Village of St. Mary v. Lake Erie & W.R. Co.
| Decision Date | 25 April 1899 |
| Citation | 60 Ohio St. 136,53 N.E. 795 |
| Court | Ohio Supreme Court |
| Parties | VILLAGE OF ST. MART v. LAKE ERIE & W. R. CO. |
Error to circuit court, Auglaize county.
Action by the village of St. Mary against the Lake Erie & Western Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.
On the 11th day of August, 1896, the plaintiff, the village of St Mary, commenced its action against the Lake Erie & Western Railroad Company by filing a petition in the court of common pleas, in which it was alleged, in substance, that the defendant is a railroad corporation operating a line of railroad through Auglaize county, a part of which is located in said village, and that such line of railroad crosses certain streets therein, the names of which are given; that the company is the owner of real estate, and a leasehold interest in real estate, in said county; that on the 9th day of February, 1895, the council of St. Mary duly passed an ordinance requiring the defendant company to light its line of railway, at the points where the same crosses the above-mentioned streets, with electric lights, said ordinance specifying the manner in which the railway should be lighted and the number and style of lamps, and the times such lamps should be kept burning in each 24 hours. Said ordinance was duly published. On the 9th day of February, 1896, a copy of the ordinance, and notice of its contents and requirements, were served upon the defendant in form and manner and in conformity to law, and more than 20 days prior to the imposing of any penalty for default. The company neglected for more than 20 days after the service of such notice to do such lighting, and plaintiff caused such lighting to be done, and on the 17th day of March, 1896, duly passed an ordinance assessing the expense of such lighting on the real property and leasehold interest of the company in Auglaize county. Said ordinance assessed the expense of lighting in the following manner: $42 April 1, 1896; $42 on the 1st day of each and every month thereafter until the 1st day of April, 1897; and, in default of the payment of any or all of such installments when the same shall become due, that they shall be collected as provided by law. On the 1st day of April, 1896, the sum of $42 became due and payable, and a like sum became due and payable on the 1st days of May, June, July, and August of said year, and none of said amounts have been paid. Plaintiff demands judgment against the defendant for $210, interest, penalty, and costs, and prays that the same may be declared a lien upon the real estate and leasehold interest of defendant, and for other and further relief. By its answer the company admitted that the plaintiff is a municipal corporation, and the defendant a railroad corporation, and that as such it is the owner of and operating a line of railroad through Auglaize county, a part of which is located in the village of St. Mary; that it is the owner of real estate, and leasehold interest in real estate, in Auglaize county; and that the plaintiff caused the streets alleged to be crossed by defendant's railway to be lighted by and with electric lights,-and denied the other allegations of the petition. At the trial of the case a jury was waived, and the issues joined were tried to the court. Plaintiff gave in evidence the ordinances referred to in the petition; also, evidence showing service upon the company as alleged in the petition; also, evidence showing the number, location, and character of the lights furnished and the lighting done by the procurement of the village at points where the streets named in the petition are intersected by the line of railway of the defendant. No evidence was given or offered by the defendant. The court thereupon rendered judgment in favor of the plaintiff and against the defendant for the sum of $154.37. Motion for a new trial by the defendant being overruled, a bill of exceptions containing all of the evidence was taken. On error, the circuit court reversed the judgment of the court of common pleas, and rendered final judgment against the village, dismissing its petition. This proceeding is to reverse the judgment of the circuit court and affirm the judgment of the common pleas.
1. An ordinance requiring the lighting of a railway line by a railroad company, enacted by virtue of the authority given by Rev. St. §§ 2492-2499, being one which relates to the comfort, safety, convenience, and good order of the people of the municipality, should receive a reasonable construction. The instrument should be reasonably certain in its requirements, but no particular form of words is necessary. It will not be held defective, as failing to fix a specified time for the performance of such requirement by the company, if its language, taking the ordinance all together, is sufficiently definite to inform the company that such lighting is required to be done, how it is to be done, and when it is to be done.
2. A requirement that the company proceed to do the lighting by electricity within 20 days after notice of the passage of the ordinance is not necessarily unreasonable.
3. Where an assessing ordinance fixing the expense of such lighting has been enacted in conformity with section 2498, such ordinance, of itself, furnishes prima facie evidence of the expense of the lighting.
John T. Schoonover, for plaintiff in error.
W. E. Hackedorn, John B. Cockrum, F. C. Layton and C. A. Stueve, for defe...
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