line, and the charges therefor shall belong exclusively to the party of the first part, it being hereby understood and agreed that the party of the second part shall be entitled only to the business of sending such messages as may be received at any of their stations on said line destined for stations on any lateral or other telegraph line connecting with the said Marietta and Cincinnati line at points where said party of the second part may have stations; or such messages as may be received from any lateral or telegraph line connecting with said Marietta and Cincinnati line at points where said party of the second part may have stations, destined for any of the stations of said party of the second part on their said line, or on any lateral or other line connecting with said Marietta and Cincinnati line at points where said party of the second part have stations. For all messages that may be received by the party of the first part at their stations to be re-telegraphed at stations of the party of the second part to stations on any lateral or other line connecting as aforesaid, and for all messages that may be received at any of their stations by said party of the second part, from stations on lateral or other lines connecting as aforesaid, destined for and that may be re-telegraphed by the party of the second part to points on said line where the party of the second part have no stations, the party of the first part shall be entitled to their proportion of the charge for such messages corresponding to the distance such messages may pass upon their line.

5. The party of the second part guarantee to the party of the first part the free transmission of messages for or from the officers and employ es of the party of the first part, exclusively on railroad business, or telegraph business over the lines of the Western Telegraph Company extending or to extend from Marietta to Baltimore by way of the Northwestern Virginia Railroad, and from Marietta by way of said railroad to Wheeling, between any stations on said Western Telegraph Company's lines, and any stations on said Marietta and Čincinnati line.

6. Said party of the first part hereby agree to permit the agents of the said party of the second part, and also the agent of the said Western Telegraph Company, when traveling on the business of their respective companies, to travel on the cars of said party of the first part free of charge, but at their own risk of personal injury, the agent so traveling producing evidence thereof from some of the principal officers or agents of the telegraph company for which they are so traveling, and said party of the first part agree to transport in their cars to stations on their line, free of charge, all wire and other material necessary in putting up and working the line of telegraph belonging to said party of the second part."

It was also stipulated that the party of the first part, for $300,00 per annum, should keep the wire of the second party in good working order; but the cost of renewal of both wire, insulators and posts should be equally divided.

It was also provided, that the first party, within three years, might purchase "the wire and insulators" of the second party, together with its interest in certain contracts with the Magnetic Telegraph Company, and the Western Telegraph Company, upon terms specified:

"9. But should the party of the first part not make the purchase and take upon themselves the obligations of the party of the second part as aforesaid, then the agreement shall remain in force for thirty years and thereafter until one party shall have given one year's notice of a desire to terminate the same, whereupon at the end of said year it shall cease and determine."

Afterwards, on the 3d day of August, 1859, said contract was altered and amended, among other things, as follows:

"So much of the said contract as provides that the party of the first part shall keep the wire of the second party in good working order for a compensation of three hundred dollars per annum, and so much as reserves to the party of the first part the right to purchase the interest of the party of the second part in their line of telegraph shall be and they are hereby annulled.

In lieu of said provisions and in modification of certain other provisions of said contract the following articles are mutually agreed upon and adopted, viz:

1. The party of the second part shall hereafter keep their own wire and also the wire of the party of the first part in good working order, with the same conditions and qualifications as have been heretofore applicable to the party of the first part under the 7th article of the said contract, except that the said party of the second part shall receive no compensation therefor, except the benefits which may be received from the rescinding or alterations of other provisions of said contract."

Subsequently, but prior to the commencement of the original action in June, 1878, the plaintiff in error succeeded to all the rights of property and franchises of the Marietta and Cincinnati Railroad Company, and the Western Union Telegraph Company succeeded to all the rights of the Marietta and Cincinnati Telegraph Company under said contract.

In the year 1871, the plaintiff below, with the consent, of the railroad company, placed a third wire upon said line of posts for common benefit of the parties.

The claim of the plaintiff below is, that the addition of a fourth wire on this line of poles to be used by another for general telegraph business is in violation of its rights under said contract. McILVAINE, J.

It is essential to the rights of the Western Union Telegraph Company to the relief granted in the court below, that it acquired under the contract an exclusive right to the business of general telegraph correspondence on the line of poles described in the contract, except as therein. expressly reserved to the railroad company, to wit: the local business. We assume that the parties in this action have succeeded to the

rights and obligations of the original parties to the contract. What, then, is the true construction of the contract? What rights were granted by the railroad company to the telegraph company? By the terms of the contract, the answer is, "The privivilege of putting up and maintaining a telegraph wire for general telegraphic correspondence' on the line of telegraph posts" along the line of the railroad; and "liberty to establish and maintain telegraph stations at Cincinnati and Marietta and at such other points along said line as they may think proper, but all local telegraph business on said line and the charges therefor, shall belong exclusively to the party of the first part, it being hereby understood and agreed that the party of the second part shall be entitled only to the business of sending such messages as may be received at any of their stations on said line destined for stations on any lateral or other telegraph line connecting with the said Marietta and Cincinnati line at points where said party of the second part may have stations; or such messages as may be received from any lateral or other telegraph line connecting with said Marietta and Cincinnati line at points where said party of the second part may have stations, destined for any of the stations of said party of the second part on their said line or on any lateral or other line connecting with said Marieita and Cincinnati line at points where said party of the second part have stations." The contract also contains a provision prorating as follows:

"For all messages that may be received by the party of the first part at their stations to be re-telegraphed at stations of the party of the second part to stations on any lateral or other line connecting as aforesaid, and for all messages that may be received at any of their stations by said party of the second part, from stations on lateral or other lines connecting as aforesaid, destined for and that may be re-telegraphed by the party of the second part to points on said line where the party of the second part have no stations, the party of the first part shall be entitled to their proportion of the charge for such messages corresponding to the distance such messages may pass upon their line."

The plain import of these stipulations is not modified by any other provision in the contract; and it appears to us that no exclusive right to the telegraphic business over this line, even outside of the local business and such as was agreed to be prorated, was granted to the telegraph

company.

By "telegraph stations" which the telegraph company has the liberty to establish and maintain at "points" along the line of the road, we understand is meant ordinary offices for the business of telegraphy at cities or villages along the line of the road, but the grant of this liberty did not exclude the right of the railroad company, either directly or indirectly, to establish and maintain like offices in the same cities and villages. It will be observed, that the telegraph company was not bound to establish stations at

all points; nor are we advised as to their action under the privilege thus granted.

Now, it must be further observed, that as to the business of sending messages, other than local business, the telegraph company is limited to "such messages as may be received at any of their stations," so that the railroad company, or any other person authorized by it, may compete. for messages, at any city or village, to be transmitted on this line of poles and on any wire other than those put up by the telegraph company, without interfering with the privilege granted to it. And again, messages received at an office of the railroad company, though the telegraph company may have an office at the place, to be forwarded over other lines of telegraph from points where the telegraph company has no office, are wholly unprovided for by the agreement; and in such business, the telegraph company certainly cannot claim any interest.

As to the "local business" the whole of which was reserved by the railroad company, and its interest in the class of business to be re-telegraphed as between the parties and for which the compensation was to be divided ratably between the parties, as well as the business left open to competition and that which was not provided for in the contract, we can find no objection in the contract against the right of the railroad company to transfer the same to a third person, or to its right to place an additional wire upon its line of poles, or to authorize another to do so, for the purpose of transmitting such messages. It is reasonable to assume that such a right was within the contemplation of the par ties; and it is quite sure that no stipulation was made to prevent its exercise.

below, to the injunction prayed for, rests on the Inasmuch therefore, as the right of the plaintiff ground that it had acquired the right to the sole use of the wires upon this line of poles for transmission of public or general telegraph correspondence, except local business, and as that claim cannot be maintained by a just construction of the contract, it follows, that the judgment below must be reversed.

Another view of the case leads to the same result. Neither the Marietta and Cincinnati railroad company, nor the plaintiff in error, ever had, or have the capacity to engage in the telegraph business for the public generally, whether local or general in its character. The only extent to which either of them could engage in the business of telegraphy was such as might be necessary or convenient to the management of the raliroad and its business. For this purpose only can a railroad company, in this State, erect and maintain a line of telegraph poles and wires. True, having constructed such lines for such use, it is competent for the railroad company to grant to another, having capacity. to engage in the business, the right to use such poles and wires for the purpose of general telegraphy, and the right so transferrable may be exclusive or partial as the parties may agree.

But where the right transferred is partial only

as in the case before us, and the consideration is so mixed and modified by rights and privileges reserved by the grantor, that it would be unreasonable to suppose that the grant would have been made without the reservations, while in fact and in law, the rights and privileges so reserved cannot be exercised or enjoyed by the railroad company for want of capacity to exercise or enjoy them, a court of equity will not by injunction or otherwise enforce the specific performance of the contract. In such case, where the benefits of the contract cannot be realized according to its terms and the expectations of the parties, equity will remit a party who seeks redress for a breach of the contract to such remedies as may be asserted in courts of law.

Judgment reversed and petition dismissed. [This case will appear in 37 O. S.]

SUSPENSION OF MUNICIPAL OFFICER BY MAYOR.

SUPREME COURT OF OHIO.

STEUBEN VILLE v. CULP.

March 28, 1882.

A police officer, suspended from office, by the mayor of a city, under the authority granted by secs. 121 and 211 of the Municipal Code (66 Q. L. 170 and 184), is not entitled to wages during the period of such suspension, notwithstanding the council afterward declared the cause of suspension insufficient.

Error to the District Court of Jefferson County. Defendant in error filed his petition in the Court of Common Pleas of Jefferson County against the city of Steubenville, on appeal from the judgment of a justice of the peace, to recover one hundred and twenty-eight dollars which he claimed to be due him for wages as a policeman between the 30th of April, 1877, and the 4th of July, 1877.

To his petition the city answered as follows: "The said defendant for answer to the petition of the plaintiff says, that on the 6th day of June, A. D. 1876, the plaintiff was appointed by the mayor of said city of Steubenville, by and with the consent of the council of said city, a day policeman, in pursuance of the ordinance of said city, and continued in the discharge of his duties as such until the 8th day of May, A. D. 1877; that his compensation as such policeman was two dollars per day, and that his compensation was fully paid him by the defendant up to and including the 30th day of April, A. D. 1877; that on the 8th day of May, A. D. 1877, the said plaintiff was, by the mayor of said city of Steubenville, in the discharge of his duties as mayor, suspended from his position as policeman, until the next meeting of the council thereafter, remained under such suspension and did not discharge any duty as policeman from the 8th day of May, until the 22d day of May, 1877; that at a regular meeting of the council of said city held on the 22d of May, 1877, the said mayor reported the said suspension of the plaintiff to the council aforesaid, together with his reasons therefore,

and that by a vote of the said council at said meeting, the said reasons so submitted by the said mayor were deemed insufficient; that on the 23d day of May, A. D. 1877, the plaintiff was again by said mayor in the discharge of his duties as mayor, suspended from his position as policeman until the then next regular meeting of the said council and remained under such suspension and discharged none of the duties of policeman from that day until the 6th day of June, 1877, when at a regular meeting of the council aforesaid, the fact of such suspension, together with the reason therefor, was reported by the said mayor, and the said council then, without any trial, by a vote, determined that the reason submitted by the said mayor was insufficient; that afterwards and on the 6th day of June, 1877, the said plaintiff was again by said mayor in the discharge of his duties as mayor, suspended from his position as said policeman, and remained under such suspension, discharging none of the duties of said policeman until the 4th day of July, 1877, at which time the ordinances under which he was appointed, were repealed by said council; that upon the occasion of each of said suspensions, the position of policeman for which plaintiff is claiming compensation, was filled by the appointment of said mayor, until the next regular meeting of said council, and the duties of said position were discharged by the person so appointed, during all the time the plaintiff was so suspended, who is now claiming compensation therefor, but said plaintiff was always ready and willing to perform said services.

"This defendant says it is not indebted to plaintiff in any manner or form, except the sum of nineteen dollars, for which it offered to confess a judgment before the justice of the peace, before whom the case was tried, unless the facts above set forth render it liable, and it prays that it may be discharged from the payment of any part of the claim of the plaintiff, except that $19, aforesaid, and that it may recover its costs made since said offer to confess judgment."

To this answer no reply was interposed. At the trial it was agreed that any sum the plaintiff might recover for services rendered the defendant as a policeman, after the 31st day of May, A. D. 1877, should not in any manner affect the offer of the defendant in writing, to confess judgment for the sum of $19, and the cost made up to the time of the offer, as appears by the transcript of the proceedings had before the justice in this action, and that in case the plaintiff failed to recover more than $19, for services rendered by him from the 1st to the 31st days of May, both inclusive, judgment should be rendered against him for all costs made since said offer to confess judgment.

The plaintiff below thereupon introduced in evidence the ordinance of council authorizing the mayor to appoint policemen, and it was agreed that under this authority the appointment was made. No further testimony was offered, and, the case having been submitted to the court, judgment was rendered in favor of

plaintiff for the full amount of his claim. This judgment was afterward affirmed in the district court, and the latter judgment is now before us for review.

A, H. Battin for plaintiff in error.

John F. Oliver for defendant in error.

LONGWORTH, J.

By the laws in force in the year 1877 Municipal Code, secs. 205, 209, 211 and 121, 66 O. L. 184 and 170), the mayor was authorized to suspend any policeman for " neglect of duty, misconduct or other sufficient cause." until the next regular meeting of council, and to appoint other persons to fill the temporary vacancy caused thereby. Beyond this his power did not extend; the right to remove from office being in the council alone.

Two questions arise for our consideration : 1st. Had the mayor authority to make the suspension complained of, and if so,

2d. What is the effect of such suspension upon the policeman's right to wages during the period of suspension?

It is clear that the mayor's authority to suspend is limited to cases in which there exists sufficient cause for its exercise; it ought not to be exert ed from mere whim or caprice, or for personal or political reasons. In the case before us the answer alleges that the suspension was made by the mayor" in the discharge of his duties as mayor.' No reply is interposed, and the allega

tions of the answer are taken as confessed. In the absence of averment to the contrary we are bound to presume that the facts justified the official action of the mayor, and that the suspension was for sufficient cause. No doctrine is better established than that the acts of an officer, within the scope of his powers and authority, are presumed to be rightly and legally performed until the contrary appears. By the terms of the statute however, (sec. 121), this suspension terminated with the next regular meeting of council, and that body having declined to remove Culp, having declared the reasons for his suspension insufficient, he became thereby reinstated in office. This took place twice as shown in the answer, and on each occasion the mayor, forthwith, suspended him again. It now here appears what was the cause or causes of these suspensions; and if it be true, as claimed, that the mayor had no authority to suspend a second time for a cause which the council had declared insufficient, then we are bound to presume that the subsequent suspensions were for other and different causes. Taking the averments of the answer to be true we must conclude that the plaintiff below was legally suspended from office from May 8th, 1877, to July 4th, 1877, because, if there existed sufficient cause, in fact, for the suspension, the declaration of counsel that such cause did not exist would not have such a retroactive effect as to render it invalid during the time of its continu

ance.

2d. Was he entitled to wages during this period? In Smith v. Mayor of New York, 37 N.

Y. 518, it was held that no claim could be brought for salary or perquisites against a municipal corporation, covering any period when the complainant was not actually in office, for the reason that salary and perquisites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services. To this extent the doctrine of the case cited was announced in Auditor v. Benoist, 20 Mich. 176; Shannon v. Portsmouth, 58 N. H. 183; Attorney General v. Davis, 44 Mo. 131, and is clearly laid down and justified in the later case of Westberg v. Kansas City, 64 Mo. 493. Indeed I have been unable to find any case in which a contrary rule has been upheld. Offices are held, in this country, neither by grant nor contract, nor has any person a vested interest or private right of property in them.

The statute speaks of the suspension creating a vacancy, and provides how that vacancy shall be filled. If the office is vacant it becomes, as to the suspended person, for the time being, as though it did not exist, and as to the public, the person appointed to fill such vacancy is the sole incumbent of the office.

The court below therefore erred in rendering judgment for more than the amount admitted to be due.

Judgment reversed. OKEY, C. J.

All the members of this court present at the decision of this case concur in holding that during the time Culp was suspended, he was not entitled to compensation from the city of Steubenville. The only question determined in this case is stated in the syllabus, and I concur in the decision so made. But whether the mayor may himself, and what power the council may have or may not suspend for any cause satisfactory to in case of suspension, are questions which we have not considered, much less decided.

[This case will appear in 37 O. S.J

STATUTE OF LIMITATIONS-PARTITION -ORDER OF SALE.

SUPREME COURT OF OHIO.

JOSEPH W. Lafferty

v.

WILLIE SHINN.

March 28, 1882.

1. The provision in the code of civil procedure as revised in 1878, by which the period within which a proceeding in error may be commenced is reduced from three to two years (Code of 1853, 523; 75 Ohio L. 808, 20; Rev. Stats. 6723), does not apply to judgments which 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, prescribed in section 523, governs as to those judgments. 2. Where a demurrer to an answer is sustained, but no judgment is rendered or order made which is definitive in its character until a subsequent term, the time within which a proceeding in error may be commenced by the defendant must be computed from the date of the 'final judgment or order.

3. Where an action is brought under the code of civil procedure for the partition of real estate, and the admin

.

istrator of the ancestor from whom the estate descended to the persons asking for partition is made a defendant, and files an answer and cross-petition setting forth that it is necessary to sell such property for the purpose of paying the debts of such ancestor, and asking for an order of sale, such administrator is, upon oper showing, entitled to such order of sale, and statutes of limitations have no application in favor of such heirs. Taylor v. Thorn, 29 Ohio St. 569, followed.

Error to the District Court of Adams County. On June 25th, 1851, Francis Shinn, owner of certain parcels of land in Adams County, died intestate, leaving a widow, to whom dower was assigned in in-lot 35 in West Union. The personal property and the other parcels of real estate were sold by the administrat for the payment of debts, but the estate, upon settlement in 1854, proved to be insolvent, four hundred dollars and upwards remaining due to creditors.

In 1855, Joseph W. Lafferty purchased of the widow her dower interest and went into possession of in-lot 35, taking with him certain machinery, and he was also owner of the larger part of the claims against the estate of Shinn remaining unpaid. He died in 1869, leaving his widow and children in possession of the premises, and the widow of Shinn died the same year.

In 1872, Willie Shinn, grandson of Francis Shinn, filed in the Court of Common Pleas of Adams County, his petition under the code of civil procedure for partition of in-lot 35, in which suit the other heirs of Francis Shinn, his administrator, and the widow and heirs of Joseph W. Lafferty are defendants. The widow and heirs of Lafferty answered, and an answer with crosspetition was filed by the administrator of Francis Shinn, setting forth the facts here stated, and asking that the lots be sold and the proceeds applied to the payment of the remaining indebtedness of the estate of said Shinn, above referred to.

After decision of the cause in the court of common pleas, it was appealed to the district court. In the latter court demurrers were sustained to the answers and cross-petition, and on September 7, 1875, partition was ordered among the heirs of Francis Shinn; but as the lot could not be divided without manifest injury to the owners, the premises were appraised, the value being estimated at four hundred dollars, and Joseph W. Shinn, one of the heirs, elected to take the premises at such valuation, and the same were adjudged to him.

This petition in error was filed in this court on September 3, 1878, by the administrator of Francis Shini. and the widow and heirs of Joseph W. Lafferty.

White, McKnight & White and L. Thompson for plaintiffs in error.

F. D. Bayless and J. M. Wells for defendant in error.

OKEY, C. J.

Two questions are presented, first whether the right to prosecute this petition in error is barred by the statute; and, secondly, whether the court erred in sustaining a demurrer to the answer and cross-petition of the administrator of Francis Shinn.

1. The demurrer to the answer and cross-petition of the administrator of Francis Shinn, was sustained at a term previous to September, 1875, but no final judgment was rendered until the September term, 1875, which was held on the 7th day of that month, and hence in determining whether the proceeding in error is barred, time is to be computed from that day. The petition in error was filed and summons issued September 3d, 1878, which is four days less than three years from the time the order of partition was made. The limitation for proceedings in error, under the civil code of 1 53 (§ 523), was three years; but by the revisin; act of May 14, 1878, which took effect September 1, 1878 (75 Ohio L. 808, § 20, Rev. Stats. § 6723), the period was shortened to two years; and as the act of 1878, was in force when this petition in error was filed, and two years had elapsed since the order complained of had been made, it is insisted that the proceeding in error is barred. In support of this claim the defendants in error rely on Schooner Marinda v. Dowlin, 4 Ohio St. 500. There the judgment sought to be reversed was rendered in February, 1850, when the limitations as to proceedings in error was five years, but the petition in error was not filed until December, 1854, and by the civil code of 1853, the time in which such proceeding could be commenced was fixed at three years, as already stated. The court held that the provision in the code applied, and that the proceeding was barred. No doubt that decision rests on satisfactory ground. That "all courts shall be open, and every person for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law," is ordained in the Constitution (art. 1, sec. 16); and it is not within the power of the legislature to abridge the period within which an existing right may be so asserted as that there shall not remain a reasonable time .within which an action may be commenced. Cooley's Con. L. (4th ed.) 456; Const. art. 2, sec. 28. But in the right so to appeal to the courts, there is not involved a further right to appeal from the judgment of the court to which such applications for redress is made. On the contrary, a right of appeal from such judgment exists only when given by statute (Com. v. Messenger, 4 Mass. 469), and such right of appeal when so given may be taken away by statute, even as to cases pending on appeal. Ex parte, McCardle, 7 Wall. 506. And the same thing is true with us as to proceedings in error. Schooner Marinda v. Dowlin, supra. We would have no hesitation, therefore, in holding that this proceeding in error is barred by the limitation of two years, if the rule declared in that case remained unaffected by other statutory provisions. But the question is whether such rule has not been changed by statute. The act of 1866, which remained in force until 1880, provided as follows: "Whenever a statute ią repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, nor causes of such action, prosecution or proceeding,