Samuel Jenifer v. Commissioners of Hamilton county. declaration. Judge Sewall said: "This judgment was rendered upon an award and report of referees deriving their authority from a rule of court, entered of record, and made a part of the proceedings by virtue of the agreement and consent of the parties. Such an agreement operates as a waiver of all exceptions to the forms of process; or it may be considered as a release of errors, or as an estoppel against any assignment of errors in the proceedings anterior to the rule, mutually consented to by the parties, each with the other." The same doctrine is affirmed in 4 Pick. 455, Coffin v. Cottle, when the court held: "Under the rule of reference, the particular form of the counts, whether good or not at law, or whether rightly joined, is wholly immaterial." And so in Orlady v. McNanara, 9 Watts, 192. We can not then, I think, refuse to confirm the award on this ground. Secondly. It is contended that no legal liability against the county commissioners existed, when the action was brought, or when the award was made, and neither can, therefore, be sustained. This proposition directly involves the power of the arbitrators under the submission; how far did it extend, and upon what questions were they authorized to pass? It must be admitted that the determinations of arbitrators are regarded with great favor by the courts; every intendment that can properly arise, will be made to uphold them. When parties have selected their own judges, and voluntarily invested them with plenary power to decide any controversy, it is but just to suppose the capacity and integrity of the tribunal, thus created, was satisfactory to the parties, that they were willing to confide to their judgment what would otherwise have devolved upon the courts to determine. The supervision, therefore, of the proceedings connected with the award, as well as the award itself, ought not, and it is believed, is not in modern times ever claimed, unless the misconduct of the arbitrators demands the intervention of the courts; error in deciding what the law is, or Samuel Jenifer v. Commissioners of Hamilton county. how it shall be applied, does not furnish the ground of exception to the judgment of the arbitrators; they may have departed far from established principles, given a new construction to private right, or allowed indemnity where none would have been given by the act of a judicial tribunal. Still the answer is, to those who seek to impugn the award, you have been heard before your own tribunal, and unless you can challenge the conduct of your judges, as fraudulent or unauthorized by the submission, you are precluded. Thus in 4 N. H. 358, Greenough v. Rolfe, the court say, "If the referees take upon themselves the whole responsibility, and decide a question of law otherwise than the court would have done, this is no good reason for setting aside the report. So if they choose to disregard the law, and decide according to what they think to be the equity and good conscience of the case, the report is not for this cause to be rejected." In Walker v. Sanborn, 8 Greenleaf, 288, it was held, "If a party defendant having a good defense at law, agreed to submit the action to the determination of referees, in the usual form, he is considered, in the absence of all evidence to the contrary, as referring all questions, as well of law as of fact, to their judgment; and if, therefore, their decision be against him, it is no ground for the rejection of the award that it is against law;" for, say the court, "the defendant must be considered to have elected his tribunal for the very purpose of having the cause honestly and impartially decided on its merits, and according to those principles which that tribunal should consider reasonable and just." The same doctrine is found in Kleine v. Catara, 2 Gall. 61; it is also fully affirmed in Jones v. Boston Mill Cor., 6 Pick. 156; and in the late case of Hodgkinson v. Fernie, C. B. Rep. 3 J. Scott, 189. In 7 Ohio, 113, Ormsby's adm'rs v. Bakewell et al., it is said, "Persons have a right to refer their controversies to arbitration on such terms as they can agree upon. By a reference, such as is made in this case, the arbitrators are authorized by the parties, finally to settle their controversy, Samuel Jenifer v. Commissioners of Hamilton county. and they are necessarily authorized to determine on all the incidental questions, whether of law or fact, that may arise, in the investigation of the case. Whenever a court is given jurisdiction of a cause, with it is impliedly given the right to do all things, and to decide all questions, necessary to the right and just determination of that cause. The proceedings of such judges ought to be favorably viewed by the courts, and should not be disturbed unless it is made. clearly to appear that they have not regarded the principles of natural justice, in hearing the parties, or giving them an opportunity of being heard; or that they were partial, or corrupt, or were imposed on by fraud, or that they have made a plain mistake in carrying out the principles they had settled." I conclude, then, that whether the plaintiff had a right of action or not, the question has been determined by the arbitrators, and their opinion is final. It is said, however, the defendants were not authorized by the statute defining their duties, to impose such a liability upon the county as is found to exist by the award; and if their act could not create the obligation, the judgment of the arbitrators was equally restricted. This proposition, it seems to me, assumes that the very question already discussed, has not been legally resolved. If the ground upon which I have rested it, is not tenable, then it follows clearly, the plaintiff has not made out a case for our inteference; but if it is true, that the finding of the arbitrators forecloses any inquiry as to the law they have affirmed, then the nature of the right determined, does not affect the argument. If the award is final for one purpose, it is for all purposes; and whether the cause of action did not exist, or was really valid in law, to my apprehension, was an immaterial inquiry. A claim is asserted against a public incorporation; it is denied by those who take charge of its interests; the litigation directly involves the power of the commissioners to bind the body they represent, as well as the right of a third party to Samuel Jenifer v. Commissioners of Hamilton county. enforce the alleged obligation; the question is one, it may be said, that admits of no legal doubt in the mind of the judge, and as to which the law is settled beyond cavil; still, if the arbitrators, who are constituted the court of the parties in controversy, with the power to decide the law and the fact, it must follow that the exposition of the law, and their opinion of the facts, should be regarded as extending to the whole subject in dispute, not merely the acts done by the commissioners, but their power to do them. There is a very significant sentence in the order of submission, between these parties; it is this: "After the purpose of the reference is stated, it is said, that when the judgment of the arbitrators is reported to the court, no exception shall be taken to it." This release of error must have been intended to mean something more than a formal surrender of technical exceptions to any supposed want of conformity between the award and the submission; and we can not give it any other interpretation than that which concludes the parties, for every practical purpose, connected with the subject in dispute. If, then, the commissioners had the power to consent to arbitrate, any and every question which may arise in the course of their official duties, and that they have, I entertain no doubt. Is the present case an exception to the general rule? If it is not, then the submission was authorized, and the subsequent award must bind all concerned. Why it is not, I am at a loss to understand. On no just application of the principle, do I perceive, that any distinction between the cases can be sustained. I do not feel any difficulty in placing the county commissioners in the same position as any other public agents. While they act for the public, they may just as properly impose a duty or a burden on that public, to be performed or bourne, as the servants of any other corporate body. As they can contract debts for their principal, and bind her to their payment, it would seem to follow that the consequence of their acts, omitted or committed, in the discharge of their John Lowden v. The City of Cincinnati. functions, should be visited upon the body they represent. I know that it has been determined by our supreme court, in a late case, that the liability of the county will be greatly restricted, but of the reason of the judgment and the extent to which it goes, I am not advised. The question must be discussed, and will be, until it is thoroughly understood, and the true relation of the county to her citizens be fully vindicated. It is further said, it will be impossible to render such a judgment upon the award, as will give the plaintiff the benefit of the funds in the county treasury. We may decree whatever we are satisfied is just to be done, if the validity of the award is settled. If we find there is a fund which should be charged with the payment of this award, we can so order; or we may lay the foundation by our action, for the writ of mandamus, which may well issue, if it is judicially determined that the county ought to discharge the award. I conclude, then, that the plaintiff has a right to the decree of this court to enforce his award. JOHN LOWDEN v. THE CITY OF CINCINNATI. (No. 7,931.) 1. An ordinance to grade or pave a public street and providing that " a special tax be assessed and collected from the owners of real estate abutting, etc., according to the ordinances in such case made and provided," is sufficient to authorize an assessment against the real estate, where the general ordinances in force at the time require a demand for the assessment first to be made on the owners and secondly, in default of payment, a seizure and sale of the real estate. 2. If the city fails to give the contractor an assessment, she is liable to an action; but reasonable time is allowed for the issue of an assessment after the completion of the public work. |