SCHOOLS-Continued.

visions of law and rules of the board
which might be enforced relating to
the appointment and compensation
of teachers, estop him from attack-
ing the constitutionality of the act
in question, for he accepted the posi-
tion subject only to valid and con-
stitutional laws of the state. Ib.

Mandamus will lie to compel the
president and business manager and
clerk of the board of education of
Toledo to sign and issue a warrant
upon its treasurer for the full
amount of salary coming to a teach-
er, without deducting any part
thereof, to apply to the school
teachers' fund authorized by act 94
O. L., 683, the act being unconstitu-
tional.

See also PUBLIC FUNDS.

SENTENCES-

Ib.

It is competent for a state, by its
legislature to provide that its agents
and agencies, wherever throughout
the state they may be situated, in
the doing of a public work, shall pay
the going wages wherever the work
is to be done by day's work; and
whenever it is to be done by con-
tract, that the agent wherever sit-
uated, shall put into the contract
that it executes by authority of the
state, a provision that the contractor
shall pay such rate. Clements
Brothers Construction Co. v. Cleve-
land.

See MUNICIPAL CORPORATION,

STATUTES-

844

The special act of the legislature
of April 12, 1900, 94 O. L., 563, au-
thorizing the board of education of
a certain townsnip to pay to the

board of education of a special
school district set off and created
therein a sum of money equal to
the equitable share due the latter
from the township school fund, is
an er post facto law in that it at-
tempts to create and enforce a liabil-
ity that did not before exist, and
violates Sec. 28, Art. 2, of the con-
stitution. State V. Board of Ed.
423

Where an act, local in its nature
and its operation contains one sec-
tion whose provisions, considered
separately from the context, are "of
a general nature," such section does
not contravene Sec. 26, Art. 2, of the
constitution. State v. Craig. 351

But this canon of construction does
not apply where the revisory statute
contains a repealing clause, limiting
its operation upon the previous act.

ib.

The general rule of construction
is, that where a later act covers the
whole subject of an earlier act, and
is plainly intended as a substitute
for the former, the former act is im-
pliedly repealed.
Ib.

Section 8 of the salary law for
Cuyahoga county, passed in 1889, 86
O. L., 264, was therefore not repealed
by the revisory act of 1896, 92 O. L.,
602, but remains in force as a con-
stituent part of the salary law of
said county.
ib.

Where a statute is plain and unam-
biguous (Sec. 4983, Rev. Stat., re-
lating to limitation of actions for
malpractice), it construes itself and
whether its provisions are wise or
equitable courts have no authority,
by judicial construction, to read any-
thing into or out of it. Fronce v.
Nichols.
472

Section 2289a. Rev. Stat., curing
irregularities in the passage of or-
dinances in violation of Sec. 1694,
Rev. Stat.. by passing several ordi-
nances on one vote, is constitutional.
Hutchinson v. Columbus.

573

Where an act repealing another
act and providing a substitute there-
for is found invalid the repealing
clause must be found invalid, un-
less it shall appear that the legisla
ture would have passed the repeal-
ing clause in any event. The legisla-
ture by the act of April 19, 1898, 93
O. L.. 316, amending Sec. 384, Rev.
Stat., relating to attachments before
justices by limiting the jurisdiction
of justices in certain countes named
without otherwise changing the law

STREET RAILWAYS-

Where a steam railroad crosses a
highway or a street, a street railway
which has the right to lay its tracks
in the street or highway may cross
the tracks of the steam railroad with-
out compensation to the steam rail-
road company.
Cincinnati & H.
Elec. St. Ry. Co. v. Railway Co. 113
When a trolley wire of a street
railroad crossing a steam railroad is
placed twenty-five feet above the
tracks of such stea railroad, the
approval of the commissioner of rail-
roads and telegraphs is not neces-
sary under Sec. 3365-28, Rev. Stat.,
93 O. L., 154, regulating the height
of wires crossing steam railroads at
twenty-five feet above the tracks and
requiring the approval of such officer
where trolley wires are placed at a
lower height by agreement of those
interested.
Ib.

Streets railroads crossing steam
railroads at grade are governed by
Sec. 2503, Rev. Stat., requiring cross-
ing frogs, and Secs. 3443-5 and
3443-7, requiring street cars to stop
and a man to be sent ahead, before
attempting to cross.
Ib.

Therefore, an electric, suburban or
interurban railroad is not required
to prepare or present any interlock-
ing or safety device for crossing a
steam railroad at grade to the com-
missioner of railroads before being
entitled to make the crossing. Ib.

Section 247f, Rev. Stat., 93 O. L.,
334, providing for interlocking or
other safety devices at grade cross-
ings where one railroad or an elec-
tric railroad, crosses another, does
not apply to street railroads cross-
ing steam railroads at grade. Ib.

Suburban and interurban rail-
roads, under Sec. 2780-17, Rev. Stat.,
92 0. L., 17, having been
classified by the legislature of the
state of Ohio with street railroads,
are governed by the laws relating to
street railroads.

Ib.

An ordinance granting an exten-
sion of a street railway as an elec-
tric passenger road to run in dif-
ferent directions than the original

route, and providing that no in-
crease of rates of fare shall be im-
posed, etc., is valid. Cincinnati v.
Street Ry. Co.
573

A company operating a street rail-
way and the driver of a team of
horses have equal rights at a street
crossing, and the latter has the
right, being at the crossing first, to
go over the crossing ahead of the
car, notwithstanding its speed must
be retarded to prevent a collision.
Toledo Eectric St. Ry. Co. v. West-
enhuber.
22

Where a street car is stopped at a
railroad crossing within the proper
distance, to allow the conductor to
go ahead and look out for approach-
ing trains, as Sec. 3443-6, Rev. Stat.,
requires, it not being otherwise a
regular stopping place for taking on
or discharging passengers, the con-
ductor and motorman of the street
car are not required, as a matter of
law, to look before the car is started
again to see whetner any one is
getting on, or about to get on the
car. Packard v. Traction Co. 822

A person, who taking advantage of
the stopping of the car, under such
circumstances is in the act of get-
ting on without giving notice of his
intention of doing so, and is thrown
off by the sudden jerk which is usual
in
starting an electric car, and
dragged and injured, cannot have a
verdict against him set aside on the
ground that it is against the evi-
dence.
Ib.

See also HIGHWAYS.

STREETS-Continued.

use obstructs ingress and egress to
and from their buildings and prem-
ises, or interferes with their rights
to light or air, in such manner as
to cause some substantial injury.
Ib.
Where an ordinance accurately
states the grade of a street improve-
ment in feet and inches, and the
notice served on a property owner
sufficiently apprises him of it, it is
immaterial whether the ordinance
was properly passed, and having
failed to file his claim for damages,
within the time prescribed by stat-
ute, no relief can be granted, not-
withstanding it clearly and equi-
tably appears he should be compen-
sated for the damages done by the
improvement. Jones v. Cincinnati.
SUBPOENA DUCES TECUM-

See NOTARY PUBLIC.

TAXATION-

535

Section 2781, Rev. Stat., providing
that taxes on property omitted from
the duplicate and subsequently en-
tered thereon by the county auditor
"shall be collected the same as other
taxes" requires that such taxes shall
be collected by the same methods
and processes as other taxes, but not
at the same periods for the semi-
annual payments of taxes; that is,
they are to be collected as delin-
quent taxes, and it is the duty of the
county treasurer after such taxes
have been entered on the duplicate,
to promptly institute proceedings for
the collection of the same under Sec.
2859, Rev. Stat., by distraint
otherwise, and an action so com-
menced is not prematurely brought.
Toledo Bridge Co. v. Yost.

or

448

It is the duty of the resident prop-
erty owner to return his taxable
property for taxation, but in order
to render a return thereof a "false
return," within the meaning of Sec.
2781, Rev. Stat., there must appear,
if not a design to mislead or deceive
on his part, at least culpable negli-
gence.
Ib.

Where there is no falsity in the
returns of a taxpayer for taxes on
property not returned, within the
meaning of Sec. 2781, Rev. Stat.,
proceedings should be brought under
Sec. 2742, Rev. Stat., and under no
other section, and if brought under
the section mentioned, the auditor

could not go back of the current
year and enter upon his tax dupli-
cate any alleged delinquent or omit-
ted taxes for the years prior thereto,
but if, in proceedings under such pro-
vision, he finds omitted taxes of the
current year, such taxes may be
added by a method substantially, if
not precisely, like that afforded by
Sec. 2781, Rev. Stat., or a proceed-
ing may be instituted under Sec.
2859, Rev. Stat., but in no event can
taxes be collected back of the cur-
rent year unless falsity in returns
be established prior to the enact-
ment of Sec. 2781a, Rev. Stat.,
March 22, 1900.
Ib.

Material purchased in other states
by a bridge manufacturing and con-
struction company for use in its
business in this state, which does
not come to its factory to be changed
or operated upon, but goes directly
to the place of use, is subject to
taxation under Sec. 2742, Rev. Stat.,
and a request to charge that all such
property not produced at the factory,
used in the construction of bridges
generally, was properly refused.
Whether such property not brought
into or used in this state at all, is
subject to taxation, quaere.

Ib.

Where, in an action to recover
omitted taxes, prior to the enact-
ment of Sec. 2781a, Rev. Stat., the
trial judge omitted to direct the jury
that they could not enter into their
verdict taxes for years prior to the
current year unless upon a finding
of false returns, and the verdict, in-
cluding taxes for previous years re-
turned without special findings, sug-
gests, by omitting penalties, that the
jury did not find that there had been
false returns, a reviewing court, be-
ing unable to be sure that the er-
roneous charge did not result pre-
judicially, should reverse the judg-
ment.
Ib.

Where courts, especially inferior
courts, act without jurisdiction,
either of the subject matter or the
person, the act of the court is void
and should be set aside whether it
benefits the one who attacks the
judgment or not. Hence, a bank,
against whom taxes have been il-
legally assessed, is not required to
show that his property is taxed at
more than its true value in money,
but is entitled to enjoin the collec-
tion of the amount irregularly as-
sessed. Euclid Ave. Sav. & Banking
Co. v. Hubbard.
179

Section 167, Rev. Stat., giving the
auditor of state power to remit taxes
and penalties and correct duplicates,
does not afford a remedy at law or
defeat the right to an injunction to
prevent the collection of taxes
legally imposed by the state board
of equalization for banks in an
amount exceeding one hundred dol-
lars, it being a review by the same
board of its action and contrary to
the intent and purpose of such sec-
tion. Nor was it intended that such
section should apply to a case where
the board acts without authority of
law. The section referred to is di-
rected to the correction of errors
and oversights.
Ib.

Under Sec. 2797, Rev. Stat., pro-
viding 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, accord-
ing to the valuation of the next pre-
ceding decennial appraisement,
neither the assessor nor the board
of equalization has the right to in-
crease the valuation of the platted
property, where the valuation placed
on the land by the acre at the pre-
ceding decennial appraisement was
fair as compared with the adjoining
property. Ransom v. Potter. 478

There is no conclusive presump-
tion that all appraisements of real
estate in the decennial year were
made as of the second Monday in
April. State v. Auditor.
718

See also BOARDS OF EQUALIZATION;
MANDAMUS; SCHOOLS; VERDICTS.

TRIAL

Whether or not petroleum or crude
oil is a highly inflammable and dan-
gerous substance, and a Constant
menace to property in its vicinity,
when stored in large quantities, are
questions of fact to be determined
by the jury; and when these ques-
tions are determined in the affirma-
tive, it is not ncessary to a recovery
by a party whose property has been
destroyed by fire arising from the
escape of petroleum so stored, to
show negligence upon the part of its
owners, but such owners must keep
the same upon their own premises
at their peril. Langabaugh v. An-
derson.
341

Whether the view of premises by
the jury, provided for by Sec. 7283,
Rev. Stat., be part of the trial or
not, the accused may waive the priv-
ilege of accompanying the jury, and
it will not be improper for the jury
to view the premises in the absence
of the accused under such condi-
ditions. Reighard v. State. 382

Section 7283, Rev. Stat., providing
for a view of the premises where a
crime has been committed, and di-
recting the manner in which the
jury shall be conducted to the place,
makes no provision for the defend-
ant, the judge or other officer con-
stituting the court to accompany
the jury; it makes no provision for
anything that savors of a trial or
the taking of evidence thereat. On
the contrary, the view is not for е
purpose of giving evidence to the
jury, but is to enable them to under-
stand and apply the evidence given
in open court. However, if the ac-
cused requests permission to ac-
company the jury, he should be per-
mitted to go.

Ib.

Where a person accused of a crime
is present in court, with counsel,
and asks the court for an order to
have the jury visit the premises
where the crime with which he is
charged was committed, and take
part in the discussion, aiding in giv-
ing directions as to the places to be
visited, and the jury is taken from
the court room in pursuance of such
order without objection, request or
intimation, by accused or counsel,
that he desires to accompany them,
and the view is had without any-
thing improper having occurred, and
upon the return of the jury, accused,
through his counsel, in open court,
expresses himself as satisfied with

Where counsel in his argument to
the jury, in an action for personal
injury, uses language calculated to
prejudice the jury and divert their
minds from the issues in the case on
trial, and which should not have
been used, but upon objection of op-
posing counsel, and before the court
has opportunity to interfere and ad-
monish him, withdrew the statement
and directed the jury to banish it
from their minds, and the court in
structed the jury that it was not
proper argument, the judgment will
not be reversed because of such mis-
conduct of counsel. Cleveland City
Ry. Co. v. Roebuck.

262

Where during the trial of a case
the proceedings are frequently in-
terrupted by reason of persons seek-
ing naturalization before the fall
election so that but little time each
day was occupied in the actual trial
of the case, and the trial was con-
tinued several uays by consent of
parties until after election when it
is again taken up and proceeded
with without interruption until con-
cluded, the interruptions while un-
fortunate and annoying to all con-
cerned, no prejudice results to the
defendant for which judgment will
be reversed, especially not where the
trial judge, having personal knowl-
edge thereof, refuses to grant a
motion for a new trial upon such
grounds. Higgins v. Drucker. 220

Where a railroad train started out
in good order and the brakes became
gummed up, in the ordinary opera-
tion of the train, and failed to op-
erate properly, the case should go
to the jury on the question whether
the company was negligent or not,
but should not be so submitted as to
result in a shifting of the burden of
proof upon the question of the ex-
istence of the defect. Hill v. Rail-
way Co.

241

Where, in an action to foreclose a
chattel mortgage, the answer admits
the averments of the petition, but by
way of cross-petition sets up new
matter as a defense, which consti-
tutes the only issue on which the
case goes to trial, the defendant is
entitled to the opening and closing.
Chicago Cottage Organ Co. v. Biggs.
497

Where it appears in the record of
a criminal proceeding that the ac
cused has been regularly found by a
jury to be "not sane," before such
accused can be put on trial under
the indictment, the record should be
made to show by an entry by the
court that the steps provided for
by Sec. 7243, Rev. Stat., relating to
proceedings when accused is restored
to reason, have been duly taken, and
that the condition of the accused
has changed from that of one "not
sane" to that of the sane person.
Brock v. State.

467

A charge, in an acuon for board,
lodging and washing, that "I be-
lieve there is one witness who testi-
fies as to the value of services for
board, lodging and washing, in which
she testifies that the same are worth
four dollars per week, you are, there-
fore, in the absence of other testi-
mony, bound to consider that as the
value of the services," invades the
province of the jury to give the evi-
dence such credence and weight that
under all the circumstances it was
entitled to and is erroneous. Wil-
son v. Brown.
719

Whether a child, not quite ten
years old, walking upon a path used