Quere? but whether they may or not, the amount to which the creditor is entitled to recover from those not released, is not thereby reduced. Judgt affirmed. 3951-Ohio ex rel vs Charles H. Jones, Auditor of Lucas county. Mandamus. DICKMAN, C. J. I An act to amend and supplement sections 2777,2778,2779 and 2780 of the Revised Statutes of Ohio, passed April 27, 1893 (90, Ohio Laws, 330) and known as the Nichols law, is not in confiict with section 2 of article 12 of the constitution which provides that: "Laws shall be passed, taxing by a uniform rule, all moneys,, credits, investments in bonds, stocks, joint stock companies, or otherwise; and als all real and personal property, according to its true value in money;" and is a valid law: 2769-Gertrude Irons by her next friend vs Charles M. Dunlap et al, admrs. Error to the Circuit Court of Ross county. Judgment affirmed on the authority of Howard vs Brower, 37 Ohio St. 402; Crabill vs Marsh, 38 Ohio St. 331; Shahan vs Swan. 48 Ohio St. 25 2858-The Dwelling House Ins. Co. vs Edward Avers. Error to the Circuit Court of Sendusky county. Judgment affirmed. -2980-The State of Ohio ex rel, Atty Genl. vs Seneca County Mutual Ins. Co. Quo warranto. Dismissed by plaintiff. 3083--The State of Ohio vs The Lake Erie Iron Co. Error to the court of Common Pleas of Cuyahoga county. Exception to the ruling of the court, sustaining the demurrer to the indictment, overruled. MINSHALL, J., dissents. 3715--The State of Ohio, ex rel. AttyGenl vs the Forest City Building & Loain Co., of Cleveland. Quo Warranto. Judg 3741-State of Ohio ex rel. Atty Genl vs The Wellston Building & Loan Co. Quo warranto. Judgment of ouster. 2. The act of April 27, 1893, is not in violation of section 16 of Article 1, of the constitution, which provides that: "All courts shall be open, and every person,ment of ouster. for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law;" nor, in violation of the 14th amendment of the Federal Constitution, which provides that, no "state shall deprive any person of life, liberty or property, without due process of law." Demurrer to answer sustained, and peremptory writ allowed. 2846-Nora J. Tobias vs Daniel M. Tobias. Error to the Circuit Court of Crawford county. Judgment of the Circuit court reversed, and that of Common Pleas affirmed. 3771-Edward Metz vs John Hagerty, aud'r et al. Error to the Circuit Court of Hamilton county. BURKET, J. 1. The act entitled "An act to tax the business of trafficking in cigarettes or cigarettes wrappers, passed April 24, and took effect August 1, 1893, 90 Ohio Laws, 235, is not in conflict with the constitution of Ohio, nor with the constitution of the United States. 2. Said act does not authorize the assessment or collection of such tax for the year 1893. 2271-Chauncey H. Andrews' et al vs Robert McLaughlin et al, ex'rs. Error to the Circuit Court of Cuyahoga county. Judgment affirmed. 3819-George W. Martin, admr, vs The P. C. & St. Ry. Co. Error to the Superior court of Cincinnati. Judgt affirmed. 4040-The Western Electric Light & Power Co vs The Toledo Electric Street Ry. Co. Error to the Circuit Court of Lucas county. Judgment reversed on the authority of The Kinsman St. R. R. Co. vs The Broadway & Newburg St. R. R. Co., 36 Ohio St., 239, and The Toledo Consolidated St. Ry Co. is the Toledo Eledtric St. Ry. Co. 50 Ohio St. 603. Petition dismissed and judgment for plaintiffs in error. Motion Docket. 2194-The Pittsburgh & Wheeling Coal Co. vs Gustave Estievenard. Motion by plaintiff to reinstate cause No. 3946, on the General Docket. Motion allowed. 2195- The Toledo Consolidated Street Railway Company vs Thomas Sweeney et al. Motion by defendant to advance cause No. 4053. on the General Docket. Oral argument requested. Motion allowed, and request for oral argument noted.. 2196-William Whaley vs The State of Ohio. Motion for leave to file a petition in error to the Circuit Court of Greene County. Motion overruled. 2197-Louis Morehead and John Henderson vs The State of Ohio. Motion for leave to file petition in error to the Court of Common Pleas of Franklin County. Motion overruled. 2198-The Pittsburgh & Lake Erie R. R. Co. vs Julius Munch. Motion by plaintiff to dispense with printing part of record in cause No. 4063, on the General Docket. Motion allowed. Sixth Judicial Circuit: STREET RAILWAY FRAN- (Lucas county Circuit Court, Term 1800. Present Hons. G. R. Haynes, C. S. Bendy and C. H. Scribner, J. J.) Mary E. Simmons vs The City of Toledo et al. the right to the use of a public street for the pur (1. The City Council has the power to grant pose of constructing a railroad and when the city grants to an Electric Railway Co. the right to the use of the street for railway purposes the right to erect and use poles for the support of electric wires goes with it. Such use is not a new or additional burden which would entitle the property owners to an injunction or requir ing legislative enactment. 3. The use of uninsulate trolley wires in the proximity of telephone wires does not create a danger which would call for interference upon the ground of danger from induction. 3. Before the Council shall grant to a street railway company the right to Cccupy a portion of a public street the landholders shall be con sulted and the Council canot act until the consent of persons owning lots and lands abutting is obtained, ja writing, for the requisite number of feet frog required by statute. Section 3434 R. S. 4. Such consents must be in writing and signed by the owner of the property or his duly authorized agent. A signature and consent signed by the husband, in his own name, where the wife owns the property, is Insufficient and shonid not be received or counted. The City of Toledo, et al, comes here, upon appeal. The petition for cause of action sets up certain matters in regard to a proposed electric street railroad--that it is the intention of certain of the defendants to build in Huron streetmatters which it set up by proper Simmons is the owner of property averments, and the fact that Mrs. upor that street and raises four questions, which are stated in the brief of counsel for plaintiff: "First: The requisite consent in writing of the owners of the lots and lands abutting upon that part of Huron street over which this road is proposed to be constructed as repres nted by the feet front, was not obtained or produced to the Common Council. Second: The application for leave to construct this read was not advertised as required by the general ordinance of the City of Toledo governing this matter. Third: The City of Toledo has no power to authorize the erection of poles and wires and the building of other structures and appliances for the purpose of transmitting power over naked, uninsulated wires for the purpose of propel 5. A tenant in common who may desire to vote adversely to his co-tenants has a right to have sach vote counted and will be allowed to vote the number of feet front which his undivided inter-ling street cars est in the land proporţionately represents. 6. The signature of the owner of the remainder in fee, without the signature of the party holding the life estate, is sufficient and should be counted as a proper consent, under certain circumstances. 7. A property owner may withdraw his or her consent at any time before the Council has acted upon it and passed the ordinance. S. Consent having been given by a property owner and afterwards withdrawn; subsequently the following communication was presented to the Council, 1 do not wish to stand in opposition to any enterprise of general good to your city. I think it best to withdraw my name from electric railway remonstrance." HELD, that said Fourth: The construction and operation of the necessary app iances and apparatus, and the use to which the same are put in the operation of an electric street railway materially injuries and interferes with the property upon the line of the street and constitutes an additional burden for which compensation must be made before such apparatus and appliances can be constructed." Counsel for plaintiff have argued communication had the effect of reinstating the their case in the order in which consent and that the council was warranted in acting upon it as a consent. 9. A consent given upon the condition that the construction of the railway shall be commenced and completed within a certain time is a condition subsequent and its effect lies as between the party who signed the paper and the party who built the road; so far as the city council is concerned such condition should not preclude that body from acting upon the consent. 10. A property owner may contest the question whether or not the council has the requisite number of consents to give it jurisdiction, but the presumption of law is in favor of the action of the council and the burden of proof lies upon the plaintiff, the property owner, to show that the consent was not given. 11. Where the consent is given by Mrs. A. B. and the abstract shows that A, B. is dead, the burden is upon the plaintiff to prove that Mrs. A. B. is not the lawful heir of A. B. and in the absence of such proof the consent will be allowed to stand.-ED. LEGAL NEWS.) HAYNES, J. (orally.) these propositions are stated, and, Sec. 3439. No such graut shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way along which it is proposed to construct such railway or extension thereof. . . Sec. 2502... and no such grant shall be made except to the corporation, individual or individuals, that will agree to The case of Mary E. Simmons vs carry passengers upon such proposed as represented by the feet front. In other words, the owners act in this matter in proportion to their interest in the real property as measured by its frontage, and not by their number or character in any other respect." To that we agree, with the exception, perhaps that the last clause might have reference to tenants in common of the property, and in respect to that I will speak hereafter. 3. "This consent must be in writing. No oral consents, however formal, can take the place of the plain statutory requirement that these consents must be in writing." That the consents must be in cause the statute requires that "no writing, there is no question, be 2. "The consent of the owner as represented by the feet front. In other words, the owners act in this matter in proportion to their interest in the real property as measured by its frontage, and not by their number or character in any oral consents, however formal, other respect. should be taken;" that is substantially true, and by that I mean that the statute does not contemplate or authorize the council to receive the consent of an owner, even though he should be present stating his consent orally; it contemplates that they shall be written consents,placed on file and shall be a matter open to the examination of all parties who are interested in the matter. 3. "This consent must be in writing. ever formal, can take the place of the plain statutory requirement that these consents must be in writing. No oral consents how 4. "These consents must be obtained and produced to the Common Council as a condition precedent to the power of the Council to act." 4. "These consents must be ob tained and produced to the common council as a condition precedent to the power of the council to erly. The next question that plaintiff makes is in regard to the ownership. Now, in regard to these propositions, I will state generally the conclusions to which we have arrived. As to this first proposition: "The consent of the owner is required, act." not the consent of any other per- I think on that question there is son however wise, learned or in- no dispute-if I understand it propfluential." We agree, in the main, with the statement that is made by counsel in that respect. Where we may differ from him before we get "The words 'owners and holders' through, is, upon the evidence of as used in the two sections are obthe consent. We agree that the viously synonymous terms. Prestatute contemplates that it is the cisely as we would use the words owners of the lands themselves 'owners of stock' and 'stockholders,' whose consent is to be given, whose to convey the same idea, so here opinion is asked for and required, these two parts of the same statute under the statute, by the common use these two words to convey the council. same idea; and in one section of the 2. "The consent of the owner statutes of Ohio the two words are used interchangeably." I do not under the statute, of the property think there is anything that arises, owner, to the work. It is said in under the view of the facts of the that connection that the consent is case as we finally find them to be, a vote, and that the signature, as which would require any extended we understand the argument of definition in regard to this matter. counsel, that is attached to those They treat and speak of the own- consents, should be signed by the ers of property. There was a ques-owner himself or herself; in other tion that did arise, I believe, in one words, that it should be the percase, in regard to the rights of a sonal matter of the party who gives tenant for life, but I think, under the consent and that the only evithe decision that we make, it will dence that could be before the be unnecessary to discuss that, and in regard to that, I will speak as I pass over the names. council would be that the signature which was attached to the consent should be in the hand-writing of the person who gives the consent. That matter is discussed and some citations are given upon the question. The material and main thing, and perhaps one of the most difficult questions of the case, is this claim made on behalf of plaintiff: "That the consent must be in writing. At first blush it would seem, and Upon this question the statute is at least it may be very properly and certainly clear, express and explicit, very strongly claimed, that when and until this case, it has never the statute requires that the consent been questioned. In every discus- shall be in writing, that it means sion arising under such statute it that it should be and that they has always been assumed that the should have the written evidence of consent for whatever purpose it is the party who owns the land-the desired, must be in writing, and it highest and best evidence-the real would certainly be a remarkable evidence in the case, so far as the state of affairs if the power of the writing is concerned, would be the council to act in these important signature of the party himself. On matters should depend upon parol that point counsel based a very proof as to what happened on street strong argument in favor of their corners, or that the signature of A. proposition that all consents should should be converted, by parol proof, be excluded except those signed by into the written signature of B." the owners of the property. There are different classes of are unable to concur with counsel cases upon which this arises. Some in that respect. We agree with of these consents are consents by them that the consent should be the owners of the property. Some signed by the owner of the propare consents in the names of the owners of the property by persons purporting to be acting as their agents. In other cases they are signed by the husband,, the wife being the owner of the property, and the parties have put in parol proof showing that the wife gave her consent to the signature and it is required of the court to count the name of the husband as really the name of the wife, or, at least, to count it as a legitimate consent We erty, but the manner in which that should be evidenced and the method of evidencing it—even of that written document-is one upon which we have come to a rather different conclusion than the one suggested by counsel for plaintiff. Reference is made to the Statute of Frauds and an analogy is sought to be drawn from that. The Statute of Frauds provides that when any grant is made of real estate or an interest in it, that it shall be signed by the party who is to be charged We have had cited to us the case or by his agent thereunto lawfully of Rapp vs R. R. decided by Judge authorized. And, in regard to land Longworth in the Superior Court contracts, it provides that the of Cincinnati and citing a New papers shall be signed by the party | York case. We have read that to be charged or by his agent there- case with a great deal of care and unto lawfully authorized, and in attention and interest in his reasonone case, it is held, rightfully, that ing. He refers to the Statute of the authority of the agent must be Frauds, but refers to the statutes given in writing. The consent it-under which he was then deciding self may be by power of attorney, the case that he did decide. That under the statute and when it con- is a little different suit from this; veys an interest in land it is neces- but it is stated that the consents sary not only that the authority are required to be in writing, and should be in writing, but that it he argued from the Statute of should be ackowledged. In regard Frauds that if the legislature in to contracts, it is agreed on all that particular act had sought or hands that no written authority is decided to change the law of the necesssary in or to give the agent Statute of Frauds or if they had deauthority to sign the name of his sired to state that the party might principal to a paper. The ordinary sign his own name or to have signcommercial rule is that a person, ed his name by an agent, that they may do by the hand of another would so have stated in the statute that which he may do for himself. It itself. It seems to us that the very it said, however, that that rule reverse is the conclusion to be should not be applied in this case; drawn. In regard to the Statute of that it is not intended to be so ap- Frauds, the legislature were particuplied. That, while that is true as lar to say that the party who was to commercial law, it is not true in to be charged must sign the paper a just and fair construction of this himself-"Signed by the party statute. We think it must be ad- whose name is to be charged" is the mitted, however-if a man, being language. If they had desired that unable to write his name, should, in the consents in writing should be the presence of a person who should signed by the individual who ownwrite his name, direct him to write ed the land, it would have been easy that name, request him to write it for them to have said that the con-it would be held by law to be his sents should be in writing and be act-be held to be his written docu- signed by the party who owned ment. Indeed it is quite common the land. We see nothing in the in commercial transactions, that a construction of the statute itself, person should make his mark, we see nothing in the nature of the which is done by simply taking hold of the pen; and so it is to be supposed if a man couldn't write. in the signing of this paper if he should request a party to write his name and the person touched his hand to the pen in making the cross, it would be his signature, and we think it is also if he should request a party standing by to sign his name, that that would be his signature. business that is being done-the obtaining of the consents-that should require a strict construction of this statute. No grant is made of any interest in the land itself-I believe we all agree about that--it is only in a matter of so much importance as a street railroad along a public street, one that affects the interests of the property owners, or affects their taste at any rate, and the law provides that before the |