ordinance, is whether the class of business

(No. 15722.)

(Supreme Court of Ohio. June 11, 1918.)

sought to be restrained is such as may in CITY OF CINCINNATI et al. v. ROGERS. good faith be deemed a nuisance within the limit of restraint. We are therefore constrained to hold that it has not been made to appear that the action of council in the enactment of the ordinance had no real or substantial relation to the public health or comfort and that it acted unreasonably or arbitrarily.

[2] The ordinance in question was enacted after the permit was issued to the relator. The further claim is made that the relator, having expended considerable money in the purchase of land and material, and having entered into certain contracts for the erection of the building, and the building being in course of construction, acquired certain vested rights which could not be affected by the ordinance that the ordinance could not be retroactive. It is not necessary to devote much time to this proposition, for it seems to be well settled that a permit such as was issued in this case has none of the elements of a contract, and may be changed or entirely revoked, even though based on a valuable consideration, if it becomes necessary to do so in the exercise of a legislative power on subjects affecting the public health or public morals. Cooley on Constitutional Limitations, 283; Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036; Butchers' Union Slaughterhouse & Live-Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughterhouse Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516; Moore v. Indianapolis, 120 Ind. 483, 22 N. E. 424; and Dobbins v. Los Angeles, 139 Cal. 179, 72 Pac. 970, 93 Am. St. Rep. 95. In the Dobbins Case, which is similar to the one under consideration here, it was held:

"The fact that the plaintiff had lawfully commenced its work by purchasing land for a site within the limits allowed by the original ordinance, and had expended money in laying a foundation, and had entered into contracts for the erection of its works, and had secured a building permit from the fire commissioners in pursuance of fire and building ordinances, cannot estop the city from the further exercise of its police power to change the limits so as to make the erection and maintenance of such gas-works unlawful where begun and existing within the changed limits."

This is a proceeding in mandamus, and it has been repeatedly held that the right of the relator to a writ must be clear and there must be shown a plain dereliction of duty on the part of the officer. We think the relator has failed to establish its right to the writ, and the same must be refused. Writ refused.

(Syllabus by Editorial Staff.) MUNICIPAL CORPORATIONS 214(3)-RAPID TRANSIT COMMISSION-EMPLOYMENT

COUNSEL-STATUTES.

OF

Under Act May 17, 1915 (105-106 Ohio Laws, p. 287) § 5, relating to its expenditure of appropriations, and section 3, authorizing rapid transit commission to employ such employés as may be necessary and referring to attorneys, the commission was authorized to appoint counsel, notwithstanding Gen. Code, § 4214, relating to steps necessary to authorize payment of compensation to city employés.

Error to Court of Appeals, Hamilton County.

Suit by one Rogers, a taxpayer, against the City of Cincinnati and others. General demurrer to answer overruled and judgment entered for defendant, and, from a judgment of the Court of Appeals reversing the judg ment, defendants bring error. Reversed.

Charles A. Groom, City Sol., Saul Zielonka, Asst. City Sol., and Dinsmore & Shohl, all of Cincinnati, for plaintiffs in error. Powell Crosley, of Cincinnati, for defendant in error.

PER CURIAM. The defendant in error brought a suit in the common pleas of Hamilton county against the city of Cincinnati, its board of rapid transit commissioners, its city auditor, city treasurer, and Frederick S. Spiegel.

The petition alleges: That the rapid transit commissioners on May 19, 1916, adopted the following resolution:

"Resolved, that Frederick S. Spiegel be appointed counsel for this commission, as provided in section 4000-18, of an act passed by the Legislature, volume 105-106, page 287, at the rate of $5,000 per annum, to be effective on and after June 1, 1916, subject to the pleasure of the board."

That said resolution providing for the payment of the salary named is without authority in law, and that the payment thereof would be a misapplication of the funds of the city. The petition contains the necessary averment with reference to the request to the city solicitor to bring the suit and his refusal to do so.

Defendants admit the passage of the resolution and the request made of the solicitor to bring the suit referred to. They allege the creation of the rapid transit commission in pursuance of the statute known as the Bauer Law, 105-106 Ohio Laws, 286, and aver that the necessary steps were taken to authorize the issuing of bonds for the purpose of providing funds for the construction of a rapid transit railway system and for the purchasing and condemning of the The plaintiff filed a general demurrer to

JONES, MATTHIAS, JOHNSON, and necessary land therefor. DONAHUE, JJ., concur.

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the answer, which was overruled by the court, and, plaintiff not desiring to plead further, judgment was entered in favor of the defendant. On error this judgment was reversed by the Court of Appeals, and error is now prosecuted to this court.

Defendant in error contends that section 4214, General Code, provides the necessary steps that must be taken to authorize the payment of the compensation to employés of the city.

hensive powers to establish and construct a rapid transit system in the municipality. An independent proceeding has been created to be conducted by a separate and independent commission for the construction of the system referred to.

It will be observed that, by the provisions of section 4214 quoted, it is provided that the council shall determine the number of officers, clerks, and employés in each department of the city government, and shall fix, by ordinance or resolution, their respective salaries or compensation. But by section 4000-18, General Code, which is section 3

The plaintiffs in error insist that by the provisions of the rapid transit act (105-106 Ohio Laws, 286) the board of rapid transit commissioners was vested with full author- of the rapid transit act, it is provided that ity to act in the premises and to employ counsel and fix his compensation. The pertinent portion of section 4214, General Code, is as follows:

"Except as otherwise provided in this title, council, by ordinance or resolution, shall determine the number of officers, clerks and employés in each department of the city government, and shall fix by ordinance or resolution their respective salaries and compensation, and the amount of bond to be given for each officer, clerk or employé in each department of the government, if any be required."

The pertinent portion of section 3 of the rapid transit act is as follows:

"The board of rapid transit commissioners may employ clerks, engineers, superintendents and such other employés as may be necessary.

* The superintendents, clerks, engineers, real estate experts, and attorneys of the board shall be in the unclassified service and all other employés shall be in the classified civil service of the municipality."

the board of rapid transit commissioners may employ clerks, engineers, superintendents, and such other employés as may be necessary. This provision, as pointed out, is included in an independent act passed subsequently to section 4214, and for the specific purposes pointed out.

The provision in section 4214, General Code, with reference to the fixing of compensation by council, relates to the compensation of the officers, clerks, and employés which the council had by its resolution determined there should be.

The provisions of section 3 of the rapid transit act confer upon the rapid transit commissioners the power to employ clerks, engineers, superintendents, and such other employés as may be necessary. There is no requirement that council shall first determine the number of officers, employés, etc., to be employed by the board. The board determines that matter for itself. The necessary implication from this provision is that, having given the board power to engage the employés referred to, it had the power to fix their compensation, and the provisions of section 5, above quoted, sustain us in this view.

It is contended: First, that there was no authority for compensation to an attorney employed by the board of rapid transit commissioners; second, that the board of rapid transit commissioners abused its discretion in employing an attorney, because of the fact that there is a solicitor for the city of Cincinnati. We see no reason in the circumstances of Section 5 of the rapid transit act includes this case to hold that the board abused its the following:

discretion in the employment of counsel. The "The board of rapid transit commissioners wisdom of securing the assistance of counshall have control of the expenditure of all mon- sel appointed by itself to assist in the maneys appropriated by the city council or receiv-ifold responsible duties imposed by the stated from sale of bonds provided for in this act or from any other source whatever, for the purchase, construction, improvement, maintenance, equipment or enjoyment of all such rapid transit property."

It is clear that in the act referred to the General Assembly has endowed the board of rapid transit commissioners with compre

ute is clear.

For these reasons we think the judgment of the Court of Appeals should be reversed. Judgment reversed.

NICHOLS, C. J., and NEWMAN, JOHNSON, and DONAHUE, JJ., concur.

Frank W. Morrison, of Whitinsville, and Holton Davenport and Wilfred B. Feiga, both of Worcester, for plaintiff. Samuel B. Taft, of Uxbridge, for defend- plaintiff would buy the motorcycle and that

"(4) If the jury find that the circumstances under plaintiff's case.'"

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Ramsey and see if the trade could be made; | payment. The defense set up at the trial that later, Sawyer returned and reported was that the coal was bought by the defendthat Ramsey was willing; that the bill signed ant of Sawyer as Sawyer's coal and for this as produced by Ramsey was then sent to reason that the defendant was not liable to Ramsey to be delivered by Sawyer." There the plaintiff as purchaser of the coal from was no evidence connecting the defendant him. In that aspect of the case also the secwith the facts so testified to. The plain- ond, third and fourth rulings asked for were tiff further testified that "Sawyer broke his rightly refused. promise to stop drinking" and the plaintiff told the defendant that the sale of the motorcycle "should have been made to [him] the plaintiff;" and told him that "he would have to be paid for the coal or have the lease of the motorcycle made to him which the defendant said he could not do because Sawyer had bought it and had not broken the lease." Sawyer was not put upon the witness stand by either party.

In his argument here the plaintiff has relied on Orcutt v. Nelson, 1 Gray, 536, and similar cases in support of his contention that the facts set forth in the second, third and fourth requests are as matter of law decisive in his favor. The contention now put forward by him is this: The defendant must be taken to have bought the coal of the plaintiff as matter of law because (1) Exhibit I was as matter of law notice to him that [1] There is a short answer to the first the plaintiff claimed to have sold the coal ruling asked for and to the plaintiff's com- to him and because (2) he used it after replaint that the title to the motorcycle ought ceiving that notice. But that contention is to have been taken in his (the plaintiff's not set forth in these requests. There is no name) and not in Sawyer's name. The short reference to Exhibit I in any one of these reanswer is that on the assumption on which quests. The second and third requests are the plaintiff proceeded it was immaterial based on the legal effect of using the coal whether the title was put by the defendant after notice from the plaintiff that the coal in Sawyer's name or in the plaintiff's name. was his and not Sawyer's. And the fourth The plaintiff went on the assumption that is based on the effect of using the coal under Sawyer acted as his agent in selling the circumstances that ought to have led him coal and buying the motorcycle. If he did to suspect that it was the plaintiff's coal the title to the motorcycle was in the plain- and not Sawyer's. These facts might have tiff as between the plaintiff and Sawyer al-had a bearing upon the defendant's liability though the defendant put the title in Sawyer's name. Since Sawyer acted as the plaintiff's agent any title taken in his agent's name was his.

There are other objections to this request for a ruling which are fatal. But it is not necessary to consider them.

if the plaintiff had sued him in tort for conversion of the coal. But they were not decisive (if indeed they had any bearing as matter of law) upon the issue then on trial namely: Did the defendant buy the coal from the plaintiff and not from Sawyer?

We do not intimate that the contention now made by the plaintiff but not set forth in his request for rulings was correct.

A short answer to the second, third and fourth rulings asked for is that the money due for the coal had been paid by being ap- [3] The part of the charge to which the plied as partial payment on the motorcycle plaintiff took an exception is obscure. For in accordance with the terms of the bill for all that appears this part may have been the coal delivered by Sawyer to the defend-made plain by the rest of the charge. The ant if that is to be taken to be a bill for rest of the charge is not set forth in the bill the sale of the coal by the plaintiff to the The burden is on the exdefendant. cepting party to show error. Under these circumstances the plaintiff has not maintained that burden.

[2] It is apparent from the pleadings and the terms of the bill of exceptions, however, that the case was not tried on the issue of

of exceptions.

Exceptions overruled.

that statute. The case is reserved for the de

J. S. LANG ENGINEERING CO. v. COM- termination of this court upon the pleadMONWEALTH. ings, the agreed facts, and certain findings of fact.

(Supreme Judicial Court of Massachusetts.

Suffolk. Nov. 27, 1918.)

1. TAXATION 130-BANK DEPOSITS-TRUST

COMPANIES-STATUTES.

Where amounts of corporation's deposits in savings bank departments of trust companies exceeded limit allowed savings banks by Stat. 1908, c. 590, pt. 4, § 46, they were not subject to tax to trust companies, under Stat. 1908, c. 520, but would have been taxable under Stat. 1909, c. 490, pt. 1, if owned by resident of commonwealth.

2. BANKS AND BANKING

315(3)-DEPOSITS IN SAVINGS DEPARTMENTS OF TRUST COMPANIES CHARACTER.

Though amounts which may be deposited in savings departments of trust companies by single person are not limited by Stat. 1908, c. 590, pt. 4, 8 46, as are deposits in savings banks, such deposits are in effect deposits in savings banks conducted by such companies, having incidents of deposits in ordinary savings bank. 3. TAXATION 124-CORPORATE TAX LAWDEPOSITS IN SAVINGS DEPARTMENTS or TRUST COMPANIES "SECURITIES."

Deposits in savings departments of trust companies, being in effect deposits in sayings banks conducted by such companies, and deposits in savings banks being "securities" within Corporate Franchise Tax Law, pt. 3, § 43, de posits of corporation in savings departments of trust companies were taxable as "securities" within section 43.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Security.] 4. TAXATION 319(1) ABATEMENT —TAX DUE ON CORRECT ASSESSMENT.

If some person connected with office of tax commissioner stated to petitioner corporation year previous to that of tax sought to be abated that in view of its deposits in savings departments of trust companies its tax would be less than $100, such abatement did not affect the tax actually due on correct assessment. 5. TAXATION 470 - INCORRECT ASSESSMENT -CORRECTION IN FOLLOWING YEAR.

If, by reason of error or misapprehension, tax on deposits in savings departments of trust companies due in year before from corporation petitioning for abatement of corporate franchise tax was incorrectly assessed, error could be corrected in assessing tax for following year.

Case reserved from and report from preme Judicial Court, Suffolk County.

It appeared from the tax return filed by the petitioner with the tax commissioner on April 1, 1917, that it had on deposit in the savings bank departments of four Massachusetts trust companies sums of money each in excess of $2,000, and amounting all together to $43,218.41. The tax commissioner, in assessing the corporate franchise tax due from the petitioner, treated the sums so deposited as "securities which if owned by a natural person resident in this commonwealth would be liable to taxation." Accordingly in determining the maximum amount of the tax of the petitioner under section 43, he included the amount of such deposits as taxable securities, and did not include them among the deductions provided for by the statute as securities not liable to taxation, and a tax of $837.36 was assessed. The sole question is whether these deposits are "securities" within the meaning of section 43 of the statute. If they are securities within the meaning of the statute, the tax was legally assessed; otherwise the petitioner is entitled to a partial abatement.

Under St. 1908, c. 520, trust companies were authorized to establish savings bank departments; and section 1 defines the business to be carried on in such departments.1 Each of the deposits in the savings bank department of the several trust companies was represented by a book in substantially the same form as in ordinary use by savings banks. Each book contained abstracts from the by-laws or rules and regulations of the savings bank department of the respective trust companies, substantially in the following form:

posit is made, or money withdrawn. Should the depositor desire any other person to withdraw money, this book must be sent to the bank together with an order, on a separate paper, and Su-in the form prescribed in the back of the book.

"This book must be presented whenever a de

"Money may be usually withdrawn at the pleasure of the depositor but the trust company reserves the right to require whenever advisable a ninety day notice in writing of such withdrawals.

be valid unless recorded on the books of the "No assignment or transfer of this book will

1 "Every trust company soliciting or receiving deposits (a) which may be withdrawn only on presentation of the pass-book or other similar form of receipt which permits successive deposits or with

drawals to be entered thereon; or (b) which at the option of the trust company may be withdrawn only at the expiration of a stated period after notice of intention to withdraw has been given; or (c) in

any other way which might lead the public to believe that such deposits are received or invested under the same conditions or in the same manner as deposits in savings banks; shall have a savings department in which all business relating to such deposits shall be transacted.”

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