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brings error. Judgment of circuit court re- year 1901 its principal office in this state versed, and that of common pleas affirmed. was at Cincinnati, and that it had a repreIn the court of common pleas the plaintiff

sentative there who had charge of handling in error brought a civil action against the

business which originated and terminated defendant in error for the recovery of money,

within this state, “as well as general charge and sued out an order of attachment against

of watching the movements of fruit business the defendant, the Armour Car Lines, on the

from one state to another." From these ground that the defendant was a foreign cor

undisputed facts a majority of this court poration engaged in transportation and inter

have no hesitation in holding that the de state commerce business. The defendant

fendant in error is a foreign corporation enmoved to discharge the attachment on the

gaged in Ohio in interstate commerce busiground that this averment was untrue and

ness. It is made very manifest by these because the defendant had complied with sec

facts that the defendant's business is not tions 148C and 148d, Rev. St. 1906. The

even primarily intrastate, but interstate; that court of common pleas refused to discharge

its business within this state is only incidenthe attachment, and rendered judgment for

tal to its general business of furnishing the plaintiff in error. All of the evidence on

cars and refrigeration for transportation bethe motion is embodied in a bill of exceptions.

tween points in many of the states. On petition in error the circuit court revers

Now, what is the effect of this finding on ed the order of the common pleas court and

this case? The defendant in error insists discharged the attachment, for the reason

that it is immaterial, for the reason, as it is that, having complied with the requirements

contended, that compliance with sections 148c of section 148c, the Armour Car Lines was

and 148d, Rev. St. 1906, exempted the denot subject to attachment on the ground that "fendant in error from attachment. The argu

ment is that the sale of ice within this it was a foreign corporation engaged in in

state is not interstate commerce, and that, terstate commerce. This proceeding in error is brought to reverse the judgment of the

if part of the business of a foreign corporacircuit court.

tion was interstate commerce and part was

not, a formal compliance with the statute Higley & Maurer, for plaintiff in error.

would be sufficient to exempt the corporaBrewer, Cook & McGowan, for defendant

tion from attachment, as provided in sections in error.

5521, 148c, and 1480, Rev. St. 1906. This

argument seems to ignore the fact that while DAVIS, J. (after stating the facts). The (

ice may have been nominally sold in this defendant in error is a corporation organiz

state, yet that in most instances it was put ed under the laws of New Jersey and having

into the cars of the defendant in error to be its principal office in that state. The first

transported within or without the state, as question presented by the record is whether

occasion might require; and it also assumes the defendant in error is, within the meaning

as true a proposition which it not true, nameof section 148c, Rev. St. 1906, a "transporta

ly, that if a part of the business of the detion or other corporation engaged in Ohio

fendant in error was not interstate commerce, in interstate commerce business.” The un

for that reason it was not engaged in interdisputed evidence contained in the bill of ex

state commerce, although a large part of its ceptions discloses that the defendant in er

business was indisputably interstate comror, besides its home office in New Jersey,

merce. If it is a foreign corporation enhas branch offices “scattered throughout the

gaged in interstate commerce in whole or in country"; that one class of business in which

part, for there is no distinction made in the it is engaged is "furnishing cars for its own

statute as to parts, it is not subject to, nor business," and another class is "furnishing

entitled to the privileges of, section 148c, cars or refrigeration for fruit shipments”;

and therefore it cannot comply with section that in 1901 it was operating what was then

148c, so as to obtain exemptions from attachknown as the "Fruit Growers' Express"; that

ment. A mere voluntary compliance with in that year it issued a schedule of rates

this section, by a corporation which is not for refrigeration between various points in

within its purview, is an empty and meaningdifferent states; that it sometmes made spe

less form. The proviso of section 148d, that cific contracts with shippers, and sometimes

such foreign corporations as comply with seccontracted with railroads to furnish cars,

tion 148c shall not be subject to attachment, receiving mileage therefor and reserving to

does not let in the defendant in error; for itself all duties relating to icing and refrig

the defendant in error is not within the eration; that the charge for refrigeration was

ternis of section 148c, and was not entitled usually collected for the defendant in error

to comply with it, and therefore its compliby the railroad companies; that the shipper

ance therewith in form is a nui!ity and condetermined the point to which the car should

fers no immunity upon it. be sent; that sometimes the cars transported

The judgment of the circuit court is reproduce between points in this state, some

versed, and that of the court of common pleas times from points outside of this state to

affirmed. points inside of the state, and sometimes from points outside of this state across this SHAUCK, C. J., and PRICE, SUMMERS, state and into other states; and that in the and SPEAR, JJ., concur.

(74 Oh. St. 185)

EMMERT V. CITY OF ELYRIA, (Supreme Court of Ohio. May 1, 1906.) 1. MUNICIPAL CORPORATIONS STREET INPROVEMENTS-ORDINANCE.

A statement, in an ordinance providing for the improvement of a street by paving, that the paving material shall be asphalt, brick, or other material, as may thereafter be determined, meets the requirement of section 55 of the Municipal Code (section 1536-215, Rev. St. 1906 [Bates' 5th Ed.]), that the ordinance shall contain a statement of the general nature of the improvement, and the character of the materials which may be bid upon therefor.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $ 812.] 2. SAME-ISSUE OF BONDS.

Sections 45 and 45a of the Municipal Code (Rev. St. 1906 [Bates' 5th Ed.] 88 1536-205, 1536-205a), providing, in substance, that no contract involving the expenditure of money shall be entered into unless the auditor of the corporation shall first certify to council that the money required for the contract is in the treasury to the credit of the fund from which it is to be drawn and not appropriated for any other purpose, and that a contract entered into contrary to such provision shall be void, and that the money to be derived from lawfully authorized bonds or notes sold and in process of delivery shall be deemed in the treasury and in the appropriate fund, do not apply to contracts for street improvements, when bonds have been authorized by the municipality to be issued to pay the entire estimated cost and expense of the improvement. (Syllabus by the Court.) Error to Circuit Court, Lorain County.

Action by one Emmert against the city of Elyria. Judgment for plaintiff in the common pleas was reversed in the circuit court, and he brings error. Affirmed.

The plaintiff in error, a resident taxpayer of the city of Elyria, brought suit in the court of common pleas to enjoin the city from paying to the Barber Asphalt Paving Company the balance due it on a contract for paving one of the avenues of said city. As grounds for the relief he avers that the ordinance for the improvement was defective, in that it did not provide the kind of material to be used in the making of the improvement; that the certificate of the auditor that the money necessary for the improvement was in the treasury to the credit of the proper fund, and unappropriated for any other purpose, was not filed with the council before the passage of the resolution and ordinance authorizing said improvement, nor before the contract for said improvement was entered into by the city; that there was no money in the treasury to the credit of said fund, nor had any bonds or notes been sold at the time of entering into the contract. Plaintiff further averred that if it should appear that at any time the auditor had certified to the council that there was money in the treasury to the credit of said fund for the purpose of constructing said improvement, such certificate was false and untrue, and was fraudulently made by the procurement of the paving company to acquire an undue advantage over and with

the intent to defraud the city out of the money named in the contract. The city answered, denying the facts stated as grounds for the relief prayed for. The Asphalt Company also denied these facts, and averred that in response to an invitation from the city for bids it filed with said city a bid for making the improvement, and its bid was accepted, and prior to entering into the contract the auditor of the city filed with the council of the city a certificate certifying that the money required by the contract was in the treasury of the city to the credit of the improvement fund for said avenue, and not appropriated to any other purpose, and that said certificate was immediately recorded as required by law, and that before the making of said contract the city procured from its city solicitor an opinion that it had a right to enter into said contract, and that the paving company, relying upon the fact of the filing and recording of said certificate and of said opinion of the city solicitor and believing that all of the acts of the city were had and done in accordance with law, entered into said contract in good faith, and thereafter furnished the materials and labor, and constructed said improvement in all respects in accordance with its contract, and to the satisfaction and acceptance of said city, and in so doing expended a large amount of money of which there remained unpaid and due it, under said contract, the sum of $22,000, and that it would be inequitable and unjust in the city to refuse payment according to the terms of its contract, and that if it was not permitted to do so, the city would have the improvement without paying for it, and thus a great wrong and injury would be done the paving company; that the work was done with knowledge of all the facts by the plaintiff, and that he did not bring the suit until the work had been done, and that he and the city were estopped to deny the obligation on the part of the city. The plaintiff denied the averments of the answers.' The court of common pleas found that the contract price of the improvement was in round numbers $58,000, the part to be paid by the city $30,000, and that $36,000 of the contract price had been paid, and that $22,000 remained due, and that plaintiff was entitled to an order restraining the payment of so much of the balance due as is the part to be paid by the city in proportion to the contract price, to wit, the sum of $11,000, and enjoined the payment of that amount.

The case was appealed to the circuit court. That court made the following findings of fact: "(1) That on the 9th day of August, 1904, the city solicitor of said city was requested by plaintiff to bring this action; but said solicitor failed, neglected, and refused so to do. (2) That on and from time to time after the 22d day of March, 1904, all proceedings required by law were duly had by

said city for the making of the improvements | porated villages, by general laws, and restrict described in the petition, save that (a) the their power of taxation, assessment, borrowcouncil of said city never determined what ing money, contracting debts and loaning kind of material should be used for paving their credit, so as to prevent the abuse of said street, otherwise than to determine by such power.” In obedience to this mandate, resolution, duly passed and approved, that laws have been enacted under which our mu

it should be asphalt, brick, or other material nicipalities play their very important parts · as might thereafter be determined, and to in carrying on the government of the state.

direct by ordinance that the board of public The first general act was passed in May, service of said city contract with the lowest 1852. 50 Ohio Laws, p. 223. The matter and best bidder for said improvement; and then was comparatively insignificant. This in accordance therewith said board there- act authorized them to contract, and, in adafter determined to use asphalt; (b) the

dition to certain enumerated powers, to excertificate of the auditor of said city, that ercise such other powers as are incident to the money necessary for said improvement municipal corporations of like character. A was in the treasury to the credit of the limited power of taxation was conferred, and proper fund and unappropriated for any power to borrow a limited amount of monother purpose, was filed with the clerk of the ey in anticipation of the revenues of the curcouncil, and also in the office of the board rent fiscal year, and the council was explicitly of public service of said city on the same

enjoined not to "authorize any order or apday that, and immediately before, said con- propriation of money, when there is not in tract was let, and not before that time, and the city treasury money unappropriated suffithat on the day of said filing of said cer- cient to pay such appropriation,” and it was tificate and letting of said contract, all pro

provided that "any appropriation otherwise ceedings of council with respect to said im

made or authorized, shall be held and deemed provement had already been had, and said utterly void, and of no effect against said council was not in session on the day of

corporation,” and that "no money shall be the filing of said certificate. (3) At the time appropriated by the council except by ordisaid certificate was filed, there was no cash

nance.” The next general act of importance in the proper fund and unappropriated in

is the Municipal Code of 1869–66 Ohio Laws, said treasury for said improvement, but

p. 145). This act specifies various purposes bonds of said city wherewith to provide such

for which taxes might be levied and the rate cash had been duly authorized. Said bonds for each, and provided that “the council shall had not been sold, nor were there any notes

not make appropriations nor contract debts of said city then sold and in process of

for the ordinary purposes of the corporation, delivery, and said facts were all well known

exceeding the amount of taxes and revenue to all the defendants, who, however, in good

from other sources for the current year," and faith, and pursuant to the advice of the

that "all services rendered and performed, solicitor of said city, proceeded with said

and all supplies furnished for the corporaimprovement, believing that their proceedings tion, shall, as far as practicable, be rendered, were lawful. (4) Plaintiff, when said con

performed and supplied in pursuance of contract was let, was present and protested

tracts to be authorized by the council, against said action, but thereafter paid a

through some appropriate officer or departportion of the assessment levied on his prop

ment of the corporation.” It is patent from erty to pay the cost of said improvement,

these provisions that the legislative policy and he forebore to bring this action until

respecting its municipal agencies in the matsaid contract was fully execucted, and the

ter of their ordinary living expense was pay improvement completed. (5) $36,000 has been

as you go. That these provisions were not

sufficient to effect that policy is apparent paid and $22,000 is unpaid on said contract”—and concluded as a matter of law that

from the law passed in 1874 (71 Ohio Laws, the plaintiff, by his laches, was estopped

p. 80) to authorize the city of Cincinnati to to deny the due authorization of the use

borrow $1,000,000 to pay its floating debt. of asphalt as the material for said improve

Construing this act in the State ex rel. v. ment, and that all of the other proceedings

Hoffman, Auditor, 25 Ohio St. 328, 333, Gilof the city were regular and lawful, and

more, J., says: "Notwithstanding the prodismissed the plaintiff's petition at his cost.

visions of the Code against going in debt for

ordinary purposes, beyond the revenues of D. J. Nye, for plaintiff in error. Hopkins, the current year, they seem to have been Bole, Cobb & Newcomb, W. B. Johnston, E. wholly inadequate, and a floating debt of G. & H. C. Johnson, F. M. Stevens, Roscoe $1,000,000 had been by some means sadJ. Mauck, and D. B. Sharp, for defendant dled upon the city. It is plain that such a in error.

debt could not have been in existence if the

annual expenditures for ordinary purposes SUMMERS, J. (after stating the facts). had been kept within the revenues of each Municipal corporations are agencies of the current year. It may be inferred that this state. Section 6, art. 13, of the Constitution, result had probably been brought about partprovides : "The General Assembly shall pro- | ly through the instrumentality of contracts vide for the organization of cities, and incor- not very definite in their terms respecting what was to be done, or the price to be paid not under a moral obligation to do so or that for it, and partly through contracts entered a court, because it will not enforce payment, into and performed, without there being mon- will enjoin it. The contract for paving this ey on hand to pay the expense, and requiring street is not ultra vires. If invalid it is so expenditures greater than the current an- merely because the contract was made before nual revenues would meet."

the bonds to provide the money to pay for it He then points out the remedy provided by were sold. Now that the work has been done the act. "From the taking effect of this act, in accordance with the contract, and the bonds no ordinance or other order for the expendit- have been sold, and the money to pay for ure of money shall be passed by the city coun- it is in the treasury, it is right that it should cil, or any board, or any officer, or any com- be paid for and a court of equity ought not, missioner having control over the moneys of unless its failure to do so would defeat the the city, without stating specifically in such purpose of the law, prevent the municipality ordinance or order the items of expense to from doing what equity and fair dealing be made under it, and no such ordinance or would exact from an individual. But, in the order shall take effect until the auditor of view taken of the statutes, a disposition of said city shall certify to the city council there the case upon these considerations is not necis money in the treasury especially set apart essary. Under the new Municipal Code (96 to meet such expenditure, and that all .ex- Ohio Laws, p. 20) these sections (1693 and penditures greater than the amount specified 2702) are repealed. The substance of 2702 in such ordinance or order shall be absolute- is comprised in section 45 of the Code (Rev. ly void, and no party whatever, shall have St. 1906 [Bates' 5th Ed.] f 1536–205). Secany claim or demand against said city there- tion 1693 is not re-enacted because, under the for; nor shall the city council, or any board, Code, council is relieved of administrative or any officer, or any commissioner of said matters, and such duties are imposed on a city, have any power to waive or qualify the board of public service. Section 55 of the limits fixed by such ordinance or order, or Code (Rev. St. 1906, § 1536–215) provides fasten upon said city any liability whatever that if council decides to proceed with the for any excess of such limits, or release any improvement an ordinance for the purpose party from an exact compliance with his shall be passed, and that it shall contain a contract under such ordinance or order." statement of the general nature of the imThis is the so-called "Worthington Law," and provement, and the character of the materials it was carried into the revision of 1880 as sec- thereof. It appears, from the finding of tion 2699. However, it applied only to Cin- facts that council determined that the paycinnati, and in 1876 its remedial provisions ing material should be asphalt, brick, or other were given general application by the enact- material, as might thereafter be determined. ment of the so-called "Burns' Law,” in part This meets the requirements of the statute. comprised in sections 1693 and 2702, Rev. Prior to the adoption of the present Code it St. These provisions were more than limi- was provided, as to some cities, that the kind tations upon the power of the municipalities of materials should not be determined until to contract. They prescribed the mode in after bids had been received, the reason bewhich an obligation on the part of the city ing that it promoted competition and tended might be created, and the mode prescribed to prevent collusion among bidders. Section was the measure of the power to contract. 2702 is comprised in section 45 of the Code, Applying these provisions, it has been held with some additional restrictions and a numthat, in a suit on a contract against a

ber of important exceptions, suggested by exipality, an averment of an observance of perience, among them this: "Provided, furthem is essential to the statement of a cause ther, that such requirement shall not apply to of action; that in the absence of the strict ob- street improvement contracts extending for servance of them no liability is incurred by one year or more"; and in 1904 (97 Ohio the municipality; that an implied liability Laws, p. 44) this section was supplemented on the municipality cannot be created by its by section 45a (Rev. St. 1906, § 1536–203a) receiving or retaining the benefit of per- which reads as follows: “money to be deformance of such a contract by the other par- rived from lawfully authorized bonds or ty; and that it is not estopped by the acts of notes sold and in process of delivery shall its agents or officers, for the reason that these for the purpose set forth in section 45 of provisions are intended for the protection of this act be deemed in the treasury and in the the citizen, and that persons dealing with its appropriate fund.” What is meant by “street officers are presumed to know the extent of improvement contracts extending for one their authority. City of Lancaster v. Miller, year or more"

more" does not clearly appear, 58 Ohio St. 558, 51 N. E. 52; Buchanan whether it has reference to the period in Bridge Co. V. Campbell et al., 60 Ohio St. which the work is to be done, or to that in 406, 54 N. E. 372; Comstock v. Incorporated which the payments are to be made. Section Village of Nelsonville, 61 Ohio St. 288, 56 N. 2702 contained this exception: "Provided, E. 15; City of Wellston v. Morgan, 65 Ohio further, that in cities of the second grade of St. 219, 62 N. E. 127. But, because a munic- the first class, contracts for street improveipality is not legally liable to pay for a pub- ments extending for a period of one year uplic improvement, it does not follow that it is on which payments are to be made from levy."

time to time, as the work progresses, materi- cient amount to pay the estimated cost and al is furnished, or service performed, such expense of the improvement,” so that it cities are authorized to enter into such con- would seem to follow now that a municipaltracts if the estimated expenditure there- ity may issue bonds in sufficient amount to under does not exceed the taxes levied for pay the estimated cost and expense of an imsuch purposes during the term of the con- provement, and may levy taxes in addition tract, and in such cases the certificate of the to all other taxes authorized by law, to pay auditor as herein provided shall not be re- the bonds issued and sold to pay its part of quired other than to state the amount of the the cost of the improvement, that sections 45

and 45a do not apply to improvements for Prior to the adoption to the New Code, sec- which the city has authorized bonds to be tion 2273, provided that all cities, excepting issued to pay the entire estimated cost and those of the third grade of the first class and expense. those of the first grade of the second class, Having found that these sections are not should pay not less than one-fiftieth of the applicable, their interpretation is not necescost and expense of improvements and that sary. the amount to be paid shall be certified to the Judgment affirmed. county auditor and that when so certified it should be considered as money in the treas

SHAUCK, C. J., and CREW, SPEAR, and ury in compliance with section 2702. Section

DAVIS, JJ., concur. 2274 provided that cities, excepting those of the first grade of the first class and of the second class, should levy a tax in addition to that specified in section 2273 for the esti

(185 N. Y. 408) mated cost of so much of the improvement as

SADLIER et al. v. CITY OF NEW YORK. might be included in street intersections,

(Court of Appeals of New York. June 12, and that the levy might be madė after the

1906.) contract had been let or the improvement 1. INJUNCTION – RESTRAINING CONTINUOUS had been completed. As to Cincinnati and TRESPASS-RELIEF. Toledo, it was provided by section 2275 that One has a right to invoke the aid of equity

to restrain a continuous trespass, and in a the part to be paid by them might be included

suit for that purpose the court should grant in any bonds issued for the improvement, and all the relief that the nature of the action and be paid by them in like manner as by other the facts demand. property owners. Other special exceptions [Ed. Note. For cases in point, see vol. 27, were made and the tendency of legislation

Cent. Dig. Injunction, 88 101, 409.] was to exempt such improvements from the 2. APPEAL-PARTIES INJURED BY DECISION.

A defendant sued in equity to prevent a requirement that the money be in the treas

continuous trespass is not aggrieved by the reury before the contract was entered into.

fusal of the court to grant injunctive relief, In Comstock v. Incorporated Village of Nel- though awarding damages. sonville, supra, it is held that, in the absence [Ed. Note.--For cases in point, see vol. 2, of an exception, section 2702 applied to so

Cent. Dig. Appeal and Error, $$ 947, 950.] much of the cost of the street improvement 3. EQUITY_JURISDICTION-FACTS ESTABLISH

ING CAUSE FOR EQUITABLE RELIEF-NECESas was to be paid by the city out of a levy

SITY. and that it did not apply to so much as was Since Code Civ. Proc. $ 3339, abolishto be paid by special assessment, for the rea- ing the distinction between actions at law and son that the payment that was to be made by

suits in equity, does not abolish the funda

mental differences between actions at law and the city was included in the general levy

suits for equitable relief, and since a person which was subject to limitation. As the gen- must, under section 481, state in his complaint eral law then was, the city was not author- the facts constituting his cause of action, a ized to provide for its part by a levy extend

plaintiff bringing an action for equitable re

lief must establish such a cause of action, or ing over a number of years and by bonds is

his complaint must be dismissed, and damages, sued in anticipation of the collection of the

as in an action at law, cannot be given in levy. Section 51 of the Code (Rev. St. 1906, equity on plaintiff failing to establish his right § 1536–211) provides that bonds may be is

to equitable relief.

[Ed. Note.-For cases in point, see vol. 19, sued in anticipation of the collection of as

Cent. Dig. Equity, SS 116-118.] sessments and that the assessment may be

4. SAME - JUDGMENT FOR DAMAGES ONLY payable in one to ten installments, and sec

AUTHORITY OF COURT. tion 53 (Rev. St. 1906, § 1536–213) provides A grant of equitable relief is not indisthat any city or village is authorized to is- pensable where the action is properly brought sue and sell its bonds as other bonds are

and the facts on which equitable relief is

claimed are established, and the court may sold to pay the corporation's part of any

award money damages only, not because plainimprovement and may levy taxes in addition tiff improperly brought his action in equity, to all other taxes authorized by law to pay

but because of special circumstances. such bonds and the interest thereon, and in

[Ed. Note.-For cases in point, see vol. 19,

Cent. Dig. Equity, SS 116-118.] section 95 (Rev. St. 1906, § 1536-281) it is

5. APPEAL-PARTY AGGRIEVED. provided that municipalities shall “have pow

A plaintiff, alleging and proving facts which er to issue bonds in anticipation of special as

give a court equitable jurisdiction, can alone sessments, and such bonds may be in suffi

complain because of the failure of the court

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