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The State ex rel. Herron v. Smith.

tutional questions connected with legislation. In such case, where it is affirmatively and clearly shown, by competent evidence, that some requirement of the constitution was disregarded in the enactment of the law, or where some provision or provisions of the act violate the constitution. clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in the minds of the court, the act may be declared a nullity; otherwise the court is clothed with no power to interfere with it. In no other sense is the court superior to the legislature. Because the court is composed of judges, who are presumed to be more or less. learned in the law, it will not answer to assume that it is a body so much purer and so much wiser than the legislature as to warrant undue criticism by it of the acts of that body. This general subject is most ably treated in the opinion of the late learned chief justice of Pennsylvania, in Sharpless v. Mayor, 21 Pa. St. 162, cited in the majority opinion, and lack of space alone prevents extracts from it here.

The case before us involves no question of judicial control of any state officer. No such officer is asked to do, or not to do, any particular thing or any thing at all. Hence the reference to the language of the eminent judge who dissented in the case of Dalton v. Richardson, supra, has, in my judgment, no application. No one doubts but that where a proper case is made, one bringing an officer within the jurisdiction of the court, the court, operating within limits which the constitution and the laws prescribe, such officer can not claim that he is placed above the restraining authority of the law; but how this principle authorizes scurrilous matter against legislators in a pleading in a suit to which the persons so attacked are not and can not be parties, and in which the matter itself is relevant to no issue which is or can be raised between those who are parties, or is applicable to a question of disregarding or not the legal effect of a legislative journal, or to a question of the conclusive effect of evidence of the highest character as

The State ex rel. Herron v. Smith.

contrasted with that which is inferior, is entirely beyond my comprehension.

It is alleged that in the action of May 8th the senate disregarded its own rules. When the thing created becomes greater than the creator it may be worth while to consider this complaint.

It is contended that because quo warranto would not lie to call in question the authority of these so-called “pretended senators" to act, and because no other form of direct attack is provided, that the present form may be treated as a direct attack, and hence sustainable, upon the principle that where a direct attack upon a proceeding can not, for any reason, be made, it may be collaterally questioned, and Vose v. Morton, 4 Cush. 31, is cited. In this case the owner of land sought to be subjected to the lien of a judgment against his vendor, set up as defense that the judgment was invalid for want of jurisdiction. The judge who delivered the opinion announced as law that "it is a general and established rule of law that, when a party's right may be collaterally affected by a judgment, which for any cause is erroneous and void, but which he can not bring a writ of error to reverse, he may, without reversing, prove it so erroneous and void, in any suit, in which its validity is drawn in question," and, as the law of the case, the court held that "the tenant in a real action, brought to recover land levied on in execution of a judgment of the circuit court of the United States, in favor of the demandant against a third person, to which judgment such tenant is not a party or privy, is not concluded thereby from showing by proof that the judgment is erroneous and void for want of jurisdiction of the parties." I think that an examination of this case shows that the principles announced have no application to a case such as that under consideration, and most clearly it is not authority that such attack, whensoever it may be made, can be sustained by incompetent evidence.

In my judgment the conclusions reached by the majority are based upon sound principles; and any departure from

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The State ex rel. Herron v. Smith.

them would lead to confusion as to what the law is, uncertainty in its administration, and to other results of a most disastrous character.

FOLLETT, J. I concur in the dissenting opinion of Owen, C. J.

Other grounds of dissent need not be discussed, as the main question relates to the violation of an express provision of the constitution.

The facts involved in this case are historical, and they are known to the intelligent people of the state, and they are boasted of by the parties implicated and by their defenders.

Though but three months have passed since the majority holding was made in this case and their opinion was published, when we were notified there might be a reply to the dissent, it seemed necessary to bring forth the elaborate opinion of Spear, J., striving to ignore and, if possible, to get away from their own basis of facts for their holding, that this law is constitutional, although certain votes "necessary to the number of votes required by the constitution. for the passage of the law," were given by certain persons who were seated in the senate "by less than a constitutional quorum;" and that "the members so seated are, at least, de facto members;" as stated in propositions "1" and "2" of their syllabus.

This holding is based only upon such facts. If no such basis had been presented, no such holding could have been made.

Day v. Railroad Company.

DAY V. RAILROAD COMPANY.

Water-courses-Deed of land on bank of river-Corporation-Dissolution-Reversion.

1. A general deed of premises lying upon the bank of a river, in which is constructed a canal, conveys the grantor's rights to the center of the stream bounding the property. And to reserve or exclude from the grant any such rights, the conveyance should contain proper words of such reservation or exclusion.

2. Where the canal company owning and operating such canal had the right only to use, for canal purposes, the bed and waters of such river, on ouster of such company from its corporate franchises and its dissolution by order of this court, the trustees winding up its affairs have no power to convey such rights, but they revert to the proper owners.

ERROR to the District Court of Portage county.

The Pittsburg, Youngstown and Chicago Railroad Company is a corporation under the laws of Ohio, and it was building its road through the village of Kent, in Portage county, Ohio. It was commencing to grade and build its road on property claimed by Day, Williams & Co. as partners, when, October 1, 1881, they, the plaintiffs in error, commenced an action against the railroad company and others to enjoin the railroad company from entering upon their premises until the right of way was duly condemned and paid for. The property is what was once used as a part of the Pennsylvania and Ohio canal, and it is in the bed of the Cuyahoga river, between the east bank and the middle of the river. In their petition plaintiffs averred that they owned the premises on the east bank of the river, which premises extended to the middle of the river, and that they were extensively engaged in the manufacture of glass on the property; that the use of the water of the Cuyahoga river was indispensable to their business; that it was impossible to carry on the manufacture of glass without said water; that it was not practical to obtain water elsewhere, save at enormous expense; that the construction of the railroad, as proposed, would deprive them of the

Day v. Railroad Company.

use of said water, and necessitate the abandonment of their business, or the carrying it on at a loss-damage them many thousand dollars, and otherwise do them great and irreparable injury; and they prayed for an injunction and damages.

A temporary injunction was allowed.

On February 7, 1882, the railroad company set up in its amended answer:

That it admits the copartnership of the plaintiffs; that they are the owners of a glass factory property in the village of Kent, in Portage county, Ohio; that they purchased the same from Marvin Kent, by contract in writing, dated the first day of July, 1864, and received a deed thereof from Marvin Kent and wife, dated March 3, 1868, in pursuance of said contract and in fulfillment thereof; that the plaintiffs are engaged in the manufacture of glass, and that defendant is engaged in the construction of a line of railroad extending through said village of Kent.

The defendant denies that the west boundary of plaintiffs' glass works property is the center of the Cuyahoga river. Defendant further says that about the year 1840, a corporation duly created, organized, and then existing under the laws of Ohio by the corporate name of "Pennsylvania and Ohio Canal Company," and possessing under its charter full authority and right to construct, maintain, and operate a public canal and water highway for the transportation of persons and property through the county of Portage, in the due and legal exercise of its rights and franchises in and about the acquisition of its right of way and the construction of its canal thereon, duly obtained the right and legal authority to construct its canal in the Cuyahoga river through a portion of the township of Franklin, in the county aforesaid, in which plaintiffs' said premises are located, and did construct its canal in said river from a point several hundred feet northward of plaintiffs' premises, to a point several hundred feet southward thereof; that in and about the construction of the canal, said canal company, between the points aforesaid and oppo

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