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line, and the charges therefor shall belong exclu- It was also provided, that the first party, within sively to the party of the first part, it being hereby three years, might purchase “ the wire and insuunderstood and agreed that the party of the second lators” of the second party, together with its inpart shall be entitled only to the business of terest in certain contracts with the Magnetic sending such messages as may be received at Telegraph Company, and the Western Telegraph any of their stations on said line destined for Company, upon terms specified: stations on any lateral or other telegraph line "9. But should the party of the first part not connecting with the said Marietta and Cincin- make the purchase and take upon themselves nati line at points where said party of the sec- the obligations of the party of the second part ond part may have stations; or such messages as as aforesaid, then the agreement shall remain in may be received from any lateral or telegraph force for thirty years and thereafter untilone party line connecting with said Marietta and Cincin- shall have given one year's notice of a desire to nati line at points where said party of the sec- terminate the same, whereupon at the end of ond part may have stations, destined for any of said year it shall cease and determine." the stations of said party of the second part on Afterwards, on the 3d day of August, 1859, their said line, or on any lateral or other line suid contract was altered and amended, among connecting with said Marietta and Cincinnati other things, as follows: line at points where_said party of the second “So much of the said contract as provides that part have stations. For all messages that may the party of the first part shall keep the wire of be received by the party of the first part at their the second party in good working order for a stations to be re-telegraphed at stations of the compensation of three hundred dollars per anparty of the second part to stations on any lat- num, and so much as reserves to the party of the eral or other line connecting as aforesaid, and first part the right to purchase the interest of for all messages that may be received at any of the party of the second part in their line of tel. their stations by said party of the second part, egraph shall be and they are hereby annulled. from stations on lateral or other lines connecting In lieu of said provisions and in modification as aforesaid, destined for and that may be re-tel- of certain other provisions of said contract the egraphed by the party of the second part to following articles are mutually agreed upon and points on said line where the party of the second adopted, viz: part have no stations, the party of the first part 1. The party of the second part shall hereafshall be entitled to their proportion of the ter keep their own wire and also the wire of the charge for such messages corresponding to the party of the first part in good working order, with distance such messages may pass upon their line. the same conditions and qualifications as have
5. The party of the second part guarantee to been heretofore applicable to the party of the the party of the first part the free transmission first part under the 7th article of the said conof messages for or from the officers and employ es traet, except that the said party of the second of the party of the first part, exclusively on part shall receive no compensation therefor, exrailroad business, or telegraph business over the cept the benefits which may be received from lines of the Western Telegraph Company ex- the rescinding or alterations of other provisions tending or to extend from Marietta to Baltimore of said contract." by way of the Northwestern Virginia Railroad, Subsequently, but prior to the commencement and from Marietta by way of said railroad to of the original action in June, 1878, the plaintWheeling, between any stations on said Western iff in error succeeded to all the rights of property Telegraph Company's lines, and any stations on and franchises of the Marietta and Cincinnati said Marietta and Cincinnati line.
Railroad Company, and the Western Union Tel6. Said party of the first part hereby agree egraph Company succeeded to all the rights of to permit the agents of the said party of the the Marietta and Cincinnati Telegraph Comsecond part, and also the agent of the said Wes- pany under said contract. tern Telegraph Company, when traveling on the In the year 1871, the plaintiff below, with business of their respective companies, to travel the consent of the railroad company, placed a on the cars of said party of the first part free of third wire upon said line of posts for common charge, but at their own risk of personal injury, benefit of the parties. the agent so traveling producing evidence The claim of the plaintiff below is, that the thereof from some of the principal officers or addition of a fourth wire on this line of poles to agents of the telegraph company for which they be used by another for general telegraph business are so traveling, and said party of the first part is in violation of its rights under saíd contract. agree to transport in their cars to stations on MCILVAINE, J. their line, free of charge, all wire and other ma- It is essential to the rights of the Western terial necessary in putting up and working the Union Telegraph Company to the relief granted line of telegraph belonging to said party of the in the court below, that it acquired under the second part.
contract an exclusive right to the business of It was also stipulated that the party of the general telegraph correspondence on the line of first part, for $300,00 per annum, should keep poles described in the contract, except as therein the wire of the second party in good working expressly reserved to the railroad company, to order; but the cost of renewal of both wire, wit: the local business. We assume that the insulators and posts should be equally divided parties in this action have succeeded to the
rights and obligations of the original parties to all points; nor are we advised as to their action the contract. What, then, is the true construc- under the privilege thus granted. tion of the contract ? What rights were granted Now, it must be further observed, that as to by the railroad company to the telegraph company? the business of sending messages, other than lo By the terms of the contract, the answer is, cal business, the telegraph company is limited "The privivilege of putting up and maintain- to "euch messages as may be received at any of ing a telegraph wire for general telegraphic their stations," so that the railroad company, or correspondence on the line of telegraph posts' any other person authorized by it, may compete. along the line of the railroad; and "liberty to es- for messages, at any city or village, to be transtablish and maintain telegraph stations at Cin- mitted on this line of poles and on any wire cinnati and Marietta and at such other points other than those put up by the telegraph comalong said line as they may think proper, but pany, without interfering with the privilege all local telegraph business on vaid line and the granted to it. And again, messages received at charges therefor, shall belong exclusively to the an office of the railroad company, though the party of the first part, it being hereby under-telegraph company may have an office at the stood and agreed that the party of the second place, to be forwarded over other lines of telepart shall be entitled only to the business of graph from points where the telegraph company sending such messages as may be received at any of has no office, are wholly unprovided for by the their stations on said line destined for stations on | agreement; and in such business, the telegraph any lateral or other telegraph line connecting company certainly cannot claim any interest. with the said Marietta and Cincinnati line at As to the local business" the whole of which points where said party of the second part may have was reserved by the railroad company, and its stations ; or such messages as may be received interest in the class of business to be re-telefrom any lateral or other telegraph line connecting graphed as between the parties and for which with said Marietta and Cincinnati line at points the compensation was to be divided ratably bewhere said party of the second part may have stations, tween the parties, as well as the business left destined for any of the stations of said party of open to competition and that which was not pro the second part on their said line or on any lat- vided for in the contract, we can find no objeceral or other line connecting with said Marieita tion in the contract against the right of the and Cincinnati line at points where said party of railroad company to transfer the same to a third the second part have stations." The contract person, or to its right to place an additional wire also contains a provision prorating as follows: upon its line of poles, or to authorize another “For all messages that may be received by
to do so, for the purpose of transmitting such the party of the first part at their stations to be
messages. It is reasonable to assume that such re-telegraphed at stations, of the party of the
a right was within the contemplation of the par: second part to stations on any lateral or other
ties; and it is quite sure that no stipulation was line connecting as aforesaid, and for all messages
made to prevent its exercise. that may be received at any of their stations by
Inasmuch therefore, as the right of the plaintiff said party of the second part, from stations on
below, to the injunction prayed for, rests on the lateral or other lines connecting as aforesaid, des ground that it had acquired the right to the sole tined for and that may be re-telegraphed by the
use of the wires upon this line of poles for transparty of the second part to points on said line
mission of public or general telegraph correswhere the party of the second part have no sta- pondence, except local business, and as that tions, the party of the first part shall be entitled
claim cannot be maintained by a just constructo their proportion of the charge for such mes
tion of the contract, it follows, that the judgment Bages corresponding to the distance such messa
below must be reversed. ges may pass upon their line."
Another view of the case leads to the same re
sult. Neither the Marietta and Cincinnati rail. The plain import of these stipulations is not road company, nor the plaintiff in error, ever modified by any other provision in the contract; had, or have the capacity to engage in the teleand it appears to us that no exclusive right to graph business for the public generally, whether
this , side of the focal business and such as was agreed
local or general in its character. The only ex
tent to which either of them could engage in the to be prorated, was granted to the telegraph business of telegraphy was such as might be neccompany.
essary or convenient to the management of the By “telegraph stations” which the telegraph raliroad and its business. For this purpose only company has the liberty to establish and main- can a railroad company, in this State, erect and tain at "points” along the line of the road, we maintain a line of telegraph poles and wires. understand is meant ordinary offices for the bus- True, having constructed such lines for such use, iness of telegraphy at cities or villages along the it is competent for the railroad company to line of the road, but the grant of this liberty did grant to another, having capacity. to engage in not exclude the right of the railroad company, the business, the right to use such poles and either directly or indirectly, to establish and wires for the purpose of general telegraphy, and maintain like offices in the same cities and vil- the right so transferrable may be exclusive or lages. It will be observed, that the telegraph partial as the parties may agree. company was not bound to establish stations at But where the right transferred is partial only
as in the case before us, and the consideration is and that by a vote of the said council at said 60 mixed and modified by rights and privileges meeting, the said reasons so submitted by the reserved by the grantor, that it would be unrea- said mayor were deemed insufficient; that on sonable to suppose that the grant would have the 23d day of May, A. D. 1877, the plaintiff was been made without the reservations, while in again by said mayor in the discharge of his dufact and in law, the rights and privileges so re- ties as mayor, suspended from his position as served cannot be exercised or enjoyed by the policeman until the then next regular meeting railroad company for want of capacity to exer- of the said council and remained under such suscise or enjoy them, a court of equity will not by pension and discharged none of the duties of poinjunction or otherwise enforce the specific per- liceman from that day until the 6th day of June, formance of the contract. In such case, where 1877, when at a regular meeting of the council the benefits of the contract cannot be realized ac- aforesaid, the fact of such suspension, together cording to its terms and the expectations of the with the reason therefor, was reported by the parties, equity will remit a party who seeks re- said mayor, and the said council then, without dress for a breach of the contract to such reme- any trial, hy a vote, determined that the reason dies as may be asserted in courts of law.
submitted by the said mayor was insufficient; Judgment reversed and petition dismissed. that afterwards and on the 6th day of June, 1877, [This case will appear in 37 O. S.]
the said plaintiff was again by said mayor in the
discharge of his duties as mayor, suspended from SUSPENSION OF MUNICIPAL OFFICER BY his position as said policeman, and remained unMAYOR.
der such suspension, discharging none of the du
ties of said.policeman until the 4th day of July, SUPREME COURT OF OHIO.
1877, at which time the ordinances under which
he was appointed, were repealed by said council; STEUBENVILLE v. CULP.
that upon the occasion of each of said suspen
sions, the position of policeman for which plaint
March 28, 1882. iff is claiming compensation, was filled by the A police officer, suspended from office, by the mayor appointment of said mayor, until the next reguof a city, under the authority granted by secs. 121 and 211 lar meeting of said council, and the duties of of the Municipal Code (66 0, 'L. 170 and 184), is not entitled to wages during the period of such suspension, notwith
said position were discharged by the person so standing the council afterward declared the cause of sus- appointed, during all the time the plaintiff was pension insufficient.
so suspended, who is now claiming compensation Error to the District Court of Jefferson Countv. therefor, but said plaintiff was always ready and
Defendant in error filed his petition in the willing to perform said services. Court of Common Pleas of Jefferson County “This defendant says it is not indebted to plaintagainst the city of Steuben ville, on appeal from iff in any manner or form, except the sum of the judgment of a justice of the peace, to recover nineteen dollars, for which it offered to confess a one hundred and twenty-eight dollars which he judgment before the justice of the peace, before claimed to be due him for wages as a policeman whom the case was tried, unless the facts above between the 30th of April, 1877, and the 4th of set forth render it liable, and it prays that it July, 1877.
may be discharged from the payment of any part To his petition the city answered as follows: of the claim of the plaintift, except that $19, "The said defendant for answer to the petition aforesaid, and that it may recover its costs made of the plaintiff says, that on the 6th day of June, since said offer to confess judgment.” A. D. 1876, the plaintiff was appointed by the To this answer no reply was interposed. At mayor of said city of Steubenville, by and with the trial it was agreed that any sum the plaintthe consent of the council of said city, a day po iff might recover for services rendered the deliceman, in pursuance of the ordinance of said fendant as a policeman, after the 31st day of May, city, and continued in the discharge of his du- A. D. 1877, should not in any manner affect the ties as such until the 8th day of May, A. D. 1877; offer of the defendant in writing, to confess judgthat his compensation as such policeman was ment for the sum of $19, and the cost made up to two dollars per day, and that his compensation the time of the offer, as appears by the transcript was fully paid him by the defendant up to and of the proceedings had before the justice in this including the 30th day of April, A. D. 1877 ; that action, and that in case the plaintiff failed to reon the 8th day of May, A. D. 1877, the said plaint- cover more than $19, for services rendered by iff was, by the mayor of said city of Steubenville, him from the 1st to the 31st days of May, both in the discharge of his duties as mayor, sus- inclusive, judginent should be rendered against pended from his position as policeman, until the him for all costs made since said offer to confess next meeting of the council thereafter, remained judgment. under such suspension and did not discharge any The plaintiff below thereupon introduced in duty as policeman from the 8th day of May, un- evidence the ordinance of council authorizing til the 32d day of May, 1877 ; that at a regular the mayor to appoint policemen, and it was meeting of the council of said city held on the agreed that under this authority the appoint22d of May, 1877, the said mayor reported the ment was made. No further testimony was ofsaid suspension of the plaintiff to the council fered, and, the case having been submitted to aforesaid, together with his reasons therefore, the court, judgment was rendered in favor of
plaintiff for the full amount of his claim. This Y. 518, it was held that no claim could be brougbt judgment was afterward affirmed in the district for salary or perquisites against a municipal corcourt, and the latter judgment is now before us poration, covering any period when the comfor review.
plainant was not actually in office, for the reaA, H. Battin for plaintiff in error.
son that salary and perquisites are the reward of John F. Oliver for defendant in error.
express or implied services, and therefore cannot
belong to one who could not lawfully perform LONGWORTH, J.
such services. To this extent the doctrine of By the laws in force in the
1877 Muni. the case cited was announced in Auditor v. Bencipal Code, secs. 205, 209, 211 and 121, 6. O. Loist, 20 Mich. 176; Shannon v. Portsmouth, 58 184 and 170), the mayor was authorized to sus- N. H. 183; Attorney General 0. Davis, 44 Mo. pend any policeman for “ neglect of duty, mis- 131, and is clearly laid down and justified in the conduct or other sufficient cause,” until the next later case of Westberg 0. Kansas City, 64 Mo. regular meeting of council, and to appoint other 493. Indeed I have been unable to find any case persons to fill the temporary vacancy caused in which a contrary rule has been upheld. thereby: Beyond this his power did not extend; Offices are held, in this country, neither by the right to remove from office being 'in the grant nor contract, nor has any person a vested council alone.
interest or private right of property in them. Two questions arise for our consideration : The statute speaks of the suspension creating
1st. Had the mayor authority to make the a vacancy, and provides how that vacancy shall suspension complained of, and if so,
be filled. If the office is vacant it becomes, as to
. 2d. What is the effect of such suspension the suspended person, for the time being, as upon the policeman's right to wages during the though it did not exist, and as to the public, the period of suspension?
person appointed to fill such vacancy is the sole
to incumbent of the office. pend is limited to cases in which there exists suffin The court below therefore erred in rendering cient cause for its exercise; it ought not to be exert- judgment for more than the amount admitted to ed from mere whim or caprice, or for personal or be due. political reasons. In the case before us the an- Judgment reversed. swer alleges that the suspension was made by
Okey, C. J. the mayor “in the discharge of his duties as mayor.' No reply is interposed, and the allega- decision of this
case concur in holding that dur
All the members of this court present at the tions of the answer are taken as confessed. In the absence of averment to the contrary we are
ing the time Culp was suspended, he was not bound to presume that the facts justified the offi
entitled to compensation from the city of Steucial action of the mayor, and that the suspension
ben ville. The only question determined in this was for sufficient cause. No doctrine is better
case is stated in the syllabus, and I concur in the
decision so made. But whether the mayor may established than that the acts of an officer, within the scope of his powers and authority, are pre
or may not euspend for any cause satisfactory to sumed to be rightly and legally performed until himself, and what power the council may have the contrary appears. By, the terms of the stat
in case of suspension, are questions which we ute however, (sec. 121), this suspension termina
have not considered, much less decided. ted with the next regular meeting of council,
[This case will appear in 37 O. 8. and that body having declined to remove Culp, having declared the reasons for his suspension
STATUTE OF LIMITATIONS-PARTITION insufficient, he became thereby reinstated in of
-ORDER OF SALE. fice. This took place twice as shown in the answer, and on each occasion the
SUPREME COURT OF OHIO. suspended him again. It nowhere appears what was the cause or causes of these suspensions; and
JOREPA W. LaFFERTY if it be true, as claimed, that the mayor had no authority to suspend a second time for a cause
WILLIE SHINN. which the council had declared insufficient, then we are bound to presume that the subsequent
March 28, 1882. suspensions were for other and different causes. 1. The provision in the code of civil procedure as re Taking the avermėnts of the answer to be true
vised in 1878, by which the period within which a pro
ceeding in error may be commenced is reduced from we must conclude that the plaintiff below was three to two years (Code of 1853, 2 523 ; 75 Obio L. 808, 20; legally suspended from office from May 8th, 1877, Rev. Stats. 6723), does not apply to judgments which to July 4th, 1877, because, if there existed suffi
had been rendered when the act of 1878 took effect, but by
force of the act of 1866 (s. & S. 1) the period of three years, cient cause, in fact, for the suspension, the decla- prescribed in section 523, governs as to those judgments. ration of counsel that such cause did not exist 2. Where a demurrer to an answer is sustained, but would not have such a retroactive effect as to
no judgnient is rendered or order made which is defi
nitive in its character until a subsequent term, the time render it invalid during the time of its continu
within which a proceeding in error may be commenced ance.
by the defendant must be computed from the date of the 2d. Was he entitled to wages during this
'final judgment or order.
3. Where an action is brought under the code of avil period? In Smith v. Mayor of New York, 37 N. procedure for the partition of real estate, and the admin
istrator of the ancestor from whom the estate descended 1. The demurrer to the answer and cross-peto the persons asking for partition is made a defendant, and files an answer and cross-petition setting forth that
tition of the administrator of Francis Shinn, was it is necessary to sell such property for the purpose of
sustained at a term previous to September, 1875, paying the debts of such ancestor, and asking for an or- but no final judgment was rendered until the der of sale, such administrator is, upon proper showing, entitled to such order of sale, and statutes of liinitations
September term, 1875, which was held on the 7th have no application in favor of such heirs. Taylor v. day of that month, and hence in determining Thorn, 29 Ohio St. 569, followed.
whether the proceeding in error is barred, time Error to the District Court of Adams County. is to be computed from that day. The petition
. On June 25th, 1851, Francis Shinn, owner of in error was filed and summons issued Septemcertain parcels of land in Adams County, died ber 3d, 1878, which is four days less than three intestate, leaving a widow, to whom dower was
years from the time the order of partition was assigned in in-lot 35 in West Union. The per- made. The limitation for proceedings in error, sonal property and the other parcels of real es- under the civil code of 1 53 (8 523), was three tate were sold by the administratr" for the pay- years; but by the revisin, act of May 14, 1878, ment of debts, but the estate, upon settlement which took effect September 1, 1878 (75 Ohio L. in 1854, proved to be insolvent, four hundred 808, $ 20, Rev. Stats. § 6723), the period was dollars and upwards remaining due to creditors.
shortened to two years; and as the act of 1878, In 1855, Joseph W. Lafferty purchased of the
was in force when this petition in error was filed, widow her dower interest and went into posses- and two years had elapsed since the order comsion of in-lot 35, taking with him certain ma- plained of had been made, it is insisted that the chinery, and he was also owner of the larger part proceeding in error is barred. In support of this of the claims against the estate of Shinn remain clairn the defendants in error rely on Schooner ing unpaid. He died in 1869, leaving hig widow Marinda v. Dowlin, 4 Ohio St. 500. There the and children in possession of the premises, and judgment sought to be reversed was rendered in the widow of Shinn died the same year.
February, 1850, when the limitations as to proIn 1872, Willie Shinn, grandson of Francis ceedings in error was five years, but the petition Shinn, filed in the Court of Common Pleas of in error was not filed until December, 1854, and Adams County, his petition under the code of by the civil code of 1853, the time in which such civil procedure for partition of in-lot 35, in which
proceeding could be commenced was fixed at suit the other heirs of Francis Shinn, his admin
three years, as already stated. The court held istrator, and the widow and heirs of Joseph W. that the provision in the code applied, and that Lafferty are defendants. The widow and heirs
the proceeding was barred. No doubt that deof Lafterty answered, and an answer with cross- cision rests on satisfactory ground. That “all petition was filed by the administrator of Fran
courts shall be open, and every person for an in cis Shinn, setting forth the facts here stated, and jury done him in his land, goods, person or repu; asking that the lots be sold and the proceeds ap
tation, shall have remedy by due course of law, plied to the payment of the remaining indebted- is ordained in the Constitution (art. 1, sec. 16); ness of the estate of said Shinn, above referred and it is not within the power of the legislature to.
to abridge the period within which an existing After decision of the cause in the court of com
right may be so asserted as that there shall not mon pleas, it was appealed to the district court. remain a reasonable time .within which an acIn the latter court demurrers were sustained to
tion may be commenced. Cooley's Con. L. (4th the answers and cross-petition, and on Septem- ed.) 456; Const. art. 2, sec. 28. But in the right ber 7, 1875, partition was ordered among the so to appeal to the courts, there is not involved heirs of Francis Shinn; but as the lot could not
a further right to appeal from the judgment of be divided without manifest injury to the own- the court to which such applications for redress ers, the premises were appraised, the value being is made. On the contrary, estimated at four hundred dollars, and Joseph W.
is made. On the contrary, a right of appeal
from such judgment exists only when given by Shinn, one of the heirs, elected to take the prem- statute (Com. v. Messenger, 4 Mass. 469), and iges at such valuation, and the same
such right of appeal when so given may be judged to him.
taken away by statute, even as to cases pending This petition in error was filed in this court on
on appeal. Ex parte, McCardle, 7 Wall. 506. September 3, 1878, by the administrator of Francis Shinand the widow and heirs of Joseph W. ceedings in error.
And the same thing is true with us as to proceedings in error. Schooner Marinda v. Dowlin,
supra. We would have no hesitation, therefore, White, McKnight & White and L. Thompson in holding that this proceeding in error is barred for plaintiffs in error.
by the limitation of two years, if the rule deF. D. Bayless and J. M. Wells for defendant clared in that case remained unaffected by other
statutory provisions. But the question is whether OKEY, C. J.
such rule has not been changed by statute. The Two questions are presented, first whether the act of 1866, which remained in force until 1880, right to prosecute this petition in error is barred provided as follows: “Whenever a statute iş by the statute; and, secondly, whether the court repealed or amended, such repeal or amendment orred in sustaining a demurrer to the answer shall in no manner affect pending actions, proseand cross-petition of the administrator of Francis cutions or proceedings, civil or criminal, nor Shinn.
causes of such action, prosecution or proceeding,