The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1902-03-11
JUDGMENTS
AFFIRMED
Circuit Agrees With the
Lower Courts
Rulings.
HEALTH OFFICER
WINS HIS CASE
MassiIlon Must Cash Up--Jus-
tics Court Had No Jurisdle-
tIon Over an insane

Circuit court handed down decis-
ions Friday afternoon on the cases
heard during the week. Judge Doug
lass was called home and Judges Vor-
hees and Donahue handled the cases.
The lower courts were sustained In
every case.
The first case decided was that Of
the Fulton Tool and Manufacturing
company against the Fulton Tool
works. 1t was an action brought by
the plaintiffs to prevent the defend
ants from using the name Fulton as
part Of their trade mark after 1t
had succeeded to the business. Judge
Donahue gave the finding of the court.
He stated that the evidence showed
that the defendants had used the name
for five years without any protest,
and at the end of this time the plain
tiff came into court with an equity
case asking that an injunction be
granted. The trade mark under which
the company operated was not even
registered and the court held that
when the Fulton Tool works succeed
ed to the business II also had right
to the name. The lower court took
this position and its judgment was af-
firmed by the higher tribunal.
Attorney Shields. of Canton, and
Musser. of Akron. represented tho
plaintiff and Thayer and Welty rep
resented the defendant company.
THE MASSILLON CASE.
The Massillon council will have to
pay T. Clark Miller, its health officer.
M hi
ground and 1t was affirmed by the cir
cult court in a lengthy decision hand
ed down by Judge Vorhees.
The Massillon board of health ap-
pointed Miller as its health officer,
and after he had held the office for
some time increased his salary to $50
a month. When the council was asked
to pay him, 1t refused to do SO. It
took the ground that the board could
not increase an officers salary during
the term for which he had been ap-
pointed, and that even IL 1t desired to
pay the salary claimed it could not le-
gally do SO for the reason that the
clerk had not certified that there was
money in fund to pay him.
Miller sued to recover $3.50 and in
the trial Of the case In common pleas
court got a verdict for that amount.
The city then appealed to circuit court
for reversal.
In passing upon the case Judge vor-
hees stated that there were two points
to be considered. One was as to wheth-
er the board had right to increase
the salary when 1t did and whether
the council could pay without the clerk
certifying that the money was In fund.
THE BOARDS POWER.
The position was taken that state
law made 1t the duty of the council to
create the board of health and the
board of health was compelled to ap-
point a health officer. The law was
mandatory. He was not to be an
pointed for any specific time, and was
In the nature of police officer rather
than Of a civil Office holder There
was no limit to the term. He could be
dismissed at any time and the law did
not apply. to such officers. 80 that the
salary or pay could be increased to
meet the demands and exigencies of
the case at any time
AS to whether the council could nav
the salary without the certificate of
the clerk, the Judge held that the
same law applied. 1t was the duty of
the council not only to create the board
OF health but to appropriate money for
Its support The law did not require
the certificate of the clerk In case of
this kind. as 1t was a regular provis-
ion of the statutes and the council was
derelect In its duty when 1t failed SO
to do.
1t was held that the Judgment OF tho
lower court was correct and 1t was
sustained.
Otto Il. Young and Judge Thayer
represented Miller and City Solicitor
Howelis and Atlee Pomerene repre-
sented the city.
THE ROOsE CASE.
The Stark Electric railway company
brought an action In the probate court
to appropriate right Of way through
the farm OF Simeon Roose, and the tury
fixed the amount Of compensation and
damages at $540. Roose was not sat
isned. He alleged error in the probate
court as to the admission of evidence
ana the failure Of the court to charge
certain things. The common pleas
court upheld Judge Aungst and 1t then
was carried to circuit court Judge
Donahue sustained the lower courts
and found no prejudicial error.
J. w. Craine appeared for Roose
and Webber and Turner represented
the railway company.
THE SMOKE CASE.
In the case Of Henry Mortensen
against the Troy Laundry company,
growing out Of an alleged smoke nui-
sance. . decision had been reached.
but owing to the fact that Attorney g.
9. Bow was not In the city the decis- 3
lon VIII not be handed down until
some time next week.