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OHIO

LEGAL NEWS

VOLUME V11.

OCTOBER 30, 1899, TO OCTOBER 8, 1900,

EDITED BY J. F. LANING.

NORWALK OHIO:

E LANING PRINTING COMPANY

1893.

Obio Legal News.

A Legal Paper Published every Monday. THE LANING PRINTING CO., NORWALK, OHIO.

EDITED BY

J. F. LANING.

SUPREME COURT OF OHIO.
Official Record of Proceedings.

TUESDAY, Oct. 24, 1899.

[Causes to and including No. 6080 on the General Docket are called and marked submitted. The next call will be to and will include No. 6179 on the General Docket.]

General Docket.

6635. Elizabeth Schroder v. John G. OverError to the circuit

Subscriptions and business communications should man, Clerk, etc., et al.
be sent to the publishers.
court of Hamilton county.
SPEAR, J.

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Ohio Decisions.

The publishers of the LEGAL NEWS publish annually

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Ohio Decisions. Advance sheets of these volumes for temporary use of subscribers are issued each week as supplements to the LEGAL NEWS, without additional charge to subscribers to the volumes.

Bound Volumes

1. Where in a suit brought to enjoin the collection of a street assessment as invalid, and the taking of property without due proing the assessment provided that the cost and cess of law, it appears that the ordinance levyexpense of the improvement should be assessed upon the abutting property by the foot front, and not otherwise, but it also appears that an issue was made by the pleadings on the question whether or not the land so assessed was in fact benefited by the improvement to an amount in excess of the cost so assessed, which issue is found by the trial court against the plaintiff, and it is neither shown nor claimed that the cost and expense were not apportioned fairly between the property of plaintiff affected by the assessment, and that of others so affected, the collection of such assessment should not be enjoined simply because the proceedings of the council in enacting the ordinance and levyNew subscriptions can begin at any time, and backing the assessment do not show affirmatively

of Ohio Decisions subsequent to volume 3, delivered express paid, to subscribers. 82.50 per volume.

Supreme Court Reports.

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of these volumes to the LEGAL NEWS, as a second

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numbers of the part devoted to the LEGAL NEWS to the beginning of the subscription year will be supplied if desired; but no advance sheets of the Ohio Decisions will be supplied back of the commencement of the current volume.

Vol. 1 of Ohio Decisions, Circuit Courts, began November 23, 1895.

Vol. 1 of Ohio Decisions, Lower Courts, began No

vember 23, 1895.

Bound Volumes.

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that the question of benefit to the land was taken into consideration in levying such assessment.

2. In providing for the cost and expense of such an improvement, abutting land not laid out into lots, when the depth from the street is ascertained, is to be treated as a parcel of land for the purposes of assessment, and it is not the duty of the council to subdivide it, even though it may appear that the value of a portion of it, if assessed separately, would be less than four times the amount of the assessment levied upon the same after the improvement is made.

Judgment affirmed.

6556. John Walsh v. Barron, Treasurer of Franklin county. Error to the circuit court of Franklin county.

MINSHALL, J.

1. The fundamental principle underlying an assessment made on property for the cost and expense of a local public improvement is that the property is specially benefited by the improvement beyond the benefits common to to the public, and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.

2. The amendment to the Taylor law by which the provision of section 2270, Rev. Stat., limiting assessments to twenty-five per cent of the value of the property as returned for taxation, is made not to apply to

improvements under that law; cannot becon- BY THE COURT.

strued to confer an unlimited power of assess- A conviction in a police court may be reviewed ment on the municipality in proceedings under by a proceeding in error on the ground that it the law. The power is still subject to the is against the weight of the evidence.

general principle which underlies all assessments for local improvements; and when an assessment is made in substantial excess of the benefits, it must be set aside and held for naught, subject, however, to the right of the city to have a new'assessment made on accurate principles.

Reversed and remanded for further proceedings.

5802. N. H. Birdseye et al. v. The Village of Clyde et al. Error to the circuit court of Sandusky county. WILLIAMS, J.

1,It is the general policy of our legislation to restrain the power of local assessment by fixing a limit on the amount that may be levied, beyond which municipal corporations may not go; and unless the contrary clearly appears, an intention to adhere to that policy in the enactment of particular statutes relat ing to local assessments will be presumed, and a construction given to them, if possible, allowing the application of the general limitations.

2. The provision of sec. 2270, Rev. Stat., which forbids the levy by incorporated villages of any assessment on any lot or land for any improvement in excess of 25 per centum of the value of the property as assessed for taxation, is applicable to assessments for improvements made under the act of Feb. 1, 1893 (90 O. L. L., 434), and the excess of any such assessment may be enjoined at the suit of the owner of the property upon which it is laid.

3. The owner is not estopped to maintain such an action by having acquiesced in the construction of the improvement, nor by petitioning therefor and thereby consenting to the raising of a certain proportion of its cost by assessment on all abutting property. By such acts he binds his property for the payment of its proper share of a legal assessment for the cost of the improvement, but no further.

Judgment reversed and judgment for plaintiffs in error.

6473. The State of Ohio v. william J. Liffring. Exceptions to a ruling of the common pleas court of Lucas county.

SHAUCK, J.

Judgment vacated, and cause remanded. 5962. Birchard A. Hayes v. George F. Weaver. Error to the circuit court of Lucas county.

By THE COURT.

suant to subdivision 1 of section 6718, Rev. A bond for the stay of execution given pur Stat., upon the filing of a petition in error in this court for the reversal of a judgment of the circuit court, affirming the judgment of the common pleas court,for the recovery of money, the obligation of the bond being that the principal and surety will pay the condemnation money" and costs if the judgment be affirmed here, binds the surety for the payment of the and costs, upon affirmance by this court, alamount of the original judgment, with interest though upon the filing of the petition in error in the circuit court a bond for the stay of execution was given with a different surety. Judgment affirmed.

6652. State of Ohio ex rel. Josiah M. Allen v. Harry C. Mason, Speaker, etc., and W. D. Guilbert, Auditor of State.

(In mandamus.) BY THE COURT.

A clerk in the United States pension agency, serving by appointment for a period not exceeding three months, and compensated with that purpose by congress, having no duties demoney of the United States appropriated for fined by law nor discretion to act independently of the direction of the pension agent, is not "holding an office under the authority of the United States" within the meaning of sec. 4 of art. 2 of the constitution of the state, which renders persons so holding office ineligible to membership in the general assembly.

Peremptory writ allowed.

5685. William J. Shields v. John T. Murphy et al. Error to the circuit court of Licking county. Judgment affirmed.

5686. The Phoenix Ins. Co. v. The Port Clinton Fish Co. et al. Error to the circuit court of Ottawa county. Judgment affirmed.

5983. J. M. Dumm v. The Columbus Central Ry. Co. Error to the circuit court of Franklin county. Judgment affirmed.

5995. Ella S. Levy et al., Adınxs., v. Frank H. Ginn, admr. Error to the circuit court of Lake county. Judgment affirmed on authority of Doan v. Biteley, 49 Ohio St., 588.

The "system of rubbing and kneading the body commonly known as osteopathy" is not an "agency" within the meaning of the act of 5996. The state of Ohio ex rel. The AshtaFeb. 27, 1896, "to regulate the practice of bula Bank Co. v. William K. Wilkinson. mediciue" (92 O. L., 44) which forbids the pre- Error to the circuit court of Lake county. scribing of any "drug or medicine or other | Judgment affirmed on authority of Board of agency" for the treatment of disease by a person who has not obtained from the board of medical registration and examination a certificate of qualification.

Exception overruled.

6012. Bettie Slaughter v. The City of Columbus. Error to the circuit court of Franklin county.

Education v. Andrews & Co., 51 Ohio St., 199. 5997. Mary J. Hewitt v. George C. Chapman. Error to the circuit court of Ashtabula county. Judgment affirmed.

6003. Samuel B. Hooper v. John H. Kissell et al. Error to the circuit court of Putnam county. Judgment modified for reason stated in journal entry.

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Where fifty days have been given after the overruling of a motion for a new trial for the perfection of a bill of exceptions, it is necesrary with respect to the requirement of its submission to the trial judge or judges, in order to constitute a valid bill, that the record should show affirmatively that the bill was submitted to the trial judge or judges (if within the district or circuit) for his or their signature not less than five days before the expiration of the fifty days allowed for the same. Motion sustained.

3481. The State of Ohio ex rel. Attorney General V. The Buckeye Pipe Line Co. Motion by plaintiff to advance causes Nos. 6331, 6349, 6350 and 6416, on the General Docket. Motion overruled because the brief of the Attorney General is not filed.

3486. The First National Bank of Findlay, Ohio v. The Findlay Building and Loan Association et al. Motion by plaintiff for extension of time to file printed record in cause No. 6745, on the General Docket. Motion overruled.

3488. Ohio and Indiana Torpedo Co. v. Clarence L. Fishburn, by, etc., et al. Motion by defendant to advance cause No. 6590, on the General Docket. Motion sustained. Request for oral argument.

3489. In the matter of proceedings v. Frank E. Dillenbaugh. Motion by defendant to advance cause No. 6680, on the General Docket. Motion allowed. Brief of plaintiff in error to be filed by February 1, 1900.

3490. In the matter of proceedings v. Vernon H. Burke. Motion by defendant to dismiss cause No. 6815, on the General Docket. Motion sustained.

3491. W. H. Brown et al. v. The Ohio Oil Co et al. Motion by defendant to dismiss cause No. 6704, on the General Docket. Motion withdrawn.

3492. W. R. Crater v. Charles Schneider. Motion by plaintiff to dispense with briefs in cause No. 6094, and to hear with cause No. 6813, on the General Docket. Motion allowed, cause No. 6813 advanced, brief for plaintiff in error to be filed by November 20, 1899.

3493. The B. &. O. R. R. Co. v. Simon Stoltz, Admr., etc. Motion by defendant to advance cause No. 6686, on the General Docket. Motion sustained.

3494. The Standard Oil Co. v. Delia Kennedy, Admx., et al. Motion by defendants, Delia Kennedy, admx., to advance cause No. 6663, on the General Docket. Motion sustained. Request for oral argument noted.

3496. James Hay et al. v. The City of Cincinnati et al. Motion by plaintiffs to advance cause No. 6227, on the General Docket. Motion sustained.

3502. Benjamin F. Keester v. Hortense Foglesong et al. Motion by plaintiff for temporary General Docket. Motion allowed. Bond fixed restraining order in cause No. 6891, on the at $200.00, with sureties to the approval of the clerk of the circuit court.

3499. H. W. Brown et al. v. Catherine Fowler et al. Motion by defendants to dismiss cause No. 6705, on the general Docket. Motion withdrawn.

3500. The American Surety Co. v. Jacob O. Raeder, Assignee, et al. Motion by plaintiff to reinstate cause No. 6027, on the General Docket. Motion allowed by consent. Brief

of defendant in error to be filed in sixty days.

3501. H. C. Masou et al. v. The Tippecanoe oral argument in cause No. 5993, on the GenClub Co. et al. Motion by plaintiffs for

eral Docket. Motion allowed.

Ross county, Ohio, v. The First National Bank 3497. The Board of Education, Harrison Tp., of Plymouth, O. Motion by plaintiff to reinstate cause No. 6641, on the General Docket.

Motion allowed.

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