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Cuyahoga Circuit Court.

tain obligations or doing work that he agrees to do in a certain way, the contractor certainly cannot complain if the city refuses to pay except upon his compliance with the terms of the engagement."

Since the argument there has been evolved the notion that the few constitutional limitations upon the power of the state to control at will, through legislative action, all the affairs of municipalities, in some way helps out the contention of the majority that the state is not the proprietor in the grading and construction of the streets in question. It seems to me that the effect of these exceptions is to prove the rule, if proof be needed, that the state can do what it chooses in respect to pub lic improvements anywhere within its borders, whether the territory affected be within city limits or in the rural sections of the state, provided only that it does not transcend the limitations that the people have seen fit to place upon that power by means of the constitution. That instrument will be searched in vain for any restrictions upon the power of the legislature to grade or improve highways. * But, however the moneys necessary to pay the expenses of such an improvement may be raised, it is the state that authorizes the improvement, elects the agency by which it is conducted and alone determines the source from which the money needed to pay the expenses shall come, and its power in that respect has no limitations whatever.


The prevailing opinions discuss a question which is not the power to provide that the municipal authorities shall pay to their employees going wages. As the discussion which that question has received is, in my opinion, obiter, I shall not refer to it further than to say that I dissent from the views expressed in relation thereto on the ground that the statute offends no provision of the constitution when it undertakes to provide that the city shall pay the prevailing rate of wages to those who work for it. Who denies the power of the legislature to fix the rate of compensation for the mayor, the comptroller, the police commissioner, the clerk, the attendant, and the messenger? If anyone does, I have not heard him. Why may it not then fix the rate of compensation for the engineer in charge of its heating and ventilating apparatus, its skilled mechanics or its street sweepers? Where in the constitution is to be found the provision that so discriminates between the classes into which the public service is divided as to allow the legislature to provide certainty and stability of compensation to the one and denies a similar power as to the other? My attention has not been called to such a provision, nor have I been able to find it after diligent search. * * *

* * * In the contract between the city and this relator it is agreed in terms that "the wages to be paid for a legal day's work, as herein before defined, to all classes of such laborers, workmen or mechanics upon all such public work, or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which labor is performed, in its final or completed form, is to be situated, erected or used. * * *

Whether, therefore, the statute was unconstitutional or not, there was nothing to prevent this relator from consenting to the incorporation of the phraseology of the statute into the contract, and when he did that and voluntarily executed the contract, as in this case, he cannot effectively plead as an excuse for the violation of his contract that inasmuch

Construction Co. v. Cleveland.

as certain of its provisions are void when embodied in a statute, they are also void when incorporated into a voluntarily executed contract.

It is not easy to appreciate the argument that admits the validity of the contract; its open violation by the relator; concedes that the provision is clear and unambiguous that declares it shall be null and void in the event of such a violation, and still contends that a recovery may be had in the face of the defense urged by every legal method, viz., that the relator cannot recover because the contract has become void by his


It is the relator's violated agreement which entitles the defendant to claim that this contract is no longer of any effect. For it must not be forgotten that this relator comes into court admitting that he has violated the contract by failing to pay the prevailing rate of wages as he agreed to do, and by his contract he agreed that the effect of his failure to do so should cause the contract to become void and of no effect.

Bartlett and Vann, JJ., concur with O'Brien and Landon, JJ., for affirmance, and Martin, J., concurs with O'Brien, J.; Parker, Ch. I.. and Haight, J., read dissenting opinions.

54 O. C. D. Với. D


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ing and overhanging wall. Vanduzen v. Schraffenberger.


Title by prescription is established in the public by the use of a street for more than twenty-one years. 675 Duffy v. Norwood.



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The authority under Sec. 5114, Rev. Stat., to allow amendments in the interests of justice, is broad, and in the absence of evidence to the contrary, a reviewing court will assume that the court was justified by the evidence in permitting the amendment. Wicker v. Messinger. 425

Under Sec. 5114, Rev. Stat., a petition may be amended to conform to the facts as found by the jury in special findings, after the expiration of the three days, within which a motion for a new trial may be filed, and although no motion for a new Ib. trial was made.

A court has a right in a case coming to it on appeal to allow amendments in furtherance of justice, where the effect of such amendments is not to state a new and different cause of action from that originally brought in the lower court. Potter v. Norwood. 146

Where during the pendency of a suit in which the plaintiffs were entitled to an injunction to restrain the levying of an assessment against their property for the construction of a sewer, but wherein no temporary injunction was issued, the municipal authorities proceeded to do the work sought to be enjoined and improperly assessed parts of the costs therefor on lots of the plaintiffs, the plaintiffs have the right on appeal in the original action, by way of supplemental petition, under 5119, Rev. Stat., to set up the fact of such illegal assessment and seek to enjoin its collection.




Sections 3417, 3418, 3418a and
6951, Rev. Stat., making certain acts
of cruelty to animals an offense and
affixing a penalty are constitutional.
Beamer v. State.


Section 6951, Rev. Stat., is not in
conflict with Sec. 1, Art. 1, of the bill
of rights, and is in accord with Sec.
2, Art. 1, of the constitution. Ib.

Sections 6951, 3714, 3718. 3718a,
relating to cruelty to animals, to the
extent that they define an offense
and affix a penalty, are laws of a
general nature and of uniform oper-
ation throughout the state, and are
not in conflict with Sec. 26, Art. 2,
of the constitution of Ohio, relating
to uniform operation of laws. Ib.
Questions as to the organization
and powers of humane societies as
provided by Secs. 3714, 3718 and
3718a, Rev. Stat. and their right to
receive fines imposed under Sec.
6951, Rev. Stat., cannot be raised in
a proceeding in error by a defend-
ant duly and legally convicted, in
a prosecution in the name of the
state, of cruelty to animals, and sen-
tenced to pay a fine.

In a suit for injuries by a vicious
dog, an attachment will not lie on
the ground that the harboring of a
vicious dog is in violation of a crim-
inal statute. Wintering v. Corrigan.


Section 6494, Rev. Stat., is not,
by Sec. 6705, Rev. Stat., controlled
by Sec. 5227, Rev. Stat., but it is a
sufficient compliance with the stat-
ute if notice be given within ten
days, as provided by Sec. 6584, Rev.
Stat. relating to appeals generally
from justices of the peace. Bern-
hard v. Schwartz.

The relator, formerly a member of
the fire department, having had a
hearing as to the charges preferred
against him, before the tribunal au-
thorized 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 specifi-
cations nor take any evidence con-
cerning the proceedings before the
board. The finding of such board is
conclusive. State v. Hyman. 265

A notice of an intention to appeal,
by a trustee as such, incorporated
in the journal entry is not a suffi-
cient compliance with the require-
ments of Sec. 6408, Rev. Stat., which
provides for written notice to the
court of such intention. Brown v.

An appeal must be invoked in the
manner prescribed by statute, and
the burden is on the party desiring
to appeal to take the initiative, per-
form the act or take the step neces-
sary to secure the right of appeal.

Section 4948, Rev. Stat., commands
a liberal construction of our civil
code, but the right of appeal is based
solely on statutory grounds and the
courts can dispense with no condi-
tion prescribed by the statute as nec-
essary to perfect it.

The courts will not let an erron-
eous practice set aside the plain let-
ter of the law. notwithstanding it
may frequently work apparent hard-
ships. Cases settling questions of
practice must frequently have that
effect, but the establishment of a gen-
eral practice must prevail.

Section 896, Rev. Stat., providing
for an appeal from county commis-
sioners does not apply to proceed-
ings to recover back illegal fees paid
to officers on the allowance of such
commissioners. State v. Lewis. 597

In an action for an injunction and
also demanding a money judgment.
a decree dismissing the action is not
appealable. Weitzel v. Delhi (Vil.).

An objection that the the action
was not brought in the proper
county cannot be made for the first
time on appeal in the circuit court
by defendants who answered and
went to trial on the merits in com-
mon pleas. Reece v. Hydraulic Co.



Property already appropriated to
the uses and purposes of a public
park may be subjected to the uses
and purposes of a railway company.
Colby v. Toledo.

A city may waive the right to have
the question of assessment of dam-
ages submitted to a jury, and con-
sent to have the same determined
by the court; and may agree to re-
ceive a certain amount in compensa-
tion therefor, if the city authorities

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