons with whom such children are placed, in order to secure to them the benefits of good example and wholesome instruc- tion, and the opportunity of becoming intelligent and useful men and women. [63 v. 51, § 2 ; S. & S. 727.J Sec. 2183 R. S. [And may indenture them; record of age, parentage, etc., must be kept.] The trustees and managers shall require an agreement to be entered into, that each and every child so placed shall be furnished with good and sufficient food and clothing and a suitable common school education ; the trustees and managers may indenture any such child when 638 THE OHIO MUNICIPAL CODE. in their judgment it may seem best, and shall provide them- selves with books, in which shall be entered the age, parentage, place of residence, and present condition of every child received in any such children's home or industrial school; and they shall also cause to be entered in such books the time when, the place where, and the person to whom any of the inmates of such children's home or industrial school have been placed for suitable homes, or indentured, together with a substantial statement of any contract made between such trustees and managers, and the person receiving such child. [63 v. 51, § 3 ; S. & S. 727.] Sec. 2184 K. S. [Assignment of services and cancellation of contracts.] Any person receiving such child from the trustees and managers of such institution, shall not assign or transfer his services for any period without the written consent of the trustees and managers ; and if, for any cause, a person so taking charge of a child, desires to be released from the con- tract, the trustees and managers, upon application, may cancel the same, and resume the charge and management of the child, and shall have the same power and authority over him as before the agreement was made. [63 v. 51, § 4; S. & S. 727.] Sec. 2185 It. S. [Trustees may remove children from unsuitable homes.] The trustees and managers may remove a child from a home when, in their judgment, the same has become an un- suitable one, and they shall, in such cases, resume the same power and authority as they originally possessed ; but they may return a child to parents or a surviving parent or guardian, or when they believe the child to be capable of caring and provid- ing for himself, may discharge him to his owr* care* [63 v. 51, § 5 ; S. & S. 727.] 639 6. SOLDIERS' BELIEF. Sec. 3107 — 1 R. S. [Bounty for re-enlisted veteran volun- teers.] * The commissioners of the several counties, the trus- tees of the several townships, and the city council of the several cities of this state, are hereby authorized and required to issue to each re-enlisted veteran volunteer 2 who has heretofore been credited, as shown by the muster and descriptive rolls, or oth- erwise, upon the quota of such county, township, or city, or any ward of such city, under any requisition of the president of the United States for volunteers during the late rebellion, and who has not received any local bounty upon said enlist- ment, a warrant for the sum of one hundred dollars, or a bond for a like sum bearing six per cent, interest, redeemable at the pleasure of such commissioners, trustees, city councils, one year after the date thereof; and when such veteran volunteer has been credited upon the quota of the state at large, or has been so indefinitely credited as that the credit could only pass to the state as shown by the muster and descriptive rolls, then the auditor of state is hereby authorized and required to issue his warrants upon the state treasury to such volunteer for the sum of one hundred dollars, which shall be paid by the treas- urer of state out of any funds in the treasury not otherwise appropriated; and in all cases where such volunteer has re- ceived a bounty of less sum than one hundred dollars on such enlistment, then it shall be the duty of the state auditor, county commissioners, township trustees, or city councils, as the case may be, to issue a warrant, or bond, as above specified, to such volunteer for the difference between the amount already re- ceiyed, and the amount he would by this act be entitled to receive, if he had not received any such bounty. To determine the number of those credited to congressional districts, that properly belong to each county of the district, the adjutant-gen- eral is hereby required to apportion, among the several counties of each district, the number so assigned, in proportion to popu- lation, and notify the county commissioners of the number assigned to their several counties ; the commissioners shall then proceed as required in this section ; provided, that any county having previously paid the bounty to any volunteer credited to the congressional district, shall deduct the amount so paid from the amount to be levied on said county; provided, however, when the muster and descriptive rolls were not received by the 640 THE OHIO MUNICIPAL CODE. adjutant-general in time for the oredit therein shown to be ap- plied upon any quota, then the auditor of state shall issue his warrant on the state treasury in favor of such soldier, as in the case of credits to the state at large. And in all cases where the commissioners of any county, the trustees of any township, or the council of any city, in this state, has promised to any volunteer, under any requisition of the president, a bounty, and such volunteer has received from such county, township, or city, in settlement of such a bounty, or any part thereof, any bond, certificate, scrip, or promise to pay, in writing, by the provisions of which payment was to be made, in case any subse- quent legislation should authorize such commissioners, trus- tees, or council to levy a tax for the payment of the same, and such bond, certificate, scrip, or promise in writing has not been paid for want of such authority by the legislature, or for any other reason, and said bond, certificate, scrip, or prom- ise in writing, has not been by such volunteer sold or assigned, then such commissioners, trustees, or council shall issue to such volunteer, or in case of his death, then to his legal representa- tives, a warrant for the amount of said bond, certificate, scrip, or promise in writing, together with the interest thereon from the date of issue thereof, or a bond for a like sum, redeemable as herein provided; and in case of the loss or destruction of said bond, certificate, scrip, or promise- in writing, the person entitled thereto shall make affidavit of said loss or destruction, and that the same has not been sold or assigned before such person shall receive said warrant or bond as aforesaid ; provid- ed, that this act shall not be construed so as to allow any such re-enlisted veteran volunteer who has already received the bounty provided for by the act to which this is amendatory, or who has received one hundred dollars bounty from the state, or any county, township, or city under any prior act; nor shall lapse of time or state equities be set up as a defense to any claim made under this act, or of any act to which this is amen- datory, 3 or any act relating to this subject, and where said trustees of townships, city councils or county commissioners have not issued said bond, certificate or promise in writing, to such re-enlisted veteran volunteer, they are hereby required to do so. Nor shall it apply to actions now pending in court. [1889, April 3: 86 v. 193; 77 v. 294; Rev. Stat. 1880; 64 v. 231 (S. & S. 478).] 641 (1) Validity. — The act of April as to the time within which a writ 6, 1866, providing for the payment of mandamus may be obtained, and of bounties was held constitutional. a demurrer to, an answer setting up State v. Comm'rs 17 0. S. 608; statute of limitation of six years, State v. Richland Tp v 20 O. Sc 362. was sustained. Chinn v. Trustees, (2) " Re=enlisted veteran voI= 32 O. S. 236. unteers " under the act of April A right of action given by a stat- 16, 1880, did not include " veteran ute, and existing at the time of the volunteers " who at the time of their amendment or repeal of the stat- enlistment were not in the field as ute, is not affected by the amend- veteran volunteers. State v. Og- ment or repeal, unless otherwise ex- levie, 36 0. S. 394. pressly provided in the amending or (3) Limitation. — There is in repealing act. State v. Washington this state, no statutory limitation Tp., 24 O. S. 603. Sec. 3107 — 2R. S. [Or the families of those who have died.] If any such veteran volunteer shall have died before receiving the bond or warrant to which he would have been entitled un- der the first section [§ (3107 — 1)] of this act, it shall be given as follows : First, to his widow ; if no widow, then to his chil- dren ; if no children, to his mother ; if no mother, to his father ; if no father, to dependent brothers and sisters, of less than fif- teen years of age; but no money shall, by this act be paid to any one who has deserted the military service, or has at any time left the state to evade or escape the draft. [64 v. 231 ; S. & S. 478.] Sec. 3107 — 3 K. S. [Bonds, how executed.] Said bonds, when issued by the county commissioners, shall be signed by the commissioners, countersigned by the county auditor; when issued by the trustees of any township, shall be signed by the trustees, and countersigned by the clerk of the township; and when issued by city councils, shall be signed by the president and countersigned by the clerk of such council, and, as soon as practicable, delivered to said volunteers, or the parties afore- said, in the order named. [64 v. 231 ; (S. & S. 478).] Sec. 3107 — 4 R. S. [Tax to pay same.] For the purpose of paying said bond or warrants, the county commissioners of any county, the trustees of any township, and the city council of any city, issuing the same, shall levy such tax each year after issuing the same, as may be required to pay one-third of the amount of each warrant or bond with interest; and said levy shall be certified to the auditor of the county, and shall be entered upon the duplicate and collected as other taxes, and the money raised, thereby for the several counties, shall be re- 642 THE OHIO MUNICIPAL CODE. tained in the county treasuries, and that collected for the several townships and cities shall be assigned to such townships and cities, and paid out by said several authorities as other funds are required to be paid out in said bonds : provided, that the commissioners of any county, trustees of any township, or city council of any city, may, if they deem the same expedient, levy a larger amount in any one year than would be sufficient to pav one-third of the bonds or warrants so issued. [64 v. 231 ; S. & S. 478.] Sec. 3107 — 5 R. S. [Construction of act amended.] Section one of the above recited act to which this act is supplementary, shall be held and construed so as to include within its terms and provisions the same benefits to be given to re-enlisted veteran non-commissioned officers and soldiers of the United States regular army as to state volunteers, where such men of the regular army are shown to be Credited as required by said act to which this act is supplementary. [QQ v. 65.] Sec. 3107 — 6 R. S. [Evidence in bounty cases.] The cer- tificate of the adjutant-general of the state of Ohio, when it appears from the records of his office that the applicant reen- listed in the service of the United States, specifying dates and the locality to which the applicant was credited, shall be taken, for all purposes under the act to which this is supplementary, as prima facie evidence of his having reenlisted, as and of his being a veteran volunteer within the meaning of said act, and of his having been credited, as required to be shown by said act, upon such reenlistment, to the county, township, city, or ward of the city named in said certificate, and upon the quota thereof under a requisition of the president of the United States for volunteers during the late rebellion. [90 v. 64; 82 v. 119.] Sec. 3107 — 7 R. S. [Value of certain documents as evidence.] The papers, documents, books and records on file or deposited in the office of said adjutant-general, or the office of the adju- tant-general of the United States, shall, for all purposes under said act, be admissible in evidence, and such papers, docu- ments, books and records, or any transcript, copy, statement or abstract of the same, or any part thereof, certified to be such by said officer in whose office said originals shall thus be on file or deposit, or his assistant under the seal of such officer or office, shall be competent and prima facie evidence of the facts and matters therein contained, so far as the same may be pertinent to the issue or claim. [90 v. 64; 82 v. 119.] 643 Sec. 3107 — 8 R. S. [Application of two preceding sections.] The provisions of this act shall apply to all such transcripts, copies, statements or abstracts heretofore or hereafter thus made and certified, and to all proceedings or actions now pend- ing or hereafter brought, under the provisions of the act to which this is supplementary, or any previous act or acts upon the same subject, or any such act hereafter passed while this act shall remain in force. [90 v. 64; 82 v. 119.] Sec. 3107 — 48 R. S. [Preference of appointment in public serv- ice to be given to honorably discharged soldiers and sailors.] In every public department, and all public departments in all municipal corporations, and upon all public works of the state of Ohio, honorably discharged soldiers, sailors and marines of the United States shall be preferred for appointments and em- ployment; age, loss of limb or other physical impairment, which does not, in fact, incapacitate, shall not be deemed to disqualify them; provided, however, that the applicant shall have been a resident of the county in which the office or position is located, for at least one year, and possesses the other requisite qualifi- cations. 1 [94 v. 157; 92 v. 50; 85 v. 149.] (1) Mandamus does not lie. — ex rel. v. Comm'rs, 57 O. S. 86; The provisions of this act cannot Brady v. French, 6 N. P. 127. be enforced by mandamus. State Sec. 3107 — 49 R. S. [Penalty.] Any violation of the provi- sions of this act shall be deemed a misdemeanor, and upon conviction in any court of competent jurisdiction, shall be punishable by a fine of not less than fifty dollars ($50.00) and not more than one hundred dollars ($100.00). [92 v. 50.] For act relating to Soldiers' re- from wards in cities, see §§ 3107-51 lief committees in counties, some to 3107-54 R. S., inclusive, members of which are appointed 644 THE OHIO MUNICIPAL CODE. V WATER WORKS. 1 Sec. 2411 — 1 R. S. [Purposes for which water rents may be assessed and collected in Cincinnati.] 2 In cities of the first grade of the first class, for the purpose of paying the expenses of conducting and managing the water works; and to provide for paying the expenses of making all betterments, enlarge- ments and improvements of the works, including the building of machinery, buildings, tanks, towers, reservoirs, or any other water works appliances, or the repair of the same, or of the extensions of the works and reservoirs, or any additions thereto, or the laying, extending or enlarging of the water mains; and to provide for the payment of the interest of any loan heretofore or hereafter made for the purchase, lease, construction, im- provement, betterment, enlargement or extension of any part of the water works system of such city, or for the creation of a sinking fund for the liquidation of the debt heretofore or hereafter made for any of these purposes; and to provide for the payment of the interest and the creation of a sinking fund for the payment of any renewal or extension bonds heretofore or hereafter issued, in lieu of water works bonds which may have matured, or which may mature, and for the payment of which no provision may have been made at the time of their maturity, and notwithstanding ordinances authorizing such re- newal or extension bonds may provide for the payment of the interest and the creation of a sinking fund therefor, by taxa- tion; and to provide for the payment of the interest and the creation of a sinking fund, for the payment of bonds heretofore or hereafter issued, for water works purposes, or for the pur- pose of laying water mains, by villages which have already been or which may hereafter be annexed to any such city, and not- withstanding that such bonds may have been issued under acts requiring the payment of the interest thereon, or the creation of a sinking fund therefor, by taxation; and to provide for the payment of any contract obligations hereafter entered into by the board, or any other authorized board, hereinafter referred WATER WORKS. 645 to with any person, company or corporation, their successors ur assigns, for the construction of water works, or additions, en- largements, improvements or extensions to the water works; and to provide for the payment of any contract obligations here- after entered into by the board hereinafter referred to or any other authorized board, with any person, company or corpora- tion, their successors or assigns, for the lease of water works, or additions., enlargements, improvements or extensions to the water works; and to provide for the payment of any land, turnpike, highway or franchise of any description, or any ease- ment or interest in any of the same, which may be necessary at any time for the purpose of extending, enlarging or improving the water works, or making additions thereto ; the board having charge of the water works of such city, shall have the power to assess and collect, from time to time, a water rent of sufficient amount, in such manner as it deems most equitable upon all tenements and premises supplied with water, and where more than one tenant or water taker is supplied with water from one hydrant, or off the same pipe, and when the assessments there- for shall not be paid when due, the board shall look directly to the owner of the property for the entire rent, or so much thereof as remains unpaid for water furnished said premises, to be collected in the same manner as other city taxes. [92 v. 605.] ( 1 ) Sections on water works. power to appropriate property for Sections carried under this heading water works purposes is given in formed part of Chap. 1, Div. 8, Ti- § 10 of the Code, page 81. tie XII. R. S. Of the sections in Power to contract with com= this chapter, §§ 2409, 2410, 2411, pany for furnishing water to mu- 2412 to 2417, inclusive, 2418 to nicipality see § 45 of the Code, page 2423, inclusive, 2425 to 2435 inclu 173, and § 3551 R. S., under Gas sive are incorporated in § 205 of the and Water Companies, infra. Code, which see; §§ (2435-1) to (2) Validity.— This act was (2435-18), inclusive, the Cincinnati held valid in Alter v. Cincinnati, 56 Water Works act, are mentioned in O. S. 47. § 215; these latter sections are car- Power to apply water rents ried here. All other sections, to betterments and extinguishment (except §§ (2411-1) and 2424, which of debt, given in this section to Cin- are carried here) are repealed by cinnati, is conferred upon all mu- the Code. nicipalities in paragraph 15 of § Power to establish and main= 7 of the Code, page 54. tain water works is conferred upon Section construed. — See Ram- al! municipalities in paragraph 15 sey v. Columbus, 12 Dec. 725. of § 7 of the Code, page 54; and 646 THE OHIO MUNICIPAL CODE. Sec. 2424 R. S. [Waterworks m contiguous cities and villages, construction and regulation thereof.] Such aqueducts 1 and pipes shall be so constructed and laid as not to interfere, unneces- sarily, with the use of such streets, alleys, and public grounds, as public highways and public grounds ; and the city or village so establishing any part of its water works within the limits of such other city or village shall have jurisdiction to prevent or punish any pollution of, or injury to the water so conveyed, or of the stream or source from which the same is obtained, or any injury to any portion of the water works so located within the limits of such other city or village. [66 v. 203 (208), § 351; (S. & C. 1538).] (1) See § 2423 re-enacted in § 205 of the Code, page 465. Cincinnati Water Works Act. 1 Sec. 2435 — 1 R. S. [Waterworks commission for Cincinnati.] 2 § 1. Whenever in any city of the first grade of the first class, the board of administration if there be one, and if not, the board having charge of the water supply of such city shall, by a reso- lution passed by a majority of the members thereof, declare that it is necessary to provide water works for such city, if there be no existing water works, or shall declare that a material en- largement, extension, improvement or addition to the existing water works of such city is required, if there be existing water works of such city, it shall certify such resolution to the gov- ernor of the state, and thereupon it shall be his duty to appoint a board of trustees to be known as the " commissioners of water works," composed of five citizens, residents of such city, not more than three of whom shall belong to the same political party. All vacancies in the office of commissioner shall be filled in the same manner as the original appointment, but so that not more than three of such commissioners, when such va- cancy shall have been filled, shall belong to the same political party. [92 v. 606.] (1) The Cincinnati water Investigation and plans. — It' works act is explicitly left in force was held under a former act that by § 215 of the Code, page 481. the old board of administration For special act authorizing com- could employ engineers to investi- missioners to borrow additional gate needs and submit plans. Cin- $1,500,000, see 97 O. L. 620. cinnati v. Cincinnati, 11 C. C. 309. (2) Validity. — The entire act, Railway through grounds, except § 8, was held constitutional power of commissioners to grant in Alter v. Cincinnati, 56 O. S. 47. right for, se Ampt v. Cincinnati, 15 Dec. 237; 2 N. P. (N. S.) 489. Sec. 2435 — 2 R. S. [Bond; salary; must not be interested in contracts made by board.] § 2. Each of said commissioners WATER WORKS. . Gi7 shall enter into bond to the city, with at least three sureties to the satisfaction of the mayor as to the sufficiency, and of the corporation counsel as to form, in the sum of one hundred thousand ($100,000) dollars, conditioned for the faithful dis- charge of his duties; and the bond so taken shall be deposited with the treasurer of the city for safe keeping. Each of said commissioners shall receive as compensation for his services, four thousand ($4,000) dollars per annum, which shall be paid out of the fund hereinafter created, or by the contracting parties hereinafter provided for. No commissioner, or person holding appointment under said commissioners, shall be inter- ested directly or indirectly, in any contract entered into under the provisions of this act Any commissioner may be removed for misfeasance, malfeasance, or nonfeasance in the manner provided for the removal of certain officers in chapter 3, divi- sion 4, of title 12, of the Revised Statutes of Ohio, and the acts that may be passed amendatory and supplementary thereto. [92 v. 606.] Sec. 2435 — 3K. S. [Apportionment; duties.] § 3. The gov- ernor may appoint as one of the said five commissioners, a mem- ber of the board of administration of such city ; if there be such a board and if such appointment be made, such commissioner shall give the same bond as required by section 2 [§(2435 — 2)] of this act, and shall receive as compensation the sum of two thousand ($2,000) dollars per annum. The duties imposed upon such commissioner and the compensation paid to such commissioner, shall be in addition to the duties and compensa- tion of such commissioner as a member of said board of ad- ministration ; and the duties of such commissioner, as a mem- ber of the board of administration, as provided by law, shall not be construed as being in conflict with the duties of such commissioner, under the provisions of this act. [92 v. 606.] Sec. 2435 — 4R. S. [Organization.] § 4. Said commission- ers shall form a board, and shall choose one of their number president, and a majority of said board shall constitute a quorum to transact business. Said board shall hold regular meetings at such time and places as it may agree upon, and special meetings under such regulations as it may prescribe; and shall cause to be, kept a full and accurate account of its entire proceedings, including an account of its receipts and expenditures, if any, and make a report of such receipts and expenditures, annually to the mayor and board of legislation of such city. [92 v. 606.] 648 THE OHIO MUNICIPAL CODE. Sec. 2435 — 5 R. S. [Commissioners to take up plans, surveys, etc.] § 5. Said commissioners are authorized to take up and consider the surveys, plans and specifications, if any, thereto- fore made or devised for water supply, and they may cause such additional investigations, surveys, plans and specifications to be made, as they may deem necessary, and after consideration thereof, they may adopt definite plans and specifications pro- viding for the construction of such works, if there be none existing, or for an enlargement, extension, improvement or addition to existing water works, either within or without the limits of the city or state, including reservoirs, buildings, tun- nels, pumping engines and machinery of all kinds, pipes, and other fixtures, appliances or facilities, as, in their opinion, are necessary to secure an abundant supply of pure and wholesome water ; and said commissioners may also determine the location of any of such enlargements, extensions, improvements or ad- ditions. [92 v. 606.] Sec. 2435 — 6R. S. [Purchase or condemnation.] §6. Said commissioners are authorized to acquire by purchase or by the proceedings hereinafter mentioned, on behalf of such city, all real and personal property and franchises necessary for the proper construction of water works, if there be none existing, and for the enlargement, extension, improvement, or addition to existing water works ; and whenever, for such construction or the completion of any part or parts of such enlargements, ex- tensions, improvements or additions, it shall be necessary to use or occupy any street or other public way, space, park or ground, or any part thereof, belonging to such city, or to cross any stream under the control of the state, said commissioners may take and use or occupy the same on behalf of the city for such purposes; and whenever it shall be necessary, in the opinion of said commissioners, to appropriate any land, turnpike, high- way or franchise of any description, or any easement or interest in any of the same, in order to carry out the purposes set forth in this act, either within or without the limits of such city, or, whenever, for like reason, it shall be necessary, in the opinion of said commissioners, to appropriate land for the foundations or abutments of piers across any stream within this state, said commissioners are authorized to commence and conduct, in the name of such city, proceedings therefor, under and according to chapter 3, division 7, title 12, of the Eevised Statutes, 1 and the acts amendatory and supplementary thereto, and no con- current action of any board or officer shall be necessary ; and all the powers with respect to such proceedings that are now vested WATER WORKS. 649 in any other board or officer, shall be vested also in and may be exercised by said commissioners. [92 v. 606.] (1) Appropriation proceedings. f erred to are now superseded by §§ — The chapter, division and title 10 to 22 of the Code, inclusive, of the Revised Statutes here re- Sec. 2435 — 7 R. S. [As to making of contracts.] Said com- missioners, in constructing such works, or such enlargements, extensions, improvements or additions, shall also have power and authority and be governed in respect of contracts as fol- lows : First — To make contracts, employ such superintendents, en- gineers, clerks, laborers and other employes, as they may deem necessary, and to fix their compensation ; and any of such per- sons may be removed by a majority of said commissioners at any time. No contract which said commissioners shall enter into, or modification thereof, shall be valid until assented to at a regular or special meeting and concurred in by a majority of all the members, and such assent entered on the minutes of their proceedings. Second — ~No money shall be expended on account of plans, specifications, drawings, construction or equipment of the water works herein provided for, or any other expense connected therewith, unless first authorized by said commissioners, and upon vouchers, signed by their president and clerk, upon the auditor, or other auditing officer, if there be no auditor of such city, to be paid by the treasurer of such city, upon tkw warrant of the auditor or other auditing officer, if there be no auditor, out of the funds hereinafter provided. Said commis- sioners shall, before entering into any contract, cause plans and specifications, detailed drawings and forms of bids to be pre- pared, and careful estimate of cost to be made; and when adopted by them, they may, in their discretion, cause the plans and drawings to be multiplied and printed, by photographing, lithographing or other suitable process, and the specifications and forms of bids, contracts and bonds to be prepared, and have the same printed for distribution among the bidders. Third — All contracts shall be made in writing, in the name of such city and signed by the president and clerk of said com- missioners and by the contractor. Whenever it becomes neces-< sary in the opinion of said commisioners, in the prosecution of said work, to make alterations or modifications in any contract, such alterations and modifications shall only be made by order 650 THE OHIO MUNICIPAL CODE. of the commissioners ; and such order shall be of no effect until the price to be paid for the work or materials, under such altered or modified contract, has been agreed upon in writing, and signed by the contractor and a majority of the members of said commissioners; and no contractor shall be allowed or re- cover any thing for work or materials, caused by any alteration or modification, unless an order is made or agreement signed as aforesaid ; nor shall he in any case be allowed or recover more for such work and materials than said agreed price ; and if, when the commissioners have ordered an alteration or mod- ification of contract, the contractor and the commissioners can not agree upon the price to be paid for work or materials, under such altered or modified contract, they shall submit the matter to arbitration, the commissioners choosing one arbitrator and the contractor one, and these two a third; and the award of such arbitrators, or a majority of them, as to the price to be paid, shall be made in writing and entered on. the minutes of said commissioners, and when so entered shall be binding on both parties. Fourth — If a contract, agreement or order, made or author- ized by said commissioners be found to violate any of the pro- visions of this act, it shall at once become void and of no effect; and no money shall be paid or recovered for service rendered or materials furnished thereunder. Fifth — Said commissioners shall not enter into any con- tract for work in the construction and completion of said water works system, without first causing thirty days' notice to be given in one of more newspapers of general circulation in such city, that sealed proposals will be received for doing the work or furnishing the materials, provided that said commissioners may procure plans therefor in the manner indicated in section 5 [§(2435 — 5)] of this act, and shall not be required to ad- vertise for bids for making or printing the drawings, specifica- tions and forms of bids, contracts and bonds. Sixth — In all cases of competitive bidding, whether in the construction or completion of, or furnishing equipments for such water works system, no bid shall be received or considered by said commissioners which covers a patented material, proc- ess or device, until the person who owns or controls the patent or has a contract for the exclusive use of such patented material, process or device, has entered into a written agreement with the said commissionrs for the benefit of all bidders, whereby the lowest price shall be fixed at which the owner of such patent, or patented articles will furnish to said commissioners, or which WATER WORKS. 651 he will furnish to all bidders such patented material, process or device. Seventh — All bids shall be enclosed in a sealed envelope and deposited with the clerk of said commissioners ; and such sealed envelopes shall have endorsed thereon the nature of the same and the name of the bidder ; and all bids shall be opened at a regular meeting of the commissioners, and at an hour to be indicated in said notice. Each bid shall be accompanied with a bond in a sum to be fixed by said commissioners, signed by sufficient sureties, for the acceptance of the contract, if awarded by the commissioners ; or the bidder may deposit with the com- missioners, in lieu of such bond, a certified check or bank certificate of deposit, payable to the order of said commission- ers ; or cash equal in amount to the bond as above required ; and, iii case of refusal by the bidder to whom the award is made to enter into contract according to his bid, within such reason- able time, as the commissioners may determine, said bond shall be put in suit, and the amount collected paid into the fund hereinafter provided ; or, if a check, or certificate of deposit, or cash is deposited, the amount shall be immediately paid into such fund. Eighth — Said commissioners shall enter into contract with the lowest and best bidder, 1 upon his giving bond to such city, with sureties as the commissioners shall approve, that he will perform the work and furnish the materials in accordance with his contract, and that the sureties agree in advance to such modifications and alterations as may be made by said com- missioners and the contractor, within the limits of the penal sum mentioned in the bond ; and on the failure of such bidder, within a reasonable time, to be fixed by the commissioners, to enter into bond with the sureties before provided, a contract may be made with the next lowest and best bidder, and so on, until a contract is effected with a contractor giving bond as aforesaid; provided, that the commissioners may let the work in whole or in parts, and may receive bids for labor and ma- terial separately, as it may deem best, and may reject any and all bids. Should a contractor fail, from any cause, to complete the work contracted for by him, said commissioners shall relet the unfinished part of said work or complete the same by days' work or otherwise, as may be for the best interests of the city in the judgment of said commissioners, and shall charge the cost of completion to the contractor. [92 v. 606.] (1) Discretion of board. — This authority to make a contract "with section which confers on the board the lowest and best bidder/' confers 652 THE OHIO MUNICIPAL CODE. upon the board a discretion with Uermann, 6 N. P., 452; 7 N. P. 6; respect to awarding the contract aff'd, 63 O. S. 572. which cannot be controlled by man- Board has no power to relinquish damus. State ex rel. Walton v. rights secured to the city by con- Hermann, 63 0. 8. 440; Coppin v. tract. New York & B. Co. v. Her- mann, 27 C. C. 694. Sec. 2435 — 8 R. S. [If inexpedient to proceed nnder section seven then board may contract with any person, etc., for construc- tion, etc., of works.] 1 § 8. [92 v. 606.] ( 1 ) Held unconstitutional, be- leased to the city, and conveyance cause it empowered union of city by the city of property to such property with enlargements to be others. Alter v. Cincinnati, 56 0. built and owned by others and S. 47. Sec. 2435—9 It. S. [Expenses.] § 9. All expenses that may be incurred by said commissioners up to the time that any con- tract may be entered into as provided by [in] section 8 [§(2435 — 8)] of this act or until the issue and sale of any bonds hereinafter provided for may have been consummated, shall be paid out of the water works fund of such city, by the board having charge of the water supply of such city, upon vouchers drawn and approved by said board, but all such sums so paid shall be reimbursed to the said water works fund, either by the contracting parties hereinbefore mentioned, or out of the proceeds of the sale of bonds hereinafter provided for. [92 v. 606.] Sec. 2435— 10 U.S. [Fund for payment.] § 10. To pro vide a fund to pay the cost and expenses contemplated by this act, the said commissioners are hereby authorized to borrow, from time to time, as money may be needed, in behalf of such city, an amount not to exceed six million five hundred thousand ($6,500,000) dollars, and to issue bonds therefor in the name of such city, under the corporate seal thereof. Such bonds shall be designated " water works bonds " of such city, shall be signed by the president of said commissioners of water works, and attested by the auditor of the city, or other auditing officer, if there be no auditor, and shall bear such interest, not exceed- ing four per centum per annum, and be payable at such times and places, and in such amounts as said commissioners may determine. Said bonds shall be sold, as provided by law. and as a security therefor, upon the sale thereof, a lien shall arise in favor of the bond-holders upon the water works property then owned and thereafter acquired by such city, except as hereinafter provided for, and upon the net income of the water works, and said bonds shall be further secured by a pledge of the faith and credit of such city. [92 v. 606.] WATER WORKS. G53 Sec. 2435 — 11 R. S. [" Water works improvement fund."] § 11. Ihe moneys arising from the sale of said bonds shall be de- posited with the city treasurer as a fund to the credit of said commissioners of the water works, and shall be called the " water works improvement fund " ; and of this fund said commissioners shall be the sole trustees and shall have full control and disbursement of the same. No part of said fund shall be diverted to any other use or purpose than that specified in this act. All warrants drawn upon the auditor or other auditing officer, if there be no auditor, for payment out of said fund, shall designate on their face, " for reimbursement " (as provided for in section 9), [§(2435 — 9)] " for plans," " for specifications," " for construction," " for equipment," ac- cording as they are drawn for the one purpose or the other, and a careful account of the condition of said fund shall be separately kept by the auditor of said city, or other auditing officer, if there be no auditor. [92 v. 606.] Sec. 2435 — 12 E. S. [When works completed management sur- rendered by commissioners.] § 12. Whenever the water works or the enlargement, extension, improvement or addition to existing water works are completed as contemplated under section 7 [§(2435 — 7)] of this act, control of the same shall be surrendered by said commissioners to the board having charge of the water supply of such city ; provided, that when- ever in the judgment of said commissioners any portion of such improvement is completed so that the same can be sur- rendered without impeding or embarrassing other portions of said improvements, the same may be surrendered to the board having charge of the water supply of such city. [92 v. 606.] Sec. 2435 — 13 R. S. [Property not needed may be sold.] § 13. Whenever any property, both real and personal, occupied and used for water works purposes in such city, shall not be re- quired for such purposes, by reason of the enlargement, exten- sion, improvement or addition as herein provided for, the board having charge of the water supply of such city shall have power, after giving thirty days' notice by advertisement in one or more newspapers of general circulation in such city, to sell the same on sealed proposals, to the highest and best bidder therefor. And the lien hereinbefore created for the security of the bonds hereinbefore authorized shall be transferred to the proceeds arising from the sale of such property ; and such proceeds shall be placed to the credit of the sinking fund here- inafter provided, for the final redemption of the bonds issued under the provisions of this act. [92 v. 606.] 654 THE OHIO MUNICIPAL CODE. Sec. 2435— 14 R. S. [Unexpended funds shall be placed to credit of sinking fund.] § 14. Upon the completion of any water works, or the enlargement, extension, improvement or addition provided for in this act, whether the same be under section 7 [§(2435—7)] or section 8 [§(2435—8)] thereof, the term of office of the commissioners and the employment of their several employes shall cease, and any unexpended funds shall be placed and kept to the credit of the sinking fund pro- vided for by this act; and thereupon, the control and manage- ment of said water works, if constructed under section 7, [§(2435 — 7)] shall pass to and vest in the board having charge of the water supply in such city, and the obligations entered into by said commissioners under section 8, [§(2435 — 8)] if any, shall be assumed and performed by the said board having charge of the water supply, the expense thereof to be paid out of the revenues of the water department after assuming control of the works herein provided for. The board having charge of such water works shall not thereafter be permitted to create any debt or liability for any of the purposes for which they are authorized to assess water rents, including all obligations incurred under the provisions of this act, that cannot be met and paid from the income of the water works department for that year; and all debts created in violation of this provision shall be absolutely void; nor shall the board of legislation create any debt or borrow any money for the use of the water works of such cities. [92 v. 606.] Sec. 2435—15 R. S. [Interest on bonds.] § 15. The interest becoming due on the bonds which may be issued under the provisions of section 10 [§(2435—10)] of this act, shall be paid pending the construction t>i said works out of the proceeds of the sale of such bonds, unless the board having charge of the water supply, of such city, agrees to assume the same or any portion thereof, during the construction of such works, out of the proceeds of the revenues of the water de- partment, and in that case such board shall be permitted to do so. The interest becoming due on the bonds which may be issued under the provisions of section 10 [§(2435 — 10)] of this act, after the completion of the work herein authorized, and after the control of the same has been surrendered to the board having charge of the water supply of such city, shall be paid by such board each year out of the revenues of the water de- partment. [92 v. 606.] Sec. 2435—16 R. S. [Bonds.] § 16. For the purpose of pro- viding a sinking fund for the final redemption of any bonds WATER WORKS. 655 whicii may be issued under section 10 [§(2435 — 10)] of this act, the board having charge and control of the operations of the water works of such city, and the collection of the revenue therefrom, shall make semi-annual payments from the net rev- enues of such water works to the sinking fund, commencing the sixth year after the appointment of the commissioners pro- vided for in section one [§(2435 — 1)] of this act, of not less than seventy-five thousand ($75,000) dollars per annum, until said bonds are paid, or an adequate fund provided for the final redemption of the same; and said yearly sums, together with their earnings and other payments hereinafter provided for, shall be invested in accordance with law by the sinking fund trustees of such city; or if there be no trustees of the sinking fund, then by the board or officer or officers having charge of the sinking fund of such city, solely for the benefit of the sinking fund for the final redemption of said bonds. [92 v. 606.] Sec. 2435—17 It. S. [No member individually liable.] § 17. .No member of said commissioners shall be individually responsible to any contractor or employe upon any contract or employment made in pursuance of this act, nor to any person upon any claim occasioned by any act or default of any person contracted with or employed in pursuance of this act. [92 v. 606.] Sec. 2435 — 18 R. S. [Non-applicability of certain sections.] § 18. The provisions, restrictions and limitations of sections 2690/*, 2690i, 2690;, 2699 and 2702 of the Eevised Statutes 1 shall not apply to the commissioners appointed under this act, in the prosecution of the work, or the contracts herein provided for. [92 v. 606.] (1) New code provisions. — The provisions see §§ 35, 38. 43 and 45 sections here referred to are re- of the Cod«. pealed by the Code. For similar 656 THE OHIO MUNICIPAL CODE. VI LIGHTING AND WATER COMPANIES; MUNICIPAL LIGHTING PLANTS. 1 Sec. 2478. [Council may regulate price of electric light, gas or water.] The council of any city or village in which electric lighting companies, natural or artificial gas companies, or gas light or coke companies, or companies for supplying water fur public or private consumption, may be established, or into which their wires, mains or pipes may be conducted, are hereby em- powered to regulate from time to time, the price which said electric lighting, 2 natural or artificial gas, gas and coke com- panies, or companies for furnishing water for public or private consumption, may charge for electric light, or for gas for light- ing or fuel purposes, or for water for public or private consump- tion, furnished by such companies to the citizens, public grounds, and buildings, streets, lanes, alleys, avenues, wharves, and landing places, or for fire protection; and such electric lighting, natural or artificial gas, gas light or coke companies or companies for furnishing water for public or private con- sumption, shall in no event, charge more for any electric light, or natural or artificial gas, or water, furnished to such corpo- ration or individuals, than the price specified by ordinance of such council ; and such council shall also have power to regu- late and fix the price which such companies shall charge for the rent of their meters, [May require meters to be furnished without extra charge.] and may, in the ordinance regulating the price which such companies may charge for electric light, gas or water, provide that such price shall include the use of meters to be fur- nished by such companies, and in such case meters shall be furnished and kept in repair by such companies and no sepa- rate charge shall be made, either directly or indirectly, for the use or repair of the same. [1906, April 14, 98 v. 170; 97 v. 114; 86 v. 62; 84 v. 39; 66 v. 218.] (1) Sections on gas compa= power and heating and natural gas nies and municipal gas works.— plants, see paragraph 15, § 7 of the Sections of the Revised Statutes car- Code, page 54. ried here formed part of Chap. 3, Power of municipality to appro- Div. 8, Title XII., R. S. All sec- priate property for such purpose, tions of the chapter not carried here see § 10 of the Code, page 81. are repealed by the Code. § 2491 is Power of municipality to con- referred to in § 45 of the Code. tract for lighting the streets, etc., Power of municipality to es- see § 45 of the Code at page 172. tablish and maintain lighting, LIGHTING COMPANIES. 657 (2) Power to regulate. — Where the right has been reserved to al- ter or amend charter, a general law may be passed authorizing cities to regulate the, price of gas. State ex rel. v. Cincinnati G. L. & C. Co., 18 0. S. 262. A company chartered under the old constitution, unless empowered by charter to fix prices, comes within the provisions of this sec- tion. Zanesville v. Gas Light Co., 47 0. S. 1. A company whose pipes extend into another city or village, is sub- ject to the regulations of such city or village under the authority of this section. Cincinnati G. L. & C. Co. v. Avondale, 43 O. S. 257. Municipality is not deprived of its power to regulate, because it has passed an ordinance allowing a gas company to lay pipes in the street, the company agreeing not to charge more than a certain price for gas. State ex rel. v. Cleveland, etc., Co., 3 C. C. 251. The ordinance allowing pipes to be laid is not a contract. lb. Where no contract has been made with a company, fixing the price of gas, the municipality may regu- late the price of gas, and make changes at any time. State ex rel. v. Gas Co., 37 O. S. 45. But if a contract has already been made and the company has accepted the terms of an ordinance? fixing the price of gas, the contract cannot be changed. Toledo v. N. W. Ohio Nat. Gas Co., 5 C. C. 557. Where municipality has fixed the price for lighting for ten years, under § 2479 R. S., infra, its power to regulate after such period is not affected. State ex rel. v. Gas Co., 37 O. S. 45. See further, note (1) under § 2479 R. S., infra. An ordinance regulating gas com- panies, and referring to " any gas companies " is broad enough to cover companies organized for fur- nishing natural gas. Cline . v. Springfield, 7 N. P. 626. As to effect of company chartered to furnish artificial gas, substitut- ing natural gas therefor, see Find- lay Gas Light Co. v. Findlay, 2 C. C. 237. Scope of regulation. — Council has no power to compel a gas com- pany, without its assent to the or- dinance, to furnish gas in a man- ner and at a rate at the option of the consumer. Gas & Fuel Co. v. Chillicothe, 65 O. S. 186; Newark v Gas & Fuel Co., 65 O. S. 210. Having fixed one standard for prices for ten years, which has been duly accepted by the com- pany, council cannot within that period, fix another standard. 76. The power to regulate includes the power to demand reports, data, etc. Cline v. Springfield, 7 N. «P. 626. I The fact that price fixed has after- wards become inadequate is not ground for relief. Manhattan Trust Co. v. Gas Co., 7 O. F. D. 578. Reasonableness of relation. — A regulation without taking into consideration the amount of gas consumed is void. Toledo v. N. W. Ohio Nat. Gas. Co., 5 C. C. 557. Reasonableness presumed. — Price fixed is presumed reasonable until the contrary is proved. Bel- laire Goblet Co. v. Findlay, 5 C. C. 418. Sec also State ex rel. v. Gas Co., 37 O. S. 45 ; Central O. Gas & Fuel Co. v. Columbus, 16 Dec. 359. But no presumption arises when answer denies reasonableness of price fixed by ordinance and when a contract exists in which a' rea- sonable price is to be fixed by agreement. Toledo v. N. W. Ohio Nat. Gas Co., 5 C. C. 557. Presumption of validity of or- dinance. — Ordinance regulating price is presumed valid until con- trary is proved. State ex rel. v. Ironton Gas Co., 37 O. S. 45, 49. 658 THE OHIO MUNICIPAL CODE. And inadequacy of price in ab- How regulation may be en- sence of fraud or bad faith will not forced. — Gas company must furnish be inquired into. lb. gas at the rates fixed; failing to When council does not regu- do so, mandatory injunction will late. — Llectric light company must lie. Gas Light Co. v. Zanesville, furnish light to all inhabitants 47 O. B. 35. See ajso Toledo v. alike at reasonable price when N. W. Ohio Nat. Gas Co., 5 C. C. council has not regulated the price. 557. Railway v. Bowling Green, 57 0. b. 33G. FORM OF ORDINANCE REGULATING PRICE OF GAS. Ordinance No To regulate the price which the Company may charge for gas for and during the ensuing years. Be it ordained by the council of the city [or village] of , State of Ohio: Sec. 1. That during the period of years from and after the passage of this ordinance and its acceptance by the Company, said company may charge for gas of not less than candle power furnished to the citizens or private consumers and to the public buildings, grounds, streets, lanes, alleys, avenues, market places [etc.] of the city [or village] of , for illuminating purposes, per thousand cubic feet. If paid within days after the dates of monthly settlements, then a discount of per thousand cubic feet shall be allowed. For all gas supplied and used exclusively for heating and fuel purposes, through a separate service and meter, said company may charge during said period per thousand cubic feet. . If paid within days after the dates of monthly settlements, then a discount of per thousand cubic feet shall be allowed. The said The Company shall in no event, during said term of .....years, charge for gas furnished as above men- tioned, more than the prices herein specified. Sec. 2. This ordinance shall take effect and be in force from and after its acceptance by said The Company, and its publica- tion as required by law. Passed 19 president of Council. Attest : Clerk. [Accepted 19 J Note. — The charge for lighting streets, etc.. and the method of com- puting bills therefor, as per lamp or otherwise, will be governed by any contract made between company and municipality. Sec. 2479. [Price at which company shall furnish elec- tricity or gas not to be reduced during term agreed upon.] In case the council fixes the price at which it shall require any company to furnish electricity or either natural or artificial gas to the citizens, or public buildings, or for the purpose of LIGHTING COMPANIES. 659 lighting the streets, alleys, avenues, wharves, landing places, public grounds or other places or for other purposes, for a period not exceeding ten years, and the company or person so to furnish such electricity or gas shall assent thereto, by written acceptance, filed in the office of the clerk of the cor- poration, it shall not be lawful for the council to require such company to furnish electricity or either natural or artificial gas, as the case may be, at a less price during the period of time agreed on, not exceeding ten years, 1 as aforesaid; and every ordinance or resolution heretofore passed by any mu- nicipal corporation fixing a minimum price for furnishing electricity or either natural or artificial gas as aforesaid, which has been assented to by any company or person by written acceptance filed in the office of the clerk of the corpo- ration, shall be as valid and said price shall be as binding as if this act had been in force when any such price was in terms so fixed and accepted. 2 [1904, April 23, 97 v. 263; 66 v. 218.] (1) Contract beyond legal period. — Where the power is given to the municipality to contract for a period "not exceeding ten years," the conclusive implication is that the municipality is forbidden to contract for a longer period, and contract exceeding such legal period is ultra vires and void, and the contractual stipulations contained therein are equally void and neither party can enforce them. Wellston v. Morgan, 59 O. S. 147. See also Gas & Fuel Co. v. Chillicothe, 65 O. S. 186, 207 ; Davy v. Hyde Park, 16 C. C. 507 (aff'd 61 O. S. 638) ; Cincinnati Gas Light & Coke Co. v. Avondale, 43 O. «S. 257, 267; Lima Gas Co. v. Lima, 4 C. C. 22. But see contra, Toledo v. N. W. Ohio Natural Gas Co., 5 C. C. 557. Such a contract beyond the legal period will in no way affect the authority of the municipality to regulate the price of gas, even though the contract has been per- formed by both parties for the legal period. State ex rel, v. lronton Gas Co., 37 O. S. 45. But an ordinance fixing the price of gas to be charged for a period of ten years, the price fixed not to go into effect until six months after the passage and taking effect of the ordinance and continue ten years from and after such six months, is not a contract exceeding the legal period, but is valid and binding for ten years from the date when the price fixed goes into effect. Logan Natural Gas Co. v. Chillicothe, 65 O. S. 186. An ordinance regulating the price of gas, is not within the re- strictions of § 1691 K. S. (under Officers, subdivision Council, page 539) providing that council shall not enter into any contract which is not to go into full operation dur- ing the term for which all the mem- bers of such council are elected. lb. (2) Change in price. — When the council has fixed the price of gas according to one standard and the price has been duly accepted by the company, it cannot be altered without the consent of the com- pany, by fixing another standard, which may affect the price pre- viously fixed. Logan Natural Gas Co. v. Chillicothe, 65 O. S. 186; State ex rel. v. Gas Co., 37 O. S. 45. But if no contract has been made with a company, council has power to regulate the price from time to time. State ex rel. v. Gas Co., 37 O. S. 45. The fact that council has fixed the maximum price for one company, does not prevent council, within the ten years, from fixing a lower maxi- mum price for another company. Central Ohio Gas & Fuel Co. v. Co- lumbus, 16 Dec. 359. 660 THE OHIO MUNICIPAL CODE. Such an ordinance, fixing a lower Natural gas companies. — This price for another company, does not section was held to apply to natural affect the price fixed for the first gas companies, even before the company. lb. amendment of 1904. Toledo v. N. W. Ohio Nat. Gas Co., 5 C. C. 557. Sec. 2480 R. S. [When council may occupy streets for gas purposes, etc.] If such companies are, at any time, required by the council to lay pipes, and light any street, alley, avenue, wharf, landing place, public ground or building, and refuse or neglect for six months after being notified, by authority of the council, to comply with such requirement, the council may lay pipes and erect gas works, for lighting such streets, alleys, or public grounds, and all other streets, alleys, and public grounds, not already lighted; and such gas companies or gas- light and coke companies, shall thereafter be precluded from using or occupying any of the streets, alleys, public grounds or buildings, not already furnished with gas pipes of such com- panies ; and the council may open any street for the purpose of conveying gas as aforesaid. 1 [66 v. 218, § 417; (S. & C. 1534).] (1) Erection of plant by mu= in § 2480 R. S. arise. State ex rel. nicipality, when. — It is not nee- v. Hamilton, 47 O. S. 52. essary in order that municipalities Vested rights. — No vested may erect and operate gas works rights of a gas company are taken that the contingency provided for away by a municipality erecting its own plant. lb. Sec. 2481 R. S. [Gas companies may be permitted to occupy streets.] The council may, at any time after the default men- tioned in the preceding section, permit such gas companies to use and occupy the streets, alleys, and public grounds of such corporation, for the purpose of lighting the same, and furnish- ing gas to the citizens and public buildings. [6Q v. 218, § 418 ; (S. & C. 1538).] Sec. 2482 R. S. [Forfeiture of charter for neglect to furnish gas, etc.] A neglect to furnish gas to the citizens, and other consumers 1 of gas, or to the corporation, by any company, in accordance with the prices fixed and established by the council', from time to time, shall forfeit all rights of such company under the charter by which it has been established; and the council may proceed to erect, or, by ordinance, empower any person to erect gas works, for the supply of gas to such corpora- tion and its citizens ; provided that nothing in this section or in sections twenty-four hundred and seventy-nine and twenty-four hundred and eighty, shall operate to impair or affect any con- tract heretofore made between any municipal corporation and any gas-light and coke company. 2 [66 v. 219, § 419; (S. & C.' 1535).] LIGHTING COMPANIES. 661 ( 1 ) Consumer, who is. — As to natural for artificial gas, and under person using gas only occasionally, this section the municipality could, see Adams Exp. Co. v. Gas Co., 21 after abandonment by company of B. 18. its artificial plant, provide for light (2) Power of municipality on and heat for its inhabitants by sup- default of company. — Gas compa- plying natural gas. Findlay Gas nies organized and operating under Light Co. v. Findlay, 2 C. C. 237. laws of 1874 could not substitute Sec. 2483 R. S. [A temporary failure shall work no forfeiture.] A temporary failure to furnish gas shall not operate as a for- feiture, unless such failure is through the neglect or miscon- duct of such gas-light, or gas-light and coke company. [66 v. 219, § 420; (S. & C. 1538).] Sec. 2484 R. S. [Council may appoint gas inspector; his duties and compensation.] The council of any corporation in which gas works may he constructed may provide, by ordinance, for the appointment of an officer, to he known as inspector of gas, whose duty it shall be to inspect all gas and gas meters, and certify the correctness of all bills against consumers of gas, make photometric tests, and perform such other duties as may be prescribed by ordinance; and the council shall fix his com- pensation. The council may also provide for the inspection and testing of meters used for measuring electric current for electric light, power or other purposes, furnished by any indi- vidual or company within the corporation, and may prescribe a suitable charge for such inspection and testing, and the man- ner of collecting the same. 1 [91 v. 299 ; 66 v. 219, § 421 ; 73 v. 227, § 4.] ( 1 ) Validity. — Legislature may the companies in proportion to their provide for inspection of meters and valuation. Cin. Gas L. and C. Co., assess the cost of inspection upon v. State, 18 O. S. 237. Sec. 2485 R. S. [Exclusive monopoly shall not be allowed to gas companies.] It shall not be lawful for any council to agree by ordinance, contract, or otherwise, with any person or per- sons, 1 for the construction or extension of gas works for manu- facturing or supplying the corporation or its inhabitants with gas, which shall give or continue to any person or persons making such agreements with the council the exclusive priv- ilege 2 of using the streets, lanes, commons, or alleys, for the purpose of conveying gas to the corporation, or the citizens thereof, or which shall deprive the council of the right to des- ignate the kind of meter to be used for the correct measurement of the gas furnished under such agreement, and to provide for inspecting or regulating the same, or which shall not specify 662 THE OHIO MUNICIPAL CODE. the exact quality of the gas 3 to be furnished, and reserve to the council the right to enforce an exact compliance with such specification, under such rules as the council may prescribe; nor shall the council make any such agreement which shall not. secure to the council the right to purchase such works, and all the appurtenances belonging thereto, at any time within the exis- tence of such contract or agreement. [66 v. 219, § 422; (S. & S. 902).] ( 1 ) Meaning of " person or gas, is void. Hamilton v. Gas Co.,. persons." — The words "person or 8 N. P. 319; Morrow, etc., Co. v. persons," as used in R. S., § 2485, Mt. Gilead, 8 N. P. 669. include a gas company or other pri- Council cannot agree to put be- vate corporation. Cin. Gas L. and yond the control of a village the C. Co. v. Avondale, 43 O. S. 257. price and quality of gas, as well But this section does not apply as the quantity the village would to natural gas companies. Gas and require in the future. Cin. Gas L. Fuel Co. v. Chillicothe, 65 O. S. and C. Co. v. Avondale, 43 O. S. 186; Newark v. Gas and Fuel Co., 257, 269. 65 O. S. 210. (3) Certain rights.— A contract (2) Certain contracts prohib= with a city is not void for the ited. — Council could not, without reason it does not reserve the right clear legislative authority, grant to to purchase the works. Lima Gas any person or corporation the ex- Co. v. Lima, 4. C. C. 22. elusive use of the streets for cer- The city cannot barter away its tain purposes. State ex rel. v. Cin. power to contract for the purchase Gas L. and C. Co., 18 O. S. 262. of gas works. lb. see also Cin. Gas L. and C. Co. v. Company subject to change of Avondale, 43 O. S. 257, 267. grade. — Pipes laid by a company An ordinance granting to a gas in a street must be changed to con- company the exclusive right to lay form to a new grade. Gas L. & C. pipes in the street for furnishing Co. v. Columbus, 50 O. S. 65. Sec. 2485a R. S. [Consolidation of companies doing bnsiness in same muncipality.] Any two or more of the companies men- tioned in section 2478 or any electric light and power company and any water company or any heating company and any in- clined movable or rolling road company, which are doing busi- ness in the same municipal corporation or which are incorpor- ated and organized for the purpose of doing business in the same municipal corporation, may consolidate into a single cor- poration in the same manner and with the same effect as provided for the consolidation of railroad companies in sections 3381, 3382, 3383, 3384, 3385, 3386, 3387, 3388, 3390, 3391, and 3392 of the Kevised Statutes and any and all acts amenda- tory and supplementary to said sections. [1904, April 23, 97 v. 281 ; 94 v. 315.] Sec. 2486 R. S. [Council may erect or purchase gas or electric works.] 1 The council of any city or village shall have power, MUNICIPAL LIGHTING PLANTS. 663 whenever it may be deemed expedient and for the public good, to erect gas works or electric works at the expense of the cor- poration, or to purchase any gas 2 or electric works already erected therein ; 3 provided, that in villages where gas works or electrical works have already been erected by any person, com- pany of persons, or corporation, to whom a franchise 4 to erect and operate gas works or electric works has been granted, and such franchise has not yet expired, the council shall, with the consent of the owner or owners purchase such gas works or elec- tric works already erected therein, and in event the council and owner or owners of any such gas or electric works shall be unable to agree upon the compensation to be paid for such gas works or electric works, the council may file in the probate court of the county where such gas or electric works are lo- cated, a petition to appropriate such gas works or electric works, and thereupon the same proceedings of appropriation shall be had as is provided for the appropriation of private property by municipal corporation. 5 Provided that any muni- cipal contract existing between any village and such person, company of persons or corporation for the public or street lighting shall be considered as an element of value in fixing the compensation to be paid for such gas works or electric works. [1902, May 12 : 95 v. 599 ; 93 v. 59 ; 6Q v. 219, § 423 ; (S. &S, 902; S. &C. 1535).] (1) Power to erect and main- own plant. State ex rel. v. Ham- tain lighting plants is also given ilton, 47 O. S. 52. to municipalities in paragraph 15, And company is not deprived of of § 7 of the Code, page 54. vested rights. lb. See also Ham- Other similar municipal pow- i^n Gas L. and C. Co. v. Hamilton, ers.- Power of municipality to 7 O. F. D. 358; 146 U. S. 258. build dams for certain purposes, Having the power to erect gas erect poles to transmit electricity, works > municipality has the right and lay pipes for conducting natural to ley J taxes to meet the cost of gas, petroleum, etc., will be found such works > and the Property of a in § 3878 Revised Statues. £ as company within its limits will ,_. .., . .... De subject to such taxation. Ham- (2) Natural gas included.- ilton Gag L & c Co v Hamilton This section includes natural as well 6 O F D 256 • 37 Fed 832 as artificial gas works. Bellaire Gob- ^T gection ' iyeg authorit to let Co. v. Findlay et al, 5 C. C. purchase and erect gas and electric 418, 425. plants. It was held not to be in- Applicability of section.— This consistent with § 2489 R. S., now section does not refer to works al- repealed. The latter section did not ready erected. Columbus v. Kauff- gi ve trustees authority to bind mu- man, 8 N. P. 231. nicipality by general contract, but (3) Scope of power. — Although money arising from the operation company was organized and in op- of the works could be used inde- eration at passage of this act, mu- pendently of council. Kerr v. Belle- nicipality may purchase or erect its fontaine, 59 O. S. 446. 664 THE OHIO MUNICIPAL CODE. The powers given in this sec- See Kerr v. Bellefontaine, 13 C tion to council were held not to be C. 24. superseded by powers given to trus- (4) Who can grant franchise. tees under § 2489 R. S. repealed. — The rights to use streets for gas Dalzell, Gilmore and Leighton v. purposes is a franchise and must Findlay et al., 5 C. C. 435, 440. emanate, directly or indirectly, from Management of gas works. — the legislature. State v. Cin. Gas In cities, see § 141 of the Code. In L. and C. Co., 18 O. S. 262. villages, see § 205 of the Code. (5) See §§ 10 to 22 of the Code. , Sec. 2489 — 1 It. S. [Trustees of natural gas plants; may sell to village, etc.; delivery of gas in village.] In all cases where any municipal corporation in this state is the owner of a natural gas plant by which the citizens of said municipal corporation are supplied with natural gas, and such natural gas is so sup- plied through pipes from a point beyond the limits of such corporation, which pipes pass through the limits of an incor- porated village, the trustees * of any such natural gas plant are hereby authorized to sell natural gas to such village, or to a company, for the use of such village, and the citizens thereof, such gas to be delivered at a reducing station to be located within one hundred feet of the main pipe line. [87 v. 249.1 (1) See §§ 141 and 205 of the Code, Sec. 2489 — 2 E. S. [Delivery of gas outside of village : how allowed.] Whenever a municipal corporation is the owner of a natural gas plant to supply the citizens thereof with natural gas for fuel, the council of such municipal corporation, together with the natural gas trustees, 1 may provide for sup- plying natural gas at rates to be determined by said board of trustees, to persons living outside of and in the vicinity of such municipal corporation, and to county infirmaries, chil- dren's homes and other public institutions within or without such municipal corporations; and to encourage the location or establishment of manufacturing industries within such mu- nicipal corporation may reduce the price of gas to be used to operate such manufacturing, or donate the same for a term of years for said purpose; provided, that this section shall be inoperative if such gas so to be furnished for such purpose shall deprive the municipal corporation or the citizens thereof of the full supply of such gas. [87 v. 249.] (1) See'§§ 141 and 205 of the Code. Sec. 2489 — 3 R. S. [Municipalities authorized to lay pipes for natural gas, etc., outside of corporate limits.] Any city or vil- lage authorized and empowered by any general or special law to purchase or lease lands, purchase, lease or sink natural MUNICIPAL LIGHTING PLANTS. 665 gas wells, procure right of way, purchase and lay down pipes, etc., for the purpose of supplying such city or village, or the citizens thereof, with natural gas, is hereby authorized and empowered to exercise any or all of said powers outside of its corporate limits. And all. the rights and powers conferred upon companies by sections thirty-eight hundred and seventy- eight and thirty-eight hundred and eighty (3878 and 3880), as amended March 24, 1888, and subject, to all the restrictions therein, are hereby conferred upon the cities and villages above referred to. [86 v. 203.] Sec. 2490 R. S. [Laying of gas-pipes, and expense thereof.] The council may prescribe, by ordinance, for the laying down of gas pipes in all highways about to be paved, macadamized, or otherwise permanently improved, and for the assessment of the cost and expense thereof upon the lots or parcels of land adjoining or abutting upon the highways in which the same are laid ; but in no case, excepting as a sanitary measure, shall the council require any house connections to be built further from the main pipe than the outer line of the curb-stone. [66 v. 220, § 427.] Sec. 2491 R. S. | Contracts to supply municipality with elec- tric light or gas.] A municipal corporation may contract with such company for supplying, with electric light, natural or artificial gas, for the purpose of lighting or heating the streets, squares and other public places and buildings in the corpora- tion limits. 1 [98 v. 150 ; 86 v. 62 ; 84 v. 39.] (1) Company organized for the a period exceeding ten years by pro- manufacture of electrical supplies is visions of § 2479 R. S. Gas Co. v. not a company contemplated by this Lima, 4 C. C. 22. section. Brush Electric Light Co. Interest on payments overdue v. Jones Bros. Elec. Co., et al., 23 on a contract to supply public lights B. 329, 331. may be collected against municipal- Power of municipality to ity. Electric Co. v. Toledo, 13 Dec. make contract for lighting streets, 137. etc., is also conferred in § 45 of the Contract to "furnish light" Code (p. 172) and certificate of au- construed to include agreement to ditor of money in the treasury is furnish lamps. Newark v. Light & not required. As to requirement Power Co., 3 O. L. R. 644. under former law, see Ampt v. Cin- Restrictions in former law. — cinnati, 2 N. P. 332. This section was formerly made sub- Time -of contract limited. — ject to the provisions of §3551 R. Municipality cannot contract with a S., which required that before any company for lighting or heating for Page 665 666 THE OHIO MUNICIPAL CODE. company with which such contract Section cited. — § 2491 R. S. is was made should go into operation cited in the following cases: Find- where a company had already been lay Gaslight Co. v. Findlay, 2 C. C. formed, there should be a vote of 237 ; Toledo v. N. W. Ohio Nat. Gas the electors. This restriction is Co., 5 C. C. 557, 571; Bellaire Gob- omitted from the amendment of let Co. v. Findlay, 5 C. C. 418, 424; 1906, and § 3551 has also been Circleville L. & P. Co. v. Buckeye amended omitting the restriction. Gas Co., 69 O. S. 259, 269. An act authorizing the issuing of bonds of municipal corpora- tions for enlarging, improving or extending natural gas works, and providing for submitting issuing the same to a vote of the people. [§ 1.] [Municipalities authorized to issue bonds for purpose o: improving natural gas works.] The council, board of legislation or other legislative body or bodies of any municipal cor- poration of the state of Ohio shall have power to issue and sell bonds in such manner as is provided by law for the sale of bonds by municipal corporations, at a rate of interest not ex- ceeding 6 per cent., whenever such council, board of legislation or other legislative body or bodies, by an affirmative vote of not less than two-thirds of the members elected or appointed thereto shall, by resolution or ordinance, deem the same neces- sary for the purpose of extending, enlarging, improving, re- pairing or securing a more complete enjoyment of any natural gas works owned by such municipal corporation, subject, how- ever, to the provisions of section 2 of this act. [§ 2.] [Question of issue to be submitted to vote.] Before any such bonds are issued, the question of issuing the same shall be submitted to the voters of the municipal corporation at a general or special election, whenever the council of any municipal corporation shall, by resolution or ordinance, passed by an affirmative vote of not less than two-thirds of all the members elected or appointed thereto, declare it necessary to issue and sell the bonds of such municipal corporation for any of the purposes set forth in section 1 of this act, they shall, by such resolution or ordinance fix the date upon which the question of the issue and sale of such bonds shall be submitted to the electors of such municipality, and shall cause a copy of such resolution or ordinance to be certified to the deputy state super- visors of the county in which such municipal corporation is stituated, and such deputy state supervisors shall thereupon pro- ceed to prepare the ballots and make all other necessary ar- rangements for the submission of such question to the electors of such municipal corporation at the time fixed in such resolu- tion or ordinance. Such election shall be held at the regular place or places of voting in such municipal corporation, and shall be conducted, canvassed and certified in the same manner, MUNICIPAL LIGHTING PLANTS. 667 except as otherwise provided by law, as ^November elections in such municipal corporation for the election of officers thereof; provided, however, that, when a special election for such pur- pose is held in a municipal corporation divided into wards, there may be but one voting place in each ward, which shall be designated by the deputy state supervisors of elections, and the notice hereinafter provided for shall designate the voting places in each ward. In all cities in which registration is re- quired, if but one voting place is designated in each ward, certificates of removal shall not be necessary, except where transfers are required from one ward to another, and the board of deputy state supervisors of all such cities shall issue such removal certificates. Fifteen days' notice of the submission shall be given in one or more newspapers printed therein once a week for two consecutive weeks, stating the amount of bonds to be issued, the purpose for which they are to be issued, and the time and place of holding the election; and, if no news- paper is printed therein, the notice shall be posted in a con- spicuous place and published once a week for two consecutive weeks in some newspaper of general circulation in the mu- nicipal corporation. If two-thirds of the voters voting at such election upon the question of issuing the bonds vote in favor thereof, then, and not otherwise, the bonds shall be issued, and a tax may be levied for the purpose of paying the interest and principal upon such bonds. Those who vote in favor of the proposition shall have written or printed on their ballots, in quotation, " For the issue of bonds " ; those who vote against the same shall have written or printed on their ballots the words, " Against the issue of bonds." [1904, April 23, 97 v. 237 ; 95 v. 478.] An act to authorize trustees of townships and councils of munici- palities to make additional levy for the purpose of drilling an oil or gas well when authorized by vote of the electors of such town- ship or municipality. [§ 1.] [Township trustees and council of municipality au- thorized to levy tax for drilling oil or gas well.] The trustees of any township or council of any municipality in the state of Ohio, be, and the same are hereby authorized to levy an additional tax not exceeding five mills on the dollar in addition to the tax already authorized by law, when so authorized by a majority vote of the electors of such township or municipality at a regular or special election, said election to be conducted the same as elections for township or municipal officers, the same to be collected as other taxes, for the purpose of drilling an oil or gas well in such township or municipality. [1902, May 9: 95 v. 449.] 668 THE OHIO MUNICIPAL CODE. VII GAS AND WATER COMPANIES. Sec. 3550 U.S. [Powers of gas and water companies.] A com- pany organized for the purpose of supplying gas for lighting the streets and public and private buildings of a city, village, town, or township, may manufacture, sell, and furnish the gas required therein for such or other purposes; 1 and a company organized for the purpose of supplying the inhabitants of a city, village, town, or township with water may sell and furnish any quantity of water required therein for such or other purposes ; 2 and such companies may lay conductors for conducting gas or water through the streets, lands, alleys > and squares in such City, village, town, or township, with the consent of the munici- pal authorities of the city, village, or town, or with the consent of the trustees of the township, and under such reasonable regulation as they may prescribe. 8 [64 v. 255, § 53] (1) Powers of gas company. — Company is not authorized to have exclusive right to lay its conductors in the streets^ by virtue of this sec- tion. State v. Hamilton, 47 O. S. 52; and ordinance granting it ex- clusive use is void. Hamilton v. Gas Co., 8 N. P. 319. See also State ex rel. v. Cin. Gas Light anc. Coke Co., 18 O. S., 262. Gas com- pany organized under special char- ter is subject to the general laws of the state, unless clearly exempt- ed by the terms of its charter. State ex rel. v. Gas Co., 34 O. S. 572. Company organized to furnish il- luminating gas, under earlier laws, cannot substitute natural gas. Findlay Gas Light Co. v. Findlay, 2 C. C. 237. Company organized to furnish gas for lighting purposes, may amend its charter so as to allow it to furnish both gas and electric light- ing. Picard v. Hughey, 58 O. S- 577. Power to borrow money and give mortgage, see Hays v. Galion Gas Co., 29 0. S. 330; Burt v. Rattle, 31 O. S. 116. (2) Powers of water company. — Such company has no right to appropriate property under this sec- tion. State v. Salem Water Co., 5 C. C. 58. Regulation of price of water by council, see § 2478 R. S., p. 656. (3) Conditions which may be imposed. — Council can only impose such restrictions upon the use of the streets by such companies as may protect the public and reimburse the (JAS AND WATER COMPANIES. 669 city for expenses of inspection, etc., Columbus Gas Co., 14 Dec. 416; 2 but cannot exact a sum of $4,000 N. P. (N. S.) 37; see also same case, per annum as a revenue from the 15 Dec. 645; 3 N. P. (N. S.) 293. use of the streets. Columbus v. Sec. 3550a R. S. [Gas companies and electric companies may manufacture and supply both electricity and gas; con- tracts with municipality.] Every corporation organized under the laws of this state to manufacture and supply artificial gas for light, heat and power purposes or for any [of] such pur- poses, and every corporation organized under the laws of this state to manufacture and supply electricity for light, heat and power purposes, or for any of such purposes, shall, in addi- tion to all powers heretofore conferred, have power, subject, however, to statutory provisions in force relating to the grant- ing of franchises by municipalities for either of said purposes at the time of the granting of the franchise, to manufacture and supply electricity and artificial gas, respectively, for light, heat and power purposes and to make all contracts, and to do all things necessary and convenient for furnishing the same for both public and private objects; provided nothing herein shall be held to confer any right to engage in any such busi- ness or to erect or maintain any structures in any streets, al- leys or public places without the consent of the municipality in which the same are to be constructed, and all ordinances and resolutions heretofore passed by any municipal corpora- tion, and all contracts heretofore made by and between any municipality and any company so organized to manufacture and supply gas, which were and still are intended to provide for supplying electricity for any municipal purpose and as to which the time of performance has not commenced to run or has not expired, shall be as valid and binding as if this statute had been enforced when such ordinance or resolution was passed or any such contract was made. 1 [98 v. 150; 97 v. 258; 90 v. 291.] (1) This section, before amend- be subject to § 3551 as it then read, ment of 1906, provided that con- See note under § 3551 infra. tracts with the municipality should Sec. 3551 R. S. [Contracts to supply municipality with light and water.] The municipal authority of any city or village or the trustees of any township, in which any gas or water company is organized, may contract with any such company 670 THE OHIO MUNICIPAL CODE. for lighting or supplying with water the streets, lands, lanes, squares and public places in such city, village, town or town- ship. 1 [98 v. 150; 71 v. 93.] (1) Contract with municipal- relating to the question as to when ity. — See § 45 of the Code, where a vote was required under such sec- such contracts are authorized to tion, see Hunter v. Austin, 9 C. C. be made, subject to the provisions 583; Circleville L. & P. Co. v. Buck- of §3551 R. S., and are exempted eye Gas Co., 69 O. S. 259; Gas Co. from the requirement of a certifi- v. Lima, 4 C. C. 22. cate of money in the treasury be- Liability of company. — Water fore expenditure is made, page 172. company is not liable to inhabitant, Restrictions in former law. — because of contract with municipal- Before the amendment of 1906, this ity, for injury due to failure to sup- section provided that "no such com- ply water for fire protection. Blunk pany shall go into operation in any v. Dennison Co., 71 O. S. 250. city or village where a corporation Power of company, as to ap- has been already formed, or is here- propriation of property, denied, after formed, until after the ques- State ex rel. v. Water Co., 5 C. C. tion of authorizing such operation 58. has been submitted to the qualified Section cited, see State ex rel. voters of such city or village, and Hamilton, 47 O. S. 52, 69. authorized by ordinance." For cases Sec. 3552 It. S. [Gas company may extend pipes beyond city.] A gas company in any city or village may extend * its pipes used for conveying gas to the various localities and inhabitants of such city or village, to any point or place in the vicinity of such city or village outside the corporate limits thereof; but the right of way must be obtained from the corporate or other authorities, or person having control of the places to be affected by such extension. [56 v. 92, § 1 ; (S. & C. 351).] (1) When extension may be pany, so that it might be granted granted. — As to what would an extension, see Cincinnati Gas amount to establishment of com- Co. v. Avondale, 43 O. S. 257. Sec. 3553 R. S. [Standard measure for gas.] The standard or unit of measure for the sale of illuminating gas by meter shall be the cubic foot, containing sixty-two and three hundred twenty-one one-thousandth pounds avoirdupois weight of dis- tilled or rain water, weighed in air, of the temperature of sixty-two degrees Fahrenheit's scale, the barometer being at twenty-nine and one-half inches. [63 v. 164, § 5; (S. & S. 159).] GAS AND WATER COMPANIES. C7l Sec. 3554 R. S. [Meter must be sealed and stamped.] No meter shall be set unless it is tested by a meter-prover, sealed and stamped as provided in section thirty-five hundred and fifty-six, and any company authorizing the setting of a meter, or allow- ing the same to be used by any consumer of gas, without being so sealed and stamped, shall forfeit and pay not less than twenty-five nor more than one hundred dollars^ to be recovered upon the complaint of any such consumer, in the name of the state, before any court of competent jurisdiction. [64 v. 39, § 6; (S. & S. 161).] Sec. 3555 R. S. [Gas companies to furnish certain apparatus.] There shall be provided, at the expense of the gas companies of this state, by the state sealer of weights and measures, at the Ohio state university, a standard measure of the cubic foot, and such other apparatus as in his judgment shall be necessary for the performance of his duties under this chapter. [88 v. 123 ; 63 v. 164, §7; (S. & S. 159).] Sec. 3556 R. S. [How and when meters in use to be tested.] Meters in use shall be tested on the request of the consumer, in his presence, if desired, with a meter-prover tested and sealed as provided in section thirty-five hundred and sixty-one, by an officer or servant of the company; if the meter be found to be correct, the party requesting the inspection shall pay a fee of twenty-five cents, and the expense of removing the same for the purpose of being tested, and the re-inspection shall be stamped on the meter; if proved incorrect, no fees or expense shall be paid by the consumer, and the company shall furnish a new meter without any charge to the consumer; and no gas com- pany shall have the right to charge rent for meters. [64 v. 39, § 9; (S. & S. 161).] Sec. 3557 R. S. [What is merchantable gas.] Illuminating gas shall not be merchantable in this state which has a mini- mum value of less than twelve candles — that is, a burner consuming five cubic feet per hour shall give a light, as meas- ured by the photometric apparatus in ordinary use, of not less than twelve standard sperm candles, each consuming one hun- dred and twenty grains per hour ; and every gas-meter must be tested with the burner, and under the pressure best adapted to it, and the result shall be calculated at a temperature of sixty degrees Fahrenheit [64 v. 39, § 10; (S. & S. 162).] Sec. 3558 R. S. [Agents of company may enter premises to in- spect meter.] An officer or servant of a gas company, duly au- 672 THE OHIO MUNICIPAL CODE. thorized in writing by the president, treasurer, agent, or secre> tary of the company, may, at any reasonable time, enter any premises lighted with gas supplied by such company, for the purpose of examining or removing the meters, and of ascer- taining the quantity of gas consumed or supplied ; and if any person, at any time, directly or indirectly, prevent or hinder any such officer or servant from so entering any such premises, or from making such examination or removal, such officer or servant may make complaint under oath, to any justice of the peace of the county wherein such premises are situate, stating the facts in the case, so far as he has knowledge thereof, and the justice may thereupon issue a warrant, directed to any con- stable of the city or town where such company is located, commanding him to take sufficient aid, and repair to such prem- ises, accompanied by such officer or servant, who shall examine such meters and ascertain the quantity of gas consumed or supplied therein, and, if required, remove any meters belong- ing to the company. [63 v. 164, § 11 ; (S. & S. 159).] Sec. 3559 R. S. [When company may shut off the gas.] If any person so supplied with gas neglect or refuse to pay the amount due for the same, or for the rent of the meter, or other articles hired by him of the company, the company may stop the gas from entering the premises of such person; in such cases the officers, servants, or workmen of the gas company may, after twenty-four hours' notice, enter the premises of such parties, between the hours of eight in the forenoon and four in the afternoon, and take away such meter, or other property of the company, and may disconnect any meter from the mains or pipes of the company; and no gas company shall have the right to refuse to furnish gas on account of any arrearages due the company for gas furnished to former occupants of the same premises. [63 v. 164, § 12 ; (S. & S. 160).] Sec. 3560 R. S. [Penalties for tampering with meters.] Every person who willfully or fraudulently injures, or suffers to be injured, any meter belonging to any gas company, or prevents ?ny meter from duly registering the quantity of gas supplied through the same, or in any way hinders or interferes with its proper action or just registration, or attaches any pipe to any main or pipe belonging to such company, or otherwise burns or uses or causes to be used, any gas supplied by such company, without the written consent of an officer thereof, unless the same passes through a meter set by the company, or fraudulently burns the gas of the company, or waste [s] the same, shall 'for every such offense, forfeit and pay to the company not more GAS AND WATER COMPANIES. 673 than one hundred dollars, to be recovered in an action brought by the company against such offender, and in addition thereto, shall pay the company the amount of damage by it sustained by reason of such injury, prevention, waste, consumption or hindrance. [63 v. 164, §§ 13, 14; (S. & S. 160).] Sec. 3561 R. S. [Each company to provide certain apparatus.] All gas companies supplying the public with illuminating gas which are not supplied with such apparatus, shall forthwith provide for their use a meter-prover, the holder of which shall contain not less than five feet, the same to be tested, stamped, and sealed by the state sealer of weights and measures, at the Ohio state university, before being used, and a photometer for the comparison of the lights of gases and candles by means of a disk. 1 [88 v. 123; 73 v. 227, § 3; (S. & S. 159).] ( 1 ) Liability imposed here, is in- dependent of negligence. Gas Fuel Co. v. Andrews, 50 O. S. 695. Sec. 3561a R. S. [Laws made applicable to natural gas com- panies in certain cities.] The provisions of this chapter, so far as the same may be applicable, shall apply also to any company organized for the purpose of supplying the public and private buildings and manufacturing establishments of all cities of the third grade of the second class, having a population not exceeding 16,000 at [the] federal census of A. D. 1880, with natural gas for fuel; but said company shall be liable for any damage that may result from the transportation of the same, provided the township trustees shall not assent to the laying down of any line of pipes in any township of this state, as pro- vided in sections three thousand five hundred and fifty and three thousand five hundred and fifty-one, until the company or corporation proposing to lay the same shall obtain the assent, in writing of a majority of the land-owners whose lands may be adjacent to the road or highway upon which said line of pipes or conductors are to be laid. [1885, May 1 : 82 v. 213.] 674 THE OHIO MUNICIPAL CODE. VIII LIGHTING OF RAILWAYS AND BRIDGES. 1 Sec. 2494 R. S. [Council to pass ordinance to light bridge or railway; shall not require railway to use electric arc lights.] 2 When it is deemed necessary by the council of any city or village to have any bridge or railway, located in whole or in part in such corporation, owned, possessed, or operated by any individual, company, association or corporation, or any portion of the same, lighted, the council shall pass an ordinance for that purpose, requiring the individual, company, association, or corporation, owning possessing or operating the same, to light such bridge or railway within a specified time ; 3 provided, that it shall not require any such railway or portion thereof to be lighted with electric arc lights. [1902, May 7 : 95 v. 419; 67 (69) v. 47, § 429.] (1) fitle, division and chapter. — Sections carried here formed part of Chap. 4, Div. 8, Title XII, R. S. None of the sections of this chapter are re-enacted by the Code. Those sections not given here, are repealed by the Code. (2) This section is given as amended May 7, 1902. (3) Validity. — Law requiring railroad to light its tracks with- in city or village is constitution- al. C. H. & D. R. R. v. Sullivan, 32 O. S. 152; Ravenna v. Pennsyl- vania Ry. Co., 45 O. S. 118; C. H. & D. R. R. v. Bowling Green, 57 O. S. 336. §§ 2294 to 2498 R. S. are valid. C. C. C. & St. L. Ry. Co. v. Village of St. Bernard, 15 ^- C. 588. Any railroad. — This includes a company operating the road, though neither the owner nor the lessee. C. H. and D. R. R. v. Bowling Green, 57 O. S. 336. Requirements must be reasona- b!e. — Municipality may specify the kind of light, and where lights must be placed, but it must not act unreasonably or arbitrarily. C. C. C. & St. L. Ry. Co. v. Village of St. Bernard, 15 C. C. 588; C. H. and D. R. R. v. Bowling Green, 57 O. S. 336. A requirement that company pro- ceed within twenty days from re- ceipt of notice is not unreasonable. St. Mary's v. Railroad, 60 O. S. 136. LIGHTING OF RAILWAYS AND BRIDGES. 675 FORM OF ORDINANCE REQUIRING RAILWAY TO BE LIGHTED. Ordinance No. . Requiring The Railroad Company to light its railway within the city [or village] of Be it ordained by the council of the city [or village] of , State of Ohio: Sec. 1. That it is deemed necessary by the council of the city [or vil- lage] of , to have the railway (or a certain por- tion defined) within the limits of said city [or village] lighted, and that The Railroad Company be, and it is hereby required to light its railway within the limits of said city [or village] with and erect [lamp posts, poles, etc., as required] located as follows : ( Give place where posts are to be placed ) ; said [lamp-posts, etc.] shall be of (describe style of lamp-posts, etc. ) ; and such lights shall be kept burning from to in each twenty-four hours. Sec. 2. That the clerk be and he is hereby directed to give notice to the Railroad Company of the passage of this or- dinance, by delivering a copy thereof to said company or the person or corporation haviftg possession, charge or management of said railway, [or in the manner provided in § 2496 of the Revised Statutes of Ohio] and if said railway is not lighted as herein required within twenty days from the receipt of this notice, said lighting will be done by said city [or village] and the expense thereof assessed against said company in the manner provided by law. Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed , 19 President of Council. Attest : Clerk. Sec. 2495 R. S. [Character of the ordinance.] The ordi- nance shall specify the manner in which such bridge or railway shall be lighted, the number and style of lamp-posts, gas-posts, electric lights or other lights and fixtures and the time such lights shall be kept burning in each twenty-four hours. 1 [91 v. 147 ; 66 v. 220, § 430.] (1) Character of regulations. — But an ordinance providing for A city or village has authority to electric lighting when municipal- prescribe the kind of light to oe ity contains no electric plant would used. C. H. and D. E. R. v. Bowl- be an unreasonable burden and void, ing Green, 57 O. S. 336. lb., 344. 676 THE OHIO MUNICIPAL CODE. City or village may require rail- road company to use the same kind of lamp and illuminating material as used in city or village. lb. And it may require a light un- known at the time of the enactment of the statute. C H. & D. R. R. v. Bowling Green, 9 C. C. 524, 531. An ordinance requiring a com- pany to light its tracks and speci- fying that the lamps shall be light- ed the same hours as the lamps of the village, is sufficiently definite. C. H. and D. R. R. Co. v. Bowling Green, 57 O. S. 336. Sec. 2496 It. S. [Notice of requirement to light bridge or rail- way shall be given; time and manner.] Notice of such require- ment to light any bridge or railway shall be given at least twenty days before penalty or charge shall be imposed for default, and such notice may be given by delivering to any owner or part owner, or any person having possession, charge or management of such bridge or railway, a written or printed copy of the ordinance, 1 provided, however, that when such ordinance requires the lighting of a railway, service of such written or printed copy of the ordinance upon any ticket or freight agent of such railway company in such »city or village, and if there be no such ticket or freight agent in such city or village, upon any ticket or freight agent of such railway com- pany in the county wherein such city or village is located, shall be deemed sufficient and shall charge the person, company, cor- poration, or partnership, owning or operating such railway with notice of the passage of said ordinance and the requirements thereof. 2 [1902, May 6 : 95 v. 369; 66 v. 221, § 431.] (1) What notice required. — An ordinance requiring the lighting of a railway is not rendered void by failure of village to notify com- pany of its intentions. C. C. C. and St. L. Ry. v. St. Bernard, 19 C. C. 299. The notice required must be made only when a penalty or charge is to be imposed for default. 76. See also C. C. C. & St. L. v. Village of De Graff, 20 C. C. 710. No fixed time for performance necessary.— §§ 2492 to 2499 R. S. should receive a reasonable con- struction, and an ordinance will not be held to be defective as fail- ing to fix a specified time for the performance of such requirement by the company, if its language, tak- ing the ordinance altogether, is sufficiently definite to inform the company that such lighting is re- quired to be done, how it is to ba done, and when it is to be done. St. Mary's v. Railroad, 60 O. S. 136. (2) Service of notice. — Notice served by sending registered letter with receipt of the addressee, is sufficient. Bowling Green v. C. H. & D. R. R., 10 C. C. 63, 68. And notice to an officer of the " C. H. & D. Railway Co." instead of Railroad Co. was held sufficient. lb., 69. See also C. H. & D. v. Bowling Green, 9 C. C. 524, 526. LIGHTING OF RAILWAYS AND BRIDGES. 677 Sec. 2497 R. S. [Procedure on failure to light bridge or rail- way.] If the person, company, or corporation, owning, pos- sessing, or operating such railway or bridge, neglect or fail to do such lighting in conformity with the provisions of the ordinance for twenty days after notice as aforesaid, the council may immediately proceed to cause the lighting to be done at the expense of such person or persons, company, or corporations. 1 [67 (69) v. 47, § 432.] (1) Recovery. — On failure of Municipality may employ pri= company to obey ordinance to light, vate company. — On failure of rail- the village may light the track and road company to perform • munici- recover in an action against the pality may employ a private corn- company. C. H. and D. K. R. v. pany, pay the bill and collect from Bowling Green, 57 O. S. 336. the company in an action. C. H. A village may recover even though and D. R. R. v. Bowling Green, 9 a lamp was not placed on the track, C. C. 524, 530, aff'd 57 O. S. 336. if the track was lighted and al- Amount assessed presumed though the lamp also lighted a right. — Presumption attaches that street. The particular location of the action of council was regular the lamp is not material if it ef- and the amount assessed proper. Vil- fect its purpose. G. C. C. and St. lage of St. Mary's v. Railroad, 60 L. Ry. v. St. Bernard, 19 C. C. 299. O. S. 136, 148. See also C. H. and D. R. R. v. Bowling Green, 9 C. C, 524, 531. Sec. 2498 R. S. [Assessment for expense of such lighting, etc.] The council may direct the manner in which the expense of lighting such bridge or railway shall be assessed and collected, and when assessed, the amount shall be a debt due against and payable by such person, company, or corporation, and shall be a lien 1 to be enforced as any other lien on such bridge and the land on which the same is built, or upon the real estate of the railway company or leasehold interest situate or being within the county wherein such city or village is located. [67 (69) t. 47, § 433.] ( 1 ) Expense of lien. — When, sessed or declared a lien upon any on default of the railway company, of the real estate of the railway the lighting is procured to be done company within the municipality, by the council, the expense of such Railroad Co. v. Sullivan, 32 O. S. lighting may, by the council, be as- 152. FORM OF ORDINANCE TO ASSESS EXPENSE OF LIGHTING RAILWAY. Ordinance No. . To assess the cost and expense of lighting rail- way within the limits of the city [or village] of 678 THE OHIO MUNICIPAL CODE. Be it ordained by the council of the city [or village] of , State of Ohio: Sec. 1. That to pay the cost and expense incurred by the city [or vil- lage of , in lighting the railway (or portion thereof, as the case may be) within the limits of said city [or village] in the manner provided in an ordinance No passed , 19 .... , requiring the rail- road company to do said lighting, and after the passage of said ordinance, and the failure of said railroad company to comply with its requirements after due notice as required by law, there be assessed on all the real property or leasehold interest of The Railroad Com- pany within the county of , the sum of dollars. Sec. 2. That the amount herein assessed upon the property of said railroad company shall be payable to the treasurer of the said city [or village] within days from the passage of this ordinance, and if not paid as herein required, the solicitor is hereby directed to proceed against said company for the sum so due; in the manner provided by law. Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law. Passed 19 President of Council. Attest: Clerk. Sec. 2499 U.S. [How lien may be enforced.] The charge may be collected or the lien enforced in the manner pointed out in the chapter providing for the assessment of damages and expenses for making public improvements. 1 [66 v. 221, § 434.] (1) Lien, how enforced.— See PI. & D. R. R., 10 C. C. 63. See § C. H. and D. R. R. Co. v. Sullivan, 2286 et seq., R. S. re-enacted in § 32 O. S. 152; Bowling Green v. C. 94 of the Code, page 264. STEAM KAILROADS IN MUNICIPAL LIMITS. 679 IX STEAM RAILROADS IN MUNICIPAL LIMITS. 1. GENERAL REGULATIONS. Sec. 247a U.S. [Gates, bells, devices or flagmen at crossings.] When, in the opinion of the commissioner of railroads, the public safety requires that a gate or gates, automatic alarm- bell, or other mechanical device be erected and maintained at any place where a public road or street is crossed at the same level by any railroad, and which crossing has been declared by said commissioner to be a dangerous one, or that a flagman be stationed and maintained at such dangerous crossing, he shall give the superintendent, manager or other officer in charge of such railroad, a written notice that the same is required, and such company, person or corporation owning or operating such railroad shall erect or station the same within such time there^ after as said commissioner shall prescribe. Any company, per- son or corporation neglecting or refusing to erect or maintain such gate or gates, automatic alarm-bell, or other mechanical device, or to maintain such flagman, when so required as afore- said, shall forfeit and pay to the state, for every such neglect or refusal, the sum of one hundred dollars, and the further sum of ten dollars for every day while such neglect or refusal shall continue. 1 [91 v. 353; 86 v. 367.] ( 1 ) Duties of flagman. — See person injured if it fails to exer- Ry. Co. v. Schneider, 45 O. S. 678. cise due care at crossings. lb. Flagmen and railroad company Street railway crossing track. are chargeable only with ordinary — See § ( 3443-6 ) R. S. infra. care. Street Ry. Co. v. Murray, 53 Street railway company employes O. S. 570, 583. are not relieved from duty by stop- Liability of company. — Persons ping the car and going forward, as crossing tracks have right to pre- required by § (3443-6) because the sume that gateman is exercising due flagman has signalled that crossing diligence. Ry. Co. v. Schneider, 45 is open. St. Ry. Co. v. Murray, 53 O. S. 678. O. S. 570, 583. § 247a and § Company is liable in damages to (3443-6) are not in pari materia. lb. 680 THE OHIO MUNICIPAL CODE. Sec. 247b R. S. [Regulations as to such gates, bells, devices or flagman.] All gates, bells or devices, which by the provisions of this act are under the direction of the commissioner of rail- roads, shall be built in such a manner, and within such a time, and of such material as shall be approved by the commissioner of railroads, and shall be located on the highway or street, on one or both sides of the railroad track or tracks as the commis- sioner may deem the public safety to require, and shall be so constructed as, when closed, to obstruct and prevent any pas- sage across such railroad or railroads from the side on which the gate may be located; or said bell shall be made to ring before the approach of each and every train of cars or of a locomotive within three hundred feet of such crossing, or more, according to the speed of the train, and continue to ring until the train of cars or the locomotive shall have reached the crossing. There shall be a person in charge of every such gate and it shall be his duty to close the same at the approach of every train of cars, or of a locomotive, and to keep it open at all other times. In case an automatic alarm bell, or other mechanical device shall be required at any such crossing, it shall be the duty of the railroad company at all times to keep such bell or device in good working order. For every neglect of such duty such per- son or railroad company, upon conviction thereof, shall pay the sum of twenty-five dollars. When more than one railroad crosses a public highway or street at such dangerous crossing, the expense incurred in the erection and maintenance of gates, bells or device provided for in this section, and of the necessary gatekeepers, or of a flagman, shall be shared equally by the railroad companies alongside whose tracks the gates, bells or device shall be located. Provided that an automatic alarm bell, or other mechanical device as provided for in this and the preceding section, shall not be erected within the limits of any city of the first class or of any city of the first, second, third, and fourth grades of the second class, upon the order of the commissioner of railroads and telegraphs; but nothing herein contained shall prohibit any railroad company from using such automatic alarm bell or other mechanical device, if it desire, at any public railroad crossing not declared dangerous by said commissioner of railroads and telegraphs ; and provided further, that where a gate or gates, has or have been erected, and is or are maintained by the railroad company, or where a flagman has been stationed and is maintained by the railroad company, shall not be abandoned, and any automatic alarm bell or other me- chanical devices be substituted therefor. [91 v. 353; 86 v. 367.] STEAM RAILROADS IN MUNICIPAL LIMITS. 681 Sec. 247c R. S. [Gates or flagmen at dangerous crossings in Hamilton; duty of prosecuting attorney.] When, in the opinion of the city council of any city of the third grade b of the sec- ond class, the public safety requires that a gate or gates be erected and maintained at any place where a public road or street is crossed in said city at the same level by any railroad, and which crossing has been declared by said council to be a dangerous one, or that a flagman be stationed and maintained at such dangerous crossing, council shall give the superintend- ent, manager or other officer in charge of such railroad, a writ- ten notice that the same is required, and such company, per- son or corporation owning or operating such railroad shall erect or station the same within such time thereafter as council may prescribe. After said notice has been given to the superin- tendent, manager or other officer in charge of such railroad that the same is required, such railroad company and said council shall agree as to whether said crossing so declared to be dangerous shall be protected by a gate or gates, or a flagman; and if they fail to come to any agreement within ten days, then the question shall be submitted to arbitrators, the council selecting one person, the railroad company one; the two thus selected shall choose a third. The arbitrators thus selected shall decide whether said dangerous crossing shall be protected by a gate or gates, or a flagman, and their decision shall be final. Any company, person or corporation neglecting or re- fusing to erect or maintain such gate or gates, or to maintain such flagman when so required as aforesaid, shall forfeit and pay to the state for every such neglect or refusal the sum. of one hundred dollars, and the further sum of ten dollars for every day while such neglect or refusal shall continue. Pro- vided further, that nothing herein contained shall be construed as conflicting with section 247a. [91 v. 350.] [§ 2.] It is hereby made the duty of the prosecuting at- torney of the proper county, upon being advised of the viola- tion of this act, to immediately commence civil action against said company, person or corporation in the name of the state for the recovery of the forfeitures and penalties imposed in this act. [91 v. 350.] Sec. 2500 R. S. [Regulation of rate of speed.] * When a rail- road track is laid in a municipal corporation, the council may by ordinance regulate the speed of all locomotives and railroad cars within the corporate limits : provided, such ordinance shall not require a less rate of speed than four miles an hour, and in villages having a population of two thousand or less it shall not be fixed at a less rate than eight miles an hour; and the corporate authorities may by civil action, recover against any engineer, conductor, or company violating such ordinance a 682 THE OHIO MUNICIPAL CODE. sum not less than five dollars nor more than fifty dollars for each offense. 2 [74 v. 132 ; § 1 ; (S. & C. 321).] ' ( 1 ) Title, division and chapter, of negligence, but may be considered — This section formed part of sub- by the jury on question of negli- division 1, Chap. 5, Div. 8, Title gence. L. S. & M. S. Ry. Co. v. XII, R. S. All sections in the sub- Johnston, 25 C. C. 41 ; 1 C. C. (N. division are repealed except the one S.) 357; Meek v. Pennsylvania Co., here given. 38 O. S. 632 ; Ry. Co. v. Herrick, 49 (2) Liability of company.— A O. S. 25, 32; Bell v. Pistorius, 18 traveler crossing a railroad track C. C. 73; and L. S. & M. S. R. R. has a right to presume that the Co. v. Ehlert, 19 C. C. 177; C. H. & company will conform to a regula- D. Ry. Co. v. Murphy, 17 C. C. 223; tion, passed by the municipality, Watson v. Erie R. R. Co., 8 N. P. prohibiting the running of trains at 18; Ry. Co. v. Trainer, 18 C. C. a greater rate of speed than that 716; Railroad Co. v. McCormick, 24 named in the ordinance. Hart v. C. C. 86 ; L. S. & M. S. R. R. Co. v. Devereux, Receiver, 41 O. S. 565. Johnston, 25 C. C. 41; 1 C. C. (N. The fact that the speed allowed S.) 357. by ordinance is exceeded is not proof Sec. 3283 It. S. [How right to occupy road, street, alley, etc., may be acquired.] If it be necessary, in the location of any part of a railroad, to occupy any public road, street^ alley, way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms, and conditions upon which the same may be used or occupied ;* and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals, but every company which lays a track upon any such street, alley, road, or ground, shall be responsible for injuries done thereby to private or public prop- erty lying upon or near to such ground, which may be recov- ered by' civil action brought by the owner 2 before the proper court, at any time within two years 3 from the completion of such track. [54 v. 133, § 12 ; S. & C. 278.] ( 1 ) Scope of section. — This A city's power over streets is not section is not restricted to longi- authorized to be granted away by tudinal use, and a railroad desiring this section. Railroad v. Defiance, to cross a street must enter into an 52 O. S. 262. agreement or condemn. This sec- This section does not give to a tion is not limited by § 3284 R. S. municipality the power to agree \oungstown v. Railroad, 3 C. C. with a railway company for the per- 214. manent and exclusive occupation of Grant to fix terminus does not a public street with abutments to include right to cross streets. To do support an overhead crossing of a this requires an agreement or con- railroad, nor can such occupation be demnation. Cincinnati Northern R. rightly gained by means of appro- R. v. Cincinnati, 8 B. 334. priation. L. S. & M. S. Ry. Co. v. STEAM RAILROADS IN MUNICIPAL LIMITS. 683 Elyria, 69 O. S. 414; Cincinnati v. L. & N. R. R. Co., 16 Dec. 628; 4 N. P. (N. S.) 217. As to the effect of § 3337-1 R. S., see Cincinnati v. L. & N. R. R. Co., 16 Dec. 628; 4 N. P. (N. S.) 217. State board of public works can- not authorize a railroad, under pow- ers conferred by this section, to construct a road on the berm bank of a canal. State ex rel. v. Rail- road, 37 0. S. 157. Power to lay a track across a street, conditioned that street be restored to its former state, does not authorize company to appropri- ate the highway so as to materially interfere with public travel. Rail- road v. Comm'rs, 31 O. S. 338. And a municipal corporation can- not grant the exclusive use of streets to one railway company to the ex- clusion of all others. Railroad v. Railroad, 36 O. S. 251. The municipal corporation can- not fix the compensation to be paid for the use of a track belonging to another corporation. Such compen- sation must be fixed by a jury. 76. The city authorities may give per- mission to lay branch tracks for convenience of shippers. P. C. & St. L. R. R. v. Cincinnati, 16 B. 367 (aff'd no report 24 B. 416). Occupation of streets by agree- ment. — An agreement by a munic- ipality with a railroad granting use of streets, the company agreeing to make and gravel streets, cannot be rescinded without consent of railroad, and railroad is not re- leased from making streets. Rail- way v. Carthage, 36 O. S. 631. Railway company must make street in a reasonable time or a right of action accrues to munic- ipality, and this without notice. lb. The manner of use may be pre- scribed by municipality and must be observed by court unless fraudu- lent. Sargent v. O. & M. R. R., 1 Handy 52. But a condition cannot be attach- ed by a municipality compelling the railroad to keep a watchman at a crossing. Ravenna v. Pennsylvania Co., 45 O. S. 118, 123. The county commissioners are au- thorized by this section to contract with a railroad company as to the manner, terms, and conditions upon which said company shall occupy a portion of a public road. Me grue v. Comm'rs, 15 C. C. 242. If a railroad company cannot agree with the authorities of a mu- nicipal corporation, it may resort to the courts, in accordance witi. the terms of the provisions of §§ 6414-6453 R. S. State ex rel. v. Railway, 37 O. S. 157, 170. (2) Rights of abutting owners. — An abutting owner has a right of action for unlawfully interfering with travel on a street. Little Mi- ami R. R. v. Naylor, 2 O. S. 235. See tlso Parrott v. C. H. & D. R. R., 10 O. S. 624. But he has no right of action where he with others of the com- munity are inconvenienced by noise, smoke, and vapors. A railroad is not a private nuisance. Parrott v. C. H. & D. R. R., 10 O. S. 624; Fliehman v. C. C. C. & St. L. Ry., 27 B. 302. But substantial injury from smoke, noise, and vapors not com- mon to the community may be con- sidered. Railway v. Gardner, 45 O. S. 309. See also C, I., St. L. & C. Ry. v. Pfitzer, Goebel, 248; W. & L. E. R. R. v. McLaughlin, 15 C. C. 1. And a person whose property is not on the same street as the rail- way may recover under this sec- tion. Shepherd v. B. & O. R. R., 130 U. S. 426; W. & L. E. R. R. v. McLaughlin, 15 C. C. 1; Rail- road v. Mowatt, 35 O. S. 284. Property situated fifty feet from railroad is "near to" such railroad within meaning of this section. To- ledo Ry. & T. Co. v. Meinen, 27 C. C. 208; 6 C. C. (N. S.) 377. Claim for damages is a personal one and is not assigned by a con- veyance of the land. Railroad v. Campbell, 51 O. S. 328. When railroad occupies a high- way, but not in a way provided by this section, the abutting owner, 684 THE OHIO MUNICIPAL CODE. having the fee in the lands covered by the highway, may bring an ac- tion to compel railroad company to appropriate. Railroad v. Williams, 35 O. S. 168. And he has a right to damages for a change of grade of street by the railroad. Railroad v. Hamble- ton, 40 0. S. 496. As to abutting owner's right to enjoin construction of railroad in street, where his property rights are about to be taken, see note "Use granted to railroad," under § 28 of the Code. As to abutting owner's rights against the municipality for injury to his property abutting on the street caused by a railroad con- structed under municipal authority, see note, "Use granted to railroad," under § 28, page 113. The section, 3283 R. S., gives a right only where railway is con- structed in street. No right is given where railway is on company's own right of way. Cincinnati, etc., R. R. Co. v. Burski, 4 C. C. (N. S.) 98; 26 C. C. 486. See also Ross v. Railway, 27 C. C. 135; 5 C. C. (N. S.) 565 (aff'd 74 0. S. ). (3) Limitation of actions. — The limitation of two years applies to incidental injuries. The limita- tion for taking property is twenty- one years. Railroad Co. v. U'B«rra, 48 O. S. 343. And the limitation beginy to run when the track is completed and ready for use. Railway v. Gardner, 45 0. S. 309, 325. Suit for damages for change of grade must be brought within two years. Railroad v. Mowatt, 35 O. S. 284. Failure to begin suit within two years does not extinguish right of action, and unless the question is raised by answer or demurrer the lapse of time is waived. Railroad v. Lersch, 58 O. S. 639. . Limitation of two years does not apply when company is unlawfully in the street. Railroad v. Cobb, 35 O. S. 94. See further as to limitation of ac- tions. Railroad v. Hambleton, 40 O. S. 496. Evidence. — It is error to allow a witness to testify how much less per year was received as rent for the property affected since, than be- fore the track was laid in front of it. Railway v. Gardner, 45 O. S. 309. The measure of damages is the difference in value of the property before and after the alleged injury from cinders, noise, smoke, etc. To- ledo Ry. & T. Co. v. Meinen, 27 C. C. 208; 6 C. C. (N. S.) 377. Sec. 3284 E-. S. [May divert road or stream when necessary.] A company may, whenever it is necessary in the construction of its road to cross a road or a stream of water, divert the same from its location or bed; 1 but the company shall, without unnecessary delay, place such road or stream in such condi- tion as not to impair its former usefulness, 2 and' any or all railroads hereafter constructed, which shall cross any avenue or public highway leading from a city of the first or second class to a public cemetery of such city, situate within or with- out the limits of any such city, shall be constructed so as either to pass under or over such avenue or public highway, at such elevation or depression as the case may be, as will allow the STEAM RAILROADS IN MUNICIPAL LIMITS. 685 unobstructed passage of all wagons, carriages, or other vehi- cles which it may be necessary for any person to use upon such avenue or public highway. 3 [50 v. 274, § 16; S. & C. 279. J (1) Railway diverting road.— Under this section railroad may di- vert a highway, but it must put the same in good condition, and is liable for its failure to do so. Railway v. Maurer, 21 O. S. 421; Potter v. Bunnell, 20 O. S. 150. This provision is substantially the common law rule. Railroad v. De- fiance, 52 O. S. 262, 314. The right of a railway to use its road at a crossing of a highway, and the right of public to use high- way, are equal. Reasonable care and prudence must be used by each. Railroad v. Maurer, 21 O. S. 421. When it becomes necessary to di- vert a stream, the railroad may ap- propriate land for the new channel. Railway v. Bohm, 34 O. S. 114. (2) Restoring highway. — The requirement that railroad place a highway " in such condition as not to impair its former usefulness " is a condition continuing as long as the company enjoys its franchise. State v. Railroad, 36 O. S. 434. The attorney general may enforce the condition, lb.; and court may enjoin company from using high- way when it has been diverted and left in a dangerous condition. lb. The right of the state is not af- fected by power given to county commissioners under § 863 R. S. lb. If the company occupying the street refuses to restore it to its former usefulness to the public, it may be compelled to do so by man- datory injunction without compen- sation for the expense of removal. L. S. & M. S. Ry. Co. v. Elyria, 69 O. S. 414. The company being compelled to remove an obstruction which it has placed in the street, cannot claim that such removal is taking its prop- erty without due process of law. lb. (3) Crossing highway. — The crossing of city streets without con- sent of municipal authorities was not intended by this section. Rail- road v. Cincinnati, 8 B. 334. See also Youngstown v. Railroad, 3 C. C. 214. The railroad company is responsi- ble for the negligence of its agents. This section imposes a personal duty. Railroad v. Van Dorh, 1 C. C. 292. And where it agrees to keep a bridge in repair, is jointly liable with the city for failure to do so. Toledo Consolidated St. R. R. v. Sweeney, 8 C. C. 298 (aff'd, 52 O. S. 616). Sec. 3310 — 1 R. S. [Electricity as motive power upon rail- roads.] Upon any railroad heretofore or hereafter con- structed in this state, electricity may be used as a motive power in the propulsion of cars ; provided, however, that before any line of poles and wires shall be constructed through or along the streets, alleys or public grounds of any municipal corporation, plans of such construction shall be submitted to and approved by the council of such municipal corporation. [91 v. 397.] Sec. 3320 R. S. [Passenger trains must stop at certain stations.] Each company shall cause three, each way, of its regular trains carrying passengers, if so many are run daily, Sundays ex- cepted, to stop at a station, city, or village, containing over three thousand inhabitants, for a time sufficient to receive and let off passengers; if a company, or any agent or employe 686 THE OHIO MUNICIPAL CODE. thereof, violate, or cause or permit to be violated, this provi- sion, such company, agent, or employe shall be liable to a for- feiture of not more than one hundred nor less than twentv- five dollars, to be recovered in an action in the name of the state, upon the complaint of any person, before a justice of the peace of the county in which the violation occurs, for the bene- fit of the general fund of the county ; and in all cases in which a forfeiture occurs under the provisions of this section, the company whose agent or employe caused or permitted such vio- lation shall be liable for the amount of the forfeiture, and the conductor in charge of such train shall be held, prima facie, to have caused the violation. 1 [1889, April 13: 86 v. 291; Kev. Stat. 1880; 64 v. 142, § 26; (S. & S. 114; S. & C. 282).] ( 1 ) Validity. — This section does make regulations as to stoppage of hot violate the provisions of the trains is subject to legislative con- commerce clause of the U. S. Con- trol, and to such a provision as in stitution. R. R. v. State, 8 C. C. this section. Penn. Co. v. Wentz, 220 (aff'd, 37 B. 196). 37 O. S. 333. The power of the company to Sec. 3337 — 1 R. S. [Railroad bridges over highways.] § 1. It shall be unlawful for any person, company or corporation own- ing or operating any railroad, crossing, or that may hereafter cross, over and above any street, less than seventy feet in width, in any city in this state, at an elevation above such street, suffi- cient to permit persons to pass and repass along such street beneath such railroad crossing, to place or cause to be placed, or to suffer or permit to be or remain in such street, beneath such railroad crossing or bridge, any pier or other stay or sup- port for such crossing or bridge unless the placing and main- taining of the same be authorized by the city in which such crossing is situated, by ordinance duly passed, 1 or to suffer or permit any such railroad crossing or bridge to be or remain in such condition, that any iron, coal, or other hard substance, or any fluid or noisome matter, may fall or drop from or through any such crossing or bridge, upon persons traveling or passing beneath the same ; and any such person, company or corporation owning or operating any such railroad, failing to comply with the requirements of, or violating any of the pro- visions of this section, shall, for each and every day during the continuance of such failure or violation, and on account thereof forfeit and pay to such city the sum of one hundred dollars, which may be recovered in a civil action, in the name of such city, against the owner or operator of such railroad, or both, as the city may elect, and thereafter like recovery may be STEAM RAILROADS IN MUNICIPAL LIMITS. 687 had in like manner, for subsequent failures and violations aforesaid. [1904, April 23, 97 v. 301; 86 v. 197.] ( 1 ) Viaduct in street, even with ipality to give such consent is consent of municipality, would be a shown. Alexander v. Hy. Co., 2 N. nuisance unless authority of munic- P. (N. S.) 59; 14 Dec. 102. Sec. 3337 — 2R. S. [Council may prohibit switching, obstruct- ing, whistling, etc.] § 2. That the city council of any city may prohibit the switching of freight engines, trains, or cars, over or on said crossing or bridge, the sounding of locomotive steam whistles, on or near the same, and the standing or stopping of any railroad engine over or on the same, and may, by ordinance, constitute the same an offense, and provide for the punishment of any person committing such offense. [86 v. 197.] Sec. 3337 — 3 R. S. [Railroad companies must build and main- tain highway crossings, etc.] § 1. All railway or railroad com- panies operating a line or lines of railway in this state, shall build or cause to be built, and keep in repair good and sufficient crossings over, or approaches to such line or lines, of railway, its tracks, sidetracks and switches, at all points where any public highway, street, lane, avenue, alley, road or pike is now or may hereafter be intersected by such lines of railway, its tracks, sidetracks or switches. And also good and sufficient sidewalks on both sides of streets intersected by their roads, the full width of the right of way owned, claimed or occupied by them; and as to crossings and approaches outside of mu- nicipal corporations, the township trustees shall have power to fix and determine the kind and extent thereof, and the time and manner of constructing the same; and as to crossings, approaches and sidewalks within municipal corporations, the municipal councils shall have and exercise the same powers as trustees concerning crossways and approaches outside of mu- nicipalities, and such crossways, approaches and sidewalks shall be constructed, repaired and maintained by the railroad com- panies as so ordered. [88 v. 261.] * Sec. 3337 — 4 R. S. [Service of notice on railroad companies.] § 2. It shall be the duty of the officer or officers having charge of any public highway, street or alley intersected by any line of railway, to serve a written notice upon the nearest station agent or section foreman having charge of that portion of the railway where such intersection occurs, that such crossing, approach or sidewalk as herein described shall be built or repaired, set- ting forth the kind and extent thereof, and time and manner of constructing the same, as ordered by the council or trustees. [88 v. 261.] Sec. 3337 — 5 R. S. [When crossing, etc., must be completed, etc.] § 3. It shall be the duty of any railway company so noti- 688 THE OHIO MUNICIPAL CODE. fied, to comply with, said notice within a period of thirty (30) days from and after receiving such notice, and on failure so to do, the township trustees, or council as the case may be, may cause such, crossing, approach or sidewalk to be constructed or re- paired as before ordered, and may recover the cost of so doing with interest thereon, in a civil action against the railroad company, in the name of the trustees or municipality as the case may be, before any court of competent jurisdiction. [88 v. 261.] Sec. 3337 — 6R. S. [Crossings must be kept clear of snow.] § 4. It shall be the duty of all railway companies owning or operating any line of railway within the limits of the state of Ohio to, at all times, to keep all public highways now or here- after crossing such line of railroad, clear x>f snow, so that the same shall at all times be in a safe and convenient condition for travel for a distance of fifty (50) feet each way from the cen- ter of said railroad along such highway. [88 v. 261.] Sec. 3337 — 7R. S. [Penalties.] §5. Any railroad company which shall neglect to comply with the terms of this act, shall be liable to pay damage to the city, village, town or township in which the highway is situated in the sum of thirty ($30) dol- lars for such neglect, and a further sum of ten ($10) dollars per day for each and every day such railroad company fails or neglects to comply with the terms of this act, the same to be recovered in an action brought in the name of the city, vil- lage, town or township as the case may be. It is hereby made the duty of the prosecuting attorney of the county to prose- cute to judgment any claim arising under the foregoing pro- visions, without any charge to the said city, village, town or township. 1 [88 v. 261.] ( 1 ) Remedy not exclusive. — violation if city refuses. Alexander Remedy provided in this section is v. Ry. Co., 14 Dec. 102; 2 N. P. not exclusive and public may sue for (N. S.) 59. Sec. 3337 — 18 R. S. [Required height of bridges, etc., over railroad tracks; cost.] § 1. All bridges, viaducts, overhead roadways or foot-bridges, wire or other structure hereafter con- structed over the track or tracks of any railroad or railroads within the state of Ohio, by any county, municipality, town- ship, railroad company, or other private corporation or person shall be of such height as to be not less than twenty-one feet in the clear from the top of the rails of said track or tracks, to said wire and other structure or to the bottom of the lowest sill, girder or cross-beam, and the lowest downward projection on such bridge, viaduct, overhead roadway or foot-bridge, ex- cept in cases where the commissioner of railroads and tele- graphs shall find such construction is impracticable, and in every such case said commissioner shall file a written statement in STEAM RAILROADS IN MUNICIPAL LIMITS. 689 his office setting forth the facts relied upon by him in making such finding. But this provision shall not apply to any main track. Provided, that where any bridge, viaduct, overhead roadway or foot-bridge over a railroad track or tracks is re- built, it shall be brought under the provisions of this act, and in such case, if said structure is at, or in line of, a public street or highway, and is thus erected above the grade of any such street or highway and any cross-street or streets, the cost of making such street or streets or highway or highways conform to such new grade, and all damages to owners of property abutting on such street or streets, highway or highways,' be- cause of such change of grade, shall be ascertained and deter- mined, and paid as follows: Said or any railroad company or its assigns shall pay all costs or damages resulting as afore- said, from the raising or building of any of its bridges or structures, as aforesaid, in the line of any street or highway at a greater height than before the passage hereof; and if such company is only part owner of any such structure it shall pay its proportionate share of the cost of such change of grade and damages^ Should a railroad company, or its assigns, raise the grade of its track or tracks under any of said structures not owned by it after the passage of this act, thereby causing any said bridge or structure to be put at a higher grade when re- built, said company shall pay all costs and damages as afore- said made necessary thereby. [94 v. 297 ; 91 v. 365.] Sec. 3337 — 19 R. S. [Enforcement of act; penalty; injunction.] § 2. It is hereby made the duty of the commissioner of railroads [and] telegraphs to see that the provisions of this act are car- ried into eifect; and every railroad company in the state of Ohio, public or private corporation, or person building, or per- mitting to be built, any bridge, viaduct, overhead roadway or foot-bridge, or wire and other structure as specified in sec- tion one [§ (3337 — 18)] of this act, shall file with the said commissioner plans and specifications, and first receive from him a permit before being allowed to proceed with said struc- ture and the erection of said wire. Any person, corporation, public or private, violating the provisions of this act, upon conviction before a court of competent jurisdiction, shall be fined any sum not less than one hundred nor more than one thousand dollars; and every day that said structure or wire, not in conformity with the provisions of this act, is permitted to remain, shall constitute a separate offense. The observance of the provisions of this act may be enforced by injunction on complaint of any person, corporation or board interested therein. [91 v. 365.] 690 THE OHIO MUNICIPAL CODE. Sec. 3339 R. S. [When tracks must be used in common.] When two or more companies have, in the same street, alley, public way, or epening, two or more tracks of the same gauge, through a city or village, the council of such city or village may require such companies to use such tracks in common, and to pass their locomotives and cars over each track in one direction only. [54 v. 133, § 4; S. & C. 325.] Sec. 6980a R. S. [Unlawful use or occupation of highways by railway companies in Cincinnati, Cleveland and Springfield.] It shall not be lawful in cities of the first and second grades of the first class and cities of the third grade a of the second class for any railroad company, superintendent, agent or other em- ploye thereof, either directly or indirectly, to obstruct, use or occupy any street or other public highway with any locomotive, cars, cars or train, by permitting or suffering such locomotive, car, cars or train to remain upon the crossing by any railroad of such street or other public highway, or any part thereof, or by coupling, switching or shifting of locomotives, cars or trains, or the making up of trains across such street or other public highway, or any part thereof, or by moving or stopping long freight trains across the same, for a period longer than four minutes at one time; and whenever any such street or other public highway has been thus obstructed, used or occupied, it shall not be lawful for any railroad company, superintendent, agent or other employe thereof, either directly or indirectly to so obstruct, use or occupy the same, or any part thereof, for a period of five minutes thereafter; [Bars or gates and watchmen in Cincinnati and Cleveland.] And in cities of the first and second grades of the first class any railroad company or companies so using such street or other public highway, during said period of four minutes, shall pro- vide and maintain suitable bars or gates, and watchmen at such street or other crossings, to secure and warn the public against the dangers attending such use; [Penalty.] And if any railroad company, superintendent, agent or other employe thereof shall, either directly or indi- rectly, obstruct, use or occupy such street or other public high- way in violation of the aforesaid provisions and prohibitions of this section, or shall procure, direct, aid or abet in any^such violation, he or they shall be fined not more than one hundred nor less than twenty dollars, or imprisoned not more than thirty days, or both. [First right to use or occupancy.] It is further provided, that after the expiration of said period of five minutes, any railroad GKADE CROSSINGS. 690a 1 company other than the one last using such street or public highway, shall have the first right to use or occupy the same for a period not to exceed four minutes ; [Regular trains.] And provided further, that nothing herein shall be so construed as to affect or interfere with the arrival and departure of regular railroad trains moving across such street or other public highway at a rate of speed not to exceed six miles per hour ; or to any regular passenger train occupy- ing any such street or highway for a period less than ten min- utes, for the purpose of discharging or taking on passengers and baggage at any of its regular passenger stations. [90 v. 188; 85 v. 113.] [Sec. 3333 — la.] [Common pleas court given jurisdiction to as- certain and define manner in which one steam railroad shall cross another within corporate limits; change of grade; right to appeal.] That where it becomes necessary, within the corporate limits of a city or village, for the track of a steam railroad company to cross the track of another steam railroad company unless the manner of such crossings shall be agreed to between such com- panies, it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party, to ascertain and define by its decree the mode of such crossings which will inflict the least practical injury upon the rights of the company own- ing or operating the road which is intended to be crossed ; and, if in the judgment of such court or such judge thereof, it is reasonable and practicable to avoid a grade crossing, it shall hj its process prevent a crossing at grade ; but in changing the grade of any steam railroad, no grade shall be required to exceed the established maximum or ruling grade governing the operations by engines of that division or part of the railroad on which the improvement is to be made, without the consent of the railroad company, nor shall the railroad company's tracks be required to be placed below high water mark. The court shall, in its order, equitably apportion the initial expense of such construction or crossing and the expense of maintenance thereof among the parties interested. Any party feeling itself aggrieved by the decision of said court shall have the right of appeal as in other civil cases. Nothing in this act shall pre- vent any railroad company from laying additional tracks at existing crossings. [1904, May 3, 97 v. 537.] An act to provide how railroad and highway crossings may be constructed. [Sec. 1.] [Railroad and highway crossings shall be above or 690b THE OHIO MUNICIPAL CODE. below grade.] Except as in this act elsewhere provided, all crossings, hereafter constructed, whether of highways by rai- roads, or of railroads by highways, shall be above or below the grade thereof. [Sec. 2.] [Railroad crossing.] Every railroad company con- structing a new line of railroad, under its charter powers, across a highway, shall construct the same above or below the grade of the highway, unless permitted in the manner hereinafter provided, to construct the same at grade; and such railroad company may exercise the power contained in its charter and the general laws, for altering the grade and location of high- ways in order to avoid grade crossings. [Sec. 3.] [Highway crossings.] Every municipality or other authority hereafter constructing a highway across an existing railroad, shall construct the same above or below the grade thereof, unless permitted in the manner hereinafter provided, to construct the same at grade, and the cost of said work shall be paid, one-half by said municipality, and one-half by the rail- road company owning said railroad, [Sec. 4.] [When .such crossings may be at grade; common pleas court given jurisdiction to determine.] Whenever it shall be desired by any railroad company constructing a new railroad, or by any municipality or authority constructing a new high- way that the railroad or highway should be so constructed that the railroad and highway shall cross each other at the same grade, a petition shall be presented by the party desir- ing such construction to the court of common pleas of the county within which said crossing is situated upon ten days' notice to the corporation owning said railroad, or to such mu- nicipality or authority, describing the proposed construction, and setting forth the reasons that are supposed to make the same necessary or desirable; aud the court of common pleas shall thereupon have jurisdiction of the parties and the subject matter of such petition, and may proceed, summarily or other- wise, and upon such notice as it shall deem sufficient, to ex- amine the matter, either by evidence, by reference to a master commissioner or otherwise ; and, if satisfied that such construc- tion is reasonably required to accommodate the public, or to avoid excessive expense, in view of the small amount of traffic on the highway or railroad, or in view of the difficulties of other methods of construction, or for other good and sufficient reasons, then it shall make an order or orders permitting such crossing at grade to be established; and it may, in such order, in its discretion, prescribe that gates, signals, or other safe- guards shall be maintained by the railroad company, in addi- tion to the signals and safeguards prescribed by statute, and GRADE CROSSINGS. 691 all such orders shall be binding upon the parties and shall be observed by them. All costs and expenses of the proceedings shall be ascertained and allowed by the court of common pleas and shall be paid by such party as it shall decide, or by it apportioned between the parties, and may be collected by ex- ecution out of said court. 1 Applies to steam railroads Power of court. — Determination only. — In re A. B. & S. Ry. Co., by court does not dispense with 16 Dec. 87; 3 N. P. (N. S.) 561. agreement with municipality or condemnation. lb. [Sec. 5.] [Right of appeal.] Either party feeling itself ag- grieved by the decision and order of said common pleas court shall have the right of appeal, as in other civil cases. [Sec. 6.] [Additional tracks, switches, etc. ; how constructed.] Nothing in this act shall prevent any railroad company from laying additional tracks at crossings previously existing, or from constructing switches, sidings and branch lines from their lines of railroad now or hereafter constructed to any mill, fac- tory, or other manufacturing establishment, or other industrial plant, or any elevator, wharf or pier, or gravel, marl, or clay bed, or any mine, or from laying additional track to increase their yard facilities at terminal or other points across public highways at the grade thereof, but §uch signposts and signals shall be employed for the protection of such crossings as are by law prescribed for railroad crossings of public highways. [1904, May 3, 97 v. 546.] 2. ABOLISHING GKADE CROSSINGS. An act to abolish grade crossings in municipal corporations. J [Sec. 1.] [Grade crossings in municipalities; municipalities may abolish.] Any municipal corporation may raise or lower, or cause to be raised or lowered, the grade of any street or way above or below any railroad tracks therein, and may require any railroad company operating a railroad in such municipal- ity to raise or lower the grade of its tracks and may construct ways or crossings above the tracks of any railroad, or require the railroad company to construct ways or crossings that are to be passed under its tracks, whenever, in the opinion of the council, board of legislation or other legislative body the rais- ing or lowering of the grade of any such railroad tracks, or the raising or lowering or construction of such ways or cross^ ing may be necessary, upon the terms and conditions herein- after set forth in this act. (1) Other provisions applying the present act so far as they relate to both municipalities and counties to municipalities, and relating to grade crossings are Constitutionality of this act de- contained in § (3337 — 8) to clared. East End B. & T. Co. v. (3337—17) R. 8., inclusive. These Cleveland, 14 Dec. 33. sections are probably superseded by 692 THE OHIO MUNICIPAL CODE. [Sec. 2.] [Preparation of plans and specifications by railroad company and city engineer.] The council, board of legislation or other legislative body of any such municipality, for the purpose of making or causing any such improvement to be made, may, by ordinance, require the railroad company, in co-operation with the engineer of such municipality, or the engineer designated in said ordinance by the council, board of legislation or other legislative body, to prepare and submit to said council, board of legislation or other legislative body, within six months, unless longer time is mutually agreed upon, plans and specifications for such improvement, specify- ing the grades to be established for the streets, and the height, character and estimated cost of any viaduct or any way above or below any railroad tracks, and the change of grade required to be made of such track, including side tracks and switches; but in changing the grade of any railroad, .no grade shall be required to exceed the established maximum or ruling grade governing the operations by engines of that division or part of the railroad on which the improvement is to made, without the consent of the railroad company, nor shall the railroad company's tracks be required to be placed below high water mark. [Preparation of such plans and specifications by city engineer upon refusal of railroad company to co-operate in preparation; duty of Circuit Court as to settlement of differences between rail- road company and city.] If at the expiration of said six months the railroad company shall have refused or failed to co-operate in the preparation of said plans and specifications, the en- gineer of such municipality, or the engineer designated by said council, board of legislation or other legislative body, is hereby empowered to prepare and submit same to said council, board of legislation or other legislative body, and if said plans and specifications are not satisfactory to said council, board of legislation or other legislative body and said railroad com- pany, and cannot be made so by mutual agreement within a further period of three months, and in the event that either the municipality or the railroad company shall not consent to the making of such improvements according to the plans and specifications submitted, then and in that case said plans and specifications^ together with the points of difference between the council, board of legislation or other legislative body and the railroad company may be submitted by either party to the circuit court having jurisdiction in the county in which said municipality is situated, which court shall, after examination of such plans and specifications, and after hearing the evi- dence, make a finding as to whether or not the public safety GBADE CROSSINGS. 693 requires such improvement to be made, and whether or not said plans and specifications are reasonable and practicable; and if such court finds such improvement is necessary to the public safety, and that the plans are reasonable and practicable, the municipality shall be required to make such improve- ments to its streets as may be necessary, and v the railroad com- pany be required to make the changes necessary to its tracks and roadbed, in order to comply with the rulings of the court ; but if the court finds that the improvement is not necessary to the public safety, or that the plans and specifications are not reasonable and practicable, then the improvement shall not be made upon said plans. And if more than one railroad com- pany owns tracks on the crossing in question, then the said circuit court shall apportion the part of the expense payable by the railroad companies between or among the said railroad companies. The word " company " in this act is intended to include also the words " company or companies." [Sec. 3.] [Apportionment of cost between city and railroad com- pany.] The cost of the construction of the improvement au- thorized, including the making of ways, crossings or viaducts, above or below the railroad tracks, and also including the raising or lowering of the grades of the railroad tracks and side tracks for such distance as may be required by such mu- nicipality and made necessary by such improvement, together with the cost of any land or property purchased or appropri- ated, and damages to owners of abutting property, or other property, shall be borne one-half by any such municipality and one-half by any such railroad company or companies ; and any such municipality shall have the right of action against any such railroad company for the recovery of the one-half of such costs payable by such railroad company with interest from the time they become due; and any such municipality and rail- road company may agree as to what part of such work shall be done by such railroad company, and also fix the amount which shall be allowed or credited to such railroad company for do- ing such work; and such railroad company shall be entitled to deduct from half the cost of such improvement the ex- pense and costs incurred by it in the change of its grade required by such municipality or made necessary by such improvement under such specifications, but only in case the amount of such cost and expense has been agreed upon in writing between the municipality and the railroad company, and if the amount of work that may be done by the railroad company, or made necessary by reason of such change of grade on lowering or raising its tracks, exceeds one-half of the cost of the improvement, then such railroad company shall have 693a THE OHIO MUNICIPAL CODE. the right to recover the amount with interest in excess of one- half the costs and expenses, in an action at law against such municipality, [Notice of intention to make improvement.] provided how- ever that before any work shall be done which may be required in the making of such proposed improvement, the council, beard of legislation or other legislative body of said municipality shall by ordinance or resolution require notice of its intention to make such improvement in accordance with said plans and specifications to be given, after the manner provided by sec- tion 52 of an act entitled "An act to provide for the organiza- tion of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers, as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent here- with, " passed October 22, 1902, as amended April 21, 1904, to the owner of each piece of property abutting upon any street, highway, or public place, the grade of which will be changed by the said proposed improvement ; [Claims for damages and judicial inquiry thereinto.] and the provisions of said section 52 and of section 54 of said act, as amended April 21, 1904, relating to the manner of service of notice, the filing of claims for damages, and the effect of failure to file such claims, shall apply to the notice herein pro- vided and to all claims for damages by reason of the said pro- posed improvement, and after the expiration of the time pro- vided by said section 54 of said act, as amended April 21, 1904, for the filing of such claims, the council, board of legislation or other legislative body of said municipality, when claims have been filed within the time limited by said section, shall determine by ordinance or resolution whether said claims shall be judicially inquired into, as hereinafter provided, before commencing, or after the completion, of the said proposed im- provement; and, thereupon, the mayor or solicitor shall make application for a jury, in the manner provided by section 56 of said act and by section 2321, Revised Statutes, to the court of common pleas, or to the probate court, of the county in which said municipality, or the larger part of it, is situated, either before commencing, or after the completion of said im- provement, as the said council, board of legislation, or other legislative body shall determine, and all proceedings upon such application shall be governed by the laws relating to the ap- plications provided for by said section 56 of said act and by said section 2321, Revised Statutes. [Mode and time of payment of railroad company's propor- tion of cost.] And the council, board of legislation, or other legislative body of said municipality, may by ordinance pre- GRADE CROSSINGS. 694 scribe the mode and time or times of payment by said railroad company or companies of the proportion of the cost of said improvement which said railroad company or companies shall be required to pay. [1906, April 16, 98 v. 191; 95 v. 356.] [Sec. 4.] [Height of viaducts.] Any way, crossing or viaduct so constructed over any railroad track or tracks in any munici- pality shall be of such height as not to be less than twenty-one feet in the clear from the top surface of the rails of the rail- road track to the lowest point or projection of such overhead way, crossing or viaduct, unless such company shall consent to or the cirucit court order a less height, but in no event shall said circuit court order a less height than sixteen feet and three inches. [Sec. 5.] [How necessary land acquired.] The land or prop- erty required to make any alterations in the street or highway necessitated by the proposed improvement shall be purchased or appropriated by the municipality or company after the manner provided by law for the appropriation of private prop- erty for public use, and the land or property required to make any alteration in the railroad or railroads necessitated by the proposed improvement shall be purchased or appropriated by the railroad company or companies after the manner provided for the appropriation of private property by such corporation; but the municipality shall not appropriate land held or owned by any railroad company necessary for the use of such rail- road company in maintaining and operating its road. [Sec. 6.] [Cost of maintenance, how borne.] After the com- pletion of the work the crossings and the approaches shall be kept in repair as follows: When the public way crosses a railroad by an overhead bridge, the cost of maintenance shall be borne by the municipality. When the public way passes under the railroad the bridge and its abutments shall be kept and maintained by the railroad company, and the public way and its approaches shall be maintained and kept in repair by the municipality in which they are situated. [Sec. 7.] [Bond issue to pay city's share of such improvement; tax levy.] For the purpose of raising the money to pay the proportion of the cost of such improvement payable by the municipality, the bonds of the municipality may be issued to the necessary amount, which bonds shall be of such denomina- tion and payable at such place and times as the council, board of legislation or other legislative body may determine, and shall bear interest not exceeding four per cent, per annum, and shall not be sold for less than their par value. A tax on the taxable property of the municipality in addition to all other levies now allowed by law may be levied to pay the prin- cipal and interest of the bonds as the same may mature. Af- 695 THE OHIO MUNICIPAL CODE. ter the completion of the improvement a tax in addition to all other levies allowed by law may be levied by the munici- pality to pay the cost of maintaining and keeping in repair that part of the work required to be maintained and kept in repair by said municipality. [Sec. 8.] [Street railway companies to bear share of expense of making such improvements.] In case the track or tracks of any street railway company or companies within the limits of any municipality where the improvements authorized by this act are made shall cross at grade or otherwise a public street or the right of way of any railroad company or companies at a point where, under the plans and specifications provided for in this act, it has been determined to construct the said im- provements, the municipality shall have power by ordinance to require such street railway company or companies to bear a fair and reasonable proportion of the cost assumed by said municipality in the making of said improvement, not exceed- ing one-half the portion payable by said municipality ; and the municipality shall have the right of action against any such street railway company or companies for such proportion of the said cost as said ordinance shall require said company or companies to bear, and such proportion of said cost shall be a lien upon all the property, both real and personal, of the said company or companies, situated in the county in which the municipality is situated from and after the date of the passage of said ordinance ; provided, however, that said street railway company or companies shall keep in repair at its or their own expense all tracks affected by such improvement and all construction work of whatever character which may be neces- sary to support such tracks. And the council, board of legis- lation, or other legislative body of said municipality may by ordinance provide the mode and time or times of payment for the proportion of the cost of said improvement to be borne by said street railway company or companies. [1906, April 16, 98 v. 192; 95 v. 356.] [Sec. 9.] [Repeals.] All acts and parts of acts in conflict or inconsistent with this\ act are hereby repealed. [1902, May 2, 95 v. 356.] 3. UNION DEPOT COMPANIES. Sec. 3446 R. S. [Who may file articles of incorporation.] The presidents of two or more railroad companies running railroads to the same city, town, or village, may, by the consent and un- der the direction of their respective boards of directors, file articles of incorporation in the office of the secretary of state, for the purpose of purchasing depot grounds, and locating, constructing, and maintaining a common or union station house CINCINNATI SOUTHERN RAILROAD. 696 and passenger depot, and a union railroad by two or more tracks connecting the railroads of such companies for business purposes. 1 [65 v. 63, § 1; S. & S. 122.] Control of depot property. — Terminal railroad companies Depot company may grant exclusive authorized under general railroad privilege to transfer company for laws. See State ex rel. v. Union hack stand. State ex rel. v. Depot Terminal R. R. Co., 72 O. S. 455. Co., 71 O. S. 379. 4. RAILROADS OWNED BY MUNICIPALITIES. The Cincinnati Southern Railroad. 1. Act authorizing construction and bond issue of $10,000,000; trus- tees; appropriation of land, etc. 66 O. L. 80. Held constitutional. Walker v. Cincinnati, 1 C. S. C. R., 121; ariirm- ed, 21 O. S. 14. But s<-e Ry. Co. v. Martin, 53 O. S. 386; Taylor v. Com- missioners of Ross County, 23 O. S. 22; Wyscaver v. Atkinson, 37 O. S. 80; Counterman v. Dullin Tp., 38 O. S. 515. I 2. Act authorizing city to advance funds to trustees. 67 O. L. 28. This act was also involved in Walker v. Cincinnati, 21 O. S. 14. 3. Act relating to rights of bondholders and authorizing trustees to complete and lease the road. 70 O. L. 139. 4. Act authorizing trustees to borrow six million ($6,000,000) dollars more and to issue bonds therefor upon a vote of the people. 73 O. L. 13. Upheld in Thorns v. Greenwood, 7 Am. L. Rec. 320%; affirmed by the Supreme Court 3 B. 157. 5. Act authorizing trustees to contract for completing and leasing the road. 74 O. L. 115. 6. Act authorizing trustees to borrow two million ($2,000,000) dol- lars more upon a vote of the people, and providing for terminal facilities right to use streets and lease of finished parts of road. 75 O. L. 115. The vote on this question was against the bond issue, and thereupon the succeeding act of May 15, 1878 was passed. 7. Act authorizing trustees to borrow $2,000,000 more, upon a vote of the people, and to contract to complete the road. 75 O. L. 559. In a suit to enjoin the performance of the contract made in pursuance of the above act and to enjoin the issuance of the bonds therein author- ized, the constitutionality of the original Southern Railway act of May 4, 1869, and all subsequent acts supplementary thereto, was questioned. The constitutionality of all this legislation was sustained in Thorns v. Greenwood, 7 Am. L. Rec. 320y 2 (affirmed by Supreme Court 10 B. 1057). See reference to this affirmation in dissenting opinion of Judge Okey in State v. Pugh, 43 O. S. at page 139. 8. Act authorizing trustees to borrow $300,000 more, and to acquire land for terminal facilities without submission to a popular vote. 77 O. L. 153. 697 THE OHIO MUNICIPAL CODE. 9. Act requiring the Southern Railway trustees to give new bonds and providing for the renewal of bonds. 77 O. L. 175. 10. Act authorizing trustees to lease or sell the Southern Railroad, 78 O. L. 58. Repealed April 23, 1898 (93 O. L. 637). Under this act a lease was made of the railway for twenty-five years to The Cincinnati, New Orleans & Texas Pacific Railway Company, Oc- tober 11, 1881. Held that the powers of the trustees did not cease with the making of a lease. Cincinnati v. Bishop et al., 6 C. C. 247 (affirmed 52 O. S. 637). 11. Act providing for compensation of trustees. 80 0. L. 168. 12. Act giving power to fill and improve lands for terminal facili- ties. 82 O. L. 143. 13. Act amending section 3 of the act of February 24, 1876 (73 O. L. 13) as to actions against the trustees. 83 0. L. 38. 14. Act authorizing the city of Cincinnati to adjust claims growing out of construction of Southern Railway. 83 O. L. 152. 15. Act authorizing sale of The Southern Railway upon resolution of council and vote of the people. 84 O. L. 82. In a suit brought to enjoin the proposed sale, the petition was dismissed on demurrer, and the judgment affirmed by the Supreme Court. Cincin- nati v. Dexter, 55 O. S. 93. The vote on the question was against said proposed sale. This act was repealed April 23, 1898 (93 O. L. 637). 16. Act authorizing the railway trustees to extend lease of Southern Road and authorizing Sinking Fund Trustees to extend outstanding bonds. 86 O. L. 67. No action was taken under this law, and it was repealed April 25, 1898 (93 0. L. 672). 17. Act authorizing modification and extension of Southern Railway lease conditioned on a vote of the people; also authorizing trustees to borrow $2,500,000 for terminal facilities. 93 O. L. 637. . Held constitutional and the action of the boards thereunder found to be in all respects regular and legal. Cincinnati v. Ferguson et al., 12 Dec. 439 j affirmed by Supreme Court 47 B. 220, 66 O. S. 658. Held that bonds for terminal facilities and permanent betterments pro- vided for in section 2 of this act could be issued only after execution of the supplemental agreement provided for in section 3 and a favorable vote of the people required in section 4. Cincinnati v. Ferguson et al., 8 N. P. 361; affirmed by Supreme Court without report, 45 B. 443. Held action of board in relocating terminals and modifying plan as to amount of property, regular and valid. Cincinnati v. Trustees, 1 N. P. (N. S.) 361; 14 Dec. 466, (aff'd Supreme Ct., 49 B. 220). 18. Act providing that net earnings of the road shall be paid into the city treasury, and in case of sale, purchase money shall be paid into city treasury to the credit of the Sinking Fund and applied to the reduc- tion of the bonded debt, etc. 93 O. L- 647. CINCINNATI SOUTHERN RAILROAD. 697a 19. Act authorizing Southern Railway trustees to extend outstanding bonds. 93 O. L. 672. In Cincinnati v. Guckenberger, 60 O. S. 353, it was held that the Sink- ing Fund Trustees had not power without advertising and public bid- ding, to make a contract with Roberts & Company providing for the sale of city bonds to raise money with which to refund the bonded Southern Railway debt; and whether the above act of April 25, 1898, gave the power to extend the time of payment of Southern Railway bonds solely to the Southern Railway trustees or the Sinking Fund Trustees to be exercised by either, was not decided. For other decisions affecting Cincinnati Southern Railroad, see Felton v. City, 95 Fed., 336; Roberts and Co. v. Taft, 109 Fed. 825; Thomas v. C, N. O. & T. P. Ry. Co., U. S. Cir. Ct., S. D. Ohio, W. D , No. 4598. Other Acts Authorizing Municipalities to Construct Railways. For other acts authorizing railroads to be constructed by municipali- ties, see, as to Toledo, 66 O. L. 83; 75 O. L. 113; Zanesville, 66 O. L. 11; Mt. Gilead, 75 O. L. 110; 77 O. L. 91; 78 0. L. 45; 93 O. L. 679; Hills- boro, 76 O. L. 65; 79 O. L. 82; Georgetown, 76 O. L. 138; 88 O. L. 141; Ripley, 76 O. L. 149; St. Clairsville, 76 O. L. 180; Norwalk, 89 O. L. 323; Pomeroy, 87 O. L. 110; 89 O. L. 308; 90 L. L. 356; 94 O. L. 648; Salem, 88 O. L. 593 (held unconstitutional in Ry. Co. v. Martin, 53 O. S. 386). 698 THE OniO MUNICIPAL CODE. STREET RAILWAYS IN MUNICIPAL LIMITS. 1 Sec. 2503 R. S. [Grade of streets when street railroad is con- structed.] Before any street railroad shall be constructed, on any street less than sixty feet in width, with a roadway of thirty-five feet, or under, the council shall provide, that the crown of the street shall be made a nearly flat uniform curve, from curb to curb, without ditch gutters, and in such manner as to give all wheeled vehicles the full use of the roadway up to the face of the curb, after the plan of the streets in the cities of Philadelphia and New York. And on any street, when- ever the tracks of two street railroads, or of a street railroad and a steam railroad, cross each other at a convenient grade, the crossings shall be made with crossing-frogs of the most approved pattern and materials and kept up and in repair at the joint expense of the companies owning said tracks. 2 [1881, April 20; 78 v. 296; Rev. Stat. 1880; 66 v. 217, § 413; (S. & S. 139).] ( 1 ) Sections on street railways in municipalities. — §§ 2503 to 2505e R. S. carried here formed part of subdivision 2, Chap. 5, Div. 8, Title XII., R. S. § 2501 will be found under § 29 of the Code, page 146. § 2502 R. S. repealed, is su- perseded by § 30 of the Code (see § 30, page 149). Section 3437 R. S., relating to construction of street railways gen- erally, is referred to in § 29 of the Code, and will be found on page 142. § 3438 R. S., repealed, is superseded by § 29 of the Code (see § 29, page 144). For forms relating to street rail- way grants see notes pages 142 to 156 inclusive. Municipal power to regulate speed of street cars, see paragraph 9, § 7 of the Code. Mu- nicipal power to require conductors on street cars, see paragraph 28, § 7 of the Code. (2) Validity.- - This section is valid and applies whether lines were constructed before or after the passage of the act. Cin. St. Ry. Co. v. C. H. & D. R. R., 32 B. 4. Frogs at crossings. — One com- pliance with this section is not enough, if a new frog, found to be better, is required. Cin. St. Ry. Co. v. C. H. & D. R. R., 32 B. 4. Street railroads crossing steam railroads need not provide inter- locking devices as required by § 247f R. S. The requirements in STREET RAILWAYS IN MUNICIPAL LIMITS. 699 case of crossing of street railway Ry. v. C. H. & I. R. R. Co., 21 C. and steam railroad are only those C. 391. in § 2503 R. S. and §§ (3443—5) See §§ (3443—5) and (3443—7) and (3443—7) R. S. C. & H. St. R. S. infra. Sec. 2504 R. S. [Pavement of streets where railroads are con- structed, proviso.] The council may require any part or all of the track, between the rails of any street railroad constructed within the corporate limits, to be paved with stone, gravel, boulders, or the Nicholson or other wooden or asphaltic pave- ment, as may be deemed proper, but without the corporate limits, paving between the rails with stone, boulders, or the Nicholson or other wooden or asphaltic pavement shall not be required; provided, that in cities of the second grade of the first class, the council may require of any street rail- road company to pave and keep in constant repair, sixteen feet for a double track or seven feet for a single track, all of which pavement shall be of the same material as the balance of the street is paved with. 1 [87 v. 246; 66 v. 217, § 414; (S. &S. 139).] (1) Recovery on default of rails at request of the company, pavement. — Where city ordinance may levy a tax on railroad to col- requires it, a city may, on default lect for its share of the work. of company, improve the street be- Cleveland v. Cleveland & Newburgh tween tracks and recover the cost R. R., 1 Clev. 304. in an action against the company. Validity of requirement. — See Columbus v. Railroad, 45 O. S. 98. Cleveland v. Cleveland R. R. Co., 1 A city having paved between N. P. 413, reversed; 60 O. S. 586. Sec. 2505 R. S. [Council of city or village may grant extension of street railroad.] The council of any city or village may grant permission, by ordinance, to any corporation, individual, or company owning, or having the right to construct, any street railroad, to extend their track, subject to the provisions of sections three thousand four hundred and thirty-seven, three thousand four hundred and thirty-eight, three thousand four hundred and thirty-nine, three thousand four hundred and forty, three thousand four hundred and forty-one, three thou- sand four hundred and forty-two, and three thousand four hun- dred and forty-three, 1 on any street or streets where council may deem such extension beneficial to the public; and when any such extension is made, the charge for carrying passen- gers on any street railroad so extended, and its connections made with any other road or roads, by consolidation under ex- 700 THE OHIO MUNICIPAL CODE. isting laws, shall not be increased by reason of such extension or consolidation. 2 [1880, March 9 : 77 v. 42, 43; Kev. Stet 1880; 66 v. 140.] (1) Of the sections referred to (2) Extension. — For matters here, § 3437 is mentioned in § 29 relating to grants of extensions to of the Code; § 3438 is repealed by street railways, see notes under 8 the Code and superseded by § 29 of 29 of the Code, p. 145. the Code. The others will be found infra. Sec. 2505a R. S. [Power to lease or purchase, to enter into ben- eficial arrangement, to purchase stock, etc.; perfection of lease or purchase ; rights of dissenting stockholder ; increase of fare pro- hibited.] Any corporation or company organized for street railway purposes, may lease or purchase any street railroad, or street railroads, or railroad operated as a street railroad and by electric power or inclined plane railroad or railroads, together with all the property, real, personal or mixed, and all the fran- chises, rights and privileges respecting the use and operation of such railroad or railroads, situate or existing in whole or in part within this state, constructed and held by any other corpora- tion or company, corporations or companies, the latter being hereby invested with corresponding power to let or sell upon such terms and conditions as may be agreed upon between the corporations or companies ; and any two or more of such corpo- rations or companies may enter into any agreement for their common benefit consistent with and calculated to promote the objects for which they were created. ~No such lease or pur- chase shall be perfected until a meeting of the stockholders of each of the companies has been called for that purpose by the directors thereof, on thirty days' notice to each stockholder, at such place, and in such manner, as is provided for annual meetings of the companies, and the holders of at least two- thirds of the stock of each company, in person or by proxy, at such meeting, or at any properly adjourned meeting, assent thereto. Provided that any stockholder who refuses to assent to such lease or sale and signifies the same by notice in writing to the lessee or purchaser within ninety days thereafter, shall be entitled to demand and receive compensation in the manner provided for the compensation of stockholders in sections 3302, 3303 and 3304 of the Eevised Statutes, and the said sections are adopted and made to be a part of this section. Provided, that whenever any such lease or purchase is made as herein provided, there shall be no increase of the existing rates of fare by reason of such lease or purchase nor shall any fare be STREET RAILWAYS IN MUNICIPAL LIMITS. 701 charged upon any of the separate routes so leased or purchased in excess of the fare charged over such separate routes prior to the lease or purchase thereof, and provided that when any such lease or purchase is made as herein provided, the fare charged for one continuous route or ride in the same general direction over all such leased or purchased lines within any municipal corporation shall not exceed the maximum fare charged over any one of said lines prior to such lease or purchase. 1 [93 v. 214; 92 v. 277; 88 v. 193.] (1) Remedy for violation of v. Ry. Co., 23 C. C. 603; 3 C. C. this section by charging unauthor- (N. S.) 285. ized fares is by quo warranto. State Sec. 2505b R. S. [Consolidation of street railway companies, proviso.] x Whenever the lines or authorized lines of road of any street railroad corporation or companies meet or intersect, or can be conveniently operated from one power house or from a power house or power houses owned, under lease or operated by *one of such street railroad corporations or companies, or whenever any such line of any street railroad corporation or company, and that of any inclined plane railway or railroad company or corporation, or any railroad operated by electricity may be conveniently connected, to be operated to mutual ad- vantage, or whenever any such line of any street railroad cor- poration or company and that of any inclined plane railway or railroad company or corporation or the railway of any com- pany operated by electricity can be conveniently operated from one power house or from a power house owned, under lease or operated by one of such street railroad corporations or com- panies or inclined plane railway or railroad companies or cor- porations or by any company or corporation, the railway of which is operated by electricity such corporations or companies, or any two or more of them, are hereby authorized to consoli- date themselves into a single corporation, provided they are not competing lines, but the provisions herein as to competing lines shall have no application to such companies or corpora- tions whose lines are nearby or wholly situate in any city of the state of Ohio or whenever a line of road of any street rail- road company or corporation organized in this state is made, or is in process of construction to the boundary line of the state, or to any point either within or without the state, such corporation or company may consolidate its capital stock with the capital stock of any corporation or company, or corpora- tions and companies in an adjoining state, the line or lines of whose road or roads have been made or are in process of con- siruction to the same point or points, in the same manner and 702 THE OHIO MUNICIPAL CODE. with the same effect as provided for the consolidation of rail- road companies in sections 3381, 3382, 3383, 3384, 3385, 3386, 3387, 3388, 3389, 3390, 3391, and 3392 of the Kevised Statutes, and any and all acts amendatory and supplementary to said sections and each of them ; and the said sections, includ- ing these so amended and supplemented are adopted and made a part of this section. 2 [May 10, 1902, 95 v. 510 ; 92 v. 277 ; 89 v. 406; 88 v. 493.] (1) This section is given as company is liable for torts of orig- amended May 10, 1902. inal companies, and after a verdict (2) Relation of consolidated to against one of the constituent corn- constituent companies. — A consol- panies, pleadings may be amended to idated corporation holds property aver the consolidation. Cin. St. Ry. in its own right, and not in trust Co. v. Fullbright, 7 B. 187. for the constituent companies. Delivery of new stock should Greene v. Woodland Ave., etc., St. be to stockholders and not to offi- R. R. Co. et al., 62 O. S. 67. cers of original companies. Robin- But a consolidated company holds son v. Cleveland St. Hy. Co., 5 N. P. its stock in trust for members of 293, 301. the constituent companies. Fuller Status of constituent compa- v. Railway, 8 IT. P. 605. nies. — On consolidation the old Rights of pledgee of stock of old companies became extinct except for company, see Cleveland City Ry. certain limited purposes. Cleveland Co. v. First Nat. Bk., 68 O. S. 582. City Ry. Co. v. First Nat. Bank, 22 Terms of consolidation which C. C. 165 (rev. other grounds, 68 may be prescribed, see lb. O. S. 582). Liability for tort. — Consolidated [Sec. 2505b — 1.] [Consolidation of electric railroad or street railroad companies.] (§2.) When the lines of a road of any street railroad company or railroad company, organized under the laws of this state, are constructed or in process of construc- tion, and are or will be operated by electricity, and connect, or will or can be made to connect with the lines of another street railroad company or railroad company, formed by the con- solidation of companies organized under the laws of this state, or by the consolidation of a company organized under the laws of this state and a company organized under the laws of an adjoining state, whose lines of road are constructed or in pro- cess of construction, and are or will be operated by electricity, so that cars may pass over such lines of roads continuously, without break or interruption, such street railroad or railroad company and such consolidated street railroad company or STREET RAILWAYS IN MUNICIPAL STREETS. 702a railroad eompany, may consolidate themselves into a single company in the same manner and with like effect as is pro- vided for the consolidation of railroad companies in sections 3380a, 3381, 3382, 3383, 3384, 3385, 3386, 3387, 3388, 3390, 3391 and 3392 of the Kevised Statutes of Ohio, and any and all acts amendatory and supplementary to said sections and each of them, all of which are adopted and made a part of this act; provided, however, that companies owning and operating competing lines of road shall not consolidate under this act, hut the provisions herein as to companies owning competing lines of road, shall not apply to companies whose lines of road are nearly or wholly situate in any municipal corporation of this state. [97 v. 570.] Sec. 2505c R. S. [Use of street railway tracks for operation of passenger cars of other railway company, etc.] Whenever any railway company is incorporated and organized under the laws of this state for the purpose of building, acquiring, owning, leasing, operating and maintaining a railroad or railroads to be operated by electricity or other motive power from one mu- nicipal corporation or point in this state, to any other munici- pal corporation, municipal corporations, or point in this state, it shall have an authority to make an arrangement or agreement with any street railway company or companies owning or operating any street railway or railways in any such municipal corporation or corporations, and said street railway company or companies shall have authority to make and enter into such arrangement or agreement with said railway company, whereby the passenger cars of such railway company may be run and propelled over and along the track or tracks of such street railway company or companies, for such compensation and upon such terms as may be agreed upon in the same manner, upon the same conditions and for the same length of time as the cars owned or operated by said street rail- way company or companies are operated in such municipal corporation or corporations. The said cars of said railway company shall, while they are running and being operated over and along the track or tracks of such street railway company or companies in any such municipal corporation, be entitled to all the privileges and subject to all the obligations enjoyed and imposed by and upon the cars of such street railway company or companies owning or operating its cars in any such munici- pal corporation, and shall be operated only by the same motive 703 THE OHIO MUNICIPAL CODE. power with which the cars of such street railway company or companies are or may be operated. Such arrangement and agreement, when authorized by not less than two-thirds in amount of the stockholders of each company proposing to enter into such arrangement and agreement, ratified by a majority of the directors and executed by the proper officers thereof, shall give to such railway company full authority to operate its said cars on the tracks of said street railway company or com- panies in such municipal corporation or municipal corporations. Provided that it shall not be necessary for such railway com- pany, in case it uses in any such municipal corporation or mu- nicipal corporations, only the tracks of a street railway com- pany or companies owning or operating a street railway or railways within such municipal corporation or municipal cor- porations to obtain any additional grant, franchise or right, except by said arrangement or agreement with said street rail- way company or companies. Provided further, that the fare charged by said railway company for transporting passengers within the municipal corporation or municipal corporations, shall not be greater than that fixed in the franchise or fran- chises held or owned by such street railway company or com- panies; and where there is a public park or cemetery on the line of such railway and within one mile of, and owned by, such municipal corporation, such company shall for such fare so transport passengers to and from said park or cemetery the same as though either was within the limits of such corpora- tion. 1 [91 v. 379.] (1) Agreement with third plain when one company, with company. — When one company has tracks already laid, grants to a sec- by proper proceedings obtained ond company the use of its tracks, right of way over tracks of another Sanfleet v. Toledo et al., 10 C. C. sompany, it cannot recover compen- 460. sation from a third company Construction. — §§ 2505 and granted a right of way from first 2505c were held not to conflict, company. Toledo Elec. St. Ky. Co. State v. Dayton Traction Co. et al., v. T. & M. V. Ry., 10 C. C. 168. 18 C. C. 490, 497. Abutting owner cannot com= Sec. 2505e R. S. [Street or electric railway may lease or pur- chase property, etc., of electric or gas light, heat, power or fuel company; stockholders' meeting to perfect lease or purchase; dis- senting stockholders ; lease or sale shall not affect liability of com- pany selling.] * Any corporation or company maintaining and STREET RAILWAYS IN MUNICIPAL STREETS. 704 operating a street railroad, or a railroad operated by electricity, may lease or purchase all the property, real, personal and mixed, and all the franchises, rights and privileges of any company organized for the purpose of supplying electricity, or natural or artificial gas, or both electricity and natural or ar- tificial gas, for power, light, heat or fuel purposes, or which has been engaged in such business in whole or in part in any municipality within this state, the latter being hereby vested with corresponding power to let or sell, upon such terms and conditions as may be agreed upon between the corporation and company. No such lease or purchase shall be perfected until a meeting of the stockholders of each of the companies has been called for that purpose by the directors thereof, on thirty (30) days' notice to each stockholder at such time and place and in such manner as is provided for the annual meetings of the companies and the holders of at least two-thirds of the stock of each company in person or by proxy, at such meeting, or at any properly adjourned meeting assent thereto. Provided, that any stockholder who refuses to assent to such lease or sale and so signifies by notice in writing to the lessee or purchaser within ninety (90) days thereafter shall be entitled to demand and receive compensation in the manner provided for the com- pensation of stockholders in sections 3302, 3303 and 3304 of the "Revised Statutes and the said sections are adopted and made a part of this section. Any such company so leasing or purchasing the property, rights and franchises of an electric light and power company, or natural or artificial »;as company, or electric light and power and natural or artificial £as com- pany, shall have all the rights, power and authority of the com- pany where property rights and franchises are so leased or purchased, but the liability of an electric light and power com- pany, or natural or artificial gas company, or electric light and power and natural or artificial gas company, shall in no man- ner be affected by its lease or sale as herein provided. [1902, May 6, 95 v. 390; 93 v. 139.] (1) This section is given as It was held constitutional in Cin. amended May 6, 1902. St. Railway Co. v. Horstman, 72 § 2505d was repealed 93 O. L. 3. . O. S. 93. Sec. 3439 R. S. [Written consent of owners of more than one- half of feet front necessary.] 1 No such grant 2 shall be made until there is produced to council, or the commissioners, as the 705 THE OHIO MUNICIPAL CODE. ease may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension thereof; 3 and the provisions of sec- tions two thousand five hundred and one and of two thousand five hundred and three to two thousand five hundred and five, inclusive, 4 so far as they are applicable, shall be observed in all respects, whether the railway proposed is an extension of an old or the granting of a new route ; 5 provided, that this act shall not apply to any county containing a city of the second grade of the second class. 6 [1883, April 18, 80 v. 173, 175 ; Kev. Stat. 1880; 65 v. 112, § 3; (S. & S. 139.)] (1) See note (1) under § 2503 ble. No notice, as required by § R. S., supra. 2502 R. S. (Code § 30) is necessary. (2) Grant referred to is grant C. C. C. & St. L. Ry. Co. v. U. B. of right to construct or extend & N. Ry. Co., 26 C. C. 180. street railway, as formerly provided ( 6 ) Constitutionality. — This in § 3438 R. S., now superseded by lust proviso excepting Montgomery § 29 of the Code, which see, pagfe County is invalid, being a special 144. act, and makes the whole section as (3) Consents. — See note (4) amended with this proviso .invalid under § 30 of the Code (page 151). and leaves the preceding law, which (4) Sections referred to. — For was the section as contained in R. S. § 2501, see page 146. §§ 2503 to of 1880, in force. C. C. C. & St. L. 2505 are carried, supra. Ry. Co. v. U. B. & N. Ry. Co., 26 (5) Extensions — In case of ex- C. C. (aff'd 73 O. S. 364). tensions only § 2505 R. S. is applica- Sec. 3439a. [Time after which abutting property owner can not withdraw consent for construction.] Nothing contained in sections 2502 and 3439 shall permit any persons owning prop- erty abutting on any street along, in or over which a street rail- road is about to be constructed, to withdraw his or their consent after an ordinance granting the right to construct and operate a street railroad shall have been read the second time ; pro- vided, a period of at least thirty days has elapsed since the first reading of said ordinance in the council or other body authorized to make the grant. And where an abutting prop- erty holder has been heretofore compensated for his consent, or has heretofore withdrawn his consent, notwithstanding thirty days has not elapsed since the first reading of the ordi- nance after an ordinance granting the right to construct and operate a street railroad has been read the second time in the STREET RAILWAYS IN MUNICIPAL STREETS. 706 council or other body authorized to make the grant and a grant has been made by the council or other public body to a com- pany or individual, pursuant to such consents, the grant shall not be held invalid by reason thereof. 1 [1902, May 10, 95 v. 475.] ( 1 ) Validity. — Section held con- stitutional in Hume v. Traction Co., 13 Dec. 70. Sec. 3440 R. S. [When property may be appropriated for such railways; Toledo; Cuyahoga county.] When the council or com- missioners make such grant, the company or person to whom the grant is made may appropriate any property necessary therefor when the owner fails to expressly waive his claim to damages by reason of the construction and operation of the railway ; and in any city of the third grade of the first class any person, persons or company which is authorized to construct and op- erate and has constructed and is operating a street railway, may appropriate any property necessary for the purpose of oc- cupying and using under section 343 8 1 any existing street rail- way track or tracks, subject to the limitations of said section, and for not more than one-eighth of the entire distance between the termini of the route as actually constructed, operated and run over, of the appropriating company or person at the time appropriation proceedings are begun, such appropriation to be made in the mode and manner provided for the appropriation of property in part third, title 2, chapter 8, of the Revised Statutes ; and in counties containing a city of the second grade of the first class the power to appropriate may be exercised, as hereinbefore provided, for the purpose of constructing a street railway along a highway occupied by a turnpike or plank road company when the person, persons or company authorized to construct such street railway can not agree with such turnpike or plank road company upon the terms and conditions upon which such highway may be occupied, and when such appro- priation will not unnecessarily interfere with the reasonable use of such highway by such turnpike or plank road company ; provided, nothing herein contained shall affect the rights of property owners to give or withhold their consent concerning the right of way for street railroads upon any street or road. 2 [89 v. 349; 87 v. 178; 63 v. 55, § 4; 61 v. 53, § 1; S. & S. 136; S.&S. 137.] (!) § 3438 is now superseded by (2) Validity. — This section was § 29, which see, page 144. held constitutional in Toledo, etc., 707 THE OHIO MUNICIPAL CODE. Ry. v. Toledo, etc., Ry., 6 C. C. 362. fie arrangements for joint use of See also, same case affirmed, 50 O. tracks. State v. Elec. St. Ry., 19 S. 603. C. C. 79, 90. A second company Appropriation of other tracks, may appropriate the right to — - The right to appropriate the " straddle " the tracks of the first right to use the track of another company. H. G. & C. Traction Co. company, does not exhaust the fran- v . C. D. & T. Traction Co., 47 B. chise of such other company. To- 354. ledo, etc., Ry. v. Toledo, etc., Ry., Use by third compan y — Where 6 C. C. 362. The right of eminent a company has appropriated the domain not affected by motive right to use the tracks of another power. State ex rel. v. Taylor, 55 companVj it cannot claim compen- O. S. 61, 66. sation from a third company which The right to appropriate the use i s given the use of the tracks by of track of another company, is not the original company. Toledo, etc., interfered with by the sections giv- Ry. Co. v. Toledo and Maumee Val- ing companies power to make traf- ley Ry. Co., 10 C. C. 168. Sec. 3441 R. S. [The authority controlling the public road must consent.] If the public road along which the railway is to be constructed is owned by a person or company, or is within the control or management of the board of public works or other public officer, 1 such person, company, or officer may agree with the person or company contracting the railway as to the terms and conditions upon which the road may be occupied. 2 [67 v. 10, § 1.] (1) County commissioners in- control of road does not give the eluded. — See R. R. Co. v. Comm'rs, right to take the road, if no agree- 56 O. S. 1, 7. ment is reached. The alternative ( 2 ) Scope of power. — The is appropriation under § 3440 R. power to agree with authorities in S. lb. . Sec. 3442 U.S. [Form of oath in appropriation proceedings.] In case of appropriation of property for such purpose, the oath to be administered to the jury shall be as follows : " You and each of you do solemnly swear that you will justly and impartially assess, according to your best judgment, the amount of compensation which is due to [here name the owner or own- ers], by reason of the appropriation of the street or avenue [as in the statement described], irrespective of any benefit from any improvement proposed by said [here name the company, individual, or company of individuals], and that you will in assessing any damages that may accrue to [here name the owner or owners], by reason of the appropriation, other than the compensation, further ascertain how much less valuable the lot or lots of said [here name the owner or owners] , will be in consequence of such appropriation." And the jury, in asoer- STREET RAILWAYS IN MUNICIPAL STREETS. 708 taining such compensation or damages, shall determine the amount thereof without reference to the distinction between a public and a private nuisance, and the effect of such distinc- tion upon the right of such owner or owners to claim compen- sation or damages, and the court shall, if requested, so direct the jury. [63 v. 55, § 5 ; S. & S. 138.] Sec. 3443 U.S. [Council, etc., may fix terms and conditions.] Council, or the commissioners, as the case may be, shall have the power to fix the terms and conditions upon which such railways may be constructed, operated, extended, and consoli- dated. 1 [67 v. 10, § 1; 6Q v. 140, § 1.] ( 1 ) Power of council. — As to conditions implies the right to power of council to fix terms upon agree upon the duration of the oc- which one railway company may cupancy of the streets and limit use portion of tracks of another the period of the grant. Louisville railway company, see Railroad Co. Trust Co. v. Cincinnati, 10 O. F. v. Railroad Co., 36 O. S. 239. D. 112. The right to impose terms and Sec. 3443a R. S. [Watchmen at street crossings, intersections and corners.] Whenever any street railways are operated by electricity, cable, compressed air, or any motive power other than horses or mules, in any municipality, the board of legisla- tion or council of such municipalities shall have the power by ordinance to require the owners or operators of any such street railways to place watchmen at any street crossings, intersec- tions or corners which such board of legislation or council may deem dangerous ; and to provide for the proper enforcement of such ordinances by penalties in the way of fine or imprison- ment, or both, which may be imposed upon the owner, officer, or operator of such street railways or by a penalty of not ex- ceeding $100 per day, which may be recovered by such munici- palities in a civil suit against the owners or operators of any such street railway failing to place such watchmen as may be required. [89 v. 346.] Sec. 3443 — 1 R. S. [Street railroad route in Cincinnati made valid.] § 1. That in all cases where in cities of the first grade of the first class the council has heretofore, by ordinance, estab- lished any street railroad route and declared tht conditions upon which a street railroad should be constructed and oper- ated upon and along such route, and due publication of a notice has been made calling for proposals to construct and operate such street railroad to be awarded to the corporation, individ- ual or individuals that should agree to carry passengers thereon at the lowest rates of fare, and the proposal of a bidder who obtained and filed the written consents of the owners of the ma- jority of the feet front of property on each street on the line of 709 THE OHIO MUNICIPAL COEE. the route has been accepted thereon, and an ordinance passed granting to such bidder the franchise to construct and operate such street railroad, and such bidder has accepted the same and entered into a written contract with such municipal corpora- tion to construct and operate such street railroad, such ordi- nance, grant, contract and franchise shall be deemed and held, in all respects, to be valid and binding, notwithstanding the submission of another bid at such letting by a bidder proposing to carry passengers on such route as a lower rate of fare, who failed and neglected to obtain and file the written consent of any of the property owners on the line of said route. 1 [88 v. 303.] (1) Construction of section.— Knorr v. Miller, 5 C. C 609. Sec. 3443 — 2 R. S. [Authorizing municipal authorities to grant permission to extend tracks, etc.; fare must not be increased.] §2. In cities of the first grade of the first class the board of city affairs or board of public improvement, or their successors in office, may, by resolution, grant permission to any corporation, individual or company owning or having the right to construct any street railroad, to extend their tracks and route subject to such provisions of sections 3437, 3438, 3439, 3440, 3441, 3442 and 3443 of the Revised Statutes * as are applicable and not in conflict herewith, on any street or streets when such board may deem such extension beneficial to the public; and when any such extension is made, the charge for carrying pas- sengers on any street railroad so extended, and its connections made with any other road or roads by consolidation under ex- isting laws., shall not be increased by reason of such extension or consolidation. [88 v. 303.] (1) Sections referred to. — See note (1) under § 2503 R. S. avpra. Sec. 3443 — 3 R. S. [Forward vestibule of car must be screened and heated.] § 1. Every electric street car other than trail cars, which are attached to motor cars, shall be pro- vided, during the months of November, December, January, February and March of each year at the forward end with a screen constructed of glass or other material, which shall fully and completely protect the driver or motorman or gripman or other person stationed on such forward end, and guiding and directing the motor power by which they are propelled, from wind and storm, and the space provided on such car for such person shall during the said months be provided with a suffi- cient heating device to maintain a temperature at all times not below 60 degrees Fahrenheit. [1906, Feb. 9, 98 v. 5; 90 v. 220.] STREET RAILWAYS IN MUNICIPAL STREETS. 710 Sec. 3443 — 4R. S. [Penalty; duty of prosecuting attorney.] § 2. Any person, agent or officer of any association or corpora- tion violating the provisions of this act shall, upon conviction, be fined in any sum not less than $25 nor more than $100 for each day each car belonging to and used by any such person, association or corporation is directed or permitted to remain un- provided with the screen required in section one [§ (3443 — 3)] of this act; and it is hereby made the duty of the prosecuting attorney of each county in this state to institute the necessary proceedings to enforce the provisions of this act. 1 [90 v. 220.] ( 1 ) Held constitutional. — See State v. Nelson, 52 O. S. 88. Sec. 3443 — 6 R. S. [Repair of crossings at intersecting street railroads; stopping of cars at crossing.] § 1. Where the tracks of two street railroads cross each other or in any way connect at a common grade, when one or both such street railroads use other than horse power for propelling their street cars, the crossings shall be made and kept in repair at the joint expense of the companies owning the tracks, and all such cars used on said street railroads shall come to a full stop, not nearer than ten feet nor further than fifty feet from the crossing, and shall not cross until the way is clear; and when two or more cars approach the crossing at the same time the car or cars on the road first built shall have precedence. 1 [88 v. 581.] ' (1) Effect. — Section does not re- sons in charge of street cars. Kopp lieve railroad company of operating v. B. & O. S. W. Ry. Co., 25 C. C. gates at crossings so as to warn per- 546. Sec. 3443 — 6 R. S. [Full stop when approaching intersecting steam railway, etc.] § 3. That whenever the tracks of any street railroads in this state cross the tracks of any steam railway at grade, the street railway company operating said line of cars shall cause their street cars to come to a full stop not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks, shall cause some person in their employ to go ahead of said car or cars and ascertain if the way is clear and free from danger for the passage of said street cars, and said street railroad cars shall not proceed to cross until signaled so to do by such per- son so employed as aforesaid, or said way is clear for their passage over said tracks. [88 v. 581.] Sec. 3443—7 R. S. [Penalties.] §3. Every person in charge of any streetcar or cars who willfully fails to comply 711 THE OHIO MUNICIPAL CODE. with the provisions of this act, and fails to bring said car or cars which he has in charge to a full stop, or causes the same before the way is clear, or signaled so to do to cross said steam railroad tracks, shall be personally liable to any person injured by reason of such failure as aforesaid, to a penalty of one hundred dollars, to be recovered by civil action at the suit of the state of Ohio, in the court of common pleas of any county wherein such crossing or connection is, and the company in whose employ such person having charge of said car or cars is, as well as the person himself shall be liable in damages to any person or persons injured in person or property [having charge of such car or cars] as aforesaid. 1 [88 v. 581.] (1) Liability of street rail- v. Murray, 9 C. C. 291 (aff'd 53 O. road under this act see Street Ry. S. 570). Sec. 3443 — 11 R. S. [Leases, purchases and traffic arrange- ments.] § 4. Such companies 1 shall have power to lease, pur- chase or make traffic arrangements with any other street railroad company as to so much of its tracks and other property as may be necessary or desirable to enable them to enter or pass through any city or village, upon the same terms and conditions appli- cable to other street railroads. 2 And any existing street rail- road company owning or operating a street railroad shall re- ceive the cars, freight, packages or passengers of any other road, upon the same terms and conditions as they carry for the general public [91 v. 285.] (1) Companies means companies Interurban railways coming into incorporated for constructing street municipality under this section are railroad outside of municipalities. subject to the same terms and con- (2) Joint use of tracks, may be ditions as the street railway corn- secured also under § 3440 R. S. pany whose tracks they use, and State v. Elec. Ry. Co., 19 C. C. 79. such interurban companies must Interurban railway may make give and accept transfers, if the city traffic arrangements with street railway company is required to do railway in municipality, for car- so. Cincinnati v. Cincinnati St. Ry. riage of merchandise for hire, as Co., 16 Dec. 220; 3 N. P. (N. S.) well as passengers. State v. Trac- 489. tion companies, 64 O. S. 272. Sec. 3443 — 14 R. S. [Street railroad in Mansfield may operate a light and power plant,] § 1. The council of any city which at the last federal census had or which at any subsequent federal census may have a population of not less than 13,400 nor more than 13,600 may grant permission to any corporation, individ- ual or individuals to construct and operate an electric power and light plant in connection with any street railroad operated STREET RAILWAYS IN MUNICIPAL STREETS. 711a by them, and may prescribe the terms of constructing and op- erating the same, and such cities may renew any such grants at their expiration upon such conditions as may be considered conducive to the public interests. [ 88 v. 447.] An act to provide for appropriation of private property in mu- nicipalities by corporations for street railway purposes. [Sec. 1.] [Street railway companies may appropriate private property for certain purposes.] That whenever it is deemed necessary by a majority of the directors of any domestic or for- eign corporation owning or operating or that may hereafter own or operate a street railway in any municipality in this state to appropriate private property in such municipality in order to avoid dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations or to extend or shorten its railway line, or to provide additional land on which to extend its power plant, then such corporation may appropriate so much of such private property as may be necessary for the said extension of such power plant, or the construction, opera- tion, and maintenance of the tracks, poles, supports, wires, cables and necessary appliances of such railway other than power houses, machine shops, stations or substations in the mode and manner and subject to the provisions provided for the appropriation of property in part third, title 2, chapter 8, of the Kevised Statutes of Ohio. Provided, however, that this act shall not be construed to amend or repeal any existing laws relating to the extension of street railway lines within mu- nicipalities. [Sec. 2.] [Such corporation may change location of any portion of such railway.] For the purposes hereinbefore provided such corporation may change the location of any portion of its rail- way, whether heretofore made or hereafter made; and for the purpose of making any such change, such corporation shall have all the rights, powers and privileges to enter upon private land and make surveys necessary to effect such change as fully as railroad companies are permitted to do under the laws of this state. 1 [1904, April 17, 97 v. 106.] (1) Scope of power. — For con- ities, see Columbus, etc., Ry. Co. v. struction of similar statute allowing Cole, 47 B. 66. condemnation outside of municipal- 712 THE OHIO MUNICIPAL CODE. [An act to grant to municipalities the right to require street railway companies to sprinkle their right of way within such municipality.] [Sec. 1.] [Council may require street railway company to sprinkle its right of way.] The council of any municipality may by resolution require any interurban or street railway com- pany to sprinkle with water their right of way on any street, alley or public highway, or any portion thereof lying within the limits of such municipality. [Sec. 2.] [How enforced.] Upon failure of any street rail- way company, after proper notice, to comply with the provi- sion of such resolution, the municipality may do such sprin- kling or contract for the same through its proper officials and in accordance with the laws relating to contracts, and the cost of the same shall be certified to the county auditor for collec- tion, to be paid by such interurban or street railway company as other taxes are paid. [Sec. 3.] [Repeals.] All acts or parts of acts inconsistent herewith are hereby repealed. [1906, Feb. 8; 98 v. 5.] Change of Route Law. An act authorizing changes in [and] the extensions of existing street railway routes, and in existing transfer systems. [Sec. 1.] [Municipalities may agree with street railway com- pany for payment of percentage of gross receipts in lieu of car li- cense fees.] That it shall be competent for the board of pub- lic service, in any city of the first grade of the first class, and for the council or other legislative body of any other municipal corporation, by and with the consent of the mayor, to agree with any street railway company or companies operating any street railway route or routes in such city or other municipal corpo- ration for the payment of a percentage or additional percentage not less than one per cent, upon its gross receipts in lieu of car license fees that may have been exacted under existing grants, and upon such changes in and extensions of existing street railway route or routes, and any changes in or revision of any prevailing or existing system of transfers between such routes as such board of public service or council, or other leg- islative body, may deem to be to the benefit, convenience or advantage of the public ; [No increase in rate of fare.] provided, that nothing herein contained shall be construed to authorize any increase in the rate of fare by reason of any such changes, revisions or ex- tensions ; STREET RAILWAYS IN MUNICIPAL STREETS. 712a [When not necessary to secure consents to changes or extensions of existing routes.] and provided, further, that when any such changes in or extensions of existing routes are made so as to run in whole or in part over and along existing tracks already belonging to such company or companies, it shall not be neces- sary to secure and file the consents to such changes or extensions of the owners of the property abutting on the streets on which such existing tracks are located. Provided, further, that noth- ing herein contained shall be construed to authorize the ex- tension of the track or route of one street railway company over those of any other street railway company, otherwise than in the manner already provided by law, excepting by agree- ment of both such companies. [No extension in length of franchise.] Provided, that noth- ing herein contained shall authorize the extension of existing street railway routes or any portion thereof over and along existing tracks or portions thereof for a longer period than the terms for which the original franchises for such roads or routes existing at the time of the passage of this act, were granted. [Notice of pendency of ordinance to extend or change route.] Provided, further, that no resolution or ordinance, providing for such extension or change of route or routes, or changes or re- vision of systems of transfers, shall be passed until public notice of the pendency of such resolution or ordinance shall have been given in one or more of the daily newspapers pub- lished in said municipal corporation, if there be such, and, if not, then in one or more newspapers of general circulation in said municipal corporation, for the period of at least three consecutive weeks; [When consent to change, etc., necessary.] and provided, fur- ther, that no change or extension of any existing route shall be granted over any street or streets now unoccupied by street railway tracks, unless the consent of a majority of the own- ers of property abutting on such street or streets shall have been first obtained as now by law required. [Sec. 2.] [No subsequent change in five years.] Whenever any street railway route or routes shall have been changed under agreement as provided in the preceding section of this act, no subsequent change of said route or routes shall be made within a period of &ve years thereafter. [May 10, 1902, 95 v. 502.] 713 THE OHIO MUNICIPAL CODE. Inclined Plane Railways. Sec. 3444 R. S. [Powers of inclined plane railway companies.] An inclined plane railway company may construct, operate, and maintain an inclined plane railway, for the conveyance of passengers and freight, or either, with such offices, depots, and other buildings as it may deem necessary, and may establish and maintain a park or pleasure-grounds, and for such purpose may acquire and hold real estate. [73 v. 229, § 2.] Sec. 3445 R. S. [How street crossings to be made.] When the part of the railway of such company which is operated by steam power crosses, a public street or highway, it must pass either over or under such street or highway, and shall be constructed in such manner, and at such distance above or below the same as not to obstruct the ordinary use of such street or highway. [73 v. 229, § 10.] Interurban Railway Terminals. [An act authorizing councils of municipalities to grant fran- chises to interurban railroads, using electric or any other mo- tive power except steam, for the purpose of securing terminals in municipalities.] Sec. 1. [Council authorized to grant franchises to interur- ban railroads for the purpose of securing terminals in mu- nicipalities.] That the council of any municipality may grant a franchise upon such terms and conditions as it may pre- scribe for the building of any interurban railroad having, con- structing or building ten miles or more of track outside of such municipality, to any company or companies using electric or other motive power, save steam, for the purpose of securing to such company or companies access to or terminals within said municipality. The council may authorize such company to build and construct tracks and to operate cars thereon, on any street or streets, or parts of streets, of such municipality upon which tracks have not already been laid and where the consent of the owners of a majority front footage has already been obtained by such company. And council may permit such interurban railroad to make use of the tracks or such parts of the tracks of any existing street railroad company within the limits of the municipality by agreement with the existing company in such municipality, or if no such agreement can be arrived at, such interurban railroad company may be authorized by council to condemn the right to make use of the tracks of such existing company upon the payment of proper compensation, provided that such STREET RAILWAYS IN MUNICIPAL STREETS. 713a interurban railroad company shall be permitted to condemn and make use of not more than one-eighth of the trackage of such company within the municipality, or so much as may be necessary to give such interurban company access to terminals within such municipality or to enable such company to secure a right of way over such tracks through such municipality, provided, however, that any such interurban railway company seeking permission to enter or pass through any municipality shall not be required to submit to competitive bidding on such routes, provided that no grant or franchise shall be made to such interurban company for a period longer than 20 years, and provided further that no franchise granted under the pro- visions of this act shall be used for the purpose of operating a municipal street car system, it being the only intent of this act to provide a method whereby bona fide interurban rail- roads may gain access to, and a terminal within, and an exit from, a municipality. [1906, April 16, 98 v. 253.] 714 THE OHIO MUNICIPAL CODE. XI MAGNETIC TELEGRAPH COMPANIES; WIRES AND SUBWAYS. Sec. 3461 R. S. [How right to use public ground acquired.] When any lands authorized to be appropriated to the use of a company x are subject to the easement of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the com- pany, 2 and if they can not agree, 3 or the municipal authorities unreasonably delay to enter into any agreement, the probate court 4 of the county in a proceeding instituted for the purpose shall direct in what mode such telegraphic line shall be con- structed along such street, alley, or public way, so as not to incommode the public in the use of the same ; 5 but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. [62 v. 72, § 5;S. &S. 154.] (1) Company referred to is a magnetic telegraph company, pow- ers of which are defined in Chap. 4, Title II., Part II., of Bates' Re- vised Statutes. The sections here printed are a part of that chapter. A foreign telephone company can- not exercise the power of eminent domain in Ohio to condemn a right through the streets. Central Union Tel. Co. v. Columbus Grove, 28 C. C. 131; 8 C. C. (K. S.) 81. (2) Duration of right. — Upon expiration of agreement with city the company's right to use the street ceases. State v. Telephone Co., 11 C. C. 55. But company can- not be ousted until a failure to agree as to further use and unrea- sonable delay in applying to Probate Court. State ex rel. v. Telephone Co., 14 C. C. 273. Extent of municipal power. — The right of the company to use the streets is given directly by the leg- islature and is independent of the municipality, except that the mu- nicipality may discharge the duty imposed upon it of keeping the streets in repair and free from nui- sance and may fix the mode of use by telephone company under pro- visions of § 3461. The city's power is exhausted when it allows the company to occupy the streets and agrees as to the mode of using the streets. Macklin v. Telephone Co., 24 C. C. 446; 1 C. C. (N. S.) 373 (aff'd 70 O. S. 507); Fitzsimmons Tel. Co. v. Cincinnati, 2 N. P. (N. S.) 51; Farmer v. Telephone Co., 72 O. S. 526. Municipality cannot fix tele= phone rates. — Municipality is without power to fix the rates to be charged or to require free tele- phones to be furnished the munic- ipality, and the telephone company is not estopped, by agreeing to such terms, from increasing the rates or refusing free telephones. Farmer v. Telephone Co., 72 O. S, 526. See MAGNETIC TELEGRAPH COMPANIES. 715 also Macklin v. Telephone Co., 24 C. C. 446, 453; 1 C. C. (N. S.) 373 (aff'd 70 O. S. 507). Revocation of right. — See Cin- cinnati v. Cin. Edison Co., 26 B. 104. (3) Failure to agree.— A peti- tion which shows no specific ques- tions of difference between the cor- poration and the municipal authori- ties, but alleges in that behalf only that they have failed to agree on the mode of use of the streets, and prays for a general judgment direct- ing in what mode plaintiff may con- struct its telephone lines along the streets, does not state facts justify- ing any order or judgment in its favor. Queen City Telephone Co. v. Cincinnati, 73 O. S. 64. Failure to agree as to price to be charged patrons for instruments is not such failure to agree as to mode of use contemplated by this section. State ex rel. v. Telephone Co., 14 C. C. 273. As to what is unreason- able delay to enter into agreement, see Cincinnati Telephone Co. v. Cin- cinnati, 48 B. 986. (4) Validity. — This section is not unconstitutional because it con- fers on the Probate Court the power to fix terms for use of streets by telegraph companies. Zanesville v. Telegraph & Telephone Co., 64 O. S. 67. Probate Court has jurisdiction to make order directing mode of use as provided in this section. lb. Use b t v another company. — See Hauss Elec. Co. v. Jones Bros. Elec. Co., 23 B. 137. Franchise by Probate Court, cannot require telephone company to put its wires and apparatus in con- duits under the streets, in the ab- sense of consent by municipal au- thorities. Queen City Telephone Co. v. Cincinnati, 73 O. S. 64; contra, Cincinnati Telephone Co. v. Cincin- nati, 49 B. 83; Cleveland Telephone Co. v. Chagrin Falls, 14 Dec. 449; Telephone Co. v. Middletown, 2 N. P. (N. S.) 455. The court has no jurisdiction, as part of its order, to prescribe or de- termine the rates to be charged by the company, and so much of a court's order as undertakes to do this is void. State ex rel. v. Toledo Home Telephone Co., 72 O. S. 60. A company is not estopped to question validity of court's order fixing rates because the rates were fixed by court's order upon applica- tion of the company. lb. Company seeking franchise must prove incorporation and due and le- gal election of directors. Queen City Telephone Co. v. Cincinnati, 73 O. S. 64. Sec. 3471 It. S. [Chapter applies to telephone companies.] The provisions of this chapter 1 shall apply also to any company organized to construct any line or lines of telephone ; and every such company shall have the same powers and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies. 2 ( 1 ) See note ( 1 ) to § 346 1 R. S., company even without statutory pro- supra. vision. Railway v. Telegraph Ass'n, (2) The term " telegraph " was 48 O. S., 390, 423. held sufficient to embrace telephone Sec. 3471a R. S. [E! ectr ic light companies, and power and automatic package carrier companies; consent of municipality, etc.] The provisions of this chapter, 1 so far as the same may be applicable, except section three thousand four hundred and sixty-one, shall apply also to any company organized for the purpose of supplying the public and private buildings, manu- facturing establishments, streets, alleys, lanes, lands, square* 716 THE OHIO MUNICIPAL CODE. and public places with electric light and power, or automatic packags carrier; and every such company shall have the same powers, except those given by said section three thousand four hundred and sixty-one, and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies. Provided, however, that in order to subject the same to munici- pal control alone, no person or company shall place, string, con- struct or maintain any line, wire fixture or appliance of any kind for conducting electricity for lighting, heating or power purposes through any street, alley, lane, square, place or land of any city, village or town, without the consent of such munici- pality ; and this inhibition shall extend to all levels above and below the surface of any such public ways, grounds or places, as well as along the surface thereof; but this inhibition shall not be applicable to any rights which have heretofore been received and exercised through proceedings of any probate court. Any person or company violating any portion of the inhibition aforesaid shall be deemed guilty of a misdemeanor, and shall upon conviction thereof be fined in any sum not less than one hundred and not more than five hundred dollars. The means thus created for enforcing said inhibition shall be held to be only cumulative to any other lawful means open to the munici- pality by way of injunction or otherwise; and this act shall apply to actions and causes of action or proceeding named in section seventy-nine of the Revised Statutes, except such as may be pending on error, and not on appeal, in any circuit court of the state. [92 v. 204; 84 v. 7.] (1) See note (1) to § 3461 It. S., Scope of prohibition.— As to supra. whether prohibition extends to case (2) Provision prospective. — f w j res a great distance above or Provision of § 3471a prohibiting the below surfaee of gr0U nd, see Henry placing of wires through a street for v Cincinnati, 1 C. C. (N. S.) 289; conducting electricity has a pros- 2 5 C. C. 178; and Butler v. Cin- pective operation and does not affect dnnati, 2 C. C. (N. S.) 376. wires already properly placed in the The word u t h r0 ugh " in the sec- street. Henry v. Cincinnati, 25 C. tion was held not to apply to wires C. 178; 1 C. C. (N. S.) 289. strung across the street. Henry v. A municipality will be enjoined Cincinnati, 1 C. C. (N. S.) 289; 25 from removing a wire already q^ q^ jyg^ placed. lb. Sec. 3471 — 1 R. S. [Subways for telephone and telegraph wires in cities; erection of poles; penalty.] § 1. Any com- pany organized under the laws of this or of any other state, and owning and operating a telephone exchange, or doing a telegraph business, in any city in this state, may construct and maintain underground wires and pipes, or conduits and other fixtures for containing, protecting and operating such wires in the streets WIRES AND SUBWAYS. 717 and public ways of said city, when the consent of such city has been obtained therefor, and it shall be unlawful for any cor- poration, company or individual to erect any telephone or tele- graph-pole or poles within that portion of any city in this state where subways have been constructed, except such poles as may be required for the purpose of distributing wires from said subways to subscribers, stations, and all such poles shall, so far as possible, be located in alleys; provided that this section shall not apply to existing telegraph companies until such companies shall have authority and sufficient time to construct subways; and whoever violates any of the provisions of this section, shall be punished by a fine of not more than two hun- dred and not less than fifty dollars. [91 v. 205 ; 88 v. 296.] Sec. 3471—2 R. S. [By whom consent given.] § 2. Such consent shall be given by the board of city commissioners, board of public improvements, board of public works, or board of ad- ministration of such city, or their respective successors in office, or by the city council in cities where no such board exists. [88 v. 296.] Sec. 3471 — 3 R. S. [Powers of electric light and power com- panies.] § 1. A company organized for the purpose of sup- plying electricity for power purposes, and for lighting the streets and public and private buildings of a city, village or town, may manufacture, sell and furnish the electric light and power required therein for such and other purposes, and such companies may construct lines for conducting electricity for power and light purposes through the streets, alleys, lanes, lands, squares and public places of such city, village or town, by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires, with the consent of the municipal authorities of the city, village or town, and under such reasonable regulations as they may prescribe. Provided, that all wires erected and operated under the provisions of this act shall be covered with a water-proof insulation, and said poles, piers, abutments and wires shall be so located and ar- ranged as not to interfere with the successful operation of exist- ing telegraph and telephone wires. [83 v. 143.] Sec. 3471—5 R. S. 1 [Validity of prior contracts.] § 3. That in all cases where contracts such as are provided for in section 2 [§(3471 — 4)] 2 of this act have been entered into prior to its passage and there may have been any omission or error arising out of a want of conformity to the statutes of this state but which contracts have been made as required by this act and where it is just and equitable by reason of the expenditure of money or labor in the performance of said contracts or on any other account to fully execute said contracts, then and in all 718 THE OHIO MUNICIPAL CODE. such cases the courts of this state are hereby authorized and empowered to uphold such contracts as valid and binding on all parties to the same and to enforce and carry them into effect in all respects as though no such defect, omission or error ex- isted, any law of this state to the contrary notwithstanding. [92 v. 290.] (1) § (3471-4) and (3471-4a) trie light companies. It is re- omitted here, are repealed by the pealed by the Code. See § 45 of the Code. Code, where power to contract with (2) § (3471-4) provided for con- lighting companies is given, tracts of municipalities with elec- Sec. 3471 — 6 R. S. [Subways and conduits for electric wires, etc., in Cincinnati.] 1 §1. Any company organized for the pur- pose of constructing subways, laying pipes and operating under- ground conduits in any city of the first grade of the first class, in which to place and maintain electric cables, wires and other conductors for conveying electric currents for any purpose, may construct such subways and under-ground conduits through the streets, avenues, sidewalks, alleys, lanes, lands, squares and public places of such city, and maintain such subways and conduits, together with necessary man-holes, junction-boxes, con- nection-boxes, feeders, pipes and connections to and from such subways and conduits, and all such other necessary fixtures and appliances for placing and safely carrying electricity or elec- trical conductors beneath the surface of the streets, avenues, sidewalks, alleys, lanes, lands, squares and public places of any such city. [88 v. 390.] (1) Validity.— §§ 3471-6 and stitutional. Cincinnati Telephone 3471-7 are special acts and uncon- Co. v. Cincinnati, 49 B. 83. Sec. 3471 — 7 R. S. [Permission for construction of, etc. : by whom granted, and rules governing construction.] § 2. In cities of the first grade of the first class, the board of public improvements and their successors in office of any such city shall have authority in case such city should not construct its own system of subways (and in the event it does, the board of public improvements or their successors in office shall have pow- er to contract for the construction of the same), to grant to any person, company or corporation organized for the purpose of constructing subways, laying pipes and operating under- ground conduits in which to place and maintain electric cables, wires and other necessary appliances for conveying electric currents, permission and authority to construct and operate such WIRES AND SUBWAYS. 719 subways and under-ground conduits through the streets, ave- nues, sidewalks, alleys, lands, squares and public places of such city, with the necessary man-holes, junction-boxes, connecting- boxes, feeders, pipes and other connections and appliances ; and it shall be unlawful for any such company to enter upon the construction of any such work, or to open or take up the pave- ments of the streets, or to make any excavations in any of said streets, avenues, sidewalks or other public ways of said city until it has first obtained authority so to do from the board of public improvements or their successors in office in cities of the first grade of the first class ; and any such person, company or corporation operating or maintaining the same shall be sub- ject to such reasonable regulations as the board of public im- provements or their successors in office in cities of the first grade of the first class shall make concerning the construction and use of said subways and conduits, and the time, manner and mode of placing wires, cables and other electrical conductors therein. And it is hereby made the duty of the board of public improve- ments or their successors in office to adopt and enforce such, rules and regulations so as to secure the construction of said subways and under-ground conduits in the most approved man- ner, for the safety of persons and property adjacent to and connected with said subways and under-ground conduits [;] such construction shall be under the control and subject to the approval of the chief engineer of the board of public improve- ments or their successors in office and the fact that such ap- proved and safe construction has actually taken place, shall be certified to in writing by the said engineer before any use shall be made of the same. Provided, however, that no such per- mission and authority hereinbefore referred [to] shall be grant- ed by said board of city affairs to any such company until said board shall have advertised in some paper of general circula- tion in such city on at least one day of each week, for four consecutive weeks, for bids for the grant of such permission and authority, and no such grant shall be made except to the highest bidder, nor for a less compensation to the city than the annual sum of one per cent, of the gross proceeds resulting from the operation of said subways, to be paid for such grant and for the purpose of keeping in repair the streets, sidewalks and other places wherein such subways are constructed and operated; and but one such company shall be authorized, in any case to open up the streets for such purpose or to construct, own and operate subways in which to place electric wires, and all such wires except telegraph and telephone wires shall be required to be laid in one general subway constructed for the purpose; 720 THE OHIO MUNICIPAL CODE. and said board shall have the right to reject any and all bids. Provided, that nothing in this act contained shall be construct- ed [construed] so as to authorize or require the placing of tele- graph or telephone wires or conductors in the same conduit or conduits with electric light, power or railway wires, or con- ductors, or so as to prevent the granting by municipalities of the power to place telephone or telegraph wires or conductors in a separate conduit in the streets to be constructed for that purpose. And provided further, that nothing herein contained shall be so construed as to conflict with any orders made by the probate court of any county, containing a city of the first grade of the first class, for maintaining overhead or under- ground wires or conduits, for furnishing electric light, heat or power, where investments are made on the faith of the same; but all such orders of the court shall be valid and binding upon all parties thereto and their successors and assigns. [88 v. 390.] Sec. 3471 — 8 R. S. [Bond for restoration of streets, etc. ; board of improvements to fix rental.] § 3. Nothing herein con- tained, however, shall authorize any person, company or cor- poration to construct such subways or conduits or to excavate any portion of any street, sidewalk or other public way of any such city, until such person, company or corporation has first executed a bond in the sum of two hundred and fifty thousand dollars, conditioned to restore such streets, sidewalks and other public ways to their original state of usefulness, and to keep the same in repair to the satisfaction of the board of public improvements or their successors in office, and its chief en- gineer for a period of iive years from and after such restoration thereof. The board of public improvements or their successors in office in cities of the first grade of the first class 1 in which such subways may be constructed, shall have power to fix the rental to be charged by persons, companies or corporations own- ing or operating such subways for the use and occupation of such subways or conduits by electric companies or companies using or supplying electricity for any purpose, and shall esti- mate the same upon a percentage based on the amount invested in the construction, maintenance and operation of said «uWays and underground conduits. [88 v. 390.] (1) Validity denied, because special act, see Cincinnati Telephone Co. v. Cincinnati, 49 B. 83. MARKET HOUSES. 721 XII MARKET HOUSES. 1. MARKET HOUSE COMPANIES. Sec. 3858 R. S. [Market-house companies.] A company in- corporated for the purpose of constructing and maintaining a market-house may construct, erect, establish, and maintain, at the place named in its articles of incorporation, a suitable building or buildings to be appropriated and used exclusively as a public market-house, for the sale and vending of meats, vegetables, and all other kinds of provisions, and of fruits, plants, and flowers, and all other articles commonly sold and vended in public market-houses or spaces, on market days, in market hours. [58 v. 92, §§ 1, 2 ; S. & S. 174.] Sec. 3859 R. S. [Powers of such companies.] Such compan- ies may rent, lease, sell, or dispose of stalls, cellar vaults, or other divisions or spaces in their buildings, in such manner, and upon such terms and conditions, as the directors shall deter- mine ; but a uniform rule in renting or leasing such stalls, cellar vaults, or other divisions or spaces, shall be established, printed, and hung in conspicuous places in the buildings, and the same may be changed, from time to time, by the directors thereof; and no preference shall be made, by any variation or difference in rates or prices, in favor of citizens of the city or village wherein the buildings are erected, and against farmers, butchers, or producers not residing in such city or village, and no rule, regulation, order, or condition shall be made or exacted by any company to prevent farmers, butchers, or other persons from disposing of their produce., meats, vegetables, or other articles, in such quantities and upon such terms as they may deem. proper; but such companies shall prohibit and prevent in their buildings the use of false weights or measures, the ex- posure or sale of any diseased or decaying meats or vegetables, and any offensive or injurious articles. [58 v. 92, § 5 ; S. & S. 175.] 722 THE OHIO MUNICIPAL CODE. Sec. 3860 R. S. [May keep streets unobstructed.] Such com- panies may keep the streets, alleys, or avenues in front of their buildings free, open, and clear of any and all obstruction from stoppage of wagons, carriages, or vehicles of any kind, or of horses, mules, or cattle, on market days, in market hours. [58 v. 92, § 6; S. &S. 175.] Sec. 3861 R. S. [May construct sewers.] When any such company erects its buildings in a city or village having a sewer with which the company may connect sewers of its own con- struction, sufficient to drain its buildings, it shall construct such sewers, and so connect them; and in cities and villages not having sewers, such companies may construct sewers for the drainage of their buildings, and charge and receive a compen- sation for the tapping and use of the same, or portions thereof. [58 v. 92, § 7; S. & S. 175.] 2. CLEVELAND MAEKET HOUSE COMMISSION. 1 Sec. 2581 — 1 R. S. [Market-house commission; number; ap- pointment; term.] § 1. In cities of the second grade of the first class there shall be a market-house commission consisting of three members, all of whom shall be appointed by the mayor of any such city and approved by the council and who shall serve for the period of five years, and until their successors are appointed and qualified. [93 v. 668.] (1) The sections carried here are pursuant to the act (93 0. L. 668) in the list of repeals in the Code, from which these sections are taken but by § 216 of the Code, it is shall continue to act till work is provided that all persons appointed completed. Sec. 2581— 2R. S. [Oath; compensation; bond.] §2. The members so appointed shall take and subscribe an oath of office to honestly and faithfully perform their duties ; they shall serve without compensation, and shall give a bond in the sum of five thousand dollars to the approval of the mayor of any such city. [93 v. 668.] Sec. 2581 — 3 R. S. [Power of commission.] § 3. Such com- mission shall have power to contract for the building of a new market-house and auditorium for any such city, and to acquire any additional lands that may be necessary for that purpose either by purchase or appropriation in the name of any such city in the manner now provided by law. [93 v. 668.] Sec. 2581— 4 R. S. [Bonds.] § 4. The council of any such city may and is authorized and empowered for the purpose of MARKET HOUSES. 723 this act to borrow money and issue the bonds of any such city in the name and under the corporate seal of any such city in a sum not exceeding three hundred and twenty-five thousand dollars, which bonds shall be made payable not more than thirty years, as the city council shall determine, from the date of their issue, and shall bear interest at a rate not exceeding five per cent, per annum, payable semi-annually, as such city council shall determine. [93 v. 668.] Sec. 2581 — 5 R. S. [Signing and attesting of bonds; rent from market-houses to be placed in sinking fund; levy.] § 5. Such bonds shall be signed by the president of such commission, the mayor of any such city, and attested by the city auditor. All rent obtained by such city from any market-house or houses in such cities, or any addition thereto,, shall be placed in the sinking fund of such city until a sufficient amount has been re- ceived to fully pay the principal and interest of such bonds; and in case such rents shall not be sufficient to pay the interest and principal of such bonds as the same may become due, any such city council shall, in addition to the other levies authorized by law, levy annually a sufficient tax therefor on the property subject to taxation in any such city, and such taxes shall be collected in the same manner as other taxes. [93 v. 668.] Sec. 2581—6 R. S. [Bonds to conform to sections 2700 to 2711 R. S.] § 6. Such bonds, except as otherwise herein provided, shall in all- respects conform to the requirements of sections 2700 to 2711 of the Kevised Statutes of Ohio. [93 v. 669.] Sec. 2581— 7R. S. [Power, of member to create liability.] § 7. No member of such commission shall have power to create any debt or obligation, claim or liability, for or on account of such commission, except with the express authority of such com- mission, conferred at a meeting thereof, duly convened and held. [93 v. 669.] Sec. 2581 — 8 R. S. [Record of proceedings.] § 8. Such com- mission shall keep a record of all its proceedings under the authority of this act, which shall be open at all reasonable times to the inspection of any resident of such city. [93 v. 669.] 724 THE OHIO MUNICIPAL. CODE. XIII CEMETERIES. 1 Sec. 2534 R. S. [How appropriations shall be made.] When an appropriation of land for such purposes 2 becomes necessary, it shall be made by the municipal corporation, or if there be more than one such corporation, then- by the one having the largest number of inhabitants at the last federal census, which corporation, in making the appropriation, shall act for itself and any other corporation or township uniting with it, and the proceedings therefor shall be the same as required in this title 3 where the appropriation is to be made for the use of the corpo- ration alone. [66 v. 212, § 378.] (1) Sections on cemeteries. — (3) Proceedings for appropria- §§ 2534 to 2558 R. S., and § 2518 R. tion.— The method for appropria- S., carried here formed part of Chap. tion here referred to, is that found 7, Div. 8, Title XII., R. S. Of the in Chap. 3, Div. 7, Title XII., R. sections in this chapter, §§ 2516, S This chapter is now repealed 2517, 2521 to 2533, inclusive, and and method of appropriation pro- 2533a, are re-enacted in § 8 of the vided for by §§ 10 to 22 of the Code. Code. The other sections, not car- Public cemetery. — A cemetery ried here, are repealed by the Code. belonging to a private association (2) "Such purpose" refers to was held not a public cemetery union of cities and townships for within the meaning of § 3284 R. S. cemetery purposes. § 2532 R. S. re- Youngstown v. Railroad, 3 C. C. enacted in § 8 of the Code, page 72. 214. Sec. 2535 R. S. [Titles, how vested.] The title to such cen> etery grounds, whether by purchase or otherwise, shall vest in and he held hy the corporation making the appropriation, in trust for the use of its inhabitants and the inhabitants of the other corporations or townships in common; and provision shall he made for the interment in such cemetery of all persons buried at the expense of the corporations or townships. [66 v. 212, § 379.] Sec. 2536 R. S. [Expenses, etc., to be pro rata.] The expense of such purchase, or of the proceedings in case of appropriation, CEMETERIES. 725 and the damages awarded, or both, shall be borne by the corpo- rations and townships in proportion to the property of each on the duplicate for taxation, and the amount of bonds issued by each in any case, for such cemetery purposes, shall be in the same proportion, and the percentage of taxation for all such cemetery purposes shall be the same in the corporations and townships. [66 v. 212, § 380.] Sec. 2537 R. S. [Control and management.] The cemetery so owned in common, shall be under the control and management of the trustees, and their authority over the same and their duties in relation thereto, shall be the same as where the ceme- tery is the exclusive property of a single corporation. 1 [66 v. 212, § 381.] (1) Managing board. — See note under § 2521 R. S v re-enacted in § 8 of the Code (page 68). Sec. 2538 R. S. [Power to enforce ordinances, etc.] The coun- cil of any city or village owning a cemetery in common with any other city, village, or township as aforesaid, shall have full power and authority to pass and enforce all ordinances necessary to carry into effect the provisions herein contained, and such as may be deemed necessary for the preservation and regulation of such cemetery and the protection thereof, and for the punishment of any person violating the ordinances, rules, and regulations, relating to such cemetery ; and the mayor and police officers of such corporation shall have full and complete jurisdiction and authority to enforce all such ordinances, rules, and regulations, as if such cemetery grounds were located within or owned exclusively by the corporation. [66 v. 212, § 382.] Sec. 2539 R. S. [Discrimination forbidden.] No distinction or discrimination of any kind shall be made by the trustees of such cemetery owned in common, in favor of one corporation against another, or in favor of a corporation against a township, or in favor of a township against a corporation, but the affairs of the cemetery shall in all respects be managed as though the same were owned and governed in the interests of the corpora- tion or township alone. [66 v. 213, § 383.] Sec. 2540 R. S. [Joint meeting of council and trustees.] In case of a union for cemetery purposes between a municipal cor- poration and a township, the council of the corporation and the trustees of the township shall have a joint meeting at the coun- cil-chamber of the corporation, on the day of the first regular 726 THE OHIO MUNICIPAL CODE. meeting of the council in the month of May of each year, for the purpose of determining the rate [of tax] to be levied upon the taxable property of the corporation and the township for the pur- poses herein required ; and upon the passage of a joint resolution by a majority of the members of the council and the trustees, fixing the rate of taxation, it shall be the duty of the clerk of the corporation to certify such rate to the auditor of the county for assessment and collection ; and in case there is more than one municipal corporation or township united for such purposes, the councils and trustees of the townships shall become such, joint body with the same powers as if there had been one such corporation and township, and the clerk of the corporation con- taining the greatest number of inhabitants shall certify to the auditor as above provided, the rate of taxation. [66 v. 213, § 384.] Sec. 2541 It. S. [Joint meetings to make rules, etc.] The trustees of such township or townships, or the council or coun- cils of such municipal corporation or corporations, may at any time call a point meeting of the council or councils and the trustees of the township or townships, on a reasonable notice given by either, for the purpose of- making joint rules and regulations for the government of such cemetery, or changing the same, and making such orders as may be found necessary for the application of moneys arising from the sale of lots, taxes, or otherwise. [66 v. 213, § 385.] Sec. 2542 It. S. [Vote, and record thereof.] In all joint meetings, each member of the councils and each of the trus- tees shall have one vote in determining all questions ; and the proceedings of all joint meetings shall be recorded by the clerk of the corporation having the greatest number of inhabitants. [66 y. 213, § 386.] Sec. 2543 It. S. [Adjoining townships may be admitted to par- ticipation, etc. ; any municipal corporation or township may with- draw.] Any township adjoining one in which a cemetery is established by the union of any of the bodies as hereinbefore provided, may, by consent of the trustees of such township and of the council or councils of the corporation, be admitted to an equal participation with the inhabitants thereof in the rights and privileges in such cemetery, upon such terms as may be mu- tually agreed upon, but the title and control of the cemetery shall continue vested in the corporation as above provided ; and any municipal corporation or township which has heretofore united, or which may hereafter unite with any other municipal corporation or township, or both, in the establishment or con- trol of a cemetery under the provisions of this chapter, may by a resolution of the council of such corporation or of the trustees of such township and with the consent of the council of the CEMETERIES. 727 remaining corporation and trustees of the remaining township or townships, withdraw from the management and control of such cemetery, and relinquish the interest of such corporation or township therein, and thereupon such cemetery shall be under the management and control of such remaining corpora- tion and township or corporations and townships. [1883, January 25 : 80 v. 6 ; Rev. Stat. 1880; 66 v. 214, § 390 (S. & C. 1564).] Sec. 2544 R. S. [Public burial ground, etc., may be appropri- ated.] In the establishment of cemeteries as herein provided, any city or village and any township may make use of any public burial ground or cemetery ground which may be held by such city, village, or township, and may make use of any land which such city, village, or township, may have acquired by dedication, gift, or devise for burial purposes. [66 v. 213, § 387.] Sec. 2545 U.S. [Purchase of lands; improvements, etc.] The council of any city or village, and the trustees of any township, may purchase of any cemetery association incorporated under existing laws, the lands, lots, and improvements of such ceme- tery association remaining unsold, for cemetery purposes, and take a conveyance thereof; but the purchase money in such cases shall be applied to the payment of the legal debts of such association, and to the embellishment and preservation of the land purchased, and such other purposes as the trustees of the cemetery may direct. [66 v. 213, § 388.] Sec. 2545a R. S. [Municipality or township may transfer ceme- tery property to cemetery association.] The city council of any city or village, and the trustees of any township, may transfer to any cemetery association incorporated under existing laws, the lands, lots, and improvements of such cemetery, now owned and controlled by said city, village or township, for cemetery purposes ; said cemetery association shall assume all legal debts on said cemeteries so transferred. [1904, April 22, 97 v. 165.] Sec. 2546 R. S. [Rights and titles inviolate.] The rights and titles of lot owners, purchased prior to such sale and convey- ance, shall not be questioned ; and such lot owners shall continue to hold and occupy their lots, under such rules and regulations as shall be adopted for the government and regulation of such cemetery by the authorities making such purchase. {66 v. 214, § 389.] Sec. 2547 R. S. [Clerk shall record plat of ground, etc.] It shall be the duty of the clerk of the corporation to record, in a book to be provided for that purpose, a plat of all grounds for cemetery purposes laid out into avenues, walks, paths, and 728 THE OHIO MUNICIPAL CODE. lots, and he shall execute to the purchasers of lots such convey- ance as may be necessary to carry into effect the contracts of sale; and such conveyance shall, at the expense of the person receiving it, be recorded in a book to be kept for that purpose, by the clerk of the corporation. [66 v. 214, § 391.] Sec. 2548 R. S. [Powers of council as to cemeteries.] The council of any city or village owning a public burial-ground or cemetery, whether within or without the corporation, may pass and provide for the enforcement of ordinances necessary to carry into effect the provisions of this chapter, and regulate such public burial-grounds and cemeteries, the improvement of the same, and the burial of the dead therein; define the tenure and conditions on which lots therein shall be held; and protect such burial-grounds and cemeteries and all fixtures thereon. [70 v. 274, § 392; (S. & C. 1563).] Sec. 2549 U.S. [Power to sell portions of cemetery.] The council may sell any portion of such cemetery grounds not already used for the burial of the dead, which are unsuitable for burial purposes, and purchase with the proceeds thereof other suitable lands lying contiguous thereto; but no such sale shall be made until the council shall have contracted for an equal or greater quantity of land suitable for burial purposes : provided, that the trustees of any cemetery, elected under this chapter, for the purpose of paying any indebtedness, arising out of the purchase or improvement of such cemetery, shall, with the consent of the council of the corporation, where there is no union with any other corporation or township, and where there is such union, with consent of the bodies acting jointly as provided in section twenty-five hundred and forty-one have power to sell or mortgage such portion of the real estate, belong- ing to such cemetery, as has not been used for burial purposes, or as may not be, in the opinion of the trustees, needed for such purposes, and the money arising from such sale or mort- gage, shall be applied by the trustees to the payment of such indebtedness, and to no other purpose, except upon such sale where there may be a surplus after the payment of such indebt- edness, in which case such surplus money shall be used by the trustees in the improvement of such cemetry grounds, and for no other purpose. [70 v. 274, § 392 ; 64 v. 110 ; S. & S. 877.] Sec. 2550 R. S. 1 [Burials may be prohibitel within corporate limits.] The council may prohibit the interment of the dead within the corporation limits, and, for the purpose of making such prohibition effective, may not only impose proper fines and penalties, but shall also have power to cause any body, interred contrary thereto, to be taken up and buried without the limits of the corporation. [66 v. 214, § 393.] ( 1 ) § 2551 R. S. was repealed in 85 O. L. 282. • CEMETERIES. 729 Sec. 2552 R. S. [Bond of managing trustee.] The council may "require the trustee who may be authorized to receive and disburse the moneys arising from the sale of lots, or otherwise, and to invest, manage, and control the property and funds in the hands of said trustees, to enter into a bond to the corpora- tion with sufficient sureties, conditioned for the faithful per- formance of his duty, as such trustee, and account for all moneys by him received, and pay over to his successor all moneys or other property unexpended. And such bond shall be filed in the office of the corporation clerk. [1887, March 16: 84 v. 84; Rev. Stat. 1880; 66 v. 214, § 395.] Sec. 2553 R. S. [Applicability to existing cemeteries.] The provisions of this chapter relating to the establishment of cem- eteries by municipal corporations and township trustees, shall govern cemeteries already so established, so far as the same may be applicable. [66 v. 214, § 396.] Sec. 2554 R. S. [Property in village supporting cemetery ex- empt from tax for purchase of hearse for township.] All property within any village, in which there is a cemetery established and maintained by such village, shall be exempt from taxes for the purchase or maintenance of cemeteries, or for the purchase of a hearse, or for the construction of a vault, under the superintend- ence of the township trustees, and for the use of the township ex- clusive of the village. [1880, April 2 : 77 v. 117; Rev. Stat. 1880; 66 v. 74, § 1.] Sec. 2555 R. S. [Conveyance of lands abandoned for cemetery purposes.] When a city or village holds any land or lands within its limits which shall have been used as a cemetery or burial-ground, and in which interments have been prohibited by such municipal corporations, and it shall have been decided to remove the bodies interred therein, it shall be lawful for the council to sell or otherwise dispose of any such land or lands to the purchaser of the same, provided that such sale or other transfer of such land shall not operate to give such purchaser possession of the same until the bodies therein interred shall have been removed from such cemetery, and all monuments and tombstones be removed and re-erected at the place of re- interment of the remains of each person, respectively. [68 v. 124, § 1.] Sec. 2556 R. S. [Council of villages may tax for hearse or vault on vote of electors.] The council of a village may levy a tax in such amount as it may determine, either to purchase a hearse or to construct a vault for the dead, for the use of the village, to be under the control of the trustees of cemeteries of 730 THE OHIO MUNICIPAL CODE. the village, where there is such board, otherwise under the con- trol of the council, or a person appointed by it ; but the question of levying such tax, for either or both of such purposes, and the amount asked therefor, shall be separately submitted to the elec- tors of the corporation, at a general election, twenty days' notice thereof having been previously given, by posting in at least three public places in the village ; the notice shall state specific- ally the amount to be raised, and for what purpose; and if a majority of all the votes cast at such election is in favor of either or both of such propositions, the same shall be considered adopted, and the tax herein provided for authorized. [75 v. 46, § 1.] Sec* 2557 R. S. [Form of ballot.] The electors voting at such election shall have placed on their ballots the words, " Tax for Hearse — Yes," or " Tax for Hearse — ~No," and upon the same ballot, " Tax for Vault — Yes," or " Tax for Vault — No," and may vote for one proposition and against the other, or for or against both. [(75 v. 46, § 2).] Sec. 2558 R. S. [Council may borrow money in anticipation of collection of tax.] When a tax for erecting a vault has been voted in any village, the council thereof may, in anticipation of such tax issue the bonds of such village in an aggregate amount not exceeding the tax voted, of denominations not less than fifty dollars, bearing interest at a rate not exceeding six per centum, payable not later than two years from the date thereof, and signed by the mayor and clerk of the village ; and such bonds shall be paid from the tax so voted, and the proceeds of the sale thereof shall be used solely for the construction of such vault [(76 v. 43, § 1).] Sec. 1464a R. S. [Use of land near dwelling-house in city of third or fourth grade, second class.] Where the trustees of any township own land for cemetery purposes, situated in a city of the third or fourth grade of the second class, they may use such land for cemetery purposes within one hundred (100) feet or the width of a street from any dwelling-house the same as cemetery associations are now authorized to do by section 3773 [3573] of the Revised Statutes of Ohio, as amended March 22, 1893. [92 v. 161.] Sec. 1473a R. S. [Abandonment, etc., of graveyard, etc., owned by city or village, in certain cases.] That where any grave- yard, burial-ground or cemetery is located without the cor- porate limits of any city or village, and not further away there- from than one mile, and the title to and the possession of such graveyard, burial-ground or cemetery is in such city or village, CEMETERIES. 731 or the same is under the control of any of the authorities of any- city or village, and said city or village has failed to protect the same or keep it inclosed with fences for two years, any five freeholders whose property is in the vicinity of such graveyard, burial-ground or cemetery, may apply by petition to the pro- bate court of the county where such graveyard, burial-ground or cemetery is located, stating in their petition that such city or village has failed to protect such graveyard, burial-ground or cemetery, and asking for an abandonment or removal of such burial-ground, graveyard or cemetery; which upon final hear- ing, if it appears to the court to be to the public interest to have such graveyard, burial-ground or cemetery abandoned and removed, it shall so order. In which action such city or village shall be made a defendant and shall be served with summons as in other actions provided. Should such city or village fail to remove such graveyard, burial-ground or cemetery for a period of six months after it has been so ordered by the court, then the court shall order such premises sold as upon execution ; provided, that such sale or other transfer of such land shall not operate to give a purchaser possession of the same until the bodies therein interred shall have been removed, as provided in section 2555 of the Kevised Statutes of Ohio. [89 v. 272.] Cemetery Board in Villages. Sec. 2518. [Appointment of board of cemetery trustees; number of members, term.] The mayor of any village owning a public burying ground, or cemetery, or which may hereafter be pro- vided with the same, shall have the power to appoint a board to be known as the board of cemetery trustees; said board of cemetery trustees shall consist of three members, whose term of office shall be three years ; provided, however, that the term of office of any such board first appointed in any village, sub- sequent to the passage of this act, shall extend until the first municipal election has been held thereafter and the officers chosen at said election duly qualified and placed in office. Thereafter the mayor shall appoint a board whose term snail expire as follows: One trustee for a term of three years, one trustee for a term of two years, and one trustee for a term of one year. And thereafter each year after the annual munic- ipal election has been held and the newly elected officers have been duly qualified and placed in office the mayor shall at the first meeting night of the council within his village appoint one member on the board of cemetery trustees whose term of 731a THE OHIO MUNICIPAL CODE. office shall be for three years, or until his successor in office shall have been regularly appointed and qualified. [Vacancies.] In case a vacancy in said board of cemetery trustees in any village where such board shall have been ap- pointed, in accordance with the provisions of this section, by reason of the death, disability, or removal from office of any member or members of said board, the mayor shall appoint a member or members to fill such vacancies, and the person so appointed shall serve out the unexpired term or until his suc- cessor is regularly elected and qualified. All appointments to fill vacancies as aforesaid shall be made at the first meeting night of the council after such vacancy shall have been brought to the attention of the mayor and council. [Removals.] The mayor of any village where such board of cemetery trustees is appointed in accordance with the provi- sions of this section shall have power to remove from office any member of said board for any misconduct, neglect of duty or malfeasance in office; [Powers and duties.] said board of cemetery trustees shall have all the powers and perform all the duties prescribed by law in this chapter for such trustees ; and said board shall organize in accordance with the provisions of section 2533a of the Revised Statutes of Ohio. [Re-enacted 1904, May 3, 97 v. 538; 66 v. 210.] PUBLIC BUILDINGS. 732 XIV PUBLIC BUILDINGS AND INSPECTION OF BUILDINGS. 1 1. CLEVELAND CITY HALL COMMISSION. Sec. 2559 — 1 R. S. [Cleveland may erect new city hall; com- missioners; number; appointment; duties and powers.] 2 In any city of the second grade of the first class, the council of such city may, by ordinance, declare the necessity for the erection, completion and furnishing of a new city hall for any such city, to be used for the public offices of the corporation, and such other public purposes as the council may authorize; thereupon there shall be a board of five commissioners, composed of five (5) citizens of such city, to be appointed by the mayor, and approved by the council, not more than three of whom shall be from the same political party, whose duty it shall be to secure the necessary land, by purchase or appropriation, as a location and site for the erection of such city hall, and to erect, build, complete and furnish such new city hall in such city ; and upon the appointment as aforesaid of said commissioners, all power to procure such site or location, either by appropriation or purchase, as said commissioners shall deem best, and to erect, build, complete and furnish a city hall for such city, shall devolve upon, vest in, and be exercised by said board, and in exercising such power and carrying out the object of their appointment, said board shall be governed by the following provisions. [93 v. 549.] (1) Sections of Revised Statutes ted here. Other sections not given carried here formed part of Chap. here are repealed by the Code. 8, Div. 8, Title XII., R. S. Of the (2) Cleveland city hall act.— sections in this chapter, §§ 2573a, § 216 of the Code provides that per- 2573a — 2, 2573b, 2573c, 2573c — 1, sons appointed pursuant to this act, 2573c — 2, 2575c — 3, 2573a", 2573 — 1, shall continue to act till the work 2573 — 2, and 2573 — 3 R. S. relate is complete and it shall then be solely to state inspection of work- turned over to proper municipal au- shops and factories, and are omit- thorities. 733 THE OHIO MUNICIPAL CODE. Sec. 2559 — 2R. S. [Name of board; expenses, removal, va- cancy.] Said board shall be known as the board of city hall commissioners, and they shall receive their necessary expenses in attending to their duties, which shall be paid out of the fund hereinafter created for the purpose of carrying out the pro- visions of this act. Said board shall serve until the building and furnishing of such city hall is completed, but not to exceed five years and nine months from the date of their appointment ; provided, the mayor, with the approval of the council, may remove any of said commissioners for misconduct in office, and the vacancy thereby created shall be filled in the same manner and from the same political party as the original appointment, and all vacancies in the office of commissioner shall be filled in the same manner from the same political party as the orig- inal appointment. 1 [1902, May 6 : 95 v. 877 ; 93 v. 549.] (1) This section is given as amended May 6, 1902. See Code § 216 ( fourth paragraph ) . Sec. 2559 — 3 R. S. [President; meetings; record.] Said com- missioners shall select from their number a president, and shall hold regular meetings at such time and places as they may agree upon, and special meetings under such regulations as they may determine, and shall cause to be kept a full record of their proceedings. Said commissioners shall each receive the sum of five dollars per meeting, as compensation, for each and every meeting attended by them from and after the passage of this amending act, but in no case shall such compensation exceed twelve hundred dollars in any one year to any member of said commission. 1 [1902, May 6 : 95 v. 877 ; 93 v. 549.] ( 1 ) This section is given as amended May 6, 1902. See Code § 216 (fourth paragraph.) Sec. 2559 — 4R. S. [Power to appoint clerk, architect and other necessary employes ; compensation of same ; to adopt suitable plan for hall; contracts; advertising for plans, etc.] Said commis- sioners shall have power to appoint a clerk, architect, superin- tendent and other necessary employes, fix their compensation and adopt a suitable plan and design for such city hall, and make all contracts for the procuring of the necessary site, and for erecting, completing and furnishing such city hall; and no contract which they enter into, or alteration or modification PUBLIC BUILDINGS. 734 thereof shall be valid until assented to at a regular or special meeting and concurred in by a majority of all the members thereof, and such assent entered on the minutes of the proceedr ings. And it shall be the duty of such commissioners in se- curing the most suitable -olans together with the specifications and estimates for such city hall, to advertise for not less than three (3) consecutive weeks in such newspapers as they may deem proper, in and of general circulation in such city, for plans, specifications and estimates of such city hall ; said plans, specifications and estimates to be presented within such time after such advertisement as the board may direct; and shall allow full and fair competition among all architects who shall desire to submit plans, specifications and estimates for such city hall. [93 v. 550.] Sec. 2559 — 5R. S. [Power to condemn property; resolution therefor; duty of corporation counsel; appropriation proceedings governed by what laws.] Said board of commissioners shall have power to appropriate, enter upon and condemn for public use, by any such city, for city hall purposes, any private prop- erty within such city, and when such board shall determine to appropriate property for such use a resolution to that effect shall be passed by the board and entered upon its minutes, declaring the intention to appropriate such property and the necessity therefor, with a pertinent description of the property to be appropriated, which resolution shall be certified to the corporation counsel of such city, whose duty it shall then be to apply, in writing, in the name of such city, to any court of competent jurisdiction for the impaneling of a jury to assess the compensation to be allowed the owner or owners of property sought to be appropriated, in the manner now provided by law for the impaneling of juries to assess the compensation to be allowed the owners of property appropriated by municipal corporations for other purposes; and such appropriation pro- ceedings shall in all other respects be governed by the laws now in force governing the appropriation of private property by municipal corporations for public purposes. [93 v. 550.] Sec. 2559 — 6 R. S. [How money may be expended ; commis- sioners or city employes not to be interested in contracts.] No money shall be expended on account of such city hall unless first authorized by such commissioners, and upon warrants signed by their president and clerk, drawn upon the director of accounts of such city, to be paid by the treasurer of such city upon the warrant of such director, out of the fund hereinafter provided ; and no commissioner or person holding appointment 735 THE OHIO MUNICIPAL CODE. from said board, nor any officer or employe of the city, shall be interested, either directly or indirectly, in any contract con; cerning such city hall or the material or site therefor. [93 v. 551.] Sec. 2559 — 7 R. S. [Plans and specifications, etc., to be pre- pared; distribution of same.] Such commissioners before en- tering into any contract for such city hall shall cause plans and specifications, details, drawings, and forms of bids to be pre- pared, and when adopted by them, they may, in their discretion, cause the plans and drawings to be lithographed, and the speci- fications and forms of bids, contracts and bonds to be prepared, and have the same printed for distribution among the bidders. [93 v. 151.] Sec. 2559 — 8 R. S. [How contracts to be made ; alterations or modifications in contract.] All contracts shall be made in writ- ing, in the name of such city, and signed by the president and clerk of said board, and by the contractor, and be approved by the corporation counsel. When it becomes necessary, in the opinion of said board, in the prosecution of the work, to make alterations or modifications in the contract, such alterations or modifications shall only be made by order of the board, and such order shall be of no effect until the price to be paid for the work, or materials, under such altered or modified contract has been agreed upon in writing, and signed by the contractor and the president of said board. [93 v. 551.] Sec. 2559— 9 R. S. [Advertising for bids.] Said board shall not enter into any contract for work in the erection and com- pletion of such city hall without first causing fifteen (15) days' notice to be given in one or more newspapers, of general circu- lation, in such city, for sealed proposals for doing the work and furnishing the materials therefor ; provided, that said board shall not be required to advertise for bids for making and printing the drawings, specifications and forms of bids, con- tracts and bonds. [93 v. 551.] Sec. 2559— 10 R. S. [Bids.] All bids shall be enclosed in a sealed envelope and deposited with the clerk of said board; and such sealed envelope shall have endorsed thereon the nature of the same, and the name of the bidder; and all bids shall be opened at a regular meeting of the board, and at an hour to be indicated in said notice. Each bid shall be accompanied with a bond, signed with sufficient sureties, for the acceptance and execution of the contract, and the securing of the same if awarded by the board; or the bidder may deposit with the PUBLIC BUILDINGS. 736 board, in lieu of such bond, a certified check, or cash, in such sum as the board shall indicate ; and in case of refusal of the bidder to enter into a contract in accordance with his bid, and furnish the security therein required, within such reasonable time as the board may determine, said bond shall be put in suit and the amount collected, paid into the fund hereinafter pro- vided for; if a check, or cash, is deposited the amount shall immediately be paid into such fund. [93 v. 551.] Sec. 2559 — 11 R. S. [Awarding of contract; bond of successful bidder.] Said board shall enter into contract with the lowest and best bidder, upon his giving bond to such city with such sureties as the board shall approve that he will perform the work and furnish the materials in accordance with his contract, and that the sureties agree in advance to such modifications and alterations as may be made by the board and the contractor, within the limits of the penal sum mentioned in the bond ; and on failure of such bidder, within a reasonable time to be fixed by the board, to enter into bond with the sureties before pro- vided, a contract may be made with the next lowest and best bidder, and so on, until a contract is effected with a contractor giving bond as aforesaid ; provided, that the board may let the work in whole or in parts, and may receive bids for labor and material separately, as they may deem best, and may reject any and all bids. [93 v. 551.] Sec. 2559— 12 R. S. [Fund to defray cost of city hall; bonds to conform to requirements of certain statutes.] To provide a fund to pay the cost and expense of procuring the necessary land as a location for, and the erection, completion and furnish- ing of such city hall, under the provisions of this act, the coun- cil of any such city may and it is hereby authorized to issue and sell the bonds of such city to an amount not to exceed in the aggregate one million five hundred thousand dollars for pro- curing such land and erecting, completing and furnishing such city hall. Said bonds shall be issued and made payable at such time or times and shall bear interest at such rate not to exceed four per cent, per annum, payable semi-annually, as the council of such city shall determine ; said bonds, except as provided in the foregoing, shall in all respects conform to the requirements of chapter 2, division 9, title 12 of the Kevised Statutes of Ohio, 1 [May 6, 1902: 95 v. 877; 93 v. 549.] ( 1 ) This section is given as amended May 6, 1902. See Code § 216 (fourth paragraph). 737 THE OHIO MUNICIPAL CODE. Sec. 2559 — 13 R. S. [Fund to pay interest on bonds and bonds themselves at maturity.] For the purpose of paying the interest on said bonds, and for the further purpose of providing a fund for the payment of such bonds at maturity, the council of such city may use and apply any money received by such city from any gas company or electric light company under any agreement heretofore or hereafter made ; and for the purpose of providing such further sum as may be necessary to pay the interest on such bonds and the principal of the same at ma- turity, the council shall, in addition to the other levies author- ized by law, levy annually a sufficient tax therefor on all prop- erty of such city subject to taxation, and such taxes shall be levied and collected as other taxes. [93 v. 552.] 2. CLEVELAND GKOUP PLAN FOR PUBLIC BUILD- INGS. An act to create a board of supervision in the erection simulta- neously of public municipal and county buildings. * [§ 1.] That whenever any city in the state of Ohio, having a population of more, than 380,000, or the county in which the city is located, contemplates the erection of buildings for public, municipal, or county purposes within the boundaries of such city, such city by its council may request the governor of the state of Ohio to appoint a board of supervision composed of three experts, two at least of whom shall be architects, the mem- bers of which board shall receive salaries not exceeding five thousand dollars each per annum, to be fixed by the city author- ities prior to making request, upon the governor for appoint- ment, and paid by the city requesting such appointment. [§ 2.] Such board when appointed shall have the super- vision and control of the location of all public, municipal or county buildings to be erected upon ground previously ac- quired within the limits of the city, and shall have control of the size, height, style and general appearance of all such buildings, for the purpose of procuring, in their location and erection, the greatest degree of usefulness, safety and beauty. [§ 3.] No plans shall be adopted and no work carried on by such city or county, wherein such board shall be appointed, in the erection of such public, municipal or county buildings within the boundaries of such city, until all plans, specifications and locations shall have first been submitted to and approved by such board or a majority thereof. [§ 4.] Such board shall be appointed for such time as shall be requested' by the city, and the governor, at the re PUBLIC BUILDINGS. 737a quest of the city, may remove any member of such board and appoint a new member to fill the vacancy thus created, if in his judgment it is wise so to do. [May 6, 1902, 95 v. 879.] (1) See § 216 of the Code. 3, JOINT VILLAGE AND TOWNSHIP BUILDING. An act to provide for village and township to jointly enlarge, improve or erect a public building. [Sec. 1.] [Village and township may jointly enlarge, improve or erect public building.] That the electors of an incorporated village and the electors of the township in which the village is situated, may if both so determine, as herein after provided, unite in the enlargement, improvement or erection of a public building [Sec. 2.] [Application to mayor and township trustees.] vviisnever the electors of a village and township in which said village is situated desire to jointly enlarge, improve or erect a public building, application shall be made to the mayor of the village, signed by not less than twenty-five resident free- holders of said village, and an application shall also be made to the township trustees of said township, signed by not less than twenty-five resident freeholders of said township, who are not residents of said village. [Sec. 3.] [Submission of question of tax to a vote.] At the next general municipal and township election after said appli- cations have been filed with the mayor of said village and trustees of said township as provided herein, the question as to whether or not a tax shall be levied upon all the property sub- ject to taxation in said village and township for the enlarge- ment, improvement or erection of a public building, shall be submitted to the electors of said village and said township : Pro- vided, however, that ten days' notice that said question will be submitted to the electors, shall be given, by the mayor of the village and the trustees of the township, in some news- paper of general circulation in said village and township; which notice shall state the maximum amount of money pro- posed to be used in the enlargement, improvement or erection of said public building and the rate of tax proposed to be levied. [Sec. 4.] [Vote required.] If at such election two-thirds of the electors of said village and township voting, vote in favor of said improvement, the council of said village and the trus- tees of said township shall jointly take such action as is 738 THE OHIO MUNICIPAL CODE. y necessary to carry out the improvement contemplated. [1904, April 26, 97 v. 483.] 4. LEASING PUBLIC HALLS. Sec. 2566 U.S. [Leasing hall, or part thereof.] When there is a publie hall, erected by taxation, in any city of the second class or village, and the building or any part thereof may not be needed for public business the council shall lease the building or part thereof, as the case may be, for private offices, lectures, or like purposes, and for such length of time, and upon such terms as shall seem to it proper, and the money received for rents shall be forthwith paid into the treasury of the munici- pal corporation ; and when a municipal corporation and a town- ship have united in erecting such hall as aforesaid, they shall jointly have the same power to lease as above provided, and the amount received shall be divided equitably by the council and the township trustees, and the amount belonging to the municipal corporation shall be paid by the party receiving it, into the corporation treasury, and the amount belonging to the township shall be paid by such trustees into the township treasury. 1 [70 v. 55, § 1.] (1) Effect on taxation. — part so rented or leased is subject Where at municipality rents or to taxation. Seott v. Athens, 1 N. leases a part of a public hall, the P. 94. Sec. 2567 R. S. [Collection of rent, when used for certain pur- poses.] Whenever any such hall building, in whole or in part thereof, or any room or rooms, or parts of rooms therein shall be used or occupied by any city, village, or township officer, or by a justice of the peace, or by any mayor of the city or village, for the transaction of any other business than that required in the administration of public affairs, either by himself, or partner in business, it shall be the duty of the trustees of such township or council of such city or village, or of the council and trustees, acting together, as the case may be, to collect from such public officer or parties in business, such sum for rent as may be just and equitable. [70 v. 55, §2.] An act to authorize the councils of municipal corporations to permit the use of public buildings under their control. [Sec. 1.] [Council may permit use of public buildings.] That the councils of municipal corporations are hereby authorized to permit the use of public buildings under their control upon such terms and conditions as they may by ordinance provide. T1904, April 23, 97 v. 278.] INSPECTION OF BUILDINGS. 739 5. INSPECTION OF BUILDINGS. Sec. 2568 K. S. [Examination of public hall, etc., as to safety in case of fire.] On application of the owner or person having control of an opera house, hall, theater, church, schoolhouse, hospital, medical institute, asylum, or other buildings used for public assemblages, in any municipal corporation, the mayor, civil engineer, and chief engineer of the fire department, or if such corporation has no such engineer, the mayor and two members of council, shall carefully make a joint examination of such opera house, hall, theater, church, schoolhouse, hospital, medical institute, asylum, or other building to ascertain the means provided thereat and therein for the speedy and safe egress of the persons that may at any time be there assembled, and the means provided for extinguishing a fire, at or in such place ; provided, that when the assembly rooms of such church are situated upon the ground floor, with a sufficient number of low windows, in the opinion of the commission above provided for, to secure safe and yeas [easy] means of escape in case of alarm, they shall grant the certificate mentioned in the next following section. 1 [90 v. 3 ; 62 v. 139, § 3 ; 74 v. 61, § 1 ; S. & S. 636.] ( 1 ) Power of municipality to see paragraph 13, § 7 of the Code, provide for inspection of buildings, p. 52. Sec. 2569 R. S. [Certificate in such case.] If, upon such ex- amination, it is found that such opera house, hall, theater, church, schoolhouse, or other building is abundantly provided with means for speedy and safe egress of the persons who may at any time be there assembled, and, if above the first floor, that it is provided therein with water or other equally efficient agency, and proper means to apply it, so that any fire which may occur at such place can be immediately extinguished, the mayor and persons so acting with him, or a majority of the three, shall issue to such owner or person having control as aforesaid, a certificate of the fact, which shall continue in force one vear, unless sooner revoked by council. [62 v. 139, § 3; S. & S. 636.] Sec. 2570 R. S. [Re-examination in case of change in build- ing".] If any change or alteration is made in such building, the owner or person having charge of it shall notify the mayor of the fact, who shall cause to be made a re-examination in all respects like that provided for in the last section, and if upon such examination such owner, or person having control, is en- titled to such certificate as is mentioned in the last section, it 740 THE OHIO MUNICIPAL CODE. shall be issued to him, with like effect. [6.2 v. 139, § 3 ; S. & S. 636.] Sec. 2571 E. S. [Appeal of owner or person in control from refusal to issue certificate.] If any owner or person having control of such place, as aforesaid, shall feel himself aggrieved by the refusal of such officers to issue any such certificate, he may appeal from the decision to the council, which shall ap- point three disinterested persons to examine the premises, any two of whom may issue the certificate provided for in sections two thousand five hundred and sixty-nine and two thousand five hundred and seventy. [62 v. 139, § 3 ; S. & S. 636.] Sec. 2572 R. S. [Penalties against owner or person having con- trol.] Whoever, being the owner or having control as an officer, agent, or otherwise, of any opera house, hall, theater, church, schoolhouse, college, academy, seminary, infirmary, sanitarium, children's home, hospital, medical institute, asylum, or other building used for the assemblage or betterment of people, in a municipal corporation, county or township in the state of Ohio, permits it to be used when any door affording exit therefrom is locked or barred, or opens inwardly; when the place is not provided with ample means for the safe and speedy egress of the persons who may be there assembled ; when sufficient water and proper means to apply it, or other efficient means are not provided on each floor to extinguish any fire which may occur therein ; or when the certificate provided for in section twenty-five hundred and sixty-nine or section twenty-fiva hun- dred and seventy, which certificate shall also apply to holdings mentioned in section twenty-five hundred and seventy -two, as the case may be, has not been issued, or is not in full force, shall be deemed guilty of a misdemeanor, and on conviction thereof before any court of competent jurisdiction shall be lined not more than five hundred (500) dollars, nor less than fifty (50) dollars, and ten (10) dollars additional for each day or night such building is permitted to be used after such conviction is had until such changes, alterations or additions have been made sufficient to warrant the issuing of certificate by the chief inspector of workshops and factories ; [Fines for benefit of city or county.] And such fines and costs shall be recovered in the name and for the use uf the mu- nicipal corporation, if such building is located within the cor- porate limits, if not then for the use of the county in which located and suit is brought ; [Duty of mayor or prosecuting attorney.] And it shall be the duty of the mayor, with the aid of the police, or the prosecuting INSPECTION OF BUILDINGS. 741 attorney, with the aid of the sheriff, if such building is not lo- cated within a municipal corporation, to see that the provisions of this act are strictly enforced. [93 v. 34; 92 v. 408; 90 v. 4; 62 v. 139, § 3 (§ 4) ; S. & S. 636.] Sec. 2572a R. S. [Inspections and certificates dispensed with, in certain cases; notice of refusal; requirements for the issuing of certificates, etc.] That whenever any structure referred to in section 2572 shall have been inspected by the state inspector of workshops and factories, and such inspector shall have issued to the owner thereof or to his agent, a certificate that such struc- ture is properly arranged for the safe and speedy egress of per- sons who may be assembled therein, and also properly provided with the means for the extinguishment of fire at or in such structures, as now required by law, then such certificate shall dispense with other inspections and certificates required by law in regard to the safety of such structures as are mentioned in section twenty-five hundred and seventy-two ; and in case such inspector shall find on [no] inspection that such structure is not properly arranged for the safe and speedy egress of persons who may be there assembled, or not properly provided with means for the extinguishment of fire at or in such structure, as now re- quired by law, or that such structure is such as to endanger the lives of the persons who may be there assembled, from fire or other cause, he shall notify the owner, officer or agent in charge of such structure and the mayor of the municipal cor- poration, if such structure is located therein, if not then the prosecuting attorney of the county wherein the same is located, in writing, of the fact that he refuses such certificate, specifying his reasons and the alterations, additions and appliances neces- sary to be made and furnished before a certificate will be issued ; and no certificate required by law, in regard to the safety of such structure, shall be issued by the mayor or any officer or person under any provision of the law till the requirements of the foregoing notice are complied with to the satisfaction of the state inspector, and it shall be the duty of the mayor of any municipality, with the aid of the police, or the prosecuting at- torney, with the aid of the sheriff, upon receiving such notifica- tion, to prohibit the use of such buildings for the assemblage of people until the necessary changes, alterations and additions have been made and the inspector's certificate has been issued. [92 v. 409; 90 v. 4; 88 v. 85; 86 v. 46.] Sec. 2572b R. S. [When inspections to be made.] It shall be the duty of the chief inspector * of workshops and factories, or his district inspectors, to make inspection of such build- 742 THE OHIO MUNICIPAL CODE. ings as are provided for in sections 2568, 2569 and 2572 of the Revised Statutes of Ohio, as often as he may deem necessary, or upon the written demand of the agent or owner of such struc- ture, or upon the written request of five or more citizens of the municipal corporation, county or township wherein such struc- ture is located, [Inspector to have access to buildings.] and the chief in- spector or district, inspectors shall have access to all such build- ings at any time it may be deemed necessary to inspect same. 2 [93 v. 35 ; 92 v. 409 ; 87 v. 279 ; 86 v. 46, 47.] (1) Duties of inspector. — It is v. Commissioners of Ottawa Co., 5 no part of the duties of building N. P., 260, 262. inspectors to see that the funds and (2) Purpose of inspection. records are placed in what they The purpose of these statutes is to regard as a safe and suitable build- insure safe buildings for the as- ing for that purpose. State ex rel. semblages of the people. lb. Sec. 2573 R. S. [Duties of factory-men, hotel-keepers, etc., as to fire-escapes.] l It shall be the duty of any owner 2 or agent for owner of any factory, workship, tenement house, 3 inn, or public house, if such factory, workshop, tenement house, inn, or public house be more than two stories high, 4 to provide a convenient exit from the different upper stories of said build- ing, which shall be easily accessible in case of fire, and any owner or person having control of any such inn or public house where travelers or boarders are lodged in any story above the second story of the building, shall also provide a good rope or other life line for each sleeping room -for guests in such stories. 5 [1883, April 19 : 80 v. 187 ; Kev. Stat. 1880 ; 74 v. 176, § 1.] (1) Section not limited to mu= requires a fire escape from the sec- nicipality. — This section is not ond as well as the higher stories, confined to buildings in municipali- Rose v. King, 49 O. S. 213. ties. Rose v. King, 49 O. S. 213. (5) Exercise of police power. (2) Meaning of "owner." — — A statute requiring fire escapes Does not mean owner of the fee, but on certain buildings and on failure owner of the factory. Lee v. Smith, to erect them, providing a punish- 42 O. S. 458. merit by fine and an injunction to (3) Tenement house defined. enjoin use of building, is but an — See Rose v. King, 49 O. S. 213. exercise of police power. Cincin- (4) More than two stories. — nati v. Steinkamp, 54 O. S. 284. A building more than two stories INSPECTION OF BUILDINGS. 743 Sec. 2574 R. S. [Duty of mayor to require such escapes; pen- alty for failure to comply.] It shall be the duty of the mayor of each city or village to require the owner or agent for owner of any factory, workshop, tenement house, or inn or public house, within the meaning of the next preceding section, 1 to comply with the requirements of said section within sixty days from the serving of a notice by the mayor so to do, 2 unless such owner or agent for owner shall have previously complied with the requirements of said preceding section, and if any such owner or agent of owner neglects or refuses to comply with the requirements of the next preceding section within the time specified in said notice, he shall forfeit not less than fifty nor more than three hundred dollars for each and every month he so fails to comply therewith, the amounts so forfeited to be recovered in the name of and for the use of such city or village in an action in the police court or other competent tribu- nal; such owner or agent for owner may also be held for civil damages to the party injured. [1883, April 19 : 80 v. 187, 188 ; Eev. Stat. 1880 ; 74 v. 176, § 2 ; 76 v. 33, § 1.] (1) This refers to § 2573 R. S., recovering from owner of tenement wpra. house for injuries received through (2) Effect of failure to give neglect to comply with § 2573 R. S. notice. — Failure of mayor to give Rose v. King, 49 O. S. 213. notice does not prevent tenant from Sec. 2575 R. S. [Mayor, etc., to examine building once a year; compensation.] It shall be the duty of the mayor of such city or village, personally, or by the marshal or head of police of such city or village, or other proper person whom the mayor may appoint acting under the direction of the mayor, as in- spectors of fire-escapes to carefully examine such factories, workshops, tenement houses, inns or public houses once in each year, and report all violations of the provisions of sections twenty-five hundred and seventy-three and twenty-five hundred and seventy- four to the council of such city or village, when pro- ceedings shall be commenced, without unnecessary delay, against the person so offending, and said mayor, marshal, or head of police, or person so appointed by the mayor to act as inspector of fire-escapes shall be entitled to receive for said notices and said examination such fees as the council may by ordinance provide. [1883, April 19: 80 v. 187, 188; Rev. Stat 1880; 74 v. 176, § 3.] 743a THE OHIO MUNICIPAL CODE. An act to prevent loss of life in public halls and theaters. [Sec. 1.] [Public halls and theaters to be provided with dia- grams of aisles and exits for guidance of audience in case of fire.] That whoever, being the owner or lessee, or having control as an officer, agent or otherwise, of any opera house, theater or hall, permits the same to be used for the purpose of public assemblies without having in a conspicuous place for distribu- tion a diagram of the aisles and all exits of the place, each floor to be shown separately, with instructions designated on said diagram for the guidance of audiences in case of fire or other casualties shall be fined not more than one thousand dollars and not less than twenty-five dollars for each and every offense; provided, however, that it shall be sufficient to print such diagram in programs, on separate pages thereof unencum- bered by other matter, to which, in addition, attention must be called by notice printed over the program proper; the dia- gram provided for in this section to be drawn upon a scale of not less than twenty feet to the inch. [Sec. 2.] [Exits to be made conspicuous and illuminated.] That whoever, being the owner or lessee, or having control as an officer, agent or otherwise, of any opera house, theater or hall having a seating capacity of seven hundred and fifty or more, each seat space computed at twenty by thirty inches, per- mits the same to be used for the purpose of public assemblies without having stationed at each outside exit during the entire time of every program rendered a male person of the age of eighteen years or upwards, and having each and every outside exit during the entire time of every program rendered a male person of the age of eighteen [years] or upwards, and having each and every outside exit thereof painted or lettered " exit," each letter to be not less than six inches in length and three inches in breadth, and each " exit " to be illuminated by an electric light to be operated on a circuit independent of any other lights and to be operated from the box office in said building; or by a gas light fed by an independent pipe from the front or end of the building opposite the stage and discon- nected from any other pipe supplying such building, or in case there is neither electrical light nor gas light in the municipality INSPECTION OF BUILDINGS. 743b or township in which such building is located, there may be used a lamp or lantern in which nonexplosive oils as a fuel must be used, and each of said lights to show a red light; the switchboard of such electric light and stopcock for the gas to be enclosed securely under lock and key; shall be fined not more than one thousand dollars nor less than twenty-five dollars. [Sec. 3.] [Asbestos or steel curtain to be provided.] That whoever, being the owner or having control as an officer, agent, or otherwise of an opera house, theater, or hall having a seating capacity of seven hundred and fifty or more, each seat space being computed as twenty by thirty inches, permits the same to be used for the purpose of public assemblies without having an asbestos or steel stage curtain of standard quality that will stand a fi>e test satisfactory to the officers named in section five hereof, said curtain to lap over the stage opening the sides and top not less than twelve inches; to have attached to said curtain at top and bottom, the full width of the curtain, iron gas piping not less than one and one-half inches inside diameter; all guide wires of such curtain to be of steel and to be not less than one-fourth inches in diameter ; [Proscenium wall.] and without having a proccenium wall in each of such buildings either of brick or other fire proof ma- terial in a manner satisfactory to the officers named in section five hereof ; and the opening in said proscenium wall other than the stage opening, to be provided with fire proof doors, shall be fined not more than one thousand dollars nor less than twenty-five dollars for each and every such offense. [Sec. 4.] [Penalty for allowing wire, scenery, etc., to obstruct curtain.] That whoever, being the owner or lessee or having the control as an officer, agent or otherwise, of any opera house, theater or hall having a seating capacity of seven hundred and fifty or more, computing each seat space at twenty by thirty inches permits the same to be used for the purpose of public (assemblies or allows any wire, light, reflector, scenery or any other thing whatsoever to stand in or across the space that the asbestos curtain, required by section 3 of this act, would 743c THE OHIO MUNICIPAL CODE. need for its complete downward passage shall be fined not more than one thousand dollars nor less than twenty-five dollars. [Sec. 5.] [Examination of theaters and halls and certificate of compliance.] It shall be the duty of the mayor, chief of fire department and building inspector of any municipal corpora- tion, or if such corporation has no chief of police or building inspector, then the mayor and two members of council, and in townships, the trustees thereof to carefully make an examina- tion of the buildings described in sections 1 and 2 of this act, to ascertain whether the provisions of this act have been com- plied with ; and if upon such examination it is found that such building is arranged and provided for in all things as required by the provisions of this act, then such mayor, chief of police and building inspector or such mayor and members of council or the trustees of the township shall issue to the owner or person having control of the building described in this act a certificate of such fact, which shall continue in force one year ; provided, however, that in case such officers shall find upon ex- amination or inspection that any building or structure de- scribed in this act is not properly arranged as herein provided, they shall notify the owner, lessee, officer having control, agent or otherwise of such structure or building of such fact, and it shall be the duty of the mayor of a municipality, with the aid of the police or of the prosecuting attorney with the aid of the sheriff, to prohibit the use of such building for the assemblage of people until the necessary changes have been made, where- upon a certificate shall be issued to the owner, lessee or man- ager of such building as first provided in this section. [This act not to apply to open air or summer theaters.] Pro- vided that nothing in this act shall be held to apply to buildings known as open air or summer theaters located in parks or other public places, in which all the seats are upon the first or ground floor and in which the auditorium is entirely open at the sides. [Sec. 6.J [Power of council to make further regulations.] The council of any municipal corporation may make such fur- ther regulations as it may consider necessary for public safety. INSPECTION OF BUILDINGS. 743d [Sec. 7.] [When this act takes effect.] This act shall take effect on September 1st, 1904. [1904, April 23, 97 v. 264.] 744 THE OHIO MUNICIPAL CODE. XV PLATS. 1 1. ORIGINAL PLATS. Sec. 2597 R. S. [Proprietor to cause plat of proposed village, etc., to be made.] When any person wishes to lay out a ham- or village, or subdivision or addition to any municipal let corporation, he shall cause it to be surveyed, and a plat or map of it made by a competent surveyor; in which plat or map shall be particularly described and set forth the streets, alleys, commons, or public grounds, and all in-lots and out-lots and fractional lots within or adjacent to such hamlet or village, the description to include the courses, boundaries and extent 3 [29 v. 350, § 1 ; 47 v. 52, § 1 ; S. & C. 1482 ; S. & C. 1489.] (1) Sections on plats. — The sections carried under this heading formed part of Chap. 11, Div. 8, Ti- tle XII, R. S. All sections not car- ried here are repealed by the Code. Chapter 12 of Div. 8, Title XII, relating to platting commission is substantially retained in § 142 of the Code, page 367. (2) See note "Status of Ham- lets " under § 1 of the Code. (3) Plat as a dedication. — A plat duly made and recorded ac- cording to all the requirements of the statutes constitutes a statutory dedication of the property so plat- ted, to public use. Fulton v. Mehr- enfeld, 8 O. S. 440; Wisby v. Bonte, 19 0. S. 238; Winslow v. Cincin- nati, 6 N. P. 47. When all the statutory require- ments have been complied with, no other or further act of acceptance on the part of the municipality is required. Sullivan v. Columbus, 12 Dec., 650; Fulton v. Mehrenfeld, 8 O. S. 440. A plat, to operate as a dedication, must mark out grounds for use of the public. A plat setting apart grounds marked " The A R. R. De- pot," will not be a dedication either to the public or the railroad com- pany. Todd v. R. R. Co., 19 O. S. 514. Condition in dedication. — A plat marking out sidewalk lines on the street dedicated does not bind the municipality to observe these lines in constructing sidewalks, al- though council has by a general resolution accepted the dedication, and council can fix the sidewalk line at a different place. Cox v. Lan- caster, 24 C. C. 265; 2 C. C. (N. S.) 218 (aff'd, 69 O. S. 576). Defective plat not a statutory dedication. — A plat not made ac- cording to the statutory require- ments, or not acknowledged accord- ing to statute, does not operate as a statutory dedication. Stephenson v. Leesburgh, 33 O. S. 475; Lock- land v. Smiley, 26 O. S. 94; Doren v. Horton, 1 Disney 401; Ashley v. Toledo, 13 C. C. 1; Reynolds v. Newton, 14 C. C. 433; Satchell v. Doram, 4 O. S. 542. PLATS. 745 Such plat may be revoked at any territory. It does not require that time. Lockland v. Smiley, supra. the territory shall be incorporated But a defective plat, though not as a municipal corporation. Wal- valid as a statutory dedication, may worth v. Collinwood, 8 C. C. 477, show an intention to dedicate, and, 478. if there is a proper acceptance, may The section does not give author- go to make up a common law ded- ity to enter upon lands to survey ication. Daiber v. Scott, 3 C. C. and plat an addition to a municipal 313. corporation against the will of the Common law dedication. — See tenant in possession. Nigh v. note under § 2650 R. S., re-enacted Keifer, 5 C. C. 1. in § 28 of the Code, page 128. Rights of vendee, after plat Presumption of correct plat," made. — See Doren v. Horton, 1 when municipality has been legally Disney, 401 ; Huber v. Gazley, 18 O. established, see Stephenson v. Lees- 18; Reynolds v. Newton, 14 C. C. burgh, 33 O. S. 475. 433; Ashley v. Toledo, 13 C. C. 1 Scope of section.— The statute (aff'd, 59 0. S. 631); Myers v. gives authority to any person to Toledo, 18 C. C. 817. make a plat of a certain division ol Sec. 2598 R. S. [What such plat shall contain.] All the in- lots intended for sale shall be numbered in progressive numbers, or by the squares in which they are situated, and their precise length and width shall be stated on such plat or map; and all out-lots which do not exceed ten acres in size, shall in like manner be surveyed and numbered, and their precise lenguh and width stated on the plat or map, together with any streets, alleys, or roads which divide or border on the same. [29 v. 350, § 2 S. & C. 1483.] Sec. 2599 R. S. [Corner-stone to be planted.] The proprie- tor of the hamlet or village, at the time of surveying and laying it out, shall plant and fix, at the corner of the public ground, or a public lot, if any there be, and if uhere be none, then at the corner of one of the in-lots, and at the corner of each out-lot, a good and sufficient stone, of such size and dimensions, and in such manner, as the surveyor shall direct, for a corner from which to make future surveys ; and the point or points where the same may be found shall be designated on the plat or map. [29 v. 350, § 3 ; S. & C. 1483.] Sec. 2600 R. S. [Plat to be acknowledged and recorded.] Af- ter the plat or map is completed, it shall be certified by the surveyor, and acknowledged by the owner or owners before some officer authorized to take the acknowledgment of deeds, who shall certify his official act on the plat or map; and if any owner is a non-resident of the state, his agent, -authorized by writing, may make such acknowledgment; and such plat or map, and if the execution is by agent, his written authority, 746 THE OHIO MUNICIPAL CODE. shall thereupon be recorded in the office of the county recorder. 1 [29 v. 350, § 4; S. & C. 1483.] (1) Recording plats. — A plat and acknowledged cannot operate as operated as a dedication, though not a statutory dedication. Doren v. recorded, where no statute required Horton, 1 Disney, 401 ; Ashley v. recording. Williams v. Presby- Toledo, 13 C. C. 1 ; and see notes terian " Society, 1 O. S. 478. under preceding section. But now a plat not duly recorded Sec. 2601 R. S. [Plat of subdivisions; its acknowledgment and record; fee in corporation, except, etc.; plat to correspond with maps of platting commission; when to be approved by council.] A proprietor of lots or grounds in a municipal corporation, who subdivides or lays the same out for sale, shall cause to be made an accurate map or plat of such subdivision, describing with certainty all grounds laid out or granted for streets, al- leys, ways, commons, or other public uses ; also, all lots sold, or intended for sale, by progressive numbers, or by the squares in which they are situated, and the precise length and width of each lot sold, or intended for sale ; which map or plat shall be subscribed by such proprietor, or his agent, duly authorized by writing, acknowledged before an officer authorized to take the acknowledgment of deeds, who shall certify the acknowledgment of the instrument, and recorded in the office of the recorder of the county; and thereupon the map or plat so recorded shall be deemed a sufficient conveyance to vest in the municipal cor- poration the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, des- ignated, or intended : provided, that no such map or plat of any addition within the limits of any municipal corporation, when there are no 1 record plats adopted by a platting commission or board of public works, shall be recorded until the engineer of the municipal corporation certifies that the streets, as laid down on the plats of such addition, correspond with those laid down on the recorded plats of the platting commission or board of public works, and when there are streets laid down in addition to those adopted by a platting commission or board of public works, or in any municipal corporation where no plat- ting commission is or has been in existence, no such plat shall be recorded until the same shall have been approved by the council of such municipal corporation 2 [73 v. 60, § 6; (S. & C. 1483).! PLATS. 747 (1) The word "no" was "on" Character of municipality's in the original act of 1873 (73 O. title.— The title, which a munici- L go). P al corporation acquires, under § (2) Construction of former 2601, to streets dedicated by a pro- statutes relating to recording, etc., prietor who sub-divides lots for of plats, see Lebanon v. Warren sale, is held for the use of the pub- Co., 9 O. 80; Le Clercq v. Gallipolis, lie for street purposes. Callen v. 7 O. (1st pt.) 217; Crippen v. Ohio Electric Light Co., 66 0. S. 166; University, 12 O. 96; Huber v. Gaz- Keefe v. R. R. Co., 8 N. P. 466; ley, 18 O. 18; McLaughlin v. Stev- McLean v. Electric Light Co., 9 B. ens, 18 O. 94; Langley v. Gallipolis, 65. 2 O. S. 107; Satchell v. Doram, Purpose of section, has no rela- 4 O. S. 542; Bd. of Ed. v. Edson, tion to assessments. See Gibson v. 18 0. S. 221; Seegar v. Harrison, Cincinnati, 8 N. P. 466. 25 O. S. 14. Effect of record of plat not prop- Plat as a dedication.— See notes erly approved, see Abraham v. Cin- under § 2597 R. S. supra. cinnati, 13 Dec. 619. Sec. 2602 R. S. [Penalty aguinst making record contrary to this chapter.] Any county recorder who records such map or plat contrary to the provisions of this chapter, shall forfeit and pay any sum not more than five hundred dollars nor less than, one hundred dollars, to be recovered with costs in a civil action, in the name and for the use of the county, by the prose- cuting attorney. [73 v. 61, § 3.] Sec. 2603 R. S. [Penalty for selling lots contrary to this chap- ter. ] If a proprietor, or his agent or attorney, sells any lot or lots in any plan of subdivision of, or addition to the lots orig- inally laid out in a municipal corporation, before a map or plat of such subdivision or addition shall have been recorded, as herein required, such proprietor, agent, or attorney shall forfeit and pay for each lot sold the sum of fifty dollars, to be recov- ered with costs, in a civil action, in the name and for the use of the municipal corporation, before any court of competent jurisdiction, at the suit of the solicitor or any citizen of the corporation. [29 v. 350, § 7 ; S. & C. 1483.] Sec. 2604 R. S. [Fee in county, except, etc.] The plats or maps, other than those mentioned in section two thousand six hundred and one, shall be deemed in law a sufficient convey- ance to vest the fee simple of all such parcels of land as are therein expressed, named, or intended for public use, in the county in which the hamlet or village is situated, for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever. 1 [29 v. 350, § 8 ; S. & C. 1484.] ( 1 ) Title to streets. — The fee subdivision forming a village or ad- of streets laid out on a plat of a dition to municipal corporation 748 THE OHIO MUNICIPAL CODE. vests in the county, and the period vested is 21 years. Walworth v. Collinwood, 8 C. C. 477. Sec. 2605 R. S. [Penalty for neglect to plant corner-stone, etc.] If any person lays out a hamlet or village, or addition to a municipal corporation, and neglects to plant the corner-stones therein, or causes the same to be surveyed or platted in any other manner than that which is prescribed in this chapter, he shall forfeit and pay the sum of one hundred dollars and costs of suit, to be recovered in a civil action, in the name of the county treasurer, for the use of the county. [29 v. 350, § 9; S. & C. 1485.] Sec. 2606 It. S. [Penalty for disposing of lot before provisions of chapter complied with.] If any person disposes of, or offers for sale, or leases for a time exceeding five years, any in-lot or out-lot, or any part of either, in any hamlet or village, whether incorporated or not, or in any addition to any municipal cor- poration, before the requisitions of this title are complied with, he shall forfeit and pay the sum of twenty-five dollars for each lot or part of lot so sold, or offered for sale, or leased, to be recovered, with costs, in a civil action, in the name of the county treasurer, for the use of the county. 1 [29 v. 350, § 10 ; S. & C. I486.] ( 1 ) Contract for sale is valid, according to terms of the statute, although the village lot has not Strong v. Darling et al., 9 O. 201. been surveyed, platted, and recorded Sec. 2607 E. S. [Directors to lay out village where county seat located: how governed; penalties.] The directors appoint- ed by the court of common pleas, to lay out a village, where a seat of justice has been located on lands upon which no muni- cipal corporation is situated, shall be governed by the provi- sions of this chapter, and liable to the same penalties pre- scribed in section two thousand six hundred and two. [29 v. 350, § 11; S. & C. I486.] 2. VACATING PLATS. 1 ' Sec. 2608 R. S. [Vacation of plat.] The court of common pleas, upon the application of two-thirds of the proprietors thereof, shall have power to alter or vacate the plat of any municipal corporation, addition thereto, or parts thereof, PLATS. . 749 within the county, as hereinafter specified. [38 v. 32, § 1 ; S. & C. 1488.] ( 1 ) The sections carried here the sections of this subdivision are formed subdivision 2, Chap. 11, repealed. l>iv. 8, Title XII., R. S. None of Sec. 2609 R. S. [Application for vacating or altering plat; no- tice.] All applications for ^Mating or altering any plat, addi- tion, or part thereof, shall be 1^ petition in writing, filed with the clerk of the court of common pleas, and the applicant or applicants shall give thirty days' notice thereof by publication in some newspaper printed in the county and of general circu- lation therein; which notice shall set forth briefly the part or parts of the plat or addition to be vacated. [1886, February 25: 83 v. 24; Kev. Stat. 1880; 38 v. 32, § 4; (S. & C. 1488).] Sec. 2610 U.S. [When court may alter or vacate plat; any person feeling interested may be made party defendant] If the petitioners produce to the court satisfactory evidence that the notice required by the preceding section has been given, and that two-thirds of all the persons owning lots or parts thereof in the corporation or the addition, as the case may be, or their authorized agents or attorneys, have made application to have the whole or a part of such corporation or addition, altered or vacated, the court shall, in its discretion, proceed to alter or vacate such corporation or addition, or any part of either, as the case may be; and the proceedings shall be recorded by the clerk, in the records of the court, a copy of which record shall be made and certified under the seal of the court, by the clerk thereof, and shall, by the parties applying for such vacation or alteration, within thirty days from the rising of the court, be deposited with the recorder of the county, who shall record the same; provided, that the vacation of any municipal cor- poration or addition, or part thereof, shall not vacate any part of a state or county road. At the term at which the notice shall be given, as is provided for in section twenty-six hundred and nine, or at any subsequent term during the pendency of the application, any person feeling interested in the proceedings, may, upon motion, be made a party defendant to the applica- tion; in which case, upon final hearing, the party succeeding shall have judgment against the other, for the costs of the proceedings, and execution may issue therefor as in other cases. [29 v. 352, §§ 3, 4; S. & C. 1487.] Sec. 2611 It. S. [Commons may be changed into streets: when and how.] On application made, and notice given according to 750 THE OHIO MUNICIPAL CODE. the provisions of this subdivision, the court of common pleas shall have power to change any commons that may be included in the plat of any municipal corporation into streets, and to cause such change to be recorded as is provided by section two thousand six hundred and ten. [29 v. 352, § 6 ; S. & C. 1487.] Sec. 2612 U.S. [Clerk's fees.] The clerk of the court shall be entitled, for recording a plat required to be recorded under the provisions of this chapter and for other services required of him, the same fees as are allowed to him for similar services by the provisions regulating his fees. [29 v. 352, § 5; 26 v. 18, § 5; S. & C. 1487.] Sec. 2613 R. S. [Application for vacation and assessment of damages.] If the court is of opinion that any person owning any lot in such plat, addition, or parts thereof proposed to be vacated or altered, not assenting thereto, will sustain damage thereby, it may proceed to hear proof in reference thereto, and may render judgment against the petitioners for such dam- ages as it may think proper and just, and the same shall be assessed by the court against the petitioners ratably, according to the value of the property owned by the petitioners, as the same stands taxed on the tax-list of said county; and when necessary, the court shall appoint a guardian ad litem for all minors or persons of. insane mind, who may be interested in the premises ; and the judgment of the court vacating such plat, addition, or parts thereof, shall be conditional upon the pay- ment of the damages thus assessed. [38 v. 32, §§ 2, 3 ; S. & C. 1488.] Sec. 2614 U.S. [Changing of incorporate town or addition.] Any person or persons owning, either jointly or severally, and either in their own right or in trust, and having the legal title to, any land laid out in town lots, not within the limits or subject to the control of any municipal corporation, may change such lots and the streets and alleys bounding the same, by making, acknowledging and having recorded, as in this chapter provided, a new plat of such land, and having the proper transfers made in the office of the county auditor: pro- vided, that no such change shall be made if it affects injuriously any lots on the streets or alleys, 1 or within the plat so changed, unless all the owners of the lots so affected are parties joining in making the change, or they give their consent in writing on the new plat, and the same be recorded therewith; and any change of a town plat made as in this section provided shall PLATS. 751 have the same force and effect as if made by the judgment of a court having jurisdiction thereof. [76 v. 88, §§ 1, 2.] (1) Change must not affect man, 26 B. 73 edit; if streets or streets. — Owner may change lots alleys are changed, proceedings in provided no alterations are made in court must be had. lb. streets or alleys. Huling v. Huff- Sec. 2614a R. S. [Proceedings to vacate lots not within a mu- nicipal corporation; duty of county auditor and recorder.] Any person or persons owning, either jointly or severally, and either in their own right or in trust, and having the legal title to any land laid out in town lots, or to any whole block or blocks of lots in any land laid out in town lots, and not within the limits or under the control of any municipal corporation, may vacate said lots or block or blocks of lots upon giving notice of his, her or their intention so to do, for two weeks in some news- paper published, and of general circulation, in the county where said land lies, and if any of said lots have been sold, personal written notice to the owner or owners of said lots so sold, and if no notice of an injunction granted against such vaca- tion is served upon the auditor of the county where said lands lie, or any notice of dissent from said vacation, by the owners of any of said lots, within ten days after the completion of said notice, the said auditor shall and he is hereby authorized and required to make all necessary changes and transfers in and upon his duplicate after said ten days from the time of the completion of said notice; the proof of which shall be fur- nished said auditor, and he shall give to the party or parties at whose instance such vacation is made, a certificate stating that such lots or block or blocks of lots have been vacated, upon the presentation of which to the recorder of said county, he shall write upon such plat of .lots, block or blocks as they appear on the plat of such lots the word " vacated," and said vacation shall have the same effect as if made by the judgment of a court having jurisdiction thereof. The said auditor and recorder shall be entitled to such fees for their services under this section as they are entitled by law in like cases, which shall be paid by the party or parties making such vacation. [1883, April 18? 80 v. 180.] 3. KEVISION OF PLATS. 1 Sec. 2615 U.S. [Who shall revise and re-number lots.] Where the lots of any municipal corporation are not numbered consecutively upon the original plat thereof, and the plats 752 THE OHIO MUNICIPAL CODE. of additions thereto, or subdivisions thereof, it shall be lawful for the auditor and recorder of the county in which such munici- pal corporation may be situate, in conjunction with some person to be appointed by the mayor of such municipal corporation, to make a revision of the numbers of all the in-lots and out-lots of such municipal corporation, as the same stand upon record, and to number anew all the lots, so that the in-lots shall have but one consecutive series of numbers, beginning with number one ; and the out-lots shall have but one similar series of num- bers, also beginning with number one. [46 v. 34, § 1 ; S. & C. 1489.] (1) None of the sections of this subdivision are repealed by the Code. Sec. 2616 R. S. [Mode of re-numbering, etc.] Such auditor and recorder, with their associate, to be appointed as aforesaid, shall make a schedule of all the in-lots of any such municipal corporation, beginning with the original plat thereof, setting down the lots in the same order of their numbers, and placing opposite thereto the new numbers which shall be assigned to the respective lots, following in the same manner with the plats of addition and subdivision, according to their priority in date of record, so that the first column shall contain the old numbers of the in-lots in their consecutive order and the second column shall exhibit opposite to such numbers respectively, the new numbers assigned to each of said lots ; and in the same manner, they shall make a schedule of the out-lots ; such schedule shall accurately and distinctly indicate the plat in which such in-lot or out-lot originally stands upon record; and it shall be the duty of the auditor and recorder to place such schedule on record in their respective offices. [46 v. 34, § 2 ; S. & C. 1489.] Sec. 2617 R. S. [Shall be assessed and legally known by their new numbers.] When the revision and re-numbering of the lots in any such municipal corporation have been made, and the schedule thereof recorded, as provided in the preceding section, the lots shall be assessed and entered upon the tax-list for taxation, according to their new numbers ; and in all the opera- tions of the assessment and collection of taxes they shall be lawfully known and designated by the new numbers given to them under the authority of this subdivision ; and all convey- ances of the same made by the new numbers shall be sufficient to pass the title. [46 v. 34, § 3 ; S. & C. 1490.] PLATS. 753 Sec. 2618 U.S. [How expenses of re-numbering paid.] When such revision and re-numbering are done at the request of the corporate authority, of any such municipal corporation, the expenses shall be paid by such corporation; but the county commissioners of any county in which any unincorporated hamlet or village may be situated, shall have authority to direct the auditor and recorder to make such revision and re-number- ing of such unincorporated hamlet or village, and cause the expenses thereof to be paid out of the county treasury ; and they may direct the auditor and recorder to make such revision and re-numbering of an incorporated hamlet or village, if the commissioners are of opinion that such revision and re-number- ing are necessarv for convenience and efficiency in taxation. [46 v. 34, § 4; S. & C. 1490.] Sec. 2619 R. S. [How additions or subdivisions are to be num- bered after such revision.] After the revision is made and re- corded, as hereinbefore provided, every person who lays off lots as an addition to such municipal corporation, or who makes a subdivision of lots therein, shall number the lots so divided upon his plat in regular consecutive numbers, commencing with the next number after the highest number of such in-lots or out-lots, as the same shaall be ascertained by the recorder from a careful examination of the original records and revisions. [46 v. 34, § 5 ; S. & C. 1490.] Sec. 2620 U.S. [Compensation.] The auditor, recorder, and their associate, shall each receive the sum of two dollars per day for their services under this subdivision. [46 v. 34, § 6 ; S. & C. 1490.] 4. LOST OK DESTEOYED RECOKDS. 1 Sec. 2621 R. S. [Application to supply lost or destroyed rec- ords.] It shall be lawful for any ten persons, their agents or at- torneys, owning or being interested in any lots of land in any municipal corporation, where the original plat, or any addition thereto, has been recorded in the records of the county in which such municipal corporation is situated, and the records and original plat thereof have been lost or destroyed, to make application in writing to the county commissioners of such county to have the records of the plat or plats so lost or destroyed supplied, which application shall be filed with the auditor of such county. [70 v. 65, § 1.] ( 1 ) None of the provisions of this subdivision are repealed by the Code. 754 THE OHIO MUNICIPAL CODE. Sec. 2622 R. S. [Publication of notice of such application.] Upon the filing of the application, it shall be the duty of the auditor of such county to give notice, by publication for two consecutive weeks in some newspaper published and of general circulation in the county, or if there be no newspaper published in such county, then in some newspaper of general circulation therein, of the filing of the application as aforesaid, and also to notify the county commissioners thereof. [70 v. 65, § 2.] Sec. 2623 R. S. [County commissioners to appoint surveyor, etc.; duties of surveyor.] It shall be the duty of the commis- sioners of such county, upon the filing of the application, and the giving of the notice thereof, as aforesaid, forthwith to employ a competent surveyor, who, after being duly sworn to well and faithfully discharge the duties assigned him, shall proceed to re-plat such municipal corporation according to the original plan or plat of the same; and for the purpose of enabling him more easily to find the lines and corners of streets, lanes, alleys, and lots, such surveyor may call and examine witnesses, under oath or otherwise, and when he shall have fully performed all the duties assigned him, and made a plat of such municipal corporation, he shall make and attach his certificate to such plat that the same is a correct copy of the original plat of such municipal corporation, as he verily believes, together with the costs and expenses of making the same, and forthwith file it with the auditor of the county. [70 v. 65, § 3.] Sec. 2624 R. S. [Record of plat and certificate.] Upon the filing of the plat and certificate by the surveyor, the commis sioners of the county shall cause the same to be recorded in the office of the recorder of the county; and when the plat and certificate shall have been recorded, the record, or a copy thereof, certified to by the recorder, shall be prima facie evi- dence of the plat of the municipal corporation, in all the courts of this state. [70 v. 66 y § 4.] Sec. 2625 R. S. [Record of proceedings by county auditor.] It shall be the duty of the auditor of such county to keep a full and complete record of the proceedings, as aforesaid, in the commissioners , journal, and for which he shall receive such compensation as is allowed by law for similar services; and the surveyor and recorder aforesaid shall receive and be paid out of the county fund of such county, on the order of the county auditor, for their services, such fees as are allowed by law for similar work. [70 v. 65, § 5.] STREETS. 75i XVI STREETS. 1. STKEETS ON STATE LANDS. Sec. 625 R. S. [No streets, alleys, or roads shall be laid out through lands belonging to benevolent institutions.] No streets, alleys, or roads, shall be laid out, or established through or over the lands belonging to any of the public institutions of the state, without the special permission of the General Assembly. [49 v. 110 (119), § 1; S. & C. 181.] 2. COUNTY BRIDGES AND EOADS IN MUNICIPAL LIMITS. Sec. 860 R. S. [Commissioners shall construct and repair bridges, except, etc.; demand of portion of bridge tax in Hamil- ton Co.] The commissioners shall construct and keep in repair all necessary bridges over streams and public canals on all state and county roads, free turnpikes, improved roads, aban- doned turnpikes and plank roads in common public use, except only such bridges as are wholly in such cities and villages having by law the right to demand, and do demand and receive part of the bridge fund levied upon property within the same ; and when they do not demand and receive said portion of bridge tax the commissioners shall construct and keep in repair all bridges in such cities and villages. Provided, that in all cases, except counties containing a city of the first grade of the first class, the granting of the demand, made by any city or village for its portion of the bridge tax, shall be optional with the said board of commissioners. 1 [91 v. 19 ; 83 v. 29 ; Rev. Stat. 1880; 69 v. 61, § 1 ; 36 v. 51, § 1 ; (S. & C. 193).] (1) Bridges in municipal lim- fund. Commissioners v. By. Co., its — Rights of county. — County 45 O. S. 401. See further Perry commissioners cannot recover for Co. v. R. R. Co., 43 O. S. 451. damages to bridge in municipality County cannot by mandamus which receives part of the bridge compel municipality to assume con- 756 THE OHIO MUNICIPAL CODE. trol of bridge. State ex rel. Com- missioners v. Cincinnati, 4 N. P. 313. Duty and liability of county. — County not required to make or re- pair bridges in municipalities hav- ing right to part of bridge fund. State ex rel. Commissioners v. Cin- cinnati, 4 N. P. 313. See further, note (2) to § 28 of the Code. As to duty where municipality receives no part of bridge fund, see Piqua v. Geist, 59 O. S. 163; Newark v. McDowell, 16 C. C. 556, and see § 4938 R. S. infra. Rights of municipality as to con- trol over such bridges, see note (2) under § 28 of the Code Duty and liability of municipal- ity—As to the liability of munic- ipality for injuries on such bridges, see note "Where duty of county to repair," page 118. Construction of section. — In connection with §2824 R. S. (re- lating to tax levies for bridge pur- poses ) , see State ex rel. v. Commis- sioners, 4 N. P. 343. In connection with § 4938 R. S., see Commissioners v. Ry. Co., 45 O. S. 401. Township roads in municipal limits, improvement of, see 97 O. L. 94, 550, and amendments; 98 O. L. 155, 292; R. S. §§4686-1 to 4686-25 inclusive. Duties of Road Superintendents, see 98 O. L. 335; §§4717, 4715a, 4716, 4729, 4730 R. S. Sec. 4938 R. S. [Commissioners must build bridges in certain cities and villages.] The commissioners of the several coun- ties shall cause to be constructed and kept in repair, in the manner prescribed by law all necessary bridges in villages and cities not having the right to demand and receive any portion of the bridge fund levied upon property within such corpora- tions, on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plankroads, which are of general and public utility, running into or through any such village or city. 1 [69 v. 61, § 1.] (1) See notes to § 860 R. S. supra. Scope of power. — Bridge con- structed must not interfere with navigation. Hickok v. Hine, 23 O. S. 523. Whether bridge is necessary in particular case is to be determined by the commissioners and the courts will not interfere with their exercise of discretion. State ex rel. v. Commissioners, 49 O. S. 301. Sec. 2824 R. S. [Levy of taxes for county road and bridge pur- poses.] The commissioners, at their March or June sessions, annually, may levy on each dollar of valuation of taxable prop- erty within their county, for road and bridge purposes, as follows; In a county where the valuation of taxable property exceeds eighty millions and does not exceed one hundred and twenty millions dollars, five-tenths of a mill ; where the amount exceeds fifty millions and does not exceed eighty millions, seven-tenths of a mill; where the amount exceeds twenty mil- ROADS IN MUNICIPAL LIMITS. 757 lions and does not exceed fifty millions of dollars, one mill and one-tenth ; where the amount exceeds ten millions and does not exceed twenty millions of dollars, one mill and five-tenths; where the amount exceeds five millions and does not exceed ten millions of dollars, three mills ; and where the amount is less than five millions of dollars, five mills and five-tenths ; and of the tax so levied, the commissioners shall set apart such portion, as they may deem proper, to be applied to the building and repair of bridges, which portion so set apart shall be called a bridge fund, and shall be entered on the duplicate in a sepa- rate column, and shall be collected in money, and expended, except as may be otherwise provided by law, under the directions of the commissioners in building bridges and culverts, or in repairing the same; [Hamilton county.] provided, that in any county containing a city of the first grade of the first class, where the valuation of taxable property exceeds two hundred millions of dollars, the commissioners of said county may levy on each dollar of valuation of taxable property within said county, for bridge purposes exclusively, not to exceed one-half of a mill, which shall be collected in money and placed by the auditor to the credit of the bridge fund of the county, and the same shall be expended by the commissioners in building bridges and culverts, and in repairing and making fills and approaches to the same in the townships outside of the corporate limits of said city, and for no other purpose whatever; [Payment to Cincinnati.] except that a portion of said fund collected in the said county, amounting to not less than a levy of one-sixth of a mill on each dollar of valuation of the taxable property within said county in all cases where the board of legislation of said city of the first grade of the first class shall demand it, shall be paid into the city treasury of said city and shall be expended by the board of administration of said city, for the purpose of building and repairing of bridges within the corporate limits of the same; [Special tax to restore important bridge.] provided, further, that in case an important bridge belonging to or maintained by any county has been or shall be destroyed or become danger- ous to public travel by decay or otherwise, and the restoration thereof is deemed necessary for public accommodation, the commissioners may levy a special tax for that purpose, not exceeding one mill and five-tenths, the proceeds of which shall be applied solely to such restoration ; 758 THE OHIO MUNICIPAL CODE. [Anticipation thereof.] and the commissioners may anticipate the collection of such special tax by borrowing any sum not exceeding the amount so specially levied or to be levied, at any rate of interest not exceeding six percentum, and issue notes or bonds therefor, payable upon the collection of such special tax; [Cleveland and cities of second class.] provided, further, that in all cities of the second grade of the first class, and all cities of the second class one-half of the proportion of said bridge fund collected upon the property within said cities, in all cases where the city council shall demand it, shall be paid into the city treasury, and shall be expended by such city for the purpose of building and repairing bridges; [Marietta.] and provided further, that in cities having at the last federal census, or at any subsequent federal census a pop- ulation of 8,273, the whole of the proportion of said bridge fund collected upon the property within said city shall upon demand of the council of said city therefor be paid into the treasury of said city, and shall be expended by said city for the purpose of building and maintaining bridges therein ; [Montgomery county.] provided further, that the commis- sioners of Montgomery county shall levy not exceeding one mill and six-tenths for road and bridge purposes, and that said levy shall only be on property subject to taxation outside the city of Dayton, and the proceeds of such levy shall be applied ex- clusively to roads and bridges outside of said city ; [Dayton.] and the council of said city may annually levy on the taxable property within the same, for bridge purposes, a tax of one mill and one-tenth in addition to the total aggregate of taxation now authorized by said council, to be expended for building and repairing bridges within said city ; [Trumbull county.] and provided further, that the commis- sioners of Trumbull county may levy not to exceed the rate al- lowed by law for road and bridge purposes, and that said levy shall only be on property subject to taxation outside of the city of Warren, and the proceeds of such levy shall be applied to road and bridge purposes exclusively outside of said city ; [Warren.] and the council of said city may annually levy on each dollar of valuation of taxable property within said city for bridge purposes, one and five-tenths of a mill, in addition to the total aggregate of taxation now or hereafter authorized by law, to be expended for building and repairing bridges within said city ; except that in the event that the commissioners ROADS IN MUNICIPAL LIMITS. 759 of the county transfer from the road and bridge fund to some other fund, the whole or some part of the six-tenths of a mill as now allowed by law, the council of said city shall make a like transfer to the same county fund ; and the council of said city may anticipate the whole or some part of the annual levy f or* said purposes for the period o f ten years or less, by borrow- ing a sum, not exceeding twenty thousand dollars, at a rate of interest not exceeding six percentum, and issue bonds there- for, payable on the collection of said tax. [Expiration of proviso.] Said last proviso relating to the city of Warren in said Trumbull county shall expire by limi- tation after twelve years from the time it becomes a law, and said city shall again become a part of the county for bridge purposes under the general law; [Holmes county.] provided further, that the commissioners of Holmes county at their March or June sessions shall levy on all the taxable property of said county, the amount now au- thorized by law for road and bridge purposes to be used on roads and bridges, and the commissioners of Holmes county may turn over such portion of the taxes so raised for roads and bridges on the taxable property in said incorporated vil- lage of Millersburg, said county, to the council of said incor- porated village for road and bridge purposes as they may deem proper, and the commissioners of said county on the demand of said council of the incorporated village of Millersburg shall turn over to the treasury of said village the pro rata share of the taxes levied in 1899. 1 [94 v. 172; 91 v. 12, 128, 196; 89 v. 272 ; 88 v. 508 ; 84 v. 224 ; E. S. of 1880 ; 74 v. 92, § 2 ; 73 v. 11, §§ 1, 2; (S. & S. 666; S. & C. 1317).] (1) Rights of municipalities.— Oo. v. R. R. Co., 43 0. S. 451. See State ex rel. v. Commissioners, Section cited, State ex rel. v. 4 N. P. 343. Pmling, 1 C. C. at 490. Use of fund received, see Perry Sec. 4825 U.S. [When road may be extended to village.] When a free turnpike road in progress of construction ter- minates within one mile, by way of a public road, of any such village, the council of such village shall have the same power to levy a tax and issue bonds to aid in the construction of such free turnpike road that it would have if the road terminated in the village ; and if the county commissioners having in charge the construction of such road accept such bonds, such free turn- 760 THE OHIO MUNICIPAL CODE. pike road shall be deemed to be extended, by way of the public road before mentioned, to the corporate limits of the village; and the commissioners shall make and publish an order to that effect, and thereupon the commissioners shall improve such ex- tension of such free turnpike road, in the same manner as the other parts of the same. [65 v. 180, § 1 ; S. & S. 686.] Sec. 4850 R. S. [Cities and villages may assist in constructing improved road.] When any road to be improved under and by virtue of this chapter 1 begins or terminates in a city or village, the corporate authorities thereof may, upon the recommendation of the county commissioners, if they deem the same expedient, agree to pay in the bonds of such city or village, in the man- ner and proportions described in sections forty-eight hundred and forty-six, 2 in addition to any amount that may be as- sessed 3 upon the real property within such corporation by vir- tue of the provisions of this chapter, an amount not exceed- ing one-fifth of the entire cost of the road ; but the entire tax to be imposed for road purposes, by virtue of this section, shall not in any year exceed five mills on the dollar of the taxable property in the corporation. (64 v. 80, § 9.) [1880, March 9; 77 v. 55, 56; Eev. Stat 1880; (S. & S. 672).] (1) Chapter referred to here is (3) What lots and lands may chapter relating to Two Mile be assessed. — See Commissioners Assessment Pikes. v. Young, 36 O. S. 288. (2) Section referred to. — § Section cited, Lewis v. Laylin, 46 4846 R. S. gives commissioners O. S. 663, 673. power to issue bonds to meet ex- pense of road improvements. Sec, 4851 It. S. [Cities in adjoining county may aid.] When it is desirable or expedient to continue any road contemplated under this chapter, into or through an adjoining county, the city council of any city of the first or second class may, upon the application and recommendation of the county commis- sioners of such county, if the council deem the same promo- tive of the general interests of such city, aid in the construc- tion of the road to an extent not exceeding one-fifth of its cost, the payment of the same to be provided for in the manner and proportions described in section forty-eight hundred and forty- six. [64 v. 80, § 10; S. & S. 672.] Sec. 1448c R. S. [Meetings of township trustees, road su- perintendents and street commissioners with county commis- sioners; compensation for attending.] The board of county commissioners of each county shall, one day in each year, call a meeting at the county seat and notify each township trustee holding office in said county and each road superintendent as herein provided for, and each street commissioner employed ROADS IN MUNICIPAL STREETS. 761 by any municipality, to attend said meeting for the purpose of receiving instruction and direction as to the care and maintenance of the public roads. Each township trustee and road superintendent and street commissioner attending said meeting shall receive one dollar and fifty cents, and no more, for each day of actual attendance, the township trustees and road superintendents to be paid out of the general fund of their townships, and the street commissioner to be paid out of the general fund of the municipality. [1906, April 16, 98 v. 332.] Sec. 1448d R. S. [Contracts for repair or maintenance of public roads or streets; notice.] The commissioners of any county, the trustees of any township or the board of public service of any municipality may contract with any person, firm or corporation for the repair or maintenance of any public road or street within their respective political subdivisions. Such contracts may be for furnishing material and repairing or for any purpose necessary to maintain any street, road or roads. Such contract shall not be made until an advertise- ment "containing plans and specifications be published two weeks in a newspaper of general circulation published within the political subdivision wherein such road is situate or in a paper of general circulation within the county and posting copies of same in two public places, for two weeks, near where the road is situate. [1906, April 16, 98 v. 332.] Sec. 2830 R. S. [Payment of road tax; expenditure of road fund.] Any person charged with a road tax shall pay the same in money to the county treasurer in the same manner. as other taxes are collected and paid. All road taxes paid to or collected by the county treasurer shall be paid over to the treasurer of the township or municipal corporation from which the same were collected, and shall be expended on the public roads and in building and repairing bridges in the township and municipal corporation from which the taxes were collected under the direction of the trustees of the proper township or council of such municipal corporation; and all funds hereto- fore levied for road purposes and not expended, shall be ex- pended by the trustees of the township or council of the mu- nicipal corporation from which the same were collected as other taxes collected under the provisions of this title. [1906, April 16, 98 v. 333; 77 v. 184; 74 v. 92.] Sec. 4747 R. S. [Roads on state or township lines.] A road superintendent of a road district bordering on the state line between Ohio and adjoining state may, when a public high- way has been located upon such state line in accordance with and under the provisions of the laws of the state of Ohio, apply the labor of his district upon said road, in the same manner as on roads located within the boundaries of the state ; and in case any public road is or may be established as a part 762 THE OHIO MUNICIPAL CODE. of the line or boundary of any township or municipal corpora- tion, the trustees of such adjoining townships, and council of such corporations, as the case may be, shall meet at some convenient place as soon after the first Monday of March as convenient, and apportion such road between the townships, or township and corporation, as justice and equity may re- quire, and the trustees of the respective townships, and coun- cil of the corporation, shall cause the road to be opened and improved accordingly, and shall thereafter cause their respec- tive portions to be worked and kept in proper repair. [1906, April 16, 98 v. 339; 94 v. 184; 65 v. 14.] Sec. 4906 R. S. [Parts of roads in cities and villages to be repaired.] The commissioners shall keep in repair such por- tions of such roads 1 within their respective counties as have since their completion been included, or may hereafter be in- cluded, within the corporate limits of any city or village in such counties, to points therein where the sidewalks have been curbed and guttered, and no further. [75 v. 32, § 2.] • (1) Such roads refers to "Improved Roads" defined in § 4876 R.S. 3. BRIDGE, TURNPIKE AND AVENUE COMPANIES. Sec. 3537. [Powers of bridge companies.] A company in- corporated to construct a bridge over any stream of water in this state shall either own the bank on each side of the stream where it is proposed to erect its bridge, or obtain the consent of the owner or owners thereof, in writing, to occupy the same ; it may purchase, or appropriate in the manner provided by law, and hold, such real estate as will be required for the site of the bridge, and suitable avenues or approaches leading thereto, may use so much of any public street, road, or avenue as is necessary for landings and abutments, and may appro- priate in the manner provided by law any rights or franchises necessary in the construction of the bridge ; and the provisions of section thirty-four hundred and ninety-two shall be appli- cable to such companies. [69 v. 185, § 55 ; 53 v. 180, § 1 ; S. & C. 338.] Sec. 3540. [May make and enforce regulations.] All bridge companies and owners are invested with full power and au- thority to make and enforce any rule or regulation deemed necessary or requisite to preserve and protect their property and collect their tolls, and may prevent any person from cross- ing any bridge owned by them on foot, or by riding, or driving any team or vehicle, or from driving any stock thereon, who fails to pay the regular fare when demanded; and the police BRIDGE AND TURNPIKE COMPANIES. 763 or watchman of any such bridge shall have all the power and authority -of -policemen of cities, and may arrest any person who violates the law, or the rules of the company or person owning the bridge, without warrant, at or upon such bridge, and take him before the proper civil authority to be dealt with according to law. 164 v. 128, § 5; S. & S. 57.] Sec. 3542. [Further powers of Ohio river bridge companies.] Such company may purchase, or appropriate in the manner provided by law, and hold such real estate as, in the opinion of its directors, will be required for the site of the bridge, and of suitable avenues or approaches leading thereto, and may locate the same on, or construct the same over, any public street, road, avenue, or alley; provided, that in constructing the same over any public street, road, avenue or alley, the said bridge shall be constructed at such height as not to inter- fere with travel passing on, over or along the same; and pro- Added further, that no pier, or other obstruction, shall be con- structed or built upon such street, road, avenue or alley, with- out the consent of the municipal or other authorities having charge or control of the same. And the company shall be responsible for injuries done to private property, adjacent or near to such bridge, by its elevation and construction, which may be recovered in a civil action brought by the owner, at any time within two years from the completion thereof. 1 [1889, February 8: 86 v. 25; Rev. Stat. 1880; 65 v. 55, §5; (S. & S. 203).]. ( 1 ) Ohio River bridge com- thorized to construct and maintain panies. — By Section 3541 R. S. a such bridge with suitable avenues company organized to construct a and approaches leading thereto, bridge over the Ohio River is au- Sec. 3482 R. S. [Repair of roads within municipalities.] If a company * fail to keep any part of its road within the limits of a municipal corporation in repair for five days successively, the proper authority of such municipal corporation may pass a resolution requiring such company to repair the same within ten days after the service of a copy of such resolution on the gate-keeper nearest such municipal corporation, and the com- pany shall declare its intention to abandon or repair the same ; in case of a failure or refusal so to do within thirty days, or in case of a failure or refusal to repair in ninety days, the mu- nicipal corporation may file a complaint in writing, with a copy of the resolution, in the court of common pleas of the county, describing the portion of the road required to be repaired, and 764 THE OHIO MUNICIPAL CODE. the court, or any judge thereof, shall appoint two disinter- ested persons as inspectors, who shall review the portion of the road complained of, and return their finding thereon, under oath, to the court, within ten days; and if they find the com- plaint to be true, such portion of the road shall be declared abandoned by the company, and the municipal corporation may improve or repair the same, and assess and collect the costs of such improvement or repairs in the same way as is provided by law in relation to the improvement of streets. 2 [51 v. 464, § 1; S. & C. 333.] (1) Company, refers to turnpike (2) See MadisonviJle v. Tp. Co., or plank road company. (§ 3472 17 B. 30. R. S.) Sec. 3483 It. S. [Proceedings to enforce repair.] Notice of the complaint, and of the appointment and time of meeting of the inspectors, shall be served on the president or other officer of the company, or at its principal office, five days before the meeting of the inspectors ; and if such service be made by any person other than the sheriff, it shall be verified by the oath of the person making the same; no toll shall be received at the gates for the portion of the road so declared abandoned ; and if the keeper of any gate demand and receive toll for the same, he shall be liable to pay the sum of five dollars to the party injured, to be recovered by civil action before any justice of the peace having jurisdiction; [and] the costs of the proceeding on the complaint shall be paid by the company, if the action be sus- tained, but if not sustained they shall be paid by the municipal corporation, and execution shall issue therefor as in other cases. [51 v. 464, § 2 ; S. & C. 334.] Sec. 3491 R. S. [When municipal limits are extended beyond a toll-gate.] 1 No company shall hereafter erect a toll-gate and collect tolls within the limits of any city or village, or within eighty rods of such limits; and where by the creation of a village, or the extension of the limits of a city or village, a toll- gate is brought within such limits, or within eighty rods thereof, the company shall remove the toll-gate to a point on its road not nearer to such limits than eighty rods, and so much of its road as is included within the limits of such city or village shall become a public street, and be kept in repair as other public streets, but no toll shall be taken thereon ; 2 but compensa- tion shall be made to the company for the damages it will sus- tain by reason of such removal of its toll-gate, and surrender of TURNPIKE AND AVENUE COMPANIES. 765 such part of its road, and if the company and the proper au- thorities of the city or village do not agree thereon, the dam- ages shall be ascertained in proceedings which the municipal authorities shall commence, to appropriate such property to the use aforesaid, in the manner provided by law for the ap- propriation of property by municipal corporations, or, in de- fault of such agreement, or the institution of such appropria- tion proceedings, the company, at any time after the removal of the toll-gate, may recover the same from the city or village, by civil action. 3 [66 v. 36, § 1 ; 75 v. 90, § 34 ; (S. & S. 841 ; S. & C. 339).] (1) Other provisions. — Power ing within its limits. C. & W. Tp. of council when turnpike comes Co. v. Cincinnati, 2 B. 126. within municipal limits, see § 2643 Municipality does not have right R. S. et seq., page 123. to lay water and sewer pipes under (2) Rights of turnpike com- surface of turnpike, without con- pany. — See notes under § 2643 R. demning. C. & A. Tp. Co. v. Avon- S., page 123, and under § 2648 R. S., dale, 17 B. 294. page 126. Municipality may be mandamused ( 3 ) Condemnation. — A suit un- at suit of one traveling over pike, der this section by turnpike com- to commence appropriation proceed- pany, is in the nature of a condem ings. Gates v. Tp. Co. 4 N. P. 235. nation. Tp. Co. v. Mt. Healthy, 66 But injunction will not lie to pre- O. S. 660 (unreported). vent collection of tolls. lb. Municipality cannot condemn less As to method of ascertaining dam- than the whole of the turnpike ly- ages in such condemnation, see note under § 2643 R. S., page 123. Sec. 3492 R. S. [May sell bridge or road in such limits to city or village.] A company, any part of whose road or bridge is, or hereafter becomes, embraced within the corporate limits of a city or village may contract with the proper authorities of such city or village, or of the township or county in which the same is situate, for the disposal, release, and abandonment of such part of its road or bridge, for such compensation and upon such terms as may be agreed upon between the company and such authorities; and any such contract heretofore made shall be as good and valid as if made under and by virtue of this section. 1 [53 v. 180, § 1 ; S. & C. 338.] (1) Section cited. State ex rel. v. Extension Lower River Road, 21 C. C. 662, 667. Sec. 3825 R. S. [Avenue companies in certain counties ; when consent of authorities necessary.] When in laying out any such 766 THE OHIO MUNICIPAL CODE. avenue ' it becomes necessary to run through or along the line of any village, the board of directors of the avenue company shall obtain the consent of the council of such village to the laying out of such avenue through or along the territory over which thev have supervision or control. [53 v. 46, § 4; S. & C. 343.] (I) Avenues referred to. — ed by avenue companies authorized Sections carried here are a part of to construct such thoroughfares in Chap. 17, Title II, of Part II, of counties containing not less than Bates' Revised Statutes. The ave- one hundred thousand inhabitants, nues referred to are those construct- Sec. 3826 R. S. [Authorities may surrender roads to company.] If, on application being made to the council of a village, they are of opinion that the public good demands the laying out of such avenue, they may give their written consent to the laying out and construction of the same, which shall have the force and effect of a full and complete release of all authority over tlie avenue within their corporate jurisdiction, and the di- rectors may lay out and construct the avenue through the terri- tory of such village, and control the same in all respects as though the village did not exist. [53 v. 46, § 5 ; S. & C. 343.] Sec. 3826a R. S. [Power to condemn avenues belonging to av- enue companies within corporate limits.] Where avenue com- panies. have been or may hereafter be organized, and have con- structed and operated, or may hereafter construct and operate an avenue or avenues in a county containing a city of the first grade of the first class, the board of public improvements of such city of the first grade of the first class, may, by resolution, declare it essential or necessary to the interest of said city that so much of any such avenue as may be within the corporate limits of the city should belong to the city for the purpose of a public street; and thereupon if the company owning such avenue and the board of public improvements of the city are unable to agree upon the amount of compensation to be paid for so much of said avenue as lies within the city, the board of public improvements of such city and the company owning Buch avenue may submit the question of the amount to be paid for so much of such avenue as lies within the limits of such city to arbitration in the following manner, to-wit : The board of public improvements of such city to select one disinterested person, the company owning such avenue to select another dis- interested person, and these two [to] select the third disinter- ested person to act as arbitrators and all such arbitrators shall TURNPIKE AND AVENUE COMPANIES. 76? be resident freeholders of such city; and the amount agreed upon by all these three arbitrators shall be binding on both such city and such company; and in case the arbitrator ap- pointed by the board of public improvements of such city and the arbitrator appointed by such company cannot agree upon a third arbitrator, or all three of such arbitrators fail to agree on the amount to be paid for so much of such avenue as lies within the city limits, or in case the board of public improvements of such city, or the company owning such avenue refuse to sub- mit to arbitration the question of the amount to be paid for such part of such avenue as lies within the limits of such city, then the board of public improvements of such city may proceed to condemn and appropriate so much of such avenue as lies within the city limits, for public purposes, in the same manner in which other property is condemned and appropriated by mu- nicipal corporations, except that the resolution of such board of public improvements deeming it necessary to condemn shall take the place and stand in lieu of the resolution of council re- quired by sections 2234, 2235 and 2236, Revised Statutes of Ohio. [87 v. 241 ; 85 v. 152.] Sec. 3826b R. S. [Issue and sale of bonds.] When the amount of compensation to be paid for such avenue appropriated under the preceding section shall have been ascertained either by agreement of the parties, by decision of the arbitrators or by the verdict of a jury in the proceedings instituted for the purpose, a fund shall be provided for the payment of such compensation together with the costs and expenses of such proceedings as may have been had, by issuing the bonds of such city for the amount thus ascertained ; and it shall be the duty of the board of public improvements of such city to issue said bonds. Said bonds shall be made payable at such time and shall bear in- terest at such rate not to exceed four (4) per centum per annum as said board of public improvements shall determine; said bonds shall be signed by the president of the board of public improvements and the mayor of such city, and be attested by the comptroller of such city, and shall be secured by a pledge of the faith of such city and a tax, which it shall be the duty of the council of such city annually to levy upon the taxa- ble property of such city, and certify the same to the county auditor, upon a certificate to that effect from the trustees of the sinking fund of such city, as to the amount necessary to pay the interest thereon and to provide a sinking fund for the final redemption of said bonds. Said tax shall be in addition to the amount now authorized to be levied for municipal pur- 768 THE OHIO MUNICIPAL CODE. poses. Said bonds shall be sold to the highest bidder by said board of public improvements at not less than their par value, after advertising the same for not less than four consecutive weeks, on the same day of the week, in some newspaper ot general circulation in such city. [87 v. 242; 85 v. 152, 153.] 4. SEWERAGE COMPANIES. Sec. 3871 E. S. [Sewerage companies.] A company organ- ized for the purpose of draining the streets, alleys, lots, com- mons, wharves, landings, or buildings of any city or village in this state, may construct and maintain sewers and drains, and lay conductors or pipe for conveying water and other liquid matter from the lots, houses, and streets, through and under the streets, sidewalks, public highways, alleys, commons, wharves, or landings of any city or village in this state; upon applica- tion by such company the council of any city, or the trustees of any village, may grant to it the privilege of exercising its corporate powers within the limits of such city or village, for such term of years, and upon such conditions and limitations, as may be deemed expedient ; and the city council, or the coun- cil of the village, may require from the company such reasona- ble security as they deem necessary for the faithful perform- ance of the duties imposed upon it by law; but no grant shall be made to any company, and no power or privilege shall be conferred upon or exercised by any company, which will in- terfere with the rights of any other corporation, or any person, and no person shall be taxed without his consent for any drain- age or sewerage constructed by any such company; and such companies shall be liable for all damages occasioned by their acts, neglects, or defaults to the rights of persons and other corporations. [53 v. 137, § 5 ; S. & C. 341.] Sec. 3872 R. S. [When municipality must buy out company.] When a city or village which has granted to any such com- pany, for any term, the rights and privileges mentioned in the preceding section, and, at the expiration of the term, fails or refuses, upon petition of the company, to renew the grant, the city or village shall purchase of the company its property, con- sisting of sewers, drains, and pipes actually laid and con- structed, with the appurtenances, and the materials and fixtures appertaining to the same, on hand at the time of the expiration of such term, at a price not exceeding the actual cost thereof, for the use and benefit of the city or village. [53 v. 137, § 5; S. & C. 341.] COUNTY DITCHES IN MUNICIPAL LIMITS. 769 Sec. 3873 R. S. [Municipality may contract with company.] The council of any city, or the council of any village, in which any such company is organized, may contract with the com- pany for the construction and use of such sewers or drains, for draining the streets, alleys, lots, commons, wharves, or grounds within the limits of the municipal corporation; and the city or village shall not use such sewers or drains in any manner ex- cept by and with the consent of the company, and in the man- ner, and upon the terms and conditions, which are mutually agreed upon by the company and the city or village. [53 v. 137, § 6: S. & C. 342.] Sec. 3874 U.S. [Company may prescribe rates.] Such com- panies may prescribe the terms upon which owners and occu- pants of houses or lots may obtain the use of their sewers and drains for private purposes, and the rate of charge an- nually for such use, and also the terms upon which the city or village may use the sewers and drains for public purposes. [53 v. 137, § 7; S. & C. 342.] Sec. 3875 R. S. [Powers of municipalities not limited.] Noth- ing in the four preceding sections shall be construed to prevent any city or village from constructing sewers, or establishing nnd maintaining a system of sewerage, under the direction and by the authority of the municipal authorities thereof, not in- terfering, however, with the work of such company. [53 v. 137, § 8 ; S. & C. 342.] 5. COUNTY DITCHES IN MUNICIPAL LIMITS. Sec. 4483 R. S. [A municipal corporation may present a peti- tion.] The council of a municipal corporation may, by reso- lution, authorize the mayor to present a petition, signed by him officially, and a bond, to the county commissioners, to locate and construct a ditch described in the resolution, or such council may authorize the mayor to sign officially a petition and bond for a ditch, to be presented by parties interested whose lands are without the limits of the corporation, whenever the improvement will be conducive to the public health, con- venience, or welfare, of the whole or any portion of the in- habitants of the corporation; in such case the commissioners shall count the municipal corporation as an individual peti- tioner, and may direct the surveyor or engineer to locate the improvement in accordance with the petition, whether wholly within or wholly without, or partly within and partly without, the limits of the corporation ; and the surveyor or engineer, in making his schedule of lots and lands benefited, may enumer- ate such lots and lands within or without the corporate limits 770 THE OHIO MUNICIPAL CODE. as are specially benefited, and also the municipal corporation for benefits to the health and welfare of its inhabitants. 1 (1) Scope of section, — This sec- Except as provided in §§ 4483 and tion only authorizes county com- 4485, county commissioners are missioners to locate and construct without jurisdiction or authority ditch upon petition of mayor, but to locate and construct a county does not extend to deepening, wi- ditch within the corporate limits of demng or straightening ditch al- a municipality. Village of Pleasant ready established. Cooper v. Van Hill v. Commissioners, 71 O S 133 Wert, 16 Dec. 638; 4 N. P. (N. S.) 185. Requisites of bond, see lb. Sec. 4484 R. S. [The whole or a part of a municipality may be considered a single tract.] When the improvement equally drains or otherwise benefits the whole of the territory within the limits of a municipal corporation, or any part thereof, the surveyor or engineer, or the commissioners, or the jury, if a jury be called, may consider and treat such territory as a single parcel of land; and any sum apportioned thereto shall be ap- portioned by the county auditor to the lots or lands included therein, according to the valuation thereof for taxation. Sec. 4485 It. S. [Notice to municipal authorities, and proceed- ings thereafter.] If the proposed improvement passes through or into a municipal corporation the mayor of which has not signed the petition therefor as provided in the preceding sec- tion, the mayor shall be notified of the pendency of the petition in the same manner and at the same time that the commission- ers are required by section forty- four hundred and fifty-two to be notified; the m (ii/ jv shall notify the council of the pendency of the petition, at its next regular meeting, or, if necessary, call a special meeting of the council for that purpose; and thereupon the council shall appoint a committee of its mem- bers, or the engineer of the corporation, or both, to meet the commissioners, at the time and place of their meeting and view, and confer with them in regard to the improvement 6. CONSTRUCTION AND REPAIR OF VIADUCTS. An act to authorize municipalities to construct and repair via- ducts and to provide for the manner in which funds raised for such purpose shall be expended. [Sec. 1.] [Townships and municipalities authorized to construct or repair viaducts; bonds therefor.] That whenever the trus- tees of any township or hamlet, or the council, board of legis- lation, or other legislative body, or bodies shall have deter- mined to issue bonds for the purpose of constructing or repair- ing any viaduct or viaducts over any street, stream, railway tracks or other place where an overhead roadway or footway VIADUCTS. 771 is deemed necessary, under the authority of section 2835 * of the Revised Statutes; or whenever such trustees, council, board of legislation or other legislative board [or boards] shall have determined under the provision of said last named section to purchase or condemn, or whenever any such township, hamlet or municipal corporation shall have purchased or condemned any land for the purpose of constructing or repairing any via- duct or viaducts then and in that event said township, ham- let or municipal corporation shall have authority to construct or repair any such viaduct or viaducts and to purchase or con- demn the necessary land therefor, if the same has not already been purchased or condemned, and the money arising from the sale of any of the bonds issued under the authority of sec- tion 2835 as aforesaid shall be expended as provided in sec- tion 2 thereof. (1) Section 2835 together with Longworth Bond Act, are re-enacted $§2836 and 2837, known as the in § 100 of the Code, p. 287. [Sec. 2.] [How money raised for such purpose to be expended.] All funds arising from the sale of bonds for the construction or repair of viaducts or for the purchase or condemnation of land for such purpose as authorized by section 2835, Revised Statutes, shall be covered into the treasury of the township, hamlet or municipal corporation as the case may be, and shall be paid out and expended upon the vouchers of the board, officer or officers in such township, hamlet or municipal corporation having charge of the repair of public roads or streets therein. All contracts for such improvements shall be made by said board, officer or officers in the same manner as other contracts are now required by law to be made by them. All vouchers to pay said contracts or for any portion of the cost of such improvements shall be drawn by said board, officer or officers upon the clerk of the township or hamlet, or the auditor or clerk of the municipal corporation who shall keep an accurate account of all moneys so expended, and the funds created by the sale of bonds for viaduct purposes shall be known as the " Viaduct fund." [Sec. 3.] [In case of bond issue authorized by election.] When- ever the voters of any township, hamlet or municipal corpora- tion shall determine to issue bonds for the construction or repair of viaducts, or for the purchase or condemnation of the land necessary for such purpose as provided in section 28 37, 1 Revised Statutes, the authority to make such improve- ments is hereby conferred and the money arising from the sale of such bonds shall be expended in the same manner as is 772 THE OHIO MUNICIPAL CODE. provided for the expenditures authorized in section 2 hereof. [May 12, 1902, 95 v. 567.] (1) See note (1) under Sec. 1 of this act. Supra. 7. SPKINKLING THE STREETS. 1 An act to authorize, upon certain conditions, the sprinkling of streets, avenues, alleys, public squares and public places in mu- nicipal corporations. [Sec. 1.] [Petition for sprinkling* streets, etc.] Upon the peti- tion of thirty-five per cent, of the electors in any municipal cor- poration in this state to be certified by the mayor of said mu- nicipal corporation to the council, board of legislation or other legislative body, such council, board of legislation or other legislative body may by ordinance provide for sprinkling with water any and all or any part of the streets, avenues, alleys, squares and public places within the corporation in the man- ner provided in this act [Sec. 2.] [Ordinance must receive affirmative vote of two-thirds of members of council.] The ordinance to provide for said sprinkling shall not become operative unless it shall have re- ceived the affirmative votes of two-thirds of the members elected to said council, board of legislation or other legislative body. [Sec. 3.] [How and by whom to be done.] Upon the certifica- tion of the petition provided for in section 1 hereof, and the passage of the ordinance authorized in section 2 hereof, the board or officer having charge of the repair of streets in such municipal corporation may purchase the appliances and ma- terials and employ the labor necessary to provide for such sprinkling, or make contracts for all or any part of such sprinkling for periods not exceeding five (5) years. [Sec. 4.] [Tax levy therefor; street railway companies to pay portion of cost.] In order to provide a fund for the purpose of paying all or any part of the cost of such sprinkling, the board or officer having charge of the repair of streets in such municipal corporation may each year estimate the cost thereof, and cause to be levied a tax therefor upon the general tax du- plicate of the city in the same manner and subject to the same conditions as other levies for municipal purposes, except that such levy may be in addition to the amount now authorized for municipal purposes, and such levy upon said, estimate, shall be made by the council, board of legislation or other legislative OILING OP STREETS. 772ft body in said municipal corporation. Street railroad compa- nies operating within such corporation shall annually pay into the treasury of said municipal corporation one (1) cent per lineal foot of track upon sprinkled streets as their part of the cost of the sprinkling herein provided for. [1902, May 9, 95 v. 447.] (1) New Code provisions on the above act authorizes the sprink- the subject of sprinkling streets ling of any or all streets in the mu- will be found in § 65 of the Code, nicipality upon the petition of 35 page 231. § 65, however, provides per cent, of the electors thereof, only for the sprinkling of particu- See further, note 1, nnder § 65 of lar streets or parts of streets, while the Code, p. 281. 8. OILING OF STREETS. [An act to authorize municipal corporations to contract to have treated with oil, for the purpose of laying the dust on, and preserving the surface of streets, avenues, alleys and pub- lic squares and places and roadways in public parks, and pro- viding for the payment of the cost of such treatment by as- sessment on abutting property and from the corporation's funds.] * [Sec. 1.] [Municipal corporations authorized to treat streets, etc., with oil; contracts.] Cities and villages shall have au- thority to treat with oil, for the purpose of laying the dust on, and preserving the surface of, streets, alleys, squares and pub- lic roadways. Whenever the council of any city or village de- sires to have such work performed by contract, it shall pass an ordinance declaring its intent so to do, and in villages the council shall contract and in cities the council shall direct the board of public service to contract, for a period named, not exceeding five years, with any person or corporation organized for such purpose, for treating with oil the streets, alleys, lanes, squares and public roadways and places, such contract to in- clude all the districts established as hereinafter provided dur- ing the entire term of said contract. Such contract shall be made in accordance with the general laws governing munici- pal contracts, except that the requirement of section 45 of an act "to provide for the organization of cities and incorpo- rated villages and to restrict their power of taxation, assess- ment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such powers, as provided by the constitution of Ohio, and to repeal all sections of the 772b THE OHIO MUNICIPAL CODE. Revised Statutes inconsistent therewith," passed October 22, 1902, that a certificate that the necessarj' money is in the treas- ury shall not apply to such contracts, nor shall the provision of section 1691 of the Revised Statutes (revision 1880) apply to any such contract. (1) Validity of this act sustained. County, no report. Eyre v. Norwood, Cir. Ct. Hamilton [Sec. 2.] [Establishment of district.] Districts within which the streets, alleys and roadways shall be treated with oil, for the purpose of laying the dust thereon and preserving the sur- face thereof, may be established as follows: 1. [Upon petition of property owners.] When a written petition signed by the owners of a majority of the abutting feet of property on any street or alley, or part thereof, or of connecting or intersecting streets or alleys, or parts thereof, having a roadway area of not less than twenty thousand square yards, is presented to the board of public service in any city or the council in any village, praying that the roadways within the territory described be treated with oil and for the assess- ment of the whole cost thereof on the property abutting such streets or alleys, the board or council shall forthwith declare, by resolution, such territory to be a district within which the roadways will be treated with oil, for a period named in the petition and not exceeding the life of the contract, and the cost thereof assessed upon the property abutting the streets or alleys therein by the abutting foot. 2. [By municipal authorities.] When, in the opinion of the board of public service in any city or of council in any village, the treatment with oil, for the purpose of laying the dust on and preserving the surface of the roadways of any public park or parks, or of any street or alley, or part thereof, or of connecting or intersecting streets or alleys, or parts thereof, having a roadway area of not less than twenty thousand square yards, will be of general benefit within the corporation, the board or council may declare by resolution such park or parks, or the territory including such street or alley, or part thereof, or intersection or connecting streets and alleys, or parts thereof, to be a district within which the roadways shall be treated with oil, for a period named in the resolution and not exceeding the life of the contract, the whole cost, or such portion thereof as may by the board or council be deemed just, to be paid by the corporation, and any remainder of the cost to be assessed by the abutting foot on the property abut- ting the streets or alleys in such district; provided, that there shall be no assessment levied on any property in excess of OILING OF STREETS. 772c fifty per cent, of the whole cost, except where petitioned for, as hereinbefore provided. [Sec. 3.] [Assessment of property.] Whenever any portion of the cost is to be assessed against private property, notice to the owners of the property shall be given by publishing the resolution establishing the district and setting forth the por- tion of the cost to be assessed, once each week, for two weeks in some newspaper published and of general circulation in the corporation, and if there is no newspaper published in such city or village, copies of the resolution shall be posted in twelve public places in the city or village. [Sec. 4.] [Objections to assessment.] If any owner objects to the assessment, he shall file his objections in writing with the board of public service in cities, and the council in villages, within ten days after such publication or posting, and there- upon the board of public service in cities and council in vil- lages shall consider such objections, and, if they are found to be well taken, may remit the whole, or such portion as is deemed just, of the assessment against the property of the objecting owner, and any deficiency arising from such remitter may be made up from any fund of the corporation available for cleaning and repairing of streets, or by contributions from the owners desiring that the work be done. [Sec. 5.] [Notification of contractor to proceed with work.] After the expiration of the time within which objections may be filed, and the disposition of any objections, the board of public service in cities and council in villages shall notify the contractor of the passage of the resolution creating such dis- trict and direct such contractor to proceed with the work of treating with oil the roadways in the streets or alleys of such district, fixing in the notice to the contractor some reasonable period of time within which such work shall be begun. [Sec. 6.] [Assessments and the collection thereof; bonds may be issued.] Where the whole or any portion of the cost is to be assessed, the board of public service in any city and coun- cil in any village shall, within thirty days after the first treat- ment with oil in any district has been accomplished, and at its option may, at any time previous thereto, levy an assess- ment by the abutting foot on the property abutting the streets and alleys in such district to pay the whole or such portion of the cost as was in the resolution determined. The assessment so levied may be collected in one or more install- ments in the manner provided in the case of assessments for 772d THE OHIO MUNICIPAL CODE. street improvements, with a penalty of five per centum and interest for failure to pay at the time fixed in the assessing ordinance; provided, however, that no assessment shall be collected in more than one installment unless the work peti- tioned for shall cover a period of time greater than one year,, when the installments may equal in number the years for which the district was created. Bonds or certificates of in- debtedness may be issued pnd sold in anticipation of the col- lection of said assessments, or installments of assessments, and there may be included in one bond issue or one certificate of indebtedness the amount of uncollected assessments, or in- stallments of assessments, levied on the property in any num- ber of districts and payable within any one calendar year. In the cost shall be included the cost of work done on intersec- tions and roadways within the district, advertising, inspection and superintendence. The right of the city or village to levy said assessments shall not be affected by the amount of assess- ments theretofore levied upon said property. [Sec. 7.] [Treatment herein provided regarded as a cleaning 1 and repairing of s + reets, etc.] The treatment with oil in this act provided for shall be regarded as a cleaning and repairing of streets and alleys, and the corporation's portion of the cost thereof may be paid from any fund available for the cleaning or repairing of streets or alleys, and when the roadways of any public park or parks are ordered to be so treated, the cost thereof may be paid from any fund available for the care or maintenance of such parks. [Sec. 8.] [Term " owner' ' defined.] The term " owner,' r within the meaning of this act, shall be held to include the legal or equitable owner, the person in whose name the prop- erty may be assessed for taxation on the tax duplicate, or a tenant giving satisfactory guaranty that the assessment against the property signed for will be paid. [1906, March 14, 98 v. 50.] 9. NUISANCES IN STREETS. Sec. 6921. [Nuisances.] Whoever erects, continues, uses, or maintains, any building, structure, or place for the ex- ercise of any trade, employment, or business, or for the keep- ing or feeding of any animal, which, by occasioning noxious exhalations, or noisome or offensive smells, becomels inju- rious to the health, comfort, or property of individuals, or the public, or causes or suffers any offal, filth, or noisome OILING OF STREETS. 773 substance, to be collected, or to remain, in any place, to the damage or prejudice of others, or the public, or obstructs or impedes, without legal authority, the passage of any naviga- ble river, harbor, or collection of water, or corrupts, or ren- ders unwholesome or impure, any water-course, stream, or water, or unlawfully diverts any such water-course from its natural course or state, to the injury or prejudice of others, or obstructs or incumbers, by fences, buildings, structures, or otherwise, any public ground, or highway, or any street or alley of any municipal corporation, shall be fined not more than five hundred dollars. [30 v. 22, §§ 1, 2; 54 v. 130, §§ 1, 2; 72 v. 112, § 1; 32 v. 38, § 1; S. & C. 441; S. & C. 878; 8. & C. 880.1 10. MISCELLANEOUS PROVISIONS AS TO ASSESS- MENTS. 1 Sec. 2301 R. S. [Expense of changing 1 established grades : how paid; Toledo.] 2 That when a street, alley, public highway, wharf or landing, within the corporation, is graded, or pave- ments are constructed in conformity to grades established by the authorities of the corporation, and the expense is assessed on the abutting lots or lands, the owners shall not be subject to any special assessment occasioned by any subsequent change of grade in such pavement, street, alley, public highway, wharf or landing unless a petition for such change is subscribed by a majority of the owners of such lots or lands, and the expense of all improvements occasioned by such change of grade not so petitioned for shall be chargeable to the general fund of the corporation; provided, that in cities of the third grade of the first class a petition for such change subscribed by the owners of a majority of the feet front of such lots or lands shall have the same effect as when subscribed by a majority of said own- ers. 3 [1888, April 5 : 85 v. 158 ; Kev. Stat 1880 ; 66 v. 243, § 560; (S. &S. 838).] (1) Sections carried under this (2) This section is, with the ex- heading are certain sections in the ception of the latter part relating chapter on assessments (Chap. 4, to Toledo, almost identical with § Div. 4, Title XII. R. S.) not re- 64 of the Code (page 230), and is enacted in the Code and not express- probably superseded by that section. !y repealed. (3) For notes on the subject of For re-enacted sections on assess- this section, see notes under § 64 of ments see § 94 of the Code, page the Code, page 230. 260 et seq. 774 THE OHIO MUNICIPAL CODE. I Sec. 2313 R. S. [Assessment for sprinkling, etc., lien on land charged.] x Every such assessment shall be a lien on the lands charged from the time the council determines the amount as- sessed against each parcel of land. [66 v. 221, § 437.] ( 1 ) Sprinkling streets. — See § Streets, supra, in Part II, and note 65 of the Code, page 231, and see under said act. act under title Sprinkling the Sec. 2314 R. S. [Expense of collecting to be added to assess- ment.] J In placing such assessment on the tax list, the county auditor is required to add to each assessment such per centum as he may deem necessary to defray the expenses of collect- ing the same. [66 v. 222, § 438.] (1) See § 65 of the Code, page 231. Sec. 2404 R. S. [Repairs of sewers, ditches, etc.] The coun- cil may, whenever it is deemed necessary, provide for the re- pair or reconstruction of any sewer, ditch, or drain; and the proceedings for that purpose shall be the same, so far as appli- cable, as are herein required for the original construction thereof. 1 [66 v. 256, § 638.] (1) See § 77 et seq. of the Code. 11. CONSTRUCTION OF SIDEWALKS IN VILLAGES. An act to provide for the construction of sidewalks in villages. 1 [Sec. 1.] [Provision for the construction of sidewalks in vil- lages.] That the council of villages, may, upon the petition of the owners of two-thirds of the front feet of lots or lands abut- ting upon one or both sides of any street or portion of street between points designated in the petition, provide by ordinance for the construction of sidewalks along said street or portion thereof, on one or both sides, as designated in the petition, and of such materials and width as may be designated in said peti- SIDEWALKS IN VILLAGES. 774a tion. The supervision of the construction of said sidewalks shall be by the council or a proper committee thereof. The construction of said sidewalks shall be governed in all respects by the provisions of title 12 of the Revised Statutes of Ohio relating to the improvement of streets. One-half of the cost and expenses of said sidewalk or sidewalks shall be defrayed by the village and the other half shall be assessed against the property abutting on such street or portion of street between the points designated in said petition, in the manner designated in said petition. [Sec. 2.] [Assessments.] Whenever council shall order side- walks to be constructed in accordance with the prayer of a petition as referred to in the foregoing section, it shall also pro- vide for the payment of the property owner's one-half of the cost and expenses thereof, in two or more equal annual install- ments, and make corresponding annual assessments therefor on the property abutting upon said improvement, and such assessment shall be collected or certified as assessments for street improvements, and be a lien upon the property assessed. The council is hereby authorized to issue bonds in anticipation of the collection of the amount chargeable against the property owners, which bonds shall bear interest at a rate not to exceed six per cent, per annum, and shall be sold for not less than par. [Sec. 3.] [Bonds to pay village's portion of cost.] Eor the purpose of paying the village's portion of the cost and ex- penses of constructing said sidewalk or sidewalks, the council is hereby authorized to borrow money at such times and in such amounts as may be required, and may issue bonds of the village for money so borrowed at a rate of interest not to exceed six per cent, per annum, payable semi-annually, and of such de- nomination as the council may determine. The issuing and sale of such bonds shall be governed by the provisions of the Revised Statutes of Ohio applicable to the issuing and sale of municipal corporation bonds. The council is hereby authorized to levy upon all the taxable property of the village, in addition to the taxes now allowed by law, such tax as may be necessary to pay the principal and interest of said bonds as they mature, said tax to be levied and collected in the same manner as taxes 774b THE OHIO MUNICIPAL CODE. for general purposes in villages are levied and collected. [1904, April 26, 97 v. 481.] (1) Code provisions on subject above act provides an additional of construction of sidewalks in both method by which sidewalks may be cities and villages will be found in constructed and the costs assessed, § 70 of the Code, page 236. The in villages. Sec. 4909 R. S. [Sidewalks along roads authorized.] Any person or board of education, the council of any village, the trustees of any cemetery association, or any agricultural or religious society may appropriate on any public road of suffi- cient width on either side thereof, sufficient land to construct thereon a public sidewalk not exceeding six feet in width, and may construct such sidewalk thereon; but such sidewalks shall not obstruct any private entrance or public highway. [1889, February 12: 86 v. 33; 79 v. 131; 77 v. 145; Rev. Stat. 1880; 64 v. 107, § 1; (S. & S. 693; S. & C. 1552.] INJURIES FEOM EXCAVATIONS. 775 XVII INJURIES FROM EXCAVATIONS. 1 Sec. 2676 R. S. [Damage by excavation to be recovered by civil action.] 2 If the owner 3 or possessor of any lot or land, 4 in any city or village, digs, or causes to be dug, any cellar, pit, vault, or excavation, to a greater depth than nine feet 5 below the curb of the street or streets on which such lot or land abuts, or, if there be no curb, below the established grade of the street or streets on which such lot or land abuts, or if there be no curb or established grade, below the surface 6 of the adjoin- ing lots, and by such excavation, causes any damage to any wall, house, or other building upon the lots adjoining thereto, such owner or possessor shall be liable, in a civil action, to the party injured, to the full amount of the damage aforesaid. 7 When there is a curb or established grade, the depth of such excavation, at any point thereof, shall be measured downward from the pitch line projecting laterally over the lot or land from and between the corresponding points in the nearest curb or established grade opposite the ends of such pitch line. [66 v. 232; 9Y v. 323.] (1) Title, division and chapter, without supporting adjacent walls. — Sections carried under this head- The owner of a lot who erects a ing formed Chap. 17, Div. 8, Title building that would be injured by XII, Bates' Revised Statutes. None the excavation on the adjoining lot of the sections in this chapter are to the statutory depth does so at his repealed by the Code. peril. McMillan v. Watt, 27 O. S. (2) Validity. — This act is con- 306. stitutional. Emery v. Coles, 5 N. P. But the lot owner digging to the 199. statutory depth is not relieved from (3) Owner does not include negligence by this statute. Cincin- school board holding property for nati etc R R v< PfaUj 9 B . 2 00 school purposes. Bd. of Ed. v. Volk, , „ „ 72 O. S. 469. * affd ' 16 B> 7) - (4) Lot or land.-This section H °w to determine nine foot does not apply to improvements in depth.— Where a lot extends from streets and alleys. Allison v. Cin- one street to another of a different cinnati, 2 C. S. 0. R. 462. grade the nine feet below the curb is (5) No support required when. a ij ne f rom nme f ee t below the up- — One may die a cellar nine feet ,, . . .„ m *. K ^-^ m J 6 per curb to a point nine feet bexow 776 THE OHIO MUNICIPAL CODE. lower curb. Elshoff v. Deremo, 3 N. P. 273. (6) Surface. — Surface means the actual surface whether caused by filling in or not, and not the natural surface before any filling. Burk- hardt v. Hanley, 23 O. S. 558. (7) Construction of. section. — The clear meaning of §§2676 and 2677 R. S. is to limit their applica- tion to a lot abutting on the same street as that upon which abuts the lot in which the excavation is made. Tajlor v. Day, 6 N. P. 447. The effect of this section is to am- plify the common law rule as to lateral support, so as to create a liability for removing the lateral support of buildings where the ex- cavation goes more than nine feet below the street grade, but it does not modify the common law rule as to the lateral support of the soil it- self. Belden v. Franklin, 28 C. C. 373; 8 C. C. (N. S.) 159. But see Hall v. Kleeman, 4 N. P. 201 ; Volk v. Board of Education, 7 N. P. 164 (reversed 72 O. S. 469). Sec. 2677 R. S. [Depth of excavation allowable.] Such owner or possessor may dig, or cause to be dug, any such cellar, pit or excavation, to the full depth of any foundation wall of any building upon the adjoining lot or lots, or to the full depth of nine feet below the established grade of the street or streets whereon such lot abuts, without reference to the depth of ad- joining foundation walls, without incurring the liability pre- scribed in this chapter, and may, on thirty days' notice to adjoining owners, grade and improve the surface of any lot to correspond with the established grade of the street, streets or alley, upon which such lot or land abuts, without incurring liability. 1 [91 v. 211 ; $6 v. 232 ; 97 v. 323.] ( 1 ) Right to grade.— A lot own- er in a city or village may with im- punity, in the absence of negligence and upon giving proper notice, grade his lot to conform to the grade of the street. Hall v. Kleeman, 4 N. P. 201, 203. But where statutory notice is not given the common law rule would prevail. lb. Liability of owner when noti- fied.- - Where owner has received notice of excavation in adjoining lot and his house is damaged by such excavation he is liable to a tenant injured thereby. Kuhn v. Remmler, 16 B. 366. LIBRARIES. 777 XVIII LIBRARIES. 1 1. IN CERTAIN CITIES AND VILLAGES. Sec. 4002 — 39 R. S. [Certain cities and villages may have li- brary; tax.] The common council of every city not exceeding in population thirty thousand inhabitants, and of every incor- porated village shall have power to establish and maintain a public library and reading room, and for such purpose may an- nually levy and cause to be collected as other general taxes are, a tax not exceeding one mill on each dollar of the taxa- ble property of such city or village, to constitute the library fund, which shall be kept by the treasurer separate and apart from other money of the city or village, and be used exclusively for the purchase of books, periodicals, necessary furniture and fixtures and whatever is required for the proper maintenance of such library and reading room. [89 v. 98.] (1) New code provisions with respect to t'ne management and con- trol of free municipal libraries will be found in § 218 of the Code. Power to establish and main- tain public libraries is given to all municipalities in § 7, paragraph 22 of the Code, page 61; and power to appropriate sites for library buildings is given in § 10 of the Code, page 81. Power to issue bonds, given to "any public library board," see "An act to provide for the erection and equipment of public library build- ings," 98 O. L. 260. Special acts relating to public libraries. Cincinnati, §§ 3999, 3999a, 39996. 3999o, 3999a", 3999e, R. S., and 95 O. L. 361. Cleveland, §§4000, 4001, 4002, 4002-1 to 4002-18, inclusive, R. S., and 95 O. L. 438. Toledo, §§4002-19 to 4002-31, in- clusive, R. S. Dayton, §§ 4002-32 to 4002-38, in- clusive, R. S. Portsmouth, §§4003-4006, inclu- sive, R. S. Canton, 94 O. L. 739. Findlay, 85 O. L. 546. Youngstoion, 87 O. L. 105. Tronton, 90 O. L. 311. Cambridge, 95 O. L., 736. Cities of fourth grade, second class, §§4002-46 to 4002-49, inclu- sive, R. S. Validity of special acts relat- ing to libraries. The act of May 9, 1902, authorizing the trustees of the public library of the school dis- trict of the city of Cincinnati to 778 THE OHIO MUNICIPAL CODE. receive a donation from Mr. Andrew 440, and State ex rel. v. Spell mire, Carnegie and to establish branch 67 O. S. 77. libraries, was held unconstitutional School libraries. — For acts re- by the Supreme Court without re- lating thereto, see §§ 3995, 3996, port, in Sadler v. Porter, 67 O. S. 3997, 3998, 3999 R. S., and 95 O. L. 531, on the authority of Cincinnati 478; 96 O. L. 8. v. Trustees of Hospital, 66 0. S. Township libraries. — See §§ 1476, 1477, 1478 R. S. Sec. 4002 — 40 R. S. [Directors.] For the government of such library and reading room there shall be a board of six direc- tors, 1 appointed by the council of such city or village from among the citizens thereof at large, and not more than one- member of the council of such city or village shall at any one time be a member of said board. Such directors shall hold their office for three years from the date of appointment,, and until their successors are appointed, but upon their first ap- pointment they shall divide themselves at their first meeting by lot into three classes, one-third for one year, one-third for two years, and one-third for three years, and their terms shall ex- pire accordingly. All vacancies shall be immediately reported by the directors to the proper council, and be filled by appoint- ment in like manner ; and if an unexpired term, for the residue of the term only. No compensation whatever shall be paid or allowed to any director. [89 v. 98.] ( 1 ) Managing board. — By § established by municipal corpora- 218 of the Code the custody and tions are vested in six trustees to be management of all public libraries appointed by the mayor. Sec. 4002 — 41 R. S. [Organization; by-laws, etc.; control of expenditures; custody of building; how money drawn from treas- ury; librarian and assistants.] Said directors 1 shall, immedi- ately after their appointment, meet and organize by the election of one of their number president, and by the election of such other officers as they may deem necessary. They shall make and adopt such by-laws, rules and regulations for their own guidance, and for the government of the library and reading room, as may be expedient. They shall have the exclusive con- trol of the expenditures of all moneys collected for the library fund, and the supervision, care and custody of the rooms or buildings constructed, leased or set apart for that purpose, and such money shall be drawn from the treasury by the proper officers, upon the properly authenticated voucher of the board of directors, without otherwise being audited. They may, LIBRARIES. 779 with the approval of the common council, lease and occupy, or purchase, or erect on purchased ground, an appropriate build- ing, provided that no more than half the income in any one year can be set apart in said year for such purchase or building. They may appoint a librarian and assistants, and prescribe rules for their conduct. [89 v. 98.] ( 1 ) See note ( 1 ) to § 4002-40, supra. Sec. 4002 — 42 R. S. [Who may use library.] Every library and reading room established under this chapter shall be for- ever free for the use of the inhabitants of the city or village where located, always subject to such reasonable rules and reg- ulations as the library board x may find necessary to adopt and publish in order to render the use of said library and read- ing room of the greatest benefit to the greatest number; and they may exclude and cut off from the use of said library and reading room any and all persons who shall willfully violate such rules. [89 v. 98.] ( 1 ) See note ( 1 ) to § 4002-40, supra. Sec. 4002— 43 R. S. [Annual report.] The said board of di- rectors ! shall make an annual report to such council, stating the condition of their trust — the various sums of money re- ceived from the library fund, and from all other sources, and how much has been expended ; the number of books and period- icals on hand; the number added by purchase, gift or other- wise during the year; the number lost or missing, the num- ber of books loaned out, and the general character and kind of such books, with such other statistics, information and sug- gestions as they may deem of general interest. [89 v. 98.] - ( 1 ) See note ( 1 ) to § 4002-40, supra. Sec. 4002 — 44 R. S. [Donations.] All persons desirous of making donations of money, personal property or real estate, for the benefit of such library, shall have the right to vest the title of the same in the board of directors 1 created under this law, to be held and controlled by said board, when accepted according to the terms of the deed of gift, devise or bequest of such property, and as to such property the said board shall be held and considered to be special trustees. [89 v. 98.] < 1 ) See note ( 1 ) to § 4002-40, supra. 780 THE OHIO MUNICIPAL CODE. Sec. 4002 — 45 It. S. [Tax to assist existing library associa- tion.] In case a free public library has already been estab- lished in any city or incorporated village, and duly incorporated and organized, the council may levy a tax 1 for its support as provided in this act, without change in the organization of such library association, and the sum so raised shall be paid to the officer or officers duly authorized to receive the same, and shall be under the control of the said library association; provided, that if at any time such library association ceases to exist or from any reason fails to provide a free circulating library as re- quired by the provisions of this act, the books and other prop- erty accumulated from the proceeds of the levy herein author- ized shall become the property of the city or village and be subject to the control of the council as herein provided. [89 v. 98.] ( 1 ) Tax for public library pur- authorized as recompense to private poses. — See §§ 32 and 33 of the association maintaining free public Code, pages 157 and 158. Tax levy library, see § 219 of the Code. An act to authorize the transfer of property by municipal corpo- rations to trustees of libraries of school districts, and the accept- ance of the same, and other property, for library purposes by said trustees. [Sec. 1.] [Transfer of library property from municipalities to school districts.] That it shall be lawful for any municipal corporation in this state to transfer by ordinance duly passed, any property, real or personal, acquired or suitable for library purposes, to the trustees of any public library for the school dis- trict within which such municipal corporation is situate, upon such lawful terms and conditions as may be agreed to between said municipal corporation and said trustees. [Sec. 2.] [Power of school districts to receive.] The trustees of any public library in any such school district are hereby authorized and empowered to receive and accept any such trans- fer, and to receive and accept from any other source or acquire in any other manner, any property, real or personal, for library purposes, and use and apply the same for such purposes, and to enter into any contract relating thereto. [1904, April 21, 97 v. 133.] LIBRARIES. 781 2. APPROPRIATION OF FINES TO LAW LI- BRARIES. 1 Sec. 2680 R. S. [Appropriation of certain fines in police court to use of libraries.] All fines and penalties which are assessed and collected by the police court for offenses and misdemeanors prosecuted in the name of the state, except a portion thereof equal to the compensation allowed by the county commissioners to the judges, clerk and prosecuting attorney of such court, in state cases, which shall be retained by the clerk, shall be paid by the clerk quarterly to the trustees of such law library asso- ciations mentioned in the next two preceding sections, except those in cities of the first and second grades of the first class, but the sums so paid shall not be less than five hundred dollars per annum, if there be such an amount, and the trustees of such associations shall, on the first Monday of each year, make a detailed statement to the auditor of the county, verified by the oath of the treasurer of the association, of the amount of the fines and penalties so received, and of the money expended by the association. In counties containing cities of the second grade of the first class there shall be paid to the trustees of such library association the sum of five hundred dollars per annum from the county treasury and five hundred dollars per annum from the city treasury, said sums to be paid in quarterly in- stallments. The monies so paid to be expended in the purchase of law books and the maintenance of such association. All justices of the peace of such counties and all officers of the townships, villages and cities therein shall have the same free use of the books of such library receiving such monies as the judges and county officers. In cities of the first grade of the first class, all fines and penalties which are or have been as- sessed and collected by the police court for offences prosecuted in the name of the state, shall be disposed of as directed by sections 1807 and 1812 of the Revised Statutes of Ohio, and the clerk of the police courts, in cities of the first grade of the first class, shall be relieved of all responsibility and liability for any such fines and penalties assessed and collected ast have been or may be paid over to the county auditor as directed by sec- tions 1807 and 1812 of the Revised Statutes of Ohio. [94 v. 135 ; 91 v. 296 ; 89 v. 51 ; 69 v. 165, § 2.] ( 1 ) Sections carried under this pealed by the Code, but §§ 2678 and heading formed part of Ch. 18, Div. 2679, not carried here, relate solely 8, Title XII., R. S. None oi the to counties and not to cities, sections in this chapter were re- 782 THE OHIO MUNICIPAL CODE. Sec. 2680a R. S. [Certain fines to use of library in Darke county.] That in all counties which at the last federal census had a population of not more than 42,965 nor less than 42,958 in which there is such library association mentioned in section 2680, and in which there is no such police court, that all fines and penalties which are assessed and collected by the common pleas and probate courts of such counties for offenses and mis- demeanors prosecuted in the name of the state, except a portion thereof equal to the compensation allowed by law to the pros- ecuting attorney of the county in state cases, shall be paid quarterly by the clerk of the court of common pleas and the probate judge, respectively, to the trustees of such law library associations, to be expended in the purchase of law books and the maintenance of such associations ; but the sum so paid shall not exceed four hundred dollars per annum, and subject in all other respects to the provisions contained in section 2680. [90 v. 312.] Sec. 2680b. R. S. [Same in Butler county.] That in all coun- ties in which there is such library association mentioned in section 2680, and in which there is a city of the third grade b of the second class, containing a free library and in which there is no such police court, that one-half of all fines and pen- alties which are assessed and collected by the mayor of said city, prosecuted in the name of the state or city, shall be paid quarterly by said mayor to the trustees of such library associa- tion, to be expended in the purchase of law books and the main- tenance of such association; and the other half shall be paid quarterly by said mayor to the trustees of said free library to be expended in like manner, but the sum so paid shall not exceed five hundred dollars per annum, and should be subject in all other respects to the provisions contained in section 2680. [91 v. 369; 91 v. 219.] Sec. 2680c R. S. [Same in Columbiana county.] That in all counties, which, at the last federal census had a population of not more than fifty-nine thousand and thirty-five and not less than fifty-nine thousand and twenty-five, in which there is such a law library association as that mentioned in section 2680, and in which there is no such police court, fifteen per cent, of all fines and penalties which are assessed and collected by the com- mon pleas and probate courts of such counties, for offenses and misdemeanors prosecuted in the name of the state, except that portion thereof allowed by law to the prosecuting attor- LIBRARIES. 783 ney in such cases, shall be paid quarterly by the clerk of the court of common pleas and probate judge, of such counties, to the trustees of such law library association, to be expended in the purchase of law books and the maintenance of such asso- ciations and such library associations and libraries shall be sub- ject in all other respects, to the provisions contained in section 2680. [92 v. 430.] Sec. 2680d R. S. [Same in Washington county.] That in Washington county in which such library association mentioned in said section 2680 shall be formed, and in which there is no police court, twenty-five per cent, of all fines and penalties which are assessed and collected by the common pleas and probate courts of such counties for offenses and misdemeanors prosecuted in said courts, less the compensation allowed by law to the prosecuting attorney of the county in state cases, shall be paid, quarterly, by the clerk of the court of common pleas and the probate judge, respectively, to the trustees of such library association, and that one-fourth of all fines and penalties which are assessed and collected by the mayor of the city of Marietta, prosecuted in the name of the state or said city, shall be paid quarterly by said mayor to the trustees of such library associa- tion, all of said sums so paid shall be expended in the purchase of law books and the maintenance of such association, subject in all other respects to the provisions of said section 2680. [93 v, 505.] 784 THE OHIO MUNICIPAL CODE. XIX TAXATION AND EQUALIZATION. 1. TAXATION. Sec. 2690c R. S. [Approval of levies by tax commissioners of certain cities; limitation of levy.] 1 No tax shall be levied upon the property of any such city 2 by the council thereof or any other authority therein, except by the boards of education in cities of the first grade of the first class, cities of the third grade of the first class, and cities of the first grade of the second class, for school and educational purposes, until ap- proved by the board of tax commissioners aforesaid. Provided, that in cities of the third grade of the first class boards of education shall not levy in excess of seven (7) mills on the dollar of the tax property thereof, in any one year. 3 [May 7, 1902, 95 v. 415 ; 93 v. 409 ; 83 v. 47 ; 81 v. 177 ; 80 v. 124, 125.] (1) Title, division and chapter. here, and § 2681 R. S., which will be The sestion carried here was in found under Hamlets, infra. Chap. 1, Div. 9, Title XII, R. S. All (2) This refers to the cities men- tis sections of this chapter are re- tioned in § 2690a R. S., repealed, pealed by the Code except that given (3) See §§ 39 and 49 of the Code, pages 164 and 179, Sec. 2709 R. S. [Municipal bonds first offered to sinking fund trustees.] » Whenever any municipal corporation issues its bonds, it shall first offer them at par and accrued interest to the trustees or commissioners, in their official capacity, of the sinking fund, or, in case there are no such trustees or com- missioners, to the officer or officers of such corporation having charge of its debts, in their official capacity, and only after their refusal to take all or any of such bonds at par and interest, bona fide for and to be held for the benefit of such corporation, sinking fund or debt, shall such bonds, or as many of them as remain, be advertised for public sale. [Not to be sold for less than par.] In no case shall the bonds of the corporation be sold for less than their par value; nor shall such bonds, when so held for the benefit of such sinking fund or debt, be sold, except when necessary to meet the re- quirements of such fund or debt. TAXATION AND EQUALIZATION. 785 [Sold to highest bidder after notice by publication.] All sales of bonds, other than to the sinking fund, by any municipal cor- poration, shall be to the highest and best bidder, after thirty days' notice in at least two leading newspapers of opposite poli- tics and of general circulation in the county where such mu- nicipal corporation is situated, setting forth the nature, amount, rate of interest and length of time the bonds have to run, with time and place of sale. Additional notice may be published outside of such county by order of the corporation council. [When may be sold at private sale.] Provided, however, when any such bonds have been once so advertised and offered for public sale, and the same, or any part thereof, remain unsold, then said bonds, or as many as remain unsold, may be sold at private sale at not less than their par value, under the direc- tion of the mayor, and the officers and agents of the corporation by whom said bonds have been, or shall be prepared, advertised and offered at public sale. [Refunding of corporate indebtedness.] Provided, further, that when it shall appear to the trustees or council of any mu- nicipal corporation to be for the best interests of such corpora- tion to renew or refund any bonded indebtedness of such cor- poration which shall not have matured, and thereby reduce the rate of interest thereon, such trustees or council shall have au- thority to issue for that purpose new bonds, with semi-annual interest coupons attached and to exchange the same with the holder or holders of such outstanding bonds, if such holder or holders shall consent to make such exchange and to such re- duction of interest. [Rates of interest.] But the rate per annum of interest on any such new bonds thus issued in exchange by any city of the first class, or by any city of the first or second grade of the second class shall not exceed four and one-half (4%) per cent., and by any other city shall not exceed five (5) per cent., and by other municipalities shall not exceed five and one-half (Si/o) per cent. ; such new bonds shall not in any case be so issued in an amount in excess of such outstanding bonded indebtedness go to be renewed or refunded, and may be in such denomina- tions and payable at such time or times and at such place as may be determined by such trustees or council. [1902, May 10, 95 v. 507 ; 93 v. 340 ; 91. v. 383 ; 88 v. 66 ; 87 v. 269 ; 80 v. 168; Eev. Stat. 1880; 66 v. 263, § 670.] (1) New Code provisions. — most identical with § 97 of the This section was in Chap. 2, Div. 9, Code. § 2709 R. S. is, however, not Title XII, R. S. The section is al- expressly repealed by the Code. Sec. 2834 R. S. [Surplus of special tax or loan may be trans- ferred to general fund.] Whenever there is in the treasury of 786 THE OHIO MUNICIPAL CODE. any city, village, hamlet, county, township or school district, any surplus of the proceeds of a special tax, or of the proceeds of a loan for a special purpose, which surplus is not needed for the purpose for which the tax was levied, or the loan made, such surplus may be transferred to the general fund by an or- der of the proper authorities entered on their minutes; and whenever there is in the treasury of any cuch civil division, at the annual meeting or meetings otherwise provided by law at which the annual tax levy is to be considered and adopted any surplus not exceeding one thousand dollars in any one estab- lished fund or division of the funds, which surplus is not needed for the purpose for which the fund was created, or the money appropriated, or the tax levied, before such annual tax levy is made, such surplus may be considered as unappropriated and may be reappropriated, and transferred, by an order as afore- said, to some other existing fund for which a tax is to be or would otherwise be levied, and the sum which it would be necessary to raise by taxation for * any purpose, if no such re- apportionment was made, shall thereupon be reduced to the ex- tent of the transfer thus made ; provided, however, that this act shall in no wise be considered as authority to make such reap- portionments or any transfer of. funds at any other time than the meeting aforesaid to determine the tax levy nor to author- ize transfers at any one such meeting of over three thousand dollars in the aggregate, nor that the amount which may be lawfully raised by taxation for any purpose may be increased by such transfer. 1 [92 v. 77; 75 v. 132, § 1.] (1) Transfer of funds under provide for the transfer of public the Code.— See § 43 of the Code, funds," page 170. page 167, and "an act to further An act to authorize the council of any incorporated village in Ohio to levy an additional tax for fire protection purposes. [Sec. 1.] [Village council authorized to levy additional tax for fire protection purposes.] That the council of any incorporated village in the state of Ohio, be, and they hereby are, authorized to levy an additional tax of five mills for the purpose "of defray- ing the expense of constructing and maintaining a water line, connecting any village with any water supply and for the pur- pose of maintaining said pipe line for fire protection purposes, to any village. Said tax of ^.ve mills to be levied upon all taxable property included in any incorporated village for the years, 1904, 1905, 1906, 1907 and 1908 ; and said tax to be in addition to the taxes now authorized by law. [1904, April 25, 97 v. 407.] TAXATION AND EQUALIZATION. 787 [An act to authorize councils of villages to levy a tax for street lighting and fire protection.] [Sec. 1.] [Village council authorized to levy tax for support of municipal waterworks or electric light plant.] That when waterworks and electric light plants or either of them are owned, run and controlled by any village, and such village receives its street lighting and fire protection from such plant or plants and the proceeds derived from the operation of such plant or plants is found to be insufficient to pay the expenses of running and conducting such waterworks and electric [light] plants, or either of them, the council of such village may levy a tax not to exceed five mills on each dollar valua- tion of all the taxable property listed for taxation in said village, both real and personal, to pay the running expenses and the extensions made to such plant after applying the pro- ceeds of such [said] plant thereto. Said tax to be in addition to all other tax now authorized by law. [1906, March 14, 98 v. 46.] 2. PKOPEKTY EXEMPT FKOM TAXATION. Sec. 2732 B. S. ] Property exempt.] The following property shall be exempt from taxation : First. [Schools and churches.] 1 All public school-houses, and houses used exclusively for public worship, the books and furniture therein, and the grounds attached to such buildings necessary for the proper occupany, use and enjoyment of the same and not leased or otherwise used with a view to profit; all public colleges, public academies, all buildings connected with the same, and all lands connected with public institutions of learning, not used with the view to profit. This provision shall not extend to leasehold estates of real property held under the authority of any college or university of learning in this state. Provided, nevertheless, that all leaseholds, or other es- tates or property whatsoever, real or personal, the rents, issues, profits and income of which have been, or hereafter shall be given to any city, town, village, school district or subdistrict in this state, exclusively for the use, endowment, or support of schools for the free education of youth without charge, are and shall be exempt from taxation so long as such property, or the rents, issues, profits and income thereof shall be used and ap- plied exclusively for the support of free education by such city, town, village, district or subdistrict. Second. [Cemeteries.] 2 All lands used exclusively as grave- yards, or grounds for burying the dead, except such as are held by any person, persons, company or corporation, with a view to profit, or for the purpose of speculating in the sale thereof. Third. [State and federal property.] All property, whether real or personal, belonging exclusively to the state or United States. 788 THE OHIO MUNICIPAL CODE. Fourth. [County buildings.] All buildings belonging to counties, used for holding courts, for jails, or for county offices, with the ground, not exceeding, in any county, ten acres, on which such buildings are erected. Fifth. [Poor-houses.] All lands, houses and other buildings belonging to any county, township or town, used exclusively for the accommodation or support of the poor. Sixth. [Public charities and armories.] 3 All buildings be- longing to institution [s] of purely public charity, and all build- ings belonging to and used exclusively for armory purposes by lawfully organized military organizations which are and shall continue to be fully armed and equipped at their own expense and by law made subject to all calls of the governor for troops in case of war, riot, insurrection or invasion together with the road [land] actually occupied by such institutions, and that owned and used as sites for such armory buildings of said mili- tary organizations not leased or otherwise used with a view to profit, and all moneys and credits appropriated solely to sustain and belonging exclusively to said institutions and military or- ganizations. Seventh. [Property used for extinguishing fires.] All fire-en gines and other implements used to [for] the extinguishment of fires, with the buildings used exclusively for the safe-keeping thereof, and for the meeting of fire companies, whether be- longing to any town or to any fire company organized therein. Eighth. [Other public property.] 4 All market-houses, pub- lic squares or other public grounds, town, or township, houses or halls, used exclusively for public purposes, or erected by tax- ation for public purposes, notwithstanding some parts thereof may be leased under and by virtue of section 2566 of the Re- vised Statutes of Ohio, and all works, machinery, pipe-lines and fixtures belonging to any town and used exclusively for con- veying water to such town, or for heating or lighting the same, and any unpaid taxes assessed against any property comprised in this subdivision, with any penalty thereon, is hereby re- mitted. Ninth. [One hundred dollars of personal property.] Each individual residing in this state may deduct a sum not exceed- ing one hundred dollars as exempt from taxation, from the ag- gregate listed value of his taxable personal property of any kind of which such individual is the actual owner, except dogs. Tenth. [Soldiers' monuments.] All funds raised and set apart for the purpose of building monuments to the fallen sol- diers of this state, and all monuments and monumental build- ings, when erected shall be forever exempt from taxation for any purposes whatever. 5 [91 v. 393, 216; 88 v. 95; 61 v. 39, §3; S. & S. 761 (S. & C. 1440).] TAXATION AND EQUALIZATION. 789 ( 1 ) Schools and churches. — teen years, see Zumstein v. Coal & See Gerke v. Purcell, 25 0. S. 229; Mining Co., 54 O. S., 264. State v. Cappelar, 6 B. 339; Com- Property owned by a municipal m'rs v. Mannix, 11 B. 184; Ken- corporation is not exempt from drick v. Farquhar, 8 O. 189; Col- taxation unless it is used for mu- lege v. State, 19 O. 110. nicipal purposes, and this is true, ._. _ . r, although it is leased by the muni- (2) Cemeteries.— See German ci lit and the money rea iized is Ev. Pr. Cem. v. Brooks, 8 C. C. 439. applied to a public pur p se. Cin- (3) Public charities. — For in- cinnati v. Lewis, 66 O. S. 49. stitutions of purely public character (5) Exemptions strictly con= see Gerke v. Purcell, 25 O. S. 229; strued.— Exemptions from taxa- Humphreys v. Little Sisters of the tion must be strictly construed. Poor, 29 O. S. 201; Lodge v. Hay- Library Ass'n v. Pelton, 36 O. S. slip, 23 O. S. 144; Library Ass'n v. 253, 258; Sturges v. Carter, 114 Pelton, 36 O. S. 253; Davis v. Camp U. S. 521; Lee v. Sturges, 46 O. Meeting Ass'n, 57 O. S. 257. S. 153. (4) Public property. — Appara- And an exemption does not re- tus belonging to a city used for lieve from a local assessment, supplying gas to its citizens, is Lima v. Cemetery Ass'n, 42 O. S. used for a public purpose and is 128. exempt. Toledo v. Hosier, 54 O. S. Relief for property erro= 418 neously taxed may be had under For taxation of municipal prop- § 1038 R. S. Butler v. Comm'rs, erty leased for more than four- 39 O. S. 169. 3. EQUALIZATION OF TAXES. Board of Review for Municipal Corporations. An act to provide for the appointment of a board of review for the equalization of real and personal property. [Sec. 1.] [Upon application of county auditor, state board of appraisers and assessors, to appoint board of review for munici- pal corporation in county; number of members; qualifications; term ; vacancies ; removals. ] 1 Upon the written application of the county auditor of any county to the state board of ap- praisers and assessors, for the appointment of a board of re- view for any municipal corporation of such county, for the equalization of real and personal property, moneys and credits within such municipal corporation, said board of appraisers and assessors may appoint said board of review, to be com- posed of three citizens, freeholders of such municipal corpora- tion not more than two of whom shall belong to the same po- litical party, one member of such board to be appointed for the term of one year, one member for the term of three years, and one member for the term of five years ; and thereafter at the expiration of the term of any member, there shall be, ap- pointed by the said state board of appraisers and assessors, a freeholder of such municipal corporation as successor to such member for the term of live years, and all vacancies in said board shall be filled for the unexpired term in the same man- ner as the original appointment. The state board of apprais- ers and assessors may, at its discretion, remove any member of said board. 790 THE OHIO MUNICIPAL CODE. i [Powers and duties of board.] Said board of review shall within and for their respective municipalities have all the pow- ers and perform all of the duties heretofore conferred upon or required of the annual city board for the equalization of the value of real and personal property, moneys and credits; the decennial city board, for the equalization of the value of real property ; and the annual city board of revision ; and the decen nial city board of revision, under any and all laws now in force, pertaining to such municipalities. And said board of review shall be the successor of said board of revision, said annual city board and said decennial city board, all of which boards shall, upon the appointment of a board of review in any municipal corporation under this act be abolished. Said board of review shall have power to hear complaints and to equalize the valuation of real and personal property, moneys and credits within such municipal corporation as said board of review may be located, and shall be governed by rules pre- scribed for the government of decennial county and city boards, and annual county and city boards, for the equalization of real and personal property. [95 v. 481.] [Sec. 2. j [Sessions of board.] Said board of review shall meet annually at the office of the county auditor on the first Monday in June, and shall continue in session from day to day (except Sundays and legal holidays) until the Saturday pre- ceding the first Monday in June of the following year ; provided that the state board of appraisers and assessors shall have the authority to fix the time within which the work shall be com- pleted. [95 v. 481.] [Sec. 3.] [Compensation of members; meetings, where held; clerks and other employes.] The county commissioners shall Ox the salary of the members of such board of review, which salary shall not be less than three dollars and fifty cents per day for each and every day the board shall be in session, and not to exceed two hundred and fifty ($250.00) dollars per month for the time such board may be in session, which salary shall be payable monthly out of the county treasury upon the order of said board and the warrant of the county auditor : And said board shall meet in rooms provided by the county commissioners, and shall, when in session, devote their entire time to the duties of their office, and no member thereof shall be engaged in any other business or employment during the period of time covered by the session of the board. Said board shall have power to employ a chief clerk and appoint such other clerks, not exceeding six (6), such mes- sengers, not exceeding six (6), as it may deem necessary, and fix their compensation, which shall be paid out of the county treasury upon the order of said board and the warrant of the TAXATION AND EQUALIZATION. 791 county auditor, and such incidental expenses as said board shall deem necessary, shall be paid out of the county treasury in like manner. [95 v. 481; 97 v. 313.] [Sec. 4.] [County auditor to be secretary of board; duties and compensation.] The county auditor of any county in which any of such municipal corporations are located shall be secretary to such board, and shall in addition to his other duties provided by law, be present at each meeting of the board in person or by deputy ; he shall keep a correct record of the proceedings of the board in a book to be kept for that purpose, and perform such other duties as the board may order, or as may be incident to his position. For his services as secretary to such board he shall receive out of the county treasury upon the order of the board five ($5.00) dollars per day for each and every day the board shall be in session. [95 v. 481.] [Sec. 5.] [Repeals.] All of the provisions of the Kevised Statutes of the state of Ohio, are hereby repealed in so far as they conflict with or are inconsistent with the provisions of this act, and not otherwise. 2 [May 10, 1902, 95 v. 481.] (1) Powers and duties. — See additional tax. McCormick Har- generally, notes to § 2805 R S., in- vesting Machine Co. v. Sims, 14 Dec. fra, upon powers and duties of city 15. boards of equalization; and see (2) Repeals. — Sec. 2805 R. S., notes to § 2807 R. S., infra. providing for annual boards of Acts of unconstitutional board, equalization was held to be repealed — In making addition to tax return by this act. State v. Clarke, 68 O. cannot be collaterally attacked, in S. 463; State ex rel. v. Godfrey, 25 action to restrain collection of such C. C. 62. Annual City Board of Equalization. Sec. 2805 U.S. [How constituted and organized; compensa- tion.] * In each city of the first and second class there shall be an annual board for the equalization of the value of real and personal property, moneys, and credits in such city, to be composed of the county auditor and six citizens of such city, ap- pointed by the council thereof, except in cities of the second grade, first class, where the mayor of such cities shall make such appointments, the first appointment to be two for one year, two for two years, and two for three years, except in cities in which such boards are already organized, when two shall be appointed for three years, and two shall be thereafter appointed annually for three years; and all vacancies shall be filled for the unexpired term provided, that the provisions of this act shall not affect any person or persons heretofore appointed, and now in office, during the time for which they shall have been appointed ; but in cities of the second class, third grade a, and third grade c, said six members shall be appointed by the board of tax commissioners, and the appointment of said board shall be so made, and the vacancies shall be so filled, 792 THE OHIO MUNICIPAL CODE. that not more than three members thereof shall be of the same political party, faith and allegiance, the first appointments to be two for one year, two for two years, and two for three years, and all the vacancies shall be filled for the unexpired terms from persons of the same political faith as those whose terms shall have expired. Said boards shall have all the pow- ers, and be governed by the rules, provisions, and limitations prescribed in the next preceding section, 2 for the annual county board; each member of said board is authorized to administer oaths, and said board is empowered to call persons before them, and examine them, under oath, in regard to their own or others' property, moneys, credits and investments, and the value there- of, and to equalize the value of real and personal property, moneys, credits, and investments within such cities, and to order any property, credit or investment to be placed on the duplicate for taxation, and fix the value thereof according to law, which has not been listed for taxation, and to increase the value of such property, moneys, credits and investments, as have in their judgment, been listed at less than their true value in money, and to reduce the value of such property, moneys, credits or investments as have been appraised above their true value in money, and shall annually meet at the office of the county auditor on the fourth Monday in May, except in cities of the first and second grade of the first class, when it shall meet on the fourth Monday in May, and shall close its session on or before the second Monday of September; except that in cities of the third grade of the first class, and in cities of the first and second grades of the second class and in cities of the second alass, third grade a, and cities having a population of twenty thousand and over by the last federal census, and which have not been by ordinance advanced to a city of the second grade of the second class, said board shall close its session on or before the first Monday of August ; and in cities of the third, third grade c and fourth grades of the second class, said board shall close its session on or before the fourth Monday of June then next following. For each day necessarily employed in the performance of their duties, the members of said board shall each receive, in cities of the first class, and in the first and second grades of the second class, and in cities of the second class, third grade a, and in cities having a population of twenty thousand and over, ascertained as aforesaid, and which have not been advanced to a city of the second grade of the second class, the sum of five dollars per day and in cities of the third grade third grade c, and fourth grade of the second class. TAXATION AND EQUALIZATION. 793 the sum of three dollars per day, and in cities of the third and fourth grades of the second class, not county seats, the members of such board shall receive, in addition to the sum of three dollars per day, ten cents per mile traveling expenses going to the said county seat ; and in cities of the first class, first grade, the auditor shall receive no compensation as a member of the board, but the board may appoint all necessary messengers and clerks, not exceeding six of each, who shall receive three dollars per day for their services, for the time actually em- ployed, which shall be paid out of the county treasury. The county auditor may act by his deputy or chief clerk in all city boards of equalization, and, in addition to the clerks herein authorized, the auditor of the county having a city of the first grade of the first class, shall appoint a clerk, who shall be styled the chief clerk of the board of equalization, at a salary of five dollars for each day's services performed; and such boards shall each have the same powers as are conferred upon annual county boards by the next preceding section, and upon complaint of the presiding officer thereof to the probate judge, the same proceedings shall be had against persons notified and neglecting or refusing to appear before them, or refusing to swear, or answer questions, as is provided in section two thou- sand seven hundred and eighty-three ; and county solicitors, or, where there is no such office, the prosecuting attorney of the county shall act as the legal adviser and attorney for the county board, and the city solicitor of the city board of equaliza- tion; provided, however, that this act shall not be deemed to supersede, or in any manner affect section two of an act entitled " An act supplementary to and amendatory of title XII of the Eevised Statutes of Ohio," passed March 26, 1891. [93 v. 618; 89 v. 21; 88 v. 177, 370; 87 v. 370; 86 v. 190, 192; 85 v. 173, 328; 83 v. 234; 79 v. 71; 78 v. 179; 77 v. 81, 182; Kev. Stat. 1880; 76 v. 95, § 2; (S. & S., 755).] ( 1 ) Powers and duties. — See one-half its nominal value, in the State ex rel. v. Raine, 47 O. S. 447 ; absence of fraud, it is conclusive and State ex rel. v. Lewis, 1 C. C. (N. the county auditor cannot add the S.) 56; 25 C. C. 227 (rev. 69 O. S. difference between the value fixed 578); Lewis v. Kramer, 69 O. S. and the nominal value, with the fifty 473. per cent. Sherard v. Lindsay, 13 The valuation fixed by the decen- C. C. 315 nial board cannot be altered by the The board must act upon the evi- annual board except upon reason- dence before it and not arbitrarily, able notice to all interested parties. Rawson & Co. v. Schott, 14 C. C. 94; Phillips v. Hunter, 9 C. C. 698; Black v Hagerty, 16 C. C. 255, 257; Banking Co. v. Hubbard, 22 C. C. 20. McCormick Harvesting Machine Co. A judgment pending on error v. Sims, 14 Dec. 15. should be returned at its true value, The powers of the city board are but if the annual board fixes it at 794: THE OHIO MUNICIPAL CODE. statutory and must be strictly con- motives and legality of the appoint- strued. George Scott's Sons v. ments of members of a board of Eaine, 25 B. 154. equalization, as long as the board §§ 2805 and 2807 R. S. limit the acts within its jurisdiction. Cleve- board's authority for equalization land Electric Ry. Co. v. Board of of assessments of new structures to Equalization, 8 N. P. 487. such as are returned for the cur- Nor will a board be enjoined from rent year by the assessor. Gib- increasing valuation because mayor son v. Zumstein. 21 B. 318. appointed members who coincided Where there is a change of con- with his views. As to power to in- dition it is within the discretion crease valuations because of previous -A i i. j x i. xi. increases on other property, being of the annual board to change the invalidated by Gay i F rd V Hubbard, valuation. Black v. Hagerty, 16 C. 56 O. S. 25, see Brooks v. Lander, C. 255. 13 Dec. 634. But the state auditor cannot, Validity.— This act held consti- . , . tutional. Cleveland Elec. Ry. Co. save by appeal in manner pro- y Board of Equalizatioilj g ^ R vided by law. lb. 487. He may, however, correct clerical Section now superseded, see errors. lb. note 2 > P- 791. A court of equity will not act J>> *» rff.^m*** upon allegations questioning the Raine, 47 O. S. 447, 458. Sec. 2805 — 1 K. S. [Springfield improvements if assessed.] § 5. In cities of the second class, third grade a, the provisions of section 2702, of the Revised Statutes of Ohio, shall not be held applicable in case of the improvement of public streets, alleys, avenues or spaces, or in the construction of sewers, sidewalks, curbs, or gutters, where the whole or any part of the cost of such improvement is to be assessed upon the abutting or other benefited lots and lands in such cities. [89 v. 23.] Sec. 2805 — 2 R. S. [Springfield improvements if contracted for.] § 6. In cities of the second class, third grade a, the provisions of section 2702, Eevised Statutes, shall not be held to apply to any of the improvements enumerated in section 5 [§(2805 — 1)] of this act which are now either contracted for or are now in process of construction. [89 v. 23.] Sec. 2805a R. S. [Power of the Cincinnati and Cleveland boards as boards of revision.] And in each city of the first and second grade, class first, the county auditor may, whenever he may deem it necessary to, call together the annual city board of equalization on the first Monday of December of each year, and the said board when so called together, shall sit as a board of revision of such acts done by it as a board of equalization at the previous meeting thereof, as the county auditor may present to it for its revision. But before acting as a board of revision, the members thereof shall be sworn, by a competent officer, to a faithful discharge of their duties as such board, and any re- funder, abatement, or change of value, which said board of revision may recommend to be made, shall be deemed and held TAXATION AND EQUALIZATION. 795 in a case of refunder or abatement, to be sufficient authority for the county auditor to issue his order of refunder or abatement, on the county treasurer, and in case of change of value, such recommendation of change by said board shall be deemed and held sufficient authority for said officer to enter the same in his book of additions and deductions, and all acts of the said board of revision shall be subject to an appeal, through the county auditor, to the auditor of the state; said board of revi- sion shall have power to administer any oath which it may deem necessary to the proper discharge of its duties; it shall not continue in session for a longer time than four weeks. Public notice shall be given by the county auditor of each meeting of said board, and its members shall be paid the same amount per day, as when sitting as a board of equalization. [1888, April 10: 85 v. 173, 174; 83 v. 234, 235; 78 v. 179, 180; 77 v. 81, 82.] Sec. 2805b B. S. [Cleveland board; appointment and term of members.] In cities of the second grade of the first class there shall be a board of equalization and assessment, to be composed of three members, electors of said city, not more than two of whom shall belong to the same political party, who shall be appointed by the probate judge, for the term of three years; provided, that at the first appointment, which shall be made on the fourth Monday of April after the passage of this act, or as soon there- after as practicable, one of said members shall be appointed for one year, one for two years and one for three years, and annually thereafter one member shall be appointed for the term of three years; and all vacancies shall be filled by ap- pointment for the unexpired term. The probate judge may, at discretion, remove any member of said board. [89 v. 283.] Sec. 2805c U.S. [Salary; bond; sessions, etc.] The mem- bers of said board shall each receive a salary of twenty-five hundred dollars per annum, and shall give bond in the sum of five thousand dollars to the approval of the probate judge. They shall devote their whole time to the duties of their office and no member shall be engaged in any other business avocation or employment. The board shall hold daily sessions so far as practicable and a record of its proceedings shall be kept. [89 v. 283.] i Sec. 2805dR. S. [Organization.] The said board shall meet on the first Monday of May of each year and the member hav- ing the shortest time to serve, not holding his office by appoint- ment to fill a vacancy, shall be president for the ensuing year. The county auditor shall be secretary of said board, and for 796 THE OHIO MUNICIPAL CODE. his services in that behalf shall receive a salary of six hundred dollars per annum in addition to any salary now provided by law. The auditor shall appoint, subject to the confirmation of the board, a chief clerk for said board, who shall receive a salary of fifteen hundred dollars per annum, and not to exceed three assistant clerks, who shall .each receive a salary of seventy- five dollars per month, and shall prescribe their duties. The board shall appoint such number of messengers, not exceeding six, as may from time to time be required^ who shall each receive three dollars per day for their services, for the time actually employed. Not more than one-half of said clerks or onerhalf of said messengers shall belong to the same political party. [89 v. 283.] Sec. 2805e R. S. [Assessors.] § 4. In every city of the second grade of the first class the said board shall, annually, on or be- fore the second Monday of April, appoint not exceeding forty assessors, not more than one-half of whom shall belong to the same political party, who shall hold their office for the term of one year, but may be removed by the board at its pleasure, and who shall each receive for his services a compensation of four dollars per day for each day actually employed in the performance of his duties; provided, that no assessor shall in any one year receive compensation for more than thirty-six days' service, except upon the order of the board and the ap- proval of the county auditor. Said assessors shall have the same power and perform the same duties as are or may be provided by law with respect to township assessors, and said board shall assign such assessors to the different wards of such city, or it may divide such city into districts and assign them to such districts. All statements of statistics and the quadren- nial enumerations required of township assessors shall be made and returned by the assessors appointed by said board, for the wards or districts to which they may be respectively assigned by the board. Each of said assessors shall give bond in the sum of one thousand dollars to the approval of the board. [89 v. 283.] Sec. 2805f It. S. [Equalization of valuation of real property in Cleveland.] § 5. Unconstitutional. Gaylord v. Hub- bard, 56 O. S. 25. Sec. 2805gR. S. [Certain powers given to board.] § 6. The said board shall be the successor of, and, except as otherwise provided in this act, shall have all the powers and perform all the duties prescribed by law for the decennial -board for the equalization of the value of the real property within such city, TAXATION AND EQUALIZATION. 797 of the annual board for the equalization of the value of real and personal property, moneys and credits in such city, and oi the last named board as a board of revision; also of the board of tax commissioners in such city. Said decennial board for the equalization of the value of real property and said annual board for the equalization of the value of real and personal property, moneys and credits, and the board of tax commis- sioners, in cities of the second grade of the first class, are here- by abolished ; and the city council may designate said board of equalization and assessment in place of appointing the board provided by section 2279 of the Revised Statutes, in which event said board shall have all the authority and perform all the duties provided by law for said equalizing board. [89 v. 283.] Sec. 2805hR. S. [Decennial assessment of real estate; other powers.] § 7. The decennial assessment of real estate to be made in the year 1900 and every tenth year thereafter, as provided by law, shall, in cities of the second grade of the first class be made by said board, and for that purpose it may appoint in such decennial years, such numbers of assist- ants and at such compensation as the city council may ap- prove. The said board shall have all the powers and perform all the duties now provided by law for the district assessors of real estate in such cities, who are hereby abolished, and all the provisions of sections 2789, 2790, 2791, 2792, 2793, 2798 and 2799 of the Revised Statutes pertaining to said district assessors of real property in such cities, shall apply to and govern said board; provided, that nothing herein contained shall require said board to divide such city into districts for the purpose of such assessment, and unless the context otherwise require, the term " district " in said sections of the Revised Statutes shall be construed as referring to such city; provided further, that the return of the amount, description and value of the real property subject to be listed for taxation in said city shall be delivered to the auditor of the county on or before the first Monday of November in each decennial year. [89 v. 283.] Sec. 2805i R. S. [Payment of salaries, etc.] § 8. The sal- aries of the members of said board shall be paid out of the city treasury. All other salaries and compensation herein provided for, and any contingent expenses authorized by the county com- missioners, shall be paid out of the county treasury. [89 v. 283.] 798 THE OHIO MUNICIPAL CODE. Sec. 2805j R. S. [Rooms, etc. ; official bonds.] § 9. The coun- ty commissioners of the county in which any such city is located shall provide suitable and convenient rooms for the use of the board ; and all stationery, printing and supplies needed by said board shall be furnished at the expense of the county. All official bonds required to be given by this act shall be filed with the county auditor. [89 v. 283.] Sec. 2805k R. S. [Penalty.] §10. Any member of said board who shall wilfully neglect or refuse to perform any duty enjoined on him by law, or who shall consent to or connive at any evasion of the provisions of law whereby any property required to be assessed shall be unlawfully exempted or the valuation thereof entered at less than its true value, shall, for every such neglect, refusal, consent or connivance, forfeit and pay not less than the sum of two hundred dollars nor more than one thousand dollars, to be recovered by action in the name of the state, and he shall also be forthwith removed from office. [89 v. 283.] Sec. 28051 R. S. [Annual board of equalization; appointment in Columbus.] § 1. In cities of the first grade of the second class, the annual board for the equalization of the value of real and personal property, moneys and credits, in such cities^ shall be composed of the county auditor and six citizens of such cities appointed by the mayor thereof, for the term of one year, three members of which board shall be appointed from each of the two leading political parties in such cities. [87 v. 336.] Sec. 2805m R. S. [Decennial board.] § 2. In cities of the first grade of the second class, the decennial board for the equalization of the value of real property within such cities, shall be composed of the county auditor and six citizens of such cities, appointed by the mayor thereof, three members of which board shall be appointed from each of the two leading political parties in such cities. [87 v. 336.] Sec. 2805nR. S. [Powers and duties.] §3. Said boards shall have all the powers, and be governed by the rules, provi- sions and limitations, and perform the same duties as are, or may be prescribed by law, with respect to like boards in other cities; provided, that such annual city board of equalization shall close its session on or before the first Monday of August. [87 v. 336.] Sec. 2805o R. S. [Compensation.] § 4. For each day nec- essarily employed in the performance of their duties, the mem- bers of said boards shall each receive the following compenea- TAXATION AND EQUALIZATION. 799 tion, to-wit: the members of said annual city board the sum of three dollars per day ; the members of said decennial board, the sum of five dollars per day. [87 v. 336.] Duties and Powers of Boards. Sec. 2806 E. S. [Duties of auditor and state board of equali- zation.] The county auditor shall lay before each of the above- named boards, 1 for the territory they respectively have juris- diction over, the returns of the assessors for the current year, and such returns as are required to be made to the county audi- tor as is provided in section two thousand seven hundred and forty-four and also the valuation of the real estate as the same was entered on the duplicate of the preceding year, or as fixed by the state board of equalization, with such maps, returns, lists, abstracts and other papers that may be in the auditor's office pertinent to their duties, and each of said boards shall keep a regular journal of its proceedings, 2 which shall be deposited with the auditor. 3 [1883, March 9: 80 v. 54; 77 v. 191, 192; Rev. Stat. 1880; 56 v. 175, § 46; (S. & C. 1457).] (1) This refers to both city and 35 O. S. 397, in conflict with this «cunty boards. statement. Scott's Sons v. Raine, 25 (2) Minutes conclusive as to B. 154, 162. action of board. — The action of (3) Annexation. — Territory an- the board, as evidenced by its min- nexed to a city prior to meeting of utes, must be regarded as conclusive county board of equalization is in the absence of fraud or mistake; equalized by city board. State ex nor is the case of Fratz v. Mueller iel. v. Holmes, 20 O. S. 474. Sec. 2807 R. S. [Equalizing of assessments; deduction for de- stroyed personal property.] The said boards shall hear complaints and equalize the assessments of all personal property, moneys and credits, new entries and new structures 1 returned for the current year, by the township assessors and county auditors; and they shall have power to add to, or deduct from the valuation of personal property, or moneys or credits, of any person returned by the assessor or county auditor, or which may have been omitted by them, or to add other items upon such evidence as shall be satisfactory to the said boards 2 wheth- er said return be made upon oath of each person or upon the valuation of the assessor or county auditor, but when any addition shall be ordered to be made to any list returned under oath, a statement of the facts upon which such addition was made, shall be entered on the journal of the boards. 3 Provid- ed, that no such addition shall be made to such list returned under oath without the board having first given reasonable no- 800 THE OHIO MUNICIPAL CODE. tice 4 to the person or persons (if their residence be within the county) whose personal property is sought to be added to, or the valuation thereof increased, to appear before said board at a time and place to be fixed by said board, and show cause why such addition should not be made, or why such valuation should not be increased; and when any reduction shall be or- dered to be made in the amount of personal property, or moneys or credits of any person, whether such return be made by such person or by the assessor or county auditor, a statement of the facts on which such reduction was made shall be en- tered on the journal of the boards. And such boards shall have power, whenever it is made to appear to their satisfaction that any personal property returned by the township assessors or county auditors, for the current year, has been destroyed by fire, flood, tornado or otherwise, after the second Monday in April and before the final adjournment of said boards, to deduct from the valuation of the personal property, or moneys or credits of the owner uf such destroyed property so re- turned, the value of the personal property so destroyed. [92 v. 218 ; 83 v. 231 ; 80 v. 54; 77 v. 75, 76, 191, 192 ; Rev. Stat. 1880; 56 v. 175, § 46; (S. & C. 1457).] And as a general rule, the deci- sions of officers charged with the duty of valuing property for taxa- tion and equalizing valuations, are final and conclusive. Wagoner v. Loomis, 37 0. S. 571. See further Britton v. Baker, 12 Dec. 107. (3) Statement of facts in journal. — The provision in the stat- ute " a statement of facts on which such addition is made shall be enter- ed on the journal " is mandatory. Fratz v. Mueller, 35 O. S. 397 ; Rat- terman v. Niehaus et al., 4 C. C. 502. (4) Service off notice. — Notice must be given to all parties inter- ested before addition is made, and must be served personally and proof made to that effect. Simply mail- ing letter containing notice is not sufficient. Hayes v. Yost, 24 C. C. 18. See also Moore v. Given, 39 O. S. 661; Perkins Zumstein, 4 C. C. 371. When notice not required. — — Notice required by § 2807 R. S. is not necessary in the case of new structures. Sehindler v. Lewis, 16 C. C. 348 ; Scott's Sons v. Raine, 25 B. 154, 157. (1) New structures. — New structures defined, see State v. Lew- is, 20 C. C. 319; Sehindler v. Lewis, 16 C. C. 348. (2) Board must act on evi- dence. — Additions must be made on satisfactory evidence and not ar- bitrarily. Fratz v. Mueller, 35 O. S. 397; Rawson & Co. v. Schott, 14 C. C. 94; Black v. Hagerty, 16 C. C. 255, 257. And the facts which concern the correctness and completeness of each separate item, which have been proved to the board by satisfactory evidence, must be stated clearly in the record, so that reviewing au- thorities may know upon what facts the board acted. Hayes v. Yost, 24 C. C. 18; Ratterman v. Niehaus, 4 C. C. 502. And additions without evidence are unauthorized. Wise v. Krom- berg, 3 B. 863. Evidence must be acted on by ma- jority of board. Hirschman v. Fratz, 7 B. 35. But a board should act if it thinks the return ie below true val- ue, though no complaint is made. State v. Sullivan, 15 C. C. 333; aff'd, 58 O. S. 504. TAXATION AND EQUALIZATION. 801 The addition of a new item by the levy. Jones v. Davis, 35 O. S. 474, board and an order to the auditor 479. to place it on the duplicate is not a __ Decennial City Board. 1 Sec. 2815 U.S. [City board: how constituted and organized.] In each city of the first and second class there shall be a decen- nial board for the equalization of the value of the real property within such city, to be composed of the county auditor, and six citizens of such city, appointed by the council thereof, except that in cities of the first grade of the first class, said six mem- bers shall be appointed by the city comptroller of such city, and shall consist of three members of each of the two leading politi- cal parties. Said board shall convene at the office of the county auditor, on the first Monday of August, in the year one thousand nine hun- dred, and every tenth year thereafter, and shall close its session on or before the third Monday in October then next following ; and they shall severally take the same oath 2 as that prescribed for the decennial county board ; and a record of the proceedings and orders of said decennial city board of equalization shall be kept by the auditor. [94 v. 337 ; 93 v. 619 ; 88 v. 178 ; 87 v. .334; 77 v. 73; E. S. of 1880; 65 v. 166, § 40 (S. & S. 753).] (1) For an act relating to com- (2) Oath. — The members of a pensation of decennial city boards board of review, having taken the in Cincinnati and Cleveland for a oath of office are not required to certain period of service, see 95 O. take another oath when acting as L. 3. decennial board of equalization. N. Constitutionality. — See Scar- C. Harmony Lodge v. Hagerty, 28 borough v. Gibson, 13 Dec. 738; 1 N. B. 67. P. (N. S.) 77 (aff'd, 69 0. S. 578). Sec. 2816 R. S. [Powers; clerks; compensation.] The said board shall as to the real estate within such city, have the same powers, perform the same duties, and be governed by the same rules, provisions and limitations as the decennial county board of equalization, 1 and in cities of the first grade of the first class, said board may appoint a chief clerk who shall be entitled to receive for each day necessarily employed in the performance of his duties a sum not exceeding four dollars, to be paid out of the county treasury, after the same has been approved by the county commissioners; said board may also employ such other clerks as may be necessary, who shall be en- titled to receive not exceeding four dollars per day each for the time necessarily emploved, to be paid out of the county treas- ury. [87 v. 338 ; 65 v. 166, § 40 ; S. & S. 758.] (1) Powers. — See N. C. Har- increasing the grand total of a de- mony Lodge v. Hagerty, 28 B. 67, cennial appraisement, as fixed by 71. city decennial board of equalization. City decennial board of revision Scarborough v. Gibson, 13 Dec. 738 is not forbidden by § 2814 from (aff'd, 69 O. S. 578). 802 THE OHIO MUNICIPAL CODE. XX INTOXICATING LIQUORS. 1. DISTRIBUTION OF DOW TAX. Sec. 4364 — 17 R. S. [Distribution of tax under Dow Law.] § 9. That the revenues and fines resulting under the provisions of this act 1 shall be distributed as follows, 2 to- wit : In every county three-tenths of the money paid, as herein provided ; into the county treasury on account of any business aforesaid, carried on in any city, village, hamlet or township therein, shall be passed to tht credit of the general revenue fund of the state and paid into the state treasury by the county treasurer, as is provided in other cases ; five-tenths of the money so paid, shall, upon the warrant of the county auditor, be paid on ac- count of any business aforesaid, carried on in any such munici- pal corporation or township into the treasury of said corpora- tion or township, one-half to the credit of the police fund, and one-half to the credit of the general revenue fund thereof : pro- vided, in corporations having no police fund the entire five- tenths shall be passed to the credit of the general revenue fund thereof, and in townships having no police fund, said one-half of five-tenths shall be passed to the credit of the poor funds thereof; and the remaining two-tenths part thereof, together with all other revenues resulting hereunder in said county, shall be passed to the credit of the poor fund of said county ; provided, that in all counties in which there is no county in- firmary said remaining two-tenths part thereof shall be passed to the credit of the infirmary fund or the poor fund of the town- ship, village or city in which the same shall have been collected : and in such counties, when the money is paid on account of any business carried on in any township outside of any such munici- pal corporation, said five-tenths, also, shall be passed to the credit of the infirmary fund or the poor fund of said township ; [Hamilton county.] And provided, that in counties having a city of the first grade of the first class with a city infirmary and a county infirmary, the above two-tenths part shall be INTOXICATING LIQUORS. 803 divided as follows : The city infirmary fund shall have passed to its credit two-tenths of all the money so paid in said city of the first grade of the first class; the county infirmary fund shall have passed to its credit two-tenths of all the money so paid in by any village, hamlet or township in said county, outside of said city of the first grade of the first class ; and the the above five-tenths part of all the money so paid in by any township, outside of any municipal corporation, shall be paid into the treasury of such township, to be distributed by the order of the trustees of said township to the general revenue fund and poor relief fund, in such proportions as said trustees may deem proper. [93 v. 37 ; 92 v. 34 ; 87 v. 357 ; 85 v. 117 ; 83 v. 157.] ( 1 ) Dow law. — The act referred must be paid over by the treasurer to is the " Dow Law " of which this- according to law. Ratterman v. section is a part. State, 44 O. S. 641 ; see also Frame (2) Money how distributed.— v. State, 53 O. S. 311. Money collected under Dow law [Sec. 9a.] [Disposal of surplus Dow tax.] All moneys passed to the credit of any city infirmary fund, under the provisions of the section to which this is supplementary, and all moneys placed to the credit of such fund from any other source what- soever, not used for the support, maintenance and operation of such infirmary during any fiscal year ending December 31st, shall be placed by the auditor of the city to the credit of and for the use of the police department of such city. [97 v. 286.] 2. BEAL LOCAL OPTION LAW. 1 Sec. 4364— 20 R. S. [Closing of saloons on Sunday.] [§ 1.] That the sale 2 of intoxicating liquors, whether distilled, malt or vinous, on the first day of the week, commonly called Sun- day, except by a regular druggist on a written prescription of a regular practicing physician for medical purposes only, is hereby declared to be unlawful, and all places where such in- toxicating liquors are on other days sold or exposed for sale, except regular drug stores, shall on that day be closed, 3 and whoever makes any such sales, or allows any such place to be open or remain open on that day shall be fined in any sum not exceeding one hundred dollars and not less than twenty-five dollars for the first offense, and for each subsequent offense shall be fined not more than two hundred dollars or be imprisoned in the county jail or city prison not less than ten days and not exceeding thirty days, or both. 4 804 THE OHIO MUNICIPAL CODE. [Hotels and eating houses.] In regular hotels and eating houses 5 the word " place " herein used shall be held to mean the room or part of room where such liquors are usually sold or exposed for sale and the keeping of such a room or part of room securely closed shall be held, as to such hotels and eating houses, as a closing of the place, within the meaning of this sec- tion. [Municipal regulations.] And any municipal corporation shall have full power to regulate 6 the selling, furnishing or giving away of intoxicating liquors as a beverage and places where intoxicating liquors are sold, furnished or given away asa" bev- erage," except as provided for in section 4364-20c of this act. [1902, April 3 : 95 v. 87.] (1) Beal local option law. — §§ (4364-20) to § (4364-2(K) consti- tute the Beal Local Option law, passed April 3, 1902. For reference to this act in the new Code, see par. 5, § 7, page 47. Validity. — The Beal law was held constitutional in Lloyd v. Dol- lison, 23 C. C. 571; 3 C. C. (N. S.) 328 (afFd, 68 O. S. 688) ; (U. S. Sup. Ct., 3 O. L. R. 23 ; 14 0. F. D. 380). As to validity of former § 4364-20 R. S., see Madden v. Smeltz, 2 C. C. 168; Van Wert v. Brown, 47 O. S. 477. (2) Sale within the meaning of this act is defined in Kaufman v. Hillsboro, 45 O. S. 700. Single sale, otherwise than as al- lowed, is a violation. Belle Centre v. Welsh, 24 B. 176; Volk v. West- erville. 3 N. P. (N. S.) 241. Several sales may be charged in one affidavit and a fine assessed for each offense, even though aggregate exceeds limit of fine for one offense. Kubach v. State, 25 C. C. 488; 2 C. C. (N. S.) 133. As to allegations and proof of sale, see Monte v. Pabst, 14 Dec. 97; Kappes v. State, 25 C. C. 723; 4 C. C. (N. S.) 14; Oberer v. State, 8 C. C. (N. S.) 93; Bromley v. Eu- clid, 15 Dec. 155; 2 N. P. (N. S.) 508. (3) Place must be closed and not merely the business, and failure to close the place is an infraction of this section. State v. Heibel, 54 O. S. 321. See also Effinger v. State, 9 C. C. 377. Covering the beer pumps and sep- arating the bar by a wire screen do not render the serving of meals in the place on Sunday lawful. Led- erer v. State, 5 C. C. 623. (4) Jurisdiction, trial, etc. — See notes under § 43o4-20&, infra. (5) "Regular hotels and eat- ing houses" do not include saloons where meals are served, the serving of meals being subordinate and not the principal business. Lederer v. State, 5 C. C. 623. (6) Power of councils to reg= ulate. — See paragraph 5, § 7 of the Code and notes, page 47, et seq. The provisions of this section may be enforced by a penalty which coun- cil may prescribe by ordinance. Al- liance v. Joyce, 49 O. S. 7. See also as to power of councils, Madden v. Smeltz, 2 C. C. 168. Sec. 4364— 20a R. S. [Petition for an election on saloon ques- tion; special election to be held; notice and conduct of election] That whenever forty per cent, of the qualified electors of any municipal corporation shall petition the council thereof for .the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of Page 804 INTOXICATING LIQUOKS. 805 such municipal corporation, such council shall order a special election to he held in not less than twenty nor more than thirty days from the filing of such petition with the mayor of the municipal corporation or from the presentation of such peti- tion to said council, which said petition shall be filed as a public document with the clerk of the municipality, and preserved for reference and inspection and which election shall be held at the usual place or places for holding municipal elections, and notice shall be given and the election conducted in all respects as provided by law for the election of members of the council of the corporation, so far as said law may be applicable. 1 [Record of result of election; its value as evidence.] The result of such election shall forthwith be entered upon the record of the proceedings of the council of the corporation by the clerk thereof, and in all trials for violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the corporation, provided that said record shows that a majority of the votes cast at said election was against the sale of intoxi- cating liquors as a beverage, shall be prima facie evidence that the selling, furnishing or giving away of intoxicating liquors as a beverage or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful. 2 [1902, April 3, 95 v. 87.] (1) Petition. — That forty per code. — This section making provi- cent. of voters have signed petition sion for election applies to hamlets must affirmatively appear before existing before new Code. Carey v. council can order election; it will State, 70 O. S. 121. not be presumed because council has Resolution of council ordering ordered election. In re Huntsville election under the Beal Law need Local Option Election, 25 C. C. 535; not be read on three different days, 1 C. C. (N. S. ) 489; if it does af- but three readings may be had at firmatively appear, the record will one time. Kumpf v. Delhi, 1 N. P. be presumed to be regular. lb. Dal- (N. S.) 336. rymple v. State, 26 C. C. 562; 5 C. Publication of notice for a pe- C. (N. S.) 185. riod less than ten days required by Number of electors. — Forty per statute is not fatal to validity of cent, of those who cast votes at last election. Fike v. State, 25 C. C. 554. preceding election sufficient. In re (2) Collateral attack. — Validity South Charleston Election, 3 N. P. of special election cannot be col- (N. S.) 373; 50 B. 173. laterally impeached by defendant in- Withdraival of names from peti- dieted for sale contrary to law. tion for Beal law election is allow- Fike v. State, 25 C. C. 554. But see able at any time before the election Stick v. State, 3 C. C. (N. S.) 611; is ordered; and if enough names 23 C. C. 393, where it is held state have been withdrawn to reduce the must show beyond reasonable doubt number of signers below that re- that election was valid, quired, election cannot be ordered. Failure of clerk to record the re- Haynes v. Hillsboro, 3 N. P. (N. S.) suit of the election, as required, 17; 50 B. 236. does not invalidate the election, if Applies to hamlets before new the election and result thereof can 805(J THE OHIO MUNICIPAL CODE. be established by other evidence. 5 C. C. (N. S.) 185. Dalrymple v. State, 26 C. C. 562; Sec. 4364— 20b R. S. [Ballots to be voted at such election.] The ballots at any special election, held under the provisions of this act, shall be printed with an affirmative and a negative statement, to-wit : " The sale of intoxicating liquors as a beverage shall be prohibited/' u The sale of intoxicating liquors as a beverage shall not be prohibited/' with a blank space on the left side of each statement in which to give each elector an opportunity to clearly designate his choice by a cross mark as follows : ( ) The sale of intoxicating liquors as a beverage shall be prohibited. ( ) The sale of intoxicating liquors as a beverage shall not be prohibited. 1 [When the sale In any municipality shall be unlawful ; penalty for making such prohibited sale.] And if a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of holding said election it shall be unlawful for any person, personally or by agent, within the limits of such municipal corporation to sell, furnish or give away any intoxi- cating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished, for beverage purposes, and whoever from and after the thirty days aforesaid- in any manner directly or indirectly, sells, fur- nishes, or gives away, or otherwise deals in any intoxicating liquors as a beverage, or keeps or uses a place, structure or ve- hicle, either permanent or transient for such selling, furnishing or giving away or in which or from which intoxicating liquors are sold, given away or furnished or otherwise dealt in as afore- said, shall be guilty of a misdemeanor, and shall on conviction thereof, be fined not more than two hundred dollars nor less than fifty dollars for the first offense, and shall for a second offense be fined not more than five hundred dollars nor less than one hundred dollars, and for any subsequent offense be fined not less than two hundred dollars and be imprisoned not more than sixty days and not less than ten days. 8 [Manufacturers may sell at wholesale to retail dealers.] But nothing contained in any of the sections of this act shall in any manner affect the right of any manufacturer of intoxi- cating liquors from the raw material, to sell, deliver and furnish his product in wholesale quantities to bona fide retail dealers trafficking in intoxicating liquors, or in wholesale quantities to any party or parties residing outside the limits of said munici- pality. [1902, April 3 : 95 v. 87.] NTOXICATING LIQUORS. 806 (1) Ballots. — Form of. See In re South Charleston Election, 8 N. P. (N. S.) 373; 50 B. 173. What ballots counted. See Jack- son v. Washington, 3 N. P. (N. S.) 453. (2) Municipality prohibiting sale, effect on Dow tax. — Where in- toxicating liquors were sold in vio- lation of a municipal ordinance, passed under § 11 of the Dow law, it was held that the tax authorized by that law could, nevertheless, be collected. Conwell v. Sears, 65 O. S. 49. Corporation not indictable for unlawful sale. Ebbert Brew. Co. v. State, 25 C. C. 601. Court, — Mayor has final juris- diction to try one accused under the Beal Law, whether trial is for first or second offense. Kappes v. State, 25 C. C. 723; Wells v. State, 14 Dec. 196; 1 N. P. (N. S.) 309; Dom- inick v. State, 27 C. C. 305; 6 C. C. (N. S.) 192. Jury, — Offense may be tried by a jury of the county, and it is not necessary that jurors should be se- lected from municipality alone in which violation of the statute oc- curred. Lloyd v. Dollisin, 23 C. C. 571; 3 C. C. (N. S.) 328 (aff'd, 68 O. S. 688). Trial may be had without a jury, where the penalty is a fine only. Wells v. State, 1 N. P. (N. S.) 309; Harlow v. State, 1 N. P. (N. S.) 323; 14 Dec. 196; Kubach v. State, 2 C. C. (N. S.) 133; 25 C. C. 488; Kappes v. State, 25 C. C. 723. Imprisonment imposed to enforce payment of fine is not part of pen- alty, and jury trial is not necessary where this is the case. Schlagel v. State, 16 Dec. 295; 3 N. P. (N. S.) 429 (aff'd Cir. Ct. without rep.). Sufficiency of affidavit, etc. — In prosecutions founded on affidavit, information or indictment for sell- ing intoxicating liquors to be used as a beverage, in violation of §§ 4364-206 and 4364-20c, it is nec- essary to allege in the affidavit, in- formation or indictment, the name of the purchaser of such liquors, or that his name is to the affiant, in- formant, or grand jury unknown. State v. Ridgway, 73 O. S. 31; see also Stewart v. State, 25 C. C. 438; 2 G. C. (N. S.) 290. But see Dal- rvmple v. State, 26 C. C. 562; 5 C. C. (N. S.) 185. Where the affidavit does not show that the offense was a second or third offense, it will be presumed to be a first offense. Harlow v. State, 1 N. P. (N. S.) 323. An affidavit must show former conviction to charge second offense. Kubach v. State, 2 C. C. (N. S.) 133; 25 C. C. 488. Where affidavit alleges sale and keeping a place where sale is made, state is not bound to elect one or the other charge, since keeping a place where sale is made involves sale. lb.; Kappes v. State, 25 C. C. 723; 4 C. C. (N. S.) 14; but see Domi- nick v. State, 27 C. C. 305; 6 C. C. (N. S.) 192. Where one count cnarges defend- ant with keeping a place where in- toxicating liquors are sold in viola- tion of § 4364-206 and another count charges the same in violation of § 6942, each count covering the same period of time and the defendant kept but one place, there is but one offense. Weaver v. State, 74 O. S. (51 B. 77). As to necessity of negative aver- ment that defendant does not come within exception named in statute, see Schlagel v. State, 16 Dec. 295; 3 N. P. (N. S.) 429 (aff'd Cir. Ct.) Affidavit is not demurrable which alleges the acts complained of to be then and there prohibited and un- lawful. Kappes v. State, supra. New trial and bill of excep- tions. — See notes under § 1752 R. S., p. 543, and Harlow v. State, 1 N. P. (N. S.) 323, as modified, 1 O. L. R. 751. Fine provided by Beal Law is not within constitutional inhibition, as excessive. Wells v. State, 1 N. P. (N. S.) 309; 14 Dec. 196. Pine of $100.00 on each of three counts of an affidavit is excessive for first offense. Dalrymple v. State, 26 C. C. 562; 5 C. C. (N. S.) 185; Carey v. State, 70 O. S. 121. Sec. 4364r— 20c R. S. [Meaning of phrase "intoxicating liquors"; regular druggists.] The phrase "intoxicating liq- uors" as used in this act shall be construed to mean any dis- 807 THE OHIO MUNICIPAL CODE. tilled, malt, vinous or any other intoxicating liquors ; but noth- ing in this act shall be construed to prevent the selling of intoxi- cating liquors at retail by a regular druggist for exclusively known medicinal, pharmaceutical, scientific, mechanical or sac- ramental purposes; and when sold for medicinal purposes it shall be sold only in good faith upon written prescription issued, signed and dated in good faith by a reputable physician in active practice and the prescription used but once. The words " giv- ing away " where they occur in this act shall not apply to the giving away of intoxicating liquors by a person in his private dwelling, unless such private dwelling is a place of public resort. Sec. 4364 — 20d R. S. [Rebate of Dow tax when sale discon- tinued.] When any person, company or corporation has dis- continued such traffic in accordance with the provisions of this act, within the time specified by section 4364-20a of this act, has paid or is charged upon the tax duplicate with an assessment upon such traffic, the county auditor, upon being satisfied of such fact, shall issue to such person, company or corporation, a refunding order of an amount proportionate to the unexpired time for which said assessment has been paid. [1902, April 3 : 95 v. 87.] Sec. 4364 — 20e R. S. [What constitutes forty per cent, of the qualified electors; sufficiency of indictments under this act.] The petition for an election provided for in section 4364-20a of this act shall be deemed sufficient and the council shall order such an election when the petition is signed by as many quali- fied electors as shall equal in number forty per cent, of the num- ber of votes cast in said municipal corporation at the last pre- ceding general election in municipalities which are divided into wards; and in all other municipalities, forty per cent, of the qualified electors at the last preceding municipal election, and in indictments, affidavits, or informations for violation of this act it shall not be necessary to set forth the facts showing that the required number of electors in the municipal corporation petitioned for an election, that the election was held, or that the majority voted in favor of prohibiting the sale as herein provided. But it shall be sufficient to state that the act com- plained of was then and there prohibited and unlawful. Sec. 4364 — 20f R. S. [Entry and record of result of election required by Sec. 4364 — 20a.] The following shall be deemed a sufficient entry and record of the result of an election held under the provisions of this act as required by sections 4364-20a and 4364-206 : The State of Ohio, County of , municipal cor- poration of INTOXICATING LIQUOBS. 808 The special election held on the day of , A. D., , within and for the (municipal corporation of ) under the local option law re- sulted as follows : Whole number of votes " for the sale of intoxicating liquors as a beverage " Whole number of votes " against the sale of intoxicating liquors as a beverage " Clerk of Sec. 4364 — 20gR. S. [Disposition of fines.] Money received from fines and forfeited bonds collected under the provisions of this act shall be paid into the treasury of the municipal cor- poration wherein said fine was imposed or bond forfeited, and shall be applied to such fund or funds as the council of the said corporation may direct. Sec. 4364 — 20h R. S. [Another election may be ordered ; when.] At any time after two years from the date of an elec- tion held under the provisions of section 43 64-2 0a of this act another election may be petitioned for and shall be ordered as provided for in section 4364-20a. Sec. 4364 — 20i R. S. [Contest of election in probate court.] Any person being a qualified elector of any municipal corpora- tion wherein an election shall have been held as provided for in this act may contest the validity of such election by filing a petition duly verified with the probate court of the county in which such municipal corporation is situated, within ten days after the election, setting forth the grounds for contest. [Mayor shall be summoned.] The probate judge, upon the filing of such petition, shall forthwith issue a summons, ad- dressed to the mayor of such municipal corporation, notifying him of the filing of such petition and directing him to appear in said court on behalf of said municipal corporation, at a time named in the summons, which time shall be not more than twenty days after the election nor less than five days after the filing of such petition. [Method of procedure.] The probate judge shall have final ju- risdiction to hear and determine the merits of the proceedings, and in other respects in the procedure of the hearing he shall be governed by the law providing for the contesting of an election of a justice of the peace so far as such law is applicable. The probate court shall require the person or persons contesting the election to furnish sufficient security for costs before said petition is filed. 1 [April 3, 95 v. 87.] 809 THE OHIO MUNICIPAL CODE. (1) Scope of hearing. — The But see Rost v. Glenville, 1 N. P. probate judge is limited to an in- (N.-S.) 65. vestigation of the regularity of the Remedy exclusive. — Method of election and conformity to the stat- contesting election here provided is ute, and has no jurisdiction to pass exclusive and question cannot be upon the validity of the statute. raised by defendant in criminal Wells v. State, 1 N. P. (N. S.) 309. prosecution. Fike v. State, 25 C. C. 554; 4 C. C. (N. S.) 81. [Sec. 2.] [Repeals and saving clause for ordinances.] That sec- tion 4364-20 of the Revised Statutes of Ohio be and the same is hereby repealed, but an ordinance passed by a municipal cor- poration under the authority given in said section prohibiting places where intoxicating liquors are sold at retail shall remain in full force and effect until thirty days after an election has been held in accordance with the provisions of section 4364-20& of this act. An ordinance passed by a municipal corporation under the authority given in said section regulating places where intoxicating liquors are sold at retail, shall remain in full force and effect until said ordinance is repealed or amended under the authority granted in section 4364-20 of this act. [1902, April 3, 95 v. 87.] 3. RESIDENCE DISTRICT OPTION LAW. An act to further provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in residence districts of municipal corporations. 1 [Sec. 1.] [Petition to prohibit sale of intoxicating liquor in residence district; filing and examination of.] Whenever a majority of the qualified electors of any residence district of any municipal corporation sign a petition in favor of prohibit- ing the sale of intoxicating liquors as a beverage in such resi- dence district and file the petition with the mayor of the mu- nicipal corporation or with any judge of the court of common pleas of the county in which such municipal corporation is sit- uated, the mayor or judge shall examine the petition at a pub- lic hearing and decide upon the sufficiency of the petition and cause a copy of his decision to be filed with the clerk of the municipal corporation or council. 1 [Record of decision of mayor or judge; its value as evi- dence.] The decision of the mayor or judge, as certified to the clerk of the municipal corporation or council and recorded by him in the records of the council of the corporation, or a certified copy thereof, provided it shows that a majority of the voters of such residence district were in favor of prohibit- ing the sale of intoxicating liquors as a beverage, shall be prima INTOXICATING LIQUORS. 809& facie evidence that the selling, furnishing or giving away of intoxicating liquors as a beverage or the keeping of a place where such liquors are sold, kept for sale, furnished or given away, if such selling, furnishing or giving away or keeping of such place occurred thirty days after the finding by said mayor or judge, was then and there prohibited and unlawful. [1906, April 4, 98 v. 68; 97 v. 87, §1.] (1) Validity.— The former Bran- for Election, 14 Dec. 561; 2 N. P. nock Law was held constitutional. (N. S.) 245 ; In re Petition for Elec- Columbus v. Jeffrey, 14 Dec. 609 ; tion in Toledo, 14 Dec. 698 ; 2 N. P. 2 N. P. (N. S.) 85; 4 C. C. (N. S.) (N. S.) 469; Jeffrey v. State, 26 494; Ely v. Willard, 15 Dec. 318. C. C. 591; 4 C. C. (N. S.) 494; In Character of petition, under re Petition of Ammer, 3 N. P. (N. former BrannocK law, as a public S.) 329; Fulton v. Columbus, 16 document, see Krickenberger v. Wil- Dec. 129; 3 N. P. (N. S.) 358; Co- son, 15 Dec. 779. lumbus v. Cole, 16 Dec. 212; 2 N. For construction of provisions re- P. (N. S.) 563; In re Petition for lating to election under former Election in Dayton, 2 N. P. (N. S.) Brannock Law, see In re Petition 245. [Sec. 2.] [Petition against prohibition of sale of intoxicating liquor in residence district; filing and examination of.] When- ever a majority of the qualified electors of any residence dis- trict of any municipal corporation in which the sale of intoxi- cating liquors as a beverage has been prohibited under the pro- visions of section one of this act, shall sign a petition against prohibiting the sale of intoxicating liquors as a beverage in the same residence district and file the petition with the mayor of the municipal corporation or with any judge of the court of common pleas in the county, the mayor or judge shall ex- amine the petition at a public hearing and decide upon the sufficiency of the petition and cause a copy of his decision to be filed with the clerk of the municipal corporation or council. [Record of decision of mayor or judge; its value as evi- dence.] The result of such examination and the finding duly certified by the judge or mayor and recorded by the clerk of the municipal corporation or council in the records of the pro- ceedings of the council of the corporation, provided that it shows that a majority of the voters of the residence district are opposed to prohibiting the sale of intoxicating liquors as a beverage, shall be prima facie evidence that the sale of in- toxicating liquors as a beverage in the residence district is not then and there prohibited. [When such petition may be filed.] The petition provided for in this section shall not be filed until after two years or more shall have elapsed after the filing of the petition provided for in section one of this act. Nothing in this act shall be con- strued to affect or repeal any other law which prohibits the selling, furnishing or giving away of intoxicating liquor as a 8096 THE OHIO MUNICIPAL CODE. beverage, or the keeping of a place where intoxicating liquor is sold, furnished or given away as a beverage which is in force and effect throughout the municipal corporation. 1 [1906, April 4, 98 v. 68; 97 v. 91, §9.] (1) Construction of former sec- v. Jeffrey, 14 Dec. 600; 2 N. P. (N. tion of Brannock.Law, see Columbus S.) 85; 4 C. C. (N. S.) 494. [Sec. 3.] [Form of petition.] A petition in favor of prohibit- ing Ihe sale of intoxicating liquor as a beverage in a residence district substantially as follows shall be sufficient: "A petition to prohibit the sale of intoxicating liquors as a beverage in a residence district of the municipal corpora- tion of in the state of Ohio. To Date We, the undersigned, respectfully represent that we are qualified electors in the following residence district, to-wit: in the municipal corporation of , county of , , state of Ohio, and that we are in favor of prohibiting the sale of intoxicating liquors as a beverage in said residence district/ ' A petition against prohibiting the sale of intoxicating liquors as a beverage in a residence district substantially as follows will be sufficient: "A petition against prohibiting the sale of intoxicating liquors as a beverage in a residence district of the municipal corporation of of the state of Ohio. To Date We, the undersigned, respectfully represent that we are qualified electors in the following residence district, to-wit: . in the municipal corporation of , in the county of , state of Ohio, and we are opposed to prohibiting the sale of intoxicating liquors as a beverage in said residence district.' ' Any qualified elector may authorize any person to sign the petition for him by a written power of attorney. No elector will be allowed to add his name to the petition after it is filed or withdraw his own or authorized signature from the petition unless he can prove to the mayor or judge that it was secured through fraud or misrepresentation. 1 The petition provided for in this act shall be deemed sufficient when it is signed by as many qualified electors as equal a majority in number of the votes cast at the last regular municipal election in such residence district, but must in order to be valid, be filed not INTOXICATING LIQUORS. 809c later than three months after the signing thereto of the sig- nature first in order of time. 2 The expense incurred for the publication of notices for the hearing on the petition shall be paid out of the general revenue fund of the municipal corpo- ration upon the order of the mayor or judge passing upon the petition. [1906, April 4, 98 v. 69; 97 v. 88, § 3.] (1) Withdrawal of names, un- (2) Sufficiency of petition.— der former law, see In re Petition What names counted, under former for Election in Toledo, 14 Dec. 698 ; Brannock law, see In re Petition for Columbus v. Glackin, 16 Dee. 229; Election in Toledo, 14 Dec. 698; In 3 N. P. (N. S.) 356; Columbus v. re Petition of Wightman, 3 N. P. Cole, 2 N. P. (N. S.) 563. (N. S.) 129; 50 B. 375. [Sec. 4.] [Public hearing for consideration of petition.] When the petition referred to in this act has been filed with the mayor of the municipal corporation or with any judge of the court of common pleas in the county, the mayor or judge shall forthwith cause a notice of the hearing on such petition to be published in two newspapers of opposite party politics pub- lished in the municipal corporation, if there be two, which no- tice shall set forth the time when and place where the judge or mayor will consider the petition, at which time he shall hear any person or persons who are electors of the district as to the question of the petitioners being qualified electors in the residence district or any other matter which may be brought before the mayor or judge for determination relating to the sufficiency of the petition. The mayor or judge shall decide whether the petitioners are qualified electors in the resi- dence district and equal in number a majority of the votes cast in the residence district at the last regular municipal election and the mayor shall make a record of his findings on his docket and the judge shall cause the same to be recorded in the records of his court, and thereupon such mayor or judge shall cause a certified copy or certificate of his findings to- gether with the original petition to be filed with the clerk of the municipal corporation or council in not less than five days after such finding and not more than forty days from the filing of the petition with the mayor or judge. [Certificate of finding of mayor or judge.] The following shall be a sufficient certificate of the finding of the mayor or judge : "This is to certify that I have examined the petition which is attached hereto, at a public hearing duly announced and hereby find that on the day of A. D. , that the petition meets the requirements of the law and that a majority of the voters of the following residence district, to-wit : in the municipal cor- poration of , county of , S09d THE OHIO MUNICIPAL CODE. state of Ohio, are (in favor of or opposed to) prohibiting the sale of intoxicating liquors as a beverage in said residence district. • ' Date Official Signature. [Recording of certificate.] The clerk of the municipal cor- poration in which the residence district is situated shall forth- with upon receiving the certificate of the decision of the suffi- ciency of the petition, record said petition with the said cer- tificate of such decision on the records of the council of the municipal corporation and shall certify to the correctness of the same substantially as follows: "I hereby certify that the foregoing is a correct copy of the petition relating to the sale of intoxicating liquors as a beverage in the following residence district, to-wit : , in the municipal corporation of and the finding of the mayor or judge on the petition." Official Signature. [Bribery and intimidation; penalty.] Whoever bribes, boy- cotts or intimidates or attempts to bribe, boycott or intimi- date any qualified elector to keep such elector from signing the petition or to secure the signature of such elector to the petitiion provided for in this act ; or whoever removes any per- son in his employ or threatens to remove any person in his employ or under his control, either directly or indirectly, in order to secure his signature to such petition, or to keep such person from signing such petition, shall be guilty of a misde- meanor and shall be fined not less than $100, nor more than $500, and the signature of any person secured to such petition by bribery, boycott or intimidation shall be stricken from such petition. [1906, April 4, 98 v. 70; 97 v. 90, § 5.] [Sec. 5.] [When the sale in a residence district shall be un- lawful; penalty for making such prohibited sale.] If the findings of the mayor or judge or a copy as recorded by the clerk of the municipal corporation or council on the records of the council shows that a majority of the qualified electors in the residence district named are in favor of prohibiting the sale of intoxicating liquors as a beverage, then, from and after thirty days from the date of such finding by the mayor or judge it shall be unlawful for any person, personally or by agent within the limits of such residence district of such mu- nicipal corporation to sell, furnish or give away any intoxicat- ing liquors to be used as a beverage, or to keep a place where such intoxicating liquors are kept for sale, given away or fur- nished for beverage purposes, and whoever from and after thirty days aforesaid in any manner whatever, directly or in- INTOXICATING LIQUORS. . 809e directly, sells, furnishes or gives away, or otherwise disposes of any intoxicating liquors as a beverage, or keeps or uses a place, structure or vehicle, whether permanent or transient for such selling, furnishing or giving away or in which or from which intoxicating liquors are sold, furnished or given away or otherwise disposed of as aforesaid, or violates any of the provisions of this act shall be guilty of a misdemeanor and shall on conviction thereof be fined not more than two hundred dollars nor less than fifty dollars for the first offense; and shall for any subsequent offense be fined not more than five hundred dollars, nor less than two hundred dollars. The court on any conviction for a second or subsequent offense shall order the place where such liquor is sold, furnished or given away for beverage purposes to be abated as a nuisance and shall order the person convicted for [such] subsequent offense to give bond payable to the state of Ohio in the sum of one thou- sand dollars with sureties to the acceptance of the court that he will not sell, furnish or give away intoxicating liquor as a beverage in such residence district in violation of law. [1906, April 4, 98 v. 71; 97 v. 88, §2.] [Sec. 6.] [What territory controlled by result of action.] The territory enclosed by the boundary of any residence dis- trict within which the sale of intoxicating liquors has been prohibited, as provided for in section one of this act, shall be controlled by the result of such action, and the law shall re- main in full force and effect in said residence district for two years and thereafter until another petition is presented under the provisions of section two of this act in said residence dis- trict; and after a petition against prohibiting the sale of in- toxicating liquors has been presented and held sufficient by the judge or mayor, another petition can not be presented for two years thereafter. [Sec. 7.] [Meaning- of phrase "intoxicating liquor"; regular druggists.] The phrase "intoxicating liquor' ' as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor, by whatever name the same may be known, but nothing in this act shall be construed to prevent the selling of intoxicating liquors at retail by a regular drug- gist for exclusively known medicinal, mechanical, pharmaceu- tical, scientific or sacramental purposes ; and when sold for me- dicinal purposes shall be sold only in good faith upon a written prescription issued, signed and dated in good faith by a reputa- ble physician in active practice and the prescription used but once. Such prescription shall contain the name of the party for whom the liquor is prescribed, and direction for its use. The words "giving away" where they occur in this act shall not 809/ THE OHIO MUNICIPAL CODE. apply to the giving away of intoxicating liquor by any person in his private dwelling unless such private dwelling is a place of public resort. [Manufacturer may sell at wholesale to retail dealers,] And nothing contained in any of the sections of this act shall in any manner affect the right of any manufacturer of intoxi- cating liquors from the raw material, to sell, deliver and fur- nish his product in wholesale quantities to bona fide retail, dealers trafficking in intoxicating liquors or in wholesale quantities to any party or parties residing outside the limits of said district, nor of any bona fide wholesale dealer in said district to sell or deliver intoxicating liquors in wholesale quantities to customers of such district, or to bona fide resi- dences in such district. [Meaning of term "qualified elector."] The original peti- tions and findings of the mayor or judge shall be filed with the clerk of the municipal corporation or council as a public document. The term "qualified elector" as used in this act means registered male voters in all municipal corporations which have registration and all other male voters entitled to register who have been bona fide residents of the district for four months before such petition is filed with the mayor or judge. In municipalities which do not have registration, such male voter or male qualified elector must be a bona fide resident of the district for four months before such petition is filed with the mayor or judge. [Meaning of phrase "residence district,"] 1 The phrase "residence district" as used in this act, shall be construed to mean any clearly described, contiguous, compact section or territory in a municipal corporation bounded by street, cor- poration, or other well recognized lines or boundaries and con- taining not fewer than three hundred qualified electors, nor more than five thousand qualified electors; and such district shall not contain any block in which one-half or more of the foot frontage of such block is occupied by buildings and prem- ises actually devoted to commercial, manufacturing, mercan- tile or other business purposes not including saloons ; and fur- ther, such district shall not contain the property or premises abutting on a section of a street lying between two consecutive cross or intersecting streets, from street to street, or extend- ing for a distance of not less than five hundred feet along such street on which said premises abut, whenever sixty-five per cent, of the foot frontage of such abutting property on each side of such street is occupied for and devoted to manu- facturing, mercantile or other business purposes, not including saloons, if such section of such street is in the central or main business part of the municipal corporation ■ provided, however, that in determining the total foot frontage referred to herein, INTOXICATING LIQUORS. 809# property occupied by saloons shall not be counted as either business or residence property. Whenever a section of a street is made exempt from the provisions of this act, lot lines may be used in outlining the boundary of the district to exempt the property facing on such section of such street. Parks in residence districts and properly devoted to educa- tional, religious or charitable uses, shall for the purpose of this act, be held to be occupied for residence purposes; while public property devoted to other than the above specified uses, shall, for like purposes, be deemed to be occupied for business purposes. Buildings which have more than one-half of the floor space of the buildings used for residence purposes shall be counted as residence property. When but one side of said portion of said street is adaptable for residence or business purposes, then such side of such portion of such street shall determine whether the property abutting on both sides of such street be counted as business or residence property. The max- imum length of a residence district shall not exceed three times its maximum width unless the boundaries of the municipal corporation or exempted territory prevents the district from containing the requisite number of voters. In such case the boundaries shall follow the proportionate length and breadth provided herein as nearly as possible. [Meaning of terms "block" and "saloon."] 1 The term "block" shall be construed to mean the territory bounded by four well recognized adjacent streets and not alleys. The term "saloon" shall mean any place where intoxicating liquor is sold or trafficked in as a beverage. [1906, April 4, 98 v. 72; 97 v. 89, § 4.] (1) Definition of terms— See Toledo, 14 Dee. 698; 2 N. P. (N. S.) for definition of terms under former 409; In re Petition for Election, 14 law, In re Petition for Election in Dec. 561; 2 N. P. (N. S.) 245. [Sec. 8.] [Sufficiency of indictments under this act.] In in- dictments, informations or affidavits for violations of this act, it shall not be necessary to set forth the facts showing that the required number of electors in any residence district of a mu- nicipal corporation signed a petition in favor of prohibiting the sale of intoxicating liquors or that there was a public hearing or that any finding was made upon such petition or that a cer- tificate of such findings with the petition was transmitted to the clerk or a record made of it by the clerk, as hereinbefore pro- vided; but, it shall be sufficient to state that the act com- plained of was then and there in the residence district named prohibited and unlawful. [1906, April 4, 98 v. 73; 97 v. 91, § 8.] [Sec. 9.] [Rebate of Dow tax when sale discontinues.] When any person, company or corporation engaged in the traffic has 809/& THE OHIO MUNICIPAL CODE. discontinued such traffic within the time specified by section one of this act and has paid or is charged upon the tax dupli- cate with an assessment upon such traffic, the county auditor, upon being satisfied of such facts shall issue to such person, company or corporation a refunding order of an amount pro- portionate to the unexpired time for which said assessment has been paid or is charged. [1906, April 4, 98 v. 73; 97 v. 91, §7.] [Sec. 10.] [Disposition of fines collected.] Money received from fines and forfeited bonds collected under the provisions of this act, shall be paid into the treasury of the municipal corporation wherein such fine was imposed or bond forfeited, and shall be applied to such purposes as the council thereof may direct. [1906, April 4, 98 v. 74; 97 v. 91, § 10.] [Sec. 11J [Former residence district local option law.] In all residence districts where the sale of intoxicating liquor has been prohibited under the provisions of the act entitled "An act further to provide against the evils resulting from the traf- fic in intoxicating liquors by providing for local option in residence districts of municipal corporations," passed April 18, 1904 (97 O. L. 87), such law thus prohibiting the sale of intoxicating liquors as a beverage shall remain in full force and effect in such residence district for two years from the date of the local option election held and thereafter until a petition has been presented to the mayor or judge as provided for in section one or two of this act. [1906, April 4, 98 v. 74.] [Sec. 12.] [Proceedings in error.] Any person being a quali- fied elector of any residence district of any municipal corpo- ration wherein a petition shall have been presented and held sufficient by a mayor or judge as provided for in this act may prosecute error from such finding by first filing a motion for leave to file a petition in error with the circuit court of the county in which such residence district is situated. The mo- tion shall not be granted unless for good cause shown. If such motion is granted, a petition in error shall be filed within fifteen days after the finding or decision of the mayor or judge setting forth the errors complained of. The circuit court upon the filing of such petition shall forthwith issue a sum- mons 1 addressed to the mayor of such municipal corporation notifying him of the filing of the petition in error and direct- ing him to appear in said court on behalf of said residence district at the time mentioned in the summons which time shall not be more than thirty days after the finding or decision of the mayor or judge nor less than ten days after the filing of such petition. The circuit court shall have final jurisdiction to hear and determine the merits of the proceedings and there shall be no appeal or error proceedings allowed from such decision. The circuit court shall require the person or per- sons prosecuting error from the finding or decision of the INTOXICATING LIQUORS. 809* mayor or judge to furnish security for costs before such petition is filed. Any qualified elector in such residence district may appear in person or by attorney at such hearing before the circuit court or on the motion for leave to file petition in error in defence of the validity of the proceedings before the mayor or judge taking action upon the petition. [1906, April 4, 98 v. 74.] (1) Service of summons under Jn re Petition of Gorey, 2 N. P. (N. former law, see Short v. Cincinnati, S.) 389. 3 N. P. (N. S.) 117; 50 B. 288; [Sec. 13.] [Repeals, etc.] That the act entitled ' 'An act fur- ther to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in residence districts of municipal corporations, " passed April 18, 1904, and approved April 19, 1904 (97 O. L., p. 87), be and the same is hereby repealed when this act goes into effect. [1906, April 4, 98 v. 74; 97 v. 87.] 4. DANCE HALLS, Etc. Sec. 6945a R. S. [No public dance, roller skating or like en- tertainment shall be given without mayor's permit.] No public dance, roller skating or like entertainment shall be per- mitted or given in any building, hall, room or rink within any city or village within this state, without first having obtained a permit so to do from the mayor of the city or village in which said dance, roller skating- or like entertainment is to be held or given. [1906, April 4, 98 v. 61.] Sec. 6945b R. S. [Sale of intoxicating liquors on premises where such entertainment is being given, prohibited.] No intoxicating liquors of any kind shall be sold or served on the same floor or floors of any building, hall, room or rink on which such public dance, roller skating or like entertainment is being held or given, during the progress of such entertainment, or in any room or rooms directly connected therewith by any door or stairway, which connects such hall, room or rink with any room or place on the same floor or floors wherein intoxicating liquors are sold or kept for sale. [1906, April 4, 98 v. 62.] Sec. 6945c R. S. [Police shall enforce this act; notice shall be posted; penalty.] It is hereby made the duty of the mayor of any city or village where in his opinion it is necessary to detail such number of police officers as may be required to preserve order at such public dance, roller skating rink or other entertainment and enforce the provisions of this act. And it is hereby made the duty of the owner or lessor of any building containing any dance hall, room or rink, to keep posted in a conspicuous place in such hall, room or rink, a copy of this act. Whoever violates any provision of this act shall be fined in any sum not exceeding one hundred dollars ($100.00), nor not less than fifteen dollars ($15.00) or be imprisoned not more than sixtv days, or both. [1906, April 4, 98 v. 62.] 810 THE OHIO MUNICIPAL CODE. XXI LICENSES. 1 Sec. 4238 — 6 R. S. [Plumber's license.] § 1. Any person, firm or corporation now, or that may hereafter be engaged in, or working at the business in this state either as master or employ- ing plumber, or as a journeyman plumber shall first secure a license therefor, in accordance with the provisions of this act. [92 v. 263.] (1) Licensing power of coun- cil. — See § 2669 et seq., re-enacted in § 8 of the Code, page 73 et seq. i Sec. 4238 — 7 R. S. [Application and examination.] § 2. Any person desiring to engage in, or work at, the business of plumb- ing, either as a master or employing plumber, or as a journeyman plumber, shall apply to the president of the board of health or other officer having jurisdiction in the locality where he intends to engage in, work at, such business, and shall at such time and place as may be designated by the board of examiners hereinafter provided for, to whom such application shall be referred, be examined as to his qualifications for such business. In case of a firm, or corporation, the examination and licensing of any one member of such firm, or the manager of such cor- poration, shall satisfy the requirements of this act. 1 [92 v. 263.] ( 1 ) Validity. — This section is same class, pursuing the same busi- unconstitutional in so far as it im- ness in the same way. State v. Gard- poses the burden of an examination ner, 58 0. S. 599. on some, and exempts others of the Sec. 4238 — 8 R. S. [Examiners ; appointment, qualifications, etc.] § 3. There shall be in every city and each town of five (5) thousand inhabitants, or more, and in each town having a system of water supply or sewerage, a board of examiners consist- ing of the president of the board of health ; and the inspector of LICENSES. 811 buildings of said city or town if any there be and three (3) members, who shall be practical plumbers; (two shall be master plumbers, one shall be a journeyman plumber) ; the president of the board of health and the inspector of buildings shall be members ex officio of said board and serve without compensation; provided, that in localities where the required number of plumbers can not be secured, such vacancies may be filled by the appointment of reputable physicians. Said mem- bers shall be appointed by the board of health, if there be no board of health, then by the health-officer of said city or town, within three (3) months after the passage of this act, for the term of one (1) year, said appointment to date from the first day of August A. D. 1896, and thereafter annually, and said appointed members of such board shall serve without compen- sation ; provided, that if in any city or town there is no inspec- tor of buildings, said board of health shall appoint a fourth member of said board of examiners, who shall be a practical plumber, and whose term of office shall be the same as is hereto- fore provided for said three (3) members. [92 v. 263.] Sec. 4238 — 9 It. S. [Organization of board; time, place and duties.] § 4. Said board of examiners shall, within thirty (30) days after the appointment of said members, meet and organize by the selection of a chairman, and then shall designate the time and place for the examination of all applicants desiring to engage in or at the business of plumbing within their juris- diction. Said board shall examine said applicants as to their practical knowledge of plumbing, house-drainage and plumbing- ventilation, and if satisfied of the competency of the applicant, shall so verify to the board of health. Such board shall there- upon issue a license to such applicant, authorizing him to en- gage in, or at, the business of plumbing, either as a master or employing plumber, or as a journeyman plumber. The fee for the license for a master or employing plumber, shall be five ($5) dollars; for a journeyman plumber shall be one ($1) dollar. Said license shall be valid and have force throughout the state, and shall be renewed annually upon the payment of a fee of fifty cents. In case of .a removal beyond the jurisdic- tion of the board issuing the original license, it may be renewed by any board having like authority. [92 v. 263.] Sec. 4238— -10 It. S. [Inspector of plumbing.] §5. The board of health of each city or town mentioned in section (3) [§(4238 — 8)] of this act, shall within three months from and after the passage of this act, appoint one or more inspectors of plumb- ing and such appointment shall be subject to the approval of the 812 THE OHIO MUNICIPAL CODE. council of such city or town (if such, appointment has not al- ready been made), who shall be practical plumbers, and shall hold office until removed by such board of health for cause, which must be shown. The compensation of such inspectors shall be determined by the said board of health and be paid from the treasury of their respective cities or towns. Said in- spector so appointed shall inspect all plumbing work for which permits are hereafter granted, within their respective jurisdic- tion, in process of construction, alteration or repair, and shall report to said board of health all violations of any law, ordi- nance or by-law relating to plumbing work, and also' perform such other appropriate duties as may be required by said board. [92 v. 263.] Sec. 4238 — 11 R. S. [Rules governing plumbing and sewer- age.] § 6. The board of health of each city or town of five (5) thousand inhabitants or more in this state, and every town having a system of water supply or sewerage, shall within six (6) months from the passage of this act, prescribe rules and regulations for the construction, alteration and inspection of plumbing and sewerage placed in, or in connection with any buildings in such city or town; which shall be approved by ordinance by the council, of such city or town, and the board of health shall further provide, that no plumbing work shall be done except in the case" of repairs or leaks, without a permit being first issued therefor upon such terms and conditions as such board of health of said city or town shall prescribe. [92 v. 263.] Sec. 4238—12 R. S. [Penalty.] § 7. Any person violating any provision of this act shall be deemed guilty of a misdemean- or, and shall be subject to a fine not exceeding fifty ($50) dol- lars, nor less than five ($5) dollars for each and every violation thereof. The license of any master or journeyman plumber may at any time be revoked for incompetency, dereliction of duty or other sufficient causes after a full and fair hearing by a majority of the examining board, but an appeal may be taken from said examining board to the state board of health, and license may be revoked by the examining board provided for in section three (3) [§(4238—8)] of this act. [92 v. 263.] Sec. 4238— 13 R. S. [Disposition of money derived from ex- aminations.] § 8. All money derived from the examination of applicants shall go to the board of health at the place where the applicant was examined. [92 v. 263.] LICENSES. 813 Sec. 4fi38 — 23 E. S. [Explosives; License; how granted.] § 3. The common council of any city or incorporated village within this state, or the trustees of any township, may, by a majority vote of all the members elected thereto, at a regular meeting, upon application duly made under the provisions of this act, grant a certificate of license to any person, firm or cor- poration, authorizing the same to manufacture the substance or material known as dynamite or other nitro-explosive com- pound, in accordance with the conditions and restrictions here- inafter mentioned. [82 v. 182.] Sec. 4386 It. S. [Who may carry on business of pawnbroker.] No person shall carry on or conduct the business or calling of pawnbroker, or of loaning money on personal property without having obtained from the mayor of the municipal corporation in which it is proposed to carrv on such business, a license so to do. [(S. &S. 821.)] Sec. 4387 U.S. [Pawnbroker defined.] Whoever loans mon- ey on deposit or pledges of personal property, or who purchases personal property or choses in action, on condition of selling the same back again at a stipulated price, is hereby defined and declared to be a pawnbroker. Sec. 4388 It. S. [To whom and on what conditions license may be issued.] The mayor of any municipal corporation may grant a pawnbroker's license to any person of good moral char- acter who may apply therefor, when the applicant pays into the treasury of the corporation a sum to be fixed by ordinance, not to exceed two hundred dollars per annum, and executes a bond, with surety, to the satisfaction of the mayor to the municipal corporation, in the sum of five hundred dollars, that the applicant will conform to the requirements of the law and any ordinance of the corporation. Sec. 4389 It. S. [Record to be kept, and what entries to be made therein.] The person so licensed shall keep a correct list and description, in a book for that purpose, of every article pledged or deposited with him, or on which advances of money have been made, or which may be purchased by him, which list and description shall at all times be open to the inspection of the chief or superintendent of police of the corporation, or of a police officer deputed by him, or by the mayor, to make such inspection ; and he shall, at all times, when required by the police officer or mayor aforesaid, produce, and show any article so listed and described which may be in his possession ; he shall also register in such book the name and place of residence of the depositor, and time whei: the deposit was made; all the 814 THE OHIO MUNICIPAL CODE. entries shall be written in ink in the English language, and no entry shall be erased, obliterated, or defaced. [(St & S. 821.)] Sec. 4390 R. S. [List of articles pawned to be daily sent to mayor.] Every person so licensed shall prepare and deliver to the mayor every day before the hour of twelve o'clock m. k legible and correct copy from such registry of the description of all personal property, bonds, notes, or other securities re- ceived on deposit or purchase during the preceding day, to- gether with the hour at which the article was received, together with a description of the person by whom left in pledge, or from whom the same were purchased. Sec. 4391 R. S. [Pawnbroker to detain article twenty-four hours thereafter.] No bond, note, security, or personal prop- erty of any kind, received on deposit, purchased, or pledged by any such pawnbroker shall be sold or permitted to be redeemed or removed from his place of business of such pawnbroker for the space of twenty-four hours after the copy and statement provided for in the last section has been delivered. Sec. 4392 R. S. [Hours for doing business.] No person li- censed as aforesaid shall receive on deposit, or purchase, any personal property, bonds, notes, securities, or article, property, or thing, as such pawnbroker, before the hour of six o'clock a. m., nor after the hour of eight o'clock p. m., during the months of January, February, March, April, October, Novem- ber, and December of each year, nor before the hour of five a. m., nor after the hou"r of nine p. m., during the months of May, June, July, August, and September of each year. Sec. 4393 R. S. [Articles not to be received from minor, or intoxicated or suspected person.] No person licensed as afore- said shall take or receive in pawn or pledge for money loaned, or shall take, receive, or purchase, within the line of his busi- ness as a pawnbroker, any property, bonds, notes, securities, articles, or thing whatsoever, from any minor, or the ownership of which is in or which is claimed by any minor, or which may be in the possession or under the control of any minor, or a person appearing to be intoxicated, a person known to be a notorious thief, or a person known to have been convicted of larceny or burglary. Sec. 4394 R. S. [Not to carry on other business in same build- ing, nor employ minors.] No such person shall carry on any other business or vocation directly or indirectly in the same building in which such business of pawnbroking is carried on, LICENSES. 815 nor employ any person under the age of sixteen to take pledges in pawn. Sec. 4395 R. S. [When mayor shall revoke license.] The mayor shall, upon the conviction of any such person of a viola- tion of any of the provisions of this chapter, revoke his license. Sec. 4396 B. S. Penalty for violation of provisions of chapter.] A person convicted of a violation of any provisions of this chap- ter, where no other penalty is provided for, shall be fined not less than ten nor more than two hundred dollars. Sec. 4398 R. S. [Proceedings on application for peddler's li- cense ; fees to be paid. ] Any person shall have a license to ped- dle in this state, who files with the auditor of any county, under oath, which may be administered by the auditor, a statement or list of his stock in trade, in conformity with the law with re- spect to statements by merchants, and pays to the treasurer of such county the proportionate amount of taxes on such stock in trade in conformity with such law, together with twelve dollars, if the applicant intends to travel on foot ; twenty dollars, if on horseback or in a one-horse wagon, or other vehicle; twenty-eight dollars, if in a two-horse wagon or other vehicle, and sixty dollars, if in a boat or other water craft, or in rail- road cars, and files with the auditor separate receipts of the treasurer therefor, and also pays to the auditor fifty cents for granting the license; which sums, except taxes and auditor's fees, shall be credited to the " state common school fund," and it shall be the duty of each and every county treasurer, with whom any money may be deposited in conformity with this chapter, to account to the auditor of state for such sums de- posited on account of license, and upon his draft pay the same into the state treasury, each year hereafter, at the time of making his semi-annual August settlement with the auditor of state, and the same shall be placed to the credit of the state common school fund ; but any merchant in this state, who, by himself or agent> desires such license, shall not be required to make the statement herein required, if the subject matter there- of has been otherwise listed for taxation. [1882, April 7: 79 v. 96 ; 59 v. 67, § 2 ; (S. & S. 511 ; S. & C. 907).] Sec. 4398a R. S. [Fee to be paid by honorably discharged sol- dier or sailor for peddler's license.] Any applicant for license, as provided for in section 4398 preceding, who proves, to the satisfaction of the auditor to whom such application is made that the applicant has served as a soldier or sailor in the service of the United States during the late rebellion or Spanish Ameri- S1G THE OHIO MUNICIPAL CODE. can war, and has been honorably discharged therefrom, shall pay for such license, to such auditor, the sum of fifty cents and no more, which sum of fifty cents shall be the fee of such auditor for issuing such license. [1902, February 13: 95 v. 11; 91 v. 370.] Sec. 4398b R. S. [Privileges, etc., Cincinnati.] § 2. Such li- cense so granted to any honorably discharged soldier or sailor, as provided for in section 1 [§ 4398a] of this act, shall grant the privilege to the one so licensed to pursue his calling within the limits of the state of Ohio, for the term of one year from the date of such license, and shall exempt him from paying any municipal or other license during the period covered by the license issued to him by such auditor. It shall, however, be competent for such municipal authorities issuing such license to revoke and cancel it whenever it is shown to their satisfac- tion that such person has been guilty of any wrongful act in con- nection with any such business or is not otherwise a -fit person t« be engaged in such business, and provided further that the provisions of this act shall not apply to corporations containing cities of the first grade of the first class. [91 v. 370.] Sec. 4399 R. S. [Privileges and term of license.] A license granted in conformity with the preceding section shall authorize the person in whose name the same is granted to vend and sell goods, wares, and merchandise for one year from the date of the receipt of the treasurer, as a peddler or traveling merchant ; but any such person may take out a license to peddle for the term of three or six months, and pay for the same proportion- ably, in accordance with the provisions of the preceding section. 1 [59 v. 67, § 3; S. & S. 511; (S. & C. 907).] ( 1 ) This refers to § 4398 R. S. Sec. 4400 R. S. [License to peddle, no authority to sell by auction, etc.] A license to peddle shall not authorize the person named therein to sell goods, wares, or merchandise at auction, vendue, or public outcry, nor to sell goods in any way by the agency of any other person. [46 v. 36, § 4; S. & C. 907.] Sec. 4415 R. S. [Show not to be exhibited without permit from auditor.] No proprietor, or agent of the proprietor, of a traveling public show, not prohibited by law, shall exhibit or show any natural or artificial curiosity, or exhibition of horse- manship in a circus, or otherwise, for a price, until a permit has been obtained from the auditor of the county in which it is intended to show or exhibit, specifying the time and place euch show may exhibit in the county ; which permit the auditor LICENSES. 817 shall not issue until there has been paid into the county treas- ury, the following sums for each day such show is to be exhibit- ed, to wit : in counties containing a population not exceeding twenty-five thousand by the last federal census, ■ twenty-five , dollars. In counties containing a population of more than twenty-five thousand and not exceeding forty thousand by said census, forty dollars, and in all other counties, sixty dol- lars. [1882, April 15 : 79 v. 114; Kev. Stat. 1880; 29 v. 446, § 1 ; 45 v. 43, § 2 ; (S. & C. 1406 ; S. & C. 64).] Sec. 4416 R. S. [Right of municipal corporations to license, unaffected.] The preceding section shall not be construed to interfere with the right of power of a municipal corporation to impose a license upon all shows exhibited in such corporation in addition to that imposed herein. [47 v. 51, § 3 ; S. & C. 1407.] Sec. 4402 — 1 R. S. [Statement required of itinerant vendor.] § 1. No itinerant vendor shall advertise, represent or hold forth any sale of goods, wares, or merchandise as an insurance, bankrupt, insolvent, assignee, trustee, estate, executor, admin- istrator, receiver or closing-out sale, or as a sale of any goods damaged by smoke, fire, water or otherwise, or in any similar form unless he shall, before so doing, state, under oath, to the secretary of state, either in the original application for a state license, or in a supplementary application, subsequently filed and copied on the license, the details of said bankruptcy, insolvency, trusteeship, closing-out, damage, etc., such details to include and cover all the facts relating to time, place and persons necessary to exactly locate and fully identify the same. 1 [91 v. 173; 95 v. 544.] (1) Validity.— This act §§ (4402- 1) to (4402-9) held constitutional.' Ex parte Mosler, 8 C. C. 324. Sec. 4402 — 2 R. S. [State and local licenses, etc.] § 2. It shall be the duty of every itinerant vendor, whether principal or agent, before commencing business, to take out a state license and local licenses in the manner hereinafter set forth; but nothing herein contained shall affect the right of any mu- nicipal corporation to pass such additional ordinances relative to itinerant vendors as may be permissible under the general law, or under their respective charters. Every itinerant ven- dor desiring to do business in this state shall deposit with the secretary of state the sum of $500 as a special deposit, 1 and after such deposit, upon application in proper form and the- 818 THE OHIO MUNICIPAL CODE. payment of a further sum of $25 as a state license fee, the sec- retary of state shall issue to him an itinerant vendor's license, authorizing' him to do business in this state in conformity with the provisions of this act for the term of one year from the date thereof. Every license shall set forth a copy of the appli- cation upon which it is granted. Such license shall not be transferable nor give authority to more than one person to sell goods as an itinerant vendor, either by agent or clerk, or in any other way than in his own proper person ; but any licensee may have the assistance of one or more persons in conducting his business, who shall have authority to aid their principal, but not to act for or without him. [91 v. 173.] (1) The cash deposit with sec- creditors cannot secure it. Edit., 37 retary of state is to secure pur- B 354. chasers of goods who are defrauded; Sec. 4402— 3 R. S. [Penalty.] § 3. Every itinerant vendor who shall sell or expose for sale at public or private sale any goods, wares, merchandise or any article of wearing apparel without state and local licenses therefor, and all persons both principals and agents, who shall by circular, handbill, news- paper, or in any other manner advertise any such sale before proper licenses shall be issued to the vendor, shall be guilty of a misdemeanor and shall be fined not more than $1,000 nor less than $50, or imprisoned not more than six months, or both. [91 v. 173 ; 95 v. 544.] Sec. 4402 — 4R. S. ["Wearing-apparel" and "itinerant ven- dors" defined; sales by commercial travelers, etc.] § 4. The words " wearing apparel," for the purposes of this act, shall be construed to mean and include all kinds of clothing, under- wear, hats and shoes. The words " itinerant vendors," for the purposes of this act, shall be construed to mean and include all persons, both principals and agents, who engage in a temporary or transient business of selling goods, wares and merchandise in this state and who shall remain in one place for a period of less than (90) ninety days. This act shall not apply to sales made to dealers by commercial travelers or selling agents in the usual course of business, nor to bona fide sales of goods, wares and merchandise by sample for future delivery. [91 v. 173.] Sec. 4402 — 5 R. S. [Application for license, etc.] § 5. All applications for license shall be sworn to, shall disclose the names and residences of the owners or parties in whose interest said business is conducted, and shall be kept on file by the secretary of state, and a record shall be kept by him of all licenses issued upon such applications. All files and records, LICENSES. 819 both of the secretary of state and of the respective clerks of mu- nicipal corporations, shall be in convenient form and open for public inspection. Before selling under said state license, every itinerant vendor shall exhibit the same to the clerk or mayor of any municipal corporation where he proposes 'to make sales, and upon payment to said clerk or mayor of a further local license fee as provided for by the ordinance, or .in ab- sence of any such ordinance, then such amount as the clerk or mayor of such municipal corporation shall determine, and the proof of payment of all such other license fees, if any, as are legally chargeable upon local sales, the said clerk shall re- cord the state license in full, shall indorse upon it the words " local license fees paid/' and shall affix his official signature, together with the date of such indorsement. He shall then issue a local license authorizing sales within the limits of such town or city. Any failure to obtain a local license and have proper indorsement made on the state license shall Be sub- jected to the same penalty as though no state license had been issued. [91 v. 178.] Sec. 4402— 6 E. S. [Penalty.] § 6. Any false statement in an application, either original or supplementary, for a license, and any failure on the part of any licensee to comply with all the requirements of this act, shall subject said itinerant vendor to the same penalty as if he had no license, and to the further and additional penalty of a fine of $100, to be paid to the person first filing complaint therefor with the proper informing or prosecuting officer. [91 v. 173.] Sec. 4402 — 7 R. S. [Enforcement of act.] § 7. It shall be the duty of the respective informing or prosecuting officer in each municipal corporation in this state, to see that the pro- visions of this act are complied with and to prosecute for vio- lation of the same. All such officers shall have power to de- mand the production of the proper state and local licenses from any itinerant vendor advertising or actually engaged in busi- ness, and any failure to produce such licenses shall be prima facie evidence against such vendor that he has none. [91 v. 173.] Sec. 4402 — 8 R. S. [Jurisdiction in prosecutions ; expiration or surrender of state licenses; disposition of special deposit.] § 8. Prosecutions under this act may be heard and determined by any court having criminal jurisdiction over other offenses pun- ishable by law, to the same extent as hereinabove provided. All state licenses shall expire by limitation one year from the date thereof, and may be, if so desired surrendered at any time 820 THE OHIO MUNICIPAL CODE. prior thereto for cancellation. Upon the expiration and re- turn or surrender of each state license the secretary shall can- cel the same, indorse the date of delivery and cancellation thereon and place the same on file. He shall then hold the special deposit of each licensee, hereinabove mentioned, for the period of 60 days, and after satisfying any and all claims made upon the same under the section next following, shall return said deposit or such portion of the same, if any, as may remain in his hands, to the licensee depositing it. [91 v. 173.] Sec. 4402 — 9 R. S. [Deposit subject to attachment and execu- tion, etc.] § 9. Each deposit made with the secretary of state shall be subject^ so long as it remains in his hands, to attach- ment and execution in behalf of creditors whose claims arise in connection with business done in the state, and to the pay- ment of any and all fines and penalties incurred by the licensee through violation of this act. Claims under civil process shall be enforced against the secretary of state as garnishee or trus- tee by action in the usual form, and claims for satisfaction of fines and penalties shall be enforced by the prosecuting at- torney serving notice of pendency of action (and judgment when obtained) upon the secretary of state. All claims upon each deposit shall be satisfied after judgment in the order in which notice of the claim is received by the secretary of state, and until all such claims are satisfied, or the deposit ex- hausted ; but no notices filed after the expiration of the 60 days' limit aforesaid shall be valid. ~No deposits shall be paid over by the secretary of state to licensees so long as there are any outstanding claims or notices of claims against them respec- tively, unless he shall find that there is unreasonable delay in enforcing the same. [91 v. 173.] HAMLETS. 821 XXII HAMLETS. 1 1. TKUSTEES OF HAMLETS. Sec. 1648 R. S. [Officers of hamlets; election and terms.] The officers 2 of the hamlet shall consist of three trustees, who shall be electors residing within the corporate limits and who shall hold their offices for three years, except as herein provided, and until their successors are elected and qualified ; a clerk and treasurer, each of whom shall be electors in said hamlet and shall hold their offices for two years and until their successors are elected and qualified; a marshal and a supervisor, both of whom shall be electors in said hamlet and shall hold their offices for one year, except as hereinafter provided, and until their successors are elected and qualified. [93 v. 289 ; 90 v. 78; 66 v. 157, § 47; 66 v. 159, § 58.] ( 1 ) See note " Status of Ham- As to police court in hamlets, see lets " under § 1 of the Code, page 3. §§ 1833 to 1836 R. 8., inclusive, un- (2) See notes to § 128 of the der title Judicial, in Part II. Code, page 328. Sec. 1649 R. S. [Term of office.] At the first meeting of the trustees, they shall determine by lot the term of service of each, so that one shall serve for one year, one for two years, and one for three years, and at every succeeding annual election, one trustee shall be elected to serve for three years, and they shall appoint from their own body a president of the board: [66 v. 158, § 48; 73 v. 170, § 49.] Sec. 1650 R. S. [Vacancy; quorum.] The trustees shall have power to fill any vacancies which may happen in any of the offices from the electors of the corporation, and the person so appointed shall continue in office until the next regular election and until his successor is elected and qualified ; and any two of the trustees may transact, business, but notice of any meeting for the purpose must be given to all. 1 [90 v. 78 ; 66 v. 158, § 50.] 822 THE OHIO MUNICIPAL CODE. ( 1 ) Acting separately. — Indi- the corporation. State ex rel. vs. vidual members of such a board Liberty Twp., 22 O. S. 144; Mc- cannot act separately so as to bind Cortle vs. Bates, 29 O. S. 419. Sec. 1651 R. S. [Power over streets, etc.] The trustees shall have the exclusive jurisdiction of public roads, streets, al- leys, sewers and drains within the limits of the corporation ; * they shall have power to construct and keep in repair bridges and sidewalks; lay out, establish, open, widen, vacate, narrow, improve, straighten; keep in order, repair and light roads, streets, alleys ; open and construct and keep in order and repair sewers and drains; and enter upon, appropriate, take and hold for the purposes aforesaid real estate within its limits, and as- sess, and collect a charge for the construction, improvement and repair of any such road, street or alley; but if a street is va- cated or narrowed, the right of way or easement of lot owners shall not thereby be impaired. [90 v. 315 ; 74 v. 198, § 51.] ( 1 ) Street railways in hamlets. As to necessity of consent of trus- — § 1651 R. S. gives to trustees of tees of hamlets to construction of hamlets exclusive jurisdiction of street railway, where authority of public streets, etc., and when an cwner of private turnpike on which interurban street railway company the road is constructed has been has permission from such trustees obtained, see St. Ry. v. Cummins- to use the streets within the ham- ville, 14 O. S. 523, 542, in con- let, the county commissioners can- nection with § 1550 R. S. (repeal- not maintain an action to enjoin ed) which provided that villages in- their use by such company. Com- corporated for special purposes missioners v. R. R. Co., 21 C. C. should be hamlets. Sec. 1652 R. S. [Limitation on such powers; hamlets in coun- ties containing cities of the first class.] No ordinance providing for the opening or widening of any road, street or alley, or the appropriation of land therefor, and no ordinance providing for any improvement, the cost of which, or any part thereof, shall be specially assessed upon any lands in the hamlet, shall be passed, except upon the petition of two-thirds of the owners of lots or lands through or along which the road, street, alley, sewer or other improvement, or part thereof, to be opened, widened, improved or lighted, shall pass ; provided, however, that in all counties containing cities of the first class all the provisions of chapter four, division seven, of this title, 1 affect- ing or relating to villages generally, shall apply to and affect hamlets, and wherever the word " council " occurs in said chapter, the same shall be held to apply to and include the HAMLETS. 823 trustees of hamlets. [93 v. 289; 92 v. 281; 91 v. 367; 90 v. 315; 66 v. 158, § 52.] ( 1 ) Statutes referred to. — provisions corresponding to this Chap. 4, Div. 7, Title XII, was chapter are now contained in §§ 50 the chapter of the Revised Stat- to 94, inclusive of the Code, utes relating to assessments. The 2. GENERAL POWERS OF HAMLETS. Sec. 1653 E. S. [General powers of hamlets.] In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, hamlets shall have the general powers enumerated in this section, and the trustees may provide by ordinance for the exercise and enforce- ment of the same: 1. To protect the property and persons of the inhabitants against injuries and destruction by fire, thieves, robbers, burg- lars, and persons violating the public peace. 2. To suppress riots, noise and disturbance, gambling, drunkenness, and indecent and disorderly assemblages and conduct 3. To punish all lewd and lascivious behavior in the streets, alleys and other public places. 4. To suppress and restrain disorderly houses and houses of ill-fame. 5. To regulate and restrain ale, beer and porter houses or shops, and houses and places of notorious and habitual resort for tippling and intemperance. 6. To regulate taverns and other houses of public entertain- ment. 7. To regulate or restrain theatricals, exhibitions, and public shows, and all exhibitions of whatever name or nature, for which money is demanded or received; but public lectures on historic^ literary or scientific subject shall not come within the provisions of this section. 8. To prevent injury or annoyance from any thing danger- ous, offensive or unhealthy, and to cause any nuisance to be abated. 9. To acquire real estate for public halls and school houses, and to erect the necessary buildings thereon. 10. To protect all public buildings and property within or owned by the corporation. 11. To provide public cemeteries, and for the improvement and protection thereof, and to regulate the burial of the dead. 824 THE OHIO MUNICIPAL CODE. 12. To regulate auctioneering, and to regulate, license or prohibit the sale at auction of goods, wares and merchandise imported into the corporation for the purpose of being sold at auction. 13. To regulate the weighing and measuring of hay, wood,, coal and other articles exposed for sale. 14. To regulate peddling, and to regulate, license or pro- hibit the sale by peddlers of all goods, wares and merchandise not of their own manufacture or production; but commercial travelers shall not come within the provisions of this section. 15. To restrain and prohibit the sale and exposure for sale of books, papers and periodicals of an obscene nature. 16. To provide for the comfort, convenience and safety, pre- serve the health and peace, promote the good order and pros- perity, and improve the morals of the inhabitants of the cor- poration. 1 [1886, April 27: 83 v. 92; Eev. Stat. 1880; 66 X 158, § 53.] (1) See notes to § 7 of the Code, page 43. Sec. 1654 R. S. [Power to make by-laws, etc.] For the pur- pose of exercising the powers above granted, the trustees of hamlets shall, as to the providing for the cost and expense of improvements by them made, and as to making and publish- ing of all by-laws, resolutions and ordinances and the enforce- ment of the same, have in all respects like rights and remedies as are herein given to incorporated villages; 1 but all by-laws and ordinances shall require for their adoption the concurrence of at least two of the trustees, and shall only be adopted at a stated meeting. [90 v. 316 ; 73 v. 199, 200, § 54.] (1) See § 196 of the Code. 3. OTHER OFFICERS OF HAMLETS. Sec. 1700 R. S. [Appointment of police officers; duties and com- pensation to be prescribed by trustees; removal; powers, compensa- tion and duties of president of trustees.] The trustees of hamlets shall have power to appoint from the electors of said hamlet such other police officers as may be necessary; and they shall, by proper by-laws, resolutions or ordinances, prescribe the duties and compensation of the officers so appointed as well as said marshal, in addition to the duties now prescribed by law ; and they may remove any such appointed officer and appoint, HAMLETS. 825 another at their discretion, and may remove said marshal for good cause shown; and the president of the board of trustees shall be a conservator of the peace throughout the corporation ; and shall perform the same duties and shall have the same jurisdiction and powers as are conferred upon the mayors of villages in all civil and criminal cases, and his proceedings may be reviewed in the same manner ; and he shall receive no com- pensation for his services, except such as is allowed for similar services to justices of the peace. [93 v. 289; 90 v. 78; 77 v. 15; Rev. Stat. 1880; 73 v. 170, § 49.] Sec. 1701 R. S. [Bond of president, treasurer and marshal.] The president of the board of trustees, treasurer and marshal shall each give bond to the corporation for the faithful per- formance of his duties, and each bond shall be in such amount as the trustees may determine except that the bond of the pres- ident of the board of trustees shall in no case be less than five hundred dollars, and each bond shall be subject to the ap- proval of said trustees, and after being recorded in the office of the township clerk shall remain in their custody; but if a trustee is principal in any such bond the duties with respect to it shall be performed by the other trustees. [92 v. 84; 90 v. 79; 66 v. 159, § 58.] Sec. 1702 R. S. [Duties and fees of clerk and treasurer.] The clerk shall keep a full record of all the proceedings of the board of trustees, and shall draw orders on the treasurer for the disbursement of moneys of the corporation only on the orders of the trustees; and he shall be entitled to the same fees that township clerks are. The treasurer shall have the custody of all moneys of the corporation, and shall disburse the same only on orders signed by the hamlet clerk and authorized by the trustees, and he shall be entitled to the same fees that township treasurers receive. [90 v. 79; 66 v. 159, § 58.] Sec. 1703 R. S. [Marshal and road superintendent in ham- lets; compensation.] The marshal shall be the chief of police, and have the powers of marshals in villages, and for his ser- vices as such shall receive, in addition to any salary fixed by the trustees by ordinance, the same fees, and be paid in the same manner as marshals in other municipal corporations for like services, and for his services when he acts as road super- intendent, in which office he shall act under the direction of the trustees, he shall be paid out of the proper hamlet treasury or treasuries, the same compensation allowed to other road superintendents, and where the offices of marshal and road su- perintendent are separated, the road superintendent shall per- form his duties, be paid in the same manner and receive the 826 THE OHIO MUNICIPAL CODE. Fame compensation as is provided in the first part of this sec- tion for the marshal when acting as road superintendent. 1 [1906, April 16, 98 v. 328; 86 v. 251; 77 v. 15; 66 v. 159.] (1) Arrest without warrant.— vs. Hoverman, 18 C. C. 637; and A marshal may arrest without war- he is not liable in damages if he rant one whom he sees violating an take the person so arrested before ordinance of a hamlet. Billington the proper magistrate. lb. Sec. 1704 U.S. [No compensation to trustees; exception.] The members of the board of trustees, in their capacity as such, or as trustees, shall receive no compensation, except in counties containing a city of the second grade of the first class, where each trustee shall receive fifty dollars a year for his services as trustee, to be paid out of the hamlet treasury. [92 v. 406 ;. 66 v. 159, § 55.] Sec. 1705 R. S. [Time incumbents to remain in office, and by- laws, etc., to remain in force.] Trustees and officers of incor- porated villages for special purposes, shall continue in office as trustees and officers of the proper hamlets until their suc- cessors are elected and qualified; and all by-laws, resolutions^ and ordinances of such incorporated villages for special pur- poses, whether originally adopted by them, or by special road districts, shall remain in force as the by-laws, resolutions, and ordinances of the proper hamlets, until repealed. [66 v. 159,, § 57.] 4. TAXATION IN HAMLETS. Sec. 2681 R. S. [Taxation in hamlets.] The trustees of ham- lets shall have power to levy, annually, upon the taxable prop- erty therein, such rate of taxes as may be necessary for the purposes mentioned in chapter one, of division three, of this title, 1 not exceeding ten mills on the dollar, for all purposes, in any one year ; and the taxes so levied shall be collected in the same manner as the taxes of other municipal corporations. [66 v. 257, § 639.] ( 1 ) This refers to Title XII, R. S. MISCELLANEOUS STATUTES. 827 XXIII MISCELLANEOUS STATUTES. 1. Certain General Provisions. Sec. 1536 R. S. [Enlarged meaning of certain words.] In the interpretation of this title, 1 unless the context shows that another sense was intended, the word " village " shall mean incorporated village ; " person " 2 includes a private corpora- tion ; " writing " includes printing : " oath " includes an af- firmation ; " insane " and " lunatic " include every species of mental derangement; "council," in cities which have a board of aldermen, includes common council ; " property " includes real, personal, and mixed estates and interests ; and " land " and " real estate " 3 include rights and easements of an incor- poreal nature; but this enumeration shall not be construed to require a strict construction 4 of any other words in this title. (1) This refers to Title XII, R. S. nish, 5 O. 477, 478; Kerlin Bros. (2) Person would not ordinarily v. Toledo, 20 C. C. 603. include corporation. State vs. Cin- (4) Construction. — General cinnati Fertilizer Co., 24 O. S. 611. words are sometimes, by construe- But see Norris v. State, 25 O. S. tion, limited in their scope, when 217; see also Allen v. State, 10 O. taken in conjunction with their sub- S. 287; Garder v. Fayette Co., 16 ject matter. Aultman v. Seiberling, O. S. 353; Burke v. State, 34 O. S. 31 O. S. 201, 204; Brigel v. Star- 79; Hamilton v. State, 34 O. S. 82. buck, 34 O. S. 280, 285; see also (3) Land and real estate. — Board of Education v. Board, 46 O. Meaning of, see Dodson v. City, 34 S. 595; Goodall v. Gerke Brewing O. S. 276; Valley Ry. Co. v. Pouch- Co., 56 O. S. 257. ot, 4 C. C. 187, 192; Winton v. Cor- Sec. 1537 R. S. [As to publication of notices.] Where in this title a notice is directed to be published in a newspaper, and no such paper is published at the place mentioned, or if such news- paper is published at the place, but the publisher refuses, on tender of his usual charge for a similar notice, -to insert the same in his newspaper, then a publication in any newspaper of 828 THE OHIO MUNICIPAL CODE. general circulation at such place, shall be sufficient; but noth- ing herein contained shall be construed to dispense with pos- ters where they are provided for. 1 ( 1 ) See § 124 of the Code. Sec. 1544 R. S. [Right of visitation.] The general assembly of Ohio by a committee, the governor of the state, the council of the corporation by a committee, the mayor or police judge of the corporation, the board of health of the corporation, the judge of any court of this state, and the grand jury of tho county, may, at any time, visit and inspect any of the benevo- lent or correctional institutions established by any municipal corporation, and examine the books and accounts of the same. [66 v. 272, § 724.] 2. Advertising. Sec. 4366 R. S. [Rates for legal advertising.] Publishers of newspapers may charge and receive for the publication of ad- vertisements, 1 notices, and proclamations, the price or rate for which is not otherwise fixed by law, required to be published by any public officer of the state, or of a county, city, village, hamlet, township, school, benevolent, or other public institu- tion, or by a trustee, assignee, executor, or administrator, the following sums, to-wit: For the first insertion, one dollar for each square, and for each additional insertion, authorized by law or the person ordering the insertion, fifty cents for each square, fractional squares to be estimated at the same rate for space occupied; and in advertisements containing tabular or rule work, 2 an additional sum of fifty per cent, may be charged in addition to the foregoing rates. [73 v. 75, § 1.] (1) Advertisement. — Meaning (2) Tabular work. — Meaning of. of. See Murray v. Auglaize Co., 13/&. Dec. 723. Sec. 4367 R. S. [What notices to be published in two news- papers.] * Every proclamation for an election, order fixing the times of holding court, notice of the rates or taxation, bridge, pike, and notice to contractors, and such other advertisements of general interest to the tax-payers as the auditor, treasurer, probate judge, or commissioners may deem proper, shall be published in two newspapers of opposite politics, at the county seat, 2 if there be such published in the county seat, and in all counties having cities of eight thousand inhabitants or more, not the county seat of such counties, additional publication of such notices shall be made in two newspapers of opposite poli- tics in such city; but this chapter shall not apply to the publi- MISCELLANEOUS STATUTES. 829 cation of notices of delinquent tax and forfeited land sales.* [1889, April 12: 86 v. 258; Eev. Stat. 1880; 73 v. 75, § 2.] (1) Validity. — This act is not seat. — The requirement that pub- in contravention of the 14th amend- lication be at the county seat, is ment of U. S. constitution. State mandatory. 76. v. Comm'rs, 7 N. P. 239. (3) Code provisions on publica- (2) Publication at county tion, see § 124, Sec. 4369 R. S. [What shall constitute a square in legal adver- tisements.] A square shall be considered and held to be a space occupied by two hundred and forty ems of the type used in printing such advertisements ; and all legal advertising shall be set up in compact form, without any unnecessary spaces, blanks, or head lines, and shall be printed in type not smaller than non- pareil. [1880, March 6: 77 v. 40; Rev. Stat. 1880; 73 v. 75, §3.] Sec. 4370 R. S. [What is sufficient publication.] It shall be sufficient to publish any notice or advertisement required by law to be given for a definite period, if one side of the news- paper in which publication is made is printed in the county, municipal corporation, or state, in which the newspaper con- taining such notice or advertisement is required to be printed. [74 v. 208, § 1.] 3. Boundaries of Townships Changed. Sec. 1380 R. S. [Change of boundaries in certain cases, or erec- tion of new township.] If the limits of a municipal corpora- tion do not comprise the whole of the established township or townships in which it is situated, or if by change of the limits of such corporation, or otherwise, they include territory lying in more than one township, and the council of such corporation shall in either case, by a vote of the majority of the members thereof, petition the commissioners of the proper county for a change of township lines so as to make them identical in whole or in part with the limits of the corporation, or to erect a new township out of the portion of said township or townships in- cluded within the limits of said municipal corporation, such board of county commissioners may, on presentation of such petition, with the proceedings of the council duly authenticated, at any regular or adjourned session, change the boundaries of the township or townships, or erect such new township accord- ingly. 1 [89 v. 63; 70 v. 4, § 480; (S. & C. 1548).] ( 1 ) See notes to § 3 of the Code, d„ 6, 830 THE OHIO MUNICIPAL CODE. Sec. 1381 R. S. [What to be done with parts of township left.] If, in making such change, any township not having within its limits a city or village is reduced in territory to less than twenty-two square miles, such township may be by the com- missioners thereupon annexed to any contiguous township or townships, or the commissioners may annex thereto territory from any contiguous township or townships, and erect a new township, as in their opinion will best promote justice and public convenience; but if the majority of the householders of such reduced township outside the limits of such municipal corporation petition therefor, the commissioners may erect such reduced township into a new township. [89 v. 64; 70 v. 4. § 481; (S. & C. 1548).] Sec. 1382 R. S. [How change made.] When the change of boundaries of townships is required under section thirteen hun- dred and eighty, by reason of the extension of the limits of a corporation, the change shall be made by annexation to the township in which the corporation, or the greater part of it, was before situate, of such parts; of other townships as may be covered by such extension. [70 v. 4, § 482.] Sec. 1383. [When corporation in two or more counties, where application to be made.] When the corporation is situate in two or more counties, the application authorized by section thirteen hundred and eighty, may be made to the commissioners of the county in which the change of boundaries is proposed, or if the change is to be made in two or more counties, then to the commissioners of the several counties in respect of the territory situate within them, respectively. [66 v. 149, § 483.] 4. Briers and Canada Thistles. Sec. 4730 R. S. [Destruction of brush, briers, weeds, etc., on highways.] All pike superintendents and turnpike directors having control of and being charged with the duty of repair- ing macadamized, graveled and improved roads and turn- pikes, all road superintendents of county and township roads and the street commissioners of any city or village shall be- tween the first and twentieth days of June, and between the first and twentieth days of August, and if necessary, between the first and twentieth days of September of each year, cut and burn, or destroy, or cause the same to be done, all brush, briars, burrs, vines, Russian and Canadian or common thistle, or other noxious weeds, growing or being within the limits of MISCELLANEOUS STATUTES. 831 any county or township road, turnpike, improved, graveled or macadamized road, street, or alley within his jurisdiction; [Compensation.] such road superintendent, turnpike direc- tor, or pike superintendent shall be allowed reasonable com- pensation which shall not exceed $1.50 per day for all necessary labor employed by him in the performance of said work, to be allowed in the case of county and township out of the road fund, or general fund, and in the case of macadamized, grav- eled and improved roads and turnpikes, such labor is to be al- lowed and paid for out of the turnpike fund of the county and in the same manner as would be done in the event of a repair thereof, but a street commissioner shall be allowed and paid, for any such services performed by him, by the proper munici- pal authorities; [Owner or tenant may perform such labor; compensation.] the superintendent of any such roads shall allow any land owner or tenant to cut and destroy any such brush, briers, burrs, vines, thistles or other noxious weeds, growing or being on such roads along the lands abutting on such roads owned or occupied by such land owner or tenant, but before the said work is performed shall fix a reasonable compensation therefor, which shall be credited on the road tax of that year assessed against said premises; provided, however, that such land owner or tenant shall do said work or cause the same to be done before the first day of the month in which such work is required to be done as specified in this section. [Destruction of briers, brush, etc., on toll roads and rail- ways; penalty.] The superintendent, or manager of any toll, steam or electric road shall cut, burn or destroy, or cause the same to be done, all brush, briers, burrs, vines, Russian, Canada or common thistle, or other noxious weeds growing or being cut within the limits of any such road between the days of each month as above specified in this section, and in default thereof, and for five days thereafter, the trustees of any township through which any such road passes, shall cause the same to be done, and shall have the right of action against any such toll, steam or electric road company for the amount of such work, together with one hundred per cent, penalty, and cost of action to be recovered before any justice of the peace of such countv. [98 v. 336; 95 v. 51; 94 v. 300; 93 v. 49; 90 v. 301 ; 81 v. 22 ; R. S. of 1880 ; 72 v. 11, § 1.] Sec. 4732 R. S. [Destruction of Canada or Russian thistles, wild lettuce or wild mustard growing on lands in townships.] 832 THE OHIO MUNICIPAL CODE. The trustees of any township of this state upon information in writing, that Canada or Russian thistles, wild lettuce or wild mustard are growing on any lands in their township, and are about to spread or mature seed between the first day of June and the fifteenth day of October of each year, said trustees shall cause notice in writing to be served upon the owners, les- see, agent or tenant having charge of any such lands notifying such owner, lessee, agent, or tenant that Canada or Russian thistles or other noxious weeds mentioned in this section, are- growing on such lands, and that such Canada thistles, or other noxious weeds, shall be cut and destroyed within five days after the service of such notice ; and in default thereof, the said township trustees shall enter upon such lands and cut and de- stroy such thistles, or other noxious weeds ; and that the cost of cutting the same with the cost of such notice', will become a lien against said lands. Any constable or deputy, marshal of any city or village, or deputy, is hereby authorized to make service and return of any such notice, and the fees of such serv- ice and return shall be the same as are allowed for service and return of summons in civil cases before magistrates. If any owner, lessee, agent or tenant having charge of any such lands, shall fail to comply with such notice, the township trustees shall cause said thistle or other noxious weeds aforesaid to be cut and destroyed, and may employ any person to perform such labor, and allow such person fifteen cents per hour for the time occupied in performing such labor, and pay the sum of such labor out of any money in the treasury of said township not otherwise appropriated, and take receipt for the same. Said township trustees shall make return in writing to the board of commissioners of their county, with a statement of the charges for their . services, the amount paid to the person for performing such labor, together with the fees of the offi- cers who made the service of notice and return with a proper description of the premises ; and the same having been allowed, shall be entered upon the tax duplicate, and shall be a lien against said lands, from and after the date of such entry on the duplicate, and shall be collected as other taxes, and re- turned to the township with the general fund. [92 v. 106 ; 90 v. 302; 81 v. 17; Rev. Stat. 1880; 74 v. 144, § 1.] Sec. 4732a R. S. [Destruction of Canada and common thistles and other noxious weeds within cities and villages other than Cin- cinnati, Cleveland, Columbus and Dayton.] That in all cities and incorporated villages, except cities of the first and second grade of the first class and first, and second grade of the second class, the mayor shall, during the month of May of each year, MISCELLANEOUS STATUTES. 833 •cause notice to be published for two consecutive weeks in one or more newspapers published in the corporation, or by posting up written or printed notices in said city or village at three public places for ten days next previous to the first day of June of each year, warning the owners, lessees or agents of lots and lands within such city or village to cause all Canada or common thistles, or other noxious weeds mentioned in section forty-seven hundred and thirty-two, growing on any such lots or lands within said corporation, to be cut and destroyed so that they do not mature seed or spread to adjoining lands. The com- mon council of such city or village shall, upon information in writing that Canada or common thistles or other noxious weeds mentioned in section forty-seven hundred and thirty-two are growing on any such lands, within their corporation between the tenth day of June and the fifteenth day of October of each year, [shall] cause such Canada or common thistles or other noxious weeds to be cut and destroyed so that they do not ma- ture seed or spread to other lands, and said council may employ any person to cut and destroy said noxious weeds and allow such person so employed fifteen cents per hour for the time employed in such labor. And said council shall pay said amount out of any money of the general fund in the treasury of said city or village not otherwise appropriated, and take a receipt therefor. And said council shall make return in writ- ing to the board of commissioners of their county, with a state- ment of the amount paid for such labor, and one dollar addi- tional, as a penalty on each lot or parcel of land containing less than one acre, and with two dollars on each lot or parcel containing more than one acre. The same having been al- lowed, the auditor shall enter the amount so certified to him on the tax duplicate of the county against the lots or lands on which said Canada or common thistles or other noxious weeds were cut and destroyed, and the amounts shall be a lien against said lots or lands from and after such entry, and shall be collected as other taxes are collected, and returned to such city or village with the general fund ; [Release of land on payment of costs of such destruction and penalty.] Provided, that [if] any such owner of such lots or lands shall tender to the treasurer of such township in cases of townships, or to the treasurer of such city or village in the case of city or village, the amounts so chargeable against such lots or lands for such labor, together with the penalty as cer- tified to by the clerk of said township, city or village showing the amount of such charges and penalty, the treasurer shall re 834 THE OHIO MUNICIPAL CODE. ceive the amount so tendered, upon which said lots and lands shall be discharged from further liability. [90 v. 303 ; 81 v. 24.] Sec. 4732b U.S. [Compensation of township trustees; penalty for not performing duties; disposition of fines.] Township trus- tees shall be entitled to $1.50 per day for their services under this act; the mayor of any city or village, or trustees of any township, or superintendent or other officer of any toll road, or superintendent of any improved or macadamized road, or supervisor of any county or township road, or street commis- sioner of any city or village, who neglects or refuses to per- form their duties as mentioned in sections 4730, 4732 and 4732a, shall be fined in the sum of fifty dollars in any court having competent jurisdiction of such cases; such fines shall go into the road fund of the township in cases against town- ship or toll road officers; and into the street fund in cases against mayors or other municipal officers. [90 v. 304.] 5. Cigarette-Tax Distribution. Sec. 4364 — 40 R. S. [Distribution of tax and penalties; Hamilton county.] That the revenues and fines resulting under the provisions of this act shall be distributed as follows, 1 to- wit: In every county, one-half of the money paid, as herein provided, into the county treasury on account of any business aforesaid carried on in any city, village, hamlet or township therein, shall be placed to the credit of the general revenue fund of the state, and be paid into the state treasury by the county treasurers, as is provided in other cases; one-fourth of the money SO paid shall, upon the warrant of the county audi- tor, be paid on account of any business aforesaid carried on in any such municipal corporation, into the treasury of such cor- poration to the credit of the police fund thereof; provided, in corporations having no police fund, the entire one-fourth shall pass to the credit of the general revenue fund thereof; the re- maining one-fourth part thereof, together with all other reve- nues resulting hereunder in said county, shall be passed to the credit of the poor fund of such county; provided, that in all counties in which there is no county infirmary, said remaining one-fourth part thereof shall be passed to the credit of the in- firmary fund or poor fund of the township, village or city in which the same shall have been collected; and in such coun- ties where the money is paid on account of any business carried on in any township outside of any such municipal corporation, MISCELLANEOUS STATUTES. 835 the said two-fourths shall be passed to the credit of the infirmary fund or the poor fund of said township ; and provided, that in counties having a city of the first grade of the first class, with a city infirmary, the one-fourth part herein otherwise appor- tioned to the poor fund of the county, shall be divided between the city and county infirmary funds, in the proportion of the revenues received from the city to the revenue from the county outside the city. [91 v. 311 ;" 90 v. 235.] (1) The act referred to is part of the cigarette law §§ 4364-31 to 4364-41 R. S. 6. Curative Act. An act to carry into effect the intention both of officials and parties respecting certain county and municipal instruments and proceedings. [Sec. 1.] [Contract entered into and valid at time of making shall be deemed valid notwithstanding change in rule of judicial construction.] That whenever any officer or officers, board or board of officers, of any county, township, city or incorporated village have by resolution, ordinance, order or other proceed- ing, and in pursuance of any statutory legislation of this state, authorized or caused any county, township or municipal bonds or other obligations or instruments to be issued or executed and delivered, or any county, township or municipal contracts, grants, franchises, rights or privileges to be made or given which were valid according to any rule of judicial construction and adjudication of the state and prevailing at the date of any such action or proceeding, and loans or other things of value have been effected or acquired or expenditures have been made by other parties in reliance upon such construction or ad- judication, then and in every such case said bonds, obligations, contracts, grants, franchises, rights and privileges and each of them, shall be deemed and held in all respects valid and binding notwithstanding such rule or judicial construction and adjudication as to such other similar legislation shall have been subsequently changed. [1902, May 9, 95 v. 444.] 7. Feags on Buildings. Sec. 803 — 1 R. S. [Foreign flag forbidden on public build- ings; exceptions.] It shall not be lawful to display the flag or 836 THE OHIO MUNICIPAL CODE. emblem of any foreign country upon any state, county or mu- nicipal building; provided, however, that whenever any for- eigner shall become the guest of the United States, the state or any city upon proper proclamation by the governor or mayor of such city, the flag of the country of which such public guest shall be a citizen may be displayed upon such public buildings. [92 v. 89.] Sec. 803— 2R. S, [Penalty.] Whoever violates any of the provisions of this act shall be fined not more than fifty dollar.* or be imprisoned thirty days or both. [92 v. 89.] 8. Militia; Mobs, Kiots, etc. Sec. 3096 R. S. [When militia required to aid civil authority.] Whenever, in any county, there is a tumult, riot, mob, or any body of men acting together with intent to commit a felony, or to do or offer violence to person or property, or by force and violence to break or resist the laws of the state, or there is reasonable apprehension thereof, the commander-in-chief, the sheriff of the county, the mayor of any municipal corporation therein, or a judge of any court of the state or United States, may issue his call to the commanding officer of any regiment, battalion, company, troop, or battery, to order his command, or any part thereof, describing the same, to be and appear, at a time and place therein specified, to act in aid of the civil authority. [63 v. 70, § 43 ; S. & S. 458; (S. & C. 457).] ( 1 ) Cleveland City Guards act, see Revised Statutes, §§ 3056-1 to 3056-5«, inclusive. Sec. 3096a R. S. [In case of riot, mayor of municipal corpora- tion may cause saloons to be kept closed.] Whenever in any municipal corporation there is, in the opinion of the mayor of said municipal corporation, a tumult, riot, mob or any body of men acting together with intent to commit a felony or to do or offer to do violence to person or property, or by force and vio- lence to wreck property and resist the laws of this state, or there is reasonable apprehension thereof, the mayor of said municipal corporation shall issue his proclamation requiring the keepers of all saloons, or places where intoxicating liquors are sold at retail as a beverage, to close such places of business and to keep said places of business closed during the continuance of such MISCELLANEOUS STATUTES. 837 above described disturbance, when the mayor shall withdraw his proclamation. Whoever keeps open such place, or fails to comply with such proclamation of said mayor, shall be fined not less than one hundred dollars, nor more than five hundred dol- lars, or imprisoned not less than ten days, nor more than thirty days, or both. [97 v. 142.] Sec. 3097 R. S. [Must obey call of the civil authority.] The officer to whom the call is directed shall forthwith order the troops therein mentioned to parade at the time and place ap- pointed ; and if he neglect or refuse to obey, or if any officer re- fuse or neglect to obey any order issued in pursuance of such call, he shall be cashiered, and be further punished by fine, and imprisonment not exceeding six months, as a court-martial may adjudge ; and an enlisted man who neglects or refuses to appear at the place of parade, or to obey any order issued in such case ; or a person who advises or endeavors to persuade an officer or soldier to refuse or neglect to appear at such place, or to obey such order, shall be imprisoned not exceeding six months, or fined not exceeding one thousand dollars, or both. [63 v. 70, §44;S. &S. 458.] Sec. 3098 R. S. [How the men must be notified to appear.] Whenever the commanding officer of a company, troop, or battery orders out his command for such duty, he may order enlisted men to notify the men enrolled in such organization to appear at the time and place appointed, who shall give notice of such time and place of meeting, to each man personally, or by leav- ing at his usual place of abode a written or printed order, signed by the enlisted man serving the same, which notice shall be a sufficient warning. [74 v. 227 (238), § 45; (S. & S. 458).] Sec. 3099 R. S. [Penalties for disobedience of orders.] Every enlisted man who refuses or neglects to serve such notice, when duly ordered so to do, and every officer or enlisted man who, having been served with notice as provided in the preceding section, refuses or neglects to obey the same promptly, shall pay not less than ten nor more than one hundred dollars, as may be adjudged by a court-martial. [63 v. 70, § 46 ; S. & S. 458; (S. & C. 456).] 9. Museum and Park Companies. Sec. 3868 R. S. [Museum, park, pond, and rink companies.] When a corporation organized for the purpose of contracting 838 THE OHIO MUNICIPAL CODE. and conducting a museum to be used for the exhibition and preservation of works of nature and art, and for instruction in connection therewith, or a public hall of any kind, or a park, pond or rink to be used for skating or other lawful sports, or for holding fairs, festivals, public meeting, concerts or enter- tainments of any kind not prohibited by law, provides in its articles of incorporation that its buildings, or designated part thereof, shall be devoted to the use of the public for all pur- poses set forth in its articles, free from all costs, charges, and expense, except such as may be necessary for providing the means to keep such buildings, or such designated part thereof and its grounds in proper condition and repair, and to pay the expenses of insurance, care, management and attendance, so that the public may have the benefit thereof for all the legitimate uses set forth in its articles at as little expense as possible, and that no stockholder, subscriber, trustee, director or member shall receive any compensation, gain or profit from the corporation for such public use of its buildings or such designated part thereof, the authorities of any city, village or county in which the corporation is located, may appropriate to such use and grant the right and permit such corporation to erect and perpetually maintain its buildings on any of the parks, lands, lots or grounds which, or the use of which be- long to or are subject to the control of such city, village or county or the authorities thereof, and to control the same on the terms and conditions which may be agreed upon between such public authorities and the corporation; and in every such case it shall be lawful for the public authorities and the said corporation to agree that additional trustees of said corporation may be appointed by such public authorities, and upon the number of such trustees and the method of their appointment, and they may agree that any officer or officers of said city, vil- lage or county to be designated by them may act ex-officio as such trustees. [(73 v. 8, § 1 ; 69 v. 20, § 1.) 1881, April 12: 78 v. 127; Eev. Stat 1880.] 10. Name of Municipality, how Changed. Sec. 5852 R. S. [What names may be changed.] The names of persons, the names of towns, villages, and hamlets, and the names of companies or associations incorporated in this state, may be changed in the manner provided in this chapter. [40 v. 28, § 1; 51 v. 293, § 1 ; 50 v. 274, § 77; S. & C. 1138; S. & C. 309 ; S. & C. 317.] MISCELLANEOUS STATUTES. 839 Sec. 5854 R. S. [Proceeding to change name of town, village, or hamlet.] Kot less than twelve freeholders of the vicinity may file a petition in the court of common pleas of the county, for the change of the name of any town, village, or hamlet in such county, setting forth the reason why such change of name is desirable, and the name proposed to be substituted ; and the court, upon being satisfied by proof, that the prayer of the petitioners is just and reasonable, that notice as required in the last section has been given, 1 that at least three-fourths of the inhabitants of such town, village, or hamlet desire such change, and that there is no other town, village, or hamlet in this state of the same name as that which is prayed for, may order such change of name. [40 v. 28, § 3 ; S. & C. 1138.] ( 1 ) Notice. — The section refer- tion in a newspaper of general circu- red to is § 5853 R. S., relating to lation in the county at least thirty- change of name of persons and re- days prior to the filing of the peti-. quires notice of the intended appli- tion. cation to be given by one publica- 11. Pounds. Sec. 4202 U.S. [Certain animals not to run at large; pen- alty.] 1 No person or corporation being the owner or having the charge of any horses, mules, cattle, sheep, goats, swine, dogs or geese shall suffer the same to run at large 2 in any public road or highway, or in any street, lane or alley, or upon any uninclosed land or cause such animals to be herded, kept, or detained for the purpose of grazing the same on premises other than those owned or occupied by the owner or keeper of such animals, except as hereinafter provided ; and any person violat- ing the provisions of this section shall forfeit and pay for every such violation, as penalty therefor, not less than one dollar, nor more than five dollars, 3 continued violation, after notice, or prosecution, shall be held to be an additional offense for each and every day of such continuance. [93 v. 129; 78 v. 18; Kev. Stat. 1880; 62 v. 185, § 1, 56 v. 77, §§ 1, 2, 3 ; (S. & S. 7; S. & C. 76).] (1) Common law rule not (2) No breach without negli~ adopted in Ohio. — The common gence. — The owner of domestic rule required the owner to restrain animals mentioned in this section, domestic animals, but this rule was is not guilty of any breach if they not adopted in Ohio. Railroad v. be at large without the omissior Stephenson, 24 O. S. 48. on his part of reasonable care: lb.; Duties of road superintend^ Railway v. Howard, 40 O. S. 6; ents. — For further provisions, see Rutter v. Henry, 46 O. S. 272; Ru- §§4203 to 4208 R. S. 840 THE OHIO MUNICIPAL CODE. di v. Lang, 12 C. C. 529. But see Morgan v. Hudnell, 52 O. S. 552. And one finding an animal at large without negligence of the own- er, cannot confine said animal un- til the owner tender compensation. Rutter v. Henry, 46 O. S. 272; Ru- di v. Lang, 12 C. C. 529. Contra, Holtzkemper v. Langloth, 8 C. C. 520. (3) Liability of owner. — Own- er of domestic animal not generally liable for injury committed by such animal while in a place where it rightfully may be, unless owner knew of vicious propensities. Mor- gan v. Hudnell, 52 O. S. 552. Nor is the owner of unenclosed land liable for injuries to cattle straying on same. Ferguson v. Mi- ami Powder Co., 9 C. C. 445. Sec. 4207 R. S. [Animal running at large may be treated as stray; penalty.] A person finding an animal mentioned in section forty-two hundred and two, at large, 1 contrary to the provisions of this chapter may, and any constable of any town- ship, or any road superintendent in any township or village, or marshal or constable of any city or village, on view or informa- tion, shall take up and confine the same, forthwith giving no- tice thereof to the owner, if known, and if not known, by post- ing notices describing such animals therein, in at least three public places within the township; and if the owner does not appear and claim his property, and pay all charges for taking up, advertising, and keeping the same, within ten days from the date of the notice, the animals may be proceeded with under the laws regulating estrays; the mere act of any such animal running at large in or upon any of the places mentioned in sec- tion forty-two hundred and two, shall be prima facie evidence that such animal is so running at large contrary to the provi- sions thereof, but if it be proven that such animal escaped from the owner or keeper thereof, without his knowledge or fault, then it shall be given up to the owner or keeper, upon payment of a reasonable compensation for taking up and keep- ing the same. And if any constable, road superintendent or marshal, above named, shall wilfully neglect to perform any of the duties above required, he shall be fined not more than twenty-five dollars ($25.00), or imprisoned not more than ten days or both. [1906, April 16, 98 v. 334; 81 v. 105; 72 v. 170.] (1) Cattle at large.— Under provision of former act cattle run- ning at large, with or without per- mission of the owner could be taken up. Sloan v. Hubbard, 34 O. S. 583. And the right to take up animals running at large is not affected by failure of township trustees to es- tablish a pound. lb. A horse breaking out of an en- closed field, passing through an ad- joining field and thence into an- other field, is not " at large" con- trary to provision of § 4202 It. S.; MISCELLANEOUS STATUTES. 841 and no person is authorized to take vided by this section. Rutter v. up and confine it until the owner Henry, 46 O. S. 272. pay or tender compensation as pro- Sec. 4209 — 1 R. S. [Pounds in incorporated villages.] § 1. The council of any incorporated village may procure or construct an inclosure or pound wherein animals taken up within the said incorporated village, under the provisions of sections 4207 and 1692 1 of the Revised Statutes, may be confined, and like notices shall be given and like proceedings shall be had in such cases as are required by section 4207, Revised Statutes; and the council may appropriate from the general fund of such incorporated village an amount not exceeding one hun- dred dollars for said purpose. [90 v. 19.] (1) § 1692 R. S. is repealed by the Code. See Code § 7 and note (1) thereunder, p. 43. Sec. 4209—2 R. S. [Pound in Columbus.] § 1. The board of public works in cities of the first grade of the second class be and the same are hereby empowered to establish, construct and maintain pounds and appoint pound-masters in such cities; provided, however, that if the establishment, construction and maintenance of any one of such pounds, necessitates an ex- penditure at one time of more than five hundred dollars ($500.00), the consent of the councils of such cities therefor shall be first obtained. [88 v. 121.] Sec. 4209a R. S. [Pounds in cities of third grade of first class (Toledo.)] That in cities of the first class of the third grade, unless the common council of such city shall at all times maintain and continue an inclosure or pound, in which animals running at large, contrary to the provisions of the statutes of the state, and taken up by any person, shall, at all times, be received and detained until discharged or disposed of accord- ing to law, and in no other manner the prohibition in said section four thousand two hundred and nine against the taking up and confining such animals or stock in any private inclosure, shall have no< force or effect in such city, but the right to con- fine such animals or stock in a private inclosure shall exist as though no public pound had been provided. [1880, April 17: 77 v. 311.] 841a THE OHIO MUNICIPAL CODE. 12. Societies to Prevent Cruelty. Sec. 3718 R. S. [Societies may appoint agents to enforce law; approval of appointment; salary of agent.] Such asso- ciations 1 may appoint agents who shall be residents of the county or municipality for which the appointment is made for the purpose of prosecuting any person guilty of any act of cru- elty to persons or animals within this state, who shall have power to arrest any person found violating any of the provi- sions of this chapter, or any other law for the purpose of pro- tecting persons or animals or preventing any act of cruelty thereto ; and upon making such arrest, such agent shall convey the person so arrested before some court or magistrate having jurisdiction of the offense, and there forthwith make complaint on oath or affirmation, of the offense ; but all appointments by such associations under this section must have the approval of the mayor of the city or village for which the appointment is made, and if it exists outside of any city or village the appoint- ment must be approved by the probate judge of the county for which the appointment is made, and the mayor or probate judge shall keep a record of all such appointments; provided that upon the approval of the appointment of any such agent or agents by the mayor of the city or village, the council of such city or village shall pay monthly to such agent or agents, out of the general revenue fund of such city or village, such salary as the council may deem just and reasonable ; and upon the approval of the appointment of any such agent or agents by the probate judge of the county, the county commissioners shall pay monthly to such agent or agents, out of the general revenue fund of the county, such salary as the commissioners may deem just and reasonable ; and provided further that the commissioners and the council of any such city or village may agree upon the amount each shall pay such agent or agents monthly, and the amount of salary to be paid monthly by the council of any such village to any such agent shall not be less than five dollars, by the council of any such city not less than twenty dollars, and by the commissioners of any such county not less than twenty-five dollars ; provided that not more than one agent in each county shall receive remuneration from the county commissioners under the provisions of this section. [1906, March 14, 98 v. 43 ; 81 v. 181 ; 72 v. 129.] (1) This refers to societies for the prevention of cruelty to animals. MISCELLANEOUS STATUTES. 842 13. Soldiers ' Monuments. Sec. 3107 — 19 R. S. [Townships, cities, etc., may assist in building monuments; bonds therefor.] Whenever any township, incorporated village or city, in which a soldiers' monumental building, such as is contemplated in the act to which this is supplementary, is proposed to be created shall desire to unite in the erection of such building for township, village, or city purposes, each such township shall have a right to aid and as- sist in the same to an amount not exceeding twenty-five thou- sand dollars, and each city or incorporated village, to an amount not exceeding twenty-five thousand dollars, and to issue bonds therefor, payable in ten years from date of issue, and bearing interest at the rate of eight per cent, payable semi- annually, on the first days of July and January in each year until paid, and the faith and credit of the township, village, or city, shall be pledged for the full and faithful payment of the principal and interest upon said bonds, when and as the same may respectively become due by the terms of said bonds : provided, that any party uniting with the trustees of any fund described in the act to which this is supplementary, shall fur- nish an amount of money for the erection of said building equal at least to the amount furnished by said trustees of the monu- mental fund. [72 v. 60.] Sec. 3107 — 20 R. S. [Question of issuing bonds must be sub- mitted to vote; notice to be given.] No bonds shall be is- sued by any township, city, or incorporated village under the provision of this act until the question of issuing the same shall have been first submitted to a vote of the qualified elect- ors of the township, city, or incorporated village, and a major- ity of such qualified electors voting at the election shall have voted " Monumental aid, Yes ; " and such election may be held at the usual place of holding elections in said city, town- ship, or incorporated village, at any time after ten days' no- tice of the time and place of holding the same shall have been publicly given by the trustees of the township, or council of the city or incorporated village, in one or more newspapers of the county having general circulation therein, stating also the amount of the bonds proposed to be issued, the rate of interest, the purpose for which issued, and the time of payment, and that each voter shall indorse upon his ballot, " Monumental aid, Yes," or "Monumental aid, "No." Said election shall be conducted in all respects as other general or special elections held under the laws of this state ; and the : asult thereof certified within three days thereafter by the proper officers, 843 THE OHIO MUNICIPAL CODE. with the poll books', to the clerk of the courts of the county, as is required in cases of a general election. [72 v. 60.] Sec. 3107 — 21 R. S. [Procedure on affirmative votes.] If a majority of the votes cast at any such election shall be returned as cast for " Monumental aid, Yes," then it shall be the duty of the trustees of the township or council of the city or incorporated village, or both, as the case may be, forthwith on the certificate of the clerk of the court to that effect to issue the bonds thereof in the sum specified in the notice, for the election, payable in [ten] years from date, with interest at the rate of eight per cent, per annum, payable semi-annually, on the first days of July and January, at the place of issue, and to deliver the same to the trustees of the monumental building fund, provided for in the original act to which this is supplementary, and to take their receipt or that of their treasurer therefor. [72 v. 60.] Sec. 3107 — 22 R. S. [Duty of trustees in the erection of mon- ument.] That the trustees of said " Monumental building fund " upon receiving the bonds provided for in the preceding section, shall at once proceed to convert the same into money in any case for no less than their par value, and proceed at once to the erection of the monumental building provided for by the act to which this is supplementary, and also provid- ing in said building all necessary and suitable rooms for town- ship, city, or incorporated village purposes provided, that in giving notice of the time, manner, and purposes of election as provided in the second section [§(3107 — 20)] of this act, the number and character of rooms required for township, city or village purposes, may be therein described, and if so described, the bonds heretofore described shall in no event be issued or deliverd until the trustees of said monumntal building fund shall have given bond with security to the satisfaction of the probate judge of the county, conditioned for the speedy and faithful completion of rooms in said building, as stipulated in such notice, to the satisfaction of said probate judge, and the failure to so do will subject the property of said monumental building association to all damages that may arise from such failure as well as to liability upon bond of the trustees as aforesaid. [72 v. 60.] Sec. 3107 — 23 R. S. [Levy of tax for principal and interest.] In case of the issue and delivery of bonds as aforesaid, it shall be the duty of the trustees of the township, or council of a city, or incorporated village, at the usual time for levying taxes, to levy a tax upon all the taxable property of such township, city, MISCELLANEOUS STATUTES. 844 or village, as mil be sufficient to pay the interest thereon for the current year, and such proportional part of the principal for a sinking fund as will be sufficient to pay off the same when and as they become due, and this shall be done year by year until the whole amount of principal and interest is fully satis- fid, paid off and discharged. [72 v. 60.] Sec. 3107—24 R. S. [Vote to be taken on request of 20 citi- zens.] The vote required to be taken by this act shall be taken and notice therefor given as herein required imme- diately upon a request therefor being filed with the trustees of any township, or council, of any city or incorporated village, for ten days, by twenty citizens, residents and tax-payers of such township, city, or village, and notice to the clerk of such township, trustees, or council, shall be equivalent to service up- on the trustees or council themselves. [72 v. 60.] 14. Timepiece on Public Buildings. Sec. 4446 — 4 R. S. [Timepiece in or upon public building to keep central standard time.] Wherever there is a clock or oth- er timepiece in or upon a public building within this state, the same being maintained at the public expense, it shall be the duty of the board of county commissioners, board of education, or other persons having control and charge of such building, to have said clock or other timepiece set and run according to the standard of time established by the act passed March 22, 1893, entitled " An act to establish a uniform system of keeping time throughout the state of Ohio." [§(4446-3.)] [92 v. 312.] 15. Trusts fob Educational Purposes. Sec. 4105 R. S. [Board of education to have control and man- agement of property held in trust lor educational purposes, etc.; tax levy.] The custody, management and administration of any and all estates or funds, given or transferred in trust to' any municipality for the promotion of education, and accepted by the council thereof, and any institution for the promotion of education heretofore or hereafter so founded other than a uni- versity as defined by this act, shall be committed to, and exer- cised by, the board of education of the school district including such municipality, and such board of education shall be held the representative and trustee of such municipality in the man- agement and control of such estates and funds so held in trust and in the administration of such institution, excepting always 845 THE OHIO MUNICIPAL CODE. such funds and estates held by any municipality which are used to maintain a university as defined by this act. And for the uses and purposes of such board of education in administering such trusts, the council of such municipality may annually lev? taxes on all the taxable property of such municipal corporation to the amount of three-tenths of one mill on the dollar valuation thereof. 1 [97 v. 544; 94 v. 241 ; 70 v. 117.] (1) See §217 of the code and Waddick v. Merrill, 26 C. C. 437; sections re-enacted therein, p. 485 5 C. C. (N. S.) 103; State ex rel. et seq. v. Toledo, 26 C. C. 628; 5 C. C. (N. See, as to effect of this section, S.) 277. 16 Voting on Submitted Questions. Sec. 2996 — 1 R. S. [Majority of those voting on a question submitted means majority of all voters at the election.] In any and all cases where it is provided by statute that any question shall be submitted to the qualified voters of any township, vil- lage, county or city in the state of Ohio, and the statute so providing is silent as to the number of votes necessary to author- ize the performing of the act voted upon, such statute shall be held to mean that a majority of all the qualified voters voting at said election must vote in favor thereof in order to authorize the same. 1 [90 v. 130.] (1) Meaning of majority.— But where the majority votes cast Where trustees are authorized to are required to be in the affirmative, make a special levy but said levy " majority votes " means majority not to be made until a majority of of votes cast on the question. Dex- the electors of said township at ter v. Raine et al., 18 B. 61 (aff'd some regular election, shall vote in 18 B. 301). See also State ex rel. favor of said levy, a majority of v . Amlin, 13 Dec. 334. votes cast is required and not a And a majority for a constitu- majority voting for or against the tional amendment is a majority of levy. Enyart v. Hanover Tp., 25 votes cast for senators and repre- O. S! 618. sentatives. State v. Foraker, 46 O. S. 677. Sec. &996 — 2 R. S. [No special election for such question un- less act so provides; proclamation.] Unless the act so providing for the submitting of any question to the qualified voters of any township, county, village or city also provides for the calling of a special election for that purpose, no special election shall be so called, and the question so to be voted upon shall be sub- mitted at a regular election in such township, county, village or city, and notice that such question is to be voted upon shall be embodied in the proclamation for such election. [90 v. 130.] APPENDIX i GOVERNOR'S MESSAGE. Message of Hon. George K. Nash, Governor of Ohio, to the Extraordinary Session of the General Assem- bly, August 25th, 1902. To the Seventy-fifth General Assembly: You have assembled upon the proclamation of the Governor. It is now my duty to state to you the purpose for which you have been con- vened. 1. On the 12th day of May, 1902, a bill became a law, entitled, "An act to amend section 6710 (as amended 93 O. L. 255), of the Revised Statutes of Ohio." Since that time this law has passed under the scrutiny of the Supreme Court and that tribunal found that it had been deprived of nearly all the appellate jurisdiction formerly pos- sessed by it. If this act is permitted to stand, it will take from the people the right to have a large percentage of their civil cases reviewed on error by the highest court. I am informed, and I am constrained to believe, that it was not your wish, nor your intention, to do this. The error should be remedied as speedily as possible. I therefore recom- mend that the act of May 12th, 1902, above referred to, be repealed, and such additional legislation had as is necessary to restore to said court the jurisdiction which it possessed before the passage of said act, and to restore to litigants the same rights they would have had if said act had never been enacted. 2. During the last days of June the Supreme Court of the State handed down several decisions, which practically deprive our munici- pal corporations of all government. It is apparent that this is an ex- traordinary occasion which needs a remedy at the earliest possible mo- ment. Constitutional government must be restored to our cities and villages. The labor demanded of us is not so much a work of con- struction as of readjustment. The question now is, not what we think would be a " model " municipal government, but what we can get, con- sidering the constitutional limitations, and all the circumstances sur- rounding us. The task must be approached with a spirit of "give and take " and with a determination to accomplish something which will 847 848 THE OHIO MUNICIPAL CODE. bring order out of chaos. It is time enough to attempt to have our favorite ideas in regard to municipalities incorporated into law after order has been restored and when the General Assembly has ample time, at its regular session, to discuss and consider them. Perhaps it will be beneficial in our work to recall, in a brief way, the history of municipalities and their government in Ohio. Under the old constitution, the General Assembly was left free to provide for any city or village such a government as it might wish. As a re- sult they were given special charters, each differing from the other in many important particulars. Fifty years of experience demonstrated that this system was full of wrongs. The subject was carefully con- sidered by the convention which made the constitution of 1851. The result of their labors was article 13 of that constitution, section 1 of which provides, " The General Assembly shall pass no special act confer- ring corporate powers," and section 6 of which reads, " The General As- sembly shall provide for the organization of cities and incorporated vil- lages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to pre- vent the abuse of such powers." These plain words indicate that the in- tention of the constitution is to command the General Assembly to pro- vide for the government of cities by uniform and general laws. This command was fairly well obeyed for several years. Then, what seemed to be the wants and demands of the people caused a resort to various modes of classification. These grew to be absurd in their character. The gov- ernment of one city no longer resembled the government of another. We were again in the midst of the evils that existed in Ohio prior to 1851. This transgression of the law of the constitution could not last for- ever. A crash must come, and it did come in June of this year. In doing our work we should be careful to stand rigidly by the principles of the constitution. A departure from this course would make our work a nullity and continue indefinitely the confusion which now exists. It has been suggested, by very respectable people, that you can authorize the citizens of municipalities to do something that you cannot do yourselves; that you may empower the people of the eight hundred cities and villages in Ohio to assemble in constitutional conventions, and, each for itself, adopt a charter for its government. The result would be, as many schemes for the government of cities and villages as there are municipalities in the state. We would again be in the midst of the perils which surrounded our fathers in 1851, increased ten-fold, and tvould utterly disregard the command of our highest court, which says that we must have uniform and general laws for our government. I therefore recommend that no heed be given to this suggestion. It is my duty to make affirmative reccommendation to you in regard to this work. Such recommendations, to be helpful, must be definite and certain. That they may be of such character, I have devoted much time, thought and study to this subject, have called to my assistance skilled and learned men, and have prepared with their help a bill which contains all the matters and restrictions which I think should be embraced at this time in a law for the government of our cities and villages. I APPENDIX. 849 submit the bill herewith, and hereby specifically recommend that all parts of said bill, and the bill as a whole, be made a part of the law of Ohio. If there are things in this bill which do not meet your approval, you will find it easy to make amendments, without being obliged to undergo the work of preparing a bill of great length. The subject which I have discussed herein is one of great importance. I do not wish unduly to influence your judgments, but I do ask that you give it most careful and thoughtful consideration, and then act as your consciences dictate. It has been claimed that many of the school laws of the state are subject to the objection that they are violative of the provi ; ons of the constitution. This may be true. It has not, however, been so declared by the Supreme Court. When this is done it is time to seek a remedy. When this court found that our municipalities were built upon false foundations, it stayed its hand, it delayed the operation of its decree, and gave us plenty of time to meet the emergency. We can safely rely upon this court to protect our public schools. They will not be struck down without ample opportunity to provide for the contingency. The Supreme Court in its recent decisions has declared certain acts regulating the compensation of county officers to be unconstitutional. This subject does not need your immediate consideration. It makes but little difference, in a financial way,- to the people whether their county officers are paid under the fee or the salary system. Therefore this subject can be safely postponed until the meeting of the next General Assembly. It is also possible that there are imperfections existing in the regis- tration and election laws, and also in the laws relating to the annual boards for the equalization of the valuation of property for taxation. I suggest that by joint resolutions you refer the school laws to the State Commissioner of Common Schools and the Attorney General; the laws relating to the compensation of county officers to the Auditor of State, Secretary of State and the Attorney General; the laws relating to registration and elections to the Secretary of State; and the laws relating to annual boards of equalization to the Auditor of State, with instructions to revise and recodify said laws, remove therefrom all imperfections, and have their work ready for presentation to the next General Assembly of Ohio, on the first Monday in January, 1904. Th« officers named are entirely familiar with these laws, and I am sure they would make a perfect revision of the same. I most earnestly recommend that no subject of legislation be con- sidered at this extraordinary session of the General Assembly, except those herein suggested. Respectfully submitted, Geo. K. Nash. Columbus, O., August 25, 1902. II POPULATION OF MUNICIPAL CORPOR ATIONS OF OHIO. As SHOWN BY THE FEDERAL CENSUS OF 1900. Proclamation of the Secretary of State in compliance with Section 2 of the Municipal Code, passed October 22, 1902. In compliance with the provisions of Section 2 of an act of the General Assembly of Ohio entitled "An act to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers, as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith," passed October 22, 1902, I, Lewis C. Laylin, Secretary of State of the State of Ohio, do proclaim that the municipal corporations of Ohio which had a population of five thousand or over by the Federal Census of 1900, together with the population of said corporations, as shown by said census, are as follows: Name. County. Population, 1900. Akron Summit Stark ; 42,728 Alliance 8,974 Ashtabula Ashtabula Belmont 12,949 Bellaire . 9,912 6,649 5,067 Bellefontaine Logan Bowling Green Wood Bucyrus Crawford 6,560 Cambridge Guernsey Tuscarawas 8,241 Canal Dover 5,422 Canton Stark Ross Hamilton Pickaway Cuyahoga . 30,667 12,976 Chillicothe Cincinnati Circleville 325,902 6,991 381,768 Cleveland Columbus Franklin 125,560 Conneaut Ashtabula Coshocton Montgomery Defiance 7,133 6,473 Coshocton Dayton 85,333 7,579 Defiance Delaware 7,940 16,485 East Liverpool Columbiana Lorain Elyria 8,791 850 APPENDIX. 851 Name. Findlay Fostoria Fremont Galion Gallipolis Glenville Greenville Hamilton Ironton Kenton Lancaster Lima Lorain Mansfield Marietta Marion Martins Ferry . . . Massillon Middletown Mt Vernon Nelsonville Newark Newburg New Philadelphia Niles Norwalk Norwood Painesville Piqua Portsmouth St. Marys Salem Sandusky Sidney Springfield Steubenville Tiffin Toledo Troy Urbana Van Wert Warren Washington C. H. Wellston Wellsville Wooster Xenia Youngstown Zanesville ...... County. Hancock . . . Seneca Sandusky . Crawford . . Gallia Cuyahoga . Darke Butler Lawrence . . Hardin . . . Fairfield . . Allen Lorain Richland . . Washington Marion Belmont . . . Stark Butler Knox Athens Licking Cuyahoga . . Tuscarawas Trumbull . . Huron .... Hamilton . . Lake Miami .... Scioto Auglaize . . Columbiana Erie Shelby Clark Jefferson . . Seneca Lucas Miami Champaign Van Wert Trumbull . Fayette . . . Jackson . . Columbiana Wayne . . . Greene . . . Mahoning Muskingum Population, 1900. 17,613 7,730 8,439 7,282 5,432 5,588 5,501 23,914 11.868 6,852 8,991 21,723 16,028 17,640 13,348 11,862 7,760 11,944 9,215 6,633 5,421 18,157 5,909 6,213 7,468 7,074 6,480 5,024 12,172 17,870 5,359 7,582 19,664 5,688 38,253 14,349 10,989 131,822 5,881 6,808 6,422 8,529 5,751 8,045 6,146 6,063 8,696 44,885 23,538 852 THE OHIO MUNICIPAL CODE. 1 do further proclaim that the municipal corporations of Ohio which had a population of less than five thousand by the Federal Census of 1900, together with the population of such corporations, as shown by said census, are as follows: Name. Aberdeen Ada Adamsville Addyson Adelphi Albany Alexandria Alger Allentown Alvordton Andover Anna Amelia Amesville Ansonia Antioch Antwerp Applecreek Arcadia Arcanum Archbold Arlington Arlington Heights. Arnettsville Ashland Ashley Asheville Athalia . Athens Attica Bainbridge Bairdstown Baltimore Barbertown Barnesville Barnhill Batavia Batesville Bay Beach City Beallsville Beaver Beaver Dam Bedford Bellebrook Belle Center Belleville Bellevue Belmont Belmore County. Brown Hardin Muskingum Hamilton Ross Athens Licking Hardin -.. Allen Williams Ashtabula Shelby Clermont Athens Darke Monroe Paulding Wayne Hancock Darke Fulton Hancock Hamilton Greene Ashland Delaware Pickaway Lawrence Athens Seneca Ross Wood Fairfield Summit Belmont Tuscarawas Clermont Noble Cuyahoga Stark Monroe Pike Allen Cuyahoga Greene Logan Richland Huron and Sandusky Belmont Putnam Population, 1900. 711 2,576 201 1,513 516 548 420 462 123 482 815 451 676 212 1,206 387 425 1,225 958 738 360 157 4,087 700 654 346 3,066 694 954 298 460 4,354 3,721 811 1,029 312 364 554 262 477 1,486 352 962 1,039 4,101 422 334 Population not given in census. APPENDIX. 853 Name. Belpre Beloit Benton Ridge . . . Berea Berlin Heights . . Bethel Bettsville Beverly Blakeslee Blake's Mills Blanchester Bloomdale Bloomingburg . . . P'oomville Bluffton Bond Hill Boston Botkins Bourneville Bowerstown Boliver Bowersville Bradford Bradner Bremen Bridgeport Brilliant Brink Haven . . . Brookside Brookville Braughton Bryan Buckeye City .... Buckland Burbank Burton Butler Butlerville Bloomfield Byesville Cadiz Calais Caldwell Caledonia Camden Canal Fulton . . . Canal Winchester Canfield Cannelville Cardington Carey Carlisle Carroll Carrollton Carthage County. Washington Mahoning . Hancock . . Cuyahoga . Erie Clermont . . Seneca .... Washington Williams . . Tuscarawas Clinton Wood Fayette . . . Seneca Allen Hamilton . , Clermont , . Shelby .... Ross Harrison . . Tuscarawas Greene Miami Wood Fairfield . . Belmont . . . Jefferson . . Knox Belmont . . . Montgomery Paulding . . Williams . . Knox Auglaize . . . Wayne .... Geauga . . . Harrison . . Warren Jefferson . . Guernsey . . Harrison . . Monroe .... Xoble Marion Preble Stark Franklin . . Mahoning . Muskingum Morrow . . . Wyandot . . Lorain .... Fairfield . . . Carroll .... Hamilton . Population, 1900. 359 2,500 625 850 492 712 239 • 1,788 740 636 819 1,783 1,081 260 420 356 526 * 370 1,254 1,148 466 3,963 646 250 249 869 226 3,131 247 * 325 727 567 125 1,267 1,755 114 927 682 905 1,172 662 672 281 1,354 1,816 164 223 1,271 2,559 Population not given in census. 854 THE OHIO MUNICIPAL CODE. Name. Casstown Catawba . ." Cecil Cedarville Celina Centerburg Centerville Chagrin Falls Chambersburg .... Chardon Chatfield Chester Hill Chesterville Chicago Junction . Chickasaw Clarington Clarksburg Clarksville Cleveland Heights Cleves Clifton Clinton Cloverdale Clyde Coalgrove Coalton Coldwater College Corner . . College Hill Collinwood Columbiana Columbus Grove . Commercial Point Congress Continental Convoy Coolville Copley Corning Cortland Corwin Covington ....... Crestline Creston Cridersville Crooksville Crown City Cumberland Custar Cuyahoga Falls . . Cygnet Dalton Danville Darbyville Deavertown Miami .... Clark Paulding . . Greene .... Mercer .... Knox Montgomery Cuyahoga Gallia Geauga . . . Crawford . . Hamilton . . Morrow . . . Huron .... Mercer .... Monroe Ross Clinton County. Hamilton . . Hamilton . . Huron Putnam . . . Sandusky . Lawrence . . Jackson . . . Mercer Preble Hamilton . Cuyahoga . Columbiana Putnam . . . Pickaway . Wayne Putnam . . . Van Wert . Athens Summit . . . Perry Trumbull . Warren . . . Miami Crawford . Wayne . . . Auglaifce . Perry Gallia Guernsey . Wood Summit . . Wood .... Wayne Knox Pickaway . Morgan . . . Population, 1900. 262 231 326 1,189 2,815 706 198 1,586 169 1,360 298 480 230 2,348 310 905 551 465 * 1,328 262 186 » 2,515 1,191 1,625 627 378 1,104 3,639 1,339 1,935 245 198 1,104 690 315 243 1,401 620 131 1,791 3,282 893 581 835 284 618 293 3,186 896 666 298 250 154 * Population not given in census. APPENDIX. 855 Name. Deerfield Deersville .... Degraff Delhi Delroy Delphos Delta Dennison Deshler Dexter City . . Dillonvale .... Donaldsville . . Doylestown . . . Dresden Dublin Duncan's Falls Dunkirk Dupont East Cleveland East Palestine Eaton Edgerton Edison Edon Eldorado Elgin Elida Elmore Elmwood Place Empire Enon Evanston Fairfield Fairpoint Fairport Fairview Farmersville . . Fayette Fayetteville . . . Felicity Fernbank Five Points . . . Fletcher Florida Flushing Forest Fort Jennings . Fort. Recovery . Frankfort Franklin Frazeysburg . . Fredericksburg Fredericktown Freeport Freeport County. Portage Harrison Logan Hamilton Carroll Van Wert and Allen. Fulton Tuscarawas Henry Noble Jefferson Clark Wayne Muskingum Franklin Muskingum Hardin Putnam Cuyahoga Columbiana Preble Williams Morrow Williams Preble Van Wert Allen Ottawa Hamilton Jefferson Clark Hamilton Greene Pickaway Lake, . . . . '. Guernsey Montgomery Fulton Brown Clermont Hampton Pickaway Miami Henry Belmont Hardin Putnam Mercer , Ross Warren Muskingum Wayne Knox , Harrison Wood Population, 1900. 484 256 1,150 829 400 4,517 1,230 3,763 1,628 278 « 200 1,057 1,600 275 » 1,222 370 2,757 2,493 3,155 1,043 347 740 358 208 440 1,025 2,532 * 295 1,716 312 • 2,073 291 440 886 323 695 310 176 375 276 653 1,155 322 1,097 717 2,724 730 511 890 690 815 * Population not given in census. 856 THE OHIO MUNICIPAL CODE. Name. Gahanna Gambier Garrettsville . . . Geneva Genoa Georgetown .... Germantown . . . Gettysburg .... Gibsonburg .... Gilboa ....'.... Girard Gaun Geyer Glandorf Glendale ...... Glenmont Glouster Gnadenhutten . . Gordon Grafton Grand Rapids . Granville Graysville Greencamp .... Greenfield Green Spring . . Greenwich Grove City Groveport Grover Grover Hill .... Hamden Hamersville . . . Hamler Hanging Rock . . Hanover Hanoverton Harlem Springs Harrisburg Harrison Harrisville Harrod Haitford Hartwell Harveysburg . . . Haskins Haviland Hayesville .... Hebron Hemlock Hicksville Higginsport Hilliard Hillsboro Hiram County. Franklin Knox Portage Ashtabula Ottawa Brown Montgomery Darke Sandusky Putnam Trumbull Knox Auglaize Putnam Hamilton Holmes , Athens Tuscarawas Darke Lorain Wood Licking Monroe Marion Highland Seneca and Sandusky Huron Franklin Franklin Paulding . . Vinton Brown .... Henry Lawrence . . Licking Columbiana Carroll Franklin . . Hamilton . . Harrison . . Allen Licking . . . Hamilton . . Warren Wood Paulding . . Ashland . . . Licking . . . Perry Defiance . . . Brown .... Franklin . . Highland . Portage . . . Population, 1900. 276 751 1,145 2,342 824 1,529 1,702 246 1,791 346 2,630 749 1,545 209 2,155 547 1,098 549 1,425 174 369 3,979 816 849 656 519 308 655 838 242 574 665 314 399 # 247 1,456 250 370 414 1,833 435 449 186 332 455 581 2,520 650 376 4,535 659 * Population not given in census. APPENDIX. 857 Name. Holgate Hollansburg Holmesville Holmes City Hopedale Hoytsville Hubbard Hudson Huntsville Huntersville Huron Hyde Park Irondale Independence Ithica Jackson Jacksonboro Jackson Center Jacksonville Jamestown Jefferson Jeffersonville Jenera Jeromeville Jerry City Jerusalem Jewett Johnstown Junction City Kalida Kelley's Island Kennedy Heights Kent Kettlerville Killbuck Kimbalton Kingston Kirby Kossuth Lafayette La Grange Lakeview Lakewood La Rue Latty Laura Laurelville Lebanon Leesburg Leesville Leesville Cross Roads Leetonia Leipsic Lewisburg Lewisville County. Henry Darke Holmes Hamilton . . Harrison . . Wood Trumbull . . Summit Logan Miami Erie Hamilton . . Jefferson Cuyahoga . . Darke Jackson . . . Butler Shelby .... Athens Greene .... Ashtabula . Fayette Hancock . . . Ashland . . . Wood Monroe Harrison Licking Perry ..... Putnam Erie Hamilton . . Portage . . . Shelby .... Holmes Guernsey . . Ross Wyandot . . Auglaize . . . Allen Lorain Cuyahoga . Cuyahoga . . Marion Paulding . . Miami .... Hocking . . . Warren . . . Highland . . Carroll .... Crawford . . Columbiana Putnam . . . Preble Monroe . . . Population, 1900. 1,237 275 304 868 365 431 1,230 983 408 1,708 1,691 1,136 113 4,672 77 644 1,047 1,205 1,319 790 237 308 555 245 743 638 443 622 1,174 209 4,541 145 370 245 735 187 153 316 528 553 3,355 997 444 378 450 2,867 783 269 178 2,744 1,726 560 170 * Population not given in census. 858 THE OHIO MUNICIPAL CODE. Name. Lexington Liberty Center . Limaville Linndale Lindsey Lisbon Lithopolis Little Sandusky . Lockington Lockbourne Lockland Lodi Logan London Loramie Loudon ville Louisville Loveland Lowell Lowellville Lower Salem Lucas Lynchburg Lyons McArthur McClure McComb McConnelsville . . McGuffey Maeksburg Madison Madisonville Magnetic Springs Magnolia Maineville Malinta Malta . . . .- Malvern Manchester Mantua Marble Cliff Marblehead Marengo Marice City Marseilles Marshallville . . . Martinsburg Martinsville Marysville Mason Maumee Mechanicsburg . Medina Mielrose Mendon County. Richland Henry Stark Cuyahoga Sandusky Columbiana Fairfield Wyandot Shelby Franklin Hamilton Medina Hocking Madison Shelby Ashland Stark Clermont and Warren Washington Mahoning Washington Richland Highland Fulton Vinton Henry Hancock , MIorgan Hardin Washington Lake Hamilton Union Stark Warren Henry Morgan Carroll Adams Portage Franklin Ottawa Jefferson Putnam Wyandot Wayne Knox Clinton Union Warren Lucas Champaign Medina Paulding Mercer Population, 1900. 448 606 156 » 614 3,330 358 181 210 # 2,695 846 3,480 3,511 444 1,581 1,374 1,260 381 1,137 190 306 907 * 941 660 1,195 1,825 452 448 768 3,140 194 431 288 357 845 709* 2,003 743 # 997 242 * 251 357 238 338 3,048 629 1,856 1,617 2,232 383 599 * Population not given in census. APPENDIX. 859 Name. County. Population, 1900. Mentor Metamora Miamisburg Middlepoint .... Middleport Middleburg Midland Midvale Midway Mifilin Milan Milford Milford Center . . Milbury Milledgeville .... Miller City Millersburg Milton Center . . . Miltonsburg .... Milton Mineral City . . . Mineral Ridge . . Minerva Mingo Junction . Minster Monroeville Montezuma Montpelier Morristown Morrow Moscow Mt. Airy Mt. Blanchard . . Mt. Cory Mt. Eaton Mt. Gilead Mt. Healthy ... Mt. Oreb Mt. Pleasant . . . Mt. Sterling . . . Mt. Victory .... Mt. Washington . Murray City . . . Mutual Napoleon Nashville Navarre ........ Nevada Neville New Albany .... New Alexandria . New Athens .... New Bloomington New Bremen . . . New Carlisle . . . Lake Fulton Montgomery .... Van Wert Meigs Logan Clinton Tuscarawas Guernsey Ashland Erie Clermont Union Wood Fayette Putnam Holmes Wood Monroe , Mahoning Tuscarawas ...... Trumbull Carroll and Stark Jefferson Auglaize Huron Mercer , Williams Belmont Warren Clermont Hamilton Hancock Hancock Wayne Morrow Hamilton Brown Jefferson ....... Madison Hardin Hamilton Hocking Champaign Henry Holmes Stark Wyandot Clermont Franklin Jefferson Harrison Marion Auglaize Clark 624 263 3,941 604 2,799 * 338 491 274 185 653 1,149 682 284 201 163 1,998 325 130 * 1,220 831 1,200 2,954 1,465 1,211 317 1,869 350 869 475 400 456. 312 232 1,528 1,354 561 626 986 734 781 1,118 163 3,639 766 963 889 265 224 * 435 399 1,318 995 * Population not given in census. 860 THE OHIO MUNICIPAL CODE. Name. New Comerstown New Concord . . . New Waterford . New Holland New Knoxville . . New Lebanon . . . New liebanon . . . New Lexington . New Lexington . New London New Madison . . . New Matamoras New Paris New Petersburg . New Richmond . . New Riegel New Salem New Straitsville . New Vienna New Washington Newton Falls . . . Ney North Amherst . . North Baltimore North Bend North Lewisburg North Robinson . Norwich Nottingham Oak Harbor Oak Hill Oakley Oakwood Oberlin Ohio City Olmsted Falls . . . O^angeville Orville Osborn Osgood Osnaburg Ostrander Ottawa Ottoville Otwa Oxford Palestine Pandora Pataskala Patterson Paulding Payne Patriot Peebles Pemberville Tuscarawas Muskingum Columbiana PicKaway and Fayette Auglaize Montgomery Miami Highland Perry Huron Darke , Washington Preble Highland Clermont , Seneca Fairfield Perry Clinton Crawford Trumbull Defiance Lorain Wood Hamilton Champaign Crawford Muskingum Cuyahog i, Ottawa Jackson Hamilton Paulding Lorain Van Wert Cuyahoga Trumbull Wayne Greene Darke Stark Delaware Putnam Putnam Scioto Butler Pickaway Putnam Licking Hardin . # Paulding Paulding Gallia Adams Wood Population, 1900. 2,659 675 692 436 145 224 265 1,701 1,180 590 817 790 * 1,916 298 180 2,302 805 824 732 289 1,758 3,561 532 846 200 253 939 1,631 825 528 342 4,082 862 330 * 1,901 948 224 558 401 2,322 369 274 2,009 210 409 675 219 2,080 1,336 * 763 1,081 Population not given in census. APPENDIX. 861 Name. Peninsula Perrysburg Perrysville Phillipsburg Pickerington Piketcn Pioneer Plain City Plainfield '. Pleasant City . . . Pleasant Hill . . . Pleasant Ridge . Pleasantville . . . Plymouth . Poland Polk Pomeroy Portage ........ Port Clinton Port Jefferson . . . Port Washington Port William . . . Proetorville Prospect Put-in-Bay Quaker City Quincy Racine Rarden Ravenna Rawson Reading Rendville Republic Reynoldsburg . . . Richmond Richmond Richwood Ridgeway Ripley Rising Sun Riverside Rochester Rockcreek Rockford Rockport Rocky Ridge . . . Rocky River . . . Rogers Rome Roseville Rossville Rushsylvania . . . Rushville Russellville County. Summit Wood . . Ashland Montgomery Fairfield Pike Williams Madison and Union Coshocton Guernsey Miami Hamilton Fairfield Richland and Huron Mahoning Ashland Meigs Wood Ottawa Shelby Tuscarawas Clinton Lawrence Marion Ottawa Guernsey Logan Meigs Scioto Portage Hancock Hamilton Perry Seneca , Franklin Jefferson Lake Union Hardin and Logan . . Brown Wood Hamilton , Lorain Ashtabula Cuyahoga Cuyahoga , Ottawa Cuyahoga Columbiana Adams viuskingum Darke Logan Fairfield Brown Population, 1900. 579 1,766 513 * 263 625 603 1,432 255 1,006 557 953 501 1,154 370 232 4,639 546 2,450 355 424 200 523 983 317 878 642 327 443 4,003 473 3,076 790 656 339 373 332 1,640 447 2,248 660 * 167 478 1,207 2,038 414 1,319 287 1,207 251 552 257 394 * Population not given in census. 862 THE OHIO MUNICIPAL CODE. Name. Sabina St. Bernard St. Clairsville . . . St. Henry St. John St. Louisville . . . St. Paris Salesville Salineville Sarahsville Savannah Scio Sciotoville Scott Sebring Senecaville Seven Mile Seville Shanes Crossing Shanesville Shawnee Shelby Sherrodsville Sherwood Shiloh Shreve Sinking Spring . . Smithfield Smithville Somerset Somerville South Bloomfield South Brooklyn . South Charleston South Point South Solon South Salem South Webster . . South Zanesville Sparta Spencerville Springboro Spring Hills Spring Valley . . . Stockport Strasburg Struthers Stryker Sugar Creek . . . Sugar Grove Summerfield Summerford Sunbury Swanton Sycamore County. Clinton Hamilton Belmont Mercer Auglaize Licking Champaign Guernsey Columbiana Noble Ashland Harrison Scioto Van Wert and Paulding Mahoning Guernsey Butler Medina Mercer Tuscarawas Perry Richland Carroll Defiance Richland Wayne Highland Jefferson Wayne Perry Butler Pickaway Cuyahoga Clark Lawrence Madisr R03S Scioto Muskingum Morrow Allen Warren Champaign Greene Morgan Stark Mahoning Williams Tuscarawas • Fairfield Noble Madison Delaware Fulton iWyandot Population, 1900. 1,481 3,384 1,210 285 1,222 286 2,353 279 290 1,214 * 547 387 623 256 602 2,966 4,685 926 455 597 1,043 238 503 474 1,124 300 223 2,343 1,096 281 319 264 445 215 1,874 433 157 522 376 461 1,206 # 350 511 464 887 853 * Population not given in census. APPENDIX. 863 Name. Sylvania Syracuse Tarlton Taylorsville Terrace Park Thorn Tippecanoe Tiro Thornville Tontagany Toronto Trenton Trotwood Trimble Tuscarawas Uhrichsville Union City Uniopolis , Uniontown Unionville Upper Sandusky Utica Van Buren Vandalia Vanlue Venedocia Vermilion Versailles Vienna Vinton Wadsworth Waldo Wapakoneta Warsaw Washington Washingtonville . Waterville Wauseon Waverly Waynesburg .... Waynesfield Waynesville .... Webster Wellington West Alexandria. West Cairo West Carrollton . West Chester . . . West Cleveland. . West Elkton West Lafayette . Western Star . . . Westerville West Farmington West Jefferson. . . County. Lucas Meigs Pickaway Muskingum Clermont Mahoning Miami Crawford Perry Wood Jefferson Tuscarawas Montgomery Athens Tuscarawas Tuscarawas Darke Auglaize Belmont Union Wyandot Licking Hancock Montgomery Hancock Van Wert Erie Darke Clark Gallia Medina . . . Marion Auglaize Coshocton Guernsey Mahoning & Columbiana Lucas Fulton Pike Stark Auglaize Warren Darke Lorain Preble Allen Montgomery . . ! Butler Cuyahoga Preble Coshocton Summit Franklin Trumbull Madison Population, 1900. 617 # 388 543 290 374 1,703 293 * 352 3,526 * 387 625 412 4,582 1,282 * 245 259 3,355 826 367 284 356 199 1,184 1,478 * 304 1,764 278 3,915 458 374 1,092 703 2,148 1,854 613 542 723 204 2,094 740 338 987 215 148 1,462 516 803 * Population not given in census. 864 THE OHIO MUNICIPAL CODE. Name. West Leipsic West Liberty. West Manchester West Mansfield . . West Middleburg . West Millgrove. . West Milton Weston West Rushville West Salem West Union West Unity West Wheeling. . Westwood Wharton White House. . . . Wilkesville Williamsburg . . . Williamsport . . . Willoughby Willshire Wilmington .... Wilmot Winchester Winchester Windham Winton Place .... Woodsfield Woodstock Woodville Worthington .... Wren Wyoming Yellow Springs. . Yorkshire Zaleski Zanesfield Zoar County. Putnam . . , Logan ..-..', Preble Logan Logan Wood Miami Wood Fairfield . . Wayne Adams Williams . . Belmont . . . Hamilton . Wyandot . . Lucas Vinton Clermont . Pickaway . Lake , Van Wert Clinton . . . Stark .... Preble .... Adams . . . Portage . . Hamilton . Monroe . . . Champaign Sandusky . Franklin . Van Wert Hamilton . Greene . . . Darke .... Vinton . . . Logan .... Tuscarawas Population, 1900. 346 1,236 384 875 288 236 904 953 161 656 1,033 897 444 439 621 223 1,002 547 1,753 560 3,613 354 375 796 283 1,219 1,801 325 831 443 242 1,450 1,371 * 577 278 290 * Population not given in census. [seal] In testimony whereof I have hereunto subscribed my name and caused the seal of said office to be affixed this seventeenth day of November, A. D., 1902. Lewis C. Laylin, Secretary of State. TABLE OF SECTIONS. Index to the sections of the Revised Statutes and acts contained in this volume. Section of Page in Ellis Section of Page in Ellis Section of Page in Ellis Section of Page in Ellis Statutes. Code. Statutes. Code. Statutes. Code. Statutes. Code. 1 531 1315 554 1597 30 1718b(2, 541 2 531 1380 829 1598 31 1718c 541 3 531 1381 830 1599 31 1721 541 4 532 1382 830 1600 33 1725 556 5 532 1383 830 1601 , 33 1726 556 6 532 1448c 760 1602 34 1727 556 7 533 1448d 761 1603 34 1728 556 8 533 1464a 730 1603a 34 1729 557 9 534 1473a 730 1604 35 1731 557 10 534 1536 827 1605 35 1732 557 11 534 1537 827 1606 35 1733 558 16 535 1544 828 1607 35 1734 558 17 535 1553 10 1608 35 1735 559 19 536 1554 10 1609 36 1736 559 20 536 1555 10 1610 36 1737 502 21 537 1556 12 1611 37 1738 504 145 553 1557 13 1612 38 1739 507 247a 679 1558 13 1613 38 1740 507 247b 680 1559 14 1614 38 1741 507 247c 681 1560 14 1615 39 1742 508 409—26 604 1561 14 1616 40 1743 508 409—28 604 1561a 15 1648 821 1744 542 409—51 553 1561b 16 1649 821 1745 543 409—54 554 1561c 17 1650 821 1746 331-449 409—55 554 1562 19 1651 822 1747 331-449 625 755 1563 20 1652 822 1748 331-450 633—11 605 1564 21 1653 823 1750 450 633—14 605 1565 21 1654 824 1751 450 633—15 605 1565a 22 1678 446 1752 543 633—16 606 1566 22 1689 539b 1756 335-452 656 606 1566a 23 1691 539b 1757 335-452 781—26 607 1567 23 1694 320 1758 336-453 781—30 608 1568 23 1695 322 1759 336-453 794 380 1569 24 1696 323 1760 544 799a 564 1569a 24 1697 324 1761 337-454 803—1 835 1570 24 1698 325 1762 454 803—2 836 1571 24 1699 325 1763 455 860 755 1571a 25 1700 824 1767 339 922—1 610 1589 25 1701 825 1768 339 929—1 609 1590 27 1702 825 1769 340 974 609 1591 28 1703 825 1771 544 985 610 1592 29 1704 826 1773 545 1047 545 1593 29 1705 826 1774 548 1049 537 1594 30 1718 540 1775 549 1061 551 1595 30 1718a 540 1122 545 1596 30 1718b (1) 540 1123 546 Section of Page in Ellis Section Page In Section of Page in Section of Page in Ellis Statutes. of Ellis Statutes. Ellis Statutes. Code Statutes. Code. Code Code 1776 342 1815—6 580 r 2054 355 21071 619 1777 342 1815—7 580 2055 355 2107m 619 1778 343 1815—8 580 2056 355 2107n 619 1779 347 1816 580 2057 356 2107o 619 1780 348 1817 580 2058 356 2107p 620 1782 550 1817a 581 2059 356 2107q 620 1783 550 1818 581 2060 356 2107r 621 1784 550 1819 581 2061 357 2107s 622 1785 566 1820 581 2062 357 2107t 622 1785a 566 1821 582 2063 357 2107u 623 1785b 567 1822 582 2064 358 2107v 623 1785c 567 1823 582 2065 358 2107w 623 1785d 567 1824 582 2066 358 2108 64 1785e 568 1825 583 2067 358 2109 65 1785f 568 1826 583 2068 359 2110 65 1785g 568 1827 583 2069 359 2111 65 1786 569 1828 583 2070 359 2112 65 1787 569 1829 584 2071 359 2114 421 1788—1 570 1830 584 2072 360 2115 421a 1788—2 570 1830—1 584 2073 360 2116 422 1789 570 1830 — 2 584 2073 360 2117 593 1790 570 1831 585 2074 360 2118 422 1791 571 1832 585 2075 361 2119 423 1792 571 1833 585 2076 361 2120 424 1793 572 1834 585 2077 361 2121 424 1794 572 1835 586 2078 362 2122 425 1795 572 1836 586 2081 362 2122—1 593 1796 572 1837 586 2092 362 !2123 426 1797 572 1838 587 2093 363 ;2124 427 1797a 573 1839 587 2094 363 2125 427 1797b 573 1840 587 2099 363 2126 428 1797c 574 1841 587 2100 364 2127 429 1798 574 1842 587 2100c 611 2128 429 1799 574 1843 451 2101 611 2129 431 1800 575 1844 587 2102 364 2130 431 1801 575 1845 587 2103 612 2131 432 1802 575 1846 588 2105 364a 2131a 594 1803 576 1848 470 2106 365 2132 432 1804 576 1849 470 2107 612 2132a 594 1805 576 1850 1851 1852 1853 1854 1864 1865 1866 1867 471 471 471 472 472 590 590 591 591 2107a(l) 612 2134 433 1806 577 2107a(2) 613 2134—1 594 1807 577 2107b (1) 613 2134—2 595 1808 577 2107c(l) 614 2134—3 595 1809 577 2107d(l) 615 2135 434 1810 577 2107e(l) 615 2136 434 1811 578 2107a(3) 616 2137 434 1812 578 2107b(2) 617 2138 435 1813 348 1868 591 2107c (2) 617 2139 436 1814 578 1869 591 2107d(2) 617 2140 436 1815 1815—1 1815—2 1815—3 1815—4 1815—5 349 579 579 579 579 580 2050 2051 2052 2053 2053—1 2053—2 352 353 353 354 354 354 2107e(2) 2107f 2107g 2107h 2107i 2107J 2107k 617 617 618 618 618 618 618 2141 2141—1 2142 2142a 2142b 2142c 2142d 437 595 438 596 596 596 597 866 Section of Page in Ellis Section of Page in Section of Page in Ellis Section of Page in Statutes. Statutes. Ellis Statutes. Statutes. Ellis Code Code Code Code 2142e 597 2174 634 2426 466 2499 678 2142e— 1 598 2174—1 635 2427 466 2500 681 2142e— 2 598 2175 635 2428 466 2501 146 2142e— 3 600 2176 636 2426 466 2503 698 2142e— 4 601 2181 636 2428 466 2504 699 2142e— 5 602 2182 637 2429 467 2505 " 699 2142e— 6 602 2183 637 2430 467 2505a 700 2142e— 7 602 2184 638 2431 467 2505b 701 2143 438 2185 638 2432 467 2505b— 1 702 2144 439 2268 260 2433 468 2505c 702a 2145 439 2278 260 2434 468 2505e 703 2146 440 2279 261 2435 468 2515—39 494 2147 440 2282 262 2435—1 646 2515—40 494 2148 441 2284 262 2435—2 646 2515—41 495 2149 65 2285 263 2435—3 647 2515—42 495 2150 67 2286 264 2435—4 647 2515—43 495 2151 67 2287 266 2435—5 648 2515—44 495 2152 67 2288 267 2435—6 648 2515—45 495 2153 626 2289 267 2435—7 649 2515— 45e 496 2154 626 2290 269 2435—8 652 2515— 45f 496 2154a 626 2291 269 2435—9 652 2515— 45g 496 2155 627 2294 270 2435—10 652 2515— 45h 496 2156 627 2295 270 2435—11 653 2515— 45i 496 2157 627 2297 270 2435—12 653 2515— 45j 496 2158 627 2298 271 2435—13 653 2515— 45k 497 2159 628 2299 271 2435—14 654 2516 67 2160 628 2300 271 2435—15 654 2517 67 2161 628 2301 773 2435—16 654 2518 • 731 2162 629 2302 271 2435—17 655 2521 68 2163 629 2313 774 2435—18 655 2522 68 2164. 629 2314 774 2470 472 2523 69 2165 365 2318 271 2471 473 2524 69 2166 629 2321 272 2472 473 2525 69 2167 630 2326 272 2473 473 2526 69 2167 — 1 630 2327 273 2474 475 2527 69 2167 — 2 2167—3 2167—4 2167 — 5 630 631 631 632 2332 2404 2407 273 774 459 2475 2478 2479 475 656 658 2527a 2528 2529 70 71 71 2167—6 633 2409 459 2480 ' 660 2530 71 2167—9 497 2410 460 2481 660 2531 72 2167—10 497 2411 460 2482 660 2532 72 2167—11 498 2411—1 644 2483 661 2533 72 2167—12 498 2412 461 2484 661 2533a 73 2167—13 498 2413 462 2485 661 2534 724 2167—14 498 2414 462 2485a 662 2535 724 2167 — 15 499 2415 462 2486 662 2536 724 2167 — 16 2167—17 2167—18 2167 — 19 499 499 499 499 2416 462 2489—1 664 2537 725 2417 463 2489—2 664 2538 725 2418 463 2489—3 664 2539 . 725 2167 — 20 499 2419 463 2490 665 2540 725 2167—21 499 2420 464 2491 665 2541 726 2168 365 2421 464 2494 674 2542 726 21C9 366 2422 465 2495 675 2543 726 1:171 366 2423 465 2496 676 2544 727 2172 367 2424 646 2497 677 2545 727 2173 633 2425 466 2498 677 2545a 727 867 Section oi Page in Ellis Section of Page in Ellis Section of Page in Ellis Section of Page in Statutes. Statutes. Statutes. Statutes. Ellis Code Code Code Code 2546 727 2608 748 2664—7 139 2805o 798 ' 2547 727 2609 749 2664—8 140 2806 799 2548 728 2610 749 2664—9 140 2807 799 2549 728 2611 749 2664—10 140 2815 801 2550 728 2612 750 2664—11 140 2816 801 2552 729 2613 750 2664—12 141 2824 756 2553 729 2614 750 2664—13 141 2554 729 2614a 751 2664—14 142 2830 761 2555 729 2615 751 2669 73 2834 785 2556 729 2616 752 2669b 77 2835 287 2557 730 2617 752 2669c 78 2835b 292 2558 730 2618 753 2670 78 2836 292 2559—1 732 2619 753 2670—1 78 2837 292 2559—2 733 2620 753 2671 79 2996—1 845 2559—3 733 2621 753 2672 79 2996—2 845 2559—4 733 2622 754 2675—1 109 3096 836 2559 — 5 734 2623 754 2675—2 110 3096a 836 2559—6 734 2624 754 2675—3 110 3097 837 2559—7 735 2625 754 2675 — 4 110 3098 837 2559—8 735 2629 367 2675—6 110 309.9 837 2559—9 735 2630 368 2675—7 111 3107—1 639 2559—10 735 2631 368 2675—8 111 3107—2 641 2559—11 736 2632 368 2675—9 111 3107—3 641 2559—12 736 2633 369 2676 775 3107—4 641 2559—13 737 2634 369 2677 776 3107—5 642 2566 738 2635 369 2680 781 3107—6 642 2567 738 2636 370 2680a 782 3107—7 642 2568 739 2642 122 2680b 782 3107—8 643 2569 739 2643 123 2680c 782 3107—19 842 2570 739 2644 124 2680d 783 3107—20 842 2571 740 2645 124 2681 826 3107—21 843 2572 740 2646 124 2690c 784 3107—22 843 2572a 741 2647 125 2701 276 3107—23 843 2572b 741 2648 126 2703 281 3107—24 844 2573 742 2649 126 2706 282 3107—48 643 2574 743 2649—1 126 2707 282 3107—49 643 2575 743 2649—2 127 2708 282 3283 682 2581—1 722 2649—3 127 2709 784 3284 684 2581—2 722 2650 127 2732 787 3310—1 685 2581—3 722 2651 130 2805 791 3320 685 2581-^t 722 2652 130 2805—1 794 3333— la 690a ¥ 2581—5 723 2653 132 2805—2 794 3337—1 686 2581—6 723 2654 133 2805a 794 3337—2 687 2581—7 723 2655 134 2805b 795 3337—3 687 2581—8 723 2656 135 2805c 795 3337—4 687 2597 744 2657 136 2805d 795 3337—5 687 2598 745 2660 136 2805e 796 3337—6 688 2599 745 2661 137 2805f 796 3337—7 688 2600 745 2662 137 2805g 796 3337—18 688 2601 746 2664 137 2805h 797 3337—19 689 2602 747 2664—1 137 2805i 797 3339 690 2603 747 2664—2 138 2805J 798 3437 142 2604 747 2664—3 138 2805k 798 3439 704 2605 748 2664—4 138 28051 798 3439a 705 2606 748 2664—5 139 2805m 798 3440 706 2607 748 2664—6 139 2805n 798 3441 707 868 Section of Statutes. Page In Ellis Section of Page in Eilis Section of Page in Ellis Section of Page in Ellis Code. 707 Statutes. Code. Statutes. Code. Statutes. Code. 3442 3560 672 4238—6 810 4402—4 818 3443 708 3561 673 4238—7 810 4402—5 818 3443a 708 3561a 673 4238—8 810 4402—6 819 3443—1 708 3641c 539 4238—9 811 4402—7 819 3443—2 709 3718 841a 4238—10 811 4402—8 819 3443—3 709 3718a 588 4238—11 812 4402—9 820 3443—4 710 3825 765 4238—12 812 4415 816 3443—5 710 3826 766 4238—13 812 4416 817 3443—6 710 3826a 766 4238—23 813 4446—4 844 3443—7 710 3826b 767 4364—17 802 4483 769 3443—11 711 3858 721 4364—20 803 4484 770 3443—14 711 3859 721 4364— 20a 804 4485 770 3444 713 3860 722 4364— 20b 805a 4730 830 3445 713 3861 722 4364— 20c 806 4732 831 3446 695 3868 837 4364— 20d 807 4732a 832 3461 714 3871 768 4364— 20e 807 4732b 834 3471 715 3872 768 4364— 20f 807 4747 761 3471a 715 3873 769 4364— 20g 808 4825 759 3471—1 716 3874 769 4364— 20h 808 4850 760 3471—2 717 3875 769 4364— 20i 808 4851 760 3471—3 717 3977 549 4364—40 834 4906 762 3471—5 717 4002—39 777 4366 828 4909 774b 3471—6 718 4002—40 778 4367 828 4938 756 3471—7 718 4002—41 778 4369 829 5142 99 3471—8 720 4002—42 779 4370 829 5852 838 3482 763 4002—43 779 4386 813 5854 839 3483 764 4002—44 779 4387 813 6565 592 3491 764 4002—45 780 4388 813 6801a 624 3492 765 4095 486a 4389 813 6801b 624 3537 762 4096 487 4390 814 6801c 625 3540 762 4097 487 4391 814 6858—1 555 3542 763 4099 488 4392 814 6858—2 555 3550 668 4100 489 4393 814 6858—3 555 3550a 669 4101 489 4394 814 6921 772d 3551 669 4102 490 4395 815 6923 604a 3552 670 4103 490 4396 815 6945a 809i 3553 670 4104 490a 4398 815 6945b 809i 3554 671 4105 844 4398a 815 6945c 809i 3555 671 4202 839 4398b 816 6969 538 3556 671 4207 840 4399 816 6976 538 3557 671 4209—1 841 4400 816 6980a 690 3558 671 4209—2 841 4402—1 817 7129 554 3559 672 4209a 841 4402—2 4402—3 817 818 868a ACTS. "An act to provide for detaching unplatted farm lands from cities and villages and for attaching the same to adjacent townships." Passed April 23, 1902. 95 O. L., 259; page 41. "An act to amend sections 2835, 2836 and 2837 and repeal section 2837a of the Revised Statutes authorizing the issue of bonds by cities, villages, hamlets and townships." Passed April 29, 1902. 95 O. L., 318; page 287. "An act to abolish grade crossings in municipalities." Passed May 2, 1902. 95 O. L., 356; page 691. "An act to further provide for the transfer of public funds." Passed May 6, 1902. 95 O. L., 371; page 170. "An act to authorize trustees of townships and councils of munic- ipalities to make additional levy for the purpose of drilling an oil or gas well when authorized by vote of the electors of such township or municipality." Passed May 9, 1902. 95 O. L. 449 ; page 067. "An act to provide for the cost of collecting, removing and dispos- ing of garbage, dead animals and animal offal where provision could not be made therefor." Passed May 10, 1902. 95 O. L., 477; page 603. "An act authorizing the issuing of bonds of municipal corpora- tions for enlarging, improving or extending natural gas works, and providing for submitting, issuing the same to a vote of the people." Passed May 10, 1902. 95 O. L. 478; April 23, 1904, 97 O. L. 237; page 666. 4 "An act authorizing changes in (and) the extensions of existing street railway routes, and in existing transfer systems." Passed May 10, 1902. 95 O. L., 502; page 712. "An act to create a bureau of inspection and supervision of public offices, and to establish a uniform system of public accounting, audit- ing and reporting, under tlie administration of the Auditor of State." Passed May 10, 1902. 95 O. L., 514; page 560. "An act authorizing and directing the city auditors and accounting officers of municipal corporations to credit to the general fund all cash balances remaining in any fund which can no longer be used for the purpose for which it was created." Passed May 12, 1902. 95 O. L., 596; page 547. "An act to create a board of supervision in the erection simulta- neously of public municipal and county buildings." Passed May 6, 1902. 95 O. L., 879; page 737. "An act authorizng the levy of taxes in muncipalities to provide for firemen's, police and sanitary police pension or relief funds, and to create and perpetuate boards of trustees for the administration of such funds." Passed April 23, 1902. 95 O. L., 223; page 392. "An act to authorize municipalities to construct and repair viaducts and to provide for the manner in which funds raised for such purpose shall be expended." Passed May 12, 1902. 95 O. L., 567; page 770. "An act to authorize, upon certain conditions, the sprinkling of streets, avenues, alleys, public squares and public places in municipal corporations." Passed May 9, 1902. 95 O. L., 447; page 772. "An act to provide for the appointment of a board of review for the equalization of real and personal property." Passed May 10, 1902. 95 O. L., 481; page 789. "An act to carry into effect the intention both of officials and par- ties respecting certain county and municipal instruments and proceed- ings." Passed May 9, 1902. 95 O. L., 444; page 835. 868b acts. 868c " An act to confer jurisdiction upon police courts." Passed January 22, 1904, 97 O. L. 7 ; page 569. " An act to provide for appropriation of private property in municipal- ities by corporations for street railway purposes." Passed April 17, 1904, 97 O. L. 106; page 711a. "An act to provide how railroad and highway crossings may be con- structed." Passed May 3, 1904, 97 0. L. 546; page 690b. " An act to provide for village and township to jointly enlarge, improve pr erect a public building." Passed April 26, 1904, 97 O. L. 483; page 737a. " An act to authorize the councils of municipal corporations to permit the use of public buildings under their control." Passed April 23, 1904, 97 0. L. 278; page 738. " An act to prevent loss of life in public halls and theaters." Passed April 23, 1904, 97 O. L. 264; page 743. " An act to provide for the construction of sidewalks in villages." Passed April 26, 1904, 97 O. L. 481 ; page 774. " An act to authorize the transfer of property by municipal corporations to trustees of libraries of school districts, and the acceptance of the same, and other property for library purposes by said trustees." Passed April 21, 1904, 97 O. L. 133; page 780. " An act to authorize the council of any incorporated village in Ohio to levy an additional tax for fire protection purposes." Passed April 25, 1904, 97 O. L. 407 ; page 786. " An act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in residence districts of municipal corporations." Passed April 4, 1906, 98 O. L. 68; page 809. "An act to provide for the release and discharge of county, city, village, township and school district treasurers and their sureties in certain cases." Passed March 28, 1906, 98 O. L. 122; page 546. "An act to provide for annual conferences of health officers." Passed April 16, 1906; 98 O. L. 205; page 604a. "An act to grant to municipalities the right to require street rail- way companies to sprinkle their right of way within such municipal- ity." Passed February 8, 1906; 98 O. L. 5; page 712. "An act authorizing councils of municipalities to grant franchises to interurban railroads, using electric or other motive power, except steam, for the purpose of securing terminals in municipalities." Passed April 16, 1906; 98 O. L. 253; page 713. "An act to authorize municipal corporations to contract to have treated with oil, for the purpose of laying the dust on, and preserving the surface of streets, avenues, alleys and public squares and places and roadways in public parks, and providing for the payment of the cost of such treatment by assessment on abutting property and from the corporation's funds." Passed March 14, 1906, 98 O. L. 50; page 772a. "An act to authorize councils of villages to levy a tax for street lighting and fire protection." Passed March 14, 1906; 98 O. L. 46; page 787. TABLE OF CASES (References are to pages.) A. B. & S. Ry. Co., In re, 691 Abraham v. Cincinnati, 128, 130, 747 Adams, et al., v. Phifer, 99 Adams Exp. Co. v. Gas Co., 660 Adkins v. Toledo, 186, 263, 314 Akerman v. Lima, 48, 317, 324 Akron v. Allen, 181, 269 Akron v. Chamberlain, 208, 210 Akron & C. F. Rapid Transit Co. v. Erie Ry., 113 Akron, etc., Railway Co. v. Keck, 143 Akron v. France, 373, 381a Akron v. Keister, 120 Akron v. McComb, 208 Akron v. Traction & Light Co., 147, 148, 148a Akron, etc., Co. v. Erie Ry., 143 Alexander v. Cincinnati, 638 Alexander v. Ry. Co., 687 Allen v. Cleveland, 181 Allen v. Russell, 479 Allen v. State, 827 Alliance v. Campbell, 119 Alliance v. Joyce, 63a, 804 Allison v. City of Cincinnati, 775 Allison v. McCune, 200 Altaffer v. Nelson, 277, 278, 285 . Alter v. Cincinnati, 2, 54, 345, 461, 645, 646, 652 Alvord v. Richmond, 389 Ampt v. Cincinnati, 160, 164, 169, 175, 176, 275, 277, 278, 312, 329, 343, 345, 346, 347, 372, 373a, 375, 665 Anderson v. Brown, 534 Anderson v. Columbus, 143, 200, 236 Anderson v. Commissioners, 222 Anderson v. McKinney, et al., 208 Andrew v. Auditor, 185, 186, 222, 226, 227, 228 Andrews v. Hyde Park, 102 Andrews v. Settles, 184 Andrix v. Columbus, 232, 232a Angove v. State, 78 Annexation of Newburgh, In re, 4, 145 Anonymous, 616 Armleder v. Cincinnati, 122 Armstrong v. Spears, 99 Arnold v. Yanders, 75 Ash v. Ash, 479 Ashley v. Toledo, 116, 130, 744, 745, 746 Atlas Bank v. Cincinnati, 284 Atlas Bank v. Columbia Tp., 345 Auerbach v. Telephone Co., 115b Aultman v. Seiberling, 827 Avery v. United States, 44, 62 Avondale v. Scudder, 205 Avondale v. Tp. Co., 124 Aydedott v. Cincinnati, 147, 150, 315, 320 Ayers v. Toledo, 203 B. Babb v. Cincinnati, 83 Backenstoe v. State, 442, 443 Bader v. Lower River Road, 126 Bailey v. Zanesville, 192, 193 Baker v. Cincinnati, 49, 74, 75, 76, 158 Baker v. Norwood, 188, 190 Baker v. Schott, 227, 242 Ballard v. State, 471 B. & O. R. R. Co. v. Bellaire, 82 Bancroft v. Wall, 44, 462 Bank v. Chillicothe, 275 Bank v. Norwood, 58, 115 Banking Co. v. Hubbard, 793 Banning v. Trustees Southern Railway, 92 Barker v. State, 177, 328 Barney v. Dayton, 191 Barney v. Railway Co., 148, 153 Barret v. Reed, 504 Barry v. Akron, 117a Bartlett v. State, 44 Bartley v. Cincinnati, 262 Bates v. Fries, 339 Bauer v. Avondale, 48 869 870 TABLE OF CASES. (lleferences are to pages.) Bauer v. Casey, 46 Beach v. Marion Twp.,.641 Beaver v. Blind Asylum, 105, 373 Becher V. McCloud, 194, 268 Becker v. Columbus, 187, 223 Becker v. St. Ry. Co., 50b, 312 Belden v. Franklin, 776 Bell v. Pistorius, 312, 682 Bellaire Co. v. Findlay, qt ah, 177, 329, 657, 663, 666 Bellaire, etc., Street Railway Co. v. Smith, 143 Belle v. Glenville, 145, 146, 148a Belle Centre v. Welsh, 804 Bellefontaine v. Haviland, 326, 451 Bellows v. Cincinnati, 316 Bender v. Cushing, 410a Benham v. Cincinnati, 203 Bentley v. Toledo, 191 Bergman v. Cleveland, 48 Berning v. Norwood, 47 Besuden v. Commissioners, 96 Betz v. Canton, 190, 191 Big Four, etc., Co. v. Cincinnati, 90 Billigheimer v. State, 45 Billington v. Hoverman, 4, 826 Bingham v. Doane, 208 Birdseye v. Clyde, 183, 184, 185, 224 Birtwhistle v. Cincinnati, 208 Bisack v. Pape, 506 Black v. Cleveland, 60 Black v. Hagerty, 793, 794, 800 Blair v. Cary, 203, 228, 315 Blanchard v. Bissell, 19, 26, 31, 35, 313, 321 Blanchard v. Columbus, 254 Bliss v. Kraus, 44, 46, 66, 265, 313, 314 Bloch v. Godfrey, 184 Bloom v. Newark, 329 Bloom v. Toledo, 117a Bloom v. Xenia, 318, 319, 351 Blunk v. Dennison Co., 670 Board v. Edson, 104, 747 Board of Education v. Auditor, 187, 230 Board of Education v. Board, 827 Board of Education v. Bowland, 230 Board of Education v. Eshelby, 505 Board of Education v. Mills, 329 Board of Education v. Sinton, 329 Board of Education v. Toledo, 187 Board of Education v. Volk, 775 B«ard of Health v. Columbus, 329, 418, 419, 423 Boeres v. Strader, 129, 186, 254 Bogart V. State, 76 Bolton v. Cleveland, 8, 183, 196, 199, 259, 268 Boley v. Ohio Life Insurance and Trust Co., 479 Bond v. Madisonville, 174 Bonds v. Salem, 204 Bonsall V. Lebanon, 236, 240 Bonte V. Taylor, 271 Boone v. Cincinnati, 83, 84 Boren v. Comm'rs of Darke Co., 105, 373, 373a, 374. Borgen v. Columbus, 202, 224, 263 Bowles V. State, 32, 515 Bowling Green v. C. H. & D. R. R., 676, 678 Boyd v. Cambridge, 117a Braden v. Commissioners, 222, 223 Brady v. French, 534, 643 Braman v. Elyria, 173 Bramley v. Euclid, 804 Branahan v. Hotel Co., 46, 50b* 79, 114, 115 Brenchweh v. Drake, 265 Brenier v. Becker, 329, 503 Breslin v. Brown, 375 Bretsu v. Toledo, 117, 117a Brewer v. Bowling Green, 268 Bridge Co. v. Steinbrock, 119 Brigel v. Starbuck, 479, 827 Brink v. Columbus, 118 Britton v. Baker, 800 Broadway, etc., Ry. v. Brooklyn, etc., Ry., 145, 149 Brock v. Milligan, 531 Bronson v. Oberlin, 2, 47 Brooks v. Lander, 794 Brooks v. Norwood, 204 Brower v. Hunt, 479 Brown v. Manning, 130 Brown V. Toledo, 314, 346, 347, 348, 575 Brown v. Van Wert, 47, 545 Brundige v. Ashley, 348 Brunner v. Harrison, 50, 74, 78 Brush, etc., Co. v. Jones Bros. Co., 56, 115, 665 Buchanan Bridge Co. v. Campbell, 351, 372, 373a Buckingham v. R. R., 528 Buning v. Cincinnati Street Rail- way, 148a, 346 Burch v. Franklin, 471 Burckholter v. McConnellsville, 48- Burgett V. Burgett, 1 Burgett v. Norris, 222 Burggreve v. Cincinnati, 191 TABLE OF CASES. 871 (References are to pages.) Burgunder v. Weil, 1 Burial Case Co. v. Railway Co., 115b Burke v. State, 827 Burke v. Wapakoneta, 228 Burkhardt v. Cincinnati, 263, 268 Burkhart v. Columbus, 75. Burkhardt v. Hanley, 776 Burns v. Patterson, 266 Burns v. Telephone Co., 115a Burrows v. Cosier, 112 Burt V. Rattle, 668 Buse v. Cincinnati, 187 Bush V. Cincinnati, 227 Butler V. Commissioners, 789 Butler v. Cincinnati, 113, 115b, 716 Butler Co. v. Welliver, 513 Butler v. Toledo, 263, 269 a €. & A. Tp. Co. v. Avondale, 765 C. & H. Electric Street Ry. Co. v. C. H. & I. Railroad Co., 143, 699 C. & W. Tp. Co. v. Cincinnati, 123, 765 €. C. & W. Tp. Co. v. Cincinnati, 124 C C. & W. Tp. Co. v. Traction Co., 112, 123 C. C. C. & St. L. Ry. Co. V. C. & I. W. Ry., 115c C. C. C. & St. L. Ry. Co. v. De Graff, 676 C. C. C. & St. L. Ry. Co. v. St. Ber- nard, 674, 676, 677 C. C. C. & St. L. Ry. Co. v. U. B. & N. Ry. Co., 84, 143, 145, 146, 150, 705 C. L. & A. St. Ry. v. Lohe, 143 C. L. & A. Ry. Co. v. North Bend, 3, 4 C. L. & N. Ry. v. Cincinnati, 262 C, I., St. L. & C. Ry. v. Pfitzer, 683 €. N. O. & T. P. Ry., In re, 135 Cable Ry. v. Neare, 152 Cady V. Barnesville, 47 Cain v. Traction Co., 143a Caldwell V. Carthage, 86, 194 €aldwell v. Columbus, 185 Calkins v. Toledo, 191 Callen v. Electric Light Co.. 113, 115a, 115b, 133, 747 Cambridge v. Smallwood, 326, 451 Campbell v. Cincinnati, 195, 315, 318, 319 Campbell v. Park, 222, 223 Canfield v. Brobst, 544 Canton v. Nist, 48, 63a, 314 Canton v. Shock, 54, 83, 460 Canton v. Wagner, 199 Cardington v. Adm'r of Freder- icks, 117, 122 Carey v. State, 583, 805, 806 . Carlisle v. Cincinnati, 210, 211, 224, 262 Carmichael & Co. v. McCourt, 373 Carpenter v. Canal Co., 200 Carpenter v. Sloane, 505 Carr v. Bd. of Ed., 423 Carson V. Delhi, 227 Cass Tp. v. Dillon, 545 Central O. Gas & Fuel Co. v. Columbus, 657, 659 Central O. R. R. Co. v. Columbus, 268 Central Un. Tel. Co. V. Columbus Grove, 714 Chamberlain v. Cleveland, 180, 188, 190, 202, 203, 233, 235, 261, 263, 269 Chambers v. Insurance Co., 312 Chambers v. Ohio, etc., Co., 46 Chapin v. Allison, 534 Chapin v. School District, 537 Chase v. Cleveland, 117, 119 Chatfield v. Cincinnati, 209, 210 Cherry v. Howe, 129 Chicago v. Robbins, 119, 121 Chillicothe v. Gas & Fuel Co., 319, 382 Chinn v. Trustees, 641 Chittenden v. Columbus, 50a, 50b, 174, 199, 314. 324 Christy v. Commissioners, 537 Cilly V. Cincinnati, 246 Cincinnati v. Allison, 346, 423 Cincinnati v. Anchor White Lead Co., 254, 263 Cincinnati v. Anderson, 301 Cincinnati v. Avenue Co., 223, 224, 228 Cincinnati v. Bank, 167 Cincinnati v. Batsche, 187, 190, 233 Cincinnati v. Beuhausen, 76 Cincinnati v. Bickett, 105, 205, 224, 254, 267, 268, 318, 321, 374 Cincinnati v. Bishop, et ah, 697 Cincinnati v. Board of Education, 187 Cincinnati v. Brill. 49 872< TABLE OF CASES. (References are to pages.) Cincinnati v. Broadwell, 550 Cincinnati v. Bryson, 32, 50a, 74, 75, 76, 158 Cincinnati v. Buckingham, 59, 60, 74, 75, 76 Cincinnati v. Burnet, 264 Cincinnati v. C. & C. Bridge Co., 57, 64 Cincinnati v. Cameron, 62, 176, 389, 633 Cincinnati v. Cin. Edison Co., 715. Cincinnati v. Cin. Incline Plane Railway Co., 147 Cincinnati v. Cincinnati Street Railway, 145, 313, 711 Cincinnati v. Columbia, 116 Cincinnati v. Connor, 182, 203, 237, 240, 254 Cincinnati v. Corry, 187, 188, 194, 199, 208 Cincinnati v. Davis, 182, 263, 318, 321 Cincinnati v. Delhi, etc., Tp. Co., 124 Cincinnati v. Dexter, 103, 344, 697 Cincinnati v. Edison Elec. Co., 375 Cincinnati v. Emerson, 183 Cincinnati, etc., R. R. v. Pfau, 775 Cincinnati v. Evans, 116 Cincinati ex rel. v. Cincinnati, 175, 460, 646 Cincinnati v. Eversman, 93 Cincinnati v. Fenner, 90, 318 Cincinnati v. Ferguson, et al., 697 Cincinnati v. Fkischer, adm'r, 117 Cincinnati v. Frazer, 120, 121 Cincinnati v. Frey, 246 Cincinnati v. Frost, Stearns & Co., 473 Cincinnati v. Fugman, 204, 254, 265 Cincinnati v. Gas Light and Coke Co., 313 Cincinnati v. Gass, 44, 47 Cincinnati v. Goodman, 184, 190, 214, 221, 263, 267, 373a Cincinnati v. Gordon, 238, 242 Cincinnati v. Green, 513 Cincinnati v. Grebner, 117a Cincinnati v. Guckenberger, 277, 278, 285, 301, 478, 697a Cincinnati v. Gwynne, 167 Cincinnati v. Hamilton Co., 135 Cincinnati v. Hess, 205, 206 Cincinnati v. Holmes, 175, 535 Cincinnati v. Honnigfort, 175, 189, 205, 248, 250, 252, 254, 255 Cincinnati v. Hopple, 268 Cincinnati v. Hosea, 89, 102 Cincinnati v. Jacob, 117a, 460 Cincinnati v. James, 183, 185, 192, 266 Cincinnati v. Johnson, 238, 242, 319 Cincinnati v. Jones, 486a Cincinnati v. Kasselman, 206 Cincinnati v. Kemper, 268 Cincinnati v. Kirchner, 115, 116 Cincinnati v. L. & N. R. R. Co., 683 Cincinnati v. Lewis, 44, 62, 789 Cincinnati v. Longworth, 184, 189, 238, 263 Cincinnati v. Manufacturing Co., 238 Cincinnati v. Mathers, 86 Cincinnati v. Manss, 192, 227 Cincinnati v. McErlane, 174 Cincinnati v. McMakin, 129 Cincinnati v. Miller, 314 Cincinnati v. Monfort, 188 Cincinnati v. Morgan, 329 Cincinnati v. Mt. Auburn Cable Ry., 147 Cincinnati v. Neff, 92, 93, 94, 314 Cincinnati v. Oliver, 193, 264 Cincinnati v. Penny, 56, 58, 83, 115a, 118, 208, 245 Cincinnati v. Presbyterian Church, 116 Cincinnati v. Rice, 314 Cincinnati v. Roth, 209 Cincinnati v. Scarborough, 123 Cincinnati v. Seasongood, 182, 478 Cincinnati v. Shaw, 195 Cincinnati V. Sherike, 199, 208, 218, 273 Cincinnati v. Shoenberger, 189 Cincinnati v. Skinner, et at, 130 Cincinnati v. Spillard, 242 Cincinnati v. Standard Wagon Co.. 204 Cincinnati v. Steinkamp, 2, 53, 742 Cincinnati v. Stone, 119 Cincinnati v. St. Ry. Co., 39, 147, 148a, 343 Cincinnati v. Sullivan, 205 Cincinnati v. Taft, 479 Cincinnati v. Thrall, 102 Cincinnati v. Trustees, 697 Cincinnati v. Trustees of Hospital, 2, 635, 778 Cincinnati v. University, 352 Cincinnati v. Walls, 57 Cincinnati v. Weber, 208, 210, 212 Cincinnati v. Wewell, 203, 252, 254 TABLE OF CASES. 873 (References are to pages.) Cincinnati v. Whetstone, 210, 218 Cincinnati v. White Lead Co., 266 Cincinnati v. Wilder, 189, 269 Cincinnati v. Willen, 2 Cincinnati v. Williams, 209, 210, 211, 218 Cincinnati v. Withers, 50 Cincinnati v. Wright, 122 Cincinnati v. Wynne, 214, 264 Cincinnati & Wooster Turnpike Co. v. Cincinnati, 123, 765 Cincinnati College v. Nesmith, 153 Cincinnati, etc., R. R. Co. v. Burski, 684 Cincinnati Gas Light and Coke Co. V. State, 661 Cincinnati Gas Light and Coke Co. V. Avondale, 657, 659, 662, 670 C. H. & D. Ry. Co. v. Murphy, 313, 682 C. H. & D. R. R. v. Sullivan, 674, 678 C. H. & D. R. R. v. Bowling Green, 674, 675, 676, 677 Cincinnati Northern R. R. v. Cin- cinnati, 682 Cincinnati Southern Railway v. Haas, 83 Cincinnati Street Railway Co. v. Cincinnati, 145, 154 Cincinnati Street Railway Co. v. C. H. & D. R. R., 698 Cincinnati Street Railway Co. v. Fullbright, 702 Cincinnati Street Railway Co. v. Horstman, 704 Cincinnati Street Railway Co. v. Lewis, 320 Cincinnati Street Railway Co. v. Smith, 114, 115, 147, 148, 148a, 151, 314, 342, 343, 344 Cincinnati St. Ry. Co. v. Snell, 143a Cincinnati Telephone Co. v. Cin- cinnati, 715, 718, 720 Circleville v. Neuding, 117a Circleville v. Sohn, 117, 119, 121 Circleville v. Throne, 329 Circleville L. & P. Co. v. Buckeye Gas Co., 320, 670 Citizens' Light and Heat Co. v. Springfield, 480 City v. Davis, 273 City v. McDermott, 254 City v. Schneider, 266 Clamp Ex parte, 75 Clapp v. Marice City, 281 Clarke v. Cleveland, 102 Clark v. Commissioners, 513 Clark v. Fry, 46, 115c, 312 Clark v. Lucas Co., 513 Clarke v. Thomas, 479 Clemens v. Dayton, 121 Clements v. Norwood, 264 Clements v. Cincinnati, 143 Clement v. City, 151, 154 Clemmer v. Cincinnati, 200, 223 Cleneay v. Norwood, 206 Cleveland v. Beaument, 246 Cleveland v. Bryan, 53 Cleveland v. Clements Bros. Co., 374 Cleveland v. Cleveland R. R. Co., 699 Cleveland v. Cuyahoga, etc., Soci- ety, 92, 97 Cleveland v. Denison, 62 Cleveland v. Heisley, 39, 158, 159 Cleveland v. Hyland, 207, 208 Cleveland v. Jewett, 451 Cleveland v. King, 117a Cleveland v. Kink, 117 Cleveland v. Lenze, 53, 313, 474 Cleveland v. Lovelle, 64 Cleveland v. Malm, 47 Cleveland v. Payne, 119, 120, 121, 389 Cleveland v. R. R. Co., 186, 699 Cleveland v. Ry. Co. 113, 143, 143a, 153 Cleveland v. Standard Bag & Paper Co., 246 Cleveland v. State Bank, 44 Cleveland v. Stofer, 120 Cleveland v. Wick, 262 Cleveland & Cincinnati R. R. Co. v. Cincinnati, 142 Cleveland City Ry. v. Cleveland, 147 Cleveland City Ry. v. First Nat. Bank, 702 Cleveland Electric Ry. Co. v. Board of Equalization, 794 Cleveland Elec. Ry. Co. v. Cleve- land, 145, 148a Cleveland, etc., Ry. v. Barriss, 62, 143a, 144 Cleveland Ilium. Co. V. Hitchens, 509a Cleveland Telephone Co. v. Cha- grin Falls, 715 Clifton v. Cincinnati, 264 Cline v. Kirkbride, 46 Cline v. Springfield, 657 Clock Co. v. Commissioners, 373a Coates v. Norwood, 186, 187 Cohen v. Cleveland, 208 874 TABLE OP CASES. (References are to pages.) Coit v. Columbus, 186 Colburn v. Newfarth, 509a, 510, 511 Colby v. Toledo, 62, 84, 91 Cole v. Hunter, 204 College v. State, 789 Collier v. Johnson, 208 Collins v. Cleveland, 53 Collins v. Hatch, 44, 51 Collins v. Millen, 479 Columbus v. Agler, 113, 184 Columbus v. Barr, 317 Columbus v. Bidlingmeier, 96 Columbus v. Board of P. S., 372a, 373, 373a Columbus v. Bohl, 175, 248, 345, 346 Columbus v. Cole, 809a Columbus v. Columbus Gas Co., 114, 669 Columbus v. Dunnick, 543 Columbus v. Federal Gas & Fuel Co., 317, 343, 345, 480 Columbus v. Glacken, 809c Columbus v. Heating & Lighting Co., 57 Columbus v. Jaeger, 118, 245 Columbus v. Jeffrey, 50a, 50b, 75, 77, 809a, 809b Columbus v. Kauffman, 663 Columbus v. Lazarus, 206 Columbus v. Penrod, 115a, 117a, 119 Columbus v. Railroad, 699 Columbus v. Ry. Co., 44 Columbus v. Reinhard, 582 Columbus v. Street Railroad, 147 Columbus v. Schneider, 44, 62, 266 Columbus v. Slyh, 184, 185, 186, 223 Columbus v. Sohl, 223 Columbus v. Williard, 211 Columbus, etc., Co. v. Freeland, 46 Columbus, etc., Ry. Co. v. Cole, 711a Commissioners v. Bd. P. W., 529 Commissioners v. Cambridge, 310, 313, 315, 321 Commissioners v. Mannix, 789 Commisioners v. R. R. Co., 822 Commissioners v. Ry. Co., 113, 755, 756 Commissioners v. Rhoades, 375 Commissioners v. State, 112 Commissioners v. Young, 222, 760 Compton v. Johnson, 151 Comstock v. Nelsonville, 173, 174, 176, 351, 372 Conger v. Barker, 479 Conneaut v. Naef, 117a Conner v. Cincinnati, 254, 273 Connor v. Sisters of the Poor, 631 Consolidated Street Railway v. To- ledo Street Railway, 153 Conwell v. Sears, 806 Cook v. Gilpin, 260 Coombs v. Lane, 315 Cooper v. Van Wert, 770 Cope v. Wellsville, 175 Coppin V. Herrmann, 346, 372a, 373, 652 Cordes v. Brooks, 233 Cordeman v. Cincinnati, 245 Corry v. Campbell, 266 Corry v. Cincinnati, 39, 209, 211, 212, 223, 262, 343 Corry V. Folz, 186 Corry v. Gaynor, 182, 184, 222, 223, 263, 265, 478 Corthell v. State, 748 Costello v. Wyoming, 2 Cotter v. Doty, 6, 51, 63, 480 Counterman v. Dublin Tp., Q96 Court of Common Pleas v. Sear- gent, 506 Cox v. Lancaster, 236, 744 Craig v. Heis, 264 Crandall v. State, 50 Crane Twp. v. Antrim Twp., 641 Crawford v. Cincinnati, 190 Crawford v. Crawford, 260 Crawford V. Delaware, 115b, 133, 208, 210 Crawford v. Madigan, 344, 345 Creighton v. Scott, 186, 263 Crippen v. Ohio University, 747 Crofton v. State, 46, 47 Croll v. Franklin, 6, 31, 33, 481 Crossley v. Findlay, 182, 190 Crumbaugh v. Kugler, 569 Cummings v. Fitch, 159 Cummings v. Toledo, 245 Cupp v. Comm'rs, 207 Curtiss v. McDougal, 7 Custer v. New Philadelphia, 46, 116, 117 D. Daiber V. Scott, 128, 745 Daiber v. Toledo, 191 Dailey v. State, 115a Dalrymple v. State, 315, 805, 806 Dalzell, etc., Co. v. Findlay, 177 TABLE OF CASES. 875 (References are to pages.) Dalzell, Gilmore and Leighton v. Findlay, et al., 664 Danks v. Phares, 184, 185, 186 Davis v. Camp Meeting Associ- ation, 789 Davis v. Cincinnati, 252, 255, 264, 265 Davy v. Hyde Park, 659 Dawson v. State, 504 Day v. Railway Co., 145, 152 Dayton v. Bauman, 124, 180, 181, 202, 262 Dayton v. City Ry. Co., 147 Dayton v. Cooper Co., 460 Dayton v. Harmon, 113 Dayton v. Pease, 119, 329, 389 Dayton v. Ry. Co., 148a, 343 Dayton v. Taylor's Adm'r, 245, 246 Dayton & U. Ry. Co. v. Traction Co., 142 Deatrick v. City of Defiance, 43, 44, 450, 548 Debolt v. Cincinnati Township, 513, 643 Defiance v. Council, 176, 344, 345, 347, 468 Defiance v. Gas & Electric Co., 46, 115c Defiance v. Schmidt, 277, 278, 282 Defiance Water Co. v. Defiance, 176, 345 Deming v. Cleveland, 46, 58, 66 Dennis v. Simon, 139 Detmers v. Columbus, 236 Detroit v.- Railway Co., 143 Detroit Ry. Co. v. Detroit, 143 Deutch v. Chemical Co., 129 Deuyer V. Schonert, 228 Dexter v. Raine, et al, 845 Dick v. Toledo, 129, 190, 195, 230, 269 Diehm v. Cincinnati, 119 Dietz v. Traction Co., 142, 143, 148 Dillenbach v. Xenia, 115a Directors, etc., v. Toledo, 7 District of Columbia v. Woodbury, 119 Dixon v. Cincinnati, 195 Dodge v. Gridley, 528 Dodson v. Cincinnati, 82, 92, 268, 827 Dodsworth v. Cincinnati, 187, 195, 262 Doll v. Barr, 80 Doll v. State, 177 Dominick v. State, 581, 806 Donohue v. Brotherton, 180, 183, 185, 214, 264 Doppes v. Cincinnati, 227 Doppas v. R. R. Co., 131, 135 Doren v. Horton, 129, 130, 744, 745, 746 Dorgan v. Columbus, 314, 342, 344, 405, 509a, 510, 511 Dorsch v. Glass Co., 134 Douglass v. Cincinnati, 187, 264 Douglas v. Pike County, 345 Drake v. Cincinnati, 204 Dreake v. Beasley, 265 Drolesbaugh v. Hill, 505 Drott v. Riverside, 176, 312, 315 Duffy v. Norwood, 129, 188, 191 Dunham v. Opes, 158, 159, 275, 290 Durbin v. Napoleon, 117 Dutoit v. Doyle, 479 Dutten v. Village of Hanover, 8 E. Eagle White Lead Co. v. Cincin- nati, 129, 208 Earhart v. Village of Lebanon, 583 Early v. Doe, 90, 105, 150, 318, 374 East Cleveland R. R. v. Rosecrans, 50b, 313 East End B. & T. Co. v. Cleveland, 115a, 194, 200, 207, 208, 209, 691 Easton v. Hyde Park, 174, 175 Ebbert Brew. Co. v. State, 806 Edis v. Butler, 48, 314, 616 Edwards v. Columbus, 227 Effinger v. State, 804 Ehni v. Columbus, 182, 236, 263 Eichenlaub v. State, 569 Electric Co. v. Toledo, 665, 666 Elevator Co. v. Cincinnati, 58 Elshoff v. Deremo, 776 Elster v. Springfield, 56, 58, 115a, 116, 176 Ely v. Willard, 809a Elyria v. Ry. Co., 114, 344 Emery v. Coles, 775 Emery v. Elyria, 48, 49 Emmert v. Elyria, 174, 214 English v. Trustees So. Ry., 118 Enyart v. Hanover Tp., 845 Erie Ry. Co. v. Youngstown, 87, 92 Erkenbrecher v. Cincinnatil, 58, 349, 503, 513 Ermston v. Cin., 349, 503, 513 Ernst v. Kunkle, 181 Esch v. Elyria, 45, 64, 324 Eshelby v. Board of Education, 339, 340 876 TABLE OF CASES. (References are to pages.) Euclid Ave., In re, 315 Evans v. Cincinnati, 114, 265 Evans v. State, 571 Evansville v. Dennett, 278 Exchange Bank v. Hines, 515 Extension of Lower River Road Co. v. Cincinnati, 124 b\ Famuliner v. Anderson, 533 Fairview v. Giffee, 42 Farmer v. Telephone Co., 714 Farrell v. Cincinnati, 227 Fath v. Clifton, 321 Federal Gas & Fuel Co. v. Town- send, 115a Federer v. Dayton, 319 Feigert v. State, 505 Felton v. City, 697a Fenner v. Cincinnati, 87, 105, 199, 200, 208 Fenton v. Cheseldine, 60 Fergus v. Columbus, 176, 194, 342, 346, 347, 348, 373a, 381, 464 Ferguson v. Miami Powder Co., 840 Feuerstein v. Jackson, 209, 210, 211 Fidelity, etc., Co. v. Hahn, 479 Fike v. France, 99 Fike v. State, 544, 581, 805, 809 Findlay v. Frey, 181, 193 Findlay v. Parker, 177 Findlay v. Pendleton, 173, 174, 329, 503 Findlay Gas Light Co. v. Findlay, 158, 159, 347, 657, 661, 666, 668 Finnell v. Howell, 265 Finnell v. Kates, 261 Finnical v. Village of Cadiz, 583 Fitzpatrick v. Bromweli Co., 344 Fitzsimmons Tel. Co. v. Cincin- nati, 714 Flatau v. Mansfield, 50, 75, 78, 79, 571 Fletcher v. State, 45, 569 Fliehman v. C. C. C. & St. L. Ry., 683 Ford v. Toledo, 205, 206, 254 Fogarty v. Cincinnati, 211 Folsom v. Haas, 537 Folz v. Cincinnati, 183, 268 Foote v. Cincinnati, 92 Foote v. R. R. Co., 93 Forsythe v. Winans, 342 Fosdick v. Perrysburg, 277, 478, 481, 529 Fostoria V. Fox, 44, 347 Frame v. State, 803 Frampton v. Sims, 227 Franklin v. Baird, 284, 373 Franklin v. Croli, 12, 27 Frank v. Cincinnati, 45, 74 Fratz v. Mueller, 799, 800 Frazer v. Siebern, 268 Frederick v. Columbus, 45, 54, 389 Freeman v. Hunter, 262 Fremont v. Dunlap, 120 Fremont v. Hayes, 265, 266, 270 Fremont v. June, 54, 460 French v. Barber Asphalt Co., 190, 203 Frevert v. Finfrock, 211, 212, 220 Frey v. Findlay, 187, 228, 269 Frey v. Millikin, 205, 206 Fricke v. Cincinnati, 263 Fridman v. Norwood, 192, 262, 263 Friedman v. Cincinnati, 345, 348, 480 Fritter v. Bohl, 347 Fuller v. Railway, 702 Fulton v. Columbus, 809a Fulton v. Mehrenfeld, 128, 744 G. Gable v. Toledo, 119 Gage v. Payne, 505 Gall v. Cincinnati, 60 Gallagher v. Johnson, 148a, 151, 343, 346 Gallipolis v. Trustees, 54, 461, 463 Gallup v. Lorain Co., 528 Gannon v. St. Ry. Co., 50b Garder v. Fayette Co., 827 Garvin v. Columbus, 83, 87 Gas & Fuel Co. v. Chillicothe, 657, 659, 662 Gas & Water Co. v. Elyria, 44, 290, 312, 319, 320, 342, 343, 345, 373a Gas Co. v. Lima, 665, 670 Gas Co. v. Tiffin, 80 Gas Fuel Co. v. Andrews, 673 Gas Light & CoKe Co. v. Columbus, 209, 662 Gas Light & Coke Co. v. Zanesville, 344, 658 Gates v. Beckwith, 165 Gates v. Tp. Co., 765 Gault v. Columbus, 183, 345 Gawn v. Wilson, 211 TABLE OF CASES. 877. (References are to pages.) Gaylord v. Hubbard, 794 Geib V. Cleveland, 208 Geier v. Cincinnati, 2 Gelpke V. Dubuque, 277 Gerke v. Purcell, 789 German Ev. Pr. Com. v. Brooks, 789 Germantown v. Basore, 544, 571 Gest v. Cincinnati, 263, 264, 265, 268 Gibson v. Cincinnati, 192, 227, 747 Gibson v. Norwalk, 93 Gibson v. Zanesville, 451, 588 Gibson V. Zumstein, 794 Giesy v. R. R. Co., 82, 93 Giffin v. Brooks, 479 Gilfillan v. Koke, 105, 374 Gillmore V. Lewis, 470 Gilmour V. Pelton, 188 Gitsky v. Newton, 329, 503 Glaser v. Cincinnati, 45, 50, 75 Glenville v. Englehart, 505 Glidden v. Cincinnati, 143, 148, 153 Goblet Co. v. Findlay, 657 Gobrecht V. Cincinnati, 327 Gonnigle v. Arthur, 223 Goodale V. Fennell, 182, 478 Goodall v. City, 227 Goodall v. Gerke Brewing Co., 827 Goodin v. Canal Co., 93 Goodloe v. Cincinnati, 208 Gorgas v. Blackburn, 8 Graham v. Stein, 405, 509a, 512 Grant v. Brouse, 177 Grant v. Hyde Park, 89, 92, 130, 211 Green v. Cincinnati, 199, 267 Green v. Muskingum Co., 45 — Greene v. Woodland Ave., etc., St. R. R. Co., et al., 702 Greenville v. Anderson, 505 Griswold v. Pelton, 193, 268 Groesbeck v. Cincinnati, 266 Groveport v. Bradfield, 119, 120 Grover Hill v. McClure, 42 Grunkemeyer v. Johnston, 121 Guckenberger v. Dexter, 284, 348 Guckenberger v. Henderson, 290 Guernsey Co. v. Cambridge, 105, 503 Gwynne v. Cincinnati, 130 H. Hafer v. Cincinnati, 328 Hagenschneider, ex parte, 569 Hagerty v. Columbus, 264 Haines v. Lindsey, 534 Hall v. Kleeman, 776 Hall v. Siegrist, 1, 19 Hallock v. Columbus, 345, 346 Halpin v. Cincinnati, 513 Ham v. Kunzi, 479 Hamilton v. Ashbrook, 85, 118 Hamilton v. Gas Co., 62, 662, 668 Hamilton v. State, 827 Hamilton v. Stbt. R. B. Hamilton, 479 Hamilton, etc., Electric Transit Co. v. Hamilton, 114, 146 Hamilton G. & C. Traction Co. v. Parish, 113, 133, 143, 152, 153 Hamilton G. & C. Traction Co. v. Traction Co., 142, 143, 707 H. G. & C. Traction Co. v. Transit Co., 143a, 145, 148 Hamilton Gas Light and C. Co. v. Hamilton, 663 Hamilton Street Railway v. Ham- ilton Transit Co., 148 Hamlin v. State, 26 Harbeck v. Toledo, 82, 189 Harlow v. City, 211 Harlow v. State, 583, 806 Harmon v. Stockwell, 531 Harmon v. Whittemore, 105, 374 Harner v. Columbus, etc., Railway Co., 153 Harrison v. Mt. Auburn Cable Railway, 153 Harrison v. Sabina, 90, 200 Hart v. Devereux, 313, 682 Harte v. Bode, 535 Hartman v. Hunter, 265, 270, 271 Hartwell v. Building Association, 206 Hartwell v. R. R. Co., 58, 245 Hartzell v. Alliance, 185 Haskins v. Cin. Consol. Ry., 148a, 344 Hastings v. Columbus, 105, 254, 263, 265, 266, 267, 318, 321, 374 Hatch v. Cincinnati, 513, 543 Hatch v. R. R. Co., 93, 115b Hattersly v. Waterville, 143a, 146, 151 . Hauck v. State, 365, 366 Haunts v. Lanman Co., 539b Hauss Elec. Co. v. Jones Bros. Elec. Co., 715 Haviland v. Columbus, 190 Hayes v. Board of Education, 284 Hayes v. Jones, 222, 223 Hayes v. Park Co., 130 878 TABLE OF CASES. (References are to pages.) Hayes v. Telephone Co., 115a Hayes v. Yost, 800 Haynes v. Hillsboro, 805 Hays v. Cincinnati, 182, 214, 227, 228 Hays v. Galion Gas Co., 668 Hays v. St. Mary, 46, 51 Heck v. Findlay, 329, 503 Heck v. State, 479 Heddleston v. Hendricks, 116 Heelman v. State, 45 Heminger v. Cleveland, 52, 550 Hendrickson v. Toledo, 83, 91, 224, 229, 231 Hengst v. Cincinnati, 77, 312, 314 Henrietta Twp. v. Brownhelm Twp., 641 Henrietta Twp. v. Oxford Twp., 641 Henry v. Cincinnati, 113, 115b, 716 Hensly v. Hamilton, 281, 290, 320, 321, 323, 343, 346 Herman v. Columbus, 185, 223, 228 Herman v. State, ex rel., 245, 373 Herrick v. Cleveland, 117, 122, 344, 347 Herrmann v. Cincinnati, 276 Hertenstein v. Herrmann, 345, 348, 372 « Herzog v. Railway Co., 115b Hess v. Lupton, 46 Hewitt v. Cleveland, 117a, 119 Hickok v. Hine, 58, 756 Hickox V. Cleveland, 208 Higgins v. Drucker, 374 Hildebrand v. Toledo, 205, 206, 224 254 Hill v. Cleveland, 233 Hill v. Durr, 98 Hill V. Higdon, 158, 180, 181, 264 Hillier v. State, 581, 592 Hirschman v. Pratz, 800 Hites v. Dayton, 60 Hogg v. Zanesville C. & M. Co., 1 Holbrook v. Toledo, 373, 374 Hollingsworth v. State, 126, 127 Hoist v. Roe, 51 Holtzkemper v. Langloth, 840 Hoppe v. Parmalee, 313 Hopple v. Cincinnati, 200 Horn v. Columbus, 270 Horstmann v. St. Ry., 44, 143a, 148, 148a, 157, 341, 343, 344, 345, 516 Hotel Alley, In re, 134, 136 Hotel Co. v. Branahan, 79 House of Refuge v. Ryan, 353, 357 Howard v. State, 443 Howard v. Whetstone Tp., 610 Hubard v. Fitzsimmons, 278 Hubbard V. Norton, 6, 182, 267, 313, 375, 478, 480 Hubbard v. Sandusky, 372a Hubbard v. Toledo, 58 Huber v. Gazley, 745, 747 Huddleson v. Ruffin, 52, 550, 553, 591 Hueston v. R. R. Co., 92 Hughes v. Clyde, 375 Hugh Printing Co. v. Deputy State Supervisors, etc., 373 Hulbert v. Mason, 19, 27 Hulburt v. Fitzsimmons, 44 Huling v. Huffman, 751 Hulse v. State, 534 Hume v. Traction Co., 157, 706 Humphreys v. Little Sisters of the Poor, 789 Hunt v. Gaylor, 506 Hunt V. Hunter, 203, 238, 240 Hunter v. Austin, 158, 159 Huntsville Local Option Election, In re, 315, 805 Huston v. Franklin, 381 Hutchinson v. Lima, 480, 502 Hyde Park v. Grant, 102 I. Ickes v. State, 503 Illuminating Co. v. Mt, Gilead, 115c Inclined Plane R. R. Co. v. Pfan, 212 Inclined Plane Ry. Co. v. Cincin- nati, 100 Interstate Telephone Co. v. Cincin- nati, — ' Inwood v. State, 581 Ireton Bros. v. Traction Co., 152 Iron R. R. v. Ironton, 82, 84, 314 Irwin v. Greenville, 174, 195, 275, 284, 285, 372a J. Jackson v. Jackson, 208 Jackson v. Washington, 806 Jacobs v. Cincinnati, 208, 273 Jaeger v. Burr, 181, 190, 267 Jameson v. Cincinnati, 502 Jeffries v. Defiance, 64 TABLE OF CASES. 879 (References are to pages.) Jessings v. Columbus, 188, 224, 266 Jiha v. Barry, 364a Johns v. Cincinnati, 118, 329 Johnson v. Avondale, 205, 245, 247, 254 Johnson v. Cincinnati, 121, 151, 344 Johnson v. Elyria, 320 Johnson v. Farley, 343, 346 Johnson v. West Side St. Ry., 151, 344 Jonas V. Cincinnati, 263, 539b Jones v. Commissioners, 451, 513 Jones v. Davis, 801 Jones v. FranKlin Co., 113 Joyce v. Barron, 199, 200, 268 Julius, In re, 75, 78 K. Kappes v. State, 581, 583, 804, 806 Karb V. State, 329 Kaufman v. Hillsboro, 804 Keating v. Cincinnati, 208, 210 Keck v. Cincinnati, 60, 76, 324 Keefe v. R. R. Co., 143, 747 Keehn v. Wooster, 275, 277, 278 Kelley v. Cincinnati, 329, 382, 383, 391, 509a, 510 Kelley v. Columbus, 117a Kellner v. Dayton, 210 Kelly v. Cleveland, 195, 268, 269 Kelly v. State, 505 Kemper v. St. Bernard, 228 Kemper v. Home, 246 Kendall v. Scheve, 471 Kendrick v. Farquhar, 789 Kent v. Dana, 278, 281 Kerlin Bros. v. Toledo, 103, 104, 104a, 105 281, 313, 319, 321, 373, 373a, 539b, 827. Kerr v. Bellefontaine, 173, 174, 663, 664 Kerr v. Commissioners, 133 Kerr v. Hinkle, 510, 511 Kinbleawecz v. State, 364 King v. Nichols, 504, 506 Kinnear Mfg. Co. v. Beatty, 133, 135, 136. Kinney v. Toledo, 53, 391 Kirby v. Winton Place, 199, 268 Kirchner v. Cincinnati, 174 Kirker v. Cincinnati, 328, 329, 503 Kissell V. Columbus Grove, 348 Kittredge v. Cincinnati, 120 Klein v. Cincinnati, 187, 233 Kleister v. Dayton, 117 Klopfer v. Sunderland, 174 Knabe v. Cincinnati, 206 Knauss v. Columbus, 169, 290, 316, 372 Knecht v. Cincinnati, 199, 268 Knorr v. Board of Education, 340, 513. Knorr v. Cincinnati, 183, 263 Knorr v. Miller, 151, 157, 343, 346, 347, 709 Knox Co. v. McComb, 529 Koch v. State, 581 Kopp v. B. & O. S. W. Ry. Co., 710 Kraft v. Cincinnati, 60, 76 Kratochwill v. West Carrollton, 212 Kreidler v. State, 480 Krickenberger v. Wilson, 809a Krumberg v. Cincinnati, 86, 194, 233, 262 Kubach v. State, 583, 804 Kuhn v. Cleveland, 115b Kuhn v. Remmler, 776 Kumler v. Silsbee, 157 Kummer v. Cincinnati, 202 Kumpf v. Delhi, 805 L. B. Society v. Lewis, 1 L. & N. R. R. Co. v. C, N. O. & T. R Ry. Co., 115b L. S. & M. S. Ry. Co. v. Ehlert, 313, 682 L. S. & M. S. Ry. Co. v. Elyria, 44, 114, 115, 115a, 116, 131, 134, 342, 682 L. S. & M. S. Ry. Co. v. Johnston, 682 Lake Shore Elec. Ry. Co. v. Ma- jewski, 143a Lake Shore Foundry v. Cleveland, 345, 373a Laird v. Cincinnati, 223, 228, 266 Lancaster v. Miller, 44, 104a, 109, 176, 351, 372, 372a, 374 Landis v. Darke County, 346 Landrock v. Columbus, 191 Langley v. Gallipolis, 114, 747 Lansmead v. Cincinnati, 205 Lawrence, ex parte, 5, 480 Lawrence v. Cincinnati, 460 880 TABLE OF CASES. (References are to pages.) Lawrence v. Mitchell, 18 Lawrence Railroad Co. v. Commis- sioners, 116 Lebanon v. Warren Co., 747 Le Clercq v. Gallipolis, 104, 208, 747 Lederer v. State, 804 Lee v. Smith, 742 Lee v. State, 569 Lee v. Sturges, 789 Leger v. Warren, 471 Lenman v. McBride, 33, 320 Leibschutz v. Black, 53 Leipsic v. Gerdeman, 120, 121 Lembo v. State, 443 Leonard v. Cassidy, 210, 211 Lewis v. Cincinnati, 50b Lewis v. Kramer, 793 Lewis V. Laylin, 112, 760 Lewis v. State, 451 Lewis v. Symmes, 184, 185, 345 Lewis v. Taylor, 185 Library Ass'n v. Pelton, 789 Life Ins. Co. v. Cuyahoga Co., 278 Lillard v. Ampt, 308, 316, 455 Lima v. Cemetery Ass'n, 180, 188, 266, 789 Lima Gas Co. v. Lima, 175, 312, 659, 662 Lima v. McBride, 137, 222, 311 Linn St. Bldg. Ass'n v. Morgan, 265 Lippelman v. Cincinnati, 211, 329 Little v. State, 50a Little Miami R. R. v. Naylor, 683 Little Miami R. R. Co., et ah, v. Dayton, 82 Little Miami Ry. Co. v. Greene Co., 115c Littleton, v. Infirmary Directors, 511 Lloyd v. Dollison, 804, 806 Lloyd v. Hulbert, 130 Lloyd Booth Co. v. Mahoning Co., 115b Locke v. Cincinnati, 186, 192, 228 Lockland v. Smiley, 128, 130, 744, 745 Lockyear v. Covert, 50b Lodge v. Hayslip, 789 Loeb v. Columbia Township, 43, 275 Logan Nat. Gas Co. v. Chillicothe, 539b, 659 Longworth v. Cincinnati, 58, 83, 84, 194, 262, 263 Lorain v. Rolling, 366, 432 Lorain Plank Road v. Cotton, 479, 528 Lorain St. Ry. Co. v. Sinning, 93 Lotze v. Cincinnati, 210, 212 Lougee v. State, 591 Lough v. Machlin, 129, 133 Louisville Trust Co. v. Cincinnati, 143a, 708 Lowden v. Cincinnati, 265, 313 Lowry v. Cincinnati, 176 Ludlow v. Johnston, 479, 528 Luetzler v. Perry, 588 Lunkenheimer v. Cincinnati, 129 Lynde v. Winnebago Co., 278 M. Macklin v. Telephone Co., 714 Macneale v. Cincinnati, 129 Madden v. Ry., 115b, 136 Madden v. Smeltz, 319, 804 Madisonville v. Tp. Co., 126, 764 Makemson v. Kauffman, 153, 222, 223 Makley v. Whitmore, 195, 264 Malone v. Toledo, 113 Maloy v. Marietta, 181 Manhattan Trust Co. v. Gas Co., 657 Manns v. Cincinnati, 191 Mansfield v. Balliett, 82, 92, 246 Mantell v. Telephone Co., 115a Many v. Cleveland, 373a Marietta v. Fearing, 312 Marietta v. Slocomb, 266 Markle v. Akron, 49, 63, 313, 5G6 Markley v. Mineral City, 62, 537 Marmet v. State, 2, 50a, 50b, 56, 74, 76, 114, 158 Marsh v. Hartwell, 177 Marshall v. Wooster, 270 Martin v. Bond Hill, 210, 211, 212 Martin V. State, 503 Martindale v. State, 590 Marvin v. State, 590 Massa v. The State, 8 Mathers v. Cincinnati, 62, 143a, 144, 151, 153, 345, 347 Matthews v. Cincinnati, 191 Matthews V. Toledo, 121 Matthews v. Traction Co., 143, 148a Mauk v. Brundage, 329 Mays v. Cincinnati, 60, 74, 75, 76, 157, 158 McArthur v. Franklin, 516 TABLE OF CASES. 881 (References are to pages.) McBride v. Akron, 117a McClain v. McKisson, 308, 311, 346, 372a, 375, 452, 464 McClain v. Simington, 504, 533 McClelland V. Miller, 116 McCloud V. Columbus, 105, 268, 372, 373a McCormick Harvesting Machine Co. V. Sims, 791, 793 McCortle v. Bates, 312, 822 McCrea V. Washington, 314, 320 McDonald v. Cincinnati, 85 McGee v. Avondale, 199, 208, 209 McGill v. State, 7 McGlynn v. Toledo, 206, 207, 211, 224, 228, 231, 262, 263, 266, 267 McGonigale v. Defiance, 372 McGovern v. Mt. Vernon, 119 McGreevy V. Board, 373 McGrew v. Blmwood Place, 174, 175 McGuire v. East Cleveland, 236, 319 McHugh V. Cincinnati, 5, 480 McLaughlin v. Stevens, 747 McLean V. Cincinnati, 122 McLean v. Electric Light Co., 747 McMackin v. Cincinnati, 375 McMillan v. Watt, 775 Meara v. Holbrook, 330 Mechlem v. Cincinnati, 203 Meek v. Pennsylvania Ry. Co., 312, 682 Megrue v. Comm'rs, 683 Meily v. Columbus, 429 Meissner v. Toledo, 187, 233, 262, 263, 376 Merchant v. Waterman, 189 Met. Tr. Co.* v. Ry. Co., 529 Metcalf v. Carter, 185, 191 Meyer v. Dempsey, 442 Meyer V. Muscatine, 278 Meyers v. Cincinnati, 191 Middleport v. Taylor, 119, 121, 122 Milford v. Traction Co., 148a Millcreek Valley R. R. Co. v. St. Bernard, 114 Millcreek Valley St. Ry. v. Carth* age, 157 Miller v. Bellefontaine, 544 Miller v. Cincinnati, 115, 131, 134, 206, 208 Miller v. Directors, 511 Miller v. Hixson, 278 Miller v. Oehler, 542 Miller v. Pearce, 90, 346, 348, 373, 374 Miller v. Railway Co., 143a Miler v. State, 48 Miller v. Toledo, 205, 245 Miller v. Weber, 93 Miliikin v. Bowling Green, 129 Mills v. Norwood, 115, 174, 227, 256, 273, 344, 346 Mineral City v. Render, 470 Minor v. Board, 223, 227, 228 Mitchell Furniture Co. v. Railroad, 115b Mocker v. Cincinnati, 226, 268 Mocker, et al. t v. Cincinnati, 269 Moerder v. Fremont, 50b, 313 Moerlein Brew. Co. v. Westmeier, 264 Mohn V. Collins, 39, 319 Molitor v. State, 503, 575, 576 Mondle v. Toledo Plow Co., 116 Monroe v. Collins, 515 Monte v. Pabst, 804 Moon v. Middletown, 121 Mooney v. St. Mary's, 118 Moore v. Cassily, 329 Moore v. Cincinnati, 6, 183, 373, 480 Moore v. Given, 800 Moore v. Hoffman, 169, 344 Moore v. Moore, 569 Moore v. Vance, 479, 528 Monter v. Cleveland, 116, 129 Morehouse v. Norwalk, 56, 82 Morgan v. Cleveland, 183 Morgan V. Hudnell, 840 Morgan v. Nolte, 64, 581 Morgan v. Tighe, 543 Morris v. Woodburn, 121 Morrow County, etc., v. Mt. Gilead, ■ 315, 320, 662 Mosler, ex parte, 817 Mott V. Toledo, 116 Mt. Vernon v. State, 175, 185, 372 Mudge v. Evanston, 263 Murdock v. Cincinnati, 185 Murphy v. Columbus, 75, 77 Murphy v. Sims, 196, 202, 224, 259 Murray v. Auglaize Co., 828 Myers v. Toledo, 129, 745 N. N. C. Harmony Lodge v. Hagerty, 503, 801 Nail & Iron Co. v. Furnace Co., 134 Near v. Mt. Auburn Cable Ry., 152 Neff v. Bates, 6, 182, 184, 189, 480 Neff y. Cincinnati, 94, 196 882 TABLE OF CASES. (References are to pages.) Neil v. Barron, 329 Neubauer v. Bd. Education, 176 Neubert v. Toledo, 209 Nevin V. Dayton, 228 Newark v. Elliott, 103 Newark v. Flatau, 50, 75, 79 Newark v. Gas & Fuel Co., 657, 662 Newark v. Jones, 113, 118 Newark v. Light & Power Co., 665. Newark v. McDowell, 113, 118, 756 Newton v. Mahoning Co., 104, 105 Newton v. Manufacturers' Ry. Co., 62 Newton v. Toledo, 174, 207 Newton, et ah, v. Comm'rs, 106 New York & B. Co. v. Hermann, 652 N. Y. Life Ins. Co. v. Cuyahoga Co., 277, 278 Nicholson v. Maile, 345, 347 Niefeld V. State, 571 Nigh v. Keifer, 745 Nitz v. Toledo, 60, 117a, 120, 121 Nitzel v. St. Bernard, 194, 252, 254 Nolte v. Cincinnati, 209 Norris V. Jasper, 266 Norris V. State, 827 Northern Bank v. Porter Town- ship, 278 Norwalk v. Jacobs, 117a Norwalk V. Tuttle, 117a, 120 Norwood V. Building Ass'n, 203, 237, 240 Norwood v. Ogden, 262 Nulson v. Cincinnati, 190 Oberer v. State, 804 O'Brien v. Cleveland, 45, 61, 322 O'Connell v. Boyle, 504 Ohio Farmers' Ins. Co. V. New Philadelphia, 277, 281 Ohio State Journal v. Brown, 317 Ohliger v. Toledo, 121 Ohliger v. Traction Co., 122 O'Rourke v. State, 76 Osborne v, Columbus, 391 Otis V. Cleveland, 262 Oviatt v. Akron St. Railroad Co., 143 P. C. & St L. R. R. v. Cincinnati, 683 * Paige v. Cherry, 58 Parker v. Burgett, 222 Parmalee V. Youngstown, 193 Parrish v. Hamilton G. & C. Trac- tion Co., 153 Parrott v. C. H. & D. R. R., 683 Parsons v. Columbus, 1, 115, 181 Partridge V. Jones, 504, 533 Peabody v. State, 505, 506 Pears v. Cleveland, 117a Peat v. Norwalk, 120 Pease V. Ryan, 344, 529 Pelton v. East Cleveland Railroad, 143, 148a Penn Co. v. Wentz, 686 Penquite v. Lawrence, 128 Peppard v. Cincinnati, 343, 346, 348 Perin v. Carey, 62, 486a Perkins v. Zumstein, 800 Perry Co. v. R. R. 'Co., 118, 755, 759 Peters v. State, 590 Petition of Ammer, In re, 809a Petition of Gorey, In re, 809i Petition of Wightman, In re, 809c Petition for Election, In re, 809a, 809g Petition for Election in Dayton, In re, 809a Petition for Election in Toledo, In re, 809a, 809c, 809g Phifer v. Cox, 114 Pfeiffer v. Green, 26 Phillips V. Hunter, 793 Picard v. Hughey, 668 Pierce v. Bd. of Ed., 528 Pike v. Cummings, 203, 265 Pirn v. Nicholson, 320 Piqua V. Cron, 326, 543 Piqua v. Geist, 118, 317, 756 Piqua v. Zimmerlin, 48, 314 Pitton v. Cincinnati, 210 Piatt V. Toledo, 114 Poland V. Connolly, 66 Pollock v. Toland, 12, 13, 26, 27, 34, 40, 516 Portsmouth V. Milstead, 326 Potter v. Bunnell, 685 Potter v. Norwood, 206 Powers v. Railway, 93 Powers v. Wood Co., 26, 35 Prescott v. State, 353, 355 Pretzinger v. Sunderland, 204 Price v. Farley, 392 Price v. Toledo, 187, 203 Printing Co. v. State, 318 Property Owner v. Akron, 208 TABLE OF CASES. 883 (References are to pages.) Pruden v. Cincinnati, 60, 84 Puccine v. Cincinnati, 120 Pugh Printing Co. v. Deputy State Supervisors, etc., 373 Pugh v. Electric Light Co., 345, 346 Pullen v. Smith, 173, 174 Pummill v. Baumgartner, 505 Pump v. Comm'rs, 515 Punshon v. Cincinnati, 204, 228 Purcell V. Riverside, 319 Put-in-Bay v. Stimmel, 87 Put-in-Bay v. Webb, 174 Q. Queen City Foundry Co. v. Cincin- nati, 203 Queen City Telephone Co. v. Cin- cinnati, 715 Quinlan v. Myers, 184 R. Radebaugh v. Plain City, 75, 77 Radebaugh v. Shelley, 528 Rademacher v. Cincinnati, 194 Railroad v. Campbell, 683 Railroad v. Cincinnati, 685 Railroad V. Cobb, 684 R. R. v. Comm'rs, 26, 32, 83, 85, 116, 146, 515, 683, 707 Railroad V. Lersch, 684 Railroad v. Mowatt, 683, 684 Railroad v. Railroad, 683, 708 Railroad v. State, 686 Railroad v. Stephenson, 839 Railroad v. Van Dorn, 685 Railroad v. Williams, 684 R. R. Co. V. Ball, 93, 212 R. R. Co. v. Bellaire, 268 R. R. Co. v. Belle Centre, 82, 84, 90 R. R. Co. v. Belmont Co., 186 R. R. Co. V. Bohm, 89, 90, 685 R. R. Co. v. Campbell, 93 R. R. Co. v. Cincinnati, 313 R. R. Co. v. Collett, 93 R. R. Co. v. Columbus, 684 R. R. Co. v. Connelly, 181, 186 R. R. Co. v. Dayton, 56, 82, 314 R. R. Co. v. Defiance, 26, 57, 112, 115, 115a, 128, 208, 682, 685. R. R. Co. v. Gardner, 93, 210, 212 R. R. Co. v. Hambleton, 116, 684 R. R. Co. v. Hamilton, 83, 684 R. R. Co. v. Hyde Park, 91 R. R. Co. V. McCormick, 682 R. R. Co. V. McLaughlin, 208 R. R. Co. v. Morris, 177 R. R. Co. v. O'Hara, 684 R. R. Co. v. Perkins, 84, 94 R. R. Co. v. Prentice, 89 R. R. Co. v. Scahill, 543 R. R. Co. v. Sullivan, 270, 677 R. R. Co. V. Zinn, 93 Railway v. Bowling Green, 658 Railway v. Columbus, 267 Railway v. Gardner, 93, 683, 684 Railway V. Howard, 839 Railway v. Lawrence, 115b, 133 Railway v. Maurer, 685 Railway V. Railway, 93 Railway v. Telegraph Ass'n, 715. Ry. Co., In re, 131 Ry. Co. v. Bellaire, 265, 270 Ry. Co. v. Carthage, 115c, 129, 375, 683 Ry. Co. v. Cincinnati, 100, 124, 180 Ry. Co. v. Cleveland, 128 Ry. Co. v. Cummins, 131 Ry. Co. v. Cumminsville, 113, 143, 210, 822 Ry. Co. v. Day, 151 Ry. Co. v. Elyria, 44, 114, 115, 115a, 116, 131, 134, 342, 682 Ry. Co. v. Garrard, 94 Ry. Co. v. Greenville, 84, 87, 91 Ry. Co. v. Herrick, 312, 682 Ry. Co. v. Knauss, 93, 94, 96 Ry. Co. v. Koblentz, 101 Ry. Co. v. Longworth, 93, 94 Ry. Co. v. Mammet Adm'r, 115 Ry. Co. v. Martin, 696, 697a Ry. Co. V. Ry. Co., 324 Ry. Co. V. Schneider, 679 Ry. Co. V. Trainer, 313, 682 Ry. Co. v. Troy, 84, 92 Ry. Co. v. Williams, 93 Raitz v. Green, 471 Ramsey v. Columbus, 54, 461, 645 Rapp V. Cincinnati, 152 Ratterman v. Niehaus, 800 Ratterman v. State, 340, 545, 803 Raudebaugh v. Shelley, 528 Ravenna v. Pennsylvania Ry. Co., 44, 45, 351, 674, 683 Rawson & Co. v. Schott, 793, 800 Raymond v. Cleveland, 180, 181, 182, 477 884 TABLE OF CASES. (References are to pages.) Raynolds v. Cleveland, 113, 143a, 147, 148, 151, 343, 346, 372 Rea v. Smith, 471 Reckner v. Warner, 207 Reed v. Board of Education, 505 Reed v. Cincinnati, 183, 191 Reed v. Maxfield, 26 Reed V. Toledo, 157 Reeves v. Griffin, 511 Reeves v. Treas. Wood Co.> 158, 180, 181 Reiter v. State, 449, 515, 536 Reuben v. Swigart, 114, 115c Reynolds v. Clearwater, 263 Reynolds v. Green, 265 Reynolds v. Newton, 129, 130, 744, 745 Reynolds v. Schweinefus, 315 Reynolds v. Stark Co., 103, 104 Rhoades v. Toledo, 174, 262 Rhodes v. Cleveland, 208, 246 Ricard Boiler & Engine Co. v. To- ledo, 103 ' Richards v. Cincinnati, 130, 186, 188, 189 Richland Co. v. Citizens' Electric Ry. Co., 145 Richter v. Norwood, 224 Ridenour v. Saffin, 26, 158, 180, 195, 268 Ridenour v. State, 513 Ritter v. Falkinburg, 30 Roberts v. Easton, 152, 153, 315 Roberts & Co. v. Cincinnati, 52 Roberts & Co. V. Taft, 285, 301, 697a Robinson v. Cleveland St. Ry. Co., 702 Robinson v. Greenville, 117, 389 Rogers v. Pugh, 504 Rogers v. Railway Co., 148a, 342, 344, 346 Rolling v. Lorain, 366 Ronnebaum v. Railway, 152 Rose v. King, 742, 743 Rose V. Toledo, 59, 329 Rosebaugh v. Saffin, 63 Ross v. Board of Education, 373 Ross v. Cincinnati, 130, 210, 211 Ross v. Columbus, 148, 345, 348 Ross, et ah, v. Cincinnati, 130, 211 Ross v. Railway, 684 Rost v. Glenville, 40, 809 R. S. C. & H. St. Ry. Co. v. C. H. & I. R. R. Co., 699 Rudi v. Lang, 839, 840 Ruffner v. Hamilton, 528 Russell v. Toledo, 117a Rutter v. Henry, 839, 840, 841 Ryan v. Cincinnati, 174, 208, 210, 218, 223 Ryan, ex parte, 49, 74, 76, 77 Ryan v. Hoffman, 101, 102, 103, 173, 174, 548 Ryan v. Jacob, 76 Ryan v. Orbison, 290, 320 3. Sadler v. Porter, 778 St. Bernard v. Kemper, 227 St. Mary's v. Railroad, 674, 676, 677 St. Mary's v. Rowe, 505 Salem v. Mulford, 204, 263 Sandrock v. Columbus, 191 Sanfleet v. Toledo, 146, 148, 151, 152, 153, 325 Sargent v. O. & M. R. R., 683 Satchell v. Doram, 130, 744, 747 Savings Co. v. Cincinnati, 200, 207 Scarborough v. Gibson, 801 Schaefler v. Sandusky, 117a Schaible v. Ry., 93 Schindler v. Lewis, 800 Schlagel v. State, 806 Schlemmer v. Furniture Co., 128, 133 Schmidt v. Cincinnati, 191 Schmidt v. Elmwood Place, 199, 238, 240, 268 Schneider v. Cincinnati, 117a, 120 Schroder v. Overman, 202, 214, 265, 319 Schwab v. Traction Co., 152 Schwegman v. St. Bernard, 469, 470 Schweinfurth v. R. R. Co., 121 Scio v. Hollis, 544 Scott V. Athens, 738 Scott v. Hamilton, 214, 372a Scott v. Trustees, 537 Scott's Sons v. Raine, 794, 799, 800 Scovill v. Cleveland, 180, 181, 186, 199, 310 Scovill v. Geddings, 329 Scully v. Cincinnati, 181, 190, 195 Seasongood v. Cincinnati, 210. Seegar v. Harrison, 747 Seese v. Maumee, 116 Sessions v. Crunkilton, 82, 85, 158, 180, 181 Sharp v. Cincinnati, 118 Shattuck v. Cincinnati, 191 TABLE OF CASES. 885 (References are to pages.) Shaw v. Jones, 319, 328, 343, 344, 346, 502 Shehan v. Cincinnati, 182 Shelby v. Clagett, 120, 238 Shelby Co. v. Frego, 479, 528 Shepard v. Baron, 184, 185, 224 Shepherd v. B. & O. R. R., 683 Sherard v. Lindsay, 793 Shiner v. Norwood, 187, 192 Shoemaker v. Cincinnati, 190, 348 Short v. Cincinnati, 809i Shugars v. Williams, 10, 13, 27 Shunk v. First Nat. BanK, 529 Sigler v. Cleveland, 47 Sims v. St. Railroad Co., 145, 148a, 314 Simmons v. Toledo, 143, 146, 147, 150, 151, 152, 153, 374 Sipe v. Murphy, 50, 74, 75 Slatmyer v. Springbom, 485 Slaughter v. Columbus, 544, 571 Slavin v. Greene, 183 Sloan v. Hubbard, 840 Sloane v. People's Elec. Ry., 146, 148a, 151, 152, 344, 346, 348 Smedes v. Railroad Co., 115b Smith v. Altick, 200 Smith v. Cincinnati, 181, 208 Smith V. Columbus, 470 Smith v. Columbus, etc., Railway, 150, 321 Smith v. Commissioners, 470 Smith V. Evens, 61, 174 Smith v. Lynch, 328, 329, 418, 419, 503 Smith v. Major, 77 Smith v. Railroad Co., 319, 374 Smith v. Toledo, 186, 195 Snelbaker v. Jacobs, 329 Snyder v. Depot Co., 50b Sommers v. Cincinnati, 145, 147, 148a, 152, 153, 314, 346 South Charleston Election, In re, 805, 806 Spangler v. Cleveland, 183, 186, 190, 259, 263 Sprankle v. Cleveland, 58, 175 Springer v. Avondale, 192 Springfield v. Spence, 245 Springfield v. Walker, 43 Springfield Tp. v. Demott, 610 Springfield Tp. Co. v. Springfield, 126 Springmeier v. State, ex rel, 245 Spurgeon v. McElwain, 45 Squier v. Cincinnati, 182, 228 Squires, application of, 64 Stall V. Macalester, 479 Stamberger v. Cleveland, 117 Stanley v. Cincinnati, 204, 206 Stannard v. Case, 479 State v. Adams, 503 State V. Alden, 506 State V. Ailing, 329 State V. Anderson, 328, 502 State v. Archibald, 442 State V. Baker, 460, 461, 467 State v. Bair, 173, 509a State V. Barbee, 310, 535 State v. Barr, 315, 531 State v. Baughman, 384 State V. Bingham, 329, 503 State v. Blake, 506 State v. Board of Education, 372a, 381 State v. Borham, 581 State v. Boring, 533 State V. Bowman, 505 State v. Brewster, 2 State V. Brown, 169, 513 State v. Buckley, 515 State V. Buttles, 537 State v. Cappelar, 789 State V. Chandler, 428 State v. Chapman, 405 State v. Choate, 310 State v. Cincinnati, 31, 305, 478, 504, 635 State v. Cincinnati Fertilizer Co., 827 State v. Clarke, 791 State v. Com'rs, 113, 277, 373, 374, 381, 479, 641, 829 State v. Constantine, 8 State v. Conway, 506 State v. Cook, 480 State v. Corey, 505, 514 State V. Cottle, 505 State v. Covington, 320, 384 State v. Craig, 26, 112, 158, 1C5, 528, 529 State V. Crooks, 505, 507 State v. Davis, 26, 479, 481, 635 State v. Dayton Traction Co., 142, 143, 148 State v. Dombaugh, 515 State v. East Cleveland R. R. Co., 148a, 150, 151, 153, 154 State v. Electric Street Ry., 145, 153, 707, 711 State v. Eshelby, 503, 513 State v. Findlay, 504, 505, 507 State v. Fire Commissioners, 54, 405, 510 State v. Foraker, 845 State v. Frame, 515 886 TABLE OF CASES. (References are to pages.) State V. Funk, 177 State v. G. A. Society, 1 State v. Gardner, 329, 503, 810 State v. Gibson, 227, 278 State v. Graydon, 245 State V. Griffin, 460, 462 State v. Griffiths, 505 State v. Hamilton, 570, 668 State v. Hance, 449 State v. Harper, 506 State v. Heibel, 804 bcate v. Heinmiller, 391, 472. State v. Hinkle, 346, 347 State v. Hobart, 46 State v. Hoglan, 509a, 510, 511 State v. Howe, 304, 534 State v. Hudson, 509a, 510 State V. Humphreys, 159 State v. Irvin, 101 State v. Jennings, 502 State v. Kelley, 529 State v. Kinney, 515 State v. Kinninger, 442 State v. Lake Erie Iron Co., 374 State' v. Lewis, 451, 470, 800. State v. Lower River Road, 124 State V. Massillon, 419 State v. McClain, 511 State v. McKinley, 503 State v. Medary, 505 State V. Meyers, 328, 502, 534 State v. Miller, 308 State v. Mitchell, 18, 185, 478 State v. Nelson, 710 State v. Newark, 310 State v. Newton, 529 State V. Niemes, 375 State V. O'Brien, 503 State v. Oglevie, 641 State v. Perry Co., 515 State v. Peters, 590 State v. Philbrick, 175, 512 State v. Piatt, 506 State v. Powers, 486a State v. Pugh, 2, 696 State v. Railroad, 685 State v. R. R. Co., 102 State v. Ry., 147 State v. Ry. Co., 115c, 701 State v. Raine, 26 State v. Richland Tp., 641 State v. Ridgway, 806 State v. Salem Water Co., 668 State v. Schlatterbeck, 353 State v. Squire, 311 State V. Staley, 278 State v. Sullivan, 311, 417, 510, 511, 800 State v. Taylor, 533 State v. Telephone Co., 714 State v. Thompson, 45 State v. Toledo, 2 State v. Tooker, 53, 76 State v. Tool, 536 State v. Townley, 534 State v. Traction Companies, 711 State V. Trustees, 157 State V. Ulm, 48, 314 State V. Voris, 442, 569 State v. Ward, 7 State v. Washington Tp., 641 State v. West, 471 State v. Wilkesville, 309 State v. Wilson, 533 State v. Withers, 74 State v. Yeatman, 373 State v. Zumstein, 345 State ex rel v. Allison, 284 State ex rel v. Anderson, 308, 328 State ex rel v. Anlin, 285, 374, 845 State ex rel Atty. Gen. v. Beacoms, 2 State ex rel Atty. Gen. v. Coving- ton, 2 State ex rel v. Auditor, 479 State ex rel v. Bailey, 449 State ex rel v. Baker, 2, 32, 349 State ex rel v. Barnes, 373a State ex rel v. Barrett, 391, 408, 417, 510 State ex rel v. Bell, 145, 151 State ex rel v. Berry, 308 State ex rel v. Betts, 373 State ex rel v. Bloch, 442 State ex rel v. Board, 245, 372a Ltate ex rel v. Board of Ed., 277, 284, 326, 327, 372a State ex rel v. Bowers, 309, 339, 342, 343 State ex rel v. Boyce, 548 State ex rel v. Boyden, 351, 382 State ex rel v. Brewster, 32, 479, 534 State ex rel v. Brown, 44, 309, 310 State ex rel v. Bryson, 391, 472, 511 State ex rel v. Buckley, 33 State ex rel v. Capeller, 327a, 574 State ex rel v. Carlisle, 113, 327 State ex rel v. Chillicothe, 458 State ex rel v. Cincinnati, 2, 32, 122, 284, 373, 375 State ex rel v. Cin. Gas L. & C. Co., 316, 317, 657, 662, 664, 668 State ex rel v. C, M. & L. Trac- tion Co., 148a TABLE OF CASES. 887 (References are to pages.) State ex rel v. Cleveland, etc., Co., 657 State ex rel v. Collister, 309, 502 State ex rel v. Columbus Ry. Co., 115, 143, 143a, 153 State ex rel v. Commissioners, 113, 282, 284, 381, 384, 507, 536, 643, 756, 759 State ex rel v. Commissioners of Ottawa Co., 742 State ex rel v. Constable, 329, 503 State ex rel v. Cook, 5 State ex rel v. Coon, 328 State ex rel v. Covington, 328 State ex rel v. Cowles, 2 State ex rel Commissioners v. Cin- cinnati, 756 State ex rel. v. Craig, 310, 421, 521a, 515 State ex rel. v. Dahl, 515 State ex rel. v. Darby, 310, 311, 384, 514, 515, 534, 535 State ex rel v. Davis, 529 State ex rel v. Depot Co., 696 State ex rel v. Directors, 284, 373 State ex rel v. East Cleveland Ry. Co., 148a State ex rel v. Electric St. Ry., 145 State ex rel v. Ermston, 535, 574 Scate ex rel v. Extension Lower River Road, 765 State ex rel v. Fire Commission- ers, 511 State ex rel v. Franklin Co., 374, 528 State ex rel v. Fronizer, 44 State ex rel v. Ganson, 311, 405, 509a, 510 State ex rel v. Gas Co., 313, 315, 657. 659, 668 State ex rel v. Gas Light & Coke Co., 115, 311, 314, 315 State ex rel v. Gibson, 174 State ex rel v. Godfrey, 791 State ex rel v. Green, 307, 315 State ex rel v. Hadley, 535 State ex rel v. Hall, 250, 361, 410, 410a, 480 State ex rel v. Hamilton, 449, 660, 663, 670 State ex rel v. Hamilton Co., 329 State ex rel v. Hanna, 381 State ex rel v. Hawkins, 2, 5, 480, 509a, 511 State ex rel v. Henderson, 146, 315, 325 State ex rel v. Hermann, 372a, 652 State ex rel v. Hipp, 74 State ex rel v. Hoffman, 173 State ex rel v. Holmes, 799 State ex rel v. Holden, 44, 62, 330 State ex rel v. Howe, 5, 480 State ex rel v. Hubbard, 392, 395 State ex rel v. Hudson, 2 State ex rel v. Hyman, 391, 408, 417 State ex rel Hussey v. Hyman, 408, 417 State ex rel v. Jennings, 328 State ex rel v. Jones, 5, 384 State ex rel v. Kearns, 304, 310, 311, 514, 533 State ex rel v. Keeler, 310 State ex rel v. Kennon, 328, 503, 533 State ex rel v. Ketter, 2 State ex rel v. Killits, 5, 480, 505, 534 State ex rel v. Kinney, 309, 310 State ex rel Knisely v. Jones, 2, 384 State ex rel v. Lewis, 112, 504 State ex rel v. Liberty Twp., 312, 822 State ex rel v. Massillon, 175,419, 421a State ex rel v. McCracken, 515 State ex rel v McGonagle, 328 State ex rel v. McGregor, 310, 515, 534, 535 State ex rel v. McMillan, 310 State ex rel v. Mitchell, 15 State ex rel v. Nash, 535 State ex rel. v. Newark, 10, 419, 513 State ex rel v. Nieman, 373a State ex rel v. Norton, 374 State ex rel V. O'Brien, 308, 329 State ex rel v. Orr, 105, 310, 317 State ex rel v. Pinney, 177 State ex rel v. Pohling, 759 State ex rel v. Pollner, 507 State ex rel v. Prendergast, 423 ^ Si.ate ex rel v. Railroad, 683 State ex rel v. R. R. Co., 114 State ex rel v. Railway, 122, 683 State ex rel v. Raine, 327, 793, 794 State ex rel v. Rattermann, 2, 384 State ex rel v. Robins, 539b State ex rel v. Roebuck, 316, 345, 351, 372a State ex rel v. Roll, 311, 405 State ex rel V. Rust, 328, 503, 606 State ex rel v. St. Bernard, 372a, 373 888 TABLE OF CASES. (References are to pages.) State ex rel v. Schauss, 488, 489 State ex rel v. Schumate, 564 State ex rel v. Shelby Co., 478 State ex rel v. Simpson, 557 State ex rel v. Slough, 310, 504, 515, 535 State ex rel v. Smith, 590 State ex rel v. Speidel, 515 State ex rel v. Spellmire, 778 State ex rel v. Stockley, 479 State ex rel v. Strader, 158 State ex rel v. Stroble, 387, 410a State ex rel v. Sutton, 311, 405, 510 State ex rel v. Taylor, 346, 707 State ex rel v. Telephone Co., 714, 715 State ex rel v. Thompson, 515 bcate ex rel v. Thrall, 534 State ex rel v. Toledo, 44, 62, 158, 486a, 845 State ex rel v. Toledo Home Tele- phone Co., 715 State ex rel v. Toledo Ry. & Light Co., 148a State ex rel v. Trustees, 15 State ex rel v. Union Terminal R. R. Co., 696 State ex rel v. Wagar, 3, 4 State ex rel v. Wall, 44 State ex rel v. Water Co., 670 State ex rel v. Wichgar, 177 State ex rel v. Wilson, 328 State ex rel Witham v. Nash, 507 State ex rel v. Witt, 308 State ex rel v. Wright, 304, 442, 514, 534, 557 State ex rel v. Wyman, 410a Steamboat Monarch v. Finley, 1 Steamboat Northern Indiana v. Milliken, 442, 543 Stearns v. Wyoming, 308 Steese V. Oviatt, 183, 221, 263 Stem V. Cincinnati, 160, 169 Stephan v. Daniels, 76, 194, 222, 266, 268 Stephenson v. Leesburg, 130, 744, 745 Sterling v. Bowling Green, 50a, 50b, 314 Steubenville v. Gulp, 391, 513 Steubenville v. King, 26, 112, 128 Steubenville v. McGill, 115, 115a, 119 Steuer v. McConnell, 314 Stevens V. Allman, 533 Stevens v. Shannon, 11,6, 133 Stevens v. State, 515 Stewart v. Ashtabula, 148 Stewart v. Southard, 329 Stewart v. State, 806 Stick v. State, 805 Stone v. Viele, 183 Storer v. Cincinnati, 228 Storey v. Jennings, 505 Strang, ex parte, 329, 503, 575, 576 Strauss v. Cincinnati, 194, 200, 212, 262, 265 Strauss v. Conneaut, 63, 63a, 324 Strawn v. Commissioners, 513 St. Railroad Co. V. Smith, 114 St. Ry. v. Cleveland, 154 Street Ry. v. Cumminsville, 113, 115b, 143, 210, 822 Street Railway v. Dayton, 148 Street Ry. Co. v. Murray, 679, 711 St. Ry. Co. v. St. Ry. Co., 32, 145 Stribley v. Cincinnati, 87, 92 Strong v. Darling, 748 Sturges V. Carter, 789 Sullivan v. Columbus, 112, 128, 130, 744 Sullivan v. Newark, 118 Sullivan v. Pausch, 268, 315, 319 Sullivan V. Urbana, 278, 281 Swartz v. Wayne Co., 513 Taber v. Bowling Green, 208, 210 Taft v. Cincinnati, 32 Tannian v. Telegraph Ass'n, 115a Taylor v. Commissioners of Ross County, 515, 696 Taylor V. Day, 776 Taylor v. Wapakoneta, 184, 221, 228 Telephone Co. v. Middletown, 715 Tenney, et al., v. Cincinnati, 92, 130, 211 Tepe v. Norwood, 246 Terry v. State, 566 Thale V. Cincinnati, 39, 209, 211, 262 Thatcher v. Toledo, 195, 238, 319 Thomas v. Ashland, 574 Thomas v. C, N. O. & T. P. Ry. Co., 697a Thomas v. Evans, 529 Thomas v. Findlay, 119, 389 Thomas v. Fremont, 114 Thomas V. Mt. Vernon, 74 Thomas v. Ry. Co., 329 Thomas v. Village of Ashland, 574 TABLE OP CASES. 889 (References are to pages.) Thomas v. Wilton, 329 Thompkins v. Norwood, 191 Thompson v. Mt. Vernon, 48, 314 Thompson v. Nemeyer, 103 Thompson, Relator, v. Phillips, 327 Thorns v. Greenwood, 696 Thorne v. Megrue, 507 Thornhill v. Cincinnati, 45, 63, 147 Tnornton v. Cincinnati, 203, 228 Tiffin V. McCormack, 46 Tiffin v. Shawhan, 43, 104, 105, 106, 331, 452, 543 Tippecanoe v. Boercher, 77 Tipton V. Tipton, 99 Todd V. R. R. Co., 744 Toledo v. Ainsworth, 91 Toledo V. Andrews, 254 Toledo v. Bank, 204 Toledo v. Barnes, 189, 264 Toledo v. Bayer, 86, 87, 92 Toledo v. Beaumont, 254 Toledo v. Board of Education, 187, 230 Toledo V. Breyman, 212 Toledo v. Brown, 204, 205 Toledo v. Buechele, 55, 58, 76, 77 Toledo V. Center, 120 Toledo v. Cone, 68, 118, 329 Toledo v. Converse, 129 Toledo V. Ford, 233 Toledo v. Fuller, 120, 122 Toledo V. Grasser, 246, 265 Toledo v. Groll, 101 Toledo v. Higgins, 117a Toledo v. Hosier, 789 Toledo v. Jacobson, 103, 209, 218, 220 Toledo V. Kohn, 254 Toledo V. Lalond, 120 Toledo v. Lewis, 117a Toledo v. Libbie, 63, 324 Toledo V. Marlow, 182 Toledo v. McMahon, 199, 208, 268 Toledo v. Nitz, 117a, 120, 121, 122 Toledo v. N. W Ohio Nat. Gas Co., 344, 657, 658, 660, 666 Toledo v. Piatt, 265 Toledo v. Potter, 206, 255 Toledo v. Preston, 213, 217 Toledo V. Radbone, 120, 121, 122 Toledo v. Ry. Co., 129, 204, 205, 206, 245, 250, 252, 255, 267 Toledo v. Scott, 211 Toledo V. Sheill, 191 Toledo v. Toledo Ry. & Light Co., 147, 148a, 548 Toledo v. Toledo, 159, 478 Toledo V. Weber, 96 Toledo v. Willinger, 122 Toledo Bending Co. v. Ry., 115b Toledo Consolidated St. R. R. v. Sweeney, 685 Toledo Elec. St. Ry. Co. v. T. & M. V. Ry., 107 Toledo Electric Street Railway Co. v. Westenhuber, 143a Toledo, etc., Ry. Co. v. Gilbert, 143a Toledo, etc., R. R. v. Toledo, 91 Toledo, etc., Ry. v. Toledo Elec. St. Ry., 147, 148a, 321, 707 Toledo Ry. Co. v. Fostoria, 82, 100 Toledo Ry. & Light Co. v. Ward, 389 Toledo Ry. & T. Co. v. Meinen, 683, 684 Toledo St. R. R. Co. v. Mammet, 115 Tone v. Columbus 183, 184, 185, 222, 223 Tootle v. Clifton, 46 Tp. Co. v. Mt. Healthy, 765 Traction Co. v. Marriott, 143a Traction Co. V. Traction Co., 142, 143, 707 Transit Company v. Traction Co., 143 Treasurer v. Bank, 515 Tremainsville PI. & Tp. Co. v. Toledo, 125 Trimble v. Bucyrus, 45 Trowbridge v. Hudson, 174, 242 Troy v. Brady, 117, 122 Truesdell v. Combs, 583, 586 Truman v. Walton, 582, 583, 584, 586 Trumbull Co. v. Pennsylvania, 115c Trustees v. Corzilius, 462 Trustees v. O'Meara, 90 Trustees of Southern Ry. v. Haas, 103 Tuall v. Lucas Co., 513 Tucker v. Newark, 151, 344, 374 Turner v. Toledo, 119, 423, 428 Turnpike Co. v. Cincinnati, 26, 93, 123, 765 Turnpike Co. v. Comm'rs, 211 Turnpike Co. v. Kelley, 26, 126 Turpin v. Hagerty, 10, 11, 12 Tyler v. Columbus, 86, 173, 174, 194 Tyler v. Winslow, 479 890 TABLE OF CASES. (References are to pages.) u. U. M. & C. Ry. Co. v. Columbus, 146. Unrig v. Reading, 470 Ulm v. Cincinnati, 181, 183, 212, 265 Ulrich v. Toledo Consol. St. Ry. Co., 50b, 313 Union Co. v. Greene, 182 United States v. Kent, 157, 159 U. S. Trust Co. v. Mineral Ridge, 281 University v. Cincinnati, 490a Upington v. Oviatt, 105, 181, 183, 188, 195, 196, 204, 221, 265, 267, 268, 269, 270, 319, 321, 373a, Urmey v. Wooden, 537 V. Vacation Hotel Alley, In re, 134 Vadakin v. Crilly, 285, 346. Valley Ry. Co. v. Pouchot, 827 Van Buskirk v. Newark, 544 Vandyke v. Cincinnati, 46, 117, 312 Van Hagan, ex parte, 529 Van Wert v. Brown, 804 Veigel v. Lukenheimer, 46, 312 Village of Bradner v. Grundetisch, 544 Village of Pleasant Hill v. Com- missioners, 770 Village v. Kallagher, 117 Volk v. Board of Education, 775, 776 Volk v. Westerville, 543, 804 W. Waddick v. Merrell, 486a, 845 Wagoner v. Loomis, 800 Walcutt v. Columbus, 43, 325, 548 Waldschmidt v. Bowland, 185 Walke v. Bank, 534 Walker v. Cincinnati, 157, 328, 533, 696 Walker, ex parte, 361, 364 Walsh v. Barron, 180, 202 Walsh v. Columbus, 68 Walsh v. Sims, 185, 202, 203, 232a, 266, 269 Walsh v. Sisler, 159 Walter v. Bowling Green, 46, 51 Walton v. Toledo, 55, 77, 423 Walworth v. Collinwood, 745, 748 Wamelink v. Cleveland, 222, 227 Ward v. Barrows, 315 Ward v. M 4 & N. Tp. & Bridge Co., 82 Ward v. State, 581 Ward v. Ward, 260 Warder v. Springfield, 460 Warwick v. State, 328, 502, 503, 531, 533, 534 Wasem v. Cincinnati, 105, 318, 321, 374 Washington v. Kallagher, 48 Wasteney v. Schott, 265 Watson v. Erie R. R., 313, 682 Watterson v. Bradley, 263 Weaver v. Mt. Vernon, 48, 314, 318, 319 Weaver v. State, 806 Webb v. Ohio Gas Fuel Co., 115a, 345 Webber v. Tolodo, 84, 101, 102, 128, 129 Weber v. Bishop, 511 Weber v. Electric Ry. Co., 45b, 143 Wehage v. Cincinnati, 191 Weir v. Day, 344 Welker v. Potter, 194, 196, 2G8, 373a Wellston v. Morgan, 44, 104a, 312, 351, 372, 633, 659 Wells v. State, 583, 806, 809 Wellsville v. O'Connor, 63a, 64, 314, 320 Wenzel v. St. Ry. Co., 113. Werner v. Cincinnati, 118, 121 Westerhaven v. Clive, 504 Westerhaven v. Hoytsville, 236, 240 Western College v. Cleveland, 45, 54, 389 Weston v. Commissioners, 181 Weston v. Hamilton County, 189 Westwood v. Dater, 262 Wewell v. Cincinnati, 205, 250, 255, 267 Wheeler v. Cincinnati, 54, 245, 359, 389 Wheeler v. Gavin, 331, 586 Wheeler v. Zanesville, 54 W. & L. E. R. R. v. McLaughlin, 683 Wheeling Bridge, etc., Co. v. Gil- more, 374 Whipple v. Toledo, 227, 228, 264 Whitbeck v. Minch, 266 Whitcomb v. Springfield, 45, 46, 47 White v. Cincinnati, 210 TABLE OF CASES. 890a (References are to pages.) White v. Kent, 50, 114, 471 White v. State, 529 Whitman v. State, 592 Wightman v. State, 49, 63a Wilder v. Cincinnati, 60, 195, 221, 267, 268 Wilhelm v. Defiance, 117, 121 Willard v. Close, 184 Williams v. Presbyterian Society, 116, 130, 131, 746 Williams v. State, 571 Willyard v. Hamilton, 82, 85 Wilson v. Cincinnati, 175, 184, 189, 203, 205, 214, 247, 254, 255, 265 Wing v. Cleveland, 372, 373, 374 Winslow v. Cincinnati, 116, 124a, 128, 129, 744 A.inton V. Cornish, 827 Wisby v. Bonte, 128, 744 Wise v. Kromberg, 800 Woehler v. Toledo, 5, 327, 480 Wolfe v. Avondale, 191 Wolf v. State, 471 Wood v. Pleasant Ridge, 174, 183, 195, 345, 346 Wood Co. v. Pargillis, 328, 373 Woods v. State, 571 V T ork v. Massie, 479, 528 Wright v. Kennedy Heights, 466 Wright v. Munger, 529 Wright v. Oberlin, 11, 116, 129 Wright v. Thomas, 184, 185 Wyscaver v. Atkinson, 696 Yaple v. Commissioners, 344, 385, 548, 549 Yaryan v. Toledo, 372a, 373, 373a Yeazell v. State, 52 Yost V. Ry. Co., 185, 203, 266 Youmans v. Board of Education, 344 Young v. Mahoning Co., 105 Younglove v. Hackman, 186, 259 Youngstown v. Bonnell, 262 Youngstown v. Moore, 208, 209 Youngstown v. Railroad, 682, 685, 724 Youngstown Township v. Youngs- town, 366 Z. Zanesville v. Auditor, 6, 480 Zanesville v. Crossland, 626, 630 Zanesville v. Fannan, 115, 115a, 117, 119 Zanesville v. Gas Light Co., 657 Zanesville v. Telegraph & Tele- phone Co., 114, 115a, 715 Zeigler v. Ashley, 122 Zumstein v; Coal & Mining Co., 62, 789 Zumstein v. Mullen, 1, 303, 350, 384 INDEX. Abatement ol nuisance by municipality, p. 46 Accounting, see Officers. Acquisition of property by municipality, p. 43, 62 Scope of power, p. 46, n. Actions. See Limitation of Actions and Solicitor. Against municipality, none on quantum meruit, p. 44. n. 4 By municipality, how brought, p. 43, n. 4 Acts authorizing public improvements where work is in progress not affected by new code, p. 481 See Statutes. Additional bonds may be issued for certain improvements heretofore authorized, p. 485 Adjacent and contiguous territory: what is, purposes of annexation, p. 26, n. 1 What is, with respect to annexation of territory on application of a municipal corporation, p. 31, n. 3 Adulteration of food cases — Jurisdiction over, p. 588 Proceedings in, p. 588 Advancement of village to city, P- 4 Adverse possession, against municipality, p. 116, n. 772d Advertisement, of ordinances, resolutions, notices, etc., pp. 317, 320 Rates for legal advertising, p. 828 What constitutes square, p. 829 What is sufficient publication, p. 829 What notice to be published in two newspapers, p. 828 Advertising distributors; license of, p. 78 Ale, beer and porter houses, see Intoxicating Liquors. Alleys; see Streets. Animals, domestic; power of municipality to regulate auction of. p. 49 Power of municipality to regulate running at large of, p. 51 See Pounds. 891 892 index. Annexation of one mnnicipality to another, p. 35 Agreement as to grades, p. 39, n. 1 Certificate of result of election, p. 36 Commissioners appointed by council, p. 36 Detachment of part of village and annexation of such part to city, p. 39 Government of corporation thereafter, p. 38 Ordinance approving report of commissioners, p. 37 Ordinance for, p. 35 Power of municipality thereafter, p. 38 Pre-existing rights and liabilities of corporation, p. 38 Proceedings of council after favorable vote at election, p. 36 Report of commissioners, p. 37 Resolution appointing commissioners, p. 36 Submission of question to vote, p. 35 Taxes on annexed municipality alone, p. 39, n. 1 Territory annexed pending merger of corporations, p. 39, n. 1 Transcript of proceedings, p. 38 Annexation of territory to municipalities, p. 25 Constitutionality of, as affecting liability of lands annexed for prior debts of municipality, p. 26, n. 2 Effect of, p. 26, n. 3 On application of inhabitants, p. 25 amendment of petition, p. 27, n. 2 duties of clerk and council, p. 28 duties of county commissioners with respect to, p. 27 effect of, p. 30 effect of rejecting application, p. 29 injunction against, p. 30 notice of petition to be posted, p. 27, n. 2 ordinance accepting or rejecting application, p. 29 petition for, p. 25 proceedings when application is allowed, p. 29 proceedings where corporation or territory annexed is situated in two counties, p. 31 rights of inhabitants when allowed, p. 30 what is adjacent or contiguous, p. 26, n. 1 when complete, p. 26, n. 3 On application of municipal corporation, p. 31 consent of inhabitants not necessary, p. 35, n. 1 constitutionality of statute, p. 31, n. 4 effect of, p. 26, n. 3 how desire of inhabitants is expressed, p. 31, n. 2 irregularity in proceedings not fatal, p. 35 ordinance for, p. 33 petition to county commissioners, p. 33 proceedings before commissioners, p. 34 proceedings, when corporation or territory is situated in two counties, p. 34 rights of inhabitants within territory annexed, p. 35 taxes on territory annexed, p. 35, n. 1 what is contiguous or adjacent territory, p. 31, n. 3 what territory may be annexed, p. 31, n. 4 Appointments; see Officers and under various boards and officers. Appropriation of property, p. 80 Amount of property taken, p. 82, n. Appeal, p. 100 Application to court, p. 88 Appointment of guardian for infant, p. 95 Assessment to pay compensation, p. 83, n. index. 893 Appropriation of property — Continued. Attorney's fee allowed owner on failure of municipality to take, p. 101 Auditor's certificate that money is in the treasury, not required, p. 174, n. Authority to dismiss proceedings, p. 102, n. Bond for payment of compensation may be given by any person, p. 99 Character of taking after six months, p. 103, n. Collateral attack, p. 83, n. Compensation for what made, p. 92, n. Conclusiveness of award, p. 96, n. 3 Costs how paid, p. 98 Damages caused by improvement, p. 207 Determination of boundary lines in condemnation proceedings final, p. 89, n. 2 Discretion of municipality as to quantity needed, p. 84, n. 9 Dismissal of proceedings, p. 102, n. Distribution of money paid into court, p. 97 Error proceedings, p. 100 right of corporation to possession not affected by, p. 100 Estoppel to claim compensation, p. 83, n. to question validity of proceedings, p. 83, n. Evidence, p. 93, n. Failure to take within six months, p. 101 acceptance of compensation by owner after six months, p. 102, n. no bar to new proceedings, p. 102, n. For street improvements, p. 86. n. 2 Jury fees not taxable as costs, p. 98, n. 2 Land already devoted to public use, p. 82, n. Legal proceedings and assessment of compensation necessary, p. 82, n. Lessee's rights, p. 97, n. 2 Limitation on, for public cemeteries, p. 85 Measure of compensation, p. 92, n. Money in treasury, p. 174, n. Mortgagee's rights, p. 90, n. 3 Municipal property for railway purposes, p. 62 n. Notice of application, p. 90 Notice of resolution, r». 85 sufficiency of, p. 87, n. Offer by corporation to confess judgment, p. 98 effect of, p. 99 Of private sewer, p. 85, n. Order as to payment of award, p. 97 Order of procedure in, p. 87 Ordinance for, p. 85 effect of, p. 87, n. Outside municipality, p. 85 Owner's remedies on failure of municipality to take, p. 101 n. 3 Owner's rights when property taken without appropriation proceed- ings, p. 83, n. Possession, order for, p. 97 when given, p. 95 Power strictly construed, p. 82, n. 2 Power to acquire property by, p. 43 Preliminary hearing, p. 91, n. Proceedings under invalid law, p. 102, n. Proceedings where ownership is in doubt, p. 95 Publication of notice of application, p. 90, n. 4 Purposes authorized, p. 80, 82, n. Railroad tracks, right of way over for street purposes, p. 80, 84, n. 4 Railway company's lands appropriated for public offices, etc., p. 84, n. 6 894 INDEX. Appropriation of property — Continued. Refusal by corporation within six months to take property, p. 102, n. Resolution declaring intent, p. 85 Right to open and close case, p. 95. 96, n. 4 Second appropriation, p. 97, 102, n. Section applicable to cases for damages for change of grade, p. 103, n. Separate trials, p. 92, n. Service of notice of application, p. 90, 90, n. 2 Stay of execution, p. 100 Structure on land appropriated, p. 95 Sufficiency of description in application to court, p. 89, n. 3 Trial on application for, p. 91 Verdict, p. 94, n., 95 in whole or part, p. 96 View of premises, p. 95, 96, n. 2 What use requires compensation, p. 83, n. When right to possession accrues, p. 83, n. What compensation includes, p. 92, n. When compensation payable, p. 101, n. Who entitled to compensation, p. 83, n. Appropriations; p. 43 Semi-annual, order of procedure in; see Taxation. Aqueducts; see Streets. Appropriation of land for, p. 81 Arrests, what officers may make without warrant, p. 554 Art gallery, tax authorized in aid of, p. 492 Assessors; assistants in certain cities, p. 540 Election of, p. 540 In Cincinnati, p. 541 In Cleveland, p. 540 In Portsmouth, p. 541 In Springfield, p. 541 Assessments, p. 179 Abutting property, what is, p. 186, n. 3 Action to collect by county treasurer, p. 265, n. 2 Added territory, p. 271 Adjacent and contiguous property, what is, p. 187, n. Amount properly chargeable, p. 268, n. 3 Apportionment between life tenant and owner of fee, p. 260 Apportionment in partition case, p. 260, n. 1 Assessment and penalty recoverable by suit, p. 264 Auditor's certificate not necessary for street improvement contracts, p. 174, n. Bonds for city's portion of, p. 202 in anticipation of collection, p. 274 By general taxation, p. 188, n. 4 Change of grade, effect of on assessments, p. 206, n. 7 damages for, see Damages to Abutting Property. Change of law pending proceedings, p. 182, n. Cleaning streets, assessments for, p. 231 Collection of, when collected by municipal treasurer, p. 258 how collected, p. 258, 264, 270 installments, p. 195, n. in advance, p. 271 Condition in city's title, p. 189, n. Conditions precedent to, p. 183, n. Construction of laws regarding, p. 182, n. Contesting, p. 183, n. Costs in case of error or defect in proceedings, p. 267 Costs in suit to reduce, p. 268, n. 4 INDEX. 895 Assessments. — Continued. Costs of appropriation cannot be assessed, p. 262, n. Contiguous and adjacent property, what is, p. 187, n. Corner lots, p. 190, n. 9 Damage to abutting property cannot be assessed, p. 262, n. 1 ; 230 n. 3 Defects in proceedings cured, p. 267 Defects not cured, p. 268, n. 2 Enforcement of lien, p. 266 Estoppel, extent of, p. 185, n. to contest, p. 183, n. to deny benefits, p. 203, n. 2 to deny excess of assessment, p. 224, n., 228 n. to deny municipality's title, p. 189, n. under unconstitutional statutes, p. 185 n. what persons estopped, p. 185, n. Excess or deficiency in, p. 271 Exemption from, p. 187, n. Expense of changing established grades, p. 230, 773 Foot frontage, p. 190, n. 9 Injunction against, p. 183, n. In proportion to benefits, p. 190, n. 8 benefits determined, p. 202, n. 2 concurrence of two-thirds of council necessary in appointing equal- izing board, p. 262 equalization of assessments, p. 235 hearing of assessments by benefits, appointing of estimating board, p. 233 notice of assessment, how published, p. 260 objections to assessment to be filed, p. 261 order of procedure, p. 234 Installments of assessments, p. 194 Intersections, p. 201 Interest on bonds, p. 204, n. 3 Judgment for, p. 265, n. 2 Jurisdiction of courts in cases of, p. 270 Lands not subdivided, p. 192 Lien of, p. 263, 264, n. 3 as to non-resident owners, p. 267 duration of, p. 270 Limitation of assessments, p. 201 for separate improvements, p. 203, n. 3 reassessments, p. 202 sewer assessments, p. 201 sidewalk and sewer assessments, p. 203, n. 3 sidewalk assessments, p. 240, n. 3 to special benefits, p. 202, n. 2 Limitation on suit, p. 265, n. 2 Local drainage, p. 201, 204, n. 6 conclusiveness of council's determination as to drainage, p. 206, n. by natural drainage, p. 205, n. by private sewer, p. 205, n. surface drainage, p. 206, n. opinion of council as to sufficiency of, p. 204, n. 5 unimproved property, p. 206, n. Lots and lands, how described,- p. 213 Methods of, p. 180 Miscellaneous provisions, p. 258, 773 Municipality's portion of cost, p. 201 Municipality may issue bonds to pay for its share of cost, p. 202 Nature of, p. 180, n. 2 Notice of assessment by benefits, how published, p. 260 of improvement resolution, p. 198 896 . index. Assessments — Continued. Notice — of ordinance for sprinkling, cleaning, etc., p. 232 New provisions of code as to collection of installments, p. 270, n. 3 No set-off allowable, p. 265, n. 2 Notes in anticipation of assessments, p. 275 On municipal property, p. 229 On owner of life estate, p. 260 On school property, p. 230, n. 2 Order of procedure in street improvements, p. 196 Ordinance to assess, p. 215 to proceed with improvement, p. 213, 214 to provide for sprinkling, cleaning, etc., of streets, p. 232 Ordinances to remain in force notwithstanding change of municipality j p. 182, n. Payment to contractor, p. 259, 263, 264, n. 4 Penalty for non-payment, p. 264, 265, n. 1 Payment of part not an estoppel, p. 184, n. Percentage of tax value, p. 180, 190, n. 7 ; p. 203, n. 3 Permitting improvement without objection, p. 184, n. Personal judgment, p. 265, n. 2 Petition for improvement, p. 222, 226 assessments cannot exceed value cf property, p. 228, n. authority to sign, p. 227 by majority of foot frontage, p. 222 how majority determined, p. 222, n. 2 by three-fourths in interest of abutting property, p. 226 how three-fourths in interest determined, p. 226, n. 2 when less than three-fourths sign, p. 227, n. burden of proof as to signatures, p. 223, n., 228, n. change of plan, p. 223, n., 228, n. collateral attack on council's finding, as to number of signatures, p. 222, n. 2 conditional signing, p. 227, n. construction of petition, p. 222, n. 2 estoppel by signing petition, p. 185, n., p. 224, n., p. 228, n- to deny frontage, p. 227, n. jurisdiction of city acquired, when, p. 228 resolution awarding contract, p. 224, n. time of ownership, p. 223, n. when petition not necessary, p. 224, n. withdrawal of signature, p. 223, n. Placing on tax duplicate, p. 270, n. 1 Plans, specifications and profiles to be prepared, p. 193 Planting shade trees, assessments for, p. 231 Pleading, practice and evidence, p. 266, n. Power of assessment, p. 180, n. 2 Power to levy and collect, p. 80 Procedure, limited, p. 194, n. 2 order of, in street improvements, generally, p. 196 in sewer improvements, p. 246 in sidewalk improvements, p. 236 where assessment by benefit, p. 234 Proceedings, liberally construed to secure completion of work, p, 273 strictly construed in favor of property owner, p. 273 upon re-assessment, p. 269 Property assessed, p. 186, n. 3 in annexed territory, p. 188, n. 3 of municipality, p. 229 Publication of improvement resolution, p. 194, 196, n. 6 Purposes for which assessments levied, p. 179, 188, n. 6 Re-assessment, p. 269 INDEX. 897 Assessments — Continued. Receiving compensation for land, taken not estoppel to contest assess- ment, p. 185, n. Recovery back, p. 266, n. Recovery of penalty, p. 270, n. 2 Release of lien of, p. 263 Repair, of sewers, ditches, etc., for, p. 774 of streets on petition, p. 226 Resolution of necessity, p. 193 character of, p. 194, n. 3 due passage jurisdictional, p. 194, n. 3 notice of, p. 198 effect of want of, p. 199, n. 2 officer's return prima facie evidence of service, p. 200, n. 5 " owner " construed, p. 200, n. 3 service of, p. 199, n. 2 sufficiency of, p. 199, n. 2 who must be notified, p. 200, n. 4 object of, page 195, n. publication of, p. 194 what defects in, cured by curative statute, p. 267 Right to pay cash, p. 195, n. Second assessment only invalid, where two together exceed limitation, p. 204, n. 3 Second establishment of grade, p. 230 Sewer assessments, p. 244 bonds for, p. 253 by districts, p. 251 corner lot doctrine, p. 254, n. costs and expenses, what included, p. 254, n. defects in proceedings, p. 252, n. 2; p. 254, n. defenses to, p. 254, n. joint sewers, by two or more municipalities, p. 255 limitation on, p. 201, 254, n. local drainage, p. 204, n. 6 main sewers, p. 204, n. ordinance for assessment, p. 253 for construction, p. 251 resolution of necessity, p. 250 notice of,^p. 221, 250 where constructed without general plan, p. 255 Sidewalks, curbing and gutters, assessments for, p. 236 after notice to property owner to construct or repair, p. 239 bonds for, p. 241 bonds in anticipation of, p. 241 collection of, p. 240 corner lot doctrine, p. 242, n. 3 limitation on, p. 240, n. 3 notice of resolution to construct, p. 237 order of procedure in, p. 236 ordinance for, p. 242, 243 how passed, p. 242, n. 4 resolution to construct, p. 237 rule of, p. 241 Sidewalk assessment in villages, p. 774a Silence not an estoppel to contest, p. 184, n. Special, levy and collection, p. 80 Sprinkling streets, assessment for, p. 231, 774 Street between two municipalities, p. 190, n. 6 Title to property improved acquired after improvement, p. 189, n. Unpaid assessments to be certified to auditor, p. 270 898 INDEX. Assessments — Continued. Uniformity necessary, p. 181, n. Validity, in general, p. 18 x, n. of certain assessments already made, p. 221 prima facie valid, p. 259, n. 3 What costs may be assessed, p. 263, n. What costs may not be assessed, p. 262, 263 What included in cost of improvement, p. 262 What irregularities cured, p. 267 When certified to county auditor, p. 258 When new action to enforce may be commenced, p. 271 When payable, p. 263 Who are owners, p. 264, n. 2 Without title in municipality, p. 188, n. 6 Auctions, p. 49. Power of municipality to regulate, p. 49, 50 Auditor in cities, p. 333. Annual report of, p. 336 Annual statement of receipts and expenditures, p. 335 publication of, p. 335, 336 Certificate of funds on hand, when required, p. 172 Duties, p. 333, 334 Election, p. 333 Liability for wrongful vouchers, p. 334, 335 Qualification, p. 333 Seal, p. 335 Statement of balances, monthly, p. 171 Statements of receipts and expenditures, made to, p. 334 Term, p. 333 To certify to election of certain officers, p. 336 To countersign treasurer's receipts, p. 334 Transfer of funds by, p. 547 effect of, p. 547 Uniform accounting by, p. 334, 560 Automatic package carrier companies, power to use streets, p. 715 Avenue companies, p. 765 Condemnation of roads by municipality, p. 766 Issue and sale of bonds for condemnation, p. 767 Municipality may surrender roads to, p. 766 Avenues; see Streets. B Ballplayer, power of municipality over, p. 64 Bathhouses, appropriation of land for, p. 81 Power of municipality to establish and maintain, p. 61 Baths, free public, power to issue bonds for, p. 288 Power of municipality to establish, p. 61 Beal law, p. 47, 803 Beggars, power of municipality over, p. 64 Bill posters, license of, by municipality, p. 77 Constitutionality of license, p. 53, n. 2 Billboards, power of municipality to regulate erection of, p. 52 Prohibition of by municipality, p. 53, n. 2 Regulation of material used valid, p. 53, n. 2 Billiard tables, regulation of by municipality, p. 45 Bills Of exceptions, before mayor or police judge, p. 592 Signing, filling and transmission of, p. 592 INDEX. 899 Board of health, p. 417 Abatement of nuisances by, p. 425 proceeding when order of board is neglected, p. 426 Abolition of in certain villages, p. 595 Action against physician for failure to report contagious disease, p. 428, n/l Admission of persons with contagious disease into public institutions, p. 433 Application of quarantine rules, p. 434 Appointment of health officer, clerk, etc., p. 421a Appointment of members, p. 417 Bond issue for hospital for infectious diseases, p. 431 Borrowing money in time of epidemic, p. 435 Character of, p. 419, n. Cities of the first grade of the second class; garbage crematories, p. 593 Cities of the second grade of the first class, sanitary police, p. 594 Clerk of, duties, p. 422 Composition, p. 417 Contagious disease in public institutions, p. 433 Dairies, inspection of, p. 436 Defective ordinance establishing board, p. 418, n. 3 Destruction of infected property, p. 429 Disinfection of house in which person has been ill with contagious disease, p. 429 Disposal of bodies of persons dying of contagious diseases, p. 432 Duty upon receipt of notice of infectious disease, p. 427 Erection of temporary buildings and hospitals, p. 434 Establishment of board, p. 417 Garbage collection and removal of, p. 439 funds for, p. 439 Garbage crematory in Columbus, p. 593 Hospital for infectious diseases, p. 431 House owner to give notice of disease to board of health, p. 427 Ice for domestic purposes, p. 595 penalty for violating regulation as to sale of, p. 595 prohibition of sale of, p. 595 regulation of sale of, p. 594 Inspection of dairies, etc., p. 436 Limitation on quarantine power, p. 421 Maintenance of persons confined in quarantine houses, p. 430 Mayor president of, p. 417 Meetings of, p. 422 Members of, term of, p. 421 Municipal liability for damages from negligence of. p. 423, n. 1 Old employes to retain positions, p. 421 Orders and regulations of, p. 423 Penalty for appearance in public places of persons suffering with contagious diseases, p. 429 for failure to dispose of infected property, p. 429 for violating order of, p. 423 by corporations, p. 424 Persons in quarantine houses not to attend public gathering, p. 431 Physician to give notice of infectious disease, p. 427 President pro tem., p. 422 Prosecution for violations of orders, p. 424 Quarantine hospitals, p. 432 Quarantine of persons having, or having been exposed to contagious disease, p. 428 900 INDEX. Board Of health — Continued. Quarantine regulation, p. 419 Quorum, p. 417 Registration of births and deaths, p. 437 * book for, p. 422 Registration of infectious and contagious diseases, p. 422 Relation to schools, p. 434 Removal of corpse, p. 437 Sanitary board, appointment of, p. 440 cities of the second class, fourth grade, in, p. 598 advertisement for bids for contracts, p. 599 bonds issued by, p. 601 change of watercourses, p. 600 claim for damages for change of watercourses, p. 600 disbursement of money by, p. 600 duties of, etc., p. 598 establishment of, p. 598 plans for disposal of garbage, p. 599 plans for the disposal of garbage, approval of plans, p. 599 powers of, p. 599 reports of, p. 600 sanitary extension, p. 602 compensation and powers of, p. 440 constitution of, p. 440 Sanitary fund, p. 440 Sanitary plant, p. 438 appointment of sanitary board, p. 597 condemnation of lands for, p. 596 compensation and power of sanitary board, p. 597 constitution of sanitary board, p. 597 defined, p. 596 estimates for, p. 596 funds for, p. 596 levy for sanitary funds, p. 597 Sanitary police in Cleveland, p. 594 Sanitary police pension fund, p. 401 beneficiu-ries of fund, p. 404 loard successor of preceding board, p. 404 custodian of fund, p. 403 investment of fund, p. 4G4 trustees of, p. 401 board, how chosen, p. 401 term of, p. 402 Sanitary report, p. 441 Scavengers, employment of, p. 438 State board, appointment of health officer in certain cases, p. 417 approval of appointment of officer in villages, p. 417 conferences with health officers, p. 604a Statutes relating to, generally, p. 418, n. 1. . Township board, p. 593 Unlawful deposit of offal, etc., in streets, p. 604a Board of public safety, se © Public Safety, Directors of. Board of public service, see Public Service, Directors of. Board of supervision in tne erection of public buildings authorized, p. 481 Not affected by new code, p. 481 Bonds (Municipal.) Additional bonds to complete certain improvements, p. 485 Aggregate amount of bonded indebtedness at any time, p. 289, 294 Aggregate bonded indebtedness not to include bond issues already authorized, p. 294 INDEX. 901 Bonds — Continued. Bidders' compliance with advertisement, p. 284, n. 3 Construction of statutes for issue of, p. 290, n. 1 Coupons, p. 282 Deficiency bonds, p. 286 Effect of non- recital of purpose, p. 281, n. 2 Estoppel by recitals, p. 278, n. 2, 281, n. 2 Exchange coupon bonds for registered bonds, p. 302 For certain improvements, heretofore authorized, to remain valid, p. 485 For sewerage purposes, p. 282 Form and requisites of, p. 282 Highest bidder for, p. 284, n. 3 In anticipation of assessments, p. 274 injunction against issue, p. 275, n. 4 sewer assessments, p. 253 validity of bonds, p. 275, n. 4 when sold, p. 285, n. 4 Interest coupons, p. 282 Limit of issue by submission to popular vote, p. 290, 294 Limit of authority in any one year, p. 289 Limitation, when not applicable, p. 292 Limitation on deficiency bonds, p. 286 Longworth bond act, p. 287 constitutionality of, p. 290, n, 1 Made payable outside the state, p. 278, n. 2 Manner of issue determined by council, p. 290, n. 4 Must be explicit on face, p. 281 Not to be sold for less than par value, p. 283 Notice of sale of, p. 283 Number of votes necessary on submission to popular vote, p. 293 Private sale of, p. 283 Proceedings for issue of, p. 287 Procedure on submission to popular vote, p. 292 Purpose for which issued, p. 287 Purchase of for value without notice, p. 277, n. Recitals, p. 281 Recital of purpose of issue, p. 281 Refunding bonds, p. 276 not to increase indebtedness, p. 278, n. 3 purpose of statutes, p. 276, n. 2 validity of in general, p. 277, n. Refunding of corporate indebtedness, p. 283 Registration of, p. 286 Resolution or ordinance declaring necessity of issue, p. 289, 290, n. 4 Right to reject bids, p. 284, n. 3 Sale of, p. 283 advertisement, sufficiency of, p. 284, n. 4 for less than par, effect of, p. 284, n. 2 Sinking fund refunding bonds, p. 285, n. 4, 301 Sold to highest bidder, p. 283 Submission to one vote of several improvements, p. 290, n. Sufficiency of recital of purpose, p. 281, n. 2 Tax levied for payment of, p. 292 To be offered to Sinking Fund Trustees, p. 282 To extend time of payment of certain indebtedness, p. 276 Validity of in general, p. 277, n. Vote of council necessary for, p. 288 Vote on deficiency bonds, p. 286 When recital of purpose of issue required, p. 281, n. 2 Bonds (Official), see under Officers. 902 INDEX. Borrowing money, p. 274 Bonds; see Bonds. Certificate of indebtedness, p. 274 Implied power of, p. 275, n. In anticipation of general revenue fund, p. 274 limitation, p. 274 Limitation on loans, p. 274 Notes in anticipation of special assessments, p. 275 Power of, p. 80, 274 Bounties, p. 639 Bowling alleys ; effect of forbidding, p. 45, n. 1 Regulation of by municipality, p. 45 Brannock law, p. 809 Bridges- Bridge companies, p. 7G2 Bridge fund, payments to certain municipalities, p. 757, 758 Commissioners must build in certain municipalities, p. 756 Construction and repair of by county commissioners, p. 755 Control of by council, p. 112, 112, n. Levy of taxes for, p. 756, 757, 758 Liability for defects in, p. 118, n. Power to appropriate property for, p. 81 Power to establish, etc., p. 56 Power to issue bonds for construction or repair of, p. 289 Briers and Canada thistles, p. 830 Buildings, see Public Buildings. Alterations in and additions to; power of municipality to regulate, p. 52 Inspection of, p. 739 appeal of owner on refusal of certificate, p. 740 certificate as to examination, p. 739 dispensed with in certain cases, p. 741 duties of factory men, hotel keepers, etc., as to fire escapes, p. 742 duties of inspector, p. 742, n. 1 duty of mayor to require fire escapes, p. 743 examination of public hall as to safety in case of fire, p. 739 discretion of inspector not reviewable by court, p. 53, n. 4 inspector to have access to buildings, p. 742 mayor to examine certain buildings annually, p. 743 penalty against owner, p. 740 power of municipality to provide, p. 52 re-examination in case change of buildings, p. 739 when inspections to be made, p. 741 Numbering of, power of municipality to regulate, p. 52 Power of municipality to regulate erection of, p. 52 Prevention of loss of life in halls, etc., p. 743, a. Repair of, power of municipality to regulate, p. 52 Burglars; power of municipality over, p. 64 Burns law, p. 173, n. l C Canada thistles, p. 830 Canals, appropriation of land for, p. 81 Effect of grant to city, p. 58, n. 1 Power of municipality over, p. 57 Canal wall; assessment for, p. 58, n. 1 INDEX. 90 v Cemeteries, p. 67, 724 Appropriation of land for, by municipality, p. 81 By-laws governing, p. 69 Council may provide, p. 67 Duties of trustees, p. 68 Enlargement of grounds, p. 72 Improvement of, p. 727 Limitation on appropriation for, p. 85 Managing board, p. 68, n. 1 Municipal liability for damages in public, p. 68, n. 2 Permanent fund for care of lots, p. 70 Police power of council over, p. 67 Power of council as to public cemeteries, p. 728 to provide, p. 55, 67 to regulate, p. 55 Power to issue bonds for, p. 288 Purchase of land, p. 727 Record of proceedings, p. 71 Sale of lots, p. 69 Suits on behalf of, p. 69 Transfer of, to private company, p. 727 Union of cities and townships, for cemetery purposes, p. 72 appropriation of property, p. 724, 727 control of cemetery, p. 725 election of trustees, p. 72 managing board, p. 73, n. 1 ordinances as to, how enforced, p. 728 organization of board, p. 73 title to cemetery, p. 724 Villages, appointment of board in, p. 731 Within municipality; title to, p. 67 Census; power of municipality to take, p. 63 Certain acts, not altered, amended or repealed by new code, p. 481 Certificate, of indebtedness; see Borrowing Money. Certificate Of funds on hand, by auditor or clerk, when required, p. 171 Change of grade, damages for ; see Damages to Abutting Property. Change of name of village or hamlet, p. 24, 838 Of street, p. 131 Charitable and reformatory institutions, - Board of State Charities, powers, concerning, p. 606 Children's homes, see Children's Homes. Control of, p. 351 County commissioners may aid certain institutions, p. 609 County commissioners may visit, p. 605 County visitors, 605 Governor may order investigation, p. 606 Hospitals, see Hospitals. Homes for friendless, see Homes for Friendless. Houses of refuge, see Houses of Refuge. Infirmaries, see Infirmaries. Morgues, see Morgues. Penalty for denying or obstructing investigation, p. 605 • Report of county visitors, p. 606 Visitation by county commissioners, p. 605 Workhouses, see Workhouses. Chattel mortgages, depository for in case of merger of township in municipality, p. 7, n. 904 INDEX. Chief officers Of Cities; see Officers. Children's homes, in cities of first and second class, p. 636 Counties and cities may aid, p. 609 Management of, p. 351 Cigarette tax, distribution, p. 834 Cincinnati Southern Railroad, p. 696 Cincinnati water works, law not affected by new code, p. 481 See Water Works. Cities, list of, under Secretary of State's proclamation, p. 849 Organization of, p. 303 Population of municipalities necessary to constitute, p. 1 City hall commission, authorized, p. 482 Civil engineer; duties and compensation, p. 550 Classification, of municipalities, p. 1 Former, p. 1, n. 1 Grades and classes under new code, p. 31, n. 6 Judicial notice of, p. 7, 15 What permissible, p. 3, n. Clerk; certificate as to election of certain officers, record of by cleik of court, p. 544 Council, p. 310 term, p. 310 as city clerk, p. 310 Duties of respecting annexation of territory to municipality on its application, p. 28 In cities, p. 310 In villages, p. 451 correction of journal, p. 452, n. 2 duties, p. 451 duty in case of annexation of territory, p. 28 election of, p. 451 penalty to give certain certificates, p. 454 qualifications of, p. 451 report to auditor of state, p. 453 seal, p. 451, 452, n. 3 shall certify to court election of certain officers, p. 453 statement of receipts and expenditures, p. 452 term of, p. 451 to deliver books, etc., to city auditor, p. 455 to perform duties devolved upon auditors in cities, p. 451, 454 Of police court, see Police Court. Cleveland city hall commission, p. 484, 732; see Public Buildings. Cleveland group plan for public buildings, p. 484, 737 ; see Public Buildings. Cleveland market house commission, p. 484, 722; see Markets. Coal; power of municipality to regulate weighing and measurement of r p. 52 Collection of garbage, etc.; under Board of Health. INDEX. 905 Concerts, public; power of municipality to maintain, p. 61 Condemnation; see Appropriation of Property. Conduits; for hot water heating, p. 55 for telephone, etc., wires, p. 716, 718 restoration of streets, bond for, p. 720 Constables, in case of merger of township in municipality, p. 6 Constitutional Law; annexation of territory as affecting lands annexed for prior debts of municipality, p. 26, n. 2 Annexation of territory on application of municipal corporation, p. 31, n. Code, constitutionality of, p. 1, n. 1 De facto governments, constitutionality of. p. 480, n. Effect of unconstitutionality of portion of new code, p. 515, 515, n. 1 Municipality receiving trust funds for educational purposes, p. 486a Contagious, malignant and infectious diseases, power of municipal- ity to provide against, p. 55 Contiguous Or adjacent territory; what is with respect to annexation of territory on application of municipal corporation, p. 26, n. 1, 31, n. 3 Contingent fund; see Taxation. Contracts, by Board of Public Service ; see under Public Service, Direct- ors of. By officers, see under Officers. Council restricted as to, p. 172, 539b Certificate of auditor of money in treasury necessary, p. 172 not required as to funds not raised by taxation, p. 173, n. 2 Employment, auditor's certificate required, p. 174, n. Estoppel of municipality, p. 372 Exception to requirement of auditor's certificate, p. 173 For certain improvements heretofore authorized, to remain valid, p. 485 For public improvements, see Improvements. Officers interested in, see under Officers. Ps'd. for b v n ssessni pT it or bonds j audito r "s ot*TfiHofkt^ r\nt npr.es- sary for, p. 174, n. Patented articles not to be required, p. 177 Separate bids for work and materials in certain cases, p. 380 Council; In cities, p. 303 abandonment of cemeteries, p. 730 annexation of municipality or additional territory, duties of council, see Annexation. auditor may be elected clerk, p. 308, n. change of boundary of wards, p. 310, n. clerk of, p. 307 contracts authorized by council to be entered into by proper officers, p. 316 distinction between ordinances and resolutions, p. 313, n. duties of new council in organizing cities, p. 306, n. effect of member holding other office, p. 310, n. 2 effect of vacancy as to number of members constituting ma- jority, p. 310, n. expulsion of members, p. 311 fix salaries and bonds of municipal officers, p. 512 how elected, p. 303 journal, p. 311 judge of election and qualification of members, p. 309 lighting of railways and bridges, p. 674 limitations of power strictly construed, p. 312, n. 2 majority, p. 315, n. 7 900 INDEX. Council — Continued. In cities — members, holding until successor qualifies, p. 303, 304, n. 3 how elected, p. 303, 305 to hold no other office, p. 309 mode of election of officers, p. 307, n. 2 not to be interested in contract with city, p. 309, 310, n. 3 not to hold other office, p. 309 number, compensation and bond of officers, fixed by, p. 512 number of members, p. 303, 304, n. officers of, p. 307 ordinances; see Ordinances and Resolutions. powers of council, p. 316 to provide public depositaries for money, p. 338 president of, p. 332 not a member constituting quorum, p. 333, n. 2 pro tern,., p. 333 provision as to number of members construed, p. 303, n. 2 provision for overseers of the poor, p. 633 quorum, p. 308 qualification of members, p. 309 removal of heads of departments and officers upon charges filed by mayor, p. 508 rules, p. 311 required to divide city into wards, p. 305 salary of members, p. 325 salaries of municipal officers, clerks and employes fixed by, p. 325 special meetings, p. 308, 316 suspension of heads of departments and officers pending hear- ing, p. 509 term of members, p. 303 to determine the number of members of Board of Public Serv- ice, and Board of Public Safety, p. 306, 350, 383 vacancies in, p. 309 term of appointee to fill, p. 310, n. 5 when exists, p. 310, n. 5 wards to be defined by Board of Public Service on failure of Council to act, p. 305 In villages, p. 444 compensation of, p. 445 compensation and bonds of municipal officers fixed by, p. 444, 445 contracts made by, p. 446 executed by mayor and clerk in the name of the village, p. 446 election of members, p. 444 employes for villages provided by, p. 445 employes, removal of, by, p. 445 management and control of finances and property of corpora- tion, p. 446 ordinances; see Ordinances and Resolutions. platting streets, p. 456 powers of, p. 445 president pro tern., p. 445 salaries fixed by, not to be altered during term of office, p. 444 term of members, p. 444 to provide for care of parks and institutions, p. 456 vacancy, how filled, p. 445, 449, n. 7 veto power, none in mayor, p. 445 Member of not to be interested in contract, p. 172 Powers conferred on municipality, exercised by, p. 327 Power as to public peace, p. 64 to license, p. 73 INDEX. 907 Council — Continued. Power — to provide cemeteries, p. 67, 728 to lay gas pipes, p. 659 to require filling of lots, p. 65 to regulate ferries, p. 79 to fix rate of transportation, p. 79 to regulate width of tires, p. 79 Restricted as to contracts, scope of restriction, p. 172, 539b Territory annexed to municipality on application of inhabitants, duties of council, p. 28 Voting precincts established, p. 539b County commissioners; duties with respect to annexation of territory, p. 27 County ditches in municipal limits, see under Ditches and Drains. County infirmary, directors, in case of merger of township in munici- pality, p. 7, n. County recorder ; duties of respecting annexation of territory to munici- pality on application of its inhabitants, p. 29 To make record of proceedings in annexation of one municipality to another ; see Annexation of Territory, etc. County treasurer; advanced payments to municipal authorities, p. 546 Having charge of city or school funds, p. 541 Payments to municipal treasurer, p. 544, 545, 546 Crematories. Appropriation of land for, p. 81 Power of municipality to provide public, p. 55 Power, to issue bonds for, p. 288 to regulate, p. 55 Criminal jurisdiction of village over pollution of water, p. 468 Cruelty to children and animals ; affidavit in such cases, p. 589 Agents to enforce law, appointment, p. 841a Attorney employed to prosecute, p. 589 Fine in such cases, p. 589 Jurisdiction in such cases, p. 589, 591 New trial, p. 590 Prosecutions for, p. 589 Waiver of jury in such cases, p. 590, n. 2 Culverts; power to issue bonds for, p. 289 Curative provisions — As to assessments, p. 221, 267 Respecting certain county instruments and proceedings, p. 835 Saving of rights, ordinances, etc., before new code, p. 477 Street railway grants, p. 156 Curbing, construction, repair, and assessment, p. 236 See Sidewalks. D Damages for personal injuries; claims need not be filed before suit, p. 273, n. 1 Damages to abutting property from street improvements. Application for a jury, p. 217 Assessment of, p. 217 Assessments on completion of improvement, p. 272 Attorney's fees allowed on failure to pay award, p. 218, n. 4 Basis of recovery, p. 208, n. Claim cannot be increased, p. 208, n. 908 INDEX. Damages to abutting property — Continued. Claims — to be filed sixty days before suit is begun, p. 272 Constitutionality of statute, p. 207, n. 1 Damages, cannot be included in assessment, p. 211, n. included in dedication or appropriation, p. 211, n. Deferring inquiry until after improvement constitutional, p. 213 Determination of council to proceed with improvement, p. 213 Effect of failure to file claim, p. 208, n. Effect of sale of property, p. 207 Establishment of an unreasonable grade, p. 209, n. Estoppel to deny filing of claim, p. 218, n. 4 Injunction, p. 211, n. Inquiry into, p. 217 Jurisdiction of probate court to assess, p. 217, n. 2 Lands not abutting on improvement, p. 207, n. 3 Measure of damages, p. 210, n. Ordinance 'to proceed, p. 213 Owner not allowed damages cannot enjoin improvement, p. 220, n. 2 Owner of unimproved lot cannot recover, p. 210, n. Property owner entitled to interest, p. 210 Proceedings of jury, p. 271 Recovery limited to amount claimed, p. 208, n. Waiver of claims, p. 207 What claims must contain, p. 207 What is a reasonable grade, p. 210, n. What is an improved lot, p. 210, n. What is a change of grade, p. 209, n. When damages assessed must be paid, p. 218, n. 4 When damages payable, p. 210 When filing claim unnecessary, p. 208, n. Where no notice received suit may be brought, p. 273, n. 1 Who may claim damages, p. 207, n. 2. Deaths, registration of, see Board of Health. Dedication of streets; see under Streets. Deed by municipal corporation; see under Property. Definitions of certain words, p. 827 Department of public safety; see Public Safety, Directors of. Department of public service; see Public Service, Directors of. Department of purchase, construction and repair, p. 63 b. Destroyed records ; see under Plats. Detachment Of territory from municipal corporations, p. 25, 40 Ordinance for, p. 40 Petition for, p. 40 Proceedings of county commissioners for, p. 40 Record of, p. 40 Unplatted farm lands, how detached, p. 41 decree for, p. 41 petition for detachment, p. 41 proceedings under petition for, p. 41 Devise; power of municipality to receive, p. 43 Directors of public safety; see Public Safety, Directors of. Directors of public service ; see Public Service, Directors of. Disorderly assemblages ; power of municipality to prevent, p. 44 INDEX. 909 Ditches and Drains — Appropriation of lands for, p. 81 County ditches in municipal limits, p. 769 Power of municipality over, p. 57 Dockage; regulation of by municipality, p. 56 Docks; power of municipality to establish, etc., p. 56 Power of municipality over, p. 57 Dogs; power of municipality to regulate running at large of, p. 51 Dog tax; power of municipality to impose, p. 51, n. 2 Draining and filling Of lots by municipality at owner's expense, p. 67 Driving fast; power of municipality to regulate, p. 50 Educational purposes, gifts in trust for, p. 844 Elections. Officers of municipalities, see under Officers. Special election not to be held unless provided by act, p. 845 Upon question of incorporation of village on lands not platted, p. 17 Upon question of bond issue, p. 292 Upon question of tax levy, p. 159 Upon question of local option, p. 804 Upon question of residence district option, p. 809 Upon question of improving natural gas plant, p. 666 Upon question of drilling oil or gas well, p. 668 Upon question of annexation of one municipality to another, p. 35 Voting on submitted questions, p. 845 Electrical appliances; power of municipality to regulate the construc- tion of. p. 52 Electric light — Appropriation of property for electric light plants, p. 81 Contract with private company for supplying, p. 665 certificate of auditor not required for, p. 173 restrictions on, p. 665 scope of power, p. 665, n. 1 Lease of plant from private company by municipality, p. 173 certificate of auditor not required, p. 173 Municipal plant, appropriation of property for, p. 81 management of, p. 351 power to establish and maintain, p. 54 power to issue bonds for, p. 288 power to purchase or lease lands for, p. 54 Private company, p. 716 may supply both gas and electricity, p. 669. powers of company, p. 717 regulation of price of electric light, p. 656 right to occupy streets, how acquired, p. 715 subject to provisions applicable to magnetic telegraph companies, ' p. 715 subways for wires in Cincinnati, p. 718 validity of prior contracts, p. 717 Elevators; power of municipality to regulate construction of, p. 52 Emergencies, payment of obligation arising from, p. 168, 169, n. 6 Power to issue bonds for, p. 288 Eminent domain; see Appropriation of Property. 910 INDEX. Equalization; see Taxation. Excavations; see Injuries From Excavations. Exceptions; see Bills of Exceptions Execution against municipal property, p. 62 n. Exemptions from, p. 62 n. Exhibitions ; license of, p. 73 Explosives; no municipal power to declare forfeiture of, p. 51, n. 1 Power of municipality to regulate transportation, keeping and sale of, p. 51 Extending Or enlarging building or other improvement; power to issue bonds for, p. 288 Farm schools; appropriation of land for, p. 81 Cleveland, p. 59, n. Power of municipality to establish, p. 59 Fees, of officers, see under various Officers. To be paid into the city treasury, p. 326 Fences; power of municipality to regulate erection of, p. 52 Femes; power of council to establish, regulate and license, p. 79 Power of municipality to license, p. 57 Finance; see Borrowing Money, Bonds, and Sinking Fund. Fines and imprisonment, p. 590 Constitutionality of commitment in default of payment, p. 591, n. 1 How fines, etc., recovered, p. 590 Imprisonment in county jail may be prohibited, p. 591 Imprisonment, where to be made, p. 591 Limitation of fines imposed by municipality, p. 63, 63a, n. Suits for recovery of, p. 590 Fire department: In general: bonds for, p. 289 combustible materials, removal of may be ordered by state marshal or chief of department, p. 554 fire engineer, duties and compensation, p. 550 appeal from order, p. 554. right of officers to enter buildings, p. 554 investigation of fires by state marshal or chief of fire depart- ment, p. 554 liability for negligence in, p. 389, n. 1 pension fund in, p. 392 beneficiaries of fund, p. 396 board, how chosen, p. 393 successor to similar boards now existing, p. 396 creation of fund, p. 394 custodian of fund, p. 396 investment of fund, p. 396 officers of board, p. 394 rules and regulations, p. 396 term of members of board, vacancy, p. 393 INDEX. 911 Fire department — Continued. In general: — trustees of, p. 392 power of municipality over, p. 53 power to erect buildings for, p. 53 to organize and maintain, p. 53 to purchase and hold apparatus for, p. 53 In cities, p. 387 appointment and removal of officers, see Merit System appointment of chief, p. 388 board of public safety, manages, p. 385 chief of fire department, p. 387 powers of, p. 389 suspension of, p. 390 classification of service in, p. 391 composition of, p. 388 contracts relative to, p. 385, 391 emergency firemen, p. 387 general duties of, p. 389 management and control of department, p. 385, 388 merit system in, see Merit System officers and employes in, appointment and removal, see Merit System. relief of members, out of fire funds., p. 392 In villages: p. 472 additional tax for, p. 786 appointment of firemen, p. 472 chief of, p. 472 duties of, p. 475 firemen provided by council, p. 472 fire chief, p. 472 appointment, p. 472 duties, p. 475 qualifications, p. 472 liability for negligence in, p. 473, n. powers of fire chief, p. 475 organization of, p. 472 purchase of supplies by council, p. 473 regulation of, by council, p. 472 of erection of structures, p. 473 Fire engineer; duties and compensation, p. 550 Fire escapes ; power of municipality to regulate construction of, p. 52 Fire ; no municipal liability for, resulting from failure to enforce ordinance, p. 51, n. 1 Flags on buildings, p. 835 Forms — Advertisement for bids, by board of public service, p. 376 , for lease of real estate, p. 107 for sale of real estate, p. 107 for street railway grant, p. 155 Affidavit, of justification of surety on contractor's bond, p. 380 of circulation of German newspaper, p. 322 Annexation commissioners, ordinance approving report, p. 37 resolution appointing, p. 37 Annexation of territory, by municipality, petition for, p. 34 upon petition of inhabitants, notice of petition, p. 28 order of commissioners therefor, p. 28 ordinance accepting application therefor, p. 29 petition for, p. 26 912 INDEX. Forms— Continued. Annexation, ordinance authorizing, p. 33 ordinance submitting to vote, p. 36 Application, to assess compensation for property appropriation, p. 89 to assess damages resulting from improvement, p. 218 to construct street railway, p. 149 Appropriation of property, application to assess compensation, p. 89 entry ordering impaneling of jury, p. 94 offer to confess judgment, p. 99 judgment entry, p. 97 notice of application to assess compensation for, p. 91 oath of jury, p. 96 ordinance for, p. 88 resolution declaring intent, p. 88 verdict, p. 96 Assessments, by benefits, notice of estimate, p. 261 resolution appointing equalizing board, p. 261 report of estimating board, p. 234 resolution appointing estimating board, p. 234 certificate of unpaid, to county auditor, p. 259 claims for damages resulting from improvement, p. 212 judgment in proceedings to assess compensation, p. 220 notice of completion of plan for sewerage, p. 248 notice to construct or repair sidewalks, p. 238 notice to owners of property to be assessed, p. 200 ordinance for construction of sewers, p. 252 ordinance to assess for sidewalk improvements, p. 242 ordinance to assess for street improvement, p. 215 ordinance to assess for sidewalk improvements, p. 242 ordinance to assess for street improvement, p. 215 ordinance to improve after majority petition, p. 225 ordinance levying for sidewalk improvement, p. 242 ordinance levying for street improvement, p. 215 ordinance to proceed after majority petition, p. 225 ordinance to proceed with improvement, p. 214 petition for improvement by majority owners, p. 224 petition for improvement by three-fourths in interest, p. 228 precipe in application to assess compensation, p. 219 resolution declaring necessity for construction of sewers, p. 250 resolution declaring necessity for improvement, p. 197 resolution to construct or repair sidewalks, p. 238 resolution to improve after majority petition, p. 225 return by officer serving notice upon owners of property to be assessed, p. 201 return of notice to construct or repair sidewalks, p, 239 verdict in assessment of damages resulting from improvement, p. 219 Bid for contract, p. 376 Board of health, burial permit, p. 438 notice to abate nuisance, p. 426 ordinance establishing, p. 419 Bond, accompanying bid for contract, p. 377 for completion of contract, p. 379 municipal, p. 280 notiee of election on question of issuing, p. 295 notice of sale of, p. 285 ordinance to issue after approval of electors, p. 295 ordinance to issue without popular vote, p. 291 resolution declaring necessity of issuing, p. 294 Buildings, ordinance to regulate erection of, p. 474 petition to regulate erection of, p. 474 Burial permit, p. 438 INDEX. 913 Forms — Continued. Certificate to auditor of unpaid assessments, p. 259 of election to city office, p. 337 of election to village office, p. 454 of posting ordinance, p. 323 of publication of ordinance, p. 322 to secretary of state by village clerk after election, on surrender of corporate powers, p. 9 Claims for damages resulting from improvement, p. 212 Confess judgment, offer to in appropriation proceedings, p. 99 Contract, p. 377 Contracts by Board of Public Service, advertisement for bids, p. 376 affidavit of justification of surety on contractor's bond, p. 380 bond accompanying bid, 377 bond for completion of contract, p. 379 contract, p. 377 resolution accepting bid, p. 377 Coupon of municipal bond, p. 281 Damages, application to assess, p. 218 claims for, resulting from improvement, p. 212 Declaration and order of township trustees after election, for incorpo- ration of village, p. 18 Decree for detachment of unplatted farm lands from municipal cor- poration, p. 42 Deed to real estate by municipal corporation, p. 107 Detachment of unplatted farm lands from municipal corporation, de- cree for, p. 42 petition for, p. 41 Election, certificate of, p. 557 to city office, p. 337 on incorporation of village, notice of, p. 17 ordinance ordering, for surrender of corporate powers, p. 9 proclamation, p. 556 Entry ordering impaneling of jury for assessment of compensation for property appropriated, p. 94 Finding and order of township trustees as to incorporation of village, p. 16 Fire department, ordinance organizing, p. 388 Franchise for street railway, ordinance granting, p. 155 Gas, ordinance regulating price of, p. 658 German newspaper, affidavit of circulation of, p. 322 Incorporation of villages, petition for, p. 11 Injunction, petition for, against incorporation of village, p. 20 Improvement, ordinance to proceed after majority petition, p. 225 ordinance to proceed with, p. 214 petition for by majority owners, p. 224 petition for by three-fourths in interest, p. 228 resolution declaring necessity for, p. 197 resolution for, after majority petition, p. 225 Judgment entry in appropriation proceedings, p. 97 Judgment in proceedings to assess compensation for damages resulting from improvements, p. 220 Jury in appropriation proceedings, oath of, p. 96 Lease of real estate, advertisement for bids, p. 107 ordinance for, p. 106 "Longworth bond act," forms under, p. 291, 294, 295, 296 Lot owners directed to fill and drain lots, resolution therefor, p. 66 Mayor's proclamation of election, p. 556 Municipal bond, p. 280 914 INDEX. Forms — Continued. Notice, of completion of plan for sewerage, p. 248 of election on question of issuing bonds, p. 295 of election on incorporation of village, p. 17 of estimated assessments, p. 261 of petition, by inhabitants for annexation of territory, p. 28 for incorporation of village, p. 12 for injunction against incorporation of village, p. 20 for vacation of street by court, p. 136 to council to vacate street, p. 132 of sale of bonds, p. 285 to abate nuisance, p. 426 to construct or repair sidewalks, p. 238 to owners of property to be assessed, p. 200 Nuisance, notice to abate, p. 426 Oath of office, p. 503 Oath to jury in appropriation proceedings, p. 96 Offer to confess judgment in appropriation proceedings, p. 99 Officers and employes, ordinance fixing salaries and bonds, p. 513 Official bond, p. 506 Order of commissioners for annexation of territory upon petition of inhabitants, p. 28 Order of county commissioners for organization of village, p. 13 Ordinance, accepting application for annexation upon petition of in- habitants, p. 29 approving report of annexation commissioners, p. 37 authorizing annexation, p. 33 authorizing construction of sewers, p. 252 changing number of directors of public service or safety, p. 307 establishing board of health, p. 419 establishing trustees of public affairs for villages, p. 458 fixing salaries and bonds of municipal officers, p. 513 fixing salaries and bonds of village officers, p. 445, n. for sale of real estate by municipality, p. 106 levying taxes for municipal purposes, p. 165 making street railway grant, p. 155 ordering election for surrender of corporate powers, p. 9 organizing fire department, p. 388 organizing police department, p. 387 providing for village solicitor, p. 447 redistricting city, p. 306 regulating price of gas, p. 658 requiring railway to be lighted, p. 675 submitting to vote question of annexing another municipality, p. 36 to appropriate property, p. 88 to assess expense of lighting railway, p. 677 to assess for street improvement, p. 215 - to issue bonds after approval of electors, p. 295 to issue bonds without submission to popular vote, p. 291 to lease or sell real estate by municipality, p. 106 to proceed with street improvement, p. 214 to regulate erection of buildings, p. 474 to vacate street, p. 132 Petition, by inhabitants for annexation of territory, p. 26 by municipality for annexation of territory, p. 34 for detachment of unplatted farm lands from municipal corpora- tion, p. 41 for improvement, by majority owners, p. 224 for improvement, by three-fourths in "interest, p. 228 for incorporation of village, p. 11 for injunction against incorporation of village, p. 20 for regulation of erection of buildings, p. 474 for vacation of street by court, p. 134 INDEX. 915 Forms — Continued. Petition — to council for surrender of corporate powers, p. 8 to council to vacate streets, p. 131 to township trustees for incorporation of village, p. 15 Police department, ordinance organizing, p. 387 Posting ordinance, certificate of, p. 323 Precipe for application to assess compensation for property appro* priation, p. 90 in application to assess compensation for damages resulting from improvement, p. 219 Publication of ordinance, certificate of, p. 322 Public safety, department of, ordinance organizing police and fire de- partments, p. 387, 388 ordinance changing number of directors of, p. 307 Public service, ordinance changing number of directors of, p. 307 Railway, ordinance requiring lighting, p. 675 ordinance to assess expense of lighting, p. 677 Real estate, deed by municipal corporation, p. 107 lease of, advertisement for bids, p. 107 lease of by municipality ordinance for, p. 106 sale of by municipality, advertisement for bids, p. 107 ordinance for, p. 106 Redisricting city, ordinance therefor, p. 306 Resolution, accepting bid for contract, p. 377 appointing annexation commissioners, p. 37 appointing equalizing board for assessments, p. 261 appointing estimating board, p. 234 declaring intent tc appropriate property, p. 88 declaring necessity for construction of sewers, p. 250 declaring necessity for improvement, p. 197 declaring necessity of bond issue, p. 294 directing lot owners to fill and drain lots, p. 66 establishing street railway route, p. 154 to construct or repair sidewalks, p. 238 to improve alter majority petition, p. 225 to improve after three-fourths petition, p. 229, n. to issue bonds, under section 2701, R. S., p. 278 Report of estimating board, p. 234 Return by officer serving notice upon owners of property to be assessed, p. 201 Return of notice or repair sidewalks, p. 239 Sewers, notice of completion of plans for, p. 248 ordinance for construction of, p. 252 resolution declaring necessity for construction of, p. 250 Sidewalks, notice to construct or repair, p. 238 resolution to construct or repair, p. 238 return of notice to construct or repair, p. 239 Taxes for municipal purposes, ordinance levying, p. 165 Trustees of public affairs, ordinance establishing, p. 458 Vacation of street, by council, ordinance for, p. 132 petition for, p. 131 notice of petition for, p. 136 # Verdict in appropriation proceedings, p. 96 in assessment of damages resulting from improvement, p. 219 Villages, advertisement for bids for contracts, p. 446, n. certificate of corporate powers, ordinance ordering election for, p. 9 certificate of election to office, p. 454, 557 clerk's certificate to secretary of state after election on surrender of corporate powers, p. 9 contracts, p. 446, n. declaration and order of township trustees after election for in- corporation of, p. 18 916 INDEX. Porms — Continued. Villages — incorporation of, finding and order of township trustees, p. 16 petition for, p. 11 petition to township trustees for, p. 15 notice of election for incorporation, p. 17 of petition for incorporation of, p. 12 of petition for injunction against incorporation of, p. 20 ordinance establishing trustees of public affairs, p. 458 ordinance fixing salaries and bonds of officers, p. 445, n. ordinance providing for solicitor, p. 447 ordinance to regulate erection of buildings, p. 474 organization of, order of commissioners for, p. 13 petition for injunction against incorporation of, p. 20 petition for regulation of erection of buildings, p. 474 surrender of corporate powers, petition to council for, p. 8 Gambling; destruction of instruments or devices for, by municipal cor- poration, p. 45 Devices; slot machines as, p. 45, n. 1 Power of municipality over, p. 64 Power of municipality to prevent, p. 44 Garbage, contract does not require auditor's certificate, p. 173 Disposal plants; appropriation of land for, p. 81 Disposition of, power to issue bonds for, p. 288 Gas: Appropriation of property for gas works, p. 81 Bonds for gas works, p. 288 Companies to furnish certain apparatus, p. 671, 673 Contract with municipality for supplying, p. 665, 669 Consolidation of companies, p. 662 Council may erect or purchase gas works, p. 662 Council may occupy streets for gas purposes, p. 660 Exclusive monopoly not allowed, p. 661 Extension of pipes beyond city, p. 670 Forfeiture of charter for neglect to furnish, p. 660 temporary failure does not work, p. 661 Inspector, appointment of, p. 661 Merchantable, p. 671 Meter, must be sealed and stamped, p. 671 inspection of, p. 671 testing of, p. 671 Natural gas companies, in certain cities, laws applicable to, p. 673 Natural gas plants enlarging of, bonds for, p. 666 laying pipes for, by municipality, p. 664 sale of to persons outside of municipality, p. 664 trustees of may sell to village, p. 664 Occupancy of streets, for pipes, p. 660 Pipes for, council may provide for laying, p. 665 Pipes for, expense of laying, p. 665 Price of, regulation, p. 656 change of price, p. 658 enforcement of regulation, p. 658, n. reasonableness of regulation, p. 657, n. Power of council, limitation on, p. 662, n. 2, n. 3 Power of gas company, p. 668 to supply electricity, p. 669 INDEX. 917 Gas — Continued. Standard measure for, p. 670 Wells, tax levy for drilling, p. 667 When company may shut off gas, p. 672 General powers of municipalities, see under Powers cf Municipalities. Gifts, power of municipalities to receive, p. 43, 62 To public officers, see Officers. Grade, Change Of, appropriation of land for, p. 80 Damages to abutting property, see Damages to Abutting Property. Expense of, how paid, p. 230, 773 Petition for, p. 230, 773 Establishment of grade, p. 230, 773. Power of municipality to establish grade, p. 55 Grade crossings, abolishing, p. 691 Grades and Classes of municipalities under the code, p. 31, n. 6 Grounds, public; power of municipality to hold and improve, p. 61 Gunpowder; power of municipality to regulate transportation, keeping and sale of, p. 51 Vendor of, license of, p. 73 Hack stands, power of council to regulate and establish, p. 79 Power of municipality to regulate, p. 50, n. 1 Halls, Public; see Buildings, Public. Appropriation of land for, p. 81 Power of municipality over, p. 59 Power to issue bonds for, p. 288 Power to lease or rent, p. 738 Hamlets, p. 821 Incorporation of, p. 10 Officers of, other than trustees, p. 824 Status of under new code, p. 3, n. Taxation in hamlets, p. 826 Trustees of hamlets, p. 821 election of, p. 821 general power of hamlets, p. 823 limitation on powers, p. 822 quorum, p. 821 term of, p. 821 power over streets, etc., p. 822 vacancies, p. 821 Hawkers; license of, p. 73 Health; power of municipality to provide for, p. 55 Health Board; see Board of Health. Health officer- Annual conference of health officers, 604a Appointment of, by state board, p. 417 Appointment in villages, p. 417 Board of health to appoint, p. 421a Heating and power plants, appropriation of land for, p. 81 Power of municipality to provide, p. 54 Highways; see Streets. 918 INDEX. Homes for the friendless, establishment of in certain cities, n 607 In Toledo, p. 608 Horse auctions; license of, p. 49, 73 Hospitals, p. 365, 626 Agreement with private corporations for interest in, p. 629 Appropriations of land for, p. 81 Board to manage, p. 365 Bonds for, power to issue, p. 289 Cincinnati hospital, p. 630, 631 tax for, p. 631 Contracts, p. 628 Council may contract with private corporation for interest in, p. 629 Employes, p. 365 Establish, power to, p. 55 Expenditures for, p. 627 Founded by gift, p. 493 management of, p. 493 trustees of, p. 493 appointment of, p. 493 compensation, p. 497 contracts, p. 498 control of hospital, p. 498 employment of superintendents, p. 499 meetings, p. 497 report to council, p. 499 Liability for negligence, p. 626, n. 2 Managing board, p. 365, 626 powers, p. 365, 627 Medical college, relation to, p. 632 Power of municipality to establish, p. 55. to maintain and regulate, p. 55 to rent, p. 61 to issue bonds for, p. 288 to levy tax for free private hospital, p. 492a Hospital trustees; see under Hospitals House movers; power of municipality to license, p. 53 Houses Of ill fame ; restraint of, p. 47 Houses of refuge, p. 352 Appropriation of land for, p. 81 Commitment of infants to, p. 352 action against directors, p. 361 appeal to board, p. 361 apprenticeship of infants in, p. 357 confinement of infants, p. 353 decision on appeal, p. 361 disposition of infants when house of refuge filled, p. 356 duration of commitment to, p. 357 how far examinable, p. 360 in lieu of jail, p. 356 recommendation of grand jury, p. 355 record of commitment, p. 356 what infants entitled to private examination and trial, p. 355 Deficiency of expense of, p. 360 Discharge from, p. 357 Employment of inmates, p. 357 Expenses of infants committed to, p. 359 Habeas corpus directed to, p. 360 Infants over 16 years of age, how committed, p. 353 stubborn infant, in, p. 359 INDEX. 010 Houses of refuge — Continued. Power of municipality to establish, p. 59 Power to issue bonds for, p. 288 Who may commit infants to, p. 354 Huckstering, p. 60, n. 3 Hucksters; license of, p. 73 111 fame; houses of, restraint of, p. 47 Immoral literature; power to restrain distribution of, p. 61 Impeachment of heads of departments and officers, p. 508; se^ under Officers. Imprisonment ; see Fines and Imprisonment. Improvements, contracts for, p. 221 advertisement for bids, p. 221, n. 2 how let, p. 221 Damage to abutting property by, see Damages to Abutting Property. Incorporation of villages, p. 9, 10 Constitutionality of procedure, p. 18, n. 2 Division of township funds when new village created, p. 22 Election of officers after incorporation, p. 21 Error in proceedings, does not render void if tax has been paid p. 25 Petition for injunction against, p. 19, 20, 21 Petition for to county commissioners, p. 10 record of proceedings, p. 14 hearing by county commissioners, p. 13 name of village, when incorporated, p. 14 notice of, p. 10 order for organization, p. 13 order of commissioners, p. 14 presentation to commissioners, p. 12 what to contain, p. 10 Petition to township trustees, p. 15 election upon question of incorporation, p. 17 injunction against incorporation, p. 18 injunction against recorder, p. 19 petition for injunction against, p. 17 procedure upon receipt of petition, p. 16 proceedings in injunction, p. 20 Platted lands, p. 10 Territory surrounding summer resort, p. 23 Unplatted lands, p. 15 When territory in more than one county, p. 22 Infirmaries, p. 365, 633 Arrangement with orphan asylum, p. 636 Care of inmates, p. 367 County infirmaries to receive certain inmates, p. 609 Directors of county, in case of merger of township in municipality, p. 7, n. Erection of, bonds for, p. 288 Governed by hospital regulations, p. 366 Grounds of county or city, not to be included in village or hamlet in- corporation, p. 10 Legal settlement, p. 635 Location of, p. 365 920 INDEX. Infirmaries — Continued. Lucas county, p. 635 Management of, p. 365 Outside relief, p. 635 . Overseers of the poor, p. 633 Partial relief, p. 634 Power of municipality to maintain and regulate, p. 55 Injunction, against annexation of territory to municipality, p. 30 Against incorporation of villages, p. 19 assessments, p. 183, n. street railway grants, p. 148, n., 151, n., 344, n. By solicitor, p. 342 By taxpayer on refusal of solicitor, p. 343 Insane, meaning of, p. 827 Inspectors : appointment of by Board of Health, p. 436 Gas, appointment by council, p. 661 Of buildings, see under Buildings. Of spirits, oils, etc., p. 59 Injuries from excavations, P- 775 Damages to be recovered by civil action, p. 775 Depth of excavation allowed, p. 776 No support to be required, when, p. 775, n. 5 Right to grade, p. 776 Inspection of buildings; see Buildings. Institutions in villages, p. 456 Instruments or devices for gambling; destruction of, under authority ol municipality, p. 45 Interurban railway cars; power of municipality to regulate speed of, p. 50 See under Street Railways. Intoxicating liquors. Ballots at election, p. 805 Beal local option law, p. 803 hotels and eating houses, p. 804 Beer is an intoxicating liquor, p. 49, n. 2 Brannock law, p. 809 Contest of election, p. 808 Definition of, p. 806 Disposition of fines, p. 808 Distribution of Dow tax, p. 802 Election, p. 804 Indictments, p. 807 Manufacturers may sell to wholesale and retail dealers, p. 805a Municipal regulation, p. 47, 804 Penalty for making prohibited sale, p. 805a Petition for election, p. 804 Rebate of Dow tax, p. 807 Regular druggists, p. 806 Regulation of by municipality, p. 47 Regulation of sale of, p. 47, n. 1 Residence district option law, p. 809 What constitutes forty per cent, of electors, p. 807 When sale in municipality is unlawful, p. 805a Jails, power of municipality to establish, p. 59 Prisons, see Prisons and Station Houses. INDEX. 921 Judges, Police, see Police Court. Right of visitation, p. 828 Judicial department; see Police Court and Mayor's Court. Judicial notice, of classification of municipalities, p. 7, 15 Of ordinances; p. 63, n. 1 Jurisdiction, of police judge and mayor, see Police Court and Mayor's Court. Jury. Fees of jurors in police and mayor's court, p. 587 In appropriation proceedings, p. 91, 95 Oath of, p. 96 In police court, p. 574 Talesman, in municipal court, p. 587 Justice of the peace. Designated as police justice in absence of mayor, when, p. 586 Fines may be recovered before, p. 590 In case of merger of township in municipality, p. 6 In territory annexed to municipality, p. 26, n. Labor on streets; see under Streets. Landings, Public, appropriation of land for, p. 81 Power of municipality to establish, etc., p. 55 Power of municipality over, p. 56, 57 Law libraries; see under Libraries. Lease Or sale of property by municipality, see under Property. Lectures; kinds of, not subject to municipal license, p. 49 Levees; appropriation of land for, p. 81 Power to issue bonds for, p. 289 Lewd behavior; restraint of, p. 47 Liability of municipality, cemetery, negligence of employes in, p. 68, n. Contract, on, p. 372, n. where no certificate of money in treasury, p. 172 Explosives, for damage caused by, p. 51, n. Levees, for overflow through inadequate, p. 84, n. 9 Officers' acts, for, p. 329, n. Police and fire departments, negligence of employes in, p. 389, n. 1 Riots, etc., injuries caused by, p. 45, n. Sewers, for failure to provide, p. 245, n. Street improvements, for injuries caused by, see Damages to Abut- ting Property. Libraries, p. 491 Appropriation of land for, p. 81 City council authorized to levy taxes to compensate private company for maintaining free public, p. 492 Custody, control and administration of, p. 491 In certain cities and villages, p. 777 directors, p. 778 donations, p. 779 who may use libraries, p. 779 Law libraries, p. 781 Management of, in cities, by board of public service, p. 351. in villages, by trustees of public affairs, p. 456 Power of municipality to establish, p. 61 Power to issue bonds for, p. 288 Transfer of property to school districts, p. 780 Trustees of, p. 491 922 index. License and regulate; scope of the words, p. 50, n. 1 Licenses, p. 63a, 73, 810 Auctions and auctioneers, p. 49 Ballgrounds, race-courses, etc., 63a Ball rooms, p. 63a Billiard rooms, p. 63a Bill posters, p. 77, 78 Bowling alleys, p. 63a Chattel mortgage brokers, p. 63a Constitutionality of municipal licenses, p. 74, n. I Dancing and riding academies, p. 63a Definition of " license," p. 74, n. 1 Delegation of power of council concerning, p. 74, 77 n., 78 Discrimination forbidden, p. 75 n. Exhibitors of shows, p. 73 Evidence of liability for license, p. 63a Explosives, dealers in, p. 51, 63a, 813 Fees which may be exacted, p. 63a, 73 Ferries, power to license, p. 57 General licensing power of council, p. 63a, 73 House movers and vault cleaners, p. 53 Itinerant vendors, p. 77, 817 Intelligence offices, p. 63a Junk shops, p. 63a Livery stables, p. 63a Pawnbrokers' licenses, p. 63a, 813 articles not to be received from minor, intoxicated or suspected person, p. 814 list of articles pawned to be reported to mayor, p. 814 no other business in same building, p. 814 " pawn broker " defined, p. 813 penalty, p. 815 record to be kept, p. 813 to whom licenses may be issued, p. 813 when licenses revocable, p. 815 Peddlers' licenses, p. 63a, 815 privileges, etc., in Cincinnati, p. 816 soldiers' or sailors' licenses, p. 815 Plumbers' licenses, p. 810 application and examination, p. 810 disposition of money derived from examination, p. 812 examiners, p. 810 inspector of plumbing, p. 811 penalties, p. 812 power to license plumbers, p. 53 rules governing plumbing and sewerage, p. 812 Power cannot be used to tax an employment, p. 75, n. Power of council to provide for exhibitions, etc., p. 73 Power of council to require, for use of vehicles for hire on streets, p. 7$ to exact for theatrical ticket brokers, p. 49 to require for bill posters, sign painters, bill distributers, card, tackers and advertising matter, p. 78 Producers of farm products not subject to, p. 73 Reasonableness of, p. 74, n. 1 Recovery of illegal fee, p. 76, n. Revocation of, p. 74, 77, n. Sales at auction, power to license, p. 49 Sewer tappers, power to license, p. 53 Show not be exhibited without permit from auditor, p. 816 Statement required of itinerant vendor, p. 817 Subjects of licensing power, p. 74, n. 1 Traffic in theatrical tickets, power to license, p. 49 Transient dealers, p. 77, 78 INDEX. 923 Lien of assessment. For abating nuisance, p. 67 For lighting bridge or railway, p. 677 For street improvements, p. 263 Life estates, assessment upon, p. 260 Lighting, municipal — Appropriation of property for, p. 81 Bonds for, power to issue, p. 288 Companies, regulation of price charged by, p. 656 price not to be reduced during period for which fixed, p. 658 Contracts, with private company for supplying, p. 665 do not require auditor's certificate, p. 173 Electric light companies; see under Electric Light. Gas companies; see under Gas. Gas works; see under Gas. Lighting companies and municipal lighting plants, p. 656 Power to establish and maintain lighting plants, p. 54 Supervision of, p. 351 Lighting of railways and bridges, P- 674 Assessment for expense of lighting railway, p. 677 Character of ordinance, p. 675 Enforcement of lien for, p. 678 Notice of requirement to light, p. 676 Ordinance for, p. 675 Procedure on failure to light, p. 677 Requirement must be reasonable, p. 674, n. 3 Limitation of actions — For recovery of fines, penalties and forfeitures, must be brought with- in one year, p. 590 For violation of ordinance, must be brought within one year, p. 590 Taxpayer suits to enjoin performance of contract or payment of bonds by municipality, within one year, p. 341 To enforce lien of assessments, within two yeafrs, p. 270 new action within one year, p. 271 To enforce personal liability for assessments, p. 265. n. 2 To enjoin performance of contract, or payment of bonds by muni- cipality, within one year from date of contract or bonds, p. 341 Local assessments; see Assessments. Longworth bond act; see Bonds. Lots; power of municipality to require filling of, p. 65 Lost or destroyed records; see under Plats. Magnetic telegraph companies; How right to use public ground acquired, p. 714 Automatic package carrier companies, p. 715- Electric light companies, p. 715 See Electric Light. Probate court's jurisdiction as to mode of use of public ground, p. 714 Subways and conduits for electric wires, etc., in Cincinnati, p. 718 Subways for telephone and telegraph wires in cities, p. 716 Telephone companies, p. 715 Validity of prior contracts, p. 717 Wires in subways, p. 7 1 6 Manufacturer, not subject to license of articles sold by him, p. 73 Markets; Appropriation of property for market places, p. 81 Compensation of property owners for market in street, p. 84, n. 5 Dedication of land for, p. 60, n. 2, 3 924 INDEX. Markets Continued. Definition of, p. 60, n. 3 Market housea, p. 721 Cleveland market house commission, p. 722 commission authorized, p. 483 erection of, power to issue bonds for, p. 288 no municipal liability for obstruction by, p. 60, n. 2 Market house companies, p. 721 powers of, p. 721 Market places, power of municipality over, p. 59 power of municipality to establish, p. 59 Market spaces and stands, charges for, p. 60, n. 2, 3 Municipal liability as to, p. 60, n. 3 Nuisance, as a, p. 60, n. 2 Power of municipality over, p. 59 Superintendent of, duties, p. 550 Carriages, registration of, p. 437 Marshal, duties of in connection with other officers to investigate fires, p. 553 In hamlets, p. 825 Mayor; Annual budget, p. 163 Appeals from decision of, in civil cases, p. 543 Bills of exceptions, p. 543 Council meetings, attendance upon, p. 332 Duties of, p. 543 Examination of departments, p. 163 Examination of buildings, p. 743 Execution of corporation deed, p. 543, n. 2 Fees of, p. 325, 326n, 449. 451, 543 Jurisdiction of, p. 542, 566 in damage cases, p. 543, n. Power to preserve peace, p. 542, 586 to close saloons during riots, p. 836 Powers of, p. 542* Proclamation as to sale of liquor on election day, p. 587 Removal of by governor, p. 511 Reports by, to council, p. 163 Seal of, p. 543 Supervision of offices, p. 163, 508 Supervision of prisons, p. 587 Vacancies in departments, filled by, p. 614 Writs issued by, p. 586 In cities, p. 330 appointment of subordinates, p. 330 conference with heads of departments, p. 332 doeds to be signed by, p. 331, n. 3 designation of justice of the peace as police judge in certain instances, p. 586 directors of other departments to meet with, p. 332 duties of, p. 330, 331, 385 duty to attend council meetings on request, p. 332 election, p. 330 fees of, p. 825, 826, n. personal liability, p. 331, n. 1 powers of, p. 328, 330, 385 protest against excess of expenditure, p. 331 qualification, p. 330 removal and suspension of subordinates, p. 330 salary, how fixed, p. 326 sign commissions and other instruments, p. 331 supervision of offices, p. 163, 331, 508 term, p. 330 veto power, p. 324 INDEX. 925 Mayor — Continued. In villages, p. 446 annual report to council, p. 450 compensation of, p. 449 contracts executed by, p. 446 designation of justice of the peace as police judge in certain in stances, p. 585 disposition of fines, etc., p. 450 duties of, p. 448, 449 election of, p. 448 power and authority of, p. 446, 448 qualifications of, p. 448 resignation, p. 449, n. supervision of conduct of officers, p. 449 term of, p. 448 to protest against excessive expenditures, p. 450 vacancy in office, p. 448 vacancy in office, how filled, p. 448 Mayor's court — In cities, p. 580 certain city cases must be tried by jury, p. 581 certain state cases, accused may be recognized, etc., p. 582 certain state cases may be tried by jury, p. 582 clerk not to be concerned in case, p. 581 contempt, p. 587 enforcement of fine, p. 587 final jurisdiction of, p. 580, 581 . how fees paid, p. 587 jurisdiction in felonies, etc., p. 582 jurisdiction where jury is waived, p. 581 money in lieu of bail, p. 582, n. 1 rules, p. 587 iv Ullages, p. 582 absence of accused, p. 582, n. 2 boundary line between villages, p. 584 common pleas trial on recognizance, p. 583 contempt, p. 587 enforcement of fine, p. 587 final jurisdiction of, p. 582 how fees paid, p. 587 jurisdiction, in certain state offences, p. 583 in felonies, p. 584 limited, p. 583, n. 1 over right of way of railroads adjoining N>mui«.iy line, p. 584 when jury is waived, p. 583 misdemeanor tried by jury, p. £83 process, p. 585 recognizance of accused, p. 583 rules, p. 587 violation of ordinance >ied by jury p 383 Fees of mayor, p. 543 Jurisdiction of. p. 542, 566 Review of proceedings, p. 542, 543 Meat selling, P- 60, n. 3 Measures; se © Weights and Measures. Merger of township iu municipality, p. 6 Merit system in police and fire departments, p. 404 Administered by Board of Public Safety, p. 404 Application for examination, p. 406 Bribery, p. 412 Charges against directors, p. 404 926 IKDEX. Merit system — Continued. Classification of offices, p. 406 Classification of service, p. 391 Commissioners' certificate to auditor of appointments, p. 414 Corrupt use of political authority, p. 414 Examination for promotion, p. 409 Examination of applicants, p. 408 Investigation of enforcement of system by mayor, p. 411 List of officers furnished mayor, p. 406 Method of appointment, p. 410 Notice of appointment by mayor, p. 411 Offenses in connection with system, p. 412 Penalty for violation of act relating to system, effect of, p. 415 Perjury, p. 415 Political assessments, p. 413, 414 Procedure for compelling attendance of witnesses, p. 415 Promotion, p. 409 Prosecution for violations of act. p. 416 Publication of notice of examination p. 409 Recommendation for appointment, p. 412 Refusal to obey subpoena, p. 415 Registration of persons eligible to appointment, p. 409 Removal for cause only, p. 410a Report of board to mayor, p. 411 Right of appeal from commissioners' decision, p. 416 Rules and regulations, p. 407 Salaries of appointees employed in violation of act not allowed, p. 414 Temporary appointments, p. 410 Who not to be appointed or retained, p. 407 Witness fees, p. 415 Midnight closing law; see Intoxicating Liquors. Militia, p. 836 Milk; fee for permit for sale of, p. 77, n. 2 Inspection of, p. 55, n. 2 See Board of Health. Monuments, to commemorate services of soldiers, p. 842 Power to issue bonds for, p. 288 Morgues — For Cuyahoga county, p. 610 Power of municipality to establish, p. 59 Municipal boundaries, under new code, p. 477 Municipalities — Classification of, see Classification. Part of township for election purposes, p. 7, n. Powers of; see Powers of Municipalities. Under new code; succeed to rights and liabilities of original municipal- ities, p. 477 Municipal liability; see Liability of Municipality. Municipal libraries and trustees; see Libraries. Municipal property ; see Property. Municipal universities ; see Universities. Museum and park companies, p. 837 INDEX. 927 N Name — Of municipality, change of, p. 24, 838, 839 Of streets, how changed, p. 130 Of village or hamlet, after incorporation, p. 14 National Roads — Agreement to keep in repair, p. 127 Control of portions of, by municipality, p. 126 Transfer to municipality, p. 127 Use of portion as street, p. 126 Natural Gas Plants; see under Gas. New remedies provided by code cumulative, p. 47? Nine-pin alley; effect of ordinance forbidding, p. 45, n. 1 Power to regulate, p. 45 Noise and disturbance; power of municipality to prevent, p. 44 Newspaper; see Advertisement, Publication, Notices. Notices; see Advertisement, Publication. By Board of Health to owner to abate nuisances, p. 425 By mayor of appointment, resignation and vacancies in police or fire departments, p. 411 How notices published, p. 317, 827 Of application for street railway grant, p. 149 Of application to appropriate property, p. 90 Of application to supply lost records, p. 753 Of application to vacate or alter plat, p. 749 Of bids by Board of Public Service, p. 370 Of completion of plans of platting commission, p. 368 Of contracts by Cincinnati Water Works trustees, p. 650 Of contracts by hospital commissioners, p. 628 Of contracts by hospital trustees, p. 499 Of contracts by park board, p. 496 Of contracts by trustees of public affairs in villages, p. 463 Of election for bond issue under Longworth bond act, p. 293 Of election upon question, of incorporation of village, p. 16 of improving natural gas works, p. 667 Of estimated assessment to be published, p. 260 Of intention to appropriate property, p. 85 Of ordinance authorizing construction of sewers, p. 252, n. 2 • Of ordinance to light railway, p. 676 Of passage of resolution to improve streets, p. 198 character of, p. 199, n. 2 effect of want of, p. 199, n. 2 service of, p. 199, n. 2 to whom required, p. 200, n. 3, 4, 5 Of petition for annexation of territory to municipality, on applica- tion of its citizens, p. 27 for incorporation of villages on platted lands, p. 12 for injunction against the incorporation of village, p. 21 to vacate, or change name of, street, p. 132, 135 to exchange lots, p. 110 to transfer funds, p. 170 Of plans for sewerage system, p. 248 Of resolution to construct sewers, p. 250 Of sale of bonds, p. 283 To owners of property to clean sidewalks, p. 240a To owners to construct or repair sidewalk, p. 237 928 INDEX. Notices — Continued. To owners — return of copy of notice, p. 237 service upon agent or owner, p. 237 to non-residents and persons not found, p. 239 To heads of departments or officers, of charges, p. 503 Nuisances, abatement of by municipality, p. 46 Extent of regulation of, p. 46, n. £ Hack stands, as, p. 50, n. Health officer's duty with respect to, p. 67 Houses of ill fame, as, p. 47, n. Pest houses in populous community is, p. 84, n. 8 Power of municipality over, p. 65 to require filling and draining of lots, p. 65 validity, p. 66, n. 2 What are, p. 46, n. 2 Numbering Of buildings J power of municipality to regulate, p. 52 Oath, includes affirmation, p. 531 Effect of failure to take, p. 507, 531 Of county treasurer, having charge of city and school funds, p. 541 Officers required to take, p. 502, 531 Of officers; see under Officers. Necessity of, p. 503, n. 3 Who must take, p. 502, n. 1 Officers — Abolishment of former offices, p. 328, n. Acceptance of bonds, of, p. 504, n. 2 Accounting by, uniform accounting, p. 560 Additional bond, p. 507 Admission of, against city, p. 329, n. Appointees pursuant to certain former acts continue to serve, p. 484 Appointee to fill vacancy, meaning of first proper election, p. 535, n. 1 term, p. 534 Appointment of municipal officers, by whom made, p. 330, 383 when made, p. 501 As to particular officers, see their special titles. Beginning of term, p. 501 Bonds of, p. 501, 504 additional, p. 507 approval of, p. 507 condition in, p. 504, n. 2 effect of failure to give, p. 507, 536 fixed by council, p. 444, 445, 512 how filed, p. 532 new bond, p. 507 notice of new, p. 507 rejection of bonds, p. 504 sureties' liability, p. 508 surety on, when guaranty company must be, p. 538 what blanks may be filled, p. 533, n. what is sufficient as a condition of, p. 533 when signed in blank, p. 532 Combining offices, p. 328, n. 2 Compensation of, how fixed, p. 445, 512 Contracts, limitation on amount of bonds received, in public con< tracts, p. 564 officers not to be interested in, p. 172, 385, 538 INDEX. 929 Officers — Continued. Debts not to be contracted without authority, p. 535 Be facto governments prior to May, 1903, p. 480, n. Be facto officers, denned, p. 503, n. acts valid, p. 503, n. not entitled to salary, p. 503, n. Defined, p. 328, n. 2 Delegating power, p. 329, n. Deputies and clerks, power of deputy, p. 534 terms of, p. 534 Devises and bequests to, p. 536 Duties of with respect to county auditors' reports, p. 537 Effect of failure to take oath or give bond, p. 507 Election of, p. 501, 556 abstract of votes, p. 556 election proclamation by mayor, p. 556 places of holding election, how designated, p. 555 returns of election, p. 556 tie vote, p. 557 who are electors, p. 556 Estoppel from acts of, p. 329, n. Extra compensation, p. 513, n. Gifts, devises and bequests to, void, p. 536 Holding over, p. 5, n. 3 Hold until successors are qualified, p. 479, 533 How sureties affected by new bond, p. 508 Illegal loans and deposits by, p. 537 Impeachment of head of department or officer, p. 508 In cities, p. 328 appointment of subordinates, p. 330 bonds fixed by council, p. 512 duty to attend council meetings on request, p. 332 fees of, to be turned into treasury, p. 325 number and compensation fixed by council, p. 512 removal and suspension of subordinates, p. 330 reports to auditor to be made monthly, p. 334 salaries and bonds, how fixed, p. 325, 326, n. 3, 512, 513, n. salaries not to be increased or diminished during term, p. 326 vacancies, how filled, p. 514 In villages, p. 446 bonds of, approved by mayor, p. 445 fixed by council, p. 445 fixed by old council, p. 444 compensation of, how fixed, p. 445, 446, n. 3, 512, 513, n. fixed by old council, p. 444 fees of, p. 451 ordinance fixing salaries and bonds, p. 449, n. Interested in contract, p. 172, 176, n. 3, 382, 538 Interested in public work, p. 538 Municipal liability for officers' acts, p. 329, n. New boards as successors to old, p. 328, n. Not to be interested in contract, p. 172, 382, 538 Oath of, p. 501, 502 character of, p. 531 effect of failure to take, p. 507, 531 Of cities reduced to villages, p. 4 Of villages advanced to cities, p. 4 Ordinance fixing salaries and bonds of, and organizing departments, p. 512, 513, n. Personal liability, p. 329, n. Qualifications of, p. 502 930 INDEX. Officers — Continued. Recovery of overpayment to, p. 513, n. Removal and suspension of, p. 508, 509a, n. 1 by probate court, p. 557 Salary of, construction of ordinance fixing, p. 513, n. de facto officers, p. 513, n. how fixed, p. 325, 326, n. 3, 445, 446, n. 3, 512, 513, n. not entitled to unless qualify, p. 513, n. not to be increased or diminished during term, p. 326 where none fixed, p. 513, n. Seals of, p. 532, 535 Suits against, in their official capacity, p. 329, n. Term of; see under particular officers. beginning of, p. 501 appointee to fill vacancy, p. 515, n. Transfer of funds by, p. 547 Vacancies, how filled, p. 514 by resignation, p. 515, n. none where incumbent can hold over, p. 515, n. when occur, p. 514, n. 2, 536 Official bonds; see under Officers. Oiling of streets, p- 772a Order; Power of municipality to preserve, p. 44, 64 Orders of procedure— For assessments by benefits, p. 234 For municipal tax levies and appropriations, p. 160 For street improvements for which assessments are levied, p. 196 In appropriations of property, p. 87 In assessments, p. 196 In selling or leasing real property, p. 105 In sewer improvements, p. 246 In sidewalk improvements, p. 236 Ordinances and Resolutions- Accepting dedication of streets, p. 128 Appropriation of property, p. 85 Approval of mayor in cities, p. 324 Assessments, see Assessments. Authentication of, p. 325 Authority of municipality to pass, for the exercise of its general powers, p. 43 Authorizing sale or lease of property, p. 104 Authorizing contracts, p. 316, 370 Certificate of publication, p. 321 Construction of, p. 313, n. Continuing in force, after advancement of village to city, p. 4, 5, n. 3 under new code, p. 480, 480, n. 2 Do not determine civil rights between individuals, p. 312, n. 2 Effect of non-publication, p. 323 Evidence of, p. 323 For opening streets, p. 122 For summoning jury, etc., p. 586 For vacating street, p. 130 Franchise defined, p. 315, n. 4 Granting franchises, how adopted, p. 312 How adopted, p. 311 In case of annexation of territory, see under Annexation of Ter- ritory, etc. In case of street improvement, or assessment, see Assessments. In case of sewer or sidewalk improvement, see Sewers, Sidewalks. Inconsistent with constitution or statute, p. 314, n. 2 INDEX. 931 Ordinances and Resolutions Continued. Indefiniteness, p. 314, n. 2 Judicial rotice of, p. 63, n. 1, 324, n. Judicial review of, p. 314, n. 2 Licensing, p. 73, 77, 78 Majority necessary to pass, p. 312 % May be partially void, p. 314, n. 2 Mayor's veto, in cities, p. 324 no veto power in mayor in villages, p. 445 Of a general or permanent nature; how adopted, p. 318 suspension of rules for passage of, p. 318 what are, p. 319, n. when readings may be had, p. 319, n. Of villages or cities advanced or reduced, p. 4 Power of municipality to make violation of a misdemeanor, p. 63 Practical construction by conduct of parties, p. 313, n. Proof of, p. 323 Publication of, p. 317, 320 by posting, p. 322 in book form, p. 320, 324 in general, p. 321, n. 2 length of, p. 321, n. 2 proof of, p. 317, 321 Punishment under, p. 63, 65 Recording and publishing, p. 317, 320 Relating to cemeteries, p. 725 Repeals by implication, p. 320, n. 3 Requirement of three readings mandatory, p. 318, n. 1 Requirements of subjects directory, p. 320, n. 2 Signature to, p. 321, n. 1 Street railway grants by, p. 144, 146, 149, 699 Street sprinkling, ordinance for, p. 231, 232, 772 Style of ordinances, p. 325 Submitting to vote question of annexation of one municipality to another; see Annexation of one Municipality to Another. To assess expense of lighting railway, p. 677 To issue bonds, see Bonds. Validity in general, p. 313, n. What ordinances continue in force under new code, p. 480, 480, n. 2 When required, p. 313, n. When to take effect, p. 320, 321, n. 3 Where statute on same subject, p. 314, n. 2 Yea and nay vote, p. 311, 315, n. Organization— Of cities, p. 303 executive power, p. 328 legislative power, p. 303 Of villages, p. 444 Of village, on lands not platted; see Incorporation of Villages. on platted lands; see Incorporation of Villages. Overflow from inadequate levees, municipal liability for, p. 84, n. 9 Overseers of the poor; appointment of, p. 633 Owners; see Appropriation of Property; Assessments. P Parks; Appropriation of lands for, p. 81 Founded by gift, p. 493 commissioners, p. 494 trustees for, p. 493 compensation of park trustees, p. 494 contracts by, p. 496 control of, p. 495 932 INDEX. Parks — Continued. Founded by gift — duties and powers of, p. 494 employment of superintendents by park commissioners, p. 495 meetings, p. 494 powers of, p. 495 report to council, p. 495 to have control of improvement of natural water-courses, p. 496 In villages, p, 456 Management of, in cities by Board of Public Service, p. 351 in villages by trustees of public affairs, p. 456 Park companies, p. 837 Power of municipality to hold and maintain, p. 61 Power to issue bonds for, p. 288 Pauper brought into community with attempt to charge with support, p. 610 Pawnbroker; see under Licenses. Peace; power of municipality to preserve, p. 44, 64 Peddlers; license of, p. 63a, 73, 77 See under License. Pension funds — Fireman's, see under Fire Department. Police, see under Police Department. Sanitary police, see under Board of Health. Permit — Burial, p. 437 Perpetual succession; power of municipality to have, p. 43 Person, includes private corporation, p. 827 Personal injuries; damages for, claims need not be filed before suit, p. 273, n. 1 Pest houses — Appropriation of land for, p. 81 In populous community, a nuisance, p. 84, n. 8 Location of, p. 366 Management of, in cities by board of public service, p. 351 in villages by trustees of public affairs, p. 456 Outside municipality, p. 366 Power of municipality to maintain and regulate, p. 55 Power to establish, p. 55 Purchase of grounds for, p. 366 Petitions — For annexation or detachment of territory, see under Annexation of Territory to Municipality and Detachment of Territory From Municipality. For changre of name of street, see under Streets. For change of name of village, see under Name. For incorporation of village or hamlet, see under Incorporation. For street improvements, see under Assessments. For sidewalks improvement, pee under Sidewalk. For sprinkling streets, see under Streets. Pickpockets; power of municipality over, p. 64 index. 933 Flank roads; see Turnpikes and Plank Roads. Platting commission, p. 367 Acceptance of plans by whom, p. 369 Amendment of plans, p. 370 Copies of plans where deposited, p. 369 Joint commission of adjoining municipalities, p. 369 Notice of completion of plans, p. 368 Objection to plans, p. 368 Power and duties of, p. 367-8 When constituted, p. 367 Plats, p. 744 Lost or destroyed records, p. 753 application to supply lost or destroyed records, p 753 county commissioners to appoint surveyor, etc., p. 754 publication of notice of application to supply, p. 754 record of plat and certificate, p. 754 record of proceedings by county auditor, p. 754 Original plats, p. 744 character of municipality's title to platted streets, p. 747 common law dedication, p. 745, n. corner stone to be planted, p. 745 defective plat not a statutory dedication, p. 744, n. 3 directors to lay out county seat where no municipality is organized, p. 748 of subdivisions, p. 746 penalty against making record contrary to statute, p. 747 penalty for disposing of lots before complying with statute, p. 748 ' penalty for neglecting to plant corner stone, etc., p. 748 penalty for selling lots contrary to statute, p. 747 plat as a dedication, p. 744, n. 3 plat not acknowledged and recorded not a statutory dedication, p. 746, n. proprietor to cause plat of. proposed village to be made, p. 744 rights of vendee after plat made, p. 745, n. title to platted streets, p. 747 to be acknowledged and recorded, p. 745 what such plats shall contain, p. 745 Revision of plats, p. 751 compensation of auditor, recorder and their associate for re- vision, p. 753 how expense of re-numbering paid, p. 753 mode of re-numbering, etc., p. 752 shall be assessed and legally known by their new numbers., p. 752 who shall revise and re-number lots, p. 751 Vacating plats, p. 748 application for, p. 749 vacation and assessment of damages, p. 750 changing of incorporated town or addition, p. 750 clerk's, fees, p. 750 commons may be changed into streets, when and how, p. 749 proceedings to vacate lots not within a municipal corporation, p. 751 when court may alter or vacate plat, p. 749 Plumbers, licenses, see under Licenses. Power of municipality to license, p. 53 Poles; power of municipality to regulate erection of, p. 52 934 INDEX. Police court — A court of record, p. 566 Acting police judge, p. 575 as a de facto officer, p. 575, n. 1 compensation of, p. 576 under defective appointment, p. 575, n. 1 validity of statute authorizing, p. 575, n. 1 Ashtabula, p. 568 salary of judge aiid fees, p. 573 Averment necessary to information, p. 572, n. 1 Cities of the first class, p. 566 Cities of the first grade of the second class, p. 566, 567 Cities of the third^ grade of the first class, acting police judge, p. 575 Cities of the fourth grade A of the second class, p. 568 Cities of the second class, p. 566 Cities of the second class third grade C, p. 568 salary of judge and fees, p. 574 Cities of the second grade of the first class, p. 579 Cities of the second grade of the second class, p. 567 salaries of judges, p. 573 Cities of the third grade, p. 566 Cities of the third grade A, p. 566 Cities of the third grade C, p. 566 Clerk, p. 576 compensation in cities of the third grade C, second class, p. 577 duties as to papers, p. 576 duties of as to journal, p. 577 inability or absence of, p. 578 not to practice in police court, p. 57 8 powers of, p. 576 report of, p. 577 substitute, p. 578 Cleveland, p. 579 clerk, p. 580 compensation of police justices, p. 580 election of police justices, p. 580 jurisdiction and power of police justices, p. 579 process, p. 579 regulations governing courts, p. 579 rules, p. 579 sessions of court, p. 579 vacancy in office of police justice, p. 580 Contempt, p. 571, n. 3 Dayton, p. 567 salary of judge and fees, p. 573 Deputy clerk, p 577 compensation, p. 577 compensation in cities of the first grade of the first class, p. 577 compensation in cities of the second grade of the first class, p. 577 compensation in cities of the third grade of the first class, p. 578 Dispatch of business, p. 572 Fees, p. 575 * Fees of juries and witnesses, p. 574 In cities, p. 441, 566 certain acts not repealed, p. 442 clerk, election and term of, p. 516 clerk, how chosen, p. 442 constitutional provisions concerning, p. 441, n. 1 contempt, p. 587 enforcement of fine, p. 587 INDEX. 935 Police COUrt — Continued. In cities — how fees paid, p. 587 judge, election and term of, p. 516 judges, how chosen, p. 442 juries, how summoned, p. 58G jurisdiction of, p. 442 of certain grades and classes, p. 566 prosecuting attorney, see Solicitor. rules, p. 587 summoning juries, etc., p. 586 vacancies in office of judge and clerk, p. 516 validity of special acts, p. 442, n. 2 Information must be supported by oath, p. 569, n. 1 In hamlets, p. 585 disposition of fines, p. 586 jurisdiction of, p. 585 recognizance in, p. 586 Interpreter, p. 572 In villages, p. 475 judge and clerk of, p. 476 certain acts not repealed, p. 476 jurisdiction of, p. 476 summoning juries, etc. ; p. 586 In what name prosecutions may be carried on, p. 571 Journal, p. 577 Judge may take acknowledgments, etc., p. 569 Juries, p. 574 Jurisdiction in felonies, p. 570 Jurisdiction of, p. 566, 569 Jurisdiction of court and judges, p. 566 Mayor may act as judge, in cities of the third grade C, p. 566 Mode of prosecuting, etc., p. 572 New trials and motions, p. 571, n. 1 Portsmouth, salary of judge and fees, p. 574 Powers, p. 571 Prosecuting attorney, p. 341, 578 salary of, p. 578 in cities of the first grade of the second class, p. 578 Prosecutions in the name of corporation, p. 566, n. 4 Recognizances, p. 575 Review on weight of evidence, p. 571, n. 2 Rules in, p. 571, n. 3, 572 Salary of judge, p. 572 Special acts, p. 566, 566, n. 5 Surplus fees, p. 578 Terms of court, p. 572 Toledo, acting police judge, p. 575 Warrants and affidavits in Zanesville, p. 570 Witnesses, p. 574 Zanesville, p. 570 Police department — In general, p. 53 no liability for negligence in, p. 389, n. 1 power of municipality to organize and maintain, p. 53 power to erect buildings, etc., for, p. 53 pension fund or relief fund in, p. 392, 397 relief fund in, p. 397 beneficiaries of fund, p. 400 board as successor of preceding board, p. 400 how chosen, p. 397 936 INDEX Police department — Continued. In general, relief fund in — officers of, p. 398 term of members, p. 398 custodian of fund, p. 400 fund, how created, p. 398 investment of fund, p. 400 rules and regulations of board, p. 397 trustees of fund, p. 397 stolen property, disposition of, by police, 555 who may arrest, p. 554 In cities, p. 385 appointment in, see Merit System. by board of public safety, p. 385 board of public safety to manage and control, p. 385 chief of, p. 386 appointment of, p. 386 classification of service in, p. 391 composition of, p. 386 contracts in by directors of public safety, p. 385, 391 duties of, p. 389 emergency policemen, p. 385 employing attorney, p. 385, n. 2 merit system in, see Merit System. organizing department, p. 386, n. 1 pension fund in, p. 392, 396 private policemen, p. 386 relief fund in, p. 392, suspension of chief, p. 390 suspension of officers by chief, p. 389 In villages, p. 469 appointment of deputy marshals, policemen, night watchmen, etc., by mayor, p. 469 council may provide deputy marshals, policemen and watchmen, and fix duties, etc., p. 469 deputy marshal, provided by council, p. 469 powers and duties of, p. 469 marshal — disposition and record of stolen property, p 471 disposition of fines, p. 471 duties of, p. 470 election, term, etc., p. 469 fees of, p. 469, 471 powers and duties of, p. 469, 471 report to mayor in regard to stolen property, p. 472 to suppress riots, p. 470 pension or relief fund in, p. 397 policemen, p. 469 removal of deputy marshals, policemen, watchmen, etc., by mayor, p. 469 Police Judge, see Police Court. Police Justice, see Appointment of. p. 585, 586 Police power of municipality, p. 44 Police relief fund, see under Police Department Pollution of water supply; power of municipality to prevent, p. 54 Pool tables, power to regulate, p. 45 Poor, overseers of, see under Board of Health. Posting, see Publication, Notices. INDEX. 937 Pounds, p. 839 Animals running at large, p. 839 may be treated as estrays, p. 840 In certain cities, p. 841 In villages, p. 841 Power of municipality respecting, p. 51 Power companies, powers of, p. 715 Power plants. Appropriation of land for, p. 81 Power of municipality to provide, p. 54 Powers of municipalities, p. 43 As to power to license various employments, see Licenses. As to streets, see Streets. General powers, p. 43 Over canals and. sewers, p. 57 Over drains and ditches, p. 57 Over inspection of spirits and food products, p. 59 Over police and fire departments, p. 53 Over sewage disposal works, p. 57 Over sewers, p. 57 Over streets and other public places, p. 55 Sale or lease of property by municipality, see under Property. Special powers, p. 80 Strictly construed, p. 44, n. 6 To appropriate property, p. 80; see Appropriation of Property. To borrow money, p. 80; see Borrowing Money and Bonds. To erect and maintain pest houses, hospitals, and infirmaries, p. 55 houses of refuge and correction, p. 59 jails, p. 59 morgues, p. 59 prisons and farm schools, p. 59 station houses, p. 59 work houses, p. 59 To establish and regulate hack stands, p. 79 To establish and regulate sewage disposal plants, p. 61 To establish libraries, p. 61 To establish market nouses, p. 59 To establish public baths, p. 61 To establish public halls and buildings, p. 59 To hold and improve public grounds, p. 61 To license ferries, p. 57 To levy and collect taxes, p. 80; see Taxation. To levy and collect assessments, p. 80; see Assessments. To license vault cleaners and sewer tappers, p. 53 To maintain and protect sinking fund, p. 80; see Sinking Fund. To maintain public band concerts, p. 61 To make violation of ordinances a misdemeanor^ p. 63 To preserve peace and protect property, p. 44 To prevent riot, gambling, noise, and disorderly conduct, p. 44 To provide against contagious, malignant and infectious disease*^. p. 55 To provide for disposal of sewage, p. 61 To provide for licensing bill posters, transient dealers and peddlarfi, P. 77 To provide for public health, p. 55 To provide waterworks, lighting, power and heating plants, p. 54 To regulate, auctions, p. 49 buildings, fences, billboards, signs, structures, repair of buildings, elevators, stairways, fire escapes, wires, poles and electrical appliances, p. 52 938 INDEX. Powers of municipalities— Continued To regulate — markets, p. 59 sale of intoxicating liquors, p. 47 taverns and houses of public entertainment, p. 49 theatrical exhibitions and shows, p. 49 use of public docks and landings, p. 57 use of streets, p. 80, see Streets. water closets and privies, p. 57 To rent hospitals, p. 61 To require employment of street car conductors, p. 63 To restrain distribution of immoral literature, p. 61 To sell or lease property, p. 80; see Property. To take census, p. 63 President of council, p- 332 As acting mayor, p. 332, 448 Duties, p. 332 Election of, p. 332 Not a member constituting quorum of council, p. 333, n. 2 Qualification, p. 332 Succeeded by president pro tern., p. 333. Supervision of prisons, etc., p. 587 Term, p. 332 Villages, p. 445, 448 When to make application for division of city into wards, p. 305 Prisons and station houses, p. 362 Appropriation of land for, p. 81 Disposition of prisoners where no work-house, p. 363 Management of, p. 362, n. 1 Power to establish, p. 59 Provision for by council, p. 363 Sustenance for prisoners, p. 362 Privies; power of municipality to regulate, p. 57 Property- Appropriation, see Appropriation of Property. Donations of, may be received, p. 43 for library purposes, p. 61 Execution against municipal property, p. 62, n. 2 Includes real, personal, and mixed estates and interests, p. 827 Of township merged in municipality vests in council, p. 6 Of villages on surrender of corporate powers belongs to school dis- trict, p. 8 Power to acquire by purchase, gift, devise or appropriation, p. 43 scope of power, p. 44, n. 5 Power to hold, manage and control, p. 43 Power to hold real estate for the use of corporation, and to sell or lease same, p. 62 Power to make rules and regulations to carry out provisions of in conveyance, deed or will, in relation to any gift or bequest, p. 43 Railroad stocks owned by municipality, who may sell, p. 110 Sale or lease of municipal property, p. 80, 103 disposition of money arising from, p. 109 disposition of proceeds of sale of street refuse, p. 108 disposition of proceeds of sale of stock, p. Ill exchange of lots for school purposes, p. 109 of gas plants, p. 103, n. 2 of personal property, p. 108 of refuse, street sweepings, etc., p. 108 of real estate, p. 103, 104 advertisement for bids, p. 104 INDEX. Property — Continued. Sale or lease of municipal property — concurrence of board having management of property, p. 105, n. 5 construction of bids, p. 104a, n. 2 construction of provisions as to advertisement, p. 105, n. 8 contract for, p. 104 definition of real estate in this connection, p. 104a, n. 3 effect or conveyance by city, p. 104, n. 2 execution of conveyance, p. 105, n. 6 forms for, see Forms. highest bidder, p. 105, n. 7 order of procedure for, p. 105 of site for passenger railroad station, p. 104 ordinance for, p. 104 strict construction of statutes concerning, p. 104a, n. 2 vote of council, p. 105, n. 4 of stocks in private corporations, p. Ill on time, p. 103, n. 2 property acquired for specific purpose, p. 103, n. 2 Taxation of municipal property, when, p. 62, n. 2, 787 Prosecuting attornay; See Solicitor. Salary of, p. 578 Prostitutes; Power of municipality over, p. 64 Prostitution; houses of; Powers of board of health over, p. 47, n. 1 Restraint of, p. 47 Publication- Mode of publishing ordinances, p. 317, 320, 322, 324 Of notices, p. 317, 827, 828, 829 Of ordinances, resolutions, notices, etc., p. 317 Posting, p. 322 See Notices and Ordinances and Resolutions. Public buildings, P- 732 Appropriation of land for, p. 81 Bonds for, power to issue, p. 288 Cleveland city hall commission, p. 732 Cleveland group plan for public buildings, p. 737 Joint village and township, p. 737a Leasing public hall, p. 738 Power of municipality over, p. 59 Rentals from, p. 738 Timepieces on, p. 844 Public depositary; of money, p. 338 Public entertainment; houses for, power of municipality to regulate, p. 49 Public grounds- Council to have control of, p. 112 Power to appropriate property for, p. 80 Power of municipality over, p. 55 Power to hold and improve, p. 61 Public halls- Power to appropriate property for, p. 81 Power to erect and maintain, p. 59 Power to issue bonds for, p. 288 Leasing of, p. 738 Public peace; Power of municipality as to, p. 44, 64 Public places; power of municipality to establish, etc., p. 55 see Streets. 940 INDEX. Public safety; directors of P- 383 Appointment of directors, p. 383 by governor, p. 384, 384, n. 5 Bonds of directors, p. 384 Compensation of directors, p. 384 Clerk of board, p. 411 Contracts by, p. 385, 391 Duties and powers of, p. 385 Employees, appointment, suspension and removal, p. 330, 404 Fire department, see Fire Department. Merit .system in department of public safety, see Merit System. Not to hold other office, p. 405 Number of directors, p. 383 Organization as a board, p. 384 Police department, see Police Department. Qualifications of directors, p. 383 Quorum of, p. 384 Salary of members fixed by council, p. 384 Terms of directors, p. 383 Public service, directors of, P. 350 Contracts, p. 370 advertisement, length of, p. 374, n. 5 advertisement, mandatory, p. 370, 373a, n. alterations or modifications, p. 371 what can be made without new bidding, p. 375, n. 10 bids, p. 370, 380 bonds, sufficiency of, p. 374, n. 7 bonus, p. 371 collusion among bidders, p. 371 combination among bidders, p. 375, n. 9 defective contract void, p. 382, n. 2 delegation of power, p. 372, n. discretion in awarding, p. 372a, n. 4 discretion to reject all bids, p. 375, n. 8 execution of, p. 381a filing of, p. 381a for both labor and material, p. 380 illegal requirements, p. 177, 374, n. 5 liability of municipality on contracts, p. 372, n., 381a manner in which contracts shall be awarded, p. 380 newspapers, meaning of, p. 374, n. 6 officers not to be interested in, p. 382 parties to the contract, p. 371 patented articles not to be required, p. 177 penalty, p. 371 power to reject all bids, p. 371 reconsideration of rejectment, p. 375, n. 8 regularity of bids, p. 874, n. rescinding contract, p. 375, n. 8 separate bids for distinct parts, p. 381, n. 1 specifications not to provide for patented articles or processes, p. 177 splitting up contract, p. 372, n. 3 sufficiency of advertisement, p. 373a, n. 5 when contract complete, p. 375, n. 8 water power, contract for, p. 381a Department of purchase, construction and repair, p. 63b Duties, p. 350 Election, p. 350 Employes in department, p. 330, 382 Houses of refuge, under control of, see Houses op Refuge. Hospital, under control of, see Hospitals. Infirmaries, under control of, see Infirmaries. INDEX. 941 Public service, directors of— Continued. Municipal utilities and properties managed by, p. 350, 351 Number of members fixed by council, p. 350 Platting commission, as, see Platting Commission. Powers and duties, p. 350, 351 Number of members fixed by council, p. 350 Prisons and station houses, see Prisons and Station Houses. Qualification, p. 350 Record of proceedings, p. 382 Removal of employes, p. 330, 382 Salary of members fixed by council, p. 326 Station houses, p. 362; see Prisons and Station Houses. Supervision of improvement and repair of streets, etc., p. 350 Suspension of employes, p. 330, 382 Term, p. 350 Vote necessary for adopting of order or resolution, p. 381a Workhouses, under control of, see Workhouses. a Quarantine, see under Board of Health. Quorum, see Council, Public Service, Directors of, Public Safety, Directors of, and Hamlets. R Railroads; owned by municipalities, p. 695 Street, see Street Railways. Steam, see Steam Railroads. Railway tracks; appropriation of right of way across by municipality, p. 80 Reading rooms; power of municipality to establish, p. 61 Real estate; power of municipality to acquire and hold, p. 62 Sale or lease of, see under Property. Re-assessment; see under Assessments. Recorder, county; duties of, respecting annexation of territory to muni- cipality on application of its inhabitants, p. 29 respecting incorporation of villages, p. 14 respecting surrender of corporate powers, p. 7 Record Of proceedings in annexation of one municipality to another, see Annexation, etc. Reduction of city to village, p. 4 Reformatories; appropriation of land for, p. 81 See Charitable and Reformatory Institutions, Houses of Refuge, Workhouses. Registration Of births, marriages and deaths, p. 437 Of bonds, p. 286 Of electors, in case of vote on bond issues, p. 293 Relief funds; see under Police Department. Removal of officers; see under Officers. Repeals by new code, p. 517 By implication, p. 528, n. When repeals go into effect, p. 516 942 INDEX. Reports; publication of, p. 317 see under various boards and officers. Resolutions and ordinances; se © Ordinances and Resolutions. Review, Board of, see under Taxation. Revision Board of, see under Taxation. Of plats, see under Plats. Riot; power of municipality to prevent, p. 44; see Police Depart- ment. Riparian rights of municipality, p. 54, n. 1 Roads in municipal limits, see Streets, Turnpikes and Plank Roads. As affected by annexation, p. 26, n. Construction and repair of by county commissioners, p. 755 cities in adjoining counties may aid, p. 760 Levy of taxes for, p. 756, 757, 758 Municipality may assist in construction, p. 760 Repair of in municipality, p. 762, 763 Road districts, p. 136 labor upon highways within, p. 138 road tax, p. 137 Road tax, p. 756 Rolling roads, municipal power to grant use of streets for, p. 56 Sidewalks along, p. 774b When road is boundary of municipality, p. 761 When road may be extended to village, p. 759 s Sale of goods on streets ; power of municipality to regulate, p. 50 Saloons; see Intoxicating Liquors. As nuisances, p. 48, n. 2 Extent of power of municipality over, p. 48, n. 2 Power to regulate ale, beer and porter houses, p. 47 Sanitary board; see under Board of Health. Sanitary plant; see under Board of Health. Sanitary police; see under Board of Health. Pension of, see under Board of Health. Sanitary purposes; power to issue bonds for, p. 288 Saving of rights under previous laws, p. 477 School districts as affected by annexation, p. 26, n. Seal of corporation, p. 43, 43, n. 3 Of what it may consist, p. 532 Official, see under Officers. Sealer of weights and measures, p. 550 Comparison and sealing weights and measures, p. 550 Duties of, p. 550 In Toledo, p. 551 State sealer to furnish copies of standards, p. 553 Secretary Of State ; proclamation of population of municipalities, p. 4, 850 To receive transcript of proceedings for annexation of territory to mu- nicipality on application of its inhabitants, p. 29 INDEX. 943 Secretary of state — Continued. To receive transcript of proceedings in the annexation of one munici- pality to another, see Annexation, etc. Sewage ; power of municipality to provide for disposition of, p. 61 Companies, p. 768 Power of municipality to establish and regulate, p. 61 Sewage disposal plants; appropriation of land for, p. 81 Power of municipality over, p. 57 Sewers, A proper use of streets, p. 58, n. 3 Appropriation of land for, p. 81 Adoption of system, p. 245, n. 2 Amendment of plans, p. 249 Assessments, p. 253 by districts, p. 252, n. 3 corner lots, p. 254, n. defenses to assessment, p. 254, n. instalments of, p. 253 limitations to assessments, p. 201, 254, n. ordinance for, p. 253 property subject to, p. 254, n. uniformity of, p. 255, n. what costs and expenses included, p. 254, n. City engineer to devise a plan of sewerage, p. 244 Construction of without general plan of sewerage, p. 255 Contract, how let, p. 253 Council may borrow money for construction of, p. 257 Defect in ordinance, p. 252, n. 2 Defect in plans, p. 245, n. 2 Defect in proceedings, p. 254, n. Discretion of council as to outlet, p. 247, n. 2 Engineer to estimate costs, p. 249 House connections, p. 245, n. 2 Intersections, p. 254, n. Joint sewers constructed by two or more municipalities, p, 255 Liability of municipality, p. 245, n, measure of damages for break, p. 246, n. Local drainage, p. 204, n. Management of system constructed by two or more municipal itifc* jointly, p. 257 Municipality may contract with sewer company, p. 769 Necessity of estimate of cost, p. 250, n, 2 Negligence in constructing, p. 245, n. 2 Notice of completion of plans to be advertised, p. 248 Objection to plans, p. 248 Order of procedure in sewer improvement under general plan> p. 246 Ordinance authorizing construction of, p. 251 Ordinance for assessment of costs, p. 253 Ordinance to construct, time of passage, p. 252, n. 2 Plans, how prepared, p. 248 Pollution of watercourse by discharge of sewers, p, 246, n. Power of municipality over, p. 57 Power to issue bonds for, p. 288 Private; appropriation of by municipality, p. 85, n. 9 Pumping stations, etc., p. 257 Resolution declaring necessity, p. 250 notice of and necessity for, p. 250 Sewage farm, p. 258 Sewer districts, p. 247 Sewerage companies, p. 768 944 INDEX. Sewers — Continued. Sewerage companies — municipality may contract with, p. 769 power of municipality not limited, p. 769 Tappers and vault cleaners, power of municipality to license, p. 53 Tapping sewers, p. 245, n. 2 Written notice to owners, p. 252, n. 2 Shooting and ball alleys; regulation of by municipality, p. 45 SllOWS J power of municipality to regulate public, p. 49 Sidewalks, p. 236 Assessments for, p. 241 bond issue in anticipation of, p. 241 certificate of money in treasury not necessary in case of, p. 242, n. 2 corner lot doctrine not applicable to, p. 242, n. 3 limitation on, p. 240 n. ordinance, how passed, p. 242, n. 4 Cleaning of by corporation at owner's expense, p. 240a Construction along property of corporation, p. 244 Construction on one side of street only, p. 273 ordinance must be reasonable, p. 273, n. 2 Construction or repair of by corporation at owner's expense, p. 239 Council to provide for construction and repair of, p. 236 Curbing as a part of, p. 236, n. 2 General construction, of p. 241 Municipal liability for failure to keep in repair, p. 117 n. Notice to owners to clean, p. 240a Notice to construct or repair, p. 237 character of, p. 238, n. necessity for, p. 238, n. 3, 240, n. 2 publication of, p. 239 return of, p. 237 service of, p. 237, 238, n. to non-residents, p. 239 Repair or construction of at owner's expense, p. 239 Resolution ordering, is of permanent nature, p. 237, n. 2 Sufficiency of sidewalk, p. 238, n., 240, n. 2 Villages, special provision for petitions for sidewalks, p. 774 Signs; power of municipality to regulate erection, p. 52 Sinking fund, p. 297 Duty of council as to levy for, p. 299 How funds should be invested, p. 299 How money to be drawn and deposited, p. 300 Power to maintain, p. 80 Refunding bonds, competitive bidding required for, p. 301 issue and limit of, p. 301 Recording of bonds, p. 302 Tax for creating, p. 297 Trustees of, p. 297 appointment, p. 297 as tax commissioner, p. 297 auditor's or clerk's report to, p. 299 authority to issue refunding bonds, p. 301 compensation and bond, p. 297 duty of council as to levy, p. 299 duty with respect to bonded indebtedness, p. 298 in cities, p. 297 investigations by, p. 300 INDEX. 945 Sinking fund — Continued. Trustees of — in villages, p. 297 meeting, p. 298 municipal bonds, first offered to, p. 282 organization of board, p. 298 power to make investigations, p. 300 power to sell or use securities, p. 300 record of proceedings, p. 298 report of council, p. 299 required to issue registered bonds for coupon bonds, p. 302 Smoke; regulation of by municipality, p. 46 Soldiers Monuments, p. 842 Soldiers relief, p. 639 Solicitor in cities; p 340 Action for forfeiture, p. 342 Action for specific performance, p. 342 Action of mandamus by, p. 342 Annual report to council, p. 348 As counsel of school board, p. 549 As prosecuting attorney of police court, p. 341, 348 Assistant may act as prosecuting attorney of police court, p. 341 Duty to give opinions, p. 549 Duty as to suits, p. 548 Election, p. 340 Injunction provisions construed, p. 342 Injunction suit by, p. 342 estoppel as defense, p. 345, n. bond for preliminary order not necessary, p. 342, n. must be brought within one year from uate of contract or bonds enjoined, p. 341 Powers and duties, p. 340 Prosecuting attorney of police court, p. 348 inability or absence of, p. 349 Qualification, p. 340 Taxpayer may be required to give security for costs p. 343 may sue on failure of solicitor at his request, p. 343 Taxpayer's action; attorney's fees, p. 347 character of action, p. 344, n. costs, p. 347 duty of court, p. 347 estoppel by laches, p. 345, n. interest of taxpayer, p. 346, n. legislation not enjoinable, p. 344, n. non-resident taxpayer, p. 346, n. pleading and practice, p. 346, n. prosecuting error, p 346, n. relative to street railway grants, p. 344, n. request to solicitor, when necessary, p. 347. n. 3 statute construed, p. 343, n. 2 taxpayer's motive in bringing suit, p. 346 when brought, p. 345, n. Term, p. 340 To pay over moneys received, p. 342 Solicitor in villages, p. 446 Ordinance providing for, p. 447 Special assessments; see Assessments. 946 INDEX. Special election upon question of incorporation of village on lands not platted, p. 17 Special powers of municipalities, p. 80 See Powers of Municipalities. Speed of interurban traction and street railway cars, power of munici- pality to regulate, p. 50 Of steam railroads, power to regulate, p. 681 Spirits and food products; power of municipality to regulate, p. 59 Sprinkling streets, see under Streets Stairways; power of municipality to regulate construction of, p. 52 Station houses and prisons; see Prisons and Stationhouses. Stands, cab, etc., power of council to establish and regulate, p. 79 Statutes — Acts relating to council, when not repealed by code, p. 327 Amendatory and supplementary acts, p. 479, r Amendment of act incorporated, p. 479, n. Construction of the code, p. 478, n. 1 Definitions, p. 827 Effect of change of phraseology in revision, p. 479, n. Effect of codification and revision of, p. 478, n. 1 General law not repealed by implication by special act, unless neces- sary, p. 529, n. General law repealed special act where the two are irreconcilable, p. 529, n. General revision as substitute repeals former acts by implication, p. 528, n. 2 How words of enactment or repeal of, to be construed, p. 478 Later contradictory statutes repeal earlier by implication, p. 528, n. 2 Repeal of act incorporated, effect of, p. 479, n. Repeals by implications, p. 479, n. 528, n. 2 Repeals by new code, p. 517 When new code takes effect, p. 516 When repeals go into effect, p. 516, n. 1 Steam railroads in municipal limits, p. 679 Abolishing grade crossings, p. 691 apportionment of cost between city and company, p. 693 circuit court to settle differences between company and city, p. 692 cost of maintenance, how borne, p. 694 how necessary land acquired, p. 694 height of viaducts, p. 694 plans and specifications for, p. 692 street railway to bear share of expense, p. 695 Appropriation of municipal property for, p. 84, n. 5 Appropriation of right of way across for streets, p. 80 Bridges over railroad crossings, p. 686 Common use of track in street, p. 690 Construction and maintenance of highway crossings, p. 687 Crossing highway, p. 684, 687, 690b Crossing other railroads, p. 688, 690a Crossings in Hamilton, p. 681 Damages to private property, p. 682 Depot, sale of municipal property for site, p. 104 companies, p. 695 Diversion of road or stream, p. 684 Electricity as motive power, p. 685 Height of bridges over railroad tracks, p. 688 Liability of company for exceeding speed permitted by ordinance, p. 682 * INDEX. 941 Steam railroads — Continued. Lighting of tracks, p. 674 council may require, p. 674 electric light cannot be required, p. 674 expense, how assessed, p. 677 lien for, how enforced, p. 678 notice of requirement, p. 676 ordinance for, p. 674 character of, p. 675 Limitation of actions for damages to property, p. 684, n, 3 Kailroads owned by municipalities, p. 696 Regulation of crossings, p. 679 of rate of speed, p. 681 of switches, etc., p. 687 Restoring highway, p. 685, n. 2 Right to use certain crossings, p. 690 Rights of abutting owner, p. 684 Right to occupy road, street, etc., p. 682 Stopping at certain stations, p. 685 Union depot companies, p. 695 Unlawful use of highways in certain cities, p. 690 Watchmen at certain crossings, p. 690 -Steam whistles; regulation of by municipality, p. 46, 47, n. 4 Stocks owned by municipality, sale of, p. 110 Stolen property, disposition of, 555 Street commissioner; p. 455, 550 Appointment, p. 455 Compensation of, p. 550 Duties, p. 455, 550 May be marshal, p. 456 Qualifications of, p. 455 Term, p. 455 Vacancies, p. 455 Street improvements; see Improvements and Assessments. Street railways, P- 142, 698 Acceptance of grant a contract, p. 147, n. Advertisement of application for franchise, p. 149 Application for grant or franchise, p. 146, 146 n. 1, 149 Appropriation of property, p. 706, 711a oath in appropriation proceedings, p. 707 Appropriation of track of other company, p. 145, n. 5, 707, n. 2 Bidding for franchise, p. 149 construction of bids, p. 151, n. 3 Change of motive power, p 143, n. 2 Change of route, p. 712 Cincinnati, route in, made valid, p. 708 Conductors on street cars, power of municipality to require, p. 63 Consents of abutting property owners, p. 150, 151, n, 704 conclusiveness of council's finding, p. 152, n. 2 purchase of, p. 153, n. 4 remedies for lack of, p. 153, n. when necessary, p. 153, n. 4 withdrawal of, p. 153, n. 4, 705 Consent of authority controlling public roads, p. 707 Consolidation of, p. 701 Consolidated company, liability for tort, p. 702, n. 2 relation to constituent companies, p. 702, n. 2 status of constituent company, p. 702, n. 2 948 INDEX. Street railways — Continued. Construction of statutes, p. 146, n. 6 of ordinance, p. 146, n. 2 Council to fix terms and conditions of construction, consolidation, etc., p. 708 Curative act, p. 156 Definition of, p. 142, n. 2 Effect upon access to private property, p. 143, n. 2 Establishment of route, p. 149 Extensions, p. 144, 145, 699 beyond city limits, p. 145, n. 2 in city of the first grade of the first class, p. 709 over other tracks, p. 144 how length of track determined, p. 145, n. 5 Forms relating to grants; see Forms. Frogs at crossings, p. 698 Grade of streets when street railroad is constructed, p. 698 Grant cannot be exclusive, p. 147, n. Grant for longer than legal period, p. 153, n. 5 Grant must be definite, p. 147, n. Grant protected by federal constitution, p. 147, n. Gross earnings, p. 147, n. Injunction against illegal grant or violation of ordinance, p. 148, n. 2 Illegal conditions in grant, p. 147, n. Inclined plane railways, p. 713 Interurban railways defined, p. 142, n. 2 terminal depots and rights, p. 713 use of tracks of city company, p. 702a Lease or purchase of, p. 700 Lease or purchase of electric or gas plant, p. 703 Lease, purchase and traffic arrangement, p. 711 License fees, p. 147, n. Mansfield, p. 711 Municipality cannot construct, p. 143a, n. Not an additional burden upon the street, p. 143, n. No release of grantee from obligations of grant, p. 144, 145, n. 4, 150 Occupancy of track of one railway by another, p. 144 Ordinance to construct, p. 146, 146, n. 2 Pavement of street where railroads are constructed, p. 699 Power to grant franchises cannot be delegated, p. 145, n. 3 Power to regulate speed of cars, p. 50 Publication of notice of application when necessary, p. 150, n. 2 sufficiency of, p. 150, n. 2 Release from obligation of grant, p. 153, n. 6 Remedies in cases of illegal grants, p. 148, n. 2 Renewal of grant, p. 146, 148a, n. 3 Repair of crossings, p. 710 Resolution establishing route, p. 149 Screens for motormen, p. 709 Sprinkling of right of way may be required by council, p. 712 Stopping at steam railroad crossings, p. 710 Terminal depots, franchises for, 713 Terms and conditions of grant, p. 146 Terms and conditions of construction, etc., how fixed, p. 708 Through park, p. 62, n. 1, 143a, n. Time limit of grant, p. 150 Unexpired franchises, regranted, p. 156 Use of tracks of another company, p. 702a Validating grants, p. 157, n. 1 Vested rights not to be impaired, p. 156 Watchmen at street crossing, etc., p. 708 Where they may be constructed, p. 142 Who may grant authority to construct, p. 144 INDEX, 949 Streets, p- 55, 112, 755 Abutting owners' rights, p. 115a, n. Additional burdens on, what uses impose, p. 115a, n. Adverse possession as against municipality, p. 116, n. Appropriation of property for opening, widening, straightening and changing grade of, p. 80 Appropriation of land for obtaining material for improving, p. 80 Appropriation of right of way over railway tracks, p. 80 Avenue companies, power to condemn avenue belonging to, within corporate lim- its, p. 766 Bridges, appropriation of land for, p. 81 bridge companies, p. 762 constructed by counties, p. 112, n. county bridges in municipalities; see Bridges. power of municipality to construct, p. 55 power to issue bonds for construction of, p. 289 Change of name, p. 130 Cleaning streets, p. 231 Compensation for use of, p. 113, n. Condition in dedication, p. 130, n. Council to have control of, p. 112 County bridges and roads in municipal limits, p. 755 See Bridges, Roads. Dedication of, p. 127 acceptance of dedication, p. 129, n. acceptance of by council, p. 127 common law dedication, p. 128, n. condition in, p. 130, n. dower right, p. 130, n. estoppel in, p. 129, n. intention to dedicate, p. 128, n. kinds of dedication, p. 128, n. platting commission's plan, acceptance of, p. 369 what included in, p. 130, n. Detachment of territory for road purposes, p. 137 Exemptions from labor on public highway, p. 137 Extraordinary use of, p. 115c, n. Grade, change of, damages for; see Damages. establishment of, p. 55, 193, 230 Highways defined, p. 112, n. 2 Improvement of; see Improvements, Assessments, Sewers. Labor upon, p. 136 accounts by supervisors for labor, p. 141 appearance with required inmplements for, etc., p. 140 collection of fines imposed, p. 141 commutation of labor, p. 139 penalty for delinquent, p. 138 residences of citizens, p. 140 suits for failure to perform, p. 139 upon public highways, p. 761 Municipal liability regarding, p. 116, n. contributory negligence as affecting, p. 120, n. for failure to keep in repair, p. 116, n. for injury caused by agent, p. 118, n. for injury caused by independent contractor, p. 119, n. measure of damages, .p 122, n. notice as a condition precedent to, 119, n. Name of street changed, p. 130 petition when necessary, p. 131, n. 3 National road, see National Roads. Nuisances, in streets, p. 772d Oiling of streets, p. 772a On state lands, p. 755 950 INDEX. Streets — Continued. Opening of, by ordinance, p. 122 power to issue bonds for, p. 289 Petition for vacation or establishment, p. 134 Power of council over use of, p. 114, n. Power of municipality to establish grade, p. 55 to regulate sale of goods on, p. 50 • transaction of business on, p. 50 to issue bonds for improvement of, p. 289 Property owners' liability, p. 121, n. Railroads in, see Steam Railroads, Street Railways. Railroad, use of, p. 115, n. Regulation of use of, power of municipality, p. 50, 80 fast driving, p. 50 speed of street railway cars, p. 50 transaction of business on, p. 50 transportation of goods, p. 50 vehicles, p. 50 Repair of, liability for failure to maintain, p. 116, n. power to issue bonds for, p. 289 Roads in municipal limits, p. 763, see Roads. Road taxes, how collected and applied, p. 137 See Roads. Sewerage companies' use of, p. 768 Sewers, a proper use of, p. 58, n. 3 Sidewalks along roads authorized, p. 774^ Sprinkling streets, p. 231, 772 how and by whom to be done, p. 231, 772 ordinance for, p. 231, 772 petition for, p7 772 street railway companies to pay portion of cost, p. 772 tax levy for, p. 772 Title in municipality, p. 113, n. Tollgates in, when municipality extended beyond tollgate, p. 126, n. 1, 764 See Tuenpikes and Pla.nk Roads. Turnpikes in municipal limits, p. 112, n., 123, 763 See Turnpikes and Plank Roads. adaptation of to corporation uses, p. 125 assessment of cost of condemnation, p. 124, n. 1 company's rights, p. 123, n. 1 right to require city to keep in repair, p. 124 condemnation of, for street purposes, p. 123, n. 1, 124 contract with turnpike companies, p. 124, n. 1 improvement of within municipality, p. 124 right to toll, p. 126 Vacation of, by council, p. 130 by court, p. 134 damages for, p. 131, n. 2 damage to municipality, p. 135, n. 1 effect of, p. 133 injunction against, p. 131, n. 2 injunction against closing street, p. 136, n. 1 petition for, p. 134 publication of application for, p. 132 reverter on, p. 131, n. 2, 133 n. 1 statutory method of, exclusive, p. 131, n. 2 street not to be closed until damages paid, p. 136 who may recover damages for, p. 135, n. 1 Viaducts, bonds for, p. 770 construction and repair of, p. 770 Viaducts, bonds for, p. 289, 770 construction and repair of, p. 770 INDEX. 951 Structures; power of municipality to regulate erection of, p. 52 Subways for telephone and telegraph wires, p. 716 See Conduits. Suits; see Actions. Superintendents Of markets; duties and compensation of, p. 550 Surrender of corporate powers, P- 7 Effect of, p. 7 Election for, p. 7 Old sections regarding, p. 8, n. 1 Record of, p. 7 Suspicious Characters; power of municipality over, p. 64 Swindlers; power of municipality over,. p. 64 T Taverns; license of, p. 73 Power of municipality to regulate, p. 49 Taxation, p. 157 Annual budget, p. 163 duty of council concerning, p. 164 Auditor's certificate; contracts running beyond the year, p. 176 condemnation of real estate does not necessitate auditor's ceiv tificate, p. 174, n. contract for lease of electric light or waterworks plant does not require auditor's certificate, p. 173 contracts for lighting and for disposing of garbage do not require auditor's certificate, p. 173 essential for validity of contract, p. 172 exceptions implied by statutes, p. 175, n. necessary for running expenses of corporation, when, p. 175, n. when not required, p. 173, 174, n. when money deemed to be in treasury, p. 177 Board of examiners may be appointed by mayor, p. 163 Change of levy by tax commissioners, p. 164, n. 2 Clerk in villages to perform certain duties of city auditors, p. 167, n. 2 Contingent fund, p. 168 County auditor's duty on receipt of levy, p. 164 Distinction between tax and license fee, p. 158, n. Distinction between tax and local assessment, p. 158, n. Duty of municipal treasurer regarding, p. 166 Effect of ordinance levying excessive tax, p. 159, n. Effect of ordinance without auditor's certificate, p. 176, n. Equalization of assessments, p. 799 Equalization of taxes, p. 789 annual city board of equalization, p. 791 board of review for municipal corporations, p. 789 Cincinnati and Cleveland, p. 794 decennial city board, p. 801 duties and powers of boards, p. 799 Springfield, p. 794 Estimates by heads of departments, p. 159 Estimates of officers to be furnished mayor and auditor, p. 162 Exemptions from taxation, p. 787 Fiscal year, p. 167 For aid to art gallery, p. 492 For fire protection purposes, additional tax, p. 786, 787 For gas or oil well, p. 667 For natural gas works, p. 157, n. 2 For payment of debts, p. 157, n. 2 For waterworks and electric light plants in villages, p. 787 How taxes collected, p. 166 952 index. Taxation — Continued. Levy and collection of taxes, p. 80 Levy on annexed territory, p. 165, n. 3 Levy to be certified to county auditor, p. 164 Maximum of municipal taxes, p. 158 Mayor's report to council concerning departments, p. 163 Method of collection where no mode provided, p. 167, n. 2 Money certified by auditor not to be otherwise used, p. 172 Monthly statement of balances, p. 171 Municipal officer not to be interested in contract, p. 172 No inherent power to tax, p. 157, n. 2 Of lands annexed to municipality, p. 26, n. Of municipal property, p. 62, n. 2 Order of procedure in municipal tax levies and appropriations, p. 160 Power of council to levy and collect taxes, p. 157 Public purpose necessary, p. 157, n. 2 Purposes of municipal, p. 157 Reports by officers to mayor on request, p. 162 Requirements of estimates mandatory, p. 160, n. 2 Restrictions as to contracts, appropriations and expenditures, p. 172 Semi-annual appropriations, p. 167 approval necessary, p. 169, n. 4 balances, p. 168 contingent fund, p. 168 legality of purpose, p. 169, n. 3 must be detailed, p. 169, n. 2 procedure in, p. 161 transfer of balances, p. 168 unforeseen emergency, p. 169, n. 6 Statements to be furnished by city auditor and village clerk, p. 161 Surplus of special tax on loan transferred to special fund, p. 785 Tax commission, p. 178 appointment of members, p. 178 approval of levy by tax commissioners of certain cities, p. 784 clerk of, p. 178 no compensation for members of, p. 178 members of, p. 178 oath of members, p. 178 organization of board, p. 178 power and duties of, p. 179 record of proceedings, p. 178 term of members, p. 178 vacancies in, p. 178 Time for certifying levy to county auditor, directory, p- !$*• n 2 Transfer of public funds, p. 170 court proceedings and decree .for, p. 170 petition for, p. 170 Unexpended balances, transfer of, p. 171 Uniformity in, p. 158, n. What taxes included in maximum allowed, p. 158, n. 2 When tax above maximum may be levied, p. 159 Tax commission; see Taxation. Tax payers ; actions by ; see under Solicitor. Telegraph; see Magnetic Telegraph Companies. Territory; annexation and detachment of, p. 25 See Annexation of Territory, Detachment of Territory. Telephone companies, p. 715 Probate court's jurisdiction, p. 714 Right to use streets, p. 714 INDEX. 953 Telephone companies — Continued, Subways for wires, p. 716 Validity of prior contracts, p. 717 Tenpin alleys; power to regulate, p. 45 Terms, of officers, see under various officers. Of police court, see under Police Coubt. Theatrical exhibitions; power of municipality to regulate, p. 49 Thieves; power of municipality over, p. 64. Thistles; see Bbiers and Canada Thistle. Time-piece on public buildings, p. 844 Tires; powers of council; to regulate width of, p. 79 Tollgates; see Turnpikes and Plank Roads. Title, of new code, p. 1, n. 1 As aid in construction of code, p. 1, n. 1 Township, boundaries; change in certain cases, p. 829 Division and transfer of funds of, when village created, p. 22 Merger in municipality, p. 6 Municipality is part of, for election purposes, p. 7, n. Officers in case of merger of township in municipality, p. 6 Trustees, procedure on application for incorporation of village on lands not platted, p. 16 Traction cars; power of municipality to regulate speed of, p. 50 Transient dealers — License of, p. 77, 78 constitutionality of ordinance, p. 78, n. 1, 79, n. Transportation; powers of council to fix rate of, p. 79 Treasurer; advanced payment to by county treasurer, p. 546 County; having charge of city and school funds, p. 541 See County Treasurer. In cities, p. 337 accounts to be kept by, p. 339 collection of judgments, etc., by, p. 339 custodian of all municipal funds, p. 340 deposit of moneys in banks, p. 338 disbursement of moneys by, p. 340 election, p. 337 may be mandamused to pay orders, p. 339, n. 3 powers and duties, p. 337 profits from deposits of money, p. 338 « public depositary, p. 338 qualification, p. 337 settlement with county treasurer, p. 339 school funds disbursed by, p. 340 term, p. 337 quarterly account, p. 340 In villages, p. 455 duties of, p. 455 election of, p. 455 powers of, p. 455 qualifications of, p. 455 term of, p. 455 Release of, from liability for loss of funds, p. 546 Trees in public places and grounds ; regulation of by municipality, p. 56 954 INDEX. Trial of officers, see Officers and Merit System. Trustees of public affairs, P- 457 Acquisition of land for water works purposes, p. 459 Annual report of water works receipts and expenditures, p. 462 Assessment and collection of water rents, p. 460 Authority to supply contiguous villages or cities with water, p. 466 Board created by council in villages, p. 457 By-laws of water works department, p. 460 Construction and regulation of water mains, etc., p. 465 Contract for water with contiguous village, p. 466 Contractors in water works department to give bond, p. 464 Contracts for water works department, p. 462 Disposition of surplus of water rents, p. 461 Duties of board of, p. 457 Duties with respect to water works, p. 459 Election of, p. 457 Electric light plants, under control of, p. 459 Extension of water mains, etc., p. 464 Investigation by council of water works department, p. 462 Limitation, creating water works debts, p. 468 Monthly reports to council of water works receipts and expenditures, p. 462 Municipal liability in water works department, p. 460, n. 1 Municipalities may contract for water, p. 468 No charge for water to extinguish fires, p. 462 Not to be interested in contracts, p. 464 Orders on water works fund how signed, p. 462 Ordinance establishing board, p. 458 Organization of board, p. 457 Pipes in highways, p. 467 Powers of board of, p. 457 Protection of attachments to water works pipes, p. 463 Purchase of real estate, p. 460, n. 1 Removal of appointees, p. 460, n. 2 Rules as to contracts in water works department, p. 463 Salary of members, p. 459 Tax for payment of certain interest, p. 467 Tax for water works purposes a lien, p. 467 Term, etc., of members, p. 457 Termination of water works contract on annexation, p. 466 Vacancies in board, p. 457 Water works funds to be kept separate, p. 462 Water works in case of annexation of one municipal corporation to another, p. 466 Water works in contiguous villages or cities, p. 465 Water works under control of, p. 459 When board to be created, p. 457 When members may be appointed by mayor, p. 4^7 Trustees of sinking fund; see Sinking Fund. Turnpikes and plank roads — Adaptation to municipal uses, p. 125 Appropriation of for street purposes, p. 123, 124 Condemnation of for street purposes, p. 124 Cost of improving by municipality, provision for, p, 124 Power to issue bonds for, p. 287, 288 Repair of, by municipality, p. 123, 763 proceedings to enforce, p. 764 remedy for neglect, p. 124 Rights of turnpike company in municipality, p. 123, n. 1 index. 955 Turnpikes and plank roads — Continued. Right to toll not to be impaired, p. 126 Tollgate in municipal limits, p. 126, 126, n., 764 Turnpike companies, p. 123, 763 sale of bridge or part o'f road to municipality, p. 765 Universities, p . 485. Accounts of receipts and expenditures of endowment p 489 Actions against, p. 486a, n. ' Appropriation of property for grounds, p. 81 Authority of vested in board of directors, p. 485 Citizens not to be charged for admission 'of children p 489 Directors of, appointment of, p. 486 ' powers and duties of, p. 486, 488 when board may confer degrees, p. 490 How trust funds to be applied, p. 487 May accept trust funds, p. 486a Site and ground for universities, p. 490 Tax for, how levied, p. 490a Trusteeship to vest in city, etc., p. 487 Union depot companies, p. 695 Uniform accounting by officers, p. 560 Urinals; appropriation of land for, p. 81 Vacating, plats; see under Plats. Streets, see under Streets. Vaccination; Board of Health may provide for, p. 434 Vagrants; power of municipality over, p. 64 Validity of new code, p. 1, n. 1 Veto, by mayor, see Mayor. Vehicles; power of municipality to regulate use of, p. 50 Width of tires may be regulated, p. 50 Viaducts; appropriation of land for, p. 81 Construction and repair of, p. 770 bonds for, p. 770 Power of municipality to establish, etc., p. 55 Power to issue bonds for, p. 289 Village, clerk; see under Clerk. Fire department, see Fire Department. Incorporation of, see Incorporation of Villages. Limit of population, p. 1 List of villages under secretary of state's proclamation, p. 5, 851 Meaning of word, p. 827 Parks and institutions, p. 456 Police department, see Police Department. Street commissioners, see Street Commissioner. Surrender of corporate powers, see Surrender of Corporate Powers. 956 INDEX. Village Clerk — Continued. Treasurer, see Treasurer. Trustees of public affairs, see Trustees of Public Affairs. Visitation, p. 828 Voting on submitted questions, p. 845 Precincts, see under Council. w Wards; council to divide city into, p. 305 Waste of water ; power of municipality to prevent, p. 54 Watch-stuffers ; power of municipality over, p. 64 Water closets; appropriation of property for, p. 81 Power to regulate, p. 57 Power to establish and repair, p. 57 Water companies — May sell and furnish water to municipalities, p. 669 May lay conductors in the streets, p. 668 May contract with municipal authorities, p. 669 Powers of company, p. 668 Price charged may be regulated by council, p. 656 Water COnrses; Appropriations of land for, p. 81 Definition of, p. 58, n. 2 Improvement of; power to issue bonds for, p. 288, 289 Power of municipality over, p. 57, 656 Power of municipality to keep open and pure, p. 65 Water rents; nature of, p. 54, n. 1 Power to assess limited, p. 54, n. 1 Power to apply water charges, p. 54 What property assessable for, p. 54, n. 1 Water works — Appropriation of land for, p. 81 Cincinnati — new water works act, p. 646 water rents in, p. 644 Construction and regulation of pipes in contiguous village, p. 646 In cities, Board of Public Service to have charge of, p. 351 In villages, see Trustees of Public Affairs. Power of municipality to provide, p. 54 Power to issue bonds* for, p. 288 Weighing; power of municipality to regulate, p. 52 Weights and measures ; power of municipality over, p. 52 Sealer of, see Sealer of Weights and Measures. Wharves ; appropriation of land for, p. 81 Construction of, and municipal regulations, p. 57, n. 2 power to issue bonds for, p. 288 Power of municipality over, p. 55 Power of municipality to establish, etc., p. 55 Regulation of by municipality, p. 56 Whistles ; regulation of by municipality, p. 46 1.NDEX. 957 Wires; power of municipality to regulate stringing of, p. 52 Subways for, in streets, p. 716, 718 Wood J power of municipality to regulate measurement of, p. 52 Workhouses, p. 363, 61 1 Agreement for use of, p. 624 Appropriation of land for, p. 81 Attempt to escape, p. 612 Board of directors in case of joint county, work under, p. 613 Commissioners of counties may unite in erecting, p. 613 Commitment, p. 611 by common pleas court; proceedings under, p. 625 by courts other than common pleas; proceedings under, p. 625 County commissioners' proceedings in erection and direction of joint workhouses, p. 614 County may unite with city in erecting, p. 612 Cumulative sentence, p. 611 Fees, p. 612 Fees of officers of joint city and county workhouses, p. 623 Habitual offenders, p. 611 Improvement of grounds, etc., of joint city and county workhouses, p. 623 Inmates from other counties, p. 620 May receive prisoners from other counties, p. 612 Muskingum county, joint city and county workhouse in, p. 616, 617, 618, 619 Payments of fines and costs where city or county has no workhouse, p. 622 Power of municipality to establish, p. 59 Power to issue bonds for, p. 288 Public service, directors of to manage, p. 351 discharge of prisoners sentenced to, p. 364 infants to be received when there is no house of refuge, p. 365 labor of prisoners sentenced to, p. 364 officers to have police powers, p. 364a record of discharge of prisoners, p. 364 who may be sentenced to, p. 363 Sentence where city and county have no workhouse, p. 621 Sentence to, if jail offense, p. 624 Warrant for commitment where city or county has no workhouse, p. 622 WwthingtGA 2*Wj p- t>73, n. 1 8 . 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