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Hamilton Circuit Court.

The plaintiff has only seriously challenged the judgment and conduct of one of the supervisors, Mr. Griffith C. Little, and except as Mr. Little testifies as to the opinions of his fellow supervisors on pages 23 and 24 the conduct and decision of the other three are unquestioned.

It was clearly incompetent for Mr. Little to testify as to the opinions of the other supervisors. This being so, there is a manifest failure of proof against Messrs. Herancourt, Glazier and Yeatman, and against the board of supervisors as a body.

But coming to Mr. Little's conduct and decision, he gives a reason for doing as he did. Whether this court, sitting in his place, would have given this reason the same consideration he gave to it, have accorded to it the same or less weight, or have in view of it come to the same decision or not, is beside the question and immaterial. The remotest and slightest increase of chances of anything interfering with the franchises of ninety thousand electors on the day of election as against an increased cost of two hundred dollars, presents a ponderable question which might well honestly be resolved one way or the other. In Mr. Little's conduct and decision there certainly was nothing wrongful, fraudulent, collusive or arbitrary, and whether this court or other citizens or the plaintiff agree with him or not there was no abuse of discretion in awarding the contract as he voted to do.

We find, therefore, on the facts that plaintiff has failed to make out a case which would entitle it to an injunction.

A restraining order will be denied.

TAXATION-VALUATION.

[Lucas (6th) Circuit Court, January Term, 1891.]

Scribner, Haynes and Bentley, JJ.

JOHN R. B. RANSOM V. HORACE J. POTTER, TREAS. PLATTED LAND Valued in bulk-Change UNAUTHORIZED, WHEN.

Under Sec. 2797, Rev. Stat., providing for the valuation of land laid out in town lots between decennial periods, and requiring the lots to be entered on the duplicate in lieu of the land included therein, according to the valuation of the next preceding decennial appraisement, neither the assessor nor the board of equalization has the right to increase the valuation of the platted property, where the valuation placed on the land by the acre at the preceding decennial appraisement was fair as compared with the adjoining property.

APPEAL.

SCRIBNER, J.

This case is here on appeal from the decision of the court of common pleas. It was submitted to us upon an agreed statement of facts, and the pleadings and the briefs of counsel.

At the decennial valuation of 1880 the lands now known as Ranson's addition to the city of Toledo, were assessed on the duplicate at a valuation of $6,900, which corresponded with the duplicate valuation of surrounding acre property. In 1887, this tract of land was laid out into lots, and recorded as Ransom's addition to the city of Toledo. In 1888 the assessors returned said lots into which said land had been platted at a valuation of $35,000 for purposes of taxation, without the knowl

Ransom v. Potter.

edge or consent of the owners of the property; and thereafter the board of equalization reduced the valuation of said lots to the valuation of about $24,000, and thereupon the same was entered upon the tax duplicate by the auditor of said county at such valuation, and by him turned over to the defendant, the treasurer of said county, for collection. Thereupon this action was commenced to enjoin the collection of the taxes upon such increased valuation of said lots made by the assessor and the board of equalization, on the ground that the same was unauthorized. A preliminary injunction was issued, and upon the final hearing of the case on the merits, said preliminary injunction was made perpetual, and the treasurer was enjoined from collecting taxes on said property at a greater valuation than the same were assessed at the last decennial valuation, to-wit: 1880. Thereupon the treasurer appealed the case to this court. The question presented, therefore, for the judgment of this court is: Can the assessor increase the valuation of such property as was done by him, and can the board of equalization place the same at the valuation fixed by it?

The proper determination of the question so presented arises mainly upon the construction which should be given to Sec. 2797, Rev. Stat., which provides:

"Whenever any person or persons shall lay out any town or any addition to any town, he or they shall before the plat thereof is recorded, present the same to the county auditor, who shall cause the assessor of the proper locality to assess and return the true valuation of each lot or parcel of land described in such plat, in the same manner as new structures are valued; and thereupon such lots or parcels shall be entered on the tax list in lieu of the land included therein; but in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the said lots shall, as near as practicable, be equalized with adjacent lands and lots according to such decennial valuation."

It will be noted, that according to the last preceding decennial valuation, these lands, before they were platted, were valued at $6,650. They were valued by the assessor after they had been platted at $35,000. The board of equalization reduced its valuation to $24,000; and these lots went upon the duplicate at that valuation; making an addition or difference between $24,000, the valuation placed by the board of equalization upon the lots as platted, and $6,650, the value of the same property as it stood upon the duplicate, according to the last preceding decennial valuation or appraisement.

Now the agreed statement, among other things, sets out that the land, embracing lots 1 to 250, inclusive (and these are the lots which belong to the plaintiff), was assessed as acre property at the decennial valuation of 1880 on the tax duplicate at $6,650, or about $214 per acre. The adjoining property upon the north of Ransom's addition was assessed at the decennial valuation of 1880 on the tax duplicate at about $447 per acre; "that the value of the lands embraced in said Ransom's addition for taxation, as determined by the decennial appraisement of 1880, was as great in proportion to their real value as that of the surrounding property." There is the further statement agreed upon: "Said lots embraced in Ransom's addition at the time they were assessed for taxation, after said platting, were worth, on an average, two or three times the amount of their valuation for taxation, as determined by said board of equalization." It will be seen, therefore, that while it is agreed here

Lucas Circuit Court.

by the parties that the actual value of these lots belonging to the plaintiffs was largely in excess of the value fixed by the board of equalization; that nevertheless, the value of the same lots, as determined by the decennial appraisement of 1880, was as great in proportion to their realvalue as that of the surrounding property. That is to say, that as between this property of Mr. Ransom's and the adjoining or surrounding property, the values were properly equalized, so that each should bear its fair proportion of taxation. Now referring again to Sec. 2797, Rev. Stat., we will read the concluding paragraph of the section:

"And thereupon said lots or parcels (that is to say, upon being platted, and returned by the assessor) shall be entered on the tax list in lieu of the land included therein (that is, the acre property); but in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the said lots shall, as near as practicable, be equalized with adjacent lands and lots, according to such decennial valuation."

The parties have agreed here, as I have stated, that the land of Mr. Ransom which was platted, stands upon the duplicate, at a fair and reasonable valuation relatively as the adjoining or adjacent property; yet the board of equalization have fixed its value for taxation at $24,000, as against $6,650, at which it stood upon the duplicate according to the last preceding decennial valuation.

In determining what is the proper construction to be given to this section as it here stands, I refer to the statute as it previously existed. By the act of 1866 (63 v. 174) it was provided:

"Whenever any person or persons shall lay out any town, or any addition to any city or town, in this state, before the plat thereof shall be recorded, it shall be the duty of the proprietor or proprietors of such plat to present the same to the county auditor of the county in which the lands so platted are situated, and the auditor shall cause the assessor of the proper township to assess and return the true valuation of each lot or parcel of said town plat, or addition, to the county auditor, who shall enter such valuation upon the tax duplicate in the same manner as new structures are now entered."

The statute as it here stands was passed upon, its proper construction considered and determined, by the supreme court in the case of Mitchell v. Treasurer, 25 Ohio St. 143, wherein the court says:

"1. The act of April 6, 1866, ' to provide for the valuation of lands in new town plats, or additions thereto,' applies to cases where the lands within the corporate limits of a city or town are laid out into lots, streets, etc., as well as to cases where the lands so laid out are situate without the corporate limits.

"2. This act should be considered and construed in connection with other statutes in pari materia; and when so considered and construed, its operation does not conflict with the provisions of the second section of the twelfth article of the constitution."

It was after this decision of the Supreme Court giving a construction to the act of 1866 that the present statute was passed, which contains the clause to which I have referred, requiring regard to be had in making the valuation to the next preceding decennial valuation, so that the lands, as near as is practicable, shall be equalized with the adjacent lands and lots, according to such decennial valuation.

Where a decennial valuation takes place, where there is a general appraisement of all the lands, under the requirements of the statute,

Ransom v. Potter.

there is no trouble or difficulty in making a proper equalization of values, so that each parcel of property may bear its proper share of the burthens of taxation; but where a valuation is made under this statute between the decennial periods, the assessor has no right to place any valuation upon the adjoining or contiguous property at all. And in this case this assessor valued this property for taxation at $35,000; it stood upon the tax duplicate valued, under the provisions of the decennial valuation, at between $6,000 and $7,000. The agreed case shows that the value so fixed by the decennial appraisers was a fair valuation as compared with the adjoining or contiguous property; and yet, under the supposed authority of this statute, the assessor, in returning the value of this plat, while having no right in any manner or form to equalize values upon adjoining property, returns a valuation upon it for taxation of $35,000. The board of equalization reduced that value, but still they left it at $24,000, necessarily leaving the adjacent property standing at its old valuation. The authorities have no right to meddle with it. And it is agreed by the parties in this statement of facts that the same property is properly valued at $6,650, as compared with the adjacent property, which has been valued by the decennial appraisers.

Under these conditions, we think that the plaintiff is entitled to the relief which he prays, and the prayer of the petition should be granted, and the treasurer enjoined from collecting taxes except upon the valuation agreed upon here as the proper valuation, having reference to the values put upon adjacent property; and it is adjudged accordingly.

CARRIERS.

[Lucas (6th) Circuit Court, June 18, 1901.]

Haynes, Parker and Hull, JJ.

CINCINNATI, HAMILTON & DAYTON RAILWAY Co. V. BERDAN & Co.

1. PRIVATE SHIPPING RECEIPT-CONDITIONS OF Bills of LADING.

Where a shipper delivers goods to a railway company in cars loaded and sealed by himself, and, for his own convenience, upon shipping receipts prepared by himself, but conditioned that the goods were received "subject to conditions contained in the company's regular bill of lading," and has an opportunity to see the bill of lading if he wishes, he is bound by the valid conditions in such regular bill of lading, whether he knows them or

not.

2. VALID CONDITION LIMITING COMMON LAW LIABILITY.

A condition in a bill of lading limiting the railway company's common law liability, in respect to loss by fire, to fires caused by its own negligence, is not against public policy nor invalid.

8. JUDGMENT NOTWITHSTANDING VERDICT.

In an action against a railroad company for the value of goods received upon condition limiting the carrier's liability in case of loss by fire to fires occasioned by its own negligence, a special finding by the jury that the fire did not result from the negligence of the railway company entitles the defendant to a judgment notwithstanding general verdict in favor of plaintiff.

31 O. C. D. Vol. 12

Lucas Circuit Court.

HEARD ON ERROR.

Swayne, Hayes & Tyler, for plaintiff in error.
Ralph S. Holbrook, for defendant in error.

HULL, J.

This action was brought by defendant in error against the plaintiff in error to recover for the loss of a car of glass jars that was delivered to the Big Four railroad company, so-called, at Muncie, Indiana, the Big Four railroad company there taking the fruit jars for shipment to Toledo over its own line and the Cincinnati, Hamilton & Dayton railway, thus making a continuous line from Muncie to Toledo, and the Cincinnati, Hamilton & Dayton Railway Company being bound by the contract of shipment, between the shipper at Muncie, Indiana, and the Big Four railroad company. The fruit jars were manufactured and shipped by the Ball Brothers Glass Manu'acturing Company of Muncie, Indiana, to Berdan & Co., who became the owners of them when they were placed on board the cars. They were transported from Muncie to the city o Toledo, and after reaching Toledo, when they were in the yards of the Cincinnati, Hamilton & Dayton Company, they were burned, the fire originating in the warehouse of the Michigan Central Railroad Company and being communicated to the car in which these fruit jars were at the time. The car load of merchandise being thus destroyed, Berdan & Co. brought action against the Cincinnati, Hamilton & Dayton Railway Company upon its common law liability as a common carrier, alleging that these fruit jars were delivered to the railroad company for transportation and that they had not delivered to them according to their contract, and they therefore asked damages for their value, to-wit, $587.50. The case was tried in the court of common pleas and the jury returned a verdict against the railroad company for the full amount named, with interest, and judgment was entered thereon, and it was to reverse this judgment that this proceeding in error was brought here.

The question in the case is whether any contract was made between the Ball Brothers Glass Manufacturing Company and the railroad company limiting the common law liability of the railroad company, the railroad company claiming that there was such a contract made and entered into with the shipper, and that Berdan & Co, standing in its place, are, by the facts of the case, estopped from denying that such a contract was made. The plaintiff, on the other hand, denies that there was such a contract made, limiting the common law liability of the railroad company, and claim and aver that if such a contract was made, it was void, illegal and contrary to public policy. The petition sets forth succinctly and briefly the delivery of these goods to the railroad company for shipment from Muncie, Indiana, to Toledo, and that the goods were not delivered to the plaintiff, but were lost by the default of the defendant, and asks judgment for their value.

The answer contains two causes of defense. In its first cause of defense the railroad company pleads the special contract to which I have referred and which it claims was entered into between the shipper at Muncie, Indiana, and the Big Four railroad company. They say in their answer that:

"On June 21, 1899, Ball Brothers Glass Manufacturing Company and said The Cleveland, Cincinnati, Chicago & St. Louis Railway Company entered into a certain contract, wherein and whereby said Ball

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