ps y \ -t ^ THE LAW OP MUNICIPAL CORPORATIONS IN THE STATE OF OHIO EMBRACING* ALL THE STATUTES IN FORCE JULY, 1875 WITH NOTES OF THE DECISIONS OF THE SUPREME AND OTHER COURTS OF THE STATE RELATING THERETO By HIRAM D. PECK AssH City Solicitor of Cincinnati CINCINNATI ROBERT CLARKE & CO 18 7 5 \t15 Entered according to Act of Congress, in the year 1875, By KOBERT CLARKE & CO., In the Office of the Librarian of Congress, at "Washington. Stereotyped by Ogden, Campbell & Co., Cincinnati. 71 PREFACE. A new compilation of the Municipal Laws of Ohio appears to "be demanded by reason of the large amount of recent legislation coming under that head, and from the fact that former works upon "the subject are out of print. At least such are the reasons for the publication of this volume. At the instance and request of the pub- lishers, who are the owners of the copyright of the work of the late Judge J. Bryant Walker, I have made free use of the notes and other matter therein contained; which I invariably found to have been completed with scrupulous care and accuracy. A large number of cases have been added, many of which are cited as MS. opinions, and much care has been taken that the points decided in such cases should be correctly stated. Each cita- tion has been verified by an examination of the case itself, or the written opinion of the court. A considerable number of the MS. cases may be found reported in a small volume entitled, "Cincin- nati Municipal Decisions" copies of which have been very recently placed in the Law Library at Cincinnati, and the State Library at Columbus. July 25, 1875. H. D. P. CONTENTS. PRELIMINARY— Pt0B . Existing Municipal Corporations , 1 CHAPTER I.— Classification of Municipal Corporations 1 CHAPTER II.— Creation of Incorporated Villages — General and Special 4 CHAPTER III.— Of the manner Incorporated Villages for Special Purposes may be advanced to the grade of Incorporated Villages 9 CHAPTER IV.— Of the manner in which Incorporated Villages may be advanced to Cities of the Second Class, and Cities of the Second Class ad- vanced to Cities of the First Class 12 CHAPTER V.— Incorporated Villages for Special Purposes 14 CHAPTER VI.— Officers of Municipal Corporations 17 CHAPTER VII.— Election of Officers 24 CHAPTER VIII.— Qualifications, Oath, and Bond of Officers 26 CHAPTER IX.— Counc'l of the Corporation 28 CHAPTER X.— Ordinances, Resolutions, and By-Laws — How adopted and passed. 33 (v) VI CONTENTS. CHAPTER XT. PAGE. Ordinances — How enforced 36 CHAPTER XII.— Powers and duties of Municipal Officers 40 The Mayor 40 The Clerk 43 The Auditor 46 The Marshal. 46 Chief of Police 48 The Treasurer 48 The Solicitor 50 Street Commissioner, Fire Engineer, Civil Engineer and Superin- tendent of Markets 52 CHAPTEPv XIIL— Jurisdiction and powers of Police Court 52 Police Judge 52 Clerk of Police Court 56 Prosecuting Attorney of Police Court 58 CHAPTER XIV.— The Mayor's Court 58 CHAPTER XV.— General powers of Municipal Corporations 60 CHAPTER XVI.— Vagrants, Criminals, and Suspicious Characters 66 CHAPTER XVIL— Police 68 CHAPTER XVIIL— Corporation Prison 70 CHAPTER XIX.— House of Refuge and Correction 72 CHAPTER XX.— "Work-House 84 CHAPTER XXL— Hospitals , 87 CHAPTER XXII.— Infirmaries 91 CONTENTS. VU CHAPTER XXIII.— PAOE . Board of Health 93 CHAPTER XXIV.— Fire Department 100 CHAPTER XXV.— Water-Works 102 CHAPTER XXVI.— Public Cemeteries and Burial Grounds 110 CHAPTER XXVII.— Public Grounds and Parks 117 CHAPTER XXVIII.— Public Halls 118 CHAPTER XXIX.— Division into Wards 119 CHAPTER XXX.— Street Railroads 120 CHAPTER XXXL— Gas Companies 125 CHAPTER XXXII.— Lighting Bridges and Railways 129 CHAPTER XXXIIL— Sprinkling Streets 131 CHAPTER XXXIV.— Control of Streets, Bridges, and Vehicles 133 CHAPTER XXXV.— Wharves, Docks, and Harbor Masters 146 CHAPTER XXXVI.— Ferries 147 CHAPTER XXXVIL— Licensing Shows, Auctioneers, etc 148 Viii CONTENTS. CHAPTER XXXVIIL— PA01! . Pawnbrokers .... — ........ ^. .... 140 CHAPTER XXXIX.— Filling up Lots and Removal of offensive Substances 150 CHAPTER XL.— Markets .. .. 151 CHAPTER XLL— Inspectors of Provisions and other Articles 154 CHAPTER XLIL— Identity of Corporation and Township Lines — Change of Town- ship Boundaries .... 157 CHAPTER XLIIL— Two Days Labor on the Streets — Road Tax .. 160 CHAPTER XLIV.— Vacating Street or Alley 162 CHAPTER XLV.— Damages for Excavations 163 CHAPTER XLVL— Board of Improvements .' .... 164 CHAPTER XLVIL— Appropriation of Private Property by Municipal Corporations for public uses 168 CHAPTER XLVIIL— General Rules relative to Improvements and Special Assessments. 180 CHAPTER XLIX.— Damages and Assessments for Public Improvements 197 Notice of Proposed Improvements 197 Claims for Damages 198 Special Assessments 202 Sidewalks 207 Turnpikes, Plank Roads, and Watercourses 208 CHAPTER L.— Sewers, Drains, and Ditches 210 CONTENTS. ix CHAPTEK LI.— PA0E . Finance and Taxation 223 CHAPTEK LIL— The Power to Borrow Money and Issue Bonds— ^ 234 CHAPTER LIU.— Sinking Fund .. 237 CHAPTER LIV. Lease or Sale of Corporate Property »~ 238 CHAPTER LV.— Annexation of Territory to a City or Incorporated Village on the application of Citizens residing thereon. 239 CHAPTER LVL— Annexation on the application of the Corporation 242 CHAPTER LVIL— Annexation of one Municipal Corporation to another Municipal Corporation „ 244 CHAPTER LVIII.— Surrender of Municipal Rights 246 CHAPTER LIX,— Duties of State Officers and Right of Visitation 249 CHAPTER LX.— Saving of Existing Rights , 251 CHAPTER LXL— Acts Repealed ««u«.. 254 Annexation 271 Assessors 272 Bonds, Official 273 Bonds, Negotiable, and Stocks 274 Buildings 292 Cemeteries 294 Council 297 Fire Department , 303 CONTENTS. PAGE. Houses of Refuge 310 Improvements other than Streets 318 Libraries 324 Licenses 326 Orphans Asylums 327 Officers 328 Parks 332 Pharmaceutical Board 335 Police 338 Poor 368 railroads 373 Railroads, Street 386 ■Streets and Roads 389 Second-hand Stores 406 Taxation 407 Town Halls 412 Town Plats 416 Treasurers 432 Universities 437 Work-Houses 442 CASES CITED. PAGE. Aekemeyer, Scully v 189 Akron, McComb v 142 Akron, Markle v 34 Allison v. Cincinnati 104, 214 Anderson v. McKinney 199 Armstrong v. Cincinnati 185 Arnold v. Flattery 130, 145 Ashland, Thomas v 54 Atlantic & G. W. R. K. v. Campbell 174 Atlantic & G. W. R. R. v. Koblentz 175 Bailey, B. & I. R. R. v 214 Bailey v. Cincinnati 142 Bailey v. Copeland 138 Bailey, Taylor v 138 Baker v. Cincinnati 149 Ball, C. & P. R R. v 174 Bank of Cbillicothe v. Chillicothe 234 Bank of United States v. Cincinnati 231 Barrett, Boeres v 219 Barrett v. Reed 27 Barker v. The State 203 Barton v. Huntington 34, 216 Barton, Hambold v 174 Bates v. Fries 49 Bates, Cincinnati v 174 Beaver v. Trustees of Blind Asylum 173 Beckwith v. Beckwith 134 Bellows v. Cincinnati 27 Beresford v. Cincinnati 152 Binjzham v. Doane 143 Bissell, Blanchard v 33 B. & I. R. R. v. Bailey 214 Blanchard v. Bissell 33 Bliss v. Kraus 151, 182 Blackburn, Gorgas v 249 Boeres v. Barrett 219 Boeres v. Strader 203 Boetger v. Cincinnati 211 B. & 0. R. R. v. Comm'rs Belmont Co 203 Bonte v. Taylor 193 Bonte, Wisby v 135 Bowman, State v 27 Bonsall v. Lebanon 207 Boyle v. Cincinnati 203 Breslin v. Brown 190 Brown, Breslin v 190 Brown v. Manning 135 Bryant's Lessee v. McCandless 135 Bryson, Cincinnati v 148 Buckingham, Cincinnati v 152 Buckmaster v. Zanesville 27 PAGE. Bunnell, Potter v 374 Burkhardtv. Hanly 104 Burnet v. Cincinnati 185 Burns v. Patterson 1S4 Butler v. Cincinnati 196 Butler v. Toledo 188 Butmanv. Fowler 135 Canal Co., Pierson v 134 Canton v. Nist 33 Casey v. Cincinnati 146 C. C. & C. R. R. v. Terry 20 Chambers' Adm'r v. Ohio Life and Trust Co GO Champlin, Erwin v 184 Chillicothe, McCoy v 185 Chillicothe, Bank of Chillicothe v 234 C. H. & D. R. R. Co., Parrott v 143 C. &I. R. R., Hatch v 175 C. & I. R. R., The State ex rel. v 175 C. & I. R. R. v. Zinn 175 Cincinnati, Allison v 104 Cincinnati, Armstrong v 185 Cincinnati, Bailey v 142 Cincinnati, Baker v 148 Cincinnati, Bank of the United States v... 231 Cincinnati v. Bates 174 Cincinnati, Bellows v 27 Cincinnati, Beresford v 152 Cincinnati, Boetger v 211 Cincinnati v. Bryson 148 Cincinnati v. Buckingham 152 Cincinnati, Burnet v 185 Cincinnati, Butler v - 196 Cincinnati Canal Co., Goodin v 175 Cincinnati, Casey v 140 Cincinnati College v. Nesmith 124 Cincinnati v. Comm'rs Hamilton Co 171 Cincinnati v. Comm'rs Hamilton Co 209 Cincinnati v. Comm'rs Hamilton Co 85 Cincinnati v. Consolidated Street R.R. Co. 122 Cincinnati, Cordeman v 215 Cincinnati, Culbertson v 185 Cincinnati, Diehm v 19 Cincinnati, Dodsworth v 4J0 Cincinnati, Eagle White Lead Co. v 143 Cincinnati, Erkenbrecher v 04 Cincinnati v. Evans 138, 140 Cincinnati, Farrelly v 142 Cincinnati v. First Presbyterian Church.. 1' 8 Cincinnati, Foote v 170 Cincinnati, Gall v 137, 152 (xi) xn CASES CITED. TAGE. Cincinnati Gas Co., The State ex rel. v. ..28, 127 Cincinnati, Goodloc v 142 Cincinnati v. Green 03 Cincinnnti, Gwynno v 135 Cincinnati, Ilalpin v 23 Cincinnati, Hatch v 43 Cincinnati, Jonas v 185 Cincinnati, Kleiner v 108 Cincinnati, Lawrence v 103 Cm. innati. Lessee of, v. Comm'rs Hamil- ton C 136 Cincinnati. Lewis v 190 Cincinnati, Lowden v 184 Cincinnati, Macauley v 62 Cincinnati, McHugh v 252 Cincinnati, McMahon v 142 Cincinnati, Mays v 149 Cincinnati, Miami Machine Works v 167 Cincinnati, Morgan v 61 Cincinnati, Morrill v 3 Cincinnati v. Morris 134 Cincinnati, Niles Works v 212 Cincinnati, Parker v 420 (incin ati v. Pendleton Street It. It 123 Cincinnati v. Penny 141, 214 Cincinnati, Potts v 177 Cincinnati, Proctor t 211, 213 Cincinnati v. Rice 33 Cincinnati, Ryan T 183 Cincinnati, Schoonmaker v 238 Cincinnati, Scully v -.. 182 Cincinnati, Scully v 209 Cincinnati, Sherlock v 97 Cincinnati, Shillitov 140 Cincinnati, Smith v 142 Cincinnati, Smith v 121 Cincinnati, State ex rel. v 242 Cincinnati, State ex rel. v 1 Cincinnati, State ex rel. v 90 Cincinnati, Stone T 17 Cincinnati. Storrs Township It. R. v 139 Cincinnati, Strader v 138 Cincinnati v. Street Railway Co 123 Cincinnati Street R. R. Co. v. Cincinnati. 123 Cincinnati Street 11. R. Co. v. Cumroins- ville 121 Cincinnati Township v. Debolt 23 Cincinnati, Vandyke v 60 Cincinnati, Walker T 185, 376 Cincinnati v. Wa*m 34 Cincinnati r. Water Company 33 Cincinnati, We well v 175 Cincinnati, Wheeler v 18, 65, 100 Clark v. Fry 18, 144 Cleveland, Westerhaven v 17, 65, 68 Clevi land, Bcoville v 29 Cleveland, Ilickox v 143 Cleveland A P. R. R. v. Ball 174 ( I v. land v. W ck 188 Cleveland, Rhodes v 222 PAGE. Clive, Westerhaven v 27 Collins v. Hatch 03 Colter v. Doty 253. Collett, Little Miami R. R. v 174 Comm'rs Belmont Co., B. & 0. R. E. v.... 203 Comm'rs Hamilton Co., Baum v Comm'rs Hamilton Co., Cincinnati v. 139, 171 Comm'rs Hamilton Co. v. Cincinnati 85 Comm'rs Hamilton Co., Cincinnati, Lessee of, v 136 Comm'rs Hamilton Co., Jenifer v 3. Comm'rs Hamilton Co., The State ex rel. v. 195 Comm'rs Ross Co., Taylor v 378 Comm'rs Seneca Co., Cupp v 143, 199 Comm'rs Stark Co., Reynolds v 3, 145 Comm'rs Warren Co., Lebanon v 136 Connelly, Harbeck v 182 Connelly, Northern Ind. R. R. v : 181 Connelly, Poland v 152 Council v. Voorhees 20 Consolidated Street R. R. Co., Cincin- nati v 122 Cook, State ex rel. v 21 Copeland, Bailey v 138 Cordeman v. Cincinnati 215, 221 Corry v. Gaynor 185 Cottle v. King 185 Cox, Phiferv 141 Crawford v. Delaware 142 Creightonv. Scott 181 Creighton v. Toledo 183 Crniikilton, Sessions v 199 C. &T. R. R. v. Prentice 172 Culbertson v. Cincinnati 185> Cnmminsville, Cincinnati Street R. R. v... 121 Cnpp v. Comm'rs Seneca Co 143, 199 C. W. & Z. R. R., Giesy v 109, 174 Davis, The State ex rel. v 90 Dayton, Little Miami R. R. v 171 Dayton v. Pease 17 Debolt v. Trustees Cincinnati Township... 23 Delaware, Crawford v 142 Diehm v. Cincinnati 19 Dillingham v. The State 53 Directors Infirmary v. Toledo 158 Doane, Bingham v 143 Dodge v. Gridley 33 Dodsworth v. Cincinnati 426 Doram, Setchell v 136 Doren v. Horton 138, 144 Doty, Colter v 37, 253 D. X. & B. R. R. v. Lewton 107 Eagle White Lead Co. v. Cincinnati 143 Easton. Roberts v 124 Eaton R. R. Co., Hueston v 143 Edson, Board of Education v 138 Education, Board of, v. Edson 138 Elliott, Newark v 238 Ely, Kellogg v 185 Erkenbrecher v. Cincinnati 64 CASES CITED. XU1 PAGE. Erkenbrecher v. Este 04 Ernst v. Kunkel 181 Erwin v. Champlin 184 Este, Erkenbrecher v 04 Evans, Cincinnati v 138, 140 Farnn, Tlie State ex rel. v 289 Farrelly v. Cincinnati 142 Fearing, Marietta v 33 Findlay, The State v 27 Finnell v. Howells 188 Finnell v. Kates 198 First Presbyterian Church, Cincinnati v.. 138 First Presbyterian Church, Williams v.... 133 Fisher v. Graham 106 Flattery, Arnold v 130 Flinn, State ex rel. v 31 Folz v. Cincinnati 184, 191 Folz v. Lyons 185 Fosdick v. Terrysburg 2 Fnote v. Cincinnati 176 Fnwler, Butman v 135 Fries, Bates v 49 Fky, Clark v 17, 144 Fulton v. Mehrenfeld 137 if ink, Newark v 47 Gall v. Cincinnati...:. 137 Gnllipolis, Langley v 146 Gallip >lis, LeCler q v 135 Gas Co., The State ex rel. v 29 Gazley, Huber v 145 Gay or, Corry v 185 Gerke, Jones v 244 Giddings, Scovill v 20, 142 Giesy v. C. W. & Z. K.R 1C9, 174 Gilmore v. Lewis 23, C9 Glenn v. Wadd.l , 200 Goodin v. Cincinnati Canal Co 175 Goodloe v. Cincinnati 142 Gorgas v. Blackburn 249 Graham, Fisher v 166 Graham, Miller v 190 Green, Cincinnati v 63 Giidley, Dodge v 33 Gwynne v. Cincinnati 135, 203, 231 Halpin v. Cincinnati 23 Hambold v. Barton 184 Hammond, Reynolds v 184 Hanley, Burkhardt v 164 Harbeck v. Connelly 182 Harbeck v. Toledo 173 Harrison, Seegar v 146 Hatch v. Cincinnati 23, 43 Hatch, Collins v 63 Hatch v. C. & I. B. R 175 Henshaw v. Noble 144 Hickok v. Hine 04 Hickox v. Cleveland 143 Higdon, Hill v 181 Hillv. Higdon 181 Hine, Hickok v 04 PAGE. Hoffman, Moore v 34 Hoffman v. Winslow 1*5 Horton, Dorcn v 138, lit Howell, Finnells v 188 Hubbard v. Toledo 03 Huber v. Gazley 145 Hueston v. Eaton R. R 143 Hucston, Smith v 145 Huddleson v. Ruffin 03 Hulbert, Lloyd v 133 Huntington, Barton v 34, 189 Hutchins, Strohman v 138, 184 Iron R. R. v. Ironton 169 Jackson v. Jackson 143 Jenifer v. Comm'rs Hamilton Co 3 Jonas v. Cincinnati 185, 233 Jones v. Gerke '. 244 Kates, Finnell v 193 Kellogg v. Ely 185 Kent, White v 140 Kennedy, Lane v 139 King, Cottle v 185 King, Steubenville v 134 Kleiner v. Cincinnati 103 Koblentz, Atlantic & G. W. R. R. v 175 Kraus, Bliss v 151, 182 Kriedlerv. The State 21 Kunkel, Ernst v 181 Lane v. Kennedy 13!) Langley v. Gallipolis 148 Lawrence v. Cincinnati 103 Lawrence, ex parte 23 Lawrence, Penquite v 137 Lawton, D. X. & B. R. R. v 107 Lebanon, Bonsall v 207 Lebanon v. Comm'rs of Warren Co 138 LeClercq v. Gallipolis 135 Leonard v. O'Hara 190 Lewis v. Cincinnati 19" Lewis, Gilmore v 23, 09 Liberty Township, The State ex rel. V....29, 48 Little Miami R. R. v. Collett 174 Little Miami R. R. v. Dayton 171 Little Miami R. R. v. Naylor 145 Little Miami R. R. v. Whitacro 143 Lloyd v. Hulbert 133 Lowden v. Cincinnati 184 Lyons, Folz v 185 Macauley v. Cincinnati 02, McCandless, Bryant's Lessee v 135 McComb v. Akron 142 McCoy v. Chillicothe 185 McCracki n v. West 175 McConnellsville, Buckholter v G2 McIIugh v. Cincinnati 252 Mcllvaiu v. Wood 144 McKinuey, Anderson v 199 McLaughlin, Wells v 135 McLaughlin v. Stevens 138 McMahon V.Cincinnati 142 XIV CASES CITED. PAGE. Maloy v. Marietta 181 Manning, Brown v 129, 135 Mini' Ha v. Fearing 33 Marietta, Maloy v 181 Marietta v. Slocumb 189 Marietta, etc., Co., Ward v 172 Markle v. Akron 34 Maurer, P. Ft. W. & C. R. It. v 133, 171 Mays v. Cincinnati GO, 149 Mehrenfeld, Fulton v 137 Miami Machine Works v. Cincinnati 1G7 Miller v. Graham 190 Miller v. P. arce 51, 105, 172 Moore v. Hoffman 34 Morgan v. Cincinnati 61 Morrill v. Cincinnati 3 Morris, Cincinnati v 134 Mr. Vernon, Thomas v 37 Mt. Vernon, Thompson v 33 Naylor, Little Miami It. B. v 145 Nesmith, Cincinnati College v 124 Newark v. Elliott 238 Newark v. Funk 47 Nicholson, Pirn v 34 Niles Works v. Cincinnati 212 Nist, Canton v 33 Noble, Henshaw v 144 Northern Indiana B. B. v. Connolly 181 O'Hara, Leonard v 190 Ohio Life & Trust Co., Chambers' Adm'r v. GO Ohio & Mississippi B. B. v. Sargent 28, 121 Ohio v. Peabody 27 Oviatt, Steese v 190, 203 Oviatt, Upington v 34, 190, 203 Parker v. Cincinnati 426 Parrott v. C. H. & D. B. B 143 Patterson, Burns v. 184 Peabody, Ohio v 27 Pease, Dayton v 17 Pearce, Miller v 51, 103, 172 Pendleton St. B. B. v. Cincinnati 123, 139 Penqnite v. Lawrenie 137 penny, Cincinnati v 141, 214 Perrysburg, Fosdick v 2 Phifer v. Cox Ill Pierson v. Canal Co 134 Pirn v. Nicholson 27, 34 Pinto v. The State 102 P. Ft. W.iC. B. B.v. Maurer 133, 171 P. Ft. W. & C. B. B v. Todd 136 poland v. Connelly 152 Potts v. Cincinnati 177 Potter v. Bnrnell 374 Potter, W'elker v 198 Powers v. Comm'rs Wood Co 243 Prentice, C. & T. B. B. v 172 Prescott v. The State 78 Procter & Gamble v. Cincinnati 211, 213 Pugh, Bogers v 27 Ramsey v. Biley 18 PAGE. Bea v.Smith 09> Beckn-r v. Wainer 19* Beed, Barrett v 27 Seed v. Toledo 182 Beeves v. Treasurer Wood Co 181 Beynolds v. Hammond 184 Reynolds v. Schweinefus 106 Reynolds v. Comm'rs Stark Co 3, 145 Rhodes v. Cleveland 222 Rice, Cincinnati v 33- Richards, Zanesville. v 232 Richland Township, The State ex rel. v.... Cf> Ridenour v. Saffin 140 Riley, Ramsey v 18 Roberts v. Easton 124 Rogers v. Pugh 27 Rosebaugh v. Saffin 37 Ruffin v. Huddleson 03- Rya.n v. Cincinnati 183 Evan, Seel en v 134 Saffin, Bidenour v 140 Saffin, Bosenbaush v 37 Sargent v. O. & M. B. B 28, 121 Satchellv. Doram 130 Schoonmaker v. Cincinnati 238 Schweinefus, Beynolds v 166 Scott, Creifrhton v 181 Scott, ex parte 53 Scovillev. Cleveland 29, 101 Scovill v. Giddings 20, 1 Vl Scully v. Ackemeyer 189" Scully V.Cincinnati 182, 20!) Seegar v. Harrison 140 Seetcn v. Ryan 134 Sessions v. Crunkilton 199 Sherlock v. Cincinnati 97 Shillito v. Cincinnati 140 Slocomb, Marietta v 189 Smith v. Cincinnati 34, 51, 121 ,142 Smith v. Hueston 145 Smith, Bea v 09 Smith v. Toledo LSI, 199- Southard, Stewart v 20 State v. Barker 203 State v. Bowman 27 State ex rel. v. Cincinnati 1, 90, 242 State ex rel. v. Cincinnati Gas Co 28, 127 State ex rel. v. C. &. I. B. B 175- State ex rel. v. Comm'rs Hamilton Co 195 State ex rel. v. Cook, 21 State v. Dillingham 53 State ex rel. v. Davis 90 State ex rel. v. Faran 289 State v. Findlay 27 State ex rel. v. Flinn 31 State v. Kriedler 21 State ex rel. v. Liberty Township 29, 40 State Prescott v 78 State v. Pinto 102 State ex rel. v. Bichland Township GO CASES CITED. XV PAGE. State ex rel. v. Taylor 31 State ex rel. t. Ward 158 State v. Wightman 37 State ex rel. v. Wi.kesville Township 30 State ex rel. v. Yeatman 196 Steese v. Oviatt 190 Sterley'a Arliu'rs v. Zanesville 103 Steubenville v. King 134 Stewart v. Southard 20 Stevens, McLaughlin v 136 Stone v. Cincinnati 17 Storrs Township R. K. v. Cincinnati 139 Strader, Boeres v 203 Strader v. Cincinnati 132 Strang, ex parte 55 Street Railway Companies v. Cincinnati... 123 Strollman v. Hutchins 138, 184 Taylor v. Bailey 138 Taylor, Bonte v 193 Taylor v. Comm'rs Ross Co 378 Taylor, State ex rel. v 31 Terry v. C. C. & C. R. R 20, 213 Thomas v. Ashland 54 Thomas v. Mt. Vernon 37 Thompson v. Mt. Vernon 33 Todd v. Pittsburg & Ft. W. R. R 136 Toledo v. Butler 1S8 Toledo, Creighton v 183 Toledo, Directors Infirmary v 158 Toledo, Harbeck v 173 Toledo, Hubbard v 63 Toledo, Reed v 182 Toledo, Smith v 182, 199 Toledo, Welker v 183 Treasurer Wood Co., Reeves v 181 Trustees Blind Asylum, Beaver v 105, 173 Upington v. Oviatt 34, 190, 192, 203 Vandyke v. Cincinnati CO, 141 Voorhees, Conwell v 18 Waddel, Glenn v 206 Walker v. Cincinnati 185, 376 Ward v. Marietta Co 172 Ward, State ex rel. v 158 Warner, Reckner v 198 Wasem v. Cincinnati 34 Water Co., Cincinnati v 27, 33 Welker v. Potter 198 Welker v. Toledo 183 Wells v. McLaughlin 135 West, McCracken v 176 Westerhaven v. Cline 27 Western Medical College v. Cleveland. ...17, 65 Wewell v. Cincinnati 175 Wheeler v. Cincinnati 19, 65, 100 Whitacre, Little Miami R. R. v 143 White v. Kent 140 Wick, Cleveland v 188 Wightman v. The State 37 Wilkesville Township, State ex rel. v 30 Williams v. First Prss. Church 135 Winslow, Hoffman v 185 Wisby v. Bonte 135 Wood, Mcllvaine v 144 Veatman, The State ex rel. v 196 Zanesville, Buckmaster v 23 Zanesville v. Richards ". 232 Zanesville, Sterley's Adm'r v 103 Zinn, C. & I. R. R. v 175 THE MUNICIPAL CODE OF 1869, AS AMENDED. An Act to provide for tlie organization and government of municipal corpo- rations. Be it enacted by the General Assembly of the State of Ohio, as follows : PEELIMINAEY PEOVISION. Section 1. Application to all municipal corporations. All muni- cipal corporations in this state now existing, or which may here- after be created, shall be governed by the provisions of this act, and the territorial limits and wards of existing municipal corpora- tions shall remain as they now are until changed in the manner herein provided. 1 [S & C, p. 1493, sec. 1.] CHAPTEE I. CLASSIFICATION OF MUNICIPAL CORPORATIONS. Section 2. Classification. 3. Cities of first class. 4. Cities of second class. 5. Villages. Section 6. Villages for special purposes. 7. Population requisite for cities and vil- lages. 8. Bodies politic and corporate. Sec 2. Classification. Municipal corporations shall be divided into cities of the first class, cities of the second class, incorporated 1 Under the restrictive and mandatory provisions of the first and sixth sec- tions of the thirteenth article of the constitution of 1851, the general assembly can not, by a special act, create a corporation, nor can it, by special act, confer 2 CLASSIFICATION OF MUNICIPAL CORPORATIONS. villages, and incorporated villages for special purposes. [S. & C, y. 1508, sec. 40.] Sec 3. Cities of the first class. All existing municipal corpora- tions, organized as cities of the first class, shall be deemed cities of the first class. Sec. 4. Cities of the second class. All existing municipal corpo- rations, organized as cities of the second class, shall be deemed •cities of the second class until advanced to the grade of cities of -the first class, in the manner provided in this act. Sec. 5. Villages. All existing municipal corporations, organ- ized as incorporated villages, shall be deemed incorporated villages until advanced to the grade of cities of the second class, in the manner provided in this act. Sec. 6. Villages for special purposes. All existing municipal cor- porations, organized as special road districts, shall be deemed in- corporated villages for special purposes until advanced to the grade of incorporated villages, in the manner provided in this act. Sec. 7. [As amended, April 20, 1871, G8 L. 73, and May 3, 1873, 70 L. 252.] Requisite population of cities and villages. No city of the second class shall be advanced to the grade of a city of the first ■class until it shall have attained a population of twenty thousand ; no incorporated village shall be advanced to the grade of a city of the second class until it shall have attained a population of five thousand ; no incorporated village for special purposes shall be ad- vanced to the grade of an incorporated village until it shall have attained a population of two hundred; and no incorporated village additional powers on a corporation already existing; and in the purview and application of the provisions of those sections of the constitution, there is no distinction between private and municipal corporations. The State of Ohio ex rel. v. The City of Cincinnati, 20 Ohio St. 18. The general act of May 3, 1852, did not annihilate and re-create the pre- existing municipal corporations of the state, but reorganized and continued them, leaving their corporate identity unaffected. "Neither the corporate existence nor the corporate identity of the municipal corporations of the state were affected by the general act for the organization of cities and vil- lages. Some of them took, under its operation, a different legal designation — as incorporated villages, instead of towns. The particular mode of their organization was somewhat changed, and their powers, privileges, rights, and duties were restricted, enlarged, or modified; but their territorial limits re- mained the same as before. Legal obligations incurred by or to them re- mained unchanged, and their corporate identity was no more affected by a re- organization, under the general law, than is the personal identity of a. feme sole by marriage, in virtue of which her name is changed, and her powers, priv- BODIES POLITIC AND CORPORATE. shall hereafter be organized until the inhabitants to be embraced in it are two hundred in number} [S. & C, p. 1508, sec. 41.] Sec. 8. Bodies politic and corporate. All municipal corporations now organized and established, including special road districts, and all municipal corporations organized under the provisions of this act, shall be and they are hereby declared to be bodies politic and corporate, under the name and style of the city of ; the incor- porated village of ; the village of , incorporated for special purposes, as the case may be, 2 and as such capable to sue and be sued, to contract and be contracted with, to acquire, hold, and pos- sess property, real and personal, 3 and to have a common seal, and ileges, rights, and duties are in law enlarged, restricted, and modified. The corporate life of the village of Perryshurg was a continuation of the life of the town of Perrysburg. It was a continuation, not an annihilation and a re- creation." Per Brinkekhoff, J., Fosdick v. The Village of Perrysburg, 14 Ohio St. 472, 482. 1 As originally passed, the number of inhabitants was to exceed one thousand. 2 A mere misnomer does not invalidate any act or contract. "When bonds were issued in the name of " the town of Perrysburg," instead of the name of " the incorporated village of Perrysburg," which was the proper legal designa- tion of the corporation, the validity or obligation of the bonds was not affected thereby. Fosdick v. The Village of Perrysburg, 14 Ohio St. 472. 3 A corporation which has power to take property has incidental power to dispose of it. If expressly subject to uses, they may, perhaps, be enforced by holding the purchaser a trustee; but if held only for general corporate pur- poses, the power to alien is absolute. In this case, land had been conveyed to the commissioners to hold for the use of the county, thereon to erect a court- house, offices, etc., and for no other purpose, with a proviso that the deed should be void if the lot should be appropriated to any other purpose. The grantor subsequently released all his right in reversion in the lot to the com- missioners, and they made a contract for a perpetual lease, with the privilege of making the rent nominal by payment of a certain sum. The court com- pelled the specific performance of the contract. Heirs of Reynolds c. Comm'rs of Stark Co., 5 Ohio, 204. "When there is no restraining clause in the charter of a corporation, it may dispose of any property which it may acquire. "When restrained from selling at less than par, it may sell on credit, provided the sales amount to par. New- ark v. Elliott, 5 Ohio St. 113. A corporation can not do indirectly what it is forbidden to do directly. When a statute forbids the county commissioners from making a charge upon the county, they have no authority to make a contract which tends to that result, nor to agree to an arbitration or reference of the question, when suit is brought, so as to effect the same purpose. Jenifer v. Comm'rs of Hamilton Co., 2 Dis- ney, 189. "When a municipal corporation purchases or leases property, it is not neces- ORGANIZATION OF INCORPORATED VILLAGES. to change or alter the same at pleasure, and to exercise such other powers and have such other privileges as are conferred by this act. [S. & C., p. 1498, sec. 18.] CHAPTEK II. CREATION OP INCORPORATED VILLAGES — GENERAL AND SPECIAL. Section Section 9. Organization of incorporated villages. 20. Application for injunction. 10. Application therefor. 21. Notification to recorder, etc. 11. Character of petition. 22. Recorder to transmit papers to clerk. 12. Presentation, etc., of petition. 23. Duty of court or judge, etc. 13. Proceedings on petition. 24. First election of officers. 14. Duty of commissioners. 25. Procedure when territory lies in two or 15. Transcript of proceedings. more counties. 1G Duty of recorder. 26. The same. 17. Transcripts to be certified, etc. 27. Jurisdiction of officers. IS. Corporation complete. 28. Fees of officers. 19. Record thereof. Sec 9. [As amended, April 18, 1870, 67 L. 68, and April 4, 1874, 71 L. 65.] Organization of incorporated villages. The inhab- itants of any territory laid off into town or village lots, a plat of which has been made, acknowledged and recorded, and which ter- ritory is not adjoining anj T city or incorporated village, and that the inhabitants on any island or islands where two or more may be united for such purpose, shall not contain more than fifteen hundred acres of land, and are not -adjoining any city or incorporated village, may be organized into an incorporated village, or an incorporated village for special purposes, in the following manner : Sec 10. [As amended, April 4, 1874, 71 L. 65.] Application therefor. Application for such purpose shall be made by petition in writing, signed by not less than thirty voters of this state, re- siding on such territory, island or islands, addressed to the commis- sioners of the county in which such territory, island or islands, shall be located. Sec 11. Character of petition. Such petition shall accurately sary that it should declare in the resolution the purpose for which the property is acquired. It is sufficient if it appear from all the circumstances that the purposes for which it sought to secure the property were legitimate. Morrill r, Cincinnati, Superior Court of Cincinnati, General Term, MS. Opin., by Taft, J. ORGANIZATION OF INCORPORATED VILLAGES. describe the territory to be embraced in the proposed corporation, and may include adjacent territory not laid off into lots ; it shall state the supposed number of inhabitants residing thereon, and the kind of corporation they desire should be established. It shall also contain the name or names of some person or persons author- ized to act in behalf of the petitioners, as their agent or agents, in the premises, and the name proposed for such corporation, and it shall be accompanied by an accurate map of the territory therein described. [S. & C, p. 1493, sec. 2.] Sec. 12. Presentation, etc., of petition. Such petition shall be pre- sented to the board of commissioners at a regular session thereof, and when so presented sueh board shall cause the same to be filed in the office of the county auditor, to be there kept, subject to the inspection of any person or persons interested. The commission- ers shall also, at the time of the filing of such petition, determine upon and communicate to the agent or agents of such petitioners, the time and place for the hearing thereof, which time shall bo not less than sixty days after the date of such filing. Thereupon the said agent or agents shall immediately cause a notice, containing the substance of said petition, and stating the time and place where the same will be heard, to be published in some newspaper published and of general circulation in the country, for the period of six consecutive weeks, and also a copy of the said notice to be posted up in some conspicious place within the limits of the pro- posed corporation not less than six weeks prior to the time fixed lor the hearing of said petition. [S. & C, p. 1494, sec. 3.] Sec 13. Proceedings on petition. Every such 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 pei\son interested may appear, in person or by attorney, and con- test the granting of the prayer of said petition, and affidavits in support of or against the prayer of the petition, which may be pre- pared and submitted, shall be examined by said commissioners, and they ma}", in their discretion, permit the agent or agents of the said petitioners to amend said petition or change the same, except that no amendment shall be permitted whereby territory not before embraced shall be added, without appointing another time forbear- ing and requiring new notices to be given as above provided. [S. & C, p. 1494, sec. 4.] Sec 14. Duty of commissioners. If the commissioners, upon the hearing of the petition, shall find that it contains all the mat- ters required and that its statements are true ; that the name pro- ORGANIZATION OF INCORPORATED VILLAGES. posed for such corporation is appropriate ; that the limits thereof have been accurately described, and that the same are not unrea- sonably large or small, and the map or plat thereof is accurately made ; that the persons whose names are subscribed thereto are legal voters residing on said territory, and shall be further satisfied that the said notice has been given by the said agent or agents as required, and, if the petition be for an incorporated village, that there is the requisite population for such corporation, or, if the petition be for an incorporated village for special purposes, Unit at least fifty qualified voters reside on said territory, and if, more- over, it shall be deemed right and proper, in the discretion of said commissioners, that such petition be granted, they shall cause an order to be entered upon their journal, to the effect that the cor- poration as named and asked for in the petition may be organized. [S. & C, p. 1494, sec. 5.] Sec. 15. Transcript of proceedings. The commissioners shall then cause a complete certified transcript of all their proceedings and orders to be made out, which transcript they, or a majority of them, shall sign and cause to be delivered, together with the peti- tion and map accompanying said petition, and all the other papers on file, to the recorder of the county. [S. & C, p. 1494, sec. 5.] Sec. 16. Duty of recorder. The said recorder shall file the same in his office, and immediately after the expiration of sixty days after such filing, unless enjoined as hereinafter provided, he shall make a record of the said petition, transcript and map, in the jiroper book of records in his office, and preserve in his office the original papers as delivered to him by the commissioners, having certified thereon that the said transcript and map are properly re- corded. [S & C, p. 1494, sec. 5.] Sec. 17. Transcripts to be certified. As soon as said record is nrade, the recorder shall make out and certify, under his official seal, two transcripts thereof, one of which he shall forward to the secretary of state, and the other he shall, on denwnd, deliver to the agenl or agents of said petitioners, with a certificate thereon that the duplicate thereof has been forwarded to the secretary of state as above provided. [S. & C, p. 1494, sec. 5.] Sec 18. Corporation complete. So soon as said record shall be made, the inhabitants residing within the limits of the territory described in the petition, shall be deemed and held to be an "incor- porated village for special purposes," or " an incorporated village," as the case may be, to be organized and governed under the pro- visions of this act ; and so soon as such corporation shall be organ- ORGANIZATION OF INCORPORATED VILLAGES. ized by the election of officers as hereinafter provided, notice of its existence as such shall be taken in all judicial proceedings in this state. [S. & C, pp. 1494, 1495, sec. C] Sec. 19, Record thereof . The commissioners shall cause to be entered upon their journal a full and complete record of all their orders and proceedings in relation to the incorporation of villages as herein provided. Sec. 20. Application for injunction. Any person interested may, at any time within the period of sixty days from the da} T of filing the said transcript of the commissioners and papers with the recorder as before provided, make application, by petition, to the court of common pleas of the county, or to the judge thereof if in vacation, setting forth in such petition the errors complained of, or the inaccuracy of said boundaries, or both, and praying an in- junction restraining said recorder from making the said record and certifying the transcripts above required. [S. & C. p. 1495, sec. 7.] Sec 21. Notification to recorder, etc. He shall also, immediately upon the filing of such petition, give notice in writing thereof to said recorder, and to the agent or agents of the said petitioners ; and the recorder, on receiving such notice, shall not record said transcript and map, or certify the same as above provided, until after the final hearing and disposition by the court or judge of the said petition. [S. & C, p. 1495, sec. 7.] Sec. 22. Recorder to transmit papers to clerk. On receiving notice as above provided, the recorder shall forthwith transmit to the clerk of the court where the petition is pending, all the papers relating to said proceeding filed with him as required by section fifteen, to be used on the hearing of said petition. Sec 23. Duty of court or judge, etc. It shall be the duty of the said court or judge to hear said petition in a summary manner, and, at his discretion, to hear evidence; and if no error shall be found in said proceedings, and no inaccuracy in the boundaries of such proposed corporation, the court or judge shall dismiss said petition, and thereupon the clerk of the court shall return the papers to the recorder, with a transcript of the order of the court, and the recorder shall then immediately record the said certified transcript, petition, map, and order of the court, and forward and deliver the same as above provided. But if error shall be found in the said proceedings, or the boundaries are so inaccurately described as to render indefinite and uncertain the limits or extent of such pro- posed corporation, then the court or judge shall make an order ORGANIZATION OF INCORPORATED VILLAGES. enjoining said recorder from making a record of the said transcript or map, but such order shall be no bar to any subsequent applica- tion for the foregoing purpose to the county commissioners. [S. & C, p. 1495, sec. 7.] Sec. 24. First election of officers. The first election of officers of such corporation shall be at the first annual spring election after the same has been created, and the place for holding such election shall be fixed by said agent or agents, and notice thereof shall be by them given by posters, printed or in writing, at three or more public places within the limits of the corporation. Said election shall be conducted and the officers thereof chosen and qualified in the same manner prescribed by law for the election of township officers. [S. & C, p. 1495, sec. 7.] Sec. 25. Procedure when territory lies in two or more counties. "When the inhabitants residing upon adjacent portions of territory, in two or more counties, laid off into town-lots, a plat' or plats' of which have been made, acknowledged, and recorded, desire to be organized into an incorporated village, or into an incorporated vil- lage for special purposes, the petition therefor shall be made to the commissioners [of the county] in which the largest number of the qualified voters of the proposed village shall reside at the time of the filing of such petition, and a statement to that effect shall be set forth in the petition. The transcript of the proceedings 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 counties in which any portion of the territory is situated, and forward the same to the respective recorders thereof, to be by them recorded in the manner that the original papers are required to be recorded. [S. & C, p. 1552, sees, 193, 194.] Sec. 20. The same. In all other respects the proceedings to establish such corporation, or to review the action of the commis- sioners, shall be as provided in cases where all the inhabitants re- siding on the territory to be organized into such corporation reside in one county. [S. & C, p. 1552, sec. 195.] Sec 27. Jurisdiction of officers. In all cases in which the juris- diction of officers of municipal corporations is made co-extensive with the county in which such corporations are situated, the juris- diction of the like officers of any municipal corporation embracing territory situated in two or more counties, shall be co-extensive ADVANCEMENT OF VILLAGES. with each of the counties in which any part of such territory shall be located. S. & C, p. 1552, sec. 195.] Sec. 28. Fees of officers. Every officer shall he entitled to re- ceive, for the services required to he performed by him under the preceding sections of this chapter, the same fees he would be en- titled to receive for similar services in other cases, and unless paid in advance, upon demand of the agent or agents of said petition- ers, he shall not be required to perform the said services. CHAPTEK III. OF THE MANNER INCORPORATED VILLAGES FOR SPECIAL PURPOSES MAY BE ADVANCED TO THE GRADE OF INCORPORATED VILLAGES. Section Section 29. Advance of grade, to incorporated village. 35. Procedure on affirmative vote. 30. Application therefor. 30. Record of proceedings, transcript, etc. 31. What petitiou shall contain. 37. Duty of recorder, judge, etc., same as 32. Trustees to fix time of holding election. in case of incorporated village. 33. Conduct of the election, etc. 38. Corporation complete. 34. Effect of negative vote. 39. First election of officers, etc. Sec 29. Advance of grade. "Whenever the inhabitants of any incorporated village for special purposes, or any portion thereof, desire to be advanced to an incorporated village, they may proceed in the following manner: [S. & S., p. 900, sec. 339.J Sec. 30. Application therefor. Application for such purpose shall be made to the trustees of such incorporated village for special purposes, by petition, in writing, signed by at least fifty of the legal voters of such incorporated village for special pur- poses, a majority of whom shall be freeholders. [S. & S., p. 900, sec. 339.] Sec 31. What petition shall contain. Such petition shall set forth that such incorporated village for special purposes, contains the required population for an incorporated village, and that it is the desire of the inhabitants to he advanced to the grade of an in- corporated village, and it shall ask that an election he held to ob- tain the sense of the electors upon such advancement. [S. & S., p. 900, sec. 339.] Sec 32. Trustees to fix time of holding election. The trustees upon receiving such petition, and being satisfied that the persons 10 ADVANCEMENT OF VILLAGES. whose signatures are thereto are electors and reside within such corporation, and that a majority of them are freeholders, shall fix upon the time and place for holding such election, and shall cause notice thereof to be given, by posters, printed or in writing, for the period of at least three weeks prior to such election, in three or more of the most public places within such corporation. [S. & S., p. 900, sec. 340.] Sec. 33. Conduct of the election, etc The trustees of such cor- poration shall be the judges of said election, and the said election, in all respects, shall be conducted in the same manner, so far as practicable, as is prescribed for the conduct of elections for town- ship officers, and the ballots shall contain in writing or in print, or both, the words " for incorporated village," or the words " against incorporated village." [S. & S., p. 900, sec. 340] Sec. 34. Effect 'of negative vote. If it shall appear that the number of votes cast "for incorporated village" is not a majorit}' of all the votes cast at said election, then no further proceedings shall be had ; but such result shall not be a bar to any future peti- tion to the trustees in relation to the same subject. [S. & S., p. 900, sec. 340.] Sec. 35. Procedure on affirmative vote. If it shall appear that the number of votes cast " for incorporated village" is a majority of all the votes cast at said election, the trustees shall then, within a reasonable time, cause a census to be taken, by some suitable person to bo by them appointed for such purpose, of all the inhab- itants of such corporation. The person taking such census shall make and subscribe a certificate that he believes the same is cor- rect, and he shall be sworn or affirmed thereto by one of the said trustees or justice of the peace of the county. [S. & S., p. 900, sec. 340.] Sec 36. Itecord of proceedings, transcript, etc. The said trustees shall cause to be entered on their journal an accurate minute of all their proceedings, together with the number of votes cast at said election "for incorporated village" and "against incorporated vil- lage," and the whole number of votes cast, and also the whole number of inhabitants of such corporation as ascei'tained by such census. They shall also, in case the census taken shows that such corporation contains the required population for an incorporated village, make out a complete certified transcript of all journal entries and proceedings by them had in the premises, and shall sign their names, or a majority of them, thereto, and deliver the ADVANCEMENT OP VILLAGES. 11 same, together with the said census and poll-book and tally-sheet, to the recorder of the county. [S. & S., p. 900, sec. 340.] Sec 37. Duty of recorder, judge, etc., same as in case of incorpo- rated village. Tdie duty of the recorder in relation thereto, and in case of petition by the prosecuting attorney to prevent such ad- vancement being completed, the duty of the prosecuting attorney, and the court or judge, shall be the same, and the same proceed- ings shall be had, so far as applicable, as in the case of the organ- ization of an incorporated village, or an incorporated village for special purposes, under chapter two of this act. [S. & S., p. 900, sec. 340.] Sec. 38. Corporation complete. So soon as the recorder shall make the record and certify and forward to the secretary of state a transcript of the same, such corporation shall be deemed and held to be an incorporated village, bearing the name of the said incorporated village for special purposes, to be organized and gov- erned under the provisions of this act, and so soon as such incor- porated village shall be actually organized by the election and qual- ification of its officers, as hereinafter provided, notice of its exist- ence as such shall be taken in all judicial proceedings in this state. [S. & S., p. 900, sec. 340.] Sec. 39. First election of officers, etc. The first election of offi- cers of such incorporated village shall be at the first annual spring election next ensuing the certifying and forwarding of the tran- script by the county recorder; and the said trustees of such incor- porated village for special purposes shall remain in office until the officers of the new corporation are elected and qualiffed, and by- laws, regulations, and ordinances, adopted for the government of such incorporated village for special purposes, shall remain in force so far as may be consistent with the provisions of this act, until annulled or repealed by the council of such incorporated village ; and the said trustees shall, upon demand, after the expiration of their term of office, deliver to the clerk of such incorporated vil- lage all the books of record, documents, and papers in their pos- session as the trustees of such incorporated village for special pur- poses. [S. & S., p. 900, sec. 340.] 12 ADVANCEMENT OP VILLAGES AND CITIES. CHAPTER IV. OP THE MANNER IN WHICH INCORPORATED VILLAGES MAY BE AD- VANCED TO CITIES OP THE SECOND CLASS, AND CITIES OP THE SEC- OND CLASS ADVANCED TO CITIES OP THE FIRST CLASS. Section Section 40. Advancement of villages and cities of sec- 44. Declaration of council on affirmative ond class. vote, etc. 41. Certificate of clerks and judges. 45. Record, etc., same as Ln creation of in- 42. Census to be taken, etc. corporated villages. 43. Effect of negative vote, etc. 46. First election of officers. Sec. 40. Advancement of villages and cities of second class. Whenever one hundred resident freeholders of any incorporated village, or two hundred resident freeholders of any city of the sec- ond class, shall petition the council of the corporation in which they reside, setting forth that they desire such village to be ad- vanced to the grade of a city of the second class, or such cit}- of the second class to be advanced to the grade of a city of the first clu>>, and that they have the requisite population for such advance- ment, the council shall cause notice to be given by the mayor, as in other cases, that at the next annual election for officers of such city or village, the electors thereof may vote for or against the ad- vancement by writing or printing, or both, on their ballots the words " for advancement," or the words "against advancement." [S. & C, p. 1508, sec. 42; lb., p. 1553, sec. 196.] Sec. 41. Certificate of clerks and judges. The clerks and judges of the election shall forthwith certify, in duplicate, to the clerk of the corporation the whole number of votes given at such election; the number of votes given "for advancement" and number of votes "against advancement." Sec 42. Census to be taken, etc. If a majority of all votes cast at such election shall be in favor of such advancement, the coun- cil, if such corporation shall not have the required population ac- cording to the last federal census taken prior to the election, shall forthwith cause a census to be taken by one or more suitable per- sons, of all the inhabitants of such city or village, in which cen- sus the full name of each person shall be plainly written, alpha- betically arranged, and regularly numbered in one complete series; which list shall be certified and sworn or affirmed to by the person ADVANCEMENT OP VILLAGES AND CITIES. 13 or persons taking the same, and filed with the clerk of the corpo- ration. Sec. 43. Effect of negative vote, etc. The clerk shall lay the said certificates of election and census before the council at their next regular meeting after the same shall have been filed in his office, and if it shall appear that all the votes cast at such election "for advancement" are not a majority of all the votes cast at said elec- tion, or that the corporation does not contain the requisite number of inhabitants to be advanced in grade, then no further proceed- ings shall be had. Sec 44. Declaration of council on affirmative vote, etc. If it shall appear that the corporation contains the requisite number of in- habitants to be advanced, the council shall thereupon, by resolu- tion, declare that the inhabitants of the corporation have decided to be advanced to a corporation of the next higher grade, and direct the clerk to certify said resolution to the recorder of the county. Sec. 45. Record, etc., same as in creation of incorporated villages. The duty of the recorder in relation thereto shall be the same, so far as applicable, as provided in chapter two, in the case of the creation of an incorporated village or an incorporated village for special purposes; and so soon as the recorder shall make the record and certify and forward to the secretary of state a transcript of the same, the said corporation shall be deemed and held to be a city of the second or first class, as the case may be, to be organized and governed under the provisions of this act; and so soon as such corporation shall be actually organized, by the election and qualifi- cation of officers, notice of its existence as such, shall be taken in all judicial proceedings in this state. Sec 46. First election of officers. The first election of officers of the new corporation shall be at the first annual spring election next ensuing the proceedings had as aforesaid, and the officers of the old corporation shall remain in office until the officers of the new corporation are elected and qualified; and the ordinances, by- laws, and regulations adopted by the old corporation shall continue in force, so far as may be consistent with the provisions of this act, until annulled or repealed by the council of the new corporation ; and the council and officers of the old corporation shall, upon demand, after the expiration of their term of office, deliver to the proper officers of the new corporation all the books of record, doc- uments, and papers in their possession belonging tp the old corpo- ration. 14 INCORPORATED VILLAGES FOR SPECIAL PURPOSES. CHAPTEK V. INCORPORATED VILLAGES FOR SPECIAL PURPOSES. Section Section 47. Trustees of villages for special purposes. 54. Towers us to by-laws, etc. 48. Their term of service. 55. Compensation of marshal. 4!). Their powers ami duties. 50. Jurisdiction of justices of the peace. 50. Vacancy, how filled, etc. 57. Perpetuity of existing officers, ordi- 51. Duty of trustees. nances, etc. 52. Limitation of power. 58. Duty of clerk as treasurer; oath of 53. Further powers of trustees. office. Sec. 47. Trustees of village for special purposes. The corporate authority of incorporated villages for special purposes shall be vested in three trustees, who shall be qualified electors residing •within the limits of such corporation, and who shall hold their of- fice for three years, except as herein provided, and until their suc- cessors are elected and qualified. [S. & C, p. 1509, sec. 44.] Sec. 48. At the first meeting of the trustees elected under the provisions of this act, they shall determine, by lot, the term of service of each trustee so elected, 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. [S. & C, p. 1509, sec. 44.] Sec 49. Their powers and duties. The said trustees shall have power to appoint, either from their own body or from the electors of the corporation, a clerk, who shall act as treasurer, and a mar- shal, who shall act as supervisor, and such other public officers as shall be necessary, and by proper by-laws, resolutions, and ordi- nances, prescribe the duties and compensation of the officers so appointed, and may remove any such officers and appoint others at their discretion. [S. & C, p. 1509, sec. 44.] Sec. 50. Vacancy, how filled, etc. The said trustees shall have power to fill any vacancy which may happen in their own body from the qualified 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 ; any two of said trustees may transact business ; but notice of any meeting for the transaction of business must be given to all. [S. & C, p. 1509, sec. 44.] Sec. 51. Duty of trustees. The said trustees shall have the ex- INCORPORATED VILLAGES FOR SPECIAL PURPOSES. 15 elusive jurisdiction of all public roads, streets, alleys, sewers, and drains constructed or to be construeted, within the limits of the corporation ; and they shall have power to construct and keep in repair, bridges aud sidewalks; to lay out, establish, open, widen, improve, straighten, keep in order, and repair roads, streets, and alleys ; to open and construct and keep in order and repair sewers and di'ains ; to enter upon and take for the purposes aforesaid, when necessary, land and material, and to assess and collect a charge for the construction, improvement, and repair of any such road, street, or alley. [S. & C, p. 1509, sec. 45.] Sec. 52. Limitation of power. No order directing the opening of any new road, street, or alley, or the taking of any land, for the improvement, straightening, or changing any road, street, or alley, shall be made by said trustees, nor shall any ordinance be passed for such purpose, unless they shall all concur therein ; and no order shall be made for the improvement or repair of any road, street, or alley, except on the petition of two-thirds of the owners of the lots or land through or by which such road, street, or alley, or part thereof to be improved or repaired, shall pass. [S. & C, p. 1509, sec. 46.] Sec 53. Further powers of trustees. The said trustees shall have power to provide as follows : 1. To protect the property and per- sons of the inhabitants against injuries and destruction by fire, thieves, robbers, burglars, and all other persons violating the pub- lic peace. 2. To suppress riots, noise and disturbance, gambling, drunkenness, and indecent and disorderly assemblages and con- duct. 3. To punish all lewd and lascivious behavior in the streets, alleys, and other public places. 4. To suppress and restrain dis- orderly houses and houses of ill -fame. 5. To regulate, restrain, and prohibit, ale, beer and porter houses or shops, and houses and places of notorious and habitual resort for tippling and intemper- ance. 6. To regulate taverns and other houses of public entertain- ment. 7. To regulate or prohibit theatrical exhibitions and public shows, and all exhibitions of whatever name or nature, for which monejf is demanded or received; but public lectures on historic, literary, or scientific subjects shall not come within the provisions of this section. 8. To prevent injury or annoyance from anything dangerous, offensive, or unhealthy, and to cause any nuisance to bo 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 16 INCORPORATED VILLAGES FOR SPECIAL PURPOSES. protection thereof, and to regulate the burial of the dead ; and, 12. To provide fcr the comfoi-t, convenience, and safety, preserve the health and peace, promote the good order and prosperity, and im- prove the morals of the inhabitants of the corporation. [S. & C, p. 1504, sec. 34.] Sec 54. Powers as to by-laws, etc. The said trustees shall have power to make and publish, in the same manner as other corpora- tions, such by-laws, resolutions, and ordinances as to them shall seem necessary to carry into effect the foregoing powers; and shall have, in all respects, the like rights and remedies in the enforce- ment of such by-lays, resolutions, and ordinances as are herein given to other municipal corporations. All by-laws and ordinances shall require for their adoption the concurrence of all the trustees. [S. & C, p. 1509, sec. 45.] Sec 55. Compensation of marshal. The services performed by the marshal in his capacity of supervisor, under the direction of the trustees, shall be settled and paid for by the trustees of the proper township or townships as in other cases ; and for his serv- ices as marshal he shall receive the same fees as marshals in other municipal corporations for like services. The trustees, in their capacity as trustees, shall not receive any compensation. [S. & C, p. 1509, sec. 45.] Sec 56. Jurisdiction of justices of the peace. Any justice of the peace of the township or townships in which the corporation may be situated shall have jurisdiction in all prosecutions for the viola- tion of any ordinance thereof, with full power to hear and deter- mine the same and impose the prescribed penalty; and all fines, penalties, and forfeitures collected by any justice of the peace for the violation of any ordinance, shall be by him paid over to the clerk of the coi-poration. [S. & C, p. 1507, sec. 37.] Sec 57. Perpetuity of existing officers, ordinances, etc. All trus- tees and officers of corporations heretofore organized, and now ex- isting as sjDecial road districts, shall continue in office as trustees and officers of incorporated villages for special purposes, as herein established, until their successors are elected and qualified; and all by-laws, resolutions, and ordinances of such special road dis- tricts shall continue in force as by-laws, resolutions, ant in incorporated villages divided into three or more wards, when such authority shall be vested in a council composed of two members from each ward. The legislative authority of all cities shall be vested in a council consisting of two members from each of the wards. 1 [S. & C, p. 1509, sec. 47, and p. 1512, sec. 59.] *Sec S3. [As amended, April 18, 1870, 67 L. 70.] Members must be residents, etc. The members of the council shall be resi- dents of the corporation from which they shall be elected, and if the corporation be divided into wards or districts, then residents 1 "Where the city council have discretionary power in a case, their decision •will not he interfered with by the court unless it be clearly shown to be founded in mistake, fraud, or a wanton spirit. Sargent v. O. & M. R. R. Co., 1 Handy, 52, 63. Where the city council is vested with power to regulate the price of gas, the power must be exercised in good faith; if for a fraudulent purpose they fix a price at which they well know it can not be manufactured and sold without loss, such ordinance would impose no obligations upon the gas company. In such a case the good faith of the members of the city council who passed the ordinance may be inquired into. The State of Ohio, ex rel. the Attorney General v. The Cincinnati Gas Light and Coke Co., 18 Ohio St. 262. Que7'e, whether inquiry could be made into the motives of council in case of an ordinance passed in the exercise of the legislative powers conferred upon ic for the purposes of police regulation or municipal government. Ibid. 262, 301. * Sec. 83. [As originally passed.] Members must be resident*: The members of the council shall be residents of the corporation from which they shall be elected, and if the corporation be di- vided into wards, theu residents of the ward for which they shall be elected. THE COUNCIL. 29 of the icards or districts for which they shall be elected, 1 and when, by reason of any alterations in the boundaries of a ward or district, the residence of a member, whose term of office has not expired, shall be found in a ward or district of a different number than the one for which he was elected, he shall, nevertheless, in such case, be deemed and taken to represent the ward or district which at the time of his election in- cluded his residence ; provided, that if any ward or district, by annexa- tion or otherwise, shall be entirely absorbed, and its identity destroyed, the office of the alderman, councilmen or trustee thereof shall cease. 2 Sec. 8-4. Prerogative. The council shall have the management and control of the finances, and of all the property, real and per- sonal, of the corporation, except as may be otherwise provided fur by law. [S. & C, p. 1513, sec. Gl ; S. & S., p. 794, sec. 8.] Sec 85. First election ; terms of office. At the first election for council of incorporated villages under this act, three of the mem- bers shall be elected to serve for one year, and three for two years; and in such incorporated villages as may be divided into three or more wards, one of the members of the council for each of the wards shall be elected to serve for one year, and one for two years ; and thereafter, in all incorporated villages, the members of the council shall be elected to serve for two years. [S. & S., p. 792, sec. 3.] Sec. 86. First meeting of council. It shall be the duty of the mayor, or in his absence or inability, then the clerk, at the hour of the first regular meeting of the council after the second Monday of April in each year, to call the members elect to that body and the members holding over, who may be assembled, to order, and as 1 Where the legislature changed the numher of wards in a city, and the number of councilmen in a ward, so that some of the councilmen were thrown out of the wards in which they were elected, the charter requiring the coun- cilmen of each ward to " reside therein :" Held, that the provisions of the law, though in terms taking effect immedi- ately, were to be postponed in operation until the election of a new council. But that even if this were otherwise, yet that while the members of the coun- cil continued to act de facto, their proceedings would be valid. An assessment based on an ordinance passed under such circumstances was sustained. Scovill v. Cleveland, 1 Ohio St. 126. 2 The original provision on this subject will be found in section 410. The board of education is made by the statute a body corporate, and the con- tracting of a debt by the board, and the directing the issuing of an order to pay it, are corporate acts which can not be performed by the individual members of the board acting separately. The State ex rel. v. Treasurer of Liberty Tp., 22. Ohio St. 144. 30 THE COUNCIL. the members elect are called, they shall present their certificates and take the required oath or affirmation. In incorporated vil- lages, the mayor shall be the president of the city council, but shall have no vote except in cases of a tie. In case of his absence from any meeting, the council shall appoint one of their number to per- form his duties for the time being. [S. & C, p. 1512, sec. 59, and p. 1510, sec. 49.] Sec. 87. Organization of council. In all cities, if the members elect of the council and the members holding over, then present, shall constitute a quorum, the}^ shall forthwith proceed to organize by electing, from their own number, a president, and a president •pro tern., and such other officers necessar}^ to pei'fect their organiza- tion as. by ordinance, may be provided, and no business shall be transacted until such organization is effected. [S. & C, p. 1512, sec. 59, and p. 1510, sec. 49.] Sec 88. Rights, duties, etc., of council. The council shall be the judge of the election, returns, and qualifications of its own mem- bers, and shall determine the rule of its proceedings and keep a journal thereof, and may compel the attendance of absent mem- bers in such manner and under such penalties as may, by ordi- nance, be prescribed. [S. & C, p. 1512, sec. 59, and p. 1510, sec. 49.] Sec 89. 1 [As amended, April 18, 1870, 67 L. 70.] Ex-officio members of council. The mayor, the city auditor, the city civil engineer, and the city solicitor, shall have seats in the council, and be entitled to take part in its proceedings and deliberations on all questions relating to their respective departments, subject to such rules as the council shall, from time to time, prescribe, but without the right to vote. Said officers may be compelled to attend meet- ing of the council in the same manner as the members. [S. & C, p. 1550, sec. 188.] Sec 90. 2 Times and place of meeting. The council shall not be required to hold more than one regular meeting in each week ; 1 The only alterations in this section are the insertion of "the mayor" and the omission of the word "are" at the end. 2 "Not only are the statutes silent as to the time and place for holding a special meeting of the (township) trustees, but no previous notice is required to be given to the trustees. It therefore follows, that whenever and wherever, within the township, the trustees may meet, they may proceed to transact any lawful busi- ness for the township other than that which is required to be done at a regular meeting." Per McIlvaine, J., in The State ex rel. v. Wilkesville Tp., 20 Ohio St. 293. THE COUNCIL. 31 and the meeting of such council may be held at such time and place as may be by ordinance prescribed, and shall, at all times, be opened to the public. The mayor, or any three members, may call special meetings by notice to each member served personally, or left at his usual place of abode. [S. & S., p. 794, sec. 8, and p. 827, see. 106; S. & C, p. 1513, sec. 61.] *Sec. 91. [As amended, April 18, 1870, 67 L. 71.] Compensation of members of council. No member of the council or alderman shall receive any compensation for his services, either as councilman, al- derman, committeeman, or otherwise, except when acting as judge of election, when he shall receive such compensation as is provided by law for a judge of election. [S. & S., p. 794, sec. 8, and p. 827, sec. 106 ; S. & C, p. 1513, sec. 61.] Sec 92. Members shall not be interested in contracts ; penalty, etc. No member of the council of any officer of the corporation shall be interested, directly or indirectly, in the profits of any contract, job, work, or services (other than official services to be performed for the corporation), nor shall any member or officer act as com- missioner, architect, superintendent, or engineer in any work un- dertaken or prosecuted by the corporation during the term for which he was elected or appointed, or for one year thereafter. 1 Any member of any city council or officer herein specified, offend- ing against the provisions of this section, shall, upon conviction thereof in any court of competent jurisdiction, be fined in any sum not less than five hundred nor more than one thousand dollars, or be imprisoned in the county jail not less than thirty days nor more than six months, or both, at the discretion of the court, and shall, in addition thereto, forfeit his office as such member of the council or officer of the corporation. [S. & C, p. 1522, sec. 86, and p. 1559, sec. 217. Sec 93. Who ineligible. No person shall be eligible as a member 1 A board of public officers can not appoint one of their members to an office. State of Ohio ex rel. Louthan v. Taylor, 12 Ohio St. 130. This section does not prevent a member of council from being elected as street commissioner, although he may not be able to superintend work ordered while he was in council. The mayor will be compelled by mandamus to accept the bond of such a person. State ex rel. Flinn v. Mayor of Cumminsville, Ham- ilton District Court, per Cox, J. * Sec. 91. [As originally passed, May 1, 18G9, GO L. 1G5.] Compensation of member*. The mem- bers of the council shall not receive any compensation for their services, except when acting as judges of election, when they shall receive such compensation as is provided by law for judges of election. 3k. THE COUNCIL. of the council, who, at the same time, holds any municipal office, or is an employe under the government of the corporation. [S. & S., p. 827, sec. 104.] Sec 94. Expulsion and removal. Any member of the council may be expelled or removed from office by a concurrent vote of two-thirds of all the members elected, but not a second time for the same cause; any officer or agent, appointed by authority of this act, may be removed from office at the pleasure of the council by the vote of a majority thereof; any officer elected may be removed from office by a concurrent vote of two-thirds of all the members of the council elected. In case of elective officers, provision shall be made by ordinance for preferring charges and trying the same; but in no case shall such removal be made unless a charge in writ- ing is preferred and an opportunity given to make defense. [S. & C, p. 1510, sec. 53, and p. 1515, sec. G7.] Sec 95. [As amended, April 20, 1874, 71 L. 147.] Process to compel attendance. To enable the council fully to investigate charges against members thereof, or other officers, or such other matters as they may deem proper, the mayor or police judge, at the request of the council, is hereby empowered to issue subpenas or compulsory process to compel the attendance of persons and the production of books and papers before the council or any committee of the same. The testimony of any witness examined and testify- ing before the council, or any committee of the same, shall not be used as evidence in any criminal proceeding against him, except such proceeding be for perjury ; provided, however, that no official paper or record shall be included within the privilege of said evi- dence, so as to protect such witness from any criminal proceeding ■ and no witness before the council or any committee of the same shall be allowed to refuse to testify to any fact, or to produce any paper, touching which he shall be so examined, for the reason that his testimony, or the production of such paper, may tend to dis- grace him or subject him to a criminal proceeding. *Sec 9(5. [As amended, April 18, 1S70, 67 L. 71.] Oaths of wit- nesses. In all cases in which the council, or any committee of the members thereof, are authorized to compel the attendance of wit- nesses for the investigation of matters which may come before * Sec. 90. [As originally passed.] Administration of oaths. In all oases in which the council are authorized to compel the attendance of witnesses for the investigation of matters which may come before them, the presiding officer for the time being shall have power to administer the requisite oaths ; and such council shall have such power to compel the giving of testimony by the attending witnesses as is conferred on courts of justice. ORDINANCES AND RESOLUTIONS. 33" them, the presiding officer of the council, or chairman of such com- mittee for the time being, shall have power to administer the requisite oaths ; and such council or committee shall have such power to compel the giving of testimony by the attending wit- nesses as is conferred on courts of justice. [S. & C, p. 1544, sec- 1G7.] CHAPTER X. ORDINANCES, RESOLUTIONS, AND BY-LAWS — HOW ADOPTED AND PASSED. 1 Section Section 97. Adoption of ordinances, etc. 101. Statement as to publication. 98. Must be read three times, unless, etc. 102. Mode of publication. 99. Subject, and amendment, of by-laws, etc. 103. Effect of non-publication. 100. Recording and publishing of by-laws, 104. By-laws, ordinances, etc., as evidence, ordinances, etc. Sec 97. Adoption of ordinances, etc. All ordinances and resolu- tions, and all by-laws for the government of the council, shall 1 The difference between an ordinance and a resolution is indicated by the court in Blanchard v. Bissell. The question here was as to the validity of an ordinance assessing a tax which had not been signed by the president. The court say, Scott, J., delivering the opinion: "We are strongly inclined to think that the signature of the presiding officer was not essential to the validity of an ordinance of this kind. It is admitted to have been regularly passed by the proper body, and to have been duly re- corded by the proper officer; and though it be true that the statute directs him to authenticate all ordinances by his signature, it does not follow that his signa- ture is essential to their validity. Besides, we are not aware of any provision in the statute which requires a town council to levy taxes solely by ordinance. Such an act, by whatever name it may be called, is properly in the nature of a resolution. It is of a temporary character, and prescribes no permanent rule of government; and though clothed in the form of an ordinance, it may well have the effect of a resolution without the signature of the presiding officer." Blanchard r, Bissell, 11 Ohio St. 9G, 103. Ordinances and by-laws of municipal corporations bind strangers coming within their territorial limits. Marietta v. Fearing, 4 Ohio, 427. An ordinance or by-law inconsistent with or repugnant to the policy of the constitution or laws of the state is void. Ibid.; Cincinnati v. Bice, 15 Ohio, 225; City of Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon; 11 Ohio St. 688; Dodge v. Gridley, 10 Ohio, 173. "Where a special title is set up in a declaration, depending on an ordinance of 3 34 ORDINANCES AND RESOLUTIONS. require for their passage or adoption the concurrence of a majority of all the members elected, and the vote on their passage or .adoption shall be taken by yeas and nays and recorded on the journal ; and no money shall be appropriated except by ordinance [S. & C, p. 1521, sec. 8G, and S. & C, p. 1525, sec. 99.] Sec. 98. Must be read three times, unless, etc. All by-laws, reso- lutions and ordinances, of a general or permanent nature, shall be full} T and distinctly read on three different days, unless three- fourths of all the members elected shall dispense with the rule; and the vote on such suspension shall be taken by yeas and nays and entered on the journal. 1 [S. & C, p. 1521, sec. 8C] Sec 89. Subject and amendment of by-laws, etc. No by-law or ordinance shall contain more than one subject, which shall be clearl}* expressed in its title; 2 and no by-law, or ordinance, or sec- tion thereof, shall be revived or amended unless the new by-law or ordinance contain the entire by-law or ordinance, or section revived a city corporation, it must be set out in terms. Cincinnati AVater Co. v. Cincin- nati, 4 Ohio, 443. The delegation of authority to a municipal corporation to pass ordinances is not a violation of the article of the constitution vesting all legislative authority in the general assembly. Markle v. Akron, 14 Ohio, 586, 590. .Municipal corporations in Ohio have no power to appropriate public money to the payment of expenses for entertaining guests receiving public hospitalities, and an attempted expenditure of that nature may be enjoined. Moore v. Hoff- man, 2 Superior Court Reporter, 453. Courts have no power to restrain legislation by the city council, but can re- strain by injunction the carrying out or execution of illegal or unauthorized legislation attempted by the officers or members of council, or by other per- sons. Ibid. A city council may appropriate money for "incidentals'' without specifying the particular object of expenditure; but no expenses can be incidental which are not authorized by law to be incurred. Ibid. "Where appropriations for " incidentals " are made monthly for the following current month, an unexpended balance need not be covered into the treasury to be again appropriated, but the same may stand appropriated for such purpose, and the succeeding appropriations may be reduced to the amount of such unex- pended balance. Ibid. 1 The preliminary resolution declaring a proposed street improvement necessary, required by section 563 of the act of May 7, 1869, known as the municipal code, is not a resolution of either a general permanent nature within the meaning of section 98 of that act. Upington v. Oviatt, 24 Ohio St. 232. 2 This provision in the charter is only directory . Pim v. Nicholson, 6 Ohio .St., is decisive on this point. Barton v. Huntington, Superior Court of Cincin- aiati, Opinion by Storer, J. ORDINANCES AND RESOLUTIONS. 35 or amended ; and the by-law or ordinance, section or sections, so amended, shall be repealed. [S. & C, p. 1521, sec. 86.] *Sec 100. [As amended, April 18, 1870, G7 L. 71.] Recording and publishing by-laws, ordinances, etc. All by-laws, resolutions and ordinances, shall, as soon as may be after their passage, be recorded in a book kept for that purpose, and be authenticated by the signature of the presiding officer 1 and clerk of the council, and all ordinances of a general nature or providing for improvements, shall be published in some newspaper of general circulation in the corporation ; if a daily, twice, and if a weekly, once, before going into operation. 2 And no ordinance shall take effect until the expira- tion of ten days after the first publication of such notice. [S. & C, p. 1525, sec. 98; S. & S., p. 797, sec. 16.] Sec. 101. Statement as to publication. The clerk shall, imme- diately after the expiration of the period of sjuch publication, enter, on the record book of ordinances, in a blank space 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 official!}', and such certificate 1 The omission by the presiding officer of council to sign an ordinance, it seems, does not invalidate an ordinance, though he is required by the statute to authenticate it with his signature. "But it", as plaintiff below avers in his petition, this ordinance was in fact regularly passed by the council, and recorded among their proceedings by the proper officer, we would be unwilling to hold that the omission of the presiding officer to attach to it his signature would render the election held pursuant to its provisions wholly void. Its vitality de- pends, as we think upon the fact that it was regularly passed by the council, and this fact may be shown by the record." Blauchard v. Bissell, 11 Ohio St. 9(5, 100, 102. 2 Section 100 of the municipal code requires the publication of the ordinances in some newspaper of general circulation, but does not prevent the city from publishing them in other papers, and the court will not interfere by injunction to prevent such additional publication. "Wasem v. Cincinnati, 2 Superior Court Reporter, 81. The provision of section 100 of the municipal code, requiring all by-laws, resolutions, and ordinances to be recorded in a separate book kept for that pur- pose, is, with respect to the particular book in which the record shall be made, directory merely. Upington v. Oviatt, 21 Ohio St. 232. * Sec. 100. [As originally passed.] Recording and publishing of by-laws, ordinances, etc. All by- laws,' resolutions, and ordinances shall, as soon as may be alter their passage, be recorded in a book kept for that purpose, and be authenticated by the signature of the presiding officer and clerk of the council, and all ordiuances shall be published in some newspaperof general circula- tion in the corporation — if a daily, six times, and if a weekly, twice, before going into opera- tion. 36 ENFORCEMENT OP ORDINANCES. shall be prima facie evidence that legal publication of such ordi- nance has been made. Sec 102. Mode of publication. In all corporations in which there is no newspaper published, publication ma}^ be made by posting up written copies of all ordinances at not less than five of the most public places in the corporation, for a period of not less than fifteen days prior to the taking effect thereof; and the clerk shall make a certificate of such posting and the times when, and! the places where, in the same manner as provided in the preced- ing section, and such certificate shall be prima facie evidence that such copies were posted up as required. [S. & S., p. 797, sec. 16.] Sec 103. Effect of non-publication. It shall be deemed a suffi- cient defense to any suit or prosecution under any ordinance, to- show that no such publication or posting as herein required, was made. [S. & S..797, sec. 16.] Sec 104. By-laws, ordinances, 'etc., as evidence. The printed copies of the by-laws or ordinances of any corporation, published under its authority, and transcripts of any by-laws or ordinances, or of any act or proceeding of any municipal corporation, recorded in any book, or entered on any minutes or journal, kept under the direction of such corporation, and certified by its clerk, shall be received in evidence for any purpose for which the original books, ordinances, minutes or journal, would be received, and with as much effect. 1 [S. & C, p. 1508, sec. 39.] CHAPTEJK XI. ORDINANCES — HOW ENFORCED. Section Section 105. How ordinances, etc., enforced. 110. Party to be committed in default of 10G. Amount of fines, etc. payment. 107. Imprisonment. 111. Imprisonnif nt, where to be made. 108. How fines, etc., recovered. 112. Imprisonment in county jail may be 109. Suits must be commenced within one prohibited. year. 113. Limit of such prohibition. Sec 105. How ordinances, etc., enforced. By-laws and ordi- nances of municipal corporations may be enforced by the imposi- ] The Superior Court of Cincinnati can not take judicial notice of the ordi- nances and resolutions of the council of the city of Cincinnati, but the same, to- ENFORCEMENT OF ORDINANCES. 37 lion of fines, forfeitures and penalties, 1 on any person or persons •offending against or violating such by-laws or ordinances, or any ,. jf them ; and the fine, penalty or forfeiture, may he prescribed in each particular by-law or ordinance, or by a general by-law or ordinance, made for that purpose; and municipal corporations shall, have power to provide, in like manner, for the prosecution, recovery and collection of such fines, penalties or forfeitures. [S. & C, p. 1507, sec. 35.] Sec. 10G. Amount of fines, etc. Fines, penalties, and forfeitures which shall not exceed the sum of fifty dollars for any one speci- fied offense, or violation of the by-law or ordinance, or double that sum for each repetition of such offense or violation, or which shall be recognized by it, must be pleaded. Smith v. Cincinnati, Superior Court of Cincinnati, General Term, January, 1874, MS. 1 The power to create forfeiture must be expressly granted to a corporation to authorize them to exercise it. Authority " to impose fines, forfeitures, and penalties" is such an express grant. Coter v. Doty, 5 Ohio, 894, 898. A forfeiture can not be imposed by a city ordinance without a legal adjudi- cation. Authority can not be given to the marshal to seize gunpowder stored contrary to the provisions of an ordinance, and after three day's notice by publication to sell it to the highest bidder for the benefit of the corporation. Ibid. Nor can the marshal be authorized to seize hogs running at large in the streets and sell them to the highest bidder. " The mischief, and it is un- doubtedly one, which was intended to be guarded against, might be prevented as effectually by a different proceeding. Unless there be a special custom, or express legislative authority for it, the penalty of a by-law can not be enforced in this way. There can be no custom in this case, and the legislative authority which is contained in the charter does not necessarily or naturally import the exercise of the power. The ordinance commands the marshal to seize and im- pound the property, and then without any reserve, without any notice to the party, by means of which he might be enabled to exculpate himself, directs it to be sold and the proceeds to be placed in the city treasury. Such an ordi- nance is as contrary to the general spirit of the charter as it is alien from the general genius of our institutions." Per Grimke, J. Kosebough v. Saffin, 10 Ohio, 81, 86. "Where jurisdiction is conferred upon a municipal corporation over a par- ticular subject, this does not vest this jurisdiction exclusively in the council, ' and exempt the inhabitants of the corporation from the operation of the gen- eral law of the State, when it is not shown that the council has exercised such power. "VVightman v. The State, 10 Ohio, 452. Semble, that a fine assessed by either jurisdiction would be a bar to a prose- cution for the same offense in the other jurisdiction. Dictum by "Wood, J. Ibid. 454. But the fact that a party has received a license under a state law ■does not exempt him from the provision of a town ordinance. Thomas v. Mt. Ternon, 9 Ohio, 290. 38 ENFORCEMENT OF ORDINANCES. not exceed ten dollars for each day where the thing prohibited or rendered unlawful is in its nature continuous in respect to time, shall he deemed reasonable; but where in any bydaw or ordinance a greater fine, penalty, or forfeiture is imposed than as above speci- fied, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as shall be deemed reasonable *and proper, and to permit a a recovery or render judgment accordingly. [S. & C, p. 1507, sec. 3G.] Sec 107. Imprisonment, and hard labor. In addition to the fines and penalties above specified, the council may provide for a further penalty of imprisonment for any term not exceeding thirty days, and for keeping persons convicted at hard labor during their term of imprisonment, at such time and place, and in such manner as may be prescribed by ordinance. [S. & C, p. 1507, sec. 36.] Sec. 108. How fines, etc., recovered. Fines, penalties, and for- feitures may, in all cases, and in addition to any other mode pro- vided, 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 bydaw or ordinance, referring to its title, and the date of its adoption or passage, and showing, as near as may be, the true time of the alleged violation. [S. & C, p. 1507, sec. 37.] Sec 109. Suits must be commenced within one year. All suits or prosecutions for the recovery of fines, penalties, or forfeitures, or for the commission of any offense made punishable by any bydaw 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. [S. & C, p. 1507, sec. 38.] Sec 110. Party to be committed in default of payment. When any fine shall be imposed for the violation of any 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 is- sued for the purpose, be committed until such fine and the costs of prosecution shall be paid, or the party discharged by due process of law. [S. & C, p. 1553, sec. 198.] Sec 111. Imprisonment, where to be made. When any person Bhall be imprisoned under the provisions of this act. such impris- onment shall be in the jail of the corporation, if the corporation be provided with a jail; and any corporation not provided with a ENFORCEMENT OF ORDINANCES. 39 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 shall have provided a prison, house of correction, or work-house; and all persons so imprisoned in the count}' jail shall be under the charge of the sheriff of the county, who shall receive and hold such persons in such manner as shall be prescribed by the ordinances of the corporation, until discharged by due course of law. [S. & C, p. 157)4, sec. 199, and p. 1511, sec. 55.] Sec 112. Imprisonment in county jail may be prohibited. The county commissioners may, at their discretion, on giving to the council of any corporation written notice of their intention so to do at least ninety days prior thereto, prohibit the use of the county jail for the purpose authorized in this chapter. [S. & C, p. 1554, sec. 199.] Sec 113. Limit of such prohibition. If, -within ninety days after such notice shall have been given, the council of such corporation shall have efficiently provided, by the passage of appropriate or- dinances, and the making of the necessary contracts, for the imme- diate erection of a prison, work-house, or house of correction, for the purpose of imprisonment authorized by this act, the said cor- poration shall continue, notwithstanding the notice and prohibition provided for in the preceding section, to have the use of the county jail, for the purpose of imprisonment, until such prison, work-house, or house of correction shall be erected and ready for use. [S. & C, p. 1554, sec. 199. 40 THE MAYOR. CHAPTER XII. POWERS AND DUTIES OF MUNICIPAL OFFICERS. Section 114. Mayor— his jurisdiction, powers, etc. 115. Duties, fees, office, etc. 11G. Further duties. 117. Jurisdiction. 118. Duties in suppression of disorder, etc. 119. Supervision of conduct of officers. 120. Supervision of prisons, etc. 121. Suspension of officers for neglect, etc. 122. Shall report to council annually. 123. Disposition of fines, etc. 124. Mayor as police judge. 125. Appeal from decisions of mayor. 126. Bond, salary, etc., of mayor. 127. Vacancy, how filled. 128. Clerh— his duties, etc. 129. He shall make a record, etc. 130. And post or publish it. 131. Shall report to state auditor, etc. 132. Shall certify to court. 133. Clerk of court shall record, etc. 134. Penalty for neglect. 135. When clerk shall perform duties of auditor. 136. Shall deliver books, etc., to city auditor. 137. Corporation seal. 138. Auditor — his powers and duties. 139. The same. 140. Marshal — his deputies. Section 141. His duties, etc. 142. The same. 143. Powers, responsibility, fees, etc. 144. Disposition of fines, etc. 145. Chief of police. 140. Duties of chief of police. 147. Powers, etc., same as marshal. 148. Compensation. 149. Shall receive no perquisites. 150. Disposition of fines, etc. 151. Treasurer— his powers and duties. 152. Further duties. 153. The same. 154. Compensation. 155. Duty of county treasurer. 156. Ex officio corporation treasurer. 157. Solicitor — his duties. 158 The same. 159. The same. 1G0. When tax-payer may institute suit. 101. Duty of the court. 162. Solicitor's report. 163. His salary. 164. Street commissioner, civil engineer, and 8M- perintendenl of police — their duties. 165. Their compensation. I. — The Mayor. Sec. 114. Jurisdiction, powers, etc., of mayor. The mayor shall be a conservator of the peace throughout the corporation; and within the limits of the same shall have all the jurisdiction and powers of a justice of the peace, in all mutters, civil and criminal, arising under the laws of the state, and for crimes and offenses, his jurisdiction shall he co-extensive with the county. [S. & C, p. 1510, sec. 51; p. 1511, sec. 57; p. 1516, sec. 68, and p. 1517, sec. 71.] Sec 115. Duties, fees, office, etc. The maj-or shall keep a docket, and shall he entitled to receive the same fees that are or may be allowed justices of the peace for similar services; and he shall keep an office at some convenient place, to be provided by the council, in the corporation, and shall be furnished by the council with the corporate seal of the corporation, in the center of which shall be the words, "mayor of the city of ," or "mayor of THE MAYOR. 41 the incorporated village of ," as the case may he. [S. & C, p. 1510, sec. 51 ; p. 1511, sec. 57; p. 1516, sec. 68, and p. 1517, sec. 71.] Sec. 11G. Further duties. The mayor shall perform all the duties by the by-laws and ordinances of the council prescribed; 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. permits granted by authority of the council or authorized by this act, and such other instruments as by law or ordinance may require his certificate. [S. & C, p. 1510, sec. 51 ; p. 1511, sec. 57 ; p. 1516, sec. 68, and p. 1517, sec. 71.] Sec. 117. [As amended, April 29, 1872, 69 L. 192.] Jurisdiction. The maj-or shall have exclusive jurisdiction, except as hereinafter provided, of all prosecutions for violations of ordinances of the corporation, with full power to hear and determine the same, in all corporations where no police court has been or shall be established. His jurisdiction shall extend to cases where the defendant is en- titled to a trial by jury, if a jury be not demanded; and he shall perform such other duties compatible with the nature of his office, as the council may from time to time require; Provided, that in incorporated villages the council of such village may, upon the re- quest and recommendation of the ma3 T or thereof, by a vote of the majority of all the members elected of said council, appoint some justice of the peace, resident in said corporation, who shall, during the term of office of such mayor, have jurisdiction of all prosecu- tions 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 re- sponsibilities in all of such cases, as are prescribed in this act to be performed by and are conferred on the mayor of such corporations. Such justice of the peace so appointed as aforesaid, shall be styled " 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 pro- vided by the council, with the name of the state in the center, and the words, "Police Justice of the Incorporated Village of ," around the margin. All the provisions of chaj:>tcr fourteen of this act, applicable to the mayor, shall apply to said police justice. Sec. 118. Duties in suppression of disorder, etc. The mayor shall have and exercise within the corporation limits, all the powers conferred upon sheriffs of the counties, to suppress disorder and keep the peace ; and shall award and issue all such writs or process 42 THE MAYOR. as may be necessary to enforce the administration of justice throughout the corporation, and for the lawful exercise of his juris- diction according to the usages and principles of law; and to writs, process, transcripts, and official papers, of whatsoever kind, he shall subscribe his name and affix his seal of office. [S. & S., p. 825, sec. 101.] Sec. 119. Supervision of conduct of officers, etc. The mayor shall supervise the conduct of all the officers of the corporation, inquire into and examine the grounds of all reasonable complaints against any of them, and cause all their violations or neglect of dut} r to be promptly punished or reported to the proper authority for correc- tion. [S. & C, p. 1511, sec. 57.] Sec. 120. Supervision of prison, etc. The mayor shall also have power, and in his absence, the president of the council, to grant to the magistrates of adjoining or contiguous townships, the tem- porary 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 safely be removed therefrom to the county jail, or other place of security. [S. & S., p. 825, sec. 101.] Sec. 121. Suspension of officers for neglect, etc. The mayor shall have power to suspend from office any lieutenants of police, or any officer appointed by him under the authority of any law or ordi- nance, for neglect of duty, misconduct in office, or other sufficient cause; and may appoint other persons to fill the temporary vacancy occasioned thereby; and all such suspensions, and the cause thereof, and all appointments, shall be by him reported to the council for their action at the next regular meeting thereafter. [S. & C, p. 1517, sec. 71.] Sec 122. Annual report to council. The mayor 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 council con- cerning the affairs of the corporation, and recommend such measures as to him may seem proper. [S. & C, p. 1517, sec. 71.] Sec. 123. Disposition of fines, etc. All fines, penalties, 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 re- ceived by him in his official capacity, other than his fees of office, shall be by him weekly paid over to the treasurer of the cor- poration ; 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, and from whom and for what purposes received, and when paid over. [S. & C, p. 1517, sec. 73.] THE CLERK. 4£ Sec. 12-1. Mayor as police judge. In all cities in which there is a police judge, the mayor shall not, except in cases of urgency or necessity, be required to hear or examine into any criminal charge or case, and any warrants issued by the mayor of such cities shall be made returnable before the judge of the police court; and in the unavoidable absence of the police judge, the mayor shall, if no acting police judge be by him appointed, have power to sit in the police court and perform the duties of the judge thereof. [S. & C, p. 1517, sec. 71.] Sec 125. Appeal from decisions of mayor. Appeals may be taken from the decision of the mayor in the same manner as from decisions of justices of the peace; and any final sentence or con- viction before the mayor, may be examined and revised in the same manner and by the same tribunal as is provided for the examination and revision of any final sentence or conviction in the police court. [S. & C, p. 1510, sec. 51, and p. 1521, sec. 84.] Sec. 12G. Bond, salary, etc., of mayor. The mayor shall give bond and security as is required by law of justices of the peace, to be approved by the council ; and he shall, in addition to the fees he maybe entitled to, receive such salary, payable quarterly out of the corporation treasury, as may be provided by ordinance ; * but the amount of such salary shall neither be increased nor diminished during his term of office. [S. & C, p. 1511, sec. 57.] Sec. 127. Vacancy, how filled. In the case of the death, resig- nation, disability or other vacation of his office, the council may, by the vote of a majority of all the members elected, appoint some suitable person within the corporation to act as mayor and dis- charge the duties of such officer until such vacancy be filled or the disability be removed. [S. & C, p. 1511, sec. 57; S. & S., p. 823, sec. 95.] II. — The Clerk. Sec 128. Duties of clerk, etc. The clerk shall attend all meet- ings of the council, and make a fair and accurate record of all its 1 Where a section of a city ordinance provides, that "for each and every license granted" by the mayor "he shall receive the sum of one dollar,'' and a subsequent section of the same ordinance provides that "the salary of the mayor shall be two thousand dollars, payable quarterly, and he shall not be allowed to receive any perquisites or fees for any service performed, except in such cases as are provided for in the laws of the State of Ohio," the fees re- ceived by the mayor under the former section of the ordinance are for the ben- efit of the city, and not for the benefit of the mayor, in addition to the salary payable to him under the latter section. Hatch v. Cincinnati, 17 Ohio St. 48. 44 THE CLERK. proceedings, and of all rules, by-laws, resolutions and ordinances passed by the council; and the same shall be subject to the inspec- tion of all persons interested. In case of his absence from any meeting, the council shall appoint one of their own number to per- form his duties for the time being. [S. & C, p. 1510, sec. 48, and p. 1512, sec. 59 ; S. & S., p. 792, sec. 4.] *Sec. 129. [As amended, April 18, 1870, G7 L. 71.] Duties of city clerk as to record of receipts and expenditures. The clerk shall, on or before the third Monday in March of each year, make and enter in the record-book of the corporation an account of all the receipts and expenditures of the corporation of the preceding year, stating from what sources the money was received, and for what purposes expended, and showing the exact condition of the several funds of the corporation. [S. & S., p. 792, sec. 4.] f Sec. 130. [As amended, April 18, 1870, 07 L. 71.] Statement to be posted. He shall cause a condensed statement of such account, ichich shall be approved and certified to by the mayor, to be posted up at the places of holding elections for officei*s of the corporation on the first Monday of April, annually; and the clerk shall publish the same 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 them a detailed statement of all receipts and disbursements for such period as they may require. [S. & S., p. 792, sec. 4. +Sec. 131. [As amended, April 18,1870,67 L. 71.] Report to state auditor, etc. He shall, on or before the first Monday in June, in each year, report to the auditor of state the aggregate expenses of such corporation for the preceding year, under the following * Sec. 129. [As originally passed.] He shall make a record, etc. The clerk shall, on or before the first Monday in March of each year, make and enter in the record book of the corporation, an acccount of all the receipts and expenditures of the corporation of the preceding year, stating from what sources the money was received, and for what purpose expended. t Sec. 130. [Asoriginally passed.] And post or publish it. lie shall cause a copy of such account to be posted up, at the places of holding elections for officers of the corporation, on themorniDg Of the first Monday of April, annually ; or the council way, by resolution, authorize him to publish tli.' game in Borne newspaper published in the corporation, assoonafter the first Monday of April as may be practicable. (Sec. 131. [As originally passed.] Shall report to state auditor, etc. He shall, on or before tho first Monday in June in each year, report to the auditor of state the aggregate expenses of such corporation fur the preceding year, under the following heads: School, police, street, bridges, fire department, lights, poor, salaries, and interest ; andalso the amount of the general corpora- tion tax for all the preceding objects, and for any others not enumerated, and the special taxes of the corporation for the same period ; any corporation clerk who shall neglect to make report as above provided, shall forfeit and pay the sum of one hundred dollars, to be recovered before any court having jurisdiction of the subject-matter, in the name and for the use of the corpora- tion. THE CLERK. 45 heads : school, police, streets, bridges, fire department, lights, poor, salaries, and interest; and also the amount of the general corpora- tion tax for all the preceding objects, and for any others not enu- merated, and the special taxes levied and collected by the corporation for the same period ; any corporation clerk who shall neglect to make report as above provided, shall forfeit and pay the sum of one hundred dollars, to be recovered before any court having jurisdic- tion of "the subject-matter, in the name and for the use of the cor- poration ; provided, that in cities where there are city auditors, they shall perform the duties imposed upon the clerks in sections 129, 130, and 131. [S. & C, p. 1543, sec. 165.] Sec. 132. Shall certify to the court. The clerk shall certify to the court of common pleas of the county in which the corporation is situate, the election of every officer within the corporation hav- ing power to discharge the duties of a justice of the peace, or to take the acknowledgment of deeds, or to certify to 'depositions or affidavits to be used without 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 cer- tificate shall be made within ten days after such qualification. [S. & C, p. 1536, sec. 136.]- Sec. 133. Clerk of court shall record, etc. It shall be the duty of the clerk of the court of common pleas to record the same in the book in which the record of the elections and qualifications of justices of the peace are kept; and the same fees shall be allowed to the officers certifying and recording the same, as are allowed for certifying and recording the election and qualification of justices of the peace. [S. & C, p. 1536, sec. 136.] Sec 134. Penalty for neglect. Every clerk whose duty it shall be to make such certificate, or to record the same when presented for record, who shall neglect or refuse to perform the duties en- joined by this chapter, shall pay to the treasurer of the corporation, the election of whose officer shall thereby remain uncertified or unrecorded, the sum of fifteen dollars, to be recovered in an action of debt at the suit of said corporation ; and also be liable for all damages arising from such neglect or refusal. [S. & C, p. 1536, sec. 137.] Sec 135. When clerk shall perform duties of auditor, etc. In all corporations in which there is no city auditor, the clerk shall per- form the duties of auditor, under the direction of the council, and all such other duties pertaining to his office as shall by the council be prescribed ; and he shall have the charge and custody of all the 46 THE AUDITOR AND TIIE MARSHAL. laws and ordinances, and the books, records, and papers of the corporation, and shall carefully keep and preserve the same in his office, and shall certify all transcripts that may be required of any record or papers in his office, and shall be entitled to receive there- for the same fees as other officers for similar services. [S. & S., p. 794, sec. 8 ; S. & C, p. 1512, sec. 59.] Sec. 13G. Shall deliver books, etc., to city auditor. Upon the cre- ation of the office of city auditor, the clerk shall, upon demand, deliver to the incumbent of such office, when duly qualified, all the records, books, papers, vouchers, and documents of every descrip- tion, in his possession, pertaining to the duties of such auditor. Sec. 137. Corporation seal. The council shall cause to be pro- vided for its clerk's office, a seal, in the center of which shall be the name of the corporation, and around the margin the words "City Clerk," or in case of an incorporated village, the words " Corporation Clerk ;" which seal shall be affixed to all transcripts, orders, certificates, or other papers which it may be necessary or proper to authenticate under the provision of this act, or of any ordinances of the corporation. [S. & C, p. 1513, sec. 60. III. — The Auditor. Sec. 138. Powers and duties of auditor. The auditor shall have power to administer oaths, and take affidavits, and such other powers, and shall perform such duties, as may be prescribed by law or any ordinance of the corporation not inconsistent with the constitution and laws of the state and not incompatible with the nature of his office. 1 [S. & S., p. 801, sec. 22.] Sec. 139. The same. He shall have charge of all books, records and papers connected with his office, and shall carefully keep and preserve the same in his office, and the same shall be subject to the inspection of all persons interested. IV. — The Marshal. Sec 140. The marshal ; his deputies. The marshal shall be the principal ministerial officer of the corporation, and he shall have 1 An order drawn by the clerk of the board of education, under the statute, in favor of a third person or bearer, on the township treasurer, is not negotiable, and a purchaser takes such order subject to the same defenses that could be made against it in the hands of the payee. The State ex rel. v. Liberty Tp., 22 Ohio St. 144. The written acceptance of such order by the predecessor of the township treasurer, to whom it is presented for payment, imposes no greater obligation on the latter to pay the same than he would have been under, had it been pre- sented without such previous acceptance. Ibid. THE MARSnAL. 47 power to appoint one or more deputies, for whose official acts he shall he responsible, and by whom he may execute all writs, pro- cess and orders to him directed. [S. & C, p. 1510, sec. 52 ; p. 1516, sec. 70, and p. 1517, sec. 73.] Sec. 141. [As amended, April 1G, 1874, 71 L. 7G.] His duties. He shall execute and return all writs and process to him directed 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 pre- serve order therein, 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 corporation, shall be co-extensive with the county, and in civil cases shall be co-extensive with the limits of the corporation. Sec. 142. The same. He shall suppress all riots, disturbances, and breaches of the peace, and to that end may call upon the citi- zens to aid him ; he shall arrest all disorderly persons in the cor- poration, and pursue and arrest any person fleeing from justice in any part of the state; he shall arrest any person in the act of com- mitting any offense against the laws of the state or the ordinances of the corporation, and forthwith bring such person before the mayor, or other competent 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. [S. & C, p. 1510, sec. 52 ; p. 1516, sec. 70, and p. 1517, sec. 73.] Sec 143. Powers, responsibilities, fees, etc. He shall have, in the discharge of his proper duties, like powers, bo subject to like re- sponsibilities, and shall receive the same fees as sheriffs and con- stables in similar cases, for services actually performed by himself or his deputies, and such additional compensation as the council may prescribe ; 1 but in no case shall he receive any fees or com- pensation 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. [S. k C, p. 1510, sec. 52 ; p. 1516, sec. 70, and p. 1517, sec. 73.] Sec 144. Disposition of fines, etc. All fees, costs, fines and pen- alties by him collected, shall immediately be paid over to the nnvvor, x The salary of the marshal, or any other officer, may be garnished like any •other debt due him. Newark v. Funk, 15 Ohio St. 402. 48 CHIEF OF POLICE AND TREASURER. and he shall report to the council monthly the amount thereof, and from whence and for what purpose collected and when paid over. [S. & C, p. 1517, sec. 73.] V. — Chief of Police. Sec 145. Chief of policy. In all corporations in which there is no marshal, the duties imposed on that officer by this act shall he performed by the chief of police. [S. & C, p. 1518, sec. 74, and p. 1550, sec. 204.] Sec 146. His duties. He shall be under the direction of the mayor, and shall execute all process to him directed by the mayor or judge of the police court, and shall by himself, or some lieutenant of the police to be by him designated, attend on the sittings of said courts to execute the orders and process thereof, and preserve order therein. [S. & C. p. 1518, sec. 74, and p. 1556, sec. 204.] Sec 147. Powers, etc., same as marshal. He shall have the same powers, perform the same duties, and be subject to the same respon- sibilities as are imposed on the marshal in the preceding division of this chapter. [S. & C, p. 1518, sec. 74, and p. 1556, sec. 204.] Sec 148. Compensation. He shall receive for his compensation from the corporation such sum, payable quarterly, as the council may by ordinance prescribe, not exceeding fifteen hundred dollars per annum, and from the county, in state cases, not exceeding five hundred dollars per annum, to be allowed by the county commis- sioners. [S. & C, p. 1518, sec. 74, and p. 1556, sec. 204.] Sec 149. Shall receive no perquisites. In no case shall he, or the lieutenant or watchman who may be detailed by him to attend on the police court, demand or receive any perquisite, fee or reward other than is authorized by law. [S. & C, p. 1518, sec 74, and p. 1556, sec. 204.] . Sec 150. Disposition of fines, etc. All fines, penalties, and costs collected by the chief of police, lieutenant, or watchman, shall be paid over to the clerk of the police court, and the same fees shall be charged and collected by the chief of police from persons con- victed, as the marshal is herein authorized to charge and collect for similar services. [S. & C, p. 1518, sec. 74, and p. 1556, sec. 204.] YI. — The Treasurer. Sec 151. Powers and duties of treasurer. The treasurer, in ad- dition to the ordinary and usual duties of such officer, shall have such powers and perform such duties as are prescribed in this act, or may be required by any ordinance of the corporation, not incon- THE TREASURER. 4!> eistent with this act and not incompatible with the nature of his office: [S. & O, p. 1517, sec. 72; S. & S., p. 795. sec. 12.] Sec. 152. Further duties of treasurer. He shall demand and re- ceive from the county treasurer all taxes levied and assessments made and certified to the county auditor by authority of the coun- cil, and by said auditor placed on the tax duplicate for collection, and from all persons authorized to collect or required to pay the same, all moneys accruing to the corporation from judgments, fines, penalties, forfeitures, licenses, and costs taxed in the maj'or's and police courts, and all debts, of whatever kind, due the corpora- tion, and disburse the same on order of such person or persons as may be authorized by ordinance to issue orders for the same. 1 [S. & C, p. 1523, sec. 90, and p. 1546, sec. 173; S. & S., p. S94, sec. 321.] Sec. 153. The same. The treasurer shall settle and account with the council quarterly, and as much oftener as the council shall, by resolution or ordinance, require; and he shall report an- nually to the council, at the first regular meeting thereof, in April, the condition of the finances of the corporation and the amount re. ceived by him and the sources whence received, and the disburse- ments by him made and on what account, during the year pre- ceding the first day of April, and su»h account shall exhibit the balance due on each particular fund which may have come into his hands during the year. Sec. 154. Compensation. The treasurer shall be allowed as com- pensation for the disbursement of all mone} r s, other than school funds, which shall come into his hands under the provisions of this act, such sum as the council may allow, not exceeding the fol- lowing in any one year: On the first five thousand dollars, two per centum. On the next five thousand dollars, one and a half pcrcentum. On the next ten thousand dollars, one-half of one percentum. And on all sums that may be disbursed by him in excess of the above amounts, one-fifth of one per centum, payable out of any 1 No private action can be maintained against a county treasurer in his official capacity, who refuses to pay an order legally drawn upon funds in the treasury by the county auditor. In such case the treasurers' duty is ministerial, and mandamus is the proper remedy. Bates v. Fries, 2 Disney, 511. If a county treasurer Avillfully and oppressively refuses to pay an order legally drawn upon funds in the treasury by the county auditor, and not merely under an honest mistake as to his duty, an action will lie against him in his private capacity by the party injured, for the damages sustained by his refusal to pay the order. Ibid. 4 50 THE SOLICITOR. money in the corporation treasury not otherwise appropriated, and no other compensation shall be allowed corporation treasurers for services performed under this act. [S. & S., p. 795, sec. 12.] Sec 155. Duty of county treasurer. The county treasurer shall, on the first Monday of February and August in each year, pay •over to the treasurer of the corporation all moneys , received by him up to said dates, arising from taxes levied and assessments made belonging to the corporation. [S. & C, p. 1523, sec. 90.] *Sec 156. [As amended, April 18, 1S70, 67 L. 72.] Duty of ex 'Officio corporation treasurer. In all corporations in which the county treasurer is by law made ex officio the corporation treasurer, except when under the provisions of section sixty-one of this act he may be appointed city treasurer, such county treasurer, if he has already entered upon the duties of «is office, shall continue to act as such corporation treasurer until the expiration of his term of office; all moneys in the hands of such county treasurer, acting ex officio as •corporation treasurer, shall, upon the termination of his office, be transferred to the corporation treasurer. [S. & S., p. 794, sees. 8, 9,10,11,12] VII.-^The Solicitor. Sec. 157. Duties of solicitor. The solicitor shall, whenever re- quired so to do by resolution of the council, prosecute for and in behalf of the coi^poration 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 controversies as shall, by resolution or ordinance, be directed. Sec. 158. The same. He shall pa3* over to the treasurer all moneys which may come into his hands belonging to the corpora- tion, or which may come into his hands by way of fines, forfeitures, costs, or otherwise, and take the treasurer's duplicate receipts therefor, one of which he shall file with the clerk of the corpora- tion, or in case there be an auditor, then with such auditor. Sec 159. The same. He shall apply to a court of competent jurisdiction for an order of injunction to restrain the misapplica- tion of the funds of the corporation, or the abuse of its corporate *Sec. ISO. [As originally passed.] The same as ex officio corporation Ireausrer. In all corpora- tions in which the county treasurer is by law made ex officio the corporation treasurer, such county tie usurer, if lie has already entered upon the duties of his office, shall continue to act as 6uch corporation treasurer nntil the expiration of his term of office ; all moneys in the hands of such county treasurer acting ex officio as corporation treasurer, shall, upon the tei initiation of his office, be transferred to the corporation treasurer. THE SOLICITOR. 51 powers, or tlie execution or performance of any contract made in behalf of the corporation in contravention of the laws or ordi- nances governing the same, or which was procured by fraud or cor- ruption. [S. & C, p. 1559, sec. 219.] *Sec. 1G0. [As amended, April 18, 1870, G7 L. 72.] When tax- payer may institute suit. In case the solicitor shall fail, upon the request of any of the tax-payers thereof, to make the application provided for in the preceding section, it shall' be lawful for such tax-payer to institute a suit in his own name, on behalf of the cor- poration ; provided, that no such suit or proceeding shall be entertained ■by any court, until such request shall have first been made in writing. 1 £S. & C, p. 1559, sec. 219.] Sec 161. Duty of the court. If the court hearing such case shall be satisfied that such tax-payer had good cause to believe thut his allegations were well founded, or if the same are sufficient in law, it shall make such order as the equity and justice of tho •case shall demand; and in such case he shall be allowed his costs, including a reasonable compensation to his attorney. [S. & C, p. 1559, sec. 219.] Sec. 162. Solicitor's import. The solicitor 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 1 When a tax-payer sues, he is entitled to recover costs and reasonable counsel fees, to be paid out of the corporation treasury. Smith v. Cincinnati, Superior Court of Cincinnati, General Term, January, 1874, MS. Where a petition shows substantially that the action is brought by the solic- itor, it will be held good upon demurrer, although defective upon motion, by reason of the joinder of other names with that of the solicitor. Ibid. A request in writing, and a failure on the part of the solicitor to sue, are con- ditions precedent to the right of a tax-payer to maintain an action under section 1G0 of the municipal code, to restrain the misapplication of the corporate funds, or the abuse of corporate powers. Ibid. The solicitor and a tax-payer can not join in such an action, as the tax-payer lias no right to sue until the solicitor fails to do so, and if the solicitor does sue, the tax-payer can not. Ibid. The court may allow a reasonable fee to counsel employed by tax-payers, with the consent of the city solicitor, to prosecute the application for an injunc- tion to restrain the trustees of the water-works from entering into an illegal contract. Miller v. Pearce, 2 Superior Court Reporter, 44. * Seci 160. | As originally passed.] When tax-payer may institute suit. In case the solicitor shall fail, upon the request of any of the tax-payers thereof, to make the application provided for in the preceding section, it ehall be lawful for such tax-payer to institute a suit in his own naiuo on behalf of the corporation. 52 STREET COMMISSIONER, POLICE JUDGE, ETC. the year preceding the first day of April, and such other matters as he may think proper in order to promote the good government and welfare of the corporation. Sec 163. Sis salary. He shall receive such stated salary, pay-' ahlc quarterly out of the corporation treasury, and such fees or compensation for particular services as the council may prescribe. VIII. — Street Commissioner, Fire Engineer, Civil Engineer, and Superintendent op Markets. Sec. 164. Duties of street commissioner, civil engineer, and super- intendent of market. The street commissioner, fire engineer, civil engineer, and superintendent of markets, shall each severally per- form the duties prescribed by this act, and such other duties not incompatible with the nature of their office, as the council may by ordinance require. [S. & C, p. 1517, sec. 72, and p. 1542, sec. 159; S. & S., p. 826, sec. 103.] Sec. 165. Their compensation. They shall each receive such compensation for their services, by fees or salary, or both, as may be provided by ordinance. CHAPTER XIII. jurisdiction and powers op police courts. Section 1GG. Police judge — his powers. 107. His jurisdiction. 108. The police court. 10'J. Prosecutions, how brought. 170. Compensation of police judge. 171. Police court always open, etc. 172. Jurors in police court. 173. Rules of practice, etc. 174. Substitute for police judge. 175. His oath. 17G. Record of proceedings. 177. Fees. 178. Fees of witnesses. 179. Writ of error to common pleas. Section 180. Return on such writ. 181. What common pleas court may do. 182. Clerk of police court — his duties. 183. His oath and bond. 184. His salary, etc. 185. HiB powers. ISO. Substitute for clerk. 187. Further duties of clerk. 188. Shall not be concerned as counsel, 189. Shall account for fines, etc. 190. Disposition of surplus fees. 191. Prosecuting attorney of police court — duties. 192. His salary. 193. Substitute for prosecuting attorney. I.— Police Judge. Sec. 166. Powers of police judge. The police judge shall have in all criminal cases the same power and jurisdiction that are or may be by law vested in justices of the peace of the county; he POLICE JUDGE. 53 shall also have power to take acknowledgments of deeds and other instruments of writing, to administer oaths, and take and certify •depositions. [S. & S., p. 797, sec. 17.] Sec. 1G7. His jurisdiction. lie shall have jurisdiction of all violations of the ordinances of the city, and of all cases of petit larceny and of inferior offenses which do not require an indict- ment by a grand jury, committed within the limits of the city or within four miles thereof. 1 The power to hear and determine such offenses shall extend to cases where the accused is entitled to a trial by jury, if a jury be waived. [S. & S., p. 797, sec. 17.] Sec. 168. [As amended, March 15. 1875, 72 L. 51.] The police court. He shall have power to hold a court, to be styled " The Police Court," which shall be a court of record ; it shall have a filial, to be provided by the city council, with the name of the state in the center, and the style of the court around the margin ; he Shall have power to issue process, to preserve order and punish •contempts, to summon and impanel jurors, to grant new trials and motions in arrest of judgment, to suspend execution of a sentence upon notice given of an intention to apply for a writ of error, and such further power incident to a court of common pleas as maybe necessary for the exercise of the jurisdiction herein conferred. Sec 1G9. Prosecutions, how brought. Prosecutions in said court for offenses against the laws of the state, shall be brought and conducted in the name of the state, and prosecutions for the vio- lation of city ordinances shall be brought and conducted in the name of the city. [S. & S., p. 798, sec. 17.] Sec 170. Compensation of police judge. The judge of the police court shall receive no fees or perquisites whatever, but shall receive such annual compensation, to be paid quarterly out of the city treasury, not exceeding two thousand dollars, as the council ma3 r prescribe, and such further condensation payable out of the county treasury, as the county commissioners may deem proper ; but in cities of the first class, having a population of one hundred x The police court has power to hear and determine any case in which no in- dictment is required hy the laws of the state at the. time when the jurisdiction is entertained. Dillingham v. The State, 5 Ohio St. 280; Ex parte Scott, 19 Ohio St. 581. The act of February 1, 1853, providing for the discharge before the commis- sioner of insolvents of persons imprisoned for non-payment of fines for more than sixty days, is constitutional, and applies to prisoners fined in the police ■courts, and compliance therewith will be enforced by mandamus. Habeas •corpus is not the proper remedy. Ex parte Scott, 19 Ohio St. 581. 54 POLICE JUDGE. thousand inhabitants, such judge shall receive not less than fifteen, hundred dollars per annum from the city treasury, and not less than fifteen hundred dollars per annum from the county treasury - 7 nothing in this section shall prohibit said judge from receiving the fees for taking acknowledgment of deeds, depositions, and affi- davits, allowed to justices of the peace for like purposes. [S. & S. r p. 798, sec. 18.] Sec. 171. [As amended, March 15, 1875,72 L. 51.] Police court always open, etc. The police court shall always be open for busi- ness, 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. The mode in which business shall be brought before the court shall be fixed by ordinance of the city council or rule of the court. Sec. 172. Jurors in police court, etc. The jurors in said court shall have the qualifications of jurors in the court of common pleas, and shall be summoned and impaneled in accordance with an ordinance of the city council, or in case the council shall fail to pass such ordinance, in accordance with a rule of court, and said court shall have power to compel the attendance of witnesses, jurors, and parties. 1 [S. & C, p. 1520, sec. 81.] Sec. 173. Rules of practice, etc. The judge shall adopt such rules of practice and procedure as will give all parties a proper statement of any charge against them, and a full opportunity of being heard; but shall at the same time dispatch the business with all convenient speed ; and all rules of the court shall be written or printed, and posted in the room in which it holds its sittings. [S. & S., p. 799, sec. 19.] Sec. 174. [As amended, January 27, 1873, and May 3, 1873, 70 L. 14 and 248.] Substitute for police judge. In the absence, ina- bilit}', or disability of the judge, it shall be lawful for the mayor to select a reputable member of the bar, or a justice of the peace, re- siding within the city, to hold said court, and for the time being such person shall have the jurisdiction and powers conferred upon judges of police courts, and shall be styled " acting police judge," in which style he shall sign all process and records during the time he shall serve, and shall perform all other official acts pertaining 1 A trial of a person charged with an offense punishable -with imprisonment and sentence to imprisonment, will be illegal unless means are provided by which any person so charged can be tried by a jury, if he do not waive such a trial. Thomas v. Ashland, 12 Ohio St. 124. TOLICE JUDGE. 55 to said office, and the courts of this state shall take judicial notice of every such selection hy such mayor. 1 [S. & S., p. 800, sec. 20.] Sec. 175. Before the person so appointed shall enter upon the duties of acting judge, he shall take an oath to support the con- stitution of the United States, the constitution and laws of the State of Ohio, the charter and ordinances of the city, and an oath of office. [S. & S., p. 800, sec. 20.] Sec. 176. Record of proceedings. In cases where the police court is required to recognize the defendant to appear before any other court, the proceedings and recognizance shall be recorded as is required of justices of the peace in like cases. [S. & C, p. 1537, sec, 141.] Sec. 177. Fees. The fees in said police court shall be the same in state cases as are or may be allowed by law to justices of the peace, or in the probate court in like cases; and in cases for the violation of ordinances, such fees not exceeding fees for services of a like nature in state prosecutions, as the council shall by ordi- nance prescribe. [S. & C, p. 1537, sec. 139.] Sec. 178. Fees of witnesses. 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, which shall be paid in the same manner as in like cases in the court of common pleas. [S. & C, p. 1537, sec. 140.] Sec 179. 2 [As amended, April 18, 1871, 67 L. 72.] Writ of error to common pleas. Any final conviction or sentence of the police court, may be examined into by the court of common pleas on writ of error, which may bo allowed by such court or judge 1 The acts of an officer de facto, when questioned collaterally, are as binding as those of an officer de jure. Ex parte Strang, 21 Ohio St. 610. To constitute an officer de facto of a legally existing office, it is not necessary that he should derive his appointment from one competent to invest him with a good title to the office. It is sufficient if he derives his appointment from one having colorable authority to appoint; and an act of the general assembly, though not warranted by the constitution, will give such authority. Ibid. By section 174 of the municipal code, the mayor, in the absence or disability of the police judge, is authorized to select a member of the bar to hold the police court, who, it is declared, shall have, for the time being, the jurisdiction and powers conferred upon judges of police courts, and shall be styled " acting police judge." Held, that assuming (but without deciding the question) the power of appointment thus conferred upon the mayor to be unauthorized by the con- stitution, yet the person acting under such appointment, would be a judge de facto. Ex parte Strang, 21 Ohio St. 610. 2 The amendment consists simply in the addition of the words in italics. 56 CLERK OF POLICE COURT. thereof, for sufficient cause, and proceedings maybe stayed as may be deemed reasonable, and the revising courts shall, in such proceed- ings, take judicial notice of all ordinances, by-laws, or resolutions of the city or village, the judgment of whose mayor or police judge said court may be examining. [S. & C, p. 1521, sec. 84.] Sec. ISO. Return on such writ. The police court shall return on such writ of error all matters of record or on file touching the pro- ceedings, or a transcript thereof, and any facts which may have been noted by the judge or certified in the nature of a bill of ex- ceptions at the time of trial. Sec. 181. What common pleas court n\.ay do. On such return the court of common pleas may make such order as right and jus- tice may require, and may either discharge the party or set aside the conviction and order another trial, or dismiss the writ of error and order a procedendo ; but no conviction or sentence of any police judge shall be set aside or disregarded for the want of any techni- cal averment that any matter or thing is within his jurisdiction. II. — Clerk of Police Court. Sec. 182. Duties of clerk of police court. The clerk of the police court shall perform like duties as the clerk of the court of common pleas in like cases. [S. & S., p. 709, sec. 19.] Sec. 183. His oath and bond. lie shall, before entering upon the duties of his office, take an oath of office, and execute bonds, with sufficient suret} T , to the city and county commissioners of the county in which said court is situated, in such sums as the council of said city and the county commissioners of said county may pre- scribe, conditioned for the faithful performance of the duties of his office. [S. & S., p. 799, sec. 19.] Sec. 184. His salary. He shall receive for his services in city cases a fixed salary, to be prescribed by ordinance of the council, and for state cases prosecuted in said court, such further allow- ance, not exceeding eight hundred dollars per annum, as the county commissioners of such county may deem proper. [S. & S., p. 799, sec. 19.] Sec 185. 1 [As amended, April 18, 1870, G7 L. 72.] Powers of clerk of police court. He shall have power to administer oaths, and to appoint two or more deputies, to be approved by the council, who shall receive s,uch reasonable compensation, not exceeding fifteen hundred dollars per annum, as the council shall prescribe. Such 1 The amendment consisted simply in the addition of the words in italics. CLERK OF POLICE COURT. 57 ■clerk is also authorized, in the absence of the judge or mayor, to admit to bail any person or persons who may be under an arrest for any mis- demeanor or minor offense, or' for the violation of any ordinance, for his, her, or their appearance before the judge or mayor, as the case may be, for any period not exceeding twenty-four hours. [S. & S., p. 799, sec. 19.] Sec. 186. Substitute for clerk. In case of temporary inability of the clerk, when no deputy shall have been appointed, the judge may appoint some competent person, who, upon giving bond and taking the oath prescribed, shall perform all the duties, and have all the powers imposed upon said clerk; and he shall be paid out of the city treasury, on the order of the council, at the same rate as the clerk is paid for similar services; but such appointment shall be valid only until the inability of the clerk is removed. [S. & S., p. 799, sec. 19.] Sec. 187. Further duties of clerk. The clerk shall file and pre- serve all informations, process, motions, and papers of every de- scription, used in said court, and keep a journal of all the doings of the court, which shall be read each day, and, if necessary, cor- rected and signed by the judge; and in all cases where final judg- ment is given, the journal entry of each case, with the papers filed, shall be deemed the record of that case. [S. & C, p. 1537, sec. 141.] Sec. 188. Shall not be concerned as counsel. He shall not be con- cerned as counsel or agent in the prosecution or defense of any case before the court. [S. & S.. p. 800, sec. 19.] Sec. 189. Shall account for fines, etc. He shall, on the first day of every month, or within three days thereafter, account, under oath, for all fines,. penalties, fees and costs, 'imposed by the court in city cases, to the city auditor, and in state cases, to the county auditor, and shall pay into the city and county treasuries, respect- ively, the amount then received by him. [S. & C, p. 1537, sec. 139.] Sec 190. Disposition of surplus fees. If there be any surplus of such fees, collected for the city, after payment of the expenses of the police court required to be paid by such city, such surplus shall be appropriated by the council for the benefit of the common schools of the city. [S. & C, p. 1537, sec. 139.] 58 PROSECUTING ATTORNEY OF POLICE COURT, ETC. III. — Prosecuting Attorney op Police Court. Sec. 191. Duties of prosecuting attorney. It shall be the duty of the prosecuting attorney of the police court, to prosecute all city and state cases brought before said court, and he shall perform like duties, as far as the same are applicable to such police courts as are required by prosecuting attorneys of this state. [S. & C, p. 1537, sec. 138.] Sec. 192. His salary, etc. He shall receive for his services in city cases, such salary, to be paid out of the city treasury, as the council shall prescribe, and the county commissioners of any county in which there is or may be a police court established, shall allow him such further compensation, not to exceed eight hundred dollars per annum, as may be deemed right and proper, which shall be paid out of the county treasury. [S. & C, p. 1537, sec. 138] Sec. 193. Substitute for prosecuting attorney. In case of the temporary inability of the prosecuting attorney of the police court, the judge shall appoint some competent member of the bar to per- form the duties of the office until such disability is removed, and no longer, and he shall be paid out of the city and county treasuries, a compensation proportionate to the time he may serve, and the amount so paid may, at the discretion of the judge, be deducted from the salary of the prosecuting attorney. CHAPTEE XIY. THE MAYOR'S COURT. Section Section 194. Juries in mayor's court. 197. Costa and fees. 195. Talesmen. 193. Powers of mayors same as justices. 19G. Duties and compensation of jurors. Sec. 194. Juries in mayor's court. The council of any city or incorporated village shall have power to provide, by ordinance, for the summoning and impaneling of juries by the mayor. Such jurors shall have the qualifications of jurors in the court of com- mon pleas, and may be impaneled to try such cases arising from violations of ordinances as may be prescribed by the council. [S. & C, p. 1516, sec. 68 ; S. & S., p. 823, sec. 97, and p. 825, sec. 101.] Sec. 195. Talesmen. When any juror so summoned shall, upon THE MAYOR'S COURT. 5<> challenge or inquiry, be found incompetent, he may be dismissed, and a talesman called by the marshal or officer attending the mayor's court at the time, and the panel filled in the same manner as panels are filled in the court of common pleas. [S. & C, p. 151G, sec. 68 ; S. & S., p. 823, sec. 97, and p. 825, sec. 101.] Sec. 196. Duties and compensation of jurors. Jurors summoned to serve in the mayor's court, shall perform like duties and be sub- ject to like rules and penalties as jurors before justices of the peace; and witnesses subpenaed to give testimony in said court, and jurors, shall receive the same compensation as witnesses before justices of the peace. In cases for the violation of ordinances, their fees shall be paid, on the certificate of the mayor, out of the corporation treasury, and in state cases, on like certificate, out of the county treasury. [S. & C, p. 1516, eec. 68, and p. 1520, sec. 81 ; S. & S., p. 823, sees. 96, 97.] Sec. 197. Costs and fees. The costs of the maj T or and marshal, in all cases for the violation of ordinances, shall be fixed by ordi- nance, but in no case greater than the fees for similar services before justices of the peace ; and their fees, including the fees of jurors and witnesses, shall, in case of conviction, be taxed against the party or parties convicted, and in case of acquittal, except the fees of mayor and marshal, against the corporation. [S. & C, p. 1516, sec. 68, and p. 1520, sec. 81 ; S. & S., p. 823, sees. 96, 97.] Sec. 198. Powers of mayors same as justices. The mayor 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 upon justices of the peace. [S. & C, p. 1516, sec. 68, and p. 1520, sec. 81 ; S. & S., p. 823, sees. 96, 97.] 60 GENERAL POWERS OF MUNICIPAL CORPORATIONS. CHAPTER XV. GENERAL POWERS OP MUNICIPAL CORPORATIONS. Section 199. General sanitary and other powers of municipal corporations. Sec. 199. [As amended, April 18, 1870, 67 L. 72, and March 29, 1875, 72 L. 107.] General powers of cities and villages. All cities and incorporated villages shall have the general powers 1 herein- after mentioned and may provide by ordinance for the exercise of the same. 1. Mots, gambling, etc. To prevent riots, gambling, noise and disturbance, indecent or disorderly conduct, or assemblages, pre- serve peace and good order, and to protect the property of the municipal corporation and its inhabitants. [S. & C, p. 1-499, sec. 20, and p. 1507, sec. 34.] 2. Nuisances. To prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated. 2 [S. & C, p. 1499, sec. 20, and p. 1507, sec. 34.] 1 "Where power is given to the council by charter to prevent huckstering, they can not by an ordinance define that term so as to include matters not prop- erly included in it. Mays v. Cincinnati, 1 Ohio St. 2G8. - An ordinance of a city declaring a certain thing a nuisance does not con- trol the liability of the party doing it, in a civil action. He would only incur a liability to the penalty. Adm'r of Chambers v. Ohio Life Ins. and Trust Co., 1 Disney, 327. A city ordinance requiring the property-owner to remove snow and ice from his pavement, does not create such a positive duty on the property-holder as to render him answerable for the consequences to such as may suffer therefrom. It imposes a duty to the public alone, which can only be enforced by the penalty prescribed. Vandyke v. Cincinnati et al., 1 Disney, 532. The counties, townships, and cities are public agencies in the system of state government, and in the class of laws providing a bounty for veteran volunteers, they are employed by the legislature as mere instruments to raise a tax for a public object, and to effect its equitable distribution among those for whom it was intended. The State ex rel. v. Richland Tp., 20 Ohio St. 362. Under section 62 of the municipal corporation act of 18o2, council have power to make all needful regulations to promote the public health and pre- vent the prevalence of disease ; the council have power to prohibit any persons from carrying through the streets any dead animal or offal, unless they have GENERAL POWERS OF MUNICIPAL CORPORATIONS. 61 3. Billiard tables. To suppress billiard tables, nine or ten pin alleys, or tables and ball alleys ; and to authorize the destruction of all instruments or device used for the purpose of gaining. [S. & C, p. 1499, sec. 20, and p. 1507, sec. 34.] 4. Brothels, etc. To suppress and restrain disorderly houses and houses of ilbfame, and provide for the punishment of all lewd and lascivious behavior in the streets and other public places. [S. & C, p. 1499, sec. 20, and p. 1507, sec. 34.] 5. Porter houses, etc. 1 To regulate ale, beer and porter houses or shops. [S. & C, p. 1500, sec. 25.] obtained from the president of the board of health a permit to do so, specifying the conditions of removal. Morgan v. Cincinnati, Superior Court of Cincin- nati, Special Term, per Stokkk, J. In pursuance of this object, the council have a right to make a contract with a single individual to remove all animal offal and dead animals without the city limits; and the fact that this privilege is valuable, and that the contractor pays the city for it instead of charging it for the labor, does not diminish the right. Ibid. When the contract contains an agreement not to grant permits to any other person to remove such matter, this is legal, except perhaps that the owner of such matter may claim a permit to remove it himself beyond the city limits, upon complying with the required conditions. Ibid. It is not necessary that the matter should have become actually offensive be- fore the city can exercise power over it. In all such cases preventive measures are necessary. It is enough that it will become offensive if not disposed of. Ibid. When the owner applied for a permit, offering to comply with the condi- tions, but was refused on the ground of the contract, and removed the animals without a permit, and was arrested and convicted of a violation of the ordi- nance before the police court for so doing, on certiorari to the common pleas court it was held that the ordinance was valid, and that the plaintiff was prop- erly fined for disobedience, the court not finding it necessary to say whether the mayor was justified in refusing, or what the plaintifl''s remedy for the refusal was, if the refusal was unjustifiable. Morgan v. Cincinnati, Hamilton Common Pleas, per Mukdock, J. J The incorporated village of McConnellsville, in September, 1869, passed an ordinance declaring it to be unlawful for any person to keep within said village, a house, shop, room, booth, arbor, cellar, or place where ale, porter, or beer is habitually sold, or furnished to be drunk, in, upon, or about the house, shop, room, booth, arbor, cellar, or place where so sold or furnished. Held, that the municipal corporations of this state were, at the date of this ordinance and prior thereto, expressly empowered to pass such a prohibitory ordinance; and it is no ground of objection to the validity of such municipal ordinances, when clearly authorized, that state legislation has not extended a similar prohibition over all parts of the state. It is for the law-making power of the state to de- termine, within the limitations of the constitution, to what extent city or village •62 GENERAL POWERS OF MUNICIPAL CORPORATIONS. 6. Taverns. To regulate taverns or other houses for public en- tertainment. [S. & C, p. 1500, sec. 25.] 7. Theaters, lectures, etc. To regulate, restrain and prohibit all theatrical exhibition and public shows, and all exhibitions of whatever name or nature, for which money or other reward is in any manner demanded or received; but lectures on history, liter- aiy or scientific subjects shall not come within the provisions of this section. 1 [S. &C, p. 1500, sec. 25.] 8. Animals at auction. To regulate or prohibit the sale of live domestic animals at public auction, in the streets, alleys, highways, or any public ground within the corporation. [S. & C, p. 1500, sec. 25.] 9. Auctioneering. To regulate, license or prohibit the auction- eering of goods, wares and merchandise, imported into the corpo- ration for the purpose of being sold at auction. [S. & C, p. 1500, sec. 25] 10. Carriages. To regulate the use of all carts, drays, wagons, hackney-coaches, omnibuses, and every description of carriages, which may be kept for hire, and all livery stables. [S. & C, p. 1500, sec. 25.] 11. Running at large of cattle, etc. To regulate and restrain the running at large, within the corporation, of cattle, horses, swine, sheep, goats, geese and other animals, and to impound and hold the same ; and, on notice to the owners, to authorize the sale of the same, or any portion thereof, for the penalty imposed by any ordi- nance and the costs and expenses of the proceeding. 2 [S. & C, p. 1500, sec. 2-4.] councils shall be invested with the power of local legislation. Burckholter v. McConnellsville, 20 Ohio St. 808. x An ordinance prohibiting the sale of reserved seats after the opening of any- place of amusement in the evening is not invalid. The municipal code expressly provides that the city council may regulate or prohibit theatrical exhibitions, and in regulating them, it may prescrihe the manner in which tickets shall be sold. It is no objection to say that the ordinance was such an unreasonable regulation as would prevent the manager from carrying on the theater; for that is only doing indirectly what the council is expressly authorized to do di- rectly — prohibit the carrying on of the theater. Macauley v. Cincinnati, per MuKDOCK, J., Hamilton Common Pleas, MS., 1874. 2 Under the power to pass such by-laws or ordinances " as they shall deem necessary for the well regulation, interests, health, cleanliness, convenience, and advantage" of the town, the council can not pass a by-law to restrain the running at large of horses, cattle, etc. Nor is such by-law authorized by the GENERAL POWERS OP MUNICIPAL CORPORATIONS. 63 12. Bogs. To prevent the running at large of dogs, and provide against the injuries and annoyances therefrom, and to authorize the destruction of the same when running at large, contrary to the provisions of any ordinance to that effect. [S. & C, p. 1500, sec. 24.] 13. Fast driving, etc. To prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles, through or in the public highways. [S. & C, p. 1499, sec. 20.] 14. Gunpowder, etc. To regulate the transportation and keeping of gunpowder and other combustibles and explosives, and provide or license magazines for the same. [S. & C, p. 1499, sec. 20.] 15. Transportation. To regulate the transportation of articles through the streets, and prevent injuries to the streets from over- loaded vehicles. [S. & C, p. 1499, sec. 20.] 16. Weighing, etc. To regulate the weighing and measuring of hay, wood, coal, and all other articles exposed for sale. 1 [S. & C, p. 1499, sec. 20.] 17. Fire. To guard against injuries by fire. [S. & C, p. 1499, sec. 21.] 18. Gas-lights, etc. To provide for the laying down of gas-pipes ; to lay off, establish, open, widen, straighten, extend, improve, keep in order and repair, and to light streets, alleys, public grounds and buildings, wharves, landing-places, bridges, and market-spaces within the corporation, including any portion of any turnpike, or plank-road therein, surrendered to, or condemned by the corpora- tion. 2 [S. & C, p. 1501, sec. 26 ; S. &. S., p. 841, sees. 141, 142, and p. 842, sec. 148.] power to cause all nuisances to be abated. It can only be exercised wbere specially granted by the charter. Collins v. Hatch, 18 Ohio, 523. Where the plaintiff rendered services as pound-master for the city without objection on the part of the mayor, who alone was authorized to employ him, and his services had been useful and were necessary, and such as the city had paid for before, it was held that a contract would be implied to pay a reason- able compensation for the same. Cincinnati v. Green, 2 Superior Court Reporter, 278. 1 The council may pass an ordinance requiring all weights and incisures to be sealed by the city sealer, and punish the use of unsealed weights or meas- ures. Huddleston v. Kuffin, G Ohio St. 604. 2 The execution of the grant, pursuant to the act of March 20, 1861, "to author- ize the city of Toledo to enter and occupy a part of the Miami and Erie Canal as a public highway, and for sewerage and water purposes," was an abandon- ment by the state of that part of her public canals known as the Manhattan branch. Hubbard v. Toledo 21 Ohio St. 379. 64 GENERAL POWERS OF MUNICIPAL CORPORATIONS. 19. Canals, etc. To construct, open, enlarge, excavate, improve, deepen, straighten, or extend, any canal, ship canal, or water-course, located in whole or in part, within the corporation. 1 [S. & C, p. 1532, sec. 120 ; S. & S., p. 844, sec. 156, and p. 845, sec. 160.] 20. Sprinkling streets, etc. To regulate the cleaning and sprink- ling of streets, alleys, and public grounds. [S. & S., p. 903, sec. 352.] 21. Servers, etc. To open, construct, keep in order and repair, sewers, drains, and ditches. [S. & C, p. 1501, sec. 26 ; S. & S., p. 863, sec. 211.] 22. Privies, etc. To establish, repair and regulate water-closets and privies. The obstruction of a navigable stream can not be maintained to promote private interests. Hence, when the state abandoned, the Manhattan Branch Canal, the aqueduct, a part thereof spanning and "obstructing Swan creek, which is a navigable stream, became a common nuisance, to abate which any riparian proprietor injured thereby had the legal right to invoke judicial pro- ceedings. Ibid. The commissioners of Lake county being empowered only in general terms to erect a bridge across Grand river, are not authorized to construct it in such a manner that it will prevent the navigation of the river, where it can be rea- sonably constructed so as not to interfere with navigation. Hickok v. Hine, 23 Ohio St. 523. The canals of this state were constructed for the purposes of navigation, and not to afford water-power to private persons. Such power may be incidentally furnished when it does not interefere with the primary object of the canals, but the state may withdraw it at anytime, as it may abandon the canals, or any part thereof, whenever it is deemed best for the public interest to do so. Ercken- brecher v. Cincinnati, 2 Superior Court Reporter, 412. "Where the state, through the board of public works and her attorney, consents to the entry of a decree abondoning a navigable basin connected with, but not forming a part of the canal, and which had been constructed for the benefit of private parties in the vicinity, by the board of public works, with a view to in- crease the canal revenue arising from water-rents, and the private persons were not parties to the suit, nor did they consent to such abandonment : Held, that the basin was to be treated as abandoned, and no injunction would be granted to restrain the city from making improvements which would render the navigation of the same impossible. Ibid. 1 An alleged injury to the right of navigating the basin of a canal, which had previously been rendered valueless by the acts of others than the defendants, will not furnish ground for an injunction. Erckenbrecher v. Este, 1 Superior Court Reporter, 368. Where an alleged right of navigating a canal basin has been lost by non- user or lapse of time, an action by injunction, to restrain apprehended injury thereto, can not be maintained. Ibid. GENERAL POWERS OF MUNICIPAL CORPORATIONS. 65 23. Hospitals, etc. To erect, establish, regulate and repair pest- houses and hospitals. 24. Board of health. To establish a board of health, and to in- vest it with such powers, and impose upon it such duties, as maybe necessary to secure the inhabitants from the evils of contagious, malignant and infectious diseases. [S. & C, p. 1513, sec. 02.] 25. Jails, etc. To build jails, or other places of confinement, and to regulate the same. [S. & C, p. 1520, sec. 81.] 26. Markets. To erect marketdiouses, and to regulate and es- tablish markets. [S. & C, p. 1-490, sec. 20, and p. 1548, sec. 148.] 27. Erection of buildings. To regulate the erection of buildings and other structures within the corporate limits. [S. & C, p. 1499, sec. 21.] 28. Cemeteries. To provide public cemeteries, and for the im- provement and protection thereof, and to regulate the burial of the dead. [S. & C, p. 1499, sec. 23.] 29. Police. To organize and maintain a police department. [S. & C, p. 1513, sec."G2.] 30. Fire department. To organize and maintain a fire depart- ment, erect necessary buildings therefor, and to purchase and hold all necessary hose, engines, carts, ladders, carriages, tools and implements therefor. 1 [S. & C, p. 1513, sec. 62; S. & S., pp. 824, 825, sec. 100.] 31. Supply of water. To provide for a supply of water, by the construction of wells, pumps, cisterns, aqueducts, water-pipes, reservoirs and water-works, and for the protection thereof; to prevent unnecessary waste of water, and the pollution thereof. [S. & C, p. 1499, sec. 22; S. & S., p. 858, sec. 194, and p. 862, sec. 209.] 32. Paries, etc. To hold and improve public grounds and parks, and to provide for the protection and preservation of the same. [S. & S., p. 888, sees. 303-305.] 33. Appropriation of private property. To appropriate private property for the use of the corporation. [S. & C, p. 1501, sec. 26.] 1 The powers given in both this and the preceding section are in their nature legislative and governmental, and the city, in respect to these matters, exer- cises a delegated quasi sovereignty, which excludes responsibility to individuals for the neglect or nonfeasance of an officer or agent charged with the perform- ance of duties. "Western College v. Cleveland, 12 Ohio St. 875; Wheeler v. Cincinnati, l'J Ohio St. 19. 5 ,66 VAGRANTS AND CRIMINALS. 34. Real estate. To acquire, by purchase, or otherwise, and hold real estate, or any interest therein, and other property, for the uses of the corporation, and to sell or lease the same. [S. & C, p. 1498, sec. 18 ; p. 1529, sec. 112, and p. 1530, sec. 118 ; S. & S., p. 875, sec. 254, and p. 877, sec. 257.] 35. Schools. To erect and maintain buildings for public schools. [S. & C, p. 1530, sec. 118.] 36. Public halls. To erect and maintain public halls. [S. & S., pp. 824, 825, sec. 100.] 37. Libraries and reading-room. To establish and maintain free public libraries and reading-rooms ; to purchase books, papers, maps and manuscripts therefor, and to receive donations and be- quests of money or property for the same, in trust or otherwise. The council may appoint such trustees or officers, and confer upon them such authority, as may be necessary to render any literary or reading rooms so established of public utility. They may also pass necessary by-laws and regulations for the protection and govern- ment of the same. [S. & S., p. 722, sec. 50.] 38. Ferries. To license and regulate ferries within the corpo- rate limits. S. & C, p. 1515, sec. 65.] CHAPTER XVI. VAGRANTS, CRIMINALS, AND SUSPICIOUS CHARACTERS. Section Section 200. Public peace and morals. '202. Imprisonment therefor. 201. Punishment for breaches of the peace, 203. Regulation of labor. etc. 204. HoBpitals, etc. Sec. 200. Public peace and morals. The council of any city or incorporated village shall have power to provide for the punish- ment of persons disturbing the good order and quiet of the village, by clamor and noise in the night season, by intoxication, drunken- ness, fighting, using obscene or profane language in the streets and other public places, to the annoyance of its citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd and lascivious behavior; and they shall have power, in like manner, to provide for the punishment of vagrants, common street-beggars, common prostitutes, habitual disturbers of the peace, VAGRANTS AND CRIMINALS. 67 known pickpockets, gamblers, burglars and thieves, watch -stuffers, ball-game players, persons who practice any trick, game or device with intent to swindle, persons who abuse their families, and sus- picious persons who can not give reasonable account of themselves. [S. & C, p. 1554, sec. 201 ; S. & S., p. 806, sec. 30 ; p. 824, sec. 98, and p. 826, sec. 102.] Sec. 201. Punishment for breaches of the peace, etc. Such pun- ishment may be either by imposing and collecting fines, or by imprisonment in the proper jail at hard labor, or both, at the dis- cretion 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, for the first offense, not 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. [S. & S., p. 806, sec. 30.] Sec 202. Imprisonment therefor. The council shall have power to provide that all such persons who shall refuse or neglect 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, they shall have earned an amount equal to such fine and costs. [S. & C, p. 1555, sec. 201 ; S. & S., p. 806, sec. 30.] Sec 203. 1 [As amended, April 18, 1870, 67 L. 72.] Regulation of labor. The council shall have power to make suitable regula- tions to conduct such labor to the best advantage, and in a manner consistent with the age, sex, and health of the prisoners ; and such labor may be done at the corporation prison, work-house, or else- where, and under the charge of such officers or other persons as the council may select. [S. & C, p. 1555, sec. 201 ; S. & S., p. 806, sec. 30.] Sec 204. Hospitals, etc. The council 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 person as the council may direct. [S. & C, p. 1555, sec. 201 ; S. & S., p. 806, sec. 30.] J The original section differed only in containing, after the words "prison, work-house, or elsewhere," the words "if within a suitahle inclosure." 68 THE POLICE. CHAPTER XVII. POLICE. Section , Section 205. Appointment of police, etc. 211. Suspension of policemen for cause. 206. Repealed. 212. Special policemen. 207. Policemen's bonds. 213. Compensation of policemen. 208. Officers of police. 214. Exemption of certain cities from pro- 209. Organization of police. visions of this act concerning police. 210. Duties and powers of policemen. Sec. 205. Appointment of police, etc. The council of cities and incorporated villages shall have power to provide by ordinance for the appointment by the mayor, by and with the consent of the council, of such number of police and night-watchmen 1 as they may think necessary for the good government of the corporation, who shall hold their office for one year unless sooner removed. [S. & C, p. 1517, sec. 71 ; S. & S., p. 793, sec. 5.] Sec. 206. [Repealed, January 31, 1873, 70 L. 19. See original section below.*] [S. & C, p. 1517, sec. 71.] Sec. 207. Policemen's bonds. The night-watchmen and police shall, before entering upon their duties, give bond with good and sufficient surety to the satisfaction of the mayor, for the faithful performance of their duties. [S. & C, p. 1517, sec. 71.] Sec 208. Officers of police, etc. The council shall also have power to provide by ordinance for the appointment of subordinate officers of the police and night-watchmen, and to prescribe the number of such officers. They may also provide, in addition to the regular watch, for the appointment of a reserved watch, to consist of a suitable number of persons in each ward, when the cor- poration is divided into wards, to be called into duty in whole or in part, in such manner and on such occasions as the council may prescribe, and by the mayor, or the officers of the police under his direction, and in special cases, or in cases of emergency. [S. & C, p. 1518, sec. 74.] Sec. 209. Organization of police. The police and night-watch- *A municipal corporation is not liable for the negligence of the police. "Western Medical College v. Cleveland, 12 Ohio St. 375. *Sec 200. In corporations divided into wards, an equal number of police and night-watch- men shall be provided for the several wards. THE POLICE. 69 tnen shall be organized by the council under the general superin- tendence of the mayor, marshal, chief of police, or other officers of the police, and the council shall prescribe their duties, and define their powers, in such manner as will most effectually pre- serve the peace of the corporation, secure the inhabitants thereof from personal violence, and their property from fire and unlawful depredations. [S. & C, p. 1513, sec. 62.] Sec. 210. Duties and powers of policemen. It shall be the duty of the police and night-watchmen and the officers thereof, under the direction of the mayor, and in conformity with the ordinances of the corporation, to suppress all riots, disturbances, and breaches of the peace; to pursue and arrest any person fleeing from justice, in any part of the state j 1 to apprehend any and all persons in the act of committing any offense against the laws of the state, or the ordinances of the corporation, and forthwith bring such person or persons before the police court, or other competent authority, for examination ; and at all times diligently and faithfully to enforce all such laws, ordinances, and regulations, for the preservation of good order and the public welfare, as the council \\\&y ordain, and for such purpose they shall have all the power of constables ; they may, upon view, arrest any person or persons who may be guilty of a breach of the ordinances of the corporation, or of any crime against the laws of the state; and may, upon reasonable informa- tion, supported by affidavit, procure process for the arrest of any person or persons who may be charged with a breach of any of the ordinances of the corporation. [S. & C, p. 1518, sec. 74.] Sec. 211. Suspension of policemen for cause. The mayor shall have power to suspend any policeman or night-watchman for ne- glect of dutj^, misconduct, or other sufficient cause, and may ap- point other persons to fill the temporary vacancy caused thereby; and such action shall thereafter be taken as is provided in section one hundred and twenty-one. [S. & C, p. 1517, sec. 71 ; S. & S., p. 793, sec. 5.] Sec. 212. Special policemen. The mayor, in cities of the first class, may appoint such persons, not exceeding eight in number, 1 As a general rule, the detection, arrest, and conviction of a felon or the dis- covery and seizure or return of stolen property, is a good consideration to sus- tain a promise made on such condition. But a public officer stands in a differ- ent situation. A reward ottered for the apprehension of a thief and money, can not be claimed by a constable who arrests the thief by virtue of a warrant delivered to him for that purpose. Gilniore v. Lewis, 12 Ohio, 281. See also Ilea v. Smith, 2 Handy, !'.)'■), where numerous cases are cited. 70 PRISONS AND STATION-HOUSES. ■with the pay and powers of police in such city, as may he neces- sary to attend the sittings and execute the orders of the police court, and perform duty at the city prison. [S. & S., p. 807, sec. 31.] Sec. 213. Compensation of policemen. The council shall fix the compensation or fees the policemen and night-watchmen and the officers thereof shall receive for their services, and they shall not demand or receive any other fee, perquisite, or reward. [S. & C, p. 1557, sec. 204; S. & S., p. 793, sec. 5.] Sec. 214. Exemption of certain cities from provisions of this act concerning police. The provisions of this act, in respect to police and night-watchmen, shall not apply to cities governed by the fol- lowing acts : An act entitled "an act authorizing the appointment of metro- politan police commissioners in cities of the first class, with a pop- ulation of less than one hundred thousand inhabitants at the last federal census," passed April 5, 18GG. Also, an act entitled "an act to amend 'an act authorizing the appointment of metropolitan police commissioners in cities of the first class, with a population less than one hundred thousand in- habitants at the last federal census,' passed April 5, 1866," passed April 2, 1868. Also, an act entitled " an act to provide for the organization, reg- ulation, and more efficient government of the police in cities of the first class, which have been advanced to that grade between de- cennial periods," passed May 6, 1868. [S. & S., p. 816, sees. 66-85; p. 811, sees. 50-65; p. 807, sees. 32-35 ; p. 808, sees. 36-49.] CHAPTER XVIII CORPORATION PRISON. Section Section 215. Prisons, station-houses, etc. 218. Custody of prisoners where there is no- 21fi. Sustenance, etc., for prisoners work-house. 217. Provision therefor by couucil. Sec. 215. Prisons, station-houses, etc. The council of any city or incorporated village shall have power to erect, establish, and maintain a prison and one or more watch or station houses, as shall PRISONS AND STATION-HOUSES. 71 be necessary ; and such prison, watch or station houses shall be under the control of the marshal or chief of police, under such rules and regulations as the council may prescribe. [S. & C, p. 1520, sec. 81, and 1557, sec. 205; S. & S., p. 823, sec. 96; p. 824, sec. 99, and p. 825, sec. 100.] Sec. 216. Sustenance, etc., for prisoners. It shall be the duty of the marshal or chief of police to provide all persons confined in such prison, watch or station houses, with necessary food during such confinement, and to see that such places of confinement are kept clean and made comfortable for the inmates thereof. [S. & C, p. 1520, sec. 81, and p. 1557, sec. 205; S. & S., p. 823, sec. 96; p. 82-4, sec. 99, and p. 825, sec. 100.] Sec. 217. Provision therefor by council. The council shall pro- vide, by ordinance, for sustaining all persons sentenced to or con- fined in such prison, at the expense of the corporation ; and on the presentation of bills for food, sustenance, and necessary supplies, to the proper officer, certified to by such person or persons as the council may designate, not exceeding forty cents a day, such officer shall audit the same, under such rules and regulations as the coun- cil may prescribe, and draw his order on the treasurer of the cor- poration in favor of the officer presenting such bill. [S. & C, p. 1520, sec. 81, and p. 1557, sec. 205; S. & S., p. 823, sec. 96; p. 824, sec. 99. and p. 825, sec. 100.] Sec. 218. Custody of iirisoners 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 sen- tenced to hard labor during the term of their imprisonment,- at such place or places within the corporation as the council may deter- mine. [S. & S., p. 823, sec. 96.] 72 HOUSE OF REFUGE. CHAPTER XIX. HOUSES OF REFUGE AND CORRECTION. 228. 229. 230. 231. 232. Section 219. Houses of refuge and correction. 220. Directors of houses of refuge and correc- tion. 221. Their appointment, terms of office, etc. 222. Election of president, clerk, etc. 223. Record of proceedings, etc. 224. Powers in erection of buildings, etc. 225. Male and female apartments to he sepa- rate. 220. Separate buildings for males and females. 227. Appointment of superintendent and sub- ordinate officers. Rules and regulations. Rules, etc., to be approved by council. Dow books shall be kept. Quarterly statement to be made to coun- cil. Accounts to bo balanced and reported annually. 233. Superintendent to have control, etc. 234. His responsibility. 235. Deputy superintendent. 236. Notice of completion of building to be published. 237. Removal of officers for cause. 238. When infants may be received, etc. 239. Custody and confinement of infants. 240. When they may be put to labor. Disposition of infants until of age. Commitment to refuge on recommenda- tion of grand jury. Commitment to refuge by court in certain cases. Infants entitled to private examination and trial. Infants to be placed in refuge instead of jail. 241. 242. 243. 244. 245. Section 240. Disposition of infants when refuge is full. 247. Statement of age, residence, cause, etc., must be furnished. 248. What record of commitment shall con- tain. 249. Term of commitment, etc. 250. Employment of infants in refuge. 251. Board may bind them as apprentices. 252. Committee of indentures, etc. 253. When indenture to be canceled. 254. When indentured infant may be re- claimed. 255. Arrest, etc., of fugitives from refuge or apprenticeship. 256. Disposition of stubborn and irreclaim- able infants. 257. Duty of sheriff to notify prosecuting at- torney, etc. 258. Final disposition of such stubborn in- fant. 259. How expenses shall be paid. 2C0. How excess of expenses shall be raised. 261. What return to writ of habeas corpus shall contain. 202. Circumstances of commitment, how far examinable. 2G3. Application of aggrieved party for re- view of commitment. 204. When infant shall be delivered to ap- plicant. 205. Applicant may bring action in court. 2P6. Costs of such act;on. 207. When real estate may be sold. 208. Deed, and proceeds of sale. 209. Action against directors, how brought. 270. This act not to affect refuges heretofore established. Sec. 219. Houses of refuge and correction. The council of any city or incorporated village shall have power to establish, erect and maintain houses of refuge and correction. Sec. 220. Directors of houses of refuge and correction. The man- agement of houses of refuge and correction, established or which may hereafter be established, and the management and care of the inmates thereof, the erection and enlargement of any building as a house of refuge and correction, or any addition or additions HOUSE OF REFUGE. 73 thereto, repairs and furnishing thereof, erection of any workshops and furnishing the same with the necessary machinery and tools, and the cultivation and improvement of any grounds therewith connected, shall be vested in a board of five directors, to be called the '• Board of Directors of the House of Eefuge and Correction." [S. & C, p. 688, sees. 1, 2.] Sec. 221. Their appointment, term of office, etc. The said direct- ors shall be freehold electors of the corporation ; they shall be ap- pointed by the mayor, with the consent of the council ; and shall hold their office for the term of five years, except that at the first appointment one of the said directors shall be chosen to serve for one year, one for two years, one for three 3-ears, one for four years, and one for five years ; and annually thereafter one director shall be appointed ; and a majority of the directors shall constitute a quorum. They shall not receive any compensation for their ser- vices. [S. & C, p. G88, sees. 1, 2 ; S. & S., p. 869, sec. 236.] Sec. 222. 1 [As amended, April 18, 1870, 67 L. 75. Officers of houses of refuge. Said board shall elect, annually at the first regu- lar meeting in May, one of their members as president ; and, at the same meeting, it shall appoint a secretary, and clerk, and such other officers as may be necessaiy, and fix the compensation for their services; such compensation to be subject to the approval of the council. [S. & C, p. 688, sec. 3. Sec. 223. Record of proceedings, etc. The said board shall keep a complete record of all its proceedings ; and it shall be necessaiy to the validit3 T of every contract it may authorize to be made, that the same has been assented to at a regular meeting, by a majority of all the members, and a minute thereof entered on the journal of its proceedings. Sec. 224. Powers in erection of buildings, etc. In the erection of any building as a house of refuge and correction, or of any addition or additions thereto, or any enlargement thereof, and in the repair and furnishing the same, and in the ei-ection of any shops and providing the same with machinery and tools, the said board shall have the same powers, be governed by the same regu- lations and perform the same duties, so far as applicable, as are prescribed for the government of trustees of hospitals in chapter twenty-one ; and the power of the council in relation to the erec- tion and repair of said buildings, and the conduct of the board, 1 This section differs from the one originally passed only in the insertion of the words in italics. 74 HOUSE OP REFUGE. shall be the same, so far as applicable, as prescribed in said chap- ter, in relation to the erection and repair of bnildings for hospital purposes. Sec. 225. Male and female apartments to be separate. In the erection of any such buildings, and in any addition or additions thereto, or any enlargement thereof, the said board shall have power to so construct the same that the male and female inmates shall be provided with separate departments and accommodations; and that the grounds therewith connected shall be so separated, by partition walls or fences, that the males and females may be enabled to occupy separate portions thereof. [S & C, p. 688, sec. 1.] Sec. 226. Separate buildings for males and females. "Whenever, in the opinion of the board, it shall be deemed advisable to provide separate buildings for the accommodation of males and females, such buildings shall be erected at least one-fourth of a mile apart, and the grounds around each shall be inclosed by suitable walls or fences. [S. & C, p. 688, sec. 1.] Sec. 227. Appointment of superintendent and subordinate officers. The said board shall have power to appoint a superintendent, deputy superintendent, and such other subordinate officers, guards and employes as may be necessary, and fix their compensation and prescribe their duties, and to make all such regulations for their management and government as they shall deem expedient. [S. & S., p. 870, sec. 240, and p. 868, sec. 239.] Sec 228. Mules and regulations. The said board shall have power to make, establish and enforce rules and regulations for its- own government, and the government and control of such institu- tion, its officers and inmates, and make contracts for supplies and the labor of its inmates. [S. & S., p. 869, sec. 237.] *Sec 229. [As amended, April 18, 1870, 67 L. 75.] Appropria- tions, etc., to be approved by council. No appropriation of money for any purpose other than the ordinary and necessary expenses and repairs of the institution, and no by-law, rule or regulation said board may establish, shall be of any validity until approved by the council. [S. & S., p. 870, sec. 237.] Sec 230. How books shall be kept. The books of said institution shall be so kept as to clearly exhibit the true state and condition * Sec. 22!*. [As originally passer!.] Rules, etc., to be approved by council. No resolution or act of said board muling any appointment or fixing the compensation of appointee, and no appropriation of money f>r any purpose, other than the ordinary and necessary expenses and repairs of the in- stitution, and no by-law, rule, or regulation it may establish, shall be of any validity until ap- proved by the council. HOUSE OF REFUGE. 75 of the inmates, the number received and discharged, and for what cause committed, the number employed as servants or in cultivating the premises, the number employed in each branch of industry carried on, and the receipts from, and expenditures for and on ac- count of each department of business, or for the improvement of the premises. [S. & S., p. 870, sec. 238.] Sec. 231. Quarterly statement to be made to council. Said board shall cause a quarterly statement to be made out, specifying mi- nutely all receipts and expenditures, from whom and for what purpose received, and to whom and for what purpose paid, with proper vouchers for each item, and shall submit such statement, properly certified, to the council for examination and approval. [S. & S., p. 870, sec. 238.] Sec 232. Accounts to be balanced and reported annually. The accounts of said institution shall be annually closed and balanced on the first Monday of January in each year, and full reports of the preceding year shall then be made and submitted to the council, and shall be published in the official paper of the corporation, or in such other form as said council may direct; and the council may require such other and further reports and exhibits of the condition and management of such institution as to them shall seem necessary and proper. [S. & S., p. 870, sec. 238.] Sec. 233. Superintendent to have control, etc. The superintendent of said institution shall have the entire control and management of its affairs, subject to the laws and ordinances of the corporation, and the rules and regulations adopted by the board for its govern- ment; and it shall be his duty to obey and carry out all written orders and instructions of the board not inconsistent with the laws, rules and regulations relating to the government of said institution. [S. & S., p. 870, sec. 240.] Sec. 234. His responsibility, etc. He shall be responsible for the manner in which said institution is managed and conducted, shall reside at the same, devote his time and attention to the proper business thereof, and shall visit and examine into the condition of every department 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 said institu- tion. [S. & S., p. 870, sec. 240.] Sec 235. Deputy superintendent. In the absence or inability of the superintendent, the deputy superintendent of said institution shall, so far as relates to the discipline thereof, perform the duties of the superintendent. S. & S., p. 870, sec. 240.] 76 HOUSE OF REFUGE. Sec. 236. Notice of completion of building to be 'published. 'When any bouse of refuge and correction has been erected, as is provided . herein, and is so far complete as to insure the safe confinement and employment of the persons intended to be confined therein, the said board shall cause notice of that fact to be published in some 'newspaper of general circulation in the corporation and county. [S. &S„p. 871, sec. 241.] Sec. 237. Removal of officers for cause. The board may, for misconduct or willful neglect of duty, and upon sufficient proof thereof, remove an}- officer or employe of said institution, except the superintendent thereof, who shall be removable for the causes and in the manner provided for the removal of city officers, and any employe of the superintendent may be discharged at his dis- cretion. [S. & S., p. 870, sec. 239.] Sec. 238. When infants may be received into refuge. The board may, at their discretion, receive into such institution infants under the age of sixteen years, committed to their custody in either of the following modes, to wit: 1. Infants committed by any justice of the peace within the county, by the mayor of the corporation, the judge of the police or other municipal court, any judge of the court of common pleas of the county, the probate judge of the county, and in those coun- ties in which there may be a superior court, by any judge of such 'superior court, on the complaint and due proof thereof by the parent, guardian, or next friend of such infant, that, by reason of incorrigible or vicious conduct, such infant has rendered his or her control beyond the power of such parent, guardian, or next friend, and made it manifestly requisite that, from regard to the future welfare of such infant, and for the protection of society, he or she 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 com- plaint 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 depravitj-, or otherwise, of the parent or guardian, or next friend in whose custody such infant maybe, such parent, guardian, or next friend is incapable or unwilling to exercise theproper care and discipline over such incorrigible or vicious infant. 3. Infants who are destitute of a suitable home and of ade- quate means of obtaining an honest living, or who are in danger of being brought up to lead an idle and immoral life, may be com- HOUSE OF REFUOE. 77 mitted to the guardianship of the directors of such institution, by the trustees of any township within the county in which such- institution may be situated, or by the mother, when the father is dead, or has abandoned his family, or does not provide for their support, or who is an habitual drunkard. [S. & C, p. 689, sec. 6.] -Sec. 239. [As amended, April 18, 1870, 67 L. 75.] Custody and confinement of infants or minors. Any infant under the age of six- teen years, who shall be convicted of any offense made punishable by imprisonment under any ordinance of the city or any law of the state, not punishable by imprisonment in the penitentiary, or who shall be ordered to be committed in the manner prescribed by section two hundred and thirty-eight of this act, may be confined in such house of refuge and correction, under such rules and regulations as the directors may prescribe ; and it shall be lawful for the directors of such institution to receive and take charge of any children who may be committed to their custody by the court of common pleas, or any judge, justice of the peace, or other officer, under any law of the state. [S. & C, p. 1519, sec. 77.] Sec. 240. When infants may be put to hard labor. Any infant over the age of sixteen years, convicted of a violation of any ordi- nance, and liable to be punished therefor by imprisonment, or who may be liable to imprisonment for neglect or refusal to pay a fine imposed for the violation of any ordinance, may, in lieu thereof, be committed to the house of refuge and correction, and put to hard labor, in such manner as ma}* be prescribed by ordinance of the council. [S. & C, p. 1519, sec. 77.] Sec. 241. Disposition of infants until of age. Any infant under the age of sixteen years, who shall be liable to confinement in the jail in any county in which a house of refuge and correction may be situated, or in the penitentiary of the state from any such county, may, at the discretion of the court, or magistrate giving sentence, be placed in such institution until of legal age, under the exclusive control and guardianship of the directors of such institu- tion. [S. & C, p. 680, sec. 7 ] Sec. 242. Commitment to refuge on recommendation of grand jury. If any accusation of the commission of any crime shall be made * Sec. 239. rAs originally passed.] Custody and confinement of infants. Any infant mirier the age of sixteen years, who shall be convicted of any offense made punishable by imprisonment, under any ordinance of the city, or alio ahull be liable to be committed to prison under any such ordi- nance, may be confined in such house of refuge and correction, under such rules and regulations as the directors may prescribe ; and it -dull be lawful for the directors of such institution to re- ceive and take charge of the children who may be committed to their custody by the court of common pleas, or any judge, justice of the peace, o'r other officer, under any law of the state. 78 HOUSE OP REFUGE. against any infant under the age of sixteen years, before the grand jury of the county in which such house of refuge' and correction may he situated, and the charge appears to he supported by evi- dence sufficient to put the accused upon a trial, the grand jurors may, in their discrection, 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 order such commitment. 1 [S. & C, p. 690, sec. 8.] Sec. 243. Commitment to refuge by court in certain cases. If any infant under the age of sixteen years shall be arraigned for trial in any court having criminal jurisdiction in any county in which a house of refuge and correction may be situated, on a charge of any violation of any criminal law in this state, or ordinance of the corporation, the judge may, with the consent of the accused, ar- rest, at any stage of the cause, any further proceedings upon the part of the prosecution, and commit the accused to the guardian- ship of the directors of such institution. [S. & C, p. 690, sec. 9.] Sec. 244. Infants entitled to private examination and trial. All infants under the age of sixteen years, who may be accused of any offense punishable by imprisonment, in any county in which a house of refuge and correction may be 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, demand a public trial, in which case all proceedings shall be in the usual form. [S. & C, p. 690, sec. 10.] Sec. 245. Infants to be placed in refuge instead of jail. Any infant under the age of sixteen years, who may be committed, in any county in which a house of refuge and correction may be situ- ated, for trial, or as a witness, shall be placed in such institution, subject to the order of the court making such commitment, and in no case in the county jail. [S. & C, p. 090, sec. 11.] Sec. 246. Disposition of infants ichen refuge is full, etc. If, at any time, any house of refuge and correction shall have as many infants under its charge as can be conveniently accommodated therein, or as many as the funds of such institution are adequate 1 Section 8 of the act of April 16, 1857, to authorize the establishment of houses of refuge (S. & C. 690), from which this is a copy, was held constitu- tional. It does not deprive the party of his liberty without due process of law, nor infringe on the right of trial_ by jury. Prescott v. The State, 19 Ohio St. 184. HOUSE OF REFUGE. 79 to maintain, the board shall not be required to receive other infants, but shall order their chief officer to return that fact to any magis- trate, court or person authorized to commit, who shall have sent an infant to such institution ; and thereupon the case of such in- fant shall be disposed of as if this chapter had not been enacted, and as if no proceedings had taken place under it. [S. & C, p. 690, sec. 12.] Sec. 247. Statement of age, residence, cause, etc., must be furnished. In all cases where an infant is committed to the instruction and discipline of a house of refuge and correction under the guardian- ship of the directors thereof, the person ordering such commit- ment 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 reason for such commitment ; and until such state- ment is furnished, the directors or officei's aforesaid may decline receiving such infant. [S. & C, p. 690, sec. 13.] Sec. 248. What record of commitment shall contain. In all cases where the commitment is ordered b}' any official person whose pro- ceedings 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 demanded by the infant, or his parents, or guardian, than that, in substance, such infant (naming him), who, on a day therein named, was of the age of — years, having been brought before such court or officer, and the court or officer having ascertained by the testimony of the witnesses therein named that such infant was a suitable person to be committed to the discipline and instruction of the house of refuge and correction under the guardianship of the directors thereof, such infant was .so committed, and delivered to the charge of such directors. [S. & C, p. 690, sec. 14.] Sec. 249. Term of commitment, etc. No commitment of an in- fant to a house of refuge and correction shall be for a shorter period than till 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, \>y their general rules, provide ; but any infant, by whomsoever committed, or for whatever cause committed, may at any time be discharged upon the order of the board, duly entered upon their minutes. [S. -& C., p. 691, sec. 15.] Sec. 250. Employment of infants in refuge. The board shall have power to place infants committed to their care, during their minority, at such employment, for account of the institution or 80 HOUSE OF REFUGE. otherwise, and cause them to be instructed in such branches of useful knowledge, as may be suited to their years and capacities [S. & C, p. G91, sec. 15.] Sec. 251. Board may bind them as apprentices, etc. Said board shall have power, at discretion, to bind out the said infants com- mitted to their care, with their consent, as apprentices during their minority, to such persons and at such places, to learn such proper trades and employments, as in their judgment will be most conducive to their reformation and amendment, and as will tend to the future benefit and advantage of such infants. [S. & C, p. 091, sec. 15.] Sec. 252. Committee of indentures. The said board shall, for such purpose, have power to appoint a committee of one or more of their number, with power to execute and deliver, on behalf of the board, indentures of apprenticeship for any infant in such in- stitution whom they may deem a proper person for an apprentice- ship; and such indentures shall have the like force and effect as other indentures of apprenticeship under the laws of Ohio, and 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. [S. & C, p. 691, sec. 15, and p. 1519, sec. 78.] Sec. 253. When indenture to be canceled. In case any infant so apprenticed shall prove untrustworthy and unreformed, the board may, at their discretion, permit such infant to be returned to such house of refuge and correction, to be held in the same manner as before said apprenticeship, and may, thereupon, order the inden- tures for such infant to be canceled. [S. & C, p. 691, see. 16, and p. 1520, sec. 80.] Sec. 254. When indentured infant may be reclaimed. If, in the opinion of the board, any infant apprenticed out by them shall have an unsuitable home, or if the person to whom said infant is indentured shall become unfit or incapable to properly raise or take care of such infant, the directors may, at their discretion, re- turn such infant to the institution from which it was indentured. [S. & C, p. 091, sec. 16. Sec. 255. Arrest, etc., of fugitives from refuge or apprenticeship. Any fugitive from a house of refuge and correction, or a fugitive from apprenticeship under indentures executed as above provided, may be arrested and returned to such institution by a sheriff or constable of any county in this state, or police officer of the corpo- ration, or officer of such institution, on the written order of any two directors of such institution, directed to such officer or officers, HOUSE OF .REFUGE. 81 and may be delivered to the custody of such officer of a house of refuge and correction, as the directors may name. [S. & C, p. 691, sec. 17.] Sec. 256. Disposition of stubborn and irreclaimable infants. When any infant shall be convicted of any 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 may be situate, and shall, under existing laws, be sent to the house of refuge and correction instead of the penitentiary or jail, and shall refuse to submit to the rules of said institution, and prove to be stubborn and irreclaimable in the opinion of a majority of said board, such infant may, by their order, be delivered into the cus- tody of the sheriff of said-county, with a written statement of the cause of commitment, and of the conduct and character of such infant, as exhibited in said institution, which statement shall be prepared and signed by the superintendent of the institution. [S. & C, p. 1519, sec. 79.] Sec. 257. Duty of sheriff to notify prosecuting attorney. It shall be the duty of the sheriff to receive such infant into his custody, and file said 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 shall have been tried, and to notify the prosecuting attorney of the county thereof. [S. & C, p. 1519, sec. 79 ] Sec. 258. Final disposition of such stubborn infant. Thereupon, the jorosecuting attorney shall cause such infant to be brought before the court of common pleas, or before the court in which such infant may have been tried, to receive the sentence which the court shall deem just, according to the law, for the offense of which such in- fant shall have been convicted as aforesaid. [S. & C, p. 1519, sec. 79.] Sec. 259. Sow expenses shall be paid. The expenses of main- taining infants committed to any house of refuge and correction, by a court or magistrate of the county in which such institution may be situated, or by the police or other court of the corporation, for offenses against an}* law of the state, or for trial, or as a wit- ness, shall be paid by the county ; the expenses of infants com- mitted by toAvnship trustees shall be paid by the township, and of those committed by parents and guardians, shall be paid by them. unless in cases where the board shall otherwise determine, all of which expenses shall be ascertained and fixed by the board. [S. & C, p. 691, sec. 18.] Sec. 260. Blow excess of expenses shall be raised. The expense 6 52 HOUSE OF REFUGE. of maintaining and administering the affairs of bouses of refuge and correction, over and above the receipts thereof, shall be aud- ited and paid, from time to time, by the council of the corporation, -and a tax for said expenses shall be levied and collected as a part of the ordinary expenses of the corporation. [S. & S., p. 371, sec. 244.] Sec. 2G1. What return to writ of habeas corpus shall contain. It shall be a sufficient return to any writ of habeas corpus, directed to any person or officer inquiring into the cause of the detention ■of any infant committed to a house of refuge and correction, that the infant named in the writ was, on a day therein named, com- mitted to the guardianship of the directors of the house of refuge and correction in the city or incorporated 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. [S. & C, p. G92, sec. 19.] Sec. 2G2. Circumstances of commitment, how far examinable, Where a commitment has, in fact, been executed by a person authorized by this chapter to execute it, the existence of the cir- cumstances justifying its execution, shall not be otherwise exam- inable than in an action against the directors of such institution, as provided in this chapter. [S. & C, p. G92, sec. 19.] Sec. 263. Application of aggrieved party for review of commitment. If any parent, guardian, master to whom an infant has been ap- prenticed, any person occupying the position of parent, protector or guardian in fact, or any relative by blood or marriage, not fur- ther remote than first cousin to such infant, shall feel aggrieved by the commitment of any infant to the directors of a house of refuge and correction, by any person authorized by this act to commit such infant, he shall make a written application to the board at such time as the directors may, 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 reasons for claiming such custody. [S. & C, p. G92, sec. 20.] Sec. 2G4. When infant shall be delivered to applicant. Within ten days after hearing such application, the directors shall decide ; and if they shall be of opinion that the welfare of such infant will be promoted by granting the application, they shall make an order to that effect, otherwise they shall decline the application. [S. & C, p. 692, sec. 20.] Sec 2G5. Applicant may bring action in court, etc. The applicant HOUSE OF REFUGE. 83 may, if the application be declined, upon first giving security for the payment of all costs, commence an action in the court of com- mon pleas of the county, or, in counties in which there may he a superior court, in the superior court, for the recover}- of the infant, against the directors of the house of refuge and correction ; which action shall be conducted in all respects as actions under the code of civil procedure. [S. & C, p. 692, sec. 20.] Sec. 266. Costs of such action. The costs of such action shall be paid by the applicant, unless the court shall certify, in the journal entry of the judgment, that the refusal of the directors to grant the application of the plaintiff was plainly unreasonable, or the original commitment manifestly improper and unnecessary. [S & C, p. 692, sec. 20.] Sec. 267. When real estate may be sold, etc. The directors of an} r house of refuge and correction shall have power to negotiate for the sale of any real estate owned or held by donation or pur- chase, or either, for the use and benefit of such house of refuge and correction, when such real estate shall not be necessary for the accommodation of the inmates of such institution ; and upon the completion of such negotiations and their approval by the council, the directors shall present to the council the terms and conditions of the sale agreed upon. [S. & C, p. 692, sec. 21.] Sec. 268. Deed and proceeds of sale. The council shall, there- upon, order the execution of a deed or deeds, for such real estate, to the parties named by the directors in conformity to the terms agreed upon ; and the proceeds of such sale or sales shall be placed in the corporation treasury to the credit of the house of refuge and correction fund, and be held and disbursed as other funds are held _and disbursed for such institution. [S. & C, p. 692, sec. 21.] Sec. 269. Action against directors, how brought. Actions may be brought by and against the directors 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 any director, or at the office of such institution, with any officer thereof. [S. & C, p. 692, sec. 22.] Sec 270. This act not to affect refuges heretofore established. Any house of refuge and correction heretofore established and governed under the provisions of an act entitled "an act to authorize the establishment of houses of refuge," passed April 16, 1857, shall con- tinue to be governed, in all respects under said act, as though this act had not been passed. [S. & C, p. 687.] 84 THE "WORK-HOUSE. CHAPTEE XX. ■WORK-HOUSES. Section Section 271. Establishment and government of work- 277. Prompt commitment, and fees. houses. 278. Discharge, and record thereof. 272. Direction and management thereof. 279. Punishment for escape or attempt to 273. Appointment and term of office of direct- escape. ors. 280. Excess of expenses, how raised. 274. Powers and duties of the board. 281. Officers to have police powers. 275. Commitment of violators of law. 282. Infants received, where there is no 270. Confinement and labor. house of refuge. Sec. 271. 1 [As amended, April 18, 1870, 67 L. 75. An amend- ment in identically the same words was passed on April 2, 1870, 67 L. 32.] Establishment and government of work-houses. The council of any city or incorporated village shall have power to establish, erect and maintain a work-house, and such work-house, and any work-house heretofore established, shall be governed by the provisions of this chapter; provided, that any city which has erected or may have in process of erection a " house of correction," as provided by an act of the general assembly of the State of Ohio, passed April 13, 1867, may organise and govern the same under the provisions of this chapter or chapter nineteen, as the city council may determine. [S. & C, p. 1519, sec. 77 ; S. & S., p. 867, sec. 226, and p. 868, sec. 230.] Sec. 272. Direction and management thereof. The direction, management, and control of any work-house, 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 "Work-house Direct- ors ; " and said directors shall be freehold electors of the cor- poration, and serve without compensation. [S. & S., p. 868, sec. 231.] Sec. 273. Appointment and term of office of directors. Said direct- ors shall be appointed by the mayor, with the consent of the council, and shall hold their office for five years, except, at the first appointment, one shall be appointed to serve 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 annually. [S. & S., p. 868, sec. 231.] i This section differs from the section as originally passed only in the addition of the words in italics. TIIE WORK-HOUSE. 85 Sec. 274. Powers and duties of the board. The said board shall have the same powers, perform the same duties, and be governed by the same regulations, so far as applicable, in the maintaining, erecting or enlarging any buildings for work-house purposes, or of any addition or additions thereto, or of the shops and grounds therewith connected, and of the management of the affairs thereof and care of the convicts therein, as are conferred upon and re- quired of the board of directors of houses of refuge and correction, as provided in chapter nineteen ; and the powers and duties of the council in respect to such board shall be the same, so far as applica- ble, as are provided in said chapter. Sec. 275. Commitment of violators of law. As soon as any work- house shall be established and notice thereof published, as required in chapter nineteen, in respect to houses of refuge and correction, it shall thereafter be the duty of any court, magistrate, or mayor, in the county where such work-house is established, authorized by l.v.w to sentence or commit to the' county jail or corporation prison, any person over the age of sixteen years, convicted of a violation of the laws of this state, or of the ordinances of the corporation, to sentence such person to imprisonment in such work-house. [S. & C, p. 1519, sec. 77; S. & S., p. 8G7, sec. 227, and p. 871, ere. 241.] Sec. 276. Confinement and labor. Any person so sentenced shall be received into such work-house, and shall be there kept and con- fined at labor, and shall be subject to the rules, regulations, and discipline thereof until the expiration of such sentence, when such party shall be discharged. [S. & C, p. 1519, sec. 77; S. & S., p. 867, sec. 227, and p. 871, sec. 241.] Sec. 277. Prompt commitment, and fees. It shall be the duty of all officers having the execution of the final sentence of any court, magistrate, or mayor, sentencing convicted persons to such work- house, to cause such convicts to be conveyed to the same, 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. 1 [S. & C, p. 1519, sec. 77 ; S. & S., p. 867, sec. 227, and p. 871, sec. 241.] 1 The county commissioners are not bound to pay for prisoners sentenced to the work-house for a violation of the laws of the state. Cincinnati v. Comm'rs of Hamilton County, Force, J., Ham. Com. Pleas, ]\IS. 86 THE WORK-HOUSE. Sec. 278. Discharge, and record thereof. The said board shall have power to discharge, for good and sufficient cause, any person committed to such work-house ; but a record of all such discharges shall be kept and reported to the council in the annual report of. the board, giving a brief statement of the reasons thereof. [S. & S., p. 8G8, sec. 233.] Sec. 279. Punishment for escape, or attempt to escape. Any per- son lawfully committed to said work-house, who shall escape there- from, or break the same with intent to escape therefrom, or who shall attempt by force or violence, or in any other way, to escape from said work-house, whether such escape be effected or not, shall, upon conviction thereof, before the police court or court of common pleas for the proper county, be punished by confinement in said work -house, for a term not exceeding double the term for which such person was so sentenced, to commence from and after the expiration of his or her former sentence. [S. &. S., p. 871, sec. 242.] Sec 280. Excess of expenses, how raised. The expense of main- taining and administering the affairs of said work-house, over and above all receipts for the labor of persons confined therein, shall be audited and paid, from time to time, by the council of the cor- poration, and a tax for said expenses shall be levied tand collected as a part of the ordinary expenses of the corporation. [S. & S., p. 871. sec. 244.] Sec. 281. Officers to have police powers. The superintendent, assistant superintendent, and guards of said work-house, shall have such powers of policemen as may be necessary for the proper performance of the duties of their position. [S. & S., p. 869, sec. 234.] Sec 282. 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 pro- vide for receiving into such work-house, infants in the manner prescribed in chapter nineteen ; and the board of directors of such work-house shall have the power to make such rules and regula- tions, in regard to the admission of such infants and their manage- ment, as are provided in said chapter for the government and management of the inmates of houses of refuge and correction. [S. &S., p. 867, sec. 228.] HOSPITALS. 87 CHAPTER XXI. HOSPITALS. Section Section 283. Board of hospital commissioners. 201. Contracts to be advertised, and given 284. Who shall compose the board. to lowest bidder. 285. Their term of office. 202. Bids to be accompanied by bond, etc. 280. Their powers, compensation of appoint- 203. Contract with lowest bidder. ees, etc. 204. Bids to be sealed, indorsed, etc. 287. Regular meetings, and record thereof. 205. Board to have management and control 288. No expenditure without authority of of hospitals. board ; no member to be interested, etc. 200. Council may enter into agreement with 280. Plans, specifications, etc. any corporation, etc. 200. Terms of contracts, etc. 207. Applicability to existing hospitals. Sec. 283. Board of hospital commissioners. Whenever the coun- cil of any city or incorporated village shall enter upon and take possession of any grounds purchased, appropriated, or otherwise obtained for hospital purposes, and shall, by resolution or ordi- nance, determine to erect thereon or rebuild a hospital, the erec- tion and repair thereof, or any addition or additions thereto, and the management, direction, and control of the same, shall be vested in a board of five commissioners, to be called the Board of Hos- pital Commissioners of such corporation. [S. & S., p. 884, sees. 287, 288.] Sec. 284. Who shall compose the board. Such board shall con- sist of the mayor of the corporation, who shall, by virtue of his office, be the president of the board, and four trustees, to be ap- pointed by the mayor with the consent of the council, who shall be resident freehold electors of the corporation, and such commis- sioners shall not receive any compensation for their services. [S. & C, p. 1558, sees. 200-215.] Sec. 285. Their term of office. The term of office of the ap- pointed members of said board shall be four years, but the mem- bers first appointed shall hold their office, respectively, as shall be determined by lot, at the first meeting of said 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 ma- jority of said board shall constitute a quorum. Sec. 286. Their powers, compensation of appointees, etc. Such board shall have power to appoint a clerk, an architect, and a su- perintendent, and other necessary employes, and fix their compen- 88 IIOSriTALR. sation, and adopt a suitable plan for such hospital, and make all contracts for the erection and furnishing the same ; hut the salary of such appointees, and the plan of such hospital, before any con- tract for the erection of the same is entered into, shall be submitted to and approved by the council. [S. & S., p. 884, sec. 288.] Sec. 287. Regular meetings and record thereof. The said board shall hold regular meetings at such time and place as may be agreed upon, and shall cause to be kept a full record of all their proceedings; and no contract entered into by them shall be valid until assented to at a regular meeting of the board, and concurred in by a majority of all the members thereof, and such assent be entered on the minutes of their proceedings. [S. & S., p. 884, sec. 289.] Sec. 288. No expenditure without authority of board ; no member to be interested, etc. No money shall be paid for the erection, re- building or repair of any hospital, or of any addition or additions thereto, or for supplies therefor, unless first authorized by said board, and upon the warrant of the proper .officer of the corpora- tion, and no member of said board shall be interested, directly or indirectly, in any contract concerning said institution. [S. & S., p. 884, sec. 289.] Sec. 289. Plans, specifications, etc. It shall be the duty of said board, before entering into any contract for the erection of any hospital building, to cause plans, specifications, detailed drawings and forms of bids to be prepared ; and when adopted by them they may, at their discretion, cause the said 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 attorney of the cor- poration, and have the same printed for distribution among the bidders. [S. & S., p. 884, sec. 290.] Sec 290. Terms of contracts, etc. 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 of the work mentioned in the specifi- cations and plans, unless ordered in writing by the board; and that they will not claim any pay for the same unless such written order is given, and the extra price of compensation fixed and agreed upon ; and copies of the said 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 corporation. [S. & S., p. 884, sec. 291.] Sec. 291. Contracts to be advertised and given to lowest bidder. HOSPITALS. 89 The said board shall not enter into any contract for work or ma- terials, except as relates to procuring plans, drawings, specifica- tions and forms of bids, without fh"st 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; and they shall enter into con- tract with the luwest bidder, for the whole or any part of the work, upon his giving bond to the corporation, with security to be ap- proved by the board, that he will perform such work or furnish the materials in accordance with his contract. 1 [S. & S., p. 885, sec. 292.] Sec. 292. Bids to be accompanied by bonds, etc. All bids shall be accompanied with a bond, signed by sufficient sureties for the acceptance of the contract, if awarded by the board, to fully secure any amount of 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 said board may determine. [S. & S., p. 885, sec. 292.] Sec* 293. Contract with lowest bidder. The board shall enter into contract with the lowest responsible bidder upon his giving bond to the corporation, with such surety as the said board shall approve, that he will perform such work and furnish materials in accordance with his contract ; and on failure of such bidder, within a reasonable time, to be fixed by said board, to enter into bond with the surety before provided, then a contract may be made with the next lowest responsible bidder, and so on, until a contract is completed by the contractor giving bond as aforesaid. [S. & C, p. 1558, sec. 215.] Sec. 294. Bids to be sealed, indorsed, etc. All bids shall be in- closed 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 meet- ing of the boai*d. Sec. 295. 2 [As amended, April 18, 1870, 67 L. 75.] Board to control hospital, etc. The said board shall have the entire manage- ment and control of such hospital when the same has been com- 1 See note to section 346. 2 This section diners froni the section as originally passed only in the insertion of the words in italics. 90 HOSPITALS. pletcd and ready for use, and of the furnishing thereof, subject to* the ordinances of the council, and shall establish such rules for ita government and the admission of persons to its privileges as they may deem expedient; and it shall also have power to employ a superintendent, steward, physicians, nurses, and such other em- ployes as they may deem necessary, and to fix the compensation of all persons so employed ; such compensation to be subject to the approval of the council. Sec. 296. Council may enter into agreement icith any corporation, etc. The council may enter into an agreement with the corporation or association organized for charitable purposes in such municipal corporation, for the erection and management of a hospital for the sick and disabled, and for a permanent 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 shall provide for the payment of the amount agreed upon for any interest so acquired, either in one payment or in install- ments, or so much, from }-ear to year, as the parties may stipulate. [S. & S., p. 886, sec. 298] Sec. 297. 1 [As amended, April 6, 1870, 67 L. 33.] Exception of application as to Commercial Hospital of Cincinnati. The provisions of this chapter shall, so far as applicable, govern hospitals hereto- fore established and erected, except that nothing in this act contained or in this chapter, shall be taken or construed as in any manner re- pealing or suspending, by implication or otherwise, an act entitled "an act regulating the Commercial Hospital of Cincinnati," passed March 11, 1861, or any of the acts amendatory thereof or supplementary thereto." 2 1 This section differs from the section as originally passed only in the addition of the words in italics. 2 The act of February 29, 1804, amendatory of section 4 of the act of March 11, 1801, regulating the Commercial Hospital of Cincinnati (58 Ohio L. 151), is- a special act, assuming to confer corporate powers on the city council of Cin- cinnati, in respect to the government of the hospital, and being thus in conflict with section 1, article 13, of the constitution, is inoperative. The State ex reh v. Cincinnati, 23 Ohio St. 445. The city of Cincinnati can exercise no rightful authority in the government of the said hospital, that power being vested in the hoard of trustees, under the act of March 11, 1861, as an independent body. Ibid. The act passed March 11, 1861, entitled "an act regulating the Commercial Hospital of Cincinnati," docs not constitute the hoard of trustees therein pro- vided for, a corporation, or confer corporate power on the city of Cincinnati j INFIRMARIES. 91 CHAPTEE XXII. INFIRMARIES. Section Section 298. Board of infirmary directors. 301. Their care for the inmates, separation 299. Their election, term, and compensation. of the sexes, etc. 300. To be governed by regulations applicable 302. Ovorseers of the poor to be appointed. to hospitals. Sec. 298. [As amended, March 23, 1875, 72 L. 76.] Board of infirmary directors. The management of affairs of all corporation infirmaries now existing, or which may hereafter be established, and the care of the inmates thereof; the erection and enlargement of all infirmary buildings and of all additions thereto ; and the repairs and furnishing thereof, and improvement of the grounds therewith connected, and the granting of out-door relief to the poor, shall be vested in a board of three directors, which shall be called "the board of infirmary directors." Such infirmary, or the pest- bouse 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. [S. & C, pp. 1518, 1519, sec. 76, and p. 1542, sec. 158.] Sec. 299. [As amended, April 2, 1873, 70 L. 100.] That said directors shall be electors and be elected by the qualified electors of the corporation, and shall hold their office for three years, except that at the first election, one of said directors shall be chosen to serve for one year, one for two years, and one for three years, and thereafter one shall be elected annually. Said directors shall re- ceive such compensation as the city council may, by ordinance, provide. [S. & S., p. 801, sees. 24, 25.] Sec. 300. To be governed by regulations applicable to hospitals. In the management of any infirmary, in the care and treatment of the inmates thereof, in the erection, enlargement or repair of any building for infirmary purposes, or of any addition or additions- thereto, the said 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 and imposed on the commissioners of nor is said act repealed by the municipal code. The State ex rel. v. Davis, 23 Ohio St. 434. By said act, the authority of governing the hospital is vested in the board of trustees, and the board of hospital commissioners, provided for in the municipal code, has no authority over it. Ibid. ■ D2 INFIRMARIES. hospitals, as provided in chapter twenty-one ; 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 said chapter in relation to hospitals. Sec. 301. Their care for the inmates, separation of sexes, etc. The said directors shall further see that the inmates of such infirm- ary 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 buildings, or in separate de- partments of the same building. Sec. 302. [As amended, December 22, 1874, 72 L. 12.] Overseers of the poor to be appointed. 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, and shall prescribe the duties of such persons in relation to the care of the poor, 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 class, having a population of over two hundred thousand inhabitants, the board of infirmary directors may, with the approval of the common council of such cities, divide such cities into districts, not to exceed twelve in number, bounded fry ward lines, and may appoint for one year one overseer of the poor in each of such districts, who shall act under the supervision of the said board of infirmary directors, and be entitled to such compensation as may be fixed by the common council of such cities upon the recommendation of the said board of infirmary directors, who may remove any one or all of said overseers with the ap- proval of the common council of said cities, and fill the vacancies occasioned by such removals with the approval of the said common council of said cities. The compensation allowed to each of said overseers shall not exceed six hundred dollars per year, payable in monthly installments, as the case may be; and no extra allowance shall be made to them under any pretense whatever. The said overseers of the poor shall have charge of the poor of the said cities, in their respective districts, and shall recommend to the said board of infirmary directors, in writing, the assistance to be given to any one of the said poor in their respective districts, but shall have given to them no power to give such assistance directly themselves. The said overseers shall be sworn or affirmed to faithfully perform the duties that may devolve upon them under the law. A commission signed by the members of said board of infirmary directors shall BOARD OP HEALTH. 93 be given to each of said overseers, and a copy thereof kept in a book provided for that purpose, and under the copy of each com- mission in said hook shall be written the oath or affirmation to be taken by each of said overseers, and any one of the said board of infirmary directors may administer said oath or affirmation and certify the same. The said oath or affirmation shall be subscribed by the overseer taking the same. CHAPTER XXIII. BOARD OF HEALTH. Section Section 303. Board of health. 315. Nuisance to be abated. 304. Term of office of members. 31G. Temporary suspension of order of 305. May appoint health officer, clerk, etc. abatement. 306. Powers and duties of board. 317. Modification or reaffirmation of order. 307. May restrain persons infected, etc. 318. Sanitary police to be assigned. 308. Punishment of infected person for escap- 319. When such police shall be dismissed. ing, etc. 320. Vaccination to be encouraged and pro- 309. Regulations to secure public health. vided for. 310. Duties as to brothels. 321. Sanitary report ; its contents, etc. 311. Disposition of minor prostitutes. 322. Penalty for violation of order of board 312. When female shall be treated as a va- of health. grant. 323. Violation by a corporation. 313. Treatment of diseased female ; expense 324. Prosecutions, how instituted. thereof. 325. Provision for expenses of board of 314. Suit for recovery of such expense. health. Sec. 303. Board of health. Whenever the council of any city or incorporated village shall establish a board of health, such board shall be composed of the mayor, who shall be president by virtue of his office, and six members, to be appointed by the council, who shall serve without compensation, and a majority of whom shall be a quorum. [S. & C, p. 1513, sec. G2.] Sec. 304. Term of office of members. The term of office of the members of such board shall be three years from the date of ap- pointment, except that those first appointed shall be classified as follows: Two to serve for three years, two for two years, and two for one year, and thereafter two shall be appointed annually. [S. & S., p. 828, sec. 108.] Sec 305. May appoint health officer, clerk, etc. Such board shall have power to appoint a health officer, a clerk, as many ward or district physicians as they may deem necessary for the care of the 94 BOARD OF HEALTH. nick" poor, and such other persons as may be in need, and to define their duties and salaries; and all such appointees shall serve during the pleasure of the board. [S. & S., p. 828, sec. 109.] Sec. 30G. 1 [As amended, April 18, 1870, 67 L. 7G, and April 20, 1874, 71 L. 158.] Powers and duties of board of health. The hoard ■of health shall have power to abate and remove all nuisances in the corporation, and assess the costs and expense of the same upon the property wherein such nuisance is situated, which assessment, when duly certified by the president of the board to the county auditor, shall become a lien, to be collected the same as any other tax in favor of the corporation, and to compel the proprietors or owners, agents or assignees, occupants or tenants of the lot or property, house or building, upon or in which any nuisance may be, to abate and remove the same, to regulate the construction and arrangement of all water-closets and privy-vaults, and the empty- ing and cleaning of such vaults; to create a complete and accurate system of registration of births, deaths, and interments occurring in or near such corporation, for purposes of legal and genealogical investigations, and to furnish facts for statistical, scientific, and particular^ for sanitary inquiries; and when complaint is made, or a reasonable belief exists, that an infectious or contagious disease prevails in any locality or house, to visit such locality or house, make all necessaiy investigations by inspection, and on discovering that such infectious or contagious diseases exist, the board of health may send the person or persons so diseased to the pest-house or hospital: Provided, however, that in all counties where there is a city of two hundred thousand inhabitants, it shall be the duty of physicians and professional midwives to keep a registry of the several births at which they have assisted professionally, which shall contain the time of such birth, sex and color of the child, the names and residence of the parents; and all clergymen and other persons authorized to solemnize marriages, shall keep a registry of all marriages solemnized by them; and physicians who have attended deceased persons in their last illness, and undertakers and sextons who have buried deceased persons, shall keep a registry of the name, age, and residence of such persons at the time of their death. All such physicians, professional midwives, clergy- men, and all persons authorized to solemnize marriages, under- takers and sextons, shall report to the board of health all births, BOARD OF HEALTH. 95 marriages, and deaths occurring within the limits of such city, as registered by them; and such report shall be made as often as the board of health may require. And any person or persons who shall neglect or refuse to comply with, or shall violate any of the foregoing provisions, shall forfeit and pay for each offense in any sum not exceeding fifty dollars, to be sued for and recovered in the police court of such city, in the name of the State of Ohio, and said court is hereby vested with jurisdiction in such eases. [S. & S., p. 828, sec. 110.] Sec. 307. [As amended, April 20, 1874, 71 L. 158.] May re- strain persons infected, etc. The owner or agent of any house or building, public or private, in which any person having the small- pox or any other disease dangerous to the public health may re- side ; also any physician who may be called to attend any person affected with any such contagious or infectious disease, shall, within twenty-four hours thereafter, give notice of the fact to the board of health ; and when such person or persons afflicted with infectious or contagious disease is removed to a pest-house or hospital, the board of health is empowered to use all necessary means to restrain such patient of his or her liberty until the danger of infection or contagion from said disease shall have ceased. And no captain, agent, or other person having charge of or attached to any ferry- boat, steamboat, or other vessel, or any person in charge of any car or other vehicle, or public or private conveyance, shall con- vey, or allow to be conveyed by any means aforesaid, nor shall any person convey or carry in any other manner, from or in any city, the dead body of any human being, without a permit therefor from the board of health. And. if any person shall knowingly make to said board of health, or any officer thereof, any false return, state- ment, or report relative to any birth, death, or other matter con- cerning which a report is returned or may be required, or in any other way violate any of the provisions of this section, then any and every such person shall be liable to a fine not exceeding fifty dollars, to be recovered by prosecution in the police court. Sec. 308. Punishment of infected person for escaping, etc. If any person so removed to any pest-house or hospital shall willfully leave or escape therefrom before the physician of such pest-house or hospital shall give a certificate of restored health, the person so offending, shall, upon conviction thereof before the mayor or police judge, be fined in any sum not less than five nor more than fifty dollars, or be imprisoned not less than one nor more than ten days, as the mayor or judge may determine. 90 BOARD OP IIEALTH. Sec. 309. Regulations to secure public health. The council may grant power to such board to make and pass all such orders and regulations as they shall, from time to time, deem necessary and proper for the public health and for the prevention of diseases • and such orders and regulations, when adopted, shall have all the force and effect of ordinances of such corporation. 1 [S. & S., p. 828, sec. 110.] Sec. 310. Duties as to brothels, etc. The board of health in cities of the first class, and whenever required by resolution of the coun- cil, in cities of the second class, are authorized and directed to en- ter brothels and houses of assignation, and make enumerations, as. often as they may deem necessary, of the female inmates therein, and make a record of the same, and of the age of such female in- mates, in a book to be kej^t in the office of said board of health, to be open to the inspection of the members of the board, the police, and others. [S. & S., p. 831, sec. 120.] Sec. 311. Disposition of minor prostitutes. "When any female under the age of eighteen } T ears, or believed to be under that age, is found in such brothel or house of assignation, it shall be the duty of the board of health to return such female to her home, if she have uny, and if such female have no home, then she shall be con- signed to the house of refuge and correction of the corporation, or such benevolent association established for the reformation of aban- doned females, as the board of health may elect. [S. & S., p. 831, sec. 121.] Sec 312. When female shall be treated as a vagrant. No female shall be consigned to a house of refuge and correction, or benevo- lent institution, against her will; but in case she declines the care and protection tendered her, it shall be the duty of the board. to turn said female over to the mayor or police court to be tried as a vagrant. [S. & S., p. 831, sec. 122.] Sec. 313. Treatment of diseased females ; expense thereof . "When- ever any female is found in any house of ill-fame or assignation, affected with contagious or infectious disease, and is removed to, or if such person shall apply for admission to any hospital or pest- house for treatment, the costs of such removal, and the expense of boarding and washing, while in such hospital or pest-house, shall be paid by the proprietor or proprietors of the house of ill-fame or assignation from which such patient was removed, or in which she was last an inmate; and such payment shall be made before 1 See cases in note to section 199, paragraph 2. BOARD OF IIEALTH. 97 such patient is discharged from such hospital or pest-house ; and such expense of boarding, washing, and medical attendance shall be a lien upon the house and premises in which such female shall have been so found, which lien may be enforced as other liens for the security of money. Sec. 314. Suit for recovery of such expense. If the proprietor or proprietors of sucb house of ill-fame or assignation shall fail or re- fuse to pay such expense, legal proceedings shall be immediately instituted against such proprietor or proprietors of such house of ill- fame or assignation, and such patient shall be held as a witness in the case. Sec. 315. Nuisances to be abated. Whenever any building, erec- tion, excavation, premises, business, pursuit, matter, or thing, or the sewerage, drainage, or ventilation thereof, in the opinion of said board of health, whether in whole or in part, be in a condition or in effect dangerous to life or health, the said board may declare the same, to the extent it may specify, a public nuisance, or dan- gerous to life and health ; and the said board may order the same to be removed, abated, suspended, altered, or otherwise improved or purified, as said order shall specify, and shall cause said order, before its execution, to be served on the agent, owner, occupant, or tenant, or such of them as are in the corporation and can be found. [S. &S., p. 829, sec. 111.] Sec 316. Temporary suspension of order or abatement. If any party so served shall, before the execution of the order is com- menced, apply to said board to have said order or its execution stayed or modified, it shall be the duty of the board to temporarily suspend or modify said order, and to give such party or parties, as- the case, in the opinion of the board, may require, a reasonable and fair opportunity to be heard before said board, and to present proofs and facts against said declaration and the execution of said order, or in favor of its modification. 1 Sec 317. Modification or reaffirmation of order. The board shall enter upon its minutes such facts and proofs as it may receive, and its proceedings on such hearing, and thereafter may rescind, mod- ify, or reaffirm its said declaration and order, and require execution 1 When the board of health have declared any business establishment a nuisance, and order it to be abated, and no application is made to them to re- view their decision by the owner, if their decision is not conclusive, it will re- quire a very strong case to induce a court to interfere by injunction. Sherlock v. Cincinnati, Hamilton Common Pleas, MS. 7 "93 BOARD OP HEALTH. of paid original, or of a new or modified order to be made, in such form and effect as it may finally determine. Sec. 318. [As amended, April 20, 1874, 71 L. 158.] Sanitary police to be assigned. The board of health shall have power to ap- point as many persons for "sanitary duty as in its opinion the pub- lic health and sanitary condition of the corporation may require ; and such persons, when appointed and qualified, shall have general police powers, and shall be known as the sanitary police, the num- ber to be determined by the board of health, according to the exi- gencies of the case ; the said sanitary police shall perform such duties for the promotion of the public health, and such other duties as said board of health may direct, and shall serve during the pleasure of the board. And said board may also appoint such ^ number of inspectors of milk and meat, and as many market- masters, and such other person or persons as may be necessary to carry out the provisions of this act, define their duties, and fix their compensation. Such inspectors of milk shall keep a record of the names and places of business of all persons engaged in the sale of milk. All dairies, including the cows, cow-stables, milk- houses, and milk-vessels thereof, the owners of which shall offer ' for sale milk within the corporate limits of the city, shall be sub- ject to inspection by such officer. The inspectors may enter any place where milk is sold or kept for sale, and all carriages used in the conveyance of milk within the corporate limits; and whenever they have any reason to believe any milk found therein is impure or adulterated, they 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 they shall record and preserve as evi- dence, and a certificate of such result, sworn to by the analyzer, shall be admissible in evidence in all prosecutions in such cases un- der this act. [S. & S., p. 829, sec. 112.] Sec. 319. When such police shall be dismissed. Whenever, in the opinion of the board of health, the services of the sanitary police are no longer required, they shall, on recommendation of the board of health, be returned to duty as regular policemen, or be dismissed, as the mayor may direct. [S. & S., p. 829, sec. 112.] Sec 320. Vaccination to be encouraged and provided for. Said board may take measures and supply agents, and afford induce- ments and facilities for gratuitous vaccination and disinfection ; and may afford medical relief to and among the poor of the cor- poration, as in its opinion the protection of the public health may BOARD OP HEALTH. 99 require ; and during the prevalence of any epidemic disease, may- provide temporary hospitals for such purposes. [S. & S., p. 829, sec. 113.] - Sec. 321. Sanitary report ; its contents, etc. It shall be the duty of said board, on or before the first Monday of March in each year, to make a report, in writing, to the council of the corpora- tion, upon the sanitary condition and prospects thereof; and such report shall set forth generally the statistics of deaths, the action of said board and of its officers and agents, and the names thereof for the past year ; and may contain other useful information, and shall suggest any further legislative action deemed proper for the better protection of life and health. [S. & S., p. 829, sec. 114.] Sec. 322. Penalty for violation of order of board of health. Any person violating any provision of this chapter, or any order of the board of health made in pursuance thereof, or obstructing or inter- fering with the execution of any such order, or willfully and illegally omitting to obey any such order, shall, on conviction, be fined in any sum not exceeding one hundred dollars, or imprisoned for any time not exceeding ninety days, or both, at the discretion of the court ; but no person shall be imprisoned under this section for the first offense. [S. & S., p. 830, sec. 115.] Sec. 323. Violation by a corporation. If such violation, obstruc- tion, interference or omission be by a corporation, such corporation shall forfeit and pay to the proper city or village any sum, not exceeding one hundred dollars, at the discretion of the court, to be collected in civil action brought in the name of such city or village ; and any officer of such corporation consenting thereto shall be subject to imprisonment as above provided. [S. & S., p. 830, sec. 115.] Sec 324. Prosecutions^ how instituted. Prosecutions and the civil action provided for in section three hundred and twenty-three under this chapter, shall be instituted before any tribunal within the municipal corporation having jurisdiction thereof. [S. & S., p. 830, sec. 115.] Sec 325. [As amended, April 20, 1874, 71 L. 158.] Provision for expenses of board of health. Where expenses shall be incurred by the board of health, under the provisions of this act, it shall bo the duty of the council, upon application and certificate from said board of health, to pass the necessary appropriating ordinances to pay the expenses so incurred and certified ; and the council is here- by empowered to levy, subject to the restrictions of section six hundred and forty-eight of the municipal code, and set apart the 100 FIRE DEPARTMENT. necessary sum to curry into effect the provisions of this act. And all moneys heretofore levied and unexpended for the purposes mentioned and provided for herein, shall be transferred to the funds and placed under the control of the board of health. [S. & S., p. 830, sec. 117.] CHAPTEE XXIV. FIRE DEPARTMENT. Section Section 32G. Council shall have power to establish fire 330. To invest fire engineer with power, etc.. department. 331. Engineer may administer oaths, etc. 327. To purchase fire-engines, etc. 332. His compensation. 328. To erect necessary buildings, etc. 333. Council may prohibit erection of wooden 329. To regulate the erection of structures, etc. buildings, etc. Sec. 32G. 1 [As amended, April 18, 1870, 67 L. 76.] Powers of council as to fire department. The council of any city or incorpo- rated village shall have power to establish 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 provide 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 ; 2 provided, that no active volunteer fireman, or one who has served five years consecutively as a volunteer fireman, shall be required to serve on juries, or perform military duty in time of peace. [S. & C, p. 1499, sec. 21, and p. 1513, sec. 62 ; S. & S., p. 791, sec. 2.] Sec 327. To purchase fire-engines, etc. The council shall also have power to purchase for its own use, or for the use of such companies, all necessary fire-engines (either steam or hand), hose carriages and hose, and all such other apparatus and instruments 1 This section differs from the section as originally passed only in the addi- tion of the words in italics.' 2 A municipal corporation is not liable to an individual for damages resulting from a faiiure to provide the necessary agencies for extinguishing fires, or from negligence of officers or other persons connected with the fire depart- ment; the power is in its nature legislative and governmental. "Wheeler v. Cincinnati, 19 Ohio St. 19. THE FIRE DEPARTMENT. 101 as shall be deemed necessary to the extinguishment of fires, and to establish lines of fire-alarm telegraph within the limits of the cor- poration. [S. & C, p. 1513, sec. 62.] Sec. 328. To erect necessary buildings, etc. The council shall also have power to 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. Sec. 329. 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, to -prohibit the erec- tion on any such square of any building, or of any addition to any building, more than ten feet high, unless the outer walls be made of brick and mortar, or of stone and mortar, or of iron, or stone or brick and rnortar, and to provide for the removal of any build- ings or additions erected contrary to such prohibition. [S. & S., p* 791, sec. 2.] Sec 330. To invest fire engineer with poiver, etc. The council shall have power to invest the fire engineer, 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 papers, and compel the appearance and pro- duction of the same, and to do and perform all such other acts as may be necessary to the effective discharge of such duties. [S. & S., p. 791, sec. 2.] Sec. 331. Engineer, etc., may administer oaths, etc. Such officer shall have power to administer oaths, make arrests, and enter any building for the purpose of examination, which, in his opinion, is in danger from fire ; and he shall report his proceedings to the council at such times as may be required. [S. & S., p. 791, sec. 2.] Sec. 332. His compensation. For his services herein specified, such fire engineer or other officer shall receive such compensation as the council may prescribe. [S. & S., p. 791, sec. 2.] Sec 333. Council may prohibit erection of wooden buildings, etc. In all cities of the first class, the council shall have power to prohibit, within' such limits as may be deemed proper, the erection of any buildings, unless the outer walls be constructed of iron, brick and mortar, or stone and brick and mortar. 102 „ WATER-WORKS. CHAPTEE XXV. WATER-WORKS. Section Section 334. Council may construct and regulate 349. Construction and regulation thereof. water-works. 350. Water-works in contiguous cities or 335. Trustees of water-works. villages. 336. Their salary and duty. 351. Construction and regulation thereof. 337. By-laws, etc. 35;i. Contracts to supply contiguous cities 338. Water-rents. or villages. 339. Disposition of surplus. 353. Cost thereof, how raised. 340. Monthly reports and weekly deposits. 354. Works to be joint property, etc. 341. Money to be kept as a distinct fund. 355. Termination of contract upon annexa- 342. Trustees to make contracts, etc. tion. 343. Annual investigation. 356. Tax to be levied for payment of inter- 344. No charge for water to extinguish fires,etc. est. 345. Protection of attachments, etc. 357. Payment of interest on loans. 346. Rules as to contracts. 358. Tax to be a lien upon property. 347. Contractors must give bond, etc. 359. Laying of water-pipes in highways. 348. Extension of aqueducts, etc.; beyond cor- 300. Extent of jurisdiction. poration limits. Sec. 334. Council may construct and regulate water-works. The council of any city or incorporated village shall have power to enter upon and 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 pur- pose, except by authority of the trustees and consent of the coun- cil. [S. &C.,p. 1529, sec. 114.] Sec. 335. 1 [As amended, April 18, 1870, 67 L. 76.] Trustees of water-works. The council of any city or incorporated village in which water-works are or may be situated, or in progress of con- struction, 2 or when water-works shall be ordered to be constructed by 1 This section differs from the one originally- passed only in the addition of the words in italics. 2 When a city has no water-works situated therein, and has done no more than to authorize the borrowing of money for the purpose of constructing water-works, an ordinance establishing a board of trustees is premature and unwarranted, and such board may be legally abolished by the repeal of the ordinance. The act in question in this case followed the words of the original section (sec. 335) authorizing the council of any city in which water-works are or may be situated, or in progress of construction, to establish a board of trus- tees. State v. Pinto, 7 Ohio St. -Joo. WATER- WORKS. 103 the council, shall establish a board of three trustees, to be known as the Trustees of the Water-works, who shall be elected by the qualified electors of the corporation, and hold their office for the term of three years ; except that at the first election under this act one shall be chosen for one year, one for two years, and one for three j'ears ; and thereafter one of the trustees shall be elected annually. [S. & C, p. 1528, sec. 112.] Sec. 336. Their salary and duties. Said trustees shall receive -a fixed salary, to be determined by the council, and they shall man- age, conduct and control the works, 1 furnish supplies of water, col- lect water-rents, and appoint all necessary officers and agents, and determine the term of office and the amount of the salaries of the officers and agents so appointed. [S. & C, p. 1528, sec. 112.] Sec 337. By-laws, etc. Said trustees shall be authorized 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 regulations shall have the same validity as ordinances, when not repugnant thereto, or to the constitution and laws of the state. ' [S. & C., p. 1528, sec. 112.] Sec. 338. [As amended, April 18, 1874, 71 L. 109.] Water- rents. For the purpose of paying the expenses of conducting and managing water-works, the trustees of water- works shall have power to assess and collect, from time to time, a water-rent of sufficient amount, in such manner as they may deem most equita- ble, upon all tenements and premises supplied with water, except that in cities of the first class having a population exceeding one hundred and fifty thousand, the council shall, upon the recommend- ation of the board, provide for assessing the cost and expenses of laying or extending water-mains upon the lots and lands bounding or abutting upon the streets, lanes, alleys, highways, market- spaces, public landings and commons in or along which said water- mains shall be laid or extended, upon the foot front, or according to the valuation of the same on the county duplicate, or acording to benefits, as they shall determine in each case. [S. & C, p. 1528, sec. 111.] 1 The corporation is liable for injuries to one of the employes of the water- works, caused by the negligence and carelessness of the trustees in not furnish- ing proper machinery. Sterley's adm'r v. Zanesville, Muskingum Com- mon Pleas, per Granger, J. The trustees of the city water-works have power to appoint officers " for one year, unless sooner removed," and any one appointed under the terms of such a resolution, may be removed at any time before the end of the year. Lawrence v. Cincinnati, 3 Am. Law Record, April, 1874. 101 WATER-WORKS. Sec. 339. Disposition of surplus. Should there be any surplus, after paying the expenses of conducting and managing the water works, the same may be applied to the repair, enlargement or ex- tension of the works, or of the reservoirs, the payment of the in- terest 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. [S. &C, p. 1528, sec. Ill] Sec. 340. Monthly reports and weekly deposits. Said trustees 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 coun- cil may cause to be published in some newspaper of general cir- culation in the corporation ; and all money collected for water- works purposes they shall cause to be deposited weekly, by the collectors thereof, with the treasurer of the corporation, and the receipt therefor shall be by such collectors deposited with said trustees or their authorized agent. [S. & C, p. 1528, sec. 112.] Sec. 311. Money to be kept as a distinct fund. All money so deposited shall be kept a separate and distinct fund, subject to the order of said trustees ; and all orders drawn by said trustees on the treasurer of the corporation, shall be signed by one of the trustees, and countersigned by the clerk of the water-works. [S. & C, p. 1528, sec. 112.] Sec. 312. [As amended, January 22, 1873, 70 L. 11.] Trustees may make contracts, etc. The said trustees shall be authorized to make contracts for the building of machinery, water-works, build- ings, reservoirs, and the enlargement and repair thereof, and the manufacture and laying down of pipe, and the furnishing and sup- plying with connections all necessary fire-hydrants for fire-depart- ment purposes, and keeping the same in repair, and for all other necessary purposes to the full and efficient management and con- struction of water-works. Sec 313. Annual investigation. The council of any corporation in which water-works are or may be situated, or in progress of con- struction, shall be authorized to appoint a committee for the inves- tigation of all books and papers, together with all matters pertain- ing to the management of the water-works, at least once a year, an4 oftener if necessary by reason of any neglect of duty or mal- WATER- WORKS. 105 feasance on the part of any officer of the works ; and any officer of the works found by said committee so offending shall be liable to removal from office by the council. [S. & C, p. 1529, sec. 113.] Sec. 344. [As amended, January 22, 1873, 70 L. 11.] No charge for water to extinguish fires, etc. No charge shall be made by the trustees of water-works for suppljing water for the extinguishing of fires or cleaning of fire-apparatus, or for furnishing and suppl- ing 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 any of the public buildings belonging to the corporation. [S. & C, p. 1529, sec. 113.] Sec. 345. Protection of attachments, etc. All attachments of whatever nature made to the water-pipes, or other fixtures belong- ing to the water-works, and intended for public use, shall be subject to the same supervision, rules and regulations, as are made for the protection of water-works against abuse, destruction, and inordi- nate or unnecessary use or waste of water, or the trustees may make general or special rules and regulations for such purpose. [S. & C, p. 1529, sec. 113.] Sec 346. Rules as to' contracts. Said trustees, before entering into any contract for work to be done, the estimated cost of which shall exceed five hundred dollars, shall cause 'at least two weeks' notice to be given, 1 in one or more daily newspapers of general circulation in the corporation, that proposals will be received by said trustees for the performing of the work specified in said no- tice ; and the trustees shall contract with the lowest bidder, 2 if, in their opinion, said lowest bidder can be depended on to do the work with ability, promptness, and fidelity, and if such be not the 1 The provision of this section as to advertising is mandatory, and when a contract is let without the first advertisement appearing two full weeks before the letting, the progress of work under it will be enjoined at the instance of the ' solicitor, acting by request of tax-payers. Miller v. The Trustees of the Water- works, Superior Court of Cincinnati, Special Term, Taft, J. The plans and specifications must be definite enough to enable careful bidders to estimate the cost of the work. Small defects will not be regarded, but where there is an evident defect which would prevent any intelligent bidding, this of itself will be a ground for enjoining the performance of the contract. Ibid. 2 After bids have been received and opened, under the act of May G, 1869 (66 L. 128), the trustees have no right to allow any amendment or alteration of any proposal on account of an alleged mistake therein, unless the fact of such mis- take, and the requisite data for its correction, were apparent on the face of the proposal. A mandamus was issued to compel them to contract with the lowest bidder. Beaver & Butt v. The Trustees of the Blind Asylum, 19 Ohio St. 97. 106 WATER- WORKS. case, said trustees may give the contract to the next lowest bidder or dec-line to contract, and advertise again. 1 f S. & C, p. 1529, sec. 115.J Sec. 347. Contractors must give bond, etc. Said trustees shall require bond to be given, with good and sufficient security, for the faithful performance of the work ; but no member of said board of trustees shall be such security ; nor shall any trustee be a con- tractor, or in anywise, either directly, or indirectly, interested in any such work to be contracted for; provided, that in case of emergency, the council may, by a vote of two-thirds of all the members elected, authorize said trustees to enter into such con- tracts without advertising. [S. & C, p. 1529, sec. 115.] Sec. 348. Extension of aqueducts, etc., beyond the corporation limits. The 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 aqueducts and water-pipes to any distance outside the corporation limits, not exceeding three miles, and for this purpose shall have the right to make use of such of the public streets, roads, alleys, and public grounds, as shall be necessary therefor. [S. & S., p. 866, sec. 224^] Sec 349. Construction and regulation thereof. Such aqueducts and pipes shall be so constructed and laid as not to interfere un- necessarily with the use of such streets, roads, alleys, and public grounds, as public highways and public grounds ; and the corpo- ration so extending and establishing any part 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. [S. & S., p. 866, sec. 224.] Sec. 350. Water-works in contiguous cities or villages. Any city or incorporated village owning water-works, whose territory is contiguous to that of another city or incorporated village, may, with the assent of such other city or incorporated village, estab- lish and maintain such portion of its water-works as it shall deem advisable, within the limits of such other city or incorporated vil- 1 The requisition of the statute, that before entering into any contract, the estimated cost >>!' which shall exceed five hundred dollars, the trustees shall cause at least two week-' notice to be given in one or more daily newspapers of general circulation in tin- corporation, is a condition precedent to contracting, a*nd the contract can not be entered into until at least two weeks after the first publica- tion. Miller v. Pierce, 2 Superior Court Keporter, 44. WATER-WORKS. 107 lage, and shall have the right to make use of such of the public streets, alleys, and public grounds of such other city or incorpo- rated village, as shall be necessary therefor, for the purpose of con- structing, laying down, and maintaining all such aqueducts 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. [S. & C, p. 1538, sec. 146 ; S. & S., p. 866^ sec. 224.] Sec. 351. Construction and regulation thereof. Such aqueducts and pipes shall be so constructed and laid as not to interfere un- necessarily with the use of such streets, alleys, and public grounds, as public highways and public grounds; and the city or incor- porated village so establishing any part of its water-works within the limits of such other city or incorporated 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 shall be obtained, or any injury to any portion of said water- works so located within the limits of such other city or incorporated vil- lage. [S. k C, p. 1538, sec. 14G ; S. & S., p. 866, sec. 224.] Sec. 352. [As amended, March 11, 1872, 69 L. 25.] Contracts to supply contiguous cities or villages. Any city or incorporated village which shall have established, or hereafter may establish water-works, is hereby authorized to enter into a contract with any contiguous city or incorporated village for the supply of the latter with water, upon such terms as shall be mutually agreed upon by the board of trustees of water-works of the respective cities, or of the city and incorporated village, or of the incorpo- rated village; and any city or incorporated village which has constructed or may hereafter construct water-works, is hereby authorized and empowered to dispose of any surplus water for manufacturing or other purposes, by lease or otherwise, upon such terms as may be agreed upon by the board of trustees of said water- works, and approved by the council of said city or incorporated 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 said water-works: Provided, that no lease shall be made for a longer term than twenty years. 1 [S. & C, p. 1539, sec. 147.] J The provisions of this section apply only to cities within the state, and do not authorize a municipal corporation within the state to contract to furnish one "without the state with water. Nor is such a contract valid under the general 108 WATER-WORKS. Sec. 353. Cost thereof, how raised. The amount to be paid for such supply shall be raised by such city or incorporated village, in the manner provided for the payment of the expense of conduct- ing and managing water-works constructed wholly by a city or incorporated village; and the amount so received by the city or incorporated 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 shall direct. [S. & C, p. 1539, sec. 147.] Sec. 354. Works to be joint property, etc. Upon the annexation of one municipal corporation to another municipal corporation, the water-works theretofore constructed by either corporation shall thereby become the joint property of the united corporation, and shall thereafter be managed by the board of trustees of the cor- poration to which such annexation shall have been made. [S. & C, p. 1539, sec. 148.] Sec. 355. Termination of contract upon annexation. Any con- tract entered into, by one municipal corporation for the supply of water to the other, as above 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. [S. & C, p. 1539, sec. 148.] Sec 356. Tax to be levied for payment of interest. For the pur- pose of pa} T ing 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 operation, a tax of sufficient amount shall be assessed and collected each and every year, in the usual manner of levying and collecting taxes in the corporation, upon all taxable property thereof. [S. & C, p. 1527, sec. 108.] Sec 357. Payment of interest on loans. For the purpose of pay- in the interest on any loan which any city or incorporated village may have heretofore 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 power given to contract. The performance of such a contract will he enjoined on the application of a tax-payer, when the solicitor declines to proceed. Kleiner & Bro. v. Cincinnati, Hamilton District Court, MS. WATER- WORKS. 109 amount may be assessed and collected by tbe council in each and every year, in such manner as the council may deem most equitable and proper, as may be directed by ordinance, upon all the taxable property adjoining, abutting to, or bounding upon any street, lane, alley, public ground, square, block, or premises through which water-pipe has been laid. [S. & C, p. 1539, sec. 149.] Sec. 358. Tax to be a lien upon property. The said 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 county duplicate in a separate column thereof, and be collected as other taxes, and the same shall be paid to and be under the control of the trustees of the water-works. Sec. 359. Laying of water-pipes in highways. The council may prescribe, by ordinance, for the laying down of water pipes in all highways about to be paved, macadamized, or otherwise per- manently 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 connec- tions to be built further from the main pipe than the outer line of the curb-stone. [S. & S., p. 858, sec. 194, and p. 862, sec. 209.] Sec. 360. Extent of jurisdiction. The jurisdiction of any cor- poration owning water works, to prevent or punish any pollution of the water, shall extend five miles beyond the corporation limits. [S. & 0., p. 1499, sec. 22.] 110 CEMETERIES. CHAPTEE XXVI. PUBLIC CEMETERIES AND BURIAL GROUNDS. Section Section 361. Cemeteries to be provided. 381. Control and management. 302. Title to be rested in corporation. 382. Power to enforce ordinances, etc. 363. Board of trustees to be elected. 383. Discrimination forbidden. 3G4. Their term of office, etc. 384. Joint meeting of council and trustees. 305. Vacancies, how filled. 385. Joint meeting to make rules, etc. 306. Duties of trustees. 386. Vote, and record thereof. 307. Their powers. 387. Public burial grounds may be appro- 368. May institute suits, etc. priated. 369. Shall make by-laws, etc. 388. Purchase of lands, improvements, etc. 370. Shall fix price of lots and terms of pay- 389. Rights and titles inviolate. ment. 390. Adjoining townships may be admitted 371. Price of lots limited. to participation, etc. 372. Sale of lots, etc. 391. Clerk shall record plat of grounds, etc. 373. Clerk, and quarterly report. 392. Power of council over burial grounds, 374. Annual report to council. etc. 375. Statement as to funds, etc. 393. Burials may be prohibited within cor- 376. Enlargement of grounds. poration limits. 377. Union of cities, etc., for cemetery pur- 394. Power limited as to villages. poses. 395. Bond may be required of disbursing 378. How appropriations shall be made. trustee. 379. Titles, how vested. 396. Applicability to existing cemeteries. 380. Expenses, etc., to be pro rata. Sec. 361. Cemeteries to be provided. The council shall have power to provide, without the limits of the corporation, places for the interment of the dead. [S. & C, p. 1499, sec. 23.] Sec. 362. 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 incorporated 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, ex- cept 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. [S. & S., p. 876, sec. 255.] Sec. 363. Board of trustees to be elected. The qualified electors of aii} T city or incorporated village, in which there shall be such grounds, or which shall now or may hereafter, by purchase or otherwise, own a public cemetery or burial ground, shall elect, at the annual election for corporation officers, a board of three trus- tees, each of whom shall be qualified freehold electors of the cor- poration, who shall be known as the trustees of cemeteries. [S. & S., p. 872, sec. 247, and p. 879, sec. 272.] CEMETERIES. HI Sec. 364. Their term of office. Such trustees shall serve without compensation, and they shall hold their office for three years, and until their successors are elected and qualified, except that at the first election under this act, one of said trustees shall be elected for one year, one for two years, and one for three years, and thereafter one shall be elected annually, and a majority shall constitute a quorum. [S. & S., p. 872, sec. 247, and p. 879, sec. 272.] Sec. 365. Vacancies, how filled. All vacancies which may occur in said board shall be filled by appointment of the council, and the person so appointed shall hold his office until the next regular election; and the council shall have power to remove any trustee for inattention to his duties, want of proper judgment, skill, or taste for the due discharge of the duties required of him, or other good cause. [S. & S., p. 873, sec. 248.] Sec. 366. Duties of trustees. Said trustees shall take possession and charge, and have the entire management, control, and regula- tion 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 lay- ing out of such grounds and cemeteries into lots, avenues, walks, and paths, or other subdivisions, which lots shall be numbered, and 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. [S. & C, p. 1562, sec. 234; S. & S., 874, sec. 252, and p. 876, sec. 255.] Sec 367. Their powers, etc. Said trustees shall have power to direct all the improvements and embellishments of the grounds and lots, and shall protect and preserve the same, and to appoint, sub- ject to the approval of the council, all necessary superintendents, employes, and agents, and determine their term of office and the amount of their compensation. [S. & S., p. 876, sec. 255.] Sec 368. May institute suits, etc. Said trustees are authorized and required, when necessaiy, to institute suits in the name of the corporation, to recover the possession of all such grounds, remove trespassers 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. [S. & S., p. 876, sec. 255.] Sec 369. Shall make by-laws, etc. Said trustees shall make all such by-laws and regulations, not inconsistent with the ordinances 112 CEMETERIES. of the corporation and the constitution and laws of the state, as they shall deem useful and necessary for the management and pro- tection of all such burial grounds and cemeteries, and the burial of the dead therein; and such by-laws and regulations shall have the same validity as the ordinances of the corporation, and they shall perform all such other duties pertaining to their offices as the council of the corporation may b} 7 ordinance prescribe. [S. & S., p. 880, sec. 273.] Sec. 370. Shall fix prire of lots and terms of payment. Said trus- tees shall determine the size and price of lots, and terms of pay- ment 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, such pur- chaser shall be entitled to a deed for the lot or lots described therein. [S. & S., p.' 873, sec. 249.] Sec 371. 1 [As amended, May 2, 1871, 68 L. 130.] Charge for cemetery lots limited. No more shall be charged for lots than shall be necessary to reimburse the corporation for the cost of lands pur- chased or appropriated for cemetery purposes, and to keep in order and embellish the grounds, and provision shall be made for the in- terment in such cemetery of all persons buried at the expense of the corporation. [S. & S., p. 873, sec. 249.] Sec. 372. Sale of lots, etc. Said trustees 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 ; and they may ap- point 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, but notice of such appoint- ment shall, upon being made, be communicated to the council. [S. & S., p. 873, sec. 249.] Sec 373. Clerk and quarterly report. Said trustees shall appoint a clerk, and keep an accurate minute of all their preceedings, and report quarterly to the council all the moneys received and dis- bursed by them as such trustees. [S. & S., p. 873, sec. 249.] Sec 374. Annual report to council. Said trustees shall, annually, on the first Monday of April, or as soon thereafter as may be prac- ticable, report in writing to the council the number of lots sold, to whom sold, and the amount received therefor during the year preceding said date, and a detailed statement of the expenditures 1 This section differs from the section as originally passed only in the insertion of the words in italics. CEMETERIES. 113 during the same period, showing the time and purpose of each payment, and to whom made. [S. & S., p. 873, sec. 249.] Sec 375. Statement as to funds, etc. Such repoi*t shall also contain a pertinent statement whether the funds, if any on hand, are in- vested, and the character of the securities therefor, and such other matters as the trustees may deem expedient or the council may require. [S. & S., p. 873, sec. 249.] Sec 376. Enlargement of grounds. Whenever in their judg- ment, an enlargement of any burial or cemetery grounds has be- come necessaiy, or grounds for additional cemeteries should be- provided, the trustees shall report the fact to the council, and re- commend such action as they may deem most expedient. Sec 377. Union of cities, etc., and townships for cemetery purposes. It shall be lawful for the council of any city or incorporated village and the trustees of any township adjacent to or in which such city or incorporated village is situated, to unite in the establishment of a cemetery by the purchase or appropriation of land therefor, not exceeding in extent one hundred acres, to be paid for as hereinafter provided" [S. & S., p. 877, sec. 260.] Sec 378. How appropriations shall be made. When any appro- priation of land for such purpose shall be necessary, such appro- priation shall be made by the corporation for itself and the town- ship interested therein, and the proceedings therefor shall be the same as required by this act where the appropriation is to be made for the use of the corporation alone. Sec 379. Title, how vested. The title to such cemetery grounds, whether by purchase or otherwise, shall vest in and be held by such corporation in trust for the use of the inhabitants of the cor- poration and township in common, and provision shall be made for the interment in such cemetery of all persons buried at the expense of the corporation or the township. [S. & S., p. 878, sec. 204.] Sec 380. Expenses, etc., to be pro rata. The expense of such purchase, or of the proceedings in case of appropriation, and the damages awarded, or both, shall be borne by the corporation and township 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 corporation and the township. Sec 331. Control and management. The cemetery so owned in 8 114 CEMETERIES. -common by the corporation and township, shall be under the con- trol and management of the trustees of cemeteries, and their authority over the same and their duties in relation thereto, shall be the same as where the cemetery is the exclusive property of the corporation. [S. & S., p. 878, sec. 267.] Sec 382. Power to enforce ordinances, etc. The council of any -city or incorporated village owning a cemetery in common with .any 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 pro- tection thereof, and for the punishment of any person or persons 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, rales, and regulations, as if such cemetery grounds were located within or owned exclusively by the corpora- tion. [S. & S., p. 878, sees. 265, 267.] Sec. 383. Discrimination forbidden. No distinction or discrimi- nation of any kind shall be made b}>- the trustees of such cemetery owned in common, in favor of the corporation and against the township, or in favor of the township and against the corporation, but the affairs of the said cemetery shall in all respects be man- aged as though the same were owned and governed in the interests of the corporation or township alone. Sec 384. Joint meeting of council and trustees. The council of the corporation and the trustees of the township shall have a joint meeting at the council chamber of the corporation, on the day of the first regular 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 town- ship for the purposes 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 the said rate to the auditor of the county for assessment and collection. [S. & S., p. 878, sec. 263.] Sec 385. Joint meeting to make rules, etc. The trustees of such township or the council of such corporation may at any time call a joint meeting of the trustees and council, on a reasonable notice given by either, for the purpose of making joint rules and regula- tions for the government of such cemetery, or changing the same, CEMETERIES. 115 and making such orders as may be found necessary for the appli- cation of the moneys arising from the sale of lots, and from taxes, or otherwise. [S. & S., p. 879, sec. 269.] Sec. 386. Vote and record thereof. In all joint meetings each member of the council and each of the trustees shall have one vote in determining all questions ; and the proceedings of all joint meetings shall be recorded by the corporation clerk. [S. & S., p. 879, sec. 269.] Sec 387. Public burial ground, etc., may be appropriated. In the establishment of cemeteries as herein provided, any city or incor- porated village and any township may make use of any public burial ground or cemetery ground which may be held by such city, incorporated village, or township, and may make use of any land which such city, incorporated village, or township may have acquired by dedication, gift, or devise for burial purposes. [S. & S., p. 881, sec. 275.] Sec. 388. Purchase of lands, improvements, etc. The council of any city or incorporated village, and the said trustees of any town- ship, may purchase of any cemetery association incorporated under existing laws, the lands, lots, and improvements of such cemetery 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. [S. & S., p. 881, sec. 275.] Sec 389. Eights and titles inviolate. The rights and titles of lot-owners, purchased prior to such sale and conveyance, 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. [S. & S., p. 880, sec. 274.] Sec 390. Adjoining townships may be admitted to participation, etc. Any township adjoining one in which a cemetery may be established by a municipal corporation and township, may, by consent of the trustees of such township and of the council of the corporation, be admitted to an equal participation with the inhab- itants thereof in the rights and privileges in said cemetery, and upon such terms as may be mutually agreed upon ; but the title and control of said cemetery shall continue vested in the corpora- tion as above provided. [S. & C, p. 1564, sec. 242.] Sec 391. Clerk shall record plat of grounds, etc. It shall be the 116 CEMETERIES. 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 pur- poses laid out in avenues, walks, paths, and lots, and he shall execute to the purchasers of lots such conveyance as may be nec- essary to carry into effect the contracts of sale ; and such convey- ance 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 corpo- ration. [S. & C, p. 1562, sec. 235.] Sec. 392. [As amended, May 3, 1873, 70 L. 274.] Tower of council over burial grounds, etc. The council of any city or incor- porated village owing a public burial ground or cemetery, whether within or without the corporation, shall have full power to pass all ordinances necessary to carry into effect the provisions herein con- tained, and to regulate such public burial grounds and cemeteries, the improvement of the same and the burial of the dead therein, to define the tenure and conditions on which lots therein shall be held ; to protect such burial grounds and cemeteries and all fix- tures thereon ; and to provide for the punishment of all violations of such ordinances. 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: Provided, that no such sale shall be made until the council shall have con- tracted for an equal or greater quantity of land suitable for burial purposes. [S. & C, p. 1563, sec. 237.] Sec. 393. Burials may be prohibited within corporate limits. The council may prohibit the interment of the dead within the corpo- ration 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 therein, to be taken up and buried without the limits of the corporation. [S. & C, p. 1499, sec. 23.] Sec. 394. Power limited as to villages. Incorporated villages shall not have the power to prohibit the interment of the dead in any cemetery in use at the time of the incorporation of such vil- lage, except in such portions thereof as may not now be used for such interment. [S. & S., p. 791, sec. 1.] Sec. 395. Bond may be required of disbursing trustee. The coun- cil shall have power, in their discretion, to require the trustee who may be authorized to receive and disburse the moneys arising from the sale of lots, or otherwise, to enter into a bond to the cor- poration, with sufficient sureties, conditioned for the faithful per- PUBLIC GROUNDS AND PARKS. 117 formance of his duty as such trustee, and to pay over all moneys by him received, which shall be filed in the office of the corpora- tion clerk. Sec. 396. Applicability to existing cemeteries. The provisions of this chapter relating to the establishment of cemeteries by mu- nicipal corporations and township trustees, shall govern cemeteries already so established, so far as the same may be applicable. CHAPTER XXVII. PUBLIC GROUNDS AND PARKS. Section Section 397. Appointment of park commissioners. 399. Their powers and duties. 398. To serve without compensation, etc. 4U0. Police jurisdiction over parks, etc. Sec. 397. Appointment of park- commissioners. Whenever the council of any city or incorporated village shall, by resolution, de- termine to lay out and improve any public grounds or park, it shall be the duty of the mayor to appoint, with the consent of the council, three resident freehold electors of the corporation as com- missioners for that purpose, one of whom shall be appointed to serve for one year, one for two years, and one for three years, and thereafter one commissioner annually to serve for three years. [S. & C, p. 1558, sees. 209-215, and p. 1559, sec. 216.] Sec. 398. To serve without compensation, etc. Said commission- ers shall constitute a board to be called the " Park Commissionei-s," and they shall serve without compensation, and in incorporated villages, whenever the council may deem expedient so to declare by resolution, one or more of the said commissioners may be ap- pointed from the members of such council. Sec. 399. 1 [As amended, April 18, 1870, 67 L. 76.] Officers of public grounds and parks. Said commissioners shall have power to appoint a superintendent and all other necessary employes, and fix their compensation, such compensation to he subject to the ap- proval of the council, and prescribe their duties, and generally they shall have the same powers and perform the same duties, so far as applicable, as are vested in and required to be performed by 1 This section differs from the section originally passed only in the insertion of the words in italics. 118 PUBLIC ITALLS. the trustees of cemeteries, as provided in chapter twenty-six. [S. & C, p. 1558, sec. 210.] Sec 400. Police jurisdiction over parks, etc. When such park or public grounds shall be situated without the limits of the city or incorporated village, the council shall have power, and may by or- dinance extend the police jurisdiction of the corporation owning such park or grounds, over the same, in the same manner and to the same extent as if situated within the limits of the corporation. [S. & C, p. 1549, sec. 183.] CHAPTEE XXVIII. PUBLIC HALLS. Section Section 401. Council may erect public halls. 403. Appointment of superintendent, etc. 402. Enlargement, etc., of public balls. 404. Council to have control of halls. Sec. 401. Councils may erect public halls. The council of any city or incorporated village shall have power to erect, enlarge, im- prove and complete any public hall, which shall be used for the public offices of the corporation, and such public and other pur- poses as the council may authorize. [S. & S., p, 783, sees. 1, 2, 8, and p. 887, sec. 300.] Sec 402. Enlargement, etc., of public halls. All the power herein conferred on any council, in relation to the erection, en- largement, improvement, and completion of any public hall, shall apply to, and be conferred on any council in the erection, enlarg- ing, improving, and completing any addition or additions to any public hall, now owned by the corporation, or which may be here- after erected. Sec 403. Appointment of superintendent, etc. For the complete execution of the powers in this chapter granted, the council shall have power to appoint a superintendent or architect, or both, and such other persons as may be deemed necessary, and to provide for the making of all necessary contracts, and prescribe rules and regu- lations for the government of all such employes. Sec 404. Council to have control of halls. Such hall, when com- pleted, shall be under the control of the council, and the council shall have the same power in relation to the preservation and repair thereof as in its original construction or improvement. DIVISION INTO WARDS. 119 CHAPTER XXIX. DIVISION INTO WARDS. Skction Section 405. Boundaries, etc., of wards to be estab- 408. Boundaries of wards by streets, alleys, lished by ordinance. etc. 406. Publication of notice of ordinance. 409. Election of representatives of new wards. 407. Wards in annexed territory. 410. Effect of change of wards on members of council. Sec. 405. Boundaries, etc., of wards to be established by ordinance. Whenever the corporate limits of any city or incorporated village shall hereafter be altered, extended or reduced, or the population thereof, or of any ward or wards thereof, has been or may be so increased or diminished as to render, in the opinion of the council, a division or redisricting of the corporation into wards, or a change in the boundary of any ward or wards necessary, the same may be done by ordinance at any regular meeting of the council. [S. & S., p. 891, sees. 313, 314.] Sec. 406. Publication of notice of ordinance. Upon such ordi- nance being introduced, the council shall, by resolution, require the clerk to give notice of the pendency of the same, and of the proposed change, increase or reduction of boundaries, in some newspaper published and of general circulation in the corporation, for the period of three consecutive weeks prior to any action being taken thereon. Sec 407. Wards in annexed territory. When terrritory is an- nexed to any corporation, or one corporation is annexed to another corporation, such territory or corporation so annexed may be or- ganized into a new ward or wards, or attached to any existing ward or wards, as the council may deem proper. Sec. 408. Boundaries of wards by streets, alleys, etc. All wards which may hereafter be established, and all changes in existing wards, shall be bounded by streets, alleys, avenues, public grounds, or corporation lines, and be composed of adjacent and compact ter- ritory ; and the several wards, at the time of redisricting, shall contain as nearly an equal number of inhabitants as may be prac- ticable. Sec. 409. Election of representatives of new wards. Whenever any change in the number of wards or alteration in the bounda- ries of any ward shall be made, or new wards shall be established, 120 STREET RAILROADS. there shall be no election for members of council or -ward officers until the next ensuing annual election for corporation officers. [S. & S., p. 891, sec. 313.] *Sec. 410. [As amended, April 1, 1871, 68 L. 53.] Election of members of council, and term of office. The members of councils of cities shall be elected, one in each ivard, one in each alternate year, ex- cept in case of vacancy or the creation of new wards; and when at the first election in a new ward two members are to be elected, the mayor in his proclamation shall require, and the electors shall vote for one mem- ber for one year -and for one member for two years, designating the term on their ballots. Nothing in this chapter shall be construed to limit or abridge the term of office of any member of the council. [3. & S., p. 891, sec. 314.] CHAPTEE XXX. STREET RAILROADS. Section Section 411. Street railroads authorized by ordinance. 413. Grade of streets where railroads are 412. Notice of application for ordinance to be constructed. published. 414. Pavement of streets where railroads are constructed. Sec. 411. Street railroads authorized by ordinance. The council, on the written application of any corporation, individual or indi- viduals, desiring to construct any street railroad, in any city or in- corporated village, before the work of constructing such road be commenced, shall, by ordinance, grant permission therefor, and prescribe the terms and condition upon, and the manner in which such road shall be constructed and operated, and the streets and * Sec. 410. [As originally passed.] Effect of change of wards on members of council. Nothing in this chapter contained shall be construed to limit or abridge the term of office of any member of the council ; ami whatever it shall so happen that by reason of the alteration of any boundary of any wardor wards, or change in the number of the wards, the number or numbers of the ward in which any member or members may reside shall be changed, he or they shall be deemed and taken to represent thai ward in which he or tliey may, after such change, reside during the remainder of his or their term of office. Sec. 410. [As amended, April 18, 1870,07 L. 77.] Term of office of members of office. Nothing in this chapter contained shall be construed to limit or abridge the term of office of any member of the council. STREET RAILROADS. 121 avenues which shall be used and occupied therefor. 1 [S. & S., p. 137, sec. 105.] 1 Section 5 of the act of April 10, 1861 (58 L. 66), which provides "that here- after no street railroad shall be constructed or commenced until the consent of the city council or corporate authorities of the city, town, or village wherein such road is to be constructed, shall have been first obtained; and it shall be competent for the city council or corporate authorities of any city, town, or vil- lage, to agree with any street railroad company organized in pursuance of this act, or with any individual or company of individuals desiring to construct a street railroad in such city, town, or village, upon the manner and upon the terms and conditions upon which such corporation, individual, or company of individuals, shall construct and operate a street railroad in such city, town, or village; provided," etc. (relating to certain cities of the first class), does not apply to incorporated villages for special purposes, but these are governed by section 7. Where a street railroad company agreed with a turnpike company upon the terms and conditions on whicn their track could be laid on the turn- pike, they complied with this law. The Cincinnati and Spring Grove Avenue Street liailway Co. v. The Incorporated Village of Cumminsville et al., 14 Ohio St. 523. The legislature may authorize the use of the streets or highways in any manner calculated to further the general objects of the acquisition, but not to purposes which exclude the original uses, and a street railroad does further such general objects, provided the private rights of the adjoining proprietors are not infringed upon. Ibid. 523, 544. When the public authorities or a turnpike company have established the grade of and improved the road, and the lot owners have conformed their im- provements thereto, the authorities or company could legally make no change which destroyed or impaired access to their buildings, without making full com- pensation for the injury; and they can confer no greater rights on the street railroad than they have themselves. Ibid. 523, 549. If such injury will result from laying the track on the side of the street, it is an infringement of private rights, though it be found by the court that when the interests of the company and of the general public are taken into the ac- count, the location would be as little injurious as in any other part of the high- way; Ibid. 524. 550. A city council which has control of the streets is the judge of what is most beneficial to the public, and may authorize their use for purposes not incom- patible with the public use of the street, as for a railroad, if no private rights are interfered with. Sargent v. O. & M. K. E. Co., 1 Handy, 52. Such an obstruction of the streets, so authorized, is not a nuisance. Ibid. The council has no power to grant to a street railroad company the exclusive use for street railroad purposes of a street occupied by it. Smith v. Cincinnati, Superior Court of Cincinnati, 3IS., General Term, January, 1874. An ordinance, containing, among other provisions for the construction and operation of street railroad companies, a provision that future companies shall pay a higher rate of car license than existing companies, that future companies shall 122 STREET RAILROADS. Sec. 412. 1 [As amended, April 18, 1870, 67 L. 77.] Relative to street railroads. No ordinance for such purpose shall be passed until public notice of the application tbercfor has been given by the clerk of the corporation, in one or more of the daily papers, 1 This section differs from the section as originally passed only in the addi- tion of the words in italics. keep the streets over which they pass in repair, while releasing existing com- panies from such requirement, and that "not more than one line of street rail- road shall he granted upon the same street without the consent of the existing companies," creates prima facie a monopoly in the existing companies, attempts to bargain away and restrict the legislative powers and duties of the common council, and to give the existing companies the exclusive right to the streets now occupied by them, for street railroad purposes. Ibid. A general ordinance providing for the construction and operation of street railways within the city limits, which provides that on the acceptance by the existing companies of the terms of the ordinance, " it shall thereupon be oper- ative and binding as a contract between the city and the company so accepting the same/' and that street railroads "shall be guided, governed, and regulated by the following conditions, and such lawful and reasonable restrictions as council, may hereafter pass," does not reserve to council the right to abridge or destroy any of the contract rights of the company, but only to make and enforce rea- sonable police regulations as to the operation or construction of the route. Ibid. In the enactment of a general street railway ordinance, the council should specify what portions thereof are to be deemed contract stipulations, and what are mere legislative provisions, and where this is not done, and illegal con- tract stipulations are found mingled with the regulative portions of the ordi- nance, the city and the companies maybe enjoined from carrying such ordinance into effect. Ibid. The purchaser of a street railroad franchise takes the same cum onere, and oc- cupies the same position, has the same rights, and is subject to the same restrictions and liabilities as the original grantee; and the taking of higher rates of fare by such purchaser than were authorized in the original grant, may be restrained by injunction by the proper party. It is not necessary to resort to mandamus, or quo warranto for redress, if the offending party be a corporation. Cincinnati v. Cincinnati Consolidated Street K. K. Co., Superior Court of Cincinnati, General Term, January, 187o, MS. Under the laws of the state, and the ordinances of the city passed in pur- suance thereof, we think the city had the right, power, and authority to make the contract in question (providing for the construction and operation of Street Railway Route No. 9), and that all the terms thereof are binding upon the de- fendant, the purchaser, who stands here in place of the original grantee. Ibid. The city is the trustee of the public as to a street railroad constructed and operated under a contract with it, and may maintain an action to enforce such contract, and restrain the taking of illegal fares, as well as any or all the mem- bers of such public could. The statute intrusted the city with the making of STREET RAILROADS. 123: if there be such, and if not, then in one or more of the weekly- papers published in the corporation, for the period of at least three consecutive weeks; and no such grant shall be given except to tho corporation, individual or individuals that will agree to carry pas- sengers upon such proposed railroad at the lowest rates of fare, and shall have previously obtained the written consent of a majority of the property -holders on the line of the proposed street railroad repre- the grant and the contract, and the settlement of their terms and conditions, and we think the 27th section of the code of civil procedure applies to the case, and gives the city the right to sue. Ibid. Under section 12 of the general railroad act of 1852, a municipal corpora- tion, in agreeing with a railroad company on the terms and conditions on which said company may occupy the public grounds, may demand and receive- compensation for the injury to the general public use resulting from such occu- pation. The City of Cincinnati v. The Pendleton and Fifth Street Market Space Passenger K. K. Co., No. 575, Superior Court of Cincinnati, General Term, Hoadly, Storer, and Coffin, JJ.; Hoadly, J., delivering the opinion of the court. Such compensation may be fixed by agreement, and made to depend on the amount of business transacted by the company, as by a payment of one cent for each passenger carried. Ibid. "Where street railroad companies and the city council of a city, under section 12 of the general corporation act of 1852, entered into a contract to sell tickets in packages of twenty-five for a dollar, and also to abide by and perform the provisions of a certain specified ordinance, and of all the resolutions and ordi- nances thereafter passed by the city council on the subject: Held, that such contracts were valid under said section, and that the stipu- lation as to the sale of twenty-five tickets for one dollar was one which the- city had a right to make, under the power therein contained to agree " upon the manner and upon the terms and conditions upon which" the streets could be occupied. That were it not so, the companies having been reorganized under the street railroad act of 1861, and having obtained from the city council several modifi- cations of the contracts and enjoyed the benefits thereof, had ratified and con- firmed them, and could not now be permitted to repudiate them. Under the power to pass subsequent ordinances, the council could require the tickets to be kept for sale on tho cars. Under the revenue acts of Congress, the companies were bound to sell these- packages of twenty-five for one dollar and three cents. The city had a right to have the performance of the contract enforced by a decree for specific performance, and also to a provisional injunction. The City of Cincinnati v. The Street Railroad Companies, Superior Court of Cincinnati, Opinion of Taft, J., at Chambers ; Storer and Fox, JJ., assisting and concur- ring. This decision has been affirmed at General Term, and the case is now in the Supreme Court. But the city has no right to enforce compliance with the terms of the con- 12-4 STREET RAILROADS. sented by the feet front of lots abutting on the street along which such road is proposed to be constructed. 1 [S. & S., p. 137, sec. 106.] Sec. 413. Grade of streets where railroads are constructed. Before any street railroad shall be constructed on any street of less width than sixty-seven feet, with a roadway of forty feet or under, the council shall provide that the crown of the street shall he 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 now adopted in the cities of Philadelphia and New York. [S. & S., p! 139, sec. 114.] Sec. 414. Pavement of streets where railroads are constructed. The council shall have power to require any part or all of the track between the rails of any street railroad, constructed within the corporate limits, to be paved with gravel, boulders, or the Nicholson wooden pavement, as may be deemed proper ; but with- out the corporate limits, paving between the rails with boulders or the Nicholson wooden pavement, shall not be required. tract by the police, or order the track torn up or the running of the cars stop- ped, if it thinks the company is violating thein. The stipulations are in the nature of a contract, and the city must resort to the courts like any other party, if it desires to enforce them. If it threatens to use the police, it will be re- strained by injunction. The Cincinnati Street E. E. Co. v. The City of Cin- cinnati, Hamilton District Court. Upon an application for an injunction to prevent the laying a street railroad track in the street upon which the plaintiff's lot fronts, although it is necessary that the consent of a majority of the property-holders on the street should be obtained, yet it will not be presumed that the city council acted without such consent, if its proceedings purport to be predicated upon it. Cincinnati College v. Nesmith, 2 Superior Court Eeporter, 21. 1 Under a statute which provided that: "Sec. 15. That the said city council shall not hereafter permit to be constructed, in either of the streets or avenues of the said city, a street railroad for the transportation of passengers, without the consent of a majority in interest of the owners of property upon the Btreet or avenue in which such railroad is to be constructed being first had and obtained; " such consent is a prerequisite to the power of council to grant such permission, and the action of the council in granting such permission is not conclusive, against the property-owners on the street, of the fact that the requisite majority have given their consent to the construction of the railroad proposed. Eoberts v. Easton, 19 Ohio St. 78. Consent to the laying of a single track can not be counted as consent to the laying of a double track. Ibid. "When a grant has been made without the consent of the owners of prop- erty, they may enjoin the construction of the road. Ibid. GAS COMPANIES. 125 CHAPTER XXXI. GAS COMPANIES. Section Section 415. Councils may regulate price of gas. etc. 421. Gas-measurers may be appointed. 41G. Minimum not to be reduced during term 422. Exclusive monopoly shall not be allowed agreed upon. to gas companies, etc. 417. When council may occupy streets for gas 423. Council may erect or purchase gas- purposes, etc. works. 418. Gas companies may be permitted to oc- 424. Trustees of gas-works. cupy streets. 425. To be elected at annual election. 419. Forfeiture of charter for neglect to fur- 426. Powers of board of trustees. nish gas, etc. 427. Laying of gas-pipes, and expense 420. A temporary failure shall work no for- thereof. feiture. Sec. 415. Councils may regulate price of gas, etc. The council of any city or incorporated village, in which gas companies or gas- light and coke companies may be established, are hereby empow- ered to regulate, from time to time, the price which such gas or gas- light and coke companies may charge for gas furnished by such companies to the citizens, public grounds and buildings, streets, lanes, alleys, avenues, wharves, and landing-places; and said gas- light or gaslight and coke companies shall, in no event, charge more for any gas furnished to such corporation or individuals than the price specified by ordinance of such council; and such council shall also have power to regulate and fix the price which such com- panies may charge for the rent of their meters. [S. & C, p. 1534, sec. 129.] Sec 416. Minimum not to be reduced during term agreed upon. In case the council fix the minimum price at which they shall require any company to furnish gas to the citizens or public buildings, or for the purpose of lighting the streets, alleys, avenues, wharves, landing-places, and public grounds, for a period not exceeding ten years, and the company assents thereto by written acceptance filed in the office of the clerk of the corporation, it shall not be lawful for the council to require said company to furnish gas at a less price during the period of time agreed on, not exceeding ten years, as aforesaid. [S. & C, p. 1537, sec. 142.] Sec 417. When council may occupy sheets for gas purposes, etc. If such companies shall at any time be required by the council to lay pipes and light any street, alley, avenue, wharf, landing-place, public ground, or building, and shall refuse or neglect for six 12G GAS COMPANIES. months after being notified by authority of the council to comply with such requirement, the council may lay pipes and erect gas- works for the lighting of said streets, alleys, or public grounds, and all other streets, alleys, and public grounds not already lighted ; and said gas companies, or gaslight 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 companies, and the council may open any street for the purpose of conveying gas as aforesaid. [S. & C, p. 1534, sec. 130] Sec. 418. Gas companies may be permitted to occupy streets. The council may at any time after the default mentioned in the pre- ceding section, permit such gas companies to use and occup3 r the streets, alleys, and public grounds of such corporation for the pur- pose of lighting the same, and furnishing gas to the citizens and public buildings. [S. & C, p. 1538, sec. 143.] Sec. 419. Forfeiture of charter for neglect to furnish gas, etc. A neglect to furnish gas to the citizens and other consumers 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 or persons to erect gas-works for the supply of gas to such corporation and its citizens; provided, that nothing in this section, or in sections 416 and 417, shall operate to impair or affect any contract heretofore made between any municipal corporation and any gaslight and coke company. [S. & C, p. 1535, sec. 131.] Sec 420. A temporary failure shall work no forfeiture. A tem- porary failure to furnish gas shall not operate as a forfeiture unless such failure shall be through the neglect or misconduct of such gaslight or gaslight and coke company. [S. & C, p. 1538, sec. 144.] Sec 421. Gas-measurers may be appointed. The council of any corporation in whieh gas-works may be constructed, may provide by ordinance for the appointment of one or more gas- measurers, whose duty it shall be to inspect all gas-meters and certify the cor- rectness of all bills made against the consumers of gas, and per- form such other duties as may be prescribed by ordinance. [S. & C, p. 1535, sec. 132.] Sec 422. Exclusive monopoly shall not be allowed to gas companies, etc. It shall not be lawful for any council to agree by ordinance, contract, or otherwise, with any person or persons, for the con- GAS COMPANIES. 127 struction or extension of gas-works for manufacturing or supplying the corporation or its inhabitants with gas, which shall give or Continue to any person or persons making such agreement with the council, the exclusive privilege of using the streets, lanes, com- mons, or alleys, for the purpose 1 of conveying gas to the corpora- tion or the citizens thereof, or which shall deprive the council of the right to designate 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 x The city council of Cincinnati could not, without clear legislative author- ity, grant to any person or corporation an exclusive right to use the streets and alleys of the city for the purpose of laying down pipes for conveying gas to be used in lighting the city, for a term of twenty-five years, and thereafter until the gas-works, pipes, fixtures, etc., of the grantee should be purchased by the city. To enable the city council to grant such an exclusive right by ordinance, in the nature of a contract, the power must be shown to have been expressly granted, or to be so far necessary to the proper execution of the powers which are expressly granted, as to make its existence free from doubt. No such grant of power to the city council is to be found, either in the city charter of March 1, 1834 (32 O. L. L. 244), or in the third section of the amendatory act of March 1G, 1839 (37 O. L. L. 297). The right to such use of the public streets is a franchise, and must emanate, either directly or indi- rectly, from the legislature. The State of Ohio ex rel. the Attorney-General v. The Cincinnati Gaslight and Coke Co., 18 Ohio St. 262. The use of the streets for such purposes for twenty years does not bar an inquiry into the right of their exclusive use. Ibid. A previous judgment in favor of the defendant, upon information in the nature of a quo warranto, filed by the prosecuting attorney of Hamilton county, upon an individual relation, is not a bar to a subsequent information of a similar character, filed by the attorney-general in the exercise of the dis- cretion given him by statute. Ibid. Sections 30, 31, and 32 of the act of March 11, 1853 (S. & C. 1534), and the supplementary act of April 5, 1854 (S. & C. 1537), which authorize city coun- cils to fix the price to be charged for gas, operate as amendments to the defend- ants' charter. Ibid. An injunction against the city of Cincinnati's enforcement of such an ordi- nance will not prevent proceedings by the state in quo warranto for disobedi- ence thereof. Ibid. The act of 1854 did not so modify the acts of 1853 as to require the consent of the defendant to enable council to fix the price. The only effect of the con- sent was to change a repealable ordinance into a contract. Ibid. The good faith of the members of council in the passage of the ordinance may be inquired into. Ibid. [The laws construed in this case, except the provisions in the original char- ter, are re-enacted almost verbatim in this and the two following sections of the Code.] 128 GAS COMPANIES. specify the exact quality of the gas 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 appur- tenances belonging thereto, at any time within the existence of such contract or agreement. [S. & S., p. 902, sec. 347.] Sec. 423. Council may erect or purchase gas-works. The council of any city or incorporated village shall have power, whenever it may be deemed expedient and for the public good, to erect gas- works at the expense of the corporation, or to purchase any gas- works already erected therein. [S. & C, p. 1534, sec. 130 ; S. & S., p. 902, sec. 348.] Sec. 424. Trustees of gas-works. When such purchase shall have been made, said council shall appoint a board of five trustees, who shall manage the said gas-works and supply said corporation and the citizens thereof with gas, until their successors shall be elected and qualified, as hereinafter provided. [S. & S., p. 903, sec. 349.] Sec. 425. To be elected at annual election. At the annual election occurring next after such purchase, the qualified voters of the cor- poration shall elect a board of five trustees, to be known as the Trustees of Gas-works, who shall hold their office for the term of five years, except that at the first election one trustee shall be chosen for one year, one for two years, one for three years, one for four years, and one for five years ; and thereafter one trustee shall be elected annually ; and said trustees shall not receive any com- pensation for their services. [S. & S., p. 903, sec. 350.] Sec. 426. Powers of board of trustees. The said board shall have power to construct gas-works, extend gas-pipes, manufacture and sell gas and coke, collect gas-bills and other moneys due for gas, coke, or other material sold by them, and disburse the same ; to manage, conduct and control said gas-works ; to prescribe by by-laws the price of gas and coke, under such rules and regula- tions as, by ordinance, the council may pi-escribe, and the manner of using gas; and to carry into effect the provisions of this section, shall also have power to purchase material, employ laborers, ap- point officers, purchase or lease the necessary real estate, and erect buildings thereon ; and they shall be required to report to the council as often as said council may deem proper. [S. & S., p. 903, sec. 351.] Sec. 427. Laying of gas-pipe, and expense thereof. The council may prescribe, by ordinance, for the laying down of gas-pipes in. LIGHTING BRIDGES AND RAILWAYS. 129 all highways about to be paved, macadamized, or otherwise per- manently improved, and for the assessment of the cost and ex- pense thereof upon the lots or parcels of land adjoining or abut- ting 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. [S. & S., p. 858, sec. 194, and p. 862, sec. 209.] CHAPTEE XXXII. LIGHTING BRIDGES AND RAILWAYS. Section Section 428. Council may provide for lighting bridges. 4:J2. When council may cause lighting to be 429. Ordinance for that purpose. done. 430. Character of the ordinance. 433. Expense to be a lien upon bridge. 431. Notice of requirement to light bridge to 434. How lien may be enforced. be given. Sec. 428. [As amended, March 23, 1872, 69 L. 47.] Council may provide for lighting bridges. The council of any city or incor- porated village may provide for lighting any bridge or railway, or any portion of such bridge or railway located in whole or in part in such corporation, owned, possessed, or operated by any in- dividual company, association or corporation. [S. & S., p. 1502, sec, 26; S. & S., p. 890, sec. 310.] Sec. 429. [As amended, March 23, 1872, 69 L. 47.] Ordinance for that purpose. "Whenever it shall be deemed necessary by the council of any city or incorporated village to have such bridge or railway lighted, the council shall pass an ordinance for that pur- pose, requiring the individual company, association, or corporation owning, possessing, or operating the same, to light such bridge or railway within a specified time. [S. & S., p. 890, sec. 311 ; S. & C, p. 1502, sec. 26.] Sec. 430. Character of the ordinance. The ordinance shall spe- cify the manner in which such bridge or railway shall be lighted, and the number and style of lamp-posts and lights and fixtures, and the time such lights shall be kept burning in each twenty-four hours. [S. & C, p. 1502, sec. 26; S. & S., p. 890, sees. 310, 311. 9 130 LIGHTING BRIDGES AND RAILWAYS. Sec. 431. Notice of requirement to light bridge to be given. Notice of such requirement to light any bridge or railway, shall be given at least twenty days before any penalty or charge shall be imposed for default, Such notice may be given by delivering to any owner, or part owner, or any person having possession, charge, or man- agement of such bridge or railway, a written or printed copy of the ordinance. [S. & S., p. 890, sees. 310, 311.] Sec. 432. [As amended, March 23, 1872, 69 L. 47.] When coun- cil may cause lighting to be done. Should such person or persons, ■company or corporation, owning, possessing, or operating such railway or bridge, neglect, or fail to do such lighting in comfbrmity with the provisions of such ordinance for twenty days after notice as aforesaid, the council may immediately proceed to cause such lighting to be done at the expense of such person or persons, com- pany or corporation. [S. & C, p. 1502, sec. 26 ; S. & S., p. 890, sees. 310, 311.] Sec. 433. [As amended, March 23, 1872, 69 L. 47.] Expense to be a lien upon bridge. The council may direct the manner in which the expense of such lighting shall be assessed and collected, and when assessed, the amount shall be a debt due against and payable by such person, persons, company or corporation, and shall be a lien 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 incorporated village is located. [S. & C, p. 1502, sec. 26; S. & S., p. 890, sees. 310, 311.] Sec. 434. How lien may be enforced. Such charge may be col- lected or the lien enforced, in the manner pointed out in the chap- ter providing for the assessment of damages and expenses for mak- ing public improvements. [S. & C. 1502, sec. 26 ; S. ,& S., p. 890, Bees. 310, 311.] SPRINKLING STREETS. 131 CHAPTEE XXXIII. SPRINKLING STREETS. Section Section 435. When council may order sprinkling of 437. Assessment a lien on lands charged. streets. 438. Expense of collecting to be added to as- 43G. Assessment for expense of sprinkling. sessment. Sec. 435. [As amended, May 18, 1870, 67 L. 77, and April 15, 1874, 71 L. 71.] When council may order sprinkling of* streets. On the written petition of the owners of more than two-thirds of the feet front, on any street or part thereof, the council of any city of the second class or incorporated village, may, after complying with sections five hundred and sixty -three to five hundred and seventy- five of this act, inclusive, when the same is applicable by ordinance, provide for the improvement of such street or part thereof, in the mode set forth in said petition: Provided, such improvement does not involve the condemnation and appropriation of real estate. "When such ordinance is enacted, said council may designate two of the petitioners, w T ho, with the corporation engineer, shall con- stitute a board, and after said improvement shall have been con- tracted for by said council, according to the provisions of this act, said board shall supervise and control the execution thereof, and all orders, reports, certificates or other acts now required of said engineer, or made during the progress of said work, shall be con- curred in by a majority of said board ; said two petitioners selected by said council shall act without compensation. On a like petition of the owners of more than two-thirds of the feet front on any street or part thereof, said council may provide by ordinance for keeping in repair any street or part thereof, which has been or may bo improved under this section or any other of the provisions of this act; also, for planting and taking care of shade-trees, and also for sprinkling Avith water such streets or parts thereof. One or more of said objects may be embraced in one petition or ordinance, and may also be included in the petition and ordinance for the improvement of such streets or part thereof. And said council may, in such ordinance, designate two of the petitioners, who, with the corporation engineer, shall constitute a board, under whose supervision and direction the keeping in repair of such streets or part thereof, planting and taking care of shade- 132 SPRINKLING STREETS. trees and sprinkling of said street or part thereof shall be done. And said board, in carrying out the purpose of said ordinance, may make such contract or contracts as they may deem best; but no- contract shall be made for a longer time than one year, wliich said two petitioners selected by said council shall act without compen- sation : Provided, that on the written petition-of the owners of not less than two-thirds of the feet front of the land fronting on any street, or any specified part thereof, the council of any city of the first class may order such street or specified part thereof to be sprinkled with water at such time or times as the council may deem proper, and such sprinkling may be done by contract in each case, or for the entire city, or specified part thereof, or may be performed by the city in connection with the street cleaning de- partment. Sec. 436. [As amended, April 15, 1874, 71 L. 71.] Assessment for expense of sprinkling. The boards provided for in section four hundred and thirty-five, shall make an estimate of the expense to be incurred in making any improvement or repair, or performing any work they are selected to supervise, or of so much as may be necessary in any one year, in which said repairs or improvement or work^may be in progress, and report the same to said council, who shall charge the same on the lands or lots abutting on said street or part thereof, either according to the valuation of such lands or lots as listed for taxation, or by the foot front, which charge may be made by one or more assessments, and the payment of such assessments, with interest, may be enforced by suit in the name of the corporation against the owners of such lands or lots, or if not paid, they may be certified to the county auditor, and by him placed on the county duplicate, and collected as other taxes are or may be. The amount thus collected, shall be a separate fund for the exclusive use for which it was assessed, and shall be paid out on the warrant of the city clerk on the treasury, upon the approval of a majority of said board. The word " street " whenever used in this and the preceding section, shall be deemed and held to include alleys : Provided, that to pay the expense of sprinkling in cities of the first class, the council may make assessments on the lands abutting on such street or specified part thereof, either on the valuation thereof, as listed for taxation, or by the foot front, and such assessment may be enforced by suit against the owner or occu- pant of such lands or part thereof, or certified to the county audi- tor, and by him placed on the county duplicate, and collected by CONTROL OF STREETS, BRIDGES, AND VEHICLES. 133 the county treasurer, as other taxes are or may be collected : Pro- vided, that this section shall not apply for sprinkling purposes to premises held and used by any religious society exclusively as a place of public worship, unless such society shall have joined in the petition for such sprinkling. Sec. 437. Assessment a lien on lands charged. All such assess- ments shall be a lien on the lands charged, from the time the coun- cil determine the amount assessed against each parcel of land. |S. & S. p. 903, sec. 552.] 1 Sec 438. Expenses of collecting to be added to assessment. In placing such assessment on the duplicate, the county auditor is iiuthorized and required to add to each assessment such additional per centum as he may deem necessary to defray the expenses of collecting the same. CHAPTEE XXXIV. CONTROL OF STREETS, BRIDGES, AND VEHICLES. 1 Section Section 439. Council to have control of streets, public 441. Council may prescribe width of tires', grounds, etc. fix rates of transportation, etc. 440. Acceptance of dedication of streets by council. Sec. 439. Council to have control of streets, public grounds, etc. The council shall have the care, supervision, and control of all public highways, bridges, streets; avenues, alleys, sidewalks, and public grounds within the corporation, and shall cause the same to "be kept open and in repair, and free from nuisance. 2 [S. & C, p. 1514, sec. 63.] 1 See note at end of chapter. 2 A company owning a railroad crossing a highway, is under no obligation to remove from the highway obstructions placed there by a stranger, the material not being the property of the company, nor under their control, although the existence of the obstructions is brought to the notice of the company's agents. P. Ft. W. & C. E. Co. v. Maurer, 21 Ohio St. 421 . In a suit against nearly two hundred defendants, for the purpose of establish- ing the boundaries of a street, which it was alleged had been lost by lapse of time, the destruction of landmarks and other causes : Held, upon demurrer to 134 CONTROL OF STREETS — DEDICATION. Sec. 440. Acceptance of dedication of streets by council. No street or alley which has been or may be dedicated to public use by the proprietor of ground in any corporation, shall be deemed a public street or alley, or to be under the care or control of the council, unless the dedication shall be accepted and confirmed by the petition, that "the relief asked here was the determination of the width of the street through the whole of two miles. The strip of land two miles long, sixty feet wide is a unit. . . . Hence, every defendant has a common inter- est in every part of the relief asked for." Also, that the bill would lie to pre- vent a multiplicity of suits. Cincinnati v. Morris, Hamilton District Court, MS. 1874. The plaintiffs brought suit against Kyan & Co., contractors, Long and Fiedeldey, their sureties, and the city of Cincinnati for injuries to horses, wagon, and harness, through the want of a proper guard for an excavation for a sewer. Held, that the sureties were improperly joined, and that the plaintiffs must elect between the contractors and the city, which party they intend to pursue. Seelen v. Evan, 2 Superior Court Eeporter, 158. "Where territory, including a public road connecting with the streets of a city, is annexed to the city, and the road continues to be used as a street or thoroughfare, it thereby becomes a "public highway" of the city within the meaning of sectton 439 of the municipal code, although it has never been " ac- cepted and confirmed by an ordinance specially passed for such purpose, as pro- vided in section 440. Steubenville v. King, 23 Ohio St. 610. A conveyance of land to the county commissioners for a county road, the ac- ceptance of such grant by the commissioners, the opening of the road by their order, and its subsequent use as such by the public, and by the proper author- ities, constitute it a legal public highway, notwithstanding the want of statutory proceedings for its establishment. Ibid. The owner of land who allows the construction and use of a public canal through his lands, although claiming damages therefor from the beginning, will, after such occupation and use for a period of years, be deemed to have origi- nally consented to the dedication to such use, and be estopped from enforcing his claim to the possession of the land so used as such public highway. If the owner's intention clearly appears, the use of the way for comparatively a few years, is sufficient to establish the right of the public. Pierson v. C. & W» Canal Co., 2 Disney, 100. Under the statute of January 27, 1853 (S. & C. 1293), authorizing a review and survey of roads where the place of beginning or course of the road is un- certain, no power is given so to change the road as to include private lands not before constituting part of the road. Beckwith v. Beckwith, 22 Ohio St. 180. As against the owner of such lands, the record of the review and survey of the road is only prima facie evidence of the correctness of the survey, and may be rebutted by the evidence showing that it exceeds the limits of the old road and includes his private lands ; and evidence of the long-continued user of the road, within lines which exclude the land in controversy, is competent for that purpose. Ibid. DEDICATION. 135 an ordinance specially passed for such purpose. 1 [S. & C, p. 1514 r sec. 63.] Sec 441. Council may prescribe width of tires, fix rates of trans- portation, etc. The council shall have power to prescribe the width of the tires of all wagons, carts, draj^s, and other vehicles used in the transportation of persons from one part of the corporation to another, or in the transportation of coal, wood, stone, lumber, or iron, or other articles in the corporation; to establish stands for hackney-coaches, cabs, omnibuses, and enforce the observance and use thereof, and to fix the rates and prices for the transportation of persons and property in such coaches and other vehicles, from one part of the corporation to another. [S. & C, p. 1514, sec. 63.1 1 Section 63 of the municipal coporation act, which contained a provision differing only verbally from this (S. & C. 1514), is not intended as a limitation upon the general powers of the corporation for opening and improving streets, but as a restriction to prevent proprietors, who may lay out ground into lots within the limits of the corporation, from vesting in the corporation the title to streets and alleys, and thus charging the corporation, without its consent, with the duty of keeping them open and in repair. Wisby v. Bonte, 19 Ohio St. 238. When the city council, in an ordinance, recognize the street by name, and ordered its improvement as a public way, and the improvement was made these acts necessarily constituted an acceptance or adoption of the street by the city, and the right of the city to its care, supervision and control is not impaired by the section referred to. Ibid. 238, 247. County commissioners have power to establish county roads, though one or both of the termini are within a municipal corporation, unless the charter of the corporation expressly limits the power of the commissioners within its limits. Wells v. McLaughlin, 17 Ohio, 99; Butman v. Fowler, 17 Ohio, 101. WHO CAN DEDICATE LAND. A dedication, by the equitable owners of a town, of a parcel of ground for public uses, is valid, and their trustee, holding but a naked legal title, is bound to respect such dedication. Williams v. First Presbyterian Church, 1 Ohio- St. 478. A wife can not claim dower in land which her husband during her lifetime dedicated to public use. Gwynne v. Cincinnati, 3 Ohio, 24. TO WHOM IT CAN BE DEDICATED. Luch a dedication can be made, although there is no grantee in esse at the time capable of taking the fee. Williams v. The First Presbyterian Church, 1 Ohio St. 478, 509; Le Clercq v. Gallipolis, 7 Ohio, part 1, p. 218; Brown v. Manning, 6 Ohio, 298; Lessee of Bryant v. McCandless, 7 Ohio, part 2, p. 135. Land can be dedicated only to a strictly public use. It can not be dedicated for a railroad depot where the direct beneficiary is a private corporation. The 136 DEDICATION. public must be tbe direct beneficiary. Todd v. Pittsburg, Ft. Wayne and Chicago It. It. Co., 19 Ohio St. 514. HOW IT MAY BE DEDICATED. Before the statute required town-plats to be recorded, a valid dedication could be made by plat without record. Williams v. The First Presbyterian Church, 1 Ohio St. 478. When an agent has recorded a town-plat, and the principal has recognized it by referring to it in his deeds and describing land by reference to it, it is a valid dedication, and neither parol evidence of declarations of the donor nor pre- sumed intentions can be received to direct it to a different purpose. Brown v. Manning, 6 Ohio, 298. When lots are marked on a plat for "public uses," and the county authorities occupy them for some years for a court-house and jail, and then lease them out to private individuals, reserving rent to the county, and a jury find in 'a special verdict that the occupancy by the county authorities was with the consent and approbation of the inhabitants of the town, and in strict accordance with the objects had in view by the original donors, the town has no such interest in the lots as will enable them to sustain ejectment against the commissioners, though the jury find that in appropriating the property to private use the object to the original grant was departed from. Lessee of Cincinnati v. Comm'rs of Hamil- ton Co., 7 Ohio, part 1, p. 88. No particular words or ceremonies or forms of conveyance are necessary to render the act of dedicating land to public uses effectual. Anything which fully demonstrates the intention of the donor or (and) the acceptance by the public works the effect. Le Clercq v. Gallipolis, 7 Ohio, part 1, p. 218. Property marked on a town-plat as public ground will be presumed, in the absence of explanatory evidence, to be a public square for the use of the town. Lebanon v. Comm'rs of Warren Co., 9 Ohio, 80. When the words of dedication are ambiguous, contemporaneous acts and declarations of the donors may be admitted to explain them; but a deed to the commissioners, made six years after the recording of the plat, and subscriptions made for the erection of a court-house two years after, but not paid until six years after, such record, and the erection of a court-house at the same time, are too long after the grant to explain its meaning. Ibid. The occupation of lots by a court-house and jail is not inconsistent with the use of the property being in the town. Ibid. The town can enjoin the commissioners from leasing the lands under such circumstances. Ibid. When a road has been laid out and used for many years, it is not necessary that every preliminary step directed to be taken in establishing it should be proven by existing papers or records. Arnold v. Flattery, 5 Ohio, 271. "W 'hen a street parallel to a river is contained between two parallel lines, and the woid- written on it, "width, 66 feet," the plat negatives an intention at that time to dedicate the ground between the lower line of the street and the river to the public. McLaughlin v. Stevens, 18 Ohio, 94. The recording of a plat not executed and acknowledged in accordance with the statute is not authorized, and consequently such record is not per se evi- DEDICATION. 137 dence. Nor is it made evidence by proof that some persons regarded it in building and some did not. Satchell v. Doram, 4 Ohio St. 542. Proof of an alley provided for the use of the adjoining proprietors is not proof of a public alley. Ibid. A deed calling for an alley at a distance of seventy feet, more or less, from a street, does not estop the grantee from denying the existence of an alley sixty feet from the street. Ibid. A dedication of ground for public uses may be made in Ohio either under the statute or according to the rules of the common law. Fulton v. Mekrenfeld, 8 Ohio St. 440. "When a valid dedication of a street has been made in either form, an action may bo maintained by the proper municipal corporation to recover the posses- sion from one who wrongfully withholds it. Ibid. A statutory dedication, under the statute of February 14, 1805 (22 L. 301), •operated to transfer the estate by way of grant, requiring no assent on the part of the public, and to be effective as a statutory dedication, the forms required by the statute, as to acknowledgment and recording, must be complied with. Ibid. To constitute a valid dedication at common law, there must be not only an intention to dedicate, and an actual dedication to public uses by the owner, but also an acceptance of such dedication by the public. All these may be shown by the acts of the parties and the surrounding circumstances. Ibid. A defective dedication, under the statute, is evidence as an act in pais of a dedication at common law by the owner. Ibid. The public may accept a portion of a street dedicated at common law, with- out the whole. As to each portion, the question of an acceptance is a question of fact, to be determined from the surrounding circumstances. Ibid. [This case in the court below will be found in 1 Disney, 151.] Mere silent acquiescence of the owner of land in the use of a public road across it for a period of less than twenty-one years is not conclusive proof of a dedication thereof to public uses, but only evidence, more or less significant, tending to prove such dedication. Penquite v. Lawrence, 11 Ohio St. 274. It is error in a court to charge the jury, "substantially, that such use was, as a matter of law, a dedication, and not mere evidence of a dedication to be weighed and considered by them." Ibid. 277. Use, by a municipal corporation, of property which it holds by absolute title in fee, for a period of forty years as a market-space, does not constitute a dedi- cation of the land to the public for market purposes. The corporation was simply exercising its proprietary rights therein. Gall v. Cincinnati, 18 Ohio St. 563. When commissioners in partition lay out grounds in a city into lots abutting on a street, which they also declare, in their report, to be dedicated and set apart for public use forever, and the parties take possession of their respective allotments under the petition, the parties and their privies, as between them- selves, while the partition subsists, will be estopped from questioning the exist- ence of the street ; and after they have allowed the city to take possession and improve it, the estoppel becomes equally effective between them and the city. "Wisby v. Bonte, 19 Ohio St. 238. Making a plat of lots and alleys, with a design of recording it as an addition 133 DEDICATION, ETC. to a town, will not, of itself, make a dedication of the streets and alleys to the public. Bailey v. Copeland, "Wright, 150. When a road has been laid out from point to point, and opened and used for a long time, upon ground different from that upon which the line of the road was actually run, the traveled road is the public highway. Taylor v. Bailey, "Wright, 646. Appropriating property by the exercise of the right of eminent domain for a street, is a dedication of it to that special use, which can not afterward be recklessly rescinded. Strader and Heart v. Cincinnati, 1 Handy, 446. Where a subdivision of lots is made and recorded without acknowledgment, and lots sold and conveyed by the numbers 'on the plat, which shows the lot3 so numbered to be bounded by a street or alley, though the fee would not vest in the city, such acts would be sufficient evidence of an intention to dedicate such streets and alleys, which intention, when accepted by the city, or by use on the part of the public, would become complete. Doren v. Horton, 1 Disney, 401. Where an old road ran through property, and the owners in a partition plat have straightened the lines of the road, and have stood by and seen an improve- ment made in accordance with the lines so laid down, they are estopped after- ward to set up such variation from the old road as a defense to the assessment. Strohman v. Hutchins, Hamilton District Court, MS. When the owner of land dedicates a strip of ground twenty-five feet wide, adjoining the land of his neighbor, on condition that his neighbor shall dedi- cate a like strip from his land, so as to make a street fifty feet in width, and immediately opens his part of the street to public use, and permits it to be used by the public as a street for eighteen years, the condition is waived, and the dedication absolute, although the neighbor had refused to dedicate; and the council had a right to improve it as a street, and assess the cost of the improve- ment upon the property abutting thereon. Lloyd v. Hulbert, 1 Cincinnati Superior Court Beporter, 228. HOW IT MAY BE FORFEITED OR LOST. Misuser of dedicated property does not work a forfeiture. A forfeiture only occurs when the uses are obsolete, or impossible of execution. " The uses declared by the alleged dedication are neither obsolete or impossible of execu- tion. They are perpetual uses, and the right is vested in a perpetual corpora-, tion or corporations. Neither the. county nor the city are temporary creations. They yet exist, and must continue to exist. They must have a court-house and jail, not only now but forever, and the people must always have churches and schools." " Misuser or non-user does not, in case like this, work a forfeiture, as we have already shown." Williams v. First Presbyterian Church, 1 Ohio St. 478, 496, 510; Board of Education v. Edson, 18 Ohio St. 321; Doren v. Horton, 1 Handy, 401, 404. Municipal corporations are subject to the operation of the statute of limita- tions in the same manner, and to the same extent, as private individuals. Cin- cinnati v. The First Presbyterian Church, 8 Ohio, 298; Williams v. The First Presbyterian Church, 1 Ohio St. 478, 510; Cincinnati v. Evans, 5 Ohio St. 594. Notorious and uninterrupted possession, for more than twenty-one years, by a private individual, under a claim of right, of land dedicated to a city for RIGHTS OF CITY IN STREETS. 139 streets or public squares, will bar the claim of the city to its use. Cincinnati v. Evans, supra; Cincinnati v. The First Presbyterian Church, supra. But the possession of land adverse there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment, or a surrender of his claim. The mere inclosing of a part of a highway, not used or traveled by the public, with a fence is not such a claim, though the erection, within the lines of the street, of a per- manent building would be. Lane v. Kennedy, 13 Ohio St. 42. RIGHTS OF CITY IN STREETS. A municipal corporation has private rights in streets, which can not be taken without compensation. City of Cincinnati v. Comm'rs of Hamilton County, 1 Disney, 4. "Where a* city has fixed its grades so that certain territory is drained through gutters along a certain street, and that street is vacated, the city is entitled to compensation therefor. "In respect to the public streets, the rights and duties of the city government partake of two characters, in one of which the general public interest is represented ; in the other, a corporate or, so to speak, individual interest. In one character, order is preserved, nuisances are pun- ished, etc.; in the other, grades are fixed, pavements laid down and kept in re- pair. It has been repeatedly held in this state that, in the latter character, the city government assumes duties of such a description that what may be termed individual liabilities ensue. If the grade is changed, or if the street be out of repair, and an injury ensue, there is a liability to make the damage sustained good. Now, where, in the construction of works rendered necessary by such a duty, responsibility is incurred, and the benefit derived therefrom is destroyed by the act of an individual, or of the county, or the state, I can see no just rea- son why compensation should not be made. Upon this principle, I feel entirely satisfied that the city should be compensated for any alteration in the grade of the streets, or for any construction of a water-way, which may be rendered necessary by the improvement to be constructed by the county in the part of the street which has been vacated." Gholson, J., Ibid. 6, 7. An order was framed that the plaintiff should execute the necessary work to- secure the drainage, the defendant undertaking to pay for it under further order of the court. Ibid. Under section 12 of the general corporation act of 1852, one of the terms and conditions which a municipal corporation may require for the use of the streets by a railroad company, is the payment of money. City of Cincinnati v. Pendleton and Fifth Street Market Space Passenger Street K. K. Co., No. 575, Superior Court of Cincinnati, General Term, MS. The measure of damages in such a case is the injury to the public use of the street by putting and operating the railroad thereon. If the public use of the street were entirely put an end to, it might be the sum of money necessary ta enable the city to furnish equal facilities to the 1 public in some other way. Ibid.; Storrs Township N. R. & C. U. J. D. R. R. Co. v. Cincinnati, Hamilton Probate Court. 140 POWER OP THE CITY OVER STREETS POWER OF THE CITY OVER STREETS. Under sections G3 and 20 of the act of 1852 (substantially the same as sec- tions 439 and 199, par. 1 of the present act), the council may prohibit sales at auction upon the streets, alleys, sidewalks, and public grounds of said city. White v. Kent, 11 Ohio St. 550. The city council have power to grant to a railroad company the right to lay a track in a street, and owners of property abutting thereon can not interfere, unless private rights are interfered with. Sargent v. O. & M. E. E. Co., 1 Handy, 52. A municipal corporation may, in a proper case and within a reasonable time after it is erected, summarily abate a nuisance erected upon a public street, if it be such as interferes with and prevents the free exercise of the right on the part of the public to the use of the easement. Even then the delay of the public authorities may operate as a waiver of the right to do so. In such a case, the public must resort to their action to recover the possession of the street, and to abate the nuisance also. Evans v. Cincinnati, 2 Handy, 236. In no case, however, unless the obstruction impedes the free use of the streets, can the public resort to this summary mode of abatement without pro- cess. Ibid. In an action of trespass for injury to a building occupied by the plaintiff as a store, resulting in an injury to his business, he may recover, in addition to the damages done to the building, such further sum as will compensate him for a loss of its enjoyment while the interruption continued, and for this purpose may show the nature and extent of the business, the necessity of using the building for its prosecution, and the value of such use to him during the period of the interruption. Cincinnati v. Evans, 5 Ohio St. 594. But in the absence of fraud or malice, or other circumstances justifying ex- emplary damages, the amount of profits which might have been realized by employing his personal services and capital in the prosecution of his business in the injured building can not be recovered. Ibid. In such case, the loss of profit does not form a proper criterion for estimating the damages ; but the loss of the user of the property, and the value of such use to the injured party, is all that can be recovered. Ibid. "Where, by annexation of contiguous territory, a county road is brought within the limits of a municipal corporation, the exclusive control over it vests at once in the corporation. Eidenour v. Saffin, 1 Handy, 464. "When a municipal corporation has condemned and taken land for a street, it will be restrained from disposing of the land for other purposes, on the applica- tion of one of the owners of adjoining property. Strader v. Cincinnati, 1 Handy, 446. The special interest of a person who has surrendered or acquired a valuable private right under such an appropriation will enable him to maintain a suit against the corporation, though the wrong is a public injury. Ibid. A city has no power to let out the privilege of using the lamp-posts in the streets for advertising purposes, and such a contract is void, and the execution of it will be enjoined. Shillito v. Cincinnati, Superior Court of Cincinnati, General Term, MS. The public acquires a mere ea'sement or right of way on the land over which. LIABILITY FO-R DEFECTIVE* STREETS. 141 a public road passes, with the powers and privileges incident to that right, but the owner of the fee retains the exclusive right to the trees, shrubs, and herb- age, growing on the land, for all purposes not incompatible with the right of way, and he may maintain an action in respect to them when not taken for the purpose of making or repairing the road, or lawfully abated as a hindrance or annoyance to travelers thereon. Phifer v. Cox, 21 Ohio St. 248. The fact that trees, shrubs, or herbage stand within the bounds of the road does not justify any individual, not acting under official authority, in destroying them ; but if they are a hindrance or annoyance to travelers, they are a public nuisance, and may be abated or removed in a peaceable manner by any one lawfully using the road. "Whether they are such nuisance is a question of fact for the jury; and such summary abatement can not be justified unless the pub- lic travel is thereby impeded, hindered, or annoyed. Ibid. Where a growing hedge, standing within the bounds of a highway, but leaving ample room for the public travel, which was not thereby incommoded or annoyed, was cut down by an individual not acting under official authority : Held, that the hedge was not such a nuisance as would justify any person in abating it, and that the owner of the fee might maintain an action for his dam- ages sustained thereby. Ibid. As a general rule, a municipal corporation is not liable for injuries to build- ings, on lots abutting upon streets and alleys, resulting from the" improvements of such streets and alleys, or from their appropriation to a public use, provided its officers and agents, in making such improvements or appropriation, act within the scope of their authority, and without negligence or malice. Cincin- nati v. Penny, 21 Ohio St. 499. If, however, it be shown that the municipal authorities, before the construc- tion of such buildings, had so improved or appropriated the street or alley to public uses, as to indicate fairly and reasonably that no future change or other use would be required by the city or village, and the abutting propri- etor, relying upon such corporate acts as a final decision as to the wants of the public, improve his lot in a manner suitable to the established use, and after- ward his improvements are injured by a change or by the appropriation of the street or alley to other uses, the corporation will be liable for damages resulting therefrom. Ibid. LIABILITY OF THE CITY FOR STREETS. "Where the statute requires that a municipal corporation "shall cause the streets to be kept open and in repair, and free from nuisances," a duty is im- posed upon the corporation ; it will be liable to any person sustaining injury by reason of a breach of such duty. Vandyke v. Cincinnati, 1 Disney, 532, 536, Spencer, J. The negligence must be such as would have warranted an indictment at com- mon law. " Trifling obstructions or want of repairs may occasionally work a serious harm ; yet such accidents can not ordinarily be foreseen or guarded against, and do not lay the foundation of an action. To require the city, at all hazards, to remove or correct them, or be liable for their consequences, would be not only to make the city an insurer of the lives and safety of all its people who pass on the streets, but to ask the performance of an impossible duty. Ibid. 537. 142 DAMAGES ARISING FROM IMPROVEMENTS. Permitting snow and ice to remain on the pavement is not a violation of this •duty. Ibid. 537. Nor does the fact that it was allowed to remain in violation of an ordinance requiring the property-holder to remove the snow or ice, or sprinkle it with sand or some other substance, under a penalty, render either the city or the per- son in default liable to the party sustaining the injury. Ibid. 533, 534. In an action for damages sustained by a public nuisance, special damages must be shown, differing not merely in degree, but in kind, from the rest of the community. Merely enhanced suffering of the same kind will not answer. Parrelly v. Cincinnati, 2 Disney, 516. Damages can not be claimed for the injury suffered from continued use of a highway known to be out of repair, unless it is shown to be the only road that could be restored to. Ibid. The fact that a traveler is obliged to adopt a circuitous route to his destina- tion, whereby he suffers injury to business, does not constitute special damage. Ibid. Nor does the fact that an omnibus proprietor has lost custom by being forced to change his'route. Ibid. "Where, in an action for damages, by the neglect of a city to keep a street in repair, by which the plaintiff sustained a severe personal injury, the jury find a verdict for a substantial sum, so that it is evident that they found negligence, but the sum is plainly insufficient, the court will set the verdict aside. Baily v. Cincinnati, 1 Handy, 438. But when the jury find one cent damages, in such a case, it is a substantial finding for the defendant, and the verdict will not be set aside, when negligence on the part of the city was not plainly shown. McMahon v. Cincinnati, Supe- rior Court of Cincinnati, General Term. Hagans, J., Storer and Taft, JJ., concurring. MS. RIGHTS OF PROPERTY-OWNER, ABUTTING ON STREET, IN STREET. A municipal corporation is liable to the owner of a house fronting on a street for maliciously and illegally digging down a street to the injury of a house. Goodloe v. Cincinnati, 4 Ohio, 500. A corporation is liable in such a case, in the absence of malice, if its acts were illegal. Smith v. Cincinnati, 4 Ohio, 514. Officials acting under the orders of the municipal authorities, are not liable for injuries to a house and lot by grading a street, which the authorities had power to do. Scovil v. Geddings, 7 Ohio, part 2, p. 211. "Where improvements had been made on a street, with express reference to its existing grade, and the grade was changed, although the change of grade was within the scope of their authority, the corporation was held liable. Mc- Comb v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229. The owner of unimproved lots can not recover damages from a municipal corporation for filling, ditching, or cutting streets, being presumed to purchase with a view to a reasonable improvement of the streets. Crawford v. Delaware, 7 Ohio St. 459. The owners of lots upon a street, the grade of which has not been established, must use reasonable care and judgment in making improvements with a view to a reasonable and proper grade ; and the town or city will not be responsible DAMAGES ARISING FROM IMPROVEMENTS. 143 for injuries to such improvements by afterward grading the street, if the grade, by ordinary care, could have been anticipated. Ibid. If erections are made upon a lot in accordance with an established grade, and the grade is afterward altered, and a substantial injury is thereby done to the owner of a lot, he is entitled to compensation. Ibid. Laying a street railroad track near the sidewalk, so as to obstruct the conven- ient access to the improvement, made with reference to a highway, as improved by the authorities in charge (in this case a turnpike corporation), is an injury for which compensation must be made. Street Kailway v. Cumminsville, 14 Ohio St. 523. But an alteration in a road which merely renders it less convenient for travel, without directly impairing the access to the road from the improvements on the land, does not entitle the owner to recover damages. Jackson v. Jack- son, 16 Ohio St. 163. A change of grade of a street upon which the lot and improvements do not abut, but which renders the street less convenient for travel to the plaintiff, is not an injury for which compensation can be made. The private right of the owner of property abutting on a street to the street is simply a right of access from his improvements to the street, and if that be not affected by the change, the injury that he suffers is that common to all the public who use the street, and does not form a basis for a private action. Eagle White Lead Co. v. Cin- cinnati, 1 Cincinnati Superior Court Eeporter, 154. The same rule applies to a railroad track on a street not directly in front of plaintiff's property. Sargent v. 0. & M. R. R. Co., 1 Handy, 52, 59. "When a railroad is constructed in a street, the owner of a house and lot is entitled to damages for an obstruction to the street by earth, gravel, timber, or rail, substantially affecting his use of such street as an appurtenance of his premises. ■ But in respect of the noises, smoke, vapor, or other discomforts arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling-house has no more right to recover damages of the com- pany than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts. A railroad authorized by law, and lawfully operated, can not be deemed a private nuisance. Parrott v. C. H. & D. R. R. Co., 10 Ohio St. 624. When a mode is prescribed by statute for the assessment of damages, that mode must be followed, and the party injured is bound to appear. If he does not do so, he must be held to have waived his claim. Hickox v. Cleveland, 8 Ohio, 543. See also Hueston v. Eaton and Hamilton R. R. Co., 4 Ohio St. 685, 689, and Little Miami R. R. Co. v. Whitacre, 8 Ohio St. 590. A land-owner failing to make application within the time limited by the act, will be deemed and held to have waived his right, though he had no actual notice of the proceeding. Cupp v. Commissioners of Seneca County, 19 Ohi St. 173. A property-owner has a right of action against any person obstructing his access from his lot to the street, by erecting a building therein. Bingham v. Doane, 9 Ohio, 165. When the title runs to the center of the road, trespass may be maintained j but when it extends only to the line, case is the only remedy. Ibid. 144 DAMAGES ARISING PROM IMPROVEMENTS. A person may lawfully dig a cellar on his own premises, and may lawfully dig in the street, hy the license of the proper authority. Neither of these acts is a direct forcible invasion of the plaintiff's premises. Their wrongful char- acter arises solely from the careless and negligent manner in which they were performed; from a want of such precautionary measures as the law demanded under the circumstances, in order to prevent consequential injury to the plaint- iff's property. For this want of care and consequential injury, the remedy is by action on the case, and the liability of the defendants must be determined by the rules governing cases of negligence, and not by those applicable to tres- pass. Henshaw v. Noble, 7 Ohio St. 226, 232. The agent can not properly be joined with the principal in such an action. Ibid. ; Clarke v. Fry, 8 Ohio St. 358. The right of transit in the use of public highways is subject to such inci- dental, temporary, or partial obstructions, as manifest necessity requires, and among these are the temporary impediments necessarily occasioned in the building or repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, cellar-drains, etc. These are not invasions, but qualifications of the right of transit on a public highway, and the limitation on them is, that they must not be unnecessarily and unreasonably interposed and prolonged. Clarke v. Fry, 8 Ohio St. 358. Such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily extended or continued, are not nuisances, and do not require a license from the municipal authorities to legalize them ; although suitable regulations by the public authorities re- quiring such obstructions to be properly guarded, and to prevent them from being made in an improper manner, or continued unreasonably, are highly proper. Ibid. A city ordinance imposing, in general terms, a penalty on any 'person for incumbering or obstructing any part of any street, lane, or alley, etc., ration- ally construed, has manifest reference to nuisances; in other words, to incum- brances or obstructions which, but for some special license, would be unlawful. Ibid. Any obstruction in a public thoroughfare, calculated to produce an injury to persons passing, is in itself a nuisance. The object of the obstruction, and the precautions taken to prevent injury, may prevent the character of a nuisance attaching; but if the object be illegal, or the proper precautions are not taken, then that is its character. Mcllvaine and wife v. Wood, 2 Handy, 166. "When an obstruction is created in a sidewalk, such as an area, though the ob- ject is legal, it is a nuisance, unless the proper precautions are taken in its con- struction to prevent injury; and if this defect is in the construction, and not in the mode of use, the landlord is responsible. Ibid. When a plat of subdivision is made, showing streets and alleys, and recorded, hut not properly acknowledged, and the lots are sold as lots on such a plat, the alienee of a lot bounded upon a street or alley, has a right to the use and enjoy- ment of the unobstructed street or alley of which the original owner, or those claiming under him, can not deprive him without his consent. Doren v. Hor- ton, 1 Disney, 401. Obstructions to such street or alley will be ordered to be removed on the ap- plication of the vendee or alienee of one of the lots abutting on it. Ibid. PROPERTY ABUTTING UPON PUBLIC GROUNDS. 145 "When a road has been laid out in the manner prescribed by law, opened, and used for many years, the owner of the land through which it passes can not suddenly close it up, on the hypothesis that the road used does not exactly follow the courses and distances of the recorded survey. Arnold v. Flattery, 5 Ohio, 271. "When a railroad illegally changes the location of its track in the street, it is liable for all damages occasioned thereby, although the property of the com- plainant was not touched by the track, but the change was only in the street in front of his house. L. M. R. E. Co. v. Naylor, 2 Ohio St. 235. RIGHTS OF ABUTTING OWNERS ON PUBLIC GROUNDS. When property was conveyed to the commissioners of the county of Butler, in pursuance of a proposal made to the commissioners appointed to locate a county-seat, for the use. of county buildings for the inhabitants of the county of Butler, the owners of lots fronting on such property can not enjoin the leasing of the corners of the square by the commissioners for private purposes. If any rights are violated by such procedure, they are the rights of the pub- lic, and are to be enforced in the name of the state, or of the officer intrusted with the conduct of public suits. Smith v. Heuston et ah, Comm'rs of Butler Co., 6 Ohio, 101. But when land was marked upon a plat " P. Square," and some of the lots on the plat are described as lying next the public square, the owner of one of the lots can maintain a bill against the heirs of the grantor to prevent them from inclosing it, and selling it out. Brown v. Manning, 6 Ohio, 298. When land was conveyed to county commissioners for the erection of a court-house, etc., and for no other purpose, and the grantor subsequently re- leased to the commissioners all his right and interest in the land, they can dis- pose of it as individuals can, and will be decreed to specifically perform a con- tract of sale or lease. Widow and Heirs of Reynolds v. Comm'rs of Stark Co., 5 Ohio, 204. When it was declared that the Public Place " shall remain free, and never be alienated or obstructed on the bank of the river by any kind of buildings," and the lots fronting on "the place" are appraised higher because they are "a source of wealth by their situation," the owners of such lots can maintain a bill to restrain the public authorities from leasing the ground, and applying the money received to the improvement of the wharf. Le Clercq v. Gallipolis, 7 Ohio, part 1, p. 218. The legislature can not authorize the public authorities to change the use of such property. Ibid. The owner of lots adjoining ground marked "public square," can enjoin par- ties claiming under the original proprietors from entering upon, and occupy- ing. Huber v. Gazley, 18 Ohio, 18; S. O, 13 Ohio St. 399. Such purchaser can not set up a defense of want of notice, and has no claim for improvements. Ibid. When the terms of the declaration of use were " resolved (or agreed), that for the public good (or convenience) and the interest of the inhabitants, the streets and ' la place ' shall remain free, and never be alienated or obstructed on the bank of the river bv any kind of buildings," the owner of an abutting 10 146 WHARVES, DOCKS, AND HARBOR-MASTER. lot can not restrain the municipal authorities from inclosing "la place" for the purposes of improvement and ornament. Langley v. Gallipolis, 2 Ohio St. 107. Land dedicated " for the sole use and purpose of erecting a market-house thereon, and a market space," to have and hold the same " for the use of a market-house and market-space, and for no other use or purpose whatever," may he used as a market for flowers only ; and such use will not constitute an abandonment of the use for which the land was conveyed. Per Force, J., Casey v. Cincinnati, Hamilton Common Pleas, MS., 1873. "Where land has been conveyed to private parties, and in the deed, it is de- scribed as fronting on Fifth street, even if the use for which the street was dedi- cated should be abandoned by the public, and the title to the land should revert to the owner, he would be estopped to put the ground to any other use than that of a street, and might be enjoined by the abutting owners should he at- tempt to make any other use of it. Ibid. "When the proprietors of adjacent lands agreed that each would appropriaee from his land a strip to be used in common for a public street, and conveyances and improvements have been made on the faith that the street would be opened, the agreement may be enforced in equity, whether the public authorities accept the street, as dedicated to public use, or not. Seegar v. Harrison, 25 Ohio St. 14. The grantee in a deed which describes the premises conveyed as bounded on a street named, is bound to take notice of the existence of such street ; and he is chargeable with such knowledge as to the location of the street as he could have obtained by reasonable inquiry. Ibid. CHAPTER XXXV. WHARVES, DOCKS, AND HARBOR-MASTER. Section Section 442. Council may establish wharves, docks, 444. Control of shore ! appointment of harbor- etc. masters, etc. 443. Wharves, etc., must have uniform grade. 445. Copies of surveys to be prima facie evi- dence, etc. Sec. 442. Council may establish wharves, docks, etc. The council of any city or incorporated village shall have power to establish, construct, repair, control, and reglate landing-places, wharves, docks, piers, and basins; to establish, control, and regulate the grades of wharves and landing-places, and to fix the rates of land- ing, wharfage, and dockage, and to use, for the purpose aforesaid, any public landing or any property belonging to or under the con- trol of the corporation. [S. & C, p. 1515, sec. G4; S. & S., p. 842, eec. 149.] FERRIES. 147 Sec. 443. Wharves, etc., must have uniform grade. All wharves •or landing-places hereafter constructed shall conform to a uniform grade to be established by the council ; and it shall be unlawful for the owner, lessee, or occupant of such property to construct any wharf or landing-place, without first obtaining the consent of the council, and conforming to the established grade. [S. & S., p. 843, sec, 150.] Sec. 444. Control of shore, appointment of harbor-masters, etc. The council shall have the use and control, for the above purpose, of the shore or bank of any lake or river, not the property of in- dividuals, to the extent and in any manner that the state can grant such use or control; and the power to appoint harbor- masters, wharf-masters, port-wardens, and other officers usual or proper for regulation of the navigation, trade, or commerce of the corpora- tion, to define their duties and powers, and fix their compensation. [S. & C., p. 1515, sec. 64.] Sec. 445. Copies of surveys to be prima facie evidence, etc. Copies of examinations and surveys, and of the proceedings of any port- warden, in the discharge of the duties of his office, certified under his hand and seal, shall be prima facie evidence of the matters therein stated. [S. & C, p. 1515, sec. 64.] CHAPTER XXXVI. FERRIES. Section 44G. License, regulation, etc., of ferries. Sec. 446. License, regulation, etc., of ferries. The council of any city or incorporated village shall have the exclusive power to es- tablish, regulate, and license ferries, from such corporation or any landing therein to the opposite shore, or from one part of the cor- poration 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 trans- portation of persons and property, as may be proper, and to pro- vide for the revocation of any such license, and for the punish- ment, by proper fines and penalties, of the violation of any ordi- nance prohibiting unlicensed ferries, or regulating those established and licensed. [S. & C, p. 1515, sec. 65.] 148 LICENSES. CHAPTER XXXVII. LICENSING SHOWS, AUCTIONEERS, ETC. Section Section 447. General licensing powers of council. 448. Licensing of vehicles, undertakers, etc. Sec. 447. General licensing powers of council. The council of any city or incorporated village shall have power to license 1 all ex- hibitors of shows and performances of every kind not prohibited bylaw; all hawkers and peddlers; all auctioneei'S of horses and other animals in the highways or public grounds of the corpora- tion ; all venders of gunpowder and other explosives ; all taverns and houses of public entertainment; all hucksters in the public streets or markets ; and in granting such license, may exact and receive such sum or sums of money as the council may think ex- pedient, [S. & C, p. 1523, sec. 93.] Sec. 448. Licensing of vehicles, undertakers, etc. The council shall also have power to license the owners of all vehicles of every description used for the transportation of persons and property, for hire in the corporation, and all undertakers and ownei'S 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. [S. & C, p. 1523, sec. 93.] 1 The power to license and regulate includes the right to require a reasonable sum in compensation for the special privileges given. Such compensation is not a tax. Cincinnati v. Bryson, 15 Ohio, 625. Where the amount required for a license is unreasonable, this does not excuse the defendant for acting without a license. The party can not take the law into his own hands, and assume the whole ordinance to be void. If the sum demanded were unreasonable, the appropriate and reasonable sum should have been tendered, and the license demanded. Or, the fee might have been paid under protest, and the license taken ; and the question whether the amount was reasonable or unreasonable contested in a suit to recover back the excess. But the defendant having taken neither of these courses, but chosen to run his dray without any'license, was rightfully convicted. Ibid. "When a town is put to expense by the exercise of particular employments, it is reasonable that this charge for a license should cover compensation for this expense, as well as for the expense of issuing the license. Ibid. The case of Cincinnati v. Bryson is not incorrect, as the majority of the court held that it was not sufficiently shown that the sum demanded exceeded the necessary expenses incident to the issuing of the license. But if the sum de- PAWNBROKERS 149 CHAPTEE XXXVIII. PAWNBROKERS. Section Section 449. Pawnbrokers must be licensed. 451. Penalty for failure to keep and refusal 450. They must keep an open record of all to exhibit record, etc. their transactions. Sec. 449. Pawnbrokers must be licensed. Any person or persona carrying on the business of pawnbroker, or of loaning money on jewelry or other personal property, in any city or incorporated vil- lage, shall take out a license from the city or incorporated village in which he or they do business, which license shall be fixed by ordinance at a cost not to exceed two hundred dollars per annum. [S. & S., p. 821, sec. 90.] Sec 450. They must keep an open record of all their transactions. The person or persons so licensed shall keep a correct list and description, in a book for that purpose, of all articles pledged or deposited with them, or on which advances of money have been made, or which maybe purchased by him or them, which list and description shall at all times be open to the inspection of the chief of police of the corporation, or of a police officer deputed by him or by the mayor to make such inspection ; and he or they shall, at mancled goes further than this, if it is made a means of supplying money to the public treasury, that it "is a tax is too palpable for discussion." Mays v. Cin- cinnati, 1 Ohio St. 268, 274. But when payment is made of the tax demanded, without objection or protest, it is a voluntary payment in the legal sense, and suit can not be maintained to ' recover it back. Ibid. When, however, the payment is made under protest, and the position of the party is such as to require from another the performance of a duty enjoined upon him by law, and he is illegally compelled to pay the money to induce such performance, the payment is not voluntary, and suit may be maintained to re- cover it back. Baker v. Cincinnati, 11 Ohio St. 584. Under section 96 of the act of 1852 (S. & C. 1523), which .provided that the council, " in granting such license, may exact and receive such sum or sums of money as the council shall think fit and expedient," a chai-ge of $63.50 for a li- cense for theatrical exhibitions for six months, and one dollar for issuing the li- cense, is not in violation of the constitution. The power to license and charge for doing so is not taken away by the constitution, and a charge may justly be made for the expense of regulation and supervision beyond the mere expense ■of filling up a blank license. Ibid. 150 FILLING LOTS OR REMOVING NUISANCES. 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 or their possession ; and he or they shall also register in such book the name and place of residence of the depositor. [S. & S., p. 821, sec. 91.] Sec. 451. Penalty for failure to keep and refusal to exhibit record, etc. Any person or persons carrying on the business of pawn- broker, who shall fail to take out a license therefor, or shall receive and advance money on any article or property pledged, and shall fail to keep a list, description and register as provided above, or who shall refuse to submit the same to the inspection of the chief of police or police officer deputed as aforesaid, or shall refuse to show the article or property when so required, shall, upon convic- tion thereof, before the police court or mayor of the corporation, be fined in any sum not less than ten dollars, nor more than one hundred dollars. [S. & S., p. 822, sec. 92.] CHAPTEK XXXIX. FILLING UP LOTS AND REMOVAL OF OFFENSIVE SUBSTANCES. Section Section 452. Power of corporation to fill lots, remove 4o4. Iu case of refusal or neglect, work to bo- nuisances, etc. done at expense of owner, etc. 453. Duty of owners to comply with directions. Sec. 452. Power of corporation to fill lots, remove nuisances, etc. All municipal corporations shall have power to cause any lot or lots of land within their limits, on which water shall at any time become stagnant, to be filled up, or drained, and to cause all putrid substances to be removed from any lot or lots; and may, from time- to time, direct that such lot or lots be filled up or drained, or that such putrid substances be removed by the owner or owners in such reasonable time, and in such manner, as may be directed by a resolution of the council or trustees of the corporation. 1 [S. & C, p. 1506, sec. 32.] 1 The power of creating municipal corporations necessarily implies authority to confer upon them such police powers as may be necessary for their inter- nal government, and a resolution directing lot-owners " to fill and drain their lots in such a manner as shall be necessary to remove all stagnant water," being a reasonable sanitary measure for preserving the health of the inhah- MARKETS. 151 Sec. 453. Duty of owners to comply with directions. It shall be the duty of such owner or owners, his, her or their agent or attor- ney, after service of a copy of said resolution, or after a publication of the same in some newspaper of general circulation in such cor- poration for four consecutive weeks, to comply with the directions of such resolution within the time therein specified. [S. & C, p. 1506, sec. 32.] Sec 454. In case of refusal or neglect, to be done at expense of owner, etc. In case of a failure or refusal to comply with such 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 respective owners before a justice of the peace, or other court of competent jurisdiction ; and such expense shall, from the time of the adoption of such resolution, be a lien on such lot or lots, 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. [S. & C, p. 1506, sec. 32.] CHAPTER XL. MARKETS. Section Section 455. Power to establish markets, erect market- 457. No charge to be made for occupancy of houses, etc. market-space, etc. 456. Power to regulate markets and market- 45S. No authority to prevent sale of produce ing. at any time or place. Sec. 455. Power to establish markets, erect market-houses, etc. The council of any city or incorporated village shall have power to erect itants, is not in conflict with the constitution. Bliss v. Kraus, 16 Ohio St. 54. Such resolution requires, by reasonable construction, not merely the removal of the water then on the lots, but the work to be so done as to prevent the re- currence of stagnant waters from the same causes. Ibid. Such a resolution must be reasonably certain in its requirements ; but when the work to be done is clearly defined in general terms, the fact of leaving to the owner who bears the expense, the choice of the means of accomplishing the required result, will not render the resolution invalid. Ibid. "When the description in such a resolution clearly identifies the premises, the fact that the wrong township is called for will not invalidate the pro- 152 MARKETS. market-bouses, establish and regulate markets 1 and market-places, for the sale of meats, fish, provisions, vegetables, and other articles necessary for the sustenance, convenience and comfort of the in- habitants; to prescribe the times for opening and closing the same, the kind and descrijition of articles which may be sold therein, and the stands or places to be occupied by the venders. [S. & C, p. 1513, sec. 62.] Sec. 45G. Power to regulate markets and marketing. The council ceedings. The maxim " falsa demonstratio non nocet," is applicable, and the false part of the description will be rejected. Poland v. Connelly, 16 Ohio St. 64. 1 A municipal market consists : 1. In a place for the sale of provisions and articles of daily consumption. 2. Convenient fixtures. 3. A system of police regulations, fixing market hours, making provisions for lighting, watching, cleaning, detecting false weights and unwholesome food, and other arrangements calculated to facilitate the intercourse and insure the- honesty of buyer and seller. 4. Proper officers to preserve order and enforce obedience to rules. A sum demanded from persons occupying a stand in the market-place is rather the price demanded for accommodations provided to the frequenters of the market by the city authorities than a tax. It is a market toll, and is prop- erly exacted. Cincinnati v. Buckingham, 10 Ohio, 257. Prompt and strong enforcement of market regulations is necessary, and has always been provided for from the earliest times. An ordinance authorizing offenders to be taken at once before the mayor and fined is not oppressive. Ibid.' The power to establish and regulate markets and market-places is a continu- ing power, and its exercise at one period by establishing a market and remov- ing a market-house in a particular locality will not prevent the city council from removing such building, or abandoning such locality for market purposes. Gall v. Cincinnati, IS Ohio St. 563. An order for such removal or abandonment by the city, in the reasonable ex- ercise of the discretion vested in it by law, constitutes no ground for tax-payers, as such, to prevent by injunction the execution of such order. Ibid. When a municipal corporation acquired real estate by absolute title in fee, the fact that the property was purchased for the purpose of establishing a market- space ami of erecting thereon a market-house, and the further fact that the property was accordingly. so used, will not make it trust property, to be used only for market purposes. Ibid. Nor will a use of the property for market purposes, although it may have con- tinued for forty years, constitute a dedication of the land to the public for market purposes. Ibid. A municipal corporation has a right to demand rent for stalls in market- houses beyond the expenses of keeping them in repair, but for purposes of revenue. Cincinnati v. Beresford, Superior Court of Cincinnati, Special Term; 31 S., per STOKER, J. MAKKETS. 153 shall also have power to prevent forestalling the markets, to pro- hibit or regulate huckstering 1 in the markets, and to adopt such rules and regulations as are necessary to prevent fraud, and to preserve order in the markets; and they may authorize the im- mediate seizure, arrest and removal from any market, of any per- son or persons violating its regulations, together with any article in his or their possession, and the immediate seizure and destruction of tainted or unsound meat or other provisions. [S. & C, p. 1536, sec. 02.] Sec. 457. JVo charge to be made for occupancy of market-spaces, etc. No charge or assessment of any kind shall be levied upon any farmer or producer of vegetables or provisions bringing the same to market, for occupying a place, witb or without horses and wag- ons used in bringing such produce to the market, in an}' of the market-spaces, or in the streets contiguous thereto, on market days or evenings previous thereto. [S. & C, p. 1514, sec. 62.] *Sec. 458. [As amended, April 18, 1870, 67 L. 77.] Farmers, etc., not to be prohibited selling their productions. Nothing herein contained shall be so construed as to authorize the council to pass an ordinance for the purpose of assessing or imposing any fine or punishment upon any farmer or producer for selling at any time, within the corporation, during market hours, any article of pro- vision or vegetables grown or produced by him or her. [S. & C, p. 1514, sec. 62.] x The work "huckster" signifies a petty dealer, a retailer of small articles of provisions, meats, etc. The legislature must be presumed to have intended what the common and ordinary import of the language used would indicate, and the city council can not, by ordinance, define the word to include things substantially different. Mays v. Cincinnati, 1 Ohio St. 2G8. *Sec. 458. [As originally passed.] No authority to prevent sale of produce at any time or place. Nothing herein contained shall be so construed as to authorize the council to pass an ordinance for the purpose of assessing or imposing any fiuo or punishment on any farmer or producer, for eelliug at any time within the corporation, any article of provision or vegetables in any street or streets, or market-spaces, during market hours. 154 INSPECTORS. CHAPTEK XLI. INSPECTORS OP PROVISIONS AND OTHER ARTICLES. Section Section 459. Licensing of gangers, inspectors, etc. 4G8. Provisions of former act applicable to 4G0. Amount of license to be fixed by ordi- inspectors of oils. nance. 409. Fees for inspection. 401. License to be for one year ; vacancy. 470. Inspectors of beef, cattle, sheep, hogs, 402. Extent of license. etc. 403. Powers, penalties, etc., of inspectors. 471. Rules for inspectors to be prescribed by 404. Inspectors may appoint deputies. ordinance. 405. Oath, bond, etc., of inspectors. 472. Oath of office, bond, etc., of inspectors. 4GG. Injury from neglect or incapacity to be 473. Compensation of inspectors. recovered on bond. 474. Inspectors for other purposes may be 407. Removal of inspector for cause. appointed. Sec. 459. 1 [As amended, April 18, 1870, G7 L. 77.] Licensing of gaugers, inspectors, etc. The council of any city shall have power, whenever deemed necessary, to appoint and license one of the res- ident freehold electors of the corporation, possessing the necessary qualifications, to act within and for the corporation, as gauger and inspector of domestic and foreign spirits, linseed oil, lard oil, and carbon or mineral oils; one inspector of flour, meal, bread and bis- cuit; one inspector of beef, pork, lard and butter; one inspector of pot and pearl ashes; one inspector of fish, when exposed for sale in barrels or half-barrels. [S. & C, p. 731, sec. 78; p. 718, sec. 1 ; p. 723, sec. 29, and p. 732, sec. 82.] Sec 4G0. Amount of license to be fixed by ordinance. The amount of the said license shall be fixed by ordinance, and shall be limited as follows : To inspect beef, pork, butter and lard, not less than fifty nor more than one hundred dollars; to inspect fish, not less than two hundred and fifty nor more than five hundred dollars ; and to inspect foreign and domestic spirits, linseed oil, lard and carbon or mineral oils, not less than seventy-five nor more than one hundred dollars. [S. & C, p. 732, sec. 82.] Sec. 461. License to be for one year ; vacancy. Upon the license fee, as required in the preceding section, being paid, the person named therein shall be authorized to act as such inspector for the period of one year from the date thereof; and in case of vacancy occurring by death or otherwise, during the term for which any 1 This section differs from the section as originally passed by the insertion of the word in italics. INSPECTORS. 155 inspector may have been licensed, the council may fill such vacancy by granting a license for such sum as may be deemed proper. [S. & C, p. 732, sec. 82.] Sec. 462. Extent of license. The said license may authorize the inspector or inspectors, or any one or more of them, to inspect any one or more of the articles named in the preceding section. [S. & C, p. 731, sec. 79.] Sec 463. Powers, penalties, etc., of inspectors. The inspectors shall, within and for said corporation, have the same powers, per- form the same duties, take the same oaths or affirmations, be gov- erned by the same rules, and liable to the same penalties, as are jjrescribed in the act entitled " an act for the inspection of certain articles therein enumerated," passed March ninth, one thousand eight hundred and thirty-one, and the act entitled " an act to amend the act entitled an act for the inspection of certain articles therein enumerated," passed February eleventh, one thousand eight hun- dred and thirty-two. [S. & C, p. 731, sec. 78.] Sec. 464. Inspectors may appoint deputies. Said inspectors shall have the power' of appoin ting as many deputies to act under them as their respective duties in office may require, and for the conduct of the deputy, the principal shall be accountable and held liable. [S. & C, p. 718, sec! 1.] Sec. 465. Oath, bond, etc., of inspectors. Every person so li- censed as an inspector, shall, before entering upon the duties of his office, take an oath or affirmation that he will faithfully and impartially execute the duties required of him by law, and shall enter into bond conditioned for the faithful performance of his duties as such officer, with sufficient security, to be approved by the council, as follows : For inspectors of beef, pork, butter and lard, the bond shall be three thousand dollars; and for inspectors of fish, foreign and domestic spirits, linseed, lard and carbon or mineral oils, one thousand dollars; which bond shall be filed in the office of the city clerk, and made payable to the treasurer of the corpo- ration, and shall be renewed, from year to year, as the council may require. [S. & C, p. 731, sec. 85.] Sec. 466. Injury from neglect or incapacity to be recovered. Any person injured by the misconduct, neglect, or incapacity of any inspector, may, within one year after the cause of action shall have accrued, institute suit on such official bond, but the corporation shall not be liable for the costs of such suit ; the said bond shall continue in force until the full amount of the penalty has been re- 15G INSPECTORS. covered, and any party obtaining judgment shall have execution. as in other oases. [S. & C, p. 732, sec. 81.] Sec. 467. Removal of inspector for cause. The council shall have full power and authority, on complaint and sufficient cause shown, to remove from office any inspector ; but no inspector shall be re- moved unless upon the vote of two-thirds of all the members circled. [S. & C, p. 732, sec. 84.] Sec. 468. Provisions of former act applicable to inspectors of oils. The council in the licensing of inspectors of carbon or mineral oils, and the inspectors of those oils, shall be governed by the pro- visions of an act entitled "an act to provide for the inspection of mineral oils for illuminating purposes, and to repeal acts therein named," passed April 16, 1867 ; and the said inspectors shall be liable to the penalties in said act now prescribed. [S. & S., p. 402.] Sec 469. Fees for inspection. The said inspectors shall be enti- tled to the following fees for their services, to be paid, on demand, by the party calling upon them, viz: For packing and inspecting every barrel of pork or beef, eighteen cents, and for every half- barrel, thirteen cents ; for every package or keg of butter or lard, ten cents; for packing and inspecting every barrel of fish, twenty cents, and for every half-barrel, fifteen cents ; and for inspecting and gauging foreign and domestic spirits, linseed oil, lard and car- bon or mineral oils, where there are less than twenty packages, tea cents each, and more than twenty, the sum of five cents each. [S. & C, p. 732, sec. 85; S. & S., p. 403, sec. 8.] Sec 470. Inspectors of beef, cattle, sheep, hogs, etc. The council of any city or incorporated village, whenever it may be deemed necessary, shall have the further power to appoint one inspector, and, if required, one or more assistant inspectors, of beef cattle, sheep, hogs, poultry, game, milk, milk cows, fresh meat and fresh fish. [S. & S., p. 822, sec. 93.] Sec 471. Mules for inspectors to be prescribed by ordinance. The council shall prescribe, by ordinance, the duties of said inspectors, define their powers and fix their term of office; and they are hereby authorized to prescribe penalties for the violation of ordinances passed in pursuance of this chapter, and determine the disposition of the above-named articles when upon inspection the}^, or either of them, are found to be foul, tainted, or otherwise unfit for food. [S. & S., p. 822, sec. 93.] Sec 472. Oath of office, bond, etc., of inspectors. Before any such inspector or assistant inspector shall enter upon the discharge of the duties of his office, he shall take an oath or affirmation that he TOWNSHIP ABSORBED BY CORPORATION. 157 will faithfully and impartially execute the duties required of him by law; and such inspector shall, moreover, enter into bond with sufficient security to be approved by the council, in such sum as the council may require, not less than one thousand dollars, made payable to the corporation where such inspector is appointed; which bond shall be deposited with the clerk, conditioned for the faithful and impartial performance of the duties required of him by law. [S. & S., p. 822, sec. 94.] Sec. 473. Compensation of inspectors. Said inspectors shall be paid such compensation, not exceeding the sum of fifteen hundred dollars each, per annum, in such manner and at such times as the council may determine. [S. & S., p. 822, sec. 94.] Sec 474. Inspectors for other purposes may be appointed. The council of any city or incorporated village may provide by ordi- nance for the appointment of a suitable number of inspectors, for all such purposes as are not provided for by law, who shall hold their office for the term of three years ; and for issuing licenses to such inspectors, and to regulate the fees to be paid them for their ser- vices. [S. & C, p. 1530, sec. 116.] CHAPTEK XLII. IDENTITY OP CORPORATION AND TOWNSHIP LINES — CHANGE OP TOWN- SHIP BOUNDARIES. Section Section 475. When office of township trustees, etc., 4S0. Change of boundaries in certain cases. shall be abolished ; infirmary directors. 481. Annexation of surplus territory, etc. 47(>. Powers and duties of infirmary directors. 482. When limits of two or more townships 477. Duties of corporation treasurer and clerk. shall constitute but one, etc. 478. Township property to vest in council, etc. 483. Application for change of boundaries 479. Suits, judgments, etc., to be transferred in certain cases. to corporation. Sec. 475. When office of toicnship trustee, etc., shall be abolished; infirmary directors. Whenever the corporate limits of any city or incorporated village become identical with those of any township, 1 1 Under section 7 of an act supplementary of an act entitled "an act to pro- vide for the organization of cities and incorporated villages, passed May 3, 1852," passed April 8, 1856 (S. <& C. 1-347), on the organization of a city of the second class, divided into wards, the boundaries of which city were not con- 158 TOWNSHIP ABSORBED BY CORPORATION. then and thereafter the office of township trustees, township treas- urer, and township clerk, shall he abolished and cease; and all of the powers and duties of trustees of townships, conferred or pre- scribed b}- law, shall vest in and be performed by the council, ex- cept as to binding out apprentices and administering relief to the poor ; and if such corporation is not already provided with an in- firmary, the council shall forthwith, and from year to year, appoint one or more, and not exceeding three, directors of the infirmary, and prescribe their duties by ordinance. [S. & C, p. 1547, sec. 175.] Sec. 476. Powers and duties of infirmary directors. Such directors shall be clothed with all the powers and perform all the duties of township trustees, as to binding out and protecting apprentices, in relieving and removing paupers, and in counties having county infirmaries to make orders relative to paupers ; which orders shall have the same validity, and be treated the same as like orders made by township trustees; and they shall have the power of recovering, in the name of the corporation, such expense as may be chargeable to other municipal corporations or persons. [S. & C, p. 1547, sec. 175.] Sec. 477. Duties of corporation treasurer and clerk. The duties of treasurer and clerk of such township shall be performed by the clerk and treasurer of the corporation ; arid all moneys collected or authorized by law to be paid to the township treasurer shall be paid to such corporation treasurer. [S. & C, p. 1548, sec. 175.] Sec 478. Township property to vest in council, etc. All property, terminous with those of any township, the territory within such city does not cease to he a part of the township or townships within the limits of which it is situate. State of Ohio ex rel. Halsey v. Ward et al., 17 Ohio St. 543. The inhabitants of such a city are entitled to vote for township trustees, clerk, treasurer, justices of the peace and constables, but must vote at the town- ship or precinct polls. When special city officers exist, charged with the duties performed by township officers outside of the city, as in the case of assessors and supervisors of highways, this right is by implication taken away. Ibid. But where the commissioners had power to create election precincts, and it appears in a quo warranto that the votes of city electors were cast for township trustees within their respective wards, "at the places properly fixed and desig- nated for holding such election," it will be presumed that the commissioners created precincts corresponding in boundaries with the wards. Ibid. Where the boundaries of a city and a township become identical, the city is liable to an action by the directors of a county infirmary for relief afforded to a pauper having a legal settlement in such city. Such action may be brought either in the county by which the relief was furnished, or in the county where he defendant is situated. Directors Muskingum County Infirmary v. Toledo, 15 Ohio St. 409. TOWNSHIP ABSORBED BY CORPORATION. l. r )9 real and personal, together with all moneys and credits, books, vouchers, records, files, accounts, documents, and bonds of an official character, in the possession or under the control of said township trustees, township clerk or township treasurer, or either of them, whose offices are thus abolished, shall vest in the council; and such township officers shall, when their offices have ceased by operation of this act, forthwith deliver over to the council of the corporation a full statement of their accounts, together with the property, moneys, credits, books, records, accounts, files, vouchers, official bonds and documents aforesaid. [S. & C, p. 1548, sec. 17G] Sec. 479. Suits, judgments, etc., to be transferred to corporation. All suits pending and judgments recovered by or against any such township, together with all rights, interests, claims and demands, in favor of and against the same, may be continued, prosecuted, collected or enforced by or against the corporation ; and all suits authorized by law to be brought by or against such township or township trustees, not caused' by their non-compliance with this act, shall be prosecuted by or against the corporation. [S. & C, p. 1548, sec. 176.] Sec 480. [As amended, January 13, 1873, 70 L. 4.] Change of boundaries in certain cases. If the limits of any corporation do not comprise the whole of any established township, 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 corpora- tion shall in either case, by a vote of a majority of the members thereof, petition the board of county 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, 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 town- ship or townships accordingly. [S. & C, p. 1548, sec. 177.] Sec. 481. [As amended, January 13, 1873, 70 L. 4.] Annexation of surplus territory, etc. If, in making such change, any township, not having within its limits a city or incorporated village, is re- duced in territory to less than twenty-two square miles, such township shall be by the commissioners thereupon annexed to any contiguous township or townships ; or the commissioners may an- nex thereto territory from any contiguous township or townships, and erect a new township, as in their opinion will best promote justice and public convenience. ■ Sec 482. [As amended, January 13, 1873, 70 L. 4.] When limits 160 TWO days' labor on streets. of two or more townships shall constitute but one, etc. Whenever the change of boundaries of townships is required under section four hundred and eighty, by reason of the extension of the limits of a corporation, the change shall be made by annexation to the town- ship 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. Sec. 483. Application for change of boundaries in certain cases. "Where the corporation is situate in two or more counties, the ap- plication authorized by section four hundred and eighty, may be made to the county commissioners of the county in which the largest portion of the territory of the corporation is contained. CHAPTEE XLIII. TWO DATS' LABOR ON THE STREETS — ROAD TAX. Section Section 484. Labor on streets, who are liable, etc. 488. Attachment of contiguous territory for 485. Penalty, etc., for refusal to perform labor. road purposes. 486. Road districts and street commissioners. 489. Collection of fines, forfeitures, etc. 487. Road taxes, how collected and applied. 490. Exemption from provisions of this chap- ter. Sec. 484. 1 [As amended, April 18, 1870, 67 L. 77.] Labor on streets ; who liable, etc. The council of any incorporated village or city shall have power to require each able-bodied male person, be- tween the ages of twenty-one and fifty-five years, resident within the corporation or within any contiguous territory that shall be attached thereto, for the purpose of this chapter, as hereinafter provided, to perform by himself or substitute, in each and every year, two days' labor upon the streets and alleys of such corporation, and upon the public roads or highways, or parts thereof, that lie within the contiguous territory so attached as aforesaid, which labor shall be in lieu of the two days' labor required under the present laws regulating roads and highways ; provided that active volunteer fire- men shall be exempt from performing said two days' labor ; and pro- 1 This section differs from the section as originally passed only in the addition «f the words in italics, and the substitution of "purpose," in the fifth line of this section, for " purposes " in the original. TWO days' labor on streets. 1G1 vided further, that such labor when so required, mat/ be commuted by the payment of a sum not exceeding three dollars, to be expended upon the streets where such labor would have been applied. [S. & C, p. 1553, sec. 202 ; S. & 8., p. 839, sec. 138.] Sec. 485. Penalty, etc., for refusal to perform labor. Upon re- fusal to perform such work under the proper street commissioner,. or other officer appointed by the council, the delinquent shall be liable to the same fines, penalties and forfeitures as are provided by law against persons refusing to perform the two days' labor upon the roads and highways in other cases; and the same shall be re- covered in the name of the corporation before' the mayor thereof. [S. & C, p. 1555, sec. 202; S. & S., p. 839, sec. 138.] Sec. 486. Road districts and street commissioners. The council shall have power to form road districts within the limits of the cor- poration and contiguous territory attached as aforesaid, and to appoint suitable street commissioners, or other proper officers, for any length of time, not exceeding two years, for such districts, or for the whole limits of such corporation and the contiguous territory attached as aforesaid, who shall be governed in the performance of their duties by the by-laws and ordinances of the corporation. [S. & C, p. 1555, sec. 202 ; S. & S., p. 839, sec. 138.] Sec. 487. Road taxes, how collected and applied. No tax assessed upon propertj 7- within the territory attached to any corporation as- aforesaid, shall be applied otherwise than within the territory in which the same is assessed ; and all taxes charged for road purposes on the property within the limits of the corporation, or the terri- tory so attached, and collected by the county treasurer, shall be paid over to the corporation treasurer, to be specially appropriated by the council to street and road purposes within the corporate limits and territory so attached ; and the trustees of the township in which said territory is located and the council may agree upon a different distribution or division of said funds. [S. & C, p. 1555, sec. 202 ; S. & S., p. 839, sec. 138.] Sec. 488. 1 [As amended, April 18, 1870, 67 L. 78.] Attachment of contiguous territory for road purposes. It shall be the d\xtj of the council and the trustees of townships, respectively, in which any such corporation shall be situated, as soon after the passage of this act as practicable, and when from the sparseness of population the public interest shall require it, to attach to the corporation any 1 This section differs from the original section only in the addition of the words in italics. 11 1C2 VACATION OF STREETS. territory lying contiguous thereto for the purposes mentioned in this chapter, and any portion of territory so attached may be detached and replaced under the control of the township trustees for road pur- poses, by the council, with the concurrence of the township trustees. (S. & S., p. 840, sec. 139.] Sec. 489. Collection of fines, forfeitures, etc. The said street com- missioners, or other proper officers, shall have power to collect by suit, all fines, forfeitures, and penalties arising under the provisions of this chapter ; and they are hereby authorized and required, be- fore their annual settlement with the council, to prosecute to final judgment all persons neglecting or refusing to comply with the provisions of this chapter, from whom, in the opinion of such street commissioners, or other proper officers, such fine, penalty, or for- feiture can be collected. |_S. & S., p. 840, sec. 140.] Sec. 490. Exemption from provisions of this chapter. All persons who are, or may be exempt from performing labor on the public highways by any law of this state, shall not be subject to the pro- visions of this chapter. CHAPTEE XLIV. VACATING STREET OR ALLEY. Section Section 491. Streets, may be vacated on petition, etc. 493. Effect of order of vacation, etc. 492. Notice of petition to be published. Sec 491. 1 [As amended, April 18, 1870, 67 L. 78.] Vacation of streets, change of name, etc. The council of any city or incorporated village, on petition filed by any person or persons owning any lot or lots in the corporation, praying that any street or streets, alky or alleys, in the immediate vicinity of such lot or lots, may be va- cated or narrowed, or a change of the name thereof, may, upon hear- ing, and being satisfied that there is good cause for such vacation or narrowing, or change of name, and that it will not be detrimental to the general interest, and that the same should be made, declare by ordinance such street or streets, alley or alleys, vacated, nar- rowed, or the name thereof changed. [S. & C, p. 1531, sec. 119.] 1 This section differs from the one originally passed only in the insertion of the words in italics, and the omission of "or" before "narrowed" in the last line but one DEPTH OP EXCAVATION. 1G3 *Sec. 492. [As amended, April 18, 1870, G7 L. 78.] Notice thereof to be published, etc. No street or alley shall be vacated or narrowed as aforesaid, unless notice of the pendency and prayer of the petition shall be given by publishing the same in some news- paper published or of general circulation in such corporation for six consecutive weeks jireceding action on such petition ; or in case no newspaper is published in the corporation, by posting such notice in three public places therein six weeks preceding such action ; and such action shall take place within three months after the comple- tion of such notice. [S. & C, p. 1531, sec. 119.] Sec. 493. Effect of order of vacation, etc. The order of the coun- cil, vacating or narrowing any street or alley which has been dedi- cated to public use b}^ the proprietor, shall, to the extent to which the same is vacated or narrowed, operate as a revocation of the -acceptance thereof by the council ; but the right of way and ease- ment therein of any lot-owner shall not be impaired thereby. CHAPTEE XLY. DAMAGES POR EXCAVATIONS. Section Section 494. Damages by excavation to be recovered by 495. Depth of excavation allowable, civil action. Sec. 494. Damage by excavation to be recovered by civil action. If the owner or possessor of any lot or land in anj r city or incorpo- rated village shall dig, or cause to be dug, any cellar, pit, vault, or excavation, to a greater depth than nine feet below the curb of the street on which such lot or land abuts, or if there be no curb, below the surface of the adjoining lots; and shall, by such excavation, cause any damage to any wall, house, or other building, upon the lots adjoining thereto, the said owner or possessor shall be liable, *Sec. 492. [As originally passed.] Notice of petition to be published. No street or alley shall be vacated or narrowed as aforesaid, unless notice of the pendency and prayer of the petition shall be given by publishing the same in some newspaper, published in such corporation, for six consecutive weeks immediately preceding action on such petition ; or in case no newspaper is pub- lished in the corporation, by posting such notice in three public places therein, six weeks imme- diately preceding such action. 1G4 BOARD OP IMPROVEMENTS. in a civil action, to the party injured, to the full amount of the damage aforesaid. 1 [S. & C, p. 1538, sec. 143.] Sec. 495. Depth of excavation allowable. Such owner or pos- sessor may dig, or cause to he dug, any such cellar, pit, or excava- tion, to the full depth of any foundation walls of any buildings upon the adjoining lots, or to the full depth of nine feet below the established grade of the street whereon such lot. abuts, without reference to the depth of adjoining foundation walls, without in- curring the liability prescribed in this chapter. [S. & C, p. 1538, sec. 145.] CHAPTEE XL VI. BOARD OP IMPROVEMENTS. Section Section 49G. Composition of board of improvements. 502. Powers and duties of board. 407. Duties of board of improvements. 603. Petitions to be presented to board, etc. 498. Powers of the board. 504. Special boards of improvements in vil- 4011. Clerk of board, his duties, etc. lages. 500. Superintendents of improvements. 505. Powers and duties thereof. 501. No improvements without recommenda- 500. No compensation allowed. tion of board. Sec. 496. 2 [As amended, April IS, 1870, G7 L. 78.] Board of city improvements. Whenever the council of any city shall estab- lish a board of improvements, such board shall be composed of 1 Where the natural surface of adjoining city or village lots' has heen changed by filling or grading, the words "surface of the adjoining lots," as used in sec- tion 494 of the municipal code, are to he understood as designating the existing or artificial, and not the original or natural surface of the lots. Burkhardt v. Hanley, 23 Ohio St. 558. The meaning and effect of sections 494 and 495 is to subject a party to the liability therein provided, where he makes an excavation on his lot deeper than the foundation walls on the adjoining lot, and more than nine feet below such actual or existing surface, or if the street be curbed or graded more than nine feet below the curb or grade. Ibid. The provision of the municipal code, that adjoining lot-owners may not ex- cavate a greater depth than nine feet without responsibility to each other for resulting injuries, is not applicable to excavations made by a municipal corpora- tion. Allison v. Cincinnati, 2 Superior Court Eeporter, 462. 2 This section differs from the section as originally passed only in the addition of the words in italics, and the substitution of "determined," in the seventh line, for "provided" in the original section. BOARD OF IMPROVEMENTS. 165 the mayor, the civil engineer, the street commissioner, the chair- man of the committee on streets of the city council, and one resi- dent freehold elector of the corporation, to be appointed by the mayor with the consent of the council, for such time as may, by ordinance, be determined; provided, however, that in cities of the first class haviny a population exceeding one hundred thousand at the last federal census, such board shall be composed of the mayor, the civil en- gineer, the street commissioner, tico resident freehold electors of the cor- poration, to be elected by the council, and the chairman of the committee ■on streets of the board of aldermen and the board of councilmen. [S. & C, p. 1518, sec. 75 ; S. & S., p. 832, sec. 128.] *Sec. 497. [As amended, April 18, 1870, 67 L. 78.] Duties of board. It shall be the duty of the board to supervise the cleaning, repairing, and improving of all streets, alleys, avenues, lanes, pub- lic wharves and landings, market houses and spaces, bridges, sew- ers, drains, ditches, culverts, ship channels, streams and water- courses, and the lighting of all such public places as may be deemed necessary, within the corporation, under the control of the council of the city. [S. & S., p. 831, sec. 123.] Sec. 498. Powers of the board. It shall have power to adopt such rules and regulations' for its government as it may deem neces- sary and expedient to effect the purpose of its organization, not in- consistent with the ordinances of the corporation or constitution or laws of the state. [S. & S., p. 832, sec. 127.] Sec. 499. Clerk of the board, his duties, etc. It shall have power to appoint a clerk, whose duty it shall be to attend all meetings of the board, and keep a complete journal of all its proceedings, orders, and resolutions, which journal shall be at all times open for public inspection. It shall also be the duty of the clerk to perform such other duties as the board shall from time to time require ; and he shall be entitled to receive such compensation for his services as the council, upon the recommendation of the board, may deter- mine. [S. & S., p. 832, sec. 126.] Sec 500. Superintendents of improvements. Such board shall also have power to employ such person or persons to superintend and perform the work of making improvements as the interests of the corporation demand ; and the services of such employes shall * Sec. 497. [As originally passed.] Duties of board of improvements. It shall be the duty of the board to supervise the Lighting, cleaning, repairing, and improving of all streets, alleys, avenues, lanes, public squares and park), public wharves and landings, market houses and spaces, bridges, sewers, culverts, and ship channels, navigable streams, and water-courses, within the corporation, •or the control of the council thereof. 16G BOARD OF IMPROVEMENTS. "be paid, on recommendation of the board, in such manner as the. council may determine. [S. & S., p. 832, sec. 12C] *Sec. 501. [As amended, April 18, 1870, 67 L. 79.] No improve- ments without recommendation of board. No improvement or repairs shall be ordered or directed by the council in any corporation where such board has been created, for any street, lane, alley, avenue, mar- ket houses or spaces, bridges, sewers, drains or ditches, culverts, navigable streams, water-courses, ship channels, public wharves or landings of the corporation, except on the recommendation of the board of improvements. 1 [S. & C, p. 152G, sec. 101 ; S. & S., p. 831, sec. 124.] 1 "When the minutes of the board of city improvements showed that the hoard, on the 21st day of August, 1863, adopted a resolution "that the clerk prepare and transmit to the city council an ordinance to grade and macadam- ize " a certain street, and the minutes of council showed that such an ordi- nance, with a written report and recommendation annexed, but not signed by the clerk, was, on the same day, presented to them as coming from the board of city improvements, and passed: Held, that this was a sufficient report and recommendation, under section 105 of the municipal corporation act of 1852. S. & C. 1526. Fisher v. Graham, 1 Cincinnati Superior Court Reporter, 113, Taft and Hagans, J J. ; Storek, J., dissenting. But where the minutes of the board of city improvements read that a peti- tion was presented " at a joint session of the board of city improvements, and committee of public improvements of the city council, held this day — in attendance, John Horton, Frederick Stagge, Jeremiah Kiersted, city commis- sioners, and A. W. Gilbert, city civil engineer; committee of public improve- ments of the city council, present J. M. Noble, chairman" — for the improvement; and on motion the clerk was directed to prepare and transmit to council an ordinance for the improvement. " The joint session then closed, and the board of city improvements proceeded to regular business.'' No report appearing-' with the ordinance, but the record of council showing that the ordinance was presented as coming from the board of city improvements: Held, that oral evidence was not admissible to supply defects in the record, and that the record did not show a recommendation by the board sufficient to give council jurisdic- tion, and therefore the assessment was void. Reynolds and Ahern v. Schweine- fus, 1 Cincinnati Superior Court Reporter, 215; Hagans and Stoker, JJ. Taft, J., dissenting, held that presumptions must be in favor of public officers; that as the council would have committed a breach of their public duty in passing the ordinance without recommendation, it must be presumed to have been recommended; that the record showed a recommendation sufficiently, * Sec. 501. [As originally passed. J No improvements without recommendation of board. No im- provement or repairs shall be ordered or directed by the council for any street, lane, alley, ave- nue, park, public grounds, mirket bouses or spaces, bridges, Bewers, culverts, navigable streams, •water-courses, ship channels, public wharves or landings of the corporation, except on the re- port and recommendation of the board of improvements. 1 See note to section 550. BOARD OF IMPROVEMENTS. 1G7 Sec. 502. Powers and duties of board. The board shall exercise such powers and perform such duties in the superintendence and construction of public works and improvements constructed by authority of the council or owned by the corporation, and perform such other duties relating to the public improvements and the en- forcement of ordinances relating to the streets of the corporation, as the council may from time to time prescribe. 1 [S. & C, p. 1518, sec. 75; S. & S., p. 832, sec. 128.] Sec 503. Petitions to be presented to board, etc. All petitions for improvements from owners of property shall be presented to the board, who shall report from time to time to the council when any such improvement is necessary or proper ; and when any as- sessment is required, they shall report the same, and an estimate of the amount to be assessed, and the council shall take such action thereon as may be deemed proper. [S. & C, p. 1526, sec. 101 ; S. & S., p. 832, sec. 125] Sec 504. Special boards of improvement in villages. The council of any incorporated village, in which there is no civil engineer or street commissioner chosen b}^ the electors, shall have the power and that parol evidence could be received of the acts of the board, the statute not prescribing a record at all, much less making it the only evidence. Ibid. The act of March 24, 1863, required that the city, in improving the bed of the Miami Canal for avenue and sewerage purposes, should preserve the water- power, and secure the approval of the board of public works to its plan of im- provement. In 1863, the board approved the plan adopted by the city for a por- tion of the work. In 1864, the city entered into a contract with plaintiff to construct a raceway according to such plan, for the purpose of preserving the plaintiffs' water-power. In 1867, the board of public works made another or- der, requiring the city to enlarge and extend the raceway. Held, that the board of public works, having previously approved the plan submitted by the city, had exhausted its power, and that the order of 1867 was void. Miami Machine Works v. Cincinnati, Hamilton District Court, MS. Ls74. 1 L. agreed in writing with the railroad company " to release the right of way and the right to enter upon, and construct its railroad'' through his lands. In consideration whereof, the company agreed to pay a certain sum of money at a future day, and construct certain road crossings and cattle-guards upon L.'s land. The company took possession, and constructed its road before receiving a deed for the right of way, and before payment of the money or constructing the crossings or guards. Held, that L. is entitled to an equitable lien upon the property sold, as well for the damages for not constructing the road in the manner provided for in the contract, as for the unpaid purchase-monej*. And where the right of the public to maintain the continuity of a public highway (as well as the rights of other parties interested], precludes the right to sell a section of a railroad, a necessity arises to decree the sale of the whole road, in order that equity may be done. D. X. & B. 11. It. Co. v. Lewton, 20 Ohio St. 402. 1C8 CONDEMNATION. to appoint two resident freehold electors of the corporation, who .shall hold their office for two years, and who, with the mayor, shall constitute the hoard of improvements of such corporation. Sec 505. Powers and duties thereof. Such board shall have the same powers and perform the same duties in respect to the incor- porated village as are invested in and required of the board of city improvements under the preceding section of this chapter. Sec. 506. No compensation allowed. The board of improvements shall not be entitled to receive any compensation for their services. CHAPTER XL VII. APPROPRIATION OF PRIVATE PROPERTY BY MUNICIPAL CORPORATIONS FOR PUBLIC USES. Section 507. Purposes for which private property may be appropriated. 508. Appropriations for right of way, etc. 509. Definitions. 510. Appropriation of turnpikes or plank- roails. 511. Concurrence of two-thirds of council nec- essary for condemnation, etc. 512. Declaration of purpose to appropriate, etc. 513. Application to court, etc. 514. Personal service of notice to owners, etc. 515. Court to set a time for inquiry, etc. 516. Special term of court may be held. 517. Jurors in probate court, how drawn, etc. 518. Inquiry, etc., to be at time appointed. 519. A view of the premises may be required. 520. Guardian ad litem for infants, etc. 521. Fuller description of property may be re- quired. 522. Assessment, how made. 523. Verdict in whole or in part. Section 524. Order as to payment or deposit. 525. Time and manner of delivery of prop- erty. 526. Costs, how to be paid. 527. No delay from doubt of ownership. 528. Interested parties may give bond, etc. 529. Review, when and how it may be had. 530. When execution of order may be sus- pended. 531. Appeal to court of common pleas. 532. Notice of appeal and guaranty. 533. As to appeal by guardian, married woman, etc. 534. Probate judge shall furnish transcript, etc. 535. Original papers may be used. 536. Corporation shall not appeal. 537. Effect of neglect to take possession in 6ix months. 538. Provisions of this chapter applicable to villages. Sec 507. 1 [As amended, April 17, 1870, 67 L. 79 ; February 14, 1873, 70 L. 24. and April 25, 1873, 70 L. 159.] Purposes for which private property may be appropriated. [S. & C, p. 1501, sec. 26.] CONDEMNATION. 1G9 Each city and incorporated village shall have power to appropri- ate, enter upon and hold real estate within its corporate limits for the following purposes, but no more shall be taken or appropri- ated than is reasonably necessary for the purpose to which it is to be applied :* 1. For opening, widening, straightening, and extending streets, allej-s, and avenues; also, for obtaining gravel or other proper material for the improvement of the same, and for this purpose the right to appropriate shall not be limited to lands hying within the limits of the corporation. 2. For market-space. 3. For buildings and structures required for the use of the fire department. 4. For public halls and necessary offices. 5. For prisons. 6. For infirmaries. 7. For work-houses. , S. For houses of refuge and correction. 9. For public hospitals. 10. For public parks ; and for this purpose the right to appro- priate shall not be limited to lands lying within the limits of the corporation. 11. For gas-works. 12. For Avater-works; and for this purpose the right to appro- priate shall not be limited to lands lying within the limits of the corporation. 13. For school-house sites and grounds, the same having been recommended, and the site selected by the board of education ; or for university site and grounds, the same having been recommended and the site selected by the board of directors of any university whose propert} 7 is exclusively owned, and whose directors are ap- pointed by said municipal corporations. 1 Under section 20 of the act of 1852, governing municipal corporations, the ■discretion of determining the quantity of ground required by the municipal cor- poration is vested in the corporation, and the court can not interfere with this determination, in the absence of proof of fraud, or bad faith, or that the prop- erty is intended to be used for purposes other than that for which it is appro- propriated. Iron K. K. Co. v. Ironton, 19 Ohio St. 299. "Where fraud or bad faith in the exercise of the power is shown, the courts will interfere. Ibid.; Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 308. 170 CONDEMNATION. 14. For public cemeteries; and for this purpose the right to appropriate shall not he limited to lands lying within the corpora- tion. But no land shall be appropriated under this provision until the court shall be satisfied that suitable premises can not be ob- tained by contract upon reasonable terms; and no lands shall be appropriated upon which there may be any dwelling-house, barn, stable, or other farm-building, or upon which there shall be any orchard or nursery % or any valuable mineral or other medical spring, or any well actually yielding oil or salt water; nor shall any land be appropriated within two hundred yards of any dwell- ing-house. 15. For public wharves and landings on navigable waters. 16. For levees to protect against floods ; and for this purpose the corporation shall have power to appropriate, enter upon, and take private property lying outside of the corporate limits, and may extend and strengthen its levees and embankments along any river or stream adjacent to the limits of the corporation, and may widen the channel of such river or stream. 17. For necessary bridges. 18. For constructing, opening, excavating, improving, deepen- ing, enlarging, straightening, and extending any canal, ship-canal, or water-course, located in whole or in part within the limits of the corporation, which is not owned in whole or in part by the state, or by any company or individual authorized by law to make such improvement. 19. For sewers, drains, and ditches; and for this purpose the corporation shall have power to appropriate, enter upon, and take private property lying outside the corporate limits. 20. For public water-closets and privies. 21. For lighting any public use. Sec. 508. Appropriation for right of ivay, etc. The power to appropriate may also be exercised for the purpose of operating or extending streets or alleys across railway tracks, and lands held or owned by railway companies : Provided, such appropriation shall not unnecessarily interfere with the reasonable use of such road or land by the railway company. Said power may also be exercised where it is necessary to require the right of way to, or additional grounds for the enlargement or improvement of the public works herein specified. And whenever material is required for the construction, improvement, or repair of any such works, the corporate authorities are empowered to appropriate and take CONDEMNATION. 171 the same, and for this purpose they may go outside the corporate limits. 1 [S. &. C, p. 1501, sec. 26.] Sec. 509. Definitions. The terms "land" and "real estate," as used in this chapter, shall he regarded as including rights and easements of any incorporeal nature. Sec 510. Appropriation of turnpikes and plank-roads. When any turnpike or plank-road terminates within the corporate limits, any portion of such turnpike or plank-road 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 for use as such, 2 1 The right of a railroad company to enjoy the use of its road at the crossing of a common highway, and the right of the traveling public to use the high- way, are co-ordinate and equal. Seasonable care and prudence must be exer- cised by each in the use of the crossing, so as not to interfere unnecessarily with the other. P. Ft. W. & C. K. Co. v. Maurer, 21 Ohio St. 421. By the provisions of section 33 of the act of May 1, 1854 (S. & C. 279), the duty of restoring a highway diverted in the construction of a railroad to "such condition as not to impair its former usefulness," is imposed upon the corpora- tion, and it is liable for injuries resulting from its neglect to do so. But when such highway has been fully restored to such condition, the corporation is under no obligation to keep the same in repair. Ibid. If, however, after such highway has been fully restored, the railroad company wrongfully encroaches upon the highway, or impairs its usefulness, it will be held liable for damages resulting from such wrongful encroachment or impair- ment. Ibid. Under the act of May 3, 1852 (50 Ohio L. 223), cities and villages are au- thorized to lay streets across land which is the subject of the franchise of a rail- road corporation, provided the second use for which the land so taken is, in the circumstances of the particular case, reasonably consistent with the former use. The land may, in such case, be subjected to the additional use, hut the former use may not thereby be defeated. L. M. E. K. Co. v. Dayton, 23 Ohio St. 510. The exercise by a municipal corporation of the discretion intrusted to it by the act referred to, in respect to the laying-off and location of streets, so long as such corporation acts in good faith, and within the limits of its authority, is not subject to judicial revision. Ibid. 2 The county commissioners being authorized by an act of the legislature to collect tolls ou a turnpike road for the purpose of keeping the road in repair, are not authorized to continue the collection of tolls within the city limits, after the annexation to the city of territory containing part of the turnpike ; for the city is required by law to keep all highways within its limits in repair, and the necessity for the collection of such tolls ceased by reason of the annexation, as did the jurisdiction of the county commissioners over the road. Per Murdock, J., Cincinnati v. Coram' rs of Hamilton Co., Hamilton Common Pleas, MS. 1874. 172 CONDEMNATION. according to the provisions of this chapter. [S. & S., p. 841, sec. 141] Sec 511. Concurrence of two-thirds of council necessary for con- demnation, etc. No improvement requiring proceedings for the condemnation of private property, shall be made without the con- currence, in the by-law, ordinance, or resolution directing the same, of two-thirds of the whole number of the members elected to the council. [S. & C, p. 1525, sec. 100 ; S. & S., p. 846, sec. 161.] Sec 512. Declaration of purpose to appropriate, etc. When it shall be deemed necessary by any municipal corporation to appro- priate private property, as above provided, the council shall, by resolution, declare such intent, defining therein the purpose of the appropriation, and setting out a pertinent description of the prop- erty designed to be appropriated. 1 On the passage of such resolu- tion, the yeas and nays shall be taken and entered on the record of the proceedings of the council. [S. & C, p. 1503, sec. 27.] Sec 513. Application to court, etc. Upon the passage of the res- olution by the requisite majority, application in writing shall be made to the court of common pleas of the proper county, or to the judge thereof, in vacation, or to the probate court of the proper county, which application shall describe as correctly as maybe the property to be taken, the object proposed, and shall name the owners of the property, and of each lot or parcel thereof, known. [S. & C, p. 1503, sec. 27, and p. 1553, sec. 197.] Sec 514. [As amended, February 4, 1875, 72 L. 25.] Personal service of notice to owners. Notice of the time and place of such application shall be given personalty, in the ordinary manner of serving legal process, to all the owners of the property sought to be appropriated, resident in the state, whose place of residence is known ; and to all others, b} T publishing the substance of the ap- plication, with a statement of the time and place at which it is to be made, for three weeks next preceding the time of the application, in some newspaper of general circulation in the county.' 2 [S. & C, p. 1503, sec. 27.] 1 As to what is a sufficient description of the property taken, see Cleveland and Toledo II. It. Co. v. Prentice, 13 Ohio St. 373. When land is appropriated for an embankment, a necessary consequence of which is the diversion of a water-course, the latter falls within the appropria- tion for which compensation was made. Hueston v. Eaton and Hamilton It. R. Co., 4 Ohio St. G85, 689; see also Ward v. Marietta and N. P. and B. Co., 6 Ohio St. 15. 2 Under section 27 of the municipal corporation act of 1852 (which was in CONDEMNATION. 173 Sec. 515. Court shall set a time for inquiry, etc. If it shall ap- pear to the court or judge that such notice has been served five days before the time of the application, or has been published as above provided, and that such notice is reasonably specific and certain, the court or judge may set a time for the inquiry into and assessment of compensation, by a jury of twelve men, unless all the parties shall agree upon a less number, who shall be duly sworn to discharge that duty. [S. & C, p. 1503, sec. 27.] Sec. 51G. Special term of court may be held. If the application be in the court of common pleas, and such court shall not be in session on the day fixed for the inquiry and assessment of compen- sation, the judge of the court of common pleas of the subdivision in which the property is situated, or in case of his absence, interest or disability, any other judge of said court within the district shall hold a special term of said court, for the purpose of hearing and determining such inquiry and assessment, and shall direct a jury to be summoned for the purpose of making such inquiry, in the same manner that petit jurors are summoned in the court of common pleas for other purposes. [S. & C, p. 1503, sec. 27.] Sec. 517. Jurors in probate court, how draicn, etc. If the appli- cation be in the probate court, the clerk of the court of common pleas of the county shall, on the day fixed for the application, in the presence of the probate judge, draw twelve names, or such less number as may be agreed upon by the parties, from the box con- taining the names of persons selected as jurors for the county; and the persons so drawn shall be summoned and serve as the jury, unless excused or set aside by the court for good cause shown. If, for any cause, the panel is not full, the probate judge shall fill the same from the bystanders. [S. & C, p. 1503, sec. 27.] Sec. 518. Inquiry, etc., to be at the time appointed. The inquiry and assessment shall be made at the time appointed, unless, for good cause, continued to another day. 1 [S. &. C, p. 1503, sec. 27.] this respect the same as the present section), it was held that it was not sufficient to publish a statement of the appropriation, and a description of the lands to be taken, suhstantially as set forth in the application; but a full copy of the appli- cation must he published. Harbeck v. Toledo, 11 Ohio St. 219. 1 In proceedings in the probate court, under the act of April 80, 1852, a jury is to be impaneled to try all the cases, hut each party has a right to his chal- lenges, as if the trials were separate. Giesy v. C. AV. & Z. K. K. Co., 4 Ohio St. 308. Under the act of 1852, regulating the proceedings of private corporations, each party, after the jury is impaneled, has a right to a separate trial. Ibid. But under the municipal corporation act of 1852, it is held in the probate 174 CONDEMNATION. Sec. 519. A view of the premises may be required. A view of tho premises shall be ordered, when desired by the jury, or demanded by any party interested in the proceeding. [S. & C, p. 1503, sec. 27.] Sec. 520. Guardian ad litem for infants, etc. If, at the time of such application, it shall appear that any of the owners of the property sought to be appropriated are infants, or insane, and that court and in the court of common pleas of Hamilton county, that a party has not a right to a separate trial, hut the cases are to be heard together in such numbers as in the discretion of the court may seem proper. In the court of common pleas of Hamilton county, the opening and close is given to the municipal corporation. The point was distinctly ruled in Cin- cinnati v. Bates. But in the probate court, the opening and close was, in Cin- cinnati v. Storrs Turnpike Co., given to the property-owner, and I am informed the same ruling was made in the Muskingum common pleas. The owner is entitled to receive the fair cash value of the property at the time it is taken, so much as he might fairly expect to sell it to others for if it ■was not taken ; and this amount is not to be increased from the necessity of it to the corporation on the one hand, nor diminished from any necessity to sell it on the other ; it is to be valued precisely as it would be appraised for sale upon execution, or by an executor or guardian ; and without any regard to the exterior causes that may have contributed to make up its present value. The jury are not required to consider how much, nor permitted to make any use of the fact that it may have been increased in value by the proposal or construc- tion of the work for which it is taken. Giesy v. C. "VV. & Z. K. R. Co., 4 Ohio St. 308. The owner of property is a competent witness on his own behalf. Sections 604 and 605 of the code have reference only to the forms of proceeding, and not to the competency of witnesses. Atlantic & G. W. Pi. R. Co. v. Campbell, 4 Ohio St. 583. A witness can not state his opinion of the damage; that is the question that the jury are to determine from the facts. He can describe the manner in which the property is affected, and state his opinion as to the value of the property. Ibid.; C. & P. R. R. Co. v. Ball, 5 Ohio St. 568. "Where land is valued, the limits of compensation may be comprehended in the following : First, the abstract value of the quantity of ground taken ; second, 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 third, the effect upon the residue of the owner's land, arising from the uses for which the appropriation is made. C. & P. R. R. Co. v. Ball, 5 Ohio St. 568, 575. Whether local incidental benefits can be set off against local incidental dam- ages, see Ibid., and Little Miami R. R. Co. v. Collett, 6 Ohio St. 182. Sales of neighboring property are not competent on direct examination, at least unless the sale be of precisely similar property very near and very recent, and perhaps not even then, but on cross-examination they may be inquired into to test the witnesses' knowledge. Cincinnati v. Bates, Hamilton District Court; 6ee also McCracken v. "West, 17 Ohio, 16, 24. CONDEMNATION. 175 they have no guardian, a guardian ad litem shall be appointed to act in their behalf. 1 [S. & C, p. 1502, sec. 27.] Sec. 521. Fuller description of property may be required. The corporation may be required to file a more full and accurate de- scription of the property to be taken, and the object proposed, and maps, plats and surveys, if, in the opinion of the court, the same shall be necessary and proper. [S. & C, p. 1503, sec. 27.] Sec. 522. Assessment, how made. The assessment shall be in writing, signed by the jury, and shall be made so the amount pay- able to each owner may be ascertained, either by allotting it to each owner by name, or on each lot or parcel of land ; 2 and the inquiry and assessment shall, in other respects, be made by the Where land originally taken for one public use is transferred to another, the measure of compensation to the owner is compensation for such additional "burden and inconvenience, not common to the general public, as accrues to him and his entire tract on which the easement is imposed, by reason of the change of uses to which the lands appropriated have been subjected. Hatch v. C. & I. E. E. Co., 18 Ohio St. 92. "Where land once taken for canal purposes is appropriated from the canal by a railroad, its value is not what the property is worth for canal purposes alone, or for any other particular use, but what it was worth generally lor any and all uses for which it might be suitable. Goodin v. Cincinnati and Whitewater Canal Co., 18 Ohio St. 169. "Where a strip of land was used in common by a canal and turnpike, and it is taken by a railroad, and a track constructed thereon, the measure of damages to the turnpike company is the diminution of the productive value of its prop- erty, caused by reason of the change of the canal to a railroad, excluding, how- ever, all diminution arising merely from competition between the two roads as means of transportation and travel. C. & I. E. 11. Co. v. Zinn., 18 Ohio St. -417. A motion for a new trial, when the verdict is unsatisfactory, is neither nec- essary nor proper. The remedy is by petition and report to the district court. Bates v. Cincinnati, Hamilton District Court. The corporation appropriating land may decline to take it, and judgment can not be entered against them for the price. State ex rel. Hayes v. Cincinnati and Ind.R. E. Co., 17 Ohio St. 103. 1 Under the act of 18.52, it was held that proceedings to asses the compen- sation for property belonging to a minor are invalid unless a guardian ad litem is appointed, although the minor is actually represented in the case by an at- torney employed by his actual guardian, and the fact of minority is not made known until after the trial. Wewell v. Cincinnati, Hamilton District Court, MS. 2 Where the jury in allotting the sum upon the lots set a gross sum upon two lots belonging to different owners, it is error in the court to apportion the sum. but if the jury has been dismissed before the error is noticed, another jury must be impaneled. Ibid. 176 CONDEMNATION. jury, under such rules and regulations as shall be given by the 'court. [S. & C, p. 1503, sec. 27.] Sec. 523. Verdict in whole or in part. The jury shall be sworn to make the whole inquiry and assessment, but may be allowed to return a verdict as to part, and be discharged as to the rest, in the discretion of the court; and in case a jury shall be 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, as the case may be. [S. & C, p. 1504, sec. 27.] Sec. 524. Order as to ■payment or deposit. So soon as the amount of compensation which may be due to the owners of the property to be taken, or to any of them, shall have been ascertained by the jury, the court shall make such order as to its payment or to its deposits, as shall be deemed right and proper in respect to the time and place of payment or deposit, or to the persons entitled to receive payment, and the proportion payable to each, 1 and may require adverse claimants for any part of the money or property, to interplead, so as fully to settle and determine their right and in- terest according to equity and justice. 2 [S. & C, p. 1504, sec. 28.} Sec. 525. Time and manner of delivery of 'property. The court may direct the time and manner in which possession of the prop- erty condemned shall be taken or delivered, and may, if necessary, enforce any order giving possession. [S. & C, p. 1504, sec. 28.] Sec. 526. Costs, how paid. The costs occasioned by the inquiry and assessment shall be paid by the corporation, and the other costs which may arise shall be charged or taxed as the court in its- discretion may direct. [S. & C, p. 1504, sec. 28.] Sec. 527. No delay from doubt of ownership. No delay in mak- ing an assessment of compensation, or in taking possession, shall be occasioned by any doubt which may arise as to the ownership of the property, or any part thereof, or as to the interests of the respective owners; but in such cases the court shall require a deposit of the money allowed as compensation for the whole prop- 1 The liability of a lessee to payment is not extinguished by the appropria- tion of tin 1 leased ground for public uses, and he is entitled to be compensated by the city for this liability. Foote v. Cincinnati, 11 Ohio, 408. 2 Where the city claims title to a portion of the ground required for some public use which is in the possession of third parties, it is not bound to await the tedious progress of an ejectment, but may condemn the property, have its value assessed, pay the money into comt, and litigate its rights by a claim to the money. The appropriation does not estop it. Wewell v. Cincinnati, Ham- ilton District Court. CONDEMNATION. 177 erty, or the part in dispute; and in all cases, as soon as the cor- poration shall have paid the compensation assessed, or secured its payment by a deposit of mone} r under the order of the court, pos- session of the property may be taken, and the public work or im- provement progress. 1 [S. & C, p. 1504, sec. 2S.] Sec. 528. Interested parties may give bond, etc. Any person or persons interested in the appropriation of private land for any street, alley, or public highway, may, before or after the passage of an ordinance for the opening of such street, alley, or public highway, or before or after application to the court, execute his, her, or their bond, payable to the corporation, to the acceptance of the council, conditioned for the payment of all damages which may be assessed by the jury ; and such bond shall be good in law, and if such bondsmen shall make payment or deposit according to the order of the court, then such street, alley, or highway shall be opened ; or the corporation may, at its discretion, make such payment or deposit, and collect by law the amount of such dam- ages of such bondsmen, with or without costs, as the court may direct. [S. & C, p. 1504, sec. 28 ] Sec. 529. Review, when and how it may be had. ""Where the pro- ceeding was in the court of common pleas, whether upon an origi- nal application therein, or upon an appeal from the probate court, any party interested in such inquiry and assessment, who shall feel aggrieved by the finding of the jury, or the order of the court, 1 Where a railway company, in proceedings under the statute for condemna- tion of private property, pays in court the damages assessed, and takes posses- sion of the property, and upon petition in error, the assessment is set aside, and a new assessment awarded, it is competent for the jury, in making the latter as- sessment, to allow and include in their verdict, interest from and after the time- when possession was taken, and while the money was retained by the court. A. & G. W. R. Co. v. Koblentz, 21 Ohio St. 334. Plaintiff had a mortgage interest in one of the lots appropriated for Gilbert avenue, but he was not made a party to the proceeding to condemn. The amount of the verdict returned as the value of the lot was paid into court, and the plaintiff then made a party to the proceeding commenced in the probate court for the distribution of the money. Plaintiffs residence was unknown to the city officers, and publication was made by the court of the pendency of the proceedings. He failed to appear, and the money was paid to other parties. He thereupon brought suit in the Superior Court to subject the lot in question to the payment of his mortgage. Held, that he could not recover ; the payment into court of the money, to be there distributed was sufficient to vest the title to the land in the city. Per Yavle, J., Potts v. Cincinnati, Superior Court of Cincinnati, MS. 1874. 12 378 CONDEMNATION. may have the part thereof in which such party may be interested and feel aggrieved, reviewed in the district court, by filing a peti- tion for that purpose in the court of common pleas during the term at which the finding or decision complained of shall have been made ; and it shall be the duty of the court of common pleas to report, in the nature of a bill of exceptions, the facts necessary to show the ground of the finding or decision ; and said petition .and report, or a transcript thereof, being filed in the district court (which shall be done on or before the first day of the next term thereof), the matter shall be heard and determined; and if the court shall find that right and justice has not been clone, a new assessment may be ordered by a jury in that court, which shall be made without delay, at the same term, if practicable; or such other final order or judgment shall be made as may be deemed proper and equitable. [S. & C, p. 1505, sec. 29.] Sec. 530. When execution of order may be suspended. When such petition shall be filed, the court of common pleas may suspend the -execution of any order which may have been made, on such terms as may be deemed proper, and may require a bond, with security for the payment of any damages or costs which may be thereby occasioned ; but in all cases where the municipal corporation shall pay, or secure by a deposit of money, the compensation assessed by the jury, and shall give such security as may be deemed ade- quate to pay any further compensation, and all damages and costs which may be adjudged in the district court, the right to take and bold the property condemned shall not be affected by any such re- view. [S. & C, p. 1505, sec. 29.] Sec 531. Appeal to court of common pTeas. Where the proceed- ing was had in the probate court,' any party interested in the in- quiry and assessment 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 application, and the inquiry and assessment shall be limited to the case of the part} T taking the appeal. The court shall make such order for the payment of the costs accruing upon the appeal as may seem equi- table and just. [S. & C, p. 1218, sec. 37; S. & S., p. 620, sec. 1.] Sec 532. Nature of appeal and guaranty. The party desirous of appealing, shall, within ten days after the date of the final order determining the rights of such party, file with the probate judge notice of his or her intention to appeal; and shall further, within twenty days after the making of said order, give a written under- CONDEMNATION. 179 taking to the adverse party, with one or more sufficient sureties to be approved by the probate judge, conditioned that the party ap- pealing shall abide by and perform the order, judgment or decree of the appellate court, and pay all costs or moneys which may be awarded against said party by such court. [S. & C, p. 1218, sec. 38.] Sec. 533. As to appeal by guardian, married woman, etc. When the appeal is taken by any person as guardian, executor, or admin- istrator, who has given bond as such to the state, no undertaking shall be required from such guardian, executor, or administrator. "When an appeal is taken by a married woman, it shall be sufficient if the undertaking is signed by her surety or sureties. [S. & C, p. 1218, sec. 40.] Sec 534. Probate judge shall furnish transcript, etc. The pro- bate judge shall, upon the giving of the undertaking as above pro- vided, or upon the filing of notice of the intention to appeal where no undertaking is required, make out an authenticated transcript of the docket or journal entries, and of the order or decision ap- pealed from, which shall be forthwith filed with the clerk of the court of common pleas by the person appealing, and the appeal shall thereupon be considered perfected. If the transcript is not filed within thirty days after the date of the undertaking, or the filing of the notice of intention to appeal where no undertaking is required, the party shall be deemed to have waived an appeal. [S. & C, p. 1218, see. 39.] Sec. 535. Original papers may be used. The original papers per- taining to the proceeding may be used upon the hearing or inquiry in the court of common pleas, and shall be transmitted by the pro- bate judge for that purpose. [S. & C, p. 1218, sec. 39.] Sec 536. Corporation shall not appeal. The municipal corpora- tion shall have no right of review or appeal. Sec 537. Effect of neglect to take possession in six months. When- ever a municipal corporation shall make an appropriation of land for any purpose specified in this chapter, and shall fail to pay for or take possession of the same within six months after the assess- ment of compensation shall have been made, as above provided, the right of such corporation to make such appropriation on the terms of the assessment so made, shall cease and determine; and any land so appropriated shall be relieved from all incumbrance on account of the proceeding in such case or the resolution of the council making the appropriation ; and the judgment or order of the court, directing such assessment to be paid, shall cease to be 180 TAXES FOR CITY IMPROVEMENTS. of any effect, except as to the costs adjudged against the corpora- tion. [S. &. S., p. 894, sec. 323.] Sec. 538. Provisions of this chapter applicable to villages. In cases in which incorporated villages for special purposes are author- ized to appropriate private property, the proceeding shall conform, as far as practicable, to the provisions of this chapter. [See ante, chap. 5.] CHAPTER XLVIII. GENERAL RULES RELATIVE TO IMPROVEMENTS AND SPECIAL ASSESS- MENTS. 1 Section Section 539. For what improvements general tax shall 550. Costs in case of error or defect in pro- be levied. ceedings. 540. Where concurrence of two-thirds of coun- 551. When re-assessment may be ordered. cil requisite. 552. Proceedings upon re-assessment. 541. Assessment on owner of life estate, etc. 553. Special duty of court of common pleas^ 542. Rules of assessment. 554. Certificate and collection of unpaid as- 543. Assessment never to exceed fifty per cent. sessment. of value. 555. Payment and application of assess- 544. What shall be estimated as cost of im- ments. provement. 556. Duration of lien, etc. '545. Lien from date of assessment. 557. Where new action may be commenced. 546. Amount of assessment and penalty recov- 558. Collection of assessment in advance. erable by snlt, etc. 559. As to deficiency or excess of assessment. 547. How lien may be enforced. 560. As to change of grade, after being once 548. Lien as to non-resident owner. established. 549. Lien may be enforced against all owners, 5G1. As to added territory. or a part. 562. Proceedings in making improvements or repairs. *Sec. 539. [As amended, April 18, 1870, 67 L. 80; March 29, 1872, 69 L. 59, and April 12, 1873, 70 L. 126.] Taxes for city im- . : ■ 1 ■ 1 The general grant of legislative power under the constitution of 1851 in- cludes the power to authorize assessments. Hill v. Higdon, 5 Ohio St. 243. Ernst v. Kunkle, 5 Ohio St. 520; Keeves v. Treasurer of Wood County, 8 Ohio St. 333. * Sec. 539. [As originally passed.] For what improvements general lax shall be levied. For the pay- ment of the cost of the following improvements, including the necessary real estate, the council shall levy and assess a tax upon the general duplicate of all the real and personal property sub- ject to taxation within the limits of the corporation, which levy and assessment shall be by the clerk of the corporation certified to the auditor of the county, and by the auditor charged in the duplicate against mid taxable property, and collected as other taxes ; that is to say, for public halls and necessary offices, for structures for the fire department, for water-works, market houses and spaces, cemeteries, parks, infirmaries, hospitals, gas-works, prisons, houses of refuge and correction, work-houses, public privies, and rights of way, wharves and landings on navigable- waters, levees, and embankments. TAXES FOR CITY IMPROVEMENTS. 181 jirovements. For the payment of the costs of the following im- provements, including the necessary real estate, the council shall *evy and assess a tax upon the general duplicate of all the real and personal property suhject to taxation within the limits of the corporation, which levy and assessment shall be by the clerk of the corporation certified to the auditor of the county, and by the An assessment is not a taking of private property for public use, but a spe- cies of taxation. Scovill v. Cleveland. 1 Ohio St. 126. Assessments are not within the purview of the word taxing in the clause of section 2, article 12, of the constitution of 1851, requiring all property to be taxed by a uniform rule-, according to its true value in money. This section is only applicable to, and furnishes the general principle for all laws levying taxes for general revenue, whether for state, county, township, or corporation purposes. In the exercise of the power of assessment by municipal corporations, legis- lative discretion in apportioning the burden according to benefit, is left as broad and unlettered as under the constitution of 1802. It may be laid in proportion to the feet front as well as in proportion to the value of the lands assessed. Hill v. Higdon, 5 Ohio St. 243; Ernst v. Kunkle, 5 Ohio St. 520; Eeeves v. Treasurer of Wood Co., 8 Ohio St. 333. Whatever rule is adopted, the assessment must be uniform, and the fact that •one or more tracts have not been benefited by the assessment will not render it invalid. Ibid. See also Northern Ind. E. E. Co. v. Connelly, 10 Ohio St. 159. The formalities required in making assessments, under the act of 1853, con- stitute a restriction upon the power of council such as is required by the con- stitution. "Whether it is a sufficient restriction or not is a question for the legis- lature, not for the courts. Maloy v. Marietta, 11 Ohio St. 636. When, in the improvement of a street, squares formed by the intersection of other streets are crossed and improved, the city council may, if the object of improving the intersections is the improvement of such street, assess the ex- pense of such intersection upon the property abutting on the street. Creighton r. Scott, 14 Ohio St. 508. See also note to sec. 550 ; but see sec. 590. Under a charter providing that the expenses of an improvement maybe paid for by a discriminating assessment upon the land and ground bounding and abutting on said road, etc., or near thereto, the expense of improving a portion of a street is properly assessed upon the ground on or near the portion of the street so improved, not on that abutting on the whole of the street. Scovill v. Cleveland, 1 Ohio St, 126. Under the language of the act of 1852, the same rule applies. Creighton v. Scott, 14 Ohio St. 438; Northern Ind. E. E. Co. v. Connelly, 10 Ohio St. 159. The power to extend streets conferred upon municipal corporations by the 26th section of the act of May 3, 1852, for the organization of cities and incor- porated villages, as amended by the act of May 1, 1858, is not included in or dependent upon the power to improve streets conferred by the same section. The extension of a street is not necessarily the improvement of the street ex- tended, and is not so treated by the statute. Smith v. Toledo, 24 Ohio St. 126. 182 TAXES FOR CITY IMPROVEMENTS. auditor charged in the duplicate against such taxable property, and collected as other taxes; that is to say, for public halls and neces- sary offices, for structures for the fire department, for water-works, market houses and spaces, cemeteries, parks, infirmaries, hospitals, gas-works, prisons, houses of refuge and correction, work -houses, public privies and urinals, the land appropriated for rights of way, wharves and landings on navigable waters, levees and embank- ments: Provided, that where the council of any municipal corpora- tion shall appropriate any lots or lands for the purpose of laying off, opening, extending, straightening or widening any street, alley or public highway, it shall have power to assess the costs and expense of such appropriation and improvement upon the lots or lands benefited thereby, including lots and lands that are contigu- The 26th section of the act ahove referred to, unaided by the subsequent amendatory and supplementary acts, does not authorize an assessment of the compensation paid for lands appropriated for the extension of a street upon the lots abutting upon the original street. Ibid. "Where the boundary line of a municipal corporation is in the center of a sixty-foot street, the city may improve that portion of the street lying within its limits, and assess the costs and expenses thoreof upon the property within the city abutting on the portion of the street improved. Scully v. Cincinnati, 1 Cincinnati Superior Court Eeporter, 183. The fact that the incorporated village within which the other half of the street lay, proceeded at the same time to improve that portion of the street which lay within its limits, and that the assessment made by the corporations differed in amount, does not affect the validity of the assessment for want of uniformity, the assessment of each corporation being uniform upon the property embraced within its limits. Ibid. That an estimate of the expense and assessment made thereon were too large does not affect the validity of tin- assessment in the absence of fraud or bad faith on the part of the person making it, though, as was held in Eeed v. Toledo, 18 Ohio, 101, and June.- v. Cincinnati, 18 Ohio, 318, the fact that a portion of the assessment was for purposes not authorized in the charter would have done so. Scovill v. Cleveland, 1 Ohio St. 126. "Where the attempt to appropriate property for a street Avas void from a de- fect in the notice to the owners of the property, the assessment for the expenses of making the street is a fortiori invalid. The remedy of the contractor, if any, is against the city, not against the individual owners of the lands covered by or abutting upon the improvement. Harbeck v. Connelly, 11 Ohio St. 227. "When the work has been done by the city authorities, and an assessment made therefor, the property-holder can not, in a suit on the assessment, object that the city has not paid the contractor, nor that the contractor has agreed to take the assessment in payment for the work. Bliss v. Kraus, 16 Ohio St. 54. But when the contractor proposed to do the work for a certain price in cash, or for a certain other and greater price if paid in assessments, and the con- TAXES FOR CITY IMPROVEMENTS. 183 ous and adjacent, as well as those that abut upon said street, alley, or highway, or upon the general duplicate of all the real and per- sonal property subject to taxation within the limits of the corpora- tract was made at the last-named price, the contractor agreeing to take the assessments, the amount recovered was properly reduced to the cash price. Ibid. One who contracts with a municipal corporation to do certain work, and to take the assessment in payment therefor, has no recourse upon the city if the assessment can not be recovered in full on account of a deficiency in the value of the land. " He has bound himself in writing never to bring the action. He entered into the contract with his eyes open. He must be presumed to have known the law in relation to assessments, and he was bound to know the facts in relation to the value of the lots, the cost of the work, and the language of the contract." Creighton v. Toledo, 18 Ohio St. 447 ; Welker v. Toledo, 18 Ohio St. 452, 455; Ryan v. Cincinnati, 1 Cincinnati Superior Court Reporter, 245. [In the first of these cases, which was before the amount of the assessment was limited to fifty per cent., the contract stipulated that he should be paid "in the following manner :" then reciting the making and delivery of the as- sessment; in the second, the contract expressly stipulated that if the assessment proved to be beyond fifty per cent, of the value of the lots, no recourse should be had upon the city, the contractor agreeing to take and collect the as- sessment at his own risk. In* the third, the contract stipulated that the con- tractor should take the assessment, and that the city should not, in any event, be liable to pay for any part of the work or materials used for the same, except such as might properly be chargeable on the city property bounding and abut- ting on the street.] An ordinance to grade a street " from Western avenue to Millcreek bridge" will be held to include the avenue, if the action of the authorities show that to have been the intention, and will justify an assessment made by another ordi- nance including the avenue. Iiidenour v. Safiin, 1 Handy, 4G4. A defendant can not set up in defense to an assessment an error which di- minishes his assessment. Ibid. Where the boundary line of a corporation is the center of a sixty-foot street known as McMillan street, and the ordinance to improve orders the improve- ment of McMillan street, and the assessing ordinance assesses the property on one side of McMillan street only, the assessment is valid, as the first ordinance, though speaking of McMillan street generally, must be held to refer to the McMillan street in the city of Cincinnati, which was thirty feet wide. Scully v. Cincinnati, 1 Cincinnati Superior Court Reporter, 183. Under sections 26 and 30 of the municipal corporation act of 1S52, it was competent for council, by a general ordinance, to declare that the expenses of an improvement should be levied on the abutting property in proportion to the number of feet front, and an ordinance for an improvement, passed while such general ordinance was in force, and declaring that the expenses should be assessed in accordance with the laws and ordinances of the city on the subject of special taxes, is not obnoxious to the objection that it does not sufficiently 184 TAXES FOR CITY IMPROVEMENTS. tion, as provided in section 583: Provided, farther, that in cities where a platting commission shall have been appointed under an act entitled " an act to regulate the platting of lands and laying out of streets in municipal corporations," passed March 13,1871, and such commission shall have platted streets agreeably to the determine which made of assessment is to he followed. Hambold v. Barton, Hamilton District Court, White, J., delivering the opinion; Reynolds v. Ham- mond, Superior Court of Cincinnati, General Term; but see sec. 576. Under the same sections, where a general ordinance of the same kind exists, though the ordinance for the improvement contains no reference to such gen- eral ordinance, it must be presumed that the general ordinance was in the con- templation of council at the time, and as they did not choose to except this im- provement from its operation, it must be held that they determined that the assessment should be made in accordance with the rule prescribed in the gen- eral ordinance. Strohman v. Hutchins, Hamilton District Court, MS. Under the Cincinnati charter of 18o9, when there was a general ordinance in force directing the mode in which assessments should be collected, an ordi_ nance for an improvement providing that "a special tax should be assessed and collected, etc., according to the ordinances in such case made and pro- vided," is a Sufficient basis for an assessment. Lowden v. Cincinnati, 2 Dis- ney, 203. When the contract stipulates that the contractor is to take an assessment in pay, the city will be liable to him if it refuses to give him an assessment, but it is entitled to a reasonable time, after the completion of the work, to issue the assessment. Ibid. The certificate of the city civil engineer that the work was done in ac ;ord- ance with the contract, is conclusive against the property-holder in the absence of fraud and collusion. Eidenour v. Saffin, 1 Handy, 464. A mere variation in the grade of the street from that fixed by ordinance, which does not materially affect the amount of the assessment, will not invali- date it. Strohman v. Hutchins, Hamilton District Court. When a valid resolution to contract for certain work was passed, and the work done under it, but no sufficient declaration was made of the intention to charge the expense of the improvemeut upon the property, the city is liable for the work done. Foltz v. Cincinnati, 2 Handy, 261. Under the act of 1852, in a suit on an assessment, a statement of the requi- site facts in a general form was good on demurrer. Burns v. Patterson, 2 Handy, 27(J. When property-owners have a good defense to a portion of the assessment, and no way to avail themselves of it, except to contest the whole, no penalty should be allowed upon the amount of the assessment. But when the assess- ment is sustained, the court has no discretion, but must allow the contractor his penalty. Erwin v. Champlin, Hamilton District Court; opinion byScOTT, J. When one of the conditions on which the use of a certain street was granted to a street railroad company, was that it should boulder the street and keep it in repair, and the city had subsequently, for a valuable consideration, released the company from this obligation, the property-owner had no such interest in TAXES FOR CITY IMPROVEMENTS. 185 provisions of said act, and the owner or owners of any portion of the grounds so platted shall have accepted such platting agreeably to the provisions of the second section of said act, then the prop- erty abutting upon any street or streets so platted and dedicated, shall not he assessed to pay for the extension of such street or opening the same through other lands so platted but not dedicated. [S: & S.. p. 804, sec. 28.] the first arrangement, though the effect of it was to relieve him from the pay- ment of assessments, as to enable him to throw future assessments upon the city. Foltz v. Lyons, Superior Court of Cincinnati, General Term ; Taft, J., ■delivering the opinion; Stoker and IIauaxs, J.J., concurring; MS. No such consideration moved from the property-holders, even though the consent of a majority of them had been requisite to enable the council to make; the grant, as to entitle them to the benefit of the contract between the railroad company and the city. Ibid. [Leave to file petition in error was refused by the Supreme Court in this case.] Under the Cleveland charter, of March, 1836, requiring the assessing com- mittee to give notice to claimants for damages, one who had no claim can nut object that no such notice was given. Scovill v. Cleveland, 1 Ohio St. 12G. Authority to assess the damages awarded to property-owners for property taken to open a street upon the property benefited thereby, does not warrant an assessment for the expense of improving the street. Keed v. Toledo, 18 Ohio, 161. To render an assessment valid, it is not necessary that there should be any immediate or obvious benefit to the property abutting on the street. Northern Ind. R. R. Co. v. Connelly, 10 Ohio St. 159 ; Cottle v. King, Superior Court of Cineinnati, General Term. When real estate is about to be sold under a proceeding altogether illegal and void, but nevertheless under legal color, the court will restrain the proceedings by injunction. Burnet v. Cincinnati, 3 Ohio, 73; Culbertson v. Cincinnati, 16 Ohio, 574. But a court of equity will not interfere by injunction to prevent the collec- tion of a tax assessed in the ordinary way, and unaccompanied by any circum- stances of peculiar injury, even if the law authorizing the tax is unconstitu- tional. McCoy v. Chillicothe, 3 Ohio, 370. There must be circumstances of peculiar hardship to justify the interposi- tion of a court of equity. It is not enough that the appraisers, in assessing •compensation, made a mistake in the quantity of land taken, for their proceed- ings can be reviewed in a proper manner, nor that there were errors in the assessment, for these can be corrected at law. Armstrong v. Cincinnati, 5 Ohio, 223. The fact that the city council have failed to provide for any mode of review- ing the proceedings of the assessors is sufficient ground for the interference of a court of equity. Culbertson v. Cincinnati, supra. Where a tax is assessed without authority of law, its collection will be en- joined. Jonas v. Cincinnati, 18 Ohio, 318. Where a person has stood by, and seen an improvement made on his land, and failed to resort to any remedy, legal or equitable, until after the improve- 186 ASSESSMENTS. Sec. 540. [As amended April 18, 1870, 67 L. 80, and March 12, 1873, 70 L. 63.] When two-thirds vote requisite. No public improve- ment provided for in chapters forty-nine and fifty, the cost or part of the cost of which is to be specially assessed on the owners of adjacent property, and no order appointing assessors of damages or confirming their report, shall be made without the concurrence of two-thirds of the whole number of the members elected to the coun- cil, unless two-thirds of the owners to be charged shall petition in writing therefor; and in incorporated villages having a less popu- lation than four thousand at the last federal census, not situate in a county containing a city of the first class, no special assessment shall be made except for sidewalks, unless first having received the assent of a majority of the owners to bo charged therewith. 2 [S. & C, p. 1552, sec. 189 ; S. & S., p. 847, sec. 161, and p. 858, sec. 196.] * Sec. 541. [As amended, April 18, 1870, 67 L. 80.] Relative to ment is completed, a court of equity will not interfere to restrain the collection of the assessment, even though it be assumed that the commissioners have so far failed to conform to the provisions of the statute, as to render their proceed- ings wholly void at law. Kellogg v. Ely, 15 Ohio St. 64. The authority and duty to prevent an abuse of the powers of taxation and assessment by municipal corporations, is intrusted by the constitution to the general assembly, and not to the courts of tbe state. And the power of the leg- islature to authorize local taxation can not be judicially denied, on the ground that the purpose for wbich it is exercised is not local, unless the absence of all special local interest is clearly apparent. Walker v. Cincinnati, 21 Ohio St. 14. 2 The finding of the trustees of a special road district, that a petition signed by two-thirds of the resident owners of lots abutting upon a certain street, pray- ing for the improvement of the same, had been presented to them, is not con- clusive of the fact. Corry v. Gaynor, 22 Ohio St. 584. "Where, in such case, the trustees order the improvement, and let the contract for doing the work under a mistaken belief that the petition is signed by two- thirds (if such resident owners, and the contractor, in ignorance of any defect in the proceedings, agrees to take the assessment for his compensation, and is induced to enter into such contract, and to do the work by tbe assurances of one of the lot-owpers that if he did the work, he should be paid: Held, in a suit brought by the contractor to collect the assessment, such lot-owner is es- topped from showing that the petition was not, in fact, signed by two-thirds of the resident lot-owners. Ibid. " :: Sec. 541. [Aa originally passed.] Assessments on owner of life estate, etc. Where a special assess- ment is made on real estate subject to a life estate, such assessment shall be apportioned betwecnthe oirner oj tlte life estate and the owner of the fee in proportion to (he relative ralue of their respective estates, such proportion to be ascertained upon the principles applicable to life annuities. ASSESSMENTS. 1S7 tax on life estates. "Where a special assessment is made on real estate subject to a life estate, such assessment shall be payable by the tenant for life, but vpon application by said life tenant to a court of proper jurisdiction, by action against the owners of the estate in fee, such court may apportion cost of said assessment between said life ten- ant and owner in fee in proportion to the relative value of said im- provement to their estates respectively, to be ascertained and determined by said court on principles of equity. [S. & S., p. G76, sec. 51.] Sec. 542. Rules of assessment. In making a special assessment according to valuation, the council shall be governed by the as- sessed value of lots where the land is subdivided and the lots are numbered and recorded. Where there are lots which are not as- sessed for taxation, or there is land which is in bulk and not sub- divided into such lots, the council shall fix the value of such lots or the front of such land to the usual depth of lots, by the average of two blocks, one of which shall be next adjoining, on each side. If there are no blocks so adjoining, the council shall fix the value thereof, so that it will be a fair average of the assessed value of other lots in the neighborhood. Sec. 543. [As amended, May 2, 1871, 68 L. 125 ; March 30, 1874 r 71 L. 45, and March 20, 1875, 72 L. G8.] Limitation of taxation. In no case shall the tax or assessment specially levied and assessed upon any lot or land for any improvement amount to more than twenty-five per centum of the value of such lot or land as assessed for taxation, the cost exceeding the said per centum that would otherwise be chargeable in such lot or land shall be paid by the cor- poration out of its general revenues ; provided, that in cities of the first class, and in all municipal corporations situate in a county con- taining a city having a population of one hundred and fifty thou- sand or more at the last federal census, there may be each year levied, assessed, and collected of such special assessment, an amount not exceeding ten per cent, of the value of such lot or land after such improvement is made : Provided, further, that in all cities of the first class and municipalities named in this section, the tax or assessment specially levied and assessed upon any lot or land for any improvement, ma}' amount to twenty-five per centum of the value of such lot or land after such improvement is made, the cost exceeding the said per centum that would otherwise be chargeable on such lot or land shall be paid by the corporation out of its gen- eral revenue; provided, further, that in any municipal corporations, where three-fourths in interest represented by the feet front, of the owners of property abutting upon any street or highway of any 188 ASSESSMENTS. -description, petition for any improvement of such street or high- way, none of the foregoing limitations of this section shall be oper- ative or binding, but the assessment for such improvement shall be collected in equal annual installments, which installments shall be proportioned to the whole assessment in a manner to be indicated in the petition aforesaid, or if not so indicated, then the same shall be fixed by council, and the interest on any bonds issued by any such corporation in pursuance of this act shall be assessed, together with the annual installments herein provided for, upon the prop- ert}* so improved. 1 Sec. 544. What shall be estimated as cost of improvement. The cost 2 of any improvement contemplated in this chapter, and in chapters forty-nine and fifty, shall include the expense of con- struction, the purchase-money of real estate or of any interest therein, where the same has been acquired by purchase; or the value thereof as found by the jury, where the same has been ap- propriated, together with the costs and expenses of the proceeding. It shall embrace the damages assessed in favor of any owner of adjoining lands, and the costs and expenses of the assessment ; also, the expense of the preliminary and other surveys ; of all printing, and of publishing the notices and ordinances required, including notice of assessment ; and any other necessary exj^enditure. [S. & C, p. 1532, sec. 120; S. & S., p. 833, sec. 129 ; pp. 803, 804, sec. 28 ; pp. 835, 836, sec. 131, and p. 805, sec. 29.] Sec 545. Lien from date of assessment. All special assessments shall be payable by the owner or owners of the property assessed personally, by the time stipulated in the ordinance making the 1 When a city makes a contract for an improvement under a law authorizing it to make an assessment to a certain per cent, on the abutting property, to pay the expenses of such improvement, though the law is amended subsequent to the contract, but prior to the passage of the assessing ordinance, so as to dimin- ish the per cent., the right to make the assessment to the extent authorized at the time of the contract, is saved by the saving clauses of chapter 00 of the mu- nicipal code. Finnell v. Howells, 2 Superior Court Reporter, 150. 2 An assessment upon lands fronting on a street, to reimburse the amount of compensation paid the owner for his other land, taken for the use of the street, is authorized by the statute [S. & S. 834, sec. 1), and is not in violation of the constitutional provision which guarantees to owners of. land so taken a full compensation, "without deduction for benefits." Cleveland v. Wick, 18 Ohio St. 303; compare sees. 539 and 583 of this act. Work, extending into cross-streets, done to render the improvement useful and available, is properly included in the assessment for an improvement. Butler v. Toledo, 5 Ohio St. 225. ASSESSMENTS. 189* same, and shall be a lien from the date of the assessment, upon the respective lots or parcels of land assessed. 1 [S. & C, p. 1503, sue. 30; S. & S., p. 835, sec. 131, and p. 844, sec. 156.] Sec. 546. Amount of assessment and penalty recoverable by suit, etc. If payment be not made by the time stipulated, the amount assessed, may, together with interest, and a penalty of five per cent, thereon, be recovered by suit 2 before a justice of the peace, or other court of competent jurisdiction, in the name of the corpora- tion, against the owner or owners. [S. & C, p. 1505, sec. 30 ; S. & S., p. 835, sec. 131, and p. 844, sec. 156.] Sec 547. How lien may be enforced. ^he lien upon real estate may be enforced in any court having general jurisdiction, in the name of the corporation. [S. & C, p. 1505, sec. 30.] Sec 548. Lien as to non-resident owner. In proceedings to enforce the lien, when the owner of any lot or land assessed, is a non- resident of the state, or unknown, notice shall be given by publi- cation, in the manner prescribed by law in similar cases. [S. & C. r p. 1505, sec. 30 ] Sec 549. Lien may be enforced against all owners or a part, etc. Proceedings for the recovery of the assessment may be instituted, against all the owners, or each or any number of them; 3 or, to en- force 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 1 In an action to recover a personal judgment for the amount of an assess- ment for the improvement of streets, it must appear that the defendant was the owner of the lot assessed at the date of the assessment, and it is not suffi- cient to aver that he was such owner at the commencement of the suit. Corry v. Gaynor, 21 Ohio St. 277. Under the act of February 19, 18G4 (S. & S. 575), a single action to enforce u lien, and also to recover the amount due, can only be sustained where the de- fendant is personally liable for the debt secured by the lien. Ibid. Where the petition, in an action to enforce a lien for an assessment, alleges that the defendant is the owner of the lot assessed, but does not allege that lie was such owner at the date of the assessment, and prays for the enforcement of the lien, and also for a personal judgment for the amount of the assessment, the case is not one in which the parties have a right to demand a trial by jury, but is one in which there is a right of appeal. Ibid. Under the municipal code, the assignee of a sewer assessment must sue in the name of the corporation, and can not maintain an action upon the assess- ment in his own name. Scully v. Ackemeyer, 2 Superior Court Reporter, 296. 2 Payment of an assessment, which can only be enforced by suit, though made under protest, is a voluntary payment, and can not be recovered back. Marietta v. Slocumb, G Ohio St. 471. 3 Where a contractor sued the property-owners separately on a paving assess- 100 ASSESSMENTS. judgment or decree shall be rendered severally or separately, for the amount assessed ; and any proceeding may be severed, in the discretion of the court, for the purpose of trial, review or appeal. [S. & C, p. 1505, sec. 30.] Sec. 550. Costs in case of error or defect in proceedings. If in any such action it shall appear that by reason of any irregularity or defect, 1 whether in the proceedings of the board of improve- ments or of the council, or of any other officer of the corporation, ment, judgment in one case is not conclusive as to the rate of compensation in the others. Leonard v. O'Hara, 1 Cincinnati Superior Court Reporter, 42. But where there were a number of cases, all depending upon the same state of facts, and the defendant in one of them, by cross-petition, prayed for a con- solidation, the court allowed it. Ibid., Superior Court of Cincinnati, General Term. Two or more of the several owners of lots assessed for a street improvement, claiming the assessment to be, for the same reason, invalid as to each, may properly join in an action to restrain the collection of the assessment; and when the parties thus similarly interested in the question are numerous, one may sue on behalf of himself and all others whom he is authorized to repre- sent, and who might otherwise rightfully join in the action. Upington v. Oviatt, 24 Ohio St. 232. 1 The jurisdiction conferred upon courts of common pleas by the act of April 10, 185G (S. & C. 1151), "to restrain the collection of taxes illegally assessed," is an equitable jurisdiction, and is to be exercised upon equitable principles. Steese v. Oviatt, 24 'Ohio St. 248. The collection of an assessment made to pay the expense of a street improve- ment will not be enjoined by reason of irregularities in the proceedings where, under section 550 of the municipal code, the amount of such assessment is, not- withstanding such irregularities and defects, properly chargeable against the property assessed. Ibid. Where the grade of a street, as constructed by order of the city civil engi- neer, differed from the grade ordered by council, the variance was held by the court to be an irregularity that might be cured by section 550, and judgment was rendered for the amount of the cost of the work, less the amount caused by the difference of grade. Lewis v. Cincinnati, Hamilton District Court, MS., 1875. "When a statute directs that the engineer surveying a ditch "shall set forth in his return a description of the proposed route, its availability and necessity, etc.," and that the commissioners of the county shall, "if they find such ditch, etc., to be necessary, and that the same is demanaed by, or will be conducive to, the public health, convenience, or welfare, . . . shall proceed to locate, etc.," the want of the particulars in the engineer's return, or of such a finding by the commissioners, is such a defect and error as is fatal to the validity of the proceedings. Miller v. Graham, 17 Ohio St. 1. Such defects are not technical errors and irregularities, but are jurisdictional defects. But when the legislature has required the courts, in such cases, instead of finally declaring the proceedings void, or perpetually enjoining the collec- ASSESSMENTS. 191 or in the plans or estimates, the assessment has not been properly made against any defendant, or upon any lot or parcel of land sought to be charged, the court may, nevertheless, on satisfactory proof that expense has been incurred which is a proper charge against such defendant, or the lot. or parcel of land in question, render judgment for the amount properly chargeable against such defendant, or on such lot of land ; but in such cases the court shall make such order for the payment of the costs. as may be deemed equitable and proper. [S. & C, p. 1506, sec. 31 ; S. & S., p. 844, sec. 156.] Sec. 551. Wlien re-assessment may be ordered. Whenever it shall appear to the council that any special assessment is invalid by reason of informalities or irregularities in the proceedings, or, when any court of competent jurisdiction shall adjudge any such tion of the assessment, to simply set the proceedings aside, and allow the plaint- ill' to show wherein he has been injured, and make such order as justice will require (act of March 24, 1864, 61 L. 57), it evidently did not intend to employ the words in a sense so narrow and technical, but the remedial provisions of the statute were, in fact, in the nature of proceedings de novo, in which the party on whose land an assessment has been laid is permitted to make every claim and every showing which he might have made if the proceedings by and before the commissioners had been regular, and he had been personally notified from the beginning. Ibid. Such a provision, even when applied to pending proceedings in court, is not unconstitutional, but is authorized by the clause in the twenty-eighth section of the second article in the constitution, providing that the general assembly may, by general laws, authorize courts, to carry into effect, upon such terms as shall be just and equitable, the manifest intention of . . . officers, by curing omissions, defects, and errors in proceedings, arising out of their want of con- formity to the laws of the state." Ibid. See also cases in note to section 5G3. In order to make a valid assessment under the act of 1853, the council must, before the improvement is actually made, determine both to do the work, and to charge it upon the owners of the property. These are jurisdictional facts, the want of which invalidates the assessments in toto. Foltz v. Cincinnati, 2 Handy, 261. The recommendation of the board of city improvements was also a jurisdic- tional fact under section GO of the act of 1852, and without it the proceedings are entirely void. Fisher v. Graham, 1 Cincinnati Superior Court Reporter, 113; Reynolds v. Schweinefus, 1 Ibid. 215; as to what is a sufficient recom- mendation, see note to section 501. Under the Cleveland charter of March, 1836, providing that the expenses of an improvement may be paid for by an assessment, "and that the council shall appoint a committee to assess the expenses, etc.," such assessing committee need not be appointed prior to the passage of the ordinance ordering the improve- ment. Scovill v. Cleveland, 1 Ohio St. 126. 192 ASSESSMENTS. assessment to be illegal, the council, whether the improvement has t>een made, or not, shall have power to order a re-assessment. 1 [S. & S., p. 853, sec. 180.] Sec. 552. Proceedings upon re-assessment. All proceedings upon such re-assessment, and for the collection thereof, shall be conducted in the same manner as is provided for the original assessment. [S. & S., p. 853, sec. 180.] Sec. 553. Special duty of court of common pleas. It shall be the duty of the court of common pleas of the proper county to exer- cise the jurisdiction authorized by this chapter, for the collection of any charge or debt, or the enforcement of any lien, notwith- standing the amount involved shall be less than that to which tho jurisdiction of the court may be limited in other cases ; and any court of common pleas may make such special rules as to the class of cases authorized to be brought under this chapter, as will tend to expedite their disposition, and prevent unnecessary costs. [S. & C, p. 1506, sec. 33.] Sec. 554. Certificate of unpaid assessments. The council may order the clerk or other proper officer of the corporation to cer- tify under his official seal any unpaid assessment or tax to the auditor of the county in which the corporation is situated, and the amount of such assessment or tax so certified shall be placed upon the grand tax duplicate of the county by the county auditor, and shall with ten per cent, penalty, to cover the interest and expense of collection, be collected with and in the same manner as state and county taxes, and credited to the corporation. 2 [S. & C, p. 1532, sec. 121 ; S. & S., p. 805, sec. 29.] Sec. 555. Payment and application of assessments. All assess- ments placed upon the duplicate of the county under the pro- visions of this chapter, shall, .when collected, be paid to the treas- urer of the corporation, and shall be applied by the council only 1 In a case where the assessment placed upon the county duplicate for collec- tion was made upon a wrong basis, by omitting property which ought to have been assessed, the collection of the assessment will be enjoined, but without prejudice to the right of the city to make a re-assessment, and collect the same in accordance with the provisions of the statute. Upington v. Oviatt, 24 Ohio Ht. 232. 2 "Where the assessment is not conclusive or enforcible by reason of a failure to comply with the provisions of the law as to advertising .for bids, the penalty prescribed by section 554, does not attach, and can not lawfully be collected. Upington v. Oviatt, 24 Ohio St. 232. ASSESSMENTS. 193 for the purposes of the improvement for which they were made. [S. & C, p. 1532, sec. 121 ; S. & S., p. 804, sec. 28.] Sec. 55G. Duration of lien, etc. The lien of any such assessment shall continue for the term of two years from and after the time the same is payable and no longer, unless the corporation shall, before the expiration of such time, have caused the same to he cer- tified to the auditor of the proper county, for entry upon the tax duplicate for collection, or shall have caused the proper action to- be commenced in some court having jurisdiction thereof, to enforce such liens against such lots or lands ; in which case the lien shall continue and be in force so long as such assessment shall remain on the tax duplicate uncollected, or so long as such action shall be pending, and any judgment obtained under and by virtue thcreof r shall remain in force and unsatisfied. 1 [S. & S., p. 837, sec. 132.] Sec. 557. When new action may be commenced. If an action be- commenced within due time, and a judgment therein for the plaint- iff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have ex- pired, a new action may be commenced within one year after such reversal or failure. [S. & S., p. 837, sec. 133.] Sec 558. Collection of assessment in advance. The council may r if they deem expedient, cause the assessments to be collected be- 1 T\\e act of March 29, 18G9 (G4 Ohio L. 7-3), provides that the lien of an assessment shall continue for and during the term of two years from and after the date of its passage, and no longer, unless the person authorized to collect the same shall, before the expiration of such time, have caused the proper action to he brought in some court of competent jurisdiction to enforce such lien. A petition which shows on its face that the two years have expired before the commencement of the suit, does not state facts sufficient to constitute a cause of action. Bonte v. Taylor, 24 Ohio St. 628. A judgment rendered on a petition, to enforce an assessment lien, which shows on its face that the lien has expired before the commencement of the action, should be reversed on error. The error in such case is not waived by a failure to demur or answer. The statute does not limit the time within which an action may be brought upon the lien as an existing cause of action, but limits the period for which the lien itself shall continue. Ibid. "Where an action was commenced for the purpose of enforcing a paving as- sessment, but by mistake the owner of the premises was not made a party, or served with process, until after the expiration of the two years, although another lienholder was made a party and served with process prior to the expiration of the two years, there was no commencement of a proper action within the mean- ing of the exception contained in the act. Ibid. 13 194 ASSESSMENTS. fore the work is done or contracted for. [S. & S., p. 851, sec. 174, and p. 852, sec. 176.] Sec. 559. As to deficiency or excess of assessments. Should any assessment prove insufficient to pay for the improvement and ex- penses incident thereto, the council may, under the limitations prescribed for such assessment, make an additional pro rata assess- ment to supply such deficiency; 1 and in case a larger amount shall have been collected than shall prove necessary, the same shall be returned to the persons from whom it was collected, in proportion to the amounts collected from such persons respectively. [S. & C, p. 1547, sec. 174 ; S. & S., p. 845, sec. 158, and p. 851, sec. 175.] Sec. 560. As to change of grade after being once established. "Whenever any street, alley, public highway, wharf or landing, within the corporation, shall have been graded, or pavements shall have been constructed in conformity to grades established by the authorities of the corporation, and the expense thereof shall have been assessed on the lots or lands bounded by or abutting upon such street, alley, public highway, wharf or landing, the owner or owners of such lots or lands 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 such change is asked for by a majority of the ownei's of such lots or lands, but the expense of all improvements occasioned by such change of grade shall bo chargeable to the general fund of the corporation. [S. & S., p. 838, sec. 135.] Sec 561. As to added territory. The provisions of chapters forty-nine aud fifty shall embrace territory added to the corpora- tion at any time by annexation or otherwise. [S. & S., p. 859, sec. 198.] Sec 562. [As amended, April 18, 1870, 67 L. 80, 81, and March 29, 1873, 70 L. 83.] Proceedings in making improveme?its or 'The following items were held to be properly included in a re-assessment to make up the deficiency in the original assessment: 1. Orders outstanding given in payment for the work. 2. Interest accrued and estimated to accrue before the assessment can be collected. 3. Amount for reimbursement of the general fund for payments made out of it on expenses of this improvement, and interest. 4. Costs and law expenses. 5. Printing. 6. Compensation to the city officers for services in the making of said improve- ments, in the litigation growing out of them, and in the levying and collection of the assessment and re-assessment. Butler v. Toledo, 5 Ohio St. 225,230. Such an enactment applies to past contracts, and does not contravene any provision of the constitution. Ibid. PROPOSALS FOR CONTRACTS. 195 repairs. When the corporation shall make any improvement or repair provided for in this chapter, and in chapters forty-nine and fifty, the cost of which will exceed five hundred dollars, it shall proceed as follows : First. It shall advertise for bids for the period of two Aveeks in some newspaper published or of general circulation in said corpo- ration, and two if there are so many, and if no newspaper is pub- lished therein, then by posting up such advertisement in three public places therein, and if the estimated cost exceeds five thou- sand dollars, then four weeks. Second. The bids shall be filed with the clerk, or with the board of improvements, where such board exists, sealed up, by twelve o'clock at noon, on the last day, as stated in the advertise- ment. Third. The bids shall be opened at the next regular meeting of the council or board of improvements, as the case may be, and publicly read by the clerk, and filed. Fourth. Each bid shall contain the full name of every person interested in the same, and shall be accompanied by a sufficient guaranty of some disinterested person, that if the bid is accepted a contract will be entered into, and the performance of it properly secured. Fifth. If the work bid for embraces both labor and materials, each shall be separately stated, with the price thereof. Sixth. None but the lowest responsible bid shall be accepted, when such bids are for the labor or materials separately ; but the council may, at its discretion, reject all the bids, or it may at its discretion accept any bid for both labor and material, which shall be the lowest aggregate cost of such improvement or repairs. 1 1 The commissioners of Hamilton county advertised for proposals for blank- hooks and stationery for the year 1871, requiring hidders to give prices of the various articles required, but did not state the quantity of any article that would be required. The total amount of the prices thus fixed for one each of the articles required in the proposals of the relators, was lower than that of any other bidder; but it appeared that upon a fair estimate of the quantities that would be required, the aggregate cost of all that would be required would amount to more at the prices fixed by the relators than at the prices fixed by another bidder. Held, that the relators were not, within the meaning of the statute, the lowest bidders, and therefore not entitled to a mandamus to com- pel the commissioners to award the proposed contract to them. The State ex rel. v. The Commissioners of Hamilton Co., 20 Ohio St. 425. A contract of county commissioners for the recopying of the plats of the 19G PROPOSALS FOR CONTRACTS. Seventh. The contract 1 shall be between the corporation and the bidder, and the corporation shall pay the contract price for the work in cash ; provided, however, that the contract price may be paid in assessments, as the council in its discretion may have pre- viously determined. Eighth. If two or more bids are equal in the whole or any part thereof, and are lower than any others, either may be accepted r but in no case shall the work be divided between them. county for the use of the auditor's office, the estimated expense of which ex- ceeds five hundred dollars, under the second section of the act relating to the duties of county commissioners, as amended March 9, 1866 (S. & S. 86), is void r as against the county, unless it be made with the lowest responsible bidder, in accordance with the provisions of that section. The State ex rel. v. Yeatman, 22 Ohio St. 546. Where the grading, an important part of the work, was omitted from an ad- vertisement, by the trustees of the water-works, for proposals to do certain work, the advertisement was held insufficient. Miller v. Pearce, 2 Superior Court Eeporter, 44. The provisions of section 562, prescribing the time and manner of advertis- ing for bids for doing the work and furnishing the materials for the proposed improvement, were designed for the protection of the tax-payer, and are- peremptory. A failure, substantially, to comply with those provisions, is a de- fect which goes to the legality of the contract and of the subsequent assess- ment. TTpington v. Oviatt, 24 Ohio St. 232. In a case where the requirements of the code respecting the time and man- ner of advertising for bids for doing the work and furnishing materials for a proposed improvement have not been complied with, the assessment, while not conclusive, is not necessarily void.- Under section 550, in a case where the im- provement has been made, it may be enforced to the extent that expense has been incurred which is a proper charge upon the property assessed. Ibid. After bids have been received and opened, under the act of May 6, 1869 (66 Ohio L. 128), the trustees had no discretion to allow an amendment or altera- tion of any proposal on account of an alleged mistake therein, unless the fact of such mistake, and the requisite data for its correction, were apparent on the face of the proposal. Beaver and Butt v. Trustees of the Blind Asylum, 19 Ohio St. 97. 1_ VVhen the contract is silent on the subject, it is not competent to show by evidence a custom for contractors making repairs on the streets to take the old material. Butler v. Cincinnati, Superior Court of Cincinnati, General Term, MS. An agreement between parties, one of whom had filed his bid, and the other being about to file a bid for making a public improvement, that they should be- come partners in the doing of the work, in the event that the contract should be awarded to either of them, is not void as against public policy, where it does not appear that the intent, effect, or necessary tendency of such contract was to stifle fair competition at the letting. Breslin v. Brown, 24 Ohio St. 565. RESOLUTIONS TO IMPROVE. 197 Ninth. When there is reason to believe there is any eollusionor combination among the bidders, or any number of them, the bids roposed improvements to be p>ublislied. When it shall be deemed necessary by any city or incorporated village to make any public improvement, not otherwise specially provided for, it shall be the duty of the council to declare, by resolution, the necessity of *Sec 503. [As originally passed.] Publication of notice of proposeiimprovement. When it shall he deemed necessary, by any city or incorporated village, to make any public improvement not otherwise specially provided lor, it shall be the duty of the council to declare, by resolution, the necessity of such improvement, and to publish such resolution for four consecutive weeks in some newspaper published or of general circulation in the corporation, briefly describing the char' ■acler of the proposed improvement, and referring to the plans and profiles thereof. 108 CLAIMS FOR DAMAGES. such improvement, 1 and to publish such resolution for not less than two nor more than four consecutive weeks, in some newspaper pub- lished or of general- circulation in the corporation, ancZ all plans and profiles relating thereto shall be recorded and kept on file in the office of the city civil engineer or clerk, and open to the inspection of all parties interested* [S. & S., p. 803, sec. 28, and p. 834, sees. 130, 131. II. — Claims for Damages. Sec. 564. Filing claims for damages. Any owner or owners of 1 Under the act of April 5, 1866 (63 Ohio L. 133; S. & S. 834), the adoption of the resolutions declaring the work to he necessary, and the publication of the same as required, are conditions precedent to the exercise of the authority to pass a valid ordinance for the improvements, or make an assessment on the ad- joining property to pay for them. Welker v. Potter, 18 Ohio St. 85. A failure to comply with such conditions precedent is not merely an irregu- larity or defect in the proceedings, provided for in the curative portion of the act ; the irregularity or defect thus provided for is such as occurs in the exercise of lawful authority by the council. Ibid. Under the act of February 1, 1866 (63 L. 22; S. & S. 803), the passage and publication of such a resolution is not a condition precedent to power to make an assessment, in cases where damages consequent on the proposed improve- ment, are not included in the assessment as part of the cost of the improvement. Finnell v. Kates, 19 Ohio St. 405. 2 The proviso of section 6 of the act of January 27, 1853 (S. & C. 1291), de- clares a rule of evidence, whereby a waiver, on the part of the land-owner of his right to compensation, may be established, and does not conflict with the constitution (sec. 19, art. 1), relating to the inviolability of private property. The rule contained in this proviso can not be regarded either as a statute of lim- itation, whereby a right secured by the constitution is barred immediately upon the accruing thereof, or as a statute declaring the forfeiture of private property. Eeckner v. Warner, 22 Ohio St. 275. Eelief in equity, by restraining the appropriation of private property for a public road, under said statutes, will not be granted on the ground that compen- sation therefor has not been paid to the owner in money, in a case where the owner having actual notice of the proceedings in which the property is sought to be taken, and of the time and place of the view, neglected or failed to pre- sent his application for compensation in writing, to the viewers, and where it is not shown that the default was occasioned by inevitable casualty, or by other circumstances against which reasonable precaution could not have prevailed. Ibid. The act of May 1, 1862, entitled "an act to provide for locating, establishing, and constructing ditches, drains, and water-courses in townships," is not repug- nant to the constitution of the state, in so far as its provisions relate to the tak- ing of private property for township ditches, when the public health, conven- CLAIMS FOR DAMAGES. 199 lots or lands bounding or abutting upon the proposed improve- ment, claiming damages therefor, shall file a claim, in writing, with the clerk of the corporation, setting forth the amount of damages claimed, together with a description of the property owned for which the claim is made, within two weeks after the expiration of the time required for the publication of said notice; and all such owners as shall fail or neglect to file their claims for damages aforesaid, within the time aforesaid, shall be deemed to have waived the same, and be forever barred from filing any claim or receiving any damages therefor. 1 [S. & S., p. 803, sec. 28, and p. 834, sees. 130, 131.] ience, or welfare demands it. Nor in so far as its provisions relate to the mode of compensating the owner for property taken for the public use. Nor in so far as its provisions relate to the assessment of the costs and expenses of constructing the ditch upon lands benefited thereby. Sessions v. Crunkilton, 20 Ohio St. 349. Under the peculiar phraseology of the act of April 5, 1866 (S. & S. 834), the adoption of a preliminary resolution declaring the necessity of the alleged im- provement, was a condition precedent to the exercise of the power of assess- ment conferred by the act. Smith v. Toledo, 24 Ohio St. 126. The preliminary resolutions declaring a proposed street improvement neces- sary, required by section 563 of the act of May 7, 1869, known as the municipal code, is not a resolution of either a general or permanent nature within the meaning of section 98 of that act. Upington v. Oviatt, 24 Ohio St. 232. If the provisions of sections 563, relating to the publication of the prelim- inary resolution above referred to, are to be regarded, as between the city and the owners of the property assessed, as substantial and peremptory, the failure to make such publication is nevertheless a defect which falls within the curative provisions of sections 550 and 551 of such act. "Walker v. Potter, 18 Ohio St. 85, examined and distinguished. Upington v. Oviatt, 24 Ohio St. 232. 1 An act providing that notice of the pendency and prayer of a petition for the appropriation of property to public uses might be given by publication ; that claims should be filed in a certain way within a certain time, and that per- sons failing to make their claims within the time specified, shall be deemed and held to have waived their right to such compensation and damages, is consti- tutional; and a land-owner failing to make application within the time limited by the act, will be deemed and held to have waived his right, though he had no actual notice of the proceeding. Cupp v. The Comm'rs of Seneca Co., 19 Ohio St. 173. "Where the owner of land proposed to be appropriated for the establishment or alteration of a road, being duly notified, appeared before the viewers, and claimed an assessment of his compensation and damages occasioned by such ap- propriation, but neglected to file a written application therefor, as prescribed by the sixth section of the act relating to the opening of highways (S. & C. 1291), under the proviso of that section, the viewers properly declined to assess such compensation and damages. Anderson v. MeKmney, 24 Ohio St. 467. 200 CLAIMS FOR DAMAGES. Sec. 565. Determination of council as to claims for damages. "Upon the expiration of the time limited for filing claims for dam- ages as above provided, the council shall determine whether they will proceed with the proposed improvement or not; and also whether claims for damages, filed as aforesaid, shall be judicially inquired into as hereinafter provided, before commencing or after the completion of the proposed improvement ; and if they (shall decide to proceed therewith, they shall then provide, by ordinance, for the same. [S. & S., p. 835, sec. 131.] *Sec. 5G6. [As amended, April 2, 1870, G7 L. 32, and April 18, 1S70, C7 L. 81.] Jury to assess damages. Upon the passage of an ordinance for making the improvement, it shall be the duty of the mayor or solicitor of the corporation, in cases where claims for damages have been filed within the time above limited, and the council shall have determined to have the damages assessed before commencing the improvement, to make application, in writing, to the court of common pleas, or a judge thereof in vacation, or the pro- bate judge of the county within which the corporation is situated, to summon a jury ; and it shall be the duty of such court, judge, or probate judge, to direct the summoning of a jury as aforesaid, in the manner pointed out in chapter forty-seven, and fix the time and place for the inquiry and assessments of such damages where claims have been filed as aforesaid. 1 [S. & S., p. 804, sec. 28, and p. 835, sec. 131.] Sec. 5G7. Proceedings of jury. The jury shall be sworn to in- quire into and assess the actual damages in each case separately, "Where the viewers of a proposed road reported to the board of commission- ers that they had declined to assess the damages of such owner, for the reason that he neglected to file with them a written application therefor, and the owner appealed to the probate court from the decision of the commissioners approving the report, that court did not err in dismissing the appeal on motion of the de- fendants. Ibid. The proceedings of a board of county commissioners for the establishment or alteration of a county road, can not be reviewed by petition in error, until the board has made a final decision of the matter pending before them. Ibid. 1 Sam" section, word for word, passed April 2, 1870, 67 L. 32. *Sec. otJG. [As originally passed.] Jury to a-sess datnages. Upon tlie pas-age of such ordinance providing for making the improvement, it shall be the duty of the mayor of the corporation, in cases where claims for damages have been filed within the time above limited, and the council shall have determined to have the damages assessed before commencing the improvement, to make written application to the probate judge of the county within which the corporation is situated, to summon a jury of twelve disinterested freeholders, resident within the corporation, to cutset* tin amount ofdumtujes in each particular cn.se where claims have been filed as aforemiil ; ami it shall be the duty of such probate judge to direct the summoning of a jury as aforesaid, in the manner pointed out in chapter forty-seven, and fix the time and place for the inquiry and assessment of such damages. CLAIMS FOR DAMAGES. 201 under such rules and instructions as shall be given them by tho court, and when the jury can not agree they may be discharged, in the discretion of the court, and a new jury summoned, which shall be sworn as aforesaid. [S. & S., pp. 804, 836.] Sec. 5G8. Finding final. The finding of the jury shall be final, and there shall be no appeal. [S. & S., pp. 804, 836.] Sec. 569. Costs of inquiry. In all cases in which the jury shall find no damages, the costs of the inquiry shall be taxed against the claimant, and be collected on execution. In all other cases tho court shall furnish to the clerk of the corporation, on application, the amount of damages and costs in each case. [S. & S., pp. 804, 836.] *Sec. 570. [As amended, April 2, 1870, 67 L. 33, and April 18, 1870, 67 L. 82.] Assessment after completion of improvement. In all cases when the council shall have determined to assess the damages after the completion of any improvement provided for by this act, for which claims for damages have been filed as hereinbefore pro- vided, it shall be the duty of the mayor or solicitor, within ten daj-s after the completion of such improvement, to make written appli- cation to the court of common pleas, or a judge thereof in vacation, or the probate judge of the county in which the corporation is situated, to summon a jury in the manner pointed out in chapter forty-seven, to assess the amount of damage in each particular case where claims. have been filed as aforesaid; and it shall be the duty of such court, judge, or probate judge, to fix the time and place for the inquiry and assessment of damages, in the same manner as above provided. 1 Sec 571. Assessment of damages in special cases. Where, by rea- son of any defect or omission, in the proceedings herein provided for, the corporation shall be liable in an action for damages to any lot or land, occasioned by making any improvement, such dam- ages shall be ascertained and assessed by three disinterested free- x The same section, word for word, was enacted April 2, 1870, 67 L. 33, ex- cept that in the first line the word "where" was substituted for the word "when" in the present, and there were some variations in punctuation. * Sec. 570. [As originally passed.] Assessment of damages after completion of improvement. In all cases, when the council shall have determined to assess the damages after the completion of any improvement provided for by this act, for which claims for damages have been filed as heretofore provided, it shall be the duty of the mayor, within ten days after the completion of such im- provement, to make written application to the probate judge of the county to summon a jury in the manner pointed out in chapter forty-seven, to assess the amount of damage in each par- ticular case where claims have been filed as aforesaid ; and it shall be the duty of such probata judge, to fix the time and place for the inquiry and assessment of damages, and he shall proceed in the same manner as above provided. 202 SPECIAL ASSESSMENTS. holders of the corporation, to be appointed by the council. [S. & C, p. 1540, sec. 151.] Sec. 572. Oath of assessors of damages. The assessors, before entering upon their official duties, shall take and subscribe an oath before a justice of the peace, or mayor, that they will well and truly, to the best of their knowledge and ability, appraise the damages which the claimants shall have suffered by reason of such improve- ment, and for which the corporation is liable ; which oath shall be filed in the office of the clerk. [S. & C, p. 1541, sec. 151.] Sec 573. Duty of assessors of damages. They shall, within thirty days after their appointment, make said assessment, and file the same in the office of the clerk, where it shall be subject to the in- spection of all claimants for damages, and all such damages shall be paid out of the corporation treasury, and within twenty days thereafter shall be by the treasurer paid or tendered to the party in whose favor the same were assessed. [S. & C, p. 1541, sec. 151.] Sec 574. Costs in certain cases. If any person shall neglect or refuse to accept the amount so assessed, and shall prosecute the corporation, and shall not recover more than the amount allowed by said assessors, such party shall pay all costs of suit. [S. & C, p. 1541, sec. 152.] Sec 575. Time allowed for proceedings. No claimant for dam- ages shall commence any suit until he shall have filed a claim therefor with the clerk of the corporation, and sixty days shall have elapsed thereafter, to enable such corporation to appoint as- sessors to assess such damages, return the same to the proper officers, and sufficient further time shall have elapsed, not exceeding twenty days after the return of such appraisal, to enable the cor- poration to pay the assessment. [S. & C, p. 1541, sec. 152.] III. — Special Assessments. Sec 576. 1 [As amended, April 18, 1870, 67 L. 82.] How costs for improvements shall be assessed. For the payment of the cost of making said improvements and the cost of lighting the corporation, the council may, by ordinance, levy and assess a tax on all the lots or lands 2 bounding or abutting on the proposed improvement, or on 1 This section differs from the original section only in the addition of the words in italics. 2 Land appropriated by a railroad company for its track, and used exclusively for that purpose, is land within the meaning of section 2G of the act for the or- ganization of cities and villages (S. & C. 1501, sec. 985), authorizing an assess- ment on "the owners of any lots or land abutting on such street," etc., "or on SPECIAL ASSESSMENTS. 203 the streets lighted; such tax for lighting the corporation to be in pro- portion to the foot front of the lots or lands so bounding or abutting, and such tax for improvements to be assessed either in proportion to the foot front of the lots or lands so bounding or abutting, or accord- ing to the value of such lots or lands as assessed for taxation under the general law of the state, as may be equitable, and as the coun- cil may in each case determine. 1 [S. & C, pp. 1501, 1502, sec. 2G - p. 1505, sec. 30, and p. 1531, sec. 120; S. & S., p. 804, sec. 28; p.' 834, sec. 130; pp. 835, 83G, sec. 131 ; p. 842, sec. 148; p. 844, sec. 156, and p. 845, sec. 160.] Sec. 577. Payable in one or more installments. The amount as- sessed may be made payable in one installment, or in such num- bers of annual installments as the ordinance shall provide. 2 Sec. 578. Ordinance to specify time of payment. If the council shall determine that the costs and expense of the improvements shall be payable on the completion of the same, the ordinance shall specify the time when the assessment shall be paid. Sec. 579. Assessment on lots not abutting on improvement. If, in the opinion of the council or board of improvements, the same would be equitable, a proportion of the cost of making the im- provement may be assessed as herein provided, upon such other the lots or lands through or by which such street, etc., shall pass." Northern Ind. K. R. Co. v. Connelly, 10 Ohio St. 159; followed in Baltimore and Ohio K. K. Co. v. Comm'rs of Belmont Co., 19 Ohio St. 589. So is wharf property on a navigable river, though from the nature of its use it is thrown open to the public, who have liberty to pass freely over it, the owner collecting wharfage from the boats which land there. Boeres v. Strader, 1 Cincinnati Superior Court Reporter, 57. The term "lots and lands" held to include all real property, whether platted or not. Barker v. The State, 18 Ohio, 514. 1 "Where the legislature has especially authorized the raising of a fund by a levy on the general duplicate for the construction of a certain avenue, no as- sessment can be levied upon abutting lots to pay any part of the cost of the improvement until such fund has been exhausted upon the work. Boyle v. Cin- cinnati. Per Fokce, J., Hamilton Common Pleas, MS. 1875. The entire expense of a street improvement may lawfully be assessed by the foot front upon the abutting lots; but where such assessment upon any lot would exceed twenty-five per centum of its taxable value, the excess which would otherwise be chargeable on such lot must be paid from the general reve- nue. Upington v. Oviatt, 24 Ohio St. 232. 2 Where an assessment for street improvements is made, pursuant to section 577 of the municipal code payable in deferred installments, interest upon such installments to the time they respectively become due may properly be included in the assessment. Steese o. Oviatt, 24 Ohio St. 248. 201 SPECIAL ASSESSMENTS. lots or land within the corporation, not bounding or abutting upon the improvement, as will, in the opinion of the council or board, be specially accommodated and benefited thereby ; and said board or council shall fix the amount to be so assessed. [S. & S., p. 834, sec. 130 ; p. 836, sec. 131, and p. 845, sec. 160.] Sec. 580. As to cost for repaving streets, etc. "Whenever, in the opinion of the council, it shall be deemed necessaiy to repave any street, alley, or public highway, the grade remaining unchanged, and the cost and expense thereof having been paid by the abutting property, it shall be lawful for the council to provide therefor in accordance with the provisions of this chapter; and whenever, in the opinion of the council, the same would be just and equitable, they shall have power to provide for the payment of one-half of the cost and expense of repaying such street, alley, or public high- way, by levying and assessing upon the general duplicate of all the real and personal property subject to taxation within the limits of the corporation, an amount sufficient to pay one-half the esti- mated cost and expense of said improvement, and the said amount shall be certified and entered upon the general duplicate and col- lected, the same as provided in chapter forty-eight. [S. & S., p. 838, sec. 135.] Sec. 581. 1 [As amended, April 18, 1870, 67 L. 82.] When costs may be paid by general levy. If, in the opinion of the council or board of improvements, it would be equitable, the whole or a pro- portion of the cost of the improvement, as may be fixed by the council or board, may be raised by the levy and assessment by the council of a tax upon the general duplicate of all the real and per- sonal property subject to taxation within the limits of the corpora- tion, which levy and assessment shall be certified, charged, and collected as provided in chapter forty-eight; provided, that the cor- poration at large shall pay not less than one-fiftieth part of all ex- penses and costs for improving all public streets and ways, excepting sidewalks, in addition to the pay for street intersections, as provided for in section 591. [S. & C, p. 1532, sec. 120 (II.)] Sec. 582. Such levy to be certified to county auditor, etc. When- ever the whole or any portion of any improvement authorized by this act shall pass by or through any public wharves, market- spaces, parks, cemeteries, public grounds, structures for the fire de- partment, for water-works, school buildings, infirmaries, market- 1 This section differs from the section as originally passed only in the inser- tion of the words in italics. SPECIAL ASSESSMENTS. 205" "buildings, work-houses, hospitals, houses of refuge and correction, gas-works, public prisons, or any other public structure within the limits of and belonging to such municipal corporation, it shall bo lawful for the council to authorize the proper proportion of the estimated cost of such improvement to be certified to the county auditor, and entered for taxation upon the general duplicate of all the real and personal property subject to taxation within the limits of the corporation. [S. & S., p. 804, and p. 8-15, sees. 159, 160.] Sec. 583. [As amended, March 29, 1872, G9 L. 59, and April 12, 1873,70 L. 12G.] Damages for land appropriated. Whenever it shall be deemed necessary by the council of any municipal corpo- ration to open, extend, straighten, or widen any street, alley, or public highway, within the limits of such corporation, the council of such corporation shall provide, by ordinance, for the same ; and such ordinance shall briefly, and in general terms, describe tho property sought to be appropriated for the purposes aforesaid. The proceeding for such appropriation shall be as in such cases provided for in an act entitled "an act to provide for the organization and government of municipal corporations," passed May 7, 18G9, and as amended April 8, 1870. The assessments made for the purpose of paying the cost and expense of opening, extending, widening, or straightening such street, alley, or highway, shall be made and approved in accordance with the provisions of sections 577, 5T8, 582, 584, 585, 586, 587, 588, and 589, and subject to the limitations contained in section 543 (as amended May 2, 1871) of an act en- titled "an act to provide for the organization and government of municipal corporations," passed May 7, 1869, to which act this is amendatory. Sec. 584. Report of estimate of assessments. In all cases in which it is determined to assess the whole or any part of the cost of any improvement upon the lots or lands bounding or abutting upon the same, or upon other lots or lands benefited thereby, the council may require the board of improvements, or may appoint three dis- interested freeholders of the corporation, or vicinity, to report to the council an estimated assessment of such cost on the lots or lands to be charged therewith, in proportion, as nearly as may be, to the benefits which may result from the improvement to the sev- eral lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection. [S. & S., pp. 833, 834, sec. 130; p. 836 and p. 844, sec. 158.] Sec 585. Notice of assessment to be published. Before adopting 206 SPECIAL ASSESSMENTS. the assessment so made, the council shall publish 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 ex- amination of any person interested therein. [S. & S., pp. 833, 834, sec. 130; p. 836, and p. 844, sec. 158.] Sec. 586. Objections to assessment to be filed, etc. Any person objecting to such assessment shall file his objections, in writing, with the clerk within two weeks after the expiration of said notice; and thereupon the council shall appoint three disinterested free- holders of the coloration to act as an equalizing hoard. [S. & S., pp. 833, 834, 836, 837 ; p. 834, sec. 130, and p. 844, sec. 158.] Sec. 587. Duties of equalizing board. On a day appointed by the council for that purpose, the said board, after taking an oath before the mayor or other proper officer, honestly and impartially to dis- charge their duties, shall hear and determine all objections to the assessment, and shall equalize the same, as they shall think proper ; which equalized assessment they shall report to the council, who shall have power to confirm the same, or set the same aside and cause a new assessment to be made, and appoint a new equalizing board possessing the same qualifications, who shall proceed in the same manner above provided. [S. & S., p. 834, sec. 129, and p. 837, sec. 131.] Sec. 588. Confirmed assessment final. TVhen such assessment is confirmed by the council the same shall be complete and final. 1 [S. & S., p. 834, sec. 129, and p. 837, sec. 131.] Sec 589. Concurrence of two-thirds requisite. A concurrence of two-thirds of the members of the council shall be necessary in ap- pointing the equalizing board, and in confirming their assessment. [S. & S., p. 834, sec. 129.] Sec 590. As to costs for street crossings, etc. Whenever the 1 Under the act of March 29, 1867, as amended by the acts of March 31 and May 9, 1808, authorizing the county commissioners to construct roads, and pro- viding for assessing the cost thereof upon lands thereby benefited, the com- missioners are not authorized, after the report of the apportionment committee has been affirmed, to order the assessment of additional lands. The confirma- tion of such report is final, and exhausts the power of the commissioners with respect to the assessment. Glenn v. Waddel, 23 Ohio St. 605. Where, in such case, after the report of the apportionment committee had been confirmed, the commissioners ordered additional lands to be assessed, and caused such assessment to be placed on the duplicate for collection: Held, that the several parties whose lands were thus illegally charged might properly join in an action to restrain the collection of the assessment. Ibid. SIDEWALKS. 207 council shall determine to grade, pave, or otherwise improve any street, alley, or other highway, and such improvement crosses or intersects any other street, alley, or other highway, the council shall levy and assess a tax upon the general duplicate of all the real and personal property subject to taxation within the limits of the corporation, for the amount of the estimated cost of so much of such improvement as may be included and contained in the crossing or intersection of such street, alley, or other highway, to be by the clerk certified to the auditor of the proper county, and by the auditor charged in said duplicate against said taxable property and collected as other taxes. [S. & S., p. 838, sec. 134.J IV. — Sidewalks. Sec. 591. Provision for sidewalks. The council shall provide by ordinance for the construction and repair of all necessary side- walks within the limits of the corporation. [S. & C, p. 1311, sec. 94, and p. 805, sec. 29.] Sec. 592. Notice to be served on owners, etc. Whenever the coun- cil or board of improvements declare, by resolution, that certain specified sidewalks should he constructed or repaired, the mayor, upon being advised thereof, shall cause a notice to be served upon the owner or owners or agent of the owner or owners of the prop- erty bounding or abutting on such sidewalk, of the passage of such resolution, and if such sidewalks are not constructed or repaired within sixty days from service of such notice, the council or board of improvements may have the same done at the expense of the owner or owners thereof, and such expense shall constitute a lien upon the property bounding or abutting thereon, and shall be col- lected in the same manner and with like penalty and interest after demand and non-payment as in other cases of improvement. 1 [S & S., p. 805.] Sec. 593. Construction of sidewalks to turnpikes, etc. The council or trustees of anj r municipal corporation, through or into which any turnpike or plank-road passes or enters, may, with the consent of the authority having control or direction thereof, cause to be constructed on the side of such road, sidewalks not exceeding twelve feet in width, and gutters for the passage of water ; and may also 1 It is no violation of the constitution for the general assembly to provide, in the charter of a town, that the town council may impose the duty of making sidewalks upon the lot-owners, and if any one neglects to perform the duty, the council may cause the work to he done for him, and assess the amount expended as a tax upon the lot. Bonsall v. Lebanon, 19 Ohio, 418. 208 SIDEWALKS. cause the same when constructed to be kept in proper order and* repair, and the council or trustees shall have power and authority, for the purpose of the construction or repair of sueh sidewalks of gutters, to assess and collect the charges and expenses thereof on the owners of lots and lands abutting on such road, and to super- vise and control the said sidewalks and gutters in all respects as if said road were a street of the corporation. [S. & S., p. 839, sec. 137.] Sec. 594. Construction of sidewalks on one side only. If the board of improvements, council or trustees of any municipal corporation, shall deem it necessary to construct a sidewalk 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 and cross- ings on the owners of the lots or lands abutting on both sides of such street, alley or road, in like manner as if said sidewalk had been constructed on both sides ; but after a sidewalk shall havo been so constructed, and the charge therefor so assessed, if it shall be deemed necessary to construct a sidewalk on the other or cor- responding side of any such street, alley or road, the charge there- for shall also be assessed on the owners of lots and lands on both sides. [S. & S., p. 838, sec. 136.] ' Sec. 595. Exemption from taxation in certain cases. Nothing in this chapter shall be so construed as to tax property for the pur- pose of constructing any sidewalk the owners of which have al- ready constructed and maintained a sufficient sidewalk in front of such property. Sec 596. Cost of sidewalks along icharves, parks, etc. In all cases where it shall be deemed necessary by any municipal corpo- ration to build or repair sidewalks 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 build- ings, the proper proportion of the estimated expense thereof shall be by the council of such corporation levied, certified, and collected in the same manner as is provided in chapter forty-eight. [S. & S., p. 805.] Y. — Turnpikes, Plank-roads, and Water-courses. Sec 597. Cost of turnpikes, etc., owned or controlled by corporation. "When any portion of any turnpike or plank-road, or the control thereof, is required by any municipal corporation, or when any arrangement is made with the company owning the same for the- SIDEWALKS. 209 improvement or repair thereof, the cost thereof, and of improving" and keeping the same in repair, shall he provided for in the same manner as the streets and other highways of the corporation. 1 [S. & S , p. 841, sees. 141, 142, and p. 842, sec. 148.] Sec. 508. [As amended, March 30, 1875, 72 L. 104.] Bemedy for neglect of corporation to keep roads in repair. If a municipal corporation shall condemn any portion of a turnpike or plank-road, and Jail (o keep the portion so condemned in as good condition and repair as is required by the charter of the company, the directors of the company may, by writ of mandamus, compel the corpora- tion to perform that duty. And if any c\ty has heretofore extended, or shall hereafter extend its limits so as to include therein a por- tion of any turnpike road without purchasing or condemning the same, the city council of such city shall, within six months after the mayor of such city shall have been notified in writing that such company demands compensation therefor, proceed in the manner prescribed in chapter forty-seven of this act, to cause such portion of such turnpike road to be condemned for street purposes, and on failure of such city council so to proceed, the president of such turn pike company, 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 Such turnpike may be assessed by a jury, and said cause shall be conducted to final judgment in the manner provided in said chapter forty-seven, so far as the same is applicable, and such city shall pay the compensation awarded by the jury, with interest and the costs in such proceeding, within one year after the date of the rendition of the verdict, and when the compensation awarded has been paid, the title to such portion of such turnpike 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 second class, having at the last federal census more than thirty thousand inhabitants, may levy a tax in addition to the amount now limited by law. Sec. 599. Adaptation of turnpikes to corporation improvements, etc. 1 An assessment for the improvement of part of a county turnpike lying within the city limits is valid, even though the county commissioners refuse their consent to such improvement. Per Yaple, J., Scully v. Cincinnati, Superior Court of Cincinnati, MS., 1874. Where part of a county turnpike comes within the limits of the city hy reason of the annexation of the territory containing the same, the control of that part of the road passes to the city. Per Murdock, J., in Cincinnati v. Comm'ra of Hamilton County, Hamilton Common Pleas, MS., 1874. 14 210 SEWERS AND DRAINS. "Whenever the road of any turnpike or plank-road company shall pass through or terminate in any municipal corporation, the council or trustees shall have power, with the consent of the company, to make any improvement or repair of such road as shall he addi- tional to the improvement or repair required by law of the com- pany, and as, in the opinion of the council or trustees, will better adapt such road to use as a street of the corporation. [S. &. S., p. 842, sec. 148.] Sec. GOO. Bight of toll not to be impaired. The right of any •company to take toll at an} T toll-gate established in the corporation shall not be impaired by anything in this act contained. Sec. G01. [As amended, April 29, 1873, 70 L. 192.] Cost of con- structing, etc., icater-courses. The expense of opening, constructing, enlarging, excavating, improving, deepening, or extending any •canal, ship-channel, or water-course, whether such water-course be navigable or otherwise, as authorized by this act, and whether the same be done for the purpose of navigation, or the prevention of overflow, or any other purpose, shall be assessed and collected in the manner pointed out in this chapter. CHAPTER L. SEWERS, DRAINS, AND DITCHES. Section Section 602. Plans for sewerage and drainage. 620. Notice of assessment to be published. 603. Sewer districts. 021. Filing of objections to assessment. 604. Main or trunk sewers. 622. Action of council thereon. 605. Assessment by districts. 623. New assf-ssment provided for. 606. Discrimination as to improvements. 021. Errors to be corrected. 607. Plans and specifications. 625. Order to county auditor to place assess- 008. Ten days' notice to be given, etc. ment on duplicate. 609. Amendments of plans, etc. 626. Assessments to be a lien on lands. 610. Engineer to estimate costs, etc. 027. Proceedings forrecovery of assessments. 611. Construction of sewers, ordinance, etc. 628. Assessments in new sewer districts. 612. Assessment of cost of main 8#wers. 629. Subdivision of main sewer districts. 613. Limit of such assessment. 630. Assessments, pro rata, etc. Oil. Assessment of cost of local sewerage. 631. Construction of branch or local sewers. 615. Rule of assessment, etc. 632. Proceedings therefor. 61G. Discrimination in assessment in certain 633. Division of bits after first assessment. cases. 631. House connections and branches. 017. Assessment not to exceed two dollars per 035. Cost of branch sewers, how assessed. front foot. 036. Tapping sewers for private use. 618. Assessment according to benefit. 037. Ditches for drainage. 619. Report of assessments. 038. Repairs of ditches, sewers, etc. Sec. G02. [As amended, April 18, 1870, 67 L. 82, and March 30, SEWERS AND DRAINS. 211 1875, 72 L. 68.] Relative to sewerage and drainage ; commissioners of sewers. Whenever it may become necessary, in the opinion of the council of any city or incorporated village, to provide a system of sewerage and drainage for such city or incorporated village or any part or parts thereof, it shall be the duty of the board of improve- ments to devise and form, or cause to be devised and formed, a plan of sewerage and drainage for the whole city or incorporated vil- lage or such part or parts thereof as may be designated by the council : Provided, that in all cities of the first class having a popu- lation exceeding one hundred thousand inhabitants by the federal census of 1860, and in all other cities where the council may by ordinance so declare, the construction, maintenance, and cleaning of the seAvers shall be under the care of a board, to be called the " commissioners of sewers," who shall appoint an engineer and such other employes as they may deem necessary; the compensa- tion of said engineer and employes to be fixed by the council ; said board shall have all the powers and perform all the duties now re- quired of the board of improvements as provided in this chapter or elsewhere in this act in respect to sewers, drains, and ditches; and the said engineer appointed by said board shall have all the powers and perform all the duties provided for the city engineer in this chapter, or elsewhere in this act In respect to sewers, drains, and ditches ; such board shall consist of five members appointed by the mayor, subject to the confirmation of the council, who shall be ap- pointed, one for one year, one for two years, one for three years, one for four 3-ears, and one for five years, and thereafter one shall be appointed each year, to serve for a term of five years, and they shall serve without compensation : Provided, further, that in any city of the second class or incorporated village, in which the council shall fail to establish or shall abolish a board of improvements, the council of such city or incorporated village shall perform all the duties required of said board by this act. 1 1 The duty of a municipal corporation to provide a general system of sew- erage is of a judicial, legislative, or discretionary character, and no action lies for an omission so to do. But when the system has been adopted and the con- struction entered upon, the duty becomes ministerial, ami the corporation will be liable for want of ordinary care and skill in the design or execution of the work. Boetger v. Cincinnati, Superior Court of Cincinnati, Speeial Term February, 1862, Hoadly, J. ; Procter & Gamble v. Cincinnati, Superior Court of Cincinnati, General Term, February, I860, per Hoadly, J., Fox and Sto 111:11, JJ., concurring. A municipal corporation is not to use extraordinary foresight or extraordi- nary skill in the construction of sewers. If the storm which caused the in- 212 SEWERS AND DRAINS. Sec. G03. Sewer districts. The plan so devised shall, in the dis- cretion of the council, be formed, with the view of the division of the corporation into as man} 7 sewer districts as may be deemed jury was of a character that would not be ordinarily contemplated by a man making an improvement, the corporation is not liable; if it was such only as a reasonable man would provide against, it is liable. Boetger v. Cincinnati, supra. After a sewer is constructed, the duty of a municipal corporation is of a ministerial character. It is its duty to keep it clean, and if damage happens by reason of its being obstructed, it is liable; or if the corporation, by new grades, increase the water-shed, after the construction of the sewer, beyond its capacity, it will be liable for damage caused thereby. Ibid. When a natural water-course runs through the boundaries of a municipal corporation, the right of any owner is to make such use of the water, and erect such structures over the stream, as will not interfere with the rights of the owners above or below. If a portion of the city through which the stream runs is subdivided into lots, and streets are laid out and dedicated, running to or across the natural water-course, a right to the use of the streets in connec- tion with the water-course, for the discharge of water from lots fronting upon the streets, would be created. Niles Works v. Cincinnati, 2 Disney, 400. If the owner of land through which such a water-course flows in its natural channel chooses to substitute an artificial one, it is his duty to see that it is suf- ficient for all the purposes of the natural one. He must see that he does not prevent the accustomed flow of water in the natural channel from above, or injuriously increase it, or change its course below. Ibid. [See also Hoffman & Closer v. TVinslow, Superior Court of Cincinnati, Gen- eral Term, which is now pending in the Supreme Court] If he does throw the water on the adjoining proprietor below him in a differ- ent place, and his neighbor continues the sewer, the neighbor is liable for only ordinary care and diligence in its construction. Ibid. If the city carelessly or improperly brought into the sewer, by means of openings in the streets, a large quantity of water, a liability might result for any injury caused to the sewer of the defendants, but if the connection was properly made, and the increase was simply caused by improvements, the city would not bte liable. The property-owner should have anticipated such an in- crease when constructing his sewer. Ibid. Evidence that the flow of water in the water-course had been increased by change of grades of streets prior to the building of the sewer is incompetent and irrelevant, the owner being obliged to build in view of the grades as they existed at the time. Ibid. Evidence that the flow of water has been increased, since the construction of the sewer, by the paving or improving of streets in portions of the city at that time partially or entirely unimproved, is incompetent and irrelevant, inasmuch as the plaintiff building on a lot in a city subdivision was bound to contem- plate the usual ami ordinary improvements of the streets, and also of the lots fronting upon the streets, and the increase in the flow of water thus necessarily occasioned. Ibid. The fact that the sewerage in a portion of the city is insufficient to carry off the water of all very heavy rains that occasionally happen in this latitude does SEWERS AND DRAINS. 213 necessary for securing efficient drainage and sewerage ; each of the districts to be designated byname or number, and to consist of one or more main or principal sewers, with the necessary branches and not, of itself, as a matter of law constitute negligence. It is a question of fact, for the jury to determine, whether there was negligence upon considering whether a man of ordinary prudence, having at his command the resources, and with the experience of the city, would deem the danger sufficiently great to require action. Citing C. C. and G. E. R. Co. v. Terry, 8 Ohio St. 581 ; Procter & Gamble v. Cincinnati, No. 19,809, Superior Court of Cincinnati, General Term, per Hoadly, J.. Storeb and Fox, JJ., concurring, February, 1865. The city is not bound to see that sewers constructed by private individuals on their own property in the line of a natural water-course, with which city sewers connect, arc properly constructed. Ibid. The city is responsible for all damages caused by an excess of water turned into the channel, after the construction of the sewer, beyond the quantity that flowed there then, provided the sewer was built with reasonable reference to the probabilities at the time of its construction. A person constructing a private sewer through a natural water-course, within the boundary lines of a munici- pal corporation, in advance of sewerage by the corporation, must exercise rea- sonable forecast with reference to the alterations of the surface likely to be occasioned by the growth of the city, and the probable increase of water in the channel. Ibid. A charge that if the jury "find that a very large portion of the damage, and not all of it, was done within a half hour, and that rains of that length and equal force have occasionally occurred within twenty-five years, then, for so much damage as was done within that time, they will return a verdict for the plaintiffs, though the rain was of longer continuance, and did other and great damage," is properly refused. First, because the city is not bound, as a matter of law, to measure its diligence by the fact of occasional rains, the question being a question for the jury as to whether they occurred so fre- quently as to put a prudent man on his guard. Second, because it attempts to make partition of a tempest. Ibid. The fact that the city engineer told the plaintiffs to hold on as they were, as the city would build a new sewer, and remedy the whole matter, will not ren- der the city liable, or estop it from setting up the condition of the plaintiff's sewer as a defense, unless he was expressly authorized by council to give such notice. No ministerial officer of a city has power to pledge its revenues with- out authority from the legislative department of the corporation. Ibid. "Nor is it (the city) responsible for the defective sewers which private per- sons may choose to erect on their own property. The city is not liable for the defaults of its citizens; they arc liable to each other for the wrongs they may commit, and the city is only liable, like one of them, for its own acts or omis- sions, and the extent of its liability is measured by the same rules of law.'' Ibid. If the storm was so severe that the loss would have occurred by reason of its extraordinary severity, unless extraordinary precautions had been taken to prevent it, then the city is not liable, although you find that it did not, in fact, exercise ordinary care and prudence. For in the case supposed, the loss would 214 SEWERS AND DRAINS. connections, the main or principal sewers having their outlet in a river or other proper place ; the districts to be so arranged as to bo independent of one another, so far as practicable. [S. & C, p. be attributed to inevitable accident, or the act of God, as it is termed, and no lia- bility attaches for the want of ordinary care and prudence,- unless the loss is attributable to that neglect. Citing Bellefontaine and Ind. It. It. Co. v. Bailey, 11 Ohio St. 333. Ibid. If the neglect of the plaintiff in the construction of his own private sewer contributed materially and substantially to the injury, then the plaintiff can not recover, although the defendant was also guilty of negligence. Ibid. If the nature and extent of the improvements and uses of the street or alley have not been indicated or defined by the city or village, abutting proprietors must, at their own peril, improve their lots with reference to such future uses or changes in the streets as may be made and adopted by the city or village while acting within the scope of its municipal authority. Cincinnati v. Penny, 21 Ohio St. 499. Under the laws of this state, sewerage is one of the legitimate uses to which the public streets and alleys of the city of Cincinnati may be appropriated by its municipal authorities. Ibid. "In 1867, the city constructed a sewer in Borden alley, as it had a right to do; and in doing so, it took all reasonable and ordinary care to avoid injury to the plaintiff's property. By making the excavation for the sewer, the lateral support to the plaintiff's house from the street was withdrawn, so that the foundation walls gave way. These foundation walls were suitable for sustain- ing such a structure at the time the house was built, which was several years before. At the time the house was built, and for many years before that time, Borden alley, by the laws of this state, was in possession and under control of the city, for the purpose of drainage; and sewerage was a legitimate mode of drainage, within the scope of its authority. Before the plaintiff below built his house, the city had not, in any manner, as far as the record shows, indicated the nature or extent of the drainage, by sewers or otherwise, that would be re- quired for the public use. The plaintiff, without exercising any judgment or discretion as to the reasonable and proper future use of the alley for sewerage purposes, erected his house on a foundation suitable only for sustaining such a structure at that time under the then existing condition of the alley. This was his own wrong, and he has no right to complain of an injury from the con- struction of the sewer (which was built in a proper manner), having neglected on his own part to exercise reasonable precautions against such injury." Ibid. 507. A mere apprehension of danger to adjoining buildings to arise from the con- struction of a sewer, lawfully undertaken by the city, in an alley upon which the buildings abut, is not sufficient ground upon which to enjoin work upon the sewer, where the weight of the testimony appears to be that there is no real ground to anticipate such danger. Allison v. Cincinnati, 2 Superior Court Im- porter, 462. Nor will the fact that employes threaten to quit the building if wcrk upon the sewer is prosecuted, furnish ground for an injunction. Ibid. SEWERS AND DRAINS. 215 1560, sec. 226; S. & S., p. 847, sec. 163; p. 851, sec. 176; p. 852, sec. 177 ; p. 853, sec. 178 ; p. 854, sec. 183, and p. 861, sec. 205.] Sec. 604. Main or trunk sewers. The council may, if they deem expedient, provide for the construction of main or trunk sewers, without regard to districts. [S. & S., p. 861, sec. 205.] Sec. 605. Assessments by districts. Where the corporation is di- vided into sewer districts, the assessment provided for in this chap- ter shall he by districts. [S. & C, p. 1561, sees. 228, 229 ; S. & S., p. 851, sec. 176 ; p. 854, sec. 184, and p. 855, sec. 1S5.] Sec. 606. Discrimination as to improvements. After such plan shall have been prepared and adopted by the board of improve- ments, it shall be their duty to designate such portions of the work as may be required for immediate use. Where the corporation is divided into districts, such designation shall be by districts, and shall show what district or districts, or part or parts thereof, are to be improved. [S. & S., p. 847, sec. 164.] Sec. 607. Plans and specifications. It shall be the duty of the board to have plans and specifications prepared for the construc- tion of the proposed main sewers, showing the size, location, and inclination thereof, and the depth of the same below the surface. [S. & S., p. 847, sec. 164.] Sec 608. Ten days' notice to be given, etc. When plans and specifications for the main sewers have been prepared, it shall be the duty of the board of improvements to give at least ten days' notice in one or more newspapers of general circulation in the corporation, stating that such plans have been prepared, and are filed in the office of the board for examination and inspection by parties interested. The notice shall also show the portions of the work proposed to be done; and, where main sewer districts are provided for, shall give the boundaries thereof. 1 [S. & S., p. 817, sec. 164.] Sec. 609. Amendment of plans, etc. At the time specified in the notice, or at any adjourned meeting, the board of improvements shall hear the parties interested, and may, if they see proper, 1 The act of March 14, 18G4 (S. & S. 847), which provides for the sewerage of cities of the first class, etc., docs not empower the city authorities to contract for the construction of "house connections" with the street sewers, unless such house connections are made part of the plans and specifications required by the act to be prepared and submitted to the inspection of the parties interested, on ten days' notice in a newspaper of general circulation, and approved by the board of city improvements as a part of the p'.an of sewerage authorized by the act. Cordeman v. Cincinnati, 2'-\ Ohio St. 4'J'J. • 210 SEWERS AND DRAINS. amend or correct the plans; and they shall thereupon file the plans; as amended, or, if no amendment be made, then the original plans, dul}' certified by them, in the office of the civil engineer of the cor- poration. [S. & S., p. 847, sec. 164.] Sec. 610. Engineer to estimate costs, etc. After the plan of sew- erage for the corporation, or any part thereof, shall have been. approved by the board of improvements, and duly filed in the manner above provided, the council may direct the civil engineer to make an enstimate of the cost and expense of constructing the work according to such plan, and to report to the council what portion of the same will be required for main sewerage, and what portion for local sewerage for any lots and lands to which any portion of such main sewer shall serve as local sewer. [S. & C, p. 1551, sec. 189 ; S. & S. p. 851, sec. 176.] Sec. 611. Construction of sewers; ordinances, etc. The council shall, on the recommendation of the board of improvements, cause to be constructed such sewer or sewers, specified in said plan, as shall be designated by the board; and the ordinance shall specify the- street, lane, alley, highway, market-space, public landings or commons, or parts thereof, to be sewered and drained, in such man- ner that an examination or survey will show what lot or lots of land bound or abut on the same ; and the council upon the passage of such ordinance, shall cause a plat to be made and filed in the office of the clerk of the corporation, of the lots so bounding or abutting, and the number of the feet front of each lot. [S. & S., p. 848, sec. 105, and p. 819, sec. 107.] Sec. 012. Assessment of cost of main sewers. The council shall provide for assessing the costs and expenses of constructing main sewers, upon the lots and lands bounding or abutting upon the streets, lanes, alle} r s, highways, market-spaces, public landings and commons, in or along which the same shall pass, upon the feet front, or according to the valuation of the same on the county du- plicate, 1 or according to benefits, as they shall determine in each 1 The fact that a lot was in connection with a sewer built in the street in front of it, or that a further sum is required to he paid to tap it, or that the sewer i< not of any special benefit to the lot, does not render the assessment in- valid. Cottle v. King, Superior Court of Cincinnati, General Term; opinion by Storer, J. But under the act of March, 18G4, there is only power given to assess for sewers, which are upon the regular plan of sewerage of the citj^, and an assess- ment for a sewer not on the regular plan, will be void. Barton v. Huntington, Superior Court of Cincinnati, General Term; opinion by Stoker, J. A lot owned and improved as a wharf, on the bank of a river, though from SEWERS AND DRAINS. 217 case. [S. & C. pp., 154G, 1547, sec. 174, and p. 1551, sec. 189; S. & S., p. 84S, sec. 1G5; p. 851, sec. 17G; p. 852, sec. 177; p. 8G1, sec. 205, and p. 8G4, sec. 21 G.J Sec. 613. Limit of such assessment. Such assessment shall not exceed the sum that would, in the opinion of the council, be re- quired to construct an ordinaiy street sewer or drain of sufficient capacity to drain or sewer said lots or lands ; nor shall any lots or lands be assessed that do not need local drainage, or are already pro- vided therewith. The excess of the cost, if any, over the assess- ment herein authorized shall be paid out of the sewer fund of the corporation. [S. & C, p. 1561, sec. 229; S. & S., p. 848, sec. 166; p. 855, sec. 186; p. 857, sec. 191, and p. 8G1, sec. 207.] Sec. 614. Assessment, of cost of local sewerage. The council shall also provide for assessing the expenses of local sewerage upon the feet front of lots and lands by or through which aiy portion of the . main sewer may pass, or according to the valuation of the same upon the duplicate, or in proportion to benefits, as they shall deter- mine in each case. [S. & C, p. 1547, sec. 174, and p. 1551, sec. 189 ; S. & S., p. 848, sec. 16G, and p. 851, sec. 176.] Sec 615. Hides of assessment, etc. If the assessment is upon the feet front, the basis shall be determined by taking the total cost of constructing the main and lateral sewers and drains, and the necessary appurtenances and inlets, and dividing such gross amount by the number of feet front subject to assessment as herein pro- vided for, on each side of the street, lane, alley, highway, common, market-place or public landing, through or in which said Bewera iind drains may be laid, the quotient forming the amount to bo assessed per foot front for each side of said street, lane, alley, high- way, common, market-space, or public landing aforesaid, as a charge for the cost and expenses of constructing said sewers and drains, and their necessary appurtenances. [S. & S., p. 848, sec. 166.] Sec 616. Discrimination in assessment in certain cases. The council may exempt from assessment such portion. of the frontage of any lot having a greater frontage than its average depth, aud so much of any frontage of corner lots as to them may seem equi- table, and charge the deficiency caused by such exemption on the the nature of its use necessarily left open to passage by the public, is within the words "lots and- lands abutting,'' etc., and is properly assessed for sewerage purposes. Boeres v. Strader, 1 Cincinnati Superior Court Keporter, 57. Nor does the fact that no buildings are to be erected on it render the assess- ment for sewerage invalid. Ibid. 218 SEWERS AND DRAINS. whole frontage taxed pro rata; but in so doing they shall specially- set forth in the ordinance making such assessment each lot so ex- empted ; which ordinance, when passed, shall be binding upon the parties interested. [S. & S., p. 846, sec. 1G2; p. 857, sec. 191 ; p. 858, sec. 196, and p. 861, sec. 207.] Sec. 617. Assessment not to exceed txco dollars per foot front. In no case shall the assessment exceed the sum of two dollars per foot front on the property assessed ; and when the amount of the quo- tient exceeds this sum, the excess shall be paid out of the sewer fund of the corporation. [S. & S., p. 848, sec. 166.] Sec. 618. Assessment according to benefits. If the assessment is according to benefits, the council shall appoint three judicious freeholders of the corporation, or its vicinity, who shall assess the estimated expense of the main sewerage upon the lots or lands along which the same shall pass, in the manner above provided, in proportion to benefits; and the estimated expense of the local sewerage where such local sewerage shall be provided for by this chapter, on such lots and lands as will, in their opinion, be bene- fited thereby, whether fronting on the public ground in which the local sewer is to be constructed or not, in proportion, as nearly as may be, to the benefits which may result to each lot or parcel of land. [S. & C, p. 1547, sec. 174, and p. 1551, sec. 189 ; S. & S., p. 851, sec. 176.] Sec. 619. Report of asscssjnents. The assessors shall make a report in writing, specifying the amounts assessed by them upon each lot or parcel of land for main or local sewerage separately, and file the same with the clerk of the corporation within such time as the council shall direct. [S. & C, p. 1547, sec. 174 ; S. & S., p. 852, sec. 176.] Sec. 620. Notice of assessment to be published. After the report is filed, the council shall cause not less than ten days' notice to be given in some newspaper of general circulation in the corporation, of the object of such assessment, and that the same will come be- fore the council for confirmation at a time to be specified in the notice. [S. & C, p. 1547, sec. 174 ; S. & S., p. 852, sec. 176.] Sec. 621. Filing of objections to assessment. Objections to the assessment shall be in writing and filed with the clerk within two weeks after the expiration of the notice, and persons object- ing may be heard before the council at the time specified in the notice. [S. & C, p. 1547, sec. 174, and p. 1551, sec. 189 ; S. & S., p. 852, sec. 176.] Sec 622. Action of council thereon. The council may set aside SEWERS AND DRAINS. 219 the assessment on their own motion, or they may, after hearing objections, confirm the same. [S. & C, p. 15-47, sec. 174, and p. 1551, sec. 189; S. & S., p. 852, sec. 176.] Sec. 623. New assessment provided for. If the council set the first or any other assessment aside, they may appoint other assess- ors possessing the same qualifications, as hereinbefore provided, cause new assessments to be made, and the proceedings shall be the same as is provided for in the first assessment. [S. & C, p. 1547, sec. 174, and p. 1551, sec. 1S9 ; S. & S., p. 852, sec. 176.] Sec. 624. Errors to be corrected. In confirming any assessment, the council may correct any errors in description of any lots or lands made by the assessors. [S. & S., p. 850, sec. 172] Sec 625. Order to county auditor to place assessment on duplicate. After making an assessment for main or local sewerage accord- ing to valuation, or according to feet front, or after the confirma- tion of any assessment for main or local sewerage according to benefits, the council may order such percentage of the assessment for main sewerage as may be necessary to pay the estimated cost of such portion of any main sewer, as provided for in this chapter, as they may determine to construct, together with the total assess- ment for local sewerage for such portion of any main sewer, whether the assessment be by valuation, by benefits, or by the feet front, to be certified to the county auditor of the county in which the corporation is situate, to be placed on the county dupli- cate and collected as other taxes. [S. & S., p. 852, sec. 176.] Sec 626. Assessments to be a lien on lands. All assessments made under the provisions of this chapter shall be a lien on the lots or lands assessed. They shall be transferable, and may be col- lected against the owners personally, or by an enforcement of the lien upon the property subject thereto. 1 [S. & C, p. 1547, sec. 174, and p. 1551, sec. 180 ; S. & S., p. 848, sec. 165 ; p. 849, sec. 167, and p. 852, sees. 176, 177.] Sec 627. Proceedings for recovery of assessments. Proceedings for the recovery of the assessments or the enforcement of the lien, shall be as directed in chapter fortj^-eight. Sec 628. Assessments in new sewer districts. Whenever a sewer district shall be set off, or established, the main sewer of which shall 1 An assessment for the construction of sewers is in its nature a charge for a permanent addition to the freehold, and is to be paid by the owner of the fee, or the holder of a perpetual lease, but is not chargeable against an ordinary tenant for years, although his lease may contain the privilege of purchasing the fee at a specified price. Boers v. Barrett, 2 Superior Court Reporter, G7. 220 SEWERS AND BRAINS. bo a continuation of, or drain through or into, the main sewer of any other district, the council, in providing for assessing the cost and expenses of the main sewer in such new sewer district, may provide for assessing upon the lots and lands in such new sewer district such proportion as said council shall determine to be just, of the cost and expenses of constructing any unconstructed part of the main sewer, in the district through which said new main sewer shall drain ; such assessment, when the profiortion thereof shall be so determined, shall be made in the manner that other assessments are herein directed to be made. [S. & S., p. 853, sec. 181.] Sec. 629. Subdivision of main sewer districts. The council shall have power to subdivide any main sewer district into sub-main sewer districts, or lateral or branch sewer districts, in the manner in which the establishment of main sewer districts is provided for; and to lay out and construct in such sub-main, or lateral, or branch sewer districts, sub-main, lateral, or branch sewers having a com- mon outlet into a main sewer, and to assess and collect the cost of such construction upon the lots and lands in such sub-main, or lat- eral, or branch sewer district, in all respects, as directed in this chapter for the assessment and collection of the cost of construct- ing main sewers. [S. & S., p. 853, sec. 179 ; p. 857, sec. 193, and p. 858, sec. 196.] Sec. 630. Assessments pro rata, etc. If the council shall deter- mine to build only a portion of the sewer or sewers in such sub- main, lateral or branch sewer districts, it shall be lawful in such case to levy and assess the pro rata cost of constructing the whole of the sewer or sewers in such districts, upon the lots or parcels of land bounding or abutting upon the streets or public highways through or by which said portion of such sewer or sewers may be constructed, and the excess in the cost of the sewer or sewers so built, over and above the estimated pro rata cost for the whole dis- trict, shall be levied and assessed pro rata upon all the lots or parcels of land bounding or abutting upon the streets or public highways in such districts in which the sewer or sewers are not at that time completed. Sec. 631. Construction of branch or local sewers. The council may provide for the construction of branch or local sewers, upon any street or other public ground within the corporation, wherein a main sewer is not established or built, which local sewers shall connect with a main sewer convenient thereto, as the council may direct. If the corporation be laid off into districts, the connection SEWERS AND DRAINS. 221 shall be with a main sewer in the district wherein the local sewers are constructed. [S. & S., p. 863, sec. 214.] Sec. 632. Proceedings therefor. Proceedings for the establish- ment and construction of local sewers, as provided for in the pre- ceding section, and for the assessment and collection of the cost and expenses thereof, shall be as directed in the previous sections of this chapter regulating the establishment and construction of local sewers in connection with main sewers. [S. & S., pp. 8G3, 864, sees. 215, 216.] Sec. 633. Division of lots after first assessment. Should any- division or subdivision of lots or lands assessed for sewerage pur- poses occur after the first assessment has been made and confirmed, the council may require the same, or such other assessors as they shall select, to apportion the original amount assessed upon the several parts of lots or lands so divided, whose report, when con- firmed by the council, shall be conclusive upon all parties; and *all assessments thereafter made upon such lots or lands, shall be ac- cording to such division, and collected in the same manner as upon the original assessment. [S. & S., p. 850, sec. 172.] Sec. '634. House connections and branches. The council, upon the recommendation of the board of improvements, may provide for the construction of proper house connections and branches, leading into all main or branch sewers, and for the assessment of the cost and expense thereof upon the lots or parcels of land, for the ac- commodation of which such connections and branches may be con- structed. In no case, except as a sanitary measure, shall the council require such house connections to be built further from the sewer than to the inner line of the curbstone of the street or highway in which the same may be constructed. 1 [S. & S., p. 858, sec. 194, and p. 862, sec. 209.] Sec. 635. Cost of branch sewers, how assessed. When any im- provement provided for in the preceding section has been made, and the assessment therefor has not previously been ordered, the council shall pass an ordinance assessing the cost thereof upon the 1 Section 2 of the act of April 5, 1806 (S. & S. 808), confers authority on the city council to provide for the construction of house connections to sewers, only upon the recommendation of the board df city improvements, and in streets "about to be paved, macadamized, or otherwise permanently improved," and the city authorities are not thereby authorized to contract for the construction of such house connections, except in view of the permanent improvement of the street where they are to be made, nor unless it appears that their construction was definitely recommended by the board of city improvements, and approved by the city council. Cordeman v. Cincinnati, 23 Ohio St. 499. SEWERS AND DRAINS. lots oi* parcels of ground for the accommodation of which such im- provement was made, and such ordinance shall declare the time within which said assessment shall bo paid into the treasury. [S.. & S.,p. 862, sec. 210.] Sec. C3G. Tapping sewers for private use. Parties owning prop- erly abutting upon any street or public highway, in or on through which any public sewer or drain maybe constructed, shall have the privilege of tapping and using the same for the purpose of draining their premises, under such rules and regulations as may be prescribed by the board of improvements ; and the council may, by ordinance, require such persons contracting to build such house connections to procure a license. from said board, and may charge therefor such sum as may be deemed just. [S. & S., p. 849, sec. 168 ; p. 858, sec. 195, and p. 862, sec. 208.] Sec. 637. Ditches for drainage. The council of any city or incorporated village shall also have power to provide for the con- struction of ditches for necessary drainage within the corporation, under the restrictions and regulations, so far as applicable, contained in this chapter. 1 [S. & S., p. 863, sec. 211.] Sec. 638. Repair of sewers, ditches, etc. The council may, when- ever it shall be deemed necessary, provide for the repair or recon- struction of any sewer, ditch or drain. The proceedings for that purpose shall be the same, so far as applicable, as are herein re- quired for the original construction thereof. [S. & C, p. 1546, sec. 174 ; S. & S., p. 853, sees. 179, 180.] 1 A municipal corporation is liable for cutting ditches and water-courses in such a way as to wash away the plaintiff's land, although the work was legally done. They are liable for consequential damage resulting from the exercise of their legal powers. Khodes v. Cleveland, 10 Ohio, 159. FINANCE AND TAXATION. 223' CHAPTEK LI. FINANCE AND TAXATION. Section Section 039. Taxation in villages for special purposes. 052. Delinquent taxes to be certified to 040. Rates of taxation in cities and villages county auditor, etc. for general purposes. 053. Collection of taxes to pay bonds, etc., 041. Rates of levy for special purposes. issued for public improvements. 042. Construction of limitations. 054. Collection to pay bonds issued for sew- 043. Anticipation of tax in certain casos. erage purposes. 644. Rates of levy for special purposes. 655. Taxes on lands laid off into lots, etc. 645. Levy for payment of bonds. 65G. Debts not to exceed taxes and other rev- 646. Levy for a greater tax to be submitted to enue. vote. 657. Mayor to record his protest against ex- G47. Levy of tax for public buildings. cess of expenditure. 648. Maximum of tax allowable. 058. Board of revision, its duties. 649. Percentage of tax to be certified to county G59. Services and supplies to be iu pursuance auditor. of contracts. 050. Corporation taxes, bow collecti d. 600. Council restricted as to contracts. 651. Levy and collection of taxes within cor- poration. Sec 639. Taxation in villages for special purposes. The trustees of* incorporated villages for special purposes, shall have power to levy annually, upon the taxable property therein, such rate of taxes as may be necessary for the purposes mentioned in chapter five, not exceeding ten mills on the dollar, for all purposes in any one year. The taxes so levied shall be collected in the same manner as the taxes of other municipal corporations. *Sec. 640. [As amended, May 2, 1871, 68 L. 133.] Rates of taxation by cities and villages. The city council of any city or incor- porated village shall have power to levy, annually, for the general purposes of the corporation, such amount of taxes on each dollar of valuation of taxable property of the corporation on the grand *Sec G40. [As originally passed.] Rates of taxation in cities and villages for general purposes. The council of any city or incorporated village shall have power to levy, annually, for the general purposes of the corporation, such amount of taxes on each dollar of valuation of taxable prop- erty of the corporation on the grand duplicate, as may be determined upon by them, not exceed- ing the following rales : 1. For each incorporated village, five mills. 2. For each city of the second class, six mills. 3. For each city of the first class, seven mills. Sec. 040. [As amended, April IS, 1870, G7 L. 83.] Rates of taxation in cities and villages for general corporation purposes. The council of any city or incorporated village shall have power to levy, an- nually, for general purposes of the corporation, such amount of taxes on each dollar valuation, of taxable property of the corporation on the grand duplicate, as may be determined upon by them, not exceeding two milh on the dollar ;■ provided, that in cities of the first class, having a population exceeding one hundred thousand inhabitants at the last federal census, the council may levy, for general pur- poses, a tax on real and personal property in said city, not to exceed four nails on the dollar. 224 FINANCE AND TAXATION. duplicate, as may be determined upon by them, not exceeding the following rates: For each incorporated village, one-half of one mill. For each city of the second class, having a population of over thirty thousand and less than eighty thousand, one mill ; every city of the second class, having a, population over ten thousand and less than thirty thousand, two mills; every other city of the second class, two mills; for each city of the first class, having a population over one hundred and fifty thousand, four and one-half mills ; every city of the first class /hiring a. population over eighty and less than one hundred and fifty thousand inhabitants, one-half of one mill ; every city of the first class., having a population over thirty and less than eighty thousand inhabit- ants, two mills. [S. & S., p. 772, sec. 55.] *Sec. G41. [As amended, May 2, 1871, G8 L. 133.] Each city and incorporated village shall also have power to levy annually, in addition to the above, for the following purposes : [S. & S., p. 772, sec. 55.] *Sec. OH. [As originally passed.] Kites of levy for special purposes. Each city and incorpo- rated village shall also have power to levy annually, in addition to the above, the following' rates : 1. For sanitary and street-cleaning purposes, one mill. 2. For the maintenance of the infirmary of the corporation, and the support of the out-door poor, three-fourths of a mill. 3. For keeping in repair steam or other fire-engines, graded wharves, or landings on naviga- ble waters, graded, macadamized, or paved streets, corporation cemeteries, and for the support of the fire department, one mill and a half. 4. For lighting the corporation or supplying it with water, one mill and a half. 5. For keeping up and maintaining bridges, one-half of one mill. 0. For the payment of the marshal and police authorized by this art, one mill. 7. For the maintenance of the work-house, one mill. 8. For the expense of maintaining and administering houses of refuge and correction, over and above the receipts from labor of persons confined therein, such sum as may be necessary to- meet the same. 9. For schools and school-house purposes, such rate as may be prescribed by law. 10. For a sewer fund, one-half of one mill. Where the corporation is divided into sewer dis- tricts, the levy shall be by such districts. Sec. 041. [As amended, April 18, 1870, 07 L. 83. J Each city and incorporated village shall also have power to levy, annually, in addition to the above, the following rates : 1. For sanitary purposes, one-half of one mill. 2. For street-cleaning purposes, one mill; and for street improvements and repairs, one mill. '■',. For tie' maintenance of the infirmary of the corporation and the support of the out-door poor, three-fourllu if mie mill. 4. For keeping in repair steam or other fire-engines, and the support of the fire department, one mill. 5. For the construction or repair of graded wharves or landings on navigable waters, one-half of one mill. 6. For corporation cemeteries, one-half of one mill. 7. For lighting the corporation, one and one-half mills. 8. For supplying the corporation with water, three-fourths of one mill. !). For keeping up and maintaining bridges, one-half of one mill ; provided, that in all cities, except cities of the first class that have been advanced to that grade since 1800, one-half of the proportion of bridge' tax levied by tlie county commissioners, collected upon property within such cities — in all cases where the city FINANCE AND TAXATION. 225 [1.] For sanitary and street-cleaning purposes, and for street improvements and repairs. 2. For the maintenance of the infirmary of the incorporation, and the support of the out-door poor. [S. & S., p. 796, sec. 14.] 3. For keeping in repair steam or other fire-engines, graded wharves or landings on navigable waters, corporation cemeteries,, parks, and for the support of the fire department. [S. & S., p. 882, sec. 281.] [4.] For lighting the corporation or supplying it with water. [S. & S , p. 773, sec. 55, and p. 850, sec. 170.] 5. For keeping up and maintaining bridges. [S. & S., p. 778, sec. G4, and p. 889, sees. 307-309.] G. For the payment of the marshal and police authorized by this act. [S. & S., p. 793, sec. 0.] 7. For the maintenance of the work-house. [S. & S.,p. 868, sec. 230.] 8. For the expense of maintaining and administering houses of refuge and correction, over and above the receipts from the labor of persons confined therein ; such sum as maybe necessary to meet the same. [S. & S., p. 871, sec. 244.] 9. For schools and school-house j)urposes, such rate as may be prescribed by law. [S. & S., p. 772, sec. 55.] 10. For a sewer fund, where the corporation is divided into sewer districts, the levy shall be by such districts. [S. & S., p. 856, sec. 189; p. 857, sec. 192; p. 860, sec. 202, and p. 863, sec. 213.] Sec. 642. Construction of limitations. The limitations contained in the two preceding sections, shall not be construed to prohibit special assessments for improvements provided for by this act, nor the levy of a tax to raise means for the payment of the interest and principal of the debts of the corporation, nor of any tax au- thorized by law for special purposes. [S. & S., p. 773, sec. 55.] Sec 643. Anticipation of tax in certain cases. The council shall council shall demand it — shall br> paid into the city treasury, and shall be expended by such city for the pur- pose of building and repairing bridges. 10. For the payment of marshal and the police, tivo and one-half mills. 11. For the maintenance of the work-house, one-half of one mill. 12. For the expeuBes of maintaining and administering houses of refuge and correction, over and above the receipts from labor of persons confined therein, such sum as may be necessary for the same. 13. For schools and school-house purposes, such amount as may be prescribed by law. 14. For sewer fund, one-half of one mill; when the corporation is divided into districts, the levy may be by such districts. 15. For maintaining the hospital, one-half of one mill. 15 226 FINANCE AND TAXATION. have power to anticipate the tax authorized to be levied for sani- tary and street-cleaning purposes, either by the temporaiy transfer of other funds (except school funds), or by temporary loans for that purpose. [S. & S., p. 773, sec. 55.] *Sec. 64-4. [As amended, April 2, 1871, 68 L. 133.] Levies by councils. The council shall also have power to make the following levies : *Sec. G : 4. [As originally passed.] Rates of leiy for special purposes. The council shall also have power t.o make the following levies: 1. For the real estate and right of way required for any improvement authorized by this act, .one mill. 2. For erecting, enlarging, or improving water-works, three mills. 3. For the erection of school buildings, thee mills. 4. For wharves and landing's, one-half of one mill. 5. For market-houses, two-tenths of one mill. C. For the erection of corporation prison, three-tenths of one mill. 7. For the erection of buildings required for the fire department, the construction of reser- voirs, the purchase of steam or other fire-engines, hose, and other apparatus for the use of such department, o^e mill. 8. For the erection of halls and public offices, one mill. 9. For the improvement of highways leading into the corporation, three-tenths of one mill. 10. For the construction of levees and embankments, one-half of one mill. 11. For the improvement of any water-course passing through the corporation, one-half of one mill. 12. For the erection of work-houses, three mills. 13. For the erection of houses of refuge and correction, three mills. 14. For the erection of hospitals, three mills. 15. For the erection of infirmaries, three mills. 1G. For the erection of gas-works, three mills. 17. For grounds for cemetery purposes, inclosing, improving, embellishing, or enlarging the ■eanie, one mill. 18. For grounds for public. parks, inclosing, improving, embellishing, or enlarging the same, two mills. 19. For the construction of bridges, two-tenths of one mill. 20. To pay the interest on the public debt of the corporation, a sum sufficient to satisfy the same as it accrues annually, to be applied to no other purpose. 21. For the construction and repair of sewers, drains, and ditches, one mill. Where the cor- poration is divided into sewer districts, the levy shall be by such districts. 22. For the purpose of beeping up and maintaining a free public library and reading-room in the corporation, one-half of one mill. But no tax shall be levied for this purpose unless a suit- able lot and building therefor, supplied with library furniture and fixtures, shall first be donated, leased to, or rented by the corporation. 2;i. For any improvement authorized by this act not above provided for, one mill. 24. Such proportion of the amount authorized to be levied by this section, for either of the purposes therein specified, may be levied annually, as the council may, by ordinance, prescribe. Sec. i'i44. [As amended, April 18, 1870, ti7 L. 84.] Rates of levy for special purposes. The coun- cil shall also have power to make the following levies : 1. For the real estate aud right of way thereto required for any improvement authorized in this act, one mil! . 2. For erecting, enlarging, or improving water-works, two mills. 3. For the erection of school buildings, two and one-half mills. 4. For wharves and landings, one-half of one mill. 5. For market-houses, one mill. 6. For the erection of corporation prisons and station-houses, one-half of one mill. 7. For the erection of buildings required for the fire department, the construction of reser- FINANCE AND TAXATION. 227 1. For the real estate and right of way for any improvement authorized by this act. 2. For erecting, enlarging, or improving water-works. [S. & C, p. 1527, sec. 109, and p. 1529, sec. 112; S. & S., p. 865, sees. 219, 220.] 3. For the erection of school buildings. [S. & C, p. 1530, sec. 118; S. & S., p. 895, sec. 326, and p. 896, sec. 327.] 4. For wharves and landings. [S. & C, p. 1531, sec. 118; S. & S., p. 899, sec. 336.] 5. For market-houses. [S. & C, p. 1531, sec. 118. 6. For the erection of corporation prisons. [S. & S., p. 825, sec. 100, and p. 897, sec. 330.] 7. For the erection of buildings required by the fire department, the construction of reservoirs, the purchase of steam or other fire- engines, hose or other apparatus, for the use of such department*. [S. & S., p. 825, sec. 100; p. 881, sec. 278; p. 882, sees. 280, 281 ; p. 883, sees. 285, 286; p. 897, sec. 330, and p. 899, sec. 336.] 8. For the erection of halls and public offices. [S. & S., p. 887, sec. 302, and p. 897, sec. 330. 9. For the improvement of highways leading into the corpora- tion. [S. & S., p. 842, sees. 145, 147.] voirs, the purchase of steam or other fire-engines, hose, and other apparatus, for the use of such ■department, one mill. 8. For the erection of halls and public offices, one mill. 9. For the improvement of highwaj'S leading into the corporation, three-tenths of one mill. 10. For the construction of levees and embankments, one-half of one mill. 11. For the improvement of any water-course passing the corporation, one mill. 12. For the erection of work-houses , livo mills. 13. For the erection of houses of refuge and correction, two mills. 14. For the erection of hospitals, two mill*. 15. For the erection of infirmaries, two mills. 1G. For the erection of gas-works, two mills. 17. For grounds for cemetery purposes, inclosing, improving, embellishing, or enlarging the came, one mill. 18. For grounds for public parks, inclosing, improving, embellishing, or enlarging the same, one mill. 19. For the construction of bridges, one-half of one mill. 20. To pay the interest on the public debt of the corporation, a sum sufficient to satisfy the same as it accrues annually, to be applied to no other purpose. 21. For tin' construction and repairs of sewers, drains mid ditches, one mill. Where the cor- poration is divided into districts, the levy may be by such districts. 22. For the purpose of keeping up and maintaining a free public library and reading-room in the corporation, one-half of one mill. But no tax shall be levied for this purpose unlrss a suit. able lot and building therefor, supplied with a library, furniture and fixtures, shall first be owned by or leased to the corporation. 23. For any improvement authorized by this act, and not above provided for, one mill. 24. Such proportion of the amount authorized to be levied by this section, for either of the purposes therein specified, may be levied annually, as the council may by ordinance prescribe; out the aggregate of all such annual levies shall not exceed the limit herein prescribed fur each of the purposes respectively. 228 FINANCE AND TAXATION. 10. For the construction of levees and embankments. [S. & S., p. 843, sec. 155.] 11. For the improvements of any water-course passing through the corporation. [S. & C, pp. 1531, 1532, sec. 120 ; S. & S., p. 844, sec. 158, and p. 845, sec. 1G0.] 12. For the erection of work -houses. [S. & S., p. 867, sec. 229.] 13. For the erection of houses of refuge and correction. [S. & S., p. 869, sec. 235.] 14. For the erection of hospitals. [S. & S., p. 884, sees. 287, 288.] 15. For the erection of infirmaries. [S. & C, p. 1518, sec. 78.] 16. For the erection of gas-works. [S. & C, p. 1535, sec. 131.] 17. For grounds for cemeteries and park purposes, inclosing, improving, embellishing, or enlarging the same. [S. &. S., p. 875, sec. 254; p. 876, sec. 256; p. 877, sec. 258, and p. 897, sec. 330.] 18. For grounds for public parks, inclosing, improving, embel- lishing or enlarging the same. [S. & S., p. 888, sees. 303, 305.] 19. For the construction of bridges. [S. & S., p. 889, sees. 308 309.] 20. To pay the interest on the public debt of the corporation, and to provide for a sinking fund for the same, a sum sufficient to satisfy the same as it accrues annually, to be applied to no other purpose. [S. & C, p. 1530, sec. 117 ; S. & S., p. 796, sec. 15; p. 802, sec. 26 ; p. 894, sec. 320 ; p. 897, sec. 331 ; p. 898, sec. 332, and p. 899, sec. 334.] 21. For the construction and repairs of sewers, drains, and ditches ; where the corporation is divided into sewer districts, the levy shall be by such districts. 22. For the purpose of keeping up and maintaining a free pub- lic library and reading-room in the corporation; but no tax shall be levied for this purpose unless a suitable lot and building there- for, supplied with library furniture and fixtures, shall first be do- nated, leased to or rented by the corporation. [S. & S., p. 722, sec. 50.] 23. For any improvement authorized by this act and not above provided for. 24. Such proportion of the amount authorized to be levied by this section, for either of the purposes therein specified, may be levied annually, as the council may by ordinance prescribe. Sec. 645. Levy for payment of bonds. When the bonds of the corporation have been issued in anticipation of any tax provided for in the preceding section, the same tax may be levied to raise FINANCE AND TAXATION. 9 means for the payment of such bonds as is authorized for the pur- pose for which they were issued. Sec. 646. Levy of a greater tax to be submitted to a vote. A greater tax than that authorized by this chapter, for either of the purposes mentioned therein, may be levied, if the proposition to make such levy shall have been 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 a majority of those voting on the proposition. Sec. 647. Levy of tax for public buildings. Whenever it may become necessary for any city to provide grounds and erect thereon a court-house, jail, or public offices, for the use of the county within which it may be situated, or to contribute to either of said purposes, the council may levy a tax of one mill upon the taxable property of the corporation. But such tax shall not be levied until the same shall be approved by a majority of the electors of the corporation in the manner pointed out in the preceding section. [S. & C, p. 1535, sees. 134, 135; S. & S., p. 899, sec. 337, and p. 900, sec. 338.] *Sec. 648. [As amended, May 2, 1871, 68 L. 133.] Maximum of taxes allowed. The aggregate of all taxes levied or ordered by any corporation, including the levy for general purposes, over and above the tax for county and state purposes, and excluding the tax for schools and school-house purposes, shall not exceed in any one year : In cities of the first class having a population of one hundred and fifty thousand inhabitants and more, sixteen mills. In cities of the first class having a population of eighty and less than one hundred and fifty thousand inhabitants, twelve and five-tenths mills. In cities of the first class having a population over thirty and less than eighty thousand inhabitants, fifteen mills. In cities of the second class having a population over thirty thousand and less than eighty thousand inhabitants, nine and five-tenths mills. *Sec. G48. [As originally passed.] Maximum of tax allowable. The aggregate of all taxes levied or ordered by aiiy corporation, over and above the general levy, shall not exceed in any one year tliree per cent, on the value of any property assessed for taxation. Sec. G4S. [As ameuded, April 18, 1870, G7 L. 135.] Maximum of tux. allowable. The aggregate of all taxes levied or ordered by any municipal corporation over and above the levy for general purposes, shall not exceed, in any one year, two and one- half per cent, of the value of any prop- erty, as rained for taxation on the county duplicate ; provided, that in cities of the first class, having a papulation exceeding one hundred and fifty thousand at the last federal census, the council may levy a tax in addition to the gencr tl levy hereinbefore provided for, on all the real and jiersonal property in said city to be used for Hie purpose of opening, extending, widening, or securing the rights of ivay for streets or avenues, not to exceed one mill. And no person or prop' rty charged with any special local assessment for any improve- ment, shall be compelled to pay therefor, in any one year, more than one-tenth of the value of the property on which the assessment was made, as valued on the county duplicate for taxation. 230 FINANCE AND TAXATION. In cities of the second class having a population over ten thousand and less than thirty thousand inhabitants, twelve mills. In all other cities of the second class, nine mills. In incorporated villages having a population over three thousand inhabitants, eight mills ; and all other incorporated villages, ten mills, on each dollar of the value of any property as valued for taxation on the county duplicate; provided, that the council of every municipal corporation shall cause to be certified to the auditor of the county on or before the first Monday in June annually, the percentage by them levied on the real and personal property in the corporation, returned in the grand levy, and the county auditor shall place the same on the dupli- cate of taxes for said county, in the same manner as township taxes- are now by law placed on said duplicate; and, provided further, that said council shall annually, at the same time the rate of levy is fixed, pro- vide by ordinance for the distribution of the tax, among the several departments of the city, in such proportion to their needs as said council may deem necessary ; and at no time thereafter shall the amounts therein specified as necessary for the purposes named be changed, and all transfers of funds from one account to another are hereby ex- pressly prohibited. ■Payment of claims. All claims against the said cities, of every nature whatsoever, shall be paid by the treasurer upon the warrant of the auditor, and all boards of trustees, directors or commissioners, having the charge of the expenditures of city funds, shall certify claims against their respective departments to the city auditor for payment, and it shall be the duty of the auditor, in addition to such other duties, to keep accurate and detailed accounts of the receipts and expenditures of the city in all its departments and for all purposes; and, provided further, that no person or property charged with any special local assessment for any improvement, shall be compelled to pay therefor in any one year more than one-tenth of the value of the property on which the assessment was made as valued on the county dupli- cate for taxation. Sec 649. Percentage of tax to be certified to county auditor. The council shall cause to be certified to the auditor of the county, on or before the first Monday of June, annually, the percentage by them levied on the real and personal property in the corporation returned on the grand levy ; and the county auditor shall place the same on the duplicate of taxes for said county in the same manner as township taxes are now by law placed on said duplicate. [S. & C, p. 1522, sec. 87.] FINANCE AND TAXATION. 231 Sec. G50. Corporation taxes, how collected. The taxes of the cor- poration shall be collected by the county treasurer, and paid into the treasury of the corporation, in the same manner, with the same power and restrictions, and under the same regulations; and in all things as to the sale of real or personal property, he shall aet according to the provisions and requisitions of the law for the col- lection of taxes for state and county purposes. [S. & C, p. 1522, sec. 87.] 'Sec. 651. [As amended, April 10, 1870, 67 L. 85.] Taxes within corporations. Nothing in this chapter shall be construed to prevent any corporation, that may elect to do so, from levj'ing and collecting taxes, as authorized by this act, within the corpora- tion ; and when any corporation shall elect to levy and collect such taxes, it shall be the duty of the council to provide, by ordi- nance, for the appointment and regulation of the necessary officers to carry the same into effect; 2 and such officers so created shall have all the power, and be under all the restrictions of county auditors, county treasurers, and township assessors, so far as the same shall be applicable to them, except in the sale of delinquent lands. [S. & C, p. 1522, sec. 87.] Sec. 652. Delinquent taxes to be certified to county auditor, etc. The council may order the clerk, or other proper officer of the council, to certify any delinquent tax assessed by the corporation to the auditor of the proper county, which delinquent taxes, so cer- tified, the auditor is hereby required to place on the grand tax duplicate of the county in a separate column, and the same shall be collected in like manner as delinquent state and county taxes. [S. & C, p. 1522, sec. 87.] Sec 653. Collection of taxes to pay bonds, etc., issued for public improvements. In case any special assessment is made, as author- ized in chapter forty-nine, and bonds, notes, or certificates of in- debtedness of the corporation are issued in anticipation of the collection thereof, the ordinance directing the assessment shall 1 This section differs from the section originally passed only in the insertion of the words in italics. 2 When power is given to collect a tax, and no special mode is prescribed, it is competent for the council to prescribe the mode by ordinance. Cincinnati v. Gwynne, 10 Ohio, 192; Cincinnati v. The Bank of the United States, 14 Ohio, 605. Semble, that where payment is ordered by an ordinance, non-payment might be punished by a penalty in the absence of provisions in the charter. Cincin- nati v. Gwynne, 10 Ohio, 192. 232 FINANCE AND TAXATION. specify the amount per foot front or the amount per valuation to be paid, and where the amount is payable in installments, the amount to be paid annually. And it shall be the duty of the au- ditor or clerk of the corporation, on or before the second Monday in September, annually, to certify such assessment to the council, to be by them confirmed, and thereupon they shall direct the clerk to certify the same to the county auditor, who is hereby author- ized and required to place the same on the tax duplicate ; and tho county treasurer is hereby authorized and required to collect said assessment in the same manner as other taxes are collected, and when collected he shall pay the same to the treasurer of the cor- poration, to be by him applied to the payment of said bonds, notes, or certificates of indebtedness and interest thereon, and for no other purpose ; and for the purpose of enforcing the collection of said assessment, the county treasurer shall have the same power and authority now allowed by law for the collection of state and county taxes. Sec. 654. Collection to pay bonds issued for sewerage purposes. In case any special assessment is made for sewerage purposes, as authorized by chapter fifty, and the bonds of the corporation are issued in anticipation of the collection thereof, such assessment shall be certified to the council, confirmed, certified to the county auditor, and collected at the same time and in the same manner as is provided in the preceding section, and when collected, shall bo applied to the payment of said bonds, and to no other purpose. Sec. 655. Taxes on lands laid off into lots, etc. The council shall have power to impose taxes upon parcels of land laid off into lots, and sold or leased by metes and bounds or other description, though the same shall not have been platted and recorded. 1 [S. & C, p. 1523, sec. 91.] Sec. 656. Debts not to exceed taxes and other revenue. The coun- cil shall not make appropriations nor contract debts for the ordi- nary purposes of the corporation, exceeding the amount of taxes 1 A provision that lands within a municipal corporation unplatted shall bo taxed in a different manner from those that are platted, is in violation of tho constitution of 1851, which requires a uniform rate per cent, to be levied on all property within the limits of the local subdivision for which the revenue is col- lected, subject only to the exemptions specifically provided for. Zanesville v. Eichards, 5 Ohio St. 589. If section 94 of the municipal corporation act of 1852 means this, it is void. Ibid. FINANCE AND TAXATION. 233 and revenue from other sources for the current year. [S. & C, p. 1543, sc-c. 162, and p. 1530, bcc. 118.] Sec. 657. Mayor to record his protest against excess of expendi- tures. If, in the opinion of the mayor, an expenditure shall be authorized by the council, exceeding the revenues of the corpora- tion, for the current year, it shall be his duty to protest against such expenditure, and enter such protest, and the reasons therefor, on the journal of the council. [S. & C, p. 1543, sec. 1G2, and p. 1530, sec. 118.] Sec. 658. Board of revision, its duties. The mayor, the president of the council, and the solicitor of the corporation, shall constitute a board of revision, which shall meet as often as once in every month, to review the proceedings of the council, and of all other departments of the corporation government, and report to the council whether any department of such government has tran- scended its powers, whether any officer has neglected his duties, and also report whether any and what retrenchment in the ex- penses of the corporation, and what improvement in any of the departments of the corporation government can be made. [S. & C, p. 1543, sec. 1G0.] Sec. 659. Services and supplies to be in pursuance of contracts. All services rendered and performed, and all supplies furnished for the corporation, shall, as far as practicable, be rendered, performed and supplied in pursuance of contracts to be authorized by the council, through some appropriate officer or department of the cor- poration. Sec. 660. Council restricted as to contracts. It shall be unlawful for the council to enter into any contract which is not to go in full operation during the term for which all the members of such coun- cil are elected. 1 [S. & S., p. 904, sec. 356.] 1 Where the charter prohibits a city council making any contract " for tha payment of money at any day beyond the current fiscal year in which such contract is made," the council can not, in the year 1848, levy a tax for the pay- ment of an expense incurred in 1845. " If the city council had, at the time tho contract was made, in 1845, passed an ordinance that the expense of lighting for that year should be paid in 1848, by a tax assessed for that purpose, it would have come within the letter of the prohibition. It is none the less a violation of its spirit that the council did not pass the ordinance, providing for its pay- ment, until 1848. This restriction on the city council is a wise and beneficial provision, and the good of the city requires that it should be strictly followed. Jonas v. Cincinnati, 18 Ohio, 318. 234 BORROWING MONET AND ISSUING BONDS. CHAPTER LLC. THE POWER TO BORROW MONEY AND ISSUE BONDS. Section Section 6G1. Loans in anticipation of revenue. 6GG. Issue of bonds for money borrowed in 602. Issue of bonds, etc., to extend time of anticipation of assessment. payment. GG7. Bonds may have coupons attached. 6G3. Bonds for money borrowed in anticipa- CG8. Character of bonds in certain cases. tion of revenue. GG9. Sale of bonds to be advertised. 6G4. Bonds to be explicit on their face. G"0. Bonds not to be sold below par. CG5. Borrowing money in anticipation of G71. Penalty for diverting funds from their special assessment. legitimate use. Sec. 661. Loans in anticipation of revenue. Loans maybe made by municipal corporations, in anticipation of the general revenue fund. 1 The aggregate amount of such loans in any one fiscal year shall not exceed, in case of an incorporated village for special pur- poses one thousand dollars, of an incorporated village fifteen thou- sand dollars, of a city of the second class fifty thousand dollars, of a city of the first class two hundred thousand dollars. [S. & C, p. 1524, sec. 94, and p. 1530, sec, 118.] Sec. 602. [As amended, January 13, 1S73, 70 L. 5.] Issue of bonds, etc., to extend time of payment. The trustees or council of any municipal corporation, for the purpose of extending the time of the paj T ment of any indebtedness incurred, which, from its limits of taxation, such corporation is unable to pay at maturit} T , shall have power to issue bonds of such corporation, or borrow money, so as to change but not increase the indebtedness, 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 eight per centum per annum. [S. & C, p. 1530, sec. 117.] *Sec. 063. [As amended, April 18, 1870, 67 L. 85, and February 1 When the charter contains no restriction on the power of a municipal cor- poration to borrow money, it possesses the power to borrow such money as may be necessary, for the safety and convenience of the town, or to carry into effect the power granted to it for municipal purposes. Bank of Chillicothe v. Chilli- cothe, 7 Ohio, pt. 2, p. 31. *Sec. GG3. [As originally passed.] Bonds for money borrowed in anticipation of revenue. Loans may also be made by any municipal corporation in anticipation of the revenues to be derived from any tax authorized by this act for public improvements or other public use ; and the coun- cil shall have power to issue the bonds of the corporation for the money so borrowed in such amounts as they may determine, bearing a rate of interest not exceeding seven per centum per BORROWING MONET AND ISSUING BONDS. 235- 1, 1873, 70 L. 21.] Borrowing of money in anticipation, etc. Loan* may also be made by any municipal corporation in anticipation of the revenues to be derived from any tax authorized by this act for public improvements or other public use, and the council shall havo power to issue the bonds of the corporation for the money so bor- rowed, in such amounts as they may determine, bearing a rate of interest not exceeding eight per cent, per annum, and payable at' such time as they may deem proper, not exceeding fifteen years : Provided, said bonds shall not in any case be sold for less than their par value ; and further provided, that cities of the first class, which advanced to that grade between decennial periods, may issue bonds for a period not exceeding twenty-five years. Sec. 664. 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. Sec. 665. Borrowing money in anticipation of special assessment. The council of any municipal corporation shall also have power to borrow money at a rate of interest not exceeding seven per cen- tum per annum, in anticipation of the collection of any special assessment, and to issue the bonds of the corporation therefor in the manner and form above provided for. [S. & C, p. 1532, sec. 120; S. & S., p. 845, sec. 160, and p. 895, sec. 325.] *Sec. 666. [As amended, April 18, 1870, 67 L. 86.] Bonds for 1 Where a city council was authorized to sell certain stock, " so soon as it can be sold at par, or at any time after, providing it can be sold for its par value,'' it may make a sale on credit, if the party buying agrees to pay an amount equal to the amount subscribed by the town." Newark v. Elliott, 5 Ohio St. 113. annum, and payable at such time as they may deem proper, not exceeding fifteen years, and redeemable at any lime after six years at the pleasure of the council. Sec. G03. [As amended, April 2, 1870, 07 L. 33.] Loans in anticipation of reienne. Loans may also be made by any municipal corporation in anticipation of the revenue to be derived from any tax authorized by this act, for public improvements or other public use ; and the council shall have power to issue the bonds of the corporation for the money so borrowed, in such amounts as they may determine, bearing a rate of interest not exceeding eight per c«-ntum per annum, and payable at such time as they may deem proper, not exceeding fifteen years. * Sec. GGG. [As originally passed.] Issue of bonds for money borrowed in anticipation of assessment. IT the council shall make any special assessment payable in annual installments, as authorized in chapter forty-nine, they shall have power to borrow upon the credit of the corporation a sum of money sufficient to pay the estimated cost and expense of the improvement, and shall have authority to issue bonds, notes, or certificates of indebtedness pledging the faith and credit of the corporation for the payment of the principal and interest of such bonds, notes, or certificates of indebtedness, said interest not to exceed the rate of seven per centum per tinnum, payable annually. All bonds, notes, or certificates of indebtedness issued as aforesaid, 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, and shall be signed by the mayor and auditor or clerk, aud be jsealed with the seal of the corporation. 236 BORROWING MONEY AND ISSUING BONDS. money borrowed in anticipation. If the council shall make any special assessment paj^able in annual installments, as authorized in chapters forty-nine and fifty, they shall have power to borrow, upon the credit of the corporation, a sum of money sufficient to pay the estimated cost and expense of the improvement, and shall have authority to issue bonds, notes, or certificates of indebtedness, pledging the faith and credit of the corporation for the payment of the principal and interest of such bonds, notes, or certificates of indebtedness, said interest not to exceed the rate of eight per cen- tum per annum, payable annually, which said bonds, notes, or certi- ficates of indebtedness, shall not in any case be sold for less than their par value. All bonds, notes, or certificates of indebtedness, issued as aforesaid, 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, and shall be signed by the mayor and auditor or clerk, and be sealed with the seal of the corporation. Sec. 667. Bonds may have coupons attached. Bonds issued as provided in this chapter may, in the discretion of the council, have interest coupons attached. [S. & S., p. 856, sec. 188.] Sec. 668. Character of bonds in certain cases. Where the cor- poration is divided into districts for sewerage purposes, bonds issued for money borrowed to pay the expense of constructing or repairing sewers in any such district, shall have the name and number of the district for which they were issued legibly written or printed upon them. [S. & S., p. 856, sec. 188.] *Sec. 669. [Eepealed, April 2, 1870, 67 L. 33.] Sec 670. Bonds not to be sold below par. In no case shall the bonds of the corporation be sold for less than their par value. Sec. 671. Penalty for diverting funds from their legitimate use. If any member of the council, or officer of the corporation, shall knowingly divert or appropriate any money borrowed, or bonds of the corporation, or any part of the proceeds thereof, to any purpose other than that for which such loan was made, or such bonds issued, he shall, on conviction, be fined in any sum not less than one hundred nor more than one thousand dollars, or be im- ^Sec. C09. [As originally passed.] Sale of bowls to be advertised . Whenever bonds are issued under the provision of this act to an amount exceeding ten thousand dollars, the sale thereof shall he advertised in at least one newspaper published in the corporation, or if no newspaper bo published therein, then in some newspaper of general circulation in the corporation, for at least ten days previous to such sale. The advertisement shall specify that sealed bids will be received at a place, and until a day and hour designated. The bids shall then be opened and read in the pres> nee of the bidders present, and the bonds shall be sold to the highest bidder, the corpora- tion, however, reserving the right to reject all. SINKING FUND. 237 prisoned in the county jail not less than twenty days nor more than six months, or both, at the discretion of the court. 1 [S. & S., p. 898, sec. 333, and p. 899, sec. 335.] CHAPTEE LIIL SINKING FUND. Section Section G72. Tax for creating a sinking fund. 674. Such levy to be certified to auditor. 673. Levy for sinking fund to be upon prop- 675. Penalty for misappropriation of sink- erty of districts benefited. ing fund. Sec. 672. Tax for creating a sinking fund. Eor the purpose of creating a sinking fund for the gradual extinguishment of the- bonds and funded debt of any municipal corporation, the council thereof may annually (until payment of the bonds and the funded debt be fully provided for) levy and collect, in addition to the other taxes of said corporation, a tax not less than one mill and not exceeding three mills upon the property appraised and returned as provided by law, which shall be paid into the treasury, and be applied by order of the council, to the extinguishment of said bonds and funded debt, and to no other purpose whatever. [S. & C, p. 1522, sec. 88, and p. 1530, sec. 117 ; S. & S., p. 796, sec. 15 ; p. 802, sec. 26; p. 894, sec. 320 ; p. 897, sec. 331, and p. 898, sees. 332, 334.} Sec. 673. Levy for sinking fund shall be upon -property of districts benefited. The levy to provide a sinking fund for the redemption of bonds issued for sewerage purposes, shall, where the corporation is divided into sewer districts, be upon the property of the district for which the bonds were issued. Sec. 674. Such levy to be certified to auditor. The tax so levied shall be certified to the auditor of the county wherein the corpora- tion is situated, to be placed on the county duplicate and collected as other taxes ; such taxes shall be a lien on the property whereon 1 If any part of the fund raised from the sale of bonds to construct a certain avenue remain unexpended, the contractor is entitled to be paid therefrom, and it makes no difference if the unexpended portion has been transferred to tho general fund; the contractor is entitled to be paid out of the latter. Boyle v. Cincinnati, per Force, J., Hamilton Common Pleas. 238 LEASE OR SALE OP PROPERTY. they are assessed, the same as state and county taxes, and subject to the same penalties if delinquent. [S. & S., p. 897, sec. 330.] Sec. 675. Penalty for misappropriation of sinking fund. If any member of the council or officer of the corporation shall knowingly divert or appropriate the tax or sinking fund raised under this act, to any other purpose than that to which it is by this act appropri- ated, he shall, on conviction, be fined in any sum not less than one hundred nor more than one thousand dollars, or imprisoned in the county jail not less than twenty days nor more than six months, or both, at the discretion of the court. [S. & S., p. 898, sec. 333, and p. 899, sec. 335.] CHAPTER LIV. LEASE OR SALE OP CORPORATE PROPERTY. Section Section 676. Lease or sale of corporate property au- 678. This chapter not applicable to certain thorized. classes of property. 677. Disposition of funds so raised. Sec. 676. Lease or sale of corporate property authorized. The council of any city or incorporated village may, upon the recom- mendation of the board of improvements, lease or convey, in such manner and for such sum as may be provided by ordinance, any real estate or interest therein, any wharf or public landing, any buildings, and also dispose of any material from any street, alley, avenue, sewer, bridge, ship channel, public ground or park, belong- ing to the corporation. 1 [S. & C, p. 1544 sec. 170 ; S. & S., p. 802, sec. 27.] Sec. 677. Disposition of fund so raised. The fund arising there- from shall be paid into the corporation treasury ; to the credit of the particular fund by which such property was acquired, if there be any such fund, and if no such fund exist, then to the general 1 A municipal corporation, unless restrained by its charter, may sell what it may acquire. Newark v. Elliott, 5 Ohio St. 113; Widow and Heirs of lley- nolds v. Comm'rs of Stark County, 5 Ohio, 204. Under the provisions of the municipal code, the city may appropriate to other uses property purchased for a public park, although at the time it was purchased the law declared that such property should never be used for any other purpose. Schoonmaker v. Cincinnati, Superior Court of Cincinnati, Gen- eral Term, MS. ANNEXATION OP TERRITORY. 239 fund of the corporation. [S. & C, p. 1544, see. 170; S. S., p. 802, sec. 27.] Sec. 078. This chapter not applicable to certain classes of property. The provisions of this chapter shall not apply to the sale of school property, except with the concurrence of the board of education, nor of property acquired for infirmaries, houses of refuge and cor- rection and work-houses, except with the concurrence of the di- rectors of those institutions, nor of property acquired for water- works purposes, except with a concurrence of the trustees of water- works, nor of any real estate or the buildings thereon de- voted to hospitals, or other like benevolent institutions owned or managed by the corporation. [S. & C, p. 1544, sec. 170; S. & S., p. 802, sec. 27. CHAPTER LV. ANNEXATION op territory to a city or incorporated village on THE APPLICATION OP CITIZENS RESIDING THEREON. Section Section 679. Annexation of adjacent territory. 686. Notice of order of dismission, etc. C80. Petitions for such annexation. 687. Stay of proceedings on order enjoining, 681. Proceedings thereon. etc. 682. Report of transcript to council. 688. Effect of acceptance of annexation. 683. Rejection of application. 6S'J. Proceedings when territory lies in two 684. Procet dings on acceptance of application. or more counties. 685. Notice of filing of petition to enjoin. Sec 079. Annexation of adjacent territory. The inhabitants re- siding on any territory adjacent to any city or incorporated vil- lage, may, at their own option, be annexed to such city or incor- porated village, in the manner following : [S. & C, p. 1495, sec. 9.] Sec 080. Petitions for such annexation. Application for sueh purpose shall be by petition, in writing, addressed to the commis- sioners of the count}' in which such territory is located, and shall be signed b} 7 a majority of the qualified freehold electors residing on said territory. It shall contain the name or names of some person or persons who are authorized to act as the agent or agents of the petitioners in securing such annexation, and shall fully de- scribe the said territory, and be accompanied by an accurate map or plat thereof. [S. & C, p. 1495, sec. 9.] Sec 081. Proceedings thereon. Such petition shall be presented to the board of commissioners at some regular session thereof, and 240 ANNEXATION OF TERRITORY. when so presented, the same proceedings shall thereafter be had r 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 application to be organized into an incorporated village under the provisions of chapter two; and the final transcripts of said commissioners, and the accompanying map or plat and petition, shall be deposited with the clerk of the city or incorporated village to which such annexation is proposed to be made, who shall file the same in his office. [S. & C, p. 1495, sec. 10.] Sec. 682. Report of transcript to council. At the next regular session of the council of such city or incorporated village, after the expiration of sixty days from the date of such filing, the said clerk shall report the said transcript and the accompanying map or plat and petition to said council, and thereupon such council shall, by resolution or ordinance, accept or reject the said application for an- nexation. [S. & C, p. 1496, sec. 11.] Sec. 683. Rejection of application. If the resolution or ordi- nance shall be to reject such application for annexation, then no further proceedings shall be had ; but such rejection shall not be held to operate as a bar to any future application to the county commissioners on the same subject. Sec 684. Proceedings on acceptance of application. If the reso- lution or ordinance of the council be an acceptance of such appli- cation for annexation, then it shall be the duty of the clerk of such city or incorporated village to make out two copies of the petition and map or plat accompanying the same, and transcript of the commissioners, and resolution and ordinances in relation to such annexation, with a certificate that the same are correct, which cer- tificate shall be signed by him in his official capacity, and be at- tested by the seal of such city or incorporated village, one of which copies he shall forthwith deliver to the recorder of the county, whose duty it shall be, having first made a record thereof in the proper books of record, to file and preserve the same, and the other of said copies shall be, by such clerk, forwarded to the secretary of state. [S. & C, p. 1496, sec. 12.] Sec. 685. Notice of filing of petition to enjoin If the clerk, within sixty days from the date of the filing of such transcript, map or plat and petition in his office, shall receive notice from any person interested, that he has filed a petition to the court or judge to enjoin all further proceedings, he shall not then report to the council such transcript, map or plat and petition filed with him r ANNEXATION OF TERRITORY. 241 until after the final hearing and disposition of said petition. [S. & C, p. 1-496, sec. 12.] Sec. 686. Notice of order of dismission, etc. If the court or judge shall make an order dismissing such petition, the clerk of the county shall then immediately notify, in writing, the clerk of the corporation of the order made, and the clerk shall then, at the next regular meeting of the council, report to the same such tran- script, map or plat and petition accompanying the same, as if no- such petition had been filed. Sec 687. Stay of proceedings on order enjoining, etc. If the or- der of the court or judge be enjoining said clerk from making such report to the council as before provided, a certified copy of such order shall be immediately made by the proper officer of the court, and delivered to said 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 matter; but such order of the court or judge shall not operate as a bar to any future application for the foregoing purpose to the commissioners of the county. [S. & C, p. 1496, sec. 11.] Sec 6S8. Effect of acceptance of annexation. So soon as said resolution or ordinance, accepting such annexation, has been adopted, the said territory shall be deemed and taken to be a part and parcel of the city or incorporated village, and the inhabitants residing thereon shall have and enjoy all the rights and privileges- of the inhabitants within the original limits of such city or incor- porated village. [S. & C, 1496, sec. 13.] Sec 689. Proceedings ichen territory lies in two or more counties. Where the corporation is situate in two or more counties, or where the territory to be annexed is situate in a different county from that in which the corporation or some part of it is situate, the proceedings, so far as practicable, shall be as directed in sections twenty-five and twenty-six of chapter two. 16 242 ANNEXATION OP TERRITORY. CHAPTER LVI. ANNEXATION ON THE APPLICATION OP THE CORPORATION. Section Sn-TroN GOO. Annexation on application of corpora- 604. Proceedings where territory lies in sev- tion. eral counties, etc, 601. Ordinance for annexation. 695. Effect ol annexation completed. 602. How application to be made. GOG. Unnoticed errors ami irregularities not •693. Proceedings on petition. to vitiate annexation. Sec. 690. Annexation on application of corporation. When any municipal corporation, not an incorporated village for special pur- poses, shall desire to enlarge its corporate limits by the annexation of contiguous territory, 1 it shall be done in the following manner: [S. & C, ]). 1407, sec. 14.] Sec: G91. Ordinance for annexation. The council of the cor- poration, by a vote of not less than a majority of the members elected, shall pass an ordinance authorizing such annexation to be made, and directing the solicitor of the corporation, or some one else to be named in the ordinance, to prosecute the proceedings necessary to effect such annexation. [S. & C, p. 1497, sec. 14.] Sec. 692. Hoiv application to be made. Application for such purpose shall be by petition, in writing, of the corporation to the commisioners of the proper county, which petition shall set forth that under an ordinance of the council duly and legally passed, the territory therein described was authorized to be annexed to the corporation, and shall accurately describe such territory and be 1 Territory on the opposite side of a navigable river, forming the boundary of a town, is contiguous to the town. Elanehard v. Bissell, 11 Ohio St. 96. The legislature can not prescribe the boundaries of a corporation by a special act. Such act is in contravention of the constitutional prohibition against spe- cial laws conferring corporate powers. State of Ohio ex rel. the Attorney-Gen- eral v. Cincinnati, 20 Ohio St. The act of the 16th of April, 1870, "to prescribe the corporate limits of Cin- cinnati " (67 Ohio L. 141), is a special act. It assumes to confer upon the i cor- poration of that city additional powers; to confer, on certain conditions, the power of municipal government, the power of police regulation, the power of judicial jurisdiction, and of taxation and assessment, over a number of out- lying incorporated suburban villages and other territory not before within the bm t~ of the city, and is therefore repugnant to the constitution, and of no binding force and validity. The State of Ohio ex rel. v. The City of Cincin- nati, 20 Ohio St. 18. ANNEXATION OP TERRITORY. 12 1LJ accompanied by an accurate map or plat thereof. 1 [S. & C, p. 1497 sec. 14.] Sec. G93. Proceedings on petition. Upon such petition being pre- sented to the commissioners, like proceeding thereon shall be had, in all respects, so far as applicable, as are required under the pro- visions of chapter fifty-five. [S. & C, p. 1497, sec. 14.] Sec. G94. Proceedings where territory lies in several counties, etc. "Where the corporation is situated in two or more count its, or when the territory to be annexed is situated in a different eounty from that in which the corporation or some part of it is situated, the proceedings shall be in the count}' in which the territory to be annexed, or some part of it, is situate. Sec 695. Effect of annexation completed. When the annexation of such described territory has been completed, the same shall in law be deemed and held to be included in and constitute a part of such municipal corporation, and the inhabitants residing thereon shall have and enjoy all the rights and privileges of the inhabitants residing within the original limits of the corporation. [S. & C, p. 1497, sec. 14.] Sec 096. Errors and irregularities not to vitiate annexation. When any addition has been made to any corporation, and the same has been recognized as a part thereof, and has been taxed, and taxes thereon paid, and subjected to the ordinances and the authority of the council, without objection, such addition shall be deemed part of the corporation, and the inhabitants residing thereon citizens thereof, notwithstanding any errors, irregularities, or de- fects in making such addition. [S. & S., p. S92, sec. 315.] 1 Lands can be annexed to a municipal corporation without the consent of the inhabitants thereof. Powers v. Commissioners of Wood Co., 8 Ohio St. 28-3; Blanchard v. Bissel, 11 Ohio St. 96. The questions involved are both of a public and local nature, and the court will not interfere with, the exercise by the county commissioners of the power vested in them, by injunction. Powers v. Comm'rs of Wood Co., supra. 244 ANNEXATION OF CORPORATIONS. CHAPTEE LVII. ANNEXATION OP ONE MUNICIPAL CORPORATION TO ANOTHER MUNICIPAL CORPORATION. Section Section 697. Annexation of contiguous corporations. 703. Transcript to be filed in office of re- 698. Submission to vote of electors. corrler. 699. Such submission by ordinances. 704. Annexation complete, etc. 700. Effect of affirmative vote. 705. One government, etc., for both corpora- 701. Commissioners to arrange terms, etc. tions. 702. Approval by ordinances. Sec. 697. Annexation of contiguous corporations. When any municipal corporation, the territory of which shall he contiguous and adjoining the territory of another municipal corporation, shall desire to be annexed to such other corporation, such annexa- tion shall be effected in the following maimer :' [S. & C, p. 1497, sec. 15.] Sec. 698. Submission to vote of electors. The trustees or council of the corporation proposing such annexation shall submit the question of such annexation to the qualified electors thereof, 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 qualified voters. [S. & C.,'p. 1497, sec. 15.] Sec, 699. Such submission by ordinances. Such submission shall be by ordinances adopted by the trustees or council of each cor- poration at least thirty days prior to the annual April or October election, at which election the vote shall be taken, and the ordi- nances 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 councils may deem most expedient, for the period of at least twenty days prior to the day fixed for such election. [S. & C, p. 1497, sec. 15.] 1 Where suit is brought in the superior court of Cincinnati, to enjoin the treasurer of Hamilton county from collecting a special assessment upon lands situated in a village outside the city, and the defendant filed a general demurrer as well as a demurrer to jurisdiction, and pending the hearing of the demurrer, the village was annexed to the city, after which the defendant argued and sub- mitted the demurrer, it is equivalent to a voluntary appearance after annexa- tion, and the court acquires full jurisdiction. Jones v. Gerke, 2 Superior Court Reporter, 500. ANNEXATION OP CORPORATIONS. 245 Sec. 700. Effect of affirmative vote. If a majority of the quali- fied electors of each corporation voting on the question so submit- ted, at the same election, be in favor of such annexation, the trustees or council of each shall thereupon, within a reasonable time, cause the result to be certified to the other corporation. [S. & C, p. 1497, sec. 15,] Sec. 701. Commissioners to arrange terms, etc. The trustees or council of each corporation shall then appoint, 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, when agreed upon, to the trustees or council of their respective corporations. [S. & C, p. 1497, sec. 15.] Sec. 702. Approval by ordinances. When the report of such commissioners shall be approved by an ordinance passed by each corporation, certified copies thereof, signed by the presiding officer of the trustees or council of each corporation, and the respective clerks thereof, and attested by the corporate seal of each, shall be filed in the office of the clerk of the corporation to which such an- nexation is proposed to be made. [S. & C, p. 1497, sec. 15.] Sec. 703. Transcripts to be filed in office of recorder, etc. It shall then be the duty of the clerk, under the direction of the corpora- tion, to make out and certify two transcripts of all the ordinances, abstracts of the returns of the votes, and other papers relating to such annexation, one of which shall be filed in the office of the re- corder of the count}', who, having made a record thereof, shall file and preserve the same, and the other shall be forwarded by said clerk to the secretary of state. [S. & C, p. 1497, sec. 15.] Sec. 704. Annexation complete, etc. So soon as said transcripts shall be certified, delivered, and forwarded, the annexation shall be deemed complete ; and it shall be lawful for the corporation to which the annexation has been made, to pass such ordinances as will carry into effect the terms thereof, so far as the same shall not be inconsistent with this act and with the regular and proper gov- ernment of the corporation under the provisions thereof, and any part of such terms so inconsistent shall be deemed void ; but their nullity shall in no manner affect such annexation. [S. & C, p. 1498, sec. 16.] Sec. 705. One government, etc., for both corporations. When the annexation has been completed, the two former corporations shall thereafter 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, or in any wise 24G SURRENDER OP MUNICIPAL RIGHTS. impair any rights or liabilities existing at the time of the annexa- tion, either in favor of or against said corporations; and suits founded upon such rights and liabilities maybe commenced, and pending suits prosecuted and carried to final judgment and execu- tion, the same as though such annexation had not taken place. [S. cv C, p. 1497, sec. 16.] CHAPTER LVIII. SURRENDER OP MUNICIPAL RIGHTS. Section Section 706. Surrender of municipal rights. 713. Certified transcripts to be made, etc. 707. Petition therefor. 714. Officers, etc., to continuo until next 708. Notice, etc., of election. election. T i! !'. Whal thi ballots shall contain. 715. Villages may surrender in like manner. 710. Poll-books and tally-shee 710. Surrender not to affect accrued rights. 711. To be opened, etc., by council. 717. Disposition of taxes, etc., due at time 712. Declaration on affirmative Tote. of surrender. Sec. TOG. Surrender of municipal rights. Any city of the second class may surrender its corporate rights and be reduced to the grade of an incorporated village, in the following manner: [S. & Q., p. 1549, sec. 180, and p. 1550, sec. 184.] Sec. 707. Petition therefor. A petition for such purpose signed by at least one hundred of the freehold electors of the corporation, shall be presented to the council, and it shall set forth that it is the desire of a majority of the citizens of the corporation to surrender their corporate rights, and be reduced to the grade of an incorpo- rated village, and it shall pray that an election be held to determine the sense of the legal voters upon the subject. [S. &. C, p. 1549, sec. 180, and p. 1550. sec. 184.] Sec 708. Notice, etc., of election. The council shall thereupon fix upon a day and place for holding such election, and shall cause the clerk of the corporation to give notice thereof and the object of such election, in one or more newspapers published, and by rs set u p in'fivc or more public places, within the corpora- tion, for the period of not less than twenty days next prior to the day of holding such election. [S..& C, p. 1549, sec. 180, and p. 1550. sec. L84.] . 709. What the ballots shall contain. The hallo's cast at said election shall contain the words " for surrender " or " against surrender," and such election shall be held and conducted in the same manner, and by the same officers as other elections in the corporation, and the laws of the state regulating elections shall SURRENDER OP MUNICIPAL RIGHTS. 247 govern the same so far us applicable. [S. & C, p. 1549, sec. 180, and p. 1550, sec. 185.] Sec. 710. Poll-boohs and tally -sheets. The officers holding such elections shall, upon the close oi the polls and counting out the bal- lots, forthwith certify and cause to be delivered to the cleric of the corporation, in a sealed envelope having indorsed thereon the nature of its contents, the poll-book and tally-sheets of such elec- tion. [S. & C, p. 1540, sec. 180, aixl p. 1550, see. 180.] Sec. 711. To be opened etc., by council. The clerk, upon receiv- ing such poll-book, shall file and preserve the same in his office Tintil the next regular meeting of the council, and the council at such meeting shall cause the said poll-book to be opened and the result of such election to be entered on its journal. [S. & C, p. 1549, sec. 180, and p. 1550, sec, 18C] Sec. 712. [As amended, March 3, 1875, 72 L. 4G.] Declaration, on affirmative rut,'. If the majority of votes cast at said election shall be 'tor surrender," then the council shall by resolution, de- clare in effect that, by the determination" of legal voters at a special election held for such purpose, the corporate rights of such corpora- tion are surrendered, or that such city is reduced to the grade of an incorporated village, and shall thereafter be known as the in- corporated village of , according to the fact : Provided, however, that such surrender shall in no manner whatever interfere with the organization of the school district under whatever law the same may have been organized in such corporation, and such school dis- trict shall remain intact and wholly unaffected thereby, in all re- spects as though no surrender had been made. Sec 713. Certified transcripts to be made etc. The clerk shall thereupon cause two certified transcripts of said resolution to be made out, one of which he shall forthwith deliver to the recorder of the county, and which shall be by him recorded in the proper book of records in his office, and the other shall be, by said clerk, forwarded to the secretary of state. [S. k C, p. 1550, sec. 180. Sec' 714. Officers, etc., to continue until next election. All the offi- cers elected or chosen as officers of such corporation, shall continue in office and perform their duties as though.no such surrender had been made until the next regular election, and until the officers of the new corporation are elected and qualified, and the wards of such city corporation shall remain and the ordinances thereof shall con- tinue in force, except so far as such ordinances may be inconsistent with the powers granted incorporated villages, until changed or repealed by the council of the new corporation. 248 SURRENDER OF MUNICIPAL RIGHTS. Sec. 715. [As amended, April 20, 1871, 68 L. 71, and March 3, 1875, 72 L. 40.] Surrender of corporate rights of villages, etc. ; proceed- ings thereon. Incorporated villages may surrender their corporate rights, or may be reduced to the grade of incorporated villages for special purposes, and incorporated villages for special purposes ma}'' surrender their corporate rights in the same manner, so far as ap- plicable, as provided in the preceding sections in this chapter for the surrender of corporate rights by cities of the second class, and the duties of all officers in respect thereto and proceedings there- after, so far as applicable, shall be the same as prescribed in the preceding section. Where the petition is by the electors of an in- corporated village, or an incorporated village for special purposes, it shall be sufficient if signed by a majority of such electors, if such electors be less than one hundred; but if such electors be one hun- dred or more, then b} 7 not less than fifty of such electors: Provided, further, that the petition of at least two-thirds of the freehold electors inhabiting any portion of the territory of an incorporated village, setting forth a desire to surrender their corporate rights, and to be detached from said corporation, the same proceedings as provided in this chapter, as far as applicable, including a submis- sion of the question to the legal voters of the incorporated village, shall be had ; and, provided further, that on the reduction of the incorporate limits, subsisting levies by the council shall bo collected and paid into the village treasury for the purposes for which they were made, and that the council, for paying existing indebtedness, shall, until the same shall be paid, retain the power of levjnng taxes on the taxable property within the detached territory, as if the same had not been detached, and the provisions of sections 716 and 717 of this act shall govern in case of such reduction, so far as the same ma}' be applicable. Sec 710. [As amended, March 3, 1875, 72 L. 40.] Surrender not to affect accrued rights. The surrender of corporate rights, as herein provided, shall not be held to affeet rights accrued or liabili- ties incurred, by such corporations, or the power to settle claims, dispose of property, levy and collect taxes to discharge liabilities incurred, but the same shall remain in full force and effect, as also the corporate character of such city or village for special purposes, in respect thereto, as though no surrender had been made: Pro- vided, however, that when such petition is by an incorporated village, or an incorporated village for special purposes for the entire sur- render of its corporate rights, it shall be unlawful for such corpo- ration, or the council thereof, after the presentation of such petition, ADVANCEMENT OR REDUCTION OF CORPORATE GRADE. 249 to incur or create any new debts or liabilities whatever, or enter into any new contracts, or increase the debts or liabilities of such corporation in any manner during the pendency of such petition, and until the result of such election is declared, nor thereafter if a majority of votes cast at such election shall be "gfor surrender;" and all debts or liabilities incurred, or contracts made, contrary to the provisions of this act, shall be utterly void and of no effect whatever. Sec 717. Disposition of taxes, etc., due at time of surrender. All taxes which, at the time of such surrender, remain due and unpaid, and all moneys in the treasury of such city, incorporated village, or incorporated village for special purposes, shall be col- lected and applied to the objects for which the same were raised; and in case any moneys shall remain on hand after the debts and liabilities of the corporation shall have been discharged, the same shall be paid into the treasury of the incorporated village, or in- corporated village for special purposes, or into the common school fund of the district embracing such corporation, as the case may be, and all property owned by the corporation, at the time of such surrender, by purchase or otherwise, shall become the property of the new corporation or of the school district, as the case may be and the title thereto vest accordingly. 1 [S. & C, 1550, sec. 187.] CHAPTER LIX. DUTIES OF STATE OFFICERS AND RIGHT OF VISITATION. Section Section 718. Duty of state officers to ascertain grade 722. Statement thereof to be submitted in of cities, etc. his annual report. 719. Secretary of state to cause publication 723. Declaration of advancement or reduc- thereof. . tion of grade to be published. 720. Advance of grade to be submitted to vote. 724. Right of visitation by governor, legis- 721. Papers to be preserved in office of secre- lature, etc. tary of state. Sec. 718. Duties of state officers to ascertain grade of cities, etc. It shall be the duty of the governor, auditor, and secretary of state, or any two of them, at the time of ascertaining the ratio of repre- 1 When, upon the dissolution of a municipal corporation, a duty is imposed upon certain officers with reference to the property and debts, and no means prescribed for appointing successors, they can not escape from the performance of the duty by resignation, but will be compelled to perform it by mandamus. Gorgas v. Blackburn, It Ohio, 252. 250 ADVANCEMENT OR REDUCTION OF CORPORATE GRADE. sentation, as required by the eleventh section of the eleventh arti- cle of the constitution of this state, to ascertain what cities of the second class arc entitled to become cities of the first class, and what incorporated villages are entitled to become cities, and their proper class, and "what incorporated villages for special purposes are entitled to become incorporated villages. [S. & C, p. 1.108, sec. 42.] Sec. 719. Secretary of state to cause publication thereof, etc. The secretary of state shall cause a statement thereof to be prepared, which statement he shall cause to be published in some newspaper in Columbus, and also in some newspaper published in each of the cities, incorporated villages, and incorporated villages for special purposes, which shall contain the required population to be ad- vanced in grade, and a copy of said statement shall also be trans- mitted by the secretary of state to the general assembly, at its next session thereafter. Sec 720. Advance of grade to be submitted to rote. So soon as the said statement has been published, the council of any corpora- tion which, according to such statement, shall have the required population to be advanced to a corporation of the next higher grade, shall have the power, at any time, by ordinance passed for Mich purpose, to submit to the voters of the corporation, the ques- tion whether such corporation shall be advanced to the grade of the next higher corporation ; and such election shall be conducted and the proceedings thereafter had, in case the result of the elec- tion be in favor of such advancement, in all respects, as provided in chapters three and four of this act. Sec 721. Papers to be preserved in office of secretary of state. The secretary of state shall receive and preserve in his office all papers transmitted to him in relation to the organization of incor- porated villages for special purposes, incorporated villages, and the annexation of territory to any city or incorporated village, and the consolidation or advancement or reduction in grade of municipal corporations. Sec 722. Statement thereof to be submitted in his annual report. He shall also submit in his annual report to the general assembly a statement showing the names, location, and limits of each incor- porated village for special purposes, and each incorporated village organized under this act during the period embraced in said re- port; and also all incorporated villages and cities the limits of which have been increased and the limits so added, ami the cor- porations which have been advanced or reduced in grade during the same period. [S. & C, p. 1493, sec. 17.] SAVING OF EXISTING RIGHTS. 251 Sec. 723. Declaration of advancement or reduction of grade to be published. Whenever any incorporate d village for special purposes has been advanced to the grade of an incorporated village, in the manner provided in chapter three, or any incorporated village has been advanced to the grade of a city of the second class, or any city of the second class has been advanced to the grade of a city of the first class, in the manner provided in chapter four, or any municipal corporation has been reduced to a corporation of a lower degree, the secretary of state, upon requisite evidence of the fact being filed in his office, shall cause a notice to be published in one of the newspapers of Columbus, declaring such municipal corpo- ration has been advanced or reduced in grade as the case ma}* be. Sec. 72-1. Bight of visitation by governor, legislature, etc. 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 judges of any of the courts of this state, and the grand jury of the county, may, at any time, visit and inspect any of the benevolent or correctional institutions established hy anj* municipal corporation, and examine the books and accounts of the same. CHAPTEE LX. SAVING OP EXISTING RIGHTS. Section Section 725. Existing rights, etc., not to bo changed 728. Officers of corporations to continue by this act. during their terms, etc. 726. Powers and duties in relation to election 729. Ordinances, etc., to continue in force. of justices, etc., te> remain until changed 730. Acts, courts, etc., not inconsistent with bylaw. this act, to remain until changed by 727. Vested powers in relation to benevolent proper authority. institutions, etc., to continue. Sec. 725. Existing rights, etc., not to be changed by this act, etc, All rights and property, of every kind and description, which were vested in any municipal corporation under its former organi- zation, shall be deemed and held to be vested in the same municipal corporation under the organization made 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 or prosecu- tion of any kind, shall be in any manner affected by such change, but the same shall stand or progress as if no such change had been made- provided, that where a different remedy is given in this act 252 SAVING OF EXISTING RIGHTS. ■which can bo made applicable to any rights existing at the time of its passage, the same shall be deemed cumulative to the remedies before provided, and may be used accordingly. [S. & C, p. 1526, eec. 102. Sec. 726. Powers and duties in relation to election of justices, etc., to remain until changed by law. Any municipal corporation which, under its former organization, held or exercised any power or duty, in ordering or directing the election of justices of the peace, con- stables, or other township officers, shall continue to hold and exer- cise such power and duty until otherwise provided by law. [S. & C, p. 1526, sec. 103.] Sec. 727. Vested powers in relation to benevolent institutions, etc., to continue. Any municipal corporation in which, under its former organization, any law or charter, regulating any literary, charitable, or benevolent institution, vests any power appointing officers of supervision or control, shall continue to hold and possess the like power and authority in every respect. [S. & C, p. 1526, sec. 104.] Sec 728. Officers of corporations to continue during their terms, etc. The mayor, trustees, marshal, treasurer, and all officers elected by the people, or appointed by any municipal corporation, and all officers of benevolent and other institutions, now in office, shall remain and continue in their respective offices, and perform the several duties thereof, under the provisions of this act, until the time shall expire for which they shall have been elected or ap- pointed, and until their successors shall be chosen or appointed and qualified; 1 but all such officers shall be subject to such rules and regulations touching their duties and compensation, as the proper authority of any municipal corporation may provide. [S. & C, p. 1526, sec. 105.] iThis section did not continue the office of any officer, unless the act provided an officer who might be regarded as his successor, and therefore, when by the municipal corporation act of 1852, there were three city commissioners in charge of the streets, while by the act of 1869 there was but one street com- missioner, and the act creating the office of the three city commissioners was repealed, their office was abolished. JIcHugh v. Cincinnati, 1 Cincinnati Superior Court Reporter, 145; leave to file petition in error was refused by the court in bank. "When the act of 1869 created a new office, if the city council had power to order a special election upon its taking effect, they had power to provide that the officer elected at such special election should hold only until the next annual election of municipal officers, and the officer elected at such next annual elec- tion will be entitled to his seat. State of Ohio ex rel. Chambers v. Cook, 20 Ohio St. SAVING OF EXISTING RIGHTS. 253 Sec. 729. Ordinances, etc., to continue in force. All laws, ordi- nances and resolutions heretofore lawfully passed and adopted by the trustees or council, shall be, remain, and continue in force, until altered or repealed by the trustees or council established by this act. 1 [S. & C, p. 1526, sec. 105.] Sec. 730. Acts, courts, etc., not inconsistent with this act to remain until changed by proper authority. All special acts in relation to any municipal corporation shall, so far as the same affects the particular police regulations, or local affairs of any municipal corporation, in matters not inconsistent with this act, be and remain in force as by-laws and ordinances of the particular municipal corporation, until altered or repealed by the proper authority thereof. The police courts and mayors' courts heretofore created and established, are hereby continued, with the powers and jurisdictions conferred by this act. 2 [S. & C, p. 1526, sec. 105.] 1 A similar section was construed in Colter v. Doty. The city council passed an ordinance forbidding the carrying of gunpowder through the streets, except under certain conditions, and enforced it by a forfeiture of the gunpowder. At the time the ordinance was passed the council had no power to create a forfeiture, but power was subsequently given to them, and the act giving the power also contained a clause like this. Hitchcock, J., says (p. 398) : " By the twenty- fourth section of this act, all laws, ordinances, and resolutions heretofore law- fully passed and adopted by the city council of said city," are continued in force until repealed. JSTow, although at the time the property in controversy was 6eized, the city council possessed this power, inasmuch as the defendant acted under an ordinance made at a time when they did not possess it, it will not avail him in his defense. Colter v. Doty, 5 Ohio, 394. But where, under a special law of 1850, the city had a right to assess only per front foot, and it passed in the same year a general ordinance regulating all assessments, and directing them to be made per front foot, held that under section 109 of the act of 1852, which was similar to this, the ordinance of 1850 was still in force; that a principal object of the saving clause was to avoid the necessity of re-enacting laws and ordinances which were already satisfactory, and such as might lawfully be re-adopted under the act of 1852. Reynolds v. Hammond, Superior Court of Cincinnati, General Term, MS. ; Hanbold v. Bar- ton, Hamilton District Court, White, J., delivering the opinion. 2 The temporary continuance given to special acts governing municipal cor- porations, by section 109 of the municipal corporation act of 1852, did not keep alive a provision in the original charter of Zanesville, which prescribed a mode of taxation of lands for municipal purposes inconsistent with the rule laid down in the constitution. Zanesville v. Richards, 5 Ohio St. 589. 254 ACTS REPEALED. CHAPTER LXI. ACTS REPEALED. Section 731. List of acts repealed. 732. When this act to take effect. Sec. 731. Acts repealed. The following acts and parts of acts are hereby repealed : An act to provide for the organization of cities and incorporated villages, passed May 3, 1852. [S. & C, p. 1493.] An aet to amend an act entitled " an act to provide for the or- ganization -of cities and incorporated villages, passed May 3, 1852," passed March 30, 1859. [O. L., vol. 56, p. 88; S.& C, p. 1499.] An act to amend " an aet to provide for the organization of cities and incorporated villages, passed May 3, 1852, and supplementary and amendatory to 'an act to provide for the organization of cities and incorporated villages, passed March 11, a. d. 1853,' " passed April 28, 1854. [O. L., vol. 52, p. 61 ; S. & C, p. 1536.] An act to amend an act entitled " an aet to provide for the organization of cities and incorporated villages, passed May 3, 1852," passed March 6, 1857. [0. L., vol. 54, p. 22; 8. & C, p. 1500.] An act to amend an act entitled " an act to amend an act enti- tled 'an act to provide for the organization of cities and incorpo- rated villages,' passed March 11, 1853," passed April 12, 1858. [O. L., vol. 55, p. 146; S. & C, p. 1501.] An act supplementary to the act entitled " an act to provide for the organization of cities and incorporated villages, passed May 3, 1852," passed April 17, 1857. [O. L., vol. 54, p. 205 ; S. & C, p. 15-14.] An act supplementary to an act entitled " an act to pi'ovide for the organization of cities and incorporated villages, passed May 3, 1852,"'passed April 5, 1856. [O. L.. vol. 53, p. 64 ; S. & C, pp. 1507, 1515, 1516.] An act to amend an act entitled " an act to amend an act enti- tled an act to provide for the organization of cities and incorpo- rated villages, passed March 11, 1853," passed March 25, 1854. [O. L., vol. 52, p. 29 ; S. & C, p. 1508.] An act to amend the forty-fourth section of an act entitled " an ACTS REPEALED. 255 act to provide for the organization of cities and incorporated vil- lages, passed .May 3, 1852," passed April 2, 1859. [O. L., vol. 5G, p. 113 j S. &C.,p. 1500.] An act to amend an act entitled " an act to provide for the or- ganization of cities and incorporated villages," passed March 11, 1853. [O. L , vol. 51, p. SCO ; S. & C, p. 1527.] An act supplementary to the " act to provide for the organization of cities and incorporated villages, passed May 3, 1852," passed March 12, 1853. [O. L., vol. 51, p. 370 ; S. & C, p. 15:;.-).] An act to amend section fifty-four of the act entitled "an act to provide for the organization of cities and incorporated villages, passed May 3, 1S52," passed March 4, 1850. [O. L., vol. 50, p. 35; S. & C, p. 1511.] An act to amend an act entitled "an act to provide for the or- ganization of cities and incorporated villages, passed May 3, 1S52," passed May 1, 1854. [0. L., vol. 52, p. 125 ; S. & C, p. 1513.] An act amendatory to an act entitled " an act to provide for the organization of cities and incorporated villages, passed- May 3, 1852," passed March 18, 1859. [O. L., vol. 56, p. 57 ; S. & C, p. 1514.] An act to amend the seventy -first section of the act entitled " an act to provide for the organization of cities and incorporated vil- lages, passed March 1, 1852," passed April 17, 1854. [O. L., vol. 52, p. 47 ; S. & C, p. 1517.] An act to amend the sixty -first and seventy-seventh sections of the act entitled " an act to provide for the organization of cities and incorjxn-ated villages. And the thirteenth section of an act entitled an act to provide for the organization of cities and incor- porated villages, passed March 11, 1853," passed April 29, 1854. [O. L, vol. 52, p. 74 ; S. & C, pp. 1513, 1518, 1531.] An act supplementary to an act entitled " an act to provide for the organization of cities and incorporated villages, passed Ma}* 3, 1S52," passed April 8, 185G. [O. L., vol. 53, p. 185 ; S. & C, p. 1544.] An act to amend an act entitled " an act to provide for the or- ganization of cities and incorporated villages, passed May, 3, 1S52, and the several acts amendatory thereof and supplementary to said acts," passed April 5,1856. (O. L., vol. 53, p. 57; S. & C, pp. 1527, 1542.] An act to amend an act entitled "an act to provide for the or- ganization of cities and incorporated villager, passed May 3, 1852, 25G ACTS REPEALED. and the act amendatory thereto, passed March 11, 1853," passed May 1, 1854. [O. L., vol. 52, p. 79 ; S. & C, p. 1538.] An act to amend section six of an act to amend the act entitled " an act to provide for the organization of cities and incorporated villages, passed March 11, 1853," passed March 28, 1859. [O. L., vol. 5G, p. 79 ; S. & C, p. 1528.] An act to amend the eighth section of an act entitled "an act to amend the act entitled an act to provide for the organization of cities and incorporated villages," passed March 5, 1856. [O. L., vol. 53, p. 20 ; S. & C, p. 1529 ] An act to amend the act entitled " an act to amend the act enti- tled an act to provide for the organization of cities and incorporated villages, passed March 11, 1853, and supplementary to the same," passed March 30, 1857. [O. L., vol. 54, p. 73; S. & C, p. 1540.] An act to amend an act entitled "an act to provide for the or- ganization of cities and incorporated villages, and the act amend- atory thereto, passed March 11, 1853," passed April 29, 1854. [O. L., vol.- 52, p. 68; S. & C, pp. 1531, 1532.] An act to amend the act entitled " an act to provide for the organization of cities and incorporated villages, and the act amendatory thereto, passed March 11,1853," passed April 8, 1856. [O. L., vol. 53, p. 110 ; S. & C, p. 1533.] An act supplementary to the act "to provide for the organiza- tion of cities and incorporated villages, passed May 3, 1852," passed March 12, 1853. [S. & C, p. 1535 ] An act providing for the certifying of certain elections, passed April 3, 1837. [S. & C, p. 1536.] An act supplementary to an act entitled "an act to amend an act to provide for the organization of cities and incorporated vil- lages, passed March 11, 1853," passed April 5,1854. [S. & C, p. 1537] An act to regulate the making of cellars, excavations, and foun- dations, passed April 28, 1854. [S. & C, p. 1538.] An act supplementary to the act entitled "an act "to provide for the organization of cities and incorporated villages, passed May 3, 1852, and ' an act to amend an act entitled an act to provide for the organization of cities and incorporated villages,' passed March 11, 1853," passed May 1, 1854. [S. & C, p. 1539.] An act supplementary to "an act to provide for the organiza- tion of cities and incorporated villages," passed May 1, 1854. [S. & C, p. 1540.] An act to amend an act entitled " an act to provide for the or- ACTS REPEALED. 257" ganization of cities and incorporated villages, passed May 3, 1852, and the several acts amendatory thereof and supplementary to said acts," passed April 5, 185G. [S. & C, p. 1542.] An act to amend a certain act therein named, passed April 8, 1856. [S. & C, p. 1543.] An act supplementary to an act entitled "an act supplementary to an act entitled 'an act to provide for the organization of cities- and incorporated villages,' passed May 3, 1852," and the acts- amendatory thereof and supplementary thereto, passed May 1, 1857. [S. & C, p. 1549.] An act supplementary to an act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, and the acts amendatory thereof and supplementary thereto, passed March 10, 1856. [S. & C, p. 1550.] An act to amend " an act to provide for the organization of cities and incorporated villages," passed May 2, 1852, passed April 12, 1858. [S. &. C, p. 1550.] An act amendatory and supplementary to an act passed April 5, 1856, entitled " an act to amend an act entitled an act to provide for the oi'ganization of cities and incorporated villages," passed May 3, 1852, and the several acts amendatory thereof and supple- mentaiy to said acts, passed April 12, 1858. [S. & C, p. 1551.] An act supplementary to an act to provide for the organization of cities and incorporated villages, passed May 3, 1852, passed Feb- ruary 23, 1858. [S. & C, p. 1552.] An act to authorize incorporated villages to take the enumera- tion of their inhabitants for the purpose of becoming cities of the second class, passed April 5, 1856. [S. & C, p. 1553.] An act supplementary to an act entitled "an act defining the jurisdiction and regulating the practice of probate courts," passed April 3, 1856. [S. & 0., p. 1553.] An act supplementary to an act to provide for the organization of cities and incorporated villages, passed May 3, 1852, passed Feb- ruary 28, 1859. [S. & C, p. 1553.] An act to provide for the apj^ointment of police commissioners in cities of the first class, having a population exceeding eighty thousand inhabitants, and supplementary to an act entitled "an act to provide for the organization of cities and incorporated vil- lages," passed May 3, 1852, and the other acts supplementary and amendatory thereto, passed March 14, 1859. [S. & C, p. 1556.] An act relating to cities of the first class having a population 17 258 ACTS REPEALED. exceeding eighty thousand inhabitants, passed March 5, 1860. [S. & C, p. 1557.] An act supplementary to the act entitled "an act to provide for the organization of cities and incorporated villages," passed March 11, 1853, passed March 7, 1860. [S. & C, p. 1502.] An act to enable townships and incorporated villages to estab- lish cemeteries common to both, passed March 17, 1860. [S. & C, p. 1563.] An act authorizing city councils in cities of the first class, hav- ing a population less than eighty thousand and more than thirty- five thousand, to appoint inspectors of provisions and other articles, passed April 4, 1859. [S. & C, p. 731.] An act to amend an act entitled "an act to provide for the or- ganization of cities and incorporated villages," passed May 3, 1852, passed April 16, 1867. [S. & S., p. 791.] An act to amend section twenty-one of "an act to provide for the organization of eities and incorporated villages," pnssed May 3, 1852, passed May 5, 1868. [S. & S., p. 791.] An act to amend the forty-seventh section of the act entitled " an act to provide for the organization of cities and incorporated vil- lages," passed March 12, 1862. [S. & S., p. 792.] An act to amend an act entitled " an act to provide for the or- ganization of cities and incorporated villages," passed May 3, 1852, passed February 5, 1861. [S. & S., p. 792.] An act to amend section fifty of an act entitled "an act to pro- vide for the organization of cities and incorporated villages," passed May 3, 1852, and to authorize the council of incorporated villages to levy a tax for police jmrposes, passed February 21, 1867. [S. & S., p. 793.] An act to further amend the sixty -first section of the act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1,852, and amended by an act passed April 29, 1854, passed February 9, 1863. [S. & S., p. 793.] An act to amend section sixty-nine of an act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, as amended March 25, 1862, and to repeal sec- tion one of the last-named act ; also, further to define the duties of county treasurers, passed April 29, 1862. [S. & S., p. 794 ] An act to amend section six (6) of " an act to amend section sixty- nine (69) of an act entitled 'an act to provide for the organization of cities and incorporated villages,' passed May 3, 1852, as amended ACTS REPEALED. 259 March 25, 1862, and to repeal section one of the last-named act ; also, further to define the duties of county treasurers, passed April 29, 1862," passed May 13, 1868. [S. & S., p. 795.] An act supplementary to an act entitled "an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed April 10, 1867. [S. & S., p. 796.] An act to amend section ninctj^-one of the act to provide for the organization of cities and incorporated villages, passed May 3, 1852, passed March 28, 1861. [S. & S., p. 796.] An act to amend section number one hundred and two of the act entitled "an act to provide for the organization of cities and incor- porated villages," passed May 3, 1852, passed April 18, 1862. [S. & S., p. 797.] An act to amend section eighty-three of an act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed April 29, 1862. [S. & S., p. 797.] An act to amend section eighty-four of " an act to provide for the incorporation [organization] of cities and incorporated villages," passed May 3, 1852, passed April 10, 1867. [S. & S., p. 798.] An act to amend an act passed April 28, 1854, entitled " an act to amend section twenty -five of an act to provide for the organiza- tion of cities and incorporated villages," passed May 3, 1852, passed April 16, 1867. [S. & S., p. 799.] An act to amend an act entitled "an act to enable justices of the peace to discharge the duties of police judges in certain cases," passed February 21, 1862, passed April 17, 1867. [S. & S., p. 800.] An act to amend an act therein named, passed March 21, 1861. [S. & S., p. 800.] An act relating to cities of the first class having a population less than eighty thousand, passed March 1, 1861. [8. & S., p. 801.] An act to amend an act entitled an act relating to cities of the first class having a population less than eighty thousand, passed March 1, 1861, passed May 3, 1861. [S. & S., p. 802.] An act to amend section one of an act entitled " an act supple- mentary to an act to provide for the organization of cities and incorporated villages, passed April 12, 1S65," passed April 3, 1867. [S. & S., p. 802.] An act to amend an act entitled " an act to amend section four of an act entitled an act supplementaiy to an act entitled an act to provide for the organization of cities and incorporated villages," passed April 13, 1865, passed February 21, 1866. [S. & S., p. S03.] An act to amend an act entitled " an act supplementary to an act 260 ACTS REPEALED. entitled ' an act to provide for the organization of cities and incor- porated villages.' " passed March 29, 1859, as amended by an act passed March 25, 1864, passed March 23, 1S6G. [S. & S., p. 806.] An act to amend section six of an act passed March 14, 1859, entitled " an act to provide for the appointment of police commis- sionei*s in cities of the first class having a population exceeding eighty thousand inhabitants," and supplementary to an act entitled " an act to provide for the organization of cities and incorporated villages, passed May 3, 1852, and the other acts supplementary and amendatory thereto, and further amended February 17, 1864, passed March 9, 1866. [S. & S., p. 807.] An act to license and regulate pawnbrokers in cities of the first and second class, passed March 13, 1863. [S. & S., p. 821.] An act to authorize the city councils to appoint inspectors of beef cattle, sheep, hogs, poultry, game, milk, milk cows, fresh meat and fresh fish, passed March 11, 1867. [S. & S., p. 822.] An act supplementary to the act to provide for the organization of cities and incorporated villages, passed May 3, 1852, passed April 10, 1861. [S. & S., p. 823.] An act supplementary to the act passed May 3, 1852, to provide for the organization of cities and incorporated villages, passed April 10, 1861. [S. & S., p. 823.] An act supplementary to "an act supplementary to the act passed May 3, 1852, to provide for the organization of cities and incor- porated villages," passed April 10, 1861, passed March 30, 1864. [S. & S., p. 824.] An act to amend section one of " an act supplemental to an act passed May 3, 1852, to provide for the organization of cities and incorporated villages," passed March 31, 1864, passed April 12, 1865. [S. & S., p. 824.] An act supplementary to "an act passed May 3, 1852, to provide for the organization of cities and incorporated villages," passed March 31, 1864. [S. & S., p. 825.] An act to amend an act entitled "an act to amend an act entitled 'an act to provide for the organization of cities and incorporated villages,' passed May 3, 1852, and the several acts amendatory thereof and supplementary to said act," passed April 5, 1856, passed April 3, 1863. [S. & S., p. 826.] An act to regulate the meetings of councils in cities of the first class, exceeding eighty thousand inhabitants, and to repeal sec- tions 1, 12, 14 and 17 of an act passed March 3, 1860, entitled " an act relating to cities of the first class, having a population exceed- ACTS REPEALED. 261 ing eighty thousand inhabitants," passed April 4, 1SG2. [3. & S., j>. 827.] An act to regulate meetings of councils in cities of the first elass, having a population exceeding one hundred thousand inhabitants, and to repeal section two of an act passed April 4, 1862, entitled " an act relating to cities of the first class having a population ex- ceeding eighty thousand inhabitants," passed May 5, 1SG8. [S. & S, p. 827.] An act to create a board of health in any city, and to prevent the spread of diseases therein, passed March 29, 18G7. [S. & S., p. 828.] An act supplementary to an act entitled " an act to create a board of health in any city to prevent the spread of disease therein," passed March 29, 1867, passed April 13, 1S67. [S. & S., p. 831.] An act to arrest the social, evil in cities of the first class having over one hundred thousand inhabitants, passed April 16, 1867. [S. & S., p. 831.] An act defining the duties and powers of the board of city im- provements, passed April 27, 1868. [S. & S., p 831.] An act supplementary to the act to provide for the organization of cities and incorporated villages, passed May 3, 1852, passed April 3, 1867. [S. & S.; p. 832.] An act supplementary and amendatory to an act passed April 5, 1856, entitled " an act to amend an act entitled 'an act to provide for the organization of cities and incorporated villages,' passed May 3, 1852," and the several acts amendatory thereof, and sup- plementary to said aets, passed March 31, 1864. [S. & S., p. 833.] An act supplementary to the act entitled "an act amendatory and supplementary to an act passed April 5, 1856, entitled ' an act to provide for the organization of cities and incorporated villages,' " passed May 3, 1852, and the several acts amendatory thereof and supplementary to said acts, passed March 31, 1864, passed March 20, 1866. [S. & S., p. 834.] An act supplementary to an act entitled an act to provide for the organization of cities and incorporated villages, passed April 8, 1856, passed April 5, 1866. [S. & S., p. 834.] An act to limit the lien of assessments made by municipal cor- porations to defray the expenses of improvements, passed March 29, 1S67. [S. & S., p. 837.] An act supplementary to an act entitled " an act supplementary to 'an act to provide for the organization of cities and incorporated 262 ACTS REPEALED. villages,' " passed April 5, 1866, passed May 15, 1868. [S. & S., p. 838.] An act supplementary to an act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed April 16, 1867. [S. & S., p. 838.] An act supplementary to an act to provide for the organization of cities and incorporated villages, passed May 3, 1852, passed March 16, 1865. [S. & S., p. 838.] An act to amend an act passed March 16, 1865, entitled "an act supplementary to an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed February 15, 1867. [S. & S., p. 839.] An act supplementary to the act to provide for the organization of cities and incorporated villages, passed May 3, 1852, and to re- peal a certain act therein named, passed April 16, 1867. [S. & S., p. 830.] An act supplementary to the act to provide for the creation and regulation of incorporated companies in the State of Ohio, passed May 1, 1852, passed April 6, 1866. [S. & S., p. 841.] An act to protect the interest of turnpikes and plank-roads, passed May 1, 1861. [S. & S., p. 841.] An act to authorize the town councils of certain incorporated villages to improve certain highways, passed April 16, 1867. [S. & S., p!~S41.] An act supplementary to an act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed May 13, 1868. [S. & S., p. 842.] An act supplementary to " an act to provide for the organization, of cities and incorporated villages," passed May 3, 1852, and to regulate and establish the grade of wharves and landing places in. cities containing a population exceeding eighty thousand inhabit- ants, passed January 30, 1863. [S. &. S., p. 842.] An act to authorize certain cities to appropriate land for levees, passed April 10, 1867. [S. & S., p. 843.] An act to authorize certain cities to issue bonds for the purpose of protecting themselves from floods, passed February 27, 1867. [S. & S., p. 843.] An act supplementary to an act entitled an act to amend an act entitled an act to provide for the organization of cities and incor- porated villages, passed March 11, 1853, and the act amendatory thereof, passed April 29, 1854, passed February 19, 1866. [S. & S., p. 844.] ACTS REPEALED. 263 An act supplementary to an act entitled "an act to amend an act entitled an act to provide for the organization of cities and in- corporated villages," and the act amendatory thereto, passed March 11, 1853, passed April 29, 1854, passed March 28, 1864. [S. & S., p. 845.] An act to amend an act supplementary to an act entitled " an act to amend an act entitled an act to provide for the organization of cities and incorporated villages," passed March 28, 1864, passed March 29, 18GG. [S. & S., p. 846.] An act supplemental to an act entitled an act amendatory and supplemental to an act passed April 5, 1856, entitled an act to amend an act entitled an act to provide for the organization of cities and incorporated villages, passed May 3, 1852, and the several acts amendatory thereof and supplemental to said acts, passed. April 12, 1858, passed April 4, 1861. [S. & S., p. 846.] An act to amend the first, second, third, and fourth sections of an act entitled "an act supplementary to an act relating to cities of the first class having a population exceeding eighty thousand inhabitants," passed March 5, 1860, passed March 14, 1864. [S. & S., p. 847.] An act supplementary to an act relating to cities of the first class having a population exceeding eighty thousand inhabitants, passed March 5, 1860, passed April 12, 1861. [S. & S., p. 849 ] An act to authorize the construction of sewers in cities of the second class having over thirteen thousand inhabitants at the last federal census, passed February 9, 1863. [S. & S., p. 850.] An act to amend " an act to authorize the construction of sewers in cities of the second class having over thirteen thousand inhabit- ants at the last federal census," passed February 9, 1S63, passed March 23, 1864. [S. & S., p. 851.] An act to extend the provisions of an act passed March 23, 1864, providing for the construction of sewers to all cities of the second class and incorporated villages containing not less than two thou- sand inhabitants, passed April 12, 1861 [March 9, 1866]. [S. & S., p. 852.] An act to extend an act therein named to cities of the first class which have been advanced to the grade of cities of the first class since 1860, and to further regulate the construction of sewers in said cities, passed April 21, 1868. [S. & S., p. 853.] An act to amend section one of the act entitled " an act supple- mentary to an act to provide for the organization of cities and in- corporated villages," passed May 3, 1852, and the amendment passed 2G4 ACTS REPEALED. March 11, 1853, and a supplementary act passed April 8, 185G, and supplementary to the act passed April 12, 1858, passed March 11, 1S63, passed March 25, 1S64. [S. & S., p. 854.] An act supplementary to an act to provide for the organization of cities and incorporated villages, passed May 3, 1852. and the amendment passed March 11, 1853, and a supplementary act passed April 8, 1S5G, and supplementary to the act passed April 12, 1858, passed March 11, 18G3. [S. & S., p. 854.] An act supplementary " to an act to provide for the organization of cities and incorporated villages," passed May 3, 1S52, and the amendment passed March 11, 1853, and a supplementary act passed April 8, 1856, and supplementary to the act passed April 12, 1858, and supplementary to the act passed March 11, 18G3, and the act passed Marches, 18G4, passed April 11, 18G5. [S. & S., p. 85G.] An act to authorize cities of the first class having a population of over one hundred thousand inhabitants to levy a tax for sewer- age purposes, passed April 2, 18G6. [S. & S., p. 857.] An act supplementary to " an act to provide for the organiza- tion of cities and incorporated villages," passed May 3, 1852 (S. & C, sec. 2G, p. 1491), and the amendment passed March 11, 1854, [1853] (S. & C. 1527), and a supplementary act passed April 8 [5th], 18C3 (S. & C. 1542), and supplementary to the act passed April 12, 1858 (55 v. Stat. 70), and supplementary to the act March 11, 1SG3 (GO v. Stat. 14), and supplementary to the act passed March 25, 18G4 (Gl v. Stat. 64), and the act passed April 11, 1865 (62 v. Stat, 117 ; Swan's E. S. 855, 979), passed April 5, 1856. S. &S., p. 857.] An act to authorize certain cities of the first class to issue bonds to complete Eggleston avenue sewer, and to levy a tax to pay the same, passed April 13, 18G8. [S. & S., p. SGO.] An act to amend section one of "an act to authorize certain cities of the first class to issue bonds to complete 'Eggleston ave- nue sewer,' and to levy a tax to pay the same," passed April 13, 1868, passed May 14, 18G8. [S. & S., p. 860.] An act to authorize the cities of the first class having a popula- tion of over one hundred thousand inhabitants to levy a tax for sewerage purposes, passed February 21, 1S67. [S. & S., p. 860.] An act supplementary to the act entitled " an act to amend an act to authorize the construction of sewers in cities of the second class having over thirteen thousand inhabitants at the last federal census," passed February 9, 1863; passed March 23, 1S64; passed April 16, 1867. [S. & S., p. 8G1.] ACTS REPEALED. 265 An act supplementary to "an act to provide for the organization of cities and incorporated villages," passed May 3, 1852 (S. & C, p. 1491, sec. 2G), and the amendment passed March 11, 1854 [1853] (S. & C. 1527), and a supplementary act passed April 8 [5], 185G {S. & C. 1542), and supplementary to the act passed April 12, 1858 (55 v. Stat. 70), and supplementary to the act passed March 11, 1863 (GO v. Stat. 14), and supplementary to the act passed March 25, 1864 (Gl v. Stat. 64), and the act passed April 11, 1865 (62 v. Stat. 117), and supplementary to the act passed April 5, 1866 (63 v. Stat. 144; Swan's K. S. 855, 979). Passed January 26, 1867. [S. & S., p. 862.] An act supplementary to an act entitled "an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed April 11, 1867. [S. & S., p. 863.] An act to authorize the council of incorporated villages to levy & tax for sewerage purposes, passed April 13, 1867. [S. & S., p. 863.] An act to authorize the councils of incorporated villages of over two thousand inhabitants to locate and construct local sewers, passed April 3, 1867. [S. & S., p. 863.] An act to authorize city eouncils of cities of the second class to borrow money and issue bonds for the enlargement and improve- ment of water-works, passed March 11, 1867. [S. & S., p. 864.] An act supplementary to " an act to authorize city councils of cities of the second class to borrow money and issue bonds for the 'enlargement and improvement of water-works, passed March 11, 1867," passed February 15, 1868. [S. & S., p. 8G5.] An act to authorize city councils of cities of the first class, having a population of over one hundred thousand inhabitants, to issuo bonds for Avater-work purposes, passed April 3, 1868. [S. & S., j). 866.] An. act to authorize cities to extend the water-works beyond the city limits, passed April G, 1SG5. [S. & S., p. 866.] An act supplementary to "an act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed March 25, 1863. [S. & S., p. 867.] An act supplementary to the act entitled "an act to provide for the organization of cities and incorporated villages," passed May 3, 1862, passed March 7 [9], 1S66. [S. & S., p. 868.] An act to authorize the establishment of houses of correction, and the confinement of convicted persons therein, passed April 23 [13], 1867. [S. & S., p. 869.] 266 ACTS REPEALED. An act supplementary to an act entitled " an act supplementary to the act entitled ' an act to provide for the organization of cities and incorporated villages,' passed May 3, 1852 ;" passed May 9, 1866, passed April 11, 1868. [S. & S., p. 872.] An act to provide for the appointment of cemetery directors, passed March 8, 1865. [S. & S., 872.] An act to authorize town councils of incorporated villages to appropriate lands for cemetery purposes, passed April 8, 1865. [S. & S., p. 874.] An act to amend sections one and two of an act supplementary to the act entitled " an act to provide for the organization of cities and incorporated villages, as amended March 7, 1860," passed March 29, 1867. [S. & S., p. 874.] An act for the protection of certain graveyards and burial grounds, passed April 3, 1867. [S. & S., p. 876.] An act to enable certain villages to levy a certain tax for ceme- tery purposes, passed April 16, 1867. [S. & S., p. 877.] An act to authorize cities of the second class, and the townships 5n which the same may be situated, to unite in the purchase and improvement of land for cemetery purposes, passed March 20, 18G8. [S. & S., 877.] An act supplementary to an act entitled " an act to provide for the organization of cities and incorporated villages," passed March 11, 1853, and the acts amendatory thereof and supplementary thereto, passed April 3, 1868. [S. & S., p. 879.] An act authorizing trustees of cemetery associations to sell and transfer by deed of trust such lands as they hold in trust, to town- ship trustees and the council of incorporated villages, passed May 16, 1868. [S. & S., p. 880.] An act to amend section four (4) of an act entitled " an act to enable townships and incorporated villages to establish cemeteries common to both," passed and took effect March 17, 1860, passed May 16, 1868. [S. & S., p. 88o.] An act to authorize certain cities therein named to borrow money for fire purposes, passed April 8, 1868. [S. & S., p. 881.] An act to amend section one of an act passed April 9, 1863, en- titled an act supplementary to the " act to provide for the organiza- tion of cities and incorporated villages," passed May 3, 1852, passed March 25, 1864. [S. & S., p. 882.] An act supplementary to the " act to provide for the organiza- tion of cities and incorporated villages," passed May 3, 1852, passed April 9, 1863. [S. & S., p. 882.] ACTS REPEALED. 267 An act supplementaiy to the act entitled " an act prescribing tho rates of taxation for state, county, township, city, and other pur- poses," passed April 30, 1862, passed April 16, 1867. [S. & S., p. 882.] An act to amend a certain act therein named in relation to the purchase of steam or other fire-engines, by incorporated villages, passed February 25, 1867. [S. & S., p. 883.] An act to authorize incorporated villages in this state to borrow money and levy taxes for the purpose of purchasing fire-engines and to build engine-houses, passed April 11, 1865. [S. & S., p. 883.] An act to pi-ovide for the erection of a hospital in cities of first class having a population of over one hundred thousand inhabit- ants, passed April 6, 1866. [S. & S., p. 884.] An act to amend section seven of an act entitled an " act to pro- vide for the erection of a hospital in cities of the first class having a population of over one hundred thousand inhabitants," passed April 13, 1867. [S. & S., p. 886.] An act supplementary to the "act to provide for the organization of cities and incorporated villages;" passed May 3, 1852, passed April 9, 1868. [S. & S., p. 886.] An act supplementary to an act entitled "an act to provide for the erection of a hospital in cities of the first class, having a popu- lation of over one hundred thousand inhabitants," passed April 6, 1866, passed May 5, 1868. [S. & S., p. 886.] An act to authorize city councils of cities of the second class, having a population of sixteen thousand and upward at the last federal census, to borrow money and issue bonds for the purpose of purchasing ground and erecting a building thereon, for a city hall, and other purposes, passed March 30, 1868. [S. & S., p. 8S7.J An act to amend an act entitled " an act to provide for the or- ganization of cities and incorporated villages," passed May 3, 1852, passed April 12, 1865. [S. & S., -p. 888.] An act in relation to city parks, and to repeal an act therein named, passed May 8, 1868. [S. & S., p. 888.] An act to authorize cities of the second class therein named to impose a tax for bridge purposes, passed April 5, 1866. [S. & S., p. 889.] An act to extend the provisions of an act passed April 5, 1866, entitled "an act to authorize cities of the second class therein named to impose a tax for bridge purposes" (63 v. Stat. 120), to cities of the first class raised to that grade between decennial peri- ods, passed April 13, 1867. [S. & S., p. 889.] 268 ACTS REPEALED. An act supplementary to the act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1832, passed March 9, I860. [S. & S. p. 890.] An act authorizing cities of the second class to create new wards, and define the boundaries thereof, in certain cases, passed March 21, 1863. [S. & S., p. 891.] An act supplementary to an act entitled "an act authorizing cities of the second class to create new wards and define the bound- aries thereof in certain cases," passed March 21, 1863, passed March 19, 1868. [S. & S., p. 891.] An act supplementary to the act entitled " an act to provide for the organization of cities and incorporated villages," passed May 3, 1S52, passed February 15, 1867. [S. & S., p. 892.] An act to re-enact and amend "an act supplementary to the act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed April 14, 1868. [S. & S., p. 892.] An act to provide for the organization, as cities of the first class, of such cities as may have been advanced to the grade of cities of the first class between decennial periods and prior to May, 1867; and also supplementary to the act passed May 3, 1852, entitled "an act to provide for the organization of cities and incorjwrated villages," and to the several acts supplementary thereto and amendatory thereof, now in force ; also, fui'ther to define the duties of county treasurers, passed March 14, 1867. [S. & S., p. 893.] An act to amend section seven of an act entitled " an act to pro- vide for the organization, as cities of the first class, of such cities as may have been advanced to the grades of cities of the first class, between decennial periods, and prior to May, 1867; " and also supplementary to the act passed May 3, 1852, entitled "an act to provide for the organization of cities and incorporated villages," and to the several acts supplementary thereto and amendatory thereof, now in force; also, further to define the duties of county treasurers, passed April 16, 1868. [S. & S., p. 895.] An act supplementary to the " act to provide for the organiza tion of cities and incorporated villages," passed May 3, 1852, passed February 3, 1864, May 5, 1868. [S. &. S., p. £95.] An act supplementary to the " act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed May 5, 1868, February 3, 1864. "[S. & S., p. 896.] An act supplementary to an " act to provide for the organization of cities and incorporated villages," passed May 3, 1852, passed March 28, 1864. [S. & S., p. 896.] ACTS REPEALED. 269 An act to amend the first section of the act "to authorize cities of the second class to fund their floating debt," passed February 24, 1868 [1865]. [S. & S., p. 897.] An act to authorize cities of the first class having a population of less than one hundred thousand, to fund their floating indebted- ness, passed March 31, 1864. [S. & S., p. 898.] An act to authorize cities of the first class having a population of less than one hundred thousand, to fund their floating indebted- ness, passed April 13, 18G7. [S. & S., p. 898.] An act to enable certain cities to borrow money and levy a tax to pay the same, passed April 11, 1867. [S. & S., p. 899.] An act to authorize certain cities of the second class to levy taxes to aid in the erection of court-houses, passed April 12, 1867. [S. & S., p. 899.] An act supplementary to the act to provide for the organization of cities and incorporated villages, passed May 3, 1S52, passed Feb- ruary 28, 1861. [S. & S., p. 900.] An act to authorize cities of the first class, exceeding one hundred thousand inhabitants, to purchase fuel and levy a tax therefor, passed February 20, 1864. [S. & S., p. 901.] An act to amend an act entitled " an act to authorize cities of the first class, exceeding one hundred thousand inhabitants, to purchase fuel and levy a tax therefor," passed February 20, 1864, passed March 9, 1667. [S. & B., p. 901.] An act to restrain city councils of cities of the first class in cer- tain cases, passed April 7, 1865. [S. & S., p. 902.] An act to amend an act entitled "an act to authorize certain cities of the fii*st class to issue bonds for the purchase of gas- works," passed April 6, 1866, passed January 26, 1867. [S. & S., p. 902.] An act to amend an act entitled an act to authorize certain cities of the first class to sprinkle the streets, passed April 13, 1805, passed April 6, 1866. [S. & S., 903.] An act supplementary to an act entitled an act to provide for the organization of cities and incorporated villages, passed May 3, 1852, passed April 16, 1867. [S. & S., p. 904.] An act to limit the powers of city councils of cities of the first class having a population of one hundred thousand inhabitants and upward, passed February 1, 1865. [S. & S., p. 904.] An act to amend section five of " an act prescribing the rates of taxation for state, county, township, city and other purposes," 270 ACTS REPEALED. passed April 30, 18G2, as amended February 7, 18G6, passed May 14, 1868. [S. & S., p. 772.] An act to amend the second and third sections of the act passed April 30, 1862, entitled "an act prescribing the rates of taxation for state, county, township, city and other purposes," passed April 14, 1S63. [S. & S., p. 779.] Sections one and two of an act entitled " an act to amend an act to provide for and regulate street railroad companies," passed April 10, 1861, and supplementary thereto, passed March 27, 1866. [S. & S., p. 137.] An act to amend an act for the better regulation of street rail- roads, and for other purposes, passed April 17, 1867, passed April 9, 1868. [S. & S., p. 130.] An act for the better regulation of street railroads, and for other purposes, passed April 17, 1867. [S. & S., p. 139.] An act supplementary to an act to authorize the erection, im- proving, enlarging, or constructing additions to town halls, and to repeal an act therein named, passed April 2, 1866, passed April 13, 1S67. [S. & S., p. 785.] An act supplementary to an act passed April 13, 1867, entitled an act supplementary to an act authorizing the erection, improving, enlarging, or constructing additions to town halls, and to repeal an iict therein named, passed April 2, 1866, passed May 6, 1868. [S. & S., p. 785.] An act to amend section sixty-nine of an act entitled an act to provide for the organization of cities and incorporated villages, passed May 3, 1852, as amended March 25, 1862, as amended April 29, 1862, and to repeal section one of the last-named act, passed March 15, 1869. [O. L., vol. 66, p. 25.} An act to authorize cities of the second class to receive donations of library buildings and libraries, and keep up and maintain the same, passed February 24, 1868. [S. & S., p. 722.] Sec. 731. This act to take effect July 1, 1869. This act shall take effect and be in force from and after the first day of July, 1869. F. W. TilOBNHILL, Speaker of the House of Representatives. J. C. LEE, President of the Senate. Passed May 7, 1869. ANNEXATION. 271 ANNEXATION. 1. Process of detachment from one corporation and annexation to another. AN ACT to authorize the inhabitants of a portion of an incorpo- rated town or village to become detached from such town or vil- lage, and annexed to an adjoining city. [Passed April 29, 1871. 68 L. 85.] (1.) Sec. 1. Process of detachment and annexation. Be it en- acted by the General Assembly of the State of Ohio, That where any city and an incorporated town or village shall adjoin each other, and the inhabitants of any portion of the territory constituting a part of such incorporated town or village shall desire to be detached therefrom and annexed to such city, it shall be lawful for the commissioners of the proper county, on the application of the ■council of said city, and on the written request of at least two- thirds of the legal voters inhabiting the territory proposed to be so attached and annexed, to cause such alteration to he made, and the boundaries of such city, and of such incorporated town or village respectively, to be established in accordance with such application and request, and such territory shall thereafter con- stitute and become a part of such city ; provided, that in all' their proceedings in the premises, said county commissioners shall, so far as the same are legally applicable, be governed by the laws now in force prescribing the mode and manner of proceeding on appli- cations for the annexation of adjacent unincorporated territory to towns and cities ; and provided further, that said commissioners shall ascertain and apportion the amount of the existing indebted- ness of said incorporated town or village, which shall be assumed and paid by said city on the annexation of the territory aforesaid. Sec. 2. This act shall take effect and be in force from and after its passage. 272 ASSESSORS. ASSESS OES. 3. Election of assessor. 3. The bond, oath, etc. 2. When to give bond, etc. AN ACT to provide for the election of township assessors, and to- prescribe their duties. [Eassed and took effect April 4, 1859. 56 L. 156; S.&C.,p. 85.] (1.) Sec. 1. Election of assessor. Be it enacted by the General Assembly of the State of Ohio, That in each township, town, or ward r in this state, forming an election district, there shall be elected, on the first Monday of April annually, by the qualified electors of such township, town, or ward, forming an election district, one as- sessor, for such township, town, or ward, or part of a township not included in any other election district. (2.) Sec. 2. When to give bond, etc. Each township assessor shall give bond and take the prescribed oath of office on or before the first Monday after his election, and the township clerk shall notify the county auditor thereof; and if the county auditor shall receive no notice of the qualification of the assessor, in any township, ward, or city in his county, on or before the third Monday in April' in each year, he shall consider such office vacant; or if there should be a failure to elect by the people, or shall be at any time or from any cause a vacancy in the office of assessor, or if the assessor of any township or ward, having qualified, shall not have proceeded to the discharge of the duties of his office before the third Monday of April in each year, the count}' auditor shall forthwith appoint one or more suitable persons, residents of the county, to- discharge the duties of assessor in such township or ward, who shall thereupon take the necessary oath of office, give the same bond, perform the same duties, be entitled to the same fees, and sub- ject to the same liabilities as in case of assessor elected by the people. (3.) Sec. 3. Thebond. Every such assessor, previous to entering upon the duties of his office, shall give bond, with two or more freehold securities, to the acceptance of the township trustees or proper authorities of any city or incorpoi'ated village, payable to the State of Ohio, and conditioned for the faithful and impartial discharge of the duties of his office according to law ; and shall take and subscribe an oath of office, which shall be indorsed on such bond, and the bond so indorsed shall be deposited with the township treasurer, or town or cit} r treasurer, as the case may be.. BONDS — OFFICIAL. 27S In case of an appointment by the auditor, the bond may be ap- proved by the auditor or the township trustees or authorities of any city, town, or village. ********* BONDS— OFFICIAL. 1. Revenue stamps for official bonds, how pro- 4. now sureties of constables, marshals, and cured ; townships, cities, and villages. township officers may be released if 2. How sureties of constables and marshals may they desire it. be released on misbehavior of officer ; notice 5. On notice and requirement of trustees, to council. new bond must be given, and failure to 3. New bond must be given, and failure to give give bond vacates office. bond vacates office. AN ACT authorizing certain officers to provide internal revenue stamps for official bonds. [Passed and took effect April 6, 1866. 63 L. 157; S. & S., p. 54.] (1.) Sec. 1. Revenue stamps for official bonds, how procured ; town- ships, cities, and villages. Be it enacted by the General Assembly of the State of Ohio, That the township trustees of the several town- ships in this state, shall procure all revenue stamps, required by the laws of the United States to be placed on the official bonds of all township officers, and pay for the same out of the township fund of their respective townships ; and all revenue stamps for the official bonds of officers of cities and incorporated villages shall be paid for out of the treasury of such city or incorporated village upon the order of the mayor and clerk, or recorder. Sec 2. This act shall take effect and be in force from and after its passage. AN ACT for the relief of the sureties of constables and city and village marshals in certain cases. [Passed March 30, and took effect May 1, 1861. 61 L. 103 ; S. & S., p. 743.] (2.) Sec. 1. How sureties of constables and marshals may be re- leased on misbehavior ; notice to council. . Be it enacted by the Gen- eral Assembly of the State of Ohio, That if any constable or marshal of any city or incorporated village shall neglect or refuse on de- mand made for that purpose by the person entitled thereto, his agent or attorney, to pay all moneys b} 7- him received in his official capacity, for the use of such person, the sureties of any such con- stable or marshal, or any one of them, may give notice to the 18 27-4 BONDS — OFFICIAL. trustees of the township or the couneil of the city, or incorporated village in which said constable or marshal resides, of the refusal ■or neglect of such constable or marshal to pay over moneys by him collected by virtue of his said office, and that he or they are [unwilling to continue as security for such constable or marshal. (3.) Sec. 2. Neio bond must be given, and failure to give bond vacates office. It shall be the duty of the trustees or city or village ■council, as the case may be, upon such notice being given, to im- mediately inform said constable or marshal, in writing, of the refusal of his sureties to continue as such, and that he is required to give a new undertaking, conditioned according to law, and if such constable or marshal shall give such undertaking to the satis- faction of said trustees or council within ten days after receiving said notice, the sureties upon said first undertaking shall be released and exonerated from all further liability upon said bond, and if said constable or marshal shall fail to give a new undertaking within ten days after having received said written notice, such fail- ure to give said undertaking shall be deemed and taken as a resig- nation of his office, and the trustees or council shall proceed to fill such vacancy as is provided for in other cases. AN ACT for the relief of sureties of justices of the peace, consta- bles, and township treasurers. [Passed and took effect February 15, 18G7. C4 L. 13 ; S. & S., p. 743.] (4.) Sec. 1. How sureties of justices, constables, and township officers may be released. J3e it enacted by the General Assemby of the State of Ohio, That it shall be lawful for any surety or sureties of any justice of the peace, constable, township treasurer, or any township officer, at any time, to notify the township trustees, by giving at least five days' notice in writing, that he or they are un- willing to continue as security for such officer, and will, at a time therein named, make application to said township trustees to be released from further liability upon the bond of such officer; and shall also give at least three days' notice in writing to such officer, of the time and place at which such application will be made. (5.) Sec. 2. On notice and requirement of trustees new bond must he given, and failure to give bond vacates office. It shall be the dut}^ of the township trustees, upon such notice being given, to hear such application, and if in their opinion there is good reason therefor, the}^ shall require such officer to give a new bond, conditioned ac- cording to law, and the sureties upon said first bond shall be re- leased and exonerated from further liability thereon; and thereupon BONDS AND STOCKS. 275 said trustees shall require such officer to give a new bond, con- ditioned according to law, and to the satisfaction of said trustees, within such time as they may direct; and if such officer shall fail to execute such bond as aforesaid, the office shall be deemed vacant, and shall be immediately filled as other vacancies in said office; but such original surety or sureties shall not be released or discharged until the filing of the new bond, or the expiration of the time allowed therefor; and such original surety or sureties shall be liable only for the official acts of such officer from the time of the execu- tion of the original bond to the filing of the second bond, or the expiration of the time allowed therefor; provided, that the cost of such application shall be paid by the person or }iersons making such application. Sec. 3. This act shall take effect and be in force from and after its passage. BONDS, NEGOTIABLE, AND STOCKS. 1. Who may sell railroad stocks owned by 17. county, city, or township ; proceeds, bow 18 to be applied. 2. Uow proceeds of sale of stocks owned by 19 city, county, or town applied. 3. If bonds can not be redeemed at par, pro- 20. ceeds to be invested. 21. 4. When municipal corporations may become parties to agreements for reorganization of insolvent railroads without sale. 22 5. When municipal corporations may become 23 parties to trust agreements for reorgan- ization of insolvent railroads with 24. sale. 25. C. Authority to certain cities of the first class to issue bonds for payment of assessments for improvements declared illegal. 2G, 7. Sinking fund to pay such bonds. 27. 8. To be used for no other purpose. 9. Authority to certain cities of the first class to issue bonds for the improvement of 28. avenues. 29. jO. Sale of bonds to be advertised, etc. 30. 11. Authority to certain cities of the second class to issue bonds to fund indebtedness, and 31. extend time of payment. '61. 12. Authority to counties, townships, cities, and incorporated villages to issue bonds to re- 33. deem lawful bonds coming due. 13. Bonds to be numbered, registered, and sold 34. at par ; how proceeds to be applied. 35. 14. Towers of taxation for payment of such bonds. 15. Investment of moneys from tax for sinking 3G. fund. 10. Authority of certain cities of the first class 37. to issue bonds for improvements. 38. How negotiated, etc. . Authority to certain cities of the first class to issue bonds for school purposes. . Authority to certain cities of the first class to issue bonds for improvements. . Sale of bonds to be advertised, etc. . Authority to certain cities of the first class to issue bonds for avenue and sewer purposes. . Notice of sale of bonds, etc. Authority to certain cities of the first class to issue bonds for water-works. Notice of sale to be given, etc. Authority to certain cities of the first class to issue bonds for water-works purposes. Designation and sale of bonds. Authority to city having more than two hundred thousand inhabitants to issue bonds for completing reservoirs. Sinking fund to redeem such bonds. Sale of bonds: Authority to certain cities to issue bonds for water-works purposes. Sinking fund for redemption of bonds. Sale of bonds. Limit upon contracting debts by water-works trust es. Authority to certain cities to issue " floating debt " bonds. Commission to ascertain floating debt. Ordinance for expenditure of money not to take effect until auditor certifies that there is money in the treasury. Authority to certain cities to issue " floating debt " bonds. Sinking fund for redemption of bonds. Appropriations, when and how made. 276 BONDS AND STOCKS. AN ACT to provide for the creation and regulation of incorporated companies in the State of Ohio. [Passed May 1, 1852. 50 L. 274 ; S. & C., p. 270.] *' * * * * * * * # (1.) Sec. 25. [As amended, April 16, 18G7. 64 L. 234 ; S. & S., p. 113.] Wlio may sell railroad stocks owned by county, city, or town- ship; proceeds, how to be applied. The commissionei's of any county, the city or town council of any city or town, and the trustees of any township, which county, city, town, or township has hereto- fore subscribed to the capital stock of any railway 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 subscribed ; provided, that the commission- ers 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 turnpike or plank- road company, on such terms as they shall deem to be for the interest of said county, city, town, or township respectively, and place the pro- ceeds of such sale to the credit of the general fund of such county, city, town, or township. 1 AN ACT supplementary to " an act to provide for the creation and regulation of incorporated companies in the State of Ohio," passed May 1, 1852. [Passed and took effect April 2, 1863. 60 L. 53 ; S. & S., p. 113.] (2.) Sec 1. How proceeds of sale of stock owned by city, county, or town applied. Be it enacted by the General Assembly of the State of Ohio, That whenever the commissioners of any county, the proper authorities of any city or town, or the trustees of any town- ship, shall sell stock of any railroad, turnpike, or plank-road com- pany, under the provisions of the act to which this 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. (3.) Sec 2. If bonds can not be redeemed at par, how to invest pro- ir This section differs from the section as originally passed only in the addition of the words in italics. BONDS AND STOCKS. 277 ceeds. If said bonds can not be redeemed at par, said authorities so selling the stock as aforesaid, shall inv.est said money in the bonds and stocks of the United States, or of this state, or upon bond and mortgage upon unincumbered 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 exclu- sively as a fund for the payment of 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. Sec. 3. This act shall take effect from and after its passage. AN ACT to provide for the adjustment of the affairs of insolvent railroad companies, and for their reorganization without a sale of the property thereof. [Passed and took effect April 7, 1863- GOL. 55; S. & S., p. 126.] ********* (4.) Sec. 6. When municipal corporations or trustees may become fartxj to such agreement. That if such agreement involves the cap- italization of the stock of such company, and any portion of such stock is held by counties, townships, cities, villages, or other muni- cipal corporations, or otherwise held in a fiduciary capacity, the county commissioners, trustees, council, or other corporate body, representing the county, municipal corporation, or person holding in a fiduciary capacity, shall be, and they are hereby authorized to become parties to such agreement, and to reduce, or otherwise exchange such stock in accordance with the terms of such agree- ment. 5jC ^js ^t* *i^ *J* *J* *T* *T* ^ AN ACT to regulate the sale of railroads and the reorganization of the same. [Passed and took effect April 11, 1S61. 58 L. 70 \ S. & S., pp. 127, 130.] * * * # % * * * * (5.) Sec 9. Wlien municipal corporations or trustees may become parties to trust arrangement. That in regard to bonds or stock held by the State of Ohio, counties, townships, cities, villages, or other municipal corporations, or otherwise held in a fiduciaiy capacity, the governor, county commissioners, trustees, council, or other cor- porate body representing the state, municipal corporation, or per- 278 BONDS AND STOCKS. sons holding in a fiduciary capacity, as executors or administrators, guardians, or otherwise, shall he and they are hereby authorized to become parties to suc"h agreement, and to control, exchange, or manage said bonds or stock according to the terms of the agree- ment, and to take and receive new bonds or stock to be issued in lieu of the original bonds or stock, which shall be held on the same terms and subject to all liens which attached to said original bonds or stock. AN ACT to enable cities of the first class that have been advanced to that grade between decennial periods and prior to May, 1867, to provide means to pay off the amount of certain assessments for the improvement and extension of streets therein, which assessments have been declared by a court illegal. [Passed May 7, 1869. GG L. 346.] (6.) Sec. 1. Authority to issue bonds for improvement of streets, etc. Be it enacted by the General Assembly of the State of Ohio, That the city council of any city of the first class that has been advanced to that grade between decennial periods and prior to May, 1867, for the purpose of reimbursing the general fund of such city for any money paid out upon any contract made by such city council, for the impi-ovement of any street or alley in said city, or upon assessment of damages made in any proper court to the owner or owners of property taken by direction of said city coun- cil, for the opening or widening or extending of any street or alley in said city, and for the purpose of paying off any indebtedness already incurred upon such contracts or assessment of damages, and for the payment of which, assessments have been made by said city council upon the lots bounding and abutting upon the streets or alleys so improved or opened, or widened, or extended, and which last-mentioned assessments have been declared illegal by any proper court of this state, shall have the power, and they are bereby empowered to issue bonds of such city and to borrow money thereon, which bonds may bo in such amounts and for such length of time, not exceeding twelve years, and at such rate of interest as such city council may deem proper, not to exceed seven per cent, per annum. (7.) Sec. 2. Provision for sinking fund to pay them, etc. And when such bond shall have been issued, a tax shall be assessed sufficient in amount to provide a sinking fund for their final re- demption as they become due, together with the interest thereon, BONDS AND STOCKS. 279 as provided in section ninety-one (as amended March 28, 1861) of the act to provide for the organization of cities and incorporated villages, passed May 3, 1852; provided the whole amount of bonds so issued under this act shall not exceed the sum of eighty thou- sand dollars. (8.) Sec 3. To be vsed for no other purpose. And provided fur- ther, that the moneys arising from the sale of said bonds shall be applied to paj'ing only the claims described above and now exist- ing, or to reimbursing the general fund of such city for moneys paid out already or that may hereafter bo paid out upon such claims. Sec. 4. This act shall take effect and be in force from and after its passage. AN ACT to authorize cities of the first class having a population of over 150,000 inhabitants, to issue bonds for the extension and completion of avenues established therein. [Passed May 6, 1869. 66 L. 130.] (9.) Sec. 1. City council may issue bonds in certain cases. Be it enacted by the General Assembly of the State of Ohio, That the city council of any city of the first class having a population of one hundred and fifty thousand inhabitants, wherein a public avenue of not less than one hundred feet in width is now projected, to be known and designated as " Gilbert avenue," is hereby authorized to issue the bonds of said city in any sum not exceeding one hun- dred and fifty thousand dollars, for improving such avenue, bear- ing a rate of interest not to exceed seven and three-tenths per cent, per annum, at such dates and for such length of time as they deem expedient, the same to be sold at not less than par, and the proceeds thereof to be applied exclusively to the improvement of such " Gilbert avenue," commeneing at the western terminus of said avenue. (10.) Sec 2. Sale of bonds to be advertised, etc. "Whenever any of the bonds herein provided for shall be for sale, not less than ten days' previous notice shall be advertised in such city, said adver- tisement to be published daily until clay of sale, the same to specifj^ that sealed bids will be received at a place and until a day and hour designated. The bids shall then be opened and read in the presence of the bidders present, and the bonds shall be sold to the highest biddei*, the city, however, reserving the right to reject all bids. Sec 3. This act shall be in force from and after its passage. 280 BONDS AND STOCKS. AN ACT to authorize certain cities of the second class to fund their indebtedness and extend the time of its payment. [Passed April 2, 1S69. G6 L. 44.] (11.) Sec. 1. Certain cities may issue bonds, etc., for certain pur- poses. Be it enacted b}^ the General Assembl} 7 of the State of Ohio, That the city council of any city of the second class having a population exceeding twenty thousand and not exceeding twenty thousand one hundred at the last federal census, for the purpose of extending the time of payment of any indebtedness heretofore incurred, and which from its limit of taxation such city is unable to pay at maturity, shall have the power to issue the bonds of such city and to borrow money thereon so as to change but not increase the indebtedness, in such amounts and for such length of time, and such rate of interest not exceeding eight per cent, per annum, pay- able semi-annually, as such city council may determine; and when such bonds shall have been authorized and issued, a tax shall be assessed and collected sufficient in amount to provide a sinking fund for their final redemption, as provided by law. Sec 2. That this act shall take effect from and after its passage. AN" ACT to authorize counties, townships, cities and incorporated villages to issue bonds in certain cases. [Passed and took effect March 10, 18G0. 57 L. 28 ; S. & C, p. 1235.] (12.) *Sec 1. [As amended. March 22, 1871. 68 L. 45.] Com- missioners, etc., may issue bonds equal in amount to bonds due, etc.; provisos. Be it enacted by the General Assembly of the State of Ohio, That it shall be lawful for the commissioners of any county, the trustees of any township and the council of any city or incor- porated village, which may have heretofore issued or which may hereafter issue in pursuance of any law, bonds in aid of or for purposes of public improvement, or in redemption of any pre-exist- *Sec. 1. [As originally passed.] May issue bonds equal in amount to bonds note due, to become due prior to 1803. That it shall he lawful for the commissioners of any county, the trusties of any township, and the council of any city or incorporated village which may have heretofore, in pursuance of law issued bonds in aid or for purposes of public improvement, and which bonds ar •■ now due and unpaid, or may become due on or before the fourth day of January in the year eighteen hundred and sixty-three, to issue other bonds not exceeding in amount the principal of such bonds BO due or to become due. Sec. 1. [As amended, March 9, 1866. 63 L. 41; S. & S., p. 645.] New bonds may be substituted for old unpaid bonds. That it shall be lawful for the commissioners of any county, the trustees of any township, an ! the council of any city or incorporated village which may have heretofore issued, or which may hereafter issue, in pursuance of iuhj law, bonds in aid or tor purposes of public improvement, and which bunds are now due and unpaid, or may become due on or before the second Monday of January, eigtileen hundred and seventy-one, to issue other bonds, not exceeding in amount the principal of such bonds so due or to become due. BONDS AND STOCKS. 281 ing bonded debt authorized by law, and which bonds are now due and unpaid or may hereafter become due, to issue other bonds, not exceeding in amount the principal of such bonds so due or to become due ; provided, that nothing herein contained shall be construed to au- thorize the reissue of any bonds issued, or extension of the payment of any indebtedness incurred under the authority of any act in which provision is made for the payment thereof when due by specific levies and assess- ments, or where bonds have been issued to contractors or others and received by them in payment or part payment for labor done or mate- rials provided for any local or special improvement; provided, that nothing herein contained shall be so construed as to authorize the cre- ation of any new debt or debts, and the issuing of bonds therefor. (13.) * Sec. 2. [As amended, May 1, 1871. G8 L. 97.] Bonds to be numbered, registered, etc. ; proviso. That all bonds issued by vir- tue and in pursuance of the provisions of section one of the act to which this is an amendment, may be made payable to bearer, and shall be numbered and registered by the authorities issuing them. Each bond shall be for a sum not less than one hundred dollars, nor more than one thousand dollars, and shall become due at any period therein named, not exceeding twenty years from its date, and shall bear interest at any rate named therein, not exceeding eight per cent, per annum, payable in semi-annual installments, being four per cent, half yearly ; and each bond, with its coupons, may "be made payable at any place designated therein ; provided, how- ever, that no bond shall be disposed of at less than its par value; and the proceeds of all such bonds shall be used for the redemption *Sec. 2. [A s originally passed.] Bonds to be numbered and registered; amount, and when due; interest ; proviso. All bonds issued by virtue of the foregoing section shall be numbered and regis- tered by the authorities issuing them ; each bond shall be for a sum of not less than one hun- dred dollars, or more than one thousand dollars, and shall become due at any period therein named, not exceeding fifteen years from its date; it shall bear interest at a rate not exceeding seven per centum per annum, payable semi-annually upon coupons thereto attached, and each bond with its coupons may be made payable at any place designated therein; provided, however, that no bond shall be disposed of at less than its par value, and the proceeds of all such bonds shall be used for the redemption of an equal amount of the principal of bonds falling due or to become due as specified in the first section of this act, and for no other purpose whatever. Sec. 2. [As amended, March 22, 1871. (18 L. 45.] lionds to be numbered and registered ; amount and when due : int.ire.-t; proviso. That all bonds issued by virtue and in pursuance of the pro- visions of section one . 18G9, authorizing cities of the first class to construct and maintain a railroad. (10.) Sec. 10. [As amended, April 20, 1874. 71 L. 135.] Voting districts. That where the voters of any ward of a city of the first class exceed eight hundred, the common council shall divide said ward or wards into two voting districts on or before the first day of July, a. d. 1874 ; and upon the failure or neglect of said council to so divide said wards into voting districts within the time herein prescribed, the mayor of such city shall perform the duties herein imposed upon common councils : Provided, however, that nothing herein contained shall prevent the common council of any such city, and it is hereby expressly empowered to divide any ward into as many voting districts as it may deem proper, and the vote of said districts shall be returned as the vote of the ward. (11.) Sec. 11. Inconsistent laws inoperative. All laws inconsist- ent herewith are hereby declared to be inoperative in cities affected by this act. Sec 12. This act shall take effect and be in force from and after its passage. AjST ACT supplementary to " an act to provide for the organization and government of municipal corporations," passed May 7, 1869. (G7 L. 7.) [Passed January 31, 1873. 70 L. 18.] (12.) Sec 1. Veto power of mayor. Be it enacted by the Gen- eral Assembl}' of the State of Ohio, That in all cities of the first class having a board of aldermen, the votes of a majority of all the •TTIE COUNCIL. 301 members elected to each board of common council shall be neces- Bary to pass any ordinance, resolution or order in which an ex- penditure of money is involved, and every ordinance, resolution, or Order for the expenditure of money, or any contract for the pay- ment of money, or for granting any franchise, or creating any right, or for the purchase, lease, sale or transfer of any property, which shall have passed both boards of the common council in separate session (except such as levying special taxes for the im- provement of streets), before it shall take effect shall be presented, duly certified by the clerk, to the ma} T or of said city for his ap- proval. If he approves, he shall sign it; if not, he shall return it with his objections to the board in which it originated within ten days thereafter, or, if said board be not in session, at its next meeting after that period. The board shall enter the objections at large on their journal : Provided, however, that the mayor may approve the whole or any item or part of any document presented to him for his signature. (13.) Sec. 2. Passage of ordinance after veto. The board shall, after the expiration of not loss than ten days, proceed to reconsiihr the same, after first notifying the other board, or the president thereof, of the action of the mayor; and if such ordinance, reso- lution, or order is approved by the votes, of two-thirds of all the members elected to each board, in separate session, it shall then take effect the same as if it had received the signature of the mayor of the city. In all such cases the vote of each board shall be de- termined hj yeas and nays, and the names of the persons voting for and against its passage shall be entered on the journal of the board. (14.) Sec. 3. Effect of failure by mayor to return ordinance. If the mayor shall not return any ordinance, resolution, or order pre- sented to him for his signature within the time above limited for that purpose, it shall take effect in the same manner as if he had signed it. Sec. 4. All laws inconsistent herewith are hereby declared to be inoperative in cities affected by this act. Sec. 5. This act shall take effect and be in force from and after its passage. AN ACT to extend the provisions of an act entitled "an act sup- plementary to an act to provide for the organization and govern- ment of municipal corporations," passed February 10, 1870, amended January 29, 1873, to cities of the first class which have 502 THE COUNCIL. been advanced to that grade during decennial periods. [Passed March 30, 1874. 71 L. 49.] (15.) Sec. 1. Provisions of act extended to advanced cities of first class. Be it enacted by the General Assembly of the State of Ohio, That the provisions of an act entitled an act supplementary to an aet to provide for the organization and government of mu- nicipal corporations, passed February 10, 1870 (Ohio Laws, vol. G7, ]). 7), and as amended January 29, 1873 (Ohio Laws, vol. 70, p. 16), shall appty to and be in force in all cities of the first class which have been advanced to that grade during decennial periods. Sec. 2. All laws inconsistent with the provisions of said act passed February 10, 1870, and as amended January 29, 1873, are hereby declared inoperative in cities affected by this act. Sec 3. This act shall be in force from and after its passage. AX ACT supplementary to an act entitled an act for the organ- ization and government of municipal corporations, passed May 7, 18G9. [Passed April 20, 1873. 70 L. 163.] (16.) Section 1. Term of office, how determined in certain cases. Be it enacted by the- general assembly of the State of Ohio, That in any city or incorporated village where elections have been held, or ma}^ hereafter be held, to elect members of the council, and a portion of such members elected for the full time, and a portion to 'fill vacancies that may exist, and the electors of such city or incor- porated village having failed to designate the length of the terms of office of such persons so elected, it shall be lawful for such mem- bers of the council so elected to proceed, at their first regular meeting in May, or at such other time as such council may desig- nate, to determine by lot, in such manner as may be prescribed by the mayor, the respective term of office to be held by each ; and in cases of cities or incorporated villages that are divided into three or more wards, such lots are to be cast between members sitting for the same ward. In case any member of such council shall re- fuse or fail to attend at the time and place specified for this purpose aforesaid, then it shall be the duty of the mayor to act in casting lot for such absent member, and the result of the determination by lot herein provided shall fix the terms of office of the members of such council as fully as though they had been originally elected as contemplated by law. Sec 2. This act shall take effect and be in force from and after its passage. FIRE DEPARTMENT. 30' AN ACT supplementary to an act entitled "an act to provide for the organization of municipal corporations," passed May 7. 18G9. [Passed February 26, 1875. 72 L. 43.] (17.) Sec. 1. Relative to change or reduction of grade of vil- lages. Be it enacted by the General Assembly of the State of Ohio, That in any incorporated village heretofore existing as such, in which the council of such incorporated village, without a petition of the electors of such incorporated village, and without submitting their action to the legal voters thereof, as required by law, did, by resolution, declare such incorporated village changed or reduced to the grade of an incorporated village for special purposes ; and in case, in accordance with such action of such council, there have • been elected the proper officers of an incorporated village for spe- cial purposes, who thereupon assumed to act as such officers, any such incorporated village shall be deemed and held, notwithstand- ing the irregularities aforesaid, an incorporated village for special purposes, the same as if the statutes in such cases made and pro- vided for a change of grade had been fully complied with. Sec. 2. Validity of official acts in such villages. All the official acts of such officers of incorporated villages for special purposes as aforesaid, shall be- held as true and valid in law as though said change of grade had been made in strict conformity to the pro- visions of law. Sec 3. This act shall take effect from its passage. FIEE DEPAKTMENT. 1. Appointment of board of fire commissioners 10. Meetings and proceedings of board. in certain cities. 11. Powers and duties of board. ii. Mil tings and proceedings of board. 12. Taxes and expenditures of department. 3. Powers and duties of board. 13. Appointment of officers. 4. Taxes and expenditures of department. 14. Fire-alarm telegraph. 5. Appointment of engineers and officers. 15. Engineer and assistants to act as fire- 6. Fire-alarm telegraph. wardens. 7. Engineerand assistants to act as fire-wardens. 16. Certain cities of second class may work S. Repealing clause. the men and horses of fire department. 9. Appointment of fire commissioners in certain cities. AN ACT to create a board of fire commissioners in cities having: a population exceeding ninety thousand inhabitants. [Passed April 29, 1873. 70 L. 188.] (1.) Sec. 1. Appointment of board. Be it enacted by the General Assembly of the State of Ohio, That the management and control of fire departments, in cities of the first class having a population 304 FIRE DEPARTMENT. exceeding ninety thousand inhabitants, shall be vested in a board of fire commiesioners, which shall consist of five members, to bo appointed by the mayor, by and with the consent of the common council. They shall hold office for the term of five years, and the term of office of those first appointed shall be for one year, for two years, for three years, for four years, and for five years, so that thereafter there shall be one member appointed annually. The said commissioners shall be residents and freeholders in said cities of the first class, and all vacancies in the board resulting from any cause shall be filled by the mayor, by and with the consent of the common council, and the members of said board shall serve with- out compensation. (2.) Sec. 2. Meetings and 'proceedings. The said board shall hold regular meetings at least twice each month, and oftener, if deemed necessary by the chairman. Special meetings may be held on the call of any three members, and notice shall be seiwed upon the members of all meetings, whether regular or special. A majority of the members shall be necessary to order the expenditure of money, or to make any contract, and the vote upon the same shall be taken by yeas and nays, and entered upon the minutes. They shall cause accurate record to be made of all their proceedings, which shall be received as evidence when certified to by the secre- tary. They shall have power to make such rules and regulations for the government of the department as may be found necessary, from time to time, which shall have the power and effect of ordi- nances, when approved by the common council. (3.) Sec. 3. Powers and duties of board. The said board shall have power to make all necessary repairs of houses, engines, or other apparatus belonging to the department, and to contract, in the name of the city, for new houses or apparatus : Provided, that for all contracts exceeding one thousand dollars in amount, the approval of the common council shall first be obtained. No com- missioner or other officer of the board shall be interested in the pi'ofits of any contract, and no officer or employe shall have power to incur any liability on account of said board, unless expressly authorized to do so at a meeting of the board. At least ten (10) days' notice shall be given in some newspaper of general circulation in such cities of the first class, of the reception of proposals for the performance of any contract exceeding one thousand dollars in amount, and said contract shall be awarded to the best and lowest bidder, who shall furnish satisfactory security for the per- formance of the same ; and all contracts exceeding one thousand FIRE DEPARTMENT. 305 dollars in amount shall be subject to the approval of the common council as aforesaid. (4.) Sec. 4. Taxes and expenditures. The said board shall an- nually certify to the city auditor, at the time prescribed by law, the amount necessary to be levied on the grand duplicate for the support of the department for the ensuing year, and shall have no power to incur aii} T liability on behalf of said cities of the first class, beyond the amount, so levied or appropriated to their order by the common council ; and the purchase of any additional ground,, building of any new house or apparatus, or the establishment of any new company, shall be made by the common council only upon the recommendation of said board. They shall have power to locate and build such fire-cisterns and plugs as they may deem necessary for the better protection of the property of the cit}\ All payments from the fire department funds shall be ordered at a meet- ing of the board, and shall be made by the treasurer of said city, upon the warrant of the city auditor, which shall be drawn in accordance with the order of the board, and certified to in such manner as they ma}' prescribe. (5.) Sec. 5. Appointment of engineers and officers. The said board shall have power to appoint a chief engineer, who shall be the executive officer of the board, and have the active management of the department in service, and such number of assistants as they may deem necessary, whose terms of office shall be for three }^ears y and until their successors are apj>ointed and qualified. They shall also appoint such other officers and employes as may be necessary for the efficient management of the department, who shall hold their positicns until removed by death, resignation, or for causes hereinafter mentioned. They shall fix the salaries and prescribe the duties of all officers and members of the department; and in- competency, inefficiency, permanent disability, insubordination, or violation of any of the rules and regulations of the board, shall be deemed cause for suspension or dismissal : Provided, however, that no change shall bo made under this act in the present number of said fire department, except for the causes herein stated. No officer or member shall be appointed or removed on account of his religious or political opinion, nor participate in the political cam- paigns or conventions of any political party whatever. (6.) Sec 6. Fire-alarm telegraph. In such cities of the first class, as aforesaid, where there now is, or may hereafter be estab- lished, a fire-alarm telegraph attached to said fire department, the 20 306 FIRE DEPARTMENT. same shall be under the control and subject to the regulation of the said board of fire commissioners, and the chief engineer afore- said shall, by virtue of his office, be the superintendent thereof. .Such number of operators and other employes may be appointed by the said board, as may be necessary for the management of said telegraph. (7.) Sec. 7. Fire wardens and unsafe buildings. The said chief and assistant engineers shall act as fire wardens, under direction of the board, and shall have power to enter and examine any building in which fire is used, and may condemn the same or order it rebuilt or repaired, if it be considered dangerous to the public safety. Whenever complaint is made of the dangerous condition of any building or part thereof, it shall be their dut} r to immedi- ately examine into the same, and cause the proper measures to be taken to put it in a safe condition. They shall make prompt ex- amination into the cause of every fire occurring within the city limits, and for this purpose are hereby authorized to issue process for, and compel the attendance of witnesses and the production of books and papers, to administer oaths and take testimony, the material points of which shall be carefully entered in a record to be kept for that purpose. They shall also examine into the condi- tion of any building reported unsafe, or being erected in violation of law. and shall notify the owners thereof, if found unsafe, to rebuild the same, in default of which they nnvv bring suit against the owners in any court having competent jurisdiction. (8.) Sec. 8. That section sixtj'-onc, as amended April 20, 1871, (68 L. 69,) of an act entitled, an act to provide for the organi- zation and government of municipal corporations, passed May 7. 1869, (GG L. 149,) is hereby declared not to affect cities to which this act is applicable; and all other acts and parts of acts inconsistent with the provisions of this act be and the same are hereby repealed, and this act shall take effect from and after its passage. AX ACT supplementary to an act passed April 29, 1873, entitled an act to create a Board of Fire Commissioners in cities having a population exceeding ninety thousand inhabitants. [70 L., 188.] Passed, March 21, 1874, 70 L. 38. (9 ) Sec. 1. Appointment of board. Be it enacted by the General Assembly of the State of Ohio, that the management and control of the fire departments in cities of the first class having a population ex- ceeding ninety thousand inhabitants, and not exceeding one hundred FIRE DEPARTMENT. 307 and fifty thousand inhabitants, shall be vested in a board of five com- missioners, which shall consist of the mayor, who shall be president of the board, the chairman of the committee on fire and water of the city council, and three resident freeholders in said cities, who shall be nominated bj r the mayor and approved by the city council. Said commissioners so appointed shall hold office for the term of three years, and the term of office of those first appointed shall be for one year, for two years, and for three years, so that thereafter there shall be one. member appointed annually. The mayor and city council shall have power to fill vacancies in the same manner as original appointments are made. The members of said board shall serve without compensation. (10.) Sec. 2. Meetings of the board. The said board shall hold regular meetings at least twice each month, and oftener, if deemed necessary by said board. Special meetings may be called by the mayor or any three members. Notice of all special meetings shall be served upon the members in person, or by leaving written or printed notices of the same at their places of residence. A majority of the members shall be necessary to order the expenditure of money or to make any contract, and the vote upon the same shall be taken by the yeas and nays, and entered upon the minutes. They shall cause an accurate record to be made of all their pro- ceedings, which shall be received as evidence, when certified to by the secretary. They shall have power to make such rules and regulations for the government of the department as may be found necessary, from time to time, which shall have the power and effect of ordinances when approved by the city council. (11.) Sec. 3. Powers of the board. The said board shall have power to make all necessary repairs of houses, engines, or other .apparatus belonging to the department, and to contract, in the name of the city, for new houses or apparatus : Provided, that for all contracts exceeding five hundred dollars in amount, the ap- proval of the city council shall first be obtained. No commissioner or other officer of the board or emplo}'e of the department shall be interested in the profits of any contract, and no officer or employe shall have power to incur any liability on account of said board, unless expressly authorized to do so at a meeting of the board by a majority of the members thereof. At least ten days' notice shall be given in some newspaper of general circulation in such cities of the first class of the reception of proposals for the performance of any contract exceeding five hundred dollars in amount, and said contract shall be awarded to the best and lowest bidder, who shall 308 FIRE DEPARTMENT. furnish satisfactory security for the performance of the same; and all contracts exceeding five hundred dollars in amount shall be subject to the approval of the city council as aforesaid. (12.) Sec. 4. Taxes and expenditures. The said board shall annually certify to the city auditor at the time prescribed Irv law, the amount necessary to be levied on the grand duplicate for the support of the department for the ensuing year, and shall have no power to incur any liability on behalf of said cities of the first class beyond the amount so levied or appropriated to their order by the city council ; and the purchase of any additional ground, building of any new house or apparatus, or the establishment of any new company, shall be made by the city council only upon the recommendation of said board. They shall have power to locate and build such fire-cisterns or reservoirs as they may deem neces- sary for the better protection of the property of the city, subject to the restrictions aforenamed. All payments from the fire depart- ment funds shall be ordered at a meeting of the board, and shall be paid by the treasurer of said city upon the warrant of the city auditor, which shall be drawn in accordance with the order of the board, and certified to in such manner as the}* may prescribe. (13.) Sec. 5. Appointment of officers. The said board shall have power to appoint a chief of fire department, who shall be the ex- ecutive officer of the board, and have the active management of the department in service, and such number of assistants as they may deem necessary, whose term of office shall be during good behavior, and until their successors are appointed and qualified. They shall also appoint such other officers and employes as may be necessary for the efficient management of the department, who shall hold their positions until removed by death, resignation, or for causes hereinafter mentioned. They shall fix the salaries and prescribe the duties of all officers and members of the department; and in- competency, inefficiency, permanent disability, insubordination, or violation of any of the rules and regulations of the board, shall be deemed cause for suspension or dismissal: Provided, however, that no change shall be made under this act in the present members of paid fire department, except for the causes herein stated. No officer or member shall be appointed or removed on account of his religious or political opinion, nor participate in the political campaigns or conventions of any political party whatever. (14.) 6. Fire-alarm telegraph. In such cities of the first class as aforesaid, where there now is, or may hereinafter be established, a fire-alarm telegraph attached to said fire department, the same shall FIRE DEPARTMENT. 309 be under the control and subject to the regulations of the said board of fire commissioners, and the chief of fire department afore- said shall, by virtue of his office, have a general control of the same. A superintendent and such number of operators and other employes may be appointed b} T the said board as may be necessary for the management of said telegraph. (15.) Sec. 7. Fire wardens, duties, etc. The said chief and assis- tants shall act as fire wardens, under direction of the board, and shall have power to enter and examine any building in which fire is used, and may condemn the same if it be considered dangerous to the public safety. Whenever complaint is made of the danger- ous condition of any building, or part thereof, it shall be their duty to immediately examine into the same, and cause the proper measures to be taken to put it in a safe condition. They shall- make prompt examination into the cause of every fire occuring within the city limits, and for this purpose are hereby authorized to issue process for, and compel the attendance of witnesses and the production of books and papers ; to administer oaths and take testimony, the material points of which shall be carefully entered in a book of record to be kept for that pm*pose. • They shall also examine into the condition of any building rej)orted unsafe, or being erected in violation of law, and shall notify the owners thereof, if found unsafe, to rebuild the same, in default of which they may bring suit against the owners in any court having competent juris- diction. Sec. 8. This act shall take effect and be in force from and after its passage. AN ACT relative to the steam fire department of certain cities. Passed, April 9, 1873, 70 L. 116. (16.) Sec. 1. Be it enacted by the general assembly of the State of Ohio, that the council of any city of the second class having a population at the last federal census, not exceeding 6,400, nor less than 6,300, be and the same is hereby authorized to provide, by ordinance, for the working of the employes and teams of the steam fire department of such city, where such department exists therein, under such control and regulations as said council may so provide. Sec. 2. That this act shall take effect on its passage. 310 IIOUSE OF REFUGE. HOUSES OF EEFUGE. 1. City conncil may establish houses of refuge ; 12. Disposition of infants when house is tax and subscriptions. full. 2. Board of directors, appointment, terms, 13. What statements must accompany the etc. commitment. 3. Their powers and duties. 14. No record to be made at trial, unless de- 4. Tax to be levied, money disbursed, etc. manded by infant. 6. Eight of visitation. 15. Term of commitment ; how discharged; 6. What infants to be received as inmates. how employed and apprenticed. 7. Infants liable to confinement injailmaybe 10. Indentures may be canceled. gent. 17. Inmates escaping. 8. Grand jurors may recommend commitment 18. Expenses, how paid. instead of finding indictment. 19. Beturn of writ of habeas corpus in cer- 9. Court may commit, with consent of ac- tain cases. cused. 20. Proceedings when infant is wrongfully 10. Infants entitled to private examination and committed. trial. 21. Sale of real estate. 11. Infants committed for trial or as witness to 22. Suits, how brought. be sent to house. AN ACT to authorize the establishment of houses of refuge. [Passed April 1G, and took effect May 1, 1857. 54 L. 1C3 ; S. & C, p. 687.] (1.) Sec. 1. City councils may establish houses of refuge; subscrip- tions. Be it enacted by the General Assembly of the State of Ohio, That the city council of any city, in and for which a house of refuge is not already established, shall have power to erect and establish, cither within the city or within the county in which such city may be situated, a house of refuge ; and for such purpose may levy a tax for the purchase of any real estate that may be deemed necessary, and for the erection of suitable buildings thereon ; and if it shall be deemed advisable to provide buildings for the accommodation of both males and females, such buildings shall be at least one- fourth of a mile apart, and be managed by separate boards of di- rectors. But the city council shall not proceed to purchase lands or to erect any house of refuge until fifty individuals shall have subscribed toward the building and support of such house of ref- uge, either twenty-five dollars for life membership, or five dollars annually for seven years, and such annual subscribers who have paid up their subscriptions shall then be entitled to life member- ship. And similar subscriptions may from time to time be received by the directors of any house of refuge, toward its maintenance and support ; and they shall have power to collect any subscrip- tions heretofore made for the use and benefit of any such institu- HOUSE OP REFUGE. 311 tion; and this act shall not disturb any rights and privileges en- joyed by subscribers to a house of refuge under any former act. (2.) Sec. 2. Board of directors, their appointment, etc. Any house of refuge already established, or that may be hereafter established, shall be under the direction and control of a board of directors, consisting of nine members — three appointed by the city council, two by the court of common pleas, and two by the superior court of the county in which such house of ref- uge may be situated; and in counties in which there is no supe- rior court, the city council shall appoint five directors, and the seven members so appointed shall, by advertisement for six days in two daily papers, or by notice through the post-office of the city where such house of refuge may be situated, call a meeting of the subscribers to such house of refuge for the appointment of two directors ; and in case the subscribers fail to appoint, the directors already appointed shall, after taking an oath of office before the mayor, organize and appoint two directors. The directors shall hold their offices for three years, and until their successors are chosen and qualified. Vacancies which may happen by death, re- signation, or otherwise, in the board, shall be filled b} r the remain- ing members, and in case the city or subscribers fail to fill any place vacated by the termination of any appointment within one month thereafter, such vacancies shall be filled by the board. An}- director of a house of refuge now in office shall continue in office till the expiration of their respective appointments, and until their suc- cessors are chosen and qualified. (3.) Sec. 3. Their powers and duties. A majority of the whole number of directors shall have power to suspend or remove from office an} 7 one of their own number, for misconduct in office; and may at any time remove from office any one of their own number for misconduct. A majority of the board shall be a quorum ; they shall have power to appoint a president and treasurer, and employ such clerks and officers as are needful, and fix their salaries; and make contracts for supplies, improvements, and labor of inmates ; and to make, establish, and enforce rules and regulations for the government and control of such house of refuge, its officers and inmates, and the government of the beard. But such rules and regulations shall not be in force until approved by the court of common pleas of the county, the mayor of the city, and, if there be a superior court in such county, by the superior court of the county. The approval of the mayor shall be evidenced by his official signa- ture; and that of the courts by an entry on their journal. They 312 HOUSE OF REFUGE. shall make yearly report to the legislature of the State of Ohio, and the eity council, of the fiscal affairs, the management, condition, and influence of such house of refuge, with statistics of the age, nativ- ity, cause of commitment, progress and disposal of all infants under their care ; and severally they may do whatever the interests of such house of refuge may require : Provided, that it confliets with no existing law of the State of Ohio, or ordinance of the city in which sueh house may be situated. (4.) Sec. 4. Tax. The city council shall cause to. be levied and collected, annually, a tux sufficient to raise sueh sum as the board of directors of any house may certify to be necessary for the main- tenance and support of such house of refuge, not exceeding in any one year three-fourths of a mill on the dollar of taxable property; and the money so raised shall be held by the city treasurer, subject to the drafts of the board of directors, in such manner as the board may, by rules, provide; and the eity alone shall be liable for the debts of such house of refuge ; but no tax shall ever be levied on any property owned or held for the use and benefit of such institutions; and the city treasurer shall not be entitled to any extra fee or salary for the keeping and disbursement of any funds for a house of refuge- (5.) Sec. 5. Visitation. The general assembly of Ohio, by a committee, the city council, by a committee, the mayor of the city, the judges of the court of common pleas and superior court, the grand jury of the county, and the judges of the supreme court of Ohio, may, at any time, visit and inspect any house of refuge, and examine the books and accounts of the same. (6.) Sec. 6. What infants to be received as inmates. It shall be lawful for the board of directors of any house of refuge, at their discretion, to receive into their care and guardianship, infants un- der the age of sixteen years, committed to their custody in either of the following modes, to wit: 1. Infants committed by any justice of the peace within the county, by the mayor of the city, the judge of the police or other municipal court, any judge of the court of common pleas of the county, the probate judge of the county, and in those counties in which there may be a superior court, by any judge of sueh su- perior court, on the complaint and due proof thereof by the parent, guardian, or next friend of such infant, that, by reason of incor- rigible or vicious conduct, sueh infant has rendered his or her con- trol beyond the power of sueh parent, guardian, or next friend, and made it manifestly requisite that, from regard to the future welfare of such infant, and for the protection of society, he or she HOUSE OP REFUGE. 313 should be placed under the guardianship of the board of directors of such house of refuge. 2 Infants committed by the authorities aforesaid,, where com- plaint and due proof have been made that such infant is a proper subject for the guardianship of the directors of a house of refuge, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity, or otherwise, of the parent or guardian, or next friend, in whose custody such infant ma}' be, such parent, guardian, or next friends is incapable or unwilling to exer- cise the proper care and discipline over such incorrigible or vicious infant, 3. Infants who are destitute of a suitable home and of adequate means of obtaining an honest living, or who are in danger of being brought up to lead an idle and immoral life, may be committed to the guardianship of the directors of a house of refuge, by the trus- tees of any township within the county in which such house may be situated, or by the mother, when the father is dead, or has aban- doned his family, or does not provide for their support, or who is an habitual drunkard. (7.) Sec. 7. What infants to be received as inmates. Any infant under the age of sixteen years who shall, under existing laws, or those hereafter enacted, be liable to confinement in the jail of any county in which a house of refuge may be situated, or in the pen- itentiary of the State of Ohio from any such county, may, at the discretion of the court or magistrate giving sentence, be placed in such house of refuge until of legal age, under the exclusive control and guardianship of the directors of such house. (8.) Sec. 8. If any accusation of the commission of any crime shall be made against any infant under the age of sixteen years, before any grand jury of the county in which such house of refuge may be situated, and the charge appears to be supported b}- evi- dence sufficient to put the accused upon a trial, the grand jurors may, in their 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 the court shall there- upon order such commitment. 1 (9.) Sec. 9. If any infant under the age of sixteen years shall be arraigned for trial in any court having criminal jurisdiction, in 1 This section is not in violation of the provisions of the constitution secur- ing a trial by jury. Prescott v. The State, 19 Ohio St. 184. 314 HOUSE OF REFUGE. airy county in which a house of refuge maybe situated, on a charge of any criminal violation of any law of this state, or ordinance of the city, the judge may, with the consent of the accused, arrest, at .any stage of the cause, any further proceedings on the part of the prosecution, and commit the accused to the guardianship of the directors of the house of refuge. (10.) Sec. 10. Trial of infants for crimes. All infants under the age of sixteen years who may be accused of any offense punishable by imprisonment, in any county in which a house of refuge may be situated, shall be entitled to a private examination and trial, to which only the parties to the case shall be admitted, unless one of the parents, the guardian, or other legal representative, demand a puhlic trial, in which case all proceedings shall be in the usual form. (11.) Sec. 11. Commitment pending an accusation. All infanta under the age of sixteen years who may be eommited, in any county in which a house of refuge may be situated, for trial, or as a witness, shall be placed in the house of refuge, subject to the order of the court making such commitment, and in no case in the county jail. (12.) Sec. 12. Disposition of infants ichen house is full. If, at any time, any house of refuge shall have as many infants under its- charge as can be conveniently accommodated therein, or as many as the funds of the house are adequate to maintain, the directors 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 execute a commitment, who shall send an infant to the house; and thereupon the case of such infant shall be disposed of, as if this law had not been enacted, and as if no proceedings had taken place under it. (13.) Sec. 13. Statement to accompany the commitment. In all cases where an infant is eommited to the instruction and discipline of a house of refuge, under the guardianship of the directors thereof, the person executing such commitment shall, at the same time, furnish to the directors or officers of such house of refuge a true statement, in writing, of the age of such infant, and the reason for executing such commitment; and until such commitment is fur- nished, the directors or officers aforesaid may decline receiving such infant. (14.) Sec. 14. Form of record. In all cases where the commit- ment is executed by any official person whose proceedings are usually evidenced by a record, or where the occasion of the com- HOUSE OP REFUGE. 315 initment is a criminal charge against the infant ; no other record shall he made, unless demanded by the infant, or his parent, or guardian, than that, in substance, such infant, (naming him), who, on a day therein named, was of the age of — years, having been brought before such court or officer, and the court or officer having ascertained by the testimony of witnesses therein named, was a suitable person to be committed to the discipline and instruction of the house of refuge, under the guardianship of the directors thereof, such infant was so commited, and delivered to the charge of such directors. (15.) Sec. 15. Term of commitment ; manner of employment ; ap- prenticeship. No commitment of an infant to a house of refuge shall be for a shorter period than till 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 directors may, by their general rules, provide ; but any infant, by whomsoever committed, or for whatever cause committed, may at any time be discharged upon the order of the board of directors, duly entered upon their minutes. The directors shall have power to place such infants committed to their 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 knowl- edge as may be suitable to their years and capacities ; and they shall have power, at their discretion, to bind out the said infants, with their consent, as apprentices, during their minority, to such persons, and at such places, to learn such proper trades and em- ployments, as in their judgment will be most conducive to their reformation and amendment, and as- will tend to the future benefit and advantage of such infants ; and the directors shall, for such purpose, have power to appoint a committee of one, or more, of their own number, with power to execute and deliver, on behalf of the board, indentures of apprenticeship for any infant in such institution whom they may deem a proper person for an apprentice- ship ; and 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 house of refuge, and it shall not be necessary to file or record them in any other place or office. (16.) Sec. 16. Cancellation of indenture. In case any infant so apprenticed shall prove untrustworthy and unreformed, the directors may, at their discretion, permit such infant to be returned to Buch house of refuge, to be held in the same manner as before said 316 HOUSE OF REFUGE. apprenticeship, and may thereupon order the indentures for such. infant to be canceled. And if, in the opinion of the directors, any infant apprenticed out hy them shall have an unsuitable home, or if the pel-son to whom such infant is indentured shall become unfit or incapable to properly raise or take care of such infant, the directors may, at their discretion, return such infant to the insti- tution from which it was indentured. (17.) Sec. 17. Inmates escaping. Any fugitive from a house of refuge, or a fugitive from apprenticeship under indentures executed by the directors of such house of refuge, may be arrested and re- turned to such house by a sheriff or constable of any county in this state, or police officer of the city, or officer of such house of refuge, on the written order of any two directors of such house directed to such officer or officers ; and any fugitive so arrested by a sheriff, constable, or police officer, may be delivered to the custody of such officer of a house of refuge as the directors may name. (18.) Sec. 18. Expenses, how paid. The expenses of maintaining infants, committed to any house of refuge by a court or magistrate of the county in which such house of refuge may be situated, or by the police or other court of the cit} T , for offense against any law of this state, or for trial, or as a witness in such cases shall be paid by the county: those of infants committed by townshijD trustees shall be paid by the township, and those committed by parents and guardians, shall be paid by them, unless in cases where the directors shall otherwise determine; such expenses being according to rates fixed in the regulations of the board of directors. (19.) Sec. 19. Return of writ of habeas corpus in certain cases. It shall be a sufficient return to any writ of habeas corpus directed to any person or officer inquiring into the cause of the detention of any infant committed to a house of refuge, that the infant named in the writ was, on a day therein named, committed to the guardian- ship of the directors of the house of refuge in the city of b}* 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. Where a commitment has, in fact, been executed by a person authorized by this act to execute it, the ex- istence of the circumstances justifying its execution, shall not be otherwise examinable than in an action against the directors of such house of refuge, as provided in this act. (20.) Sec 20. Infants wrongfully committed. If any parent, guardian, master, to whom an infant has been apprenticed ; any person occupying the position of parent, protector, or guardian, in HOUSE OP REFUGE. 317 fact, or any relative by blood or marriage, not further remote than first cousin to such infant, shall feel aggrieved by the commitment of any infant to the directors of a house of refuge, by any person authorized by this act to commit such infant, he shall make a written application to the directors, at such time as the directors may, by rule or resolution, provide for hearing applications, not later than the next regular meeting of the board, to have the in- fant delivered to him; which application shall state the ground of the applicant's claim to the custody of such infant, and the reasons for claiming such custody. Within ten days after hearing such application the directors shall decide ; and if they shall be of opin- ion that the welfare of such infant will be promoted by granting the application, they shall make an order to that effect ; otherwise, they shall decline the application. The applicant may thereupon, upon first giving security for the payment of all costs, commence an action in the court of common pleas of the county, or in coun- ties in which there may be a superior court, in the superior court, for the recovery of the custody of such infant, against the directors of the house of refuge ; which action shall be conducted in all re- spects as other actions are conducted under the code of civil pro- cedure. The cost of such action shall be paid by the applicant, unless the court shall certify, before the signing of the judgment, that the refusal of the directors to grant the application of the plaintiff was plainly unreasonable, or the original commitment manifestly improper and unnecessary. (21.) Sec. 21. Sale of real estate. The directors of any house of refuge shall have power to negotiate for the sale of any real estate owned or held by donation or purchase, or both, for the use and benefit of such house of refuge, when such real estate shall not be necessary for the accommodation of the inmates of such house of refuge ; and upon the completion of such negotiations and their approval by the city council, the directors shall present to the city council the terms and conditions of sale agreed upon ; and the city council shall thereupon order the execution of such deed or deeds, for such real estate, to the parties named by the directors, in conformity to the terras agreed upon ; and the proceeds of such sale or sales shall be placed in the city treasury to the credit of the house of refuge fund, and be held and disbursed as other funds are held and disbursed for such house of refuge. (22.) Sec. 22. Suits. Action ma}- be brought by and against the directors of the house of refuge at ; and process may be served by leaving a copy of the writ with -any director, or at the office of the house of refuge, upon any officer. 318 IMPROVEMENTS OTHER THAN STREET. IMPROVEMENTS OTHER THAN STREET. 1. Certain cities may construct viaducts, etc. 7. Swing-bridges over canals in certain vil- 2. Resolution to be passed declaring the same lages. necessary. 8. Bridges in certain cities and villages to 3. Issue of bonds for such work. be constructed by county commission- 4. Certain cities and villages may construct car- ers. shops. 9. Bridge-tax ; one-half may be demanded 5. Pools may be filled up ; when. by certain cities. 6. Issue of bonds for that purpose. 10. Gas or water may Jbe contracted for. 11. Right of private owners in public drains. AN ACT supplementary to an act entitled " An act to provide for the organization and government of municipal corporations." [Passed April 27, 1872. 69 L. 138.] (1.) & Section 1. Certain cities authorized to make certain improve- ments, etc. Be it enacted by the General Assembly of the State of Ohio, That the council of any municipal corporation, which, by the last federal census, had a population exceeding eighty thousand and less than one hundred thousand, shall have power to make, or cause to be made, any one or all of the improvements, structures, alterations, or changes hereinafter named, and may make the samo all at one time, or separately, and at different times, as may, in the opinion of the council of the municipal corporation be most ex- pedient — that is to say : To construct a viaduct or bridge over any valley, ravine, river or water-course within the limits of the corporation. To sink, let down and inclose with a tunnel or covering, any portion of any railroad track or tracks within the limits of the corporation. To make such changes in any canal, its locks, bed, or width within the limits of the corporation, as may be authorized by law. To acquire by contract, or, at the option of the council of said corporation, to appropriate, enter upon and hold such real estate as may be desired or needed for right of way, or otherwise, in mak- ing any change or improvement herein authorized, including a right of way for the outlet of such canal; such appropriation to bo made in the manner provided for appropriation of private prop- erty by municipal corporations for public uses, in the act to which this is supplementary. (2.) Sec 2. Resolution, its publication, etc. "When it shall be deemed expedient by the council of sajd municipal corporation to do either, all or any part of the work herein authorized in section 1 of this act, they shall, by resolution, declare the necessity thereof, which IMPROVEMENTS OTHER THAN STREET. 319 resolution shall briefly describe the location and character of the proposed structure, work, improvement, change, or alteration, and the estimated cost of the same, and shall require for its adoption a vote of two-thirds of all the members elected to the council, which resolution shall be published as provided in section 5G3 of the act to which this is supplementary; and owners of land or property of any kind, and lessees of said canal claiming damages therefor, shall file a claim therefor, in writing, with the clerk of the corpora- tion, as required by section 544 of said act; and said claims for damages shall be determined, and said work shall be done in ac- cordance with the provisions of the act to which this is supplemen- tary, in so far as the same may be applicable. (3.) Sec. 3. Issue of bonds authorized. For the purpose of pro- viding the means for paying the cost and exf>ense of making any structure, viaduct, or bridge, excavation or chauge, or doing any work authorized by this act, and the cost of any lands purchased or appropriated for right of way, or other purposes, and for the payment of any damages done to private property, by doing any work herein authorized, and all other expenses connected therewith, the council of such municipal corporation shall have power to issue its bonds for any amount, not exceeding in the aggregate the amount of eleven hundred thousand dollars, which bonds may be for any length of time, not exceeding twenty years, at such rate of interest as the council may deem proper, not to exceed the rate of seven per centum per annum, payable semi-annually, and within the limitations named above. Said bonds may be issued at such time or times and in such amount or amounts, as the progress of the work and the convenience of the corporation may require ; said bonds shall have written or printed upon them the date of the law under which they are issued, and the general character of the Murk or improvement, to pay or provide means for paying the cost and expense of which they are issued; said bonds shall not be sold or negotiated for less than par, and the proceeds of said bonds shall be applied to the payment of the cost and expense of such work and improvement, as hereinbefore provided, and to no other pur- pose whatever. (4.) Sec. 4. This act shall take effect on its j)assage. AN ACT to authorize villages or cities with a population of five thousand six hundred and forty-one by the federal census of 1870, to appropriate money to construct car-shops, etc., within 320 IMPROVEMENTS OTHER THAN STREET. the limits of such village or city. [Passed April 10, 1872, 69 L. 70.] (4.) Section 1. Car-shops, iohen and how constructed. Be it enacted "by the General Assembly of the State of Ohio, That villages or cities containing a population of five thousand six hundred and forty-one, and no more, by the federal census of 1870, published in the last volume of Ohio Statistical Eeport, if the council thereof, by a reso- lution passed by a majority of the members elected thereto, on a petition by two-thirds of the tax-payers of such village or city, declare it to be essential to the interest of such village or city that the head of division and car-shops of any railroad, to be named in such resolution, should be located within the limits of such village or city, it shall be lawful for the council of such village or city to- borrow as a fund, for the purpose of erecting such shops, if the council shall deem it expedient to erect such buildings, a sum not exceeding thirty-five thousand dollars, and to issue bonds therefor in the name of such village, under the corporate seal thereof, at a rate of interest not exceeding eight per centum per annum, paj'a- t>le semi-annually, at such places and in such sums as shall by such council be deemed best; such bonds shall be signed by the mayor, and attested by the clerk of such village or city; and the clerk shall keep a register of the same, and the faith of the village or city shall be pledged for the redemption of said bonds ; and it shall "be the duty of such council to levy, annually, sufficient tax to pay the interest on and provide a sinking fund for the redemption of said bonds. Sec. 2. This act shall take effect and be in force from and after its passage. AN ACT to allow certain cities to assess a special tax for purposes named therein. [Passed April 17, 1872, (i9 L. 78.] (5.) Section 1. Tax to fill up pools. Be it enacted by the General Assembly of the State of Ohio, That cities of the second class, having a population of eight thousand nine hundred and twenty at the last federal census, and no more, be and they are hereby empowered jmd authorized, to enable them to fill up, change, or abate miasmatic pools or depressions in their vicinity, to assess an additional tax of one mill upon the dollar valuation of said cities, upon the grand duplicate each year for a period not exceeding five years. (6.) Sec. 2. Issue of bonds. That for the purpose of anticipating said tax, the city councils of such cities are hereby authorized to IMPROVEMENTS OTHER THAN STREET. 321 issue bonds and borrow an amount of money not exceeding twenty thousand dollars ; the bonds to bear a rate of interest not exceeding eight per cent., and to be sold for not less than their par value. Sec. 3. This act shall take eifect upon its passage. AN ACT to amend an act entitled " An act to enable the common council of any city or incorporated village in this state having a. population of twenty-five hundred inhabitants or more, through which any of the canals of this state may run, or for the board Of county commissioners of the county in which such city or in- corporated village may be situate, to construct and maintain for public use a swingdjridge, or self-closing bridge, or any highway where the same crosses such canal within the territory of said city or incorporated village," passed April 16, 1874. (71 L. 84.) [Passed March 29, 1875. 72 L. 110.] (7.) Sec. 1. Construction of swing-bridge over a canal in city or village. Be it enacted by the General Assembly of the State of Ohio, That the above entitled act be so amended as to read as fol- lows: Sec. 1. That in all cases where it shall be deemed necessary to construct a bridge upon any street, road, or public highway across any of the canals in this state, in any city or incorporated village having by the last preceding federal census a population of twenty- five hundred inhabitants or more, it shall be lawful for the council of such city or incorporated village, or for the board of county commissioners of the county in which such city or incorporated village may be situate, and having lawful authority to construct or erect a bridge on such road, street, or public highway, where the same crosses such canal, to construct, erect, maintain, and keep up for public use a swing-bridge, or self-closing bridge, upon such street, road, or public highway at such place : Provided, however, that no such bridge shall be so constructed or erected without first obtaining, for the model and location thereof, the consent in writing of the board of public works. Sec. 2. That the above recited act be and the same is hereby repealed, and this act shall take effect from and after its passage. AN ACT to authorize county commissioners to cause bridges to be constructed on certain public highways in incorporated villages. [Passed March 30, 1872. G9 L. ^6 1 .] (8.) Sec 1. Bridges to be repaired by county commissioners. Be it 21 322 IMPROVEMENTS OTHER TIIAN STREET. enacted by the General Assembly of the State of Ohio, That the -county commissioners of the several counties in this state shall be authorized and required to cause to be constructed and kept in re- pair, in the manner prescribed by law, all necessary bridges in in- corporated villages, and all cities not having the right to demand and receive any portion of the bridge fund levied upon property within such cities in their respective counties, on all state and ■county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank-roads, which are of general and public utility, running into or through any such incorporated vil- lage or city. Sec. 2. This act shall take effect from and after its passage. AN ACT supplementary to an act entitled an act to provide for the organization and government of municipal corporations, passed May 7, 1869. (66 L. 149.) [Passed April 28, 1872. 70 L. 179.] (9.) Sec. 1. Certain cities may demand half of the bridge tax. Be it enacted by the General Assembly of the State of Ohio, That in all cities of the first class, and cities of the second class having a population exceeding twenty thousand, one-half of the proportion of bridge-tax levied by the county commissioners, collected upon property within such cities, in all cases where the city council shall demand it, shall be paid into the city treasury, and shall be ex- pended by such cities for the purpose of building and repairing bridges within such cities respectively: Provided, this act shall also apply to all taxes levied for the year 1872, so far as the same arc unexpended. Sec. 2. This act shall take effect on its passage. AN ACT to amend section fifty-four of an act passed April 17, 1867, entitled " An act to amend sections forty-nine, fifty-three and fifty-four of an act entitled ' an act to provide for the crea- tion and regulation of incorporated companies in the State of Ohio,' " passed May 1, 1852, and to repeal the sections so hereby amended. (S. & C. 158.) [Passed April 18, 187-4. 71 L. 93.] Sec. 1. Be it enacted by the General Assembl}- of the State of Ohio, That section fifty-four of the act to which this act is amend- atory, be and the same is hereby amended so as to read as follows : (10) Sec. 54. Contracts for lighting or watering streets. The municipal authority of any city, town, or village, or the trustees of any township in which any gas-light or water company shall be organized under this act, are hereby authorized to contract with IMPROVEMENTS OTHER THAN STREET. 323 any such corporation for the lighting or supplying with water the streets, lands, lanes, squares, and public places in any such city, town, village, or township: Provided, that no such corporation shall go into operation in any city or incorporated village where such a corporation has been already formed, or shall be hereafter formed, until after the question of authorizing such operation shall have been submitted to the qualified voters of such city or village, and be authorized by ordinance. Sec. 2. The section fifty-four aforesaid so hereby amended, he and the same is hereby repealed, and this act shall be in full force and effect from and after its passage. AN ACT supplementary to the municipal code regulating surface drainage. [Passed May G, 1873. 70 L. 292.] (11.) Sec. 1. Bightsof private owners to use public drain, etc. Beit enacted hy the General Assembly of the State of Ohio, That in eveiy city within this state, in which any system or plan of drain- age has been adopted by competent municipal authority, and com- pleted, any private owner or occupier of real estate contiguous to any part of such system or plan of drainage as may drain and carry off all the surface or accumulated waters upon such real estate in such municipal corporation so situated, into such com- pleted system or plan of drainage, and thereafter and so long as such owner or occupier shall have reasonably provided for draining or carrying off the surface or accumulated waters upon such real estate into such completed system or plan of drainage, such owner or occupier shall not be liable to any action by any neighboring owner or occupier of real estate for water that may flow against, upon or over his, her, or their real estate, or injure the same, or the property thereon, after the same shall have been so discharged into the system or plan of drainage as aforesaid. Sec. 2. This act shall take effect and be in force from and after its passage. 324 LIBRARIES. LIBEAEIES. 1. Tax may be levied for support of in certain 5. Library and reading-room to be free. cities. 6. Annual report of trustees. 2. Library trustees. 7. Council may impose penalty for injury to- 3. Immediate control to pass to trustees. library. 4. Organization, powers, and duties of trustees. 8. Donations may be received for the same. AN ACT for the establishment and maintenance of public libraries in certain cities of the first class. [Passed April 18, 1873. 70 L. 142.] (1.) Section 1. Tax may be levied for, how. Be it enacted by the General Assembly of the State of Ohio, That in any city of the first class having a population at the last United States census of more than thirty-one thousand five hundred, and less than ninety thousand, the city may, by a resolution passed by a majority of the members elected thereto, declare it to be essential to the interest of such city to establish and maintain a public library and reading- room, and may annually levy a tax not exceeding one-half mill on the dollar on the taxable property of such city, for that purpose, to be called the library fund, which shall be certified to the county auditor of the county, and placed on the tax duplicate of the county, and collected as other taxes. (2.) Sec. 2. Trustees of library. The custody and management of such public library and reading-room, as well as its entire ad- ministration, shall be committed to a board of trustees, nine in number, of whom the mayor of such city for the time being, shall be one,*and the others shall be appointed by the common council, four of whom shall be appointed from such names as shall be nominated to the common council by the board of education of said city, and shall be citizens of approved learning, discretion, and fitness for such office. They shall hold their office for the term of four years, and until their successors are duly elected and qualified: Provided, that the trustees first appointed, other than the mayor, shall be elected respectively for terms of one, two, three, and four years from the first day of January next following their election, two for each term. Any vacancy caused by the death, resignation, or removal of a trustee, or otherwise, shall be filled for his unex- pired term by appointment of the common council. No trustee shall have compensation as such. (3.) Sec. 3. Control to be passed to trustees. As soon as said board of trustees shall be elected and organized, it shall be the LIBRARIES. duty of the board of education in such city to transfer to the cus- tody and control of such board of trustees whatever public library or libraries may be in their possession or control, except such books of reference, maps, or charts as the board of education may think proper to retain for use 1 in school buildings ; and thereafter, no tax "shall be levied by such board of education for a library fund. (4 ) Sec. 4. Organization and duties of trustees. Said trustees shall, immediately after their appointment, meet and organize by the election of one of their number as president, and by the elec- tion 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 and not inconsistent with this act. They shall have exclusive control of the expenditures of all mon- eys, collected to the credit of the library fund, and of the super- vision, care, and custody of the ground, rooms, or buildings con- structed, leased, or set apart for that purpose : Provided, that all moneys received for such library shall be deposited in the treasury of said city to the credit of the library fund, and shall be kept sep- arate and apart from other funds, and drawn upon by the said board of trustees or its proper officer. Said board shall have the power to purchase grounds, and erect thereon an appropriate build- ing or buildings for the use of said library, or to occupy or lease a building or buildings for such purposes, not expending from the library fund in any one year, in building and grounds, more than half the tax revenue of such year. The title to such grounds so purchased shall vest in said board of trustees; they also shall have power to appoint a suitable librarian and necessary assistants, fix salary, and shall, in general, cany out the spirit and intent of this act in establishing and maintaining the best public library and reading-room, with the means at their disposal. (5.) Sec. 5. Library and reading-room free. Every library and reading-room established under this act, shall be forever free to the use of the inhabitants of the city, always subject to such reason- able rules and regulations as the library board may find necessary to adopt and publish in order to render the use of said library and reading-room of the greatest benefit to the greatest number, and may exclude and cut off from the use of said library and reading- room any and all persons who shall willfully violate such rules. (6) Sec. 6. Annual report of trustees. The said board of trustees shall make an annual report to the city council, stating the condi- tion of their trust, the various sums of money received from the 32G LICENSES. library fund, and from other sources, and how much moneys havo "been expended ; the number of books and periodicals on hand ; the number added by purchases, gifts, or otherwise during the year ; the number lost or missing ; the number of books loaned out ; and the general character and kind of such books, with such other statistics, information, and suggestions as they may deem of general interest. (7.) Sec. 7. Council may impose penalty for injury to library. The city council of such city shall havo power to pass ordinances im- posing suitable penalties for the punishment of persons commit- ting injury upon such library, or the grounds, or other property thereof. (8.) Sec. 8. Donations may be received. Any person desiring to make donations of money or real estate for the benefit of such library, shall have the right to vest the title to the money or real estate so donated, in the board of trustees created under this act, to "be held and controlled by such 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 consid- ered to be special trustees. Sec 9. This act shall take effect from and after its passage. LICENSES. 1. Acts authorizing the grants of certain licenses repealed. AN ACT to repeal so much of each and every act of the general assembly as empowers any incorporated city, town, village, or borough, within this state, to license groceries or coffee-houses, or in any manner confer the power to retail spirituous or in- toxicating drinks. [Passed March 7, 1842. 40 L. 53 ; S. & 0., p. 1430.] (1.) Sec. 1. Acts repealed. Be it enacted by the General Assem- bly of the State of Ohio, That the act entitled " an act to authorize the corporation therein named to grant licenses, etc.," passed Feb- ruary eighteen, one thousand eight hundred and thirty, and so much of each and every act incorporating any city, town, village, or bor- ough, within the state, as confers the power upon any such incor- poration to license groceries or coffee-houses, or in any manner to authorize the retailing of spirituous or intoxicating drinks, or to license any house of public entertainment, or resort whatever, be and the same is hereby repealed. ■ ORPnAN ASYLUMS — OFFICERS. 327 OEPHAN ASYLUMS. 1. Directors of infirmary in cities of the first and second class may contract with trustees of orphan asylums for support of orphans. AN ACT for the better management of orphan asylums. [Passed March 11, 1853. 51 L. 412 ; S. & C, p. 891.] (1.) Sec. 2. Concerning orphan asylums in cities of the first and second class. That in all cities of first or second class, in which orphan asylums have been or maybe established bylaw or as private institutions, the directoi'S of the city infirmary, or other persons having charge of the poor in such cities, may make such arrangements with the trustees or the persons having charge of the 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 may deem proper, and shall allow such com- pensation as may be reasonable and just, to be paid out of the poor fund of said city. OFFICEES. 1. Elections of justices and constables in town- 5. Challenge of jurors. ships within limits of cities, etc. 6. Trial, how conducted. 2. Same number to be elected as were allowed 7. Removal of officer if found guilty ; costs. to townships ; council to perform duties of 8. Who exempt from service as jurors, trustees. 9. Contracts by officers not expressly au- 3. Charge against municipal officer, how made ; thorized, etc. citation, how issued and served. 10. Binding upon officer personally. 4. Proceedings thereon. 11. Appeals from mayor in certain cases. AN ACT supplementary to an act to regulate the election, contest of election, and the resignation of justices of the peace, passed March 11. 1853. [Passed March 29, and took effect May 1, 1859. 56 L. 81 ; S. & C, p. 766.] (1.)*Sec. 1. [As amended, March 28, 1861. 58 L. 42, and March 7, 1872. 69 L. 23; S. & S., p. 412.] Election of justices and *Sec. 1. [As originally passed.] That in all cases where the corporate limits of any city or incorporated village are now or hereafter may become co-extensive with the limits of any township in which said city or incorporated village is or shall be situated, aud in cases in which the township has been or may become merged in any city or incorporated village, the corpo- rate existence of such township shall nevertheless continue for the purpose of electing therein justices of the peace and constables for such township, who shall be voted for on the same piece of paper. 328 OFFICERS. constables in township* within limits of city, etc. Be it enacted by the General Assembly of the State of Ohio, That in all cases where the incorporated limits of any city or incorporated village are now or hereafter may become co-extensive with the limits of any township in which said city or incorporated village is or shall be situated, and in which the township has been or may become merged in any city or incorporated village, the corporate existance of such town- ship shall, nevertheless, continue for the purpose of electing the justices of the peace and constables for said township, who shall be voted for on the same piece of paper: Provided, that in cities of the first class having a popiilation less than eighty thousand in- habitants, which were of that class on the 28th day of March, A. 1). 1SG1, and in all cities of the second class, the corporate limits of which are co-extensive with the township in which the same is situated, justices of the peace and constables for such township shall be voted for on the same ticket with officers for such city, and such return thereof made as is now or may be provided by law upon the election of such officers in other cases. (2.) Sec. 2. Same number to be elected; council to perform the duties of trustees. In all such cases, justices of the peace and con- stables, to the number now allowed, or which may he hereafter allowed, to such township, may be elected by the qualified voters thereof, at the times and in the manner now or hereafter to be pre- scribed for the election of justices of the peace and constables in other townships, except that in townships wherein the -office of township trustee has been abolished, all the rights, powers, and duties in connection with such election devolving upon township trustees in other townships, shall be devolved upon and be per- formed by the city council of such city and the trustees of such incorporated village aforesaid. AN ACT to provide for the trial and removal of municipal officers from office. [Passed May 1, 1871. 08 L. 113.] (3.) Sec. 1. Charge of malfeasance, etc., in office; citation by probate judge. Be it enacted b} 7 the General Assembly of the State of Ohio, That on complaint in writing, under oath, filed with the probate judge of the county in which the corporation is situated, by an elector or citizen of the corporation, signed and approved by four other electors or citizens of said corporation, charging that any member of the council or alderman has received any compensation for his services, directly or indirectly, as councilman, alderman, committeeman, or otherwise, contrary to the provisions of section OFFICERS. 329 ninety-one of the act "to amend an act to provide for the organiza- tion and government of municipal corporations, passed May 7, 1809, as amended April 18, 1870," or that any alderman, member of the council, or any officer of the corporation, is or has been interested, directly or indirectly, in the profits of any contract, job, work, or services, or is, or has been acting as commissioner, architect, super- intendent, or engineer in any work undertaken or prosecuted by the corporation, contrary to the provisions of section ninety-two of the municipal code entitled "an act to provide for the organization and government of municipal corporations," passed May 7, 1869, or that any alderman, member of council, or any officer of the corpora- tion has been guilty of misfeasance or malfeasance in office, the probate judge shall forthwith issue a citation to said party, charged in said complaint, for his appearance before said probate judge within ten days from the filing of said complaint, and also furnish the accused and city solicitor with a copy of said complaint : Pro- vided, that the probate judge shall require the party complaining to furnish sufficient security for costs before acting upon such com- plaint. (4.) Sec. 2. Proceedings thereon. That on the day fixed hy said probate judge for the return of said citation, it shall be the duty of the city solicitor to appear on behalf of said complaint to conduct the prosecution, and the accused may also appear by counsel, and a day shall be set for hearing the cas,e, not more than ten daj-s dis- tant, and if a jury be demanded by either party, the probate judge shall direct the summoning of twelve men in the same manner as is provided in chapter forty-seven, section five hundred and seven- teen, of the act to provide for the organization and government of municipal corporations, passed May 7, 1869: Provided, that in vil- lages and cities in which there is no office of city solicitor, and where the city solicitor shall be accused of any misfeasance or mal- feasance in his office, it is hereby made the duty of the prosecuting attorney of the county to appear on behalf of said complainant to •conduct the prosecution. (5.) Sec. 3. Challenge of jurors. That on the day fixed for the trial of said case, if a jury is impaneled, either party may, in addi- tion to the peremptory challenge now allowed by law in other cases, for good cause, object 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 party charged, or his counsel, shall demand a special venire to fill such vacancy. 330 OFFICERS. (G.) Sec. 4. The trial. That on the day designated for the trial, it shall take place, unless continued on affidavit, for good cause shown, to another fixed time, not exceeding ten days; and on the trial it shall be the duty of the city solicitor to appear for the prosecution, examine witnesses designated by the complainant and such others as he may discover, and either party may have jirocess from the probate judge to compel the attendance of wit- nesses. (7.) Sec. 5. Removal of officer if found guilty ; costs. Should the charges in the complaint aforesaid be sustained on the trial by the verdict of the jury, or the decision of the prob'ate judge when there is no jury, the probate judge shall enter the charges and findings thereon upon the record of the court, and make an order removing said officer from office, and forthwith transmit a certified copy of the same to the president of the council, when the vacancy shall be filled as is now provided by law ; the cost and expenses of the trial shall be charged upon the party filing the complaint, the accused, or the municipal corporation, or distributed among them as the judge may see fit to direct, and shall be collected as in like cases : Provided, that if proceedings in error shall be instituted by the officer complained of, to reverse or vacate the order of the probate court, the officer removed shall not exercise the functions of his office until such order be finally reversed or vacated : Provided, no costs or expenses shall be charged to the accused, if upon such trial he shall be acquitted. Sec 7. [6.] This act shall take effect from and after its passage. AN ACT to limit the power of public officers and agents in making contracts. [Passed and took effect March 30, 1857. 54 L. 77; S. & C, p. 889.] (9.) Sec. 1. Contracts by officers and agents not expressly author- ized, etc. Be it enacted by the General Assembly of the State of Ohio, That it shall be unlawful for any officer or agent of the state, or of any county, township, city, or incorporated village therein, -who may be intrusted with the construction, improvement, or keeping in repair, any public building or work of any kind, or with the management or providing for any public institution of -whatsoever kind, to make any contract or contracts binding or purporting to bind the state or any such county, township, city or OFFICERS. 331 incorporated village, to pay any sura or sums of money not pre- viously appropriated for the purpose for which such contract or contracts are made and remaining unexpended and applicable to such purpose ; unless such officer or agent shall be lawfully and expressly authorized to make such contract or contracts. (10.) Sec. 2. They bind only officer personally . If any such officer or agent shall make, or participate in making, any contract con- trary to the provisions of the foregoing section, he shall be held personally liable for the performance thereof; but the state, county, township, city, or incorporated village, in behalf of which the samo purports to have been made, shall not be liable for the performance thereof. Sec. 3. This act shall take effect from and be in force from and after its passage. AN ACT to provide for appeals in civil action taken from the mayor of any city or incorporated village situated in two or more counties. [Passed February 20, 1875. 72 L. 42.] (11.) Sec 1. Appeals from mayor in certain cases. Be it enacted by the General Assembly of the State of Ohio, That when any civil action shall be brought before the mayor of any city or incorpo- rated village extending into two or more counties, all appeals to any higher court shall be taken to the county where the defendant resides : Provided, that nothing herein contained shall be construed to permit an appeal to any county no part of which lies in such, municipal corporation. Sec 2. This act shall take effect and be in force from and after its passage. 332 PARKS. PARKS. 1. Board of commissioners in cities of the first 0. No money to be paid without certain, class having more than one hundred and statements. fifty thousand inhabitants . 7. How contracts to be let. 2. Meotings Of boards, rules, etc. 8. Liabilities in excess of funds, etc. 3. Minut»s of the proceedings, officers, etc. 9. Moneys, how paid out. 4. Powers of board. 10. Board to make reports and estimates. 5. No commissioner to be interested in contract ; proceedings on charge, etc. AN ACT for the regulation of parks in cities of the first class hav- ing a population of more than one hundred and fifty thousand inhabitants. [Passed May 1, 1871. G8 L. 98.] (1.) Sec. 1. Board of park commissioners. Be it enacted by the General Assembly of the State of Ohio, That the improvement and control of all parks in cities of the first class having a population of more than one hundred and fifty thousand inhabitants, shall be vested in a board of park commissioners, which shall consist of nine members, to be appointed by the mayor, by and with the consent of the common council. They shall hold office for the term of three years, and the terms of those first appointed shall be re- spectively, for one year, for two years, and for three years, so that thereafter there shall be three appointed each year : Provided, that the members of the existing board shall be members of the board created by this act for the remainder of their respective terms. The said commissioners shall be residents of the county in which a city of the first class, as aforesaid, is situated ; and not less than six of the members of said board shall be appointed from the elec- tors of such city. All vacancies in the board caused in any other manner than by the expiration of the terms thereof, shall be filled by the board for the unexpired term. All vacancies caused by the expiration of terms shall be filled by the mayor, by and with the consent of council, and all the members of the board shall serve without compensation. (2.) Sec. 2. Meetings of the board. The regular meetings of the board shall be held monthly or oftener, at the discretion of the ■chairman, and notice thereof shall be sent to the members at least three days previous. It shall be lawful for any three members of the board to call special meetings in the same manner as regular meetings are held, and a majority of the board shall be a quorum to transact business. The yeas and nays shall be taken on any ques- tion involving the purchase or lease of land, the making of any parks. 333 contract, or the expenditure of money, and entered upon their minutes; and it shall require a majority of all the members ap- pointed to said board to authorize any such act. (3.) Sec. 3. Minutes of the proceedings. The board shall cause accurate minutes to be kept of all their proceedings, copies of which, certified by the clerk, shall be received as evidence. They shall have power to employ a clerk, and such officers and employes as they may deem necessary, fix their salaries, and prescribe their duties. The}* shall also have power to make contracts for the im- provement of the grounds, and the erection of the necessary struc- tures thereon. (4.) Sec. 4. Powers of the board. The board shall have power to adopt rules for their government, and for the care, protection, and government of the parks under their charge; and such rules, when approved by the common council, shall have the same effect and may be enforced by the same penalties as ordinances of the cit}* ; nor shall any commissioner, or any other person, whether in the employ of the board or otherwise, have any power to create any liability on account of said board, or the funds under its con- trol, except by express authority of the board, conferred at a meet- ing thereof, duly and regularly convened. (5) Sec. 5. No commissioner to be interested in contracts, etc. No commissioner, officer, or employe of said board, or member of the common council, or officer of the city government, shall be directly or indirectly interested in any contract, or work of any kind what- ever relating to the improvements of any park, and any contract or work in which any such person shall have an interest, shall bo void. It shall be the duty of any commissioner, or any other per- son having knowledge or information of the violation of this sec- tion, forthwith to report the facts to the board of commissioners. The board shall give reasonable notice to the parties interested, and at the earliest convenient day investigate the same, and hear the evidence offered on both sides. They shall have power to com- pel the attendance of witnesses and the production of books and papers, and the presiding officer shall have authority to administer the necessary oaths. If any commissioner be involved in the charge, such commissioner or commissioners shall not again sit or vote in the board, until the result o thef investigation shall be de- termined, announced, and cntei'ed on the minutes of the board. A majority of the board, not involved in the charge, shall be suffi- cient to decide the questions. If any commissioner shall be found, 334 PARKS. upon such inquiry, to have violated the provisions of this section, such finding shall at once operate as an expulsion from the hoard, and such place or places shall be deemed vacant. If any contract shall he found to violate the provisions of this section, it shall at once become void and of no effect, and no money shall be paid for services rendered or materials furnished under the same. The findings and orders of the board under this section shall be con- clusive and binding, until set aside by legal proceedings, instituted and conducted according to the recognized methods of legal pro- cedure, in a court of competent jurisdiction. (6.) Sec. 6. Names of contractors to be filed, etc. No money shall be paid at any time to any person or persons, claiming under a contract with the board, until such person or persons shall have first filed with the board his or their statement under oath, the names of all persons directly or indirectly interested in said con- tract, or in the proceeds or profits thereof, declaring that no other person or persons, other than those named, are interested, and that no person forbidden by section five (5) has any interest in the same. Any person making oath to such statement contrary to the truth, shall be deemed guilty of perjury, and liable to be prosecuted and convicted therefor in any court of competent jurisdiction. (7.) Sec. 7. Public notice to be given of the letting of contracts, etc. No contract exceeding the sum of five hundred dollars shall be made without giving public notice for at least ten days, in some newspaper of general circulation in the city, of the time and place where proposals will be received ; contracts shall be made in writing in the name of the city, with the lowest and best bidders. Each contract shall be construed to contain a provision, that the board may order any alteration therein, addition thereto, or de- duction therefrom, by an order in writing, signed by a person duly authorized thereto, but no extra sum whatever shall be claimed by the contractor or contractors, unless the written order be produced, and also a memorandum, signed by such contractor or contractors, and some person duly authorized thereto by the board, fixing the sum to be allowed. For any reduction in the work to be done, no damages shall be allowed by reason of loss of profits. And all contracts as aforesaid, or any alteration therein, shall be subject to the confirmation of the common council of such city. (8.) Sec. 8. Liabilities in excess of funds forbidden. The board shall have no power in arry way to incur any liabilit}- beyond the amount of the funds which may have been levied for park purposes, or appropriated to their order by council. And all the purchases PHARMACEUTICAL BOARD. 335 or leases of land for park purposes shall be made only by the com- mon council upon the recommendation of said board. (9.) Sec. 9. Park fund. All moneys derived from levies made for park purposes, and all moneys from the general fund appro- priated by council for such purposes, shall be placed in a special fund called the park fund, and shall be disbursed by the treasurer ■of such city, upon a warrant by the auditor, which shall be drawn in accordance with the order of the board, as certified to him by their clerk. (10.) Sec. 10. Report of board. The said board shall annually make a full report to the common council of their proceedings, with a detailed account of their receipts and expenditures, at such timo as council may direct. They shall also make out and forward to council, at any time that they may be required, an estimate of the amount of money necessary to carry on the improvements for the next year, and forward the same to council for their information in making the annual levy. Sec. 11. The provisions of chapter twenty-seven of an " act to provide for the organization and government of municipal corpo- rations," passed May 7, 1S69 [66 L. 149], are hereby declared not to affect cities to which this act is applicable, and this act shall take effect from and after its passage. PHARMACEUTICAL BOARD. 1. Compliance with the act required in certain 5. Provisions of the act not applicable to cities. certain druggists. 2. Appointment of board. G. Qualification of assistants. 3. Registration of apothecaries. 7. Definition of " qualified assistant." 4. Examination of apothecaries and assistants. 8. Penalty for violation of act. AN ACT to regulate the practice of pharmacy in certain cities of the first class, and for other purposes. [Passed May 5, 1873. 70 L. 287. (1.) Sec 1. Compliance with the provisions of this act required. Be it enacted by the General Assembly of the State of Ohio, That from and after the passage of this act, it shall be un- lawful for any person to open or conduct any retail drug or chemical store, as proprietor or manager thereof, or engage in the occupation of compounding or dispensing medicines on prescriptions of physicians, or of selling at retail any drugs, chemicals, poisons, pharmaceutical preparations, or other medi- cines, within the corporate limits of any city of the first class in this state, having a population exceeding one hundred and 336 PHARMACEUTICAL BOARD. seventy-fivo thousand inhabitants, until he shall have complied with the provisions of this act. (2.) Sec. 2. [As amended, January 13, 1875. 72 L. 16.] Ex- it mining board. There shall be nominated, on the first day of the month of June next, and each and every second year thereafter, by the trustees of the incorporated college of pharmacy, or incor- porated association of pharmacists, for the advancement of phar- macy in said city, ten persons from and out of the most skilled and competent pharmacists at the time doing business in the said city ; andfrom and out of the ten persons so nominated, the judges of the court of common pleas of and for the county in which the said city is located shall select and appoint the persons who shall constitute a board, to be styled the pharmaceutical examining "board of the said city. They shall hold office for two years, and until their successors are duly appointed and qualified, and they •shall each of them, within ten days after their appointment, take and subscribe to an oath or affirmation, before some competent officer, that they will faithfully and impartially perform the duties of their office; and any vacancy that may occur shall be filled for the unexpired term by the judge of the court of common pleas aforesaid, from and out of the persons previously nominated, a& provided above. (3.) Sec. 3. Registration of persons engaged in drug or apothecary business. That the pharmaceutical examining board shall keep a "book of registration, open at some convenient place, of which due notice shall be given, in two newspapers of general circulation in the said city. In said book shall be registered the name and place of business of every person duly qualified under this act to con- duct the retail drug or apothecary business ; and it shall be the duty of each and every person now conducting, or who shall here- after conduct the business of retail apothecary in said city, to ap- pear before said pharmaceutical examining board, and be regis- tered, within thirty days after notice. The said board shall de- mand and receive for such registration from the person registered a fee of not exceeding five dollars (§5.00), to be applied to the payment of the expenses arising under the provisions of this act. (4.) Sec. 4. [As amended, January 13, 1873. 72 L. 16.] Cer- tificate of examiners. That the pharmaceutical examining board shall examine every person who shall desire to carry on or engage in the business of a retail apothecary, or that of retailing drugs, chemicals, poisons, or other medicines, or compounding or dispens- PHARMACEUTICAL BOARD. 337 ingof the prescriptions of physicians^ touching his competency and qualifications for that purpose; and upon the majority of said board being satisfied of such competency and qualifications, the board shall furnish such person a certificate of his competency and qualification, which certificate shall entitle the person named therein to conduct and carry on the business aforesaid, upon his complying with the requirements of section three ; and said exam- ining board shall also examine all assistant pharmacists, touching their competency and qualification, and upon any assistant passing a satisfactory examination, shall furnish said person with a certifi- cate setting forth that he is a qualified assistant in pharmacy. Each assistant, on presenting himself for examination, shall pay a fee of two dollars. (5.) Sec 5. Provisions not applicable to certain druggists. That the provisions of section four of this act shall not apply to any person who shall be engaged in the retail drug and apothecaries' business as proprietor of the same, in said cities, at the time of the passage of this act, or who shall hold the diploma of an incorpo- rated college of pharmacy, whose diploma is granted and based •upon a regular and previous term of service in the drug and apothe- cary business, in addition to the instructions received in said college. (G.) Sec. 6. Qualifications necessary for assistants. That no per- son not a qualified assistant shall be allowed by the proprietor or manager of any store to compound or dispense the prescriptions of physicians (except as an aid under the immediate supervision of said proprietor or his qualified assistant), unless he has been at least two years apprenticed in a store where prescriptions of physicians- are compounded and dispensed, and has attended one full course of lectures in chemistry, materia medica, and pharmacy. (7.) Sec 7. Who considered qualified assistants. That a quali- fied assistant, in the meaning of this act, shall be a graduate in pharmacy as provided in section five of this act, or a person hold- ing the certificate of the pharmaceutical examining board, as pro- vided in section four of this act. (8.) Sec 8. Penalty for violating provisions of this act. That all persons violating the provisions of this act relating to registration, shall be liable to a penalty of not exceeding one hundred dollars for each and every week during which he or they shall continue to carry on such business without such registration as provided by this act. And should any injury or damage occur to any person or by any pharmacist violating the provisions of section six of this 22 POLICE. act, said pharmacist shall be liable to pay a penalty not exceeding one hundred dollars, in each and every case, the penalty to be re- covered for the use and benefit of the board of health of the said cit}", before any court of competent jurisdiction. Sec 9. This act shall take effect and be in force from and after its passage. THE POLICE. 1. In cities of first class having a population of 41 two hundred thousand or over police pow- er vested in mayor. 42 ■2. Immediate control of vested in mayor. 43, 3. Regulations to be made by mayor and super- intendent. 44, 4. Appointment and pay of officers. 45. 5. Superintendent and detectives. 4C, C. Clerk of police department. 7. Official oath and bond of officers. 47 8. As to uniforms, taking part in conventions, 48, etc. 49. 9. Mayor may summon and swear witnesses. 10. Disposition of stolen property. 11. Payment to be semi-monthly. 50. 12. Reports of clerk. 51. 13. Levy for support of police. 14. Disabled policemen. 52. 15. Rewards paid into treasury. 16 Appointment of substitutes. 53 17. Cities of the first class having less than one hundred thousand inhabitants may estab- 55. lish board of police. 5G 18. Commissioners to be sworn. 19. Appointment of officers by board. 57. 20. Secretary of board. 21. Board to have entire control of police. 58. 22. General duties of police ; duties of super- 69. intendent. 23. Rules and regulations of board; appoint- 81. nn-nts, etc. 62. 24. Trial and suspension of policemen. 25. Rewards, fees, etc., disposition of. 63. 2'i. Support of disabled policemen. 27. Division of city into precincts ; stations, etc. 28. Special policemen. ' 64. 29. Additional patrolmen. 65. 30. Resignation, reappointment, etc. 66. 31. Disposition of stolen property ; registry. 32. Prisoners and witnesses, lodging and deten- 67. tiou of. 68. S3. Payment of expenses of department. 69. 34. Levy for police purposes. 70. 35. Drawing funds from treasury. 36. Limit to expenditures ; books to be open to 71. inspection. 72. 37. Board to enforce ordinances, quell riots, etc. 73. os. Oath of office by policemen. 3 I. Reports of superintendent, secretary, and 74. board. 40. Police exempt from jury duty. 75. 76. Penalty for using personal violence to policemen. Removal of members of board. Commissioners and policemen not to be candidates for or hold other office. Council to levy tax for police. Deputy superintendent. Policemen not to enter drinking saloon, etc. Office of marshal abolished. Statutes repealed. Division of cities of first class with pop- ulation less than ninety thousand into police districts. Election of police commissioners. Powers of former police commissioners to cease. Mayor may suspend officers until next meeting. Old regulations to continue in force until changed. Contingent fund. Officers may enter buildings to prevent crime. Provisions of act extended to certain cities. Acts repealed. Provisions of act extended to certain cities. As to certain cities of second class. Policemen in office not to be affected by act. Police districts in cities of first class advanced to that grade between decen- nial periods. Police board and powers. Election of police board. Term of office of members of board ; va- cancy, etc. Mayor to act as president ex-officio. Officers, appointment and pay. Powers of board. Board and officers ineligible to other offices. Levy for support of police. Limitation upon expenditures. Reports of superintendent, secretary, and board. Powers of metropolitan commissioners to cease. Limitation of certain acts Same. police. 339 AN ACT for the better regulation of the police force in cities of the first class having a population of two huudred thousand or over, and to repeal an act entitled " an act to establish a board of police commissioners in certain cities of the first class," • passed March 29, 1S73. 70 L. 86. [Passed December 18, 1874, 72 L. 5.] (1.) Sec. 1. Police power vested in mayor. Be it enacted by the General Assembly of the State of Ohio, That in all cities of the first class, having at the last federal census a population of two hun- dred thousand and over, the police powers and .duties shall be vested in and exercised by the mayor of such city, as hereinafter provided. (2.) Sec 2 Immediate control x'ested in. Immediately upon the passage of this act, the mayor shall possess full power and author- ity over the police organization and discipline within such city, and shall have all the powers, rights, and duties in reference to the ap- pointments, selection, confirmation, or removal of the police, and the possession and control of all property, books, records, and equip- ments belonging to the police department in all particulars in such city, as herein provided. (3.) Sec. 3. Mayor and superintendent to make regulations. It shall be the duty of said mayor, together with the superintendent of police, to enact, modify, repeal, and publish, in writing or print- ing, from time to time, orders, rules, and regulations for the general discipline and duties of the police force, in conformity to this act, subject to the approval of the common council. (4.) Sec. 4. Appointment and pay of officers. The police force of any such city shall be appointed by the mayor, and be composed of a superintendent of police; so many captains of police, not to exceed ten ; so many lieutenants of police, not to exceed twenty ; and so many watchmen or patrolmen, not to exceed three hundred, as may be asked by said mayor, and approved and prescribed by ordi- nance of the common council of such city. Said superintendent, captains, and lieutenants of police shall be appointed by the mayor, with the approval of the common council. The officers and mem- bers of such police force shall receive such compensation as shall be fixed by the common council of such city: Provided, that the superintendent of police shall not receive a salary exceeding twen- tj^-five hundred dollars ($2500), five hundred dollars of which sum shall be paid by the county in which said city is situated; captains, not exceeding twelve hundred dollars ($1200) ; lieutenants, not ex- ceeding one thousand dollars ($1000), and patrolmen, not exceeding 340 POLICE. nine hundred dollars (8900) per annum. Each member and officer of the police force shall be a citizen of the United States, and a res- ident citizen for three years of the city in which he shall be appointed, and able to read and write the English language. Ap- pointments on the police force shall be for during good behavior, and physical and mental ability to discharge the duties attached to such appointment; and no member of said police force, unless physically or mentally disabled, except the superintendent, shall be removed until written charges shall be preferred against him for neglect of duty, misconduct, or for the violation of any of the laws of the state or ordinances of said city. All such charges must be in writing, and notice served on the person charged, who may de- fend by himself or counsel, in accordance with the written or printed rules and regulations adopted for the government of said police force. The mayor shall have power to examine, or try and determine, all charges against members of said police force. If the member charged is found guilty as charged, the mayor may fine, suspend, or dismiss him. (5.) Sec. 5. Superintendent. The superintendent of such police force shall be removed at pleasure of said mayor. The mayor shall have power to detail members of the regular force to act as secret detectives, and through the superintendent have control of the same. (G.) Sec 6. Clerk of police department. The mayor shall appoint a clerk, to be styled ." clerk of the police department," at a salary not to exceed twelve hundred dollars per annum, as authorized by the common council, whose duty it shall be to act as secretary for the police department, and to file and preserve all papers and doc- uments relating to said police force, and keep the books of said office. Said secretary shall give a penal bond in the sum of five thousand dollars for the faithful discharge of his duties; said bond to be approved by the mayor, together with the city solicitor, and filed in the city clerk's office. (7.) Sec. 7. Official oath and bond. The said superintendent of police shall give a bond for the faithful discbarge of his duties in the sum of twenty thousand dollars, with sureties to the satisfaction of the mayor and city solicitor, to be approved by the mayor and city solicitor, which shall be filed in the city clerk's office, and there- after, under the direction and control of the mayor, he shall have command and control of the police force of such city. Each officer and member of the police force, before entering upon the discharge of his duties, shall take an oath before the mayor, who is hereby POLICE. 341 authorized to administer the same, to well and faithfully discharge 'he duties of his office; each captain and lieutenant of such police iorce shall give a penal bond for the faithful discharge of his duties, in the sum of five thousand dollars ($5000), with sureties to the satisfaction of the mayor and city solicitor, which shall be filed in the city clerk's office ; and each patrolman shall also give a penal bond in the sum of one thousand dollars (§1000), with sureties, to the satisfaction of the mayor and city solicitor, which shall be filed in the city clerk's office, for the faithful discharge of his duties, and for the payment of any damages that maybe adjudged against him by any competent tribunal for the illegal arrest or imprisonment, or injury by him of any person, for the benefit of such illegally arrested, imprisoned, or injured person. No member of the police force shall receive, or share in, for his own benefit, under any pre- tense whatever, any present, fee, gift, or emolument for police services, other than the regular salary and pay, except by the consent of the mayor and superintendent publicly given and in writing. (8.) Sec. 8. Uniform of police, etc.; vacancies; detail of patrolmen at elections. Every member of said police force, while on duty, shall wear a uniform ,to be prescribed by the mayor, except when on detective duty, and shall at all times, in public, wear an insignia of his office, to be furnished by the mayor. No member of the police force shall be a delegate to, or otherwis take part in any primary or other political convention or election, except to cast his vote. Vacancies occurring in any grade of said police force, except that of the superintendent, shall be filled by the mayor from the next lowest grade. It shall be the duty of the superintendent of police to detail two patrolmen to attend and preserve order at each election poll in every primary or other election. (9.) Sec. 9. Mayor to compel attendance of witnesses, etc. The said mayor shall have power to summon and compel the attendance of witnesses before him, whenever deemed necessary, and to admin- ister oaths or affirmations to any person appearing or called before him ; and any one swearing falsely in any proceeding before him shall be punishable for the same offense, as in any court of record. (10.) Sec. 10. Disposition of stolen property , etc. All stolen prop- erty, or property found, taken by members of the police force, shall be kept under the control of the police department. Every such article shall be entered in a book kept for the purpose, together with the name of the owner, the name of the place where found, when and from whom taken, and name of the officer recovering it, 342 police. together with the receipt of the person claiming the same. The said police department shall keep a book for the registry of lost, stolen, or missing property, for the general convenience of tho public, and for the use of the police force of the city; also books of record, wherein shall be entered the name of each member of the police force, the time and place of his nativity, the time and place he became a citizen, if born out of the United States, his age, former occupation, number in family and residence thereof, date of appointment, and if dismissed from the force, the date and cause therefor; and in such book shall be entered all arrests made by such member, and any special service deemed meritorious by the superintendent of police. There shall also be kept and bound all annual police returns, which shall contain all statistical information connected with the police government of the city during the pre- ceding year. (11.) Sec. 11. Payment of compensation of members of police. The compensation of membei'S of the police force shall be payable semi- monthly ; and it is hereby made the duty of the common council of such city to make the necessary appropriations out of the proper city funds for such semi-monthly payments. The clerk of the police department shall semi-monthly draw his warrant, attested by the mayor, in favor of each member of the police force, for the amount of salary due him, which shall be presented to the city auditor, who shall thereupon draw his warrant therefor upon the city treasurer, payable to such member, and such treasurer shall pay the same. (12.) Sec. 12. Monthly report of police clerk. It shall be the duty of the said clerk to make a monthly report, in writing, to the auditor of such city, attested by the mayor, of the expense incurred by the police department for the current month, other than the salaries of the officers and members of the police force, such as ad- vertising, printing, stationery, postage, telegrams, fuel, lights, and feeding of prisoners ; and such auditor shall thereupon promptly certify said report, if found correct, to the treasurer of the city, who shall pay the amount thereof to the clerk of the police department, out of the proper fund provided therefor, taking his voucher therefor. (13.) Sec. 13. Requisite fund to be estimated and reported. The fund required for the payment of the clerk, officers, and policemen berein named, and for all the other expenses that may be incurred in carrying out the provisions of this act, shall be annually esti- mated by the mayor, and reported to tbe city council of such city police. . 343 on or before the first Monday in May in each year, for revision, and to report to the auditor of the county the percentage to be levied for said purposes in pursuance to law. (14.) Sec 14. Salary of member disabled in discharge of duty. Whenever any member of the police force, in actual performance of his duty, shall become bodily disabled in consequence of the performance of such duty, he shall continue to draw his regular salar} r , at the discretion of the mayor, for a period not to exceed one month. (15.) Sec. 15. Disposition of gifts, proceeds of sales, etc. All re- wards, fees, and gifts in money, and the proceeds arising from the sale of unclaimed goods and other things, after deducting all ex- penses incident thereto, shall be paid to the city treasurer, to tho credit of the police fund ; all goods unclaimed for the period of one year shall be sold at public auction by the auditor of said city. (16.) Sec. 1G. Substitutes to fill vacancies. The mayor may ap- point a sufficient number of substitutes to fill the vacancies occa- sioned by the absence of any member of said force, and such sub- stitutes shall receive condensation only for such time as they may serve, and the amount of said compensation so allowed shall be de- ducted from the pay of the absent members. Sec. 17. Repeal. And the act entitled "an act to establish a board of police commissioners in cities of the first class," passed March 29, 1873 (70 L. 8G), is hereby repealed. Sec. 18. This act shall take effect and be in force from and after its passage. AN ACT authorizing the appointment of metropolitan police com- missioners in cities of the first class, with a population of less than one hundred thousand inhabitants at the last fedei-al census. [Passed April 5, and took effect May 1, 18G6. 63 L. 104; S. & S., p. 816.] (17.) Sec 1. [As amended, April 2, 1868. 65 L. 45; and March 11, 1872. 69 L. 28.] Cities of first class of less than 100,000 inhabitants may establish police board. Be it enacted by the Gen- eral Assembly of the State of Ohio, That all powers and duties con- nected with, and incident to the government and discipline, in cities of the first class with a population of less than one hundred and fifty thousand and over ninety thousand inhabitants at the last federal census, shall be, as hereinafter more especially provided, vested in and exercised by a board of police in each city, composed of four commissioners of police, together with the mayor of said 344 police. cities, who shall be ex-officio a member of said board and the presi- dent thereof, a majority of whom shall constitute a quorum for the transaction of business. * Secs. 2 and 3 repealed by act of April 2, 1868. [65 L. 45 ; S. & S., pp. 811, 815.] (18.) Sec 4. [As amended, March 11, 1872. 69 L. 28.] The persons severally elected commissioners of police by virtue of this act, shall, before exercising the duties thereof, be duly sworn to a faithful performance of the same, and, until the said commissioners are duly qualified, the mayor of any city of the first class is hereby invested with such powers as are herein provided for the board of police commissioners, with full power to execute the same. (19.) fSEC. 5. [As amended, April 2, 1868. 65 L. 45; S. & S., * Sec. 2. [As originally passed. Commissioners, how appointed, term of office Immediately upon the passage of this act, and thereafter, from time to time, as ri quired by this act, there shall be appointed by the governor, by and with consent of the senate (provided during any recess of the senate the governor may appoint, subject to the thereafter consent of the same), from the qualified electors in each of the said cities, four freeholders, who, together witli the mayor, ex officio, shall be the chief officers of said metropolitan police, one of which commissioners so ap- pointed by the governor, shall hold office for the term of two years, and which shall expire on the first day of May, eighteen hundred and sixty-eight (1SG8), one of which commissioners so ap- pointed shall hold office for tl.e term of four years, and which shall expire on the first day of Ma3', eighteen hundred and seventy (1870), one of which commissioners so appointed shall hold office for the term of six years, and shall expire on the first day of May, eighteen hundred and seventy-two (1S72), one of which commissioners so appointed eliall hold office fur the term of eight years, and shall expire on the first day of May, eighteen hundred and seventy-four (1874). Sec. 3. Vacancies filled by governor. The term of office of each of said commissioners of metro- politan police, after the respective termination of the terms aforesaid, shall be eight years, and the governor shall appoint, by and with the advice and consent of the senate (provided, that during any recess of the senate the governor may appoint, subject to the thereafter consent of the same), from the qualified electors and freeholders of said city, a successor to the person whose term shall be about to expire as such commissioner. Any vacancy caused by the death, removal, or resignation of any commissioner in said board, shall be filled for the unexpired term by the governor, as aforesaid. Sec. 4. Odh required of commissioners. The persons severally appointed commissioners of metropolitan police by virtue of this act, shall, before exercising the duties thereof, be duly sworn to a faithful performance of the same, and file in the office of the secretary of state a cer- tified copy of such qualification. t Sec. 5. [As originally passed.] Appointment of superintendent, captain , patrolmen , and detectives; board may have power to remove, suspend, etc., any member of police force. The said board of metropoli- tan police shall at any time have power to appoint a superintendent of the police force, a captain of police, and one captain in addition for each fifty patrolmen called into service more than the first fifty, and a sergeant of police to each twelve patrolmen, and also regular or compensated patrolmen not exceeding one to each one thousand inhabitants as shown by the last federal census : Provided, that the number of said patrolmen may be increased by and with the consent of the city council ; and provided also, that the said board shall have the power, in cases of emergency, to appoint as many special patrolmen as they may think proper, but such appoint- ment shall be reported to and be subject to the action of the city council at its next meeting. The board may, from the patrolmen, appoint detectives, not exceeding three in number, who shall act as secret police or detectives, and may each receive an additional compensation of one hundred dollars per year ; and when from any cause a vacancy shall exist in the number so first appointed, the board m^y appoint to said vacancy the patrolman which the record required to be kept, as hereinafter provided, shall show to be most meritorious. Said board shall also have power, for cause to be assigned on a public hearing, and on due notice according to rules to be police. 345 p. 812.] Appointment of officers by the board. The said board of police shall at anytime have power to appoint a superintendent of the police force, a captain of police, and one captain in addition for each fifty patrolmen called into service more than the first fifty, a sergeant of police to each twelve patrolmen, a roundsman of police for each police precinct; and also regular or compensated patrol- men, not exceeding one to each seven hundred and fifty inhabitants, as shown by the last federal census : Provided, that the number of said patrolmen may be increased by and Avith the consent of the city council ; and provided, also, that said board shall have the power, in cases of emergency, to appoint as many special patrol- men as it may think proper, but such appointment shall be re- ported to and be subject to the action of the city council at its next meeting. The board may, from the patrolmen, appoint detectives, not exceeding six in number, who shall act as secret police or detect- ives; and when from any cause a vacancy shall exist in the num- ber so first appointed, the board may appoint to said vacancy the patrolmen which the record required to be kept as hereinafter pro- vided, shall show to be most meritorious. Said board shall also have power, for cause, to be assigned on a public hearing, and on due notice, according to rules to be promulgated to them, to remove or suspend from office, or for a definite time deprive from pay, any member of such police force ; to make rules and regulations for the government and discipline of said force, and shall cause the game to be published, and to make and promulgate general and special orders to said force through the superintendent of police. (20.) * Sec. 6. [As amended, April 2, 1868. 65 L. 45 ; S. & S., p. 812.] Secretary of board and his salary. That said board shall appoint some suitable person to act as secretary, who shall receive such annual salary as may be determined upon by the board of police, and shall perform such duties as are hereinafter provided, and shall hold his office during the pleasure of said board. (21.) Sec 7. Board to have entire control of policemen. Said board shall assume and exercise the entire control of the police force of said city, and shall possess full power and authority over the po- promulgatid by them, to remove or suspend from office, or for a definite time deprive from pay, any member of such police force, to make rules and regulations for the discipline and govern- ment of said force, and shall cause the same to be published ; and to make and promulgate gen- eral and special orders to said force, through the superintendent of police. * Sec. G. [As originally passed.] President and secretary of board. The said board shall appoint one of their own number to act as president, and some other person to act as secretary, and Ote secretary (fhall receive such annual salary as may be determined upon by the board of police, and shall perform such duties as are hereinafter provided, and shall hold his office during the pleasure of •aid board. 34G police. lice organization, government, appointments, and discipline within said cities. It shall have the custody and control of all public property, books, records, and equipments belonging to the police department, and shall have power to erect and maintain all such lines of telegraph in such places within the said city, as for pur- poses of police the board shall deem necessary, whenever the com- mon council shall authorize the establishment of such telegraph line or lines, and provide for the cost thereof. (22.) *Sec. 8. [As amended, April 2, 18G8. 65 L. 45 ; S. & S., p. 812.] General duties of police force ; duties of superintendent. It shall be the duty of the board of police, and of the force hereby constituted, at all times of the day and night, within the bounda- ries of said cities, to preserve the public peace, to prevent crime, and arrest offenders, to protect rights of persons and property, to guard the public health, to preserve order, to remove nuisances existing in public streets, roads, places, and highways, to report all leaks or other defects in water-pipes and sewers to the proper au- thorities, to provide a proper force at every fire, in order that thereby the firemen and property may be protected, to protect strangers and travelers at steamboat and ship landings and rail- way stations, and generally to obey and enforce all ordinances of the city council, criminal laws of the state and of the United States. Whenever any crime shall be committed in said cities, whether the person or persons accused or suspected of being guilty shall flee from justice or not, the superintendent of police shall imme- diately report to the chief of detectives all facts winch may have come to his knowledge concerning the offense, or the accused or suspected parties ; and the board of police may, in their discretion, authorize any person or persons belonging to the police force, to pursue and arrest such accused or suspected person or persons, and return them to the proper criminal court having jurisdiction of the offense, for trial. *Sec. 8. [As originally passed.] General duties of police ; qualifications, suspensions, removals, etc. It shall bo the duty of the board of police and of the force hereby constituted, at all times of the diiy and night, within the boundaries of the said cities, to preserve the public peace, to pre- sent crime and arrest offenders, to protect rights of persons ami property, to guard the public health, to preserve order, to remove nuisances existing in public streets, roads, places and high- ways, to report all leaks or other defects in water-pipes and sewers to the proper authorities, to provide a proper force at every fire, in order that thereby the firemen and property may be pro- tected, to protect strangers and travelers at steamboat and ship landings and railway stations, and generally to obey and enforce all ordinances of the city council, criminal laws of the state and United States. Whenever any crime shall be committed in said cities, and the person or persons accused or suspected of being guilty shall flee from justice, the said board of police may, in their discretion, authorize any person or persons belonging to the police force to pursue and arrest such accused or suspected person or persons, and return them to the proper criminal court having jurisdiction of the offense, for trial. police. 347 (23.) *Sec. 9. [As amended, April 2, 1868. 65 L. 45 ; S. & S., p. 812; and March 11, 1872. 69 L. 28.] Rules and regulations of board; appointments, removals, vacancies, compensation, and salaries; fees and gifts prohibited; exceptions. The qualification, enumera- tion, and distribution of duties, mode of trial and removal from office of each member of said police force, shall be particularly de- fined and prescribed by rules and regulations of the board of po- lice; and no person shall be appointed to or hold office in the po- lice force aforesaid, who is not a citizen of the United States and a resident of the city; and provided that no officer or patrolman shall be removed therefrom, except on written charges preferred against him to the board of police, and after an opportunity shall have been afforded him of being heard in his defense ; but the board of police shall have power to suspend any member of the po- lice department of the city, pending the hearing of the charges- j>referred against him ; and provided, that whenever any vacancy shall occur in the office of captain of police, the same may be filled by an appointment from among the persons then in the force, as- Sr.c. 9. [As originally passed.] Vacancy in office of captain, how filled ; no compensation to com- missioners; salary of superintendent, captain, patrolmen, etc. ; fees, gift, present, etc., to. police forbidden, except l>n consent of board. The qualification, enumeration, and distiibution of duties, mode of trial, and removal from office of each member of said police force, shall be particularly defined and prescribed by rules and regulations of the board of police ; and no person shall be appointed to, or hold office in, the police force aforesaid, who is not a citizen of the United States, and a resident of the Stale of Ohio, or who shall ever have been nonvicted of crime ; and provided, that no person shall be removed therefrom, except upon written charges preferred against him to the board of police, and after an opportunity shall have been afforded him of being heard in his de- fense ; but the board of police shall have power to suspend any member of the police department of the city, pending the hearing of the charges preferred against him ; and, provided, that when- ever any vacancy shall occur in the office of captain of police, the same may be filled by an ap- pointment from among the persons then in the force as sergeants of police, and a like vacancy in the office of sergeant of police may be filled by appointment from among the persons then in office as police patrolmen. The police commissioners shall receive no compensation for their services during their term of office. The superintendent of police shall receive a salary of not ex- ceeding fifteen hundred dollars per annum. Each captain shall receive a salary of not exceed- ing one thousand dollars per annum, and each sergeant a salary not exceeding nine hundred 'dollars. The pay of each police patrolman shall not exceed the sum of eight hundred dollars per annum. The pay, in all cases, shall be fixed by said board of metropolitan police commis- sioners. The salaries shall be paid monthly to each person entitled thereto. No member of the board of police or the police force shall receive or share in for his own benefit, under any pre- tense whatever, any present, fee, gift, or emolument for police service, other than the regular salary and pay provided by this section, except by the unanimous consent of the board of metropolitan police ; nor shall any such member receive or share in any fee, gift, or reward from any persons who may become bail for the appearance of any arrested, accused, or convicted persons, or who may become surety for any such person on appeal from the judgment or de- cision of any court or magistrate, or any fee, gift, or reward, in any case, from any attorney at law who may prosecute or defend any person arrested or prosecuted for any offense within the county in which such cith-s may be situated ; nor shall any such member, either directly or in- directly, interest himself or interfere, in any manner whatever, in the employment or retainer of any attorney to aid in the defense of persons arrested or accused ; and for any violation of either of the foregoing provisions, the person so offending shall bo immediately removed fronx the police force. 348 police. sergeants of police; and a like vacancy in the offices of sergeant of police may be filled by appointment from among the persons then in office as roundsmen of police ; and a like vacancy in the offico of roundsman of police may be filled by appointment from among the persons then in office as police patrolmen. The police commis- sioners shall receive no compensation for their services. The su- perintendent shall receive a salary not exceeding twenty-five hun- dred dollars per annum ; each captain shall receive a salary of not exceeding eighteen hundred dollars per annum ; each sergeant, a salary not exceeding fourteen hundred dollars per annum ; each detective, a salary not exceeding fourteen, hundred dollars per annum ; each roundsman, a salary not exceeding twelve hundred dollars per annum. The pay of each patrolman shall not exceed the sum of one thousand dollars per annum : Provided, the board shall have the power to detail one or more patrolmen as clerks to the superintendent of police, who shall receive a salary not exceed- ing fourteen hundred dollars per annum. The pay in all cases shall be fixed by said board of police commissioners. The salaries shall be paid monthty to each person entitled thereto. No mem- ber of the board of police, or of the police force, shall receive or share in for his own benefit, under any pretense whatever, any present, fee, gift, or emolument, for police service, other than the regular salary and pay provided by this section, except by tho unanimous consent of the board of police; nor shall any such mem- ber share in or receive any fee, gift, or reward from any person who may become bail for any arrested, accused, or convicted per- son, or who may become surety for any such person on appeal from, the judgment or decision of any court or magistrate, or any fee, gift, or reward, in any case, from an attorney at law, who may prosecute or defend any person arrested or prosecuted for any offense within the county in which such cities may be situated; nor shall any such member, either directly or indirectly, interest him- self or interfere in any manner whatever in the employment or re- tainer of any attorney to aid in the defense of any person arrested or accused ; and for any violation of either of the foregoing pro- visions, the person so offending shall be immediately removed from the police force. (24.) Sec. 10. [S. & S., p. 186.] Charge against policemen, trial, suspension, etc. Any citizen of such city, with a view to the trial and suspension or removal from office of any officer or patrolman of the police force, may on oath, in writing, prefer or make before the board charges or complaint touching the character and com- police. 349 petency, or affecting the acts, conduct, or omission of such officer or policeman, or for violation of or misconduct, as defined or prescribed by the rules and regulations of the board ; and said board, after reasonable notice, in the discretion of the board, to the person charged, shall proceed to the trial of said officer or policeman on such charges or complaint, and shall have power to, and shall issue subpenas, attested in the name of the president of the board, to compel the attendance of witnesses, to administer oaths and affirmations, and generally shall, for the purposes of such trial, have and exercise the powers and duties of justices of the peace in civil cases, so far as the same are applicable, and may make an order of removal or suspension for some certain period. If. on such trial, said charges or complaint shall be sustained, such officer or police- man shall pay the cost of such proceedings, and the same may be deducted and withheld from his pa}-, and in case of his suspension, his pay shall also cease from the date of the charges and during the period of suspension. In trials under this section, the same costs shall be charged and taxed as in trials before justices, and be collected on execution, to be issued by the police clerk of said cities on certificate of the same by the board, and order for execution, said costs when collected to be paid to the treasurer of the board for the benefit of those concerned ; but the board shall not tax or receive any fees for themselves or for any member thereof. (25.) *Sec. 11. [As amended, April 2, 18G8. G5 L. 45; S. & S., p. 813.] Rewards, extra fees, etc., how disposed of. All rewards, fees, proceeds of gifts and emoluments that may be allowed by boards of police, to be paid and given for, or on account of any ex- traordinary services of any member of the police force, and all money arising from the sale of unclaimed property or money, shall be paid into the city treasury, and shall constitute a fund to be called " the police life and health insurance fund," and the persons who shall from time to time constitute the boards of police, are hereby declared the trustees of said fund, and may invest the same as they shall see fit, either in whole or in j>art, and shall have power to draw the same from the treasury for that purpose. * Sec. 11. [As originally passed.] Rewards, fee*, etc., how disposed of '. All rewards, fees, pro- ceeds of gifts and emoluments that may be allowed by the board of police, to be paid and given fur or on account of extraordinary services of any member of the police force, and all moneys arising from the sale of unclaimed property or money shall be paid into the city treasury, and shall constitute a fund to be called the " police life ami health insurance fund," and the persons Who shall, from time to time, fill the office of president of the board of police and that of the treasurer of the cities, are hereby declared the trustees of said fund, and may invest the same as they shall see fit, either in whole or in part, and shall have power to draw the same from the treasury for that purpose. "350 POLICE. (26.) Sec. 12. [S. & S., p. 81G.] How disabled policemen supported. "Whenever any member of the police force in actual performance of his duty, and in consequence of the performance of such duty, shall become bodily disabled, his necessary expenses during the time his disabilities, as aforesaid, continue and consequent thereon, may be paid from the fund provided for in the preceding section, at the discretion of the said board of police. The board shall inquire into the circumstances, and if satisfied the charge upon such fund is correct, may, in writing, order the same to be paid by the draft of the said trustees upon the said fund, each trustee writing his signature thereto; but the provisions of this section shall not apply to special patrolmen appointed as hereinafter provided, at the request and expense of private parties. *Sec. 13 repealed by act of April 2, 1868. [65 L. 45; S. & S.j p. 817.] (27.) Sec. 14. [S.& S.,p. 817.] Board may divide city into precincts and establish stations, etc. It is hereby made the dut} 5- of the board of police, for more effectually distributing and enforcing its police government and discipline to divide the said cities into precincts without regard toward boundaries, and to assign captains of police and sergeants of police to each of the said precincts, as they shall deem for the best interests of said cities. The board may, from time to time, establish a station or sub-station in each precinct or division for the accommodation of the police force on duty therein. It shall promulgate all regulations and orders through the super- intendent of police, and it shall be the duty of the police force to respect and obey the said superintendent, subject to the rules and regulations, and general orders of the board. (28.) Sec. 15. [S. & S., p. 817.] Special policemen. The said board of police is hereby authorized to appoint persons of suitable character who may be in the employment of the city in other branches or departments, special policemen or patrolmen: Pro- vided, such special policemen shall not be paid for their services as policemen either from the police fund or the city or county treasury. Such policemen shall possess the same power as the regular police *Sec. 13. Wlwn police may enter buildings, ulrip, boat, etc. The superintendent, deputy superin- tendent or any captain of police having just cause to suspect any felouy is being, or is about to be committed within any building, public or private, or ou any wharf or iuclosure, or on board of any ship, boat, or vessel within said city, may enter the same at all hours of the day and night, to make all necessary measures for the effectual prevention or detection of all felonies and may take then and there into custody, all persons suspected of being concerned in such felonies, and also may take charge of all property which he or or they shall have then and thero ju-t cans • to suspect has been stolen. The members of said police shall also serve or execute any criminal process issued by the police court of said city or cities. POLICE. 351 patrolmen, and shall obey the rules and regulations of the board, and conform to its general discipline. (29.) Sec 16. [S. & S., p. 817.] Additional patrolmen, how ap- pointed, their powers and duties. The board of police, whenever it shall see fit, may, on the application of any person or persons, showing the necessity thereof, appoint and swear in any number of additional patrolmen to do duty at any place Avithin the cities, at the charge and expense of the person or persons by whom the application shall be made, and the patrolmen so appointed shall be subject to the orders of the board of police, and shall obey the rules and regulations of the board, and conform to its general discipline, and to such other special regulations as may be made, and shall wear such dress or emblem as the board may direct, and shall, during the term of their holding appointment, possess all the powers, privileges, and duties of the patrol force herein pre- scribed : Provided, however, that the party so applying for such appointment shall have first paid into the trust fund hereinbefore provided for, the sum of five dollars for each special patrolman thus appointed, The person so appointed may be removed at any time by the board of police, without assigning cause therefor. (30.) Sec. 17. [S. & S.,p. 817.] Resignations, reappointment, etc., of policemen. No member of the police force, under penalty of forfeiting the pay which may be due him, shall withdraw or re- sign from the police force, unless he shall have given two weeks notice thereof, in writing, to the superintendent of police; no per- son who shall ever for cause have been removed from the police force established by this act, shall be reappointed by the board of police to an}* office in the said police force, except by the unani- mous consent of the board. (31.) Sec. 18. [S. & S., p. 817.] Stolen property, how disposed of ; registry of missing property ; records to be kept. All stolen or other property taken by the members of the police force shall be depos- ited and kept in a place designated by the board of police; and in case of the neglect or refusal of any officer so to deposit the property taken or found in the possession of any person or persons arrested, he shall be deemed guilty of a misdemeanor, and subject to indictment on information, and be fined in a sum not exceeding three thousand dollars, and in no case less than the value of the property, or be imprisoned in the county jail not exceeding one month ; and the sentence of the court in such cases shall operate to vacate the office of the person so convicted. Every such article of property shall be entered in a book kept for that purpose by 352 police. the secretary of the board, together with the name of the owner, if ascertained, and the name of the place where found, and of the person from whom taken, with the general circumstances and the date of its receipt, and the name of the officer recording the same. An inventory of all money and other property shall be given to the party from whom the same was taken ; and/in case the same (shall not, within thirty days after such arrest and seizure, be claimed by any other person or persons, 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 board. In case said money or property shall, within thirty days, be claimed by any other person or persons, it shall be retained by said custodian until after the discharge or conviction of the person from whom the same ■was taken, and so long as the same may be required as evidence in any case in court; and if such claimant or claimants shall establish, to the satisfaction of the police judge, that he or they are the right- ful owners, the same shall be restored to him or them ; otherwise it shall be returned to the accused personally, and not to any attorney, agent, factor, or clerk of such accused person, except upon special order of the board, after all liens and claims in favor of the board and the city, against the same, shall have first been discharged and satisfied. The board shall cause to be kept books for the reg- istry of lost, missing, or stolen property, for the general convenience of the public, and of the police force of the city. It shall also cause to be kept books of record, wherein shall be entered the name of every member of the police force, his time and place of nativity, the time and place where he became a citizen (if he was born out of the United States), his age, his former occupation, number of family, and the residence thereof; the date of appointment or dis- missal from office, with the cause of the latter ; and in every such record sufficient space shall be left against all such entries, wherein to make record of the number of arrests made by such members of the police force, or of any special services deemed meritorious by the captains of police. It shall also cause to be kept in proper books, the accounts of the board, and a record of their proceedings ; and they shall preserve and file copies of all bills audited and al- lowed, and keep an accurate account of all the expenses of the police department. The board of police shall also cause to be kept and bound all police returns and reports. (32.) Sec 19. [S. & S., p. 818.] Board to provide for lodging prisoners ; captains to make reports of prisoners ; prisoners to be tried POLICE. 353 before police court ; witnesses to be detained; bail, etc. It shall be the duty of the board of police to provide, when it shall be re- quired, at the expense of said city or cities, all necessary accom- modations, within such precincts as shall be contained within the boundaries of said city or cities for the station-house required by the board of police, for the accommodation of the police force of such precincts for the lodging of vagrants and disorderly persons r and for the temporary detention of persons arrested for offenses. It shall also be the duty of the board of police to furnish the same suitably, and to warm and light the same by day and night ; and in every case of arrest, the same shall be made known to the captain or sergeant upon duty in the precincts wherein such arrest was made, by the person making the same, and it shall be the duty of the said captain or sergeant, as soon as practicable after such notice, to make written return thereof, according to the rules and regulations of the board of police, together with the name of the party arrested, the offense, the place of arrest, and the place of de- tention. All persons arrested by the officers or members of the police force shall bo detained, while in their custody, only in the places provided for that purpose ; and no trial or examination of any person arrested shall be held in the office of the superintend- ent of the police, or of the board ; but the persons so arrested shall be examined in the police court of said city or cities before the police judge, or, in the absence of the judge, before the ma}-or. Necessary and usual articles of clothing or personal apparel upon the person, or in the possession of persons arrested and detained, shall not be taken or seized by the police, unless there be reason to suspect that the clothing has been stolen or obtained unlawfully. The board of police shall provide suitable accommodations within said city or cities for the detention of witnesses who are unable to furnish security for their appearance in criminal proceedings, and such accommodations shall be in apartments other than those em- ployed for the confinement of persons charged with crime, fraud, or disorderly conduct ; and it shall be the duty of the police judge, in committing witnesses, to have regard to the rules and regula- tions of the board of police in respect to their detention. Every person arrested by the police, charged with the violation of any city ordinance, may give special bail for his appearance to answer to such charge; but no member of the police force shall become or furnish bail for any person arrested. (33.) Sec. 20. [S. & S., p. 819.] Expenses of police, how paid. 23 354 police. The necessary expenses for the maintenance of the police depart- ment, hereby created within the said city or cities, shall be a city charge. (34.) *Sec. 21. [As amended, April 2, 1868. G5 L. 45 ; S. & 8., p. 814.] Levy, etc., for police, Jwiv paid out. It shall be the duty of the board of police to prepare and submit to the city auditor on or before the first day of May in every year, an estimate of the whole cost and expense of providing for and maintaining the police de- partment of said city within the current fiscal year, which esti- mate shall be in detail, and shall be laid by the city auditor before the city council, and the same shall be, by the city council of said city, provided for in the general tax assessment, by levy to be laid on propcrt}" in said city. Said money, when collected, shall be paid into the city treasury, and shall be styled the "police fund," and shall be drawn out therefrom for police purposes of said city, under the fiscal regulations established by this act. (35.) Sec. 22. Police funds, how draicn from treasury. All moneys hereafter to be paid to any person or persons out of the police fund shall be certified by the president or acting president of the board of police, to the secretary, who shall draw his warrant on the treasurer therefor, stating therein the fund to which it is chargeable, and the person to whom payable ; and such warrant shall be countersigned by the president, or, in his absence, by the acting president of the board of police. (36.) Sec. 23. 1 [As amended, April 2, 1868. 65 L. 45; S. & S., p. 814.] What expenses may be incurred by boards ; books and account* to be open to inspection. No expenses, other than salaries and pa} r herein provided, shall be incurred by the board of police, except for rents, record books, stationery, printing, telegraphing, badges, clubs and furniture of necessary rooms and stations, advertising, fuel and lights, and food for prisoners, unless the same shall bo 1 This section is the same, with three exceptions. The old section read where this reads ciiy ; becomes where this reads become, and mayor where this reads city council. The changed words are italicized. *Sf.c. 21. [As originally passed.] Expense of police department. It shall be the duty of the board ot police to prepare and submit to the city auditor, on or before the first day of May, in every year, an estimate of the whole costs and expense of providing for and maintaining the po- lice department of said city within the current fiscal year, which estimate shall be in detail, and shall be laid by the city auditor before the city council, and the same shall be, by the city council of said city or cities provided for in the general tax assessment, by levy to be laid on property in said city. Said money, when collected, shall be paid into the city treasury, and shall be styled tin' " ineircpolitan police fund,'' and shall be drawn out therefrom for police pur- poses of said city, under the fiscal regulations established by this act, and the city treasurer, for the lime being, in hertby appointed treasurer of the board of metropolitan police. police. 355 -expressl} T authorized and provisions therefor made, as a city charge, by the city council of the city within which the expenditures become necessary. The books and accounts kept by said board shall at all times be subject to the inspection of the city council, and the city council may at any time require any information respecting the same, the disclosure of which will not impair the usefulness and efficiency of the police department. (37.) Sec. 24. [S. & S., p. 819.] Board to enforce ordinances, quell riots, etc. ; may issue subpenas, and administer oaths. The board of police shall, at all times, cause the ordinances of the city to be prop- erly enforced ; and it shall be the duty of the said board at all times, whenever consistent with the rules and regulations of said board, and with the requirements of this act, to furnish all the information desired, and to comply with all the requests made by the city coun- cil of said cities, or by the mayor thereof, to quell riots, suppi-ess insurrections, protect the property, and preserve the public tran- quillity. The board of police shall have the power to issue sub- penas, tested in the name of its president, and to compel before it the attendance of witnesses before any proceeding authorized by its rules and regulations. Each commissioner of police, the super- intendent of police, and the secretary of the board of police, are hereby given power to administer, take, receive, and subscribe all affirmations and oaths to any witnesses summoned and appearing in any matter or proceeding authorized as aforesaid, or to any depositions necessary by the rules and regulations of the board. Any willful and corrupt false swearing by any witness or person making oath or deposition before any of the officers last mentioned, to any material fact, in any necessary pi*oceedings under said rules and regulations, shall be deemed perjury, and punished in the manner now prescribed by law for such offense. The provisions of law now existing in respect to attachment of witnesses before the police court and justices of the peace, and to the compulsory attendance of the said witnesses, to appear and testify before them, are hereby applied to the case of witnesses subpenaed before the board of police. (3S.) Sec 25. [S. & S., p. 820.] Oath of office of police. The board of police shall require and make suitable provisions respect- ing security to be entered into by any and all members of the police force, for the taking, by the members of the police force, of an oath of office, and the registiy of the certificate of the same in ix book, to be kept for that purpose by the board, which oath of 356 police. office may be taken before any commissioner of police, who is hereby empowered to administer and receive the same. (39.) * Sec 26. [As amended, April 2, 18G8. 65 L. 45 ; S. & S., p. 814.] He-ports by superintendent, secretary, and board police. The superintendent of police shall make to the secretary of the board daily reports of such facts as may come to his knowledge from the patrolmen, and the secretary shall make to the board monthly reports, in writ- ing, of the state of the police force, with such statistics and sugges- tions as he may deem advisable for the enforcement of the police government and discipline. The board of police shall, on or be- fore the' first Monday in April, in each year, report in writing the condition of the police to the city council. (40.) Sec. 27. [S. & S., p. 820.] Police, etc., exempt from jury. ~No persons holding office under this act shall be subject to jury duty, or to arrest on civil process, while actually on duty. (41.) Sec. 28. [S. & S., p. 820.] Penalty for using personal vio- lence on any policeman. It shall be a misdemeanor, punishable by t a fine not exceeding one hundred dollars, or imprisonment in the county jail not less than one month, nor more than three months, or both fine and imprisonment, for any person, without justifiable or excusable cause, to use personal violence upon any member of the police force, when in the discharge of his duty, or for any per- son, not a member of the police force, to falsely represent himself as being such member with a fraudulent design. (42.) f Sec. 29. [As amended, April 2, 1868. 65 L. 45; S. & S., p. 814.] Removal of members of the board. Either of said commis- sioners of police may at any time be removed by the city council, upon good cause being shown, three-fourths of all the members concur- ring, and in all cases where charges are made. out against a com- missioner, he shall have an opportunity to present evidence in his behalf. (45.) Sec 30. Commissioners and police not to be candidates for or hold other office. Any one of said commissioners, or any member of the police force, who shall, during his term of office, accept or hold any office elective by the people, or who shall, during his term '■Sec. 20. [As originaally passed.] Superintendent must 'make monthly report. The superintendent of police shall make to the board monthly reports, in writing, of the state of the police force, with such statistics and suggestions as he may deem advisable for the enforcement of the polieo government and discipline. The board of police shall, on or before the first Monday in April in each year, report, in writing, the condition of the police within the said cities, to the city council. ■f Sec. 29. [As origioally passed.] Governor may remove commissioners for good cause. Either of said commissioners of police may, at any time, be removed by the governor, upon good cause be- ng shown, and in all cases where charges are made out against a commissioner, he shall have an opportunity to present evidence in his behalf. police. 357 of office, be publicly nominated for any office elective by tbc peo- ple, and sball not, within ten days succeeding the same, publicly decline the said nomination, shall be, in either case, deemed thereby to have resigned, and to have vacated his office as such commissioner. (44.) Sec. 31. [S. &.S., p. 820.] Council may levy tax for ex- pense of police. The city council of said cities are hereby empow- ered and directed, annually, to order and cause to be collected and raised by a tax upon the estates, real and personal, subject to tax- ation according to law, within the said cities, the sums of money as aforesaid, annually estimated for the said total expense of the metropolitan police, authorized by this act. (45.) Sec. 32. [S. & S., p. 820.] Deputy superintendent. In case, at any time, or for any cause, the service of a deputy super- intendent shall be required, the board of police are hereby author- ized to appoint any member of the police force to act in that capacity. (46.) Sec 33. [S. & S., p. 820] Policemen not allowed to enter drinking saloon or gaming-house, etc. No policeman or officer of police shall, while on duty, be at liberty to enter any drinking or gaming-saloon, or other place where liquors are sold to be drank on the premises, or house of prostitution, except for the purpose of discharging some of the duties of his office. (47.) Sec 34. [S. & S., p. 820.] Office of marshal abolished. The offices of city marshal and deputy-marshal of said cities, are hereby abolished, and the duties of said offices shall hereafter be performed by the superintendent of police, or by the captains and sergeants of police, under his directions, in accordance with the provisions of this act ; but this section shall not be operative until the superintendent of police, or captain of police, authorized by this act to be appointed, shall be sworn into office. (48.) *Sec 35. [As amended, April 2, 1868, 65 L. 45; S. & S., p. 814.] Statutes repealed, etc. All statutes, parts of statutes, and provisions of law, inconsistent with the pi-ovisions of this act, are hereby repealed, together with all modes and qualifications of ap- *Sec. 35. [As originally passed.] Statutes repealed; president of hoard mvst give notice of or- ganization. All statutes, parts of statutes and provisions of law, inconsistent with the provisions of this act, are hereby repealed, together with all modes and qualifications of appointment to office as members of police departments, or of elections to office therein, inconsistent with th« provisions of this ait ; such repeal, however, to take effect and become operative only when the board of police appointed by this act shall be duly organized, and a police force shall be appointed by said board and sworn into office. The president of the board of metropolitan police shall notify the citij marshal in writing, and publish a notice in two daily papers published in said cities, stating the fact and time of the organization of the said police force, for the purpose of fixing tha lime when section thirty-four and this section shall become operative 358 police. pointmont to office as members of police departments, or of elec- tions to office therein, inconsistent with the provisions of this act; snch appeal [repeal], however, to take effect, and become operative only when the board of police provided for by this act shall be duly organized, and a police force shall be appointed by said board, and sworn into office. The president of the board of police shall notify the superintendent of police, in writing, and publish a notice in two daily papers of the city, stating the time of the organization of said police force. Sec. 36. This act shall take effect on the first day of May next. AN ACT to amend " an act authorizing the appointment of metro- politan police commissioners in cities of the first class with a population less than one hundred thousand inhabitants at the last federal census," passed April 5, 1866, 63 L. 104. [Passed and took effect April 2, 1868. 65 L. 45.] Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That sections one, five, six, eight, nine, eleven, twenty-one, twenty-three, twenty-six, twenty-nine, and thirty-five of said act, be amended to read as follows ■} * * •* # * (49.) Sec. 2. How cities wider this act districted, and districts changed. That immediately after the passage of this act, it shall be the duty of the city council of cities of the first class, having a population of less than one hundred thousand inhabitants, to pro- vide by ordinance, to be passed by a vote of three-fourths of all the members, for dividing said cities into four districts, by wards, having reference to as equal an apportionment of population and contiguity of territory as may be, to be called police districts, which said districts shall be numbered one, two, three, and four, which said districts shall not thereafter be changed except by or- dinance passed by a vote of three-fourths of all the members of the council.* (50.) Sec. 3. [As amended, March 11, 1872. 69 L. 28.] Election of police commissioners, and, term of office. At the first regular an- nual municipal election in said cities after the passage of this act, there shall be elected, from the qualified electors in each of said cities, four freeholders, who, together with the mayor, ex officio, shall be the chief officers of said police, one of which commissioners 1 These sections are inserted in their proper places in the preceding act. * This Bection as well as sections four anil five may or may not have been repealed by the act of March It, 1872, (89 L. J8), as it is difficult to determine whether the sections intended to bo repealed by that act are the sections of this or the preceding act. police. 359 so elected shall hold office for the term of one year, and which shall expire on the first day of April, eighteen hundred and seventy- three (1873) ; one of which commissioners so elected shall hold office for the term of two years, and which shall expire on the first day of April, eighteen hundred and seventy-four (1874) ; one of which commissioners so elected shall hold office for the term of three years, and shall expire on the first day of April, eighteen hundred and seventy-five (1875) ; and one of which commissioners so elected shall hold office for the term of four years, and shall ex- pire on the first day of April, eighteen hundred and seventy-six (187G.) The respective terms of office of such commissioners to be by them determined by lot. And at each annual election there- after, there shall be elected one member of said board, for the term of four years. Any vacancy caused by death, removal, or resigna- tion of any commissioner in said board, shall be filled for the un- expired term by the city council of said cities. (51.) Sec. 4. Powers of metropolitan police commissioners an- nulled and verted in mayor in certain cases. That from and after the passage of this act, the powers of the metropolitan police commis- sioners then in office, in cities of the first class, having a popula- tion of less than one hundred thousand inhabitants, shall cease, and the entire control of the police force of such cities shall vest in and be exercised by the mayor thereof; and the mayor of any such city is hereby invested with such powers as are herein pro- vided for the board of police commissioners, with full power to exercise the same, until said city shall be districted and commis- sioners elected and qualified as herein provided. (52.) Sec 5. Poiver of mayor to suspend officers of police force. That the mayor of any city of the first class having a population of less than one hundred thousand inhabitants, shall have power to suspend any officer of the police force and appoint a person to perform the duties of such suspended officer until the next regular meeting of the board of police commissioners, when his action shall be submitted to said board, the board shall determine whether such suspension shall be permanent, and if said board shall so deter- mine, they shall proceed to make an appointment to fill the vacancy. (53.) Sec. 6. Old rules and regulations to continue in force until changed. That all rules and regulations for the government of the police force established by the metropolitan police commissioners, as provided for by the act to which this is an amendment, not in- consistent with the provisions of this act, shall continue in force 3G0 POLICE. until altered, amended, or abolished by the board of poliee com- missioners provided for by this act. (54.) Sec. 7. Sections repealed. That sections one, two, three, four, five, six, eight, nine, eleven, thirteen, twenty-one, twenty- three, twenty-six, twenty-nine, and thirty-five, of the act to which this is an amendment, be and the same are hereby repealed. Sec. 8. This act shall take effect and be in force from and after its passage. AN ACT amendatory of and supplementary to an act entitled " an act to amend an act authorizing the appointment of metro- politan police commissioners in cities of the first class, with a •population of less than one hundred thousand inhabitants at the last federal census," passed April 5, 1SG6, and amended April 2, 18G8. (65 L. 45.) [Passed March 11, 1872. 69 L. 28.] Sec. 1. Contingent fund. Be it enacted by the General Assembly of the State of Ohio, That sections one, three, four, five, and nine of said act be amended so as to read as follows ■} (55.) Sec. 2. Contingent fund. That all moneys which shall be collected by the police courts of said cities, for and on account of the service of writs issued by said courts by the police force, shall be paid to said board of police, and such moneys, together with all moneys received from any source whatever, not otherwise provided for by this act by the said board of police, shall constitute a fund to be called " the contingent fund," out of which said contingent fund shall be paid all incidental or extraordinary expenses incurred by the said board, and the payment of which is not otherwise pro- vided for by this act. (56.) Sec. 3. Officers may enter certain buildings. The superin- tendent, deputy superintendent, or any captain of the police, having just cause to suspect that any felony is being, or is about to be, committed within any building, public or private, or on any wharf or enclosure, or on board of an}- ship, boat, or vessel within said city, may enter the same at all hours of the day and night to take all necessary measures for the effectual prevention or detection of all felonies, and may take then and there into custody all per- sons, suspected of being concerned in such felonies, and also may take charge of all property which he or they shall have, then and there, just cause to suspect has been stolen. The members of said 1 These sections will be found inserted in their proper places in the preceding acts. POLICE. 361 police shall also serve or execute any criminal process issued by the police court of said city or cities. Sec 4. That sections one, two, three, four, five, and nine of the act to which this is an amendment, be and the same are hereby re- pealed. 1 Sec. 5. This act shall take effect and be in force from and after its passage. AN ACT supplementary to an act entitled "an act authorizing the appointment of metropolitan police commissioners in cities of the first class Avith a population of less than one hundred thousand inhabitants at the last federal census," passed April 5, 1866, as amended and supplemented April 7, 1868, and March 11, 1872, and to repeal an act therein named. [Passed March 29, 1873. 70 L. 84.] (57.) Sec. 1. Provisions of original act extended. Be it enacted by the General Assembly of the State of Ohio, That the provisions of an act entitled " an act authorizing the appointment of metro- politan police commissioners in cities of the first class, with a popu- lation less than one hundred thousand inhabitants at the last fed- eral census," passed April 5, 1866, as amended and supplemented April 2, 1868, and March 11, 1S72, be and they are hereby extended, 80 far as the same are applicable, to cities of the second class, having a population of more than thirty thousand and less than thirty-five thousand inhabitants at the last federal census : Pro- vided, that the first board of commissioners in said cities of the second class, shall be appointed by the governor, and shall hold their office for one, two, three, and four years, respectively, from the first Monday of April, 1873, and until their successors are elected and qualified, as provided in said act. The respective terms of office of said commissioners, appointed as above provided, to be by them determined by lot. (58.) Sec. 2. That an act entitled "an act to amend section one of an act entitled an act to repeal an act entitled an act supple- mentary to an act entitled an act authorizing the appointment of metropolitan police commissioners in cities of the first class, with a population of less than one hundred thousand inhabitants at the last federal census, passed April 5, 1866, passed March 29, 1867, and to provide a police for cities of the second class, passed April 16, 1868," passed May 6, 1869, be and the same is hereby repealed; See note to preceding act. 362 POLICE. and the cities therein mentioned, except as herein provided, shall organize their police under the general laws applicable to that sub- ject: Provided, that the officers of police and the regular police now in office, in cities acting under the above recited act, passed May G, 1SG9, shall continue in office until their successors are ap- pointed and qualified. Sec. 3. This act shall take effect and be in force from and after its passage. AN ACT supplementary to an act entitled an act supplementary to an act entitled "an act authorizing the appointment of metro- politan police commissioners in cities of the first class, with a population less than one hundred thousand inhabitants at the last fedei-al census, passed April 5, 18G6, as amended and supple- mented April 7, 18G8, and March 11, 1872, and to repeal the act therein named," passed March 29, 1873. (70 L. 84.) [Passed April 3, 1874. 71 L. 63.] (59.) Sec. 1. Election of police commissioners. Be it enacted by the General Assembly of the State of Ohio, That the provisions of an act entitled " an act authorizing the appointment of metropol- itan police commissioners in cities of the first class, with a popula- tion less than one hundred thousand inhabitants at the last federal census," passed April 5, 1866, as amended and supplemented April 2, 1868, and March 11, 1872, be and they are hereby extended, as far as the same are applicable, to cities of the second class having a population of more than thirty thousand and less than thirty-five thousand inhabitants at the last federal census: Provided, that at the first regular annual election after the passage of this act, in said cities of the second class having a population of more than thirty- one thousand at the last federal census, there shall be elected from the qualified electors in each of said cities, four freeholders, who, together with the mayor ex officio, shall be the chief officers of said police, one of which commissioners so elected shall hold office for the term of one year, which shall expire on the second Monday of April, 1875 ; one of which commissioners so elected shall hold office for the term of two years, and which shall expire^bn the second Mon- day of April, 1876 ; one of which commissioners so elected shall hold office for the term of three years, and shall expire on the second Monday of April, 1877; and one of which commissioners so elected shall hold office for the term of four years, and shall expire on the second Monday of April, 1878. The respective terms of office of POLICE. 363 such commissioners to be by them determined by ballot: Provided further, that the commissioners appointed under the provisions of the above recited act, shall continue in office until their successors are elected and qualified under this act, and all officers of police appointed hy the commissioners appointed under the provisions of the above recited act shall remain in office until the second Monday of April, 1874, and until the appointment of officers of the police by the board of commissioners provided for by this act and no longer: Provided, further, that the commissioners elected under the provisions of this act shall be called "city" police commis- sioners. (GO.) Sec. 2. Section one of the above recited act be and the same is hereby repealed, so far as the same applies to said cities of the second class, having a population of more than thirty-one thou- sand at the last federal census. Sec 3. This act shall take effect and be in force from and after its passage. AN ACT supplementary to an act to provide a police for cities of the second class, passed April 16, 1868, (65 L. 94), as amended May 6, 1869, (65 [66~\ L. 141). [Passed May 2, 1871. 68 L. 132/J (61.) Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That the first and second sections of said last-mentioned act be so amended as to read as follows, to wit: "Sec 1. Applicable to certain cities. Sections one and two of the above-recited act, shall, in addition to the cities already included therein, apply to cities of the second class, having a population of eleven thousand and not exceeding twelve thousand inhabitants at the last federal census." (62.) Sec 2. Police in office not affected. This act shall be in force from and after its passage ; provided, the regular policemen,, if any there be, appointed under the act to which this is amenda- tory, shall remain in office until the appointments are made as pro- vided for in this act. [This act contains no repealing clause.] AN ACT to provide for the organization, regulation, and more efficient government of the police in cities of the first class, which have been advanced to that grade between decennial periods. [Passed May 5, 1868. 65 L. 151 ; S. & S. 808.] (63.) Sec 1. Districts for police purposes in certain cities. Be it 364 police. enacted by the General Assembly of the State of Ohio, That cities of the first class, which have been advanced to that grade between -decennial periods, be and they are hereby divided into the same number of police districts as there are wards in such cities. Such police districts shall be bounded as the wards of such city are bounded and numbered as said wards are numbered, the first ward consti- tuting the first police district of such city, the second ward consti- tuting the second police district, and so on, each of such wards con- stituting a police district of such city. [64.] Sec. 2. Police board, its powers and duties. All powers and duties connected with, and incident to the appointment, regulation, and government of a police force, or connected with, and incident to, the police power and government of such city, shall, in all cities of the class named in section one of this act, be vested in a police board, to be elected in the manner hereinafter specified. [65.] Sec. 3. Election of police board. On the second Tuesday of May, 1868, the qualified electors of each of said police districts shall, by a plurality of votes, elect one member of the police board, who shall be a resident of, and have the qualifications of an elector in the police district for which he is elected. lG6.~\ Sec 4. Term of office of members of police board ; vacancies, how filed. The term of office of members of the police board shall be two 3^ears, and until their successors shall be elected and quali- fied ; provided, however, that of the number elected at the first election to be held under the provisions of this act, the members of said board who are elected from police districts with even num- bers shall hold said office two years, and the members who are elected from police districts with odd numbers shall hold their office one year ; and thereafter elections of members of the police board shall be held in such police district at the regular annual city election, according as the term of office of the member of the police board from that district shall expire. The city council shall have power to fill any vacancy that may occur in the police board by appointing a member thereof who shall hold office until the next regular city election, when a member shall be elected from the proper police district to fill such vacancy for the unexpired term ; provided, that the city council shall appoint no person as a mem- ber of said police board who is not a resident of and elector in the j)olice district for which he is appointed. [67.] Sec 5. Mayor to be president ex-officio. The members of the police board so elected, and the mayor of such city who shall be ex-officio a member shall constitute the police board of such, police. 365 city. The mayor shall, when present, act as president of such board, and a majority of the members shall constitute a quorum for the transaction of business; before entering upon the duties of said office each member shall take and subscribe to an oath or affirma- tion faithfully and honestly to perform its duties. (68.) Sec. 6. Officers of police board, salaries, etc. Said police board shall have power to appoint one captain of police, who shall also be acting superintendent, whose salary shall be fixed by the police board, but shall not exceed twelve hundred dollars per annum; one sergeant of police for every ten patrolmen, whose salary shall not exceed nine hundred dollars per annum, and shall be fixed by the police board ; and such number of patrolmen as the police board ma}* think expedient, but not exceeding one patrol- man for each fifteen hundred inhabitants in such city; the salary of the patrolmen shall be fixed by the police board, but shall not exceed eight hundred dollars per annum. The police board may also appoint detectives or secret police, not exceeding three in number, whose salaries shall be fixed by the police board, but shall not exceed nine hundred dollars per annum. The police board may also appoint a secretary, and define his duties. The secre- tary of the police board shall hold his office during the pleasure of the board, and shall receive such compensation as the board may determine, not exceeding nine hundred dollars per annum. The members of the police board shall receive no compensation for their services. All salaries of the members of the police depart- ment shall be paid monthly. The police board may, in case of emergency, appoint special patrolmen, but shall report to the city council at its next meeting the names and numbers of such special patrolmen, the occasion of their appointment as such, and the length of time for which such appointments are made ; unless the city council shall approve of such appointment, the same shall cease and terminate, and no payment shall be paid to any person for services as special patrolmen until the same shall be approved by the city council. (69.) Sec. 7. Powers of police board ; removals. The police board shall assume, have, and exercise the entire control of the police force of said city, and shall make, publish, and enforce rules and regulations for the government of such police force. It shall also have the custody and control of all public property, books, records, and equipments belonging to the police department. It shall have power at any time, for good cause shown, to suspend or remove any officer or member of the police force, or it may, at any time, 36G police. "by a vote of two-thirds of the membei-s of the board, suspend or remove any officer or member of the police force, without assigning any reason for such suspension or removal. Whenever it shall appear to the satisfaction of the board that any member or officer of the police force has received corruptly from any person any sum of money, gift, fee, or reward, or has used his office for purposes of ■extortion or oppression, it shall be the duty of the board to at once dismiss the person so offending from the police force. The salary of any officer or member of the police force shall cease from the time of his suspension or dismissal. (70.) Sec. 8. Ineligibility to other offices ; removal from office. Any member of the police board, or any officer or member of the police force, who shall hold or accept any office which is elective by the people, shall be deemed thereby to have resigned his office of mem- ber of the police board, or as member of the police force, and such vacancy so created shall be filled in the manner provided by law. The city council shall have power to remove from office any mem- ber of the police board, three-fourths of such council concurring therein, but no member of said police board shall be removed from office, except upon charges made in writing, and after oppor- tunity given to be heard in his defense. (71.) Sec 9. Levy for support of police. It shall be the duty of the police board to prepare and submit to the city council, on or before the first day of May in each year, an estimate of the whole cost and expense of providing for and maintaining the police de- partment of said city within the current fiscal year, which estimate shall be in detail, and shall be laid (by the city auditor) before the city council, and the same shall be, by the city council of said city or cities, provided for in the general tax assessment, by levy to be laid on property in said city. Said money, when collected, shall be paid into the city treasury, and shall be styled the " Police Fund," and shall be drawn out therefrom for police purposes of said city, on the order of the police board, as it may be necessary to pay the expenses of the police department. f 72.) Sec. 10. Expenses limited. No expenses, other than sal- aries and pay herein provided, shall be incurred by the police board, except for rents, record books, stationery, printing, tele- graphing, badges, clubs, and furniture of necessary rooms and sta- tions, advertising, fuel and lights, and food for prisoners, unless the same shall be expressly authorized and provisions therefor made, as a city charge, by the city council of the cities within which the expenditures became necessary. The books and accounts kept by police. 367 said board shall at all times be subject to an inspection of the city council, and the city council may, at any time, require any infor- mation respecting the same, the disclosure of which will not impair the usefulness and efficiency of the police department. (73.) Sec. 11. Daily, monthly, and annual reports. The acting- superintendent of police shall make to the secretary of the board daily reports of such facts as may come to his knowledge from the patrolmen, and the secretary shall make. to the board monthly reports, in writing, of the state of the police force, with such stat- istics and suggestions as he may deem advisable for the enforce- ment of the police government and discipline. The boards of police shall, on or before the first Monday in March in each year, report in writing the condition of the police within said cities to the city council. (74.) Sec 12. Metropolitan police superseded. From and after the passage of this act, the powers and duties of the metropolitan police commissioners shall cease and terminate in cities of the first class advanced to that grade between decennial periods. The city council of cities of that class shall, on and after the passage of this act, assume and exercise such of the powers and duties herein granted and imposed as may be necessary for the government and regulation of the police force of such city; such city council to continue to exercise the powers thus granted until the election and qualification of the police board provided for in this act, and no longer. (75.) Sec 13. Limitation of a certain act. The provisions of an act entitled " an act to authorize the appointment of metropolitan police commissioners in cities of the first class, with a population of less than one hundred thousand inhabitants at the last federal census," passed April 5, 18G6 (63 L. 10-1), and of an act supplement- ary thereto, passed March 29, 1867 (64 L. 80), shall not apply to cities of the first class which have been advanced to that grade between decennial periods, and the said acts of April 5, 1866, and of March 29, 1867, in so far as the same apply to cities of the first class advanced to that grade between decennial periods, be and the same are hereby repealed, together with all statutes, parts of stat- utes, and provisions of law inconsistent with the provisions of this act. (76.) Sec 14. Same. The provisions of an act entitled an act to amend " an act authorizing the appointment of metropolitan police commissioners in cities of the first class with, a population of less than one hundred thousand at the last federal census," 368 THE POOR. passed April 5, 1866 (63 L. 104), passed April 2, 1868, shall not apply to cities of the first class which have been advanced to that grade between decennial periods. Sec. 15. This act shall take effect from and after its passage. THE POOE. 1. Conditions of settlement and exceptions. 8. Removal to other states. 2. Notice to remove pauper. 9. Discharge of convalescent paupers. .'!. Removal of pauper. 10. Disposition of pauper's property. 4. Costs of removal, how paid. 11. Property of decease'! paupers. 5. Relief in special cases. 12. Directors to sell pauper's lands, etc. P. Relief to unsettled paupers. 14. Additional poor tax. 7. Apprenticing paupers. An act for the relief of the poor, and to repeal certain acts therein named. (62 L. 307 ; 68 L. 131.) [Passed April 26, 1872. 69 L. 115.] (1.) Sec. 2. Conditions of settlement. Every person shall be considered to have obtained a legal settlement in any township in this state, in which he or she shall have continuously resided and supported himself or herself for twelve consecutive months, with- out relief, under the provisions of this act, subject to the following exceptions, viz : 1st. An indented servant or apprentice legally brought into this state, shall be deemed to have obtained a legal settlement in any township in which such servant or apprentice shall have served his or her master or mistress for one year continuously. 2d. The wife or widow of any person whose last legal settlement is or was in any township in this state, shall be considered to be legally settled in the same township; but if she shall not have ob- tained a legal settlement in this state, then she shall be deemed to be legally settled in the place where her last legal settlement was previous to her marriage. Sec. 3. The settlement which a person has or shall have legally obtained in any township, shall continue to be therein until he or she shall have obtained a legal settlement elsewhere. (2.) Sec. 6. Notice to remove pauper. "Whenever it shall have been ascertained by the trustees of any township that any pauper therein has a legal settlement in some other township of this state, it shall be their duty, as soon as they shall have learned in what county such township is situated, to cause a notice of the fact to be placed in the postoffiee, addressed to the trustees thereof, if their the toor. 369 1 address is known ; also, a like notice addressed to the auditor of such county, enclosing a postage-stamp, who shall upon receipt thereof, forward the samo forthwith to such trustees. (3.) Sec. 7. Removal of pauper. In addition to giving the notice provided for in the preceding section, the trustees giving the same shall cause such pauper, as soon as his or her health will permit, to be removed to the township, if known, in which he or she is legally settled, unless the trustees thereof, who are hereby author- ized to do the same, shall have previously assumed the care and charge of said pauper ; and thereupon said trustees shall receive and provide for said pauper, in the same manner as if he or she had originally become chargeable therein. (4.) Sec. 8. Costs of removal to be paid, hoiv. The township in which such pauper is legally settled, shall pay to the township whose trustees shall have given such notice, the necessary costs and expenses which have been incurred by them in his or her re- moval, together with all reasonable costs and charges for the relief of such pauper, which shall have been incurred by them, and upon refusal, may be compelled in a civil action brought against such township, in the name of the township entitled to the same, in the court of common pleas of the county in which either of said town- ships may be situated, any other act or statute to the contrary not- withstanding: Provided, that unless the notices required by the sixth section of this act, and placed in the postoffice within three days after the complaint is made, as required by the fourth section of this act, the township furnishing the relief shall only be entitled to recover, as aforesaid, from the time of placing said notices in the postoffice. (4.) Sec. 9. Removal to another state. The trustees of any township may remove any person becoming a charge upon such township, and who has no legal settlement in this state, to the state where such person has a legal settlement, unless such person shall give sufficient security to indemnify such township. (5.) Sec. 14. Relief in special cases. That upon complaint being made or information given to the directors of the infirmary for the accommodation of any city in this state, that any person residing in such city is in a condition that requires public assistance or sup- port, 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 temporaiy or partial relief only, and that for any cause it would not be prudent to re- 24 '0 THE POOR. move such person to the city infirmary, such directors may, in their discretion, afford such relief, at the expense of the city, without re- moving such person to the city infirmary. And the directors of any city infirmary shall have the same power of removing paupers settled in some other township in this state, which, by this act, is conferred on township trustees, and shall have the same right of action against such township as is conferred on township authori- ties in like cases. (6.) Sec. 15. Relief to unsettled paupers. That it shall not be lawful for the directors of any infirmary erected and established in any city for the accommodation of its poor, to 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 tliis state, or whose place of residence is unknown, or to charge the county commissioners of the county with the expense of providing for such persons in the city infirmary; but the directors of such cit} T infirmary shall furnish relief and support to such per- sons in said city infirmary applying therefor, as trustees of town- ships arc, or shall be required to furnish, and shall have the like power of removing such persons as trustees of townships have, or may have: Provided, that the provisions of this section shall only apply to counties in which there is a county and a city infirmary. (7.) Sec. 26. Apprenticing paupers. That the directors afore- said, shall have power to bind out to apprenticeship, all such poor children as may belong to such infirmary; males until the age of twenty-one, and females until the age of eighteen years, in the same manner .trustees of townships are authorized to do; by the pro- visions of the act entitled "An act concerning apprentices and serv- ants : " Provided, that whenever any such children shall be inca- pacitated by reason of some bodily or mental infirmity, from re- ceiving the instruction contemplated in said act, they shall not bind the master or mistress to furnish the same. (8.) Sec. 27. Removal to other states. That in case any person shall be at present, or may hereafter be, in any infirmary; sup- ported as a pauper, whose proper place of residence is in another state, it shall be lawful for the board of directors of such infirmary, to cause such pauper to be removed to his or her proper place of residence, in the same manner as township trustees arc authorized and required to remove persons not legally chargeable in this stale, and all the power and authority vested in the township trustees necessary to carry into effect the provisions of this section, are THE POOR. 371 hereby conferred upon the directors of infirmaries for the purposes herein mentioned. (9.) Sec. 28. Discharge of convalescent paupers. That when any person has been, or shall be hereafter received into any infirmary us a pauper, on account of any infirmity or disease, the directors of such infirmary may, when in their opinion such person is so far restored to health and bodily strength, as to be able to support himself or herself, direct the superintendent of such infirmary to discharge such person therefrom. (10.) Sec. 29. Disposition of property of paupers. In cases where persons are admitted into an infirmary as paupers, whether such person or persons be insane or otherwise, and such admitted person be possessed of, or owner of property, whether real or personal, or having an interest in reversion, or in any other manner legally entitled to any gift, legacy, or bequest, of whatever nature or kind the same may be, the directors may, as soon after such admittance as they may think proper, take possession of all, or of any of such property or other interest such pauper may lawfully bo entitled to, .and sell or dispose of the same as hereinafter pi'ovided ; and the net proceeds arising therefrom shall be applied in whole or in part, under the special direction of the directors, in such manner as they ■may think best, to the maintenance of such person, during the con- tinuance of such person as a pauper in said infirmary; and the said directors may, at their option, admit or reject any person as a pau- per who has not gained a legal residence in the proper county, as a sound discretion and the nature of the case may seem to require. (li.) Sec. 30. Property of deceased paupers. Upon the death of any pauper in an infirmary, or who shall otherwise leave, or be in any lawful manner discharged therefrom, whose property or effects shall have been disposed of, and the avails thereof applied as pro- vided for in the preceding section of this act, and if there remain, at the time of such leaving, a balance due, and in favor of such pau- per, on the books of the institution, such balance shall be repaid by the directors, or other authorized officer, to such pauper or other person legall} T entitled to receive the same. (12.) Sec. 31. Directors to sell pauper's lands, etc. In cases where persons are admitted into the infirmary as paupers, whether such persons be insane or otherwise, and such admitted persons be pos- sessed of or the owners of propertj^, whether real or personal, or having an interest in reversion, or in any manner legally entitled to any gift, legacy, or bequest of whatever nature or kind the same may be, the directors may, as soon after such admittance as they 372 THE POOR. may think proper, take possession of all or any of such property, or other interest such pauper may be entitled to, by giving ten days' notice to the heirs or legal representatives and guardian (if said pauper have a guardian), and shall cause said property when so taken, to be appraised by three disinterested freeholders, and shall advertise and sell or dispose of the same as hereinafter pro- vided, and the net proceeds arising therefrom shall be applied, in whole or in part, under the special direction of the directors, in such manner as they may think best, to the maintenance of such person during the continuance of such person as a pauper in said infirmary, and the said directors may, at their option, admit or re- ject any person as a pauper who has not gained a legal residence in the proper county, as a sound discretion and the nature of the case may seem to require: Provided, that if the guardian, husband, wife, heirs, or persons who may be entitled to the residuary inter- est in the property of said pauper, shall give bond to the state of Ohio, to the satisfaction of the directors, and shall pay into the county treasury of such county, at such times as the directors may require, an amount sufficient to support said pauper while he re- mains in the infirmary, in such case, the directors shall not take charge of said property. (13.) Sec. 39. This act to take effect and be in force from and after its passage. AN ACT to provide temporary relief for the poor in cities of the second class, and in incorporated villages of not less than three thousand inhabitants. [Passed, May 4, 1869. 66 L. 86.] (1.) Sec. 1. Sow additional levy for poor purposes may be made. Be it enacted by the General Assembly of the State of Ohio, That the city council of cities of the second class and the town councils of incorporated villages having a population of not less than three thousand, are hereby authorized to submit the question to the qual- ified electors to levy a tax in addition to the other taxes now authorized by law, of not more than three-fourths of a mill on the dollar; the proceeds of which shall be exclusively applied to the relief of the poor within such city or incorporated village, to be distributed under the direction of a committee composed of one from each ward, or a committee of three in each incorporated vil- lage, appointed annually by the council, who will serve without compensation. Sec. 2. This act shall take effect on its passage. RAILROADS. 373 EAILEOADS. 1. Occupation of streets. 19. Compensation of trustees. 2. Use of two tracks, how regulated. 20. Advance of funds in certain cases. 3. Speed ofrailroads in towns. 21. Rights of bondholders. 4. Council of certain cities of second class may 22. Deeds and actions, in what name com- build railroads and issue bonds for. nicnced. 5. Disbursement of funds. 23. Occupation of streets. 0. Record to be kept. 24. Leasing the road. 7. Security from officers. 25. Authorizing cities of first class, advanced 8. Appropriation of land. to that grado between decennial pe- 9. Power to sell. riods, to build railroads. 10. Certain cities of first class may build rail- 2G. Duty of solicitor and judges. roads, and proceedings for that purpose. 27. Duties of trustees. 11. Duty of solicitor and judges. 28. President of the board, duties, etc. 12. Of the trustees. 29. Security of officers. 13. President of the board ; duties. 30. Removal of trustees. 14. Security of officer*. 31. Appropriation of laud. 15. Removal of trustees. 32. Purchase of right of way. 1G. Appropriation of land for abutments. 33. Portions may be rented or leased. 17. Purchase of right of way. 34. Expenses of election. 18. Leasing or renting of road. AN ACT to provide for the creation and regulation of incorporated companies in the State of Ohio. [Passed May 1, 1852. 50 L. 274 ; S. & C, p. 271.] ■% * * * ijc ^c ^s ^c ^: (1.) Sec, 12. [As amended and took effect, April 15, 1857. 54 X/. 133.] Occupation of streets, public grounds, etc. If it shall be necessary in the location of any part of any railroad, to occupy any road, street, alley, or public way, or ground of any kind, or any part thereof, it shall be competent for the municipal or other cor- poration or public officer, or public authorities, owning or having in charge thereof, and the railroad company to agree upon the manner, and upon the terms and condition upon which the same maybe used or occupied; and if said parties shall be unable to agree thereon, and it shall be necessary, in the judgment of the directors of such railroad company, to use or occupy such road, street, alley, or other public way or ground, such company may appropriate so much of the same as may be necessary for the pur- poses of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the tenth section of this act : Provided, that every railroad com- pany laying doivn any such track or tracks, upon any such public street, road, alley or other public ground, shall be responsible for injuries done to private property by such location, lying upon, or near to such public ground, which may be recovered by civil action brought by the owner or 374 RAILROADS. owners, at any time within two years from the completion of such track or tracks, before the proper court. 1 AN ACT to amend the aet entitled " an act to provide for the creation and regulation of incorporated companies in the State of Ohio," passed May 1, 1852, and to regulate railroad com- panies. [Passed and took effect April 15, 1857. 54 L. 133 ; S. & C, p. 325.] Jfr ^ ?fc vfc 'ffc ¥fc vfc ¥fc ■Slf" (2.) Sec. 4. When two tracks laid in streets, how run. When two or more railroad companies heretofore formed or hereafter to he formed under a general or special law, have laid down or shall hereafter lay down in the same street, alley, public way, or open- ing, two or more tracks of the same gauge, through any city or incorporated village, it shall and may he competent for the city or town council of said city or incorporated village, to require said railroad companies to use said railroad tracks in common, and to pass their locomotives and cars over each of said tracks only in one direction. ■****#**** AN ACT to regulate the speed of railroad locomotives and cars within the corporate limits of any city, town, or village. [Passed March 20, 1851. 49 L. 112 ; S. & C, p. 321.] (3.) .Sec. 1. Speed on railroads in towns. Be it enacted by the General Assembly of the State [of Ohio], That the common council or corporate authorities of any incorporated city, town, or village, in this state, whenever any railroad track is laid into, or through such city, town, or village, shall have authority to ordain, enact and enforce an ordinance regulating the speed of all locomotives and railroad cars within such corporate limits ; provided, such ordinance shall not require a less rate of speed than four miles per hour; and such corporate authorities may bring suit against any engineer, conductor, or railroad cohipany violating such ordinance r 1 This section differs from the section as originally passed only in the addition of the words in italics. "Where a railroad company is authorized hy its charter to divert the location of a highway when it is necessary in the construction of its road, the right must be exercised with due regard to public safety; and the company will be liable- for injuries sustained by travelers on the highway, by reason of its negligence in not erecting proper barriers to guard them from driving into cuts or excava- tions made in the highway, by the company, where such travelers are nut in fault themselves. Potter v. Bunnell, 20 Ohio St. 150. RAILROADS. 375 and assess and collect a fine of not less than five dollars nor more than fifty dollars, for each offense, and costs of suit. AN ACT to authorize cities of the second class, with a population of nine thousand two hundred and twenty-nine, and no more, inhabitants, according to the census of 18G0, to construct a line of railway within the limits of said city. [Passed February 24, 1870. G7L. 11.] (4.) Sec. 1. City council may provide for a line of railway, etc.; provision for interest. Be it enacted by the General Assembly of the State of Ohio, That in cities of the second class, containing a popu- lation of nine thousand two hundred and twenty-nine, and no more, according to the census of 18G0, if the city council thereof shall, by a resolution thereof, passed by a majority of the members elected thereto, declare it to be essential to the interests of such city that a line of railway, to be named in said resolution, should be provided, between termini designated therein, both of which shall be within the limits of said city, it shall be lawful for the city council of such city to borrow, as a fund for that purpose, not to exceed the sum of twenty-five thousand dollars, and to issue bonds therefor, in the name of said city, under the corporate seal thereof, bearing an interest not to exceed eight per centum per annum, payable semi- annually, at such places and in such sums as shall be deemed best by said city council. Said bonds shall be signed by the mayor, and attested by the clerk of said city; and the said city clerk shall keep a register of the same, and the faith of the city shall be ]:>ledged for the redemption of said bonds. And it shall be the duty of the city council annually to levy sufficient tax to pay the interest on and provide a sinking fund for the final redemption of said bonds; pro- vided, that no money shall be borrowed, nor bonds issued, until after the question of providing the line of railway specified in the resolution shall be submitted to a vote of the qualified electors of said city, at a special election to be ordered by the said city council, of which at least ten days' notice shall be given by publication in the newspapers published in said cit} T ; and provided further, that a majority of the electors voting at the said election shall decide in favor of the construction of said line of railway. (5.) Sec. 2. Disbursement of funds. The said city council shall have the control and disbursement of said funds, and shall expend the same in procuring the right of way, and in constructing a single or double-track railway, with all the usual and necessary appen- dages; and for that purpose shall have power and capacity to make 37G RAILROADS. contracts, and to appoint and employ and pay officers and agents, and to acquire, hold, and possess all the necessaiy real and per- sonal property and franchises for that purpose. (G.) Sec. 3. Becord to be kept. The said city council shall keep a record of their proceedings, and they shall also cause to be kept a full and accurate account of their receipts and expenditures in the construction of said line of railway, and publish the same an- nually. (7.) Sec. 4. Security from officers, etc. Said city council shall have power to require and take such security from any officer, agent, or contractor, chosen, appointed or employed by them, as they may deem advisable. The members of said city council shall not become surety for any such officer, agent, or contractor, or be interested, directly or indirectly, in any contract concerning said railway. (8.) Sec 5. Appropriation of land, etc. "Whenever, in the con- struction of such line of railway as herein provided, it shall be necessary to appropriate any land for the foundation of any abut- ments or piers of any bridge across a stream, or for any other pur- pose, or to appropriate any rights or franchises, proceedings shall be commenced and conducted in all respects in accordance with the act entitled " an act to provide for compensation to the owners of private property appropriated to the use of corporations," passed April 8, 1862, and the acts supplementary thereto ; except that the verdict of the jury and the judgment of the court shall be so varied as to suit the case. (9.) Sec. 6. Power to sell, etc. The said city council, when said piece of railway is completed, shall have power to sell, or to rent and lease the right to use and operate the same, upon such terms and conditions as they may deem best for the interests of said city. Sec 7. This act shall take effect and be in force from and after its passage. AN ACT relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants. 1 [Passed May 4, 1869. 06 L. 80.] (10.) Sec 1. Proceedings to establish and maintain a railroad. 1 Courts can not nullify an act of legislation on the vague ground that they think it opposed to a general latent spirit, supposed to pervade or underlie the constitution, but wfiich neither its terms nor its implications clearly disclose. "Walker r. Cincinnati, 21 Ohio St. 14. The act of the general assembly of this state, passed March 4, 1869, entitled : RAILROADS. 377 Be it enacted by the General Assembly of the State of Ohio, That whenever, in any city of the first class having a population exceed- ing one hundred and fifty thousand inhabitants, the city council " An act relating to cities of the first class having a population exceeding one hundred and fifty thousand inhabitants," is not in conflict with the provisions of the constitution in any of the following respects. The conferring authority on the judges of the Superior Court of Cincinnati to appoint trustees to carry out the purposes of the act, is not the exercise of an appointing power by the general assembly, which article 2, section 27, of the constitution forbids. It is not the creation of a new office, but the annexing of a new duty to an existing office. For the same reason, it is not in conflict with article 4, section 14, which pro- hibits judges of the supreme court and the court of common pleas from holding any other office of profit or trust under the authority of this state or the United States. The duty imposed upon the court by this act is of a judicial character. Ibid. Nor does the act conflict with article 2, section 20, of the constitution, which, requires the general assembly, in cases not provided for in the constitution to fix the term of office, and the compensation of all officers. The trustees for whose appointment it provides, are not public officers within the meaning of this provision. Ibid. And finally, the act violates neither the express nor clearly implied prohibi- tions of article 8, section 6, which declares the general assembly shall never authorize any county, city, town, or township, by vote of its citizens or other- wise, to become a stockholder in any joint stock company, corporation, or as- sociation whatever ; or to raise money, or loan its credit to, or in aid of, any such company, corporation, or association. Ibid.. It is well settled in this state, by repeated adjudications, that independent of constitutional prohibitions, it is within the legitimate scope of legislative power to authorize a city to aid in the construction of railroads or other public im- provements in which such city has a special interest, and to impose taxes upon its citizens for that purpose. It follows that it is equally competent for the leg- islature to authorize the entire construction of such improvements by a city having a special interest therein, and to empower the local authorities to pro- vide means therefor by the taxation of its citizens. Ibid. "Where the authority given is to construct a line of railroad having one of its termini in such city, it does not affect the question of power,.that the road, when constructed, will lie mainly outside the State of Ohio. It is the corporate inter- est of the municipality, which determines her right of taxation, and not the location of the road, which may well be constructed with the consent of the state into or through which it may pass. Ibid. The act of April 23, 1872, to authorize counties, townships, and the munici- palities therein named to build railroads, etc. (G9 Ohio L. 84), authorized the raising of money by taxation, which is equally applicable to the unlawful pur- pose of aiding railroad companies, and others engaged in building and operating railroads, as it is to any lawful purpose, and gives to the officers intrusted with the control and application of the money thus raised, no means or power of discrimination as to the lawfulness or unlawfulness of the work or purpose to 373 RAILROADS. thereof shall, by a resolution passed by a majority of the members elected thereto, declare it to be essential to the interests of such city that a line of railway, to be named in said resolution, should be provided between termini designated therein, one of which shall be such city, it shall be lawful for a board of trustees, appointed :is herein provided, and they are hereby authorized to borrow as a fund for that purpose, not to exceed the sum of ten millions of dollars, and to issue bonds therefor in the name of said city, under the corporate seal thereof, bearing interest at a rate not to exceed seven and three-tenths per centum per annum, payable at such times and places, and in such sums, as shall be deemed best by said board. Said bonds shall be signed by the president of said board, and attested by the city auditor, who shall keep a register of the game, and shall be secured by a mortgage on the line of railway and its net income, and by the pledge of the faith of the city, and a tax, which it shall be the duty of the council thereof annually to levy, sufficient, with said net income, to pay the interest and pro- vide a sinking fund for the final redemption of said bonds; pro- vided, that no money shall be borrowed on bonds issued until after the question of providing the line of railway specified in the reso- lution shall be submitted to a vote of the qualified electors of said city, at a specified election to be ordered by the city council thereof, of which not less than twenty days' notice shall be given in the daily papers of the city; and further provided, that a majority of said electors, voting at such election, shall decide in favor of said line of railway. The returns of said election shall be made to the city clerk, and be by him, laid before the city council, who shall declare the result by a resolution. The bonds issued under the au- thority of this section shall not be sold or disposed of for less than their par value. (11.) Sec. 2. Duty of city solicitor ; of the judges. If a majority of the votes cast at said election shall be in tavor of providing the -which it is to he applied, and is thus in contravention of section G, article 8, of the <•> institution and therefore void. Taylor v. Comnrrs of Ross County, 23 Ohio St. 22. Where public credit or money is furnished by any county, township, or municipality of the state to he used in part construction of a work, which under the statute authorizing its construction, must he completed, if completed at all, "by other parties out of their own means, who are to own or have the beneficial control and management of the work when completed, the public money or credit thus used, can only be regarded as furnished for, or in aid of, such parties. Ibib. RAILROADS. 37£ line of railway as specified in the first section, it shall be the duty of the solicitor forthwith to file a petition in the superior court of said city, or, if there be no superior court, then in the court of common pleas of the county in which said city is situate, praying that the judges thereof will appoint five trustees, to be called the trustees of railway (the blank to be filled with the name given to the railway in the resolution) ; and it shall be the duty of said judges to make the appointment, and to enter the same on the minutes of the court. Thej T shall enter into bond to the city in such sum as the court may direct, with one or more sufficient sure- ties, to be appointed by the court, conditioned for the faithful dis- charge of their duties. The bonds so taken shall be deposited with the treasurer of the corporation for safe -keeping. (12.) Sec. 3. Of the trustees. The said trustees and their suc- cessors shall be the trustees of the said fund, and shall have the control and disbursement of the same. They shall expend said fund in procuring the right to construct, and in constructing a single or double-track railway, with all the usual appendages, including a line of telegraph between the termini specified in the said resolution ; and for the purposes aforesaid shall have power and capacity to make contracts, appoint, employ and pay officer* and agents, and to acquire, hold and possess all the necessary real and personal property and franchises, either in this state or in any other state into which said line of railway may extend. They shall also have power to receive donations of land, money, bonds and other personal property, and to dispose of the same in aid of said fund. (13.) Sec. 4. President of the board; duties, etc. The said trustees- shall form a board, and shall choose one of their number president, who shall also be the acting trustee, with such power as the board may by resolution from time to time confer upon him. A majority of said trustees shall constitute a quorum, and shall hold regu- lar meetings for the transaction of business, at their office in the city under whose action they are appointed, but they may ad- journ from time to time to meet at anytime and place they may think proper. They shall keep a record of their proceedings, and they shall cause to be kept a full and accurate account of their receipts and disbursements, and make a report of the same to the city auditor annually, and whenever requested by a resolution of the city council. No money shall be drawn from said fund but upon the order of said board, except their own compensation, which shall be paid out of the same upon the allow- "380 RAILROADS. ance of the court appointing them, and shall be proportioned ac- cording to their respective services. (14.) Sec. 5. Security of officers. Said trustees shall have power to take such security from any officer, agent, or contractor, chosen, appointed, or employed by them, as they shall deem advisable. They shall not become surety for any such officer, agent, or con- tractor, or be interested directly or indirectly in any contract -concerning said railway. They shall be responsible only for their own acts. (15.) Sec. 6. Removal for cause. Whenever the city solicitor of any city under whose action a board of trustees has been ap- pointed as herein provided, shall have reason to believe that any one of said trustees has failed in the faithful performance of his trust, it shall be his duty to apply to the court that appointed said trustee, by petition, praying that such trustee be removed, and another appointed in his place ; and when a vacancy shall occur in said board from any other cause, it shall be filled in like manner. If the said city solicitor shall fail to make application in either of the foregoing cases, after request of any holder of the bonds issued hy said trustees, or by a tax-payer of the corporation, such bond- holder or tax-payer may file a petition in his own name on behalf of the holders of such bonds for like relief, in any court having jurisdiction, and if the court hearing the action shall adjudge in favor of the plaintiff, he shall be allowed as part of his costs, a reasonable compensation to his attorney. (16.) Sec. 7. Appropriation of land for abutments. Whenever in the construction of a line of railway as herein provided, it shall be necessary to appropriate land for the foundation of the abutments or piers of any bridge across any stream within or bordering upon this state, or for any other purpose, or to appropriate any rights or franchises, proceedings shall be commenced and conducted in accordance with the act entitled "an act to provide for compensa- tion to the owners of private property appropriated to the use of corporations," passed April 3, 1852, and the acts supplementary thereto, except that the oath and verdict of the jury and the judg- ment of the court shall be so varied as to suit the case. (17.) Sec. 8. Purchase of right of way, etc. Whenever there shall "be between the termini designated in any resolution passed under this act, a railroad already partially constructed, or rights of way acquired therefor, which can be adopted as part of the line provided for in said resolution, the trustees of said line may purchase the RAILROADS. 381 said railroad and right of way, and pay for the same out of the trust fund. (18.) Sec. 9. Portions may be rented or leased. The said trustees shall have power, as fast as portions of the line for which they are trustees are completed, to rent or lease the right to use and operate such portions upon such terms as they may deem best ; hut such rights shall cease and determine on the final completion of the whole line, when the right to use and operate the same shall be leased by them to such person or company as will conform to the terms and conditions which shall be fixed and provided by the council of the city by which the line of railroad is owned. (19.) Sec. 10. Compensation of trustees. The city council of any city passing a resolution as provided in the first section, may ap- propriate and pay to the said trustees, out of the general fund of said city, such sum as may be necessary for defraying the expenses of the election, and said sum shall be repaid out of said trust fund when raised. Sec 11. This act shall take effect on its passage. AN" ACT supplementary to the act relating to cities of the first class having a population exceeding one hundred and fifty thou- sand inhabitants, passed May 4, a. d. 1869. [Passed March 25, 1870. 67 L. 28.] (20.) Sec 1. Advances of funds in certain cases. Be it enacted by the General Assembly of the State of Ohio, That the city coun- cil of any city of the first class described in the act to which this act is supplementary, may, after trustees have been appointed, as provided in said original act, advance to said trustees, out of any funds of said cit} T , such sum as may be necessary, not exceeding fifty thousand dollars, for carrying the object for which they are appointed into effect ; and said sum shall bo repaid out of the trust fund provided for in said original act, when raised. Sec 2. This act shall take effect on its passage. AN ACT supplementaiy to n the act relating to cities of the first class having a population exceeding one hundred and fifty thou- sand inhabitants," passed May 4, a. d. 1869. [Passed April 8, 1873. 70 L. 139. (21.) Sec 1. Eights of bondholders, etc. Be it enacted by the General Assembly of the State of Ohio, That the respective holders of all the bonds authorized to be issued by the act to which this act 3S2 RAILROADS. is supplementary, are hereby declared to be entitled to bold, by way of mortgage, without any conveyance, the line of railway specified in the resolution of the city council and its appendages and the net income thereof, and all the estate, right, title and in- terest (herein of the city and of the board of trustees of said line, until the respective sums mentioned in said bonds and the int rest thereon shall be fully paid, without any preference one above an- other by reason of priority of date of any such bonds, or of the time when such holder became the owner of the same, or otherwise how- soever. The mortgage lien hereby given is to vest, as fast as rights of way, or lands whereon the works and conveniences used in con- structing, maintaining or operating said railway are acquired or taken by virtue of the powers of the said trustees. Said bonds may be made payable, both as to principal and interest, in gold or lawful money. (22.) Sec. 2. Deeds and actions, in what name commenced. Deeds and contracts may be made, and proceedings for appropriation and actions may be commenced, either in the name of the city providing the line of railway, or in the name of the " trustees of railway," (filling the blank with the name given to the railway in the reso- lution,) and said proceedings may be commenced and conducted either in the court of common pleas or the pi-obate court, as in other cases of appropriation for the use of municipal corporations. (23.) Sec. 3. Occupation of streets. If said trustees shall find it necessary for the purjioses of the railway to use or occupy any street, alley, or other public way, space or ground, or any part thereof belonging to such city, they ma}'- take and use, or occupy the same; and if the municipal authorities having charge thereof shall require said trustees to provide a new street, alley, or other way, space or ground, in place of that so used or occupied, they ma}* acquire, b} T purchase or appropriation, the necessary land, and cause the necessary improvement to be made thereon. (24.) Sec. 4. Leasing the road. In addition to the powei's given to the said trustees in the act to which this is supplementary, they shall have power to contract for completing and leasing the whole line of railway for which they are trustees ; but no such contract and lease shall be made until they shall have prepared and sub- mitted for inspection, as herein provided, a form of lease containing the conditions on which said line of railway will be let and held. After said form is prepared, it shall be printed in full, and notice _given by publication in two or more newspapers of general circu- lation in said city, that said trustees will attend at a stated time RAILROADS. 383 and place, with a printed copy, to hear such suggestions and ob- jections as may be urged in regard to the proposed conditions. Such hearing shall be held for at least three days, and for such further time as the trustees shall deem necessary. A certified copy of the form of lease which they may finally adopt shall be depos- ited with the city auditor, and thereafter no change shall be made in the conditions without a new notice and like hearing. Sec. 5. This act shall take effect on its passage. An act to authorize cities of the first class to build railroads, and to lease or operate the same. 1 [Passed May 4, 1SG9. 6G L. 83.] (25.) Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That in cities of the first class, which have been advanced to that grade between decennial periods, the city council thereof shall, by a resolution passed by a majority of the members elected thereto, declare it to be essential to the interests of such city that a line of railroad, to be named in said resolution, should be provided between termini designated therein, one of which shall bo such city ; it shall be lawful for a board of trustees, appointed as herein provided, and they are hereby authorized to borrow, as a fund for that purpose, not to exceed the sum of five per cent, of the value of the property on the tax duplicate of such city, and to issue bonds therefor, in the name of said city, under the corporate seal thereof, bearing interest at a rate not to exceed seven and three- tenths per centum, per annum, payable semi-annually, at such places and in such sums as shall be deemed best by said board. Said bonds shall be signed by the president of said board and the mayor of such city, and attested b}~ the city auditor or clerk, who shall keep a register of the same, and shall be secured by a mort- gage on the line of railway, and its net income, and by the pledge of the faith of the city, and a tax not exceeding five mills on the dollar, which it shall be the duty of the council thereof annually to levy, sufficient, with said net income, to pay the interest and provide a sinking fund for the final redemption of said bonds; pro- vided, that no mono} 1- shall be borrowed or bonds issued until after the question of providing the line of railway specified in the reso- lution shall be submitted to a vote of the qualified electors of said city, at a special election to be ordered by the council thereof, of which not less than twenty daj-s' notice shall be given in the daily 1 Tbis bill was held not unconstitutional by Judge Pennewill on an applica- tion for an injunction in the Lucas common pleas. 334 RAILROADS. papers of said city ; and provided farther, that two-thirds of said electors voting at said election shall decide in favor of said line of railway. The returns of said election shall be made to the city chile, and be by him laid before the city council, who shall de- clare the result by resolution. The bonds issued under the au- thority of this section, shall not be sold or disposed of for less than their par value. (20.) Sec. 2. Duty of city solicitor; of the judges. If two- thirds of the votes cast at said election shall be in favor of provid- ing the line of railway as specified in the first section, it shall be the duty of the city solicitor forthwith to file a petition in the court of common pleas of the county in which said city is situate, praying that the judges thereof will appoint five trustees, to be called the trustees of railway (the blank to be filled with the name given to the railway in the resolution) ; and it shall be the duty of said judges to make the appointment and to enter the same on the minutes of the court. They shall enter into bond to the city in such sum as the court may direct, with one or more suf- ficient sureties, to be approved by the court, conditioned for the faithful discharge of their duties. The bond so taken shall be de- posited with the treasurer of the corporation for safe-keeping. (27.) Sec. 3. Duties of the trustees. The said trustees and their successors shall be the trustees of the said fund, and shall have the control and disbursement of the same; they shall expend said fund in procuring the right to construct, and in constructing a single or double-track railway, with all the usual appendages, including a line of telegraph between the termini specified in said resolution ; and for the purposes aforesaid, shall have power and capacity to make contracts, appoint, employ, and pay officers and agents, and to acquire, hold, and possess all the necessary real and personal property and franchises in this state; they shall also have power to receive donations in land or money, bonds, and other personal property, and dispose of the same in aid of said fund. (28.) Sec. '4. President of the board, duties, etc. The said trustees shall form a board, and shall choose one of their number president, who shall also be the acting trustee, with such power as the board may, by resolution, from time to time confer upon him. A major- ity of said trustees shall constitute a quorum, and shall hold regu- lar meetings for the transaction of business, at their office, in the city under whose action they are appointed ; but they may adjourn from time to time, to meet at any time they may think proper; they shall keep a record of their proceedings, and they shall cause RAILROADS. 385 to bo kept a full and accurate account of then' receipts and dis- bursements, and make a report of the same to the city council an- nually, and whenever requested by a resolution of the city council.. No money shall be drawn from said fund but upon the order of said board, except their own compensation, which shall be paid out of the same upon the allowance of the court appointing them,, and shall be apportioned according to their respective services. (29.) Sec. 5. Security of officers. Said trustees shall have power- to take such security from any officer, agent, or contractor, chosen, appointed, or employed by them, as they shall deem advisable. They shall not become surety for any such officer, agent, or con- tractor, or be interested, directly or indirectly, in any contract con- cerning said railway. They shall be responsible only for their own acts. (30.) Sec. G. Removal for delinquency, etc. Whenever the city council of any city shall have reason to believe that any one of said trustees has failed in the faithful performance of his trust, it shall be their duty to instruct the city solicitor to apply to the court that appointed said trustee by petition, praying that such trustee be removed, and another appointed in his place ; and when a vacancy shall occur in said board from any other cause, it shall be filled in like manner. If the said city solicitor shall fail to make application in either of the foregoing cases, after request by any holder of the bonds issued by said trustees, or by a tax-payer of the corporation, such bondholder or tax-payer may file a peti- tion in his own name, on behalf of the holders of such bonds, for like relief, in any court having jurisdiction ; and if the court hav- ing the action shall adjudge in favor of the plaintiff, he shall be allowed, as part of his costs, a reasonable compensation for his attorneys. (31.) Sec. 7. Appropriation of land, etc. Whenever in the con- struction of a line of railway, as herein provided, it shall be nec- essary to appropriate land for the foundation of the abutmenta or piers of any bridge across any stream within this state, or for any other purpose, or to appropriate any rights or franchises, pro- ceedings shall be commenced and conducted in accordance with the act entitled an act to provide for compensation to the owners of private property appropriated to the use of corporations, passed April 3, 1S52, and the acts supplementary thereto, except that the oath and verdict of the jury and the judgment of the court, shall be so varied as to suit the case. 25 386 STREET RAILROADS. (32.) Sec. 8. Purchase of right of way, etc. Whenever there «hall be between the termini designated in any resolution passed under this act, a railroad already partially constructed, or rights •of way acquired therefor, which can be adopted as part of the line provided for in said resolution, the trustees of said line may pur- chase the said railroad and rights of way, and pay for the same out of the trust fund. (33.) Sec. 9. Portions may be rented or leased. The said trustees shall have power, as fast as portions of the lino for which they are trustees are completed, to rent or lease the right to use and oper- .ate such portions, upon such terms as they may deem best ; but such rights shall cease and determine on the final completion of the whole line, when the right to use and operate the same shall be leased by them to such person or company as will conform to the terms and conditions which shall be fixed and provided by the council of the city by which the line of railway is owned. (34.) Sec. 10. Expenses of election. The city council of any city passing a resolution as provided in the first section of this act, may apj:>ropriate and pay to the said trustees, out of the general fund of said city, such sum as may be necessary for defraying the expenses of the election, and said sum shall be repaid out of said trust fund when raised. Sec 11. This act shall take effect on its passage. RAILROADS, STREET. 1. Consent of property-holders to street rail- 3. How constructed part within and part roads, when necessary. without the corporation, or extruded. 2. When right maybe appropriated. 4. On what terms council may extend route. AN ACT to amend " an act to provide for and regulate street rail- road companies," passed April 10, 1861, and supplementary thereto. (58 L. 66.) [Passed and took effect March 27, 1866. 63 L. 55; S. & S., p. 137.] Secs. 1 and 2. [Repealed by "act to provide for the organiza- tion and government of municipal corporations," passed May 7, 1860. 66 L. 285.] (1.) Sec 3. 1 [As amended, April 29, 1868. 65 L. 112 ; S. & S.. p. 139.] Consent of property-holders, how obtained. That when any council of any such city or incorporated village, shall grant or give 1 This section differs from the section as originally passed only in the addition of the words in italics. STREET RAILROADS. 387 its consent to the use of the streets or avenues of said city or incor- porated village, for a street railroad, the company or individual, or company of individuals obtaining such grant or consent, shall not proceed to construct said road until the consent in writing of a majority in interest of the owners of the property abutting upon the street or avenue, or part thereof, in which said road is to ho constructed, shall have been obtained and filed with the council of such city or incorporated village, and notice of such filing pub- lished as provided in the preceding section, nor until the council, heing satisfied that such consent has been obtained, shall so declare by ordinance or resolution, excejit as provided in the next succeed- ing section of this act; and for the purpose of determining who are a majority in interest of the owners of such property, reference shall be had to the assessed value of the whole property located upon the street, avenue, or part thereof in which said road is to be constructed. (2.) Sec. 4. Appropriations of street or avenue. That when any company or individual, or company of individuals, shall have ob- tained or shall obtain a grant from or the consent of the council of any city or incorporated village, to use and occupy the streets or avenues of such city or incorporated village for a street rail- road, and shall be unable to obtain the consent of a majority of the owners of any street or avenue to be so used or occupied, or hav- ing obtained the consent of such majority shall be unable to agree with any of them who did not, in giving consent, expressly waive or release any claim for compensation, or with any other owner or owners as to such use or occupation, who shall claim an injury to his or their property, of such character and nature as to entitle him or them to compensation therefor, it shall and may be lawful for such company, individual, or company of individuals, to pro- ceed under the "act to provide for compensation to the owners of private property appropriated to the use of corporations," passed April 30, 1852, to appropriate, as against any such owner or own- ers of lots, the right to use or occupy such streets or avenues, and it shall be sufficient, in the statement, to be filed under said act, to describe the street or avenue, and the lot or lots abutting thereon by the names of the owners thereof, and to state that the right sought to be appropriated is to construct a street railroad in such street or avenue ; provided, that not more than one track shall be laid in any street or avenue without the consent of a majorit}- in interest of the owners of property abutting thereon, being first had and obtained ; and for the purpose of determining what is 388 STREET RAILROADS. a majority in interest, reference shall be had to the assessed value o£ the whole property located upon such street or avenue. AN ACT to amend " an act to provide for and regulate street rail- road companies," passed April 10, 1861, and supplementary thereto, and to repeal section seven of said act. [Passed April 10, 1867. 64 L. 122 ; S. & S., p. 138.] (3.) * Sec. 1. [As amended, February 19, 1870. 67 L. 10.] Exten- sion of roads beyond corporate limits; mutual agreement requisite. Be it enacted by the General Assembly of the State of Ohio, That street or horse railroads may be located and constructed, part within, part without, or wholly without the limits of any city, town, or vil- lage ; and any such road heretofore or hereafter constructed within, or part within, or wholly without the limits of any city, town, or village, whether such village be incorporated or not, may be so constructed or extended along or upon the national road, or any other road, street, avenue, turnpike, public way, or ground, in accordance with the provisions of an act entitled " an act to provide for and regu- late street railroad companies, passed April 10, 1861 ; provided, that, before such construction or extension, the company, public officer, or public authorities, owning or having charge of any such road, along or upon which said railroad is or may be constructed or extended, shall agree with such railroad compan} 7 upon the manner, terms, and conditions upon which the same shall be occupied or used ; and in cases where such construction or extension shall be along or upon the national road, the board of public works of this state shall agree with such railroad company as to the manner of its use and occu- pation ; but such agreement shall not be necessary to the crossing merely of any such road. AN ACT supplementary to " an act supplementary to an act to provide for and regulate street railroad companies," passed March 27, 1860. [S. & C., p. 137, and S. & C, pp. 280, 281. Passed May 7, 1869. 66 L. 140.] * Sec. 1. [As originally passed.] That street railroads maybe located and constructed in part within and part without the limits of any city, towu, or village, and any road heretofore or hereafter constructed within the limits of any city, town, or village, whether such village be incorporated or not, may bo extended without the limits tltereof ; provided, that before such railroad shall be constructed upon any road, street, avenue, turnpike, public way or ground tvithout such limits, the company or public officer, or public authorities owning or having charge thereof, shall agree with the railroad company upon the manner and upon the terms and conditions upon which the same shall bo occupied or used, but such agreement shall not be necessary to the crossing thereof. STREETS AND ROADS. 389 (4.) Sec. 1. Extension of track or street railroads. Be it enacted by the General Assembly of the State of Ohio, That it shall be lawful for the council of any city or incorporated village to grant permission by ordinance to any person or company, owning or having the right to construct any street railroad, to extend their track, subject to the provisions of sections four and five of said act passed March 27, 18GG, on any street or streets where the said council shall deem such extension beneficial to the public. And when any such extension shall be made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by consolidation under existing laws, shall not be increased by reason of such extension or consoli- dation ; said sum shall include the government tax. Sec. 2. This act shall take effect from and after its passage. STREETS AND BOADS. 1. Council of cities and villages may contract for gas and water. 2. Extension of gas-pipes. 3. Construction of telegraphs in cities. 4. Transfer of turnpikes or bridges to corpora- tion. 5. Change of place of toll-gate in such cases. C. Repair of turnpike within municipal cor- poration. 7. Complaint to be served upon company. 8. Condemnation of macadamized roads in cities. 9. No toll to be taken on condemned road. 10. Bondholders need not be made parties. 11. Incorporated villages may levy tax to con- struct free turnpikes. 12. Issuing bonds for free turnpikes. 13. Tax to pay bonds. 14. Improvement of road terminating in cities. 15. Continuing road into adjoining counties. 16. Council may aid in construction of free turnpikes. 17. Road tax, how paid and expended in corpo- ration. 18. Duty of supervisoras to roads on corporation line. 19. Pensioners exempt from road labor. 20. County commissioners and village councils may contract for delivery of material for roads by rail. 21. National road may be occupied and repaired by cities and villages. 22. Agreement to repair to be filed with board of public works. 23. Council may improve National road as other roads. 21. Cities of second class with population of over thirty-one thousand may elect five citi- zens to superintend improvements. 25. Notice of election. 20*. Holding the election. 27. Organization of commissioners. 28. New election may be ordered to fill va- cancies. 29. Commissioners to determine kind and description of pavement. 30. Contracts to be with lowest bidder. 31. Contractor to give bond. 32. Payment for work. 33. City engineer to furnish grades. 34. Street to be under city control when fin- ished. 35. Time of payment; bonds may be is- sued. 36. Bonds to be registered. 37. Sale of bonds. 39. The assessment. 40. Plat and list of owners to ba made. 41. Assessment to be placed upon tax dupli- cate. 42. Assessment a lien upon property. 43. Payment of assessment. 44. Money received from assessment to be> applied to redemption of bonds. 45. Definition of term " owners." 40. Mistakes in description not to vitiate lien. 47. Owners of two-thirds of property to pe- tition before improvement can be au- thorized. 48. Part of street may be improved under act. 49. Certain road taxes to be paid by county commissioners into treasury of cor- poration 390 STREETS AND ROADS. AN ACT to provide for the creation and regulation of incorporated companies in the State of Ohio. [Passed May 1, 1S52. 50 L. 274J ********* (1.) Sec. 54. j [As amended, April 17, 18G7. 64 L. 255; S. & S., p. 158.] Contract for lighting streets, etc. The municipal authori- ties of any city, town or village, or the trustees of any township in which any gas-light or water company shall be organized under this act, arc hereby authorized to contract with any such corpora- tion for the lighting or supplying with water the streets, lands, lanes, squares, and public places in any such city, town, village or township : Provided, that no such corporation shall be formed in any- city or incorporated village until after the question of authorizing such incorporation shall have been submitted to the qualified voters of such city or villages, and be authorized by ordinance. ******.* * * A1SJ" ACT to extend the privileges of gas companies. [Passed and took effect March 30, 1859.. 56 L. 92; S. & S., p. 351.] (2.) Sec. 1. Extension of gas-pipes. Be it enacted by the Gen- eral Assembly of the State of Ohio, That it shall be lawful for any gas company in any city or incorporated village in this state, organized in pursuance of any of the laws of the same, to extend their pipes used for conveying gas to the various localities and in- habitants of such city or incorporated village to any point, place or places in the vicinity of such city or incorporated village, outside the corporate limits thereof; provided, the right of way be ob- tained from the corporate or other authorities, or of any person or persons, place or places, to be affected by such extension. Sec. 2. This act to be in force from and after its passage. An ACT supplementary to the act entitled " an act to provide for the creation and regulation of incorporated companies in the State of Ohio," passed May 1, 1S52. [Passed and took effect March 31, 1865. 62 L. 72 ; S. & S., p. 153.] ***:*:***** (3.) Sec 5. How telegraph may be constructed through any city or village. Where any lands authorized by this act, and the act to which this is supplementary, to be appropriated to the use of any magnetic telegraph company, are subject to the easement of any street, alley, public way, or other like public use, within the limits of any city or incorporated village, the mode of use shall be such as shall be agreed upon between the municipal authorities of such 1 This section differs from the section as originally passed only in the insertion and addition of the words in italics. STREETS AND ROADS. 391 city or incorporated village and the magnetic telegraph company, and in case they can not agree, or in case the municipal authori- ties unreasonably delay to enter into any agreement, then the pro- bate court of the proper count}', in a proceeding instituted for that purpose, shall direct in what mode such magnetic telegraph Line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of such street, alley, and public way. Nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any com- pensation for the use of any street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. AN ACT to amend the act entitled an act for the creation and ref clerk of court. Commons may be changed into streets ; when and how. 43. Court of common pleas may vacate street or alley. 44. Petition for vacation and notice thereof. 45. Street not to be closed until damages paid. 4G. Vacation of town plat. 47. Application for vacation and assessment of damages. 48. Plat vacated upon payment of damages. 49. Application for vacutiou and notice thereof. Platting additions and subdivisions. Revision of numbers of lots. Schedule of numbers to be made out and' recorded. Lots to be designated by new numbers. Renumbering, expense of; may be or- dered by county commissioners. Other additions and subdivisions to con- form to new numbers. Pay of auditor and recorder for renum- bering. Platting commission, appointment of, etc. Owners of land may accept plat. Joint commission in certain cases. Improvements after platting not to be- paid for. Am°ndment of plans. Division of territory to be platted. Platting commission in certain cities of fiist class, having less than one hundred and fifty thousand inhab- itants. Right of way for avenue through vil- lages. Consent of trustees may be given. Application to supply lost records. Notice of application. County commissioners shall cause new- plat to be made. Record of plat and certificate. Record of proceedings by auditor TOWN PLATS. 417 AN ACT to provide for the recording of town platR. [Passed March 3, 1831, took effect June 1, 1831. 29 L. 350.] (1.) Sec. 1. Survey and plat to be made. Be it enacted by the General Assembly of the State of Ohio, That whenever any person wishes to layout a town within this state, they shall cause the same to be surveyed, and a plat or map thereof made by the county sur- veyor, if an}- there be, of the count}- in which said town is situated;, but if there be no county surveyor in the county, then, and in that case, by the county surveyor of an adjacent county ; which plat or map shall particularly describe and set forth all the streets, alleys, commons or public grounds, and all in and out lots, or fractional lots within, adjoining, or adjacent to said town, describing the same by courses, boundaries, and extent. (2.) Sec. 2. Lot to be numbered. That 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 said plat or map; and all out-lots which shall not exceed ten acres in size, shall in like manner be surveyed and numbered, and their precise length and width stated on the plat or map, together with any streets, alleys, or roads which shall divide or border on the same. (3.) Sec. 3. Monuments to be set up. That the proprietor of the town, his, her, or their agent, shall, at the time of surveying and laying out a town, plant and fix, at the eorner of the public ground, or at the corner of a public lot, if any there be, and if there be none, then at the corner of some one of the in-lots in the town, 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 desig- nated on the plat or map. (4.) Sec 4. Plat to be acknowledged and recorded. That the plat or map, after having been completed, shall be certified by the surveyor, and acknowledged by the owner or owners of the town if resident of this state, or if said owner or owners shall not reside in this state, then, and in that case, by his, her, or their agent, legall}- authorized so to do, before some officer authorized to ac- knowledge deeds, and recorded in the recorder's office of the county in which the said town is situate. (5.) Sec. 5. Where plat shall be recorded. That if the county in which said town is situated shall not be organized, then, and in 27 • 418 TOWN PLATS. that case, the plat or map shall be recorded in the recorder's office of that county to which the county in which said town is situated .shall at the time be attached for judicial purposes. (6.) Sec. 6. [As amended, February 4, 1875. 72 L. 25.] Flats to be approved by council, acknowledged, and recorded. That all proprietors of lots or grounds in any city or town corporate in this state, who have subdivided or laid out, or who shall hereafter sub- divide or lay out the same in lots for sale, shall cause accurate and true maps or plats thereof to he recorded in the office of the recorder of the county in which said town or city may be situated, which maps or plats so to be recorded, shall set forth and describe with .certainty all grounds laid out or granted for streets, alleys, ways, •commons, or other public uses, and all the lots sold, or intended for sale, by progressive numbers, or by the squares in winch they are situated, and the precise length and width of each and every lot, and shall be acknowledged before a justice of the peace, or some other officer authorized by law to take and certify acknowledg- ments of deeds, and shall be certified by the officer taking the same, in the manner prescribed for the proof and acknowledgment of deeds; and such map or plat, so recorded, shall be deemed a suf- ficient conveyance to vest the fee of the parcel or parcels of lands therein set forth and described, or intended to be for streets, alleys, ways, commons, or other public uses, in such city or town corporate, to be held in the corporate name thereof, in trust to and for the uses and purposes so set forth and expressed or intended; provided, that no such plat of any addition located within the limits of any city or town corporate shall be so recorded until the same shall have been approved by the council of such city or town corporate. (7.) Sec. 7. Penalty for selling lots without recording plat. That if any proprietor or proprietors, or his or their agent or attorney, shall sell any lot or lots, in an}- plan of subdivision of, or addition to, the lots originally laid out, in any town or city in this state, before a map or plat of such subdivision or addition shall have been recorded, as herein required, such proprietors, agent, or attorney shall forfeit and pay to the State of Ohio, for the use of such town or city, the sum of fifty dollars for each and every lot so sold, to be recovered in an action of debt, before any court having cognizance of the same, together with costs of suit, on the complaint of any citizen. (8.) Sec. 8. Plat sufficient to vest fee in county. That the plat or map, when recorded as required by this act, shall be deemed and considered in law a sufficient conveyance to vest the fee-simple of TOWN PLATS. 419 all such parcel or parcels of land as are therein expressed, named, or intended for public use, in the county in which the town is situated, for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever. (9.) Sec. 9. Penalty for platting other than as prescribed. That if any person shall lay out any town, or addition to any town or city, and neglect to plant the corner-stones therein, or cause the same to be surveyed and platted in an}' other manner than that which is prescribed in this act, every person so offending shall forfeit and pay the sum of one hundred dollars, for the use of the county, to be recovered in an action of debt in the name of the county treasurer. (10.) Sec. 10. Penalty for selling in-lots or out-lots. That if any person shall dispose of, offer for sale, or lease for any time ex- ceeding five years any out or in-lot, in any town or addition to any town or city, or any part thereof, which shall hereafter be laid out, until all the foregoing requisitions of this act shall have been com- plied with, every person so offending shall forfeit and pay, for the tise of the county, the sum of twenty-five dollars for each and every lot or part of lot so sold, disposed of, leased, or offered for sale, for the use of the county, to be recovered in an action of debt in the name of the treasurer of the county. (11.) Sec. 11. Directors to be governed by this act. That the •directors appointed by the court of common pleas, to lay out a town where a seat of justice has been located on lands on which no town is situated, shall be governed in all respects and be liable to all the penalties of this act. (12.) Sec. 12. That the "act providing for the recording of town plats," passed February fourteenth, one thousand eight hundred and five, be and the same is hereby repealed : Provided, that all penalties incurred under said act may be sued for and recovered, and shall be appropriated as provided in said act, in the same manner as if said act had not been repealed. Sec 13. This act to take effect from and after the first day of June next. AN ACT to provide for the vacating of town plats and for other purposes. [Passed and took effect January 29, 1828. 29 L. 352.] (13.) Sec 1. Court of common pleas may vacate or alter plat. Be it enacted by the General Assembly of the State of Ohio, That the courts of common pleas are hereby authorized and empowered, 420 TOWN PLATS. on application for that purpose, made by the proprietor or proprie- tors, his, her, or their heirs, assignee or assignees, of any town, or of any addition to said town, situated within their proper county, to alter or vacate said town or its addition, or any part of either of them. (14.) Sec. 2. Notice of application to be given. That if the proprietor or proprietors of said town, or of the addition thereof, his. her, or their heirs, assignee or assignees, shall be desirous of altering or vacating the same, or any part thereof, such proprietor or proprietors, his, her. or their heirs, assignee or assignees, shall give notice in writing of such intended application, in at least two places in the county wherein such town may be situated, one to be set up in the most public place in said town, and one on the court- house door of said county; and shall also insert a copy of said notice in some newspaper printed in said county, and if no news- paper is printed in said county, then in some one having the most general circulation therein, at least sixty days prior to the sitting of said court, to which he, she, or they intend to make such appli- cation ; and which notices shall set forth and describe the part or parts intended to be vacated or altered, and the right by which the party making such application claims. (15.) Sec. 3. When court may alter or vacate plat. That if such applicant shall produce to said court satisfactory evidence that the notice required by the preceding section has been given, and that all persons owning any lot, or part thereof, in said town, or the addition to said town, as the case may be, their authorized agent or attorney, have agreed that the whole or a part of said town, or its addition, shall be altei'ed or vacated, the court shall, in their discretion, proceed to alter or vacate said town, or its addition, or any part of either ; and the proceedings, under this act, shall be recorded b}* the clerk, with the records of said court, a copy whereof shall be made out and certified under the seal of said court, by the clerk thereof, and he, by the party applying for such vacation or alteration of said town, or its addition, within thirty days from the rising of said court, deposited with the recorder of deeds for said county, who shall record the same: Provided, that the vacating of any town plat, or its addition, or any part thereof, shall not vacate any part of a state or county road. (1G.) Sec. 4. Any person feeling interested may be made party defendant. That at the term at which the notice shall be given, as is provided for in the second section of this act, or at an}* subse- quent term, during the pendency of said application, any person TOWN PLATS. 421 feeling interested in said proceedings, may, upon motion for that purpose, be made party defendant to said application; and, in which case, upon final hearing, the party succeeding shall have judgment against the other, for the costs of said proceedings, and for which execution may issue as in other cases. (17.) Sec. 5. Clerk's fees. That the clerk of the court shall be entitled to the sum of fifty cents for the recording of any plat re- quired to be recorded under the provisions of this act; and for such other services, the same fees as are allowed for similar services b}' the act entitled "an act to regulate the fees of civil officers in civil and criminal cases," passed February nineteenth, eighteen hundred and twenty-four. (18.) Sec. G. Commons maybe changed into streets; when and hoiv. That on application made, and notice given according to the provisions of this act, the court of common pleas shall have power to change any commons that may be included in any town plat within their proper county, into streets, and to cause such change to be recorded, as is provided by the third section of this act. (19.) Sec. 7. The act entitled " an act for the vacating of town plats, and for other purposes," passed December 21, 1811, be and the same is hereby repealed. AN" ACT to amend the act to provide for the vacation of town plats, and for other purposes, passed January 29, 1828. [Passed and took effect March 5, 1839. 37 L. 44.] (20.) Sec 1. Vacation of street or alley. Beit enacted by the General Assembly of the State of Ohio, That on petition filed in the court of common pleas of any county in this state, by any per- son or persons owning any lot or lots in any town or city, in the said county, praying that any alley or alleys, street or streets, in the immediate vicinity of such lot or lots, maybe established or vacated, the said court may, and they are hereby authorized upon hearing, and being satisfied that it will conduce to the general in- terests of such town or city, to declare such alley or alleys, street or streets, established or vacated. (21.) Sec. 2. Petition for vacation and notice thereof. That in all cases where application shall be made in the manner and for the purpose aforesaid, such petition shall be filed in the office of the clerk of said court at least forty days previous to the next term of the said court, and the petitioners shall also give notice in some newspaper printed in said county, in general circulation therein, of the filing of such petition, and the substance and pntyer thereof; and if the court shall be of opinion that any person or persons 422 TOWN PLATS. Owning any lot or lots in the immediate vicinity of such alley or alleys, street or streets, prayed to be vacated or established, not assenting thereto or petitioning thereof, will sustain damage thereby, they may proceed to hear proof in reference thereto, and may ren- der judgment against the petitioners for such damages as they may think' 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 duplicate of said county; and when necessary, the court shall appoint a guard- ian or guardians ad litem, for all minors or persons of non-sane mind, who may be interested in the premises. (22.) Sec. 3. Street not to be closed until damages -paid. That such alley or alleys, street or streets, as shall be declared vacated, under the provisions of this act, shall not be closed or obstructed until the damages assessed or adjudged under the second section shall have been fully paid to the persons entitled to the same. AN ACT to amend the act to provide for the vacating of town plats, and for other purposes. [Passed and took effect February 19, 1840. 38 L. 32] (23.) Sec 1. Vacation of town plat. Be it enacted by the Gen- eral Assembly of the State of Ohio, That the courts of common pleas shall have power to alter or vacate any town plat, addition, or parts thereof, within their proper county, as hereinafter provided. (24.) Sec. 2. Application for vacation and assessment of damages. That on application of two-thirds of the proprietors of said town plat or addition, or part of said town plat or addition pi-oposed to> be vacated or altered, in writing, as hereinafter required, the court may alter or vacate said town plat, addition, or parts thereof; and if the court shall be of opinion that any person or persons owning any lot or lots in the said town plat, addition, or parts thereof, proposed to be vacated or altered, not assenting thereto, will sus- tain damage thereby, they may proceed to hear proof in reference thei'eto, and may render judgment against the petitioners for such damages as they 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 duplicate of said county; and when necessary, the court shall appoint a guardian or guardians ad litem, for all minor* or persons of insane mind, who may be interested in the premises- (25.) Sec 3. Plat vacated upon payment of damages. That on the payment of the damages thus assessed in the second section of TOWN PLATS. 423 this act, such town plat, addition, or parts thereof, shall be consid- ered vacated, or altered, as the case may he. (2G.) Sec. 4. Application, hoiv made, and notice thereof. That all applications for vacating or altering any town plat, addition, or parts thereof, mentioned, shall be in writing, in which the petition- ers shall set forth, specifically, the plat, addition, or parts to be vacated or altered, which application shall be filed with the clerk of the court of common pleas within said county forty days before the sitting of said court to which said application is intended to be made, and shall give thirty days' notice thereof in writing — one of which notices shall be put up in some public place in the town- ship where such town plat, addition, or parts thereof may be situ- ated, [and] one on the courtdiouse door of the county; and thirty days' notice in some newspaper printed in said count}-, and of gen- eral circulation in said county, and if no newspaper is printed in said county, then in some one having the most general circulation in said county; which notices shall set forth briefly, the part or parts of said town plat, addition, or parts thereof, to be vacated. (27.) Sec. 5. That so much of the act passed January 29, a. d. 1828, entitled " an act to provide for the vacating of town plats, and for other purposes," as is inconsistent with the provisions of this act, be and the same is hereby repealed. AN ACT to amend an act to provide for the recording of town plats, passed March 3, 1831. [Passed March 22, 1849. 47 L. 52.] (28.) Sec. 1. Additions and subdivisions, how platted. Be it en- acted by the General Assembly of the State of Ohio, That from and after the passage of this act, whenever any person wishes to lay out any town, or any subdivision or. addition thereto, it shall be lawful for such person to cause the same to be surveyed, laid out and platted, in the manner prescribed by the first section of the act to which this is an amendment, by any competent surveyor at his discretion, and the plat or map so made shall be equally valid as if the same had been made by the count}' surveyor. AN ACT authorizing the numbering of lots in any city, town, or borough in this state to be revised. [Passed February 2, 1848 ; took effect April 1, 1848. 46 L. 34. (29.) Sec. 1. Revision of numbers of lots. Be it enacted by the General Assembly of the State of Ohio, That where the lots of any city, town, or borough in this state are not numbered consecu- 424 TOWN PLATS. tively upon the original plat thereof, and the plats of addition or subdivision thereto, it shall be lawful for the auditor and recorder of the county in which such city, town, or borough may be situate> in conjunction with the same person, to be appointed b} T the cor- porate authority of such city, town, or borough, to make a revision of the numbei*s of all the in-lots and outdots of such city, town, or borough, as the same stand upon record ; and to number anew all the said lots, so that the in-lots of such city, town, or borough shall have but one single consecutive series of numbers, beginning with number one ; and the outdots shall have but one similar series of numbei's, also beginning with number one. (30.) Sec. 2. Schedule of numbers to be made and recorded. That the said auditor and recorder, with their associate, to be appointed as aforesaid, shall make a schedule of all the in-lots of any such city, town, or borough, beginning with the original plat thereof, setting down the lots in the same in the order of their numbers, and placing opposite thereto the new numbers which shall be ap- propriated to the respective lots, following in the same manner with the plats of addition and subdivision, according to their priority in dates of record, so that the first column shall contain the old num- bers of said indots in their consecutive order, and the second col- umn shall exhibit opposite to the said numbers respectively, the new numbers appropriated to each of said lots. And, in the same manner, they shall make a schedule of the outdots of any such city town or borough. Such schedule shall accurately and distinctly indicate the plat in which such in-lot or outdot originally stands npon record ; and it shall be the duty of the auditor and recorder to place said schedules on record in their respective offices. (31.) Sec. 3. Lots to be designated by their new numbers. That whenever the revision and renumbering of the lots in any such city, town, or borough, shall have been made, and the schedule thereof recorded, as provided for in the preceding section, the said lots shall be assessed and entered upon the duplicate for taxation, according to their new numbers ; and in all the operations of the assessment and collection of taxes, they shall be lawfully known and designated by the new numbers given to them under the au- thority of this act; and all conveyances of the same may be made by the said new numbers, and shall be sufficient to pass the same in the same manner that such lots might be conveyed when de- scribed by their old numbers. (32.) Sec 4. Expense of renumbering ; county commissioners may order renumbering. When such revision and renumbering shall be TOWN PLATS. 423 done ut the request of the corporate authority of any such city, town, or borough, the expenses thereof shall be paid by such city, toWn, or borough. The county commissioners, however, of any county in which any unincorporated town or borough maybe situ- ate, shall have authority to direct the auditor and recorder to make such revision and renumbering of such unincorporated town or borough, and cause the expenses thereof to be paid out of the county treasury. They may also direct the auditor and recorder to make such revision and renumbering of an incorporated town or borough at the expense of the county, where the same shall be neglected by tho corporate authority of any such town or borough, should the commissioners be of opinion that such revision and re- numbering are necessary for convenience and efficiency in taxation- (33.) Sec. 5. Other additions or subdivisions shall conform to schedule numbers. That after the revision aforesaid shall have been made and recorded, as hereinbefore provided, every person who shall lay off lots as an addition to any such city, town, or borough, or who shall make a subdivision to [of] any 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 in-lots or out-lots, as the case may be, and shall be on record as forming a part of any such city, town, or borough, the number of the lots in which have been so revised, as aforesaid, un- less he shall find, upon careful examination thereof, that the num- bers of the lots thereon are in regular continuation from the last number of lots already on record. (34.) Sec. 6. Pay of auditor and recorder. The auditor, recorder, and their associate, shall each receive the sum of two dollars per day for their services under this act. (35.) Sec. 7. That this [act] shall take effect and be in force on and after the first day of April next. AN ACT to regulate the platting of lands and laying out of streets in municipal corporations. 1 [Passed March 13, 1871. 68 L. 36.] (36.) Sec 1. Councils to appoint commissions to plat lands, etc.; poicers and duties of commissions. Be it enacted by the General 1 This act has been held to be in conflict with the constitution of the state, for the reason that section 4 substantially provides for the appropriation of pri- vate property without compensation. The court held, that depriving an owner of the lawful use of his land, was equivalent to the appropriation of property within the meaning of the constitution, and enjoined the platting of the lands 426 TOWN PLATS. Assembly of the State of Ohio, That it shall be lawful for the coun- cil of any municipal corporation, whenever it shall be, in their opinion, expedient, and whenever the corporate limits shall be en- larged, to appoint a commission to plat such portions of the terri- tory within its limits, in which the necessary or convenient streets or alleys have not already been accepted by the corporation so as to become public streets, as they may by resolution declare, or the whole of such territory, if they think proper. Such commission shall consist of five members, to be appointed by the council, who shall serve without compensation, and shall hold their office until the completion of their work, unless removed by council. Council shall have power to fill all vacancies caused by removal or other- wise. The commission shall have power to employ an engineer, and such assistants as they may find necessary, and fix their sal- aries within limits to be prescribed by council. It shall be their duty to make a plat of the territory which they are ordered to lay out. as soon as they can conveniently do so, 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. When the whole plan, or any portion thereof, is com- pleted, or when the location of any avenue, street, roadway or alley has been finally determined upon by said commission, a plat of said 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. During these six weeks the commission shall hold sessions at least once a week, at the time and plaee stated in the advertisement, and at such other times and places as they may deem proper, to hear any objections that may "be urged against any portion of the said plat, or the location of any avenue, street, roadway, or alley, and they shall make such alterations therein as they may deem proper. At the end of that time they shall cause copies of the plat, as finally adopted, to be made out, and such monuments or marks as they may think proper to be placed on the grounds, and shall deposit one copy, certified to by them, in the office of the county recorder, and another in the described in the petition, under the provisions of the act, because such platting •would cast a cloud upon the title of the owner. Per Tilden, J., Dodsworth v. Cincinnati, and Parker v. Cincinnati, Superior Court of Cincinnati, Special Term, May, 1875. TOWN PLATS. 427 office of the city civil engineer, and such plan shall be deemed and taken to be the regularly adopted plan for streets and alleys in said 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 municipal 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 nothing herein shall be construed to prevent any municipal corporation from exercising the power of condemnation in any of the cases where it is now or may hereafter be by law authorized to condemn and appropriate property to public use, although it be not shown as a street on such plat. (37.) Sec. 2. Owners of lands, etc., may accept plans of streets, etc. The owners of any portion of the ground so platted may at any time, by a declaration of their intention so to do, properly acknowl- edged 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. (38.) Sec. 3. Joint commissions in certain cases. "When municipal corporations adjoin each other, it shall be lawful for the councils of such municipal corporations to agree among themselves, in any manner they may determine, upon the appointment of a joint commission for the purposes of this act. Such commission, when appointed, shall have all the power over the territory of the mu- nicipal corporations described in the resolutions of the councils that is hereby given to a commission appointed by a single city council. (39.) Sec. 4. Improvements subsequent to adoption of plat shall not be paid for. Whenever any municipal corporation or corporations, subsequently to the filing of a plat as authorized in this act, shall desire to open any street or ally, or portion of a street or alley, ]aid down on such plat, it shall be unlawful for the jury, in assess- ing the amount of compensation to be paid to the owner of the property taken, to include any damages for the destruction or tak- ing of any buildings or improvements erected or made, either wholly or partially, within the limits of any street or alley laid down on such plat, subsequently to its adoption. (40.) Sec. 5. Amendment of plans. Plans, after adoption, can be 42S TOWN PLATS. amended by the same proceedings by which they were originally adopted. (41.) Sec. 6. Division of territory to be platted. Any commission appointed under the provisions of this act is hereby authorized, ■win-never it is, in its opinion, expedient, to divide the territory to- be platted into districts and subdistricts, having due regard to the natural configuration thereof, and to adopt plans for such districts and subdistricts separately in such order as they may think just, by pursuing the formalities prescribed for the adoption of a plat, and the plats for any district or subdistrict so adopted shall, when filed for the plan for such district or subdistrict as provided for in this act; provided that the plan in such districts or subdistricts shall always be adopted with reference to the general plan of im- provement of the w T hole territory. Sec. 7. This act shall take effect and be in force from and after its passage. AN ACT supplementary to an act " entitled an act to regulate the platting of lands and laying out of streets in municipal corpora- tions," passed March 13, 1871. (68 L. 36.) [Passed April 20, 1874. 71 L. 110.] (42.) Sec. 1. Platting commission in cities of first class, etc. Be it enacted by the General Assembly of the State of Ohio, That in cities of the first class having a population not exceeding one hun- dred and fifty thousand inhabitants, that it shall be lawful for the council of any municipal corporation, whenever it shall be, in their opinion, expedient, and whenever the corporate limits shall be en- larged, to appoint a commission to plat such portions of the terri- tory within its limits, in which the necessaiy or convenient streets or alley have not already been accepted by the corporation so as to become public streets, as they may by resolution declare, or the whole of such territory, if they think proper. Such commission shall consist of three members, to be appointed by the mayor and confirmed by the council, who shall receive such compensation as the council shall provide ; and shall hold their office until the com- pletion of their work, unless removed by council. Council, upon recommendation of the mayor, shall have power to fill all vacan- cies caused by removal or otherwise. The commission shall have power to employ an engineer and such assistants as they may find necessary, and fix their salaries within limits to be prescribed by council. It shall be their duty to make a plat of the territory which they are ordered to lay out as soon as they can conveniently TOWN PLATS. • 42^ do ho, showing the location of the streets and alleys already dedi- cated, and those proposed ; and for the purpose of making the necessary surveys, they shall have power to enter upon all prop- erty within the limits of the corporation. When the whole plan, or an}- portion thereof, is completed, or when the location of any avenue, street, roadway, or alley has been finally determined upon by said commission, a plat of said plan, avenue, street, roadway, or alky shall be placed in the office of the city civil engineei*, for the in- spection of persons interested, and notice that it is ready for inspec- tion shall he published in one or more newspapers of general circu- lation within such municipal corporation, for six consecutive weeks. During these six weeks, the commission shall hold sessions at least once a week, at a time and place stated in the advertisement, and at such other times and places as they may deem proper, to hear any objections that may be urged against any portion of said plat, or the location of any avenue, street, roadway, or alley, and they shall make such alterations therein as they may deem proper. At the end of that time, they shall cause copies of the plat, as finally adopted, to bo made out, and such monuments or marks as they ma}' think proper to be placed on the grounds, and shall deposit one copy, certified to by them, in the office of the county recorder, and another in the office of the city civil engineer, and such plan shall be deemed and taken to be the regularly adopted plan for streets and alleys in said 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 municipal corporation, nor shall any of the public funds be expended in the improvement or repair of streets or alley's subsequently laid out, and not on such plat: Provided, however, that nothing herein shall be construed to prevent any municipal corporation from exercising the power of condemnation in any of the cases where it is now or may hereafter be by law authorized to condemn and appropriate property to pub- lic' use, although it be not shown as a street on such plat. Sec. 2. This act shall take effect from and after its passage. AN ACT supplementary to an act to provide for the creation and regulation of incorporated companies in the State of Ohio, passed May 1, 1852. [Passed and took effect April 3, 1856. 53 L. 46 ; S. & C, p. 342.] * *** **#* * (43.) Sec. 4. Might of way through villages, etc. That where, in the laying out of any such avenue as aforesaid, it shall become 430 TOWN- PLATS. necessary to run through or along the line of any incorporated village or special road district, it shall be the duty of the board of directors of the avenue company to obtain the written consent of at least two of the trustees of such incorporated village or special road district to the laying out of such avenue through or along the territory over which they have supervision or control. (44.) Sec. 5. Same. That if, on application being made to the trustees of an incorporated village or special road district, as con- templated by the fourth section of this act, they shall be of opinion that the public good demands the laj'ing out of such avenue, they are hereby authorized to 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 the said .avenue within their corporate jurisdiction, and the directors may, and they are hereby authorized to lay out and construct said avenue through the territory of such incorporated village or special road district, and control the same in all respects as though the said vil- lage or special road district did not exist. AN ACT to provide for supplying lost or destroyed records of cities, towns, or villages. [Passed March 17, 1873! 70 L. G5.] (45.) Sec. 1. Application to supply lost or destroyed records. Be it enacted by the General Assembly of the State of Ohio, That it shall be lawful for any ten persons, their agents or attorneys, own- ing or being interested in any lots of land in any city, town, or village, where the original plat or any addition thereto has been recorded in the records of the county in which such city, town, or village 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 as aforesaid, supplied, which said applica- tion shall be filed with the auditor of such county. (4G.) Sec. 2. Publication of notice of such application. That upon the filing of the application as aforesaid, 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 said county, or if there be no newspaper published in such county, then in some newspaper of general circulation in such county, of the filing of the application as aforesaid, and also to notify the county commissioners of such county thereof. (47.) Sec. 3. County commissioners to appoint surveyor, etc. That it shall be the duty of the commissioners of such county, upon the TOWN PLATS. 431 filing of the application as aforesaid, 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 replat such cit}-, town, or village, 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, said surveyor is hereby authorized to call and examine witnesses under oath or otherwise, and when he shall have fully performed all the duties asssigned him, and make a plat of such city, town, or village, said surveyor shall make and attach his certificate to such plat that the same is a correct copy of the original plat of such city, town, or village, as he verily believes, together with the costs and expenses of mak- ing the same, and forthwith file it with the auditor of said county. (48.) Sec. 4. Record of plat and certificate. That upon the filing of the plat and certificate by the surveyor as aforesaid, the commis- sioners of said county shall cause the same to be recorded in the proper records in the office of the recorder of said county, and when the plat and certificate so as aforesaid made and filed shall have been, recorded as aforesaid, the record or a copy thereof, certified to by the recorder of said county, shall be prima facie evidence of the plat of said city, town, or village, in all the courts of this state. (49.) Sec. 5. Record of proceedings by county auditor. That it shall be the duty of the auditor of said county to keep a full and complete record of the proceedings as aforesaid in the commission- ers' journal, and for which he shall receive such compensation as is now allowed by law for similar services, and that the surveyor and recorder aforesaid shall receive and be paid out of the count}' fund of such county, on the order of the county auditor, for their services, such fees as are now allowed by law for similar work. Sec. G. This act shall take effect and be in force from and after its passage. 432 TREASURERS. TEEASUEEES 1. Settlement of outgoing treasurer 6. Advance payment may be demanded of 2. What is embezzlement by treasurer, punish- county treasurer. ment, evidence, etc. 7. County auditor to issue warrants for 3. Frevious act not to prevent recovery of de- such payment . posit in violation of it. 8. Account of advances. 4. When treasurer may deposit in bank. 9. Duties of county treasurer when acting 5. Such deposit not to exempt treasurer from as city treasurer. responsibility. 10. Fiscal year in cities of first class. AN ACT to further provide for the better regulation of the receipt, disbursement, and safe-keeping of the public revenue. [Passed April 12, and took effect July 4, 1858. 55 L. 92 ; S. & C, p. 1596] (1.) Sec. 22. Settlement by state, county, township or city treas- urer, outgoing, or his legal representatives, with state, county, or city auditor ; what settlement to exhibit ; auditor's certificate to incom- ing treasurer ; payment, delivery of books, etc., by outgoing treasurer. "Whenever the term of office of any treasurer of this state or any treasurer of any county or township or any organized city in this state shall have expired, or he shall have resigned, died, or have been removed from office, he, or in case of his death or incapacity, his legal representatives, shall immediately make a full settlement with the auditor of state, or the auditor of any county or organ- ized city in this state, as the case may be, of and concerning all moneys paid into, and out of such treasury, since his last previous- settlement, which settlement shall be so made as clearly to exhibit on what account and for what purpose each payment either into or out of the treasury, shall have been made, and in case of payments out of the treasury, on account of what appropriation every such payment was made ; and the auditor shall certify to the incoming treasurer the several sums to be paid over to him by the outgoing treasurer on account of such appropriation that shall not have been fully paid, and also the sum to be paid on general account; and the outgoing treasurer or his legal representatives shall forth- with pay over to his successor the several sums of money so cer- tified, and also deliver to him all the books, accounts, vouchers, official papers and correspondence of whatsoever kind, together with all other property, bonds, securities, claims, assets and effects belonging to the state or to any county or township or organized city in this state, as the case may be; and neither the outgoing TREASURERS. 43.? treasurer nor his securities shall be discharged from his or their liability to the state or to any county or township or organized city in this state, as the case may be, until such settlement, pay- ments and delivery of books, accounts, vouchers, official papers, property, bonds, securities, claims, assets and effects, and other papers and correspondence hereinbefore enumerated, shall have been made. 3f» *p 3J5 3(5 3}C >ji 5jC>jC 3{C AN ACT to establish the independent treasury of the State of Ohio. [Passed April 12, and took effect July 1, 1858. 55 L. 44 ; S. & C, p. 1G0G.] ********* (2.) Sec. 15. What shall be held an embezzlement of public money ; punishment; who can release fine ; evidence on trial. That if any officer or other person charged with the collection, receipt, safe- keeping, transfer or disbursement of the public money, or any part thereof, belonging to the state, or to any county, or township, or organized city or village in this state, shall convert to his own use, or to the use of any other person or persons, body corporate, association or party whatever, in any way whatever, or shall use by way of investment in any kind of security, stock, loan, property, land or merchandise, or in any other manner or form whatever, or shall loan, with or without interest, to any company, corporation, association or individual, or shall deposit with any company, corporation or individual, any portion of the public money, or other funds, property, bonds, securities, assets or effects of any kind, received, controlled, or held by him for safe-keeping, trans- fer or disbursement, or in any other way or manner, or for any other purpose ; or if any person shall advise, aid, or in any man- ner participate in such act, every such act shall be deemed and held in law to be an embezzlement of so much of the said moneys or other property, as aforesaid, as shall be thus converted, used, invested, loaned, deposited or paid out as aforesaid ; which is- hereby declared to be a high crime and misdemeanor, and upon prosecution, trial by indictment and conviction thereof before any court of this state having competent jurisdiction, such officer or person or persons shall be sentenced to imprisonment in the peni- tentiaiy, and kept at hard labor for a term of not less than one year nor more than twenty-one years, according to the magnitude of the embezzlement, and also to a fine equal to double the amount of money or other property so embezzled as aforesaid, which fine 28 434 TREASURERS. shall operate as a judgment at law on all of the estate of the party so convicted and sentenced, and shall be enforced to collection by execution or other process, for the use only of the party or parties whose money or other funds, propert} r , bonds or securities, assets •or effects of any kind as aforesaid, has been so embezzled. And in •all cases, such fine, so operating as a judgment, shall only be re- leased or entered as satisfied by the party in interest as aforesaid. Any failure or refusal to pay over or to produce the public money or any part thereof, by any officer or other pei-son, under this act, charged with the collection, receipt, transfer, disbursement or safe- keeping of the public money, or any part thereof, whether belong- ing to the state, or to any county, or township, or organized city, or incorporated village in this state, or any other public money whatever ; or any failure to account to, or to make settlement with, any proper and legal authority, of the official accounts of such officer or person, shall be held and taken as prima facie evidence of such embezzlement. And upon the trial of any such officer or person, for embezzling public money under the provisions of this act, it shall be sufficient evidence for the purpose of showing a bal- ance against such officer or person, to produce a transcript from the books of the auditor of state, or comptroller of the treasury, or the auditor of the county, or the records of the commissioners of the county ; and the refusal of any such officer or person, whether in or out of office, to pay any draft, order or warrant, which may be drawn upon him, by the proper officer, for any public money in his hands, no matter in what capacity the same may have been received, ■or may be held by him, or any refusal, by any person or public officer named in this act, to pay over to his successor any public moneys or securities promptly, on the legal requirement of any authorized officer of the state or county, shall be taken on the trial of any indictment against such officer or person for embezzlement, as prima facie evidence of such embezzlement. AN ACT declaratory of the true intent and meaning of the act entitled " an act to establish the independent treasury of the State of Ohio," passed April 12, 1858. (S. & C, p. 1G0G ; 55 L.44.) [Passed and took effect April 7, 1863. 60 L. 64 ; S. & S., 920.] (3.) Sec. 1. Public funds illegally loaned may be recovered by suit or othericise. Be it enacted by the General Assembly of the State of Ohio. That the act of the General Assembly of the State of Ohio, passed April 12, 1858, entitled "an act to establish the independent treasury of the State of Ohio," shall not be so construed as to pre- TREASURERS. 435 vent the proper authorities of the state, or of any county or town- ship, or of any organized city of the state, from so far adopting any illegal loan or deposit of public money, funds, property, bonds, securities or assets, belonging to the state, or to an} r county, town- chip or city, heretofore made, aa aforesaid, as to authorize the col- lection, by suit or otherwise, of such money, funds, property, bonds or securities thus loaned or deposited, as against the party receiving the same, and as against any and all other parties. Sec. 2. This act to take effect from and after its passage. AN ACT authorizing treasurers of villages and townships to de- posit their funds in banks, in certain cases. [Passed and took effect March 20, 18G7. 64 L. G5 ; S. & S., p. 904.] (4.) Sec. 1. Wlien township and village funds may be deposited. Be it enacted by the General Assembly of the State of Ohio, That in any village or township in the State of Ohio in which there is not provided a good fire and burglar proof safe, in which to keep the funds provided for said village or township, the treasurer or per- son intrusted with funds of the same, ma} 7 , by and with the consent of the council of said village, or trustees of said township, deposit the funds belonging to said village or township in some bank or other safe place, subject to the order of the treasurer making the deposit. (5.) Sec 2. If money is lost, treasurer held accountable. The fail- ure or inability on the part of any individual or corporation, with whom the funds of any village or township may be deposited, to refund the money deposited, shall not in any waj' or manner re- lease the treasurer of any village or township from responsibility, but he shall be held and firmly bound for the money belonging to said village or township. Sec 3. This act shall take effect on and after its passage. AN ACT to authorize county treasurers to payout money to town- ship treasurers, city treasurers, treasurers of incorporated villages, and treasurers of boards of education, in advance. (0.) Sec 1. [Passed April 29, 1873. 70 L. 184.] Advance pay- ment by county treasurer. Be it enacted by the General Assembly of the State of Ohio', That the treasurer of each county in this state shall, between the fifteenth and thirtieth daj-s of December, and fifteenth and thirtieth days of June, annually, pay, upon the war- rant of the county auditor, to each township treasurer, city treas- urer, treasurer of incorporated village, and treasui-er of each city or village board of education in his county, a sum equal, as near as 436 TREASURERS. may be, to two-thirds of the current collection of taxes assessed and collected for and in behalf of these several corporations, town- ships, or boards, which shall be held and treated as advance pay- ment in behalf of the several township, cit}', village and school funds. (7.) Sec. 2. County auditor to issue warrant for such payments. That the county auditor of each county in this state shall, upon demand being made by the sevei'al township treasurers, city treas- urers, treasurers of incorporated villages, and treasurers of school boards, issue his warrant upon the county treasurer in favor of such officers, for a sum as aforesaid of two-thirds, as near as may be, of the current collections in behalf of said townships, cities, vil- lages and school boards, specifying in said warrant the amount belonging to each of the several funds. (8.) Sec. 3. Account of advances. The auditor and treasurer of each county shall keep a just and accurate account of the money paid to each township, city, village and school board, for final ad- justment at the semi-annual and annual settlements with the same officers. Sec. 4. This act shall take effect from its passage. AN ACT supplementary to an act entitled " an act to amend sec- tions 61, 271, 566, 570-and 663, and repeal section 669 of the mu- nicipal code." (67 L. 32, 33.) [Passed March 17, 1873. 70 L. G6.~\ (9.) Sec. 1. Duties of county treasurer when acting as city treasurer. Be it enacted by the General Assembly of the State of Ohio, That in all cases wherein the treasurer of a county becomes treasurer of the city and school funds by virtue of said act, he shall qualify in every respect as if he were elected to said office, by making oath, and giving separate bonds acceptable severally to the city council and school board of such city, for a faithful discharge of the duties and disbursements of the funds; and in all examinations of the county funds by the auditor and county commissioners as now pro- vided by law, there shall, at the same time and manner, be an ex- amination of the city and school funds, by at least one person for each fund, said person or persons to be appointed by the county commissioners, and in examination of the county treasury by order of the probate judge, the accountant appointed by said judge, shall count, examine and certify as to the condition of the city and school funds, at the same time and in the same manner as is now required by law in regard to the county funds. Sec. 2. This act shall take effect from and after its passage. UNIVERSITIES. 437 AN ACT to fix the fiscal year of departments in cities of the first class. [Passed March 7, 1871. 69 L. 20.] (10.) Sec. 1. Fiscal year in cities of first class. Be it enacted by the General Assembly of the State of Ohio, That in cities of the first class, the fiscal year of each office, department, board of trustees, directors or commissioners, shall terminate on the thirty- first day of December, in each year, and all accounts shall be closed on that da}', and all annual reports required by law shall be made for the year terminating on that day. Sec. 2. That this act shall take effect and be in force from and after its passage. UNIVERSITIES. 3. Common council of certain cities may accept C. Provisions of the act extended to other property for university. cities. 2. Also trust property, endowments, etc. 7. Bunds may be issued. 3. Board of directors, appointment, duties, etc. 8. Payment of principal and interest of 4. Power to confer degrees. bonds. 5. Sites for buildings. 9. Sale of bonds. AN ACT to enable cities of the first class to aid and promote edu- cation. [Passed April 16, 1S70. 67 L. 86.] (1.) Sec 1. Common council may accept funds, etc. Be it enacted by the General Assembly of the State of Ohio, That the common council of any city of the first class now having a population of one hundred and fifty thousand inhabitants or more, is hereby au- thorized and empowered, in the name and behalf of such city, to accept and take any property or funds, either heretofore or herein- after given to such city for the purpose of founding, maintaining or aiding a university, college, or institution for promoting free education, and upon such terms, conditions and trusts, not incon- sistent with law, as such common council may deem expedient and proper for that end. (2.) Sec. 2. Also, in trust, endowments, etc. ; power of court in the premises. That for the further endowment, maintenance and aid of anj' university, college, or institution for promoting free educa- tion heretofore or hereafter so founded in any such city, the com- mon council thereof is also authorized and empowered, in the name and behalf of such city, to accept and take, as trustee, and in trust for the purpose aforesaid, any estate, property, or funds which have been or shall be lawfully transferred to such city for such use, by any person or persons or body corporate having the same, or any annuity or endowment in the nature of income which may be cov- 438 UNIVERSITIES. enantcd or pledged to such city toward such use by any person or persons or body corporate ; and it shall be lawful for any person or persons or body corporate having and holding any estate, prop- erty or funds, in trust or applicable for the promotion of education, or the advancement of any of the arts or sciences, to convey, assign, transfer, and deliver over the same to such city as trustee in his or their place, or to covenant or pledge its income, or any part thereof, such estate, property, funds, or income to be held and applied by such city in trust for the further endowment or main- tenance of such university, college, or institution ; in accordance, nevertheless, with the terms and true intent of any trust or condi- tion upon which the same was originally given or held ; and upon such transfer, and the acceptance thereof, such city and its suc- cessors, as trustees, shall become and be perpetually obligated and held to obseiwe and execute such trust, in all respects, accord- ing to the original and true terms and intent thereof, and accord- ing to any further terms and conditions lawfully agreed upon such transfer and acceptance thereof. And any court having jurisdic- tion of the appointment of trustees of such trusts for educational purposes, shall have power, in any proceeding for that purpose duly instituted and had, to appoint and constitute such city, with the consent of the common council thereof, trustee of the estate, property and funds so transferred to it, and may dispense with tho bond or surety on the part of such city for the performance of such trust, unless required by the original terms or conditions thereof; and may and shall, upon the due transfer and acceptance of such trust by such city, release and fully discharge trustee or trustees- so transferring the same. (3.) Sec. 3. Board of directors to be appointed; their term of office T etc. ; their powers, duties, etc. That the custody and management of an}* and all estate, property or funds so given or transferred in trust to any such city, and the entire administration of any and all such trusts so accepted by the common council thereof, and if any university, college, or institution for promoting education, hereto- fore or hereafter so founded in or by any such city, except the common and high schools thereof, shall be committed to a board of directors, nineteen in number, of whom the mayor of such city for the time being shall be one, and the others shall be appointed by the common council, six of whom shall be appointed from such names as shall be nominated to the common council b}~ the board of education of said city, and shall be citizens of approved learning discretion, and fitness for such office. They shall hold their office UNIVERSITIES. 439 for the term of six years, and until their successors are duly elected and qualified : Provided, that the directors first appointed, other than the mayor, shall be elected respectively for terms of one, two, three, four, five, and six years, from the first day of January next following their election, two for each term. Any vacancy caused by the death, resignation, or removal of a director, or otherwise, shall be filled for his unexpired term by appointment of the com- mon council. And as to all matters not herein or otherwise provided by law, the said board of directors shall have all the authority, powers, and control vested in or belonging to said city, either as to the management and control of the estate, property and funds given, transferred, covenanted, or pledged to such city for the trusts and purposes aforesaid, or as to the government, con- duct and control of the university, college, or institution so founded. They shall have power to appoint a clerk and all agents proper and necessary for the care and administration of the trust property, and collecting the income, rents, and profits thereof, and to appoint the president, professors, tutors, instructors, agents, and servants necessary and proper for such university, college, or institution, and to determine their compensation, and to provide all the necessary buildings, books, apparatus, means, and appliances thereof, and to pass all such by-laws, rules, and regulations concerning the presi- dent, professors, tutors, instructors, agents, and servants aforesaid, and the admission, government, and tuition of students, as such directors shall deem wise and proper ; provided, nevertheless, that said directors may, by suitable by-laws, delegate and commit, the admission, government, management, and control of the student, course of studies, discipline and other internal affairs of such university, college, or institution, to the faculty which the directors may appoint from among the professors ; provided, also, that no charge shall be made for the admission or instruction of the children, wards, or apprentices of any citizen of such city admitted therein ; and provided, also, that the accounts of such trust estate, property, and funds, and of the income and expenditure thereof, shall be kept by the city auditor entirely distinct from all other accounts or affairs of such city, and the moneys shall be kept by the city treasurer distinct from other moneys ; and said direct- ors shall at all times confine the expenditures within the income of the trust estate, propert}*, and funds, and shall annually report to the common council a full statement of the accounts and ad- ministration of such trusts. (4.) Sec. 4. Power to confer degrees. The directors of such 440 UNIVERSITIES. university, college, or institution, upon the recommendation of tho faculty thereof, shall be authorized to confer such degrees and honors as are customary in universities or colleges in the United States, and such others as, with reference to the course of studies and attainments of the graduates in special departments, they may deem proper. (5.) Sec. 5. Sites for buildings, etc. The common council of any such city of the first class shall have power to set apart and ap- propriate, as a site for the buildings and grounds of the university, college, or institution so founded, any public ground of such city not specially appropriated or dedicated by ordinance to any other use or purpose, any act or law heretofore passed to the contrary notwithstanding; and the board of education of such cit}'' may, in their discretion, upon the application of the said board of directors, assess and levy a tax on the taxable property of said city, not ex- ceeding one-tenth of one mill on the dollar valuation thereof, to be applied by said board of directors to the support of such university, college, or institution of learning. Sec. 6. This act shall take effect and be in force from and after its passage. AN ACT supplementary to an act to enable cities of the first class to aid and promote education, passed April 16, 1870. (67 L. 86.,) [Passed April 9, 1873. 70 L. 117.] (6.) Sec. 1. Ee it enacted by the General Assembly of the State of Ohio, That the above-named act shall be applicable to cities of the first class, with less than ninety thousand and more than thirty-one thousand five hundred inhabitants by the last fed- eral census : Provided, that in such cities the number of directors shall consist of thirteen ; and, provided, that the rate of taxation to be assessed and levied on the taxable property of said city shall not exceed one-half of one mill on the dollar valuation thereof, to be applied by said board of trustees to the support of such univer- sity, college, or institution of learning. Sec. 2. This act shall take effect and be in force from and after its passage. AN ACT to authorize cities of the first class to issue bonds for university purposes. [Passed April 27, 1872. 69 L. 16-4.] (7.) Sec. 1. Authority to issue bonds. Be it enacted by the General Assembly of the State of Ohio, That the common council UNIVERSITIES. 441 of any city of the first class, wherein a board of directors of any university, college, or institution for promoting education, has been, or may hereafter be elected in pursuance of the provisions of the act entitled " an act to enable cities of the first class to aid and promote education," passed April 16, 1870, are hereby authorized to issue the bonds of said city in any sum not exceeding one hun- dred and fifty thousand dollars, to provide for the buildings and apparatus necessary for such university, said bonds to bear a rate of interest payable semi-annually, not exceeding seven per cent, per annum, payable at such date and for such length of time as to said council may seem expedient; the same shall be sold at not less than par, and the proceeds of such sale credited in the account of such university, and applied by the directors thereof, exclusively to the said purposes. (8.) Sec. 2. Payment of principal and interest. If any bonds of such city be issued, as provided in the foregoing section, it shall bo the duty of the common council annually thereafter, until the same, and the interest thereon shall be fully paid, to assess and levy the tax authorized by the fifth section of said act, passed April 16, 1870 ; and the proceeds thereof shall be pledged by such common council in payment of the interest which may accrue on said bonds, and as a sinking fund for the redemption of the prin- cipal. (9.) Sec. 3. Sale of bonds. Whenever any of the bonds herein provided for shall be for sale, not less than ten days' previous no- tice thereof shall be advertised in said city ; said advertisement to be published daily until the day of sale, the same to specify that sealed bids will be received at a place, and until an hour desig- nated. The bids shall then be opened and read in the presence of the bidders present, and the bonds shall be sold to the highest bid- der, the said city, however, reserving the right to reject all bids. Sec. 4. This act shall take effect and be in force from and after its passage. 442 WORK-HOUSES. WOKK-HOUSES. 1. Lands may be acquired for, without corporate 2. County commissioners may unite with limitB. cities in erection of work-houses. AN ACT to authorize the corporate authoi-ities of cities to acquire lands by purchase outside the corporate limits for the purposes of a house of refuge and correction and work-house. [Passed April 29, 1871.] (1.) Sec. 1. Lands may be purchased outside of city for ivork-house, etc. Be it enacted by the General Assembly of the State of Ohio, That it shall be lawful for the corporate authorities of any city to acquire by purchase, and hold and possess lands without the limits of the corporation, for the purpose of establishing and maintaining thereon a house of refuge and correction and work-house. Sec. 2. This act shall take effect and be in force from and after its passage. AN ACT to authorize county commissioners to unite with cities in the erection and maintenance of work-houses. [Passed May l y 1871. G8 L. 114.] (2.) Sec. 1. County commissioners may unite with cities in the erec- tion of work-houses. Be it enacted by the General Assembly of the State of Ohio, That it shall be lawful for the commissioners of any county within this state to unite with any city, located in such, county, in the erection, management, and maintenance of a work- house for the joint use of such county and city; and said commis- sioners are authorized to levy and collect the necessary funds there- for from the taxable property of such county ; provided, that said commissioners shall not collect and expend a greater amount than shall be collected and expended by such city for the same purpose ; and provided further, that the management of such work-house shall be under and in pursuance of chapter 20 of an act entitled " an act to provide for the organization and government of muni- cipal corporations," passed May 7, 1869, and such laws as may be hereafter passed relating to the same subject: Provided, that not more than ten thousand dollars shall be levied or appropriated by the commissioners for such purpose, unless the amount be appx-oved by a majority of the votes of the county, exclusive of the city, voting at some general election. Sec 3. This act shall be in force from and after its passage. INDEX. ADVEETISEMENTS— Of ordinances 35 Of notice of assessment 205 For proposals to contract 195 Of resolutions to improve 197 ALDEEMEN— To be elected in certain cities 298, 301 See Council. ALE-HOUSES— May be regulated.. ... 61 ALLEYS. See Streets. ANIMALS— May be prevented from running at large 62 Auction of in streets may be regulated 62 ANNEXATION OF CONTIGUOUS TEEEITOEY— On Application of Reside?its. Form of proceedings 239, 240 When complete 241 When territory in two or more counties 241 On Apjilicaiion of Corporation. Where corporation does not comprise whole township 159 Form of proceedings 242 When complete 243 When territory lies in two or more counties 243 Of Co7itiguous Corporations. Form of proceedings 244, 245 When complete 245 Not to impair rights or liabilities 245 Of portion' of one corporation to another 271 Miscellaneous. Errors and irregularities not to vitiate 243- Of contiguous territory for road purposes 161 Wards in annexed territory 119 Annexed territory to be governed by same rules as to improvements and assessments as original territory 194 APPRENTICES— Directors of houses of refuge and correction may bind out 80 Infirmary directors may bind out 157 APOTHECAEIES— In certain cities to be examined and registered 336, 337 (443) 444 INDEX. APPROPRIATION OF PRIVATE PROPERTY— General powers as to 65 For what uses cities and villages may take 168, 169 No more to be taken than is reasonably necessary 169 What may be taken 170 How taken. By ordinance for that purpose 205 What ordinance shall contain 205 By resolution declaring intent 172 What resolution must contain 172 By what majority passed 172 Proceedings in Assessment of Compensation. Application to be made to court 172 What it must contain 172 Notice to owners, how given , 172 Duty of court in proceedings 173 Jurors in probate court, how obtained 173 View of premises when ordered.....'. 174 Guardian ad litem for infants, etc 174 Court may require application to be amended 175 Verdict, form of 175 Verdict, partial, when to be returned 176 Possession of Property. How delivered to corporation 176 Corporation not to be delayed by dispute as to ownership 176 Order as to payment or deposit 176 When it may be suspended 178 Corporation may give security and take possession 177 Review or Appeal. Review, how obtained 177 Appeal from probate court 178 Transcript, how furnished 179 Original papers to be transmitted 179 Corporation to have no right of review or appeal 179 Corporation must take possession within six months 179 ARBITRATION— Power to submit to 3 n ASSESSMENTS— In Villages for Special Purposes. May be made for street improvements 14 In Cities and Villages — For what purposes they may be made. Water pipes and house connections 109 Gas pipeg and house connections 128 Sprinkling streets 132 Removing nuisances , 94, 151 Improvements 202 Lighting streets 202 Sewers 216. 217 INDEX. 445 Assessments — Continued. Canals and watercourses 210 To pay for lands appropriated 182 How made. In villages of less than 4,000, a majority of the owners must assent. 186 In cities and other villages, two-thirds of council must concur, unless two-thirds of the property holders assent 186 Eesolution to he passed 186, 197 Notice to be published 197, 205 Ordinance determining to proceed with improvement 200 Ordinance assessing tax 202 Must specify time of payment 203 May provide for collection in annual installments 203 Rules of Apportionment. What is cost of improvement 188 "What portion must be paid by corporation 187, 188 May be made per front foot 202, 203 Or according to the valuation on tax duplicate 202, 203 How valuation determined when land is not subdivided 187 Or according to benefits, including property not abutting 203 Estimate of assessments, how made 205 How equalized and confirmed 206 Street intersections to be paid by tax on general duplicate 206 Eule in case of change of grade 194 Eule where streets are repaved 204 Eule where life estate exists 187 Limit of Assessments. Not to exceed twenty-five per cent, of the value assessed for taxa- tion 18T Exception as to cities of the first class 187 How value determined when land is not subdivided 187 Lien of Assessments. Assessment a lien from date of assessment 188 How enforced 189 Duration of 193 How collected. May be collected in advance 193. May be certified to county auditor and collected on tax duplicate.... 192 Penalty for non-payment * 189^ May be collected by suit 189 Proceedings in such case 189, 190 Court may disregard error or irregularity 191 Costs in such case 191 When re-assessment may be made 191, 192 Court of common pleas to have jurisdiction, however small the amount 192. New action may be commenced, when 193 Surplus, how disposed of when assessment is too large 194 44G INDEX. A ss ESSM i : \ TS — Coniinued. Same rules applicable to annexed territory 194 As to sewerage assessments, see Sewers. ASSESS M i:.\T OF DAMAGES BY IMPEOVEMENT. See Damages. ASSESSMENT OF COMPENSATION FOR PROPERTY TAKEN. See Appropriation of Private Property. ASSESSORS— How elected 272 Bond of, etc.... ... 272 AUCTIONEERS— ' Of animals in streets, etc., may be regulated and licensed 62, 148 Of merchandise may be licensed, etc 62 AUDITOR— In city of first class, to be elected by council 20 In city of second class 18 Oath and bond of 26 May appoint assistants in city of first class 20 To have seat in council 30 To record expenditures, etc 44, 230 To post and publish condensed statement 44 To report to auditor of state 44 Powers and duties of. '. 46 May administer oaths 46 To have charge of books and papers 46 avenue- How consent of village obtained by company 429 BEEF— Inspection of. 154 BEER HOUSES— May be regulated 15, 61 BIDS— For contracts 195 BILLIARD TABLES— Maybe suppressed, etc , 60 BOARDS. See under special heads, as Improvements, Board of, etc. BONDS, NEGOTIABLE— May be issued for improvements 234 How paid 231, 232 For sewerage to be by districts 236 Must show purpose on face 235 May be issued in anticipation of special asssessments 235 May be coupon bonds 236 Not to be sold for less than par 236 Penalty for diverting funds derived from sale of bonds 236 To extend time of indebtedness 234 To take up bonds coming clue 280, 282 How issued and sold 281 Proceeds, how applied 281 Tax to redeem 282 INDEX, 447 Bonds, Negotiable — Continued. Money, how invested 282 Cities of first class, with over 150,000 Inhabitants, may issue Bonds for Avenues 279 Improvements 283 Sewerage 284 Avenues unci sewerage 28-i "Water-works 285, 286, 287 Floating debt 288 Commission to ascertain floating debt 289 As to creation of liability and expenditure of money 290 Cities of first class, with less than 100,000 Inhabitants. School purposes 283 Floating debt 290 Viaduct excavation, etc 319 Cities of first class advanced within Decennial Periods, may issue Bonds for Assessments held illegal 278 Cities of second class may issue Bonds for Indebtedness 280 BONDS, OFFICIAL— What officers must give bond 26 By whom to be approved 27 How filed and recorded 27 Other officers may be required to give bond 27 What is necessary to validity of 26 n What is sufficient approval of 27 n Of police 68 To be stamped by corporation 273 Sureties of certain officers, how released 273, 274 BORROWING MONEY. See Loans. BOUNDAEIES. See Townships. BREAD— Inspection of 154 BRIDGES— General power as to 63 Property may be appropriated for 170 And railways, how lighted 129 Provision to be made by ordinance 129 Ordinance to specify manner and time 129' Notice to be given to owner 130 Council may light at their expense upon neglect 130 Expense a lien, and how enforced 130 County commissioners to construct, when 321 BRIDGE FUND— Certain corporations may demand one-half of 322 BROTHELS— May be suppressed 61 See also Health, Boakd of. 448 INDEX. BUILDINGS— Erection of maybe regulated Co, 101 "Wooden buildings may be prohibited on square on petition 101 In cities of first class, wooden buildings may be prohibited within certain limits 101 Lighting of 63 To have ample facilities for egress 292 Unsafe, may be condemned by fire engineer 306 BUTTER— Inspection of 154 BY-LAWS. See Ordinances. CANALS— General powers as to 64 Expenses may be assessed 210 Property .may be appropriated for 170 Swing bridges may be constructed over by certain villages 321 CAR SHOPS— Certain villages may construct 320 CATTLE, ETC.— Running at large may be prohibited 62 CEMETERIES— General power as to 65- Council may provide 110 Title to what cemeteries to vest in corporation 110 Board of Trustees. Control to be vested in 110 How elected, term, etc Ill Duties and powers of Ill, 112 To appoint clerk, make annual report, etc 112 Disbursing trustee to give bond 116 Enlargement of grounds 113 Union Cemeteries. Townships may unite with corporation in 113, 115 Corporation to appropriate necessary land 113 How governed and controlled 113, 114 Joint meeting of trustees and council, how conducted, etc 114, 115 Two or more corporations may unite in 295 How managed 295 Mihcellaneous. Grounds may be purchased of cemetery association 115 Prior sales of lots not affected by such sale 115 Clerk to record plats of grounds 115 Council may regulate 116 Interment may be prohibited within corporate limits 116" Exceptions as to incorporated villages 116 Portions may be sold, how. 294, 296 Property may be appropriated for 170 INDEX. 449 Cemeteries — Continued. Property in villlago with cemetery exempt from township cemetery tax 205 Certain villages may convert cemetery into park 206 CENSUS— When taken, and how ~ 10, 12 change of name of street 102, 163- chief of police- To be appointed in cities of the first class 10 Bond of 26 Duties and powers of 48 Compensation of 48 To pay over money to clerk of police court 48 CITIES OF THE FIEST CLASS— What are to be 2 Population requisite for 2 How named 3 Officers of 20 CITIES OF THE SECOND CLASS— What are to be 2 Population requisite for 2 How named 3 How advanced to city of first class 11-13, 250 How reduced to incorporated village 246 Officers of 18 CITY COMMISSIONER— In city of second class to be elected 18 To be superintendent of streets, etc 18 Bond of. 26 CIVIL ENGINEER— In cities of first class to be appointed 19 May appoint assistants 20 In cities of second class council may create and prescribe mode of election or appointment 18 To have seat in council 30' Duties of. 32 Salary of. 52 Bond of. 26 To be member of board of improvements. 164 CLASSIFICATION— Of municipal corporation _^^-...^. — „ ....~..~.~.~ 1 CLERK— Of Village for .Special Purposes. How appointed 14 To act as treasurer 14 Receive moneys, give bond, etc 16 Of Village. To be elected 17 To receive papers, etc., from trustees on advancement 11 450 INDEX. Clerk — Continued. Of City of Second Class. To be chosen by council 18 Of City of First Class. To be chosen by council 19, 20 May appoint assistants, etc 20 ■Of Cities and Villages generally. To receive and canvass election returns and issue certificate of election 25 Give bond 2G To certify publication of ordinances.. 35 To certify transcripts, and fees for such services 86 General duties of 43, 4-4 How place supplied 44 To certify election of officers having powers of justices, or to take acknowledgments, etc 45 Penalty for neglect 45 Seal of 46 To record plat of cemetery grounds 115 To deliver vouchers, etc., to auditor when office is created 46 In Cities where there is no Auditor. To perform duties of auditor 46 To record receipts, expenditures, etc 44 To make out and publish condensed statement ,. 44 To report to auditor of state 44 Penalty for neglect 45 CLEEK OF POLICE COURT— To be elected 19 To appoint assistants 20, 56 Oath and bond of 26, 56 To receive fines from chief of police 48 Duties of 56, 57 Salary of self and deputies 56 May admit to bail 57 Substitute for 57 Shall not be counsel or agent in any case 57 To account for fines, etc 57 COMBUSTIBLES— Transportation and keeping of may be regulated *.. 63 COMMITTEE— Of council may compel attendance of witnesses, administer oaths, etc 32 COMMITMENT— To house of refuge or correction. See House of Refuge. CONDEMNATION. See Appropriation of Private Property. CONTRACTS— General power to 3 For improvements, how made 195 Contracts and expenses not to exceed certain revenue 233 INDEX. 451 Contracts — Continued. To be made for services and supplies 233 Must go into operation during term of council 233 By officer not binding, unless appropriation made or express author- ity given • 331 Void if in excess of estimated levy 409 Not to be made without money in treasury to pay the same 289 How sureties released 273 For power to contract of the various hoards, sec those heads. CONSTABLES— In cities and villages coterminous with township, how elected 327 In cities of the first-class, of less than 80,000 inhabitants, to be on same ticket with officers of city 328 CONVICTS— power to regulate labor of 67 COUNCIL— May provide for the appointment and election of other necessary officers 21 To confirm appointments 21 To define duties of officers and fix salaries 21, 22 To fix place or places of election 24 Vested with legislative authority of the corporation 28 To control finances and property 29 First meeting of. 29 Organization of. 30 To be judge of election of members, keep journals, and compel at- tendance, etc 30 What officers to have seats in 30 Meetings to be held not more than once a week, and to be open to public 30 Special meetings, how called 31 May compel attendance of witnesses, etc 32 May remove elected officer, how 32 May remove appointed officer, how 32 May provide for juries in city courts 54, 58 To fix number of police 68 To provide for prisons, station-houses, and sustenance of prisoners..70, 71 May determine disposition of articles unfit for food 156 Members of. Qualification of 28 Not eligible to municipal office 23, 31 Effect of alteration in boundaries of wards on .' 28, 109 To receive no compensation 31 Not to be interested in contracts 31 Penalty therefor 31 Officers and employes not eligible as 32 How expelled 32 "When elected in new wards 119 452 INDEX. Council — Continued. How elected in wards 120 How length of term decided in certain cases 302 Of village May create offices of solicitor and street commissioner 18 How constituted 28 Terms of members 29 First meeting and organization of. 29 Of cities of second class. May create certain offices 18 How constituted and organized 28, 29 Of cities of first class. May provide for appointed of lieutenants of police 20 How constituted and organized 28, 29 Of cities of first class having more than 150,000 inhabitants. To consist of two boards 297 How boards are constituted 298 Board, how organized 298 Restriction as to meetings 298 Legislative acts must be by both boards 299 One week must intervene between the action of the boards in certain cases 299 Joint session, how held 299 Special meetings, how called 299 To have same powers and duties as other city councils 299 All laws and ordinances regulating city councils and members to apply to the common council and members of boards 299 To elect all officers viva voce 298 COUNTY COMMISSIONERS— Duties as to organization of villages. See Villages. May prohibit use of county jail, when 39 COURTS— To take notice of existence of villages 6> To take notice of the advancement of corporations 11, 13 Revising proceedings of police court, to take judicial notice of ordi- nances 56 May entertain application of tax-payer for injunction against corpo- ration, when 51 Order in such case 51 CRIMINALS— Power to punish 66 DAMAGES BY IMPROVEMENTS— Claims to be filed in writing with clerk 198, 199 To be asssessed by jury before or after improvements, as council may determine 200 Proceedings in assessment 200, 201 In case of omission to be assessed by three assessors to be appointed by council 201 INDEX. 453 Damages by Improvements — Continued. Assessment to be returned to clerk and paid out of corporation treasury 202 Persons not recovering more than assessment to pay costs L'i»^ No suit to be brought for, until sixty days after claim hied 202 DEBTS— For ordinary purposes not to exceed current revenue 2-\2 See Bonds and Borrowing Money — DEDICATION— Must be accepted by council 134 How made 130, n Who can make 13">, n To whom it can be made 135, n How forfeited 138 See Streets and Platting of Grounds. DISORDERLY CONDUCT— May be punished 60 DISORDERLY HOUSES— May be suppressed 61 DOGS— May be prevented from running at large, and destroyed 63 DRAINS AND DITCHES See Sewers. DRINKING HOUSES— May be regulated 15, 61 DRUGGISTS— In certain cities to be examined and registered 335 ELECTION— First election of officers of village, when held 7 "What notice to be given, and how governed 8 To determine on advancement of village for special purposes 9 First election after advancement, when held 11 To determine on advancement of village or city of second class, when held ' 12 First election of officers, when held 13 General Rules. Regular election, when held 24 Mayor to give notice of 25 "Who may vote 25 How conducted 25 Council to designate places of election 2-1 Judges of election in corporation not divided into wards 25 Returns, how made 25 Tie vote, how settled 26 Special elections, when held 21 To be for unexpired term 22 Notice to be given by mayor 24 Mayor to fix places of special election 24 Contest of elections in cities of first class 26 Contest of elections in other corporations 26- 454 INDEX. Election — Continued. Elections in new wards, when held 119* Elections of members of council in new wards 120 EQUALIZATION, BOARD OF— In cities 411, 412 EXCAVATIONS— In city or village, depth of 163 Owner liable for deeper excavations 1G4 EXPLOSIVES— Transporation and keeping of may be regulated 63 FARMERS— Not to be charged for place in market 153 May sell at any time in corporation 153 EAST DRIVING— May be prevented 63 FERRIES— General power as to 66 Council may license 147' May fix rates, terms, etc 147 EINES, PENALTIES, AND FORFEITURES— What shall be deemed reasonable 36 Court may reduce when unreasonable 38- How recovered 38 Form of pleading in actions for 38 When suit must be commenced 38 Commitment for non-payment of. 38 How worked out 67 Ordinances may be enforced by means of. 37 Surplus over expenses of police court to go to common schools 57 May be recovered before whom 38 EIRE ALARM TELEGRAPH 305 EIRE DEPARTMENT— General power as to 65 Council may erect buildings, provide apparatus, etc 65, 10O Prevent erection of wooden buildings 101 Provide for investigation of causes of fire 101 Property may be appropriated for the use of the 169 - In Cities of the First Class, having more than 90,000 Inhabitants. Board of fire commissioners to be appointed 303 Term of office and qualifications 304 Meetings and proceedings of board 304 Powers and duties of board 304 To certify levy to council, build cisterns, etc 305 May appoint officers and employes 305 To control fire alarm telegraph 306- Engineer and assistant- to act as fire wardens 306- In Cities of the First Class, having more than 90,000 and less than 150,000 Inhabitants 307 Appointment of board of fire commissioners 306- INDEX. 455 Fire Department — Continued. Meetings and proceedings of board 307 Powers of board 307 Taxes and expenditures for department 308 Appointment of officers 308 Fire alarm telegraph.. 308 Engineer and assistants to act as fire wardens 309 In certain ('Hies of Second Class. Teams and employes of department may be worked 309 FIRE ENGINEER— Office may be created in cities of second class 18 To be appointed in cities of first class 19 To be elected or appointed in cities of over 180,000 inhabitants 20 Compensation of 91 Bond of. 26 Duties of. 52 Salary of. 52 May investigate causes of fires 101 Proceeding in such case 101 Assistants to be appointed or elected 20 FIRE, INJURIES FROM— Power to guard against. 63, 100 FISCAL YEAR, WHEN TO END ,..• 437 FISH, SALT— Inspection of. 154 FISH, FRESH— Inspection of 154, 156 FLOUR— Inspection of. 154 FORESTALLING MARKETS— May be prohibited 152 FUNDS— May be transferred for sanitary and street-cleaning purposes 226 Transfer of prohibited 230 Amount of to be determined at time of levy 230 Advance of may be demanded by county treasurer 435 GAMBLING— Power as to prevention of. 60, 61 Implements, council may authorize destruction of 61 GAME— Inspection of 156 GAS— Council may provide for laying pipes 63 May regulate price 125 Company not to charge beyond price fixed 125 "When council fix minimum price and company accept, price can not be lowered for ten years 125 "When council may lay pipes in streets 125 By what, charter of company forfeited 125, 126 456 INDEX. Gas — Continued. Gas measures, how appointed, duties, etc 126 Council may erect or purchase gas works 128 To be managed by board of trustees 128 How appointed and elected 128 Powers of trustees 128 Council may prescribe for laying gas pipes and house connections in streets to be improved 128, 120 Costs to be assessed 129 May contract with gas company for lighting streets 322, 300 Exclusive privilege not to be granted to company 126 Property may be appropriated for 1G9 GKADE OF CITIES AND VILLAGES— How ascertained 249 How advanced 2, 9, 12, 250 Of streets. Assessment in case of change 194 See Streets; Damages GAUGERS. See Inspectors. GUNPOWDER— Transportation and keeping of may be regulated 63 Sale of may be licensed 148 HACKNEY COACHES— Stands for 165 May be regulated 62 See Vehicles for Hire. HALLS, PUBLIC— May be erected, how 66, 118 See Towx Hall. HALLS FOR PUBLIC ASSEMBLIES— To have proper means of egress 292 To be inspected and certificate given 292 harbor master- How appointed 147 HAWKERS AND PEDDLERS— May be licensed 148 HEALTH— Powers of village for special purposes as to 15 Power.- of cities and villages as to 65 HEALTH, BOARD OF— May be established 6o How composed 9o Term of members 93 To serve without compensation 93 To appoint officers «"* Such officers to serve during pleasure 94 May make regulations as to health 94 Regulations, when approved, to have force of ordinances 96 To make report 99 INDEX. 457 Health, Board of — Continued. What report must contain 99 Expenses of. how paid 99 Powers of board as to. Nuisances 94 What may be declared a nuisance 94 Expense of abatement a lien 97 Order to abate, how served 97 Proceedings thereon 97 Water-closets and privy-vaults 94 Registers of births and deaths 94 Infectious diseases and infected persons 9-3 Brothels, inmates of to be recorded 90 Minor prostitutes, how to be disposed of. 96 Diseased inmates, how treated 9G* Hospital expenses a lien on premises where found 96 Sanitary police, how appointed, etc 98 Vaccination to be encouraged by 98 Penalty for disobedience to order of 99 Penalty for disobedience by corporation 99 Penalty for escape of infected person 95 How penalties recovered 99 HOGS— Inspection of 156 HOSPITALS— For sick prisioners, how established G7 General power as to 65 To be erected and controlled by board of hospital commissioners 87 Board, how constituted, term, etc 87 To receive no compensation 87 Powers as to erection of buildings 87 Plan must be approved by council 88 Meetings, etc., of board; record, etc 88 Forms of contract, etc 88 To control hospital when completed 89 To appoint officers 87, 90 Compensation of officers to be approved by council 90 When contract may be made with private hospital 90 Act not to apply to Commercial Hospital of Cincinnati 90 Property not to be sold 239 Property may be appropriated for 1G9 HOUSES OF REFUGE AND CORRECTION— Council may establish 72 Board of directors, how constituted, etc 72, 73 To receive no compensation 73 Record and proceedings of board 73 Contract, forms of making 73 Board to appoint officers, etc 73, 74 Powers in erection of buildings same us hospital commissioners 73 458 INDEX. Houses ok Refuge and Correction — Continued. Male and female inmates to be kept separate 74 How separate buildings erected 74 May make rules and regulations, contracts, etc 74 Appropriations for unusual purposes to be approved by council 74 By-laws, rules, etc., to be approved 74 Books to be kept, how 74 Quarterly statement made to council 75 Accounts to be balanced, published,- etc 75 Superintendent, power and duties of. 75 Deputy superintendent 75 Board to publish notice of completion of building 76 Bemoval of officers 76 What infants may be received 76, 77 Liable to confinement in jail, may be sent there till of age 77 May be committed on recommendation of grand jury 77 Court may commit, when 78 Infants entitled to private examination and trial 78 "When to be placed at hard labor 77 Infants under sixteen committed for trial, or as witnesses, to be sent to 78 Board may refuse to receive, when 78 Statement of age, etc., to be furnished with infant 79 Commitment, record of, how made 79 Term of 79 Board may discharge 79 Infants, how employed 79 Apprenticeship, how bound out to 80 When indentures canceled and infant reclaimed 80 Fugitives from house, how arrested 80 Stubborn and irreclaimable infants to be delivered to sheriff. 81 Proceedings thereafter 81 Expenses of house, how paid 81 Habeas corpus, return to 82 Commitment reversed by action 82 Beal estate belonging to, how sold 83, 289 Actions by or against, how brought 83 Act not to affect houses governed act of April 16, 1857 83 How governed under act of 1857 310 {Subscriptions may be received for 310 Board of directors, how constituted 311 Powers and duties of 311, 312 Tax for 312 Visitation of 312 What infants to be received 312-314 Statement to accompany infant 314 Term of commitment, employment and apprenticeship 315 Board may discharge 315 Indentures, how canceled 315 INDEX. 459 Houses of Refuge and Correction — Coniinved. Inmates escaping, how arrested 316 Expenses of infants, how paid 316 Habeas corpus, return to 316 Commitment, how reviewed 310 Sale of real estate 317 Actions by and against 317 Property may be appropriated for lG'J HOUSES OF ILL-FAME— May be suppressed Gl See Health, Board of. HUCKSTERING— May be regulated 148 May be licensed 148 IMPRISONMENT— Ordinances may be enforced by 38 Not to exceed thirty days 38 Vagrants, etc., may be imprisoned longer for repeated offenses 66 Non-payment of fines punished by 38, 67 How worked out 67 Labor to be regulated by council 67 Sick prisoners to be cared for 67 When to be in the corporation or county jail 38, 3D IMPROVEMENTS— Must be recommended and supervised by the board of improve- ments 166 What to be paid for by general tax 180 Two-thirds vote, when requisite 186 Cost of others may be assessed 202 Contracting, mode of, for 195, 196 Council must declare necessity by resolution 197 Resolution to be published 197 Claims for damages to be sent in to clerk 198 Claims not filed in time barred 199 Costs may be paid in whole or in part by general levy 204 Portion of cost of street improvements must be paid by corporation. 204 Costs of street intersections also to be paid by corporation 206 Mode of assessment for, see Assessments. Mode of assessing damages by, see Damages. Mode of assessing compensation for land taken for, see Appropria- tion of Private Pkopekty. IMPROVEMENTS, BOARD OF— Council may establish .' 164 How constituted in cities 164 How constituted in villages 167 Duty of board 165 May adopt rules and regulations l'i-> Appoint clerk 165 Clerk's powers and duties 165 400 INDEX. Improvements, Board of — Continued. No improvement to be made without recommendation of 1G6 To supervise public works and improvements 167 Petitions for improvements to be presented to 167 Members to receive no compensation 168 To recommend sale or lease of corporate property 238 INDECENT CONDUCT— May be punished GO INFIRMARY— To be governed by board 91 Election, term, etc., of members 91 To receive compensation as provided by council 91 To have powers of hospital commissioners 91 Duties as to inmates of infirmary 92 May contract with orphan asylums for support and education of orphan children 327 May grant outdoor relief 369 To have powers of township trustees as to apprenticeshp, removal of paupers, etc 158, 369, 370 Can not charge county infirmary with support of paupers whose res- idence is unknown 370 Property belonging to how disposed of 371 Property may be appropriated for 169 INSPECTORS— May be appointed, for what 154 How appointed and licensed 154 Amount of license 154 To be for one year 154 License may extend to one or more articles 155 Powers and duties of 155 Oath and bond of 155 May appoint deputies 155 Persons injured by, may recover 155 How removed 156 Of oil to be governed by act of 1867 156 Pees of 156 Of beef cattle, sheep, etc. To be appointed by council 156 Council to fix duties, term of office, and salaries 156 Oath and bond of 156 Council may determine the disposition of articles unfit for food 157 Compensation of 157 For other purposes. May be provided for by council 157 Council to fix licenses, fees, etc 157 Term not to exceed three years 157 INTERMENTS— Power of council of cities to prohibit 116 Power of council of villages to prohibit 116 INDEX. 401 IEEEGULAEITIES IN MAKING ASSESSMENTS— May be disregarded by court 190 JAIL— Power to establish jaila 6& Corporations having no jail may use county jail 39 County commissioners may prohibit use of, when 39 JURISDICTION— Of mayor 40 Of police court 02 - When corporation embraces territory situated in two or more counties 8 JUSTICES OF PEACE— Powers as to election of justices not affected by act 252 Election in cities co-extensive with township 327 May be elected on same ticket with city officers in cities having less than 80,000 thousand inhabitants 328 Fines, penalties, and forfeitures may be recovered before 37 To have jurisdiction in prosecutions for violation of ordinances of villages for special purposes 16 How sureties of released 274 LABOR ON POADS 1G0, 101 LABOR OF CONVICTS— Power to regulate 67 LARD— Inspection of 154 LECTURES— What may be, regulated 62 LEVEES— Property may be appropriated for 170 LEWD CONDUCT— May be punished 61 LIBRARIES— General power as to 66 Tax for in certain cities 324 How organized and controlled 324, 325 LICENSES— May be granted to Ferries 148 Shows and performances 148 Hawkers and peddlers 148 Auctioneers of animals 148 Auctioneers of merchandise 62 Venders of gunpowder and other explosives 148 Taverns and houses of entertainment 148 Hucksters 148 Vehicles for hire 148 Undertakers 148 Pawnbrokers 149 Gangers and inspectors 154- -462 INDEX. Licenses — Continued. May not be granted to Places for retailing liquor.- '. 326 Council may exact such sums of money for license as they deem proper 148 To be signed by mayor 41 LIFE ESTATES— Assessments on, how regulated 187 LIGHTING— Property may be appropriated for lighting any public use 170 Bridges and railways, see Bridges. Streets, see Gas and Streets LIMITS— Of corporations not affected by act 1 Change of, see Annexation. LIVERY STABLES— May be regulated 62 LOANS— In anticipation of general revenue 234 In anticipation of sanitary and street-cleaning tax 226 To extend time of indebtedness 234 In anticipation of tax for improvements 234 In anticipation of special assessment 235 Penalty for diverting loans from purposes for which it was made.... 236 LOTS— May be ordered to be filled up 150 See Nuisances. MARKETS Lighting and opening spaces for 63 General powers to establish 65 Council may regulate 65, 151 May prevent forestalling and huckstering in 153 Farmers may sell therein produce 153 What is a 152, n Property may be appropriated for market spaces 169 MARSHAL— In cities and villages to be elected. 16, 18 Powers of 46 May appoint deputies 46 Jurisdiction of 47 Fees of 47 Salary of 47 To pay over fees to mayor 47 To report to council - 47 Bond of 26 Office of, abolished in cities of first class having less than 100,000 inhabitants at last census 357 0/ village for special purposes. How appointed 14 INDEX. 4G3 Marshal — Continued. To act as supervisor 14 Fees of 15 Salary as supervisor 16 Bond of 10 MAYOR To be elected 17, 18, 20 To appoint officers created by corporation 21 To fix time and place of special election 21 To issue proclamations for election 24 To be conservator of peace 40 To bave jurisdiction of justice of peace, both civil and criminal.. ..40, 41 Jurisdiction in criminal cases co-extensive with county 40 Appeals, how taken 43 Fees of 40 Docket of 40 "Where to keep office 40 Seal of 40 Duties of 41 To supervise officers, etc., enforce ordinances, etc 42 To sign licenses, commissions, etc 41 May grant use of prisons to adjoining townships 42 May suspend certain officers 42 To make annual report 42 To pay over money coming into his hands 42 To act as police judge, when 43 Bond of 26, 43 Salary of 43 Vacancy in office, how filled 43 To be member of board of health 93 To be member of board of improvements 164 To be member of board of revision 233 To record protest against excessive expenditures 233 To have seat in council 30 In village to be president of council 30 To have veto power in certain cities 300 To divide certain wards into precincts upon failure of council to do so. 300 MAYOR'S COURT— Appeals from in certain cases .' 331 Juries and talesmen in 58 Costs and fees in 5!) Powers as to contempts, etc., in 59 Police justice may be appointed for, when 41 MEASURING— Of articles may be regulated 63 MEAT— Inspection of 154 MILK AND MILK COWS— Inspection of 156 464 INDEX. MUNICIPAL CORPORATIONS— To ho governed by this act 1 Limits and wards not changed 1 Classification of 1 How named S General powers and capacities of. 3, 61-65 Liability for acts of officers 10 n How municipal rights surrendered .240, 247 Grade of, how ascertained 249 Secretary of state to publish list of 250 Visitation of 251 Existing rights and liabilities not affected by this act 251 To retain powers as to benevolent and other institutions 251 Officers to continue to hold for their respective terms 251 Ordinances, etc., to remain in force 253 Holding stock or bonds of railroads, may become parties to new ar- rangements 276, 277 name of streets- How changed 1G2, 163 National road may be controlled and repaired by city or village 399 NUISANCES— General power as to 60 Council may compel removal of. 150 Notice to owners 150 On default of owners, council may remove at their expense 151 Expenses to be a lien on property 151 Certain cities of second class may levy special tax to abate 320 See also Health, Board ok. OFFICERS— Of incorporated villages 17 Of cities of the second class 18 Of cities of the first class 19 Term of elected 20 Term of appointed 20 Council to define duties of. 20 Vacancies, how filled 20 Resigning, not eligible when salary has been increased 22 Who an; eligible for 26 To take oath of office 26 What officers must give bond 26 Bow approved and filed 27 Council may require bonds from other officers 27 "Within what time oath to be taken and bond given 27 Not to be interested in contracts 31, 290 Nor act as commissioners, etc 31 Penalty therefor 31, 290 Elected officer, how removed 32, 328 Appointed officer, how removed 32 Elected by council by viva voce vote, when 29$ INDEX. 465 Offic ers — Continued. To be under supervision of mayor • 42 Existing Officers not affected by act 2-32 Not to enter into contracts, unless expressly authorized or money appropriated 331 Contract to be void and officer personally liable in such case 331 Jurisdiction when corporation lies in two counties ' 8 In Villages for Special Purposes 14 How appointed and removed 14 To take oath of office 16 Officers of special road districts to be officers of villages «„ 16 In Villages 16 In Cities of Second Class 18 In Cities of First Class 19 OILS— Inspection of 154 ORDINANCES— In Villages for Special Purposes. How passed and enforced 16 Of special road district to remain in force 16 In Cities and Villages. . How passed 33, 34 Money must be appropriated by ordinance 34 No ordinance to contain more than one subject 34 Revival or amendment of ordinances 34 Eecord of 35 To be signed by president and clerk 35 Publication of 35 Non-publication a defense 36 Clerk's certificate prima facie proof of publication 35 Method of publication 36 Printed copies and transcripts to be evidence 36 How enforced 36, 37 May be vetoed by mayor in certain cities 301 If vetoed, ordinance to be returned within ten daj's 301 May be passed after veto by two-thirds vote 301 Effect of failure by mayor to return within ten days 301 ORGANIZATION OF VILLAGES. See Villages. ORPHAN ASYLUMS— Directors of infirmary may commit children to 327 OVERSEERS OF THE POOR— How appointed 92 Compensation of in certain cities U2 PARKS— General powers as to 65- Commissioners, how appointed 117 To serve without compensation 117 To have powers and duties of trustees of cemeteries 117 Officers, how appointed 117 466 INDEX. Parks — Continued. Compensation of officers 117 Council to have police jurisdiction over parks outside of limits 118 Property may be appropriated for 169 In Villages. Member of council may be member of commission 117 In Cities of First Class of more than 150,000 Inhabitants. How governed 332 Commissioners, how appointed 332 Meeting of board 332 Minutes of proceedings 332 Power to adopt rules, etc 333 No person can create liability without express authority of board... 333 No commissioner or employe to be interested in contracts 333 Charge of interest, how tried 333 Contractors must file statement under oath 334 Contracts, how made 334 Board can not incur liability beyond funds 334 Money in park fund, how paid out 335 Annual report to be made 335 PAWNBROKERS— To be licensed 149 To keep record of all transactions for inspection 149 Penalty for not doing so 150 PEARL ASHES— Inspection of 154 PEDDLERS— May be licensed 148 PERFORMANCES— May be regulated 62 May be licensed 148 PHARMACEUTICAL BOARD— How appointed in cities having over 150,000 inhabitants 335 Powers and duties of. 336, 337 PLANS AND PROFILES— Of improvements to be recorded, where 198 PLATTING OF LANDS— How made 425 Commission, how appointed 426 Plat to be deposited in recorder's office 426 Owner may accept, how 427 Owner accepting not to be assessed for other lands 184 Joint platting commissions 427 Improvements subsequent to plat not to be paid for 427 Plats may be amended 427 Territory may be divided 428 Corporation can not accept streets not on plat 428 Town plat, how made 417 INDEX. 4G7 Platting of Lands — Continued. Lots to be numbered 417 Monuments to be set up 417 Plat to be acknowledged and recorded ... 417 Must be approved by council before record 418 Plat to vest fee in county 413 Penalties for failure to comply witb act 419 Vacation of town plats 419 Notice of application to vacate 420 When court may vacate 420 Any person feeling interested may defend 420 Commons may be changed into streets 421 Vacation of street or alley by court of common pleas 421 Petition for vacation, and notice .. 421 Vacation of plat or part of plat 422 423 Any surveyor may be employed to plat 423 Renumbering of lots, when and how done 423 424 Company laying out avenue through village must obtain consent of trustees 429 Lost or destroyed plats and records, how restored 430 431 In Cities of the First Class, having less than 150,000 Inhabitants. Appointment of platting commission 428 Powers and duties of commission... 428 429 POLICE— In certain cities not to be affected by act 21 70 General power as to police 65 How appointed, term, etc (38 Bonds of. gg Officers, how appointed 19 68 Reserved watch, how appointed and called out 68 Organization of police 68 Duties and powers of. 69 Suspension of. 69 Special policemen 69 Compensation of 70 In Cities of First Class having a Population of more than 200,000. Police power vested in mayor 339 Mayor to have immediate control 339 To make regulations , 339 Appointment and pay of officers 339 Superintendent 340 Clerk of police department 310 Official oath and bond of police 340 Uniform of police 341 Vacancies how iilled 341 Mayor may summon witnesses 341 Stolen property, disposition of. 341 Payment of police 342 Report of clerk to be made monthly 342 468 INDEX. Police — Continued. Estimate to be transmitted to council yearly 342 Disabled policemen may be paid 343 Gifts, proceeds of sale, etc., how disposed of 343 Substitutes 343 In Cities of First Class with a Population of less than 100,000 at last Census. To be governed by board 343 City to be districted, and board elected by districts 358 Term of members, etc 358 Powers and duties of board as to appointment, etc. 345, 347 Charges against policemen, trial, etc 348 Rewards, extra fees, etc., how disposed of. 349 Disabled policemen, how supported 350 Board may divide city in precincts, and establish stations 350 Special policemen 350 Mayor may suspend policemen 359 Contingent fund 360 Additional patrolmen 351 Resignations, etc 351 Stolen property, how disposed of 351 Registry of missing property 352 Prisoners, how kept, etc 352 Expenses to be paid by city 353 Levy for, how made 354, 357 Police fund, how drawn 354 "What expenses may be incurred by board 354 Board to enforce ordinances, quell riots, etc 355 May issue subpenas, administer oaths, etc 355 Oath of office of police 355 Police exempt from jury duty 356 Penalty for violence to policemen 356 Members of board, how removed 356 Commissioners and policemen can not be candidates for other office... 356 Deputy superintendent may be appointed 357 Policemen not to enter drinking or gaming saloon 357 Office of marshal abolished 357 In Cities of First Class, advanced betiveen Decennial Periods. Each ward to be a district • 363 Police board, how elected 364 Term of office, etc 364 Mayor to be president ex officio 364 Officers of board, salaries, etc 365 Power and duty of board 365 May suspend or remove member of force 365 Members of board and force ineligible to other office 366 "What expenses maybe incurred by board 366 Reports to be made 367 INDEX. ' 469 Police — Continued. In Cities of First Class having more than .30,000, and less than 35,000, at last Census 361, 362 Cities of Second Class between 11,000 and 12,000 Inhabitants, what act applicable to 362 POLICE COURT— To be held by police judge 53 To be always open. ... 54 Mode of transacting business to be fixed by ordinance or rule of court 54 Rules to be made by court 54 Record, how kept 55 Pees in 55 "Witness fees in 55 Writ of error to 55 Revising court to take judicial notice of 55 Return to writ of error 50 Power of common pleas court on return 5(i Prosecutions, bow brought 53 Jurors in police court 54 police judge- To be elected in cities of first class 19 Removal beyond limits not to create vacancy 22 Bond of 26 Power and jurisdiction of 52 Compensation of 53 May adopt rules of practice 54 Substitute for, how appointed.. 54 POLICE JUSTICE IN INCORPORATED VILLAGES— Appointment and duties of 41 POOR— Cities of second class and villages of more than 3,000 may levy lax for , 372 What constitutes settlement 368 Notice to remove pauper 368 Removal of pauper 369 Costs of removal 369 Removal to another state 369 Relief of paupers in special cases 369 Unsettled paupers, relief of 370 May be apprenticed 370 Removal to infirmary of other states 370 Discharge of paupers 371 Disposition of pauper property 371 Property of deceased paupers 371 Sale of pauper lands , 371 See Infirmary. PORK— Inspection of 154 470 INDEX. PORT WARDEN— Appointment of 147 POULTRY— Inspection of 156 POWERS— General powers of corporations - 3, 61, 66 PRECINCTS— Certain wards to be divided into 300 PRISON AND STATION HOUSES— To be established 70 Prisoners, how maintained 71 Custody of where there is no work-house 71 Mayor may grant use of to adjoining township 42 Property may be appropriated for , 169" PRIVY VAULTS— General power to regulate 64 To be regulated by board of health 64 Property may be appropriated for public 170 PROPERTY— Power to acquire 3 How leased or sold 238 : Proceeds, how disposed of 238 Concurrence of board in charge necessary ,.. 238 Belonging to hospitals and benevolent institution not to be leased or sold 239 PROPOSALS— For contracts 195- PROSECUTING ATTORNEY OF COUNTY— May apply for injunction against advance of village for special pur- poses lO' PROSECUTING ATTORNEY POLICE COURT— To be elected in cities of the first class 19 Bond of 26 Duties of 58 Salary of 58 Substitute for 58 PROPERTY— Power to protect 60- PUBLICATION— Of ordinances 35 Of resolutions to improve 197 Of advertisements for contracts 19& As to advertisements of boards for contracts, see under head of the different boards. Of notice of assessment 205 Of notice of condemnation 172 PUBLIC GROUNDS— Dedication of. See Dedication. INDEX. 471 Public Grounds — Continued. Rights of owners of property abutting upon 145, n Power of board of improvements as to. See Improvemkxts, Board of. PUBLIC HALLS— General power as to 66 Council may erect or enlarge 118 May appoint superintendent, provide for making contracts, etc 118 To control hall when erected 118 Property may be appropriated for . 169 See Town Hall. RAILROADS— Streets may be extended across 170 Lighting of 129, 130 May occupy streets and public grounds, how 373 Council may require two tracks in streets to be used in common 374 Speed of railroads in corporation may be limited 374 Cities of First Class, with Population of 150,000 may build. Council to declare road essential 376 Election to be held on question 377 Trustees, how appointed 378 Organization and duties of board 379 Board may take security from officers 380 Members of board, how removed 380 Power to appropriate land 380 May purchase other railroad 380 Portions may be rented as completed 381 Compensation of trustees 381 City may advance money to trustees 381 Rights of bondholders 381 Deeds and actions in what name commenced 382 Occupation of streets 382 Proceedings to lease the road ~ 382 City of First Class, advanced between Decennial Periods, may build. Council to declare it necessary 383 Vote to be had on question 388 Trustee, how appointed 384 Organization and duties of. 384 Board may require security from officers 385 Trustees, how removed 385 Power to appropriate land 385 May purchase right of way, etc 386 May rent or lease portions 386 Compensation of trustees 386 City of Second Class, with Population of 9,229, may build. Council to declare necessity 375 Vote to be had on question 375 Funds, how disbursed by council 375 Council may take security from officers... 376 472 INDEX. Railroads — Continued. Power tn appropriate lands 376 May be sold or leased when completed 376 See Street Railroads. READING-ROOMS— Power to establish 66 REAL ESTATE— Power to acquire 3, 66 General power to sell 66 Power to sell or lease 228 REASSESSMENT— "When and how made 191, 192 RECORDER, COUNTY— Duty of in organization of villages 6, 7, 8 In advancement of village, for special purposes 10 In advancement of villages and cities 12 In annexation of territory 240, 245 In surrender of municipal rights 247 RESOLUTIONS. See By-Laws. Distinction between ordinances and rasolutions 33?i REVISION, BOARD OF— How constituted 233 Duties of 233 RIOTS— Power as to 60 ROAD TAX. See Streets.. SALARIES— To be fixed by council 22 Not to be changed during term unless office is abolished 23 May be garnished 47w SCHOOLS— General power as to 06 Surplus of fines, etc., to go to- schools 57 School property not to be sold without consent of board of educa- tion 239 Property nay be appropriated for 169 See University. SEALS— Of municipal corporations 3 Of mayor 40 Of clerk 46 Of police court 53 SECOND-HAND STORES— Must keep sign and register 406 Must not deal with minors or apprentices 407 ]\lust only be kept open at certain hours 407 Penalties for violation 407 INDEX. 473 SBWEBS AND DRAINS— In Cities on 'I Villages. General power us to 64 General plan to be adopted, showing districts, etc 211 Plans and specifications, how prepared and adopted 212 Engineer to make estimate for 210 Ordinance for construction, how passed 21G Cost of main sewer, how assesse'd 215 Limit of assessment 217 Cost of local sewerage, how assessed 217 "What portion of lots may be exempted 217 Limit of assessment to $2 per front foot 218 How made according to benefits 218 Assessments may be certified to county auditor 219 To be a lien 219 Collected like other assessments 219 New districts, how formed 219 Main sewer districts may be divided 220 Assessments where a portion only of the sewers are constructed 220 Local sewers, how constructed 220 Proceedings where land is subdivided after first assessment 221 House connections may be put in and costs assessed 221 Tapping sewers, how regulated ,. 222 Repairs of sewers may be made 222 Property may be appropriated for 170 Ditches may be constructed as sewers 222 Eights of adjacent owners as to drains „.. 323 In Cities of First Class having more than 100,000 Inhabitants. To be under care of sewerage commission 211 How constituted 211 To have powers and duties of board of improvements 211 In Villages for Special Purposes. To be under charge of trustees 14 SHEEP— Inspection of 15(i SHOWS AND PERFORMANCES— May be regulated 61 May be licensed 148 sidewalks- How constructed and repaired 207 On turnpikes, how constructed 207 May be constructed on one side only 208 Property can not be assessed when a sufiicient sidewalk is main- tained 208 Along public property 208 SINKING FUND— Tax to be levied for 237 Penalties for misappropriation of 237 Tax for sewerage bonds to be levied by districts 2'u Penalty for misappropriation of. 238 474 INDEX. SOLICITOR— Office of, may be created in village 17 To be elected in cities 18, 19 In cities of first class may appoint assistants 20 Removal of beyond city limits not to create vacancy 22 To bavc scat in council 30 Duty as to suits 50 To pay over money received to treasurer 50 When to apply to courts for injunction against corporation 50 In case be refuses tax-payer may apply 51 Duty of court in such case 51 To make annual report 51 Salary of 52 Bond of 26 To be amember of board of revision 233 SOUTHERN RAILROAD OF CINCINNATI— Acts authorizing construction of, etc 376-383 SPIRITS— Inspection of 154 SPRINKLING STREETS 131-133 See also Streets. STATION HOUSES. See Prisons. STOCKS, RAILROAD— Belonging to coporations may be sold 276 STREETS— Property may be appropriated for 169 Council to keep open, in repair, and free from nuisances 133 To prevent injury from overloading vebicles 63 To regulate width of tires 135 Change in name of. Petition to be filed 162 Change to be made by ordinance 162, 163 Cleaning. General power as to 64 Board of improvements to supervise 165 Improvements or Repair of. Must be recommended by board of improvements 166 Expenses may be assessed 202 See Assessment. Corporation must pay for street intersections 206 Must pay in addition one fiftieth of tbe cost of the improvement 204 "Who may be required to do work on 160 Penalty for refusal to perform i 161 Road taxes, how to be applied 161 How territory added to corporation for road purposes 161 Penalty for failure to labor, how collected 162 "Who exempt 160, 162, 398 Road tax may be worked out 396, 397 Boundary streets, bow improved 39T INDEX. 475- Streets — Continued. Villages may contract for material for 398 Unexpended road tax to be paid to municipality 406 Lighting. 03 General power as to To be under supervision of board of improvements lt» Expense may be assessed per front foot 202 See Gas. Sprinkling. _ t . May be regulated by council On petition council may sprinkle How it is to be done Expenses to be assessed, bow Assessment a lien, and collected like otber assessments Jo3 Property of religious society exempt unless society join in petition.. 133 Dedication of. 1 "5, n , 134,13 Wbo can make ' To wbom it can be made "' * ' n How it can be made ' „ , . 1S8, n How lost Council to accept by ordinance " See Platting of Lands. Rights of city in ^ ™ Power of city over ' Liability of city for - ' Right of property, owner in ' Vacation of. To be by ordinance on petition " Notice of petition to be given, bow *°* Effect of order — By court of common pleas ' In Cities of Second Class having Population of more than 31,000. Property owners to elect five commissioners 40( >' Organization of commissioners . 40lJ Contracts for paving Street to be under control of city Bonds to pay for improvement Assessment to pay bonds Improvement only to be made upon petition 40* STREET COMMISSIONER— To be elected in cities of first class , 2(5 To give bond Duties of r%) Salary of " ^ May be appointed in districts To collect penalties for refusal to work on streets |°- To bave seat in board of improvements 47G INDEX. STREET RAILROADS— Council may grant permission for and proscribe terms and condi- tions 120 Notice to be given of application for grant 122 To whom giant shall be made 123 Form of streets and pavement in streets when track is laid 124 Consent of property holders must be had 123, 386 "What right may be appropriated 387 May be constructed part within and part without limits 388 How extended, and on what terms, 388, 389 SUPERINTENDENT OF MARKETS— Office may be created in cities of second class 18 To be appointed in city of first class 10 Bond of. 26 Duties of. 52 Salary of 52 SUSPICIOUS CHARACTERS— Power to punish .'. 66 SURRENDER— Of municipal rights 246, 247 TAVERNS— May be regulated 62 May be licensed 148 TAXES— In Cities and Villages. Rates to be levied for certain purposes 223, 224 Limitation not to apply to special assessments 225 Maximum of 229, 230 "What taxes may be anticipated 225 "Where bonds have been issued in anticipation of tax, it may be levied to pay them 228 Greater levies may be authorized by vote of electors 229 Levy for public buildings 229 Taxes to be certified by county auditor by first Monday in June 230 How collected and paid over 231 Corporation may collect its own taxes 231 On lands laid off into lots, but not recorded 232 Levy to pay railroad subscription 408 Board of equalization of property in cities 410, 411 Injunction for illegal assessment of, how brought 411 For General Purposes. Rate in incorporated villages 223 In cities 223 Rate in Villages for Special Purposes 223 TELEGRAPH— How constructed through streets 300 Fire alarm in certain cities 305 TEN-PIN ALLEYS— May be suppressed 61 INDEX. 477 TERMS OF OFFICE— Of elected officers. 21 Of appointed officers 21 Of certain inspectors 154-156 As to terms of special offices, see under the title of each. THEATERS— Must have proper means of egress 292 May he regulated 61 May he licensed 148 town ii alls- How erected in villages and cities of second class 412-415 Vote to be taken 412 Hall and grounds to be under control of trustees 414 May be erected on public square 415 May be let or leased 415 See Public Halls. TOWN PLATS. See Platting of Lands. TOWNSHIP— Officers abolished when township coterminous with corporation 157 Council to perform what duties 158 Directors of infirmary to perform what duties 158 Clerk and treasurer to perform what 158 Property to vest in council 158- Rights and liabilitses to attach to corporation 158 Change of Boundaries of. Boundaries may be changed, on application of council, to boundaries of corporation 159 s Surplus territory, how disposed of 159 After change, territory in corporation to constitute single township. 160 When coporation lies in two or more counties, how application to be made 160 See Annexation. TREASURER— Of cities and villages to be elected 18, 19 Of city of first class to appoint assistants 21 County treasurer to act as city treasurer, when 20, 50 Duties of. 48 Settlement and account 49 Compensation of 49 To get money from county treasurer 50 Bond of. 26 Settlements of. 432 What is embezzlement by 433 Penalty for 434 Authorities may sue for money wrongfully deposited 434 May deposit funds in hank, when 435 County treasurer to act as city treasurer, when 436 May demand advances of money from county treasurer 435 Fiscal year to end January 1st 437 478 INDEX. Treasurer — Continued. In Village for Special Purposes. / Clerk to act as treasurer 14 TRUSTEES OF VILLAGES FOR SPECIAL PURPOSES— How elected, term, etc 13 Vacancy, how filled » 14 Powers of. 14, 15 May make by-laws and ordinances, and enforce them like other cor- portions 15 All must concur in order for opening or improving streets 14 Two-thirds of property owners must petition for improvement 14 Trustee not to receive compensation for services as such 15 Clerk to act as treasurer 10 TURNPIKES— May he appropriated 171 Sidewalks along 207 "When turnpikes kept in repair by corporation 208 How corporation compelled to keep in repair 209 How compelled to purchase 209 Corporation may improve with consent of company 209 Right to toll not impaired by act 210 May be abandoned by contract with corporation 391 How forfeited 392 Built by commissioners with bonds, how forfeited 393 TURNPIKES, FREE— Villages may contribute to construction of. 394, 395 TWO DAYS' LABOR ON ROADS. See Streets. UNIVERSITY— City of first class of 150,000 inhabitants may take funds for 437 How managed 438 Property may be appropriated for 169 UNDERTAKERS— May be licensed 148 URINALS— Tax may be assessed on general duplicate for public 182 Vacancy in office— How filled 22 Created by removal from corporation 22 Exception in favor of solicitor and police judge 22 Created by failure to take oath and give bond in ten days 27 Vacation of streets, etc 162 See Streets. VACCINATION— Board of health to encourage 98 vagrancy- How punished 66 VEHICLES— Fast driving may be prohibited 62 Overloading may be prohibited 63 INDEX. 479 "Vehicles — Continued. Width of tire on may be regulated 135 For Hire. May be regulated 63 May be licensed 148 Stands to be established for 135 VETO— Of mayor in certain cities 800 VILLAGES— For General and Special Purposes, how organized. Petition to county commissioners 4 Proceedings thereon 5 Finding of commissioners ,. 5 Proceedings thereafter 6 Injunction against, bow obtained 6 How heard and disposed of. 7 When proceedings complete G Eirst election of officers 7 Proceedings when territory lies in two or more counties 8 May grant consent to avenue company 429 For General Purposes. What are 2 Council of, how constituted 28 Officers of. 18 How advanced to City of Second Class. Petition to council 12 Question to be submitted to people 12 Proceedings if vote is favorable 12 Census, how taken 12 First election of officers, when held 13 Proceedings when necessary population is declared by governor and secretary of state 250 Secretary of state to publish notice of advancement 250 Old offices and ordinances to continue 13 Records to be delivered to new corporation 13 How reduced to village for special purposes 248 Certain villages considered reduced 303 For Special Purposes. What are 2 How advanced to villages for general purposes 9 Petition to trustees 9 Election to be held 9 Proceedings in case of affirmative vote 10 When complete 11 First election of officers 11 How governed 13-1 How rights may be surrendered 248 VIVA VOCE— Certain officers to be so elected 298 480 INDEX. VOTEBS— "Who are qualified voters at 2£ VIADUCTS— May be constructed in certain cities 318 WARDS— Boundaries of not to be changed by act 1 To be established by ordinances 119 How changed 119 Notice of ordinance changing to be published 119 To be streets, etc 119 Members of council in wards 119 Members of council in new wards 119, 120 Change of boundaries not to affect existing members 29, 120 In Cities of First Class of more than 100,000 Inhabitants. May be divided into voting districts 300 ■WATER CLOSETS— To be regulated by board of health 94 Public, may be established 64 Property may be appropriated for 170 "WATER WORKS— General power as to 65 Council may take land, water rights, and easements 102 Board of trustees to govern . . 102 Qualifications and duties of 103 May make by-laws and regulations 103 To collect water rents 103 Surplus, if any, how applied 104 Reports and deposits, when made 104 Money to be kept as a distinct fund 104 Contracts of, how made 104, 105 Council may investigate accounts 104 "Water for fires, public buildings, etc., not to be charged for 105 Attachments for public use to be subject to supervision 105 Pipes may be extended three miles beyond limits 106 Jurisdiction to extend to such pipes 106 Contiguous cities or villages may contract for supply 107 Cost, how paid 108 Contract to terminate on annexation 108 "Works to become joint property 108 Interest on borrowed money, how paid 108 Tax to be a lien on property 109 Pipes and house connections may be laid in streets to be improved... 109 Expense may be assessed 109, 103 Jurisdiction to prevent pollution to extend beyond limits 106 Property of not to be sold without consent of board 239 Property may be appropriated for 169 Council may contract with company for supply of water 322, 390 WEIGHING AND MEASURING— May be regulated : 63 INDEX. 481 WHARVES— General power as to 63 Lighting of 63 Council may establish 146 Grades of to be regulated 147 Shore, not property of individual, to be controlled by council 147 Officers may be appointed for 147 Copies of their proceedings to be evidence 147 Property may be appropriated for 170 WHAEFMASTER— Maybe appointed 147 WORK HOUSE— Council may regulate labor in 67 How established and governed 84 What houses of correction may be governed as 84 Board of directors, qualifications and duties of 84 To have powers of trustees of house of refuge 85 Commitments, what may be made to 85 Prisoners to be kept at labor 85 Fees for conveying prisoners 85 Prisoners, how discharged 86 Discharge must be recorded and reported to council 86 Punishment for attempt to escape from 86 Expenses of, how paid 86 Officers to have powers of policemen 86 Infants may be received in, when there is no house of refuge 86 Land may be appropriated for 169 Cities may acquire land outside of corporate limits for 442 Cities may unite in the county in maintaining 442 Land acquired for, can not be sold without the consent of board 239 WORTHINGTON ACT 289