Madison County.

WILSON, J.

This is an action brought to enjoin the assessment made by the auditor under favor of Sec. 3 of the act found in 95 O. L. 155, Lan. R. L. 7834 (B. 4584-3), for cleaning out what is known as the Pfifer county ditch, and comes into this court on appeal.

If the law under which it is sought to lay the assessment should be held constitutional we would not grant the relief prayed for upon the facts disclosed in the evidence. The extent of the improvement and the consequent amount of the assessment must, in the nature of things, be left largely to the judgment of the authorities who are upon the ground and act with better information than a court can obtain from cold type and oral evidence. The equity powers of the court should be slow to move under such circumstances.

But we have not been able to reconcile our views of the law with the constitutionality of the statute under which it is sought to make the improvement. It is obvious, we think, that the provisions of Sec. 3 of the statute under review do not refer the question of the necessity for cleaning out, to any officer or board of the county. It is said by counsel in argument that "the necessity" is implied as a prerequisite to invoking the operation of the law, the language being, "Provided, however, that when a ditch needs to be cleaned out," etc. But this language is the same as that of Sec. 2 of said act (Lan. R. L. 7833; B. 4584-2) wherein it is provided that the commissioners shall determine the necessity before the improvement is ordered, and nothing was left to be implied in that section.

Again it is argued the county surveyor is authorized to determine the necessity, because he is ordered "to examine the ditch." His duties are similarly expressed in Sec. 4 of said act (Lan. R. L. 7835; R. S. 4584-4) when he is proceeding in pursuance to the provisions of Sec. 2 to carry out the order of the commissioners after they have determined the necessity. There is nothing in the language of Sec. 3 to inform him that his authority is different or greater than it is under the other sections, and he would look upon the necessity as predetermined and act accordingly.

Nor can it be inferred that the auditor has power to determine the necessity for the improvement under the authority to pass upon the surveyor's report of the apportionment of the assessment and make such changes therein as he may deem right and proper.

The apportionment of the assessment and not the necessity for the improvement is the matter he considers. Here again it is assumed that

Crawford v. Taylor.

"the necessity" is predetermined. The authority to make changes and approve does not imply the power to annul the assessment. When an officer's power is purely statutory the courts will be slow to raise it by implication.

It would be a forced construction to say that the power to determine the necessity is to be inferred from the language in Sec. 3 when it is clearly expressed as otherwise bestowed in the sections immediately preceding and following in the same act.

In our opinion the necessity for cleaning out is determined by the legislature to be whenever any resident landowner of any tract of land which was assessed for the construction may make a sworn statement to the county auditor in writing setting forth the necessity. It is a mandatory improvement act which does not submit the question of the public necessity to any authorized public board or officer. Such an act is administrative, not legislative, in its character and unconstitutional because not within the province of the legislature.

It is apparent also that the remedy provided in Sec. 3 is materially different from that provided to the same end in Secs. 2 and 4 of the act. Under the last named sections the applicant for relief is required to give bond to secure the costs and to have the board of county commissioners find the improvement necessary. In the event the board does not so find, he is adjudged to pay the costs. No such requirements are made of the applicant under Sec. 3. The distinction is not made to depend upon residence as a reason for classification. A resident landowner may apply under either section. A nonresident may not apply under Sec. 3, but whether the resident landowner applies under the one or the other must depend largely upon his scrupulosity. If he is willing to make oath that it is necessary and invoke the power to assess his neighbors upon his own information and judgment he may have the ditch cleaned out under Sec. 3. If he has scruples about making the sworn statement and desires to have the county commissioners investigate and pass upon the question affecting himself and others he must make application under Sec. 2 and as a penalty for his modesty secure the costs. This would appear to be unequal legislation, an unjust discrimination against the fair minded citizen and violative of the bill of rights.

So much of the statute as is included in Sec. 3 of the act is held to be unconstitutional and void, and the proceeding to levy an assessment under its provisions will be enjoined. A decree may be entered accordingly, the plaintiff to recover her costs.

Dustin and Sullivan, JJ., concur.

Franklin County.

CHARGE TO JURY-RAILROADS-STREETS.

[Franklin (2nd) Circuit Court, March 25, 1905.]

Dustin, Walters and Sullivan, JJ.

(Judge Walters of the Fourth Circuit sitting in place of Judge Wilson.) CLEVELAND, C. C. & ST. L. RY. v. CARRIE L. SIVEY.

1. REQUIRING JURY TO BE "SATISFIED" ON ANY QUESTION IS ERRONEOUS.

A charge to the jury in a civil action which requires the jury to be "satisfied" upon any question in issue, is erroneous.

2. FAILURE TO REPAIR GONG AT PUBLIC CROSSING NOT NEGLIGENCE, WHEN. Where the placing of a gong at a public crossing to warn travelers of the approach of trains, was not required by statute, or an order of the railway commissioner, a positive charge to the jury, in an action against the company, that the failure of the company to keep in repair the gong which it had placed at the crossing was negligence, is erroneous. It was proper only to consider the condition of the gong with reference to the company's duty to exercise ordinary care under all the circumstances. 8. CHARGE INFERRING THAT COUNTRY HIGHWAY WAS A STREET IS ERRONEOUS. Where the evidence indisputably shows that the crossing where the accident, which is the basis of an action for negligence against a railroad company, happened, is located outside of a municipal corporation, a charge to the jury which implies that the highway was a city street, anu not a country road, and thereby not governed by the same rules of law as the latter, is erroneous.

4. INTERVENING OBJECTS BREAKING SOUND, ETC., PROPER SUBJECTS OF INQUIRY IN DETERMINING WHETHER TRAVELER WAS NEGLIGENT IN APPROACHING CROSSING,

ETC.

The difficulty of hearing a train approaching a public crossing by reason of intervening objects calculated to break the sound, and the noise of decedent's wagon on the paved street, are proper subjects to be considered by the jury as bearing upon the question whether or not decedent, in the exercise of ordinary care, should have stopped to listen.

5. ORDINARY CARE MUST BE EXERCISED BY TRAVELER ALTHOUGH RAILROAD COMPANY NEGLIGENT AT CROSSING.

The failure of a railroad company to keep a gong at a public crossing in repair so as to give warning of approaching trains, does not of itself, in all cases, relieve the traveler from exercising ordinary care at the crossing.

6. INSTRUCTING JURY THAT SPECIAL FINDINGS MUST BE CONSISTENT WITH GENERAL VERDICT, ETC., ERRONEOUS.

An instruction warning the jury that its special findings of fact must be consistent with the general verdict, or the latter would be set aside, is improper.

ERROR to Franklin common pleas court.

J. F. Wilson, for plaintiff in error:

Weight of the evidence, upon question of negligence. Lake Shore & M. S. Ry. v. Yokers, 5 Circ. Dec. 599 (12 R. 499); Abbott, Trial Ev. (2 ed.) 736; Cleveland Provision Co. v. Limmermaier, 4 Circ. Dec.

Railway v. Sivey.

240 (8 R. 701); Columbia & P. S. Ry. v. Hawthorne, 144 U. S. 202 [12 Sup. Ct. Rep. 591; 36 L. Ed. 405]; New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Erben v. Lorrillard, 19 N. Y. 299; Henkle v. McClure, 32 Ohio St. 202; Lake Shore & M. S. Ry. v. Gaffney, 6 Circ. Dec. 94 (9 R. 32).

To preclude a right to recover, direct testimony of failure to look or listen was not necessary. The circumstances were conclusive of decedent's negligence. Balt. & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816]; New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Clev. C. C. & Ind. Ry. v. Elliott, 28 Ohio St. 340; Bellefontaine Ry. v.Snyder, 24 Ohio St. 670; Norfolk & W. Ry. v. Tea Co. 26 O. C. C. 547; Lake Shore & M. S. Ry. v. Reynolds, 13-23 O. C. C. 199; P. C. & St. L. Ry. v. Peters, 1 Circ. Dec. 20 (1 R. 34); Barr v. Chapman, 11 Dec. Re. 862 (30 Bull. 264); Fenger v. Fenger, 8 Dec. Re, 407 (7 Bull. 304); Conkling v. Railway, 63 N. J. Law 338 [43 Atl. Rep. 666]; Pennsylvania Ry. v. Righter, 42 N. J. Law (13 Vroom) 180; Runyon v. Railway, 25 N. J. Law (1 Dutch.) 556; Gorton v. Railway, 45 N. Y. 660; McCall v. Railway, 54 N. Y. 642; 4 Am. & Eng. Enc. Law (1 ed.) 74; 3 Elliott, Railroads 1171; Brinker v. Railway, 121 Mich. 283 [80 N. W. Rep. 28]; Bellefontaine Ry. v. Hunter, 33 Ind. 335 [5 Am. Rep. 201]; New York, C. & St. L. v. Swartout, 6 Circ. Dec. 768 (14 R. 582); Cadwallader v. Railway, 128 Ind. 518 [27 N. E. Rep. 161]; Chicago, R. I. & Pac. Ry. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; Schofield v. Railway, 114 U. S. 615 [5 Sup. Ct. Rep. 1125; 29 L. Ed. 224]; Railway v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]; 1 Thomas, Negligence 751; Tully v. Railway, 134 Mass. 499; Machader v. Williams, 54 Ohio St. 344 [43 N. E. Rep. 324]; Lake Shore & M. S. Ry. v. Gaffney, 6 Circ. Dec. 94 (9 R. 32); 2 Thomas, Negligence 1095; Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613]; Cleveland City Ry. v. Osborn, 66 Ohio St. 45 [63 N. E. Rep. 604].

Charges given for plaintiff before argument. P. C. & St. L. Ry. v. Peters, 1 Circ. Dec. 20 (1 R. 34); Chicago, R. I. & Pac. Ry. v. Houston, 95 U. S. 697 [24 L. Ed. 542]; McCully v. Clarke, 40 Pa. St. 399 [80 Am. Dec. 584].

Refusals to charge. Clev. C. C. & Ind. Ry. v. Elliott, 28 Ohio St. 340; New York, C. & St. L. Ry. v. Swartout, 6 Circ. Dec. 768 (14 R. 582); Lake Shore & M. S. Ry. v. Reynolds, 13-23 O. C. C. 199; New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Pennsylvania Co. v. Morel, 40 Ohio St. 338; Chicago, R. I. & Pac. Ry. v. Houston, 95 U. S. 697 [24 L. Ed. 5421; Ernst v. Railway, 39 N. Y. 61 [100 Am. Dec. 405], which is approved in New York, C. & St. L. Ry. v.

Franklin County.

Swartout, 6 Circ. Dec. 768 (14 R. 585); Wheeling & L. E. Ry. v. Suhrwiar, 12 Circ. Dec. 809 (22 R. 560); Grand 1runk Ry. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep. 679; 36 L. Ed. 485]; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; Helman v. Railway, 58 Ohio St. 400 [50 N. E. Rep. 986; 41 L. R. A. 860]; Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89]; Lake Shore & M. S. Ry. v. Reynolds, 11 Circ. Dec. 701 (21 R. 402); Monroeville (Vil.) v. Root, 54 Ohio St. 523 [44 N. E. Rep. 237].

Exceptions to general charge. Russell v. Russell, 3 Circ. Dec. 460 (6 R. 294); Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350; 4 Am. St. Rep. 548]; Mears v. Mears, 15 Ohio St. 90; Banning v. Banning, 12 Ohio St. 437; Behrens v. Behrens, 47 Ohio St. 323 [25 N. E. Rep. 209; 21 Am. St. Rep. 820]; Kelch v. State, 55 Ohio St. 146 [45 N. E. Rep. 6; 39 L. R. A. 737; 60 Am. St. Rep. 680]; Effinger v. State, 6 Circ. Dec. 417 (9 R. 376); Jungnitsch v. Iron Co. 105 Mich. 270 [63 N. W. Rep. 296]; Clev. C. & C. Ry. v. Bartrom, 11 Ohio St. 457.

Refusals to submit to jury, questions propounded by defendant. New York, C. & St. L. Ry. v. Kistler, 9 Circ. Dec. 277 (16 R. 316). Excessive verdict. Cincinnati St. Ry. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300].

G. H. Stewart, for defendant in error.

DUSTIN, J.

This court regards the doctrine of Russell v. Russell, 3 Circ. Dec. 460 (6 R. 294), later affirmed by the Supreme Court, as sound, and hence has been accustomed to hold, whenever the point has been raised, that a charge in a civil case requiring the jury to be "satisfied" upon any question, is error. We think therefore that the court in this case erred in its charge where it says:

"To establish this, (meaning contributory negligence), the burden is upon the defendant, and if the defendant has not satisfied you that the deceased himself was guilty of contributory negligence, you must resolve this claim in favor of the plaintiff.”

See also, Kelch v. State, 55 Ohio St. 146, 152, 153 [45 N. E. Rep. 6; 39 L. R. A. 737; 60 Am. St. Rep. 680].

Again we think there was error in giving special charge 3, requested by plaintiff below, which reads:

"If you find from the evidence that the defendant established and erected an electric gong at this crossing, I charge you that it was the duty of the defendant to keep the same in repair and a failure to do so, whereby said gong did not sound when the train which caused the death