Purchase of Liquor-Railroads.
The resident of a "dry" county may, under the local option law
(99 O. L., 35), himself or by an agent, purchase intoxicating
liquor in a "wet" county and bring it into the county in which
he lives, to be used therein by him as a beverage. See State
v. Lynch, 336, and State v. Wirick, 343.
A custom which would relieve a purchaser from obligation
imposed by doctrine of caveat emptor, is contrary to law. See
Thomas v. Trust Co., 432.
1. Common law rule forbidding appointing officer-To forestall
appointing rights of his successor-The well settled rule of the
common law forbids that an officer clothed with power of
appointment to a public office shall forestall the rights and
prerogative of his successor by making a prospective appoint-
ment to fill an anticipated vacancy in an office the term of which
cannot begin until after his own term and power to appoint
have expired. State v. Sullivan, 79.
2. Appointing power of governor-Act of April 2, 1906 (98
O. L., 342), creating railroad commission-This established rule
of the common law is neither abrogated nor modified by the
provisions of Section 1 of the act of the general assembly of
the state of Ohio, passed April 2, 1906 (98 O. L., 342), creating
a railroad commission, and requiring the governor to appoint
thereto “in January, 1909, and biennially thereafter, one com-
missioner for the term of six years from the first Monday in
February of such year." Ib.
3. Statutes to be construed with reference to rules of common
law, when Statutes are to be read and construed in the light
of and with reference to the rules and principles of the common
law in force at the time of their enactment, and in giving
construction to a statute the legislature will not be presumed
or held to have intended a repeal of the settled rules of
the common law unless the language employed by it clearly
expresses or imports such intention. Ib.
1. A commor carrier, owner of its tracks-Liable to passenger
injured in collision-Between its car and car of another com-
pany-Admitted to joint use of track-A common carrier, being
the owner of its tracks, is liable to its passenger for an injury
received in a collision between its car and the car of another
carrying company which it admits to the joint use of its track,
though the collision may result wholly from the negligence of
the latter company. Light Co. v. Montgomery, 426.
2. Liability of each company-May be enforced in same action,
when-In such case the liability of the owning company for the
breach of its contract of carriage, and that of the other for its
negligence may be enforced in the same action, and the facts
should be so determined by interrogatories or special findings
that liability for compensation to the injured passenger may ulti-
mately rest upon the company whose negligence occasioned the
injury. Ib.
Railroad companies must construct fences-Section 3324, Revised
Statutes-Railroad liability limited to own right of way-The
liability of a railroad company, under Section 3324, Revised
Statutes, to respond in damages for injuries to stock in con-
sequence of its neglect to construct and maintain a sufficient
fence on each side of its road, is limited to loss or injuries
occurring upon its own right of way. Railway Co. v. Phillips,
453.
In an action for ejectment from a street car, evidence that pas-
sengers left the car on account of plaintiff and companions, and
complained to the conductor, whether within the hearing of
plaintiff or not, is competent, when. See Power Co. v. Matheny,
204.
A justice of the peace may acquire jurisdiction in attachment
against a foreign railroad corporation by levy and publication
of notice as provided in Section 6496, Revised Statutes, Section
6478 not applying to such proceedings. See Railway Co. v.
Baum, 386.
Where, in an action for compensation for land wrongfully taken
by a municipality and devoted to a public use by constructing
a sewer thereon, it appears that the owners ratified the wrongful
possession, the case is one to recover the value of the land and
not for condemnation. See State v. Harrison, 98.
Where, in an action for compensation for land wrongfully taken
by a municipality, it appears that the owners tendered a deed
and offered to allow, upon judgment for value of the land, an
order that they should convey title, the case is one to recover
the value of land and not for condemnation within the meaning
of Section 1536-293, Revised Statutes; and when such judgment
is final, under Section 1536-302, Revised Statutes, it is the duty
of trustees of sinking fund to pay, and on refusal to do so
mandamus will lie. See State v. Harrison, 98.
Section 7076, Revised Statutes, makes it an offense to obtain by
false pretense, with intent to defraud, title to real estate situate
in this state. See State v. Toney, 130.
Lands devised to, and rejected by, a refractory donee amenable
to the equitable doctrine of election, do not become intestate
property, but they pass under the will to the disappointed donee
to such an extent as may be necessary to compensate him. See
Bebout v. Quick, 196.
The half-brothers and half-sisters of the ancestor are included in
words "brothers and sisters of such ancestors," in subdivision 5,
of Section 4158, Revised Statutes, prescribing order of descent
of ancestral real estate. (Cliver v. Sanders, 8 Ohio St., 501,
approved and followed.) See Stockton v. Frazier, 227.
Section 5537, Revised Statutes, makes it necessary that the return
of an order of attachment shall describe the property so as to
identify it, etc.-The requirements of Section 5528, Revised
Statutes, are mandatory and a return of an order of attachment
which fails to show compliance therewith, and which fails to
describe the real property levied upon so as to identify it, is
insufficient. Description, to-wit: "Building and land, $800.00,
lot about 25 ft. by 75 ft.," is insufficient. See Green v. Coit, 280.
Property acquired after execution of a will does not pass there-
under unless testator's intention that the property should so
pass clearly and manifestly appears on the face of the will, as
required by Section 5969, Revised Statutes. See Wright v.
Masters, 304.
Since the adoption of the municipal code, October 22, 1902 (96
O. L., 20), municipalities are authorized to assess the costs and
expenses of street improvements upon an entire lengthwise
frontage of a lot abutting upon the improvement. See Village
v. Stoecklein, 332.
Under Section 4200, Revised Statutes, the issue of a donee in
tail, during the life of the latter, has no estate in lands entailed
which he can alienate. See Dungan v. Kline, 371.
Receipt of Consideration-Regulation of Brokers.
RECEIPT OF CONSIDERATION—
The consideration clause in a deed is conclusive in order to give
effect to the operative words, but for every other purpose it is
only prima facie evidence of the amount, kind and receipt of
the consideration. See Shehy v. Cunningham, 289.
A bill of exceptions certified to contain all the evidence, allowed
and signed by trial judge, is in the record. See State v.
Wirick, 343.
Where, in an action for compensation for land wrongfully taken
by a municipality, it appears that the owners tendered a deed
and offered to allow, upon judgment for the value of the
land, an order that they should convey title, the case is one to
recover value of land and not for condemnation. See State
v. Harrison, 98.
Lands devised to, and rejected by, a refractory donee amenable
to equitable doctrine of election, do not become intestate
property, but they pass under the will to the disappointed donee
to such an extent as may be necessary to compensate him. See
Bebout v. Quick, 196.
REGULATION OF BROKERS-
The state may license and regulate chattel mortgage and salary
loan brokers and delegate authority to do so to municipalities—
An ordinance, under Section 1536-100, Revised Statutes, to
license and regulate chattel mortgage and salary loan brokers,
requiring to be filed with the auditor of the city a detailed
record of every loan, to remain there open to inspection, is not
violative of Section 14 of the Bill of Rights and is not unreason-
able. See Sanning v. City, 142.
Section 1536-100, Revised Statutes, authorizing the regulation of
chattel mortgage and salary loan brokers, does not authorize
the exaction of a license from persons engaged, but not as
brokers, in loaning money upon mortgages on personal property.
See French v. City, 160.
Rejection by Donee-Removal of Case,
A donee amenable to the equitable doctrine of election, who in
his pleading claims both under and against the instrument of
donation, does not thereby elect or waive the right to elect-
Lands devised to, and rejected by, a refractory donee, do not
become intestate property, but they pass under the will to the
disappointed donee to a sufficient extent to compensate him.
See Bebout v. Quick, 196.
Where a board of public service advertises for and receives bids
for street improvements, and adopts a resolution finding a
bidder the lowest and best, then rescinds the resolution and
orders another advertisement, there is no abuse of discretion-
Mandamus will not lie to compel the board of public service
to enter into a written contract with such bidder-In such case
the resolution does not constitute a contract-Section 1536-679,
Revised Statutes, construed. See State v. Board, 218.
Common law rule that any agreement between the holder of a
note and the principal, varying the contract of the surety, etc.,
will release the latter, is abrogated by Section 3175j, Revised
Statutes-Sections 31750 and 3175p, Revised Statutes, relating
to alterations, do not apply to a contract to a holder and the
principal maker for extension of time. See Richards v. Bank
Co., 348.
An order of the court of common pleas granting a temporary
injunction in a suit in which the ultimate relief sought is an
injunction, cannot be reviewed on petition in error.
See May
Co. v. Bailey Co., 471.
The fees of the sheriff of a county to which, under Section 7264,
Revised Statutes, a criminal prosecution has been removed, for
services in such case, should be allowed and paid by the com-
missioners of county in which the indictment was found. See
Thurlow v. Board, 447.
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