John C. Clark; Mr. D. W. Bowman and Messrs. Bickel & Baker, for defendants in error. Judgment affirmed. SHAUCK, JOHNSON, WANAMAKER, NEWMAN and WILKIN, JJ., concur.
No. 13540. HOBBS ET AL. v. SWEM. Decided October 14, 1913. ERROR to Circuit Court of Belmont county. Mr. E. T. Petty, for plaintiffs in error. Messrs. Prophet & Eastman and Mr. G. A. Colpitts, for defendant in error. Judgment affirmed on the authority of Smith v. Smith, 57 Ohio St., 27. NICHOLS, C. J., SHAUCK, JOHNSON, DONAHUE, NEWMAN and WILKIN, JJ.,
No. 13551. VENTOLO V. RINALDI. Decided October 14, 1913. ERROR to Circuit Court of Jefferson county. Mr. A. C. Lewis and Mr. R. R. Carpenter, for plaintiff in error. Mr. E. Dewitt Erskine, for defendant in error. Judgment affirmed. JOHNSON, DONAHUE, WANAMAKER and NEWMAN, JJ., concur. NICHOLS, C. J., not participating.
No. 13554. SLOAN V. THE LORAIN COAL & Dock Co. Decided October 14, 1913. ERROR to Circuit Court of Belmont county. Mr. James M. Rees, for plaintiff in error. Mr. P. P. Lewis, for defendant in error. Judgment affirmed. SHAUCK, JOHNSON, DONAHUE, NEWMAN and WILKIN, JJ., concur. NICHOLS, C. J., not participating.
ACCEPTANCE OF BENEFITS-
The acceptance of a deed and entering into possession binds grantee,
and if grantee accepts benefits, he can not reject burdens,
when. See Miller v. Railway Co., 499.
The act of April 10, 1913 (103 O. L., 141), authorizing the
issuance of emergency bonds, etc., to repair, replace or
reconstruct public property damaged by floods of March and
April, 1913, is constitutional. See Assur v. Cincinnati, 181.
Bill, act and law distinguished. See Pfeifer v. Graves, 480.
Where real defendant appears by attorney and answers for party
mistakenly sued, real defendant subject to jurisdiction, may
be substituted as defendant and will be bound by verdict and
judgment-Statute of limitations ceases to run from time real
defendant appears and answers for party mistakenly sued. See
Boehmke v. Traction Co., 156.
It is the right and duty of prosecuting attorney to maintain action
to recover from contractor excess paid him over contract price
for construction of a public ditch, under Sections 4447, et seq.,
Revised Statutes, and Sections 6443, et seq., General Code-
Funds collected for such improvement are public moneys, within
meaning of Section 1277, Revised Statutes, and Section 2921,
General Code. See State, ex rel., v. Baker, 165.
Malice and want of probable cause must be alleged and proven
in an action for damages for causing an attachment to issue,
when-Action can be maintained on statutory bond, when-
Section 10254, General Code, requiring attachment bond, does
not affect common law right of action, when. See Crow v.
Sims, 214.
Automobile owner is not liable for acts of employe in operating
automobile unless latter engaged in employer's business and
acting within scope of employment-No implied authority for
Agency-Amendments to Constitution.
bookkeeper or cashier to operate company automobile, pur-
chased for use of traveling salesman. See Coal Co. v. Rivoux,
18.
In an action for specific performance of contract for sale of
land, it must be shown that agent's authority was identical with
terms of contract sued on-If terms of contract vary from
express authority, agreement void and unenforcible-Where
express authority rests in parol, proof of parol authority must
be clear and convincing and also show authority to include all
material terms embodied in contract. See Spengler v. Sonnen-
berg, 192.
The underwriters of a fire insurance policy are advised of nature
and extent of risk by description in policy, when-Failure by
insured to mention release for damages by fire, question for
court whether a material concealment, when. See Ensel v.
Insurance Co., 269.
Knowledge of officers and agents of corporation is imputed to
company, when-Knowledge of manager of bank, in purchase
of note from himself by bank, imputed to bank, when. See
Bank v. Burns, 434.
AMENDMENTS TO CONSTITUTION-
In proceedings against secretary of state to enjoin submission of
proposed law to electors, Section 1b, Article 2, Constitution
(1912), will not be rigidly construed, when-An initiated
law, introduced in house of representatives and referred to
committee, which reported it back with amendments which were
agreed to, may be submitted to electors, when. See Pfeifer v.
Graves, 473.
The act of April 16, 1913 (103 O. L., 552), amending Section
5649-2, General Code, relating to tax levy limitation, and Sec-
tion 5649-36, General Code, establishing budget commissions,
does not provide for tax levies within Section 1d, Article 2,
Constitution, and is subject to referendum and ninety-day limi-
tation. See State, ex rel., v. Milroy, 301.
Sections 2 and 6, Article 4, amendments to constitution, adopted
in 1912, do not revoke jurisdiction of supreme court to review
cases decided by circuit courts prior to January 1, 1913. See
Hupp v. Hock-Hocking Co., 61.
Under Article 4, Constitution as amended in 1912 and the sched-
ule, all cases pending in the courts shall proceed to judgment,
how-Cases pending in courts of appeals January 1, 1913, may
be reviewed by supreme court, when-Cases brought in courts
of appeals after January 1, 1913, not reviewable by supreme
Amendments to Constitution-Appropriation of Public Property.
AMENDMENTS TO CONSTITUTION-Continued.
court, unless they originate in courts of appeals, involve con-
stitutional questions, are felony cases or are cases of public or
great general interest-Rules of supreme court for prosecuting
error proceedings in foregoing cases-Disposition of cases filed
in supreme court prior to this interpretation. See Akron v.
Roth, 456.
Under Article 18 of the constitution, amended September, 1912,
general laws for government of municipalities continue in force
until November 15, 1912, and thereafter until changed by (1)
The enactment of general laws for their amendment; (2)
additional laws to be ratified by municipal electors, and (3)
adoption of municipal charter-Municipalities can not establish
and maintain moving-picture theaters by taxation, under powers
of local self-government. See State, ex rel., v. Lynch, 71.
The provisions of Section 7, Article 18, Constitution (1912), au-
thorizing municipal charters, are subject to provisions of Sec-
tion 3, Article 18, authorizing local self-government-Munici-
palities may determine their officers and the method of their
selection, nomination and election. See Fitzgerald v. Cleve-
land, 338.
Where real defendant appears by attorney and answers for party
mistakenly sued, real defendant subject to jurisdiction, may be
substituted as defendant and will be bound by verdict and judg-
ment-Statute of limitations ceases to run from time real de-
fendant appears and answers for party mistakenly sued. See
Boehmke v. Traction Co., 156.
APPOINTMENT OF OFFICERS-
Municipalities may determine their officers and the method of
their selection, nomination and elections-Sections 3 and 7,
Article 18, Constitution (1912)—Municipal charters and home
rule. See Fitzgerald v. Cleveland, 338.
APPROPRIATION OF PUBLIC PROPERTY-
1. Appropriation of public property for easement-Section 6420,
Revised Statutes, applies to proceedings under Section 3283a,
Revised Statutes (99 O. L., 590)—Section 6420, Revised Stat-
utes, is a part of title II, chapter 8, part 3, Revised Statutes,
applicable to proceedings brought under favor of Section 3283a
to appropriate an easement over public ground lying within the
limits of any municipality and dedicated to the public for use
Appropriation of Public Property-Assessments.
APPROPRIATION OF PUBLIC PROPERTY-Continued.
as a public ground, common, landing, wharf, or any other
public purpose, excepting streets, avenues, alleys or public
roads. Cincinnati v. Railroad Co., 283.
2. Court to determine existence of corporation, right to make
appropriation, inability to agree with owner and necessity—
Section 6420, Revised Statutes-Section 6420, Revised Statutes,
authorizes the court in which such proceeding is properly
brought to hear and determine the questions of the existence
of the corporation, its right to make the appropriation, its
inability to agree with the owner and the necessity for the
appropriation, before proceeding to impanel a jury to assess
compensation. Ib.
3. Railroad board of directors-Has primary discretion to deter-
mine necessity of appropriation-But court has final authority
to determine necessity therefor-The board of directors of any
domestic or foreign corporation owning or operating a railroad
wholly or partly within the state of Ohio has primary dis-
cretion to determine the necessity for the appropriation con-
templated under the provision of Section 3283a, Revised Stat-
utes, but under the provisions of Section 6420, Revised Statutes,
the court in which such proceeding is properly brought has the
final authority to hear and judicially determine the existence
of the corporation, its right to make the appropriation, its in-
ability to agree with the owner and the necessity for the appro-
priation and power to determine whether the proposed appro-
priation will be an abuse of its corporate power or destructive
of the public purpose to which the land is already devoted.
(Wheeling & Lake Erie Rd. Co. v. Toledo Ry. & Term. Co.,
72 Ohio St., 368, followed and approved.) Ib.
An indictment charging shooting with intent to kill and shooting
with intent to wound, includes lesser offenses of assault and
battery or assault only, when-Omission of court to so charge
jury, will not sustain reversal of judgment of conviction of
shooting with intent to wound, when. See State v. McCoy, 447.
Franchise stipulation for percentage of gross annual receipts of
telephone company, payable into general expense fund, not an
assessment for general revenue, when. See Telephone Co. v.
Columbus, 466.
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