Lucas County Appeals. the pole erected adjacent to plaintiff's property. It is true that the question to be determined in the case of Callen v. Electric Light Co. supra, was not precisely the same as that which we have for determination, because in that case the company had no contract for lighting any of the streets of the city in the neighborhood where the plaintiff's property was located, nor was it in fact furnishing or proposing to furnish any such service at that place, and hence it could not claim the right to erect or maintain the line of poles and wires at that place for street lighting purposes. In the consideration of that case the Supreme Court, speaking through Spear, J., discusses in detail the question now under consideration in the instant case. It is said in the course of that opinion that the case is to be determined by a consideration of the question whether or not the acts of the defendant complained of constitute in an essential degree a taking of property within the meaning of the constitution, and it is further stated by the court, in substance, that the defendant did not have the right to place permanent erections in the street in front of the plaintiff's property if by so doing, it in any appreciable degree impaired the owner's access to the lot, or otherwise interfered with the full enjoyment of the lot for all purposes to which it was adapted, or of the street itself. It must be borne in mind, in considering the discussion of that case and the conclusion reached by the court, that it had under consideration a case in which the electric lighting provided by the defendant was not of the streets, but that it was wholly for private use and, therefore, was not in any sense a street purpose, but was solely a private one. The fundamental principle was stated by the court that the city's control of the streets is confined to street purposes and is not for general municipal purposes. Nevertheless, the court used this language on page 180: "Whatever is a necessary incident to that use, the city may provide. Sewers, for instance, drain the surface water and thus relieve the streets from impairment and destruction, and in this respect sewers are for a street purpose; while, in addition, they may drain abutting property, thus tending to pro Huss v. Railways & L. Co. mote the public health, and in this respect they serve a municipal purpose. The same may be said as to water supply for cleansing and sprinkling the streets, and by owners of property abutting for cleaning and domestic uses, and for the extinguishment of fires. Light, also, is necessary for street purposes, and is convenient for the use of citizens, thus serving two uses, one a street purpose and the other a municipal purpose." The fact that fire alarm apparatus was a strictly municipal convenience was held not to justify the construction, for it was apparent that this apparatus might properly be constructed on a short post in an unobjectionable location. The language above quoted is a clear declaration by the Supreme Court that poles and wires constructed for purposes of furnishing light for the public streets may serve as well a dual purpose, and if such dual purpose did not result in impairing the plaintiff's property in any essential degree, or to any appreciable extent, then injunction would not lie. The doctrine is well announced in 1 Joyce, Elec. Law (2 Ed.) Secs. 233, 276 and 333. The author of that work in an illuminating discussion of the question, reaches the conclusion that if a line of poles and wires is erected for the purpose of lighting the public streets, it is not an additional burden that the same line also carries current used for private purposes. We conclude from the evidence in this case that no appreciable or essential additional burden is cast upon the plaintiff's property by the fact that the current for lighting the public streets which is carried on some of these wires, is also used for various private purposes. It is insisted by the plaintiff that the line of poles and wires should have been constructed on another street or on the opposite side of Williams street. No abuse of discretion is shown on the part of the city authorities in locating the line at the place where it has been located, with the pole in front of plaintiff's property placed where directed by this court, and we apprehend the true rule to be that in the absence of fraud or an abuse of discretion, a court will not interfere with the action of the municipal authorities on that matter. Of course, the 1 Lucas County Appeals. right of the defendant to maintain this line could only extend for the time during which it supplies light for lighting the public streets of the city. The injunction will be so modified as to allow the erection and maintenance of the pole on plaintiff's property at the place indicated, only, and in other respects will be dissolved. Chittenden and Kinkade, JJ., concur. MUNICIPAL CORPORATIONS-WORK AND LABOR. [Cuyahoga (8th) Court of Appeals, November 15, 1915.] OTTO STANGE V. CLEVELAND (CITY). Power of Charter City to Regulate Hours of Day Labor on Public Improvements Before State Act Takes Effect. A municipality having adopted a charter pursuant to Art. 18, Sec. 3, of the constitution, the Home Rule amendment, may enact police regulations which differ from police regulations enacted by the general assembly. Hence, an ordinance of a charter city, prescribing an eight hour day labor limitation on public work in pursuance of Art. 2, Sec. 37, of the constitution, and imposing a penalty for its violation, is a valid enactment, notwithstanding it was passed and took effect prior to the enactment and taking effect of Act 103 O. L. 854 (Secs. 17-1 and 17-2 G. C.), includes all workmen so engaged, and applies to violations thereof occurring before the state act took effect. ERROR. Squire, Sanders & Dempsey, for plaintiff in error. John N. Stockwell, city solicitor, Arthur F. Young, assist., city solicitor, for defendant in error. MEALS, J. The plaintiff in error was convicted in the municipal court of violating an ordinance of the city of Cleveland providing for an eight hour day on public work. The judgment of the municipal court was affirmed by the court of common pleas. Error is prosecuted to the latter judgment. Stange v. Cleveland. The affidavit filed in the municipal court against the plaintiff in error charges the latter as follows: That on December 1, 1914, Otto Stange then and there being the superintendent and person in charge and control of a certain plant known and designated as "Casey and Company," at which said plant work of a public nature was then being conducted, to-wit; work on the installation of a water filtration plant for the city of Cleveland, a municipal corporation, unlawfully did then and there permit the workmen in his employ and under his control at said place as aforesaid to labor more than eight hours per day; that said labor so performed as aforesaid not being then necessary as an extraordinary emergency and said laborers so mentioned as aforesaid not then and there being policemen or firemen. To this affidavit a demurrer was interposed on the ground that the same did not state facts sufficient to constitute an offense against the laws of the state of Ohio, which demurrer was overruled. The principal question presented to us relates to the action of the court in overruling the defendant's demurrer. Other questions are made by the record, but they are of secondary importance. It is contended by the plaintiff in error that the ordinance for the violation of which he was convicted, is void. Section 37, Art. 2 of the constitution of Ohio, as amended in 1912, provides: "Except in cases of extraordinary emergencies, not to ex ceed eight hours shall constitute a day's work, and not to exceed forty-eight hours a week's work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract, or otherwise." It will be observed that no penalty is provided for the violation of this section. Therefore, to enforce its mandate, an act was passed by the general assen bly on April 13, 1913, entitled, "An act to provide for an eight hour day on public work in the state, or any political subdivision thereof, or by contract Cuyahoga County Appeals. ors or subcontractors on behalf of the state or any political subdivision thereof, and penalties for violation of same." This act provides as follows: "Section 1. Except in cases of extraordinary emergency, not to exceed eight hours shall constitute a day's work and not to exceed forty-eight hours a week's work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract or other. wise: and it shall be unlawful for any person, corporation or association, whose duty it shall be to employ or to direct and control the services of such workmen to require or permit any of them to labor more than eight hours in any calendar day or more than forty-eight hours in any week, except in cases of extraordinary emergency. This section shall not be construed to include policemen or firemen. "Sec. 2. Any person who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction be fined not to exceed five hundred dollars or be imprisoned not more than six months or both. "Sec. 3. This act shall be in force and applicable to all contracts let on and after July 1, 1915." Sec. 3, Art. 18 of the constitution, as amended in 1912, provides: "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws." Sec. 7, Art. 18 of the constitution reads as follows: Any municipality may frame, adopt or amend a charter for its government, and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government." The court will take judicial notice that on July 1, 1913, in pursuance of the authority given by the latter section, the city of Cleveland, by a vote of its people, adopted a charter for its government. Section 196 of this charter provides as follows: "Hours of Labor. Except in case of extraordinary emer |
