being taken, the court finds that the question which Fowler refused to answer and for which refusal he was committed for contempt was irrelevant and immaterial, and, therefore, an incompetent question.

In addition, this court feels that Fowler acted wisely and within his rights in refusing to divulge the names of the witnesses upon whom he might be compelled to rely for testimony in substantiation of the allegations of his petition and the successful prosecution of his cause of action.

The fact that by divulging the names of his witnesses Fowler might be injured in the prosecution of his cause is so obvious that further comment is not required.

Besides, the court, in so finding, is fortified by a recent decision of the Supreme Court, in a case wherein the facts and finding are strikingly similar.

It is to be found in Ex Parte Schoepf, 74 Ohio State, page 1. The fourth syllabus, page 2, reads as follows:

"While an officer before whom a deposition is being taken is empowered to punish as for contempt any person who refuses to obey an order to answer a question or to produce a document, he can not do so unless it is so "lawfully ordered;" and where such question or document is not pertinent to the issues tendered or made, or is not material or necessary to make out the case of the party calling for it, or is incompetent or privi leged, the witness can not lawfully be ordered to answer such question or to produce such document."

In that case, the deposition was being taken ostensibly to be used in an action for personal injuries instituted in the common pleas court of Hamilton county by one Josephine Pace against the Cincinnati Traction Company.

The person incarcerated for contempt was the claim agent of the defendant company, and the deposition was being taken on behalf of plaintiff.

The witness testified that he had in his possession certain reports of the accident, containing the names and statements of the witnesses to same.

When asked to produce them, he refused. This was one ground of the alleged contempt.

He was also asked the following questions, all of which he refused to answer and for which refusal also the notary held he was in contempt.

Q. "On the seventeenth of May, 1902, a woman fell or was thrown off a car belonging to the Cincinnati Traction Company, at or near the corner of Oak and Belmont streets, College Hill; who was the conductor in charge of this car?

Q. Do you know the name of this conductor.

Q. Do you know the name of the motorman on this car? Q. Were there any other persons on this car besides the plaintiff, conductor and motorman?

Q. Were there any persons that you know of, besides the plaintiff, conductor and motorman present at the time of the accident and who witnessed it?

Q. Who was the division superintendent in May, 1902, of the division to which College-Hill-Main line belonged?"

The Supreme Court in this case found that the production of the document was not material and necessary to the plaintiff's case; that the questions were incompetent, immaterial and irrelevant; that the purpose was to compel the defendant to disclose before the trial the sources of its information and the names of its possible witnesses and discharged the petitioner.

Was Fowler guilty of contempt in refusing to re-appear before the notary when the demand was made, by the notary on counsel, Mr. Holland?

As heretofore stated, no objection-no serious objection, at least-was made as to his leaving the office; furthermore he is not charged with contempt for leaving the office without permission.

Mr. Delscamp has been requested to continue with the crossexamination, but he refused to question the witness further until the one particular question was answered.

The facts bear out the inference that the remainder of the afternoon following Fowler's departure was occupied by the notary and Mr. Delscamp in drafting the commitment papers.

Also, the request that Fowler re-appear was accompanied with the notary's demand that he answer the one question which he had refused to answer.

There is nothing in the commitment, nor in the testimony, by which anything else can be inferred but that sole desire to have Fowler re-appear was to compel him to answer the question which had already been propounded.

A different procedure is provided for compelling a witness to obey a subpoena. Section 11511 of the General Code provides, in part, that

"When a witness fails to obey a subpoena personally served, the court or officer, before whom his attendance is required, may issue to the sheriff, coroner, or a constable of the county, an attachment, commanding him to arrest and bring the person named therein before such court or officer at the time and place the writ fixes, to give his testimony and answer for the contempt."

Section 11518 of the General Code provides:

"While a prisoner's deposition is being taken, he shail remain in the custody of the officer having him in charge, who shall afford reasonable facilities for the taking of the deposition."

This procedure was not followed in Fowler's case. The law as well as the method of compelling his appearance is clear and should have been strictly followed. The law does not sanction arbitrary power and will not permit a man to be deprived of his liberty without due process of law.

The court having determined that Fowler is unlawfully deprived of his liberty, he is hereby discharged.

Atcherson et al vs. Morain et al.

[Vol. 23 (N.S.)

PROCEDURE OF COUNTY COMMISSIONERS AND TOWNSHIP TRUSTEES WITH REFERENCE TO IMPROVE

MENT OF A HIGHWAY.

Common Pleas Court of Franklin County.

FRED W. ATCHERSON, COUNTY COMMISSIONER, ET AL V. C. M. MORAIN, TRUSTEE, ET AL.*

Decided, December Term, 1919.

Roads-Improvement of with State Aid-Liability of Townships to County for Share of Cost-Apportionment among Abutting Property Onwers-Construction of Amended Section 1200.

1. Section 1200, General Code, as amended in 103 O. L., 455, is permissive in form and substance and does not compel the county commissioners to require of township trustees the procedure therein mentioned as a condition precedent either to the construction of the proposed improvement or to the liability of the township and the abutting property owners upon completion of the improvement. 2. Where a highway improvement has been made with state aid granted on application of the county commissioners, in accordance with highway laws as amended in 103 O. L., 449, etc., the township or townships through which said improvement passes are under a liability to the county for the townships' share of the cost as defined in Section 1208, General Code (103 O. L., 456), and the trustees thereof are, in such cases, required to apportion the amount to be paid by the abutting property owners according to the benefits accruing to the owners of the land so located, unless such share has been waived and assumed by the county commissioners upon a resolution adopted by them as provided in Section 1210-1 General Code (103 O. L., 457).

Hugo N. Schlesinger, prosecuting attorney and John H. Summers, assistant prosecutor, for plaintiffs.

Donaldson & Tussing, contra.

SOWERS, J.

Two actions are brought by the prosecuting attorney upon behalf of the county commissioners against the trustees of *Affirmed by the Court of Appeals for the Fourth District, June 16, 1920.

1920.]

Atcherson et al vs. Morain et al.

pleasant township, Franklin county, Ohio, asking for a mandatory writ in one cause of action, commanding the defendants to make a certain apportionment among the abutting property owners for the improvement of a highway passing through said Pleasant township, and that they be required to certify to the auditor of Franklin county, Ohio, for collection the amount so apportioned, and in the other cause of action praying for a money judgment against the trustees of the township for their three-fifths of a twenty-five per cent. apportionment to cover costs of the improvement of said highway.

The petitions set out that the county commissioners, by proper resolution, in December, 1913, found that the public interest demanded the improvement of Section H, inter-county highway, No. 50, situate in said Franklin county and running southwesterly through Franklin, Jackson and Pleasant townships to its intersection with the boundary line of Pickaway and Franklin counties.

The petitions further state that the contract for the construction of the road was finally let by the state highway commissioner to one W. O. Jewett for the sum of $43,000 and that by a supplemental contract thereto, an additional contract was let to said Jewett for the sum of $1,400 making a total for engineering and superintendence covering the original and supplemental contracts of $46,277.82, of which sum the commissioners of Franklin county paid $23,138.92 and the state of Ohio paid the sum of $23,139.90.

The petitions further allege that the county commissioners did not waive any part of the apportionment of the costs and expenses as provided by law to be paid by the townships and abutting property owners, and guaranteed that said sum, necessary for said improvement would at all times be available when needed in the construction of said highway.

The defendants filed a general demurrer to both petitions. The demurrers are based upon the construction of certain statutes contained in the General Code, numbered from 1200 to 1210-1 inclusive, and particularly Section 1200, which in its original form (99 Ohio Laws, page 310), provided that before