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the year 1901 for the purposes specified, and were paid into
the proper funds of the city :

Feb. 21 — Probate Judge of Hamilton County, for assessn^ients
against property in controversy in case No. 5,037,

Board of Education z^. Foote 1,03130

April 9 — Rheinstrom Bros., in settlement of judgment rendered
in case of City v» Rheinstrom Bros., No. 91,198 Com-
mon Pleas Court 240 00

June 15— Cincinnati, Portsmouth, Big Sandy & Pomeroy Packet
Co., in settlement of two judgments rendered by Jus-
tice Brandt, one for $50.30 and one for $60.19; said
sums were turned over to J. A. Pentland, Wharf-
master no 49

July 9— County Clerk, court costs due city in sundry cases 27 20

Aug. 6 — Sheriff of Hamilton County, for street assessments
against property in controversy in cases No. 119,686,
Price Hill No. 2 B. A. v. Wrede et «/., $11.07; No.
90,350, Bishop V. Bishop el a/., $192.56; and No.

102,1 16, Lovell V, Lovell ^/ a/., $46.41 250 04

Oct. 3 — Judge of Insolvency Court of Hamilton County, court

costs due city in sundry cases 25 60

Oct. 3— John Nichols, attorney, for street assessments against
property in controversy in case No. 6,433 Probate
Court, Nichols, administrator v. Hirschman et aL<,

one check for $259.04 and one for $66 325 04

Oct. 5 — Sheriff of Hamilton County, for street assessments
against property in controversy in case No. 118,853,

Mclntyre v. Aukenbauer ei al 102 36

Oct. II— James M. Brandt, Justice of the Peace, amount of judg-
ment rendered in City v. J. A. J. Smith, said amount
being turned over to J. A. Pentland, Wharf master. .. 2 50

Oct. 16 — County Clerk, court costs due city in sundry cases 10 50

Nov. 14— Same 5 30

Nov. 14 — County Clerk, court costs due Board of Education in

case of Board of Education v. Niles et al i 85

Nov. II — Sheriff of Hamilton County, for street assessments
against property in controversy in case No. 120,466,
Skinner v. Bullock et a/., $100.33; &"<! case No.

'*7f'45» Schoonmaker v. Cook ei al., $600 700 ^^

Nov. 27— County Clerk, court costs due city in sundry cases 3 40

I>ec. 2 — T. E. Fritsche, in settlement of judgment in case of

City r. Fritsche, No. 119,513, and interest 1350

Total $2,84941



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1486 Annual Report



Opinions.

During the year 1901 there were rendered by this oice
to the various boards of the city, to committees, and to indi-
vidual members of such boards and other city offidab, tio
hundred and twenty-seven written opinions, as follows:



Board of Legislation

Board of Public Service

Chief Engineer

Cilj Electrician

Superintendent City Infirmarj

Board of Fire Trustees

Board of Police Commissioners

Police Department

Board of Education

Trustees of the Sinking Fund

Board of Trustees, "Commissioners of Waterworks".

Mayor

Board of Supervisors

Board of Directors of Cincinnati University

Trustees of Firemen's Pension and Relief Fund

Union Board of High Schools

City Decennial Board of Equalization

Trustees of the Cincinnati Southern Railway

Hospital Trustees

City Auditor

City Treasurer

City Clerk

Inspector of Buildings

Wharfmaster '.

Assessor-Comptroller of Waterworks

Superintendent City Schools

Paymaster of Waterworks Department

Superintendent Park Department

County Coroner

Trustees of Sinking Fund (certificates of bonds)



3<



Total »:

Summary of Cases.
On December 31, 1900, there were pending in the varies
courts five hundred and eighty-five cases in which the cin
was a party, distributed as follows :

United Sutes Circuit Court of Appeals '

United Sutes Circuit Court ^

Supreme Court of Ohio ^. *



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Hamilton County Circuit Court 34

Hamilton County Court of Common Pleas 303

Superior Court of Cincinnati, General Term 4

Superior Court of Cincinnati, Special Term 146

Hamilton County Probate Court 17

Hamilton County Insolvency Court (actions to sell real estate) 21
Hamilton County Insolvency Court (actions to enjoin the col-
lection of assessments) 45

Total *. 585

There were commenced during the year 1901 two hun-
dred and eighty-three cases in which the city was a party,
distributed as follows :

United States Circuit Court *. i

Supreme Court of Ohio. 8

Hamilton County Circuit Court 20

Hamilton County Court of Common Pleas 116

Superior Court of Cincinnati, General Term • 12

Superior Court of Cincinnati, Special Term 33

Hamilton County Probate Court 9

Hamilton County Insolvency Court (actions to sell real estate) 1
Hamilton County Insolvency Court (actions to enjoin collec-
tion of assessments) 56

Justices of the Peace 27

Total 283

During the year 1901 there was a final disposition of
three hundred and nine cases, distributed as follows :

United States Circuit Court of Appeals i

United States Circuit Court 3

Supreme Court of Ohio 4

Hamilton. County Circuit Court 30

Hamilton County Court of Common Pleas 133

Superior Court of Cincinnati, General Term 12

Superior Court of Cincinnati, Special Term 47

Hamilton County Probate Court 11

Hamilton County Insolvency Court (actions to sell real estate) 6
Hamilton County Insolvency Court (actions to enjoin the col-
lection of assessments) 35

Justices of the Peace 27

Toul 309



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1488 Annual Report

There were pending on December 31, 1901, in the various
courts five hundred and fifty-nine cases in which the city
was a party, distributed as follows:

United Sute« Circuit Court 4

Supreme Court of Ohio U

Hamilton County Circuit Court ^

Hamilton County Court of Common Pleas 2S1

Superior Court of Cincinnati, General Term 4

Superior Court of Cincinnati, Special Term i34

Hamilton County Probate Court M

Hamilton County Insolvency Court (actions to sell real estate) 16
Hamilton County Insolvency Court (actions to enjoin collec-
tion of assessments) 66

Total S59

Cases Pending December 31, 1900.

To enjoin collection of assessments 152

Injunction suits other than to enjoin collection of assessments. 62

To sell real estate in which the city set up liens for assessments 115
To enforce payments of assessments (brought by contractors oa

behalf of the city) 3S

Damages for injuries to property 60

Damages for injuries to person 4»

For money (other than for injuries to property or person) 5'

To assess compensation for the appropriation of property and

for damages caused in making public improvements 24

To vacate streets, alleys, and other public grounds n

To quiet title to real estate 3

Ejectment 4

Mandamus ', 4

Miscellaneous *3

Total ' 5^5

Cases Commenced during the Year 1901.

To enjoin the collection of assessments / • 95

Injunction suits other than to enjoin collection of assessments. 2S

To sell real estate in which the city set up liens for assessments 36
To enforce payment of assessments (brought by contractors on

behalf of the city) 3

Damages for injuries to property '*>

Damages for injuries to person '4

For money (other than for injuries to property or person) *>

To assess compensation for the appropriation of property- and

for damages caused in making public improvements *7

To vacate streets, alleys, and other public grounds 5

To quiet title to real estate 5



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Mandamus.. 3

To appropriate streets for railroad and other purposes, etc. ... 6

Appeal from Justices of the Peace 4

Miscellaneous 4

Justices of the Peace 27

Total 283

Cases Disposed of during the Year 1901.

To enjoin the collection of assessments 88

Injunction suits other than to enjoin collection of assessments. 28

To sell real estate in which the city set up liens for assessments 56
To enforce payment of assessments (brought by contractors on

behalf of the city) 9

Damages for injuries to property 16

Damages for injuries to person 16

For money (other than for injuries to property or person) 17

To assess compensation for the appropriation of property and

for damages caused in making public improvements 19

To vacate streets, alleys, and other public grounds 8

To quiet title to real estate 5

Mandamus 6

To appropriate streets for railroad and other purposes 4

Appeal from Justices of the Peace 3

Ejectment i

Miscellaneous 6

Justices of the Peace 27

Total 309

Cases Pending December 31, 1901.

To enjoin collection of assessments. 162

Injunction suits other than to enjoin collection of assessments. 45

To sell real estate in which the city set up liens for assessments 106
To enforce payment of assessments (brought by contractors on

behalf of the city) 32

Damages for injuries to property 64

Damages for injuries to person 37

For money (other than for injuries to property or person) .... 49
To assess compensation for the appropriation of property and

for damages caused in making public improvements 19

To vacate streets, alleys, and other public grounds , 9

To quiet title to real estate 6

Mandamus 2

To appropriate streets for railroad and other purposes 4

To marshal liens 2

Ejectment 2

Appeal from Justices of the Peace 12

Miscellaneous 8

Toul 559



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1490 Annual Report



Important Cases now Pending in the Office and
NOT Referred to in Last Report,



Cincinnati & Clrveland R. R. Co. )

I Supreme Court of Ohio.

I No. 7773.

City of Cincinnati.



J



This action involves the right of a railroad company to appropriate
the streets of a municipality when the railroad proposed to be con-
structed is in fact a street railway as distinct from a railroad or com-
mercial railway. The Probate Court held that such appropriation
could not be had. This judgment was aflSrmed by the Common
Pleas and Circuit courts, and the case is now pending in the Supreme
Court.



City of Cincinnati.

Supreme Court of Ohio.
versus ^ ^r «

No. 7784.
William Willen.



City of Cincinnati.

Supreme Court of Ohio.
versus > ^. «

No. 7798.

Calvin M. Fknnkr.



City of Cincinnati ]

I Supreme Court of Ohio.
versus >

No. 7799.



Franklin Alter.



I



These are all taxpayers' suits instituted to enjoin the issue of bonds
under acts which are claimed to be unconstitutional. The Superior
Court in General Term has held all the acts to be special legislation
and unconstitutional. The acts were intended to provide for the con-
struction of the Harrison-avenue Viaduct, the Delta-avenue Viaduct,
and the extension of East Court Street



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Corporation Counsel 1491



City qf Cincinnati, by Charles J. "j

Hunt, Corporation Counsel, . I Superior Court of Cincinnati.

^^^ I No. 51,451.

E. A. Ferguson et a/, J

In pursuance of the act of April 23, 1898, the Trustees of the
Cincinnati Southern Railway on June 29, 1901, entered into an agree-
ment with the Cincinnati, New Orleans & Texas Pacific Railway
Company for the extension of the present lease for an additional sixty
years, and further entered into a supplemental agreement providing
for the issue by the said Trustees of $2,500,000 of bonds to be
expended for terminal facilities; the principal and interest of said
bonds to be paid for in additional rental by the railroad company.
By the terms of the agreements neither were to have any efiect without
the other. Said agreements were approved by the Sinking Fund
Trustees, and in accordance with the act under which they were made
were submitted to a vote of the people at the November, 1901, elec-
tion. Separate votes were provided for upon each agreement Both
agreements were approved. The claim was made that the act under
which said agreements were made was unconstitutional, and that said
agreements were not in accordance with such act. Upon the request
of a taxpayer the above suit was brought to obtain a judicial determi-
nation of such claim. A decision of the Supreme Court of Ohio i&
expected before the court adjourns for the summer.



<4yKEN City Foundry Co. . . . "j Superior Court of Cincinnati,

versus > General Term,

City of Cincinnati J No. 3306.

This action involves the right of the city to assess for street improve-
ments per abutting foot. It was originally brought upon the theory
that such method of assessment was invalid under the decision of the
United States Supreme Court in the case of Norwood v. Baker; but
since that court has limited, if not reversed, the decision in Norwood
V. Baker, in so far as assessments for street improvements are affected,
the question now involved is whether or not the section of the Revised



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1492 Annual Report



Statutes of Ohio permitting assessments per abutting foot is special
legislation, and whether or not, although the property is amply suffideot
to sustain the assessment, and the benefits conferred by the improve-
ment are admitted to be in excess of the assessment, the court will
enjoin the collection of the assessment. The Superior Court in Special
Term refused to enjoin the collection of such assessment.



The Statr of Ohio, for use of the "j Hamilton County Common

Board of Education of Cincinnati, . I Pleas Court

versus [

Frank W. Cottlk, Adm'r, et al. • J No. 121,769 to 121,775.

In the matter of the defalcation of George R. Griffiths, deceased,
as clerk of the Board of Education, in pursuance of the resolatioD
of the Board of Education, the above suits were brought upon sach
bonds as he had given. Such suits are pending, and will be tried at
an early day.



Important Cases Disposed of during the Past Year.

RoBRRTS & Co. • • 1 United States Circuit Court of

versus I Appeals.

Chas. p. Taft et al„ \ No. 935-

Trustees of the Sinking Fund . .J (109 Federal Reporter, S25.;

Mention was made in the last report of this department of the
pendency in the United States Circuit Court of Appeals of the suit
brought by Roberts & Company for specific performance of a contract
by the Sinking Fund Trustees, whereby the trustees had agreed to sell
and deliver to them refunding bonds of the city of Cincinnati in order
to take up the Southern Railway bonds to the amount of $15,610,000.
This contract had been decided by the Supreme Court of Ohio to be
invalid in the Guckenberger case, 60 Ohio State, 353. The Circuit
Court of the United States in the Roberts & Company suit for specific
performance had also held the contract to be beyond the power of the
Trustees, and since the publication of the last annual report of the



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Corporation Counsel ^^^^



Corporation Counsel's office this judgment was affirmed by the Unitep
States Circuit Court of Appeals on July 2, 1901. A full opinion by
Judge SeverenSy concurred in by Judges Lurton and Clark, will be
found in the 109 Federal Reporter, page 835. This finally closes the
Roberts & Company case.



MOLLIK W. FOOTE 1

1 United States Circuit Court.
versus > ^r «

I No. 4989.

City of Cincinnati J

In this case the United States Court adopted the rule laid down in
the case of City of Cincinnati v. Emerson, 57 Ohio State, 1321 holding
that where a suit has been brought to enjoin an assessment, and all the
grounds for claiming such assessment to be illegal are not set up or
urged in the case, the plaintiff can not in any subsequent case avail
himself of any ground of invalidity of such assessment, although not
set up and urged in the original case.



E. A. Ferguson ei al. . . . .1 Supreme Court of Ohio.

versus \ No. 7388.

City OP Cincinnati J (45 Weekly Law Bulletin, 443. )

This cause involved the construction of the act of April 23, 1898,
providing for the extension of the present lease by the Trustees of the
Cincinnati Southern Railway to the Cincinnati, New Orleans & Texas
Pacific Railway, and the issue of $2,500,000 of bonds for terminal
facilities. The Trustees of the railway claimed the right to issue
these bonds without a supplemental agreement with the lessee company,
providing for the pa3rment by the lessee company of the principal and
interest of the bonds. The Superior Court in General Term, in an
opinion (City t^. Ferguson et aL, 8 Nisi Prius, 361), held that these
bonds could not be issued without such agreement with a lessee com-
pany. This judgment was affirmed by the Supreme Court without
report. The question of the constitutionality of the act was not
involved in this case.



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1494 Annual Report



Calvin M. Fbnnbr, a taxpayer, etc. . 1

I Supreme Court of Ohio.
versus >

No. 7473.
City of Cincinnati ei al. . . .J

In this case an injunction was sought against the issue by the
Board of Public Service of $100,000 of "Repavement Bonds,"
under the act of April 26, 1898, upon the ground that the adver-
tisement for bids for such bonds was insufficient; the statute providing
that advertisement should be made "once per week for four consec-
utive weeks, on the same day of the week." The advertisement was
made for the necessary times, but provided for the receipt of bids two
days after the fourth insertion of the advertisement, so that there was
not twenty-eight days between the date of the first insertion of the
advertisement and the day fixed for the receipt of the bids. The
Superior Court in Special Term (8 Ohio Nisi Prius, 340) held such
advertisement insufficient. The General Term (8 N. P. 342) reversed
the judgment of the Special Term. The case was then taken to the
Supreme Court, and, another suit having been brought by Mr. Frank
Dinsmore, attorney (West, a taxpayer v. City et <U.^ No. 51,272
Superior Court), to enjoin the second issue of bonds provided for in
said act upon the ground that the act was unconstitutional, on his
application, he was permitted to be heard in the argument of this
case in the Supreme Court. The court, without passing upon the
question of the sufficiency of the advertisement, held the act to be
unconstitutional.

RoBKRT Allison et al, , , . . | Hamilton County Circuit Court

versus > No. 3401.

State of Ohio ex rel. Fknner. . .J (8 Ohio Nisi Prius, 342.)

This was an action in mandamus instituted by a taxpayer to com-
pel the Board of Public Service to issue $150,000 of bonds for the
improvement of Spring-Grove Avenue under the act of April 20, 1893.
The Board of Public Service had advertised for bids for such bonds
and had awarded them to the highest bidder. The advertisement for
bids described the bonds as '^ payable in Cincinnati." The bonds as
prepared were *• payable in New York." Upon a discovery of this



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Corporation Counsel 1495

fact the Board of Public Service, with the consent of such bidder,
rescinded its action making the award, rejected all bids, and ordered
re-advertisement for bids. This action was then brought The ques-
tion involved was whether or not the Board of Public Service, having
made the award, could rescind its action even with the consent of the
bidder. The Court of Common Pleas (45 Weekly Law Bulletin, 170)
held they had no such right. The Circuit Court reversed the judgment
of the Common Pleas Court and dismissed the petition.

Elizabeth R. Ross . . .1

I Hamilton County Circuit Court
versus >

I No. 3479.

City of Cincinnati J

One of the questions involved in this case was whether or not in
the improvement of a street the city was liable for the destruction
of lateral support in the grading of a new street to the first regularly
established grade. The Court of Common Pleas (No. 119,785) held
that the city was not liable, and that when a street was dedicated such
dedication gave to the city the right to improve said street to a reason-
able grade without any liability for the destruction of lateral support
to adjacent property by reason of making the necessary cuts. This
judgment was affirmed by the Circuit Court.

ClXCINNATI P. B. S. & P. P. Co. . . ^

I Hamilton County Circuit Court
versus > ^r .

No. 3560.

City op Cincinnati J

This is an action for the collection of wharfage fees from the Cin-
cinnati, Portsmouth, Big Sandy & Pomeroy Packet Company for boats
landing at their wharf-boat in front of the Public Landing. It involves
the construction of our wharfage ordinance, and also the question as
to whether or not wharfage fees can be collected from boats lying in
the river below low-water mark, the claim being that the state of Ohio,
and necessarily the city of Cincinnati, had no jurisdiction beyond such
low-water mark ; and further, that when the owners of the wharfboat
pay the wharfage fee for such wharf-boat no further fee could be col-
lected from boats landing at such wharf-boat. The Court of Common



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1496 Annual Report



Pleas gave judgment in favor of the city for the wharfage fees claimed.
The case was then taken to the Circuit Court by petition in error, and
such petition was dismissed. The amount claimed in this case was
$996.96, but wharfage fees to date to the extent of about $4,500
depended upon its determination. Should this case be determined
adversely to the city's claim, it would result in the loss of four fifths
of the entire amoimt of wharfage which is now collected by the city,
and would cost the city thousands of dollars per annum. At this date
it is not believed that the attorneys for the Packet Company will take
the case to the Supreme Court.

City op Cincinnati . ^ Hamilton County Common

versus \ P^«** Court.

Maria R. Roth ei al, . .J No. ii7»48i.

In this case the grade of Observatory Road for part of its width
had been established by user and improveipent, the entire width,
however, was not graded. The city, desiring to make further improve-
ments, changed the grade by ordinance, making a considerable cut in
front of the property of the defendants. The property-owner claimed
that he was entitled to his actual damages — that is, the difference
between the value of his projjerty before and after the improvement—
without regard to the right of the city to grade the street to the former
grade to its full width. The city claimed that the property-owner was
entitled to only such damages as resulted from the change of grade,
and that such damages as would have resulted to the property by
grading the street full width to the former grade could not be included.
The Common Pleas Court sustained the contention of the property-
owner. The Circuit Court adopted the rule contended for by the city.

Atlas National Bank et aL . ,\ Hamilton County Common

versus \ P*«** C^"''*-

City of Cincinnati et al. , .J No. 121,090.

After the decision in the case of Allison etal, v. Sute of Ohio exnL
Fenner (No. 3401 Circuit Court) above referred to, the Board of
Public Service again advertised for bids for $150,000 of ''Avenue



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Corporation Counsel 1497



Pavement Bonds." Several bids were received; all of them, except
one, bid a fixed amount in dollars and cents. One bidder, however
(Feder, Holzman & Company), instead of bidding an aggregate
amount in dollars and cents, bid "103.50." There was no question
as to the amount of bonds, nor the issue for which the bid was made.
$150,000 of bonds at " 103.50" made an aggregate amount in dollars
and cents greater than that of any of the other bids. The Atlas
National Bank represented the next highest bid. It claimed that the
bid of Feder, Holzman & Company was informal and indefinite. The
Board awarded the bonds to Feder, Holzman & Company, and the
Atlas National Bank sought to enjoin the Board from so doing. The
Common Pleas Court held that under the circumstances of the case the
bid was sufficiently definite, or if informal such informality could be
waived by the Board.

City of Cincinnati . . . "I Hamilton County Common

versus \ Pl«a» Court.

Louisa M. Weimkr ei aL , .J No. 120,421.

This is what is known as the Harrison-avenue Viaduct condemna-
tion case. On the 23d day of April, 1898, the legislature passed an
act authorizing the construction of a viaduct and the issue of $250,000
of bonds for such purpose. In accordance with such act this action
was brought for the appropriation of property necessary to be taken
for such viaduct. It consisted of a strip of land located almost its
entire length one hundred feet south of Harrison Avenue, crossing
the C. H. & D. Ry., the B. & O. S. W. Ry., and Mill Creek, and
extending from State Avenue to Barnard Street. The amount claimed
by the property owners was $196,000. After a trial of six weeks the
jury returned a verdict assessing the compensation at $31,955.90.
The property owners are prosecuting error proceedings in the Circuit



Online LibraryCincinnati (Ohio)Annual reports of the officers, boards and departments → online text (page 94 of 96)