Childs v. Perry. partition) made by the sheriff on executions, decree, or sale of real estate one per centum thereof." The general statute gave poundage only on all moneys actually made and paid to the sheriff on sales, while there is a provision, as will be observed, in the section for poundage on the amounts of all sales, regardless of the money made, or paid to the sheriff. Is this Sec. 1230b in conflict with Sec. 26, Art. 2 of the constitution of the state which provides that all laws of a general nature shall have a uniform operation throughout the state? In State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570], the Supreme Court say in the syllabus: "County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in its nature, and an act of the general assembly upon that subject is a law of a general nature which must operate uniformly throughout the state. Pearson v. Stephens, 56 Ohio St. 126, overruled." The question is discussed fully by Judge Davis in the opinion, and many former decisions referred to. This case came up from Pickaway county, an act had been passed fixing the salaries of the various officers in Pickaway county. Judge Davis in the opening paragraph of his opinion says, page 548: "These acts are undeniably special; and, to us at least, it seems almost as manifest that their subject-matter is of a general nature, and that neither of them contains the attributes of legitimate local legislation. They are special, because they are in terms restricted in their operation to Pickaway county. They are of a general nature, because the subject of legislation is a matter of general concern to the state, and to every county in the state and to the inhabitants thereof. Kelley v. State, 6 Ohio St. 272. They are not legitimate local bills, because the subject-matter is not peculiar to the localities named and it does not appear that there was any necessity for such legislation either in time, place or circumstance. Having said this, we have said, in substance, all that needs to be said to dispose of this case; but in deference to the authority which is urged in support of the contention of the defendant in error, we will be more explicit." The statute in question does not relate to a salary, but to the fees of the sheriff, a county officer. The same principle, however, applies as would apply were it a salary instead of fees, which are paid by the litigants, while a salary is paid by the county. It is clear that this law is of 35 O. C. C. Vol. 26 Erie County. a general nature, and therefore should operate uniformly throughout the state. As this law is framed it could not apply to several counties in the state, there being some ten or twelve of less than 22,500 population at the last federal census; among them, Ottawa, our neighboring county on the west. The statute does not provide that it shall apply to counties which may hereafter arrive at a population of 22,500, but is restricted in its application absolutely to those which had such a population at the last federal census preceding. This law does not have a uniform application throughout the state. It is difficult to see how it can be claimed that a law which does not apply to ten or a dozen of the eighty-eight counties in the state has a uniform application throughout the state. The term "uniform application" is defined by Judge Burket in State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619], as "universal.” Certainly this statute does not have a universal operation throughout the state. Under the recent decisions of the Supreme Court, this statute is clearly unconstitutional; it is in violation of Sec. 26, Art. 2 of the constitution of the state. It is difficult to conceive of any reason why such a law should have been passed. It is unreasonable and unjust as well as unconstitutional. There is no reason why the fees of the sheriff, for the same services, should not be the same in every county of the state. Why should the sheriff of Erie county be entitled to $80 costs in a foreclosure proceeding because the land happens to lie in this county, while in Ottawa, an adjoining county, the sheriff would be entitled to nothing for the same service? The judgment therefore is reversed, and the case remanded to the court of common pleas, with directions to retax costs by striking out the general item of poundage to the sheriff and taxing the costs according to the general statute, Sec. 1230 Rev. Stat. Parker and Haynes, JJ., concur. Railway v. Tea Co. HIGHWAYS-RAILROADS-NEGLIGENCE. [Hamilton (1st) Circuit Court, May 11, 1904.] Swing, J., and Dustin, J., of Second Circuit. No other judge sitting. NEGLIGENCE OF RAILROAD COMPANY AT CROSSING WILL NOT EXCUSE TRAVELER'S Negligence of a railroad company in running a train of cars at a high. rate of speed, and in failing to ring a bell when approaching and passing over a public crossing, will not warrant a recovery for damages resulting from a collision caused by plaintiff's voluntary negligence in failing to exercise his senses of sight and hearing before attempting to pass over the crossing. Balt. & O. Ry. v. McClellan, 69 Ohio St. 142, followed. ERROR to Hamilton common pleas court. Hollister & Hollister and W. A. De Camp, for plaintiff in error. Moulinier, Bettman & Hunt, Maxwell & Ramsey and John R. Schindel, for defendants in error. SWING, J. This was an action in the court of common pleas for damages for the killing of two horses owned by the tea company, and also injury to property of the tea company, which resulted from a collision between the horse and wagon of the tea company and the engine of the railway company at a point on the P. C. C. & St. L. Railway Company, at Hazen street in the city of Cincinnati, Ohio. A trial was had in said court, which resulted in a verdict and judgment in favor of the tea company. To this judgment error is presented to this court. There is very little conflict as to the material evidence in the case. S. B. White was driving a delivery wagon belonging to the tea company, on December 10, 1901, between 9 and 10 o'clock A. M., and started to cross the said railway company's tracks, going by way of Hazen street, from Eastern avenue to Gladstone avenue in the eastern part of Cincinnati. The approach to the railway company's tracks on Hazen street was very steep, having a grade of from fifteen to twenty per cent. The street was not a main thoroughfare, being but little used on account of its steep, grade. White testifies that he started from Eastern avenue and drove up Hazen street to a point where the front feet of his horses were in the middle of the north track of the railroad, at which point he stopped and at which point he first saw the engine approaching on said north track, about two hundred feet away. He did not stop on his way up Hazen street, but kept constantly listening and looking for approaching trains. The evidence is conclusive that White could have seen the approach Hamilton County. ing train 365 feet away at a point eighteen feet south of the south rail of the north track if he had looked, and it is equally certain that he did not look, for he says that he did not see the approaching train until the front feet of his horses were in the center of the north track, and at which time the train was about 200 feet away. If the front feet of the horses were in the center of the north track, they were, according to measurements, twenty-two and one-half feet from the point where the train could first be seen, and White could not have been more than ten feet back from the front feet of the horses; but say he was twelve and one-half feet back; he was still ten feet nearer the railroad track than the point from which he could have seen the approaching train before he even attempts to look for it. He says he looked and listened, but his own evidence and the undisputed evidence clearly shows that he did not. There is evidence offered by the tea company to the effect that no bell was rung by the railway company. There was also evidence offered by the tea company that the train was running at a very high rate of speed, and these are the acts of negligence which the tea company claims are grounds for recovery. The jury had a right, we suppose, to believe this evidence, but granted that no bell was rung, certainly the noise of the train was present, and could have been heard by White long before he became aware that the train was approaching. It does not appear that any other noises were present to prevent his hearing the approaching train, and while he says that he listened, there is no way to escape the conclusion that he did not. So it seems certain that he neither looked nor listened at a point where he could have seen and heard the approaching train so as to have avoided the collision. White was absolute master of his movements; there was no impending danger confronting him, and his horses were entirely under his control, and he voluntarily placed himself in the position where the collision occurred; in doing this he was clearly negligent. It matters not whether the railway company did not ring a bell or was running at a higher rate of speed than twenty miles an hour, which is the usual rate of speed of trains at that point, it is clear that the negligence of the tea company was the cause of the accident, and not the negligence of the railway company. The evidence does not support the verdict and judgment. The case, we think, is governed by the decision of our Supreme Court. Baltimore & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. . Rep. 816]. Judgment reversed and cause remanded for further trial. [Warren (1st) Circuit Court, July, 1904.] Giffen, Jelke and Swing, JJ. MALINDA PULLEN V. JOHN E. SMITH ET AL. 1. RESOLUTION TO MAINTAIN CARNEGIE LIBRARY WITHIN INHIBITION OF BURNS LAW. A resolution of a municipal council to maintain a free public library at a cost of not less than $1,000 a year, and to procure a suitable site therefor, which is responsive to the proposition of a private party to donate $10,000 to erect the library building, is a resolution involving the expenditure of public money, and is within the inhibition of Sec. 1536-205 Rev. Stat. (Sec. 45 Mun. Code) unless the certificate of the proper municipal officer that the money required therefor is in the city treasury to the credit of the proper fund is filed and immediately recorded. 2. TAXPAYER MAY ENJOIN UNLAWFUL CONTRACT UNDER SEC. 1536-668 Rev. Stat., WHEN. An action to enjoin the unlawful expenditure of public funds must be brought by the duly appointed legal officer of the municipality, as provided by Sec. 1777 (1536-667, 4 ed.) Rev. Stat., unless such officer has, upon due request of a taxpayer of the municipality, failed to do so, in which event such taxpayer may, under favor of Sec. 1778 (1536-668, 4 ed.) Rev. Stat. maintain the action on behalf of the corporation. Runyan & Stanley, for plaintiff. J. E. Smith, J. Morrow and W. C. Maple, contra. JELKE, J. We find [in the cases, Malinda Pullen v. John E. Smith and William Evans v. John E. Smith] that the proposed use of the lot involved herein as the site for a public library is within the public and municipal use intended by the original donors of said lot: A more serious question, however, is presented in the contention made by Mr. Evans, as a taxpayer, that the resolution passed by the Lebanon council, on July 7, 1903, contravenes the Burns law. Section 1536-205 Rev. Stat., 96 O. L. 37, Sec. 45. The issue thus arises: Mr. Carnegie made a proposition to the village of Lebanon in the following letter: "2 East 91st St., New York, February 20, 1903. "W. Chester Maple, Esq., Lebanon, Ohio. "Dear Sir: "Responding to your communication in behalf of Lebanon. If the city agree, by resolution of council, to maintain a free public library at a cost of not less than one thousand dollars a year and provide a suitable site for the building, Mr. Carnegie will be pleased to furnish ten thousand dollars to erect a free public library building for Lebanon. "Respectfully yours, "JAS. BARTRAM, Private Secretary." |