Page images
PDF
EPUB

Opinion of the Court.

portant to know whether at that time it appeared that she was entitled to the whole insurance. Nearly all, if not all, the authorities cited by the learned counsel of the respondents, which hold that the mortgagee is the sole party in interest in the insurance, and must be represented in the arbitration or other adjustment of the loss, are cases where the direction is to pay the whole insurance to the mortgagee or other third person, who thereby becomes the assignee of the policy and loss. In this case it could not be known what interest the mortgagee might have in the insurance, or what interest in her might appear. First, her interest was not commensurate with the insurance; second, it was not known what part, if any, of the mortgage would remain unpaid by the mortgagor. It was therefore uncertain what interest the mortgagee had, if any, in the insurance. She (the mortgagor) was the owner of the property and of the equity of redemption in the mortgaged premises.

It follows that in all cases where the language of direction is that the insurance should be paid to the mortgagee ‘as his interest may appear,' the assured mortgagor remains the responsible party, or the party in interest to control the insurance and the adjustment of the loss. This is the distinction, as I understand it, which divides the authorities on the question.”

This logic applies to the case at bar, for the policy and clause under consideration was not an assignment of all the insurance, nor of the insurance policy. The insurance given by this policy is $1,750, and concurrent insurance in same amount_$3,500. The mortgage debt at date of

*

*

Statement of the Case.

policy was less than $2,500. The sound value of the insured property, as fixed by the appraisal, was $4,000, and the loss $1,202.05.

There are some cases that seem to hold contrary to our views and they are cited for plaintiff in error in its brief. We have examined these cases, but have not space for their discussion here.

We concur in the decision of the circuit court and affirm its judgment.

Judgment affirmed.

Crew, C. J., SUMMERS, SPEAR, Davis and SHAUCK, JJ., concur.

HENDERSON, CLERK OF COUNCIL, ET AL. V. THE CITY OF CINCINNATI, BY BALLARD,

CITY SOLICITOR.

Park commissioners-Mandatory duties Act of May 9, 1908Bond

issues of municipalitiesNot affected by Section 6 of act. 1. The provision of Section 3 of the act of May 9, 1903, relating

to the duties of park commissioners (99 0. L., 440), that “all questions acted upon shall be decided by yea and nay vote

entered on the journal” is mandatory. 2. Section 6 of the act does not, either expressly or by implication,

amend former legislation restricting the bond issues of municipalities.

(No. 11935—Decided October 19, 1909.)

ERROR to the Circuit Court of Hamilton county.

The city solicitor brought suit in the court of common pleas against the plaintiffs in error, the

Statement of the Case.

clerk of the city, the auditor of the city and its board of park commissioners, to enjoin the publication of an ordinance providing for the issuance of bonds of the city and also to enjoin the issuance of the bonds, because of a want of compliance with the statute in the steps taken to authorize the issuance of the bonds. The allegations of the petition, in substance, were that on the 30th of December, 1908, the board of park commissioners passed a resolution declaring it necessary to issue bonds in the sum of one hundred and twenty-five thousand dollars for the purpose of carrying into effect the powers conferred upon the board by law, and on the same day the board transmitted said resolution to the city council. On the 25th of February, 1909, the commission instructed its secretary to have prepared, and submitted to council for action, an ordinance authorizing an additional bond issue of fifteen thousand dollars to defray the costs of erecting a public shelter and comfort station in Eden Park, and equipping the same. On the 19th of March, 1909, the board of park commissioners transmitted to council a communication in which they requested that council submit to a vote of the people, at a special election to be held for that purpose, the question of issuing one million dollars in bonds for the use of the board of park commissioners. On March 22, 1909, the finance committee of the council requested the board to state with particularity the purpose for which said bonds were desired, and on the 25th of March, 1909, the park commissioners sent to said committee a communication complying in general terms with said request. On the 29th of March,

Statement of the Case.

1909, the council of the city of Cincinnati passed a resolution declaring it necessary to issue bonds in the sum of one million dollars to raise money for purchasing and condemning the necessary land for park and boulevard purposes and for improving the same.

In said resolution it was recited that said issue, together with other indebtedness incurred by the city, would exceed four per cent. of the total value of all property in the said city as listed and assessed for taxation, and, therefore, they provided for an election to be held on the 11th day of May, 1909, at which the qualified electors of said city should vote upon the authorization of said issue. The petition alleges that, in fact, said contemplated issue would, in connection with other indebtedness of the city, exceed four per cent. of all the property in the city of Cincinnati as listed and assessed for taxation, but would not cause said indebtedness to exceed eight per cent. Said election was held pursuant to the resolution of the council, and at said election a majority of those voting voted in favor of authorizing the issue of the bonds, but the proposition did not receive the votes of two-thirds of the electors voting at said election. The petition further alleges, that upon the assumption that a favoring vote of a mere majority was sufficient to authorize an issuance of the bonds, the original defendants were about to proceed to issue the bonds.

A demurrer to this petition was filed in the court of common pleas. The demurrer was overruled, and the defendants not desiring to plead further, a perpetual injunction was granted in accordance with the prayer of the petition. This

Opinion of the Court.

judgment of the court of common pleas was, on petition in error, affirmed by the circuit court.

Mr. Edwin E. Stevens and Mr. Prescott Smith, for plaintiffs in error.

Mr. Edward M. Ballard, city solicitor, for defendant in error.

The case was argued crally for the defendant in error by Mr. Albert H. Morrill.

SHAUCK, J. Two propositions are urged in support of the conclusion that the issuance of the bonds was not authorized in view of the facts alleged in the petition. The first is, that the board of park commissioners did not take action favoring the issuance of said bonds in the manner prescribed by the act of May 9, 1908, providing for the establishment of park commissioners and defining the powers and duties of such boards when established. Section 3 of the act cited leaves no room whatever for contention upon this point. The third section of the act provides in terms that “all questions acted upon shall be decided by yea and nay vote with the name of each member voting recorded on the journal; and no question shall be decided unless approved by a majority of the board.” The petition shows that this mandatory provision of the statute was not complied with by the board of park commissioners.

It is further urged that at all events, the power of the municipality to make the bond issue contemplated, is restricted by Sections 2835-2837, Revised Statutes. Counsel agree that if the case is

« PreviousContinue »