Superior Court of Cincinnati.

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The board of administration upon its creation was declared the successor of the board of public improvements.

During the existence of the board of city affairs an act was passed authorizing said board or their successors in office to issue bonds for the improvement of a certain street in said city; but that board failed to exercise such power. Held: That inasmuch as the functions of the various boards remained the same, each of said boards was the successor of the one which preceded it, and the power to issue the bonds passed to the board of administration.

SMITH, J.

This case has been reserved upon a demurrer to the petition.

The petitioner seeks to restrain the Board of Administration of Cincinnati from issuing bonds for the improvement of Montgomery Road in said city, upon the ground that the act of March 25, 1891, which authorized the issuance of such bonds, provided that they should be issued by the Board of City Affairs; and that as the act creating the Board of City Affairs has been declared unconstitutional by the Supreme Court of the state, no power now exists in any board to issue them.

The act authorizing the issue of the bonds is entitled sec. 2293e Revised Statutes. It provides that "In cities of the first grade of the first class the Board of City Affairs of any such city, or their successors in office, shall have authority to cause any of the roads or public highways of said city to be improved with bowlders, according to grade and profile established or to be adopted by the engineer of said city."

After providing for the method of procedure in such cases it provides for the issue of bonds to pay for the work, the sale of the bonds when issued, and the levy of taxes to pay for the same.

The precise language which authorizes the issue of the bonds is as follows:

"In order to provide a fund for carrying on said improvement and paying the cost thereof by the city at large, it shall be lawful for said Board of City Affairs of such city, or their successors in office, to issue bonds in the name of such city, and under the corporate seal thereof, not to exceed the sum of one hundred and fifty thousand dollars."

In the decision of this cause it is important to bear in mind the fact that within the last few years there have been numerous and rapid changes in the personnel, name, number of members and mode of appointment of the administrative board of this city, and that such changes have been the result of legislation, general in its terms, although as a matter of fact, applicable at the time of its passage to the city of Cincinnati alone.

The first board was called the Board of Public Affairs, and the successive boards were named respectively the Board of Public Improvements, the Board of City Affairs, the Board of Public Improvements, and the Board of Administration.

The act creating the Board of City Affairs was declared unconstitutional in The State ex rel. Reemelin et al. v. Smith et al. 48 Ohio St., 211, upon the ground that it was a special law conferring corporate powers. But in the same case in which the Board of City Affairs act was held to be unconstitutional, the court held that the part of the law which repealed the act creating the Board of Public Improvements was an essential part of the repealing law, and therefore fell with the law itself. The Board of City Affairs therefore was immediately succeeded by the old Board of Public Improvements, which latter board was afterwards abolished by the new charter, and succeeded by the Board of Administration.

The act of October 24. 1890, (88 O. L., v. 6) which created a Board of City Affairs in cities of the first grade of the first class, also abolished

131

Hafer v. City of Cincinnati.

the Board of Public Improvements in such cities, and further provided that all the powers theretofore conferred upon the Board of Public Improvements should be conferred upon the Board of City Affairs. The act creating the Board of Administration conferred upon that Board with certain exceptions not necessary to be referred to, all powers "heretofore conferred upon the Board of Public Improvements," and declared that the Board of Administration should be the successor of the Board of Public Improvements. And it is contended by plaintiff that inasmuch as the Board of Administration was declared to be the successor of the Board of Public Improvements and not of the Board of City Affairs, and inasmuch as the power to issue these bonds, was only conferred upon the Board of Affairs, and not upon the Board of Public Improvements, that there is now no power in the Board of Administration to issue them.

In Kirker v. Cincinnati, 48 Ohio St., 507, the acts of the Board of City Affairs were held to be valid, upon the ground that "members of the Board of City Affairs before the law was declared unconstitutional were de facto members of the Administrative Board of Cincinnati, and their acts are valid." In the course of its decision, the court announced the principle which we regard as decisive of this case. Referring to the act creating the Board of City Affairs it said: "The act did not in a legal sense create a new office. The Board of City Affairs was clothed with the same functions as the Board of Public Improvements. If then, as can hardly be questioned, the identity of an office is to be determined by the functions that belong to it, the Board of City Affairs is in law the same as the Board of Public Improvements. For there is nothing in a name by which the essence of things can be changed. The designation, Board of City Affairs, is only another appellation for the administrative functions with which it was clothed, as is also the designation Board of Public Improvements. So that the act of October 24, 1890, held unconstitutional, simply provided a mode of removal of the then members of this adminstrative board and the appointment of new ones. The persons appointed in pursuance of the provisions of the act were for the time being members de facto of this Board; and the acts performed by them as such members before they were ousted by the proceeding in quo warranto, are on principles of public policy as valid, as if they had been performed by the de jure members of the board."

And again, in the same case, referring to the contention that the Board of City Affairs and the Board of Public Improvements were separate boards, the court said:

"It is argued that the separate character of the two boards is recognized in Reemelin et al. v. Mosby, 37 Ohio St., 570. This may seem so from the second clause of the syllabus. But no such question was involved nor considered or necessary to be considered in that case. It is true that the members of the new board are there referred to as members of another board. In one sense this is true, in another it is not; with regard to the personnel a change in the membership makes another board; but with regard to its functions the board remains the same so long as its functions remain the same."

In view of the principle thus announced by the Supreme Court, and the language of the act which authorizes the issue of the bonds, we are of the opinion that the contention of the plaintiffs that the Board of Administration has no power to issue these bonds cannot be successfully maintained.

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The functions of the Board of Public Improvements, the Board of City Affairs, and the Board of Administration have always been substantially the same. It has been the adminstrative board in cities of the first grade of the first class. Each board has been the legal successor of its predecessor, and there has passed to each board the powers and duties of its predecessor.

And whatever doubt there may be as to the one board succeeding to the powers of its predecessor, there can be no such doubt in this case, because the act conferring the power to issue such bonds on the Board of City Affairs distinctly declared that such power was given to the Board of City Affairs and "their successors in office;"'and when we have determined that the Board of Administration is the successor in office of the Board of City Affairs, we have necessarily determined that it has power to issue these bonds.

Nor does the circumstance that the act creating the Board of Administration provided that the board should have all the powers conferred upon the Board of Public Improvements, but failed to provide that it should have all the powers conferred upon the Board of City Affairs, affect the conclusions we have reached. Because inasmuch as the functions of the Board of Administration are the same as the Board of City Affairs, 1st, it necessarily had all the powers conferred on the latter board, unless some exception was made therefrom, and 2nd, the law authorizing the issue of bonds by the Board of City Affairs declared that its successors in office should have the same powers.

We are of the opinion, therefore, that the Board of Administration has power to issue these bonds, and that the demurrer to the petition should be sustained.

MOORE, J. and HUNT, J., concur.

Ramsey Maxwell & Ramsey, for plaintiff.

Theodore Horstman, Corporation Counsel, for defendant.

[Superior Court of Cincinnati, Special Term, 1892.]

MICHAEL COURTAT V. FREDERICK EHRHARDT.

A sub-contractor or material man loses his right to acquire a mechanic's lien against the property upon which a building is constructed by his head contractor when he omits to take any steps to take out a lien, or to notify the owner of the property that there is money due him until the owner has paid over to such head contractor all that is due from the owner to the head contractor. And this is true, even though such head contractor or material man takes such steps and gives such notice within four months from the time of performing his labor or furnishing his material.

SMITH, J.

The disputed questions in this case are presented upon a motion to distribute the proceeds of the sale of real estate which has been sold under the order of this court, Frederick Ehrhardt, who was the owner of the real estate herein, contracted with J. W. Thornley to build him a house.

Thornly proceeded to construct the house, and while it was under way Ehrhardt mortgaged the property to the Active Building & Loan Co. in

order to raise money to pay for the same. He secured from the Building Association $1,500, and turned it over to Thornley in four different payments, the first being made on December 9, 1890, and the last February 3, 1891.

Thornley was engaged in the business of a general contractor, and instead of paying the sub-contractors and material men on this particular work with the money he had received from Ehrhardt he used it generally in his business. The result was that when the house of Ehrhardt was completed the sub-contractors and material men were to a large extent unpaid, and they proceeded ander the statute to protect themselves by taking out mechanic's liens against the real estate.

The question here is whether such efforts upon their part were successful.

They insist that under secs. 3193, 3195, 3196 and sec. 3202, the right is given to sub-contractors and material men the same as to head contractors to secure mechanic's liens against the real estate of the owner; that such right extends to a period of time four months subsequent to the completion of the work, and that the lien dates back to the time of the first item furnished or the first work done as the case may be; and that as they completed all steps in the way of perfecting their liens before the expiration of the four months subsequent to the completion. of the work, and as in each case their work was begun, and the first item of material furnished prior to the making of the mortgage, they are entitled to a priority over the mortgage.

The contention as above stated may be conceded, and yet there is a fact present in this case which is not taken into consideration by the above statement of the law, and which makes it inapplicable to the present case.

By the undisputed testimony in the case that fact is that the owner had paid over to the head contractor all that he owed him before the sub-contractors or material men began to take steps to take out a lien, and before they gave the owner any notice of their claim.

Now, without referring to the specific language of the statutes, it is beyond dispute, I think, that the notice by the sub-contractor or material man to the owner has the effect merely to prevent the owner from making a subsequent payment to the head contractor and requires the owner to make such subsequent payment (which he would, in the absence of such notice, make to the head contractor) to the sub-contractors or material men.

But, if after such notice the owner neglect or refuse to pay the subesquent payments to such sub-contractor or material men, then the latter may file their liens against the property the same as one contracting with the owner may file a lien against the property. Sec. 3202 Rev. Stat.

But if, as in this case, there is no money due from the owner to the head contractor at the time the owner receives notice from the sub-contractor or material man, it necessarily follows that the latter cannot recover anything from the owner or secure a lien upon his property for work and labor for which he has once made payment.

Any other rule would work great hardship to owners of real estate; and would require either that they should wait four months after the house built upon their property is completed, or that they should undertake to find out the names and addresses of all sub-contractors and material men, and to see that they are paid, before they could safely pay to the head

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contractor at the time it is due him that which under his contract he is clearly entitled to demand.

The contention of the sub-contractors and material men therefore would place the owner of property in the following dilemma: he must either violate his contract and render himself liable in damages by waiting four months after he was obliged to make payment under the contract; or he must undertake the impracticable and burdensome task of seeing all the sub-contractors and material men, and of knowing that they were paid before he could safely pay the head contractor.

The sympathy of the law as of a court is naturally to extend to workmen every possible means to secure the rewards of their labor; but there are limits beyond which the courts cannot allow themselves to be carried. Those limits are certainly reached when the effort to assist the workmen is found to intrench upon those rights of others which they have acquired in good faith and for valuable consideration. The decree will be in favor of the Building Association.

Geo. A. Turrill, for Caleb, Lingo & Co.
Louis A. Luebbert, for Michael Courtat.

John E. Bruce, for J. L; and N. L. Pierson.

Gustav R. Werner, for the Active Building Association. Herron, Gatch & Herron, for J. W. Herron and W. H. Fisher, executors of Margaret R. Poor.

139

STREET ASSESSMENTS.

[Hamilton Common Pleas, April Term, 1892.

*JOSEPH KLINE v. CINCINNATI (CITY).

An assessment by the front foot, at an equal rate, can only be made on the property abutting on the part of the street improved; as to other lands which may be assessed under sec. 2264, it must appear that such steps were taken under sec. 2277 as are necessary to equalize the burden on each lot in proportion to the benefit to that lot.

SAYLER, J.

On January 6, 1888, an ordinance was passed by the common council of Cincinnati, declaring its intention to condemn and appropriate to the publc use for street purposes, for the purpose of opening and extending Forest avenue westwardly from Moorman avenue to east line of Madison Pike, and for the purpose of widening Forest avenue from Moorman avenue to Church street, and it thereby condemned and appropriated to such public use for street purposes, for the purpose of opening and extending, and for the purpose of widening Forest avenue, as aforesaid, certain real estate lying west of Church street, and between Church street and Madison Pike; and whereby the solicitor was authorized and instructed to institute the necessary proceedings, and to apply to the court for an inquiry and assessment of the compensation to be paid for such property; and whereby it was ordained that "the amount so found, together with the costs and expenses of said appropriation, and the interest on bonds issued shall be assessed per front foot upon the lots and iands abounding and abutting upon said Forest avenue, opened and extended as aforesaid, between Madison Pike and the intersection of Forest avenue and Woodburn street, the said lots and lands being hereby declared to be the lots and lands which will be specially benefited by such appropriation, according to the laws and ordinances on the subject of assessments."

*This judgment was affirmed by the circuit court; opinion 4 Circ. Dec., 589. The circuit court was affirmed by the Supreme Court; unreported, 52 O. S., 650.