Railroad Co. v. Commissioners.

order as in its discretion may be deemed necessary to repair the injury, or remove the obstruction complained of; and provided, further, that the statutes of limitation shall not run or be deemed to have run in favor of any person or corporation so obstructing or continuing an obstruction in, or causing injury to, or having done the same, respecting any such road or public highway."

J. T. Brooks, for plaintiff in error.

Wilson, Jackson & Wilson, and Jones & Murray, for defendants in error.

OKEY, J. The court properly instructed the jury that there could be no recovery on the issues as made, if the railroad company occupied the highway under an agreement with the commissioners. 54 Ohio L. 133. The jury must have found that there was no such agreement. We are not prepared to say that the court below erred in overruling a motion for a new trial, based on the ground that the finding was against the evidence. The rule on the subject is correctly stated in McGatrick v. Wason, 4 Ohio St. 566, 575. Nor does the fact that some of the commissioners saw the obstructions placed in the highway, but made no objection, afford any ground for saying that the plaintiffs were estopped.

The seventh section of the act of 1853, repealed and reenacted with changes (65 Ohio L. 35; 74 Ohio L. 134), seems not to provide for such a case. There is manifestly an error in the seventeenth section of the act of 1853, as originally enacted. Whether it occurred in the enrollment, I know not. We need not undertake the task of inter

preting the enactment. This action is against a corporation for unlawfully placing an obstruction in a county road, and the rights of the parties must be determined under the seventeenth section of the original act, as amended in 1873.

The legislature, it has been said, can not create a liability for acts as to which there was no liability when they were committed. Const., art. 2, § 28; Little Miami R. R.

Railroad Co. v. Commissioners.

Co. v. Comm'rs Greene County, 31 Ohio St. 338; and see cases collected in 70 Ohio L., Appendix, 69. But "a party has no vested right in a defense based upon an informality, not affecting his substantial rights." Cooley's Con. Lim. (4 ed.) 461. At least, it is perfectly clear that if a liability exists, the form of the remedy may be changed, or the existing provisions supplemented by other legislative enactments. Such an obstruction as that created in this case is, by the act of 1857 (54 Ohio L. 130), re-enacted in 1877 (74 Ohio L. 240), declared to be a nuisance, and the person erecting or maintaining it is liable to indictment, chargeable with the expense of removing it, and moreover liable to the suit of any person injured by such nuisance in his health, comfort, property, or the enjoyment of his estate. And see the act of 1868, 65 Ohio L. 21, § 29; Ib., § 32.

It is clear, therefore, that for this obstruction there was, at the time it was created, a remedy provided by law; and we think the general assembly might well provide, as it did by the amendment of 1873, this new and additional remedy, and that the amended act applied to obstructions already created. Nor can the statute of limitations apply to such a case as this, for the reasons stated in the opinion ir Little Miami R. R. Co. v. Comm'rs of Greene Co.

Considering further the construction which should be placed on this act, we hold that, as applied to the facts disclosed in this record, the measure of damages is the cost of removing the obstruction and restoring the highway to its former condition. What the rule is in those exceptional cases, where such restoration would be almost, if not altogether, impossible, we need not determine. But it is clear in this case that evidence as to the value of the easement was improperly received; the charge to the jury was given on an erroneous basis as to the measure of damages; and the petition was not framed in strict accordance with a proper interpretation of the statute, though we do not hold that no cause of action is stated therein.

The obstruction was placed in the highway in 1866 and 1867. In November, 1868, the corporate limits of the city

Railroad Co. v. Commissioners.

of Youngstown were extended over a considerable portion of the road so obstructed, and that part of the road became a street in the city. The court charged the jury that, as to this part of the highway, the plaintiffs might recover for damages sustained from the time the obstruction was placed in the road until such annexation was made, and evidence was received, against the defendant's objection, to prove such damages. In this the court erred. True, it was held in Wells v. McLaughlin, Butman v. Fowler, 17 Ohio, 99, 101, that the county commissioners might lay out, within or through a municipal corporation, a public highway. We do not decide that that may not still be done. But the municipal code of 1869 (66 Ohio L. 222, § 439), re-enacted in 1878 (75 Ohio L. 388), provided that "the council shall have the care, supervision, and control of all public highways, bridges, streets, avenues, alleys, sidewalks, and public grounds within the corporation, and shall cause the same to be kept open and in repair and free from nuisance." And see 66 Ohio L. 149, §§ 8, 199. Under the act of 1873, the damages recovered must be appropriated by the commissioners in repairing the road or removing the obstruction; but as control of highways in the corporation is confided to the corporate authorities, the commissioner could not apply such moneys within the corporate limits. Hence, if an action for damages, sustained by reason of such obstruction within the corporate limits of Youngstown, can be maintained, the action must be prosecuted by the city, and the recovery of the plaintiffs in this case must be confined to injury to the road outside of the city limits.

By the order of May 31, 1873, the cause is to stand as though commenced on that day. The order appears to have been made by consent of parties, and no attempt has been made to set it aside or impeach it. Full effect must be given to it, and we think such effect is given when we hold that by force of it this action must be regarded as one prosecuted under the act of March 7, 1873.

Other questions have been discussed, but we do not think it is important to make any report of them.

Judgment reversed, and cause remanded for a new trial.

The State v. Bonnell.

THE STATE OF OHIO, EX REL. THE ATTORNEY-GENERAL v. BONNELL.

Where the stockholders of a corporation were notified that the annual meeting for the election of directors would be held at a certain hour of the day fixed by the charter, and the corporation was restrained from holding an election on that day, in consequence of which no meeting was held until several hours after the time fixed in the notice, when a small number of the stockholders, without the knowledge of the others, met, organized, and adjourned until the next day, at which time an election was held by a minority of the stockholders, without notice to others, who were in the vicinity for the purposes of the meeting, and might have been readily notified: Held, That such election was unfair, and must be held to be invalid, whether the restraining order did or did not bind the stockholders.

QUO WARRANTO. On February 3, 1879, Hon. Isaiah Pillars, attorney-general, filed in this court a petition in the nature of a quo warranto, against Henry O. Bonnell and others, asking that each of them be required to answer by what warrant he claims to exercise the office of director of Brown, Bonnell & Co., a corporation. An answer and reply were filed, and testimony was taken.

On September 13, 1875, Joseph H. Brown, Henry O. Bonnell, and others acknowledged the certificate of the incorporation of a company, under the laws of this state, under the name of Brown, Bonnell, & Co. The object of the corporation was the manufacturing iron, mining coal, etc. The capital stock was $1,500,000, divided into fifteen thousand shares of one hundred dollars each. The principal office and place of business was fixed at Youngstown Ohio. It was further provided in the certificate, "that the annual meeting of the stockholders of such body corporate, for the election of directors and the transaction of such other business as may be lawful, shall be held on the third Tuesday of January in each year." The certificate was filed and recorded in the office of the secretary of state, on September 16, 1875, and a certified copy was issued in due

The State v. Bonnell.

form by the secretary of state, on the same day; and thereupon the corporation was organized, and it has ever since been engaged in the business for which it was created, the number of directors being fixed at seven. There was no bylaw as to notice to be given of meetings; but in January of each year, previous to the annual meeting, the secretary gave to the stockholders notice of the annual meeting, stating the hour at which it would be held.

Meetings of stockholders were regularly held on the third Tuesday of January, in 1876, 1877, and 1878, and directors elected, the following persons being chosen at the meeting in 1878: Joseph H. Brown, Richard Brown, Thomas Brown, George W. Hale, Henry O. Bonnell, Herbert C. Ayer, and W. Scott Bonnell, each receiving 13,044 votes. They were duly qualified and entered upon their duties as such officers. The meeting in each year was held in the morning, from ten to eleven o'clock, though, in 1877, the meeting was adjourned until two o'clock in the afternoon, when the election was held.

Notice of the annual meeting to be held on the third Tuesday, being the 21st day of January, 1879, at half after ten o'clock, A. M., was served by the secretary on each stockholder.

On the night of January 20, 1879, an action was commenced by Joseph H. Brown and others, against George W. Hale and the corporation, Brown, Bonnell & Co., in the Court of Common Pleas of Mahoning county. In the petition it was stated that twelve hundred and fifty shares of the capital stock, amounting to $125,000, had been issued to Joseph H. Brown, and that he was legally and justly entitled to vote thereon, at all elections for directors of the corporation; but that, on January 15, 1879, said George W. Hale, having obtained possession of the certificates for said shares, fraudulently surrendered them, and procured the company to issue to himself a new certificate for the same shares, and unlawfully caused himself to be placed on the books of the company as the owner of the shares; that said Hale intended to vote on said stock, at the election of