Walter v. Bowling Green.

By the Court: "I think you may answer that question if you know. Do you know about how many quarts were transported over Wooster street?"

(Objected to by defendant; overruled and exception.)

A. "Well, from one source, I ascertained it was 120 quarts; from another source I ascertained it was 115 quarts.'

(Counsel for defendant asked that the answers be stricken out as hearsay evidence; motion overruled and exeception.)

On cross-examination the witness is asked:

Q. "The information you received was not from Mr. Walters?" A. "Not from Mr. Walters, no."

(Defendant renewed his motion to strike answers from the record as hearsay evidence.)

By the Court: "He hasn't said he got it as hearsay evidence." (Motion overruled and exception.)

We are only required to apply to this, certain elementary law upon the subject of hearsay evidence. There is not much difference in the statements of the writers upon the subject in the different text books. I will read from Bradner, Evidence (2 ed.) 2:

"Hearsay is the evidence of those who relate, not what they know themselves, but what they have heard from others. Such mere recitals or assertions cannot be received in evidence for many reasons, but principally for the following: First, that the party making such declarations is not on oath; and secondly, because the party against whom, if it operates, has no opportunity of cross-examination."

Reading from pages 412 and 413 it is said:

"It is a general rule that hearsay evidence is not admissible to establish any specific fact which, in its nature, is capable of being proved by witnesses who speak from their own knowledge; or, in other words that evidence whether written or spoken, which does not derive its credibility solely from the credit due to the witness himself, but rests in part upon the veracity and competency of some other person from whom the witness received the information, is not admissible to establish a substantive fact. And this is the rule although the matter sought to be proved was, at the time it was made, against the interest of the person making it, and although no other evidence can possibly be obtained; as, where it is the declaration of a person who was the only eyewitness and who keeps out of the way to avoid being subpœnæd. The reason of the rule is, that such evidence requires credit to be given to the statement of a person who is not under the obligation of an oath or any of the ordinary tests for ascertaining the truth of the statement.

Wood County.

The above rule is subject to many exceptions which are as well established as the rule itself. These exceptions are mainly under the following heads: 1. Admissions by parties in interest. 2. Pedigree. 3. Boundaries. 4. Dying declarations. 5. Relating to matters of general public concern. 6. Declarations or entries made in the course of office or business. 7. Ancient possession. 8. Declarations against interest by person deceased. 9. Testimony given by a witness on a former trial, since deceased."

"The term 'hearsay' is used to denote that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person. Thus, testimony of a witness as to what he has been told, but who knows nothing personally, is mere hearsay; as, the testimony of a physician, that other physicians concurred with him in his opinion, is hearsay. So testimony of plaintiff, in an action for breach of promise, that she heard that defendant was very rich.'

Of course there are a multitude of illustrations. It seems to us that this evidence comes fairly and clearly within the rule prohibiting hearsay evidence. Mr. Reed does not say simply, that it was information he got at the well, but in answer to the question of the mayor as to his means of knowing, he says "I talked to the owners of the well." He does not say that Mr. Walters said anything on the subject. He does not say that Mr. Walters was present and heard what was said. His statement was received as evidence upon a very material matter in the prosecution-the question whether in fact the substance used was nitroglycerine. Of course the quantity was not a matter of a very great deal of importance, but it had not been established that there was any nitroglycerine in the wagon; it had only been indicated circumstantially. But, assuming that there was sufficient evidence on the point without this, where incompetent evidence upon a material point is received and considered, we cannot undertake to support a judgment upon the theory that there may have been sufficient evidence without it, or that the incompetent evidence may have been given little weight. The mayor insisted that this evidence be produced, and upon his insistence it wa produced, and in our judgment this was error, requiring reversal of this judgment, and therefore the judgment will be reversed, and the cause remanded to the mayor's court to be proceeded with according to law.

Hull and Haynes, JJ., concur.

Ayers v. Toledo.

ASSESSMENTS-MUNICIPAL CORPORATIONS.

[Lucas (6th) Circuit Court, October 3, 1904.]

Parker, Hull and Haynes, JJ.

AMANDA R. AYERS V. TOLEDO (CITY) ET AL.

1. FAILURE OF CITY COUNCIL TO FIX VALUATION OF PROPERTY IN ADVANCE OF MAKING ASSESSMENT NOT FATAL UNDER SEC. 2271 REV. STAT. (REPEALED 96 O. L. 96), ETC.

The failure of the city council and assessing committee to fix in advance the valuation of property to be assessed for a sewer improvement, or the failure of the council to make a record of such valuation in case it is reported by such committee, are not such vital irregularities under Sec. 2271 Rev. Stat. (repealed 96 O. L. 96) as will invalidate the assessment, if a just and equitable assessment was made, and the amount thereof neither exceeds the benefits resulting to the property, nor the limitation of 25 per cent of the true market value of the property.

2. NO PRESUMPTION THAT ASSESSMENT INEQUITABLE FROM FAILURE TO RECORD VALUATION OF PROPERTY ASSESSED.

The presumption that an assessment is inequitable does not arise from the mere failure of the municipal council to make a record of the valuation of the property charged therewith.

3. REPORT OF ASSESSING COMMITTEE NOT ABSOLUTELY BINDING UPON PROPERTY OWNERS.

The report of the assessing committee appointed by council to determine and report an estimated assessment of the cost on the property to be assessed for a sewer improvement, is not conclusive as to the owners of the property. But an assessment based upon such report will not be set aside in the absence of proof that injustice or inequity has been done.

4. ALLEGATION THAT ASSESSMENT EXCEED 25 PER CENT OF PROPERTY'S TAX VALUATION, IMMATERIAL, WHEN.

Where the statutory limitation of an assessment against property is fixed at 25 per cent of the value of the property, which valuation shall not exceed a fair market value of such property after the improvement is made, an allegation of defendant, in an action to collect the assessment, that the assessment against her property exceeded 25 per cent of its general taxable value, is immaterial, and should be stricken out.

ERROR to Lucas common pleas court.

B. A. Hayes, for plaintiff in error.

Smith & Baker and U. G. Denman, for defendant in error.

PARKER, J.

The action in the court below was by the defendant in error against the plaintiff in error and others to recover certain sewer assessments. The plaintiff in error filed her separate answer, in which she avers, amongst other things, that the council of the city of Toledo never deter

Lucas County.

mined the value of said premises or of any part thereof; that is to say, of her premises upon which the assessment of which she complains was levied. And she claims that this was an irregularity in the proceedings which was vital, fundamental, and fatal, rendering the assessment null and void.

The statute bearing upon the question, and which plaintiff in error says was not observed in this respect, is Sec. 2271 Rev. Stat., as passed April 21, 1896, 92 O. L. 271 (repealed 96 O. L. 96). That statute contains this provision:

"In cities of the third grade, first class, the tax or assessment specially levied or assessed upon any lot or land for any improvement, shall not, except as provided in Sec. 2272 Rev. Stat. (repealed 96 O. L. 96), exceed 25 per centum of the value of such lot or land, as determined by the council in advance of the assessment or at the time of making the same, which valuation shall not exceed a fair market value of such lot or lands after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue."

Section 2272 Rev. Stat. (repealed 96 O. L. 96) referred to applies to cases where a petition for the improvement is filed, and there was no petition for the improvement in this case. Therefore we are brought face to face with the question of the effect of the omission to make the valuation, or the effect of a failure to make a record of a valuation, if such valuation was made.

In the case of Blair v. Cary, 24 O. C. C. 560, a similar question seemed to have been involved, and was debated. We held that we were not required to pass upon it, and did not pass upon it. because in that case there was a petition, but we said this, page 570:

"It is said, in the third place, that the assessment was invalid because the value of the property was never fixed by the council, so that no 25 per cent limit could be observed, reference being had to Sec. 2270 Rev. Stat. (repealed 96 O. L. 96), which requires that an assessment shall not exceed 25 per cent of the value of the property to be assessed. It does not appear to us that any valuation of the property was required in this case. It was held in the case of Strauss v. Cincinnati, 10 Dec. Re. 783 (23 Bull. 359), by the superior court of that city, that a failure to fix a valuation did not render an assessment invalid in a case where it was required; and that holding was confirmed by the superior court at the general term, the report of the affirmance appearing in 24 Bull. 422; and if a valuation were required here, we would be inclined to the views expressed by the court in that case.

Ayers v. Toledo.

We gave the question pretty full consideration in that case before we determined that it was not in fact involved, and that it was not necessary for us to pass upon it; and when we said that we felt inclined to the views expressed by the Cincinnati court upon that question, we said it after a full consideration of the matter, and we are not now inclined to adopt different views upon the subject. We think those views are sound and just.

I should perhaps go a little further with a statement of the facts. This issue as to nonvaluation presented by the answer, the city undertook to meet by its reply, in which it says that it denies that the council of the city of Toledo never determined the value of said premises or any part thereof; further, that before any assessment was made against the property in the petition set out, the council of the city of Toledo, by ordinance, appointed three disinterested freeholders of the corporation of Toledo, to report to the council an estimated assessment of the cost on the lots or lands to be charged therewith, in proportion, as nearly as possible, to the benefits which might result from the improvement to the several lots or parcels of land so assessed; and that said freeholders determined the fair market value of said property of defendant, Amanda R. Ayers, and laid its assessment in proportion to benefits upon said property, after considering its fair market value. That thereafter said report of the said freeholders containing the assessment made and found, after due investigation and determination as to the value of said property, was regularly presented to the council of the city of Toledo; and that thereupon the council of the city of Toledo, accepting the determination of said freeholders finding the assessment against said property in proportion to the benefits conferred upon the property, after a full consideration of the fair market value of said property, levied the assessment in plaintiff's petition referred to, but neither did said freeholders above referred to, or said council, set out on their records their determination as to what was the fair market value of said lots and lands respectively. When the case came to be tried upon these issues, it was submitted upon an agreed statement of facts, and there is some question whether the agreed statement of facts fully sustains these averments of the reply as to the valuation having been made by the council. The agreed statement of facts sets forth that the committee (giving their names) selected by the council, proceeded as follows:

1. They got the total cost of the improvement from the city civil engineer.

49 O. C. C. Vol. 26