City of Cincinnati v. Fenner

Murpi-iy, J. Jackson, J.,concurring; Demp.sey, J., dissents. This is a proceeding in error to reverse the judgment of this court in Special Term. The action below was by a tax-payer, to enjoin the city of Cincinnati and the Board of Public Service of said city from awarding certain street repair bonds which the said Board ■of Public Service proposed to issue, pursuant to the act of April 26, 1898 (O. L., Volume 93, page 374). Ths act authorized the administrative board of the city to issue bonds not to ■exceed, in any one year, the sum of $100,000, to '.be used for the repair of a certain class of streets, alleys, etc. Section 5 of„said act is as follows : “The Board of Administration or Board of City Affairs, or their successors in office, shall receive bids for said bonds from time to time as they are issued, after advertising the same for sale once per week for four consecutive weeks on the same day of the week.” * * The Board of Public Service of said city advertised for proposals for he sale of $100,000 oí said bonds on the 8th, 15th, 22d and 29th oí December, 1900, designating December 31, 1900. at 12 a. m., as the time when said proposals would be received by the said Board of Public Service. The question is as to the meaning of the words, “after advertising the same for sale once per week for four consecutive weeks on the same day of he week. Does it mean that the advertisement is complete and effective after the fourth insertion, or it is complete and effective only after four full weeks, or twenty-eight days. This precise question has not been decided in Ohio, so 'far as we are aware, but there are decisions in many states upon the question and in the Supreme Court of the United States. It is necessary to note the verbal difference in the statutes regarding this subject. Ip many states the language employed is the same, or substantially the same, as in the act before us, namely, “Once a week for * * * consecutive weeks;” while in others the language used is “not less than * * * * weeks.” or, “at least once a week for * * * * weeks.” Where these latter forms are used, it is conceded that the full number of days constituting the number of weeks must elapse before the advertisement is complete or effective. Finlayson vs Peterson, 5 North Dakota, 587; Parsons vs Laning, 27 N. J. Eq.,70; Wampole vs Foote, 2, Dakota, 1; Miller vs Pearce, 2 Sup. Ct. Rep., 44; Earley vs Doe, 16 Howard, 610. Justice Wayne, in deciding the latter case, says: “The language of the statute regulating the notice to be given is in these words: “That public notice of the time and place of sale of all real property for taxes due the corporation of the city of Washington shall be given hereafter by advertisement inserted in some newspaper published in said city once in each week for at least twelve consecutive weeks.’ * * * We do not doubt if the statute had been ‘once in each week for twelve successive weeks,’ a previous notice of the particular day of the [343] sale having been given to the owner of the property, that it might very well be conceded that twelve notices in different successive weeks though the last insertion of the notice for sale was on the day of sale,was sufficient. But when the legislators used the words ‘for at least twelve successive weeks,’ we can not doubt that the words, ‘at least,’ as they do in common parlance, mean a duration of time that there is in twelve successive weeks or eighty-four days.” Where the language used in the statute is the same or similar to that used in the act under consideration, there is great diversity of opinion and decided conflict in the decisions. S. & L. Society v. Thompson 32 Cal., 347; Decker v. Myles, 4 Colorado, 560; Knowlton v. Knowlton, 155 Ill., 158; Banta v. Woods, 32 Ia., 469; Sweet v. Sprague, 55 Me., 190; Haywood v. Russell, 44 Mo., 252; Frothingham v. March, 1 Mass., 247; Dexter v. Shephard, 117 Mass., 480; Alexander v. Bell, 26 Neb., 68; Olcott v. Robinson, 21 N. Y.Rep., 368; McKee v. Meredith, 192 Pa., 164; Boyd v. Sup. Court, 6 Wash., 352, and Marling v. Robrecht, 13 W. Va., 440, hold that the advertisement is complete and effective after the last insertion of the advertisement. And we think to the same effect is Early v. Doe, 16 Howard, supra, which is one of the authorities cited and relied upon by the defendant in error. To the contrary are Bacon v. Kennedy, 56 Mich., 329; Boyd v. McFarlin, 58 Georgia, 208; Meredith v. Chaney, 59 Ind., 466; Pratt v. Linkom, 21 Minn., 142; Davis v. Robinson, 70 Texas, 394; Martin v McDirmid, 55 Ark., 213; Dillard v. Krise, 86 Va., 410; Reed v. Sexton, Adm., 20 Kas., 195. In addition to these authorities the defendant in error claims that the following cases sustain his contention. Cox v. North Wis. Lumber Co., 82 Wis., 141. But inasmuch as this point was not in the case, any language used by the court on the subject is mere dictum. Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y., 397. But it is distinctly stated that Olcott v. Robinson, 21 N. Y., supra, is not overruled, but, on the contrary, the conclusion reached is by virtue of the change in the wording of the statute. Trust Co. v. R. R. Co., 139 U. S., 137. All that this case decides is that the statute therein construed meant calender and not lunar months. It may be useful to examine the statutes of Ohio for the purpose of seeing what phrases have .been used by the'legislature to express-duration of time in notices by advertisement, and-how the different expressions have been construed. Section 5050, Revised Statutes of Ohio, provides for constructive service, and says, “The publication must be made for six consecutive-weeks” * * * The legislature itself interprets the meaning of six consecutive weeks in the-very next section (5051), which says that “service by publication shall be deemed' complete at the last publication.” Section 5385,' providing for notice of the sale-of goods on execution requires that “public no tice shall be given of the time and place of sale-at least before the day of sale, which notice-shall be given by advertisement published in a newspaper,” etc. In the sections relating to divorce and alimony, section 5693 provides for constructive-service, as follows: “When the defendant is not a resident of this state, or his residence is-unknown, notice of the pendency of the action must be given by publication, as in other cases.”' Which means, I take it, that the publication shall be as is provided for in section 5050, Revised Statutes. We have seen, by section 5050, constructive service is complete at the date of the last publication. In divorce an'd alimony, the legislature desired that publication should not be complete until after six weeks had elapsed from the date of the first publication; and it puts that interpretation upon the language of section 5693 in the next section (5694), which provides that the case may be heard and decided at any time after the expiration of six weeks from * * * the first publication of notice. Section S393, providing notice of the sale of lands, says: “ Lands and .tenements taken in execution shall not be sold until the officers cause to be given public notice of the time and place of sale for at least thirty days.before the day of sale, by advertisement in a newspaper printed and of general circulation in the county. * * * or if the lands and tenements taken in execution are situated in any city of this state, and' there is published both a daily and weekly-edition of the newspaper selected for such advertisement and the circulation of the daily in snch city exceeds that of the weekly, it shall be sufficient to publish the advertisement in the-daily once a week for five consecutive weeks before the day of sale, each insertion to be on the same day of the week.” ' In Hagerman v. Ohio B. & S., 56 O. S., 156, that part of section 5393 providing for publica [344] tion in a daily newspaper “once a week for five ■consecutive weeks before the day of sale, each insertion to be on the same day of the week,” is construed, and it is held that such advertisement is complete and effective after the last insertion. It may be said that the court had in mind that the limitation of “at least thirty days, ’ contained in the earlier part of the section, controlled, and that the legislative intent was that five consecutive weeks, and at least thirty days should mean the same thing. But this is precisely what the plaintiff in error is contending for. Here, at least, are two instances in our statutes where notice by advertisement is, by manifest legislative intent, or judicial interpretation, deemed complete after the last publication; and in each case where the contrary was intended, unmistakable language is used by the legislature to express that purpose. Charles J. Hunt and Charles W. Scott, for plaintiff in error. Ellis G. Kinkead, for defendant in error. To the same effect is section 1695, providing for the publication of ordinances. The legislature, intending that ten days should elapse from the first publication until the ordinance goes into effect, uses this language: “No ordinance shall take effect until the expiration of ten days after the first publication of such notice. ’ There is no pretense that the act authorizing the issue of these bonds is unconstitutional, or that the fund so raised will be misappropriated, misapplied or wasted, or that the city will lose by reason of the sale of these bonds. On the contrary, it can be assumed that the city needs the money, and that if not available now a greater sum wil ultimately have to be expended. In the judgment of the majority of the court, the weight of authority is that the advertisement for the sale of the bonds became effective after four insertions. We think the court below erred in overruling the demurrer; and, for that reason, the cause is reversed.