# Reply Brief Petitioner — Chase Nat. Bank v. Norwalk > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0025%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief Petitioner - **Published:** January 1, 1934 - **Citation:** 291 U.S. 431 ## Text INTHE ‘ . Supreme Court of the United States ' October Sm 1933 woe oe te Case NationaL Bank or THE City or New York, Successor Trustee to THe Equita- ‘BLE TRUST Courant, or New York, N. Y., _ ag ot | — :' er? Tax Crry or Norwatk, Onto, a. J SR oo: We ; Respondent. REPLY BRIEF OF PETITIONER ON WRIT OF CERTIORARI TO THE UNITED STATES ‘ CIRCUIT COURT OF APPEALS FOR THE eich CIRCUIT. Gero. D. WELxzs, , Toledo, Ohio, | \ a Counsel for Petitioner. . Fart F. Boxeiu,* ; Tole , Ohjo, - ‘Tracy, Coapman & WELLES, Toledo, Ohio Artuur A. GAMMELL, : _. New York, N.Y. | | Timotny N. Prerrrer, ; . + New York, N.Y. ‘ Mrpank, Tween, Horr & Wess, . New York, N. Y. Of Counsel for Petitioner. The Wilkinedn-Slost Printing Co.,. ‘ 1217 Ja¢kson St., Toledo, O. ‘ e - @ S «€ . TOPICAL INDEX A. Introduetion re Sind antral ewe | i B. Statement of Case SN Ce OP en ae «. Argument. ss em Some SEs a er 3 \I: Th Injunction Granted By The District Court Doés. Not Violate Judicial Code Section 265. Petitioner is Entitled: To Maintain This Suit — On The Showing Made In The District Court... 3 2 .II..Equitable Relief Is Justified Because Of Ac- . tion Taken And faimeeirtuseane by the. Respond.. 6: 5 Sn a 20 III. Petitioner Has A Valid Lien Upon Existing ° State Granted Franchises Of Its Mortgagor In © The Streets of Respondent , 22 a eat rh: 8 The Ordinance of October 7, "1890 Was In- me - @fective As A Franchise Grant, But Be- came Effective As A Mode of Use Agree- . ment calidigeiaiia saben dei, 22 2. The Frarichiée Rights of Petitioner’ 8. , Mort gagor in Norwalk Are Incontestible........... 30 IV. The Questions As To The Existence Of The — Franchise' Rights’ And Petitioner’s Interest ‘Therein. Should Be Determined According To © The Law Of Ohio As Established At The Time The Mortgage Was’ Given And The Bonds DOIG | cnigggeeninenesinmesininin 40 - «V. The Rights Of. The Predecessors of Plaintiff's : | Mortgagor Wére Not Terminated By Any Pro- . visions Of The Public Lighting Contract Of ~ GOD snuinnctnndetcnincsiestainieiininl 42. X VI. The Seepeuiinnt City Is Estopped To Deny. That An Agreement As To Meds Of Use Has. Always Exi sted alle sated 43° \ D. Conclusion SPE. PRC tn sien 450 u INDEX OF AUTHORITIES . Atchison Ry. Co. v. Wells, 265 U. 8. 101........ BMA 13° 4 _ Ballard & Ballard Co. y. Munson Steamship Line, 25 . Fed. 2nd,. 252) - | : . 19 bi _ Blair v. Chicago, 201 U. 8. 400...” ao a Louisville Trust, Co. v. Cincinnati, % Fed. 296; 300. 19, 35 Macklin v. Home\ Telephone Co, 10. ¢. C. 373, 70 O. 8.” 507 129, 32 ; Moore-Manstisld tructiog Co. v. Electrical Installa: : tion Ca., 234 S. 619...... 17 P Northern Ohio Traction Co. v. Ohio, 245 U. p.574( 25,26, at! Ohio Public. Seryice Cas vy. State, 274 U. 8. 12, 113 0. a 325... 25, 38 ~ Old Colony Trust Company: ve Omaha, 230 U. $..100___- ? 11, 13, 37 Old Wa} yne Life ‘Association v.. McDonongh, 204 v. 8S. 8.. 13 “ Pawhuska v. Pawhuska Oil and Gas Company, 28 Okia. . ID . capiticitieninatiaitiehiieitiniaianealagilae 36 a ( People,.ex rel Fitzhenry tion Gas~& Electric Com-: : pany, 254 Ill. 395, 98 N. E. 768 9 Pike’s Peak Power Company y. Colorado Springs, 105 i eR ea A _ Pomona v. Sunset Telephone Co., 224 U. 8. 330... 35 ‘ | Queen City Telephone Co. v. Cincinnati, 73 0. 8. 64... - ‘| ; eoeeeee- er scrennnerees ae woceee - wane en ee ee ee cee e- one 25, 32, i) J Revised Statutes, Section 3461... nn BD, 35 Riegel v. Belt, 119 O. S. 369, 378, 379, 164 N. E. 347, ous 3: “ — Bussell v. Detrick, 83 Fed. 2nd 176 , » @ B's Sehriver v. Woodbine Bank, 285 U..S. 467, 475... 41 Sears, Trustee v. City of Akron, 246-0. 8. 242.4: 38 + Simon v. Southern Railway Co., 236 U. 8. 115...._.10, 19 Southern Bell Telephone Co: v. Richmond, 103 Fed. 31. 36 ‘State ex rel v. hear sna Union Telephone ©o., 11° 0. C.C. - *. pe Sd - -- MiB = 34 * Qeuus 7g mat State ex rel Martin v. The Ohro Hleetrie Riwer Co., 35 O. A. R. 481, 121 0. 8. 235 saiie —_—anm F State ex rel Matthews v. Central Union Telephone Co., 14 O. C. C.. 273 .. 4 e Thompson on. Corporations, Vol. 3, 3rd Ed., Sections 2343 and 2403 a Tidal Oil Co. v. Flanagan, 263.U. 8. 444 | ‘17 ‘ Toronto Electric Light Co. v. Toronto, 1917 A. C. 84, 33 Ont. L. Rep. 267 : = Wabash R.-R. Co. v. Defiance, 167 U. S. 88 31 Western Union Telegraph Co. v. L. & N. Railroad Co., _» 218 Fed. 628 18 Western Union ‘Telegraph Company v. Tompe,, 51 Fed. : « 2nd’ 1032 .13 Zanesville v. Zanesville Telegraph & Teloybene Co., 64 a i 4 See eeee . 25, ” 34, 36. > | 7 + - 9 , nb TEE Sene Court of the United utes October. Term, 1933 290 \ , - Cuase Natiowa, Bawx or Tue Crry. or New York, Successor Trustee to THe Equtta- BLE‘['Rust Company, or New ‘York, N. Y., Petitioner. =f : vs. Tae Crry or Norwatk, Onto, a, fa.) Respondent. REPLY BRIEF OF PETITIONER ON WRIT OF CERTIORARI TO THE’ UNITED STATES CIRCUIT COURT OF ASTEALS FOR THE SIXTH . CIRCUIT. + air | INTRODUCTION While we are reluctant to add another brief to those before the court, ‘we feel obliged to correct certain asser- tions of faet contained in respendent’s brief, and to point — out briefly what we deem to be some alae aaa ols spondent’ 8 argument. STATEMENT OF CASE - Respondent claims that the record contains no evi- _’ dence that ‘the Norwalk City Council was- informed of. * ° an intention by the Norwalk Incandescent Light Com- .2 pany, the partnership formed in 1890, ‘ organize: a cor. - poration. (Respondent’s Brief page 3). This claim is | made in spite of the fact that at.the time of presentation . of the ordinance of October 7, 1890, to the Council, as shown, by the record, Mr. ,Dunmore | and Mr. Suhr, two of the: partngss, frankly told the Council whist they proposed to do (R. 61) and prior to the passage ‘ef the ordinance the partners had discussions with mem- bers of the Council and ‘old them what th partnership plans were ( R. 62). Furthermore, when ‘the partnership’ property was transferred to The Incandescent. Light & ~ Power Company, the corporation organized in 1891, the Council confirmed the action of the. partners in: transfer- ring the partnership property to the corporation (R. 62) ‘and at page 63 of me ‘record 3 is Mr. Suhr’s testimony as follows: ‘‘There is no question but what the Council ner _ been acquainted with the fact that a corporation - was being formed.” | \ \ \ \ Smsatiet 1 at page 7 of its brief‘ says that the only bonds now outstanding are $2,248,500 (the correct figure is $2,600,000; see‘the record pages 425-430), and that the first of these bonds were issued June 20, 1927, which was after the’ filing 6f-the quo warranto cage in the state court against petitioner’s mortgagor. ( Respondent’ 8 brief p.7).+ Respondent in its brief does not base any argument . upon this. statement, but*if the statement is made with some artful design of suggesting to this court that the rights of the bondholders were acquired after the com- mencement of the quo warranto suit arid are therefore not _ entitled to protection in this suit, it is sufficient to observe . - that the bonds. now outstanding were issued pursuant to the terms of the mortgage and supplemental mortgage / 3 given ‘long before the auo y wervante suit wes filed (plain. tiff’s exhibits 28 and 29, R. 379 and 412); and that $1,- 579,300 thereof were issyed for the redemption and in lieu. of the same amount of bonds (specifically including those issued upon the’ basis of the Norwalk property) sold and distributed before the quo warranto proceeding; v was com- ; menced (R. 184-191; 4 ). There. was no payment or '.. discharge of the mortgage and.accordingly the present bondholders in equity occupy exactly the same position as - the original bondholders, as the District Court held. Memorandum opinion (R. 236) and the followiig, anthor- _ ities there cited: ee 3 Thompson on Corporations, 3rd Ea. Sec- tions 2343 and 2403... . ‘ Louisville Trust Co, v. Cincinnati, (C. ©. A. 6) 76°Fed. 296,300-* * . 7 ’ Farmers Loan and Trust Company vs. Meri- dian Wattrworks Company, 139 Fed. 2 _ 661, 670. Hill vs. Beebe, 13 N. Y. 556. Feldman v. Beier, 78 N. ¥. 293... |; In Re Utica Nat. Brewing Co., ‘154 N, Y. 268, 48 N. E. 521 = vs. Belt, 1290. S..369, 378; 379, 164 N. E. 347, 350. oo 1. | —o | ARGUMENT | . I. The Injunction Granted by the District Court. Docs Not Violate Judicial Code Section 265.: ‘Petitioner is En- titled to Maintain This Suit Oa the Showing Made In the District Court. : Respondent makes a plain misstatement at page 12 of | _ its brief in asserting that the District Court injunction * ~ 4 | oa : » + * * * enjoins the Court of Appeals of Huron Coun-. | ty, Ohio, itself, front taking any action whatsoever a in the, quo warranto case.’’ Respondent has gone to the length of quoting the in- — ‘junction in its entirety at. pages 8, 9 and 10 of its brief and the italicized portion on page 9 clearly exhibits ae thé court itself but that the City and its representatives d others to whom notice of the injunction | should come were enjoined | em s error. The italicized: portion shows that not ““* * * from applying to any of the courts of the . State of Ohio for any writ, process or order °° ° .”’. a : =. Obviously the state courts would not make application _ . to themselves for the issuance of a writ or order. to enforce ~ the ouster decree, and hence respofident’ s assertion that the state courts, themselves, are enjoined is a palpable misconstruction. ~~ The respondent i in its brief at pages 12, 21, 22, 93 and '. 24 labors very hard upon the argument that it was not and ‘ eould not be a party to the quo warranto case; and that it has no standing to seek enforeement of the décree therein, ergo-that the injunction granted by the District Court must act upon the Court of Appeals of Huron County,“ Ohio, otherwise the injunction could have no effect. ‘Iti is contended Yurther that the respondent City. could not be the’ real party in interest in the quo warranté suit ~ —_ because quo warranto is the exclusive prerogative of the — State of Ohio; that therefore the State of Ohio is the nec- essary party i in this case, and the action should be dismiss- ed as an attempt in effect to sue the state by indirection in violation of the constitutional inhibition against doing = 80 without the state’s consent. f° i | & ~ oO The respondent city asserts that the injunction does © ay not, fall within the class of cases in which an injunction — may be had against enforcement of a judgment by a party - to a.state court suit, because neither of the. parties to this _ suit -were parties to the quo warranto action. Patently quite the reverse must be true taking the case upon. the basis -of' the respondent’s own position #just paraphrased from its brief (respondent’s brief page 12). It is perfect- “ly obvious that the circuit court of appeals treated the rey spondent eity in effect as though the city had been the real -~ plaintiff in the quo wayranto” suit, otherwise that court | would not have held Judicial Code Section 265 applicabl? a at all. Thus respondent in its brief flatly abandons thé . ground relied upon. by the Circuit Court of Appeals in » its opinion, and now asks this court to affirm the decision upon a basis diametrically opposed to the opiniongef that court. . If, as the respondent city says, it was not a party to the quo warranto action and had no standing asa party Pa in the proceedings -therein, then it is entirely clear that Section 265 does not’ bgr.petitioner from the relief obtain- ed in the District Courtfor the simple reason that Section 265 is out of the cage all together. re However, it dogs nét follow therefrom that the i injunc-. . District Court was a nugatory or vain _. thing, or that-it necessarily constituted a ‘restraint upon the state courts, as the respondent city argues.: As the record in this case clearly. shows, and as we have -pointéd out in our main.brief, the respondent city instigated, fi- nanced and conducted the quo warranto case for its own .-profit, and not for the benefit of the State of Ohio. It simply caused its attorneys in conjunction with the Prose- - cuting Attorney of Huron County, Ohio to borrow the name of the State of Ohio to bring a suit to oust the: Ohio Mochele Power Company without clad for the rights of | & 3 3 ee: 6 this petittoner. Certainly'the inevitable inference ig that, unless the city is restrained from taking any steps to se- cure the enforcement of the quo warranto decree,. it will seek through its attorneys, or otherwise, to. get the state ‘courts to enforce the decree. The Gity sought and obtain- _ ed the decree, under the name of the State it is true; ‘and eo “it fellows 2 as the day does the night that the eity will ander. “a take to secure the enforcement of the decree. Nor-does - this conclusion . have to rest upon inevitable implication or inference, because counsel for the respondent city in their brief at page 28 in discussing the agreement which was made in 1926 between~the city solicitor and counsel for petitioner’s mortgagor for the maintenance of the status ‘quo during the pendency of the quo warranto liti-* gation: . : “Tt shows a continuing intention upon ‘the part of the city not to resort to anything other than or- - ‘derly court action.’’ And see also respondent ’s statement to the same effect at page 26 of its brief. ~ What court action? Obviously it could mean only , the insistence of the city upon carrying out the quo war-. ” ranto suit and securing the enforcement of the decree ob- tained therein. There has been no other court action by ' the respondent city, hence we confidently say that the city having been at all times the only motivating force back of the quo warranto suit, the city can and should be enjoined as decreed by the District Court. It-is not necessary that the injunction be directed: to the state courts either in terms or by any necessary inference of such effect. If. this court affirms the action of the District Court, it is in- mA conceivable that the state courts would then in complete ' disregard. of comity act upon their own volition to enforce . 7 / court, and thereby work a destruction of this petitioner’s \ rights. Nor will it do for respondent to attempt a \Setertion of the issues as it does at page 21 of its brief in asserting ‘that petitioner’s whole case is based upon the theory that ” "ail rights~-ef-public utilities in a municipality come from the State ‘of Ohio, which respondent asserts further is ‘jneonsistent \with our contention that the city was the real party in interest in the quo warranto litigation. Our claim as stated in our main brief is that petitioner holds a valid lien which attached prior to the quo warranto suit to franchise rights which were derived from the State of Ohio by electric light and power ‘companies (predeces- sors of petitioner’s mortgagor) organized prior to 1896. Nothing in that claim is‘ inconsistent with our further claim that the city is the only impelling force behind the quo warranto suit. Neither does this action constitute , any attempt to secure relief\against the State « of Ohio by indirection. The State of Ohio took no action to to oust peti- tioner’s mortgagor from Norwalk; it has not sought to intervene herein and in no manner whatever has the State of Ohio exhibited the slightest interest in this controversy. Nor ¢éan the city claim any rights for the State herein. The bugaboo of the State of Ohio as the real party in in- terest is an attempt by the city to do a ‘‘Doctor Jekyll and Mr. Hyde’’. First the city instigates and conducts a quo warranto suit without making petitioner a party there- — to, and. having succeeded in getting a decree therein at- tempts to disclaim all responsibility for the action and says it. had nothing to do with it—that it’was solely the affair of the State of Ohio. We respectfully submit that the respondent city may not so easily shift its disguise for the purpose of: destrcying petitioner’s rights. the quo warranto decree contrary to the decision of this’ “~~ 7 8 The entire argument of the respondent contains the . erroneous suggestion that the present nent eta is con: ~ cerned solely with the quo warranto proceedings, and that this petitioner, although not a party thereto, is bound by what happened therein. This is not true, because as we have shown | in‘our main brief, the bill of complaint and- amendments and supplements thereto and the evidence show that fsetitioner has a complete cause of action against _the city. based, upon the city’s unlawful acts and threats whelly apart from the quo warranto proceedings. How- ever, confining ourselves to the narrower question as it relates. to the quo warranto decree, we find that counsel for the respondent have set forth and cited authorities in. support of the proposition that quo warranto must be brought by the state and that such action is discretionary . with the state officials. While the authorities cited in general support this proposition, the entire argument is beside the mark. The real question is not whether or not _ the city could bring a quo warranto suit in its own name— the real question’ is whether the case made here is one against the city or, the state. Respondent’s brief contains no authority in support of its contention that this suit is in reality against the State. Petitioner’s pleadings ask no relief against the State and the decree does not at-* tempt to enjoin the State. | eae ' Respondent asserts at page 22 of its brief. that the Hardin-Wyandot case (93 O. S. 428) held a municipality could not bring an action to secure the removal of an elec- . trical distfibution system from its streets, but that the i State of Ohio alone could bring such en action. This is an attempt to assimilate the result in that case to respond- ent’s theory rather than to state the actual holdings of the - court. The State Supreme Court did not hold that a muni- | eee, eipal igeniiton could not ee’ ar action to secure the removal of the system, or that it could mot be wholly re- sponsible for the ‘bringing, . and such statements are an unwarranted attempt to limit’ ‘the question involved to the effect solely of a 20- year orditiance, whereas it clearly appears from a refer- ence to the record and to our main brief at page 43 and at pages 68 to 70, both inclusive, that many vital elements are present in thie record which make this case widely’ different from the quo warranto action. The same err- oneous conception of ‘the issues herein appears in the . first paragraph of respondent’s brief on page 20 thereof, where it is stated that in all the cases cited by us for the proposition that the enforcement of a void judgment may befenjoined.in a federal court the judgment was either tainted with fraud.or obtained under mistitke/ of fact. That statement is inaccurate in any sense for it uiques- tionably appears, from the decisions of this court that the ~ power of federal courts to restrain the enforcement of state court jadgments is not-confined to those which are void. Nor is it true that in every case cited by us wherein a federal court plaintiff had relief against the enforcement of or from-enjoying the benefits of a state-court judgment, the state court judgment was tainted with fraud or obtain- | 5 Haas 18 . ed under mistake of fact. Cases in wae no om thing appeared are: ie Old Colony Trust Co. v. 236 U.S.100 ‘Atchison Ry. Co. v. Well, 265 U.S.101 . Western Union Telegraph Company v. Tom- “o | 70 eS AS ee and Series, : | 1032. The true proposition is that petitions was entitled to . Imaintain this suit unembarrassed by the quo warranto de-. m cree on the showing made, that it was not a party to the _.quo warranto proceedings, that it had a preexisting lien upon the Norwalk properties and franchises of Ohio Elec- tric Power Company, and that the enforcement of the quo. warranto decree would irreparably injure «its property rights, and that failure on its part to-apply for leave to in- tervene in the state court proceedings by this petitioner, even if it had possessed extra judicial notice thereof, could not constitute negligence barring relief in equity. This is the proposition established by that section of our main brief, pages 29. to 36, both inclusive. ' We have informed counsel. for the respondent of our intention to rely in argument upon the case of Old: Wayne . Life Association v. McDonough, 204 U. S. 8, which was not cited.in our main brief. _We desire to add this case to those cited at pages 30 to 36 of our main brief for the reason that the’opinion of the majority of the Circuit Court of Appeals in the case at bar contains this state ment: ‘The mortgage was given in 1925, and though the appeliee’’ (petitioner here) ‘‘was not made a party ‘to the state suit, it is not. alleged or claimed that it did not have knowledge.of the proceeding or that it could not have intervened there, as mortgagee, and asserted the claims that it now makes as the basis of the relief here sought.’” 14 | ‘The fact that the record did not contain such evidence seems to have been very influential i in leading the majority ~ _ of the court below to the conclusion that petitioner’ s bill of complaint should be dismissed. The Old W ayne Life Association case conclusively _ shows that the court below was in error in attaching any importance to the absenee of such evidence. That case was an action in the state courts of Indiana against the Asgo- ciation upon a judgment by default rendered against it in a Pennsylvania court, the only service having been a sum- mons served upon the Insurance Commissioner of Penn- sylvania. ' In the case to dalexee the judgment. in the Indiana ._ state courts, the plaintiff from Pennsylvania set up ‘the ' proceedings in the courts of that state. The Association denied the material facts of the petition and alleged, in the words of the opinion of this court at page 14. ‘ce * * that the first notice or knowledge it ever had of the alleged judgment against it was’ long after | the when it appears to haye been rendered.”’ \ However, in the aks of the a at page 19, “the defendant Association introduced no evidence.’’ (Italics ours). | The court held that the attempted service of proc- ess in Pennsylvania was invalid and, although as we have . just shown the Association offered no evidence that it did not have actual knowledge of the pendency of the Penn- sylvania case in time to have presented its defense there- in, this court reversed the action of the Indiana courts. in entering “judgment against the Association: based on the Pennsylvania judgment. In doing so, this court at page 17 of its opinion quoted from the old case of Galpin v Page, 18 Wall. 350, stating the rule as follows: " 4* * © «Tt is a rule as old as the law, and never »’ *» | i 28 Si 15 tec: more to be respected: than now, that no one shall be | personally bound until he has had his day in court, by which is meant, until he has-been dyly cited to . appear, and has been afforded an opportunity to be héard. Judgment without such citation and oppor- tunity wants all the attributes of a judicial determi- ae nation ; it is judictal usurpation and oppression, and | can never be upheld where | Hawks v. Hanil having been decided Januap9, 1933, the facts of that case are undoubtedly fresh in the minds’ of. the-members of thid court and we shall not repeat them. AS. we construe the language of this. court in that ”¢ case, ih does not enunciate the ‘standards of independent: - judgment which this court would deeit~ appropriate under the far different condftions of the case at bar. .There the jurisdic- tion of the Federal Courts was invoked solely upon the gfound of ‘diversity of citizenship. - Here. the’ jurisdiction ‘. of the Federal Courts is invoked by. petitioner not only > upon the ground of diversity of citizenship, but also upon the claims of contract impairment and. lack of due Process ‘of. law. This court in the Hawks’ case specifically reecogniz- ed. that different standards of independent judgment would be appropriate: under the ‘conditions here present. « , a “— ft*2* > No controversy ‘is liere as to the impair- | ment of the obligation of a contract in violation of the restraints of the federal pre -7 oa We are ge to confuse the standards of independent, judg- ment appropriate in such conditions 0° ° (inion — ; ee, A ey ae . Page 9 of” that épinfun. 2 Coombes v. Getz, 285 U. S. 434, 441; — ‘Schriver v. Woodbine Bank, 285 U. S. 467, ” 475. j | Sf There’the perpetual franchise to construct and operate , a toll bridge was invalid under the single state court de- cision’ rendered after the acquisition of the franchise be-. cause it V ioyated a provision of the Stat8 Constitution a ae hibiting perpetusties, which’ provision was in eXistence at the time of the grant. ° Here, according to the law of Ohio tke existing at tlic time of the franchise grants, as interpreted by an unbroken line of decisions by the Supreme Court of Ohio and by this court ini ‘cases from, Ohio, tendered prior to the acduisition of petitioner’ s rights, the fran- chises were valid, grants in perpetuity. | . There, although the decision of the’ Oklahoma Su- ’ preme Court interpreting the term ‘‘perpetuities”’ as used inthe State Cofistitution came after the franchise grant, ~ there had not been pr ior to the grant any decision by ‘the , state courts passing upon the validity of such a perpetual ‘grant as that relied upon. Here, prior to the agquisition of ‘petitioner’s rights, there had been, as: stated above, an .unwavering line of deeisions, in’ reliance upon which the — ai Fights of tthe bond-holders were aequired prior to the i in- stitution of the quo warranto suit. There the case did not call for a decision as to the ownership of the bridge or thé right of complainants i. tear it down thereafter, ‘but related to the privilege of — & ve Da a a wx prs . PR naire aaah Ai Bil 2% i = saa oF ks g's ee saniitieaiae’ in exactinigpayments from the public for its use while maintaing an obstruction of navigable waters. Here the case involves the very essence of the bondholders’ security and does not involve any public , interest such as that in the: Hawks ease. Here the respondent city is in’ terested . in ousting petitioner’s mortgagor which, will re- sult in destroying the mortgaged property only in the proprietary capacity of the City for its profit, because the City in 1915 erected and ptt into operation a- municipal plant which competes for the commercial business. Furthermore, the decision in the quo warranto case was made on a vitally diffeyent record from that in this ease, It is not unlikely that on this record the decision of the Ohio Supreme Court could lave been the same as that _of the Distri¢t Court. This court in the Hawks case, stat- ed the principle that the single decision of the state court to be followed. should bes lear and unequivocal. The quo - warranto decision does not nfect that requirement. / ¥n faet it is not.a decision. at all of the case made by petitioner i in the courts ‘below. \ \ Ve: The Rights ‘OF The an See Of Plaintiff’s Sisdiiniee Were Not Terminated By Any Provision Of The Public — Lighting Contract Of 1905. < We shal\not- repeat the argument contained in our main brief u upon this feature, but will allude briefly to the wholly unjustified claim at*page 119 of. respondent’s -brief that the contract included within its scope rights with re- spect to commercial and residence lighting service. It will. be noted by a reference to thé-etause in the cohtract of 1905 (see respondent’s ‘brief“page 119) which did mention commercial and residence lighting, that it was for the sole purpose of preserving the right of the city to revoke the — 48 strect lighting rights, in- the event the company should ‘fail either to furnish street lighting or commercial and residence lighting no such failure ever occurred), and ob- . viously had ‘no ‘other or further effect. Hee also the opinion of the Suprerne Court of. Ohio in the quo warranto case, 121 O. S. 235, where the court said, speaking of the 1905 contract: if" * * no reference being made therein to corn: mercial lighting * * * ”’ | che (Appendix to respondent’s brief, page 175). 3. . “a ‘VIL : : The Respondent City Is Estopped To Deny That An Agree- ment As To Mode “Of Use Has Always Existed. At page 124 of its brief respondent ‘sets. forth an im- . ‘perfect recitation of the bases of the estoppel which we claim. nee j | The bases of tlie satel upon which we rely-a are » set out at pages $4, 85 and 91 of our main brief. Respondent.-claims ‘that: po esto 1 can be predicated upon the construction of the plant nd distribution system in 1890 because the ordinance wag a grant to a partnership and conveyed no rights after 1910. The claim ignores.the facts that the ordinance ran to the successors and assigns of the partnership and the council knew at the time that “there was to be a corporate ‘successor, and of course the corporate successors invested their money in the system. - with the full knowledge and acquiescence of the city. The generating plant erected in 1895 was of double the capa- gity required to furnish service both to the public. apd - private néeds of the city (R. 68) ‘and would not have = except upon the understanding that the com- pany possessed a continuous right to serve private/con- . sumers (R. 73, 75).. The claim at page 129 of respondent’s. ot ea = ee briet that the city. took the, position at conferenees in™1914 a ween city oflicials and reprentayves of the Cleveland, ? southwestern and Columbus Railway Conjpany that the we ie Was without right to oceupy the streets after September 1, 1915 has no basis whatever in anything con- tained in the record at the pages cited or anywhere’ else. Respondent says that no claim of any franchise right, per- petual or otherwise, waS ever inade by any of the com- panies. There was no occasion for any such assertion un- =. til the Village challenged the company’s right by the 1926, ‘ordinances. -The Village knew, however, that the "arious | companies were openly and notoriously operating in the streets at all tigies obviously under a claim of continuing right. ‘The duty was on the city to notify the company if. it was dissatisfied with the mode of use, This is ‘not. a t case of continued use of the streets after termination of a franchise. The point is the city by its conduct led the vari- ous companies to believe the mode of use was satisfactory. The city is therefore estopped to assert that there is no “sueh agreement. Contrary to what, respondent | says at page 131 of its: brief, there is evidence of capital invest- ments after 1910. (R. 78, 84, 99). Respondent cannot help itself on the issue of estoppel by “laiming as it does at pages 151, 132 that the. equipment of petitioner’s mort-. gagor in the City of Norwalk is in a sad state of repair upon the hasis of fragmentary bits of evidence in the ree- ord. Neithpr ean respondent avoid the estoppel by the - itatethens 9 page 133 of its brief that it liad nothing to do with the assessment of taxes and no standing to-object thereto. The point, is it received its portion of the taxes without objegtion. (R: 280.) ion ee. “ v ‘Misa, Tween, ness & Yew : ne . (New York, N. ¥. ah -? ; a “as an admission of, statenients contain a ne a omaaien , o ‘ . 45 : : D.- CONCLUSION * er matters construed ink . We think sed of in our prin- ~ Our oision to mention herein | any “0 touched upon in espondent’ s brief is n any such matters ‘are effectively dis cipal brief. ‘ fully submitted, 4 f n . Gro. D. WELLEs, a “i a | Toledo, Ohia, | ” x 71% Counsel for Petitioner. Karu F, Boxe, Toledo, Ohio, Tracy, Cuapman & WELLES, | | / Toledo, Ohio : . e ‘ Artuur A. GAMMELL, ; | Me : : ra : New York, N.Y. of ae s . : Z ka " TimotHy N. PFEIFFER, oF . New York, N. Y. Of. Cownse! for Petitioner. ~ —~\ ee ie eee EIR THORS | ® RRR PPE EN IS APT INS Oe ME I ee NT TT . es rt pe . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0025%3A08. Public record. Not legal advice.