Dissenting Opinion, per Jones, J.

company could not be attacked for its default in condemnation proceedings instituted by it, but that the state must intervene. That case was affirmed by the New York court of appeals in 125 N. Y., 434.

The case of Denver Power & Irrigation Co. v. D. & R. G. Rd. Co., 30 Colo., 204, is also a case involving the appropriation of property. After the case had reached the supreme court of Colorado, the attorney general of that state attempted to intervene in the name of the people to determine whether or not the railroad company had forfeited its franchise, but the court held that it had no such right, as that would be equivalent to changing the condemnation proceeding to that of quo warranto.

The case of Tibby Bros. Glass Co. v. Pennsylvania Rd. Co., 219 Pa. St., 430, is peculiarly in point. The Pennsylvania Railroad Company brought a proceeding to condemn the property of the owner. Thereupon the owner filed a bill in equity to restrain the condemnation because of its violation of the act of its incorporation and also of the constitution of that state denying the right of parallel and competing companies to condemn. The supreme court of Pennsylvania held that this could be done only by the state itself, in an action in quo warranto, and the language of the judge delivering the opinion is pertinent, apt and buttressed by legal logic denying the right of the landowner to invoke the jurisdiction of the court in a condemnation proceeding. The authority claimed by the landowner in that case was conferred by an act which provided that at the instance of private par

Dissenting Opinion, per JONES, J.

ties an inquiry might be made into the existence and extent of franchises conferred by corporate charters, and especially that of one railroad controlling a parallel competing line, which issue should be, upon demand, submitted to a jury; and the court said that if this were permitted to be done by individual landowners all along the line the confusion resulting therefrom would be "worse confounded," in that separate local courts in the various actions might come to different conclusions which would result in one case protecting the land from condemnation and the other not; that all along the line of the Pennsylvania Railroad Company at certain points the contingency might arise by which a finding would result that the railroad company possessed the right of eminent domain, while in others it did not, and that the only method by which the question could be raised would be in a single proceeding by the commonwealth in order to determine once for all whether the condemning railway had the right to condemn from one end of the state to the other. So also, in the case of Brown v. Calumet River Ry. Co., 125 Ill., 600, a condemnation proceeding, the court held in the syllabus:

"In a proceeding by a railway company to obtain a right of way, the county court has no jurisdiction to determine whether or not the petitioner is a bona fide corporation, within the meaning and spirit of the law. That can be done only on quo warranto."

The same principle is supported by the supreme court of Illinois in the case of Western Union Telegraph Co. v. Louisville & N. Rd. Co., decided October 27, 1915, and reported in 110 N. E. Rep., 583.

Opinion, per JOHNSON, J.

These are but a few of the cases in which it has been held that questions of the character attempted to be raised by this record cannot be raised in proceedings to condemn before the local courts.

On the other hand counsel for plaintiff in error have not cited a single case where the authorities support the view that testimony of the character offered by the landowner in this case is competent in a proceeding to condemn, especially where the corporation has become one de jure, by its organization and selection of directors, under the authority of Powers v. The Hazelton & Letonia Ry. Co. and other cases cited, supra. Therefore the judgment of the lower courts should have been affirmed.

THE COUNTRY HOME CO. v. The Cleveland, BedFORD & GEAUGA LAKE TRACTION CO.

ERROR to the Court of Appeals of Cuyahoga county.

Messrs. Holding, Masten, Duncan & Leckie, for plaintiff in error.

Messrs. Ford, Snyder & Tilden, for defendant in

error.

JOHNSON, J. This was a proceeding in the insolvency court of Cuyahoga county to appropriate certain property owned by the plaintiff in error for interurban railway purposes.

Opinion Per Curiam.

The same questions of law are raised by the pleadings in this case and decided as in The Parkside Cemetery Association against the same defendant in error, decided this day.

For the reasons given in the opinion in that case the judgments of the courts below will be reversed and the cause remanded to the insolvency court for further proceedings.

Judgments reversed.

NICHOLS, C. J., DONAHUE, WANAMAKER and MATTHIAS, JJ., concur.

IN RE CONTEST OF ELECTION OF FREMONT TARR: TARR V. PRIEST.

Elections-Contests - Opening of ballots - Evidence of errors prerequisite, when-Section 5090-1, General Code (103 O. L., 265).

(No. 14946- Decided December 7, 1915.)

ERROR to the Court of Appeals of Jefferson county.

Mr. E. E. Erskine and Mr. Charles A. Vail, for plaintiff in error.

Mr. W. C. Brown and Mr. J. C. Bigger, for defendant in error.

BY THE COURT. This was an election contest originating in the court of common pleas of Jefferson county in which James M. Priest, who was a

Opinion Per Curiam.

candidate for the office of county commissioner of said county at the general election in November, 1914, gave notice of appeal from the declaration of the board of deputy state supervisors of elections declaring Fremont Tarr elected to that office, Tarr, as determined by the board, having received 4,973 votes and Priest 4,970 votes. In his notice of appeal the contestor claimed, "That in the precinct of Warren, votes were counted for the said Fremont Tarr which should have been counted for the undersigned, James Priest; that the said James Priest, in said precinct, received more votes than were counted to his credit, and that in said precinct, the said Fremont Tarr did not receive as many votes as were counted to his credit." The same claim, in the identical language, was made as to each of the other sixty-seven voting precincts of the county, and is set forth in as many separate paragraphs in the notice. These were the grounds upon which the contest was made. Upon submission of the matter in the court of common pleas the contestor moved that all of the ballots cast at the election be brought into court, opened and recounted, and all errors in counting the same, pertaining to the contestor and contestee as candidates for the office of county commissioner, be corrected according to law.

The testimony of one of the clerks of election in Warren precinct tended to show that there had been an error in the counting of two votes for county commissioner as between the contestor and contestee in that precinct, and upon examination of the talley-sheets and abstract of votes it appeared