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Opinion of the Court.

legislature will not be presumed or held to have intended the repeal or modification of a well settled rule of the common law then in force, unless the language employed by it clearly imports such intention. No such language is found in this statute, hence no such legislative intent is shown or can be presumed. Peterson v. Gittings, 107 Ia., 306; Johnson v. Fluetsch, 176 Mo., 452; Edwards, Admr., v. Gaulding, 38 Miss., 118; Keech v. Balto. & Wash. R. R. Co., 17 Md., 32; Lewis' Sutherland Statutory Construction, Section 454; 1 Kent's Commentaries, bottom paging 551; Maxwell on Statutes, pp. 121 and 122; Dwarris on Statutes, 185; 26 Am. & Eng. Ency. Law (2 ed.), 662. The record in this case affirmatively discloses that at the time Governor Harris appointed relator to be a member of the Railroad Commission of Ohio, no present necessity then existed for the making of such appointment. The appointment so made by him on January 4, 1909, was not made to fill an existing vacancy, but a vacancy to arise during the term of his successor, and after his own power to appoint thereto had, by operation of law, expired. This statute, although requiring such executive appointments to be made in January, neither in express terms nor by necessary implication from the language therein employed, imposes or enjoins upon the out-going governor the duty of making such appointment. Hence, the rule of the common law which positively forbids his making the same, is not changed or affected by the statute, but continues and remains in full force and effect and must therefore control and govern. The case of State, ex rel.

Opinion of the Court.

Lueders, v. Ermston, 14 0. C. C., 614, affirmed by this court in 57 Ohio St., 665, “on the grounds stated by the circuit court," is cited by counsel for relator as sustaining their contention in the present case. The statute before the court for construction in that case was, in its terms and essential requirements, materially different from the statute here under review, and the reasoning and opinion of the court in that case so far from being opposed to the conclusion reached by us in the present case, is, we think, in entire accord and harmony therewith. The syllabus in that case is as follows: “When authority is given to an officer to make an appointment, such officer cannot make an appointment the term of which is to begin after the expiration of his term. But when the statute expressly provides that the appointment shall be made on a certain day, or as soon thereafter as practicable, the appointment may be made notwithstanding that the term of such appointee would commence after the expiration of the term of the appointing officer." In the present case, for the reasons hereinbefore stated, we are of opinion that the facts pleaded in defendant's answer sufficiently show that the appointment of relator to be a member of the Railroad Commission of Ohio was without right or authority of law, and the demurrer to said answer will be overruled, and the petition of relator dismissed.

Demurrer to answer overruled and petition dismissed.

SUMMERS, SPEAR, DAVIS, SHAUCK and PRICE, JJ., concur.

Syllabus.

THE STATE, EX REL., BALLARD, Solicitor, v. Har

RISON ET AL., TRUSTEES.

Action to recover compensation-Land wrongfully taken by munici

palityNot a case for condemnation, when-Section 101, Municipal CodeTrustees of sinking fund-Bond to pay final

judgment-Section 110, Municipal Code. Where, in an action for compensation for land wrongfully taken by

a municipal corporation without knowledge of the owners, and devoted to a public use by constructing a sewer thereon, it appears that the owners, upon learning that the land has been so taken, recognized the wrongful possession as an accomplished fact, and ratified it by tendering a good and sufficient deed of the premises conveying title to the corporation, and by offering to allow judgment that, upon the value of the premises being fixed by the court, and judgment rendered for the same, the owners should be ordered to convey to the corporation, the case is one to recover the value of the land, and is not a case for the condemnation of property within the meaning of the latter clause of Section 101, Municipal Code (Section 1536-293, Revised Statutes); and when such judgment final, under the provisions of Section 110 of said code (Section 1536302, Revised Statutes), it is the duty of the trustees of the sinking fund of the municipal corporation, if they have sufficient funds, to pay such judgment, and on refusal to do so mandamus will lie to compel payment.

(No. 11589—Decided November 9, 1909.)

Error to the Circuit Court of Hamilton county.

The facts appear in the opinion.

Mr. Edward M. Ballard and Mr. Fyffe Chambers, for plaintiff in error.

Mr. Thornton M. Hinkle and Mr. Alfred G. Allen, for defendants in error.

Opinion of the Court.

PRICE, J. The plaintiff in error, on the 8th day of June, 1908, filed in the circuit court of Hamilton county a petition in mandamus against the defendants in error, alleging as authority for bringing the action, Section 1777, Revised Statutes of Ohio. He charged the defendants with failing to perform a duty expressly enjoined upon them by law, and recites the facts upon which the charge is based to be in substance as follows: The city of Cincinnati, through its officials, assuming that certain lands within said city had been dedicated by the owners thereof as a public street, decided that a public sewer was necessary and should be constructed in said lands and other lands connected therewith, and in pursuance of such determination, directed the construction of the sewer, which was completed under the direction of the proper city authorities, on or about November 11, 1903. But said lands were then the private property of David S. Oliver and John C. Oliver, trustees, and had never been dedicated as a street, nor had they become a public street or highway by any lawful steps taken for that purpose. The sewer was located and constructed on their said private lands without notice to or knowledge of the owners.

On the 10th day of March, 1908, the said David Oliver and John C. Oliver, as trustees, brought suit in the court of common pleas against the city of Cincinnati to recover the sum of $2,000 as compensation for the trespass committed upon their said property. A copy of their petition was made a part of the petition in mandamus, and in the petition for compensation it was alleged that

Opinion of the Court.

said "the city of Cincinnati, in constructing a public sewer in said city, has taken possession of all of said land (before described in the petition) and constructed a sewer therein, without ever having appropriated the same by law, or having made any compensation therefor in money or otherwise, and is now in possession of all of said land and wholly refuses to make any compensation therefor to plaintiffs herein. On the discovery by the plaintiffs of the unauthorized and unlawful appropriation by defendant of the above described premises in the manner and for the purposes aforesaid (the making of a public sewer), plaintiffs offered to convey the same to defendant by deed in fee simple upon the payment by defendant of the value of the same, which defendant refused to pay. The plaintiffs now offer to convey said premises in fee simple to defendant upon payment by defendant of the value of the same, and they agree that upon the value of said premises being fixed in this case and the payment of the same, the decree of this court (court of common pleas) may be entered ordering a conveyance in fee simple of said premises to defendant, and plaintiffs here tender said conveyance and surrender of title to said premises upon payment as aforesaid. The above described tract of ground is justly worth the sum of $2,000."

The petition prayed that defendant be decreed to make compensation to them in money for the value of the land so taken and that they recover judgment against the defendant in the sum of $2,000 with interest and costs, and for such other relief as they are entitled to, The defendant in

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