
    The Village of St. Marys v. The Lake Erie and Western Railroad Company.
    
      Lighting of railway lingjby railroad-company — Construction of ordinance requiring lighting — Assessment of expense on railway company — Sections 2492 to 2499 — Municipal law.
    
    1. An ordinance requiring the lighting of a railway line by a railroad company, enacted by virtue of the authority given by Revised Statutes, sections 2492 to 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 twenty 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.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Auglaize county.
    On the eleventh day of August, 1896, the plaintiff, the Village of St. Marys, 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 ninth day of February, 1895, the council of St. Marys 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 twenty-four hours. Said ordinance was duly published.
    On the ninth day of February, 1896, a copy of the ordinance and notice of its contents and requirements was served upon the defendant in form and manner and in conformity to law, and more than twenty days prior to the imposing of any penalty for default. The Company neglected for more than twenty days after the service of such notice to do such lighting, and plaintiff caused such lighting to be done, and on the seventeenth 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 assessing the expense of lighting in the following manner: $42, April 1, 1896, $42, on the first day of each and every month thereafter until the first 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 first day of April, 1896, the sum of $42 became due and payable, and a like sum became due and payable on the first 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. Marys; 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 gaye iñ 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 theD 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 á 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.
    
      
      John T. Schoonover, for plaintiff in error.
    It is admitted that there is no evidence of the costs and expenses of ■ lighting, other than that furnished by the assessing ordinance passed by the Village and it is maintained by the plaintiff that the petition which alleges this action of the council is sufficient and by introducing the ordinance assessing the costs and expense of lighting makes a prima facie case, shifts the burden upon the defendant and raises the presumption that the expense and costs was incurred by the Village in doing such lighting and that the costs and expense was just what the village council by ordinance assessed. To hold otherwise is to accuse the council of mistake, bad faith or unreasonableness. To assess any other amount than the expense of lighting the right-of-way would be unlawful and unauthorized.
    The law always presumes until the contrary is shown that facts existed necessary to make the act of a village council lawful. Bank v. Danbridge, 12 Wheat., 70; Ward Lessee v. Barrows, 2 Ohio St., 241; Combs et al. v. Lane, 4 Ohio St., 112; Beach on Corporations, sections 513 and 516; Dillion on Municipal Corporations, sections 311 and 312; State ex rel. v. Gas Company, 37 Ohio St., 45; Reynolds et al. v. Schweinefus, 27 Ohio St., 311. Facts presumed are as effectual as facts proven. Bolton v. Cleveland, 35 Ohio St., 319; 9 Ohio Cir. Ct., 524; 6 Circ. Dec., 531.
    The second point made by the defendant is that ordinance 130 is defective in that it does not state and fix any specified time within which the said lighting shall be done. True, the ordinance in so many words does not state that the Lake Erie & Western Railroad Company shall within twenty days cause its right-of-way to be lighted but it does say, “in case said Company shall fail to comply with the requirements of the same (of the ordinance) for a period of twenty (20) days from the delivery of said notice, then the village shall do the lighting,” etc.
    No ambiguity, no doubt, or double meaning could be inferred. Prom the ordinary accepted meaning of language the defendant was clearly and positively notified that it was required to do the lighting in twenty days or the Village would do it at their expense. The claim of the defendant that the ordinance does not specify any time for it to do the lighting, is wholly technical.
    Now this question of time that must be given the defendant to do the lighting is governed by three sections of the Statutes, 2494, 2495, 2496.
    
      W. E. Ilaokedorn; John B. Gookrmn; F. G. Layton and G. A. Btueve, for defendant in error.
    Por the defendant in error, we contend, in the first place, that the petition in this case does not state facts sufficient to support the judgment rendered by the court of common pleas, and that there is no evidence presented upon which the judgment of that court can stand. No demurrer to the petition was filed by the defendant below. Although a jury was waived, and the case tried to the court, and, of course, no charge to a jury was or could be made, and consequently, no exceptions could be taken to a charge not given, we believe, that this court should look to all the pleadings and the evidence as contained in the record. We feel satisfied if the court does so, that the judgment of the circuit court will be affirmed.
    
      In support of this theory, we call the court’s attention to decisions cited, as follows: Mowry v. Kirk & Cheever, 19 Ohio St., 375; The Marietta & Cincinnati R. R. Co. v. Strader & Co., 29 Ohio St., 448; Railway Company v. Porter, Admx., 32 Ohio St., 328; Clark v. Bayer, 32 Ohio St., 299; Baker v. Pendergast, 32 Ohio St., 495; Weybright v. Fleming, 40 Ohio St., 52; Railroad Company v. Fitzpatrick, 42 Ohio St., 319, and section 5301 of the Revised Statutes of Ohio.
    A judgment by a court, when a jury is waived, must be based on sufficient evidence to support it; otherwise it will be reversed. Mutual Fire Insurance Company v. Palm, Admr., 5 Ohio St., 107; Mary Turner v. Turner et al., 17 Ohio St., 450; Union Insurance Co. v. McGookey et al., 33 Ohio St., 555; Wooley v. Staley, Treasurer, 39 Ohio St., 354; Ford v. Osborne, 45 Ohio St., 1.
    We contend that the ordinance referred to in the case, requiring the defendant below to light the street crossings is insufficient in this: That it does not state a specified time within which the lighting shall be done. Section 2494, of the Revised Statutes of Ohio, provides that the council of the • plaintiff shall pass an ordinance requiring the * * * railroad company to light such * * * railway, within a “specified time.” We concede that a similar ordinance was passed upon by the Supreme Court in the case of the C., H. & D. Ry. Co. v. Sullivan, 32 Ohio St., 152, but the question there turned upon the points of the constitutionality of the law, and whether the charges assessed against the railroad company were legally placed upon the tax duplicate of Miami county, Ohio, for collection. The Supreme Court never touched upon the inherent quality of the ordinance passed by the council of the village of Troy. All ordinances are construed reasonably, but ordinances of a penal nature should be construed strictly. We believe that this ordinance should be strictly construed, and should therefore be held invalid and void. Marietta v. Fearing, 4 Ohio, 428; American and English Encyclopedia of Law, vol. 17, page 264; Bliss v. Krauss, 16 Ohio St., 55.
    We coutend that the plaintiff below has not in any manner or form shown what the expense of such lighting is. The said plaintiff has averred in its petition that the expense of such lighting is the sum of ”$42 per month, or $210 for the time stated in the petition; no proof is made, not even offered, as against a denial of such value by the defendant and yet the common pleas court finds that such is the value; the court below jumped at a conclusion in this case, if it ever did. No testimony was offered, not even attempted in this case, to show to the court below how much it cost 'the plaintiff below to furnish the fixtures for lighting the crossings, nor for the lighting done by it for the defendant below. It certainly is a well settled rule of law, that where a plaintiff, demands compensation for any material furnished or services, rendered plaintiff must, upon issue made by a general denial, make some sort of proof that, the material furnished or services rendered are worth something in dollars and cents, and a court or jury can not take the statements of the petition as to the value of such material furnished or services rendered for granted.
    The Statutes of Ohio provide that when the railroad company fails or neglects, after proper notice, to comply with the requirements of the ordinance, the council may immediately proceed to cause the lighting to be done at the expense of the railroad ‘company, and direct the manner in which the expense of lighting such railway shall be assessed and collected.
    An ordinance was passed on March 17, 1896, assessing the expense of lighting the railway of the defendant Company, from March 12,1896, to March 12, 1897, or one year in advance. On February 9, 1896, notice .was served upon the defendant Company of the requirements of said ordinance, or upon failure or neglect for twenty (20) days, plaintiff would cause such lighting to be done at the expense of the defendant. Just seventeen (17) ■days after the expiration of the time granted by said notice, and when plaintiff had furnished light for only seventeen days, (or nights), an assessment of five hundred and four ($504) dollars is made by plaintiff below, which by operation of section 2498 of the Revised Statutes of Ohio, is summarily made a debt due against and payable by the defendant railway company, and a lien upon the real estate and leasehold interests of the defendant within Auglaize county, Ohio.
    An absurd construction of the law! Certainly no services, or at most, services for only seventeen (17) days had then been performed, and yet a lien is created for three hundred and sixty-five (365) days services. That can not be law; it isagainst reason and good conscience.
   Spear, J.

The grounds of reversal by the circuit court were that the finding below is not supported by the evidence, and that the finding is contrary to law. There being no evidence offered in contradiction of that given by plaintiff, the record presents no question as to conflict of evidence, but only questions of law, and these relate to the construction and legal effect of the two ordinances. It was the opinion of the circuit court that the first ordinance is defective in that it does not state and fix any specified time within which the lighting shall be done by the Company.

Authority to require lighting is given by the Revised Statutes, sections 2494 to 2499, inclusive. Pertinent provisions are to the effect that, whenever the council deems it necessary that any such railway line be lighted, it shall pass an ordinance for that purpose, requiring the Company to so light within a specified time. The ordinance shall specify the manner in which the railway shall be lighted, the number and style of posts, electric lights or other lights and fixtures, and the time such lights shall be kept burning in each twenty-four hours. Notice of such requirement shall be given at least twenty days before any penalty or charge shall be imposed for default. If the Company neglect to do such lighting in conformity with the ordinance for twenty days after notice, the council may immediately proceed to cause the lighting to be done at the expense of the Company; it may direct the manner in which the expense shall be assessed and collected, and when assessed, the amount shall be a debt due against, and shall be a lien to be enforced upon the real estate of the Company within the county, and the charge may be collected or the lien enforced in the manner pointed out in the chapter providing for the assessment of damages and expenses for making public improvements. This statute has been held to be a valid exercise of the police power by this court in Railroad Co. v. Sullivan, 32 Ohio St., 152. So that the question here is as to the validity ot the acts of the village council under this authority.

By the first section the ordinance requires the Company to light its line at street crossings within the Village with electric light in the same manner that the streets are lighted therewith, and with poles, lamps and fixtures of the same kind, the lamps to be constructed in all respects like the lamps now used to light the streets of the Village, and the lamps to be kept burning during’ the hours between the hour of darkness and the hour of daylight on each and every day. The second section (the portion of the ordinance held to be insufficient), is as follows: ‘ ‘That the work of lighting said railway shall be done under the supervision and to the satisfaction of the lighting committee, and the village clerk is hereby instructed and directed to cause due notice to be given to said Company of the passage of this ordinance by delivering a copy of this ordinance according’ to law, and in case said Company shall fail to comply with the requirements of the same for the period of twenty days from the delivery of said notice, then said lighting committee is hereby directed to cause said lamps to be so suspended, poles erected and lighting to be done as hereinabove set forth, the cost thereof to be assessed on the property of said company according to law, or to be collected as directed by law.”

The ordinance is not penal. It is not for the punishment of offenses, and is not, therefore, to be subjected to the rule of strict construction. It relates to the comfort, safety, convenience, and good order of the Village, and is to be given a reasonable construction. Undoubtedly it must be reasonably certain in its requirements, but no set form of words is necessary in its provisions. If, with reasonable definiteness, it prescribes the time within which the lighting shall be done, that is sufficient. And to determine that, the entire ordinance is to be considered. The first section definitely enjoins the duty of lighting. It also fixes the hours as ‘ ‘from the hour of darkness to the hour of daylight on each and every day.” The second section provides for the giving of notice to the Company of the passage of the ordinance and that in case it fails to comply within twenty days from the service of notice, then the proper committee is to cause the lighting to be done; and the cost is to be assessed and collected as directed by law. Why are not these provisions, taken together, a sufficient specification as to time within which the lighting must be done? No reasonable person could doubt that the lighting was required; that it was to be commenced within twenty days after notice of the passage of the ordinance, and that it was to be maintained between the hours of darkness and daylight. This would seem to be sufficient to inform the Company what was to be done, how it was to be done, and when it was to be done, and to hold otherwise, would, we think, be to give an unreasonable construction to the ordinance. It is proper to add that an ordinance similar in this particular to the one in question was under review in the case of Railroad Co. v. Sullivan, supra. The contention here insisted upon does not appear to have been distinctly made by the eminent counsel appearing for the railroad company, but it counts for something that the court found no defect in the ordinance in this respect. Scott, J., in the opinion, after citing the statute, observes that “so far as we can discover, the ordinance strictly follows and in no way transcends the powers conferred.”

It is insisted that a requirement to do the lighting upon twenty days’ notice is unreasonable. We think not necessarily so. The statute gives authority for just that notice, and then, in case of neglect, authority to council to immediately proceed to have the lighting done. The language of the ordinance indicates that, at the time of its passage, the streets of the village were being lighted by electricity, as in fact they were, and this was being done by an electric light plant. It does not appear but that what the village was procuring for its streets, the Company could have obtained for its crossings.

It is insisted further that the assessing ordinance is invalid because passed before any considerable part of the lighting had been done. This implies that the municipality must go forward and expend its own ■ money for lighting, and cannot ascertain or fix the expense until after such lighting has been done. The point is not well taken. There is nothing in the nature of the ease to prevent the cost being ascertained at any time, and when that has been done, the assessing ordinance may be passed. The statute itself provides that the council may direct the manner in which the expense of lighting shall be assessed and collected, and the action taken was not an unreasonable exercise of that power.

Nor is there force in the proposition that there was no proof showing what the expense of lighting was. The statute in terms authorizes the council to assess the expense, and when so assessed the amount shall be a debt due, and the passage of such an ordinance implies that the cost had been ascertained. The presumption attaches that the action of the council was regular and legal, and, until attacked by proof to the contrary, the amount assessed will be presumed to be the proper amount. The suit was not brought until after the lighting had been done, and there was abundant opportunity, had the fact existed, for the Company to show that the amount assessed was unreasonable, or for any reason was in excess of the true amount.

We find no error in the judgment of the court of common pleas. It ^follows that the judgment of the circuit court should be

Reversed.  