Braman v. Elyria. We have in this case to consider a resolution, the resolution of necessity; an ordinance, the improvement and assessment ordinance, and an order, the order awarding the contract. All of these in one sense concern the expenditure of money, but certainly the resolution is not for it, because the whole proceeding may stop upon the hearing of objections to the improvement, and the expenditure of money will not necessarily be made because of the adoption of the resolution. The same may be said of the ordinance-bids may be advertised for, but none received; or all bids received may be rejected; the ordinance may be repealed before any step is taken under it actually necessitating the expenditure of money. The passage of the ordinance in no wise binds the city to make the improvement, and after its passage, who is to see that the improvement is made? What interested party is there, who can compel the city to go ahead, advertise for bids and accept them? Sometimes when bids for such improvements come in they are so high and the city's financial condition so poor, or the times so bad generally, that the whole matter is then dropped. Who can interfere with the judgment of the city authorities then exercised? The mere passage of the ordinance creates no liability against the city, and therefore the ordinance cannot be said to be one for the expenditure of money. Without further steps being taken, no city official would, upon the passage of the ordinance be authorized to expend money. The same may be said of the order awarding the contract. That order is simply an expression of opinion on the part of the council that a certain bid is the best and should be accepted; that a contract should thereafter be made with such bidder. It authorizes the making of a contract, but it is not a contract, agreement or obligation binding upon the city, until the contract authorized is executed, in behalf of the city, by the proper authorities. Suppose there were no Burns law, would the contractor claim that he could go ahead with the work immediately, without any further contract with the city, upon the mere awarding of the contract to him? We think not. Such action on the part of the council might be reconsidered and its award revoked before any contract was signed. Municipal corporations cannot enter into agreements with the same lack of formalities that characterizes the acceptance of propositions by individuals, and we are inclined to think that the right of all legislative bodies to reconsider their action before persons dealing with them have acted upon their action, should be recognized. If we are right in our construction of the Burns law,, in the case of municipal improvements to be let by contract, the clerk's certificate Lorain County. of money in the treasury to the benefit of the proper fund, unappropriated for any other purpose is not required until just before the contract is signed. While we reach this conclusion with doubt, from a mere interpretation of the words of the law, such doubt is removed when we consider the necessities of the case and the impracticability of making such improvements, should any other interpretation be given to the law. The intention of the law is to prevent the entering into of improvident contracts;-improvident, because the payment of obligations is not foreseen when the obligations are incurred. Such intention is strictly complied with if the certificate is made before the final step is taken which makes a contract absolutely binding upon the municipality and absolutely requiring the expenditure of money. Such intention does not contemplate that all preliminary steps leading up to the making of such binding contract shall be void, unless the certificate is made before all such preliminary steps are taken; and at what stage in the proceedings are we to draw the line, except at the entering into the contract? To take any other view of the case would fill our municipal treasuries with idle money for improvements finally abandoned and never made; would prevent obtaining bids upon which to determine how much money must be so certified; would delay municipal improvements, contrary to the spirit of the law; would involve loss of interest in the case of delayed improvements, would, in fact, as before stated, extend the scope of the law far beyond its plain and reasonable intent. The judgment of the court of common pleas is affirmed. ELECTROLYSIS-STREET RAILWAYS-MUNICIPAL CORPO RATIONS, [Montgomery (2nd) Circuit Court, December 22, 1904.] Sullivan, Wilson and Dustin, JJ. *DAYTON V. CITY RAILWAY CO. 1. STREET RAILWAY COMPANY ONLY LIABLE FOR ACTUAL NEGLIGENCE IN OPERATING TROLLEY SYSTEM. A street railway company which is operating with a single trolley system, under a franchise granted by the municipality, is only liable for damages resulting from its actual negligence in the use of such system. The municipality will be held, in granting such franchise, to have contemplated and condoned by anticipation any mischief arising from the reasonable use of such system. *Affirming, on appeal, Dayton v. Railway, 12 Dec. 258. Dayton v. Railway. 2. EQUITY WILL NOT COMPEL ELECTRIC RAILWAY COMPANY TO CHANGE ITS SYSTEM, WHEN. Where there is a sharp conflict in the evidence, including the testimony of expert witnesses, as to whether or not the present system under which an electric street railway company is operating is a proper system, a case is not presented which will authorize a court of equity in requiring the company to change to another system. 3. NEGLIGENCE OF OTHERS NO DEFENSE TO PARTY SUED, ETC. The fact that other electric street railway companies operating within a municipality by the same system are partly responsible for injury resulting to the city's water pipes from electrolysis, constitutes no defense to the company against whom the action is brought. 4. INJUNCTION TO RESTRAIN STREET RAILWAY COMPANY FROM ALLOWING ELECTRICITY TO COME IN CONTACT WITH CITY WATER PIPES. Injunction will lie, at the suit of a municipality, to restrain an electric street railway company from operating its system in such manner as to allow its electricity to escape into the ground and come in contact with and injure the waterpipes of the municipality. APPEAL from Montgomery common pleas court. E. P. Matthews, city solicitor, for plaintiff. SULLIVAN, J. This cause was at a former term heard upon the transcript of the testimony taken in the court below and depositions taken upon the appeal. Omitting the several averments of the petition admitted by the defendant, those controverted by the defendant, stated substantially, are as follows: That the railway company has not furnished a metallic circuit, for the return, to the power house of the electricity having been used to propel its cars, and hence the current is thus left to return as best it can. It escapes from the rails to the earth, and a division of the current takes plase, the water pipes of the city receiving a part. That the railway company so imperfectly and inefficiently connected the rails of its tracks, that the return current, in a number of places, leaves the rails, escapes into the earth and to the water pipes of the city, and thence back to the earth or rails. That at the points where the return current quits the water pipes, returning to the earth or to the rails, the pipes are decomposed, the metal of the pipe removed, and then is left simply the soft material of the chemical compound constituting the pipes. By this action the pipes in some instances have been perforated with holes, at other points split, and in some instances wholly ruined, and in every case weakened. 47 O. C. C. Vol. 26 Montgomery County. That the city has already been compelled to dig up and replace by new pipe, at a number of places, where the pipes have been destroyed or so weakened by the action of the return current as described, as to render them unsafe and inefficient to carry the water, and especially under the pressure necessary in case of conflagration. That the injury is still being done and will continue unless the railway company is required to adopt some method to prevent it, and hence is a constant menace to its own property and the lives and property of its citizens. That points where this damage is being done and the extent of it are not accurately known to the city, and cannot be known without digging up all of its pipes; hitherto notice of the injury being done has been brought to the city by leaks from the breaks, and hence not until the damage in such instances was completed. That the injury. continued, will still be greater, and that it is within the power of the railway company to adopt methods for the return of the electric current after use that will wholly prevent its continuance. That the city advised the railway company of the injuries done and of their continuance, and of the city's inability to do anything to prevent them, and demanded of the railway company that it adopt methods known to it to prevent them. But the railway company has taken no steps and still neglects, to adopt some method to prevent the injury being done; that the city is without an adequate remedy at law and therefore prays that a mandatory injunction may issue commanding the railroad company to adopt such methods as will wholly prevent the injuries to the water pipes of the city set forth in its petition. The railway company in its answer sets forth two defenses: First, it denies that the rails of its track are not perfectly connected or bonded, avers that it has adopted and keeps in use the best known systems as they are invented. As to whether the decomposition of the water pipes takes place by the action of its return current, as averred in the petition, it has no knowledge, and therefore denies that it does. It denies that it can adopt any system to prevent such action of its return current without the concurrence of the city; denies that it knowingly or purposely uses the water pipes of the city for such purposes, or that the city has ever proposed any plan to remedy the evil. The second defense sets forth that it purchased the Dayton street railroad and Fifth street railroad in 1893, being two systems of street railway theretofore operated in said city by horse power, setting forth the grants to the respective companies, to be found in the several ordinances as set forth in this defense, also the ordinances extending the grants to these respective railway companies to use trolley, storage Dayton v. Railway. electric, or cable motor power, for the purpose of propelling its cars; that these several ordinances constituted the contract between the defendant and the city; that the defendant, having acquired by purchase both lines of railway in pursuance of the grants to said respective companies, in the year 1894 equipped its lines so as to operate with electricity, and since that time has operated its railway by what is known as the single overhead trolley; that the equipment of its road with this system was done under the supervision of the proper officials of the city, and all was done with the knowledge, acquiescence and approval of the city authorities; that the essential part of this system was the use of the rails to carry the current back to the powerhouse, and the only system in use in the United States, and at the time was regarded as the only practical system for the operation of electrical railways. It was more economical and much simpler than any other known system, less dangerous to employes, indorsed by the Supereme Court of the state, and had the approval of scientific and practical men throughout the country; and in the city of Dayton the street railway known as the White Line had been in operation under the same system theretofore for the period of seven years. It is averred in this second defense, since the grants to the defendant and the equipment of its lines with the single trolley, the city has granted to other street railways companies the use of its streets to construct and operate street railways with the same system for the application of electricity as a motive power-nine in number-with power houses within the city, the lines of which railways cross and intersect with those of the defendant and each other. Its legal obligation to use reasonable care to prevent the electricity escaping from its rails to the water pipes of the city is admitted, but it avers it has exercised such care and diligence. It is also averred that it proposed a method of protection and to remedy the claimed mischief to the city officials, but this proposition was declined, and none was ever proposed or suggested by the city. That the petition of the city does not inform the defendant what system the court should compel the defendant to adopt. The defendant admits knowledge of the system of double trolley being in use in the cities of Cincinnati and New York, and the conduit system in the city of Washington, District of Columbia, but claims that the adoption of either system would not obviate the danger or protect the water pipes of the city, so long as the other street railways in the city mentioned operate with the single trolley. It claims that the conduit system is impracticable and that the double trolley would in |