Railway Co. v. Roebuck.

ejecting Roebuck from the car while it was in motion; and, if he did so eject him and he received greater injury than he would have received if he had been put off the car when it was at a stand-still, he would be entitled to recover.

The evidence as to the extent of the injuries which Roebuck received, is very unsatisfactory. The only physician who seems to have been called, was Dr. A. M. Baldwin; he says that he found a small abrasion on the left hand; that no bones were injured; that the abrasion was about the size of a silver ten-cent piece, and that, aside from this injury, he obtained no information as to any injury, except that Mr. Roebuck said that something was the matter with one of his knees, but he would not permit an examination because, he said, it did not amount to anything.

The weight to be given to the testimony of this physician is sought to be affected by the fact that he testified he was called with some frequency by the surgeon of the railroad company to look after people injured in accidents on the railroad. But he was called in this case, by the injured man or those acting for him, and, as already said, no other physician was called at all.

The injury happened on March 1, Roebuck went to the factory after his injury and, after working about an hour, went home. He did not work on the second, third and fourth of the month; on Saturday, the fifth, he worked nine hours; he worked every day of the next two weeks, and then was discharged from the employment of the company. He afterward went to Colorado and there remained from six to nine months, and, so far as appears by the evidence, was working during that time. He then went to England where he was at the time of the trial of this case in the court of common pleas. He says that he has suffered much pain since he went to England, but, if he was very seriously injured in this transaction, it seems strange that no medical man should have testified to that fact.

We are of opinion, therefore, that the verdict given by the jury, of $550, is too great, and the judgment will be reversed, and the cause remanded for a new trial unless the defendant in error shall consent to remit $350. If this is done, the judgment for that amount will be affirmed.

CLEVELAND-FIRE DEPARTMENT RULES.

[Cuyahoga Circuit Court, June 21, 1901.]

Caldwell, Hale and Marvin, JJ.

STATE EX REL. MCKENZIE V. H. H. HYMAN, DIRECTOR OF FIRE SERVICE.

1. FINDING Of Tribunal Under Sec. 1545-24, REV. STAT. CONCLUSIVE. The relator, formerly a member of the fire department, having had a hearing as to the charges preferred against him, before the tribunal authorized by Sec. 1545-24, Rev. Stat., 92 O. L., 446, consisting of the mayor, director of law and president of the council, and having been found guilty and removed from office, the circuit court, on mandamus to reinstate him, will not go into the evidence concerning the charges and specifications nor take any evidence concerning the proceedings before the board. The finding of such board is conclusive.

Cuyahoga Circuit Court.

2. POWER To Make Fire Department Rules. Under Sec. 1545-51, Rev. Stat., of the federal plan law of Cleveland, providing that "the officers and members of the fire force shall be appointed by the director of fire service, subject to the provisions of Sec. 1545-6, of the act, but from and after the passage of this act no such appointment or any promotion in said force shall be lawful, except in cases of emergency, unless made under and in pursuance of rules or regulations providing for the ascer taining of the comparative fitness of all the applicants * which it

shall be the duty of the mayor and the head of the department to make and submit to the council" the officers named have power to make not only rules relative to appointments and promotions, but also general rules for the goverment of the department, such as rules preventing members of the department from assigning their salaries, requiring them to pay their debts and exacting general good behavior. The power to make the rules last referred to is not limited by Sec. 1545-52, Rev. Stat., providing that "except as herein otherwise provided, the power and duties heretofore vested in the board of fire commissioners in such cities are hereby vested in the director of fire service, and all provisions of law pertaining to the fire department as herein before constituted shall apply to the department of fire and be admin. istered by the director thereof," nor by Sec. 2464, Rev. Stat., providing that "the board of fire commissioners shall prescribe the duties of all officers and members of the fire department," to the director of fire alone.

8. RULES SO Made are Made by the Head of the Department.

Rules and regulations for the government of the fire department of Cleveland made by the mayor and head of the department under Sec. 1545-51, Rev. Stat., are made by the head of the department as contemplated by Sec. 2464. Rev. Stat., and do not lose their force by the fact that the mayor joined in making them.

4. RULES AGAINST ASSIigning SalaRY OR NON-Payment of Debts-Valid. A rule or regulation forbidding an officer of the fire department of Cleveland from selling or assigning his salary or incurring or contracting debts of liabilities which he is unable or unwilling to pay, or neglecting or refusing to honorably discharge and promptly pay all indebtedness, etc., if strictly enforced might work hardship in certain cases, but is not unreasonable of invalid.

5. RULE AS TO CONDUCT Valid.

A rule of a department of a city government requiring a member rot to be guilty of conduct unbecoming an officer or a gentleman, or of conduct in any manner prejudicial to the good reputation, order or discipline of the depart. ment, is not unreasonable or invalid.

APPEAL.

Noble and Hardy, for plaintiff.

Hogsett, Beacom, Excell, Gage & Carey, for defendant.

MARVIN, J.

The relator was a member of the fire department of the city of Cleveland. The defendant was the director of fire service of said city.

On December 29, 1900, charges and specifications were preferred against the relator, and on January 11, 1901, a bearing was had upon such charges and specifications, before a tribunal consisting of the mayor of the city of Cleveland, the director of law of said city, and the president of the city council. The result of such hearing was that a finding, concurred in by two members of the tribunal, to-wit, the mayor and director of law, found the relator guilty, and on January 18, 1901, he was dismissed from the fire department of the city. His petition in this case seeks to have an order made that he be restored to his former position in the department.

State v. Hyman.

The question as to the finding by a majority of the board, which is raised in this case, is found against the relator and is discussed in the opinion delivered in this court at this term in State v. Barrett, 12 Circ. Dec. 231.

No question is made here that the charges are not sufficiently specific.

The rules which, it is said, were violated, are rules 15 and 23 respectively.

On the hearing of this case we decided that we could not go into the evidence as to the facts concerning the charges and specifications, nor could we take any evidence concerning the proceeding before the board. Having disposed of the question as to the finding of a majority of the tribunal being sufficient, there remains this question made by the relator, to-wit, are the rules, the violation of which was charged against the relator, valid?

It is said that the rules for the government of the fire department are invalid, for that they have never been adopted as provided by law and that, therefore, neither rule 15 nor rule 23, which the relator was charged with violating, is of any force or effect.

Section 1545-51, Rev. Stat., provides that:

"The officers and members of the fire force shall be appointed by the director of fire service, subject to the provisions of Sec. 6 [§ (15456)] of this act, but from and after the passage of this act no such appointment or any promotion in said force shall be lawful, except in cases of emergency, unless made under and in pursuance of rules and regulations providing for the ascertaining of the comparative fitness of all applicants for appointment or promotion by a systematic, open and competitive examination of such applicants, which rules and regulations it shall be the duty of the mayor and the head of the department to make and submit to the council, and when approved by the council they shall be promulgated and enforced as permanent rules," etc.

It is conceded that the rules offered in evidence in this case (including rule 15 and rule 23), were adopted in pursuance of this provision of the statute; but the argument is made in behalf of the relator that the section of the statute hereinbefore quoted does not authorize the making of rules by the mayor, and head of the department which when approved by the council, are to be the permanent rules of the department upon any other subject than that of appointments and promotions in the department, and, hence, that the rules which have been so made, approved and promulgated, are of no force except in so far as they provide for the appointment and promotion of members of the department. Attention is called by counsel for the relator to Sec. 1545-52, Rev. Stat., which provides that:

"Except as herein otherwise provided, the powers and duties heretofore vested in the board of fire commissioners in such cities are hereby vested in the director of fire service, and all provisions of law pertaining to the fire department as heretofore constituted shall apply to the department of fire and be administered by the director thereof."

We are then referred to Sec. 2464, Rev. Stat., which provides that: "The board of fire commissioners' shall prescribe the duties of all

officers and members of the 'fire department.'

Cuyahoga Circuit Court.

From these two sections it is urged that all rules as to the duties of the officers of the department must be prescribed by the director of fire alone.

We think the contention as to the scope of Sec. 1545-51, is too uarrow and that the section contemplates that general rules for the government of the department shall be fixed as therein provided. The fact that the section expressly provides that appointments and promotions shall only be made in pursuance of rules to be adopted as provided in the section seems to contemplate that the rules for the general government of the department are to be thus provided and that such general rules shall include the rules for appointment and promotion. If, however, this is not the case, these rules under consideration were promulgated by the head of the department, and the fact that the mayor joined with him in fixing these rules, cannot take away the force of the rules which it was the duty of the head of the department to fix and promulgate. Whichever view, then, of the matter be taken, we think the contention of the relator is unsound.

It is further urged on behalf of the relator that the rules are so unreasonable that the court should hold them to be null and void.

Rule 15 provides that an officer of the department shall "not sell or assign his salary or incur or contract any debts or liabilities which he is unable or unwilling to pay, or neglect or refuse to honorably discharge. and promptly pay all indebtedness, claims and judgments and satisfy all executions that may be held or issued against him," etc.

That a strict enforcement of this rule might work great hardship in some cases may be conceded, and yet we are not prepared to say that the rule is an unreasonable one. If members of the department may constantly contract debts without paying them, discredit is likely to come to the department and the head of the department may be subjected to constant annoyance by creditors of those in his department. If one undertakes service in the department, certain important advantages come to him, and it is not unreasonable that he should be required to look after his debts with greater promptness than one not in the public service.

Rule 23 provides that a member of the department shall "not be guilty of conduct unbecoming an officer or a gentleman, or of conduct in any manner prejudicial to the good reputation, order or discipline of the department.'

That this rule is entirely reasonable, can hardly be doubted.

If the allegations of the petition in this case are true, the relator has suffered great hardship at the hands of the defendant, but, as we can not inquire into the facts upon which the charges were based, nor into the manner in which the trial was had, we are brought to the conclusion that the petition must be dismissed at the costs of the relator.

Railway Co. v.

Bank.

CORPORATIONS-CONSOLIDATION- PLEDGES.

[Cuyahoga Circuit Court, June 21, 1901.]

Caldwell, Hale and Marvin, JJ.

CLEVELAND CITY RAILWAY Co. v. FIRST NATIONAL Bank.

1. CONSOLIDATION OF STREet Railways UNDER SEC. 3381, REV. STAT. A consolidation of street railway companies, under Sec. 3381, Rev. Stat., must be effected with due regard to the rights of all persons having an interest in the stock of the old companies. The provisions of this section, authorizing directors to provide "the manner of converting the capital stock of each of the constituent companies into that of the new company, with such other details as they may deem necessary to perfect the new organization and the consolidation of the companies," were not intended to give directors of the old companies, or its registered stockholders, the power to deprive an assignee of stock not transferred on the books of the company of his equitable rights therein.

2. DUTY OF CONSOLIDATED COMPANY TOWARD PLedgees of OLD STOCK. A consolidated street railway company, under Sec. 3381, Rev. Stat., succeeds to all the franchises, rights and privileges of the constituent companies out of which it is formed and incurs all the liabilities of each; such company stands in the same relation to pledgees of the stock of the constituent companies as the original companies before consolidation; and in the delivery of the new stock of the consolidated company in exchange for the stock of the constituent companies, it is the duty of the new company to a pledgee of the old stock to withhold its delivery until the old stock is surrendered, and it cannot rightfully deliver new stock to the pledger, or any one for him, leaving the old stock in the hands of the pledgee; and if loss results from such wrongful delivery it must fall upon the company making such wrongful delivery.

HEARD ON Error.

Squire, Sanders & Dempsey, for plaintiff in error.

Hoyt, Dustin & Kelley, for defendant in error.

HALE, J.

The Cleveland City Cable Railway Company and the Woodland Avenue & West Side Railway Company, owning and operating separate lines of street railway in the city of Cleveland, in June, 1893, were consolidated and became the Cleveland City Railway Company, commonly known as "The Little Consolidated."

The statute under which this consolidation was effected is Sec. 3381, Rev. Stat., which reads:

"The directors of the several companies may enter into a joint agreement, under the corporate seal of each company, for the consolidation of the companies, and prescribing the terms and conditions. thereof, the mode of carrying the same into effect, the name of the new company, the number of directors and other officers thereof, and their places of residence, the amount of the capital stock of the new company agreed upon, the number of shares of capital stock, the amount of each share and the manner of converting the capital stock of each of the constituent companies into that of the new company, with such other details as they may deem necessary to perfect the new organiza tion and the consolidation of the companies."