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I 


HARVARD  LAW  LIBRARY 


££ 


;*  THE  .     9 


OHIO  NISI  PRIUS  REPORTS. 


NEW  SERIES.     VOLUME  VII. 


BEING  REPORTS  OF  CASES  DECIDED 


SUPERIOR,  COMMON   PLEAS,  PROBATE  AND 

INSOLVENCY  COURTS  OF  THE 

STATE  OF  OHIO. 


Vinton  R.  Shepard,  Editor. 


CINCINNATI : 

THE  OHIO  LAW  REPORTER  COMPANY, 

1K». 


COPYRIGHT,  WW, 
BY  THE  OHIO  LAW  REPORTER  COMPANY. 

SEP    18    1909 


TABLE  OF  CASES. 


Akron    ft    Chicago    Junction     • 

Ry.,    Brown    v 629 

Akron  Board  of  Education  v. 

Sawyer    401 

Akron  v.  East  Ohio  Gas  Co.  553 

Anderson.  King  v 333 

Augustus    v.    Lynd 473 

Avery  v.  Howard.*. 87 

Bailey,  Lane  v. 198 

Baker  v.  Morehead  A  Co 384 

Baum,  Northern  Pacific  Ry.  v.  266 

Baxter,  Rose  v 132 

Becker  v.  Shoemaker 272 

Bell  v.  Cincinnati... 35, 

Bell   v.   Cincinnati 393 

Benson  v.  Columbia  Life  Ins. 

Co.    .* 118 

Berman,  Connecticut  Life  Ins. 

Co.    V.    145 

B.     ft     O.     Railway,     Taney- 

hill   T 487 

B.  ft  O.  8.  W.  Ry.,  Union  S. 

B.  *  T.  Co.  v.   497 

Board  of  Education  v.   Saw- 
yer      401 

Boos  v.   Montgomery   County 

Commissioners    76 

Brotherhood    Railway    Train- 
men, Daley  v 238 

Brown    v.    Akron    u   Chicago 
Junction  Ry 629 

Calvert,    Smith    Agricultural 

Chemical   Co.  v.    103 

Carroll,  Williams  County  Com- 
missioners v.  17 

Caatner  v.  Pleasant  Ridge 174 

Cincinnati,   Bell   V 3G 

Cincinnati,  Bell  v,    398 

Cincinnati  v.  P.,  C,  C.  ft  St. 

L.  Ry.   81 

Cincinnati,  McLean  v 206 

Cincinnati.  McNeely  v.  441 

Cincinnati  Traction  Co..  Frank 


Cincinnati  Traction  Co.  v. 
Jennings  «62 

Clsler.  Nelson  Morris  ft  Co.  v.  142 

Cleveland  ft  S.  Traction  Co., 
McGIll  v.    489 

Cleveland  v.  Cleveland 249 

Cleveland,  Woodland  Ave.  St. 
Ry-  Co.  v 161 

Columbia  Life  Ins.  Co.,  Ben- 
eon    v.    118 

Commissioners  Montgomery 
County,  Boee  v.  76 

Commissioners  Williams  Coun- 
ty v,  Carroll 17 

Connecticut  Mutual  Life  Ins. 
Co.  v.  Berman 145 

County  Offices  (In  re  Clerk 
Hire  tor)    8 

Craig.  In  re 307 

Crume  ft  Serton  Mfg.  Co., 
Schmuck  v .' 24 

Daley  v,  Brotherhood  Railway 

Trainmen   23S 

Daugherty,  Stasel  v 424 

Dickerson,  State  v.  19-1 

DlcKerson,  State  v.  208 

D„  T.  ft  I.  Ry.,  State  v 641 

Dun-ell   v.   Ohio   Traction   Co.  136 

Dyer,  Hyde  Park  v 244 

Eaat  Ohio  Gas  Co.,  Akron  v.  663 

Faulkner,  Kealey  v. 49 

Fields  v.  Ragelmeir  685 

First       German       Reformed 

Church  v.  Weikel    377 

First  National  Bank  v.  Mnl- 

len    313 

Frank  v.  Cincinnati  Traction 

Co. 143 

Frosi,  McCabe  v.  261 

Qalbralth,  Button  v 293 

Gas  Co..  Akron  v 653 

Gassman  v.  Kearns  620 


IT 


TABLE  OP  CASES. 


German  Reformed  Church  v. 

Welkel    37? 

Glbbs,    State    v 346 

Glbbs,  State  v 371 

Glllman  v.  State 488 

Gray  v.  McNeely   450 

Hart  v.  Roeckers  396 

Havilaud  School  Dlatrlct,  Mc- 

Alexander  v 690 

Hlsey,    Stemen    v.    601 

Howard,  Avery  v ,  97 

Hyde  Park  v.  Dyer 244 

Id   re   Schooler    274 

In  re  Clerk  Hire  for  County 

Offices     8 

In  re  Craig  307 

Insurance  Co..  Schott  ft  Sons 


Co. 


Jennings,  -Cincinnati  Traction 

Co.  t 

Jung  y.  State  ...•'. 


397 


Kaufman,  Parish  ft  Co.  v.  . .  342 

Kealey  v.  Faulkner 40 

Kearna,  Gasaman  v.   626 

.  Kimball,  Shlpbaugh  v. 614 

King  v.  Anderson  838 

Lane  v.  Bailey  198 

Laning,  State  v 281 

Lewis  v.  Owens 188 

Llsey  ft  Co.,  Speaks  ft  Ryan  v.  389 
Long  t.  L.  ft  C.  Packet  Co. . . .  14 
L.  S.  ft  M.  S.  Ry.,  Ohio  Dairy 


Co. 


.  451 


.   313 

Nelta,  Powder  v 1 

Nelson  Morris  ft  Co.  v.  Cialer  142 
Neth,    Recording   ft    Comput- 
ing Machines  Co.  v. 217 

Northern  Pacific  Ry.  v.  Baum  265 

Ohio    Dairy    Co.    V.    Hallway 


Ohio    National    Bank,    State, 

ex  rel,  v.   

Ohio  Traction  Co.,  Durrell  v.  1 
Owena,    Lewis   v.    1 

Parish  ft  Co.  v.  Kaufman  ...  3 

Payne  v.  Stapely  Co.  3 

P.,  C,  C.  ft  St  L.  Ry.,  Cin- 
cinnati v.    

P.,  C,  C.  ft  St  U  Ry.,  Moore 


Perry  County  v.  Tracy  . . . 
Pleasant  Ridge,  Caatner  ' 

Powder  v,  Neiss  


L.  S.  ft  M.  S.  Ry..  State  v...  571 

Lynch.    State    v.     365 

Lynd,  Augustus  v 473 

Me  Alexander      v.      Havlland 

School  District  590 

McCat,e  v.  Frosa  261 

McGill  v.  C.  ft  S.  Traction  Co.  489 

McLean  v.  Cincinnati 205 

McNeely,    Gray   v 450 

McNeely  v.  Cincinnati  441 

Meyers  v.  Vermillion 90 

Mlddlepoint    Home   Tel.    Co., 

U.  S.  Tel.  Co.  v 425 

Miller   v.    Miller 158 

Montpeller  Bank  v,  Mullen'...  819 
Montgomery      County      Com- 

miaaionera.  Bom  v 78 

Moore  v.  P.,  C.  C.  ft  St  L, 


Ry. 


,368 


Rogelmelr,  Fields  v. 685 

Railway,  Brown  v 529 

Railway,  Cincinnati  v.   ...'..  81 

Railway.  Moore  v 368 

Railway,  Ohio  Dairy  Co.  t...  451 

Railway,  State  v 541 

Railway,   State  v 571 

Railway,  Union  Bavin ga  Bank 

ft  Trust  Co.  v 497 

Recording  ft  Computing  Ma- 
chines Co.  v.  Neth 217 

Riley  v.  Riley    100 

Roeckers,  Hart  v,   396 

Rose  v.   Baxter    132 

Sawyer,  Akron  Board  of  Edu- 
cation   v 401 

Schmuek  v.  Crume  ft  Sefton 

Mfg.    Co. 24 

Schooler,  In  re  276 

Schott    ft    Sons    Co,    v.    Life 

Ins.    Co 548 

Search  v.  Search 274 

Security    Mutual    Life    Ins. 

Co.,  Schott  v 548 

Shlpbaugh  v.  Kimball  514 

Shoemaker,   Becker  v 272 

Sickles   v.   State 888 

Smith  Agricultural  Chemical 
Co.  v.  Calvert 103 


tabu;  of  oases. 


Smith  v.  Western  Union  Tel. 


Telephone    Co. 


Co. 


.   3S9 


-  Stapely  Co.,  Payne  v 861 

Stasel   v.   Daugherty    424 

State,  ex  rel,  v.  Ohio  National 

Bank    ...     (3 

State,  ex  rel,  v.  Sollars 667 

State,   Gilliam    v 4S2 

State,  Jung  v 397 

State,    Sickles   v 338 

State  v.  Dlckeraon    198 

Statu  v.  Dlckeraon    208 

State  v.  D.,  T.  ft  I.  Ry 641 

State  v.  Glbbe    346 

State  v.  Glbbs    371 

State  v.  L.  8.  ft  M.  8.  Ry...  671 

State  r.  Lanlng    28L 

State  v.  Lynch   365 

Stemen  v.  Hlzey  601 

Strunk,  Yakey  v 177 

Sutton  v.  Oalbralth 293 

.   487 


Traction  Co.  v.  Jennings  . 
Traction  Co.,  McGlll  v.  . 
Tracy,  Perry  County  v.  . . 


.   619 


Union   S.   B.  «  T.   Co.  v.  B. 

ft  O.  8.  W.  Ry 497 

United    Cigar    Stores    Co.    v. 

Von    Bargen    420 

U.  8.  Tel.  Co.  v.  MIddlepoinf 

Home  Tel.  Co '. . .  426 

Vermillion,  Meyers  v ,     90 

Von  Bargen,  United  Cigar 
Stores  Co.  v 420 

Welkel,  German  Reformed 
Church   v.    377 

Western  Union  Tel.  Co., 
Smith   v 609 

Wilson  v.  Wilson  435 

Woodland  Ave.  St.  Ry.  Co.  v. 
Cleveland    161 


Takey  v.  Strunk   , 


.   177 


OHIO  NISI  PRIUS  REPORTS 

NEW  SERIES— VOLUME  VII. 


CAUSES    ARGUED    AND    DETERMINED    IN    THE   SUPERIOR, 

COMMON  PLEAS,  PROBATE  AND  INSOLVENCY 

COURTS  OF  OHIO. 


LIABILITY  TO  SUB-LESSEE  FOE.  FAILURE  OF  QUIET 


Common  Pleas  Court  or  Lucas  County. 

Ernest  Powder  v.  Frank  Neiss. 

Decided,  January  26,  1908. 

Lease— Transfer  of,  for  Unexpired  Term — Was  it  an  Assignment  or  a 
Sub-letting — Transferee  Compelled  to  Purchase  Peace  with  the 
Owner — Brings  an  Action  Against  the  Original  Lessee  on  Contract 
and  in  Tort  for  Loss  Sustained — "Term''  Comprehends  Time  and 
Estate — Notice — Imperfect  Return  oy  Constable. 

1.  Where  a  lessee  transfers  his  lease  to  a  second  party  who  In  turn  en- 
ters Into  a  written  agreement  with  a  third  party  whereby  he  con- 
veys the  lease  to  said  third  party  for  a  term  equal  to  the  unexpired 
term  of  the  lease  and  at  the  same  rental,  with  a  defeasance  clause 
and  an  agreement  on  the  part  of  said  third  party  to  attorn  to  the 
second  holder  and  deliver  up  the  premises  to  him  at  the  end  of  the 
term,  or  upon  failure  to  comply  with  the  provisions  of  the  lease, 
the  contract  Is  an  assignment  and  not  a  sub-letting,  and  there  is 
no  privity  between  the  third  fa  occupation  and  the  original  lessee, 
and  the  said  third  party  can  not  maintain  an  action  against  the 
original  lessee,  upon  an  Implied  warranty  of  title  and  quiet  enjoy- 
mint  of  the  prtmiin,  for  sxpeniei  incurred  In  defending  a  iult  la 


LUCAS  COUNTY  COMMON  PLEAS. 


Powder  v.  Neiss.  [VoL  VII.N.S. 


forcible  entry  and  detainer  and  in  buying  peace  with  the  owner 
of  the  premises. 
2.  The  transcript  of  a  record  from  a  Justice  of  the  peace  in  a  forcible 
entry  and  detainer  action,  which  shows  no  more  with  reference  to 
notice  to  the.  defendant- than  that. he  was  served  "In  parson,'1  Is 
clearly  insufficient  to  show  that  the  justice  obtained  Jurisdiction 
over  the  defendant 

Failing  &  Epstein,  for  plaintiff. 

Frederick  B.  WWard  and  AU>nzo  O.  Duer,  contra. 

Morris,  J.  (orally). 

The  defendant,  Neiss,  leased  certain  real  estate  from  one 
Margaret  Herb  for  a  term  of  years.  During  his  term  Neiss  sub- 
let the  premises  for  the  remainder  of  his  term  to  one  Tschirret. 
Before  the  time  of  the  original  lease  had  expired  Tschirret,  by 
a  written  instrument  containing  the  usual  covenants  of  a  lease, 
let  the  premises  to  the  plaintiff,  Powder,  at  the  same  rental,  for 
the  whole  of  the  unexpired  time  of  the  original  lease,  and  Powder 
took  possession.  Subsequently  the  original  lessor,  Margaret 
Herb,  brought  an  action  in  forcible  entry  and  detention  before 
a  justice  of  the  peace  against  Neiss,  Tschirret  and  Powder,  and  a 
judgment  for  restitution  of  the  premises  was  entered  in  said 
case  against  all  the  defendants.  Neiss,  however,  did  not  appear, 
and  the  record  in  said  case  shows  the  return  of  the  constable,  as 
follows : 

"Received  this  writ  Sept.  2,  1905,  and  on  Sept.  2,  1905,  I 
served  Ernest  Powder  by  leaving  a  true  copy  at  his  usual  place 
of  residence,  and  Emil  Tschirret  and  Prank  Neiss  in  person." 

Thereupon,  the  plaintiff,  Powder,  paid  Margaret  Herb,  who  he 
claims  in  his  petition  was  the  owner  of  the  paramount  title,  the 
sum  of  $100  in  consideration  of  her  allowing  him  to  remain  in 
quiet  and  undisturbed  possession  of  the  premises.  And  this  ac- 
tion is  brought  by  Powder  against  Neiss  to  recover  as  damages 
the  $100  so  expended  by  Powder  to  Herb,  and  in  addition  about 
$60  expended  by  him  in  costs,  expenses  and  attorney  fees  in  the 
forcible  entry  and  detention  case.  Plaintiff  claims  the  defend- 
ant, Neiss,  is  liable  to  him  by  reason  of  an  implied  warranty 
of  title  and  quiet  enjoyment  contained  in  the  lease"  of  the  prem- 
ises, which  Neiss  made  to  the  plaintiff's  lessor,  Tschirret;  and 


NISI  PRIUS  REPORTS— NEW  SERIES.  3 

1908.]  Powder  v.  Nelaa. 

also  by  reason  of  alleged  false  representations  on  the  part  of 
Neiss  as  to  the  property  in  question. 

At  the  conclusion  of  the  evidence  motion  was  made  by  the 
'plaintiff  for  the  court  to  direct  the  jury  to  return  a  verdict  in 
his  favor,  and  a  like  motion  was  made  by  the  defendant  for  a 
verdict  in  his  favor. 
The  plaintiff,  Powder,  is  seeking  to  recover  the  amount  he  ac- 

The  case  is  a  very  interesting  one  from  several  points  of  view, 
tually  paid  to  the  owner  of  the  property,  the  original  lessor,  in 
order  to  secure  peaceable  possession  of  the  premises  in  contro- 
versy, and  he  seeks  to  recover  the  expense  he  was  put  to  in  the 
case  brought  by  the  owner  of  the  property  to  oust  him  from  his 


The  plaintiff  in  his  petition  sets  forth  two  causes  of  action; 
one  in  contract,  and  the  other  in  tort.  And  it  is  claimed  now 
that  although  the  plaintiff  might  not  be  entitled  to  have  this  case 
go  to  the  jury  to  determine  the  question  made  in  the  pleadings 
on  the  first  cause  of  action,  where  the  contract  simply  is  in- 
volved, that  it  should  be  allowed  to  go  to  the  jury  on  the  ques- 
tion of  tort;  in  other  words',  that  the  question  should  be  sub- 
mitted to  the  jury  as  to  whether  or  not,  under  the  evidence  in 
this  case  and  the  law,  the  plaintiff  is  entitled  to  recover  dam- 
ages against  the  defendant,  by  reason  of  the  defendant's  deceiv- 
ing him  with  reference  to  his  title  to  this  property  at  the  time 
he  entered  into  his  contract  with  Neiss  and  Tschirret,  in  view  of 
his  having  known  the  intention  and  purposes  of  the  parties  at 
the  time. 

I  am  disposed  to  think,  however,  from  the  evidence  as  I  recol- 
lect it— and  I  have  paid  pretty  close  attention  to  it — that  there 
has  been  a  complete  failure  here  to  show  that  the  defendant 
was  guilty  of  misrepresentation  or  fraud  or  willful  deceit  that 
would  furnish  a  basis  of  recovery  on  the  second  cause  of  action. 
There  is  nothing  here  that  shows,  or  tends  to  show,  it  seems  to 
me,  that  the  plaintiff  in  this  ease  was  misled  as  to  his  rights  or 
that  he  did  not  thoroughly  understand  the  nature  of  the  de- 
fendant's connection  with  this  title,  and  his  rights  under  his 
contract  with  Mrs.  Herb ;  or  that  there  was  any  act  of  the  de- 
fendant that  should  have  deceived  him,  or  any  representation 


4  LUCAS  COUNTY  COMMON  PLEAS. 

Powder  v.  Nelsa.  [Vol.  VII,  N.  8. 

made  by  defendant  that  was  misleading.  There  was  no  inten- 
tion on  defendant's  part  to  deceive  him  in  any  way.  There  is 
nothing  in  the  case  supporting  the  cause  of  action  based  upon 
tort. 

The  only  question,  therefore,  is  whether,  as  the  case  now  stands 
on  this  record,  the  defendant  is  entitled  to  a  verdict.  Now, 
the  first  and  most  interesting  question  is  as  to  the  character  of 
this  transaction  entered  into  between  Tschirret  and  Powder,  by 
which  Tschirret  in  the  ordinary  form  of  a  land  lease,  as  drawn 
in  this  state,  conveys  to  Powder  the  property  in  question  for  a 
specific  length  of  time  (which  in  fact  covers  the  exact  time  that 
Tschirret  was  entitled  to  hold  the  property  under  his  lease  with 
Neiss),  in  consideration  of  Powder's  agreement  with  Tschirret 
to  pay  a  stipulated  rent  and  to  comply  with  its  terms  in  all  re- 
spects, and,  on  his  failure  to  so  comply  with  the  terms  of  the 
lease,  to  surrender  whatever  interest  he  had  therein  to  Tschirret, 
and  in  addition  to  that  to  surrender  to  Tschirret,  the  property 
so  conveyed,  at  the  expiration  of  the  term  bo  fixed  in  the  lease 
between  these  two  parties. 

The  question  is  whether  that  was  an  assignment  or  a  sub- 
letting. The  plaintiff's  position  is  that,  as  the  lease  on  its  face 
transfers  the  possession  of  this  property  to  the  plaintiff  for  the 
identical  time  that  the  lease  from  Neiss  to  Tschirret  then  had  to 
run,  and  at  the  same  rental,  although  it  contained  clauses  of 
defeasance  and  a  further  agreement  on  the  part  of  Powder  to 
put  Tschirret  in  possession  of  the  property,  as  if  he  were  the 
owner  of  it,  at  the  expiration  of  the  lease — still  it  was  an  assign- 
ment and  not  a  sub-letting  of  Tschirret 's  interest  in  the  property. 
There  seem  to  be  authorities  on  both  sides  of  that  proposition; 
at  least,  there  are  cases  that  take  the  view  of  counsel  on  either 
side  of  this  case.  There  does  not  seem,  however,  to  be  a  distinct 
holding  either  way  by  any  court  of  this  state,  whose  decisions  or 
opinions  we  are  required  to  follow. 

I  will  say  that,  personally,  I  am  impressed  with  the  logic  of 
the  holdings  of  Massachusetts,  Iowa  and  the  other  states,  in  the 
cases  that  have  been  cited  by  counsel  for  defendant,  on  this 
proposition:  Dunlap  v.  BuUard,  131  Mass,,  161 ;  Collamer  v. 
Kelley  et  «I,  12  Iowa,  320;  Bicks  v,  Martin,  25  Mo,  App.  Rep., 


NISI  PRIUS  REPORTS— NEW  SERIES.  5 

1908.]  Powder,  v.  Neira. 

366;  Martin  et  al  v.  O'Conner,  43  Barb.,  514;  People  v.  Elston 
et  al,  39  Barb.,  1;  Koppel  v.  Tilyan,  70  N.  Y.  Suppl.,  910; 
2  Blackstone's  Com.,  p.  143;  Post  v.  Kearney,  2  Comst.  (N.  T.), 
394. 

Now  Tsehirret,  who  was  confessedly  a  tenant  of  Neiss  and 
who  agreed  in  his  lease  that  he  would  not  sub-let  or  assign  the 
premises  without  the  consent  of  Neiss,  although  there  was  no 
forfeiture  clause  in  the  lease  provided  he  violated  that  part 
of  the  contract,  has  made  a  straight  lease  of  this  property,  con- 
taining all  of  the  defeasance  clauses  that  are  in  common  use ; 
there  is  no  reference  to  the  original  lease  which  Neiss  had  of 
these  premises ;  no  reference  to  who  owned  the  property  or  who 
owned  an  interest  in  it;  and  Powder  binds  himself  at  the  ex- 
piration of  ,the  term  named  in  the  lease — or  at  any  time  during 
the  period  between  the  making  of  the  lease  and  taking  posses- 
sion under  it,  and  the  time  limited  in  the  lease,  provided  he 
fails  in  any  regard  to  comply  with  the  terms  of  that  instrument 
— to  quit  and  deliver  up  the  said  premises  to  said  Tsehirret,  as 
if  Tsehirret  was  the  absolute  owner  of  the  same,  Jt  would 
seem  that  a  written  contract  containing  sueh  provisions  does 
not  put  Powder  in  the  shoes  of  Tsehirret,  so  far  as  Tschirret's 
landlord  is  concerned,  and  I  am  unable  to  see  how  it  can  fairly 
be  urged  that  such  an  outcome  of  that  contract  could  have  been 
within  the  contemplation  of  the  parties.  The  rent  is  paid  to 
Tsehirret;  he  is  the  landlord;  that  seems  to  have  been  in  the 
minds  of  the  parties;  there  is  no  privity  of  estate  or  interest 
between  Powder  and  Neiss;  and  naturally  I  am  unable  to  see 
bow  it  can  be  claimed  that  it  was  the  intention  of  the  parties 
as  is  claimed,  that  Powder  should  stand  with  reference  to  that 
original  contract  between  Neiss  and  Tsehirret,  as  the  assignee 
of  Tsehirret. 

The  only  thing  that  can  be  urged,  and  in  fact  is  urged,  in 
support  of  the  position  taken  by  the  plaintiff  in  that  regard,  is 
the  fact  that  -the  time  limit  named  in  the  two  leases  is  identical. 
But  the  authorities  cited  seem  to  me  to  clearly  show  that  the 
word  "term"  does  not  merely  signify  the  time  specified  in  the 
lease,  but  the  estate  also;  and  it  is  an  elementary  principle  in 
interpreting  all  contracts  that,  if  the  intention  of  the  parties 


6  LUCAS  COUNTY  COMMON  PLEAS. 

Powder  v.  Neiaa.  [Vol.  VII,  N.  8. 

is  clear  from  the  instrument  Itself,  the  intention  should  govern. 
How  then  can  it  be  contended  in  this  case  that  such  was  the 
purpose  of  drawing  up  that  formal  instrument,  specifically  set- 
ting forth  the  intention  of  these  parties,  their  agreement  with 
reference  to  this  property,  not  only  as  to  the  amount  of  rent  to 
be  paid,  and  to  whom  it  should  be  paid ;  not  only  as  to  the  time 
that  the  contract  should  run,  but  that  at  the  end  of  that  time 
the  property  should  be  re-delivered  to  Tschirret  •  that  it  should 
be  re-delivered  to  him  if  the  rents  were  not  paid  to  him;  or  if 
statutes  of  the  state  of  the  rules  prescribed  by  the  board  of 
health  are  not  complied  with ;  or  if  liquors  are  sold  in  the  prem- 
ises contrary  to  the  law  governing  the  same,  etc.  And  if 
Tschirret  may  enter  under  a  forfeiture  of  the  tease,  has  he  not 
something  there,  some  interest  T  Did  not  this  agreement  con- 
template some  such  interest  in  Tschirret  t  The  term  of  this 
lease  did  not  mean  merely  the  time  that  it  had  to  run,  but  it  had 
some  reference  also  to  the  estate  that  was  conveyed. 

Although  I  appreciate  the  fact  that  a  good  deal  can  be  said, 
and  has  been  fairly  said,  on  the  other  side  of  this  proposition, 
and  great  industry  has  been  displayed  by  counsel  in  the  way  of 
fortifying  the  position  taken,  it  does  seem  to  me  that  this  lease 
should  be  held  to  be  a  sub-letting  of  the  property  in  question 
rather  than  an  absolute  assignment  of  any  interest  which  Tschir- 
ret had  in  the  property.  And  this  decision  practically  dis- 
poses of  the  case,  so  that  it  is  not  necessary  that  I  discuss,  at  any 
length,  some  of  the  other  questions  that  arise  in  the  record. 

For  instance,  the  question  as  to  whether  the  defendant  here, 
Neiss,  was  in  fact  ever  in  .the  justice  court,  by  reason  of  a  sum- 
mons having  been  served  on  him  in  the  forcible  detention  case. 
The  transcript  of  the  record  is  produced  here,  and  that  is  all  the 
evidence  we  have  with  respect  to  the  service  of  a  summons  on 
Neiss,  who  confessedly  can  not  be  held  in  an  action  of  this  kind 
unless  he  was  notified  of  the  suit  in  the  justice  court  and  had  an 
opportunity  to  appear  there  and  defend  as  against  the  title  of 
Mrs.  Herb,  who  brought  the  action  to  recover  possession,  making 
Neiss.  Tschirret  and  Powder  parties  defendant. 

That  record  shows  that  the  return  of  the  constable  on  the 
summons  was,  that  he  served  certain  parties,  by  leaving  at  their 


NISI  PRIUS  REPORTS— NEW  SERIES.  7 

1908.]  Powder  v.  Nefas. 

usual  place  of  residence  a  true  copy  of  the  summons;  and  that 
he  served  "in  person"  this  defendant.  Of  course,  that  does  not 
mean  anything  as  a  return.  He  may  have  told  the  defendant, 
or  may  have  thought  that  he  told  the  defendant  that  there  was 
a  lawsuit,  pending  down  there ;  or  he  may  have  read'  the  sum- 
mons to  him ;  he  may  have  given  the  copy  of  the  summons  with- 
out any  certificate  of  the  fact  that  it  was  a  copy;  or  he  may 
have  served  him  properly  by  delivering  to  him  a  true  and  certified 
copy  of  .the  summons  with  endorsements  thereon.  The  record 
is  clearly  insufficient  to  show  that  the  court  below  had  juris- 
diction over  this  defendant  in  that  case,  or  that  he  had  actual 
knowledge,  or  that  any  representative  of  his  had  actual  knowl- 
edge, of  the  pendency  of  that  suit.  While  Mr.  Epstein  took  the 
stand  and  said  he  and  Mr.  Willard  both  appeared  there  before 
the  justice  and  got  a  continuance  of  this  case,  Mr.  Epstein  does 
not  testify,  and  it  does  not  appear  that  he  can  testify,  that  Mr. 
Willard  was  authorized  to  go  there  for  that  purpose  by  Mr. 
Neiss,  or  that  he  in  fact  represented  Mr.  Nets*  in  justice  court. 
That  is  the  condition  of  the  record  in  this  case,  and  what- 
ever can  be  said  with  reference  to  the  question  as  to  whether  the 
lease  of  Tschirret  to  Powder  was  an  assignment  or  a  sub-letting 
of  these  premises,  in  my  opinion,  on  the  record  here,  the  plaintiff 
would  not  be  entitled  to  recover,  because  it  does  not  affirma- 
tively appear  that  the  defendant,  Neiss,  had  actual  notice  of  the 
pendency  of  that  suit  before  the  judgment  of  ouster  was  entered 
in  the  justice  court.  In  my  judgment,  therefore,  there  should  be 
a  verdict  in  this  ease  for  the  defendant.  (The  court  to  the 
jury): 

"Gentlemen  of  the  jury:  We  have  spent  some  time  in  a  dis- 
cussion of  the  law  that  arises  in  this  ease  on  the  motion  of  de- 
fendant that  you  be  directed  to  return  a  verdict  for  the  defend- 
ant. And  I  will  say  that  as  the  result  of  this  discussion  and 
the  consideration  given  the  case,  I  have  arrived  at  the  conclusion 
that  the  plaintiff  has  failed  in  this  action  to  show  that  he  has  a 
cause  of  action  against  the  defendant;  and  the  motion  of  de- 
fendant's counsel  is  granted,  and  you  are  directed  to  return  a 
verdict  for  defendant  in  this  case." 


SANDUSKY  COUNTY  COMMON  PLEAS. 

In  Re  Clerk  Hire  In  County  Offices.      [Vol.  VII,  N.  S- 


CLERK  HIRE  M  COUNTY  OFFICES. 

Common  Pleas  Court  of  Sandusky  County. 

In  the  Matter  op.  the  Allowance  op1  tbkGounty  Cowtmih-  ■■ 

sionebs  for  Compensation  pob  Cleek  Hire  fob 

County  Offices. 

Decided.  March  9,  1908. 

Appeal — Lies  From  County  Commissioner*,  When  Allowances  to 
County  Offices — Section  896  Given  Same  Construction  ae  Section 
1494 — Right  0/  Public  Officer  to  Compensation. 

1.  The  right  of  appeal  from  the  action  of  the  board  of  county  commis- 

sioners In  rejecting  a  claim  Against  the  county  is  limited  to  mat- 
ters In  which  the  commissioners  are  vested  with  a  Judicial  func- 
tion, and  does  not  Include  those  matters  in  which  the  commission- 
ers act  with  discretionary  power  or  in  an  administrative  or  gov- 
ernmental capacity. 

2.  No  appeal  lies  from  action  by  county  commissioners  In  fixing  the 

allowance  for  clerk  hire  for  county  offices. 

M.  W.-  Hunt,  Prosecuting  Attorney,  for  the  motion. 

Wilson,  Hunt  d;  Gam,  contra. 

Richards,  J. 

This  case  has  been  heard  by  the  court  upon  a  motion  to  dis- 
miss the  appeal,  upon  the  claim  that  the  case  is  not  one  that  is 
appealable  to  this  court.  It  appears  that  the  matter  was  heard 
by  the  county  commissioners  in  December,  1907,  under  the  stat- 
ute providing  for  compensation  or  allowance  for  the  hire  of 
deputies,  clerks,  assistants,  etc.,  for  the  various  county  officers. 
At  the  hearing  the  county  commissioners  fixed  and  allowed  the 
sum  of  $1,100  for  the  year  1908  for  the  clerk  of  this  court  for 
the  employment  of  assistants,  deputies  and  clerks. 

From  that  decision  the  clerk  of  this  court  has  appealed,  and 
the  matter  has  now  been  heard  on  a  motion  to  dismiss  the  ap- 
peal. The  only  question  for  consideration  arises  under  Section 
896  of  the  Revised  Statutes,  as  to  whether  the  proceeding  is 
one  which  is  appealable.     That  section  reads: 

"If  a  person  is  aggrieved  by  the  decision  of  the  county  com- 
in  any  case,  such  person  may,  within  fifteen  davs 


NISI  PRIUS  REPORTS— NEW  SERIES.  9 

1908.J  In  Re  Clerk  Hire  In  County  Offices. 

thereafter,  appeal  to  the  next  court  of  common  pleas,  notifying 
the  commissioners  of  such  appeal  at  least  ten  days  before  the 
time  of  trial,  which  notice  shall  be  in  writing,  and  delivered 
personally  to  the  commissioners,  or  left  with  the  auditor  of  the 
coutttyyand  the>cou2tishall,'at  theiriiiext.  .session,  -hear  and  de- 
termine the  same,  which  decision  shall  be  final." 

It  is  contended  by  counsel  for  the  commissioners  that  this 
is  not  such  a  proceeding  as  is  appealable. 

The  General  Assembly  of  Ohio,  by  a  law  recently  passed,  pro- 
vided a  new  method  of  compensation  for  county  officers,  and 
for  those  who  are  employed  as  assistants  for  county  officers. 
That  law  is  found  in  Title  9,  Chapter  2  of  the  Revised  Statutes, 
beginning  at  Section  1296-11. 

As  a  part  of  that  plan  of  compensation  the  various  county 
officers  are  allowed  certain  salaries  to  be  computed  upon  the 
population  of  the  several  counties,  and  it  is  further  provided  as 
a  part  of  that  plan  that  an  allowance  shall  be  made  by  the 
county  commissioners  annually  of  the  sums  to  be  expended  from 
time  to  time  in  the  several  counties  for  clerk  hire,  etc.  That 
is  a  part  of  the  administrative  scheme  governing  the  method  of 
conducting  the  various  county  offices  in  the  state  of  Ohio. 

It  is  provided,  as  follows,  in  Section  1296-13 : 

"On  November  20th,  1906,  each  of  the  aforesaid  officers  shall 
prepare  and  file  with  the  county  commissioners  a  detailed  state- 
ment of  the  probable  amount  necessary  to  be  expended  for 
deputies,  assistants,  bookkeepers,  clerks  and  other  employes  of 
their  respective  offices,  for  the  year  1907;  together  with  a  sworn 
statement  of  the  amount  expended  by  them  for  such  assistance 
for  the  preceding  year;  and  on  the  20th  of  November  there- 
after shall  file  a  like  detailed  statement  showing  in  detail  the 
requirements  of  their  offices  for  the  year  beginning  January  1st 
thereafter.  The  county  e  ommissioners  shall,  not  later  than 
five  days  after  the  filing  of  such  statement,  take  up  and  con- 
sider the  same,  and  shall  determine  and  fix  an  aggregate  sum 
to  be  expended  for  the  period  covered  by  said  statement,  for 
the  compensation  of  all  such  deputies,  assistants,  bookkeepers, 
clerks  or  other  employes  of  said  respective  officers,  which  shall 
be  reasonable  and  proper,  regard  being  had  to  the  amount  of 
labor  necessary  to  be  performed  by  those  receiving  the  same, 
and  shall  enter  upon  their  journal  a  finding  of  their  said  action. 


10  SANDUSKY  COUNTY  COMMON  PLEAS. 

In  Re  Clerk  Hire  In  County  Offices.      (Vol.  VII,  N.S. 

"The  officers  herein  named  shall  appoint  and  employ  sueh 
deputies,  assistants,  clerks,  bookkeepers  or  other  employes  as 
may  be  necessary  for  their  respective  offices,  and  discharge  them, 
and  fix  their  compensation,  and  shall  file  with  the  county  audi- 
tor certificates  showing  such  action-,  but  such  compensation  ' 
shall  not  exceed  in  the  aggregate  for  each  office  the  amount  so 
fixed  for  that  office  by  the  commissioners  as  herein  provided." 

That  statute  is  the  vital  part  of  the  method  provided  by  law  for 
ascertaining  what  Bums  ought  to  be  expended,  in  the  judgment 
of  the  county  commissioners,  annually,  by  the  various  county 
officers  for  assistants,  bookkeepers,  deputies,  clerks  and  other 
employes. 

The  scheme  of  the  General  Assembly  for  providing  compensa- 
tion made  it  necessary  that  the  right  to  fix  this  allowance  should 
be  vested  in  some  person,  or  some  board.  A  similar  plan  has 
been  adopted  for  municipalities  and  towns,  as  provided  in  Sec- 
tion 1536-195,  Revised  Statutes,  that  in  cities  and  villages  re- 
ports shall  be  made  to  the  council,  and  that  they  shall  make  an 
allowance  of  the  sums  to  be  expended  by  the  various  officers. 
That  is  a  provision,  I  think,  entirely  similar  in  effect  to  the  one 
now  under  consideration,  and  might  well  be  considered  with  the 
one  we  have  now  to  determine.  Clearly,  no  appeal  would  lie 
from  the  amount  so  determined  by  council,  fixing  salaries  for 
city  officers. 

The  constitutionality  of  the  act  fixing  salaries  for  county  offi- 
cers has  been  determined  by  the  circuit  court  in  a  case  reported 
in  10  C.  C— N.  S.,  175.    The  court  say  in  that  case : 

"It  is  competent  for  the  Legislature  to  fix  the  salaries  of  coun- 
ty officers,  leaving  it  to  the  county  commissioners  of  the  several 
counties  to  fix  the  sum  to  be  paid  to  deputies,  assistants,  book- 
keepers, clerks  and  other  employes." 

In  the  court's  opinion,  this  language  is  used : 

"It  can  not  be  said  that  the  officer  is  entitled  to  claim  the  fees 
as  perquisites  belonging  to  him  by  virtue  of  his  office.  The 
Legislature  has  always  bestowed  or  denied  them  at  pleasure. 
Nor  can  it  be  claimed  in  reason  that  it  intended  to  make  an  ap- 
propriation to  the  officer  as  part  of  his  compensation,  when  it 
authorized  the  board  of  county  commissioners  to  fix  the  com- 


NISI  PRIUS  REPORTS— NEW  SERIES.  11 

1908.]  ]q  Re  Clerk  Hire  In  County  Offices. 

pensation,  in  .the  aggregate,  for  deputies,  assistants,  bookkeepers 
and  clerks.  The  law  expressly  negatives  such  intent,  when  it 
makes  it  a  crime  for  the  officer,  directly  or  indirectly,  to  receive 
or  appropriate  any  part  of  the  allowance  to  his  own  use  and  bene- 
fit. It  would  be  am  anomaly  to  charge  an  officer  with  a  crime 
for  receiving  his  own.     *     *     • 

"The  Legislature  has  conferred  upon  the  board  of  county 
commissioners  in  each  county  the  power  to  judicially  determine 
these  questions.  The  selection  of  the  tribunal  must  be  left  to 
its  wisdom.  If,  under  the  law,  an  officer  should  make  applica- 
tion to  the  board  for  assistance  in  the  prescribed  way,  and  be 
refused,  then  should  he  be  physically  unable  himself  to  perform 
all  the  duties  of  the  office  because  of  their  magnitude,  the  default 
would  be  not  his,  but  that  of  the  board.  It  must  act  with  legal, 
not  arbitrary,  discretion,  in  the  bestowal  or  refusal  of  the  fund." 

The  constitutionality  of  this  method  of  compensation  being  de- 
termined, the  right  to  fix  the  amount  must  be  vested  somewhere, 
and  the  General  Assembly  has  seen  fit  to  repose  that  responsi- 
bility and  that  authority  with  the  county  commissioners,  and  if 
they  have  acted  in  good  faith  In  fixing  the  allowance,  it  would  be 
an  anomaly  if  an  appeal  would  lie  from  their  decision. 

Not  much  light  can  be  got  on  this  question  by  authorities  in 
other  states.  The  attention  of  the  court  has  been  called  to  a 
decision  in  Kentucky,  found  in  Butler  County  v.  Gardner,  96  S. 
W.,  582,  in  which  it  was  held  under  an  apparently  similar  stat- 
ute to  the  one  under  consideration,  that  such  a  proceeding  was 
appealable  from  the  decision  of  the  commissioners  to  the  court. 

The  case  of  Linton  v.  Commissioners  of  Linn  County,  7  Kan- 
sas. 79-82,  holds  directly  the  reverse,  and  the  court  there  con- 
cludes that  the  matter  was  discretionary  with  the  county  com- 
missioners and  that  an  appeal  will  not  lie,  and  this  seems  to  be 
founded  on  the  better  reasons. 

This  much  may  be  stated  with  confidence:  That  a  public 
officer  has  no  right  to  any  compensation  except  such  as  may  have 
been  provided  by  the  General  Assembly;  neither  does  he  have 
the  right  to  have  any  allowance  for  his  deputies  or  assistants, 
unless  it  has  been  authorized  by  the  General  Assembly.  That 
doctrine  was  laid  down  in  fteholt  v.  Trustees,  7  0.  R..  237,  and 
has  been  applied  in  many  cases  since. 


12  SANDUSKY  COUNTY  COMMON  PLEAS. 

In  Re  Clerk  Hire  in  County  Offices.      [Vol.  VII,  N.  S. 

A  decision  of  the  Supreme  Court  in  Shepard  v.  Commissioners, 
8  0.  S.,  354,  has  been  urged  upon  the  court  as  supporting  the 
contention  that  the  appeal  would  lie,  and  apparently,  upon  read- 
ing that  case  it  would  seem  to  justify  an  appeal,  but  upon  a 
careful  and  'Critical  examination  of  the  decision,  the  court  is 
not  of  the  opinion  that  it  is  an  authority  authorizing  an  appeal. 
The  case  involved  certain  compensation  for  a  county  recorder 
doing  certain  work,  and  as  said  in  Jones  v.  Commissioners,  57 
O.  S.,  215,  where  that  case  has  been  reviewed: 

"The  claim  of  the  recorder,  which  was  the  subject  of  the  con- 
troversy, was  for  making  indexes,  and  the  point  decided  is  that 
the  recorder  could  not  bring  assumpsit  against  the  county,  but 
his  only  remedy  was  by  appeal  from  the  adverse  judgment  of 
the  commissioners;  but  the  recorder's  claim  was  based  upon  a 
contract  which  the  commissioners  had  authority  to  make.  He 
therefore  had  a  valid  claim  for  some  amount,  and  the  jurisdic- 
tion of  the  commissioners  to  pass  upon  it  was  unquestioned. " 

In  such  a  case  it  would  be  apparent  that  the  recorder  would 
have  a  remedy,  and  if  the  action  of  the  commissioners  was  un- 
satisfactory it  would  not  be  final ;  but  that  is  entirely  different 
from  the  question  of  the  finality  of  a  decision  of  the  county  com- 
missioners under  the  statute  now  under  consideration,  where 
there  is  no  contract,  and  where  whatever  right  exists,  exists  by 
virtue  of  the  sections  of  the  statutes  quoted  above. 

Again,  the  case  in  the  8th  Ohio  State  was  not  one  which  came 
up  by  appeal,  but  was  a  direct  action  to  recover  the  amount; 
and  that  case  has  been  again  severely  criticized  in  the  case  of 
Commissioners  v.  Osborn,  46  0.  S.,  271;  and  .the  last  case  cited 
approves  and  endorses  Commissioners  v.  Ranney,  13  0.  S.,  388, 
which  of  eourse  was  after  the  decision  in  the  8th  Ohio  State  and 
is  hardly  reconcilable  with  it.  A  similar  construction  should  be 
given  to  the  fee  law  under  consideration  as  has  been  given 
to  Section  1494,  Revised  Statutes,  providing  for  a  liability,  un- 
der certain  circumstances,  of  the  township  trustees  for  services 
of  physicians  in  attending  paupers,  and  it  has  been  repeatedly 
held  that  the  only  amount  that  can  be  recovered  by  physicians 
in  such  eases  is  the  amount  allowed  by  the  township  trustees. 


NISI  PRIUS  REPORTS— NEW  SERIES. 18 

1908.]  In  Re  Clerk  Hire  In  County  Offices. 

See  Trustees  v.  White,  48  0.  S.,  577,  and  Trustees  v.  Houston, 
2  C.  C,  14. 

The  similarity  between  the  acta  as  to  the  liability  of  townships 
and  the  act  now  under  consideraton,  is  very  close.  That  act. 
Section  1494,  Revised  Statutes,  provides  in  substance  that  the 
trustees,  when  relief  is  required,  shall  immediately  be  notified 
in  writing  by  the  physician,  and  thereupon  the  township  shall 
be  liable  for  all  relief  and  services  rendered,  only  in  such  amount 
as  the  trustees  and  proper  officers  determine  to  be  just  and  rea- 
sonable. 

Now,  in  the  statute  under  consideration,  the  language  of  the 
limitation  is:  "And  such'  compensation  shall  not  exceed  in  the 
aggregate,  for  each  office,  the  amount  so  fixed  for  that  office  by 
the  commissioners  as  herein  provided." 

It  has  also  been  determined  by  our  Supreme  Court  that  no 
appeal  will  lie  from  the  action  of  the  county  commissioners  in 
fixing  the  compensation  for  attorneys  in  defending  paupers 
charged  with  crime,  or  assisting  the  prosecuting  attorneys  in 
■  prosecuting  criminal  actions.  Commissioners  v.  Osborn,  46  0. 
S-,  271,  supra;  Long  v.  Commissioners,  75  0.  S.,  539,  547. 

In  the  last  case,  which  is  the  latest  utterance  on  the  question 
by  our  Supreme  Court,  they  say,  in  the  course  of  the  opinion : 

"The  amount  of  the  compensation  is  vested  in  the  discretion 
of  the  commissioners,  and  their  decision  is  final." 


It  seems  to  the  court,  then,  that  where  the  board  of  county 
commissioners  are  authorized  by  law  to  pass  upon  and  allow  or 
reject  claims  against  the  county,  the  party  aggrieved  may  ap- 
peal, but  this  right  can  not  exist  if  it  is  a  matter  in  which  the 
commissioners  are  vested  with  a  discretionary  power,  nor  if  the 
board  is  performing  an  administrative,  or  governmental,  and 
not  a  judicial,  function. 

The  General  Assembly  had  to  repose  this  discretion  some- 
where, and  in  their  wisdom  they  have  vested  it  in  the  board  of 
county  commissioners,  and  the  court  is  of  the  opinion  that  from 
the  act  of  the  commissioners  no  appeal  will  He.  There  will 
therefore  be  an  eptry  granting  the  motion  to  dismiss  the  appeal, 


HAMILTON'  COUNTY  COMMON  PLEAS. 
Long  v.  L.  *  C.  Packet  Co.  [Vol. 


LIABILITY  Or  CARRIER.  FOR.  APPLES  FROZEN  IN  TRANSIT. 

Common  Pleas  Court  of  Hamilton  County. 

Joseph  W.   Long  v.  The  Locisville  and  Cincinnati  Packet 

Company. 

Decided,  April,  1908. 

Carrier*— negligence  of,  with  Reference  to  Care  of  Shipment — Carrier 
a  Practical  Insurer  of  Freight  Notwithstanding  Protection  given 
under  Bill  of  Lading — Notice  to  Consignee  of  Arrival — Knowledge 
of  Carrier  as  to  Weather  Condition! — Reasonable  Time  for  Re- 
moval of  Goods  by  Consignee. 

Where  a  shipment  of  apples  Is  unloaded  from  a  packet  upon  a  wharf- 
boat  In  the  early  evening,  and  during  the  night  the  apples  are 
frozen,  the  carrier  Is  liable  to  the  consignee  for  the  damages  thus 
sustained. 

Charles  Broadwell,  fop  plaintiff. 
Stephens,  Lincoln  &  Stephens,  contra. 

Woodmansbe,  J. 

In  this  suit  plaintiff  claimed  from  the  defendant  company 
the  sum  of  $230  as  damages  to  102  barrels  of  apples  that  were 
carried  by  the  defendant  eompany  for  the  plaintiff  from  the 
city  of  Louisville  on  or  about  the  12th  day  of  December,  1904, 
said  damages  claimed  resulting  from  the  negligence  and  care- 
lessness of  said  eompany  relative  to  said  shipment.  The  defend- 
ant filed  in  effect  a  general  denial.  The  cause  came  up  for  hear- 
ing before  a  jury  and  the  verdict  of  the  jury  was  for  the  de- 
fendant. The  matter  is  now  up  for  disposition  upon  a  motion 
for  a  new  trial. 

This  shipment  of  apples  was  originally  placed  on  an  open 
barge  down  the  Ohio  river,  at  New  Amsterdam,  some  distance 
below  Louisville,  and  after  arrival  at  Louisville  were  trans- 
ferred to  the  packet  of  the  defendant  company.  They  were 
frozen  some  time  after  their  delivery  to  the  barge  at  New  Amster- 
dam and  before  they  were  delivered  to  the  consignee  in  Cincin- 


NISI  PRIUS  REPORTS— NEW  SERIES.  15 

1908.]  Long  v.  L.  &  C.  Packet  Co. 

An  effort  was  made  by  the  defense  to  show  that  the  apples 
were  frozen  before  they  were  transferred  to  the  defendant  com- 
pany. It  was  shown  that  the  apples  were  upon  an  open  barge, 
covered  only  with  a  tarpaulin  and  that  the  weather  .was  cold 
enough  for  snow,  which  fell  upon  the  barge,  and  possibly  some 
ice  was  formed,  and  there  is  no  other  explanation  of  the  verdict 
of  the  jury  in  the  case  than  that  they  found  that  the  apples 
were  frozen  before  they  reached  Louisville.  The  jury  were 
instructed  by  the  court  that  if  they  found  the  apples  to  have 
been  frozen  before  they  reached  Louisville  the  plaintiff  could 
not  recover. 

The  evidence  discloses  that  other  apples  were  shipped  at  the 
same  time  and  delivered  to  consignees  in  Louisville  and  were  sold 
upon  the  open  market  and  no  complaint  was  made  with  reference 
to  them;  and  that  there  was  no  time  at  which  the  temperature 
was  low  enough  to  freeze  apples  of  the  character  of  those  in  this 
shipment  before  they  reached  Louisville.  In  addition  to  this, 
the  testimony  of  the  plaintiff  was  that  after  these  apples  ar- 
rived at  Cincinnati  on  the  evening  of  December  13,  he  examined 
a  number  of  the  barrels  between  11  and  12  o'clock  at  night  and 
found  them  in  good  condition,  but  on  the  following  morning 
about  8  o'clock  when  he  called  for  the  apples  they  were  all  fro- 
zen and  almost  worthless. 

This  statement  seems  plausible  in  view  of  the  fact  that  the 
temperature  during  that  night  was  far  below  the  freezing 
point  (eight  degrees  above  zero)  and  that  the  only  protection 
that  the  apples  had  was  by  having  placed  over  them  a  tarpaulin, 
and  that  the  temperature  inside  of  the  wharf  boat  in  which  they 
were  stored  was  about  the  same  as  that  on  the  outside. 

It  is  claimed  by  the  defendant  that  it  did  all  that  it  usually 
did  under  like  circumstances.  But  this  does  not  answer  the 
requirements  of  the  law.  Conceding  that  the  defendant  com- 
pany is  entitled  to  all  of  the  protection  given  to  it  under  an  ordi- 
nary bill  of  lading,  it  is  still  practically  an  insurer  of  freight 
that  it  receives  for  transportation,  not  being  liable  for  any  nat- 
ural decay  of  the  articles  carried,  but  it  is  liable  for  all  damages  ■ 
that  do  not  result  "from  the  act  of  God  or  a  public  enemy." 


16  HAMILTON  COUNTY  COMMON  PLEAS. 

Long  v.  L.  *  C.  Packet  Co.  (Vol.  VII,  N.  S. 

A  consignee  is  entitled  to  reasonable  notice  of  the  arrival  of 
freight  (52  0.  S.,  408).  It  can  not  be  said  that  the  consignee 
in  this  case  was  negligent,  for  he  called  for  his  freight  early 
on  the  morning  following  its  receipt.  The  sudden  change  in 
the  weather  was  such  as  to  bring  to  the  attention  of  the  company 
the  fact  that  special  care  was  required  to  protect  the  property, 
and  our  courts  hold  that  any  necessary  expense  incurred  by  a 
carrier  in  the  preservation  of  goods  from  extraordinary  peril 
not  properly  belonging  to  the  carrier  ean  be  recovered  by  it  from 
the  consignee.  In  other  words,  if  something  was  required  to  pro- 
tect this  property  that  was  beyond  the  usual  care  required  of  a 
carrier  the  consignee  would  be  required  to  reimburse  the  carrier 
for  any  expense  in  that  behalf. 

A  fair  question  to  ask  is,  could  that  freight  have  been  saved 
from  being  destroyed  as  it  was  destroyed  T  If  it  could  have  been 
thus  saved  by  reasonable  care  it  was  the  duty  of  the  transporta- 
tion company,  who  had  possession  and  control  of  it,  to  properly 
protect  it  either  by  covering  it  sufficiently  to  keep  it  from  freez- 
ing or  by  placing  it  at  its  own  expense  or  at  the  expense  of  the 
consignee  in  some  place  of  safety.  ' 

There  is  no  question  in  the  mind  of  the  court  that  the  apples 
were  frozen  and  practically  destroyed  while  they  were  in  the 
possession  of  the  defendant  company,  and  it  is  not  a  harsh  rule 
which  requires  that  they  care  for  such  property  while  in  their 
possession. 

When  the  apples  were  received  at  the  wharfboal  on  the  even- 
ing of  December  13,  the  defendants  were  advised  of  the  condi- 
tion of  the  weather;  they  were  fully  advised  of  the  equipment 
which  they  had  to  protect  the  property  and  they  knew  or  ought 
to  have  known  that  the  results  would  be  just  what  came  to  pass. 

Shall  it  be  said  that  the  consignee  must  Mar  the  loss  in  a  caie 
of  this  character*  If  so,  it  would  heap  upon  him  a  hardship 
which  he  could  in  no  way  avoid,  and  release  the  transportation 
company  from  a  duty  which  the  law  imposes  upon  it. 

The  motion  is  granted  and  new  trial  awarded. 


NISI  PKIUS  REPORTS—NEW  SERIES. 
County  Com  mitt  loners  v.  Carroll  et  al. 


CIRCUMSTANCES  ABSOLVING  A  DEFAULTING  DITCH 
CONTRACTOR, 

Common  Fleas  Court  of  Williams  County. 

Board  op  Commissioners  of  Williams  County  v.  Joseph 

Carroll  and  Lewis  Kryling.  • 

Decided.  December  11,  1906. 

County  Ditches — Contract  for  Improvement  of — Containing  Stringent 
Clause  Making  Time  the  Essence  of  the  Contract—Default  of  Lower 
Contractor  Prevents  Contractor  for  Upper  Section  from  doing  For- 
ward with  hit  Work — Delay  which  Absolves  a  Contractor—County 
Commissioners — County  Surveyor — Sections  4476,  4476,  4477  and 
4478. 

1.  Notice  to  a  contractor  is  notice  to  his  surety,  and  special  notlca  to 

the  surety  Is  not  necessary. 

2.  Where  a  contractor  for  the  improvement  of  an  upper  section  of  a 

county  ditch  In  which  water  runs  all  of  the  year  is  prevented  from 
going  forward  with  hte  work  by  the  failure  of  a  lower  contractor 
to  complete  his  section,  the  upper  contractor  will  be  allowed  time 
beyond  that  named  In  his  contract,  notwithstanding  time  Is  made 
of  the  essence  of  the  contract. 

3.  Where  the  delay  caused  by  the  default  of  the  lower  contractor  ex- 

ceeds one  hundred  and  twenty  days,  the  question  whether  It  was 
an  unreasonable  delay  with  reference  to  the  upper  contractor 
is  not  one  for  determination  by  the  jury,  but  is  of  such  a  charac- 
ter as  tn  law  to  absolve  the  upper  contractor  from  the  obligations 
of  his  contract. 

Edward  Qaudern,  Prosecuting  Attorney,  for  the  plaintiffs. 

C.  E.  Scott,  for  defendant,  Carroll. 

C.  A.  Bowersox,  for  defendant,  Kryling. 

This  was  an  action  upon  the  bond  of  a  ditch  contractor,  charg- 
ing default  in  not  completing  the  job.  The  facts  are  as  fol- 
lows :  The  improvement  in  question  was  an  old  ditch,  in  which 
water  runs  the  year  through.  Carroll  bid  off  Sections  3  and  4, 
and  gave  Kryling  as  his  surety  on  his  bonds.     By  the  terms  of 

*  Affirmed  by  the  Circuit  Court  without  report,  May,  1907. 


18  WILLIAMS  COUNTY  COMMON  PLEAS. 

County  Commissioners  v.  Carroll  et  al.  [Vol.  VII,  N.  S. 

his  contracts  he  was  to  complete  Section  3  by  September  15,  1901, 
and  Section  4  by  September  30  of  the  same  year,  the  contracts 
providing  in  terms  that  time  was  to  be  of  their  essence.  One 
Lewis  Ross  contracted  to  complete  Section  1  and  2,  which  were  be- 
low those  over  which  this  controversy  arose.  By  the  terms  of  his 
contracts  Ross  was  to  complete  the  outlet  section,  1,  by  August 
15,  1904,  and  the  next  upper  section,  2,  by  August  30.  Neither 
section  was  completed  on  time,  but  some  work  was  performed 
on  Section  1  late  in  the  fall  of  1904,  by  Theodore  Kampf,  the 
surety  for  Ross.  Kampf  finally  completed  Sections  1  and  2, 
shortly  prior  to  July  11,  1905,  at  which  date  both  Sections  1  and 
2,  were  accepted  by  the  county  surveyor,  and  the  warrant  of  the 
county  auditor  was  issued  to  Kampf  in  payment  thereof. 

Within  a  short  day  after  the  first  day  of  September,  1904, 
Carroll  went  upon  Sections  3  and  4  with  teams,  scrapers  and 
shovels,  and  men  to  perform  his  contract,  but  the  ditch  was  full 
of  water  and  after  a  bona  fide  attempt  of  several  hours  he  quit. 
He  left  his  tools  in  the  vicinity  of  the  work  for  several  weeks, 
but  no  further  work  on  the  contract  was  attempted  by  him. 
During  all  this  time  the  ditch  was  full  of  water.  In  behalf  of 
the  plaintiffs,  it  was  admitted  that  at  no  time  prior  to  the  com- 
pletion of  Sections  1  and  2,  or  at  or  shortly  before  July  ]  1,  1905, 
was  it  practicable  for  Carroll  to  perform  the  construction  of 
Sections  3  and  4,  because  of  the  lack  of  completion  of  Sections 
1  and  2. 

The  surveyor  testified  that  after  Section  1  and  2  had  been 
completed,  and  on  or  shortly  after  July  11,  1905,  he  notified 
Carroll  of  their  completion  and  notified  him  to  proceed  with  the 
construction  of  Sections  3  and  4,  which  Carroll  refused  to  do; 
that  after  the  surveyor  had  caused  part  of  the  work  on  Section 
3  to  be  completed,  he  again  saw  Carroll  and  Carroll  refused  to 
go  ahead  with  the  work,  or  to  have  anything  to  do  with  it.  On 
behalf  of  defendants,  issues  of  fact  were  taken  as  to  the  time  and 
character  and  extent  of  special  notice  to  Carroll,  who  admitted 
that  he  knew  of  the  completion  of  Sections  1  and  2  at  or  about 
July  II,  1905. 

The  surveyor  thereafter  in  August  or  September  of  the  same 


NISI  PRIUS  REPORTS— NEW  SERIES.  19 

1908.]  County  Commissioners  v.  Carroll  et  al. 

summer  of  1905  employed  men  by  the  day  to  construct  both  Sec- 
tions 3  and  4,  and  the  men  who  did  this  work  were  paid  for  their 
labor  out  of  the  county  treasury.  The  cost  of  completing  Sec- 
tion 3  was  $ ;  and  the  cost  of  completing  Section  4  was 

$ ,  no  part  of  which  was  paid  by  the  defendant  or  by  any 

other  person,  and  the  county  treasury  has  not  been  reimbursed 
from  any  source  and  the  action  is  brought  to  recover  these 
amounts  with  interest  on  Carroll's  bonds. 

At  the  conclusion  of  plaintiff's  testimony,  counsel  for  both 
defendants  moved  for  a  direction  Hiy  the  court  for  a  verdict  for 
defendants  for  that  the  evidence  did  not  sustain  plaintiff's  cause 
of  action.  The  motion  was  then  overruled.  Thereupon,  at  the 
close  of  defendants'  testimony,  which  did  not  materially  vary 
the  testimony  of  plaintiff,  defendants  moved  the  court  to  direct 
a  verdict  for  each  of  the  defendants,  upon  the  whole  evidence, 
embodying  the  foregoing  facts.  The  latter  motion  was  sustained 
and  verdict  directed  for  each  of  the  defendants,  upon  the  opinion 
of  the  court  which  follows,  to  all  of  which  the  plaintiffs  excepted. 

Killits,  J.  (passing  upon  the  motion,  orally). 

This  case  presents  some  features  that  I  am  sure  are  new  to  the 
entire  bar  here,  at  least  to  the  court  and  to  that  representation 
of  the  bar  engaged  in  the  trial  of  the  case,  and  a  construction  of 
the  special  ditch  statutes  is  required  in  parts  that  apparently 
have  never  reached  the  courts  before.  At  any  rate  there  is  no 
reported  case  in  this  state  which  has  come  to  the  attention  of  the 
court ;  certainly  none  referred  to  in  any  annotation,  that  tends 
to  enlighten  the  court  as  to  how  these  statutes  should  be  con- 
strued. The  ultimate  question  in  the  case  is  therefore  an  origi- 
nal one,  and  not  only  that  but  an  interesting  and  important  one. 

In  the  first  place  there  is  no  question  whatever,  on  familiar 
principles,  but  that  both  the  diteh  contract  and  the  contractor's 
bond  should  be  interpreted,  generally  at  least,  in  the  light  of  the 
statutes,  and  it  is  equally  well  settled  on  familiar  principles  that 
the  terms  of  the  contract  are  necessarily  to  be  read  into  the  bond ; 
the  surety  on  the  bond  is  charged  with  full  knowledge  of,  and  is 
bound  by  the  terms  of  the  contract. 


20  WILLIAMS  COUNTY  COMMON  PLEAS. 

County  Commissioners  v.  Carroll  et  al.  (Vol.  VII,  N.  S. 

In  this  particular  case  the  contract  has  a  stringent  clause  in 
it  which  in  my  judgment  is  not  necessary,  but  it  is  in  this  con- 
contract  and  it  both  binds  and  protects  the  surety,  "And  it  is 
also  fully  understood  by  me  that  I  am  liable  on  my  bond  with  this 
contract  given,  for  all  delays  after  the  expiration  of  the  time 
named  for  the  completion  of  the  job,  and  for  all  damages  that 
may  accrue  in  consequence  of  my  failure  to  complete  the  labor 
within  the  time  required.  Time  being  the  essence  of  this  con- 
tract. ' ' 

The  contract  provides  that  Carroll  must  complete  it  on  or 
before  the  30th  of  September,  1904.  "We  all  understand  what 
is  meant  by  the  expression,  "Time  being  of  the  essence  of  the 
contract."  We  know  that  that  means  that  this  contract  is 
broken  unless  the  terms  of  it  are  complied  with  within  the  date 
specified.  And  we  know  that  that  clause  is  written  in  this  con- 
tract because  of  the  interpretation  given  to  contracts  omitting 
it,  that  some  leeway  as  to  time  is  possible  because  of  the  omission. 

Early  in  the  case  a  demurrer  was  offered  and  interposed  to  the 
separate  answers  of  the  defendants,  when  the  question  arose 
whether  the  stringent  provisions  of  this  contract  could  be  held 
against  these  defendants  and  the  court  was  forced  at  that  time 
to  hold,  and  I  believe  rightly,  that,  notwithstanding  the  terms 
of  the  contract  as  to  time  and  the  effort  in  preparing  it  to  make 
time  of  its  essence,  and  unlike  the  other  provisions  of  this  char- 
acter, latitude  should  be  given  to  the  contractor  to  extend  his 
time  beyond  the  limit  of  the  contract,  because  not  only  the  law 
but  common  sense  suggests  that  an  upper  section  of  the  ditch, 
and  more  especially  as  in  this  case  one  which  runs  water  the  year 
around,  can  not  be  properly  constructed  until  the  lower  ones  are 
constructed,  and  when  it  happened,  as  in  this  ease,  without  the 
fault  of  the  upper  contractors,  that  the  lower  sections  are  not 
constructed,  notwithstanding  the  stringent  provisions  as  to  time 
in  the  contract,  we  are  sure  the  defendants  can  not  be  held  to 
a  default  wholly  arising  because  of  the  failure  of  construction 
of  the  lower  sections. 

We  can  not  be  asked  to  construe  either  the  laws  or  a  contract 
in  favor  of  an  absurd  situation  and  then  mulct  the  defendants 


NISI  PRIUS  REPORTS— NEW  SERIES.  21 

1908.]  County  Com miss loners  v.  Carroll  et  al. 

in  damages  because  of  that  condition.  So  that  the  court  thought 
then,  and  before  this  ease  was  begun  to  the  jury,  that,  notwith- 
standing the  terms  of  the  contract  the  defendants  were  only  held 
to  a  performance  of  its  conditions  within  a  reasonable  time  after 
its  expiration ;  and  the  question  which  it  seemed  to  me  yester- 
day I  should  leave  to  this  jury  was,  whether  or  not  within  a 
reasonable  time  after  the  date  of  the  contract  the  defendant, 
Carroll,  as  principal  contractor  was  called  upon  to  comply  with 
its  terms. 

The  exact  question  submitted  to  the  court  before  dinner  was 
not  whether  the  surety  Kryling  was  entitled  to  notice,  because 
if  Carroll  were  entitled  to  notice  clearly  Kryling  was.  The  ques- 
tion really  was  whether  notice  to  Carroll  operated  as  notice  to 
Kryling.  Under  a  number  of  authorities  I  am  of  the  opinion  that 
notice  to  Carroll  is  notice  to  Kryling,  and  that  any  special  notice 
need  not  be  given  to  him.  But  the  inquiry  became  broader  than 
that,  and  led  the  court  to  consider  whether  .the  commissioners  had 
a  right  of  action  against  either  of  the  defendants;  that  is,  is  the 
eourt  warranted  in  submitting  to  this  jury  a  consideration  as  to 
whether  the  delay  in  this  case,  not  occasioned  by  the  fault  of 
Carroll,  was  so  unreasonable  as  to  absolve  Carroll  from  his  con- 
tract f 

The  facts  show  that  Carroll  was  to  begin  on  Section  No.  3 
about  the  first  of  September,  and  the  evidence  shows  that  prior 
to  the  first  of  September,  by  contract  with  Ross,  working  Sec- 
tion No.  2  was  to  be  finished,  but  that  Section  No.  2  was  not 
actually  finished  until  near  the  11th  of  July,  1905,  ten  months 
and  eleven  days  after  it  should  have  been  finished  by  the  con- 
tract with  Ross.  Now  is  it  the  law  for  the  eourt  to  submit  that 
length  of  time  to  the  jury,  for  the  jury  to  say  whether  it  was  a 
reasonable  or  an  unreasonable  delay  T 

We  must  construe  all  these  statutes  together  to  get  a  har- 
monious conclusion.  Section  4475  requires  that  the  commis- 
sioners, after  all  the  preliminaries  are  settled,  shall  fix  the  time 
for  the  sale  of  the  improvement  at  public  outcry  in  sections  of 
not  less  than  100  feet  nor  more  than  16,000  feet  in  length,  and 
shall  cause  notice  to  be  given  of  the  time  and  place  of  the  sale. 


22  WILLIAMS  COUNTY  COMMON  PLEAS. 

County  Commissioners  t.  Carroll  et  al.  [Vol.  VII,  N.  S. 

It  suggests  itself  to  us  at  once  that  the  object  in  dividing  a  ditch 
into  working  sections  is  to  facilitate  its  construction. 

Section  4476  provides  that  the  county  surveyor  in  selling  the 
ditch  shall  begin  at  the  working  section  of  the  outlet,  the  mouth  of 
the  improvement,  and  shall  sell  up  the  stream,  and  shall  fix  a  day 
when  the  job  shall  be  completed,  not  exceeding  in  any  case  150 
days  from  the  day  of  sale,  and  then  shall  sell  each  remaining 
working  section  in  its  order,  up  stream,  and  require  the  labor  on 
each  to  be  completed  within  a  time  so  fixed  that  wilt,  as  near  as 
practicable,  secure  an  outlet  for  the  water  as  each  section  is  com- 
pleted. It  is  that  provision  which  unquestionably  permits  Carroll 
to  make  the  defense  that  he  makes.  Then  follows  the  provision 
that  if  the  construction  of  such  work  will  be  facilitated  thereby, 
the  commissioners  may  authorize  the  sale  or  construction  of  such 
work,  or  either,  to  be  made  or  performed  in  a  different  order  and 
time  from  that  hereinabove  specified. 

Seotion  4477  says  that  the  work  shall  be  done  under  the  super- 
vision of  the  county  surveyor,  and  provides  for  the  payment  un- 
der certain  circumstances.    Section  4478  provides  that — 

"Any  job  not  completed  within  the  time  fixed  in  the  contract 
and  bond  may  be  re-estimated  by  the  county  surveyor  and  re- 
sold by  him  to  the  lowest  possible  bidder,  or  he  may  complete  it 
at  the  expense  of  the  contractor  and  bondsmen,  but  such  jobs 
shall  not  be  re-sold  for  a  greater  sum  than  suoh  estimate  or  re- 
estimate,  nor  a  second  time  to  the  same  party;  a  contract  and 
bond  shall  be  entered  into  as  hereinbefore  provided,  but  the  com- 
missioners may,  for  good  cause,  give  further  time  to  any  con- 
tractor, not  exceeding  120  days." 

I  have  quoted  these  different  statutes  to  suggest  that  the  Legis- 
lature is  aiming  to  secure  the  speedy  construction  of  these  im- 
provements. That  is  unquestionably  the  object  in  dividing  it 
into  sections,  and  making  a  limit  to  the  authority  of  the  sur- 
veyor in  Section  4476  as  to  the  time  in  which  he  may  require 
the  section  to  be  completed;  and  surely  that  is  the  object  in  Sec- 
tion 4478,  limiting  the  power  of  the  commissioners  to  extend  the 
time  beyond  120  days. 

From  the  provisions  of  these  sections  the  court  must  ascertnin 
what  a  reasonable  time  is,  and  I  submit  that  the  question  is  an- 


NISI  PRIUS  REPORTS— NEW  SERIES.  28 

1908.]  County   Commissioners  v.   Carroll   et  al. 

swered  by  the  statutes ;  that  any  delay  in  the  construction  of  any 
working  section  beyond  120  days  not  chargable  to  the  contractor 
for  an  upper  section  is  necessarily  unreasonable  as  to  such  upper 
contractor,  which  will  absolve  him  from  the  obligations  of  his 
contract. 

If  the  commissioners,  under  the  law,  can  not  extend  the  time 
of  any  contract  for  more  than  120  days,  surely  no  innocent  con- 
tractor may  be  delayed  beyond  suoh  a  period  by  the  mere  de- 
fault of  some  other  person.  It  should  not  be  permitted  that  a 
defaulting  contractor  may  compel  one  on  an  upper  section  to 
stand  around  and  wait  and  be  put  to  a  derangement  of  his  busi- 
ness for  more  than  the  statutory  period,  at  least.  Every  person 
who  contracts  for  the  construction  of  an  upper  section  on  a 
county  ditch  does  so  with  the  liability  that  his  work  may  be  de- 
layed for  four  months ;  such  condition  is  necessarily  read  in  his 
contract  from  this  provision  that  the  commissioners  may  ex- 
tend the  time  on  any  section  for  such  period.  But  can  he  be  held 
to  a  delay  longer  than  that;  I  do  not  think  he  can.  I  am  satis- 
fied that  it  is  the  duty  of  the  county  surveyor,  under  Section 
4478,  unless  the  commissioners  extend  the  time  under  the  same 
section,  to  see  to  it  that  a  defaulted  lower  section  be  completed 
forthwith,  or  just  as  rapidly  as  it  may  be  done  after  default, 
either  by  a  resale  or  by  private  work,  so  that  the  upper  con- 
tractor may  have  the  opportunity  at  the  earliest  time  to  complete 
his  work.  If  the  default  of  the  surveyor  in  this  behalf  brings 
about  any  greater  delay  to  the  upper  contractor  than  120  days, 
such  delay  is  an  unreasonable  one  which  absolves  such  upper 
contractor  from  his  obligation,  if  he  himself  is  not  party  thereto. 
So  thinking,  I  feel  now  that  I  should  have  granted  the  motion 
last  night  to  take  this  case  from  the  jury  at  the  conclusion  of 
the  plaintiff's  ease.  If  that  were  my  duty  then,  it  is  equally  so 
now,  and  that  I  shall  now  do.  If  the  court  is  right  in  this  con- 
struction of  the  statutes,  it  will  conduee  to  a  more  speedy  com- 
pletion of  county  ditches.  The  jury  is  directed  to  return  &  ver- 
dict in  this  case  in  behalf  of  each  of  the  defendants. 


MONTGOMERY  COUNTY  COMMON  PLEAS. 

Schmuck  v.  Crume  ft  Sefton  Mfg.  Co.      [Vol.  VII,  N.  S. 


RIGHTS  OF  PLEDGEE  AS  TO  TRANSFER  OF  STOCK. 

Common  Pleas  Court  of  Montgomery  County. 

Henry  M.  Schmuck  v.  The  Crume  &  Sefton  Manufac- 
turing Company  bt  al.# 

Decided,  1905. 

Abatement — Plea  in,  May  be  Incorporated  in  Aimoer — Corporation! — 
All  Assets  of,  SoW— Right*  of  a  Pledgee  of  Block— Failure  to  Per- 
fect Security  bv  Taking  Legal  Title — Or  to  Notify  the  Corporation 
— Pendency  of  Another  Action. 

1.  An  answer  setting  forth  facts  which  amount  to  a  plea  in  abatement 

Is  entirely  proper,  where  the  plesdlngs  are  in  such  form  that  the 
defendant  1b  compelled  to  himself  allege  the  facta  upon  which  the 
plea  la  based. 

2.  A  corporation  by  a  sale  of  Its  assets  violates  no  rights  of  a  holder  of 

stock,  assigned  to  him  In  blank  and  delivered  to  him  as  security, 
where  the  pledgee  failed  to  give  notice  to  the  corporation  that  he 
was  the  holder  of  the  stock  until  long  after  the  sale  had  been 
effected. 

3.  In  an  action  by' such  a  pledgee  to  compel  the  corporation  to  transfer 

the  stock  to  him  and  alleging  a  wrongful  conversion  thereof,  an 
answer  which  sets  up  a  suit  previously  brought,  based  on  precisely 
the  same  facts  and  Involving  the  same  evidence  and  the  same 
measure  of  damages.  Is  In  the  nature  of  a  plea  in  abatement  and 
affords  ground  for  a  dismissal  of  the  petition. 

Young  &  Young,  for  plaintiff. 
Gott&chall  &  Turner,  contra. 

Snediker,  J. 

The  plaintiff  in  his  petition  in  this  ease  alleges  that  on  the  20th 
day  of  May,  A.  D.  1892,  George  P.  Huffman,  a  defendant  (now 
deceased)  borrowed  from  him  the  sum  of  $7,500,  giving  to  plaint- 
iff his  note  in  that  amount,  payable  in  one  year  after  date,  with 
seven  per  cent,  interest  from  maturity,  and  at  the  same  time  and 
as  collateral  to  secure  the  same  a  certain  stock  certificate  of  the 
Crume  &  Sefton  Manufacturing  Co.,  of  Dayton,  Ohio,  in  ordi- 

•  Affirmed  by  the  Supreme  Court  without  report,  April  14,  1908. 


NISI  PRIUS  REPORTS— NEW  SERIES, 25 

1908.]  Schmuck  v.  Grume  ft  Sefton  Mfg.  Co. 

nary  form,  certifying  that  George  P.  Huffman  is  the  owner  of 
fifty  shares  of  one  hundred  dollars  each  of  the  Crume  &  Sefton 
Manufacturing  Company,  of  Dayton,  Ohio;  with  the  power  and 
authority  to  sell  and  collect  at  Huffman's  expense  all  of  any 
part  or  portion  thereof  at  any  place,  either  in  the  city  of  Dayton 
or  elsewhere,  at  public  or  private  sale,  at  his  option,  on  the  non- 
performance of  the  promise  contained  in  the  promissory  note, 
and  at  any  time  thereafter,  with  advertising  ten  days  in  a  Day- 
ton daily  paper,  and  with  ten  days  notice  to  Huffman,  and  in 
case  of  a  public  sale  the  holder  may  purchase  without  being  liable 
to  account  for  more  than  the  net  proceeds  of  such  sale. 

At  the  time  of  the  delivery  of  said  collateral  the  following 
transfer  was  signed  in  blank  by  Huffman : 

"For  value  received  I  hereby  sell,  transfer  and  assign  to 
Henry  M.  Schmuck  fifty  shares  of  the  within  stock  and  authorize 
to  make  the  necessary  transfer  on  books  of  the  com- 
pany. "Witness  my  hand  and  seal  this  20th  day  of  May,  A.  D. 
1900.     George  P.  Huffman.     (Seal.)" 

Plaintiff  further  claims  that  at  the  time  the  code  of  regula- 
tions and  by-laws  of  the  defendant  company  contained  a  provi- 
sion to  the  effect  that  the  stock  of  said  company  shall  be  trans- 
ferred only  upon  the  books  of  the  company  in  person  or  by  at- 
torney upon  surrender  of  the  previous  certificate;  that  there 
was  due,  at  the  time  of  filing  the  petition,  from  the  estate  of  the 
said  George  P.  Huffman  to  the  plaintiff  the  sum  of  $5,335.31, 
with  interest ;  that  on  or  about  the  1st  day  of  September,  1893, 
while  plaintiff  so  held  said  stock  in  pledge  and  in  his  own  pos- 
session, the  defendant  company  without  his  knowledge  or  consent 
and  without  notice  to  him  made  a  sale  of  all  of  its  assets,  of  its 
property  and  good  will,  to  another  corporation,  to-wit,-  the  Car- 
ter-Crume  Company,  and  in  consideration  thereof  took  and  re- 
ceived from  the  Carter-Crume  Company  certain  shares  of  the 
common  and  preferred  stock  of  the  said  Carter-Crume  Company ; 
that  a  distribution  or  division  of  the  stock  was  made  to  the  stock- 
holders of  the  Crume  &  Sefton  Co.,  and  that  forty-six  shares  of 
common  stock  and  one  hundred  and  one  shares  of  the  preferred 


26  MONTGOMERY  COUNT  COMMON  PLEAS. 

Schmuck  v.  Crume  k  Sefton  Mfg.  Co.     [Vol.  VII,  N.  S. 

stock  of  the  Carter-Crume  Co.  was  distributed  to  said  George  P. 
Huffman. 

Such  distribution  was  made  without  surrender  of  the  Huffman 
stock  in  the  Crume  &  Sefton  Co.,  and  without  transfer  of  the 
same,  the  original  certificate  of  Huffman  stoek  neither  being 
demanded  nor  received  by  the  said  Crume  &  Sefton  Co.,  but  at 
the  time  being  in  possession  of  the  plaintiff. 

This  the  plaintiff  claims  was  an  unlawful  appropriation  and 
conversion  to  its  own  use  by  the  Crume  &  Sefton  Co.  of  the  said 
stock  of  the  Carter-Crume  Co.  and  of  the  said  stock  of  the  Crume 
&  Sefton  Manufacturing  Co. ;  that  on  the  11th  day  of  June,  1898, 
the  plaintiff  presented  his  said  collateral  certificate  of  stock  to 
the  defendant  company  and  to  William  M.  Kinnard,  who  was 
then  its  secretary,  and  who  was  then  and  is  still  the  custodian 
of  its  books  and  records,  including  this  stock  book,  and  whose  duty 
it  was  under  the  laws  and  regulations  of  the  company  to  make 
transfers  of  the  stoek  whenever  such  transfers  were  requested, 
hut  said  William  M.  Kinnard  as  such  secretary  and  through 
him  the  defendant  company  unlawfully  refused  and  still  refuses 
to  make  such  transfer  of  stock.  Plaintiff  says  that  by  reason  of 
the  premises  he  has  been  damaged  in  the  amount  so  owing  in  the 
said  promissory  note.  Then  follows  thejjrayer  of  the  petition. 
To  this  petition  the  defendant,  the  Crume  &  Sefton  Manufac- 
turing Co.  first  files  a  special  plea  in  the  nature  of  a  plea  in 
abatement,   which  is  as  follows: 

"Now  comes  the  defendant,  the  Crume  &  Sefton  Manufac- 
turing Co.,  for  the  purpose  of  this  special  plea  in  the  nature  of 
a  plea  in  abatement  only,  and  for  no  other  purpose,  and  for 
its  special  plea  in  the  nature  of  a. plea  in  abatement  to  the 
jurisdiction  of  this  court  of  the  subject-matter  of  this  action, 
says  that  when  this  action  was  begun,  and  ever  since,  another 
action  was,  and  still  is,  pending  in  this  court  between  the  same 
parties  and  for  the  same  cause  of  action  set  forth  in  the  petition 
in  this  action,  being  cause  numbered  19,563  in  this  court,  and 
entitled,  'Henry  M.  Schmuck,  plaintiff,  against  the  Crume  & 
Sefton  Manufacturing  Company,  and  Charles  J.  McKee,  as  ad- 
ministrator of  the  estate  of  George  P.  Huffman,  deceased,  de- 
fendants,' and  that  the  subject-matter  of  this  action,  and  the 


NISI  PRIUS  REPORTS— NEW  SERIES.  27 

1908.]  Schmuck  v.  Crume  &  Sett  on  Mfg.  Co. 

relief  sought,  is  identically  the  same  as  the  subject-matter  of 
the  action  and  relief  sought  iu  the  previous  action  brought,  and 
which  is  still  pending  and  undisposed  of  in  this  court,  being 
said  cause  numbered  19,563  above  referred  to.  Wherefore,  this 
defendant,  the  Crume  &  Sefton  Manufacturing  Company,  prays 
this  cause  be  dismissed  for  want  of  jurisdiction  of  the  subject 
of  the  action,  and  that  it  go  hence  with  its  costs." 

There  is  also  filed  an  amendment  to  the  answer,  but  without 
taking  that  up  at  this  time  we  will  first  consider  the  plea  in 
abatement. 

Plaintiff's  counsel  contend  that  there  is  no  such  thing  as  a 
plea  in  abatement  in  the  state  of  Ohio.  It  is  true  there  is  no 
such  a  plea  by  name,  but  the  court  is  not  bound  by  the  name 
given  to  a  pleading  by  a  party  to  a  case,  but  may  regard  it 
as  such  pleading  as  it  really  is,  and  this,  if  not  properly  styled 
a  plea  in  the  nature  of  a  plea  iu  abatement,  may  be  considered 
as  an  answer. 

It  is  true  that  the  code  provides  in  the  fourth  subdivision  of 
the  causes  of  demurrer  to  a  petition  that  a  defendant  may  de- 
mur if  there  is  another  action  pending  between  the  same  parties 
for  the  same  cause,  but  a  demurrer  is  only  good  when  the  de- 
feet  is  apparent  upon  the  face  of  the  pleading,  and  it  would  be 
a  peculiar  petition  which  would  recite  the  matter  in  abatement 
to  the  effect  that  there  is  another  action  pending  for  the  same 
cause.  The  plaintiff  would  hardly  put  in  his  complaint  al- 
legations which,  showing  these  defects,  must  defeat  him.  To 
enable  the  defendant  to  reach  those  defects,  he  is,  therefore,  in 
such  a  case  driven  to  allege  himself  the  facts  on  which  they  arise. 
How  can  this  be  done  in  Ohio  except  by  answer,  as  the  defend- 
ant has  done  in  this  easet  We  regard  the  answer  setting  forth 
the  plea  in  abatement,  therefore,  as  entirely  proper  under  the 
state  of  the  pleadings  before  us. 

From  the  allegations  of  the  petition,  what  are  the  plaint- 
iff's rights!  Schmuck,  being  a  pledgee  of  the  stock,  and,  as 
appears  from  the  testimony,  no  sale  by  him  or  transfer  having 
been  made  on  the  books  of  the  company  of  the  same,  or  any  de- 
mand therefor  prior  to  the  year  1898,  the  legal  title  to  the 


28  MONTGOMERY  COUNTY  COMMON  PLEAS. 

Schmuck  v.  Crume  ft  Sefton  Mfg.  Co.     [Vol.  VII,  N.  3. 

stock  was  in  Huffman.  He  (Huffman)  was  entitled*  to  vote  the 
stock  and  to  receive  dividends  thereon  and  was  the  owner  there- 
of and,  so  far  as  the  petition  or  the  evidence  shows,  his  estate 
is  still  the  owner,  subject  to  the  payment  of  the  debt  to  the 
pledgee. 

Schmuck  bad  the  option  to  perfect  his  security  by  having  the 
same  transferred  to  him  upon  the  books  of  the  company.  This 
would  have  invested  him  with  the  legal  title,  but  still  as  be- 
tween him  and  Huffman  the  latter  was  the  real  owner  until 
the  power  to  sell  had  been  exercised  by  Schmuck. 

The  blank  form  on  the  back  of  the  certificate  as  admitted  in 
the  pleadings  and  the  evidence  was  simply  signed  with  the  in- 
tention on  the  part  of  both  parties  to  make  the  certificate 
available  as  security.  It  was  intended  by  the  parties  as  se- 
curity merely  and  not  as  a  transfer  of  the  ownership  in  the 
stock.     See  Norton  v.  Norton,  43  O.  S.,  p.  509. 

A  mere  holding  of  the  certificate  under  the  circumstances  al- 
leged and  proven  doea^not  vest  in  Schmuck  the  stock  of  the  cor- 
poration represented  by  the  certificate. 

"There  is  a  marked  and  obvious  distinction  between  the  stock 
of  a  corporation  and  the  certificate  representing  such  stock. 
The  certificate  of  shares  of  stock  in  a  corporation  is  not  the  stock 
itself,  but  is  a  mere  evidence  of  the  stockholder's  interest  in 
the  corporate  property  of  the  corporation  which  issues  said  cer- 
tificate."   Cook  on  Stock  and  Stockholders,  Section  485. 

"In  the  absence  of  statutory  or  charter  requirements  no 
certificate  of  stock  is  necessary  to  attest  the  rights  of  the  share 
holder  in  the  corporation,  and  such  certificate  when  issued  to  the 
owner  of  shares  of  stock  is  merely  an  evidence  or  acknowledg- 
ment of  the  owner's  interest  in  the  property  of  the  corporation, 
but  it  is  not  the  property  itself.  In  law  a  corporation  is  the 
trustee  of  the  corporate  property  and  holds  the  same  for  the 
benefit  of  the  stockholders."  Bank  et  al  v.  Manufacturing  Co., 
67  0.  S.,  314. 

Nor  does  Schmuck  .become  &■  stockholder  by  the  mere  holding 
of  the  stock  certificate. 

"It  is  pretty  well  settled  that  the  assignees  of  stock  certificates 
in  a  corporation  by  assignment  from  persons  to  whom  the  cer- 


NISI  PRIUS  REPORTS— NEW  SERIES.  20 

1908.]  Schmuck  v.  Grume  ft  Set  ton  Mfg.  Co. 

tificates  were  originally  issued  are  not  by  virtue  of  such  as- 
signment shareholders  when  a  transfer  of  shares  is  required  to 
be  made  on  the  books  of  the  company."  Field  on  Corporations, 
p.  75. 

"The  mere  assignment  gives  the  assignee  an  equitable  title 
only,  except  as  against  the  assignor.  The  certificates  do  not 
constitute  property  in  the  corporation;  they  are  the  muniments 
of  title,  but  it  is  the  shares  of  stock  which  constitute  the  prop- 
erty, and  the  persons  whose  names  appear  upon  the  books  of  the 
corporation  are  presumed  to  be  the  stockholders;  they  have  the 
right  to  vote  and  participate  in  directing  the  policy  of  the  com- 
pany."    1  McCreary  U.  S.  C.  C.  Rep.,  62. 

"It  is  to  be  observed  that  such  a  certificate  is  merely  the 
paper  representative  of  an  incorporeal  right,  and  that  it  stands 
on  a  similar  footing  to  that  of  other  muniments  of  title.  It  is 
not  in  itself  property,  but  it  is  merely  the  symbol  of  paper  evi- 
dence of  property.  Hence,  the  proprietary  right  may  exist 
without  the  certificate.  Numerous  cases  accordingly  hold  that  a 
person  may  acquire  the  rights,  and  incur  the  liabilities  of  a 
shareholder,  both  to  the  corporation  and  to  its  creditors,  al- 
though no  certificate  in  fact  has  been  issued."  Thompson  on 
Corporations,  Vol.  2,  Section  2348. 

"Certificates  of  stock  arc  not  securities  for  money  in  any 
sense;  much  less  are  they  negotiable  securities.  They  are  simply 
the  muniments  and  evidence  of  the  holder's  title  to  a  given  share 
in  the  property  and  franchises  of  the  corporation  in  which  he 
is  a  member." 

"Sec.  2353.  They  are  non-negotiable  in  the  sense  that  a  com- 
plete transfer  of  title,  good  not  only  between  the  parties  but 
also  against  the  corporation  itself,  can  only  be  made  with  the 
concurrence  of  the  act  of  the  corporation  in  pursuance  of  its 
charter,  governing  statute,  or  operative  by-laws." 

"Whether  shares  of  the  stockholders,  and  the  capital  of  the 
company,  constitute  the  same,  or  different  species  of  property, 
has  been  the  subject  of  much  discussion  in  a  great  number  of 
cases.  But  the  weight  of  authority  we  believe  to  be  in  favor  of 
the  proposition  that  shares  of  stock  constitute  property  distinct 
from  the  capital  or  property  of  the  company."    46  0.  S.,  161. 

"A  person  who  holds  shares  of  stock  in  pledge,  although  the 
shares  are  assigned  in  blank  by  the  registered  owner,  does  not 


80  MONTGOMERY  COUNT  COMMON  PLEAS. 

Schmuck  v.  Crume  ft  Sefton  Mfg.  Co.      [Vol.  VII,  N.  S. 

become  a  stockholder  until  the  shares  are  transferred  to  him  on 
the  books  of  the  corporation;  and  a  mere  pledgee  who  has  not 
become  a  registered  stockholder,  is  not  entitled  to  participate  in, 
or  to  be  notified  of,  the  proceedings  to  effect  a  consolidation  of 
two  or  more  companies."  Railway  Company  v.  First  Nat.  Bank 
of  New  York,  68  0.  S.,  p.  582. 

In  this  case  the  Supreme  Court  also  says: 

"A  person  who  holds  shares  of  stock  in  pledge,  assigned  in 
blank  by  the  registered  owner,  may  protect  himself  by  having 
the  stock  transferred  to  him  on  the  books  of  the  company.  Until 
he  does  so  he  does  not  become  a  stockholder." 

There  is  no  provision  for  notice  to  or  requirement  of  par- 
ticipation by,  a  person  who  has  a  concealed  equity  in  stock 
(page  599). 

"The  rule  as  now  declared  in  this  state  by  Section  3259,  Re- 
vised Statutes,  is: 

"The  term  'stockholders'  as  used  in  the  preceding  section 
shall  apply  not  only  to  such  persons  as  appear  by  the  books  of 
the  corporation  to  be  such,  but  to  any  equitable  owner  of  stock. 
although  the  stock  appears  on  the  books  in  the  name  of  another." 

"But  neither  under  the  general  rule  stated  nor  the  rule  thus 
fixed  by  statute,  is  one  who  holds  the  shares  of  stock  merely  as 
collateral  security  for  a  debt,  without  a  transfer  thereof  to  him 
on  the  books  of  the  company,  the  legal  or  equitable  owner  of  such 
stock.  He  would  not  be  entitled  to  vote  upon  it  as  against  his 
pledgor,  and  if  he  received  any  dividends  the  same  would  be 
credited  upon  the  debt,  as  security  for  which  he  held  it. ' '  Hcnkle 
v.  Salem  Mfg.  Co.,  39  O.  S.,  553. 

In  VII  Cowen's  Reports,  Ex  parte  Willocks  et  al,  the  court 
say: 

"But  we  do  not  hesitate  to  say  that,  in  a  clear  case  of  hypothe- 
cation, the  pledgor  may  vote.  The  possession  may  well  con- 
tinue with  him,  consistently  with  the  nature  of  the  contract; 
and  the  stock  remain  in  his  name.  Till  enforced,  and  the  title 
made  absolute  in  the  pledgee,  and  the  name  changed  on  the 
books,  he  should  be  received  to  vote.  It  is  a  question  between 
him  and  the  pledgee,  with  which  the  corporation  have  nothing 
to  do." 


NISI  PRIUS  REPORTS— NEW  SERIES.  81 

1908.]  Schmuck  v.  Crume  k  Sefton  Mfg.  Co. 

"It  is  also  a  general  rule  that  an  equitable  assignment  of 
shares  of  stock  does  not  effect  a  novation  of  membership,  nor 
place  the  assignee  in  privity  with  the  other  shareholders,  until 
a  formal  transfer  has  been  executed.  Until  a  transfer  out  of 
his  name,  the  stockholder  of  record  is  to  the  world  the  owner 
of  the  stock  and  the  assignee  must  abide  by  his  action  in  the 
management  of  corporate  affairs."  Elyea  v.  Lehigh  Salt  Min- 
ing Co.,  169  N.  T.,  p.  29. 

Having  neither  the  legal  nor  the  equitable  title  to  the  Huff- 
man stock,  the  certificate  not  being  the  stock,  and  Schmuck  not  a 
stockholder,  the  evidence  showing  that  there  has  never  been  a 
transfer  on  the  books  of  the  Crume  &  Sefton  Manufacturing 
Company  of  said  stock,  or  an  issue  of  any  new  stock  therefor, 
as  in  the  Bobbins  case,  and  therefore  there  being  no  violation 
of  the  provision  that  the  same  is  only  transferable  on  the  books 
of  the  company,  we  are  inclined  to  the  opinion,  in  consider- 
ation of  the  foregoing  authorities,  that  no  act  of  the  company 
in  1893  could  be  said  to  have  deprived  Schmuck  of  his  property 
or  to  be  unauthorized  as  to  him,  he  not  having  any  authority  in 
the  premises.  And  the  "act  of  conversion  is  the  distinct  un- 
authorized and  positive  assumption  of  the  powers  of  the  true 
owner. ' ' 

In  other  words,  it  means  "detaining  goods  so  as  to  deprive 
the  person  entitled  to  the  possession  of  them  of  his  dominion  over 
them,"  and  it  is  difficult  to  see  what  dominion  Schmuck  had  over 
the  property  of  this  company  in  1893. 

This  seems  to  be  contradictory  .to  the  decision  of  our  circuit 
court  in  the  former  case,  but  since  that  decision  we  have  the  re- 
ported case  of  Railway  Co.  v.  Bank  in  the  68  0.  S.,  referred  to, 
and  this  being  of  the  Supreme  Court  is  paramount  and  must  be 
favored. 

The  effect  of  the  rule  laid  down  in  that  case  is  that  Schmuck 
in  1893  was  entitled  to  no  notice— had  no  right  to  participate, 
was  entirely  without  authority  in  the  premises,  and  must  abide 
by  the  action  of  the  corporation  in  the  sale  of  its  assets  to  the 
Carter-Crume  Company. 

The  claim  of  counsel  for  the  plaintiff— that  the  decision  in  68 
0.  S.  is  of  a  case  arising  under  a  special  statute,  and  that  a 


82         MONTGOMERY  COUNTY  COMMON  PLEAS. 

Scbmuck  v.  Crume  *  Sefton  Mfg.  Co.     [Vol.  VII,  N.  S. 

corporation  had  no  right  at  common  law  to  make  such  a  sale  as 
was  made  in  this  case  of  its  entire  assets,  and  to  take  therefor 
and  distribute  among  its  stockholders  the  stock  of  another  com- 
pany to  which  it  had  sold,  or  with  which  it  had  combined — we 
find  to  be  not  well  founded. 

In  the  7  Gray  Rep.,  in  the  case  of  TreadweU  et  al  v.  Salts- 
bury  Mfg.  Co.  et  al,  we  find  an  identical  case. 

The  syllabus  in  that  case  is  as  follows  (p.  393) : 

"The  directors  of  a  manufacturing  corporation,  as  the  best 
means  of  continuing  the  business,  and  pursuant  to  the  votes  of 
a  minority,  may  sell  the  whole  property  of  the  corporation  to 
a  majority,  may  sell  the  whole  property  of  the  corporation  to 
a  new  corporation,  taking  payment  in  shares  of  the  new  corpor- 
ation, to  be  distributed  among  those  of  the  old  stockholders  who 
are  willing  to  take  them." 

On  page  404  the  court  say : 

"But  we  entertain  no  doubt  of  the  right  of  a  corporation, 

established  solely  for  trading  and  manufacturing  purposes,  by 
a  vote  of  the  majority  of  their  stockholders,  to  wind  up  their 
affairs  and  close  their  business,  if  in  the  exercise  of  a  sound 
discretion  they  deem  it  expedient  to  do  so.  At  common  law, 
the  right  of  corporations,  acting  by  a  majority  of  their  stock- 
holders, to  sell  their  property  is  absolute,  and  is  not  limited  as 
to  objects,  circumstances  or  quantity."  Angell  &  Ames  on 
Corporations,  Sec.  127  et  acq.;  2  Kent  Com.  (6th  Ed.),  280; 
1  Ves.  &  B.,  226,  240,  244;  Binney's  case,  2  Bland,  142. 

Also,  see,  H.  <£-  O.  M.  Co.  v.  H.  &  W.  M.  Co.  et  al,  82  Sickles, 
pp.  252-259. 

In  Angell  on  Corporations,  Section  187,  the  author  says: 

"Corporations  aggregate  have  at  common  law  an  incidental 
right  to  aliene  or  dispose  of  their  lauds  and  chattels  unless 
specially  restrained  by  their  charters  or  by  statute." 

"Sec.  193.  In  general,  corporations  must  take  and  convey 
their  lands  and  other  property,  in  the  same  manner  as  indi- 
viduals; the  laws  relating  to  the  transfer  of  property  being 
equally  applicable  to  both." 

And  in  W<atta  &  Sergeants  Reports,  Vol.  V,  Dana  v.  Bank 
of  the  V.  ft.,  243,  the  court  say : 


NISI  PRIUS  REPORTS— NEW  SERIES.  88 

1308.1  Schmuck  v.  Crume  &  Sefton  Mfg.  Go. 

"According  to  the  principles  of  common  law,  every  corpora- 
tion has,  by  being  duly  created,  tacitly  annexed  to  it,  without  any 
express  provision,  the  same  power  and  capaeity  of  suing  and 
being  sued,  impleading  and  being  impleaded,  granting  and  re- 
ceiving by  its  corporate  name,  and  of  doing  all  other  acts,  that 
a  natural  person  has.  And  this  power  or  capacity  has  been  said 
to  be  necessarily  and  inseparably  annexed  to  it  (1  Kyd  on  Corp., 
69).  But  that  it  has,  at  least,  every  capacity  that  is  necessary 
to  carry  into  effect  the  purposes  for  which  it  was  established, 
can  not  well  be  questioned.  It  is  also  capable,  by  the  general 
rule  of  the  common  law,  of  taking  any  grant  of  property,  privi- 
leges and  franchises  in  the  same  manner  as  a  private  person. 
And  this  capacity  extends  alike  to  real  and  personal  property. 
In  regard,  however,  to  real  estate,  restraints  are  frequently  im- 
posed by  statute,  though  not  often  as  to  personal.  So  corpora- 
tions, unless  expressly  restrained  by  the  act  which  establishes 
them  or  some  other  act,  have  and  always  have  had  an  unlimited 
power  over  their  respective  properties,  and  may  alienate  and 
dispose  of  the  same  as  fully  as  an  individual  may  do  in  respect 
to  his  own  property." 

In  the  57  Pa.  {Burton's  Appeal),  we  find  at  page  218: 

"The  right  of  alienation  is  an  incident  of  ownership  and  be- 
longs to  a  corporation  as  well  as  to  an  individual,  when  no  re- 
straint is  imposed  in  the  charter.  Dana  v.  Bank  of  United 
States,  5  W.  &  S.,  243;  Sutton's  Hospital,  10  Coke  R.,  30;  An- 
gell  f&  Ames  on  Corp.,  188;  Walker  v.  Vincent,  7  Harris,  369." 

"This  right  is  not  restrained  by  any  state  policy.  On  the  con- 
trary, free  and  unrestrained  commerce  in  property,  real  and 
personal,  has  always  been  regarded  as  a  favorite  doctrine." 

In  the  2  Bland's  Chancery  Rep.,  Binney's  case,  p.  141,  the 
court  say : 

"In  this  instance,  the  object  is  to  control  this  company  in  the 
disbursement  of  its  corporate  funds,  on  the  ground,  that  they 
are  not  applied  to  corporate  purposes,  or  in  the  manner  author- 
ized by  the  act  of  incorporation.  It  is  said,  that  according  to 
the  civil  law,  the  rights  of  bodies  politic  over  their  corporate 
property  is  alike  that  of  minors;  and  that  they  can  not  be  per- 
mitted to  dispose  of  it  in  any  way  to  the  prejudice  of  the  in- 
stitution. But,  according  to  the  common  law,  it  is  otherwise; 
for  it  is  laid  down  as  an  incident  of  all  bodies  politic,  that  cor- 


84         MONTGOMERY  COUNTY  COMMON  PLEAS. 

Sehmuck  v.  Crume  *  Safton  Mfg.  Co.     [Vol.  VII,  N.  S. 

porate  property  may  be  encumbered,  applied,  or  aliened,  by  its 
full  and  regular  assent,  in,  any  manner,  and  for  any  purpose 
whatever;  the  will  of  the  artificial  body,  as  of  a  natural  body, 
in  all  eases,  being  the  law,  and  standing  in  the  plaee  of  any 
reason  for  so  doing." 

The  evidence  in  this  case  shows  that  the  date  of  this  note  was 
May  20th,  1892 ;  that  the  collateral  security  was  signed  in  blank 
and  delivered  to  Sehmuck  to  secure  the  note  at  the  same  time  as 
the  note;  that  the  first  notice  by  Sehmuck 's  own  testimony, 
claimed  to  have  been  given  to  the  Crume  &  Seftou  Company 
that  Sehmuck  held  the  stock  as  collateral,  was  three  or  four 
years  after  the  date  of  the  note;  that  the  sale  of  the  assets  of 
the  Crume  &  Sefton  Company  to  the  Carter-Crume  Company, 
occurred  about  September  1st,  1893,  so  that  such  sale  was  made 
at  least  two  or  three  years  before  the  company  had  received 
any  notice  of  any  kind  or  character  from  Sehmuck  (giving  him 
the  benefit  of  his  own  claim),  as  to  his  being  in  possession  of 
this  certificate. 

Under  the  authorities  cited,  how  did  this  company  violate 
any  right  of  Sehmuck  in  the  sale  of  its  corporate  assets  or  in  its 
combination  with  the  Carter-Crume  Company  T 

His  rights  not  having  been  violated  by  such  sale,  how  does  a 
cause  of  action  accrue  to  him  therefor  T  The  violation  of  a  legal 
right  constitutes  a  cause  of  action.  It  is  not  alone  the  wrong 
but  the  right  and  the  wrong  together  which  constitute  the  cause 
of  action,  so  that  the  only  cause  of  action  stated  in  the  petition 
and  supported  by  the^  evidence  in  the  case  at  bar  is  that  wherein 
Sehmuck  claims  that  there  was  a  refusal  on  the  part  of  the  com- 
pany to  transfer  the  stock  to  him  on  its  books — that  is,  a  eon- 
version,  if  it  occurred ;  and  for  that  he  would  be  entitled  to  re- 
cover damages.  But  this  same  cause  of  action  is  sued  on  in  case 
No.  19,563  referred  to  in  the  plea  in  abatement.  The  petition 
in  that  case,  so  far  as  it  goes,  is  identical  with  the  petition  in 
this  case,  irrespective  of  the  claim  of  conversion  in  1893. 

Finding  that  the  only  cause  of  action  shown  by  the  pleadings 
and  the  evidence  in  this  ease  is  that  of  the  refusal  to  transfer 
the  stock  on  the  books  of  the  company,  the  same  evidence  would 


NISI  PRIUS  REPORTS— NEW  SERIES.  85 

1908.]  Bell  v.  Cincinnati. 

support  the  petitioo  in  case  19,563  as  would  be  required  to  sup- 
port the  cause  of  action  in  this  case.  The  same  measure  of  dam- 
ages would  be  applicable  in  both  cases,  and  the  recovery  in 
19,563  would  operate  as  a  bar  to  a  recovery  in  this  case,  so  that 
we  regard  the  plea  in  abatement,  or  more  properly  the  answer 
which  sets  forth  the  facts  as  to  the  pendency  of  case  19,563,  as 
well  founded,  and  this  being  our  view  of  the  case,  the  action 
should  be  and  is  accordingly  abated,  and  the  petition  herein  is 
dismissed  at  the  costs  of  the  plaintiff. 


WORK  HOUSE  GUARD  INJURED  BY  EXPLOSION. 

Superior  Court  of  Cincinnati,  General  Term. 

Wiujam  Henry  Bell  v.  The  City  op  Cincinnati. 

Decided,  April  19,  1908. 

Municipal  Corporations—Governmental  as  Distinguished  from  Corpor- 
ate Powers — Profitable  Labor  by  Workhouse  Prisoners — Guard  In- 
jured in  an  Explosion — City  not  Liable — Negligence. 

1.  In  putting  some  of  the  prisoners  confined  In  tbe  work  house,  to  tabor 

in  a  quarry,  and  Belling  some  of  the  work  obtained  by  them,  the 
city  Is  not  conducting  a  private  corporate  enterprise,  but  Is  ex- 
ercising a  delegated  state  function,  in  furtherance  of  upholding 
the  public  peace. 

2.  No  liability  attaches  to  a  municipality  on  account  of  injuries  re- 

ceived by  a  workhouse  guard  resulting  from  an  explosion  which 
occurred  while  he  was  thus  acting  as  a  work  house  official. 

Dudley  V.  Sutphin,  Assistant  City  Solicitor,  for  plaintiff  in 
Charles  W.  Baker,  contra. 

Spiegel,  J.;  Shattuck,  J.,  and  Hoppheimer,  J.,  concur. 

Plaintiff  in  error,  the  City  of  Cincinnati,  assigns  numerous 
errors,  upon  each  of  which  it  asks  a  reversal  of  the  judgment 
rendered  in  special  term  upon  the  aforesaid  cause.  The  prin- 
cipal assignment  upon  which  many  errors  are  predicated  are 


80  SUPERIOR  COURT  OP  CINCINNATI. 

Bell  v.  Cincinnati.  [Vol.  VII,  N.  S. 

the  overruling  of  the  demurrers  to  the  original  and  amended  pe- 
titions, and  the  overruling  of  the  motions  both  at  the  close  of 
plaintiff's  testimony  and  of  all  the  testimony,  to  instruct  a  ver- 
dict for  the  defendant,  and  for  a  new  trial,  all  upon  the  ground 
that  the  city  was  engaged  in  the  exercise  of  a  governmental 
state  function  and  not  performing  any  ministerial  duty  imposed 
upon  the  city  in  its  corporate  capacity. 

To  the  original  petition  the  city  itself  filed  an  answer,  but  by 
leave  of  court  withdrew  it  and  entered  a  demurrer  based  upon 
the  ground  already  stated. 

The  rule  in  Ohio  regarding  the  distinction  between  the  exer- 
cise of  governmental  and  purely  municipal  functions  by  a  city 
has  been  laid  down  by  Judge  Qholson  in  Western  College  v. 
Cleveland,  12  0.  S.,  375,  as  follows; 

"It  is  obvious  that  there  is  a  distinction  between  the  different 
powers  delegated  to  preserve  the  peace  and  protect  persons  and 
property,  whether  to  be  exercised  by  legislation  or  the  appoint- 
ment of  proper  officers,  and  those  powers  and  privileges  which 
are  to  be  exercised  for  the  improvement  of  the  territory  com- 
prised within  the  limits  of  the  corporation  and  its  adaptation  to 
the  purposes  of  residence  or  business.  As  to  the  first  the  mu- 
nicipal corporation  represents  the  state  discharging  duties  in- 
cumbent upon  the  state;  as  to  the  second  it  represents  the  pe- 
cuniary and  proprietary  interests  of  individuals.  As  to  the 
first,  responsibility  for  acts  done  or  omitted  is  governed  by  the 
same  rule  of  responsibility  which  applies  to  like  delegations  of 
power.  As  to  the  second,  the  rules  which  govern  responsibility 
of  individuals  are  properly  applicable." 

Under  the  state  function  of  protecting  the  peace,  our  courts, 
in  common  with  the  courts  of  every  other  state  where  this  ques- 
tion has  arisen,  have  included  the  taking  care  by  the  city  of  its 
prisoners  by  means  of  prisons,  jails  and  "work  houses,  as  well  as 
by  the  employment  of  policemen  and  work  house  guards,  who  un- 
der the  law  of  our  state  are  invested  with  the  powers  of  police- 
men (Section  2105,  Revised  Statutes).  Thus,  in  Rose  v.  Toledo, 
1  C.  C. — N.  S.,  321,  the  circuit  court  held  that  the  city  was  not 
liable  to  a  prisoner  confined  in  a  work  house  for  injuries  to  his 
health.    The  court  said : 


NISI  PBIUS  REPORTS— NEW  SERIES.  87 

IMS.]  Ben  v.  Cincinnati. 

"The  city  in  the  performance  of  such  duties,  acts  not  for  the 
individual  but  for  the  public,  acts  in  a  governmental  capacity 
for  the  benefit  of  the  people.  The  work  house  is  constructed  and 
maintained  not  for  the  'benefit  and  pleasure  of  those  who  may  be 
so  unfortunate  as  to  be  committed  to  it  and  confined  therein, 
but  it  is  constructed  and  maintained  under  the  laws  of  the  state 
for  a  public  purpose  as  one  of  the  institutions  of  government  for 
the  imprisonment  of  wrong-doers,  and  they  are  confined  there- 
in for  correction  and  punishment  as  the  penitentiary  at  Colum- 
bus is  constructed  and  maintained  for  similar  purposes." 

Also,  Greenville  v.  Commissioners,  3  C.  C. — N.  S.,  212: 

"It  can  not  be  doubted  that  the  power  conferred  on  munici- 
palities to  preserve  the  peace  and  protect  persons  and  property 
by  the  arrest  of  offenders  and  their  condemnation  and  detention 
in  jails  and  workhouses  is  of  a  public  or  governmental  nature, 
in  which  the  soverign  state  exercises  its  functions  through  the 
agency  of  the  municipality.  In  such  cases  the  non-liability  of 
the  municipality  rests  upon  the  same  reason  as  does  that  of  the 
sovereign  exercising  like  powers." 

Without  citing  the  numerous  authorities  upon  this  subject 
from  other  states,  I  shall  only  quote  the  latest  writer  upon  this 
topic,  Mr.  Howard  S.  Abbott,  who  has  covered  the  authorities 
in  his  work  "Municipal  Corporations,"  wherein  he  lays  down 
the  rule  (Vol.  3,  par.  966)  as  follows: 

"The  preservation  of  the  public  peace  is  another  purely  gov- 
ernmental function  in  respect  to  the  character  of  which  there 
can  be  no  dispute.  The  same  rule  of  non-liability,  therefore,  ap- 
plies, and  public  corporations  will  not  be  held  liable  for  injuries, 
either  to  their  officers  while  in  the  performance  of  their  duties, 
or  to  others  who  may  be  injured  by  them,  nor  for  the  defective 
condition  of  jails,  court  houses,  prisons  or  buildings  used  in  the 
administration  of  justice,  or  their  appliances." 

Believing  this  to  be  the  law,  the  court  below  erred  in  not  sus- 
taining the  demurrer  to  the  original  petition.  The  suit  against 
the  city,  as  stated  in  said  petition,  was  based  upon  the  assumption 
that  the  city  was  acting  in  its  corporate  capacity  as  a  munici- 
pality and  not  as  an  agent  of  the  state  in  the  exercise  of  the 
latter's  governmental  functions. 


88  SUPERIOR  COURT  OP  CINCINNATI. 

Bell  t.  Cincinnati.  [Vol.  VII,  N.  S. 

The  petition  alleges  that  the  plaintiff  was  injured  by  the  ex- 
plosion of  certain  caps  contained  in  a  box  which  he  was  trying 
to  open,  he  being  a  work  house  guard  at  the  quarry  near  the 
work  house,  in  which  certain  prisoners  were  working  at  quarry- 
ing stone  and  occasionally  blasting  for  that  purpose;  that  he 
had  no  knowledge  or  experience  in  handling  said  caps  and  other 
explosives,  nor  that  he  appreciated  or  realized  the  dangers  con- 
nected therewith,  and  that  his  ignorance  and  inexperience  was 
well  known  to  the  defendant  city  and  its  officers  superior  to  and 
in  command  of  the  plaintiff.  The  petition  was  demurrable  upon 
the  ground  already  stated,  but  also  under  the  law  covering  the 
relations  of  master  and  servant,  because  it  did  not  allege  one  of 
the  essential  allegations  necessary  to  fixing  liability  on  the  mas- 
ter,  namely,  that  the  city  had  knowledge,  actual  or  constructive, 
of  the  risk  plaintiff  was  running,  and  did  not  instruct  him  in 
regard  thereto. 

The  city,  upon  the  overruling  of  the  demurrer  to  said  original 
petition,  to  which  it  excepted,  filed  an  answer  admitting  its  cor- 
porate character  and  employment  of  the  plaintiff,  and  the  in- 
juries which  he  received,  but  denying  every  other  statement 
therein  contained,  and  further  answering  it  alleged  as  a  matter 
of  faot  that  in  thus  employing  its  prisoners  in  said  quarry  it  was 
engaged  in  a  governmental  function  of  the  state,  and  that  plaint- 
iff was  one  of  its  officers  employed  therein ;  and  further  that 
plaintiff  was  guilty  of  contributory  negligence  which  directly 
caused  his  injuries. 

The  ease  went  to  trial  in  February,  1907,  and  during  its  pro- 
gress counsel  for  plaintiff  obtained  leave  of  court,  the  city  ex- 
cepting, to  amend  his  petition  by  further  alleging  that  said 
city  and  its  servants  superior  in  authority  to  plaintiff,  whose 
orders  he  was  bound  to  obey,  knew  that  he  was  entirely  ignorant 
of  the  danger  of  working  with  said  dangerous  explosives,  and 
that  neither  the  city  nor  its  aforesaid  officers  ever  warned  or 
instructed  him  as  to  any  of  said  dangers,  although  they  well 
knew  them,  having  had  a  long  time  previously  charge  of  said 
quarry  cutting  and  excavating,  by  blasting  and  other  mean3, 


NISI  PRIUS  REPORTS— NEW  SERIES. 
1908.]  Bell  v.  Cincinnati. 

stone  from  the  same,  which  the  eity  sold  to  dealers  and  c 
for  profit,  and  had  been  so  doing  for  a  long  time  before. 

The  eity  again  demurred,  but  the  court  overruled  said  d«- 
murrer,  and  we  think  rightly  so,  as  this  petition,  besides  being 
invulnerable  in  this  statement  of  facts  necessary  to  the  recovery 
under  the  law  of  master  and  servant,  alleges  furthermore  that 
the  eity  was  conducting  a  quarry  for  profit  m  its  corporate 
capacity  and  not  as  an  agent  of  the  state  in  upholding  the  public 
peace.  Upon  the  overruling  of  this  demurrer  to  the  amended 
petition,  the  city  filed  a  reply  denying  all  allegations  of  the 
amended  petition.  At  .the  close  of  plaintiff's  testimony,  and 
again  at  the  close  of  all  the  testimony,  the  city  filed  motions 
asking  the  court  to  arrest  the  case  from  the  jury  and  to  direct 
a  verdict  for  the  defendant,  both  of  which  motions  were  over- 
ruled by  the  court.  Special  charges  were  given  and  special 
charges  were  refused,  on  all  of  which  error  is  predicated  by  the 
city,  and  the  court  eharged  the  jury  generally,  leaving  it  to  them 
to  find  as  a  matter  of  fact  whether  the  city  acted  in  a  govern- 
mental capacity  or  in  its  corporate  capacity  for  its  own  private 
ends,  to  which,  as  well  as  to  the  charge  generally,  the  city  ex- 
cepted. The  jury  returned  a  verdict  for  $12,500  for  plaintiff, 
The  city  filed  a  motion  for  a  new  trial,  which  was  overruled  by 
the  court,  and  judgment  was  entered  upon  the  verdict. 

An  examination  of  the  record  becomes  necessary  to  determine 
whether  the  court  erred  in  overruling  the  motion  to  direct  a 
verdict  for  the  plaintiff,  in  leaving  the  question  in  what  capacity 
the  city  acted  to  the  jury,  and  in  overruling  the  motion  for  a 
new  trial. 

Plain-tiff  in  his  amended  petition  alleges  that  the  city,  for  a 
long  time  previous,  had  charge  of  said  quarry,  cutting,  exca- 
vating by  blasting  and  other  means  stone  from  the  same,  which 
the  city  sold  to  dealers  and  consumers  for  profit,  and  had  been 
so  doing  for  a  long  time  before. 

To  determine  this  question  we  must  find  from  the  record 
whethei  the  city  conducted  a  private  corporate  enterprise  for 
pmat.  or  acted  as  agent  for  the  state,  guarding  the  peace  and 
safety  •'f  its  people. 


40  SUPERIOR  COURT  OP  CINCINNATI. 

Bell  V.  Cincinnati.  [Vol.  VII,  N.  S. 

We  fully  agree  with  counsel  for  plaintiff  when  he  lays  down 
the  rule  that  "the  act  is  ministerial  when  a  thing  is  done  by  the 
city  as  a  private  proprietor  and  for  profit."  What  does  the  rec- 
ord disclose  T  Neither  the  amended  petition  alleges,  nor  does 
any  evidence  show  as  claimed  in  plaintiff's  brief,  that  the  city 
owned  the  said  quarry.  The  only  testimony  upon  this  point 
was  that  of  Mr.  Ruehrwein,  superintendent  of  the  work  house, 
who  stated  that  the  quarry  had  been  worked  about  seven  years, 
always  by  prisoners,  not  in  winter  but  in  summer  when  the 
weather  was  favorable  (Record,  page  248),  and  that  of  the 
plaintiff  who  stated  (Record,  page  15),  "the  average  was  forty- 
five  to  eighty-fiw  and  ninety  prisoners;  of  course  every  day  was 
not  alike." 

Upon  the  question  of  working  this  quarry  for  profit  as  a  pri- 
vate enterprise  of  the  city  in  its  corporate  capacity,  the  follow- 
ing is  the  only  testimony  introduced  (Record,  p.  437) : 

"Mr.  Bell,  at  this  quarry,  from  the  time  you  went  there  on  the 
5th  of  July,  I  wish  you  would  tell  these  gentlemen  what  it  was 
that  they  got  out  of  that  quarry  T  A.  They  quarried  rock, 
and  the  building  rock  was  sold  to  the  various  builders,  and  the 
small  rock  was  hauled  down  to  the  prison  sheds  and  the  pris- 
oners that  was  unable  to  walk  to  the  hill,  such  as  cripples,  one- 
legged  fellows  and  one  armed  fellows — they  were  broken — they 
hauled  the  rock  down  there  for  them. 

"Q.  Broken  up  into  whatT  A.  Broken  up  into  four  differ- 
ent sizes,  very  small  size,  a  little  larger — there  were  four  differ- 
ent sizes  of  them.  The  large  size,  regular  macadam,  was  sold 
to  people  for  driveways,  and  the  smaller  lots  were — I  don't  know 
what  they  could  use  them  for — driveways." 

Upon  this  state  of  facts  the  jury  found  the  city  was  engaged 
in  an  enterprise  for  purely  municipal  profit,  and  not  in  the 
exercise  of  a  governmental  function.  This  certainly  is  error. 
The  mere  incidental  profits  the  city  received  from  the  sale  of  a 
few  of  the  rocks  quarried  does  not  make  it. a  municipal  enter- 
prise. The  city  in  the  maintenance  of  its  work  house  received 
a  remuneration  for  the  labor  of  a  majority  if  its  prisons -a  de- 
tained therein,  and  yet  no  one  will  claim  that  thereby  the  work 


-  / 


NISI  PRIUS  REPORTS— NEW  SERIES.  41 

IMS.]  Bell  v.  Cincinnati. 

house  becomes  a  private  municipal  enterprise,  and  is  not  one  of 
the  means  whereby  the  city  conserves  the  peace  of  its  inhabitants. 

The  rule  is  laid  down  in  Patrick  Curran  v.  The  City  of  Boston, 
151  Mass.,  p.  105,  wherein  the  syllabus  reads: 

"The  city  of  Boston  is  not  liable  for  personal  injuries  occa- 
sioned to  an  inmate  of  its  house  of  industry  by  the  negligence 
of  the  officers  and  servants  employed  by  the  board  of  directors 
of  public  institutions  to  administer  its  affairs,  although  at  the 
time  such  inmate  is  engaged  in  labor  from  which  the  city  derives 
profit. ' ' 

The  court  say  (p.  508) : 

"By  the  statute  authorizing  the  erection  and  maintenance  of 
work  houses  by  the  city,  the  mode  of  performing  a  strictly  public 
duty  was  provided  for  which  can  not  be  of  any  pecuniary  ad- 
vantage to  the  cities  or  towns  instituting  them.  No  such  case 
as  presented  exists  where  a  city  has  undertaken  to  build  particu- 
lar works,  as  water  works,  sewers,  etc.,  where  a  city  acts  as  an 
agency  to  carry  on  an  enterprise  to  some  extent  commercial  in 
its  character,  for  the  purpose  of  furnishing  conveniences  and 
benefits  to  such  as  choose  to  pay  for  them.  This  element  of  con- 
sideration then  comes  in  and  in  such  case  it  is  usually  held  that 
the  liability  exists  on  the  part  of  the  city  for  an  injury  to  an 
individual  through  negligence  in  building  or  maintaining  such 
works." 

On  page  509: 

"Nor  do  we  conceive  of  any  reason  why  the  city  should  be 
held  responsible  because  some  revenue  is  derived  from  the  labor 
of  the  inmates.  It  is  required  by  the  statute  that  these  inmates 
should  be  kept  at  work  but  the  institution  is  not  conducted  with 
a  view  to  pecuniary  profit.  It  is  not  suggested  that  the  expenses 
of  maintaining  the  work  house  are  met  by  what  is  derived  from 
the  labor  of  the  inmates,  or  that  any  profit  above  them  is  made, 
even  if  the  entire  expense  is  not  met  by  taxation  by  reason  of 
the  profit  thus  derived,  which  profit  is  merely  incidental.  The 
object  and  purpose  of  the  work  house  and  the  conduct  of  such  are 
not  thus  shown  to  be  of  the  nature  of  a  business.  It  only  ap- 
pears that  as  a  public  institution  it  is  managed  in  a  judicious 
and  governmental  manner." 

Counsel  for  plaintiff  in  his  argument  before  the  general  term 
and  in  his  brief  raises  the  question  that  the  city  is  nevertheless 


42  SUPERIOR  COURT  OP  CINCINNATI. 

Bell  v.  Cincinnati.  (Vol.  VII,  N.  S. 

liable  because  the  law  (Section  1536-370,  Revised  Statutes),  au- 
thorizing the  employment  of  prisoners  outside  of  the  work  house, 
makes  this  dependent  upon  the  passage  of  a  city  ordinance 
authorizing  such  employment;  that  the  defendant,  the  city, 
has  not  offered  proof  of  such  ordinance. 

A  careful  examination  of  the  record,  however,  discloses  the  "fact 
that  this  question  was  not  raised  at  all  below,  neither  in  the 
pleadings  nor  in  the  trial  by  evidence.  We  must,  therefore,  be 
governed  by  the  rule  of  law  which  makes  it  a  presumption  of 
fact  that  public  officers  do  as  the  law  and  their  duty  requires 
them  (Lawson  on  Presumptive  Evidence,  p.  67).  In  accordance 
with  the  rule  laid  down  by  the  Supreme  Court  of  the  United 
States  in  Bank  of  United  States  v.  Dandridge,  12  Wheaton,  70, 
and  by  Chief  Justice  Thurman  of  our  state  in  Combs  &  Ewing 
v.  Lane,  4  O.  S.,  112,  where  the  syllabus  reads: 

"In  respect  to  official  acts  the  law  will  presume  all  to  have 
been  rightfully  done  unless  the  circumstances  ot  the  case  over- 
turn this  presumption;  and  secondly,  acts  done  which  presup- 
pose the  existence  of  other  acts  to  make  them  legally  operative 
are  presumptive  proof  of  the  latter.  Pacts  presumed  are  as 
effectually  established  as  facts  proved  so  long  as  the  presump- 
tion remains  unrebntted. " 

Besides,  it  may  be  said,  in  passing,  that  such  an  ordinance 
does  exist.  Coppock  &  Hertenstein's  Ordinances  of  Cincinnati, 
page  344,  Section  44. 

Did  the  court,  therefore,  err  in  overruling  the  motion  to  take 
the  case  from  the  jury  at  the  close  of  plaintiff's  as  well  as  of  all 
the  testimony,  and  in  directing  the  jury  that  it  was  their  duty  to 
determine  whether  the  city  acted  in  a  governmental  or  municipal 
capacity !     Our  answer  must  be  yes  to  all  these  questions. 

We  have  cited  all  the  evidence  introduced  purporting  to  main- 
tain the  claim  of  plaintiff  that  the  city  was  engaged  in  a  private 
municipal  enterprise  for  profit.  The  evidence  upon  this  question 
was  not  controverted.  Upon  such  a  state  of  facts  it  became  the 
duty  of  the  trial  court  to  pronounce  the  law,  and  not  leave  to  the 
jury  the  finding  of  the  facts  and  the  law  upon  them.  Under  our 
view  of  the  law,  the  court  should  have  granted  all  these  motions. 


NISI  PRIUS  REPORTS— NEW  SERIES.  48 

1908.]  State,  e«  rel,  v.  Ohio  National  Bank. 

But  granting,  for  argument's  sake,  that  the  court  rightfully 
charged  the  jury  to  find  whether  the  act  of  the  city  was  govern- 
mental or  ministerial,  then  the  charge  is  fatally  defective  in  not 
laying  down  any  rule  to  guide  the  jury  in  their  determination 
of  the  quality  of  said  act. 

It  was  not  enough  to  charge  the  jury  to  find  in  what  capacity 
the  city  acted,  but  it  was  also  the  duty  of  the  court  to  lay  down 
to  them  a  rule  of  law  under  which  the  jury  could  determine 
whether  the  act  was  ministerial  or  governmental.  And  the  said 
charge  was  also  erroneous  in  directing  the  jury  that  the  burden 
rested  on  the  city  to  show  by  preponderance  of  the  evidence 
that  the  act  was  governmental,  for  the  burden  rested  throughout 
upon  the  plaintiff  to  prove  all  the  allegations  of  his  petition  neces- 
sary to  hold  the  city  liable,  and  among  these  allegations  one  of 
the  most  important  was  that  the  city  acted  in  its  private  corporate 
capacity  and  was  not  performing  a  delegated  state  function. 

Error  has  also  been  assigned  by  the  city  for  the  refusal  of  the 
court  to  give  certain  special  charges  requested  by  it,  but  we  do 
not  find  any  error  therein. 

After  a  careful  examination  of  the  evidence  and  the  law,  real- 
izing fully  the  hardships  of  this  case,  but  believing  the  judgment 
to  be  both  against  the  law  and  the  evidence,  the  prayer  for  a  re- 
versal of  said  judgment  must  be  granted  and  final  judgment  must 
be  entered  for  the  plaintiff  in  error.  Whatever  relief  the  plaint- 
iff is  entitled  to  must  be  given  by  the  Legislature. 

RXCO VJtRY  OF  INTEREST  FROM  BANKS  ON  PUBLIC  FUNDS. 

Common  Pleas  Court  of  Allen  County. 
Benjamin  F.  Welty,  Prosecuting  Attorney,  v.  The  Ohio 
National  Bane. 
Decided,  March,  1908. 
Interest— Recovery  of,  as  Damages— For  the  Unlawful  Use  of  County 
Funds  by  Banks— Nature  of  the  Action — Application  of  the  Statute 
Of   Limitations— Exceptions   as    to   Trusts— Not   an   Action   on   the 
Oround  of  Fraud — Defenses— Measure  of  Recovery — Section  $981. 
1.  An  action  by  a  prosecuting  attorney  to  recover  Interest  from  a  bank 
by  way  of  damages  for  the  alleged  unlawful  use  ot  county  funds, 


44  ALLEN  COUNTY  COMMON  PLEAS. 

State,  ex  rel,  r.  Ohio  National  Bank.      [Vol.  XI,  N.  g. 

obtained  from  different  county  treasurers  during  a  period  of  twen- 
ty ylars,  le  an  action  lor  the  benefit  of  the  county,  and  is  governed 
by  the  limitations  prescribed  In  Section  4981. 

2.  While  such  an  action  arises  out  of  a  trust,  it  can  not  be  entertained 

In  equity  regardless  of  the  statute  Of  limitations,  for  the  reason 
that  it  was  not  an  express  but  a  resulting  trust. 

3.  Nor  is  ft  an  action  for  relief  on  the  ground  or  fraud;  and  If  It  were 

the  statute  would  begin  to  run  from  the  time  the  fraud  was  dis- 
covered or  ought  to  have  been  discovered. 

4.  There  la  no  merit  in  the  contention  in  such  a  case  that  so  long  as 

there  were  funds  in  the  bank  sufficient  to  pay  In  full  the  amount 
of  the  treasurer's  deposit,  the  bank  had  no  use  of  the  county  funds 
and  there  was  no  commingling  of  them  with  Its  own. 

5.  As  to  the  measure  of  recovery,  It  is  the  amount  of  profit  accruing  to 

the  bank  from  the  use  of  the  county  funds;  and  if  it  Is  Impracti- 
cable or  impossible  to  determine  exactly  the  amount  of  this  profit, 
Interest  should  be  allowed  at  the  rate  of  six  per  cent 

B.  F.  WelUj,  Prosecuting  Attorney;  Frank  Downing  and 
John  Koby,  for  plaintiff. 

Jos.  H.  Halfhill,  contra. 

Mathers,  J. 

It  will  not  be  necessary  for  tbe  court  at  this  time  to  state 
formally  the  issues  joined.  They  seem  to  be  fully  act  out  in  the 
briefs  and  I  think  everybody  interested  in  the  ease  is  familiar 
with  them.  In  brief,  this  is  an  action  by  the  prosecuting  at- 
torney to  recover  interest,  by  way  of  damages,  for  the  alleged 
unlawful  use  of  county  funds  which  the .  defendant  obtained 
from  the  several  treasurers  covering  the  period  between  1888 
and  the  filing  of  this  petition. 

Various  defenses  are  interposed,  among  them  the  statute  of 
limitations,  and  that  the  plaintiff  has  no  capacity  to  sue,  as  well 
as  the  defense  upon  the  merits,  it  being  contended  by  the  de- 
fendant that  if  this  be  a  trust  fund  and  impressed  with  that 
character,  yet  as  long  as  the  defendant  had  an  amount  equal  to 
the  amount  belonging  to  the  beneficiary  in  its  possession,  equity 
will  presume  that  it  was  using  its  own  funds  in  its  business  and 
not  that  it  was  using  the  trust  fund. 

Regardless  of  the  statute  of  limitations  it  is  quite  clear  that 
the  relator  has  no  capacity  to  sue  in  this  action   for  alleged 


NISI  PRIUS  REPORTS— NEW  SERIES.  45 

1908.]  State,  ex  rel,  v.  Ohio  National  Bank. 

wrongs  committed  prior  to  April  25th,  1898,  the  date  of  the 
enactment  of  Section  1277  as  it  now  stands.  That  point  was 
determined  in  Ohio,  ex  rel  Schwartz,  Prosecuting  Attorney,  v. 
Zum&tein,  4  C.  C,  268,  which  was  affirmed  by  the  Supreme 
Court  on  the  reasoning  of  the  circuit  court,  30  Western  Law  Bul- 
letin, 275.  For  causes  of  action  arising  prior  to  that  date,  if 
any  county  authority  might  sue,  it  would  be  the  county  com- 
missioners.    4  C.  C,  275. 

Does  the  statute  of  limitation  operate  to  bar  an  action  such  as 
thist  The  character  of  the  real  party  in  interest  will  determine. 
If  it  be  the  state,  then  the  statute  does  not  apply  (Seely  v. 
Thomas,  31  O.  S.,  301,  308,  citing  16  O.  S.;  11).  If  the  county, 
then  the  statute  does  apply  (Hartman  v.  Hunter,  56  0.  S-,  175, 
180,  and  the  cases  cited).  And  so,  even  though  the  subject- 
matter  of  the  action  be  public  funds  wrongfully  withheld 
(Mount  v.  Lakeman,  Clerk  of  MUlcreek  Township,  21  0.  S.,  643, 
where  it  was  held  that  an  action  on  behalf  of  a  township  to  re- 
. cover  school  funds  which  a  treasurer  had  appropriated  to  his 
own  use,  is  barred  by  the  limitation  of  six  years) ;  and  the  case 
of  Oxford  Township  v.  Columbia,  38  0.  S.,  87,  where  it  was 
held  that  "trustees  of  a  township,  holding  title  to  lands  granted 
to  them  by  the  general  government  for  school  purposes,  are  not 
exempt  from  the  operation  of  the  statute  of  limitations,  in  an 
action  prosecuted  by  them  to  recover  possession  of  the  premises." 

The  relator  in  this  case  is  able  to  maintain  the  action  only 
because  of  his  official  position  as  county  prosecuting  attorney, 
and  by  virtue  of  Section  1277.  That  section  specifically  pro- 
vides that  any  public  monies  illegally  withdrawn  or  withheld 
may  be  by  him  recovered  back  for  the  use  of  the  county,  and 
nowhere  does  it  provide  that  it  shall  be  for  the  use  of  the  state. 
or  that  he  has  a  right  to  sue  and  recover  back  such  funds.  That 
would  properly  come  within  the  scope  of  the  duty  of  the  Attor- 
ney-General, who  is  the  only  one  authorized  generally,  without 
special  statutory  authority,  to  appear  in  the  courts  in  behalf  of 
the  state. 

In  this  action  it  is  sought  to  recover  interest  by  way  of  dam- 
ages for  the  retention  and  use  of  the  county's  funds.    If  re- 


«  ALLEN  COUNTY  COMMON  PLEAS. 

State,  ex  re),  v.  Obio  National  Bank.     [Vol.  VII,  N.  S. 

covered,  I  think  it  very  doubtful  if  the  state  would  receive  any 
beuefit  from  or  be  entitled  to  any  of  the  amount  so  recovered. 
At  any  rate,  the  section  under  consideration  contemplates  the  suit 
for  the  benefit  of  the  county,  and  it  would  appear  that  it  was 
the  county's  funds  that  were  to  be  made  the  subject  of  the  ac- 
tion. It  is  true  the  name  of  the  state  may  be  used,  but  this  is 
permissive  for  the  purpose  of  convenience,  and  I  think  it  would 
hardly  follow  as  a  consequence  that  the  mere  title  of  the  action 
would  affect  a  right  so  substantive  and  valuable  as  that  of  the 
repose  of  the  statute  of  limitations.  The  real  party  in  interest 
is  <the  county  and,  from  what  has  been  said,  the  statute  runs 
against  the  county.  This  is  so  unless  this  be  one  of  the  causes 
of  action  which  equity  will  entertain  regardless  of  the  statute 
of  limitations;  in  other  words,  a  cause  of  action  which  arises 
out  of  a  trust  of  a  certain  character  and  which  is  not  permitted, 
because  of  equitable  considerations,  to  be  barred. 

Is  the  trust  here  involved  of  that  character  t  I  think  there  is  no 
disagreement  about  it  being  a  resulting  trust.  In  Yearly  v.. 
Long,  40  0.  S.,  82,  it  was  said— 

"The  class  of  trusts  which  as  between  the  trustee  and  cestui 
que  trust  is  not  barred  by  the  statute,  embraces  those  technical, 
direct  and  express  trusts  which  are  of  a  nature  cognizable  solely 
in  equity.  It  would  not,  therefore,  include  the  almost  innumer- 
able cases  of  implied  and  constructive  trusts  so-called,  as  for 
example,  deposits  or  bailments  not  special  in  their  character,  or 
other  trusts  analogous  to  these." 

In  Carpenter  v.  Canal  Company,  35  0.  S.,  317,  it  was  held 
that  trusts  which  might  be  the  ground  of  an  action  at  law  were 
not  exempted  from  the  operation  of  the  statute. 

And  in  Bryant  v.  Hwctland,  48  0.  S.,  205,  it  was  saidr 

"It  is  firmly  settled  in  this  state  that  the  statute  of  limitations 
applies  to  all  civil  actions  whether  they  be  such  as  before  the 
adoption  of  the  code  of  civil  procedure  were  called  actions  at  law 
or  suits  in  equity  except  certain  specified  actions  which  the  stat- 
ute exempts  from  its  operation." 

The  code  abolished  the  distinction  between  forms  of  action  in 
this  state,  although  of  course  it  could  not  abolish  the  inherent 


NISI  PRIUS  REPORTS— NEW  SERIES.  47 

1908.]  Slate,  ex  rel,  v.  Ohio  National  Bank. 

differences  between  the  rights  sought  to  be  made  the  subject  of 
actions  and  the  consequent  duties  which  those  rights  impose  upon 
others;  and,  while  the  fundamental  principles  underlying  the 
differences  between  legal  and  equitable  procedure  necessarily 
exist  and  will  exist,  yet  when  it  comes  to  the  practice 
of  them  the  Legislature,  which  has  provided  that  there  shall 
be  but  one  form  of  action,  meant  that  the  statute  of  limitation 
should  apply  to  that  form  of  action,  unless  there  was  some  special 
exemption.  In  fact  the  Supreme  Court  says,  in  the  case  of 
Bryant  v.  Swetland,  that  "the  statute  of  limitations  applies 
to  all  civil  actions,  whether  they  be  such  as  before  the  adoption 
of  the  eode  of  civil  procedure  were  called  actions  at  law  or  suits 
in  equity,  except  certain  specified  actions  which  the  statute  ex- 
pressly exempts  from  its  operation."  The  only  exceptions  as  to 
trusts  that  I  recall  are  that  continuing  and  subsisting  trusts  are 
not  subject  to  the  provisions  of  that  chapter.  I  do  not  think 
that  this  could  be  called  that  kind  of  a  trust.  It  is,  as  I  said 
before,  and  there  seems  to  be  no  contention  about  it,  a  result- 
ing trust. 

By  1  Pomeroy's  Equity  Jurisprudence,  2d  Edition,  Section 
41S,  it  seems  that  the  statute  of  limitations  may  be  invoked  in 
all  classes  of  cases,  except  in  those  brought  to  enforce  a  trust 
against  an  express  trustee,  and  that  it  may  be  invoked  even  in 
suits  to  obtain  remedy  against  fraud,  on  the  principle  that 
"equity  aids  the  vigilant,"  which  is  merely  an  extension  of 
the  maxim  that,  "he  who  seeks  equity  must  do  equity." 

In  the  case  at  bar  there  was  no  express  trust;  hence,  on  the 
authority  of  Pomeroy  (ante)  and  Yearly  v.  Long  (ante)  this 
is  not  of  that  character  of  trust  which  is  within  the  exception 
of  the  statute. 

I  am  of  the  opinion,  therefore,  that  the  statute  of  limitations 
applies.  The  court  is  further  of  the  opinion  that  the  action  is 
governed  by  the  limitations  prescribed  by  Section  4981.  And 
this  upon  the  authority  of  the  case  of  Mount  v.  Ldkeman,  21 
0.  S.,  643.  It  seems  that  there  would  be  an  implied  contract 
that  not  only  the  principal  but  the  increment  would  be  repaid 
when  the  relation  of  trustee  and  beneficiary  arises.    While  it  may 


48  ALLEN  COUNTY  COMMON  PLEAS. 

State,  ex  rel,  v.  Ohio  National  Bank.     [Vol.  VII,  N.  S. 

not  arise  out  of  any  intention  to  assume  that  relation,  yet  the  law 
would  imply  such  a  contract  between  the  two  which  might  be  en- 
forcible  in  equity. 

I  do  not  think  this  is  an  action  for  relief  on  the  ground  of 
fraud,  and  if  it  were  the  statute  would  begin  to  run  from  the 
time  when  the  fraud  was  discovered  or  ought  to  have  been  dis- 
covered (2  Pomeroy  Equity  Jurisprudence,  Section  917).  And 
surely  the  presence  among  the  funds  in  the  treasurer's  offiee 
of  certificates  of  deposit,  which  admittedly  were  there,  ought 
to  have  put  the  commissioners  on  inquiry,  for  a  certificate  of 
deposit  is  not  cash. 

The  court  is  equally  clear  that  there  is  no  merit  in  the  defend- 
ant's contention  that  as  long  as  there  was  sufficient  funds  in 
the  bank  to  pay  in  full  all  the  monies  of  the  treasurers  there 
deposited,  there  was  no  use  by  the  bank  of  the  county's  funds 
and  no  commingling  of  them  with  its  own.  The  evidence  in- 
disputably shows  the  contrary.  It  also  shows  the  bank  obtained 
a  profit  on  the  use  by  it  of  some  at  least  of  the  county's  funds. 
The  bank  must  be  presumed  to  know  the  law  and  to  know  it 
had  no  right  to  retain  or  use  these  funds,  but  as  to  those  checks 
drawn  on  itself  to  pay  them  on  presentation,  and  as  to  those 
drawn  on  other  banks  to  collect  them  in  the  usual  course  and 
pay  over  the  proceeds.  As  to  either  kind,  if  it  ehose  to  credit 
the  treasurer's  private  account-instead  of  making  a'  mere  col- 
lection memorandum,  it  must  he  held  to  have  the  cash  in  its 
hands  to  meet  that  credit  and  hence  to  have  the  county's  money. 
Presumably  it  found  it  to  its  advantage  so  to  credit  the  treas- 
urer or  it  would  not  have  done  it,  and  it  is  a  fair  inference 
that  the  transactions  were  profitable  to  it.  Hence,  as  to  the 
credits  within  six  years  prior  to  the  commencement  of  this  ac- 
tion, the  defendant,  having  profited  by  the  use  of  the  trust  funds, 
ought  to  account  for  this  profit  to  the  county,  and  as  it  is  im- 
practicable if  not  impossible  exactly  to  determine  the  amount  of 
this  profit,  interest  at  six  per  cent,  should  be  allowed. 

A  decree  may  be  drawn  accordingly. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Kealey  et  al  v.  Faulkner  et  al. 


DISSOLUTION  OF  A  LABOR.  UNION. 

Common  Pleas  Court  of  Cuyahoga  County. 

John  A.  Kealey  et  al  v.  A.  L.  Faulkner  et  al. 

Decided,  December  26,  1907. 

Procedure — Where  a  Nondescript  Association  is  Involved — Application 
of  Section  5008 — Parties  in  Port  Delicto — Jurisdiction — Public  Pol- 
icy—Right  of  Labor  and  Capital  to  Combine— Right  of  the  Public 
to  Industrial  Freedom— When  Combination  become*  Unlawful — 
Method)  which  are  Inimical  to  the  Public  Welfare— Disaffirmance 
of  an  Executory  Contract — Decree  Dissolving  the  Amalgamated 
Windoto  Glaus  Workers  of  America  and  Appointing  a  Receiver  for 
its  Funds  which  after  Payment  of  Just  Claims  must  be  Distributed 
Among  the  Members  by  Whom  it  was  Contributed. 

1.  One  object  of  Section  5008,  Revised  Statutes,  Is  to  enable  nondescript 

associations  of  persons  to  obtain  a  standing  In  court,  without  In- 
ordinate delay  and  expense:  and  It  Is  sufficient,  both  for  jurisdic- 
tion and  for  Judgment,  If  the  interest  that  la  held  In  common  be 
fairly  represented  by  those  who  are  In  court.  In  an  action  be- 
tween factions  of  an  association  whose  purposes  and  methods  are 
against  public  policy,  although  the  parties  plaintiff  are  in  pari 
delicto,  and  therefore  not  entitled  to  relief,  the  action  may  never- 
theless be  maintained  in  the  interest  of  the  public,  where  it  Is  In 
disaffirmance  of  an  executory  contract 

2.  Men  may  combine  and  co-operate  for  the  advantageous  marketing 

of  their  skill  and  labor,  or  their  capital;  but  this  right  is  limited 
by  the  right  of  the  public  to  hHve  Industrial  and  commercial  free- 
dom maintained- and  promoted.  Whatever,  of  purpose  or  of  method 
transcends  these  bounds,  If  in  Its  tendency  It  is  opposed  to  the 
public  welfare.  Is  under  the  ban  of  the  law  and  Its  administration. 

3.  The  leading  general  purpose  of  the  Amalgamated   Window  Glass 

Workers  of  America  Is,  to  protect  and  promote  the  Interests  of 
Its  members — a  purpose  that  is  both  lawful  and  commendable; 
but  many  of  Its  ancillary  purposes  and  methods  plainly  contravene 
public  policy,  and  render  the  association  an  illegal  organisation. 
Decree;  The  association  is  dissolved,  and  a  receiver  appointed  to  take 
charge  of  its  funds. 


Hoyt,  Dustin  &  Kelley,  for  plaintiffs. 
D.  H.  TUden  and  E.  J.  Finney,  contra. 


60  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  [Vol.  VII,  N.  S. 

Phillips,  J.  (orally). 

There  is  a  demurrer  to  the  petition  and  the  amendment  there- 
to, on  the  ground:  first,  that  there  is  defect  of  parties  defend- 
ant; second,  that  the  petition  and  its  amendment  do  not  state 
a  right  of  action.  The  action  is  a  contest  between  factions  of 
the  Amalgamated  Window  Glass  Workers  of  America,  which  is 
an  unincorporated  association  of  glass  workers,  designated  as 
glass  blowers,  gatherers,  flatteners  and  cutters,  and  compris- 
ing about  six  thousand  men.  The  plaintiffs  are  representatives 
of  the  two  trades,  fiatteners  and  cutters,  who  claim  that  they 
have  not  received  fair  treatment  from  the  hands  of  the  organiza- 
tion; that  the  organization  is  illegal;  that  they  have  con- 
tributed to  its  funds;  and  that  the  association  now  has  a  fund 
in  excess  of  $100,000.  They  ask  that  the  association  be  dissolved, 
that  a  receiver  be  appointed,  and  that  this  fund  be  distributed 
among  the  members  of  the  organization  according  to  their  re- 
spective individual  rights  in  it. 

The  plaintiffs  allege  that  they  are  representatives  of  the  said 
two  classes,  in  whose  interest  this  action  is  brought,  and  they 
make  the  officers  of  the  organization,  and  perhaps  some  other 
individual  members,  defendants.  They  allege  that  these  officers 
control  the  funds  of  the  association  and  are  in  charge  of  the 
organization  for  the  purpose  of  enforcing  its  by-laws  and  con- 
ducting its  internal  regulations.  In  other  words,  it  appears  from 
the  allegations  of  the  petition  that  these  persons  who  are  made 
defendants  are  representatives  of  all  the  interests  of  the  as- 
sociation not  represented  by  the  plaintiffs.  No  other  persons 
are  made  defendants,  so  far  as  the 'merits  of  the  action  are  con- 
cerned. Some  others  are  made  defendants  because  they  are  in 
possession  of  some  of  the  funds  of  the  association. 

It  is  claimed,  in  the  first  place,  that  there  are  not  parties 
enough  to  this  action.  These  plaintiffs  sue  for  a  large  portion 
of  the  membership,  although  a  minority  of  them,  having  in- 
terests similar  to  their  own  interests,  and  whose  interests  these 
plaintiffs  represent,  and  the  action  is  against  those  few  persons 
named  as  defendants  as  representatives  of  a  class  of  persons  too 
numerous  to  be  individually  made  parties. 


NISI  PRIUS  REPORTS— NEW  SERIES.  51 

1908.J  Kealey  et  al  v.  Faulkner  et  aL 

The  action  in  this  regard  is  brought  under  favor  of  Section 
5008  of  the  statutes,  which  reads: 

"When  the  question  is  one  of  a  common  or  general  interest 
of  many  persons,  or  when  the  parties  are  very  numerous,  and  it 
is  impracticable  to  bring-  them  all  before  the  court,  one  or  more 
may  sue  or  defend  for  the  benefit  of  all." 

In  the  50th  Ohio  State,  at  708,  our  Supreme  Court  comments 
upon  this  provision  of  the  statute,  in  this  language: 

"It  was  the  general  rule  in  chancery,  before  the  adoption  of 
the  civil  code,  that  suits  must  be  prosecuted  by  the  real  parties 
in  interest,  and  that  all  who  were  united  in  interest  must  be 
joined.  There  were,  however,  certain  well  established  excep- 
tions to  the  rule  which,  like  the  rule  itself,  were  adopted  for 
the  convenient  administration  of  justice.  Among  these  excep- 
tions, it  is  stated  in  Story's  Equity  Pleading,  Section  97,  were: 
'(1)  Where  the  question  is  one  of  a  common  or  general  in- 
terest, and  one  or  more  sue,  or  defend,  for  the  benefit  of 
the  whole;  (2)  Where  the  parties  form  a  voluntary  associa- 
tion for  public  or  private  purposes,  and  those,  who  sue  or  de- 
fend, may  fairly  be  presumed  to  represent  the  rights  and  in- 
terests of  the  whole;  (3)  .  Where  the  parties  are  very  numer- 
ous, and  although  they  have,  or  may  have  separate,  distinct 
interests;'  yet  it  is  impracticable  to  bring  them  all  before  the 
court. ' 

"In  speaking  of  the  second  class  of  exceptions  above  men- 
tioned, it  is  said  that, '  In  cases  of  this  sort  the  persons  interested 
are  commonly  numerous,  and  any  attempt  to  unite  them  all  in 
the  suit  would  be,  even  if  practicable,  exceedingly  inconvenient, 
and  would  subject  the  proceedings  to  danger  of  perpetual  abate- 
ments, and  other  impediments,  arising  from  intermediate  deaths, 
or  other  accidents,  or  changes  of  interest.  Under  such  circum- 
stances, as  there  is  a  privity  of  interest,  the  court  will  allow 
a  bill  to  be  brought  by  some  of  the  parties  in  behalf  of  them- 
selves and  all  the  others,  taking  care  that  there  shall  be  a  due 
representation  of  all  the  substantial  interests  before  the  court.' 
So  that  the  principle  upon  which  that  class  of  exceptions  rested 
is  not  different  in  substance  from  that  of  the  class  last  mentioned, 
namely,  that  the  parties  are  numerous,  and  it  is  impracticable,  in 
the  convenient  and  speedy  administration  of  justice,  to  have 
them  all  before  the  court ;  and  the  courts  in  many  adjudged  cases 
appear  to  have  so  regarded  it.     By  reference  to  some  of  the 


52  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealay  et  al  v.  Faulkner  et  al.  [Vol.  VII,  N.  8. 

cases  it  will  be  seen  how  the  exceptions  were  applied  in  practice, 
and  when  it  was  deemed  by  the  courts  impracticable  to  bring 
all  of  the  parties,  when  numerous,  before  the  court." 

And  the  court  further  say  that  Section  5008  is  an  adoption  of 
this  rule  in  equity,  and  has  a  like  application. 

In  Pomeroy's  Equity  Remedies,  as  it  is  now  called,  he  con- 
siders this  matter  at  Section  293,  which  I  read: 

"I  pass  now  to  consider  the  nature  of  the  action  brought  by 
one  on  behalf  of  others,  and  its  effects  upon  the  rights  and  duties 
of  those  who  are  represented  by  the  actual  plaintiffs.  The  per- 
sons not  named  in  such  cases  are  not  parties  to  the  suit  unless 
they  afterwards  elect  to  come  in  and  claim  as  such,  and  bear 
their  proportion  of  the  expenses.  It  is  optional  with  them 
whether  they  will  become  parties  or  not,  and  until  they  so  elect 
they  are,  in  the  language  of  the  books  'in  a  sense  deemed  to  be 
before  the  court. '  They  are  so  far  before  the  court  that  if  they 
neglect,  after  a  reasonable  notice  to  them  for  that  purpose,  to 
come  in  under  the  judgment  and  establish  their  claim,  the  court 
will  protect  the  defendants  and  the  parties  named  from  further 
litigation  in  respect  of  the  same  fund  or  other  subject-matter, 
especially  so  far  as  such  litigation  may  tend  to  disturb  the  rights 
of  the  parties  as  fixed  by  the  judgment.  A  person  who  elects 
to  come  in  and  make  himself  a  party  must  apply  for  an  order 
making  him  such,  and  upon  the  granting  of  the  order  he  is  to 
all  intents  and  purposes  a  party." 

After  the  examination  of  a  number  of  authorities  that  I  do 
not  now  refer  to,  I  come  to  this  conclusion  about  it :  The  object  of 
the  provision  in  the  statute,  as  it  was  the  object  in  equity  proced- 
ure, is  to  enable  these  outlying  nondescript  associations  of  persons 
— not  incorporated,  not  a  partnership  really,  although  in  some  re- 
spects they  are  so — both  to  sue  and  to  be  sued.  It  is  important, 
in  the  interest  of  these  unincorporated  organizations — not 
against  them,  but  in  their  interest — to  enable  them  to  get  a 
standing  in  court  without  too  great  inconvenience,  too  great  de- 
lay, or  too  great  expense.  I  think  the  spirit  of  this  provision  is, 
that  in  such  cases  it  is  sufficient  for  all  purposes,  both  for  juris- 
diction and  for  judgment,  if  the  interest  that  is  held  in  common 
is  represented  in  the  case.  If  a  common  interest  is  represented, 
if  the  common  interest  is  brought  into  court  by  the  bringing  in 


NISI  PRIUS  REPORTS—NEW  SERIES.  &3 

1908. J  Kealey  et  al  v.  Faulkner  et  al. 

of  persona  who  represent  that  interest,  it  is  sufficient.  Enough 
persons  must  be  brought  in,  both  as  plaintiffs  and  as  defend- 
ants, to  fairly  represent  those  not  brought  in,  in  order  that  the 
court  may  see  that  the  common  interest  is  represented.  It  may 
then  be  prosecuted,  so  far  as  the  plaintiffs  are  concerned,  and  it 
may  then  be  defended,  so  far  as  the  defendants  are  concerned. 
This  is  all  that  is  requisite.  Without  such  provision  and  with- 
out such  interpretation  and  Application  of  it,  it  would  not  V 
possible  in  a  ease  like  this,  either  for  the  association  to  sue,  or 
for  the  association  to  be  sued.  I  have  not  been  unmindful  of  the 
fact  that  it  is  not  an  association  that  is  suing,  and  that  it  is  not 
an  association  that  is  sued  really — it  is  a  part  of  the  membership 
that  is  sued.  There  is  no  complaint  here  as  to  the  plaintiffs, 
no_  objection  to  the  way  in  which  the  suit  is  brought,  so  far  as 
the  parties  plaintiff  are  concerned.  I  think  the  persons  who  are 
made  defendants  do  represent  the  interests  of  all  the  members 
of  this  association ;  they  are  representative  elements  in  it;  they 
have  a  right  to  represent  the  association;  it  is  their  duty  to 
represent  it;  they  control  the  funds  of  the  association;  and 
whatever  concerns  the  general  membership  of  the  association,  it 
is  their  duty  to  look  after;  and  if  the  membership  should  be 
personally  notified,  it  may  be,  although  I  do  not  determine  this, 
it  may  be  that  the  duty  devolves  upon  these  defendants  here 
to  give  such  notice.  Making  them  parties  here  is  ipso  facto  no- 
tice through  them  to  all  the  membership.  Any  other  construc- 
tion, any  other  application,  it  seems  to  me,  of  this  provision  of 
the  statute,  would  defeat  its  purpose.  So  that,  so  far  as  this 
branch  of  the  demurrer  is  concerned,  I  think  it  not  well  taken. 
In  support  of  the  petition  in  matter  of  substance,  it  is  claimed 
that  the  Amalgamated  Window  Glass  Workers  of  America,  by  its 
expressed  purposes  and  its  conceded  methods,  is  a  menace  to  the 
public  welfare,  and  must  therefore  be  dealt  with  as  an  organiza- 
tion that  is  opposed  to  the  public  policy  of  the  country.  The 
demurrer  to  the  petition  can  not  be  disposed  of  without  de- 
ciding this  question,  a  question  so  important,  not  only  in  the 
instance,  but  upon  principle  as  well,  that  I  have  given  to  its  con- 
sideration  all   the   eare  and   contemplation   that   circumstances 


54  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kcaley  et  al  v.  Faulkner  et  al.  [Vol.  VII,  N.  S. 

would  allow,  and  in  this  labor  I  have  been  greatly  helped  by  the 
zealous  industry  of  counsel  on  both  sides. 

I  bare  endeavored,  with  what  diligence  I  might,  to  discover 
the  true  criteria  by  which  to  determine  whether  an  avowed 
purpose,  or  an  adopted  method,  stands  for  or  against  the  public 
policy.  And  I  have  tried  to  find  out  by  what  considerations  we 
ought  to  determine  the  limits  within  which  an  association  of  men 
may  rightfully  control  a  productive  industry,  and  to  what 
tent  the  courts'  may  interefere  with  attempted  control. 

To  clear  -the  way,  I  must  advert  to  some  things  that  are  c 
monplace,  even  at  the  risk  of  being  a  little  discursive. 

In  organized  society  every  one  retains,  of  right,  his  in- 
dividuality; and  he  sustains,  of  necessity,  the  social  relations. 
As  an  individual  he  produces  and  he  appropriates — he  creates 
and  he  consumes ;  and  if  he  is  able  and  disposed  he  accumulates. 
As  a  member  of  society  he  intercommunicates  and  exchanges. 
These  relations  are  so  interwoven,  that  to  promote  one's  indivi- 
dual welfare  is  to  enhance  the  well-being  of  society,  by  en- 
larging the  capacity  of  the  individual  both  to  do  and  to  enjoy 
and  vice  versa,  to  promote  the  general  welfare  is  to  enhance  the 
well-being  of  the  individual,  by  improving  his  opportunities  for 
interchange  and  intercommunication. 

Upon  considerations  that  I  need  not  stop  to  point  out,  the  law, 
in  the  administration  of  commutative  justice,  gives  priority  to 
the  public  welfare  over  the  welfare  of  individuals.  No  one  may 
rightfully  do,  or  obligate  himself  to  do,  anything  the  tendency 
of  which  is  against  the  public  good.  The  interest  of  individuals 
must  be  subservient  to  the  public  welfare.  Solus  populi  suprenia 
lex. 

Among  the  things  that  bring  prosperity  and  contentment  to  a 
people,  are  (1)  a  productive  industry,  and  (2)  distributive 
justice.  There  must  be  industry,  and  there  must  be  such 
employment  of  industry  as  to  make  it  fairly  produotive ; 
and  there  must  be  a  fair  division  of  the  product  of  in- 
dustry among  those  who  help  to  produce  it.  There  can 
be  no  real  prosperity  of  a  community  unless  there  is  industry ; 
there    can    be    no    prosperity    unless    this    industry    is    made 


.  NISI  PRIUS  REPORTS— NEW  SERIES.  65 

1908.]  Kealey  et  al  v.  Faulkner  et  al. 

productive;  and  there  can  be  no  prosperity  unless  there  be 
just  division  of  the  total  product  of  industry  among  those  whose 
industry  has  produced  it.  And  just  division  does  not  mean 
share  and  share  alike ;  but  distribution  to  each  according  to  the 
productive  energy  each  has  contributed  to  the  fund  total,  whether 
the  energy  contributed  has  been  physical  or  mental.  Industry, 
to  tie  productive,  must  be  well  directed.  So  that  production  in- 
volves both  work  and  management.  And  if  industry  be  well 
directed,  and  therefore  productive,  yet  if  the  fund  total  be  so 
unjustly  divided  that  some  ere  unjustly  enriched,  while  others 
are  unjustly  impoverished,  there  is  no  real  prosperity — that  is, 
there  can  be  no  community  prosperity.  If  conditions  be  such 
that  those  who,  by  work  or  by  management,  have  contributed  the 
least  productive  energy  shall  get  most  from  the  fund  total,  there 
is  no  community  prosperity;  on  the  contrary,  there  is  extor- 
tion and  oppression.  A  great  fortune  that  is  the  fruit  of  dis- 
honesty tells  of  unjust  division  of  the  product  of  industry; 
and  it  therefore  engenders  discontent.  A  great  fortune  ac- 
quired dishonestly  may  well  create  unrest,  not  because  of  the 
power  it  gives  to  its  possessors — for  that  inheres  in  great  for- 
tunes honestly  acquired — but  because  of  the  unrequited  industry 
that  lies  in  its  wake.  This  is  why  the  hand  of  the  government 
may  deal  with  "successful  dishonesty" — or  rather  with  the 
conditions  which  foster  dishonest  acquisition. 

One  of  the  chief  reasons  for  the  creation  of  government,  and 
therefore  one  of  the  chief  functions  of  government,  is  to  prevent 
extortion  and  oppression  and  to  foster  a  productive  industry  by 
maintaining  a  just  division  of  the  fruits  of  industry.  This  is 
distributive  justice,  as  it  is  known  to  jurisprudence.  To  use  an 
expression  of  the  French  jurists,  it  is  seeing  to  it  that  neither 
equal  persons  have  unequal  things,  nor  unequal  persons  things 
equal. 

Every  one  is  perfectly  free  to  .bring  his  capital  or  his  labor 
into  the  market  on  such  terms  as  he  may  deem  best.  This  is  a 
fundamental  postulate  and,  as  an  inseparable  corollary  there- 
from no  one  may,  of  right,  impair  or  impinge  upon  this  in- 
dividual freedom  to  use  one's  labor  or  capital. 


56  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  [Vol.  VII,  N.  S. 

This  individual  freedom  as  to  the  marketing  of  one's  labor 
or  capital  belongs  equally  to  an  aggregation  of  labor  or  of 
capital;  and  the  duty  not  to  impair  or  impinge  upon  this  free- 
dom of  labor  and  of  capital  rests  equally  upon  any  aggregation 
of  men.  In  other  words,  the  right  is  not  enlarged,  nor  is  the 
duty  lessened,  by  the  association.  Stated  differently  again,  this 
right  and  this  duty  do  not  arise  from  the  coming  together  of 
men ;  they  inhere  in  and  attach  to  the  individual,  as  a  member 
of  the  community.  And  when  labor  or  capital  is  united,  for  the 
advantageous  marketing  thereof,  this  individual  right  of  free- 
dom and  this,  individual  duty  to  desist  attach  to  the  aggregation, 
whether  it  be  of  capital  or  of  labor. 

I  read  an  extract  from  an  opinion  in  the  214th  Pa.  State, 
page  357: 

"The  right  of  a  workman  to  freely  use  his  hands  and  to  use 
them  for  just  whom  he  pleases,  and  upon  just  such  terms  as  he 
pleases,  is  his  property,  and  so  in  no  less  degree  is  a  man's  busi- 
ness an  which  he  has  invested  his  capital.  The  right  of-^-em- 
ployer  and  employe — is  an  absolute  one,  inherent  and  indefeas- 
ible, of  which  neither  can  be  deprived,  not  even  by  the  Legisla- 
ture itself.  The  protection  of  it,  though  as  old  as  the  common 
law,  has  been  reguaranteed  in  our  Bill  of  Rights.  'AH  men  are 
born  equally  free  and  independent,  and  have  certain  inherent 
and  indefeasible  rights,  among  which  are  those  of  enjoying  and 
defending  life  and  liberty,  or  acquiring,  possessing  and  protect- 
ing property  and  reputation,  and  of  pursuing  their  own  happi- 
ness.' The  principle  upon  which  the  cases,  English  and  Ameri- 
can, proceed  is,  that  every  man  has  the  right  to  employ  his 
talents,  industry  and  capital  as  he  pleases,  free  from  the  dicta- 
tion of  others;  and  if  two  or  more  combine  to  coerce  his  choice 
in  this,  it  is  criminal  conspiracy.  The  labor  and  skill  of  the 
workman,  be  it  high  or  low  degree,  the  plant  of  the  manufac- 
turer, the  equipment  of  the  farmer,  the  investments  of  commerce 
are  all,  in  equal  sense,  property.  A  person 's.Dusiness  is  prop- 
erty, entitled  under  the  Constitution  .to  protection  from  unlaw- 
ful interference.  Every  person  has  a  right,  as  between  his  fel- 
low-citizens and  himself,  to  carry  on  his  business,  within  legal 
limits,  according  to  his  own  discretion  and  choice,  with  any 
means  that  are  safe  and  healthful,  and  employ  therein  such  per- 
sons as  he  may  select." 


NISI  PRIUS  REPORTS— NEW  SERIES.  57 

1808.]  Kealey  et  al  t.  Faulkner  et  al. 

1  This  right  of  commercial  freedom,  and  this  correlated  duty  to 
forbear,  and  the  origin,  the  scope,  and  the  purpose  thereof, 
must  be  kept  well  in  mind,  for  the  due  consideration  and  the 
safe  determination  of  the  questions  that  here  confront  us.  If 
I  may  venture  a  modest  criticizm,  it  was  failure  to  properly 
advert  to  these  considerations  that  led  some  of  the  courts,  in 
the  earliest  cases,  to  make  announcements  that  have  come  to  be 
regarded  as  of  doubtful  authority. 

The  Amalgamated  Window  Glass  Workers  of  America  is 
composed  of  skilled  workmen — artisans,  men  trained  to  dex- 
terity in  the  making  of  window-glass.  Because  these  men  are 
skilled  in  the  manufacture  of  an  important  article  of  commerce, 
they  are  tble  to  contribute,  in  a  special  way,  and  in  special 
measure,  to  the  productive  industry  of  the  community;  there- 
fore the  community  has  a  special  interest  in  the  industrial  free- 
dom of  these  men,  and  each  of  them.  One  of  these  men  could 
not  obligate  himself  not  to  work  at  his  trade.  He  might,  of 
choice,  decline  to  pursue  his  trade;  but  he  could  not  obligate 
himself  not  to  work  at  his  trade ;  and  if  he  should  enter  into  a 
contract  never  again  to  work  at  his  trade,  the  courts  would  not 
enforce  the  contract.  Such  contract  would  be  against  public 
policy.  It  would  impair  the  industrial  freedom  in  which  the 
public  is  interested,  and  which  it  is  the  duty  of  government  to 
protect  and  promote.  It  is  this  indicium,  the  impairment  of  in- 
dustrial freedom,  that  discriminates  and  vitiates  such  contracts. 

Our  Supreme  Court  has  said  of  such  engagement  that  it 
tends  to  oppression  by  depriving  the  individual  of  the  right  to 
pursue  a  trade  with  which  he  is  most  familiar  and  by  depriving 
the  community  of  the  services  of  a  skilled  laborer;  and  it  tends 
indirectly  to  affect  the  price  of  such  things  as  would  be  pro- 
duced by  his  labor. 

And  for  the  same  reasons  that  one  man  may  not,  by  contract- 
ual obligation,  impair  or  limit  his  industrial  freedom,  any  num- 
ber of  men  may  not.  And  the  individual  may  not,  by  union 
with  others,  surrender  his  right  of  industrial  freedom  to  the  as- 
sociation. The  tendency  of  such  impairment  of  the  right  of 
industrial  freedom  is  against  the  general  welfare,  and  is  therefore 


58  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  [Vol.  VII,  N.  8. 

against  the  public  policy  which  is  promotive  of  the  public  good. 
Chief  Justice  Wilmot  said  (I  read  a  quotation  found  in  the 
18th  Ohio  State  Reports,  page  203) : 

"Whatsoever  a  man  may  lawfully  forbear,  that  he  may  oblige 
himself  against,  except  where  a  third  person  is  wronged,  or 
the  public  is  prejudiced  by  it."  , 

In  the  light  of  the  authorities  to  be  referred  to,  let  us  see 
what  is  the  legal  character  and  status  of  the  Amalgamated  Win- 
dow Glass  Workers  of  America. 

It  is  clear  that  the  thing  that  vitiates  a  contract,  under  a 
principle  of  the  law  which  we  call  "public  policy,"  is  not  an 
intent  to  injure  the  public,  but  a  tendency  to  the  prejudice  of 
the  public.  Actual  injury  is  never  required  to  be  shown;  it  is 
the  tendency  to  the  prejudice  of  the  public  good  which  vitiates 
contractual  relations. 

Within  the  limitations  I  have  stated,  men  may  combine  and 
co-operate,  for  the  advantageous  marketing  of  their  skill  and 
labor,  or  their  capital.  But  this  right  is  limited  to  an  advantage- 
ous marketing  of  labor  or  capital,  and  it  is  limited  by  the  right 
of  the  public  to  have  industrial  and  commercial  freedom  main- 
tained and  promoted.  Whatever,  of  purpose  or  of  method,  trans- 
cends these  bounds,  if  in  its  tendency  it  is  opposed  to  the  public 
welfare,  is  under  the  ban  of  the  law  and  its  administration. 

The  undoubted  trend  of  modern  business  is  for  the  combina- 
tion, both  of  capital  and  of  labor.  Combinations  of  capital  have 
become  a  necessity.  The  great  business  undertakings  of  these 
times  could  not  be  carried  on  without  it.  And  most  of  the  labor 
is  now  employed  in  large  aggregations  of  men.  There  is  as  much 
right,  and  I  think  as  much  reason,  for  laborers  to  combine  for 
their  protection  and  benefit,  as  for  capital  to  combine.  This 
inevitable  tendency  to  combine  can  neither  be  ignored  or  re- 
pressed, nor  should  it  be. 

There  is  no  law  to  compel  a  man  or  a  body  of  men  to  work,  and 
there  is  no  law  to  prevent  a  man  or  a  body  of  men  from  re- 
fusing to  work.  If  there  were  such  law,  it  would  violate  funda- 
mental property-rights.     Any  man,  and  any  body  of  men,  may 


NISI  PRIUS  REPORTS— NEW  SERIES.  59 

1S08.J  Kealey  et  al  v.  Faulkner  et  al. 

work  for,  or  refuse  to  work  for  whom  they  will.  And  the  same 
freedom  belongs  to  the  employer  of  labor.  These  are  funda- 
mental principles,  recognized  in  all  the  decisions  that  are  au- 
thoritative. 

It  is  noticeable  that  nowhere  do  the  by-laws  of  this  organiza- 
tion state,  in  terms,  its  aims  and  purposes.  These  are  to  be 
gathered  from  the  several  provisions  and  the  general  trend  of  the 
by-laws,  and  from  the  averments  of  the  petition,  which,  for  the 
purposes  of  this  demurrer,  are  admitted,  so  far  as  they  are  well 
pleaded. 

I  think  the  leading  general  purpose  of  the  association  is, 
to  protect  and  promote  the  interests  of  such  window  glass 
workers  as  may  be  members  of  the  association — a  purpose  that 
is  not  only  lawful,  but  commendable,  if  the  auxiliary  purposes, 
and  the  methods  ,to  be  employed,  are  likewise  lawful. 

First.  It  is  one  of  the  auxiliary  purposes  of  this  organiza- 
tions to  prevent  any  one  not  a  member  thereof,  or  an  apprentice 
authorized  thereby,  from  working  at  the  trade  of  window  glass 
blower,  gatherer,  flattener  or  cutter.  And  I  read  from  the  by-laws 
that  are  made  a  part  of  the  petition,  Section  2,  page  18,  of  the 
copy  that  has  been  furnished  me: 

"No  one  not  a  member  of  the  Amalgamated  Window  Glass 
Workers  of  America  shall  be  allowed  to  work  at  any  of  the 
four  trades,  excepting  our  own  apprentices." 

Of  course  this  policy,  if  enforced,  would  promote  the  indi- 
vidual advantage  of  the  members  of  the  association.  But  how  as 
to  tbe  other  side  of  the  equation  1  If  this  policy  is  enforced, 
the  right  of  industrial  freedom  is  thereby  limited  and  impaired, 
and  the  public  is  deprived  of  the  right  it  has  in  the  full  and  free 
enjoyment  of  industrial  freedom  by  every  member  of  the  com- 
munity. 

Second.  This  organization  undertakes  to  limit  the  number  of 
glass  workers  in  this  country.  And  I  read  from  pages  8,  9  and 
10,  Sections  3,  4,  5,  13   and  20. 

"Section  3.  That  aside  from  sons  and  brothers,  not  to  ex- 
ceed an  additional  10  per  cent,  of  apprentices,  per  actual  pot 


60  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  (Vol.  VII,  N.  & 

capacity  in  operation,  shall  be  granted  to  learn  the  trade  of 
gathering,  for  blast  of  1906-07. 

"Section  4.  That  not  to  exceed  10  per  cent,  of  the  member- 
ship of  flatteners  shall  be  granted  to  learn  to  flatten,  for  blast 
of  1906-07. 

"Section  5.  That  not  to  exceed  10  per  cent,  of  the  member- 
ship of  the  cutters  shall  be  granted  to  learn  to  cut,  for  blast 
of  1906-07. 

"Section  13.  Any  member  attempting  to  learn  either  of  the 
four  trades,  or  making  application,  without  the  proper  permis- 
sion and  paipers,  shall  be  fined  $25.00. 

"Section  20.  No  apprentice  certificate  shall  be  granted  to 
any  one  who  is  not  a  white  male,  and  has  not  attained  the  age 
of  fifteen  years,  and  must  be  of  good  moral  character  and  able 
to  read  and  write." 

Part  of  that  section  I  think,  is  right,  and  part  of  it  I  think 
is  wrong. 

I  read  an  extract  from  the  opinion  in  the  ease  reported  in  the 
63  L.  B.  A,,  a  Minnesota  case,  an  opinion  by  Judge  Brown: 

"The  Constitution  of  our  state  guarantees  liberty  to  every 
citizen,  and  a  certain  remedy  in  the  laws  for  all  injuries  or 
wrongs  which  he  may  receive  in  his  person,  property  or  char- 
acter; and  the  rights  so  guaranteed  are  fundamental,  and  can  be 
taken  away  only  by  the  laws  of  the  land,  or  interfered  with,  or 
the  enjoyment  thereof  modified,  only  by  legal  regulations  adopted 
as  necessary  for  the  general  public  welfare.  For  the  preserva- 
tion, exercise  and  enjoyment  of  these  rights,  the  individual  citi- 
zen, as  a  necessity,  must  be  left  free  to  adopt  such  calling,  pro- 
fession or  trade  as  may  seem  to  bim  most  conducive  to  his  welfare. 

"This  right  to  choose  one's  calling  is  an  essential  part  of  that 
liberty  which  it  is  the  object  of  the  government  to  protect ;  and 
a  calling,  when  chosen,  is  a  man's  property  and  right.  Liberty 
and  property  are  not  protected  where  these  rights  are  arbi- 
trarily assailed.  '  A  person 's  occupation  or  calling,  by  means  of 
which  he  earns  a  livelihood,  and  endeavors  to  better  his  condi- 
tion, and  to  provide  for  and  support  himself  and  those  de- 
pendent upon  him,  is  property  within  the  meaning  of  the  law, 
and  entitled  to  protection  as  such;  and  as  conducted  by  the 
merchant,  by  the  capitalist,  by  the  contractor  or  laborer,  is, 
aside  from  the  goods,  chattels,  money,  or  effects  employed  and 
used  in  connection  therewith,  property  in  every  sens;  of  the 


NISI  PBIUS  REPORTS— NEW  SERIES.  81 

1908.]  Kealey  et  al  v.  Faulkner  et  al. 

word.  Labor  may  organize,  as  capital  does,  for  its  own  protec- 
tion and  to  further  the  interests  of  the  laboring  class.  They 
may  strike,  and  persuade  and  induce  others  *o  join  them,  but 
when  they  resort  to  unlawful  means  to  cause  injury  to  others 
with  whom  they  have  no  relation,  contractual  or  otherwise,  the 
limit  permitted  by  the  law  13  passed,  and  they  may  be  re- 
strained.' " 

Now  th?  provisions  that  I  have  read  reach  beyond  the  mem- 
bership of  this  organization.  They  undertake  to  prohibit  others 
outside  of  its  own  membership  from  learning  the  trade  of  glass 
worker.  That  is  interfering  with  fundamental  rights.  It  is 
against  the  public  policy,  because  it  ia  for  the  public  good  that 
all  men  should  be  free  to  select,  adopt  and  learn  whatever  trade 
they  may  desire,  and  then  to  pursue  it.  Now,  interference  with 
that  is  unlawful  because  it  is  against  the  public  interest. 

Then  this  organization  places  restrictions  upon  the  labor  of 
its  own  members.  And  I  read  several  sections  on  that  point. 
Page  10,  Section  25 : 

"No  member  of  Amalgamated  Window  Glass  Workers  of 
America  shall  be  allowed  to  work  at  any  non-union  works.  Por 
the  violation  of  this  law,  they  shall  be  subject  to  a  fine  at  the 
discretion  of  the  executive  board." 

.    Page  19,  Section  7 : 

"Any  member  signing  an  agreement  of  any  kind  to  secure 
employment,  shall  be  fined  $25  for  the  first  offense,  $50  for 
second  offense,  and  be  suspended  from  membership  for  third 
offense. ' ' 

Page  21,  Section  20: 

"No  member  of  this  association  shall  work  for  monthly  wages, 
unless  it.  be  for  guarantee  to  secure  himself  against  loss  or  to 
retain  himself  in  an  undesirable  position." 

I  read  a  short  extract  from  a  case  iu  the  Second  Law  Reports, 
page  622: 

"Every  workman  is  entitled  to  dispose  of  his  labor  on  his  own 
terms;  but  that  right  is  conditioned,  by  the  right  of  every  other 
workman  to  do  the  like.     In  particular,  each  employe  is,  as  I 


62  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  [Vol.  XI,  N.  g. 

think,  at  liberty  to  decide  for  himself  whether  he  will  or  will 
not  work  along  with  another  individual  in  the  same  employ. ' ' 

Page  25,  Section  18 1 

"No  blower  or  gatherer  shall  work  faster  than  at  the  rate  of 
nine  rollers  per  hour,  excepting  in  case  of  roller  falling  off  or 
pipes  breaking.  No  blower  or  gatherer  shall  be  allowed  to 
start  on  the  ninth  roller  until  50  minutes  are  up;  this  to  also 
apply  to  the  D.  S.  blower  and  gatherer  according  to  their  limit 
per  hour,  and  that  a  fine  of  ten  dollars  be  imposed  on  any  and  all 
preceptors  for  the  non-enforcement  of  this  law." 

Page  27,  Section  31 : 

"No  cutter  shall  be  allowed  to  cut  for  more  than  Zy2  pots  of 
S.  S.  and  3  pots  of  D.  S." 

Page  32,  Section  68 : 

"Any  blower  or  gatherer  working  more  than  forty  hours  per 
week,  shall,  for  the  first  offense,  be  fined  fifty  dollars,  and  for 
the  second  offense  be  expelled  from  the  organization." 

I  read  from  a  case  in  the  216th  Illinois,  page  372: 

"Every  man  has  a  right,  under  the  law,  as  between  himself 
and  others,  to  full  freedom  in  disposing  of  his  own  labor  or 
capital  according  to  his  own  will,  and  any  one  who  invades  that 
right  without  lawful  cause  or  justification  commits  a  legal  wrong, 
and  if  followed  by  an  inquiry  caused  in  consequence  thereof, 
the  one  whose  right  is  thus  invaded  has  a  legal  ground  of  action 
for  such  wrong. 

"It  is  now  well  settled  that  the  privilege  of  contracting  is 
both  a  liberty  and  a  property  right.  Liberty  includes  the  right 
to  make  and  enior.ee  contracts,  because  the  right  to  make  and 
enforce  contracts  is  included  in  the  right  to  acquire  property. 
Labor  is  property.  To  deprive  the  laborer  and  the  employer 
of  this  right  to  contract  with  another  is  ,to  violate  Section  2  of 
Article  TI  of  the  Constitution  of  Illinois,  which  provides  that  no 
person  shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law.  It  is  equally  a  violation  of  the  Fifth  and  Four- 
teenth Amendments  of  the  Constitution  of  the  United  States, 
which  provide  that  no  person  shall  be  deprived  of  life,  liberty 
or  property  without  due  process  of  law,  and  that  no  state  shall 


NISI  PRIUS  REPORTS— NEW  SERIES.  68 

1908.)  Kealey  et  al  v.  Faulkner  et  al. 

deprive  any  person  of  life,  liberty  or  property  without  due  pro- 
cess of  law,  nor  deny  to  any  person  within  the  jurisdiction  the 
equal  protection  of  the  laws. ' ' 

On  pages  29  and  30,  Sections  45  and  58,  are  other  restrictions 
which  have,  by  some  courts  been  held  to  be  lawful,  but  by  the 
majority  of  decisions  held  to  be  illegal ;  I  will  not  take  time  to 
read  them. 

On  page  30,  Section  53,  this  organization  places  limitations 
upon  its  members  as  to  working  in  factories  where  machinery 
is  used: 

That  no  member  of  this  association  will  be  allowed  to  as- 
sist or  try  to  operate  any  iron  man,  machine  or  invention,  for 
the  purpose  of  making  window  glass,  except  it  be  under  the 
protection  of  the  executive  board  or  with  the  consent  of  the 
same.  For  violation  of  the  above  a  member  or  members  shall  be 
fined,  suspended  or  expelled  from  the  association,  as  the  execu- 
tive board  may  decide." 

The  use  of  machinery,  when  it  multiplies  the  products  of  labor, 
is  in  the  interest  of  labor,  and  is  in  the  interest  of  the  general 
welfare;  any  provision,  any  contractual  obligation  which  stands 
athwart  this  principle  stands  athwart  the  policy  that  the  law 
enforces  for  the  public  welfare. 

I  have  heard  it  stated — I  do  not  know  how  true  it  is,  perhaps 
approximately  right — that  the  machine  energy  in  use  in  the 
United  States  amounts  to  one  hundred  millions  of  horse  power, 
doing  the  work  of  eight  hundred  millions  of  men,  and  that  this 
machinery  is  operated  by  twenty  millions  of  men.  So  that,  by 
the  use  of  machinery  one  man  is  enabled  to  do  the  work  and 
make  the  production  of  forty  men  without  machinery.  This  is 
in  the  interest  of  everybody,  because  it  augments  the  fund  total, 
that  is  the  product  of  labor. 

Then  this  organization  undertakes  to  control  the  manufac- 
turers.    I  read  Section  9  on  page  4  of  the  by-laws: 

"Every  manufacturer,  engaging  members  of  the  Amalga- 
mated Window  Glass  Workers  of  America,  shall  sign  the  agree- 
ment of  the  association  before  the  member  will  be  allowed  to 
work. ' ' 


64  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  at  al.  [Vol.  VII,  N.  S. 

Page  27,  Section  36 : 

"Each  manufacturer  shall  be  compelled  to  employ  a  boss 
cutter;  said  boss  cutter  ito  be  a  member  of  the  Amalgamated 
Window  Glass  Workers  of  America,  and  he  shall  divide  and  dis- 
tribute the  orders  among  the  cutters." 

Every  manufacturer  is  compelled  to  employ  a  boss  cutter  who 
is  to  be  subject  to  the  direction  of  this  association.  And  on  page 
28,  Sections  40  and  41 : 

"Any  manufacturer  introducing  into  his  flattening  house, 
blow  furnace,  tanks,  or  pots,  new  inventions,  supposed  improve- 
ments, shall,  so  long  as  said  inventions  or  improvements  continue 
bo  be  an  experiment,  or  until  it  shall  have  been  demonstrated 
that  it  will  not  be  a  loss  to  the  workmen  whose  work  is  or  may  be 
affected  by  said  machine  or  invention,"  etc. 

Section  41 : 

"All  ten-pot  furnaces  shall  be  required  to  employ  three  flat- 
teners,  and  no  flattener  shall  flatten  more  than  four  pots,  unless 
the  president  and  executive  board  deem  it  absolutely  necessary." 

Now,  these  provisions,  if  enforced,  would  impair  the  right  of 
the  employer  to  conduct  his  business  according  to  his  own  no- 
tion of  fitness.  And  it  impairs  the  commercial  freedom  that 
belongs  to  the  employer  just  as  industrial  freedom  belongs  to 
the  individual  laborer.  This  is  outside  of  the  membership  of 
this  association,  and  beyond  any  legitimate  purpose  that  it  can 
have,  to-wit,  the  benefit  of  its  membership. 

I  have  noted,  and  intended  to  read  from,  but  I  will  not  take 
the  time  to  do  so,  the  152d  New  York,  36  to  38 ;  207  Pa.  State, 
page  80;  192  Mass.,  580. 

The  by-laws  of  this  association  contain  a  multitude  of  provi- 
sions, not  referred  to  by  me  because  it  would  take  too  long,  that 
give  the  organization  absolute  control  of  every  member  as  a 
glass  worker,  and  places  him  in  complete  servility  to  it.  Every 
member  of  this  body  has  surrendered  his  individuality,  and  his 
industrial  freedom,  and  is  no  longer  "a  personal  factor  in  the 
industrial  world.  This  is  violative  of  fundamental  personal 
rights,  and  of  public  rights,  and  is  therefore  unlawful. 


NISI  PRIUS  REPORTS— NEW  SERIES.  86 

1908.]  Kealey  et  al  v.  Faulkner  et  al. 

This  association  undertakes  to  exclude  all  glass  workers  not 
members,  and  to  limit  manufacturers  to  employment  of  none 
but  its  members.  This  is  deemed  to  constitute  a  monopoly.  I  read 
from  93  Mo.  Appeals,  pages  390,  391  and  392,  from  the  opinion : 

"In  respect  to  the  second  contention  of  the  defendants  that 
the  association  is  an  unlawful  one,  being  in  restraint  of  trade, 
it  will  suffice  to  refer  to  its  by-laws  in  support  of  this  contention, 
The  by-laws  impose  on  the  members  of  the  association  a  most 
slavish  observance  of  the  most  stringent  rules  and  regulations 
in  the  restraint  of  trade;  so  strict  and  far-reaching  are  they 
that  no  musician  in  the  city  of  St.  Louis,  and  for  that  matter 
in  any  other  city  of  the  country,  can  find  employment  as  a  musi- 
cian unless  he  is  a  member  of  the  association.  Such  confedera- 
tion and  combination  is  a  trust,  pure  and  simple.  Combinations 
and  confederations  in  restrant  of  trade  have  been  denounced  by 
the  common  law  from  time  immemorial  as  being  against  public 
policy.  The  Legislature  of  this  state,  and  the  Legislature  of 
most,  if  not  all,  of  the  other  states  have  made  trusts  an  object 
of  special  legislation  with  a  view  to  their  suppression  and  pre- 
vention. The  plaintiff  is  in  the  attitude  of  asking  the  court  to 
keep  him  where  the  law  says  he  has  no  right  to  be,  and  to  re- 
tain him  in  a  position  where  he  may  aid  in  the  support  and  main- 
tenance of  an  illegal  association,  and  where  he  may  continue  to 
support  and  keep  up  a  monopoly  of  the  services  of  musicians. 

"Courts  have  never  dealt  with  monopolies,  except  to  restrain 
or  destroy  them,  and  we  decline  to  depart  from  this  wholesome 
rule  in  this  case  and  reverse  the  judgment  with  directions  to 
the  trial  court  to  dissolve  the  injunction  and  to  dismiss  plaint- 
iff's bill." 

And  on  the  motion  for  rehearing,  Judge  Bland,  the  presiding 
judge,  made  this  brief  announcement: 

"The  learned  counsel  for  the  respondent,  in  his  motion  for 
rehearing,  seems  to  have  misconceived  both  the  law  and  the 
spirit  of  the  opinion  delivered  in  this  case.  The  opinion  does  not, 
as  counsel  for  respondent  contends,  denounce  trade  unions.  The 
court  was  not  dealing  with  trade  unions  as  such,  but  with  a 
monopoly  styling  itself  a  trade  union.  Trade  unions  are  author- 
ized by  our  statutes  and  are  approved  and  supported  by  the  en- 
lightening sentiment  of  all  right  thinking  men,  and  their  benefit 
both  to  their  members  and  the  general  public  are  seen  and  ap- 
preciated by  every  unprejudiced  mind.       But  when-  a  so-called 


M  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  [Tot.  VII,  N.  S. 

trade  onion  becomes  a  tyrannical  master  over  its  members  and 
monopolizes  a  trade,  for  the  protection  of  which  it  was  osten- 
sibly organized,  it  puts  itself  beyond  tbe  pale  of  the  protection 
of  the  courts  and  outside  of  the  statutes  authorizing  trade  unions; 
and  no  member  of  such  union  can  have  any  standing  in  the 
court  of  equity  where  he  seeks  to  enfore  the  monopolistic  fea- 
tures and  business  of  the  organization.  The  court  found  the  un- 
fortunate respondent  in  this  situation,  and  while  we  recognize 
that  the  order  to  which  he  belonged  had  unjustly  and  arbitrarily 
dismissed  him  from  the  organization,  we  find  ourselves  unable 
to  offer  him  any  relief,  for  the  sole  reason  that  he  asked  the  court 
to  sustain  and  uphold  a  monopoly,  and  not  because  he  belonged 
to  a  labor  union." 

I  conclude  that  the  Amalgamated  Window  Glass  Workers 
of  America,  by  its  expressed  purposes  and  its  conceded  methods, 
exerts  an  influence,  and  has  a  tendency,  against  the  public  policy 
of  the  state,  and  is  therefore  an  illegal  organization. 

Finding  that  the  Amalgamated  Window  Glass  Workers  of 
America  is  an  unlawful  organization,  because  its  purposes  and 
its  methods  tend  against  the  public  welfare,  it  is  too  plain  to 
require  comment,  or  the  citation  of  authorities,  that  the  plaint- 
iffs are  in  pari  delicto,  and  that  they  do  not  come  into  court  with 
clean  hands.  Indeed,  this  was  not  seriously  controverted  in  ar- 
gument. 

Stating  it  in  the  ensemble,  the  attitude  of  the  plaintiffs  is 
about  this: 

We  went  into  this  oganization  to  co-operate  in  these  un- 
lawful purposes,  by  the  use  of  these  unlawful  methods.  We  are 
getting  the  worst  of  it;  and  if  we  simply  withdraw  from  the 
association,  leaving  it  free  to  exert  its  power  and  enforce  its 
tactics  against  us,  we  shall  only  make  our  situation  worse.  We 
therefore  invoke  the  aid  of  the  court  to  pull  down  the  structure 
that  we  have  wrongfully  helped  to  erect. 

Such  attitude  of  plaintiffs  does  not  commend  them  to  the 
court;  and  if  the  scope  of  this  case  is  limited  to  the  granting 
of  relief  to  the  plaintiffs,  they  must  go  out  of  court,  and  must 
be  left  to  bear  the  ills  which  their  own  wrongs  have  helped  to 
bring  upon  them. 


NISI  PRIUS  REPORTS— NEW  SERIES.  87 

1908.]  Kealey  et  al  v.  Faulkner  et  al 

This  doctrine  is  established  in  the  46th  Ohio  State,  page  207, 
which  I  will  not  now  stop  to  read. 

But  it  is  claimed  that  inasmuch  as  this  action  is  not  to  enforce 
an  illegal  contract,  but  is  in  disaffirmance  of  an  executory  con- 
tract, the  court  should  entertain  the  action,  not  for  the  benefit  of 
the  plaintiffs,  but  in  the  interest  of  the  public. 

Anomalous  and  paradoxical  as  it  would  seem  to  be,  to  require 
actions  to  be  brought  in  the  name  of  the  real  party  in  interest, 
and  limited,  as  to  parties,  to  those  who  are  interested  in  the 
subject  of  the  controversy,  and  limiting  the  judgment  to  the 
parties  that  are  before  the  court — I  say  anomalous  and  paradoxi- 
cal as  it  would  seem,  to  impose  these  requirements,  and  then, 
finding  that  the  parties  to  the  action  are  not  entitled  to  relief, 
to  carry  on  the  action  in  the  interest  of  the  public,  I  think  it  is 
a  well-settled  principle  of  judicial  procedure,  and  of  equity  juris- 
prudence, that  this  may  be  done  in  proper  cases. 

I  read  an  extract  from  an  opinion  in  the  103d  U.  S.  Reports, 
at  pages  58  and  59 : 

"And  this  distinction  is  taken  in  the  books  that  where  the 
action  is  in  affirmance  of  an  illegal  contract,  the  object  of  which 
is  to  enforce  the  performance  of  an  engagement  prohibited  by 
law,  clearly  such  an  action  can  in  no  case  be  maintained,  but 
where  the  action  proceeds  in  disaffirmance  of  such  a  contract, 
and  instead  of  endeavoring  to  enforce  it,  presumes  it  to  be  void 
and  seeks  to  prevent  the  defendant  from  retaining  the  benefit 
which  he  derived  from  an  unlawful  act,  then  it  is  consonant  to 
the  spirit  and  policy  of  the  law  that  the  plaintiff  should  recover. ' ' 

And  there  is  a  case  in  Missouri  where  a  member  of  an  associa- 
tion of  musicians  sought  his  restoration  to  membership.  He  was 
asking  that  an  unlawful  organization  be  recognized  to  the  extent 
of  restoring  him  to  membership.  And  the  court  finding  that  the 
organisation  was  unlawful,  did  not  help  him  to  membership  in 
the  unlawful  organization  in  order  that  he  might  help  carry  on 
its  unlawfulness. 

Pomeroy  says:     (Code,  Section  941): 

"To  the  foregoing  rules  there  is  an  important  limitation. 
Even  where  the  contract  and  parties  are  in  pari  delicto,  the  courts 


68  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  [Vol.  VII,  N.  S. 

may  interfere  from  methods  of  public  policy.  Whenever  public 
policy  ia  considered  as  advanced  by  allowing  either  party  to  sue 
for  relief  against  the  transaction,  then  relief  is  given  to  him. 
In  pursuance  of  this  principle,  and  in  compliance  with  the  de- 
mand of  a  high  public  policy,  equity  may  aid  a  party  equally 
guilty  with  his  opponent,  not  only  by  cancelling  and  ordering 
the  surrender  of  an  executory  agreement,  but  even  by  setting 
aside  an  executed  contract,  conveyance,  or  transfer,  and  decree- 
ing the  recovery  back  of  money  paid  or  property  delivered  in 
performance  of  the  agreement.  The  cases  in  which  this  limita- 
tion may  apply,  and  the  affirmative  relief  may  thus  be  granted 
and  include  the  class  of  contracts  which  are  intrinsically  con- 
trary to  public  policy- — contracts  in  which  the  illegality  itself 
consists  in  their  opposition  to  public  policy,  and  in  other  species 
of  illegal  contracts,  in  which,  from  their  particular  circum- 
stances, incidental  and  collateral  motives  of  public  policy  re- 
quire relief." 

I  have  a  number  of  citations  to  the  same  effect;  I  will  not  take 
time  to  read  them.  I  will  read  only  one  other.  I  read  from 
the  15th  Ohio  Decisions,  page  21 : 

"It  is  urged  for  the  defendant,  however,  that  conceding  the 
illegality  of  the  resolutions  of  the  defendant,  the  plaintiff  can  not 
complain  of  them  for  the  reason  that  he  assisted  in  the  pas- 
sage of  same,  and  in  inflicting  the  penalties  thereby  provided 
upon  other  members;  that  he  is  in  pari  delicto  with  the  de- 
fendant ;  and  he  does  not  therefore  come  into  a  court  of  equity 
with  clean  hands,  and  therefore  can  have  no  relief. 

"The  principle  is  often  broadly  stated  that  when  parties 
enter  into  an  illegal  agreement  .the  courts  regard  them  as  in 
pari  delicto  and  consequently  leave  them  where  they  find  them, 
affording  no  relief  to-either  of  them  in  law  or  equity.  But  this 
statement  is  too  broad  as  it  is  subject  to  a  number  of  exceptions, 
one  of  which  is  that  where  a  contract  prohibited  by  law  is  not 
malum  in  se  but  malum  prohibitum,  and  has  not  been  fully 
executed,  either  party  may  rescind  the  contract  and  have  relief 
against  it  both  in  law  and  equity.  The  principle  upon  which 
the  exception  is  made  is  that  public  policy  is  best  subserved  by 
granting  a  locus  penitentiae  to  a  party,  and  by  permitting  him 
to  disaffirm  the  contract  prevent  the  execution  of  it." 

I  think  the  case  made  in  this  petition  comes  within  that  doc- 
trine.    It  stands  as  an  exception  to  the  general  rule  that  parties 


NISI  PRIUS  REPORTS— NEW  SERIES.  69 

190  JU  Kealey  et  al  v.  Faulkner  et  al. 

in  pan  delicto  can  not  have  relief  in  a  court  of  justice.  This 
contract  is  still  executory;  the  whole  thing  is  in  fieri — the 
wrongs  that  may  be  committed  against  public  policy  are  still  to 
be  committed;  it  is  to  be  perpetuated;  it  is  executory.  And 
this  action  is  not  based  upon  any  right  of  these  plaintiffs  as 
members  of  this  association,  it  is  not  to  perpetuate  or  to  recog- 
nize or  enforce  this  contract  between  the  members  of  a  society; 
it  is  in  disaffirmance  of  a  contract.  It  is  to  accomplish  its  de- 
struction and  thereby  relieve  the  public,  as  well  as  these  plaint- 
iffs, from  the  consequences  of  a  continuation  of  this  society  and 
the  perpetuation  of  the  wrongs  against  the  public  that  its  pro- 
visions would  work. 

While  these  plaintiffs  can  not  have  relief  in  favor  of  their 
individual  rights,  I  think  that  the  court  may,  in  a  case  of  this 
kind,  and  in  this  case,  grant  that  relief  because  thereby  the 
public  good  may  be  promoted.  I  think  it  is  an  organization 
of  such  scope,  such  character,  that  the  court  when  it  gets  juris- 
diction of  the  organization  and  its  membership,  should  in  the 
interest  of  the  public,  entertain  the  action  and  grant  such  re- 
lief as  will  promote  the  public  good — protect  the  public,  even 
though  it  results  in  giving  .to  these  plaintiffs  relief  that  as 
plaintiffs  they  are  not  entitled  to. 

Now,  just  what  relief  may  be  given  under  this  petition — what 
relief  ought  to  be  given,  what  decree,  or  judgment,  ought  to  be 
rendered  in  the  case  I  do  not  think  I  am  called  upon,  in  the  con- 
sideration of  this  demurrer,  to  determine.  The  court  that  tries 
the  case  will  have  that  question,  if  the  action  is  entertained, 
and  I  leave  that  question  for  the  court  when  the  case  is  tried,  if 
it  shall  be  tried. 

For  these  reasons  the  demurrer,  in  both  branches,  is  over- 
ruled. 


This  cause  now  coming  on  for  trial  {January  24,  1908).  the 
plaintiffs  move  for  judgment  on  the  petition.  As  the  case  now 
stands,  the  petition  stands  without  answer.  There  is  no  defense 
here,  but  perhaps  there  should  be  formal  proof  as  to  the  material 


70  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al  [Vol.  VII,  N.  8. 

averments  of  the  petition.  There  are  two  questions  presented: 
First,  what  shall  be  the  decree,  ao  far  as  its  effect  upon  the 
society  is  concerned ;  and  second,  what  shall  be  its  effect,  if  any, 
upon  the  fund  in  the  treasury  of  this  society. 

It  is  claimed  on  behalf  of  the  defendants  that  all  that  the 
court  is  interested  in,  and  all  that  the  court  is  authorized  to  do, 
looking  now  to  the  public  interest,  may  .be  accomplished  by 
eliminating  the  illegal  features  of  this  contractual  relation,  by 
injunction,  and  leaving  the  society  intact. 

At  the  former  hearing,  certain  provisions  of  the  by-laws  were 
pointed  out  as  illegal,  and  as  giving  character  to  the  whole  con- 
tractual relation — not  all  that  were  held  to  be  illegal  or  found 
to  be  illegal  were  adverted  to  at  that  time,  and  need  not  be  now. 
Of  course,  there  are  provisions  in  the  articles  of  amalgamation, 
and  there  are  provisions  in  the  by-laws,  that  are  entirely  legal. 
It  is  suggested  that  if  these  provisions  be  left  standing,  and  only 
the  noxious  provisions  be  eliminated  by  enjoining  the  society 
from  operating  under  them,  or  any  of  them,  that  will  accom- 
plish all  that  is<  now  sought  to  be  accomplished  by  a  decree. 

I  do  not  think  this  can  be  done,  and  for  several  reasons  I 
think  it  would  be  in  effect  the  making  by  the  court  of  a  new  con- 
tract for  the  members  of  this  organization.  A  contract  expur- 
gated in  that  way  would  not  be  the  contract  that  they  entered 
into.  There  would  then  stand  only  a  fragmentary  part  of  the 
contract  that  was  agreed  to.  It  would  lack  the  consent  of  the 
members,  which  is  an  indispensable  prerequisite  to  a  contract. 
No  member  of  this  organization  has  consented  to  enter  into  the 
contractual  relations  that  would  then  exist;  they  could  not  be 
bound  by  it  as  their  contract.  The  only  jural  relations  these 
members  have,  is  a  contractual  relation,  arising  from  the  terms 
and  conditions  contained  in  the'  documents  to  which  they  nave 
consented.  I  think  it  would  destroy  the  contract,  and  what 
would  remain,  as  I  have  said,  would  lack  the  indispensable  con- 
tractual element  of  consent  of  the  parties.  The  court  is  never 
authorized  to  make  a  contract;  the  court  may  enforce  a  legal 
contract;  the  court  may  undo  an  illegal  contract;  and  that  is 
as  far  as  it  can  go.  • .    .      .  -  i 


NISI  PRIUS  REPORTS— NEW  SERIES.  71 

1908-1  Kealey  et  al  v,  Faulkner  et  al. 

Another  objection  .to  such  form  of  decree  would  be,  that 
there  is  no  legal  and  valid  part  of  this  contract.  The  contract 
was  entered  into  as  an  entirety.  All  the  documents,  resolu- 
tions, etc.,  adopted  and  agreed  to,  enter  into  it  and  form  the 
contract;  on  all  of  them  rests  the  contractual  relation  among 
the  members  of  this  association.  The  illegal  features,  the  il- 
legal provisions  in  this  entire  contract  are  so  numerous,  and  they 
bo  permeate  the  whole  contract  that  the  entire  contract  is 
vitiated.  It  can  not  be  said  that  some  of  these  things  make  a 
valid  contract.  There  never  has  been,  and  there  is  not  now,  any 
legal  contract  or  part  of  a  contract  existing.  There  is  no  legal 
contractual  relation  here  to  be  left  undisturbed.  There  was  no 
legal  contract  in  the  beginning;  ergo,  there  was  no  contract  in 
the  beginning,  and  there  is  therefore  no  contract  to  leave  in 
force.  If  any  material  part  of  this  contract  should  be  elimi- 
nated by  injunction,  then  there  is  nothing  left  to  which  the 
members  have  consented;  there  is  nothing  left  that  ever  had  in 
law  any  validity.  You  can  not  inspire  this  contract  with  valid- 
ity by  eliminating  some  parte  of  it.  If  such  disposition  of  the 
case  could  be  made,  if  I  believed  it  could  be  made,  I  would  be 
glad  to  leave  such  portions  of  the  contract  as  are  not  vulnerable, 
stand,  and  leave  the  organization  intact,  resting  upon  such  parts 
of  an  attempted  contract.  I  can  see  no  ground  upon  which 
that  can  be  done  legally.  It  is  not  the  illegal  features  of  the 
contract  that  the  law  condemns,  it  condemns  the  contract  rela- 
tion, because  of  its  illegal  features.  As  I  said,  these  illegal 
features  permeate  the  whole  contract,  and  give  to  it  its  illegal 
character. 

It  is  suggested  {and  I  am  reminded  that  on  a  former  occasion 
I  said)  that  labor  organizations  are  to  be  fostered.  I  believe 
that  not  only  are  labor  organizations  legal,  but  I  think  it  has 
come  to  be  the  policy  of  the  law,  and  of  the  courts  in  the  admin- 
istration of  the  law,  to  foster  and  to  promote  labor  organiza- 
tions. I  think  they  are  indispensable.  I  think  when  they  are 
legal  they  are  promotive  of  public  good.  They  are  not  only  a 
benefit  to  the  membership  of  the  organization,  but  in  taking  the 
broad  view  of  the  matter,  I  think  they  are  really  promotive  of 


72  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  [Vol.  VII,  N.  8. 

the  public  welfare.  I  believe  that  H  is  the  tendency  of  the  law, 
and  the  tendency  of  its  administration,  to  promote  and  foster 
such  organizations.  Bat  a  labor  organization  is  promotive  of 
the  public  welfare,  and  is  to  be  protected  and  maintained  in  the 
administration  of  the  law,  only  when  it  is  a  legal  organization. 
If  in  its  purpose  and  its  methods  It  contravenes  public  policy, 
then  of  course  it  ought  not  to  be  promoted. 

I  think  that  the  view  that  has  been  suggested  can  not  be 
operative  in  this  case,  where  it  is  found  that  the  organization  it- 
self, in  its  fundamental  oontr actual  basis,  is  against  public 
policy.  And  any  decree  that  may  be  made  in  this  case  must 
not  be  mistaken  as  a  decree  aimed  at  labor  organizations;  it 
can  be  aimed  only  at  this  organization,  and  because  of  the 
illegality  that  enters  into  its  contractual  basis. 

So  I  do  not  see  how  I  can  do  otherwise  than  to  dissolve  this 
organization.  ,1  would  not  make  such'decree  if  I  did  not  feel 
compelled  to  do  it.  Taking  the  view  of  this  case  that  I  have 
taken — and  I  have  arrived  at  it  after  full  argument  and  careful 
consideration — 1,  .think  it  is  the  only  decree  that  can  be  made. 
Nothing  short  of  this  will  maintain  the  law;  nothing  short  of 
this  will  promote  public  policy  in  this  instance. 

Then,  subject  to  the  hearing  of  proof,  and  if  the  proof  shall 
support  the  material  allegations  of  the  petition,  the  decree  will 
be  that  this  organization  is  dissolved. 

There  remains  the  disposition  of  the  funds  found  within  this 
organization,  if  they  are  to  be  dealt  with.  This  is  a  matter  to 
which  I  have  given  much  less  consideration  than  to  the  other 
questions. 

One  of  two  courses  must  be  taken.  Either  the  court  must 
take  possession  of  this  fund  and  dispose  of  it,  or  it  must  be  left 
in  the  hands  of  whomsoever  may  now  have  the  possession  of  it. 

Is  the  public  interested  in  the  fate  of  this  fundf  Not  di- 
rectly— no  part  of  it  can  go  for  any  public  purpose.  It  is  a 
fund  that  has  been  contributed,  I  take  it,  by  all  the  membership. 
Now,  the  court  dissolves  this  organization.  It  has  a  treasurer; 
it  has  a  fund.  It  will  no  longer  have  a  treasurer ;  in  fact,  there 
is  no  longer  to  be  any  organization.     Ilere  is  a  fund  that  is  left 


NISI  PRIUS  REPORTS— NEW  SERIES.  78 

1908.)  Kealey  et  al  v.  Faulkner  et  al. 

without  any  legal  existence;  and  k  is  left  so  as  the  result  of 
the  deeree  of  the  court.  This  fund  is  no  longer  needed  for  the 
purposes  for  which  it  was  contributed.  It  can  no  longer  be  used 
for  the  purposes  for  which  it  was  contributed,  because  these 
purposes  are  found  to  be  illegal,  and  the  use  of  the  fund  for  such 
purposes  is  at  an  end.  There  is  no  longer  any  society  to  control 
it;  there  are  no  longer  members  of  the  society  to  be  benefitted 
by  it;  the  fund  is  aimless;  it  is  without  an  owner  and  without 
a  legal  custodian.  The  decree  of  the  court  brought  about  this 
situation.  Now,  is  the  court  to  leave  this  money  in  the  hands 
of  those  who  happen  to  have  itt  Suppose  it  does!  Some  of 
this  fund,  possibly  all  of  it,  is  in  some  bank  or  banks ;  to  whom 
are  they  to  pay  it  I  How  can  they  be  compelled  to  pay  it  I  Who 
has  any  authority  to  receive  it  from  the  banks! 

It  is  stated,  and  stated  in  response  to  an  inquiry  from  the 
court,  that  the  fund  is  deposited  in  the  name  of  the  society. 
Now,  the  society  is  dissolved.  How  is  anybody  to  collect  this 
fund  from  the  banks?  And  what  for?  Why  should  anybody 
collect  itt  Why  shouldn't  the  banks  be  just  as  much  entitled 
to  hold  it  as  anybody  else  would  be  entitled  to  demand  and  re- 
ceive itt 

As  I  said  before,  this  is  the  situation  now  of  the  fund,  brought 
•  about  by  the  decree  of  the  court  dissolving  the  association. 
Now,,  isn't  it  an  incident  and  a  part  of  the  dissolution  of  the 
society  to  make  some  disposition  of  this  fund!  Does  not  that 
belong  to  the  dissolution  T  Is  the  court  going  to  destroy  the 
society  and  set  this  fund  adrift  1  It  seems  to  me  that  would  be 
outrageous;  that  would  be  a  wrong  to  somebody,  and  to  whom? 
To  nobody  in  the  world  except  the  men  who  paid  in  this  fund. 
Nobody  has  any  shadow  of  claim  to  it  now  except  the  men  who 
contributed  it.  The  officers  of  the  society  have  no  right  to  it, 
because,  they  are  no  longer  officers.  The  society  would  not 
longer  have  any  right  to  it — there  is  no  society. 

In  the  last  analysis,  what  in  fairness  and  reason,  ought  to  be 
done  with  this  money!  The  banks  have  no  right  to  keep  it; 
the  officers  have  no  right  to  keep  it.  The  only  persons  who  can 
have  any  right  to  it  are  the  persons  who  paid  it  in.     And  such 


74  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Kealey  et  al  v.  Faulkner  et  al.  {Vol.  VII,  N.  8. 

right  does  not  arise  by  virtue  of  any  legal  effect  that  the  organ- 
ization ever  had;  it  is  outside  of  that.  They  are  not  entitled 
to  it  because  they  are  members  or  were  members  of  the  society 
when  it  was  dissolved ;  that  is  not  the  basis  of  their  right.  The 
basis  of  their  right  is,  that  they  have  contributed  it.  It  was 
their  money.  It  was  -paid  over  in  good  faith,  but  for  a  purpose 
that  is  found  now  to  be  unlawful.  Perhaps  they  could  not  re- 
cover it — I  am  not  sure  about  that.  It  was  suggested  in  argu- 
ment, that  without  our  statute  authorizing  the  recovery  of  money 
lost  at  gaming,  such  money  could  not  be  recovered.  I  think 
that  is  the  law.  And  why?  Not  because  the  man  who  won  it 
at  gaming  acquired  any  right  to  it,  but  it  is  because  the  gaming 
transaction  has  been  ended;  the  illegal  contract  has  been  exe- 
cuted; and  is  no  longer  executory. 

Suppose  I  am  the  loser  in  a  game  of  chance,  and  instead  of 
paying  over  the  money  I  give  my  note  for  it,  the  contract  is  not 
executed  yet;  I  haven't  paid  the  money  that  was  lost  and  won. 
Such  note  could  not  be  collected ;  it  was  for  an  illegal  considera- 
tion ;  that  part  of  the  gaming  contract  is  executory,  and  it  could 
not  be  enforced.  But  this  money  does  not  have  the  relation  that 
money  lost  and  paid  in  gaming  would  have,  without  our  statute. 
In  the  one  case  there  is  an  executed' illegal  contract,  and  there 
is  a  custodian  of  the  money ;  he  owns  it.  The  court  will  not  ■ 
interfere  with  it,  the  illegal  contract  having  been  executed.  .Here 
is  money  contributed' and  retained  in  custody  for  certain  pur- 
poses; it  has  never  been  applied  to  those  purposes;  it  is  still  on 
hand.  It  has  simply  been  contributed  for  a  purpose  for  which 
it  has  not  yet  been  used.  The  purpose  now  vanishes,  it  never 
can  be  accomplished,  or  carried  out.  The  custodian  of  the 
money  is  no  longer  the  legal  custodian  of  it  for  the  purposes 
for  which  it  was  contributed.  And  I  think  it  is  in  the  hands  of 
the  court  to  be  dealt  with  as  a  part,  and  an  inseparable  part,  of 
the  decree  of  dissolution. 

I  have  no  doubt  there  may  be  obligations  in  favor  of  persons 
who  have  a  legal  right  to  payment  out  of  this  fund.  What  the 
character  of  such  obligations  may  be,  I  do  not  know.  But  there 
may  be  obligations  that  have  a  right  to  payment  out  of  this  fund. 


NISI  PRIUS  REPORTS— NEW  SERIES.  76 

1908.  ]  Kealey  et  al  v.  Faulkner  et  al. 

Then,  whatever  is  left  ought  to  be  distributed  to  the  people  who 
produced  it,  in  some  equitable  proportion ;  probably  in  the  ratio 
in  which  they  contributed  to  it. 

Whether  this  is  a  proper  case  for  the  allowance  of  attorney's 
fees  out  of  this  fund,  I  do  not  decide ;  it  is  not  necessary  now 
to  decide  that. 

Whether  the  custodian  to  take  charge  of  this  fund  would.be 
technically  a  receiver,  whether  this  appointment  would  come 
within  the  statute  with  regard  to  receivers,  I  do  not  know ;  but 
certain  it  is  that  it  is  within  the  power  of  the  court  to  appoint  a 
custodian  of  the  fund — call  him  receiver  or  trustee,  or  whatever 
you  may.  When  the  court  comes  into  control  of  a  fund  that 
must  be  administered  and  distributed,  it  certainly  is  within  the 
power  of  the  court  to  appoint  a  custodian  of  the  fund,  to  receive 
it,  and  hold  it,  and  disburse  it,  under  the  order  of  the  court — 
call  such  person  what  you  may. 

If  the  proof  to  be  offered  shall  sustain  the  material  averments 
of  the  petition,  there  will  be  a  decree  dissolving  this  organiza- 
tion, for  reasons  that  ought  to  be  stated,  of  course,  in  the  decree, 
and  appointing  some  person  to  take  charge  of  the  fund  in  the 
hands  of  the  society,  and  to  make  disbursements  therefrom  and 
distribution  thereof  under  order  of  the  court. 

Upon  the  hearing  of  evidence,  the  organization  was  dissolved, 
and  a  receiver  appointed. 


MONTGOMERY  COUNTY  COMMON  PLEAS. 

Boea  v.  County  Commissioners.  [Vol.  V 


INCIDENTAL  EXPENSES  OP  SHERIFF  AND  DEPUTIES. 

Common  Pleas  Court  of  Montgomery  County. 

John  P.  Bobs,  Sheriff,  v.  Commissioners  of  Montgomery 
County  bt  al. 

Decided,  February  22,  1908. 

Salary  Law — Construction  of  Section  Relating  to  Sheriff*  Additional 
Compensation — Allowances  by  County  Commissioner!  may  Property 
Include  Car  Fare  and  Telephone  Tolls,  When — Expenditures  which 
are  Necessary  to  a  Proper  Administration  of  the  Offloe — Section 
1296-29. 

County  coram  issi  oner  a  In  making  allowances,  to  the  sheriff  may  prop- 
erly Include  Items  of  car  fare  In  the  service  and  return  of  sum- 
mons and  In  serving  warrants  of  arrest  on  persons  charged  with 
lunacy,  and  telephone  tolls  where  expended  In  matters  pertain- 
ing to  the  duties  of  the  office,  where  by  using  the  care  and  tele- 
phone the  business  of  the  office  may  be  expedited  and  a  saving 
effected  to  the  county  over  other  methods  of  performing  the  same 
service. 

B.  R.  Nevin,  H.  N.  Routzohn  and  E.  C.  Denlinger,  for  de- 
fendants. 

Brown,  J. 

This  matter  comes  before  the  court  upon  the  petition,  the  an- 
swer and  the  evidence. 

It  appears  from  the  evidence  that  the  sheriff  presented  his 
bill  as  of  his  quarterly  report,  for  the  purposes  of  this  case,  for 
the  sum  of  #1.30  expended  by  him,  as  stated  in  the  account, 
to- wit : 

Montgomery  County, 

1907.  To  John  F.  Boes,  Sheriff,  Dr. 

Dee.  20.     To  car  fare.  Dayton  to  Miamisburg  and  return, 

serving  summons  in  No.  28717,  Miami  Motor  Car  Co.  v. 

H.  G.  Catrow   $  .30 


NISI  PRIUS  REPORTS— NEW  SERIES.  77 

1908.]  Boes  t.  County  Commissioners. 

Dec.  21.  To  expense  on  warrant  to  arrest  P.  Cleneey  on 
lunacy  charge,  2  fares,  sheriff  and  assistant,  Dayton 
to  New  Lebanon  and  return,  70c ;  fare  of  patient,  New 
Lebanon  to  Dayton,  20c 90 

Dec.  22.    To  telephone  toll  to  Isaac  Waymire,  Englewood, 

in  matter  of  lunacy  of  Anna  Good 10 

Total   $1.30 

This  account  was  rejected  by  the  commissioners  and  an  appeal 
was  taken  under  Section  896,  Revised  Statutes,  the  commissioners 
having  waived  the  service  of  summons  and  entered  their  appear- 
ance. 

The  testimony  shows  the  following  undisputed  facts  that  the 
sheriff  by  expending  the  sum  of  thirty  cents  on  December  20 
for  traction  car  fare  to  Miamisburg  and  return,  and  serving 
a  summons,  saved  the  county — not  counting  the  time  saved  for 
the  deputy — at  least  $4.70.  In  the  second  item  the  sheriff 
saved  to  the  county,  by  the  expenditure  of  ninety  cents,  at  least 
$4.10. 

In  this  case,  a  few  weeks  before  the  date  named,  an  order  was 
issued  by  the  probate  judge  to  the  sheriff  to  arrest  an  insane 
person  in  New  Lebanon,  about  eleven  miles  west  of  Dayton  on 
the  Dayton  &  Eaton  Traction  Company's  line,  and  that  in  pur- 
suance of  said  order  the  sheriff  was  compelled  to  hire  at  that 
time  a  carriage,  which  cost  the  county  five  dollars  in  order  to 
execute  the  warrant.  The  insane  person,  upon  application  of 
relatives,  was  permitted  to  return  home  before  being  committed 
to  the  asylum,  he  having  slightly  recovered,  and  this  warrant 
mentioned  in  the  second  item  of  the  bill  was  under  exactly  simi- 
lar circumstances  for  the  arrest  of  the  same  person,  and  the 
sheriff's  expenses  therein,  as  shown  by  the  bill,  amounted  to  only 
ninety  cents,  whereas  in  the  previous  arrest  the  expenses  was 
five  dollars;  that  in  the  expenditure  of  ten  cents  for  telephone 
in  the  -third  item,  he  saved  the  county  at  least  $4.90  and  a 
twenty  mile  drive. 


78    MONTGOMERY  COUNTY  COMMON  PLEAS. 

Boes  v.  County  Commissioners.  [Vol.  Til,  N.  S. 

The  testimony  further  shows  that  the  county  owns  and  main- 
tains four  horses  and  the  necessary  vehicles,  and  that  by  reason 
of  the  expenditures  mentioned  in  the  itemized  account,  these 
horses  and  vehicles  were  saved  these  trips  during  the  period 
when  they  were  in  great  demand  by  other  deputies  for  other 
duties  of  the  sheriff,  required  by  law. 

The  question  of  the  allowance  of  this  bill  is  raised  under  98 
0.  L.,  96,  Section  19  (Revised  Statutes,  Section  1296-29),  which 
provides  that — 

"The  county  commissioners  shall,  in  addition  to  the  compen- 
sation and  salary  herein  provided,  make  allowance  quarterly  to 
every  sheriff  for  •  *  *  all  expenses  of  maintaining  horses 
and  vehicles  necessary  to  the  proper  administration  of  the  duties 
of  his  office.  Every  sheriff  shall  file  under  oath  with  the  quar- 
terly report  herein  provided  for,  a  full,  accurate  and  itemized 
account  of  all  his  actual  and  necessary  expenses,  mentioned  in 
this  section  before  the  same  shall  be  allowed  by  the  county  com- 


We  understand  that  the  rule  of  law  is  that  the  court  shall 
strictly  construe  the  statutes  authorizing  fees  and  allowances  to 
county  officers.  But  this  case  is  for  the  repayment  only  of  actual 
economical  expenses  by  the  sheriff  to  save  money  to  the  county, 
and  properly  aid  in  the  efficient  administration  of  justice. 

"It  is  the  legal  duty  of  the  county  commissioners  to  furnish 
all  things,  coupled  with  the  administration  of  justice  within  the 
limits  of  their  own  county."  Commissioners  of  Trumbull  Co. 
v.  Hutckins,  11  Ohio,  368,  371,  decided  by  our  Supreme  Court 
in  1842,  has  since  been  the  law. 

This  case  is  cited,  approved  and  followed  in  an  exhaustive 
opinion  by  Judge  Spencer,  in  the  case  of  Mayhew  v.  Commis- 
sioners of  Hamilton  County,  1  Disn.,  186. 

This  rule  will  apply  in  this  case,  and  the  evidence  clearly 
shows  that  the  items  are  not  allowances  to  the  sheriff  and  no 
benefit  accrues  to  him.  The  sole  benefit  and  saving  has  been 
to  the  county.     The  sheriff  is  now  a  salaried  officer  and  the  old 


NISI  PRIUS  REPORTS— NEW  SERIES.  TO 

1908.  J  Boss  v.  County  Commissioners. 

rule  of  law  as  to  fees  and  allowances  prohibiting  such  where  the 
statutes  do  not  plainly  authorize  it,  does  not  apply  now. 

This  section  of  the  statute  clearly  authorizes  the  commission- 
ers in  "maintaining  horses  and  vehicles  necessary  to  the  proper 
administration  of  the  duties  of  the  sheriff's  office." 

"Maintain,"  as  defined  by  Webster,  is  to  "support,  sustain, 
not  to  suffer  to  fall  or  decline." 

A  "vehicle"  is  defined  in  the  Century  dictionary  to  be  "any 
carriage  moving  on  land,  either  on  wheels  or  on  runners;  a  con- 
veyance which  is  used  as  an  instrument  of  conveyance,  trans- 
mission or  communication." 

In  the  last  of  these  items  the  sheriff  expended- ten  cents  for 
a  telephone,  which  the  undisputed  testimony  shows  saved  the 
county  at  least  $4.90.  He  used  as  a  vehicle  for  that  purpose 
the  telephone  as  an  instrument  of  communication  to  a  man  at 
Harrisburg  from  whom  he  obtained  information,  which  saved 
a  trip  there,  and  this  saved  the  county  $4.90. 

In  each  of  the  other  items  he  used  the  traction  cars  as  a  means 
of  conveyance,  and  in  the  first  item  saved  the  county  $4.70,  and 
in  the  second  item  $4.10. 

We  think  that  the  common  sense  construction  of  this  portion 
of  the  statute  would  authorize  such  expenditures,  where  after 
proper  investigation  by  the  commissioners  they  find  that  each 
item  was  actually  paid  by  the  sheriff  in  the  administration  of 
justice  and  was  a  saving  to  the  county.  These  items  were  cer- 
tainly expenses  for  the  maintaining  of  vehicles  necessary  to  the 
proper  administration  of  the  duties  of  the  sheriff's  office.  It 
would  not  be  consistent  with  the  law  or  eommon  sense  to  require 
the  sheriff  in  each  case  to  obtain  authority  from  the  commission- 
ers, but  it  should  be  understood  by  both  the  sheriff  and  the  com- 
missioners that  the  items  of  expenditure  of  this  nature  are  legal 
and  should  be  allowed  by  the  commissioners,  because  not  only 
does  the  law  and  statutes  authorize  such  expenditures,  but  by 
means  of  such  expenditures  on  the  part  of  the  sheriff  for  the 
county  the  county  is  saved  hundreds  and  thousands  of  dollars  in 
a  year.  Under  the  facts  such  expenditures  are  necessary  for  the 
prompt  and  proper  administration  of  justice. 


80    MONTGOMERY  COUNTY  COMMON  PLEAS. 

Bow  V.  County  Commission  era.  [Tol.  VII,  N.  S. 

The  testimony  shows  that  the  horses  have  been  driven  from 
thirty  to  fifty  miles  a  day,  and  that  by  the  expenditure  of  twenty- 
five  cents  on  any  one  of  the  traction  lines  leading  from  the  city 
of  Dayton,  a  drive  of  twenty  miles  by  a  deputy  sheriff  could  be 
saved,  and  that  if  a  horse  had  been  hired  at  a  livery  stable,  as 
must  be  done  when  the  horses  are  in  bad  condition,  there  would 
be  a  saving  in  actual  cash  of  from  three  to  five  dollars  to  the 
county,  and  thereby  there  certainly  results  a  maintaining  or 
supporting  of  the  county  stable  required  by  law. 

After  careful  'consideration  of  the  facts  and  the  law  in  this 
case,  I  am  of  the  opinion  that  this  bill  should  be  allowed,  and 
decree  accordingly. 


NISI  PBIUS  REPORTS— NEW  SERIES. 
Cincinnati  v.  Railway. 


CONSTRUCTION  OF  THE  ACT  TO  OBVIATE  GRADE 
CROSSINGS. 

Superior  Court  or  Cincinnati,  Special  Term. 

The  City. op  Cincinnati  v.  The  Pittsburgh,  Cincinnati, 

Chicago  &  St.  Louis  Railway  Company. 

Decided,   April   25,   190S. 

Crossings — Act  to  Obviate  at  Grade — Remedial  in  Its  Nature — Hot  iw 
Port  Materia  icitfc  Other  Statutes  on  Similar  Subjects — Must  be 
Construed  to  Carry  out  the  Purposes  of  Its  Enactment — Circuit 
Court  Without  Jurt*n"iction— Rs-to cotton  of  Streets — Authority  to 
Place  Piers  in  Streets— Constitutional  Late — Public  Policy— Im- 
plied Powers — Municipal   Corporations — Section  3331-na. 

1.  That  part  of  Section  2  of  the  act  of  April  2,  1906  (Revised  Statutes, 

3337-1 7a),  providing  that  if  a  municipality  and  railway  company 
are  unable  to  agree  ae  to  the  plans  and  specifications  for  avoiding 
a  grade  crossing  of  a  street  and  the  railway,  the  matter  shall  be 
submitted  to  the  circuit  court  for  determination  whether  the  pub- 
lic safety  requires  an  abolition  of  the  grade  crossing  and  whether 
the  plans  proposed  are  reasonable  and  practicable,  la  void  for  the 
reason  that  It  exceeds  the  jurisdiction  of  the  circuit  court  as  pro- 
vided by  the  Constitution;  but  this  provision  may  be  eliminated 
without  affecting  the  efficiency  and  purpose  of  the  act. 

2.  Authority  is  conferred  in  this  act  for  the  alteration  and  re-location 

of  streets;  the  method  of  so  doing  Is  a  matter  of  detail,  dependent 
on  topography  and  situation,  and  when  exercised  reasonably  is  not 
open  to  review  by  the  courts;  and  the  diversion  of  ground  from  use 
for  street  purposes  is  not  beyond  the  power  of  the  board  of  legfs- 

3.  The  clear  policy  of  the  state  to  avoid  placing  permanent  obstruc- 

tions in  the  street  Is  not  infringed  In  obviating  a  grade  crossing 
by  placing  piers  in  the  street,  where  they  are  so  situated  as  not  to 
Interfere  with  travel  and  any  other  plan  of  construction  would  be 
so  much  more  expensive  as  to  be  prohibitive. 

Oeoffrey  Goldsmith,  Assistant  City  Solicitor,  for  plaintiff. 
William  W.  Ramsey,  contra. 
Spieqei.,  J. 

On  May  2,  1902,  in  answer  to  a  general  demand  from  the 
cities  and  towns  of  the  state,  the  seventy-fifth  General  Assembly 


82  SUPERIOR  COURT  OF  CINCINNATI. 

Cincinnati  v.  Railway.  [Vol.  VII,  N.  8. 

passed  an  act  to  abolish  grade  crossings  in  municipal  corpora- 
tions. It  is  a  statute  separate  and  apart  from,  and  not  in  pari 
materia  with,  other  acts  on  kindred  subjects,  and  must,  there- 
fore, be  construed  in  its  own  light.  Thousands  of  human  beings 
were  annually  either  maimed  or  killed  at  these  crossings,  and 
the  act  was  passed  to  give  the  municipality  power  to  abolish 
this  terrific  evil.  The  statute,  with  certain  chauges  made  April 
2,  1906,  by  the  seventy-seventh  General  Assembly,  and  now  em- 
bodied in  Bates  Annotated  Ohio  Statutes  (Sections  3337-17a, 
Sections  1  to  9  inclusive)  provides  in  substance  (Section  1),  that 
any  municipal  corporation  may  raise  or  lower  the  grade  of  any 
street  above  or  below  any  railroad  track  therein  and  may  re- 
quire any  railroad  company  to  raise  or  lower  the  grade  of  its 
tracks  and  construct  ways  and  crossings  that  are  to  be  passed 
under  its  tracks  whenever  the  legislative  body  of  the  municipal- 
ity deems  it  necessary. 

It  may,  by  ordinance  (Section  2) ,  require  the  railroad  company 
in  co-operation  with  the  city  engineer  or  other  engineer  desig- 
nated by  the  board  of  legislation  to  prepare  and  submit  to  it 
within  six  months,  unless  longer  time  is  mutually  agreed  upon, 
plans  and  specifications  for  such  improvement,  specifying  the 
grades  to  be  established  for  the  streets  and  the  height,  character 
and  estimated  cost  of  any  viaduct  or  any  way  above  or  below 
any  railroad  tracks,  and  the  change  of  grade  required  to  be  made 
of  such  track,  including  side-tracks  and  switches.  If  the  rail- 
road company  refuses  to  co-operate  in  this  work,  then  the  engi- 
neer may  prepare  such  plans  and  specifications  satisfactory  to 
the  board  of  legislation  and  the  latter,  or,  in  case  of  disagree- 
ment between  the  board  and  the  railroad  company  as  to  the  plans 
an<I  specifications,  either  party  may  submit  the  question  to  the 
circuit  court  having  jurisdiction  in  the  county  wherein  said 
municipal  corporation  is  situated,  which  court  after  examination 
of  such  plans  and  specifications  and  after  hearing  the  evidence 
shall  make  a  finding  whether  the  public  safety  requires  such  an 
improvement  and  whether  such  plans  are  reasonable  and  prac- 
ticable. If  so,  the  city  may  proceed;  if  not,  the  improvement 
can  not  be  made  upon  such  plans.  This  section  further  pro- 
vides: 


NISI  PRIUS  REPORTS—NEW  SERIES.  88 

IMS.]  Cincinnati  v.  Railway. 

"But  in  change  of  grade  of  any  railroad,  no  grade  shall  be 
required  to  exceed  the  established  maximum  or  ruling  grade  gov- 
erning the  operation  by  engines  of  that  division  or  part  of  the 
railroad  on  which  the  improvement  is  to  be  made,  without  the 
consent  of  the  railroad  company,  nor  shall  the  railroad  company's 
tracks  be  required  to  be  placed  below  high  water  mark." 

Section  3  provides  that  the  coat  of  the  construction  of  the  im- 
provement authorized,  including  the  making  of  ways,  crossings 
or  viaducts  above  or  below  the  railroad  tracks,  and  also  including 
the  raising  or  lowering  of  the  grades  of  the  railroad  tracks  and 
side-tracks  for  such  distance  as  may  be  required  by  such  munici- 
pality and  made  necessary  by  such  improvement,  together  with 
the  cost  of  any  land  or  property  purchased  or  appropriated,  and 
damages  to  owners  of  abutting  property  or  other  property  shall 
be  borne  one-half  by  any  municipality  and  one-half  by  any 
such  railroad  company  or  companies.  This  section  further  pro- 
vides the  manner  of  judicial  inquiry  into  damages  and  the  mode 
and  time  «f  payment  of  the  railroad  company's  proportion  of 
coat. 

Section  4  fixes  the  height  of  viaducts. 

Section  5  I  shall  cite  in  full  because  it  becomes  very  important 
in  construing  the  scope  and  operation  of  the  statute. 

Section  5.  "The  land  or  property  required  to  make  any  altera- 
tions in  any  street  or  highway  necessitated  by  the  proposed  im- 
provement shall  be  purchased  or  appropriated  by  the  municipal- 
ity or  company  after  the  manner  provided  by  law  for  the  appro- 
priation of  private  property  for  public  use,  and  the  land  or  prop- 
erty required  to  make  any  alteration  in  the  railroad  or  railroads 
necessitated  by  the  proposed  improvement  shall  be  purchased 
or  appropriated  by  the  railroad  company  or  companies  after  the 
manner  provided  for  the  appropriation  of  private  property  by 
such  corporation;  but  the  municipality  shall  not  appropriate 
laud  held  or  owned  by  any  railroad  company  necessary  for  the 
use  of  such  railroad  company  in  maintaining  and  operating  its 
road. " 

The  other  sections  of  the  statute  provide  for  the  cost  of  main- 
tenance of  the  improvement,  its  apportionment  between  the  mu- 
nicipality and  the  railroad  company,  the  tax  levy,  the  proportion 
of  the  share  of  expenses  that  railways  shall  bear,  and  the  final 


84  SUPERIOR  COURT  OP  CINCINNATI. 

Cincinnati  v.  Railway.  [Vol.  VII,  N.  S. 

section  which  provides  that  "all  acts  and  parts  of  acts  in  con- 
flict or  inconsistent  with  this  act  are  hereby  repealed." 

In  accordance  with  the  statute  the  board  of  legislation  of  the 
city  of  Cincinnati  passed  the  necessary  ordinances  and  together 
with  the  defendant,  the  Pittsburgh,  Cincinnati,  Chicago  &  St. 
Louis  Railway  Company,  agreed  upon  plans  and  specifications 
necessary  to  obliterate  one  of  Cincinnati's  death  traps,  the  Rook- 
wood  grade  crossing  on  Eastern  avenue,  making  it  a  work  of 
magnitude  owing  to  the  topography  of  the  ground,  on  one  side 
the  Ohio  river  and  the  railroad  yards  with  its  numerous  tracks 
and  on  the  other  Cincinnati's  hills,  which  necessitated  in  the 
judgment  of  the  board  of  legislation  and  the  railroad  company 
the  abandonment  of  a  part  of  Eastern  avenue,  its  relocation  and 
the  building  of  a  large  viaduct  supported  by  eight  stone  piers  in 
the  middle  of  Eastern  avenue  thus  relocated. 

The  city  solicitor  of  Cincinnati,  in  pursuance  of  his  duty, 
before  the  incurring  of  any  expense  on  the  part  of  the  city,  in- 
stituted a  suit  iu  this  court  to  test  the  const itutioifality  of  the 
act,  and  the  case  was  tried  before  me  on  the  law  and  the  facts. 
The  objections  raised  by  the  city  solicitor  to  the  act  are  as  follows: 

1.  That  the  grade  abolition  statute,  the  only  source  of  power 
of  council  in  the  premises,  is  invalid — 

a.  Because  the  court-resort  provision  thereof  is  void,  as  con- 
trary to  Section  6  of  Article  IV  of  the  Constitution  of  Ohio. 

b.  Because  the  court-resort  provision  being  unconstitutional, 
the  entire  statute  must  fall,  it  being  inseverable. 

2.  That  Eastern  avenue,  between  Crane  and  Litherbury 
streets,  is  a  dedicated  street;  that  it  has  not  been  condemned, 
and  therefore  the  intended  diversion  of  the  street  from  street 
purposes  is  beyond  powers  of  council. 

3.  If  the  statute  is  not  invalid,  nevertheless  it  does  not  confer 
powers  claimed  in  the  premises  by  council,  which  has  only  those 
powers  expressly  given  or  necessarily  implied. 

a.  There  is  no  express  or  implied  power  to  erect  piers  or  abut- 
ments in  public  streets. 

b.  There  is  no  express  or  implied  power  permanently  or  ex- 
clusively to  occupy  a  street. 

c.  There  is  no  express  or  implied  power  to  obstruct  a  street, 


NISI  PRIUS  REPORTS— NEW  SERIES.  85 

1908.]  Cincinnati  v.  Railway. 

d.  There  is  no  express  or  implied' power  to  relocate  a  street. 

e.  There  is  no  express  or  implied  power  for  new  occupancy 
of  *streets. 

f.  There  is  no  express  or  implied  power  transversely  to  cross 
over  and  along  the  entire  length  of  a  street. 

Before  entering  upon  the  questions  raised  by  the  solicitor,  let 
us  examine  the  statute  as  it  stands.  I  have  already  stated  that 
the  act  is  not  in  pari  materia  with  other  statutes  incidentally  re- 
ferring to  the  same  subject,  because  its  scope  and  aim  are  distinct 
and  unconnected.  In  order  to  ascertain  its  aim  the  court  is  war- 
ranted in  availing  itself  of  all  legitimate  aids  to  ascertain  its 
true  intentions.  Among  such  are  extraneous  facts  of  which 
the  court  may  take  judicial  notice.  The  object  sought  to  be  ac- 
complished by  the  passage  of  the  statute  exercises  a  potent  in- 
fluence in  determining  the  meaning  of  not  only  the  principal  but 
also  of  the  minor  provisions  of  the  statute.  To  ascertain  it  fully, 
the  court  is  greatly  assisted  by  knowing,  and  it  is  permitted  to 
consider,  the  mischief  intended  to  be  removed  or  suppressed,  or 
the  necessity  of  any  kind  which  induced  its  enactment.  Now,  it 
is  a  notorious  fact,  of  which  the  court  takes  judicial  notice,  that 
railroad  grade  crossings  in  large  and  small  cities  have' demanded 
innumerable  human  sacrifices  until  the  evil  called  aloud  to  the 
Legislature  for  redress,  resulting  in  the  passage  of  the  act  under 
discussion.  It  is,  therefore,  a  statute  which  concerns  the  public 
good  or  the  general  welfare,  and  falls  by  virtue  thereof  under 
the  class  of  remedial  statutes,  and  the  rule  is  that,  in  construing 
a  remedial  statute  which  has  for  its  end  the  promotion  of  import- 
ant and  beneficial  public  objects,  a  large  construction  is  to  be 
given,  when  it  can  be  done  without  doing  actual  violence  to  its 
terms  in  order  to  suppress  the  mischief  and  advance  the  remedy. 
For  this  purpose,  it  is  a  settled  rule  to  extend  the  remedy  as  far 
as  the  words  will  admit,  that  everything  may  be  done  in  virtue  of 
the  statute  in  advancement  of  the  remedy  that  can  be  done  con- 
sistently with  any  construction. 

Keeping  this  in  view,  let  us  now  consider  the  objections  raised 
by  the  city  solicitor.  Taking  the  first,  it  is  his  claim  that  the 
statute  is  void  because  Section  2  of  the  act  provides  that  if  the 
municipality  and  the  railroad  are  unable  to  agree  on  the  plans 


86  SUPERIOR  COURT  OF  CINCINNATI. 

Cincinnati  v.  Railway.  [Vol.  VII,  N.  S. 

and  specifications,  the  matter  may  be  submitted  by  either  party  to 
the  circuit  court  for  a  determination  whether  public  safety  re- 
quires an  abolition  of  the  grade  crossing,  and  whether  the  plans 
are  reasonable  and  practicable.  Section  6  of  Article  IV  of  the 
Constitution  of  Ohio,  however,  provides  that  the  circuit  court 
shall  only  have  like  original  jurisdiction  with  the  Supreme  Court 
and  such  appellate  jurisdiction  as  may  be  provided  by  law.  And 
Section  2  of  Article  IV  of  the  Constitution  provides  that  the 
Supreme  Court  shall  have  original  jurisdiction  in  quo  warranto, 
mandamus,  habeas  corpus  and  procedendo;  that,  therefore,  the 
giving  of  original  jurisdiction  to  the  circuit  court  in  this  matter 
is  a  violation  of  the  constitutional  provisions  just  quoted,  and 
that,  therefore,  the  statute  is  void. 

Taking  for  granted  this  objection  is  well  taken,  then  said  part 
of  Section  2,  placing  this  duty  upon  the  circuit  court,  may  be 
eliminated  without  affecting  the  sufficiency  and  purport  of  said 
act,  when  and  wherever  the  municipality  and  railroad  com- 
pany, as  in  the  case  at  bar,  agree  that  public  safety  requires  such 
improvement  to-be  made,  and  also  agree  upon  the  plans  and 
specifications.  This  is  in  accordance  with  the  well  known  rule 
stated  by  Judge  Cooley  in  his  work  on  "Constitutional  Limita- 
tions," page  246: 

"A  statute  may  contain  some  such  (unconstitutional)  provi- 
sions, and  yet  the  same  act  having  received  the  sanction  of  all 
branches  of  the  Legislature,  and  being  in  the  form  of  law.. may 
contain  other  useful  and  salutary  provisions,  not  obnoxious  to 
any  just  constitutional  exception.  It  would  be  inconsistent  with 
all  just  principles  of  constitutional  law  to  adjudge  these  en- 
actments void  because  they  are  associated  in  the  same  act  but  not 
connected  with  or  dependent  on  others  which  are  unconstitu- 
tional. Where,  therefore,  a  part  of  a  statute  is  unconstitutional. 
that  fact  does  not  authorize  the  courts  to  declare  the  remainder 
void  also,  unless  all  the  provisions  are  connected  in  subject-mat- 
ter, depending  on  each  other,  operating  together  for  the  same 
purpose,  or  otherwise  so  connected  together  in  meaning,  that  it 
can  not  be  presumed  the  Legislature  would  have  passed  the  one 
without  the  other.  The  constitutional  and  unconstitutional  pro- 
visions may  even  be  contained  in  the  same  section,  but  yet  be 
perfectly  distinct  and  separable,  so  that  the  first  may  stand 
though  the  last  fall.     The  point  is  not  whether  they  are  con- 


NISI  PRIUS  REPORTS— NEW  SERIES.  87 

1908.]  Cincinnati  v.  Railway. 

tained  in  the  same  section,  for  the  distribution  into  sections  is 
purely  artificial,  out  whether  they  are  essentially  and  inseparably 
connected  in  substance.  If  when  the  unconstitutional  portion  is 
stricken  out,  that  which  remains  is  complete  in  itself  and  capable 
of  being  executed  in  accordance  with  the  apparent  legislative 
intent,  wholly  independent  of  that  which  was  rejected,  it  must 
be  sustained."  {See,  also,  Treasurer  v.  Bank,  47  0.  S-,  504,  and 
Bowles  v.  State,  37  0.  S.,  35.) 

Applying  this  rule  of  construction  to  the  act  in  question,  I 
hold  that  that  part  of  the  statute,  granting  power  to  the  circuit 
court,  must  be  eliminated,  and  the  rest  of  the  enactment  stand. 

The  objection  raised  by  the  city  solicitor  that  Eastern  avenue 
between  Crane  and  Litherbury  streets  is  a  dedicated  street,  and 
that  it  has  not  been  condemned  between  these  streets,  and  that 
therefore  its  intended  diversion  from  street  purposes  is  beyond 
the  power  of  the  board  of  legislation,  may  be  disposed  of  in  a  few 
words. 

The  testimony. showed  that  the  abutting  property  owners  are  on 
one  side  the  railway  and  on  the  other  side  the  city  itself  by 
reason  of  its  expropriation  proceedings  under  this  act.  This  is, 
therefore,  not  a  ease  of  public  common  where  the  property  would 
revert  to  the  original  dedicators,  but  of  a  public  street  where  it 
reverts  to  the  abutting  property  holders — in  this  case  the  con- 
testing parties. 

The  building  of  each  viaduct  depends  upon  its  peculiar  topo- 
graphical features,  and  the  act  outlines  in  general  terms  the 
powers  given  to  municipalities  to  carry  out  its  purpose.  Stat- 
utes are  seldom  written  in  sueh  precise  or  categorical  terms  as  to 
point  out  inclusively  and  exclusively  all  their  intended  applica- 
tions. General  and  more  or  less  flexible  language  is  used.  A 
statute  is  construed  with  reference  to  the  subject  of  the  act — its 
purpose.  When  the  Legislature  gives  power  to  a  public  body 
to  do  anything  of  a  public  character,  the  Legislature  means  also 
to  give  to  such  body  all  rights  without  which  the  power  would  be- 
come wholly  unavailable. 

"Where  a  power  is  granted  and  the  mode  of  its  exercise  not  de- 
scribed, it  will  be  implied  that  it  is  nevertheless  to  be  exercised. 
As  stated  by  Judge  Minshall  in  Doyle  v.  Doyle,  50  0.  S-,  341: 


88  SUPERIOR  COURT  OF  CINCINNATI. 

Cincinnati  v.  Railway.  [Vol.  VII,  N.  8. 

"That  which  is  plainly  implied  in  the  language  of  a  statute  is 
as  much  a  part  of  it  as  that  which  is  expressed;  no  statute  should 
be  so  construed  as  to  lead  to  an  absurd  result." 

The  statute  in  Sections  1  and  2  authorizes  the  construction  of 
ways  and  of  crossings  above  and  under  the  track  of  a  railroad,  the 
specifications  of  the  grades  to  be  established  for  the  streets,  and  in 
Section  5  expressly  provides  that  the  land  or  property  required 
to  make  any  alterations  in  the  street  or  highway  necessitated  by 
the  proposed  improvement  shall  be  appropriated  by  the  munici- 
pality. This  certainly,  gives  express  authority  for  the  alterations 
of  streets,  and  the  manner  of  doing  it  is  simply  one  of  the  de- 
tails left  to  the  judgment  of  the  municipality,  dependent  upon  the 
situation  of  the  surrounding  lands,  and,  if  exercised  reasonably, 
not  subject  to  review  by  the  courts.  It  is  one  of  the  implied 
powers  necessarily  granted  to  carry  into  effect  the  purpose  of  the 
statute.  So  is  the  power  of  re-loeating  the  street  and  of  cre- 
ating new  ways  made  necessary  by  the  improvement.  It  cer- 
tainly can  not  have  been  the  intent  of  the  law-makers  that  each 
of  these  acts  would  have  to  be  done  in  pursuance  of  other  stat- 
utes notj'n  pari  materia  with  the  act  under  consideration  grant- 
ing to  the  city  rights  in  its  streets. 

Finally,  the  city  solicitor  raises  the  question  that  there  is  no 
express  or  implied  power  given  to  the  board  of  legislation  to 
place  piers  in  Eastern  avenue  to  support  the  viaduct.  The  act 
in  question  is  not  one  granting  franchises  to  a  railroad  company, 
but  is  a  statute  in  furtherance  of  a  public  necessity  and,  as  I 
have  shown,  must  therefore  be  liberally  construed.  There  is  no 
question  that  a  municipality  under  existing  laws  can  not  by  ordi- 
nance or  otherwise  grant  a  right  to  a  railroad  company  to  en- 
cumber the  city  streets  with  piers  or  abutments  solely  for  the 
benefit  of  said  railroad  company.  The  enactment  we  are  now  con- 
sidering, however,  does  nothing  of  the  kind.  It  is  a  statute 
passed  by  the  General  Assembly  granting  powers  to  and  im- 
posing a  duty  upon  the  municipalities  of  the  state  to  abate  an 
evil,  leaving  the  manner  of  the  abatement  in  each  instance  to 
the  legislative  body  together  with  the  railroad  company,  im- 
posing upon  each  one-half  of  the  expense  of  making  the  improve- 
ment and  its  maintenance. 


NISI  PRIUS  REPORTS— NEW  SERIES.  89 

1908.]  Cincinnati  v.  Railway. 

The  evidence  in  the  case  before  me  shows  that  in  order  to  com- 
ply with  the  requirement  of  Section  2  of  the  statute,  namely, 
that  no  grade  shall  be  required  to  exceed  the  established  maximum 
grade  of  that  division  of  the  railroad  in  which  the  improvement 
is  to  be  made  without  the  consent  of  the  railroad  company,  nor 
shall  the  railroad  company 's  tracks  be  required  to  be  placed  below 
high  water  mark,  it  becomes  necessary  to  build  the  viaduct  with 
abutments  and  piers;  for  if  instead  of  this  an  arch  viaduct  were 
to  be  built,  it  would  place  the  grade  far  above  the  maximum 
grade  established  by  the  statute,  and,  further,  would  place  East- 
ern avenue  below  the  high  water  mark  of  our*  floods. 

The  evidence  further  shows  that  even  were  the  railroad  to  con- 
sent to  the  change  of  grade,  the  cost  of  the  removal  of  this  grade 
crossing  would  become  prohibitive  to  the  city,  as  it  would  add 
more  than  a  million  dollars  to  the  present  cost  of  six  hundred 
thousand  dollars,  there  being  in  the  city  one  hundred  and  thirty- 
five  grade  crossings  which  will  have  to  be  removed  by  the  city. 

I  recognize  fully  that  it  is  the  policy  of  our  state  to  avoid  as 
far  as  possible  the  placing  of  obstructions  in  our  streets,  and 
while  the  act  under  consideration  clothes  the  municipality  with 
the  necessary  implied  power  to  build  a  viaduct  in  the  manner  in- 
dicated by  the  plans  and  specifications,  that  this  should  not  be 
done  where  and  whenever  it  can  be  avoided. 

The  testimony  showed  that  these  piers  will  only  be  eighteen 
by  fourteen  inches,  the  width  of  Eastern  avenue  at  that  point  be- 
ing fifty-four  and  one-half  feet,  leaving  a  clearance  on  the  north 
side  of  the  piers  of  twenty-eight  feet  and  on  the  south  side  of 
sixteen  feet.  The  superintendent  of  track  elevations  and  sub- 
ways testified  that  in  Chicago  grade  crossings  had  been  changed  in 
a  similar  manner  to  the  plan  now  under  consideration,  and  that 
the  use  of  streets  thus  containing  piers  therein,  leaving  the  width 
of  the  street  as  here,  had  (jot  proved  any  hindrance  to  travel  in 
said  city. 

Taking  all  of  this  testimony  together  it  clearly  shows  that  the 
purposes  of  the  act  in  this  instance  can  only  be  effected  by  mak- 
ing this  improvement  in  accordance  with  the  plans  and  specifi- 
cations submitted,  without  obstructing  travel  in  Eastern  ave- 
nue or  subjecting  it  to  high  water,  a  local  condition  of  which  the 


90  LICKING  COUNTY  COMMON  PLEAS. 

Meyers  v.  Vermillion  et  al.  [Vol.  VII,  N.  8. 

court  must  take  judicial  notice ;  and  further  that,  even  with  the 
consent  of  the  railway  company,  any  other  mode  of  construction 
would  become  prohibitive  by  reason  of  its  enormous  cost,  thus 
avoiding  the  very  scope  of  the  act. 

I  find,  therefore,  as  a  matter  of  law,  that  the  act  in  question 
is  a  remedial  statute,  and  that  in  accordance  with  the  well  settled 
rules  of  law  it  must  be  construed  largely  and  beneficially  so  as 
to  suppress  the  mischief  and  advance  the  remedy,  adopting  a 
construction  which  will  appear  the  most  reasonable  and  the  best 
suited  to  accomplish  its  object,  and  that  a  construction  which 
would  lead  to  an  absurdity  must  be  rejected. 

I  further  find,  as  a  matter  of  fact,  that  the  plans  and  specifi- 
cations adopted  by  the  board  of  legislation  and  the  railroad  com- 
pany are  the  only  feasible  plans  under  the  provisions  of  the  act 
and  the  topographical  conditions  of  the  land,  to  carry  out  the 
purport  of  the  statute.  The  prayer  of  the  solicitor  for  a  perma- 
nent restraining  order  must  be,  therefore,  and  hereby  is,  refused. 


TURNING  WATER  FROM  A  ROAD  UPON  ADJACENT  LANDS. 

Common  Pleas  Court  of  Licking  County. 

Frank  Meyers  v.  Prank  Vermillion  et  ai.,  Trustees  op 

Hopewell  Township. 

Decided,  September  Term,  1907. 

Township  Trustees — Collection  of  Water  by.  in  a  Highway  Ditch — Ho 
Authority  to  Throw  the  Water  upon  Adjacent  Land,  When — Rights 
of  Owners  of  Servient  Estates — Public  Necessity— iBmfnenl  Domain 
— Natural  Easement*. 

Where  township  trustees  collect  more  water  in  the  ditch  bordering  a 
highway  than  would  naturally  flow  there,  they  must  provide  Tor 
Its  disposition  In  a  manner  which  will  not  work  an  injury  to  the  ad- 
jacent land  owner;  and  where  it  is  necessary  to  cut  through  the 
highway  and  throw  the  water  upon  the  lower  land  on  the  opposite 
side,  they  must  first  acquire  the  right  so  to  do  by  eminent  domain 
or  by  otherwise  compensating  the  land  owner  for  the  damages  he 
will  thereby  sustain. 

Norpcll  &  Xorpcll,  for  plaintiff. 

J.  M.  Swartz  and  Killer  &  Montgomery,  for  defendants. 


NISI  PRIUS  REPORTS— NEW  SERIES.  91 

1908.]  Meyers  v.  Vermillion  et  a). 

Seward,  J.  (orally). 

This  is  a  suit  brought  by  Frank  Meyers  to  obtain  an  order  re- 
straining the  township  trustees  and  the  person  in  charge  of  the 
road  from  cutting  an  embankment  on  the  west  side*  of  the  Black 
Hand  road,  north  of  where  it  intersects  the  Newark  &  Zanes- 
ville  road,  «nd  from  permitting  the  water,  which  collects  on  the 
west  side  of  the  road,  as  he  says,  from  entering  a  swamp  or  de- 
pression in  his  ground  and  injuring  it  for  farming  purposes. 

There  was  considerable  testimony  taken  and  the  witnesses  are 
not  in  entire  agreement.  According  to  the  view  that  is  taken  by 
the  court,  the  topography  of  the  bind  there  indicates  that  the 
water,  if  not  interfered  with,  would  pass  northerly  from  the 
land  in  controversy  to  the  west,  at  least  from  the  center  of  the 
road,  and  probably  a  portion  on  the  east  side  of  the  road.  A 
little  south  of  that,  the  surface  water,  if  left  unimpeded,  would 
flow  a  little  to  the  southwest.  At  the  southeast  corner  of  Meyer's 
land  there  is  a  depression  in  the  ground — rather  a  swampy 
place — where  the  water  collects,  and  there  is  no  way  of  getting 
it  out  except  by  tiling  it  to  the  southwest  corner  of  his  farm, 
where  there  is  a  culvert  under  the  road  entering  Brushy  Pork 
creek.  This  road  intersects  the  Zanesville  &  Newark  road. 
The  water  collects  on  each  side  of  this  road.  North  of  the  house 
of  Meyers  is  a  culvert  which  conducts  the  water  from  the  west 
to  the  east  side  of  the  road,  from  which  point  it  follows  the  road 
down  to  the  intersection  of  the  Newark  &  Zanesville  road.  South 
of  that  culvert,  and  north  of  Meyers'  house — a  distance  of  about 
1,700  feet  as  I  recollect  it — the  water  collects  along  the  side  of 
the  road  by  reason  of  the  township  trustees  or  the  persons  in 
charge  of  the  road  having  worked  it  and  thrown  it  up,  and  used 
a  scraper  or  road-grader;  it  collects  along  the  side  of  the  road, 
and  is  sent  southward  to  the  point  where  it  intersects  the  New- 
ark &  Zanesville  road.  That  has  been  the  case  for  substantially 
thirty  or  thirty-five  years.  I  think  the  testimony  shows  that, 
although  two  witnesses  claim  that  it  was  not  that  way  two  years 
ago;  but  from  the  testimony  the  court  concluded  that  that  con- 
dition of  affairs  has  existed  there  thirty  or  thirty-five  years,  if 
not  longer.     Formerly  there  was  a  culvert  under  the  Black  Hand 


92  LICKING  COUNTY  COMMON  PLEAS. 

Meyers  v.  Vermillion  et  al.  [Vol.  VII,  N.  B. 

road,  where  it  intersects  the  Newark  &  Zanesville  road,  which 
took  that  water  across  to  the  west  side  of  the  road,  and  from 
there  it  was  conducted  two  or  three  hundred  feet  to  a  culvert 
going  across  to  and  under  the  Newark  &  Zanesville  road  to  a 
ditch  through  McCracken's  land  to  the  Brushy  Fork  creek. 

It  is  claimed  that  there  is  sufficient  fall  from  the  .west  side 
from  the  Black  Hand  road,  where  it  intersects  the  Newark  & 
Zanesville  road,  to  take  this  water  to  a  culvert  about  1.100  feet 
west  of  where  the  intersection  of  these  two  roads  takes  place; 
and  there  to  precipitate  it  out  into  Brushy  Pork  creek.  I  think 
the  testimony  tends  to  show  that  there  is  a  sufficient  fall,  if  the 
ditch  is  made  and  kept  open,  to  take  the  water  to  that  point — 
about  1,100  feet — without  very  much  expense;  and  it  is  quite 
certain  that  there  is  sufficient  fall  on  the  east  side  of  where  the 
road  intersects  the  Newark  &  Zanesville  road  to  take  the  water 
that  collects  on  the  east  side  of  the  road,  running  south,  and 
the  water  that  is  sent  through  the  culvert,  if  one  is  built  to  the 
intersection  of  the  culvert  under  the  road  which  goes  through 
McCracken's  land,  and  from  there  to  Brushy  Fork  creek;  or  to 
take  it  to  the  Brushy  Fork  creek  along  the  road.  I  think  that 
could  be  done.  It  is  quite  certain  that  this  water  that  is  pre- 
cipitated into  this  depression  in  McCracken's  land  does  not  get 
out  of  there  except  by  evaporation. 

The  questions  of  law  involved  in  this  ease  are  as  to  the  rights 
of  the  owners  of  the  dominant  estate  to  have  the  water  pass  on 
to  the  servient  estate,  and  whether  it  is  necessary  for  the  servient 
estate  to  take  care  of  the  water. 

The  court  is  satisfied  that  this  water  north  of  the  house  of 
Meyer,  if  left  unimpeded,  will  pass  in  a  southwesterly  direc- 
tion, and  probably  then  enter  into  a  spring  drain  and  go  from 
there  to  this  culvert,  which  is  1,100  feet  west  of  the  intersection 
of  the  road. 

Have  the  township  trustees  the  right  to  collect  the  water  and 
precipitate  it  upon  the  land  of  the  plaintiff  where  it  would  enter 
into  this  depression!  There  is  testimony  tending  to  show  that, 
in  a  dry  season  this  laud  has  been  farmed  and  that  a  good  crop 
of  corn  has  been  raised  there ;  that  it  is  farmed  around  the  rim 
of  the  basin. 


NISI  PRIUS  REPORTS— NEW  SERIES.  OS 

1908.]  Meyers  v.  Vermillion  et  al. 

Have  the  township  trustees  the  right  to  cut  the  embankment 
which  lies  west  of  the  road  and  let  the  water  in  that  will  flow 
down  and  upon  the  land  of  the  plaintiff?  Have  they  the  right 
to  do  that  in  the  improvement  of  the  road  I  They  undoubtedly 
have  the  right  to  improve  the  road  and  to  make  this  ditch ;  but, 
have  they  a  right  to  go  into  this  man's  land  and  cut  a  ditch  in 
three  places  in  this  embankment,  and  precipitate  the  increased 
flow  of  water  during  the  rainy  season  into  this  basin  upon  his 
landt  It  is  claimed  that  no  water  goes  there  except  the  water 
that  falls  on  the  west  side  of  the  road.  But  if  that  water  would 
naturally  flow  in  a  thin  sheet  over  his  land,  hasn't  he  a  right  to 
have  it  go  there  T  Have  the  trustees,  after  the  water  had  been 
going  down  that  road  for  a  number  of  years,  the  right  to  go  onto 
the  road  and  cut  these  places  at  three  different  points  in  that 
ditch  and  precipitate  water  into  this  depression! 

The  plaintiff  cites  the  108  Northwestern,  page  108,  which 
is  a  high  way  case.     The  court  will  refer  to  these  eases  briefly. 

"A  servient  estate  is  bound  to  take  the  natural  flow  of  sur- 
face water;  the  owner  of  the  dominant  one  can  not  collect  it 
and  pass  it  onto  the  lower  proprietor  in  a  different  manner  from 
which  it  flows  by  nature,  nor  may  he  materially  increase  the 
quantity  thereof  to  the  injury  of  the  lower  land." 

On  the  same  page  the  court  in  reasoning  out  the  case,  say: 

"It  is  the  law  of  this  jurisdiction  that,  while  the  servient 
estate  is  bound  to  take  the  natural  flow  of  surface  water  the 
owner  of  the  dominant  one  can  not  collect  it  and  cast  it  upon 
the  lower  proprietor  in  a  different  manner  than  it  flowed  by 
nature,  nor  may  he  materially  increase  the  quantity  thereof 
to  the  injury  of  the  lower  land." 

In  the  25  Northeastern,  page  689,  Young  v.  Commissioners 
of  Highways,  is  a  case  involving  the  power  of  the  commissioners 
of  highways.     At  page  689  the  court  say: 

"The  commissioners  of  highways  have  not  the  right  in  drain- 
ing a  road  to  collect  and  carry  along  the  road  a  quantity  of  water 
which  would  naturally  drain  off  in  another  direction,  and  dis- 
charge such  accumulated  water  on  an  adjoining  farm." 

At  page  693,  the  court,  in  reasoning  out  the  ease,  say : 


M  LICKING  COUNTY  COMMON  PLEAS. 

Meyers  v.  Vermillion  et  al.  [Vol.  VII,  N.  3. 

"  The*  commissioners  of  highways,  where  they  undertake  to 
drain  a  public  highway,  possess  the  same  right,  and  are  to  be 
governed  by  the  same  rules,  as  adjoining  land-owners  who  may 
undertake  to  drain  their  land,  except  where  they  may  proceed 
under  eminent  domain  laws  of  the  state.  In  Peck  v.  Herring- 
ton,  109  111.,  611,  we  had  occasion  to  consider  the  rights  and 
duties  of  adjoining  land-owners,  and  the  rules  that  should  gov- 
ern them  in  draining  their  land ;  and,  among  other  things,  it 
was  held  that  the  owner  of  the  dominant  heritage  or  higher 
tract  of  land  has  the  right  to  have  the  surface  water,  falling  or 
coming  naturally  upon  his  premises,  pass  off  the  same  through 
the  natural  drain  upon  and  over  the  lower  of  servient  land ;  and 
the  owner  of  the  dominant  heritage,  by  ditehes  or  drains,  may 
drain  his  own  into  the  natural  and  usual  channel,  even  if  the 
quantity  of  water  thrown  upon  the  servient  heritage  is  thereby 
increased. ' ' 

There  is  quite  a  lengthy  discussion  of  the  matter  here  but  the 
court  will  not  refer  to  it  further.  The  30  Northeastern  Rep.,  page 
896,  has  reference  to  townships  conducting  surface  water: 

"A  township  can  not  collect,  in  artificial  ditches  along  the 
road,  surface  water  which  naturally  flows  away  from  the  road, 
and  by  a  culvert  conduct  it  all  onto  one  side  of  the  road,  there- 
by causing  it  to  be  thrown  on  the  land  of  a  property  owner  on 
that  side." 

In  the  100  Northwestern  Rep.,  page  66: 

"Where,  prior  to  the  construction  of  certain  ditches  on  de- 
fendant's land  and  across  a  certain  highway,  surface  water 
flowed  from  thence  over  plaintiff's  land  in  a  thin  sheet,  \>ut  the 
inevitable  effect, of  the  construction  of  such  ditches  was  to  col- 
lect the  water  and  discharge  the  same  on  plaintiff's  land  so  that 
quantities  of  earth  and  sand  were  carried  down  and  so  deposited 
as  to  depreciate  the  usefulness  of  plaintiff's  land  for  farming 
purposes,  defendant  was  liable  for  the  damages  so  caused." 

The  court  say,  at  page  67: 

"If  it  be  not  eorrect  that  more  water  was  thus  brought  to 
and  discharged  upon  the  plaintiff's  land,  it  is  at  least  very  clear 
that  the  water  that  naturally  would  have  spread  over  the  bot- 
tom and  upon  the  land  of  plaintiff's  and  defendant  in  a  broad 
and  comparatively  thin  sheet,  was  collected  and  discharged  in 
a  different  manner,  and  with  different  results,  than  would  have 
followed  had  natural  processes  not  been  interfered  with." 


NISI  PRIUS  REPORTS— NEW  SERIES.  95 

IMS.]  Meyers  v.  Vermillion  et  al. 

The  defendants  cite  a  number  of  cases,  among  which  is  Law  et 
al  v.  Leighty,  1  C.  C. — N.  S.,  431.  This  ease  announces  the 
principle  that  township  trustees  have  authority  over  the  town- 
ship road.  There  can  be  no  question  about  that  proposition — 
that  the  county  commissioners  are  without  authority  to  main- 
tain suit  in  injunction  to  restrain  a  person  from  obstructing  or 
shutting  up  a  township  road.  The  first  proposition  will  not  be 
questioned.  The  second  proposition  has  no  bearing  upon  the 
questions  involved  in  this  case. 

Elliott  on  Roads,  Section  464,  says  that  there  can  be  no  doubt 
as  to  the  right  to  use  suburban  roads  for  the  drainage  of  con- 
necting highways. 

Section  465  treats  of  the  effect  of  a  grant  for  road  purposes 
or  seizure  for  road  purposes,  under  eminent  domain.  That  is, 
that  the  grant  or  seizure  carries  with  it  the  authority  of  those 
whose  duty  it  is  to  prepare  and  so  .maintain  it  that  it  may  be 
safely  used  for  public  travel. 

The  author  says: 

"It  is  held  in  strongly  reasoned  cases  that  the  officers  may 
prepare  and  maintain  the  road  without  incurring  liabilities  for 
casting  surface  waters  upon  adjoining  land,  provided  they  arc 
not  negligent  and  do  not  collect  it  in  a  body  and  thus  pour  it 
upon  the  lands." 

Elliott  on  Roads,  Section  467,  says: 

"Where  public  necessity  requires  it,  they  may  divert  the  flow 
of  the  water  into  a  natural  stream;  but  in  doing  this,  they 
must  not  unnecessarily  interfere  with  the  rights  of  others.  The 
right  which  a  riparian  proprietor  possesses  can  not  substan- 
tially be  impaired,  but  a  diversion  which  does  not  materially  in- 
jure may  be  made  when  the  highway  officers  deem  it  necessary." 

In  5  Nisi  Prius.  271,  is  a  case  where  the  plaintiff,  the  owner 
of  the  lower  ground,  sought  to  enjoin  the  defendant  from  flowing 
water  through  a  culvert  under  the  road,  from  the  west  side  to 
the  east  side  of  the  road,  and  through  a  tile  over  the  plaintiff's 
land.  This  culvert  and  this  tile  existed  for  more  than  thirty 
years.  It  waft  held  that  the  owner  of  the  upper  parcel  of  laud 
has  a  natural  casement  upon  a  lower  adjacent  parcel,  to  the 


g«  LICKING  COUNTY  COMMON  PLEAS. 

Meyere  v.  Vermillion  et  al.  fVol.  VII,  N.  a 

extent  of  the  natural  flow  of  the  surface  water  from  the  upper 
to  and  upon  the  lower,  and  may,  for  the  benefit  be  may  derive 
from  the  use  of  it  for  agricultural  purposes,  accelerate  the  flow 
of  such  surface  water  by  artificial  drains.  That  is,  he  collected 
the  water,  and  took  it  to  the  culvert  and  it  was  passed  through  the 
tile  ditch  of  the  servient  estate.  It  is  held  that  he  had  a  right 
to  collect  the  surface  water  for  agricultural  purposes,  to  benefit 
his  land  for  agricultural  purposes,  and  precipitate  it  through  the 
culvert  and  through  the  tile  ditch. 

So  the  court  is  satisfied  in  this  case  that  more  water  had  been 
collected  in  this  ditch,  along  the  west  side  of  the  highway,  than 
would  naturally  flow  there;  that  the  township  trustees,  if  they 
take  it  to  the  intersection  of  these  two  roads,  must  take  care  of 
it  at  that  point;  that  they  have  no  right  to  cut  this  embankment 
which  protects  the  plaintiff's  land  from  the  water  which  flows 
down  that  road,  and  which  has  been  collected  by  virtue  of  the 
working  of  the  road,  or  the  ditch  that  has  been  made  along  the 
side  of  the  road — that  they  have  uo  right  to  precipitate  that 
water  upon  the  plaintiff's  land.  They  would  have  a  right  to  do 
that  under  the  law  of  eminent  domain,  but  they  must  compensate 
the  person  who  is  damaged  thereby,  they  have  no  right  to  pre- 
cipitate water  upon  his  land  which  would  tend  to  damage  him. 
The  court  thinks  that  they  can  take  care  of  this  water  at  this 
intersection. 

I  know  it  is  said  by  counsel  that  the  court  ought  to  go  there 
and  see  the  laud;  but  both  surveyors  have  testified  that  there  is 
a  sufficient  fall  either  way  to  take  care  of  this  water  that  comes 
down  to  the  intersection  of  those  two  roads. 

The  court  is  cited  to  Section  4716,  which  woul.d  seem  to  give 
the  trustees  the  right  to  enter  upon  the  land  and  make  such 
drains  as  they  may  deem  wise.  But  said  section  in  so  far  as  it  at- 
tempts to  confer  such  authority  is  in  conflict  with  the  Constitu- 
tion. 

The  injunction  may  be  made  perpetual,  and  notice  of  appeal. 
Bond  in  the  sum  of  $50. 


NISI  PRIUS  REPORTS— NEW  SERIES.  97 

1908.]  Avery,  Admr.  v.  Howard  et  al. 

FAILURE  TO  PROBATE  WILL  WITHIN  THREE  YEARS. 

Common  Pleas  Court  or  Hamilton  County. 

C.  Hammond  Avery,  Administrator,  etc.,  v.  Charles 
F.  Howard  et  al. 

Decided,  April,  190S. 

Wills — Authority  of  Administrator  with  Will  Annexed  to  Sell  Realty 
— For  Purposes  of  Distribution  hand  will  be  Regarded  as  Per- 
sonalty, When — Will  Bet  Aside  more  than  Three  Years  after  Death 
of  Testator— JUarlier  Will  then  Probated — Devisee  who  had  C,us- 
tody  of  Will  not  Debarred  from  Taking — Sections  59$3  and  S98S. 

1.  Where  a  devisee  of  a  share  In  real  estate  dies  before  distribution 

la  made,  the  proceeds  from  a  sale  of  the  property  go  to  his  heirs 
as  personalty  and  should  be  paid  to  bis  administrator. 

2.  H  left  two  wills.     The  later  one  was  probated  within  thirty  days, 

and  was  contested,  and  after  a  lapse  of  more  than  three  years 
was  set  aside.  Immediately  thereafter  the  beneficiary  In  whose 
custody  both  wills  had  been  placed  procured  the  probate  of  tbe 
earlier  will.  Held:.  That  the  custodian  of  the  will  was  not  de- 
.  barred  under  Section  5943  from  taking  as  a  devisee  under  the 
second  will  by  the  fact  that  more  than  three  years  elapsed  after 
the  death  of  the  testatrix  before  he  offered  It  for  probate. 

C.  Hammond  Avery,  for  plaintiff. 

Harry  R.  Weber  and  D.  Judson  Starr,  contra. 

WOODMANSEE,  J. 

The  plaintiff  is  the  administrator  with  the  will  annexed  and 
trustee  of  the  estate  of  Lucy  Howard,  deceased.  The  said  Lucy 
Howard  died  on  April  25,  1885,  and  by  her  will  disposed  of  cer- 
tain personal  and  real  estate  as  follows : 

"I  give  and  bequeath  all  the  rest  and  residue  of  my  personal 
estate  after  the  payment  of  my  just  debts  and  charges  and  all  the 
foregoing  legacies  to  Roswell  P.  Howard,  upon  trust,  to  place  the 
same  at  interest  and  from  time  to  time  to  appropriate  the  inter- 
est and  income  arising  therefrom  in  such  proportions  as  he  may 
judge  expedient  to  the  maintenance  and  support  of  Lucy  P. 
Weleh  during  her  natural  life.  I  also  give  and  devise  my  house 
and  lot  where  I  now  reside  situate  in  College  Hill  in  Hamilton 


98   •   HAMILTON  COUNTY  COMMON  PLEAS. 

Avery,  Admr.  v.  Howard  et  al.  [Vol.  VII,  N.  S. 

county,  Ohio,  to  Roswell  P.  Howard  in  trust  to  take  and  receive 
during  the  natural  life  of  Lucy  P.  Welch,  the  rents  and  profits 
therefrom,  and  therewith  make  all  necessary  repairs  and  pay  all 
taxes  and  other  necessary  charges  and  expenses  in  and  about  the 
same  and  after  such  payments  deducted  shall  as  such  times  an- 
nually and  in  such  proportions  as  he  may  judge  expedient  ap- 
propriate the  residue  of  such  rents  and  profits  also  to  the  main- 
tenance and  support  of  said  Lucy  P.  Welch  during  her  natural 
life.  Provided,  nevertheless,  that  if  the  interest  arising  from 
such  personal  estate  when  invested  as  aforesaid  together  with  the 
rents  and  profits  of  the  real  estate  aforesaid  shall  prove  in- 
sufficent  for  the  comfortable  maintenance  and  support  of  the  said 
Lucy  P.  Welch  my  trustee  aforesaid  shall  expend  so  much  of 
the  principal  of  my  personal  estate  aforesaid  as  may  be  requisite 
for  that  purpose ;  and  after  the  death  of  the  said  Lucy  P.  Welch 
shall  sell  and  convey  the  real  estate  aforesaid  for  such  price  as 
he  shall  deem  proper  in  fee  simple,  and  the  whole  proceeds  of  the 
sale  thereof  together  with  all  my  personal  estate  then  remain- 
ing unconsumed  to  distribute  to  Roswell  P.  Howard,  Hiram  X. 
Howard,  Stephen  P.  Howard,  Benjamin  P.  Howard.  Lucy  Pru- 
den  and  Cyrus  Howard  equally,  share  and  share  alike." 

The  beneficiary  under  that  clause  of  the  will,  Lucy  P.  Welch, 
having  died,  and  Roswell  P.  Howard,  executor  and  trustee  men- 
tioned in  the  will,  having  also  died,  and  the  plaintiff  being 
regularly  appointed  his  administrator  with  the  will  annexed 
this  court  is  now  asked  to  determine,  (1)  has  the  said  adminis- 
trator with  the  will  annexed  power  and  authority  under  the  will 
to  sell  the  real  estate  described  therein  in  fee  simple;  and  (2) 
as  a  number  of  the  persons  mentioned  in  said  will  have  died 
since  the  testatrix,  leaving  a  widow  and  children,  the  court  is 
asked  to  instruct  the  plaintiff  as  to  whether  the  share  bequeathed 
to  each  party  should  go  as  real  estate  or  personal  property.  If 
the  latter,  then  the  said  share  must  be  paid  to  the  administrator 
or  executor  of  such  deceased  party. 

This  court  holds  that  the  plaintiff  has  authority  under  the 
terms  of  the  will  to  sell  the  said  real  estate  without  an  order  of 
the  court-    Section  5986,  Revised  Statutes. 
,  This  court  also  holds  that  the  property  should  be  distributed 
as  personalty,  following  Collier  v.  Grimsey,  36  0.  S.,  17: 


NISI  PEIUS  REPORTS— NEW  SERIES.  99 

1908.]  Avery,  Admr.  t.  Howard  et  al. 

"Under  the  direction  to  sell,  the  land  is  to  be  regarded  for 
the  purpose  of  distribution  as  converted  into  money." 

Under  the  clause  of  the  will  before  us  for  construction  neither 
of  the  parties  mentioned  are  given  a  control  or  interest  in  the 
real  estate,  but  rather  a  share  of  the  personal  property  into 
which  the  trustee  is  directed  to  convert  the  real  estate. 

It  is  disclosed  to  the  court  that  Roswell  P.  Howard,  a  son  of 
Lucy  ■Howard,  one  of  the  devisees  under  her  will,  had  possession 
and  control  of  the  will  under  which  her  estate  is  divided  for 
more  than  three  years  after  her  death  and  before  it  was  offered 
for  probate,  and  that  he  is  therefore  disqualified  to  receive  any 
real  estate  devised  to  him  under  the  will. 

The  statute  under  which  this  claim  is  made  is  Section  5943  of 
the  Revised  Statutes,  which  reads  as  follows : 

"No  lands,  tenements  or  hereditaments  shall  pass  to  any  devi- 
see in  a  will,  who  shall  know  of  the  existence  thereof,  and  have  the 
same  in  his  power  and  control,  for  a  term  of  three  years  un- 
less within  that  time  he  shall  cause  the  same  to  he  offered  for 
or  admitted  to  probate;  and  by  such  neglect  the  estate  devised 
to  such  devisee  shall  descend  to  the  heirs  of  the  testator." 

Hence  because  of  this  statute,  the  heirs  at  law  of  the  testator 
claim  the  share  of  Roswell  F.  Howard. 

The  facte  in  the  case  are  that  Lucy  Howard  left  two  wills  in 
the  possession  and  control  of  her  son,  Roswell  P.  Howard.  The 
last  will  was  executed  by  her  on  the  17th  day  of  March,  1885; 
the  older  will  was  executed  November  2d,  1882.  The  latest  will 
was  probated  within  thirty  days  after  the  death  of  the  testatrix. 
A  suit  was  filed  to  contest  that  will  by  one  of  the  sons  of  the  tes- 
tatrix and  on  the  30th  day  of  April,  1891,  a  decree  was  entered 
in  this  court  finding  that  such  will  was  not  the  last  will  and 
testament  of  Liicy  Howard.  Thereupon,  within  three  days,  on 
May  2d,  1891,  Roswell  F.  Howard  probated  the  earlier  will  of 
Lucy  Howard. 

Now,  it  is  claimed  that  for  his  delay  in  offering  this  will  for 
probate  that  all  the  real  estate  devised  to  him  by  said  will  should 
be  taken  from  him  and  given  to  the  heirs  at  law  of  Lucy  Howard. 


100  HAMILTON  COUNTY  COMMON  PLEAS. 

Riley,  Admr.  v.  Riley  el  al.  [Vol.  VII,  N.  S. 

The  purpose  and  intent  of  Section  5943  is  to  aid  in  the  prompt 
administration  of  the  decedent's  estate.  It  seems  quite  reason- 
able that  a  devisee  under  a  will  who  wrongfully  withholds  it  from 
probate  for  a  term  of  three  years  and  thereby  retards  the  settle- 
ment of  the  estate  and  jeopardizes  the  interests  of  others  who 
are  provided  for  in  the  will  should  be  punished  therefor. 

But  this  court  is  clearly  of  the  opinion  that  Roswell  F.  Howard 
did  just  as  a  reasonable  and  prudent  man  should  do  under  the 
circumstances.  He  had  both  wills  in  his  possession  and  the  older 
of  the  two  wills  was  not  the  last  will  and  testament  of  Lucy 
Howard,  deceased,  until  that  later  will  was  set  aside  by  decree 
of  court.  The  court  holds  that  it  would  have  been  improper  to 
have  filed  both  wills  and  besides  the  filing  of  both  wills  would 
not  have  facilitated  the  administration  of  the  estate. 

It  is  ordered  that  the  proceeds  of  the  estate  bequeathed  in  that 
clause  of  the  will  quoted  herein  be  distributed  as  personalty 
among  the  various  persons  mentioned  in  said  clause  or  to  the 
personal  representatives  of  their  estates. 

PARAMOUNT  OBJECT  IN  MIND  OF  TESTATOR- 

Common  Pleas  Court  of  Hamilton  County. 

Wilijam  Riley,  Administrator,  v,  James  Riley  et  al.  • 

Decided,  January. 4,  190S. 

Wills— Con* (ruction  of— Authority  to  Consume  Corpus  of  Estate  to  Sup- 
port Imbecile  Son  will  be  Implied,  When. 

Real  estate  belonging  to  a  decedent  may  be  sold  and  the  corpus  as  well 
as  the  Income  used  for  the  support  of  an  imbecile  son,  when  the 

*  The  subjoined  memorandum,  In  which  all  three  Judges  concurred, 
was  Bled  in  the  Circuit  Court  in  this  case: 

"In  this  case,  heard  upon  appeal,  we  think  the  Judgment  entry  of 
the  Common  Fleas  Court  places  the  correct  construction  upon  the  will 
In  controversy;  the  property  should  be  sold  and  the  proceeds  ap- 
plied to  the  payment  of  the  claim  of  William  Riley  and  the  balance 
used  for  the  support  of  James  Riley,  an  Imbecile.  Six  dollars  per 
week  (or  his  board,  care,  nursing,  etc.,  we  believe  to  be  reasonable,  and 
a  decree  may  be  taken  similar  to  that  entered  In  the  court  below." 


NISI  PRIUS  REPORTS— NEW  SERIES.  101 

1908.]  Riley,  Admr.  v.  Riley  et  al. 

language  of  the  will  Indicates  a  purpose  on  the  part  of  the  testa- 
trix to  provide  Cor  the  care  and  support  of  such  son  regardless  of 
the  Interests  of  the  remaindermen. 

John  P.  Ryan  and  Henry  G.  Hauck,  for  plaintiff. 
Edward  M.  Ballard,  contra. 

O'Connell,  J. 

The  will  of  Mary  Riley,  which  was  duly  admitted  to  probate 
and  record  on  the  10th  day  of-  August,  1894,  in  the  probate 
court  of  this  county,  is  here  presented  for  interpretation. 

The  will  comprises  nine  items.  Of  these  four  are  concerned 
with  her  son,  James  Riley.  Item  three  describes  him  as  "of 
weak  mind  and  being  unable  to  care  for  and  support  himself." 
The  evidence  shows  that  he  is  past  the  age  of  54  years,  an  im- 
becile from  birth,  incurable,' almost  blind  and  at  times  pitiably 
helpless  physically,  and  has  frequently  been  under  the  eare  of 
different  physicians.  He  is  a  very  great  care  on  those  who  have 
him  in  charge. 

There  is  no  personalty  and  the  real  property  of  the  estate  for 
various  reasons  is  unable  to  produce  sufficient  income  to  pay  its 
current  charges  and  repairs  and  afford  support  for  this  imbecile 
son. 

The  question  to  be  decided  is:  Can  the  real  estate  be  sold  and 
the  corpus  as  well  as  the  income  of  the  estate  be  used  for  his  sup- 
port T 

Item  two  of  the  will  provides  that  the  "remaining  ineome 
(after  payment  of  repairs,  taxes,  etc.)  arising  from  the  rents  and 
profits  of  said  above  mentioned  property  be  applied  by  my  execu- 
tors and  trustees  to  the  sole  and  only  support  of  my  son  James 
Riley  as  far  as  becomes  necessary  during  his  natural  life."  Stand- 
ing alone,  these  words  might  not  permit  the  sale  of  the  real  estate 
and  the  use  of  the  corpus  to  support  this  son,  but  these  words  are 
followed  immediately  and  in  the  same  sentence  with  the  follow- 
ing language:  "and  in  case  of  sickness  of  my  son  James  Riley 
and  in  event  of  his  death  my  executor  is  to  pay  the  same  out  of 
said  income,  if  sufficient.  If  not  sufficient  then  out  of  my  estate 
that  I  may  die  seized  of."     "And  having  my  son  James  Riley 


102  HAMILTON  COUNTY  COMMON  PLEAS. 

Riley,  Aamr.  v.  Riley  et  al.  [Vol.  VII,  N.  S. 

•  *  *  properly  clothed  and  warm  and  well  cared  for  and 
looked  after  in  every  particular  is  my  greatest  desire." 

Item  three  provides  that  if  his  brothers  do  not  treat  him  prop- 
erly then  his  care  shall  be  given  to  a  lady  friend  of  the  testatrix, 
if  living,  "if  not,  some  other  good  and  kind  Catholic  person  and 
pay  for  his  support." 

Item  seven  makes  the  stipulation:  "In  case  of  fire  that  the 
money  arising  on  the  insurance  shall  be  invested  and  proceeds 
arising  on  same  to  be  applied  for  the  support  of  James  Riley  and 
at  his  death  divided  as  above  mentioned."  ' 

The  will  taken  as  a  whole — and  under  numerous  authorities 
cited  from  our  Supreme  Court  the  will  must  be  construed  as  a 
whole — leaves  no  doubt  that  the  greatest  desire  of  the  testatrix 
was  for  the  care  and  future  comfort  of  this  imbecile  son.  If  the 
property  could  be  sold  to  provide  for  his  burial  would  it  not  be 
a  violent  presumption  to  say  it  could  not  be  sold  to  provide  main- 
tenance and  support  for  him  while  living!  That  her  intent  was 
to  provide  for  him  regardless  of  the  other  beneficiaries  is  plainly 
indicated  by  a  study  of  item  seven  given  above.  So  little  did 
she  regard  the  remaindermen  that  in  case  of  fire  the  insurance 
money  was  to  be  used,  not  to  rebuild  and  protect  and  preserve  the 
corpus  of  the  estate  for  the  remaindermen,  but  the  money  should 
be  invested  and  the  proceeds  arising  on  same  to  be  applied  for 
his  support.  Quaere,  "proceeds  arising  on  same"  meaning 
"arising  on  the  insurance"  or  arising  on  the  investment t 

It  will  be  noted  further  that  the  will  nowhere  says  that  the 
"income  only"  shall  be  used  nor  by  express  terms  is  his  support 
anywhere  limited  "solely"  to  the  income.  It  is  only  by  implica- 
tion that  such  construction  can  arise.  His  physical  condition 
can  unquestionably  be  construed  as  such  sickness  as  would  neces- 
sitate &  sale  of  the  estate  for  his  support,  as  is  allowable  under 
the  latter  part  of  item  two  of  the  will. 

We  can  well  quote  here  the  language  of  our  Supreme  Court 
in  interpreting  the  will  of  a  testator  as  found  in  41  O.  S.,  241,  at 
page  255: 

"Considering  the  relation  of  the  testator  to  Ann  (his  daughter) 
the  natural  interpretation  of  his  words  treats  that  support  as 
the  primary  and  paramount  object  in  hia  mind." 


NISI  PRIUS  REPORTS— NEW  SERIES.  103 

1908.]  Chemical  Co.  v.  Calvert. 

So  in  the  case  at  bar  the  paramount  object  of  the  testatrix's 
bounty  was  her  imbecile  son  and  the  words  of  the  will  should  be 
given  no  such  narrow  interpretation  as  would  cause  that  son  to 
suffer  for  the  benefit  of  the  remaindermen. 

A  decree  may  be  entered  accordingly. 


STATUTORY  REGULATIONS  AS  TO  FERTILIZERS. 

Common  Pleas  Court  of  Franklin  County. 

The  Smith  Agricultural  Chemical  Company   v.   Calvert, 

Secretary   op  the  Ohio   State   Board  op 

Agriculture,  et  al. 

Decided,  April  28,  1908. 

Constitutional  Law — Invalidity  of  the  Act  Relating  to  Fertilisers- 
State  Board  of  Agriculture  a  Private  Corporation — Its  Secretary 
con  nof  be  Invested  with  PoMoe  Power— injunction  Lies  against 
Publication  of  a  Libel,  When — Action  by  a  Private  Individual  or 
Corporation  does  not  Lie  against  a  State  Officer — Pleading — Com- 
bining Several  Acts  into  One  Cause  of  Action — Misjoinder  of  Parties 
bining  Several  Acts  into  One  Cause  of  Action — Misjoinder 
of  Parties— Sections  4446a,  44460,  4446c,  4446d,  4446e,  4446/, 
4446a,  44467i,  44461,  and  Section  312. 

1.  The  State  Board  of  Agriculture  of  Ohio  Is  not  a  public  corporation, 

or  state  agency,  or  department  of  the  state  government,  but  Is 
essentially  a  private  corporation;  and  the  secretary  of  this  board 
la  not  a  public  officer,  but  the  agent  of  a  private  corporation. 

2.  The  General  Assembly  la  without  authority  to  delegate  police  power 

to  a  private  corporation  or  a  private  citizen,  and  the  provision  In 
the  act  of  Hay  1,  1881.  78  O.  L.,  55  (Section  4446a  et  seq,  Revised 
Statutes),  clothing  the  secretary  of  the  State  Board  of  Agriculture 
with  authority  to  exercise  police  power  at  his  discretion,  is  an  at- 
tempt to  confer  upon  blm  one  of  the  sovereign  functions  of  govern- 
ment, and  renders  the  act  unconstitutional  and  void. 

3.  The  fact  that  in  an  action  for  an  injunction  one  of  the  grounds  of 

complaint  is  that  the  defendants,  acting  under  the  provisions  of  an 
unconstitutional  statute,  are  about  to  publish  a  libel,  does  not  de- 
prive a  court  of  equity  of  Jurisdiction  In  that  behalf. 


104  FRANKLIN  COUNTY  COMMON  PLEAS. 

Chemical  Co.  v.  Calvert.  [Vol.  VII,  N.  S. 

4.  An  action  to  enjoin  proceedings  under  Bectlon  iUGa  et  teg,  will  not 
He  as  to  the  Auditor  of  State  or  the  Supervisor  of  Public  Printing, 
but  will  be  granted  as  to  the  State  Board  of  Agriculture  and  the 
printing  company  which  Is  doing  the  work  complained  of. 

Addison,  Sinks  &  Babcock,  for  plaintiff. 
Wade  H.  Ellis,  Attorney-General,  contra. 

Bigger,  J. 

The  ease  is  submitted  upon  the  demurrers  of  the  defendants, 
each  for  himself  demurring  to  the  petition  upon  the  following 
grounds: 

First.  That  the  court  has  not  jurisdiction  of  the  person  of 
any  of  the  defendants. 

Second.  That  the  court  has  no  jurisdiction  of  the  subject  of 
the  action. 

Third.    That  the  plaintiff  has  no  legal  capacity  to  sue. 

Fourth.     That  there  is  a  misjoinder  of  parties  defendant. 

Fifth.  That  separate  causes  of  action  against  several  de- 
fendants are  improperly  joined;  and 

Sixth.  That  the  petition  does  not  state  faets  sufficient  to 
constitute  a  cause  of  action. 

Since  the  briefs  of  counsel  in  this  case  were  submitted  to  me, 
something  over  a  week  ago,  I  have  used  all  diligence  in  the  con- 
sideration of  the  questions  raised  by  these  demurrers  and  dis- 
cussed in  the  briefs,  which  are  voluminous,  one  of  them  being 
three  hundred  pages  in  length. 

The  petition  is  a  lengthy  one  and  I  shall  not  undertake  to 
state  its  averments  in  detail ;  neither  shall  I  undertake  to  state 
the  reasons  at  length  which  lead  me  to  the  conclusions  I  have 
reached,  as  to  do  so  would  extend  this  opinion  beyond  reason- 
able length. 

In  brief,  the  plaintiff  seeks  to  enjoin  the  defendants  from 
proceeding  to  carry  out  the  provisions  of  an  act  of  the  Legis- 
lature, passed  March  15th,  1881,  and  which  took  effect  May  1st, 
1881  (78  O.  L„  55),  and  being  Sections  4446a,  4446ft,  4446c, 
4446d.  4446c,  4446/,  4446g,  4446ft  and  4446*'  of  the  Revised  Stat- 
utes. 


NISI  PRIUS  REPORTS— NEW  SERIES.  105 

1908.]  Chemical  Co.  v.  Calvert. 

It  is  claimed  by  the  plaintiff  that  the  defendant,  the  Ohio 
State  Board  of  Agriculture,  is  a  private  corporation,  and  it  is 
averred  in  the  petition  that  the  plaintiff  ia  a  private  corporation. 
It  is  stated  that  the  plaintiff  is  engaged  in  manufacturing  and 
selling  commercial  fertilizer  throughout  the  state  of  Ohio  and 
adjacent  territory,  and  that  its  business  is  such  that  it  is  de- 
pendent largely  upon  the  good  will  of  the  business;  that  the 
State  Board  of  Agriculture  and  its  secretary  are  claiming  to 
act  as  officers  of  the  state  of  Ohio,  under  and  by  virtue  of  cer- 
tain acts  of  the  Legislature,  and  are  seizing  the  property  of  the 
plaintiff  and  causing  analyses  to  be  made  of  its  products  from 
samples  arbitrarily  taken  by  them,  and  that  unless  restrained 
by  the  court,  will  publish  a  book  or  pamphlet  containing  the 
results  of  these  analyses;  that  they  claim  the  book  is  published 
by  authority  of  the  state  and  that  they  threaten  to  distribute  it 
throughout  the  territory  where  plaintiff  sells  its  products;  that 
this  publication  will  contain  divers,  unjust,  injurious,  unauthor- 
ized, illegal  and  misleading  statements  concerning  the  plaint- 
iff's goods;  that  the  publication  will  contain  a  statement  as  to 
the  total  commercial  value  of  the  ingredients  entering  into  the 
fertilizers,  based  upon  the  analyses  made  by  the  agents  of  the 
defendants,  the  state  board  and  its  secretary,  and  arbitrarily 
undertakes  to  fix  the  value  of  the  plaintiff's  product,  without 
any  hearing  or  opportunity  for  hearing  on  behalf  of  the  plaint- 
iff, and  undertakes  to  fix  and  determine  the  price  at  which  the 
plaintiff  shall  sell  its  products,  without  any  opportunity  to  be 
heard ;  and  that  in  this  publication,  the  defendants,  the  state 
board  and  its  secretary,  will  undertake  to  criticize  and  discredit 
the  brands  of  fertilizer  manufactured  by  plaintiff,  and  injure 
the  standing  and  commercial  value  of  the  same  with  plaintiff's 
customers  and  the  public.  It  is  alleged  this  publication  will  be 
widely  circulated.  It  is  further  alleged  that  the  board  and  its 
secretary  threaten  to  and  will  prosecute  the  plaintiff  and  its 
agents  and  customers  and  dealers  in  its  products,  for  their  re- 
fusal to  comply  with  the  terms  of  the  act  of  the  Legislature,  and 
will  thereby  intimidate  and  coerce  the  agents  of  the  plaintiff  and 
its  customers  from  dealing  in  its  products.     It  is  further  said 


106  FRANKLIN  COUNTY  COMMON  PLEAS. 

Chemical  Co.  v.  Calvert.  [Vol.  VII,  N.  S. 

that  the  defendant,  the  state  board,  and  its  secretary,  by  virtue 
of  this  act,  are  attempting  to  assess  upon  and  collect  from  the 
plaintiff  a  license  fee  for  each  brand  of  fertilizer  manufactured 
by  it,  which  will  amount  in  the  aggregate  to  about  twelve  hun- 
dred dollars  per  annum,  and  that  plaintiff  is  compelled  to  pay 
the  same  to  avoid  arrest  and  prosecution,  which  said  license 
fee  is  by  virtue  of  the  statute  in  question  paid  over  to  the 
State  Board  of  Agriculture  as  a  fund  for  its  use  and  benefit. 

Plaintiff  avers  that  this,  act  of  the  Legislature,  under  which 
these  acts  are  being  done  and  threatened  to  be  done,  is  uncon- 
stitutional and  void,  because  in  conflict  with  the  Constitutions  of 
the  United  States  and  of  the  state  of  Ohio.  The  plaintiff  says 
that  by  reason  of  these  acts,  its  business  has  been  greatly  in- 
jured, and  its  good  will  will  be  destroyed,  and  that  it  will  also, 
unless  these  ants  be  restrained,  be  involved  in  a  multiplicity  of 
suits  with  the  defendants  and  other  authorities  of  this  state,  and 
also  with  its  many  thousands  of  customers  and  consumers,  and 
that  many  of  those  who  will  distribute  the  said  circulars  are 
financially  unable  to  respond  in  damages,  and  the  plaintiff  will 
be  irreparably  injured,  and  for  which  it  has  no  adequate  remedy 
at  law,  and  that  damages  will  be  difficult  of  ascertainment. 

This  is  but  a  brief  summary  of  the  averments  of  the  petition 
but  will  suffice  to  indicate  the  nature  of  the  plaintiff's  case  as 
stated  in  the  petition.  For  these  reasons,  the  plaintiff  asks  that 
the  defendants  may  be  enjoined  from  the  acts  and  things  com- 
plained of  in  the  petition. 

The  claim  of  the  plaintiff  is  that  the  act  of  the  Legislature, 
under  which  these  acts  are  being  done  and  threatened  to  be 
done,  is  unconstitutional  and  void. 

Where  a  case  can  be  determined  without  a  consideration  and 
decision  of  the  constitutionality  of  the  acts  of  the  Legislature, 
it  will  be  done;  but  I  find  that  the  gist  of  the  plaintiff's  com- 
plaint is  the  unconstitutionality  of  this  act ;  and  that  the  ques- 
tions here  raised  for  determination  necessarily  require  consid- 
eration and  determination  of  the  constitutionality  of  this  law. 

It  is  claimed  that  the  State  Board  of  Agriculture  is  a  private 
corporation.     As  a  result  of  my  consideration  of  this  proposi- 


NISI  PRIUS  REPORTS— NEW  SERIES.  107 

1908.]  Chemical  Co.  v.  Calvert. 

tion,  I  am  convinced  that  the  plaintiff's  contention  upon  this 
point  is  correct  and  that  the  State  Board  of  Agriculture  is  a 
private  corporation. 

The  Supreme  Court  of  this  state  has  expressly  decided  in 
Dunn  v.  Agricultural  Society,  46  0.  S.,  93,  that  a  county  agri- 
cultural society,  organized  under  the  act  of  February  28,  1846, 
and  amendments  thereto,  was  not  a  public  agency  of  the  state, 
invested  with  power  to  assist  the  state  m  the  conduct  of  local 
administration,  and  with  no  power  to  decline  the  functions 
devolved  upon  it,  but  was  only  a  voluntary  association  of  indi- 
viduals formed  for  their  own  advantage,  convenience  and 
pleasure. 

Some  time  after  the  passage  of  the  act  by  the  Legislature 
of  this  state  creating  the  State  Board  of  Agriculture,  the  Legis- 
lature of  the  state  of  Indiana  passed  an  act  which  is  practically 
a  copy  of  the  Ohio  act  creating  the  Ohio  State  Board  of  Agri- 
culture, and  it  seems  manifest  that  the  Legislature  of  Indiana 
merely  copied  the  Ohio  law  upon  the  Biibject. 

In  the  ease  of  Downey  v.  The  Indiana  State  Board  of  Agri- 
culture, 129  Ind.,  443,  the  Supreme  Court  of  Indiana  decided 
that  the  Indiana  State  Board  of  Agriculture  was  a  private  cor- 
poration. The  reasoning  of  the  Supreme  Court  of  Indiana  in 
deciding  that  case  seems  to  me  to  leave  no  reasonable  doubt 
that  our  State  Board  of  Agriculture,  which  was  created  under 
precisely  a  similar  law  to  that  of  the  Indiana  State  Board  of 
Agriculture,  is  a  private  corporation. 

It  seems  that  laws  similar  to  the  law  of  Ohio  under  which 
the  Ohio  State  Board  of  Agriculture  was  created,  were  origi- 
nally passed  in  other  states  besides  Ohio  and  Indiana,  and  that 
when  brought  before  the  courts  it  was  held  that  these  corpora- 
tions were  not  public  corporations  or  agencies  of  the  state,  hut 
private  corporations.  It  seems  that  Minnesota  also  had  such 
a  law,  and  in  the  case  of  Lane  v.  The  Minnesota  State  Agricul- 
tural Society,  62  Minn.,  175,  it  was  decided  by  the  Supreme 
Court  of  that  state  that  the  State  Agricultural  Society  was  not 
a  public  corporation  organized  for  the  purpose  solely  of  dis- 
charging a  governmenal  function.     The  court  pointed  out  that 


108  FRANKLIN  COUNTY  COMMON  PLEAS. 

Chemical  Co.  v.  Calvert.  [Vol.  VII,  N.  S- 

the  state  had  no  voice  in  the  .selection  or  control  of  its  officers 
or  in  fixing  their  compensation,  etc.  After  this  decision,  the 
Legislature  of  that  state  proceeded  to  create  a  department  of 
agriculture. 

The  case  of  Thompson  v.  Lambert,  44  Iowa,  239.  is  also  au- 
thority upon  -the  point  that  this  State  Board  of  Agriculture  is 
not  a  public  agency  of  the  state.  Other  authorities  are  cited 
to  the  same  effect  in  the  brief  of  plaintiff's  counsel,  but  these 
seem  to  me  to  be  couclusive  upon  this  proposition,  and  I  am 
therefore  forced  to  the  conclusion  that  the  Ohio  State  Board  of 
Agriculture  is  not  a  public  corporation,  or  agency,  or  depart- 
ment of  the  state  government,  but  is  essentially  a  private  cor- 
poration. 

The  secretary  of  this  corporation  is  merely  an  officer  of  the 
corporation.  He  is  neither  elected  by  the  people  nor  appointed 
by  any  officer  of  the  state  clothed  with  authority  to  make  ap- 
pointments to  office,  and  as  pointed  out  by  plaintiff's  counsel 
it  is  not  even  necessary  under  the  law  for  the  state  board  to 
have  a  secretary,  as  the  board  is  authorized  to  elect  such  officers 
as  it  may  deem  necessary.  It  is  therefore  left  optional  with 
this  corporation- whether  it  shall  or  shall  not  have  a  secretary. 

The  Constitution  of  the  state  provides  that  the  General  As- 
sembly, in  eases  not  provided  for  in  the  Constitution,  shall  fix 
the  term  of  office  and  compensation  of  all  officers.  The  Legis- 
lature does  not  fix  the  term  of  office  or  the  compensation  of  the 
secretary  of  the  State  Board  of  Agriculture.  I  can  not  escape 
the  conclusion,  therefore,  that  the  secretary  of  the  State  Board 
of  Agriculture  is  not  a  public  officer,  but  the  agent  of  a  pri- 
vate corporation. 

Now  this  aet  iu  question  undertakes  to  delegate  to  the  secre- 
tary of  the  State  Board  of  Agriculture  the  exercise  of  the  police 
powers  of  the  state.  He  is  empowered  at  his  discretion  to 
seize  the  property  of  the  plaintiff  for  the  purpose  of  making 
analyses,  and  he  is  authorized  to  assess  upon  and  collect  a  license 
fee  of  the  plaintiff  upon  each  brand  of  fertilizer  manufactured 
by  it.  and  as  further  exercise  of  police  power  he  is  authorized 
to  publish  annually  a  report  of  the  analyses  made  of  samples 


NISI  PRIUS  REPORTS— NEW  SERIES.  109 

1808.]  Chemical  Co.  v.  Calvert. 

of  fertilizer,  and  he  is  further  authorized  to  prosecute  for  any 
failure  on  the  part  of  the  manufacturers  of  commercial  fer- 
tilizers to  obey  the  law.  If  these  acts  can  be  justified,  it  must 
be  upon  the  ground  that  it  is  the  legitimate  exercise  of  the 
police  powers  inherent  in  the  state.  But  in  my  opinion  the 
Legislature  is  without  authority  to  delegate  the  exercise  of  the 
police  powers  to  a  private  corporation  or  private  citizen.  As 
was  said  by  Judge  Campbell,  of  Michigan,  in  the  case  of  Ex  rel 
Skumway  v.  Bennett,  29  Mich.,  451:  "But  it  is  not  in  the 
power  of  the  Legislature  to  delegate  its  functions  or  to  subject 
citizens  and  their  interests  to  the  interference  of  any  but  law- 
ful public  agencies.  *  •  •  It  is  impossible  to  sustain  dele- 
gation of  any  sovereign  power  of  government  to  private  citizens 
or  to  justify  their  assumption  of  it." 

And  yet  that  is  what  has  been  done  or  attempted  to  be  done 
in  this  ease  by  conferring  these  powers  upon  the  secretary  of 
the  State  Board  of  Agriculture.  There  is  no  such  officer  under 
the  Constitution  and  laws  of  the  state  of  Ohio  as  the  secretary 
of  the  State  Board  of  Agriculture,  because  neither  the  Consti- 
tution nor  the  statutes  of  the  state  creates  such  an  office.  The 
secretary  of  the  State  Board  of  Agriculture  therefore,  not 
being  a  public  officer  of  the  state,  can  not  be  empowered  by  the 
Legislature  to  exercise  at  his  discretion,  as  he  is  authorized  to  do 
by  this  act,  these  sovereign  functions  of  government. 

But  it  is  objected  that  a  court  of  equity  will  not  entertain 
jurisdiction  to  restrain  the  publication  of  a  libel.  But  it  seems 
plain  to  me  that  the  plaintiff  is  not  seeking  merely  to  restrain 
the  publication  of  a  libel.  The  plaintiff  seeks  to  restrain  the 
defendant,  the  State  Board  of  Agriculture,  and  the  secretary 
of  said  board,  from  proceeding  to  carry  out  any  and  all  of  th^ 
acts  and  things  which  the  act  in  question  undertakes  to  author- 
ize them  to  do;  in  other  words,  to  restrain  them  from  enforcing 
the  act  in  question  in  any  of  its  provisions,  and  that  upon  the 
ground  that  such  acts  will  result  in  .irreparable  damage  to  the 
plaintiff's  business,  and  result  in  a  multiplicity  of  suits  at  law 
by  plaintiff  to  recover  its  damages,  etc.  While,  it  may  be  con- 
ceded that  the  general  doctrine  is  that  a  publication,  libelous 


FRANKLIN  COUNTY  COMMON  PLEAS. 

Chemical  Co.  v.  Calvert  [Vol.  VII,  N.  S. 


in  its  nature,  will  not  be  enjoined  merely  because  it  is  libelous, 
yet  there  are  many  exceptions  to  this  rule,  especially  where  the 
inevitable  effect  of  it  is  to  injure  one  in  the  use  of  his  property 
and  to  affect  his  business  standing  and  credit  (see  Spelling  on 
Injunctions  and  Other  Extraordinary  Remedies,  Section  8861. 
But  this  is  but  one  of  the  several  things  which  it  is  alleged  the 
defendants  are  threatening  to  do  under  cover  of  this  act,  to  the 
irreparable  injury  of  the  plaintiff,  such  as  the  seizure  of  its 
property,  the  imposition  and  collection  of  license  fees,  etc. 

In  my  opinion  a  court  of  equity  is  not  without  jurisdiction 
to  entertain  such  an  action  merely  because  one  of  the  grounds 
of  the  complaint  is  that  the  defendants  are  about  to  publish  a 
pamphlet  or  book  which  will  injure  the  business  and  credit  of 
the  plaintiff. 

I  understand  it  to  be  a  well  established  principle  of  law  that 
injunction  is  a  proper  remedy  to  prevent,  the  enforcement  of 
an  unconstitutional  law  which  will  interfere  with  a  person's 
property  rights  and  result  in  a  multiplicity  of  suite,  even  if  a 
legally  elected  or  appointed  officer  is  proceeding  to  enforce  the 
law.  But  it  is  argued  that  there  is  here  a  misjoinder;  that 
separate  causes  of  action  are  improperly  joined  against  several 
defendants. 

Before  proceeding  to  discuss  this  ground  of  the  demurrer,  I 
will  notice  the  demurrer  of  the  state  auditor  and  state  printer, 
upon  the  ground  that  the  petition  states  no  cause  of  action 
against  them. 

In  my  opinion  this  objection  to  the  petition  is  well  taken  in 
so  far  as  they  are  concerned.  And  briefly,  as  to  the  state 
auditor,  I  find  no  warrant  of  law  for  holding  that  a  private 
individual  or  private  corporation  is  authorized  to  maintain  an 
action  against  an  officer  of  the  state,  to  prevent  the  misappli- 
cation of  the  funds  of  the  state,  and  no  authority  has  been  cited 
to  that  effect.  I  therefore  conclude  that  no  cause  of  action  is 
stated  against  the  state  auditor  and  his  general  demurrer  is 
sustained. 

As  to  the  state  printer,  there  is  no  averment  in  the  petition 
that  he  has  done  or  is  threatening  to  do  any  of  the  acts  com- 


NISI  PRIUS  REPORTS— NEW  SERIES.  Ill 

1908]  Chemical  Co.  v.  Calvert. 

plained  of,  or  that  he  has  taken  any  part  in  their  commission, 
or  that  he  threatens  to  do  so.  The  law  fixing  his  duties 
and  powers  does  not  seem  to  clothe  him  with  any  power 
or  authority  to  make  a  contract  for  this  printing,  which  it 
is  alleged  has  been  let  by  contract  to  the  defendant,  the 
Springfield  Publishing  Company.  The  letting  of  contracts  for 
the  public  printing  is  made  the  duty  of  the  Commissioners  of 
Public  Printing,  consisting  of  the  Secretary  of  State,  Auditor 
of  State  and  Attorney-General.  It  seems  the  state  printer  is 
not  empowered  to  make  such  a  contract  as  this  for  printing 
and  it  is  not  averred  that  he  has  done  so,  or  is  threatening  to  do 
any  of  the  things  complained  of  in  the  petition.  Seetion  312 
of  the  Revised  Statutes  provides  that  the  printing  for  the  execu- 
tive departments  shall  be  ordered  through  him,  but  it  does  not  ap- 
pear that  he  has  any  authority  to  make  a  contract  for  such 
printing  as  this,  and  it  is  not  averred  that  he  is  about  to  do  it 
in  the  discharge  of  the  duties  of  his  office  as  state  printer.  I 
conclude,  therefore,  that  there  is  no  case  stated  against  him. 

The  next  question  which  presents  itself  is,  does  the  petition 
state  more  than  one  cause  of  action  against  the  state  board  and 
the  secretary  of  the  state  board!  The  substance  of  the  com- 
plaint contained  in  the  petition  is  that  these  defendants  are  pro- 
ceeding to  do  the  several  acts  complained  of  in  pursuance  of  the 
general  duty  which  is  attempted  to  be  devolved  upon  them  under 
this  act  of  the  Legislature.  These  several  acts  done,  or  threat- 
ened to  be  done,  are  all  but  part  of  a  single  plan  to  carry  out 
the  provisions  of  this  single  act  of  the  Legislature,  and  in  my 
opinion  they  constitute  but  a  single  cause  of  action. 

The  case  of  Lever  v.  Perkins,  decided  by  the  Supreme  Court 
of  Michigan,  and  reported  in  92  Mich.,  page  304,  seems  W  me  to 
be  in  point.     The  second  branch  of  the  syllabus  is: 

"A  series  of  wrongful  acts,  all  aimed  at  a  single  result  and 
contributing  to  the  injury  complained  of.  to-wit,  the  destruc- 
tion of  one's  business,  credit  and  reputation,  may  be  counted 
upon  collectively  as  producing  that  result  in  an  action  on  the 
ease." 

In  that  case  several  separate  and  independent  acts,  eonsti- 


112  FRANKLIN  COUNTY  COMMON  PLEAS. 

Chemical  Co.  v.  Calvert.  [Vol.  Til,  N.  S. 

tuting  a  part  of  a  general  plan  to  injure  the  plaintiff's  business, 
were  held  to  constitute  but  a  single  cause  of  action. 

I  am  not  able  to  see  any  distinction  in  principle  between  that 
and  the  case  at  bar,  where  these  several  acts  are  but  separate 
acts  embraced  within  the  general  duty  devolved  upon  the  sec- 
retary of  the  board,  and  which  it  is  alleged  he  is  doing  and 
threatening  to  do,  in  conjunction  with  the  members  of  the  board. 
I  am  therefore  of  the  opinion  that  these  acts  together  constitute 
but  a  single  cause  of  action,  and  but  a  single  relief  is  sought, 
to-wit,  an  injunction  to  prevent  the  carrying  out  of  the  provi- 
sions of  the  act  by  the  defendants.  That  being  true,  I  think 
the  printing  company,  which  it  is  alleged  will,  unless  restrained, 
co-operate  with  the  board  and  its  secretary  in  the  printing  of 
the  report,  is  properly  joined  with  the  board  and  the  secretary 
thereof  in  this  action. 

There  are  other  questions  raised  and  discussed  by  counsel, 
but  these  are  all  that  1  deem  it  necessary  to  discuss  in  passing 
upon  these  demurrers. 

I  conclude,  therefore,  that  the  demurrer  of  the  State  Auditor 
and  the  Supervisor  of  Publie  Printing  should  be  sustained,  but 
that  the  demurrers  of  the  defendants,  the  members  of  the  State 
Hoard  of  Agriculture  and  the  Springfield  Publishing  Company, 
should  be  overruled. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Benson  ct  al  t.  Columbia  Life  Ins.  Co. 


DENIAL  OF  RECEIVER  FOR,  LIFE  INSURANCE 
COMPANY. 

Superior  Court  of  Cincinnati,  Special  Term. 

Walter  L.  Benson  bt  al  y.  The  Columbia  Life  Insurance 
Company  et  al^ 

Decided,  April,   1908. 

Receiver — 8 hare-holder x  and  Policy-holders  of  Life  Insurance  Com- 
pany not  Entitled  to  Appointment  of,  When — Evidence  Required  to 
Sustain  Application  for — Construction  of  Section  %7b — Death 
Claims  not  Unconditional  Promises  to  Pay — Insolvency  in  the 
Strict  Legal  Sense  and  Under  the  Insurance  Laws — Past  Mistakes 
— Internal  Policy — Fraud  and  Waste—Doing  Business  "Unlawfully." 

1.  A  receivership  is  a  harsh  and  extraordinary  remedy  and  a  court  of 

equity  when  considering  the  remedy  will  look  to  the  equities  of  the 
entire  case  as  well  as  the  mere  technical  legal  rights  of  plaintiffs. 

2.  Past  irregularities  afford  no  ground  for  the  appointment  of  a  re- 

ceiver. Nor  do  present  irregularities  or  mismanagement  unless 
accompanied  by  actual  fraud. 

3.  There  being  no  action  tor  a  receivership,  no  receiver  will  he  ap- 

pointed unless  the  remedy  Is  ancillary  to  some  other  ultimate 
equitable  relief  and  where  necessary  to  make  that  other  relief 
effective. 

4.  If  dangers  threaten  due  to  Irregularities  and  acts,  constructively 

fraudulent,  no  moral  turpitude  being  involved,  and  if  such  dangers 
can  be  effectively  prevented  by  some  other  remedy,  as  for  ex- 
ample, injunction,  no  receiver  will   be  appointed. 

5.  Section   274,  Revised  Statutes,  confers  powers  and  duties  on  the 

superintendent  of  insurance  and  is  primarily  for  the  benefit  of  the 
public;  it  confers  no  power  In  the  first  instance,  at  the  suit  of  a 
share-holder  or  policy-holder,  upon  a  court  of  equity,  to  enlarge 
Its  Jurisdiction  to  wind  up  the  affairs  of  an  Insurance  company. 

Worth  E.  Taylor,  Cogan  &  Williams,  Kinkead,  Rogers  <& 
Ellis  and  W.  H.  Parkinson,  for  the  motion. 

Province  M.  Pogue,  C.  Benllcy  Matthews,  Thomas  S.  Pax- 
ton,  Sr,,  contra. 


114  SUPERIOR  COURT  OF  CINCINNATI. 

Benson  et  al  v.  Colombia  Life  Ins.  Co.    [Vol.  VII.-N.  S. 

HOFFHEIHKR,  J. 

This  matter  came  on  to  be  heard  on  tbe  motion  of  plaintiffs 
for  the  appointment  of  a  receiver.  The  petition  is  voluminous, 
and  the  charges  that  are  made  the  basis  of  this  action  cover 
some  twenty  pages  of  typewritten  matter..  Plaintiffs  represent 
some  thirty  shares,  as  against  seventeen  hundred  shares  of  stock, 
and  they  likewise  hold  $27,500  worth  of  life  insurance  as  against 
some  $4,600,000  now  outstanding.  Plaintiffs  claim  they  sue 
on  behalf  of  themselves  and  all  other  stockholders,  policy-hold- 
ers and  creditors,  although  it  is  not  evident  to  the  court  that 
any  stock-holder,  policy-holder  or  creditor  other  than  these 
plaintiffs  evince  any  sympathy  with  the  claim  of  plaintiffs,  or 
join  in  this  request  for  a  receiver. 

The  directors  and  executive  officers  of  this  company  who 
stand  charged  with  mismanagement  and  fraud  (constructive 
at  least),  are  on  the  whole  men  of  probity  and  excellent  business 
reputation.  Almost  all  of  them,  on  being  apprised  of  .the 
charges  here  made,  .promptly  and  vigorously  protested  against 
the  appointment  of  a  receiver,  and  they  assert  that  a  receiver- 
ship would  not  redound  to  the  best  interests  of  the  share-holders 
and  policy-holders. 

The  plaintiffs  themselves  did  not  appear  at  any  time  during 
the  extended  hearing  of  this  motion,  save  by  counsel,  and  the 
principal  actor  on  behalf  of  plaintiffs,  the  court  could  not  help 
but  observe,  was  Mr.  Moore,  one  of  the  company's  general  agents 
and  partner  of  Mr.  Carl  Hansen,  who  has  instituted  suit  at 
Chicago  to  rescind  a  contract  of  purchase  of  this  company's 
stock  (a  deal  involving  $160,000)  and  whose  interests  it  will  thus 
be  observed  are  not  inconsiderable. 

The  testimony  shows  that  Mr.  Moore  was  equally  involved  in 
the  $2,000  transaction  with  Sumner  Cross — a  transaction  now 
complained  of  by  plaintiffs,  facts  which  although  they  ought  not 
to  prejudice  any  rights  of  these  plaintiffs,  nevertheless  should 
be  borne  in  mind  in  considering  the  entire  case  and  this  applica- 
tion for  receivership. 

The  testimony  also  shows  that  Mr.  Moore  has  been  a  constant 
fault  finder   (see  testimony  of  James  Albert  Green,  director), 


NISI  PRIUS  REPORTS— NEW  SERIES.  115 

1908.]  Benson  et  al  v.  Columbia  Lite  Ins.  Co.. 

not,  however,  with  the  conduct  or  acts  of  the  board  or  execu- 
tive officers  but  with  the  president,  Felix  G.  Cross  (see  partym- 
larly  his  letter  to  C.  B.  Matthews,  January,  1908),  and  his  one 
eqflapvor  has  been,  for  reasons  entirely  disassociated  with  the 
.charges  here  made,  to  have  said  Cross  removed  from  the  presi-  ' 
dency  of  this- company.  ■•  .  - -; 

The  Columbia  Life  Insurance  Company  is  a  young  company 
and  is  passing  through,  wiltlt  seems  from  the  evidence  to  be,  the 
common  experience  of  all,  new  life  insurance  companies.  It 
appears  that  life  insurance  companies  are  of  slow  growth;  that 
the  expense  of  procuring  new  business  is  heavy;  and  that  the 
■  expense  of  securing  new  business  for  this  company  does  not  ex- 
ceed the  expense  of  securing  new  business  in  all  ordinary  life 
insurance  companies.  While  it' appears  that  the  expense  of 
securing  new  business  has  increased  for  the  fraetion  of  the  year 
up  to. -this  hearing,  the  $5,000  death  loss  referred  to  in  Hyde's 
letter  to  Matthews  April  9,  1908,  would  seem  to  have  been  taken 
into  Consideration  in  figuring  the  increase,  and  affords  explana- 
tion thereof. 

The  business  of  the  company,  however,  while  not  as  satisfac- 
tory as  might  be  desired,  as  was  substantially  testified  to  by 
Director  Green,  has  never  had  a  year  wherein  it  has  not  made 
some  forward  stride  with  reference  at  least  to  procuring  new 
business,  as  the  following  table  shows.  Insurance  in  force  at  the 
end  of  the  year:  1904,  $2,661,405;  1905,  $2,922,026;  1906, 
$3,527,309;  1907,  $4,607,276.  If  any  percentage  of  this  is  re- 
insurance the  testimony  of  the  actuary  that  re-insurance  under 
mutual  arrangement  is  valuable  is  not  overcome. 

True  the  company  does  not  appear  to  have  made  any  net 
earnings  up  to  date,  but  it  ought  not  to  be  overlooked  that  the 
insurance  that  has  been  obtained  by  the  expenditure  of  the  com- 
pany's money  is  a  very  valuable  asset  in  the  ordinary  sense  of 
the  term  at  least,  and  this  is  worth,  according  to  the  evidence, 
thirty-five  or  forty  dollars  a  thousand.  This  item,  then,  should 
certainly  be  remembered  in  considering  the  practical  solvency 
of  the  company,  and  when  considering  the  rights  and  interests 
of  all  the  policy-holders  and  share-holders. 


116  SUPERIOR  COURT  OP  CINCINNATI. 

Benson  et  si  v.  Columbia  Life  Ins.  Co.    [Vol.  VII,  N.  S. 

I  have  adverted  at  the  outset  to  these  matters  generally,  be- 
cause in  considering  the  technical  legal  rights  of  plaintiffs  it  is 
proper  that  the  court  have  in  mind  also  the  rights  of  all  interested 
in  this  property.  Nothing  is  better  settled  than  that  courts  of 
equity  act  with  great  reluctance  and  caution  in  the  matter  of 
appointing  receivers.  In  Baker  v.  Fraternal  Mystic  Circle,  32 
W.  L.  B.,  84,  86,  it  was  said: 

"In  the  whole  armory  of  equity  jurisprudence,  one  of  the 
most  formidable  weapons  is  a  receivership.  When  there  is  a 
contest,  a  very  strong  case,  a  case  which  upon  the  facta  stands 
out  in  persuasive  clearness,  must  be  proved  before  this  weapon 
•  will  be  drawn. ' ' 

And  the  greatest  circumspection  is  to  be  employed  in  tie  ex- 
ercise of  the  discretion,  and  this  is  not  to  be  influenced  by  the 
technical  legal  rights  of  the  parties  but  by  the  equities  of  the 
entire  case.     Ibid,  p.  82. 

Aside  from  the  technical  legal  rights  of  plaintiff  can  there 
be  any  doubt  as  to  what  a  receivership  would  mean  in  this  case 
to  all  the  others  interested  T 

The  appointment  of  a  receiver  would  render  all  the  outstand- 
ing insurance  valueless  (plaintiffs'  admission  by  brief).  This 
insurance  is  worth,  as  stated  (and  this  is  uncontradicted),  thirty 
to  forty  dollars  a  thousand — an  ordinary  asset  of  $160,000  to 
$170,000. 

If  it  be  true,  as  plaintiffs  claim,  that  the  witness  who  gave 
this  testimony  is  not  expert,  it  is  just  as  true  that  the  court, 
in  the  absence  of  testimony  to  offset  that  claim,  would  be  less 
warranted  in  substituting  any  opinion  of  its  own.  A  receiver- 
ship, then,  would  not  only  mean  a  loss  to  the  stockholders  of  this 
valuable  asset,  but  the  property  would  be  taken  out  of  the  hands 
of  its  statutory  officers,  designated  by  the  vast  majority  of  the 
stockholders,  and  the  corpus  would  be  placed  in  the  bands  of 
strangers  to  administer,  thus  saddling  the  remaining  assets  with 
the  usual  heavy  expense  incident  to  that  mode  of  administra- 
tion. Havemeyer  v.  Sup.  Ct.,  84  Cal.,  369;  Robinson  v.  G.  C. 
R.  Co.,  5  N.  P.,  305. 

It  would  spell  the  immediate  ruin,  collapse  and  the  enforced 


NISI  PRIUS  REPORTS— NEW  SERIES.  117 

IMS.]  Benson  et  al  V.  Columbia  Lite  Inn.  Co. 

winding  up  of  this  corporation.  Indeed  counsel  for  plaintiffs 
so  understand  it,  and  with  characteristic  frankness  assert  (I  do 
not  undertake  to  quote  in  totidem  verbis),  "That  this  company 
is  dead;  that  it  is  better  for  this  court  to  wind  up  the  corpora- 
tion than  to  permit  the  recreant  board  to  do  so,  or  to  permit  the 
insurance  commissioner  to  do  so,  as  they  may  and  must,  if  the 
relief  here  asked  shall  be  denied." 

But,  if  the  winding  up  of  this  company  is  the  ultimate  relief 
sought,  and  it  appears  that  such  relief  can  be  afforded  at  law, 
then  there  is  no  room  for  the  special  remedy  of  receivership. 
Alderson  on  Receivers,  Section  7,  pp.  10,  11;  High  on  Receivers, 
Section  301,  p.  261. 

Bearing  in  mind,  then,  that  the  appointment  of  a  receiver 
would  signify  the  immediate  collapse  of  this  enterprise,  which 
if  left  alone  "would  be  an  ornament  to  the  city"  (James  Albert 
Green,  director),  and  would  be  for  the  best  interests  of  the 
stock-holders  and  policy-holders  (protest  of  nineteen  directors), 
what  grounds  are  urged  for  the  application  of  this  harsh  remedy  1 

It  would  be  impossible  save  in  a  somewhat  general  way  to  dis- 
-  cuss  all  the  complaints  set  out  in  the  petition.  Some  of  them, 
namely,  misrepresentation  and  the  eharge  as  to  rebating  or  the 
making  of  secret  profits  in  contracts  of  printing  and  supplies, 
are  utterly  unsupported  by  evidence.  The  charge  that  P.  G. 
Cross  profited  by  deals  in  stock  is  not  proven.  A  number  of 
charges  cover  things  done  in  the  past.  If  there  were  delin- 
quencies in  those  particulars,  they  are  closed  transactions.  Many 
things  complained  of  are  freely  admitted  to  have  been  done,  and 
there  is  express  avowal  that  there  will  be  no  repetition  of  these 
matters  in  the  future.  Nor  does  the  evidence  warrant  the  court 
in  believing  that  there  is  any  immediate  or  apparent  danger  that 
this  word  will  not  be  kept,  or  that  similar  delinquencies  will  oc- 
cur or  threaten  to  occur.  Judge  White  speaking  for  the  court 
in  the  Sloan  case  (31  0.  S.,  7),  said: 

"A  provisional  receiver  is  in  effect  an  injunction  and  some- 
thing more  stringent  still.  It  is  to  be  granted  with  great  cau- 
tion and  only  in  case  of  pressing  apparent  necessity." 

Citing  Edwards  on  Receivers,  13. 


118  SUPERIOR  COURT  OP  CINCINNATI. 

Benson  et  al  v.  Columbia  Life  Ins.  Co.    [Vol.  VII.  N.  S. 

And  in  5  Pom.  Eq.  Jur.,  Section  64,  it  is  said: 

"Past  and  remote  dangers  are  not  sufficient  to  invoke  the  power 
of  appointment.  And  past  transactions  are  not  sufficient  to 
warrant  the  practical  winding  up  of  a  corporation."  Ibid,  Sec- 
tion 121,  p.  214  and  note  271. 

And  in  North  Fairmount  Building  Company  v.  Rekn,  6  N.  P., 
193,  Judge  Rufus  B.  Smith  of  this  court  said: 

"It  seems  to  us  quite  clear  that  these  acts  would  not  justify 
throwing  the  association  into  the  hands  of  a  receiver,  or  even  of 
issuing  an  injunction  against  the  directors.  First,  because  the 
acts,  even  if  illegal,  as  to  which  we  express  no  opinion,  were 
done  in  good  faith  and  were  free  from  all  taint  of  moral  turpi- 
tude. Second,  because  they  have  been  abandoned  and  there  is 
no  intention  or  threat  that  they  will  be  repeated." 

The  discounting  of  agents'  notes,  taken  for  advances  in  sev- 
eral instances,  and  turning  the  proceeds  into  the  coffers  of  the 
company,  are  past  transactions  and  nothing  similar  is  threatened. 
It  may  be  noted,  also,  they  involve  no  liability  on  the  part  of  the 
company. 

If  Sumner  Cross  realized  profit  from  buying  or  selling  of  small 
blocks  of  stock,  it  will  be  noted  that  he  was  not  a  member  of  the 
board  or  executive  committee.  While  the  court,  however,  is  not 
to  be  understood  as  approving  those  transactions,  nevertheless 
they  are  past  and  nothing  similar  seems  to  threaten. 

The  McLain,  Lee,  Bradford  Shinkle  small  stock  transactions 
were  isolated  transactions,  occurred  in  the  past,  and  in  all  of  this 
I  see  no  ground  for  a  receiver. 

Some  commissions  were  paid  Sumner  Cross  on  insurance.  In 
obtaining  this  insurance  he  seems  to  have  been  aided  by  his 
father,  the  president  of  this  company.  All  of  this,  however, 
seems  to  have  been  done  prior  to  February  or  March,  1907.  The 
evidence  shows  that  prior  to  those  dates  Sumner  Cross  was  em- 
ployed at  a  very  small  salary.  The  agreement  called  for  half 
his  time,  and,  under  a  fair  construction  of  the  contract,  he  could 
write  insurance  and  earn  commissions  when  not  otherwise  at 
work  for  the  company.  After  the  date  mentioned,  however,  he 
was  given  an  increased  salary  and  he  was  to  earn  no  commissions. 


NISI  PRIUS  REPORTS— NEW  SERIES.  119 

19(18.]  Beneou  et  al  v.  Columbia  Life  Ins.  Co. 

The  evidence  fails  to  show  that  he  received  commissions  on  new 
business  from  March,  1907,  down  to  the  time  of  this  hearing. 
„  Those  transactions,  in  any  event,  are  past,  and  even  if  they  in- 
volved any  wrong,  it  will  be  observed  that  this  very  board,  now 
complained  of,  voluntarily  put  a  stop  to  such  transactions. 

'It  is  true  the  "book  of  rates"  fixed  by  the  president  estab- 
lished no  rate  beyond  the  age  of  sixty  years.  Nevertheless,  when 
the  company  was  organized  Dr..  Cross,  desiring  to  be  of  the  first 
to  have  a  policy  in  this  company,  "called  the  attention  of  the 
committee  or  board  to  the  age"  (testimony  of  Dr.  Cross)  and  by 
and  with  the  full  consent  of  the  executive  officers  he  was  au- 
thorized to  take  out  a  policy,  although  he  had  reached  the  age 
of  sixty-one. 

But  the  rate  at  which  he  took  the  policy  was  according  to 
recognized  standard  rates,  and  I  see  no  reason  why  the  board  of 
directors,  in  whom  is  vested  the  executive  management  and  con- 
trol of  the  business  and  its  policy,  could  not  exercise  their  judg- 
ment in  what  seems  to  be  a  plain  business  proposition  and  take 
this  risk,  if  it  were  otherwise  deemed  a  good  risk,  and  there  is 
nothing  to  show  that  such  was  not  the  case.  Moreover,  this  was 
not  an  exceptional  ease.  Policies  seem  to  have  been  issued  to 
others,  over  sixty,  notably  in  the  case  of  Clasgens,  concerning 
which  no  complaint  is  now  made. 

The  commissions  paid  Sumner  Cross  on  the  Meyers  policy  was 
an  irregularity.  It  seems  to  have  been  the  only  transaction  of 
its  kind,  is  past,  and  nothing  similar  threatens  the  rights  of  these 
plaintiffs. 

The  payment  of  $2,000  to  Sumner  Cross  (not  a  member  of  the 
board  or  executive  committee),  by  Mr.  Moore  {general  agent), 
was  a  wrong  on  the  part  of  both  these  individuals. 

But  I  can  not  understand  that  Mr.  Moore  was  not  entitled  to  the 
money  in  the  first  instance,  and  the  action  of  the  board,  on  discov- 
ering the  facts,  is  evidence  that  there  was  no  moral  turpitude  on 
its  part.  If  there  is  any  fault  to  be  found  with  the  managing 
officers  it  is,  that  some  drastic  steps  were  not  taken  in  regard  to 
both  individuals. 

Nor  am  I  willing  to  say  that  the  quantum  of  evidence  neces- 


120  SUPERIOR  COURT  OP  CINCINNATI. 

Benson  et  al  v.  Columbia  Life  Ins.  Co.    (Vol.  Til,  N.  & 

sary  to  connect  F.  G.  Cross  with  this  deal  is  present.  In  any 
event,  I  am  at  a  loss  to  understand  how  this  transaction,  wrong 
as  it  was,  affects  or  threatens  the  rights  of  these  plaintiffs. 

The  claims  in  regard  to  failure  to  pay  dividends  and  the  claim 
as  to  lapses,  seem  to  be  matters  largely  of  internal  management. 
If  another  board  can  do  better,  the  share-holders  hold  the  remedy 
in  their  hands. 

Equity  will  not  concern  itself  in  such  matters,  unless  it  clearly 
appears  that  positive  misconduct  and  waste  were  the  direct  causes. 
I  can  not  say  that  the  evidence  justifies  any  such  finding. 

There  are  some  other  charges  which  I  do  not  stop  to  mention, 
They  are  of  a  minor  character,  and  they  fall  in  the  category  of 
past  transactions ;  they  no  longer  threaten ;  and  in  no  instance  do 
they  involve  bad  faith  on  the  part  of  the  managing  officers. 

Plaintiffs  themselves,  in  the  argument,  practically  ignore  them, 
laying  particular  stress  however  upon  certain  transactions,  which, 
though  in  a  sense  past,  it  is  urged  are  present  and  continuing 
and  threaten  the  rights  and  interests  of  plaintiffs.  I  refer  now 
to  the  Interstate  transaction;  the  Matthews  transaction;  the  so- 
called  special  deposits;  the  Hansen  claim;  the  death  claims. 

Before  taking  up  "these  matters,  turning  to  the  prayer  of  the 
petition,  we  find  it  couched  as  follows:   - 

"Plaintiffs  pray  that  a  receiver  be  appointed  by  this  court  to 
take  immediate  possession  of  the  assets  of  this  corporation  with 
the  usual  powers;  that  the  Columbia  Life  Insurance  Company 
may  be  enjoined  from  transferring  or  otherwise  disposing  of  its 
property  or  effects,  and  that  it  may  be  particularly  enjoined  from 
paying  to  said  Felix  G.  Cross  or  his  assigns  the  said  amount  of 
$34,500,  illegally  and  wrongfully  claimed  by  him  from  said 
company;  that  after  paying  costs  of  re-insurance  the  policy- 
holders of  this  company  and  all  the  debts  of  the  corporation,  the 
receiver  pay  over  to  plaintiffs  and  other  stock-holders  such  surplus 
as  shall  remain  in  his  hands." 

If  the  injunction  prayed  for  should  ultimately  be  granted,  this 
action  would  be  one  for  a  receiver  only.  And  a  receivership  be- 
ing a  provisional  remedy  only,  and  there  being  no  action  for  a 
receiver,  this  court  would  be  without  power  to  appoint  a  receiver 


NISI  PRIUS  REPORTS— NEW  SERIES.  121 

1908.]  Benson  et  al  r.  Columbia  Life  Ins.  Co. 

to  practically  wind  up  a  corporation.     Cincinnati,  Hamilton  & 
Dayton  B.  B.  Co.  v.  Duckworth,  2  C.  C,  518. 

Particular  attention  may  be  called  to  the  following  languagt 
of  Judge  James  M.  Smith  in  Cincinnati  v.  Duckworth,  which 
would  seem  to  be  applicable  (p.  528) : 

"The  fact  therein  stated,  that  the  former  officers  of  the  com- 
pany have  so  fraudulently  conducted  its  affairs  as  to  cause  great 
loss  to  it,  and  probably  render  it  insolvent,  and  which  had  been 
negligently  permitted  by  three  of  the  present  directors,  while 
there  was  no  pretense  or  claim  that  the  present  board,  a  ma- 
jority of  whom  had  no  connection  in  any  manner  with  such 
fraudulent  acts,  were  not  now  conducting  the  business  with  the 
greatest  wisdom  and  skill,  obviously  did  not  entitle  the  plaintiff, 
as  a  share-holder,  to  have  a  receiver  appointed  as  prayed  for,  to 
take  the  possession  and  management  of  the  defendant's  railroad, 
and  of  all  its  business  and  affairs,  simply  that  he  might  state  an 
account  thereof,  and  of  the  finances  of  the  company  so  that  if  it 
were  necessary  to  sell,  the  court  might  so  order,  and  make  distri- 
bution of  the  proceeds  according  to  law.  This  makes  the  ap- 
pointment of  the  receiver  the  primary  and  principal  object  of 
the  suit,  and  not  an  ancillary  process  of  the  court,  necessary  to 
effectuate  some  other  relief  prayed  for." 

And  again  at  page  532 : 

"The  difficulty  which  presents  itself  to  us  is  this:  Do  the 
facts  as  found,  or  the  evidence  in  the  case,  show,  any  necessity 
whatever  for  a  resort  to  this  extreme  measure  1  Were  any  good 
reasons  disclosed  in  either,  to  render  it  at  all  probable  that  the 
present  board  of  directors  would  not  at  once,  and  in  good  faith, 
obey  an  injunction  against  them  as  actually  entered  by  the 
courtT  If  it  be  admitted  that  they  have  erred  in  judgment  in  the 
purchase  of  these  claims  against  Ives,  and  the  collaterals  at- 
tached thereto,  and  have  done  that  which  the  law  forbids  in  such 
purchase  (and  this  is  all  that  is  found,  and  there  is  nowhere  any 
finding  of  bad  faith  on  the  part  of  the  directors  in  such  acts), 
and  the  court  enjoins  them  from  such  acts  in  the  future,  and  for- 
bids the  payment,  from  the  assets  of  the  company,  of  obligations 
already  contracted  therefor,  what  is  there  in  the  case  to  raise  the 
presumption  that  the  order  will  not  be  obeyed  T  We  are  not  able 
to  see  anything  whieh  will  justify  such  an  opinion.  On  the  con- 
trary, the  fair  and  strong  presumption,  in  the  absence  of  any- 
thing suggesting  the  contrary,  would  be,  that  these  directors,  to 


122  SUPERIOR  COURT  OP  CINCINNATI. 

Benson  et  al  v.  Columbia  Life  Ins.  Co.    [Vol.  VII,  N.  S. 

which  the  stockholders  in  this  time  of  trial  and  peril,  with  knowl- 
edge of  the  facts,  have  entrusted  their  interests,  and  who  are 
shown  beyond  all  controversy  to  be  men  of  great  sagacity  and 
wisdom  in  business  affairs,  and  who  apparently  are  justly  en- 
titled to  the  confidence  of  the  community  in  which  they  live, 
several  of  whom  have  in  time  past  been  connected  with  the 
management  of  the  affairs  of  the  company  in  the  time  of  its 
highest  and  most  extraordinary  prosperity,  and  who  are  now 
well  advised  as  to  its  interests  and  all  of  whom  appear  exceed- 
ingly diligent  in  their  efforts  to  bring  about  a  better  condition 
of  things,  would,  as  good  citizens,  obey  any  order  the  court  might 
make,  even  if  in  their  efforts  to  aid  the  company  they  have  gone 
further  than  they  should  have  done." 

See,  also,  that  the  receivership  must  be  ancillary  to  some 
other  equitable  relief.    Rapp  v.  Relief  Co.,  10  C.  C— N.  S.,  575. 

Plaintiffs  suggest,  however,  that  they  may  amend  their  pe- 
tition, and  ask  for  such  other  general  equitable  relief  as  the  case 
may  warrant  (Draper  v.  Moore,  2  C.  S.  C.  R.,  167),  and  it  is  in- 
timated that  an  accounting  may  be  necessary.  This,  however, 
would  seem  to  fall  within  reasons  given  in  the  Duckworth  case, 
supra,  at  page  528. 

It  is  furthermore  contended  that  a  receiver  would  be  necessary 
to  make  the  injunction  effective  if  that  relief  is  to  be  granted. 
In  short,  that  there  has  been  such  gross  mismanagement  and 
fraud  (legal)  that  when  the  assets  are  compared  with  the 
liabilities,  as  a  net  result  of  the  transactions  above  referred  to, 
there  is  a  deficiency  of  forty  per  cent;  and  if  not  that,  of  from 
twenty  to  forty  per  cent.,  in  which  event,  it  is  claimed,  the  com- 
pany is  insolvent  within  the  purview  of  the  insurance  laws  of 
the  state  and  so  incapacitated  from  further  transacting  busi- 
ness; and  further  that  the  company  is  actually  insolvent  in  the 
strict  legal  sense.  That  the  court  will  therefore  not  only  enjoin 
the  illegal  acts,  but  since  it  is  evident  the  business  can  not  go 
on,  that  it  will  appoint  a  receiver  to  make  the  injunction  ef- 
fective, and  conserve  the  assets  for  the  benefit  of  the  share- 
holders and  policy-holders. 

This  court  has  already  determined  that  mere  mismanagement 
is  a  thing  that  can  be  regulated  by  share-holders  themselves 


NISI  PRIUS  REPORTS— NEW  SERIES.  128 

1908.]  Benson  et  al  v.  Columbia  Life  Ins.  Co. 

within  the  corporation,  and  that  unaccompanied  by  fraud  it  is 
not  sufficient  to  warrant  a  receiver.  Goebel  v.  Berancourt  Brew- 
ing Co.,  7  Nisi  Prius,  230. 

In  the  Rehn  case,  Judge  Smith  pointed  out  that  where  the 
acts  complained  of  were  free  from  moral  turpitude  there  could 
be  no  receiver.  North  Fairmount  Building  Assn.  v.  Rehn,  6  Nisi 
Prius,  193. 

In  view  of  these  authorities,  and  the  facta  in  this  case,  cases 
to  which  I  have  been  cited  by  plaintiffs,  involving  acts  of  moral 
turpitude  on  the  part  of  the  directors,  or  the  looting  by  them  of 
the  corporation,  or  where  it  was  manifest  that  there  was  danger 
of  instant  loss  notwithstanding  an  injunction  (exception  re- 
ferred to  in  the  Duckworth  ease),  or  where  the  corporate  busi- 
ness was  abandoned,  or  was  being  carried  on  contrary  to  the 
purposes  of  the  charter,  or  in  contravention  of  law,  or  illegally, 
are  not  applicable  unless  by  analogy  where,  as  is  claimed  here, 
that  the  past  and  present  fraudulent  (constructive)  acts  of  these 
managing  officers  have  absolutely  incapacitated  the  company  to 
the  extent  that  it  can  no  longer  carry  out  the  objects  for  which 
it  was  incorporated,  and  that  no  future  is  apparent  for  the 
company. 

Prom  what  has  already  been  said,  it  is  manifest  that  this  is 
not  a  case  involving  actual  fraud,  or  looting,  or  abandonment, 
or  attempt  to  carry  out  an  illegal  purpose,  or  an  attempt  to  do 
an  unlawful  business.  Indeed,  actual  fraud  is  expressly  dis- 
claimed. While  the  evidence,  it  is  true,  shows  some  irregulari- 
ties, nothing  appears  from  which  the  court  could  say  otherwise 
than  that  the  board  of  directors  and  the  executive  committee  were 
always  actuated  by  the  best  motives  and  for  the  best  interests 
of  the  company,  though  they  may  have  made  mistakes  in  judg- 
ment and  may  have  even  undertaken  to  act  illegally,  on  which  I 
now  express  no  opinion. 

But  what  does  the  testimony  show  as  to  the  claims  of  mis- 
management and  fraud  (legal)  T 

(a)  Have  the  managing  agents  by  mismanagement  and 
fraud  rendered  this  company  insolvent  under  the  insurance  laws 
to  the  extent  that  they  are  no  longer  able  to  carry  on  the  busi- 
ness f 


124  SUPERIOR  COURT  OF  CINCINNATI. 

Benson  at  al  v.  Columbia  Life  Ins.  Co.    [Vol.  VII,  N.  S. 

(ft)  Have  they  rendered  the  company  insolvent  in  a  strict 
legal  sense  T 

The  first  proposition  involves  a  consideration  of  Section  274, 
Revised  Statutes  of  Ohio. 

"When  it  appears  to  the  superintendent,  from  examination, 
or  otherwise,  that  the  assets  of  any  insurance  eompany  organized 
under  the  laws  of  this  state,  after  deducting  therefrom  all 
liabilities,  including  reinsurance,  reserve  or  unearned  premium 
fund  computed  according  to  the  laws  of  this  state,  are  reduced 
twenty  per  cent,  or  more  below  the  capital  required  by  law,  he 
shall  require  such  company  to  restore  such  deficiency  within 
such  period  as  he  designates  in  such  requisition.  In  case  such  de- 
ficiency is  more  than  forty  per  cent,  of  the  capital  required  by 
law,  it  shall  be  unlawful  for  such  company  to  issue  any  new 
policies  or  transact  any  new  business  until  the  superintendent 
of  insurance  issues  to  such  companies  a  license  authorizing  it 
to  resume  business,  or  until  the  court  has  rendered  its  decision 
in  the  case  as  provided  in  section  two  hundred  and  seventy-six. 
Revised  Statutes.  In  case  such  deficiency  is  more  than  twenty 
per  cent,  ftnd  less  than  forty  per  cent,  of  the  capital  required  by 
law  and  the  officers  of  the  company  certify  that  the  deficiency 
will  be  restored  by  the  eompany,  then  it  will  be  lawful  for  the 
company  to  continue  business  as  before  the  issuing  of  the  requisi- 
tion for  the  term  of  thirty  days  from  the  date  thereof,  and  if 
at  the  expiration  of  the  thirty  days  any  portion  of  the  deficiency 
is  not  restored,  the  company  shall  not  issue  any  new  policies 
or  transact  any  new  business  until  authorized  by  the  superin- 
tendent, or  until  the  court  has  rendered  its  decision  in  the  case 
as  provided  in  Section  276,  Revised  Statutes." 

It  will  be  observed  that  this  section  does  not  confer  any  au- 
thority upon  a  court  of  equity  to  wind  up  the  affairs  of  the  cor- 
poration. The  section  is  found  in  the  chapter  relating  to  the 
duties  of  the  superintendent  of  insurance  and  its  cardinal  object 
seems  to  be  protection  to  the  public  (see  Section  275). 

It  will  be  observed,  further,  that  this  action  is  not  instituted 
by  the  insurance  commissioner,  or  superintendent  of  insurance, 
but  is  an  action  of  share-holders  and  policy-holders  (creditors) . 

I  find  no  authority  whatever  justifying  the  usurpation  by 
share -holders,  policy-holders  or  creditors  of  this  statute  on  an 
application  of  this  character,  to  enforce  the  practical  winding  up 


NISI  PRIUS  REPORTS— NEW  SERIES.  125 

1908.]  Benson  et  al  v.  Columbia  Life  Ins.  Co. 

of  the  company,  and  I  do  not  think  a  court  of  equity  is  warranted 
by  any  of  the  provisions  of  said  section,  in  enlarging  its  juris- 
diction (Morawetz  on  Corporations,  Section  657,  first  edition; 
Cook  on  Stockholders,  Section  629,  second  edition;  High  on 
Receivers,  Section  288,  second  edition),  to  wind  up  a  corpor- 
ation, in  a  suit  by  the  share-holders  or  policy-holders. 

Section  274,  Revised  Statutes,  gives  a  remedy  at  taw  for  the 
abuses  therein  referred  to,  and  it.  prescribes  the  particular  legal 
remedy  that  is  to  be  pursued.  That  the  superintendent  of  in- 
surance is  the  proper  party  to  start  Section  274  in  motion,  see 
Ward  v.  F arwett,  97  111.,  615,  616. 

Nor  is  Richardson  v.  People's  Life  and  Accident  Co.,  92  S. 
W.,  284  {Ct.  of  App.  of  Ky.),  to  .which  I  am  cited  by  plaintiff's 
authority,  to  the  contrary.  In  that  case  the  court  simply  held 
the  policy-holder  was  not  compelled  to  wait  until  the  official 
designated  by  a  similar  statute  had  proceeded.  Enough  is  set  out 
in  the  bare  statement  of  the  facts  in  the  Kentucky  case,  to  show 
that  the  creditors  were  amply  justified  in  invoking  the  equitable 
power  of  the  court,  independent  of  the  statute,  and  the  ratio 
decendi  was,  that  the  creditors  in  the  equity  proceeding  who 
first  applied  for  a  receiver,  were  not  to  be  precluded  because 
the  Attorney-General  subsequently  proceeded  under  the  statute. 

It  would  thus  seem  that  Section  274  ought  to  be  eliminated 
from  further  consideration.  Even  if  this  were  not  so,  appreci- 
ating as  I  do,  that  the  word  "liabilities"  as  used  in  that  act  is 
not  synonymous  with  the  word  "debt"  (Lally  v.  Farr,  6  Ohio 
Nisi  Prius,  76),  still  I  have  very  grave  doubts'whether  a  court 
of  equity  called  upon  to  exercise  its  discretion  (in  an  action  in 
which  the  public  is  not  presently  concerned,  but  in  which  the 
court  is  concerned  with  the  besL  interests  of  all  the  share-holders 
and  policy-holders)  should  interpret  that  term  in  the  broadest 
possible  sense  and  construe  it  to  include  the  most  contingent  of 
liabilities.  In  any  event,  in  an  action  of  this  character  if  a 
reasonable  defense  appears  and  such  is  shown  here,  the  claim 
ought  not  he  regarded  as  a  liability. 

To  adopt  the  very  broad  construction  urged  by  plaintiffs  (it 
is  pointed  out  that  the  amended  statute  omits  the  word  "actual," 


126  SUPERIOR  COURT  OP  CINCINNATI. 

Benson  et  al  v.  Columbia  Life  Inn.  Co.    [Vol.  VII,  N.  S. 

leaving  the  word  "liability"  to  stand  alone)  would  put  it  with- 
in the  power  of  a  disgruntled  and  disappointed  share-holder, 
by  the  mere  assertion  of  a  pretended  claim,  supported  by  evi- 
dence however  flimsy,  providing  only  the  claim  were  made  suffi- 
ciently large,  to  render  insolvent  on  mere  figures  the  most  solv- 
ent company  in  the  world  on  stubborn  facts  and  thus  throw 
it  into  the  hands  of  a  receiver  and  wreck  the  enterprise. 

The  doubts  I  have  as  to  the  application  of  Section  274  and 
also  as  to  the  construction  sought  to  be  placed  on  the  word 
"liabilities"  by  plaintiffs  are  sufficient  to  cast  out  the  Hansen 
claim  (growing  out  of  the  Chicago  suit  and  amounting  to  about 
$65,000,  including  interest)  as  a  liability  and  practically  all  of 
the  other  alleged  "liabilities.'-' 

As  was  said  by  Judge  Pugh  in  32  W.  L.  B.,  p.  86 : 

"If  plaintiff's  eounsel  are  sound  in  their  interpretation  of  the 
term  'expenses,'  $8,300  of  the  mortuary  fund  has  been  used 
during  1893  and  1894  to  pay  expenses.  But  there  is  a  consider- 
ation which  casts  some  doubt  upon  the  soundness  of  their  con- 
struction, and  that  would  be  enough  to  defeat  the  application 
for  a  receiver  on  this  ground.  It  is  not  necessary  to  demonstrate 
that  they  are  wrong  in  their  interpretation;  a  doubt  is  enough." 

Having  thus  eliminated  the  Hansen  claim,  the  liabilities.  if 
any,  are  certainly  below  the  alleged  forty  per  cent,  clause  re- 
ferred to  in  Section  274.  It  is  claimed  that  there  were  certain 
special  deposits,  namely,  $5,900,  $9,200,  $10,800,  and  that 
these  were  liabilities  and  debts  of  the  company. 

The  testimony  with  reference  to  these  alleged  deposits,  how- 
ever, proves  nothing  of  the  kind.  Plaintiffs  themselves  in  brief 
admit  that  the  testimony  in  regard  to  these  so-called  debts  is 
not  clear,  but  a  court  of  equity  will  not  grant  a  receiver  unless 
a  case  of  "persuasive  clearness  is  proved"  (Baker  v.  Fraternal 
Mystic  Circle,  supra),  or  unless  one's  claim  of  right  is  reasonably 
free  from  doubt.     Alderson  on  Receivers.  Section  7,  pp.  10-11. 

Reading  the  testimony  of  Mr.  Luken  I  find  nothing  from  which 
I  could  say,  with  positiveness,  that  the  sums  of  $5,900,  $9,200  and 
$10,800  are  liabilities  or  debts  in  any  sense.  On  the  contrary.  I 
think  I  am  justified  in  saying  that  the  evidence  fails  to  show 
anything  due  and  owing  on  such  account. 


NISI  PRIUS  REPORTS—NEW  SERIES.  127 

1908.]  Benson  et  al  v.  Columbia  Life  las.  Co. 

In  regard  to  the  C.  B.  Matthews  transaction,  I  fail  to  see 
how  the  Norwood  Bank,  which  holds  the  note  of  Mr.  Matthews, 
can  look  in  law  to  any  one  save  Mr.  Matthews  for  its  payment, 
and  I  do  not  think  it  is  contended  that  it  does  look  to  the  com- 
pany. But  plaintiffs  ask  me,  as  I  understand  it,  as  a  substitute 
for  proof,  to  invoke  a  recognized  equitable  principle  and  look 
through  form  to  substance  and  declare  this  $6,300  transaction 
a  debt  of  the  company. 

I  take  it,  however,  that  it  would  not  be  looking  to  the  equities 
of  the  entire  case,  and  that  it  would  not  be  subserving  the  best 
interests  of  all  to  saddle  upon  all,  if  only  for  the  purpose  of 
this  hearing,  a  debt  which  Mr.  Matthews  owes,  acknowledges,  and 
which  he  alone  is  legally  obligated  to  pay. 

If  a  commission  ($80)  has  been  paid  Blanton,  on  this  trans- 
action, and  the  evidence  shows  such  is  the  fact,  or,  if  the  interest 
has  been  paid  on  this  amount  by  the  device  of  special  salaries, 
and  the  evidence  shows" such  is  the  fact,  there  is  a  way,  I  think, 
to  recover  these  amounts,  without  the  intervention  of  a  receiver. 
I  think,  however,  this  intimation  will  suffice  to  deter  further 
payments  of  interest  on  this  Matthews  transaction,  although  [ 
understand,  under  the  evidence,  that  nothing  has  been  paid 
thereon  since  January  1st,  1908. 

As  to  the  death  claims,  the  policies  under  which  same  are 
claimed,  are  not  unconditional  promises  to  pay. 

There  seems  to  be  reasonable  grounds  according  to  the  evi- 
dence for  resisting  those  which  are  not  paid.  Some  of  these 
policies  appear  to  be  reinsured  and  consequently  their  liability 
to  such  extent  is  reduced  pro  tanto. 

Another  policy  is  covered  by  collateral,  and  in  still  another 
case  the  defense  is  that  the  policy  lapsed  before  any  legal  claim 
thereon  could  have  matured,  and  another  policy  is  resisted  on 
the  ground  of  fraud.  All  of  this  appearing,  I  do  not  see  how 
they  afford  any  ground  as  debts  or  liabilities  to  declare  a  receiver 
necessary,  especially,  since  it  appears  that  the  surplus  at  the  end 
of  December,  1907,  was  in  excess  of  the  total  of  such  claims, 
provided,  however,  that  the  sum  involved  in  the  Interstate 
transaction  is  neither  a  liability  nor  a  debt  of  this  company. 


128  SUPERIOR  COURT  OF  CINCINNATI. 

Benson  et  al  v.  Columbia  Life  Ins.  Co.    [Vol.  Til,  N.  S. 

Now  this  transaction  grows  out  of  the  taking  over  by  this 
company  of  about  one  million  and  a  half  of  the  Interstate  Com- 
pany's insurance.  This  was  done  or  attempted  to  be  done  in 
the  formal  way  prescribed  by  statute;  whether  the  transaction 
■  was  legal  or  not,  I  do  not  now  determine.  The  agreement,  Ex- 
hibit 15,  inter  alia  recites: 

"It  appears  to  said  commissioner  that  the  payment  by  said 
the  Columbia  Life  Insurance  Company  to  the  said  Interstate 
Life  Insurance  Company  of  $25  per  $1,000  on  insurance  of  said 
the  Interstate  Life  Insurance  Company,  in  pursuance  of  said 
contract,  would  impair  the  capital  of  $100,000  of  the  Columbia 
Life  Insurance  Company.  Thereupon  said  Felix  G.  Cross  sub- 
mitted to  said  commissioner  a  paper  writing,  certifying  that  none 
of  the  assets  of  the  said  the  Columbia  Life  Insurance  Company 
would  be  used  in  payment  of  any  sums  to  be  paid  under  such 
contract  by  said  the  Columbia  Life  Insurance  Company  to  the 
said  the  Interstate  Life  Insurance  Company;  that  all  funds  re- 
quired to  pay  the  said  the  Interstate  Life  Insurance  Company  iu 
carrying  out  the  said  contract  will  be  advanced  by  the  said 
'Felix  G.  Cross  to  the  said  the  Columbia  Life  Insurance  Com- 
pany without  any  liability  of  said  company  to  him  for  such  ad- 
vancement, but  with  the  expectation  of  reimbursement  to  him 
only  from  surplus  contributed  to  the  said  the  Columbia  Life  In- 
surance Company  by  persons,  whom  in  the  future  may  purchase 
stock  in  such  company  which  said  paper  writing  is  hereto  at- 
tached, on  condition  that  none  of  the  assets  of  the  said  the 
Columbia  Life  Insurance  Company  shall  be  paid  to  said  the 
Interstate  Life  Insurance  Company,  and  on  condition  that  funds 
necessary  to  pay  the  said  stipulated  price  of  $25  per  $1,000  of 
insurance  in  foree  will  be  paid  as  aforesaid  by  said  Cross,  the 
said  contract  of  reinsurance  is  by  said  commissioner  hereby  ap- 
proved, subject,  however,  to  the  following  modifications: 

"Said  the  Columbia  Life  Insurance  Company  shall  be  directly 
liable  at  the  suit  of  and  to  the  policy-holders  of  said  the  Inter- 
state Life  Insurance  Company  upon  any  and  all  claims  arising 
under  the  policies  of  the  said  the  Interstate  Life  Insurance  Com- 
pany for  which  the  said  the  Columbia  Life  Insurance  Company 
may  be  liable  under  such  contract." 

Dr.  Cross  advanced  the  necessary  $40,500  without  any  liability 
to  the  company,  and  the  company  received  a  very  valuable  asset 
in  the  Interstate  business. 


NISI  PRIUS  REPORTS— NEW  SERIES.  129 

1308.]  Benson  et  al  v.  Columbia  Life  Ins.  Co. 

Now,  the  directors  realizing  this  company  acquired  the  bene- 
fit of  the  Interstate  business  and  believing  the  Gross  advance 
to  be  a  moral  obligation  of  the  company,  undertook  in  good  faith 
by  a  method  called  "special  salaries"  to  reduce  the  amount  of 
this  advancement  to  $34,500  (exclusive  of  $2,000  Sumner  Cross 
commission,  and  with  regard  to  which  sum  I  do  not  understand 
how  plaintiffs  can  complain). 

They  voted  special  salaries  to  certain  officials  and  they  ap- 
plied the  amount  so  voted  on  this  advance  as  part  payment. 
While  it  is  conceded  by  plaintiffs  that  the  amount  voted  to  each 
officer  added  to  the  actual  salary  now  received  by  such  officer, 
does  not  render  the  particular  official's  salary  excessive,  never- 
theless, in  view  of  the  contract  above  referred  to,  I  do  not  think 
this  action  of  the  managing  officers  was  proper  even  if  the  direc- 
tors believed  in  good  faith  that  it  was  the  proper  thing  to  do. 
It  was  an  evasion  of  the  conditions  of  the  contract  which  per- 
mitted the  taking  over  by  the  company  of  the  Interstate  busi 
ness,  and  that  advance  of  Cross,  if  it  is  to  be  paid  at  all,  musl 
be  paid  in  the  manner  therein  specified  and  in  no  other  way. 
But  shall  this  court  in  the  exercise  of  the  discretion  invested  in 
it  be  guilty  of  the  same  wrong,  and  undertake  to  circumvent  the 
provisions  of  that  agreement  by  declaring  this  $40,500,  or  as  it 
now  stands  $34,500,  to  be  a  liability  or  debt  of  the  share-holders 
— of  this  company — merely  because  of  some  allegations  in  one 
part  of  the  answer  of  these  defendants  by  which  it  seems  to  be 
admitted  that  this  is  a  debt,  although  in  another  part  of  the 
same  answer  it  is  unequivocally  stated  that  it  is  an  indebtedness 
of  Cross  T  Or  shall  I  declare  it  a  debt  or  liability  merely  be- 
cause the  executive  committee  "deemed  it  wise  to  pay  it"  and 
issued  a  check  therefor  (January,  1908),  subject  to  the  approval 
of  the  board,  which  check,  however,  the  board  of  directors 
promptly  refused  to  pay  and  ordered  canceled! 

Once  before  in  the  history  of  this  company  some  $9,000  on 
account  of  this  advance  was  paid  by  a  method  other  than  that 
contemplated  by  the  agreement  referred  to.  The  insurance  com- 
missioner became  cognizant  of  the  fact.  Did  he  with  the  in- 
terest of  the  public  in  mind  regard  the  entire  $40,500  as  a  ma- 


180  SUPERIOR  COURT  OP  CINCINNATI. 

Benson  et  al  v.  Columbia  Lite  Ins.  Co.    [Vol.  VII,  N.  S. 

tured  debt  or  a  liability  T  Certainly  not.  He  simply  did  what  he 
doubtless  will  do  again  with  reference  to  the  amount  advanced 
as  special  salaries.  He  ordered  the  $9,000  paid  back,  and  it  was 
paid  back. 

Plaintiffs  in  this  case  earnestly  pray  that  the  company  be  en- 
joined from  paying  Felix  G.  Cross  or  his  assigns  $34,500  illegally 
and  wrongfully  claimed  by  him  from  said  company. 

But  in  the  argument  on  this  motion  they  ask  me  to  consider 
it  as  a  debt  or  liability  and  to  hold  the  capital  stock  impaired 
pro  tanto. 

If  the  injunction  should  be  granted  as  prayed  for  on  the 
ground  it  was  neither  a  liability  nor  debt,  it  would  seem  to  me  to 
be  somewhat  of  a  paradox  if  a  receiver  were  to  be  appointed  at 
this  time  on  the  ground  it  is  a  liability  or  debt. 

Again,  if  I  hold  this  to  be  a  debt  now,  then  surely  there  could 
be  no  ground  upon  which  to  order  an  injunction.  In  sueh  event, 
what  becomes  of  the  argument  that  the  injunction  here  is  the 
ultimate  relief,  and  that  a  receiver  is  necessary  to  make  same 
effective  T 

Or  if  it  be  the  argument  of  plaintiffs  that  because  of  the  al- 
leged admissions  of  defendant  in  their  answer,  and  because  of 
past  and  present  fraud  they  fear  the  $34,500  will  be  paid  by 
other  devices  and  shifts,  I  would  say,  following  the  example  of 
the  circuit  court  in  the  Duckworth  case,  that  this  court  is  satis- 
filed,  considering  the  personnel  of  the  board,  that  this  will  not  be 
done  pending  the  hearing  on  injunction.  And  if  on  hearing  an 
injunction  should  appear  to  be  necessary,  and  that  remedy  of 
equity  would  be  sufficient  to  prevent  the  payment  of  the  Cross 
advance  (and  there  is  no  reason  to  .believe  such  order  would  not 
be  obeyed),  it  would  not  be  necessary  to  appoint  a  receiver  and 
practically  wind  up  this  company.  5  Pomeroy  Equity  Juris- 
prudence, 121,  note  271. 

But  as  nothing  has  been  done  by  way  of  payment  on  this  ac- 
count since  January  of  this  year,  and  as  no  evidence  is  offered 
to  prove  that  an  attempt  is  about  to  be  made  to  pay  same,  and 
as  the  evidence  completely  fails  to  show  that  Dr.  Cross  is  press- 
ing for  payment,  or  that  anything  is  due  and  payable  thereon, 


NISI  PRIUS  REPORTS—NEW  SERIES.  181 

1908.)  Benson  et  al  v.  Columbia  Life  Ina.  Co. 

I  see  in  this  no  "pressing  apparent  necessity"  calling  for  the  ap- 
pointment of  a  receiver. 

'  The  capital  stock 'and  the  legal  reserve  of  this  company  is  in- 
tact. The  company  has  $4,600,000  business  on  its  books.  If  this 
business  is  worth  from  thirty-five  to  forty  dollars  a  thousand,  as 
already  pointed  out,  and  this  testimony  is  not  denied,  this  is  a 
very  valuable  asset  and,  in  the  ordinary  sense  of  the  word,  the 
company  makes  a  clear  showing  of  solvency. 

The  actuary  (Mr.  Hyde)  testifies  that  all  the  debts  of  the 
company  have  been  paid  as  they  matured  in  the  ordinary  course 
of  business.  This  being  so,  this  company  is  also  solvent  in  the 
strict  legal  sense.  American  Hosiery  Co.  v.  Baker,  18  C.  C,  604 ; 
MitckeU  v.  Gazzam,  12  Ohio,  315. 

The  case  of  Insurance  Go.  v.  Auditor,  101  111.,  82-92,  to  which 
I  am  cited  by  plaintiffs,  might  be  authority  as  to  what  consti- 
tutes insolvency  of  an  insurance  company  under  proceedings 
properly  instituted  under  a  section  similar  to  274,  but  has  no 
application  in  a  proceeding  of  this  character. 

As  an  additional  argument  on  the  company's  inability  to 
proceed,  it  is  claimed  that  the  company  is  now  precluded  by 
virtue  of  an  Illinois  statute  from  doing  business  in  Illinois  be- 
cause of  the  removal  by  its  attorneys  of  the  Hansen  suit  to  the 
_  United  States  Court.  It  may  be  that  the  facts  may  not  bring 
the  case  within  the  terms  of  the  statute,  but  I  think  I  need  only 
say  now  that  this  expulsion  statute  of  Illinois  does  not  seem  to 
be  automatic.  The  question  is  not  yet  determined,  and  therefore 
it  does  not  appear  that  this  company  is  already  excluded  from 
that  jurisdiction,  nor  does  it  appear  that  it  necessarily  will  be. 

Nor  does  the  fact,  if  it  is  a  fact,  that  this  company  is  not 
doing  any  new  business  because  of  alleged  withholding  of  its 
license  by  the  insurance  commissioner,  prove  that  the  company 
can  not  or  will  not  ultimately  proceed,  or  that  the  company  is 
doing  business  unlawfully. 

If  I  may  not  consider  the  provisions  of  Section  274  with 
reference  to  determining  "liabilities"  as  therein  specified,  then 
certainly  I  ought  not  consider  a  particular  clause  therein  to 
support  a  finding  to  the  effect  that  the  company  is  doing  busi- 
ness unlawfully. 


182  FRANKLIN  COUNTY  COMMON  PLEAS. 

Rose  v.  Baxter  et  al.  (Vol.  VII,  N.  8. 

I  find  nothing  in  the  facts  or  in  the  law  that  would  justify 
me  in  now  saying  that  this  company  is  doing  business  unlaw- 
fully. "While  the  evidence  discloses  irregularities,  as  I  have 
pointed  out,  I  fail  to  find  any  substantial  ground  on  which  a . 
court  of  equity  having  an  eye  single  to  the  interests  of  every- 
body in  this  case  can  appoint  a  receiver  as  prayed  for. 

The  application  for  a  receiver  is  accordingly  refused. 


LICENSE  REVOKED  OF  PHYSICIAN  PRACTICING  UNDER. 
TWO  NAMES. 

Common  Pleas  Court  of  Franklin  County. 

E.  J.  Rose  v.  H.  H.  Baxter  et  al. 

Decided,  May  16,  1908. 

Physician — Revocation  of  License  of— Authority  of  State  Board  of  Ex- 
aminer*— Not  Clothed  Kith  Administrative  Functions — Qross  Im- 
morality not  on  Indefinite  Term — Section  HOSc. 

1.  The  expression  "gross  Immorality"  has  acquired  through  long  use 

&  standard  ot  interpretation  and  understanding  that  prevents  Its 
being  longer  subject  to  the  charge  ot  being  Indefinite,  and  the" 
provisions  of  the  act  establishing  a  state  board  ot  medical  ex- 
aminers which  authorizes  the  board  to  revoke  a  certificate  for 
gross  immorality  Is,  therefore,  not  void  for  want  of  dennlteness, 
or  because  the  question  of  what  constitutes  gross  Immorality  is 
left  to  the  caprice  ot  individual  members  of  the  board. 

2.  A  physician  who  maintains  two  different  offices  under  two  different 

names  and  under  circumstances  which  indicate  an  intention  to 
perpetuate  a  fraud  upon  the  public  In  his  professional  character 
Is  guilty  of  gross  Immorality  within  the  meaning  of  the  act  in 
question,  and  an  Injunction  against  the  revocation  of  his  license 
will  not  He. 

Foran,  Pearson  &  Powell  and  Thomas  E.  Powell,  for  plaintiff. 
Wade  H.  Ellis,  Attorney-General,  Smith  W.  Bennett   and 
Clarence  D.  Laylin,  contra. 


NISI  PRIUS  REPORTS— NEW  SERIES.  188 

1908.]  Rose  v.  Baxter  et  al. 

Dillon,  J. 

Certain  of  the  grounds  alleged  end  argued  in  favor  of  the 
plaintiff's  case  may  be  very  quickly  disposed  of.  Allegations 
in  the  petition  to  the  effect  that  the  defendants  intend  to  re- 
voke by  a  false  interpretation  of  the  law;  that  the  members 
of  the  board  have  a  prejudice  against  the  plaintiff;  and  tfcat 
a  minority  of  the  board  may  proceed  to  attempt  to  exercise  the 
functions  of  the  board;  and  further  that  one  member  of  the 
board  of  appeal,  to-wit,.  "the  Attorney-General,  is  prejudiced, 
are  neither  sufficient  as  a  matter  of  fact  nor  sufficient  as  a  matter 
of  law  to  warrant  a  court  in  granting  an  injunction. 

So  far  as  the  law  is  concerned,  it  is  very  questionable  and 
indeed  without  precedent,  as  far  as  I  know,  that  such  allegations 
will  be  permitted  to  interfere  with  the  exercise  of  the  functions 
of  the  board.  Further,  as  a  matter  of  law,  these  allegations  are 
made  in  the  petition  upon  information  and  belief,  even  though 
sworn  to  positively -in  the  affidavit. 

But  aside  from  the  legal  phase  of  the  question,  the  facts  in 
the  case  are  overwhelmingly  against  the  plaintiff's  allegations 
on  this  point,  and  nothing  need  further  be  said  on  it. 

The  allegation  is  further  made  that  the  board  has  no  authority 
to  revoke  or  hear  the  case,  because  the  plaintiff  was  a  practic- 
ing physician  prior  to  July  1,  1900.  On  this  point,  the  conten- 
tion of  the  Attorney-General  in  his  brief  is  correct,  and  I  think 
the  argument  is  unanswerable,  that  the  plaintiff  has  no  such 
rights  to  be  exempted  from  the  operation  of  the  original  stat- 
ute and  amendment  thereto,  and  the  act,  therefore,  can  not  be 
and  is  not  retroactive  or  ex-post  facto. 

The  allegation  in  the  petition  is  made  that  the  act  does  not 
provide  for  a  trial,  but  this  is  not  insisted  upon,  and  it  clearly 
appears  from  the  act  that  a  trial  is  provided  for,  and  this  is 
what  the  board  was  proceeding  to  give  when  the  temporary 
order  was  granted. 

The  allegation  that  there  is  no  appeal  or  hearing  in  a  court 
of  law  is  not  pressed  in  argument,  and  it  must  be  apparent  from 
the  eases  that  no  such  right  exists  to  a  person  exercising  a 
privilege  or  license  under  the  power  of  the  state  acting  through 
its  Legislature. 


184  FRANKLIN  COUNTY  COMMON  PLEAS. 

Rose  v.  Baxter  et  al.  [Vol.  VII,  N.  S. 

The  question  which  I  deem  moat  serious  in  this  case  and 
which,  I  believe,  appeals  to  counsel  on  both  sides  as  being  the 
real  question  of  the  case,  arises  from  the  consideration  of  that 
portion  of  4403c,  which  authorizes  the  board  to  revoke  after  no- 
tice and  hearing,  a  certificate  where  the  physician  has  been  guilty 
at  «ny  time  of  felony  or  of  gross  immorality,  etc. 

That  the  defendant  board  can  not  exercise  what  has  some- 
times been  carelessly  termed  administrative  functions  seems 
conceded.  That  is  to  say,  that  the  legislative  power  has  been 
vested  in  one  body,  and  this  board  can  only  carry  into  effect 
that  which  the  Legislature  itself  has  seen  fit  to  order  and  direct. 
If  the  expression  of  "gross  immorality"  is  so  vague,  so  un- 
certain, so  broad  and  comprehensive,  that  it  gives  to  the  board 
the  sole  power  to  determine  whether  or  not  a  physician's  certifi- 
cate or  license  shall  be  revoked,  and  if  it  furnishes  no  standard 
as  to  qualification,  but  leaves  the  matter  solely  to  the  opinion  of 
the  board  as  it  may  be  constituted,  then  the  plaintiff's  conten- 
tion must  prevail,  and  that  part  of  the  act  which  provides  for 
the  revocation  of  a  certificate  for  gross  immorality  be  held  to 
be  void. 

This  theory  of  the  law  has  been  upheld  in  numerous  cases  and 
obtains  strong  sanction  in  our  own  state  in  the  case  of  Harmon  v. 
State,  66  0.  S.,  249.  In  that  case,  the  opinion  of  which  is  brief, 
the  court  holds  that  the  act  of  March  1,  1900,  with  reference  to 
engineer's  licenses,  was  unconstitutional  and  void,  because  the 
power  was  given  to  the  district  examiner  to  grant  a  license  if 
upon  examination  the  applicant  was  found  "trustworthy  and 
competent. ' ' 

Plaintiff's  contention  has  been  furthermore  upheld  in  a  num- 
ber of  states,  and  he  is  not  without  authority  to  sustain  his  argu- 
ment. The  courts  of  last  resort  in  California,  Arkansas,  Ken- 
tucky, and  also  the  Court  of  Appeals  of  the  District  of  Columbia, 
have  all  held  in  substance  that  the  use  of  a  general  term,  which 
vests  in  a  board  the  duty  of  carrying  out  legislation,  while  it 
is  a  proper  exercise  of  police  power,  yet  the  acts  or  conduct  which 
are  made  the  ground  of  forfeiture  must  be  declared  with  cer- 
tainty and  definiteness;   and  hold,  following  this  general  state- 


NISI  PRIUS  REPORTS— NEW  SERIES.  185 

1908.]  Rose  v.  Baxter  et  al. 

ment  with  which  all  courts  agree,  that  such  general  statements  as 
"gross  immorality"  are  not  sufficiently  certain  and  definite  but 
leaves  the  question  to  the  caprice  of  each  individual  member  of 
the  different  boards  from  time  to  time. 

On  the  other  hand,  however,  we  find  a  majority  of  the  author- 
ities taking  the  view  that  this  language  is  not  so  indefinite  and 
uncertain  as  to  fall  within  the  ban.  Certain  expressions  have 
been  handed  down  to  us  through  the  law  for  centuries  and,  it 
would  seem,  have  received  such  standard  of  interpretation  and 
understanding  that  they  no  longer  are  subject  to  the  charge  of 
being  indefinite.  Thus,  with  reference  to  such  expressions 
as  "gross  neglect  of  duty,"  found  in  our  divorce  laws,  or,  to 
put  a  case  more  nearly  akin  to  the  present  one,  the  ground  for 
which  attorneys  may  be  disbarred  by  the  state,  to-wit,  "unpro- 
fessional conduct,  involving  moral  turpitude."  The  impossi- 
bility is  apparent  of  anticipating  and  naming  in  detail  each 
and  every  specific  act  which  would  constitute  gross  immorality 
or  which  would  constitute  moral  turpitude. 

To  hold,  therefore,  that  gross  immorality  was  so  indefinite 
that  the  board  could  not  carry  out  the  legislative  act  and  in- 
tent without  resorting  to  uncertainty  and  caprice  would  proba- 
bly involve  a  number  of  other  well  settled  laws.  Gross  im- 
morality is  a  term  which  has  been  used  and  has  received  adjudi- 
cation at  the  hands  of  a  great  many  courts.  The  word  "gross" 
does  not  mean  great,  or  big,  or  excessive,  necessarily,  but  rather 
such  a  willful,  flagrant  and  shameful  quality  with  respect  to 
the  office  involved  as  renders  the  officer  unfit  to  hold  his  license 
and  authority  to  act.  Sometimes  the  expression  is  found,  under 
the  law,  "gross  misbehavior."  The  expression  "moral  turpi- 
tude" is  closely  akin  to  the  expression  at  bar  and  has  received 
a  great  many  interpretations,  but  has  always  been  sustained  by 
the  courts  so  far  as  I  have  been  able  to  ascertain,  and  I  find  no 
cases  in  which  it  has  been  held  so  indefinite  as  to  preclude  ac- 
tion against  a  person  guilty  thereof.  The  opinion  in  the  case 
of  Meffert  v.  Board  of  Medical  Registration  of  Kansas,  which 
is  reported  in  66  Kansas,  710,  and  the  authorities  there  quoted, 
is,  it  seems  to  be,  an  answer  to  the  claims  of  the  plaintiff  here 


186  HAMILTON  COUNTY  COMMON  PLEAS. 

Durrell  v.  Traction  Co.  at  al.  (Vol.  VII,  N.  S. 

both  as  to  the  question  of  the  act  being  ex-post  facto  and  as  to 
its  being  in  violation  of  the  plaintiff's  constitutional  rights. 

As  to  the  charge  itself,  while  it  may  be  conceded  that  a 
physician  might  for  some  purposes  and  under  some  circum- 
stances assume  two  names,  yet  there  can  be  but  one  rational 
and  natural  meaning  given  to  the  charges  made  in  this  ease. 
The  charges  are  made  against  the  plaintiff  as  a  physician  in  his 
quasi  public  character  as  such.  Secondly,  it  charges  that  he 
maintained  a  physician's  office  under  the  name  of  Doctor  Jus- 
tin and  at  the  same  time  maintained  an  office  under  the  name 
of  Dr.  E.  J.  Rose,  "intending  thereby  to  perpetrate  a  fraud  upon 
the  public."  This  charge  I  think  is  sufficiently  definite,  and 
charges  as  a  matter  of  fact  an  act  which,  with  reference  to  his 
profession  and  the  law  governing  the  same,  constitutes  gross 
immorality. 

An  entry  may  be  drawn  dissolving  the  temporary  restrain- 
ing order  heretofore  granted  and  making  a  final  judgment  in 
favor,  of  the  defendants  and  dismissing  the  plaintiff's  petition 
at  his  costs.    The  appeal  bond  will  he  fixed  at  $200. 


LIABILITY  FOR  ACCIDENT  DUE  TO  BAD  CONDITION 
OF  COUNTRY  ROAD. 

Common  Pleas  Court  of  Hamilton  County. 

James  W.  Durrell,  Aoministrator,  v.  The  Onto  Traction 
Company  et  al. 

Decided,  March  19,  1908. 

County  Commissioners — Negligence  of,  in  Seeping  Roads  in  Repair— 
Action  Against  for  such  Failure  does  noi  He,  When — Application 
of  Section  8J5  a*  Amended— Punctuation — Pleading. 

1.  Inasmuch  aa  Section  845  Is  In  derogation  of  the  common  law  and 
should  be  strictly  construed,  a  petition  filed  under  this  section 
'  and  asking  tor  damages  against  county  commissioners,  because  ot 
an  accident  growing  out  ot  the  unsafe  condition  ot  a  public  high- 
way, should  clearly  allege  that  the  said  highway  Is  a  state  or 
county  road. 


NISI  PRIUS  REPORTS— NEW  SERIES.  137 

1908.]  Durrell  v.  Traction  Co.  et  al. 

2.  Moreover,  liability  for  such  an  accident  can  attach  to  a  county  only 
when  It  la  made  to  appear  that  the  county  commissioners  had 
been  negligent  with  reference  to  repairs  which  It  was  their  duty 
under  the  law  to  make,  and  that  such  negligence  was  the  cause 
of  the  accident  for  which  damages  are  sought. 

BrOUWELL,  J. 

Heard  on  demurrer  to  petition. 

This  is  an  action  brought  by  the  administrator  of  Lawrence 
Connor  against  the  Ohio  Traction  Company  and  the  board  of 
county  commissioners  of  Hamilton  county  for  injuries  and  sub- 
sequent death  of  said  Connor  by  reason  of  alleged  negligence  on 
the  part  of  defendants  in  not  keeping  a  certain  road  designated 
as  the  Cincinnati,  Springfield  &  Carthage  turnpike  in  proper 
repair,  and  to  this  petition  a  demurrer  has  been  filed  on  behalf 
of  the  county  commissioners  for  the  reason  that  said  petition 
contains  a  misjoinder  of  parties  defendant.  In  argument  it 
is  claimed  by  the  county  solicitor  that  the  county  commissioners 
are  not  liable  for  any  negligence  on  their  part  in  failing  to  main- 
tain and  keep  in  repair  such  roads  as  that  described  in  the  pe- 
tition. 

The  petition,  among  other  things,  alleges  that  said  Cincin- 
nati, Springfield  &  Carthage  Pike  is  a  public  highway  *  *  • 
and  is  under  the  care,  maintenance  and  control  of  the  said  board 
of  county  commissioners;  •  •  •  that  at  all  times  the  defend- 
ants had  the  care,  management  and  control  of  said  turnpike 
and  the  tracks  of  said  traction  line,  and  it  was  the  duty  of  said 
defendants  and  each  of  them  to  keep  the  road-bed  of  said  turn- 
pike in  good  repair,  convenient  and  safe  for  public  travel;  that 
the  rails  of  said  traction  line  were  laid  in  and  upon  the  road- 
bed of  said  turnpike  and  were  a  part  and  it  was  the  duty  of 
said  defendants  and  each  of  them  to  keep  and  maintain  said 
tracks  on  a  level  with  the  road-bed  of  said  turnpike  so  that  the 
same  could  be  crossed  back  and  forth  with  convenience  and 
safety  by  vehicles  of  all  description;  •  •  *  that  for  many 
months  prior  to  the  date  of  the  alleged  accident  and  on  that 
day  the  road-bed  of  said  turnpike  at  the  place  where  the  accident 
occurred  had  been  washed  by  rains  and  worn  by  travel,  until 


188  HAMILTON  COUNTY  COMMON  PLEAS. 

Durrell  v.  Traction  Co.  et  al.  [Vol.  VII,  N.  S. 

the  bed  or  level  of  said  turnpike  was  six  inches  lower  than  the 
top  of  the  rails,  thereby  rendering  said  turnpike  unfit  and 
dangerous  to  cross  and  recross;  *  •  •  that  in  spite  of  the 
faet  that  the  defendants  had  notice  of  the  condition  of  said  road- 
bed and  tracks  they  failed,  neglected  and  refused  to  repair  and 
keep  and  maintain  said  roadbed  and  the  tracks  of  said  trac- 
tion line  in  a  condition  safe  for  public  travel,  and  carelessly  and 
negligently  permitted  said  road-l>ed  to  be  washed  away  and  worn 
by  travel  and  remain  in  the  dangerous  condition  referred  to. 

It  then  sets  out  the  manner  in  which  the  accident  occurred 
to  plaintiff's  intestate,  who  was  riding  on  the  rear  step  of  au 
ice  delivery  wagon  which  was  being  driven  on  said  turnpike; 
that  in  attempting  to  cross  over  the  rails  of  said  traction  line 
the  wheel  of  the  wagon  was  caught  by  the  rails  and  one  of  them 
was  broken  off,  and  as  a  result  the  wagon  fell  upon  the  de- 
cedent, causing  injuries  which  resulted  in  his  death. 

A  similar  demurrer  to  that  filed  by  the  county  commissioners 
has  also  been  filed  on  behalf  of  the  Ohio  Traction  Company. 

The  traction  company  made  no  argument  upon  the  demurrer 
filed  by  it,  but  the  county  solicitor,  in  support  of  the  demurrer  of 
the  county  commissioners,  takes  the  position  that  roads  of  the 
kind  referred  to  in  the  petition  are  not  under  such  control  of 
the  county  commissioners  as  to  render  such  commissioners  liable 
for  injuries  growing  out  of  their  negligence  in  failing  bo  keep 
said  roads  in  repair,  and  adopting  the  reasoning  of  the  lower 
courts  in  the  ease  of  Smith  v.  County  Commissioners,  10  C.  C. 
— N.  S.,  115,  further  claims  that  said  commissioners  have  no 
statutory  duty  to  keep  such  roads  in  repair. 

Prior  to  the  amendment  of  Section  845  (91  0.  L.,  142),  there" 
was  no  right  of  action  against  a  county  or  its  commissioners  for 
damages  sustained  by  the  failure  to  keep  a  road  or  bridge  in  re- 
pair, the  .wording  of  the  statute  at  that  time  being: 

"The  board  of  commissioners  shall  be  capable  of  suing  and 
being  sued,  pleading  and  being  impleaded  in  any  court  of  judi- 
cature and  to  ask,  demand  and  receive,  by  suit  or  otherwise,  any 
real  estate  or  interest  therein,  whether  the  same  is  legal  or  equi- 
table, belonging  to  their  county  or  any  sum  or  sums  of  money 
or  other  property  due  to  such  county," 


NISI  PRIUS  REPORTS— NEW  SERIES.  139 

1908.]  Durrell  v.  Traction  Co.  et  al. 

The  amendment  referred  to  introduced  immediately  after  the 
word  "judicature"  above  the  following; 

"And  of  bringing,  maintaining  and  defending  all  suits,  either 
in  law  or  in  equity,  involving  an  injury  to  any  public,  state  or 
county  road,  bridge  or  ditch,  drain  or  water-course  established 
by  such  board  in  their  county,  and  for  the  prevention  of 
injury  to  the  same ;  and  any  such  board  of  county  commissioners 
shall  be  liable  in  their  official  capacity  for  any  damages  received 
by  reason  of  the  negligence  or  carelessness  of  said  commissioners 
in  keeping  any  such  road  or  bridge  in  proper  repair." 

Reference  to  this  amendment  as  found  in  91  0.  L.,  142,  will 
show  no  punctuation  between  the  word  "public"  and  the  word 
"state"  on  the  fifth  line,  while  the  statute  as  printed  in  the 
last  edition  of  Bates  shows  a  comma  between  those  two  words. 
If  the  former  absence  of  punctuation  is  correct,  the  section* 
would  seem  to  be  limited  to  state  or  county  roads,  etc.,  while, 
if  the  punctuation  as  found  in  the  Revised  Statutes  is  adopted, 
it  might  give  a  broader  meaning  to  the  word  "public"  than  if 
it  is  merely  used  to  qualify  the  words  which  follow,  and  mak- 
ing it  a  class  by  itself. 

The  courts,  so  far  as  they  have  considered  this  section,  seem 
to  regard  the  language  as  intended  to  apply  only  to  the  two 
classes  of  roads,  state  and  county. 

As  Section  845  creates  a  new  statutory  right  of  action  not 
authorized  at  common  law  it  should  ,like  all  other  statutes  in 
derogation  of  the  common  law,  be  construed  strictly.  Applying 
this  rule  of  strict  construction  the  petition  in  this  case  should 
have  clearly  alleged  that  the  road  upon  which  the  accident  oc- 
curred was  a  state  or  county  road.  It  is  not  sufficient  to  desig- 
nate it  as  a  public  highway,  or  as  a  turnpike,  for  city  streets 
are  public  highways,  and  it  will  not  be  contended  that  the  county 
commissioners  would  be  responsible  for  keeping  them  in  repair, 
or  be  liable  for  accidents  growing  out  of  their  unsafe  condition ; 
and  turnpikes  are  not  necessarily  state  or  county  roads,  and  in 
many  instances  are  not  especially  where  tolls  are  collected  on 
said  turnpike. 

The  allegation  that  said  pike  is  under  the  care,  maintenance 


140  HAMILTON  COUNTY  COMMON  PLEAS. 

Durrell  v.  Traction  Co.  et  a).  (Vol.  XI,  N.  a. 

and  control  of  the  board  of  county  commissioners  does  not 
sufficiently  state  that  it  comes  within  either  of  the  classes  ot 
roads  referred  to  in  this  section. 

But  even  if  the  language  of  the  petition  would  justify  the  as- 
sumption that  said  turnpike  was  a  county  road,  we  would  feel 
ourselves  bound  by  the  decision  of  the  Supreme  Court  in  the 
case  referred  to  above  {Smith  v.  County  Commissioners),  af- 
firmed without  report  February  27,  1906  (74  0.  S.,  434),  a  full 
discussion  of  which  is  found  in  10  C.  C. — N.  S.,  page  115. 

There  seems  to  be  an  error  in  the  first  line  of  the  syllabus 
id  the  use  of  the  word  "country"  instead  of  "county."  The 
syllabus  reads: 

"The  duty  of  keeping  ordinary  country  roads  in  renair  is 
not  imposed  on  county  commissioners  by  Section  845,  Revised 
Statutes;  and  a  directed  verdict  for  the  defendants  is  not 
erroneous  in  an  action  for  damages  for  negligence  brought  by 
one  injured  by  his  vehicle  sliding  into  a  deep  rut  or  hole  in  the 
road." 

An  examination  of  the  language  of  the  decision  shows  that 
the  word  "country"  in  the  syllabus  above  should  be  "county," 
as  the  court,  on  page  117,  uses  this  Language  in  reference  to 
the  road  involved  in  that  ease: 

"That  this  was  a  county  road  seems  to  be  admitted,  but  it 
is  urged  that  no  duty  is  imposed  upon  the  county  commission- 
ers by  any  statute,  of  making  such  repairs,  as  seems  to  have 
been  necessary  here  under  the  circumstances  of  this  case." 

The  court  then  goes  on  to  say  on  the  same  page,  referring  to 
the  commissioners: 

"It  is  their  duty  in  some  cases  to  repair  roads  as,  for  in- 
stance, where,  by  freshet  or  inundation,  the  road  has  been 
partly  or  wholly  swept  away  so  as  to  render  it  impassable; 
there  it  is  the  duty. of  the  commissioners  to  repair  the  road. 
That  is  not  claimed  to  be  the  case  here  but  it  is  chimed  that 
this  condition  existed  in  the  road  for  several  months  at  alleged 
in  the  petition. 

"Now  we  have  examined  as  far  as  we  know  all  the  stat- 
utes bearing  upon  this  question  and  we  have  been  •nmble  to 
find  any  statute  expressly  imposing  thie  duty  upon  the  county 


NISI  PRIUS  REPORTS— NEW  SERIES.  141 

1908.}  Dtirrell  v.  Traction  Go.  et  al. 

commissioners  in  a  ease  of  this  kind.  I  will  not  undertake  to 
review  all  the  statutes  bearing  on  roads  and  bridge,  as  they 
are  numerous  and  it  would  be  impossible  to  review  them  in 
this  opinion,  but  it  will  be  observed  that  this  statute  only 
makes  the  county  liable  for  the  negligence  of  the  commission- 
ers. It  does  not,  as  in  some  of  the  bridge  statutes,  make  the 
county  liable  for  damages  in  case  of  failure  to  repair  and  keep 
in  repair  bridges  as  expressed  in  some  of  the  bridge  statutes. 
Negligence  is  the  failure  to  use  ordinary  care.  It  is  the  fail- 
ure to  perform  a  duty  imposed  upon  one  either  by  statute  or 
by  common  law  *  •  •  and  in  order  to  make  the  county 
commissioners  liable  for  defects  in  county  roads  under  this 
statute  it  must  be  shown  that  they  were  negligent  in  some  re- 
spects." 

On  page  119: 

"This  statute  should  receive  a  reasonably  strict  construction, 
for  to  impose  upon  the  county  the  liability  for  a  defect  in  any 
road  would  impose  a  tremendous  liability,  regardless  of  the 
fact  as  to  whether  or  not  the  board  of  county  commissioners 
are  actually  negligent  or  not.     *     •     • 

"Whether  the  doctrine  of  constructive  notice  would  prevail 
or  not  we  are  uncertain;  that  is,  to  hold  the  county  liable  on 
the  ground  that  it  had  been  out  of  repair  for  some  time.  There 
is  no  claim  in  this  case  that  there  was  any  actual  notice  to  the 
commissioners  of  the  condition  of  this  road." 

Through  the  courtesy  of  the  county  solicitor  we  have  been 
furnished  copies  of  the  printed  record  and  briefs  of  the  counsel 
in  the  case  from  which  we  have  last  cited,  and  while  in  that 
case  the  court  refused  the  motion  to  dismiss  before  the  taking  of 
evidence,  and  decided  the  ease  upon  a  motion  after  the  evi- 
dence was  in,  the  reasoning  of  the  court  would  seem  to  warrant 
us  in  disposing  of  the  question  on  the  motion  now  pending. 

We  therefore  sustain  the  demurrer  of  the  county  commis- 
sioners. 


142  FRANKLIN  COUNTY  COMMON  PLEAS. 

Nelson  Morris  *  Co.  v.  Clsler.  [Vol.  VII.  N.  S. 

CONCEALMENT  BY  A  DEBTOR.  OF  HIS  WHEREABOUTS. 

Common  Pleas  Court  of  Franklin  County, 

Nelson  Morris  &  Co.  v.  William  Cisler. 

Decided.  1908. 

Debtor  and  Creditor — Burden  of  Showing  Concealment  by  the  Debtor — 
Statute  of  Limitations  not  Tolled,  Unlet* — Section  $989. 

Mere  Ignorance  of  the  whereabouts  of  a  debtor  who  Is  not  absent  from 
the  state  does  not  toll  the  statute  of  limitations  as  applied  to  an 
action  on  an  account,  but  the  burden  Is  on  the  creditor  to  show 
affirmative  acts  on  the  part  of  the  debtor  which  prevented  a 
discovery  of  his  whereabouts. 

F.  C.  Rector,  for  plaintiff. 
C.  D.  Saviers,  for  defendant. 

Bigger,  J. 

It  is  clear  that  the  statute  of  limitations  bars  au  action  on 
this  account  unless  the  proof  shows  that  the  defendant  concealed 
himself  for  such  a  length  of  time  as  that,  deducting  it  from  the 
whole  time,  it  will  save  the  action  from  the  bar.  On  this  the 
plaintiff  has  the  burden,  as  it  is  new  matter  in  avoidance.  Lind- 
say v.  Maxwell,  4  N.  P.,  354. 

The  defendant  was  not  absent  from  the  state.  Does  the  evi- 
dence show  he  concealed  himself!  Concealment  means  some 
affirmative  act  on  his  part  which  would  prevent  the  plaintiff 
from  discovering  his  whereabouts.  Mere  ignorance  of  his  where- 
abouts is  not  sufficient.  19  Am.  &  Eng.  Enc.  Law  (2d  Ed.), 
213;  Frey  v.  Aultman,  30  Kan.,  181;  Rhoton  v.  Mentenkatt, 
17  Ore.,  199. 

The  case  of  Sullenberger  v.  Gest,  14  Ohio,  205,  was  decided 
under  a  dissimilar  statute.  That  statute  (29  O.  L.,  214;  see 
Rev.  Stat.,  4989)  provided  that  if  a  person  removed  "to  parts 
unknown,"  it  would  toll  the  statute.  The  proof  docs  not  show 
the  statute  was  tolled  in  this  case. 

The  finding  of  the  court  is  that  the  action  is  barred  by  the 
statute  and  judgment  must  be  rendered  for  the  defendant. 


NISI  PRIUS  REPORTS— NEW  SERIES.  148 

1908.]  Frank  v.  Traction  Company. 

LEAVE  TO  AMEND  AFTER  VERDICT. 

Cumin  on  Pleas  Court  of  Hamilton  County, 

Kune  Frank  v.  The  Cincinnati  Traction  Co. 

Decided,  April,  1908. 

Pleading — Application  of  the  Rule  where  Negligence  is  Averred — Die- 
creation  at  to  Permitting  Amendment! — Action  Against  Traction 
Company  for  Frightening  Horse. 

Where  the  evidence  of  the  plaintiff  shows  that  a  flawless  petition  could 
be  filed,  the  rale  that  plaintiff  will  be  limited  to  acts  of  negligence 
specifically  averred  will  not  be  applied;  but  a  motion  by  the  de- 
fendant for  Judgment  non  obstante  veredicto  wilt  be  overruled  and 
Its  motion  for  a  new  trial  granted  in  order  to  give  opportunity 
for  filing  an  amendment. 

Chas.  L.  Swain  and  Ckas.  H.  Jones,  for  plaintiff. 
Joseph  Wilby  and  Oeo.  P.  Stimson,  contra. 

Hunt,  J. 

In  the  original  petition  upon  which  plaintiff  rested  her  case 
at  the  time  of  the  trial,  the  only  allegation  of  negligence  is 
"that  the  motorman  negligently  and  carelessly  started  said 
ear,  throwing  snow  over,  upon  and  about  the  said  horse,  sear- 
ing and  causing  said  horse  to  run  away,''  etc. 

Plaintiff's  evidence  did  not  tend  to  support  the  allegation 
as  to  the  throwing  of  snow  over,  upon  and  about  the  horse. 
At  the  close  of  plaintiff's  testimony  defendant  made  a  motion 
for  an  instructed  verdict  in  its  favor,  and  the  court,  examining 
the  evidence  in  accordance  with  the  rule  laid  down  in  Railroad 
Company  v.  Kisller,  66  O.  S-,  326-333,  that  is,  limited  by  the 
acts  of  negligence  specifically  and  definitely  averred  in  the  pe- 
tition, was  about  to  grant  the  motion  when  plaintiff  asked  leave 
to  file  an  amended  petition  in  accordance  with  her  evidence. 
This  amended  petition  was  allowed  to  be  filed,  and  the  defend- 
ant was  ordered  to  forthwith  plead  thereto.  The  defend- 
ant objected  to  the  action  of  the  court,  and  the  objection  being 


144  HAMILTON  -COUNTY  COMMON  PLEAS. 

Frank  v.  Traction  Company.  [Vol.  Tit,  N.  S. 

overruled,  the  defendant  permitted  its  original  answer  of  gen- 
eral denial  to  stand  as  its  answer  to  the  amended  petition,  and 
again  made  a  motion  for  an  instructed  verdict  in  its  favor. 
This  motion  was  overruled.  The  defendant  offered  no  evi- 
dence, and  submitted  the  ease  to  the  jury. 

The  amended  petition  sets  up  additional  facts  of  alleged  neg- 
ligence, such  as  starting  the  ear  after  the  motorman  had  stopped 
it  at  the  request  of  plaintiff  because  her  horse  had  become  rest- 
ive and  before  plaintiff  had  fully  passed  the  car,  but  not 
alleging  any  knowledge,  actual  or  constructive  of  the  motorman 
as  to  plaintiff's  peril,  and  therefore  not  bringing  the  case  within 
the  rules  laid  down  in  Mahoning  Valley  8.  E.  Railway  v.  Bous-  * 
ton,  9  C.  C— N.  S.,  408. 

While  the  court  in  the  exercise  of  its  discretion  has  the  right 
to  permit  amendments  to  pleadings  at  any  time  before  judg- 
ment, yet  in  the  midst  of  a  jury  trial  amendments  should  not 
be  allowed  except  in  eases  where  they  are  clearly  without  pos- 
sible prejudice  to  the  other  parties  to  the  cause. 

Moreover,  if  the  rule  applied-  to  the  original  petition  was  ap- 
plied to  the  amended  petition  and  the  evidence  offered  by  plaint- 
iff, defendant's  motion  for  an  instructed  verdict  should  have 
been  granted. 

As  the  evidence  of  the  plaintiff  without  the  application  of 
said  rule  shows  that  a  flawless  petition  could  be  filed,  and  that 
the  defendant  could  then  have  the  usual  time  to  plead  thereto 
and  produce  his  evidence,  the  motion  of  the  defendant  for 
judgment  non  obstante  veredicto  will  be  overruled  and  its  mo- 
tion for  a  new  trial  will  be  granted. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Insurance  Co.  •/.  Barman  et  al. 


SERVICE  UNDER  ACTIONS  IN  INTERPLEADER. 

Common  Pleas  Court  of  Hamilton  County. 

Connecticut  Mutual  Life  Insurance  Co.  v.  Cora 

Bekman  et  al. 

Decided,  March,  1908. 

Interpleader— Provision*  of  Section  5016  Relating  to  Actions  in— Pro- 
visions of,  not  Exclusive — Summons — Section  5045  not  Applicable 
to  Interpleader  Brought  by  the  Stakeholder — Provisional  Remedies 
—Equitable  Considerations  can  not  be  Regarded,  When— Proceed- 
ing* in  Rem  and  in  Personam— Pleading— Jurisdiction — Action  to 
Determine  Ownership  of  Life  Insurance. 

Section  5046,  providing  for  service  by  publication  In  certain  cases,  does 
not  apply  to  an  action  In  Interpleader  where  brought  by  the  stake- 
holder, and  constructive  service  can  not  be  made  on  a  non-resident 
defendant  In  such  an  action. 

Stephens,  Lincoln  &  Stephens,  for  plaintiff. 
Victor  Abraham,  for  defendant. 

Bbomwell,  J. 

This  is  an  action  in  interpleader,  and  is  before  the  court  at 
this  time  on  a  motion  filed  by  one  of  the  defendants,  who  is  a 
resident  of  Kentucky  to  quash  the  service  and  return  of  summons 
attempted  to  be  made  upon  him. 

The  petition  sets  out  that  plaintiff  is  a  Connecticut  corpor- 
ation ;  that  it  insured  the  life  of  one  Simon  Seligman  in  the  sum 
of  five  thousand  dollars,  payable  to  his  wife,  or,  in  case  of  her 
death  prior  to  the  death  of  the  party  insured,  then  to  her  chil- 
dren; that  said  Simon  Seligman  is  dead;  that  he  outlived  his 
wife;  and  that  there  is  due  the  beneficiary  or  beneficiaries  of 
said  policy  the  sum  of  $4,997.62;  that  proofs  of  the  death  of 
said  Seligman  have  been  duly  filed  and  the  proceeds  of  said 
policy  claimed  by  certain  of  the  defendants  herein,  being  the 
children  of  the  wife  of  said  Seligman  by  a  former  marriage. 

The  petition  then  alleges  that  another  set  of  proofs  of  the  death 
of  said  Seligman  has  been  filed  with  plaintiff  by  Isaac  Maun  and 


146  HAMILTON  COUNTY  COMMON  PLEAS. 

Insurance  Co.  v.  Barman  et  al.  [Vol.  Til,  N.  8. 

Fred  Mann,  partners,  they  claiming  to  have  paid  all  of  the  pre- 
miums on  said  policy,  and  that  the  amount  bo  paid  by  them  is  in 
excess  of  the  amount  due  and  payable  on  said  policy. 

The  petition  also  alleges  that  the  administrator  of  the  estate 
of  said  Seligman  also  claims  the  proceeds  of  said  policy. 

The  plaintiff  prays  that  these  various  defendants  be  required 
to  interplead  among  themselves  and  be  enjoined  from  talcing 
any  proceedings  against  plaintiff  in  relation  to  raid  policy  and  the 
proceeds  thereof ;  that  plaintiff  may  be  allowed  to  pay  the  amount 
due  on  said  policy  to  the  clerk  of  this  court,  or  to  some  other 
designated  person,  and  that  it  be  discharged  from  further  liabil- 
ity in  regard  thereto. 

Personal  service  was  had  on  the  administrators  of  the  estate 
of  said  Seligman,  and  waiver  of  issuance  and  service  of  sum- 
mons was  filed  on  behalf  of  each  of  the  other  defendants  except 
Aaron  Frank  and  Isaac  Mann  and  Fred  Mann,  the  last  two  be- 
ing partners  under  the  name  of  Mann  Brothers.  As  to  these 
last  named,  the  sheriff  made  return  as  follows: 

"The  other  within  named  defendants  not  served,  and  returned 
by  order  of  plaintiff's  attorneys." 

Whereupon  the  attorney  for  plaintiff  filed  the  following  affi- 
davit for  service  on  Fred  Mann  as  surviving  partner  of  the  firm 
of  Mann  Brothers,  residing  in  Kentucky: 
' '  State  op  Ohio,  Hamiwon  County,  ss. 

"Charles  H.  Stephens,  on  oath,  says  that  he  is  one  of  the 
attorneys  for  the  plaintiff,  the  Connecticut  Mutual  Life  In- 
surance Company,  a  corporation  under  the  laws  of  the  state  of 
Connecticut ;  that  said  Connecticut  Mutual  Life  Insurance  Co.  is 
a  foreign  corporation  and  a  non-resident  of  the  state  of  Ohio. 

"Affiant  says  that  since  the  petition  was  filed  in  this  action 
Isaac  Mann  has  died  and  that  Fred  Mann  is  the  surviving  partner 
of  the  firm  of  Mann  Brothers ;  that  service  of  summons  can  not 
be  made  on  said  Fred  Mann  within  this  state,  and  that  this  case 
is  one  of  those  mentioned  in  Section  5045  of  the  Revised  Stat- 
utes of  Ohio. 

"(Signed)    Chables  H.  Stephens." 

[Properly  verified]. 

Summons  was  then  issued  to  the  sheriff  of  Hamilton  county 


NISI  PRIUS  REPORTS— NEW  SERIES.  147 

1908.1  Insurance  Co.  t.  Berman  et  al. 

commanding  him  to  notify  Fred  Mann,  surviving  partner  of 
Mann  Brothers,  etc.    To  this  summons  the  sheriff  made  the  fol- 
lowing return: 
"State  of  Kentucky,  County  of  Henderson,  ss. 

"James  M.  Teaman,  being  duly  sworn,  on  oath  says  that  he 
received  this  writ  on  the  29th  day  of  November,  1907,  and  on 
the  29th  day  of  November,  1907,  he  personally  served  the  within 
named  defendant,  Pred  Mann,  surviving  partner  of  Mann 
Brothers,  by  delivering  to  Fred  Mann,  personally,  a  true  copy 
of  this  writ  with  all  endorsements  thereon,  together  with  a  true 
and  attested  copy  of  the  petition  filed  in  the  within  cause. 
"(Signed)   James  M.  Yeaman. " 

[Properly  verified  before  a  notary  public]. 

"1907,  December  3.  Served  the  within  named  defendant  as 
above  set  forth.  (Signed)  Henry  W.  Hamann,  Sheriff  Hamil- 
ton County,  Ohio,  by  George  Paul,  deputy." 

An  answer  and  cross-petition  was  filtjd  by  three  of  the  four 
children  of  Seligman's  wife,  in  which  they  admit  the  allegations 
of  the  petition  and  deny  the  right  of  the  other  defendants,  ex- 
cept their  brother,  Aaron  Frank,  to  claim  any  portion  of  the 
proceeds  of  said  policy. 

Summons  on  this  eross- petition  was  issued  and  served  on  one 
of  the  administrators  of  Seligman's  estate,  but  there  does  not 
appear  to  have  been  any  summons  upon  this  cross-petition  upon 
the  other  parties. 

The  attorney  for  Fred  Mann  lias  filed  the  following  motion : 

"Now  comes  Fred  Mann,  surviving  partner  of  the  firm  of 
Mann  Brothers,  a  resident  of  the  state  of  Kentucky,  and,  appear- 
ing solely  for  the  purpose  of  this  motion,  and  not  intending  in 
any  manner  to  enter  his  appearance  herein,  moves  the  court  to 
quash  and  Bet  aside  the  return  of  summons  upon  him  herein 
for  the  reason  that  this  court  has  no  jurisdiction  over  his  person. 

"(Signed)  Fred  Mann,  surviving  partner  of  the  firm  of 
Mann  Brothers,  by  Victor  Abraham,  his  attorney." 

By  leave  of  court  this  motion  was  subsequently  amended  so  as 
to  ask  that  both  the  issue  and  return  of  summons  be  set  aside. 
It  is  to  this  amended  motion  that  we  are  called  upon  to  give 
consideration.  ' 


148  HAMILTON  COUNTY  COMMON  PLEAS. 

Insurance  Co.  v.  Herman  et  al.  [Vol.  VII,  N.  S. 

Section  5016,  Revised  Statutes,  is  as  follows: 

"Upon  affidavit  of  a  defendant  before  answer,  in  an  action 
upon  contract,  or  for  the  recovery  of  personal  property,  that 
a  third  party,  without  collusion  with  him,  has  or  makes  a  claim 
to  the  subject  of  the  action,  and  that  he  is  ready  to  pay  or  dispose 
of  the  same  as  the  court  may  direct,  the  court  may  make  an  order 
for  the  safe-keeping,  or  for  the  payment  or  deposit  in  court  of 
the  subject  of  the  action,  or  the  delivery  thereof  to  such  person 
as  it  may  direct,  and  also  an  order  requiring  such  third  party 
to  appear  in  a  reasonable  time,  and  maintain  or  relinquish  his 
claim  against  the  defendant;  and  if  such  third  party,  having 
been  served  with  a  copy  of  the  order,  by  the  sheriff,  or  such 
other  person  as  the  court  may  direct,  fail  to  appear,  the  court 
may  declare  him  barred  of  all  claim  in  respect  to  the  subject 
of  the  action,  against  the,  defendant  therein ;  but  if  he  appear, 
he  shall  be  allowed  to  make  himself  defendant  in  the  action,  in 
Heu  of  the  original  defendant,  who  shall  be  discharged  from  all 
liability  to  either  of  the  other  parties  in  respect  to  the  subject 
of  the  action,  upon  hit  compliance  with  the  order  of  the  court 
for  the  payment,  deposit  or  delivery  thereof." 

It  will  be  noticed  that  the  section  just  cited  does  not  contem- 
plate the  bringing  of  the  action  in  interpleader  by  the  stake- 
holder, but  applies  more  particularly  to  the  case  where  the  stake- 
holder has  already  been  sued  by  one  of  the  parties  claiming 
the  money  so  held  by  him,  and  is  permitted  before  answer  to  ask 
that  the  various  claimants  be  ordered  to  interplead,  and  the  stake- 
holder pay  the  money  into  court  and  be  released  from  further 
liability.  But  we  do  not  understand  that  this  statutory  provi- 
sion is  exclusive  or  in  any  way  curtails  the  right  to  settle  dis- 
puted claims  by  a  bill  in  interpleader  in  equity  (see  First  Nat  'I 
Bank  of  Cadiz  v.  Beebe,  62  0.  S.,  41).  At  any  rate,  in  this  case 
no  question  has  been  raised  as  to  the  right  of  the.plaintiff  to  bring 
this  action,  and  as  it  is  not  material  to  the  decision  of  the  ques- 
tion before  us,  we  may  assume  that  the  action  has  been  properly 
brought. 

Passing  now  to  the  question  of  service.  One  of  the  defend- 
ants, Fred  Mann,  is  a  non-resident  of  Ohio  and  an  attempt  has 
been  made  by  constructive  service  to  bring  him  within  the  juris- 


NISI  PRIUS  REPORTS— NEW  SERIES.  149 

1908.]  Insurance  Co.  v.  Berman  et  al. 

diction  of  this  court.  Section  5015  enumerates  the  cases  in 
which  service  by  publication  may  be  had.  Section  5049  provides 
that  when  service  may  be  made  by  publication,  personal  service 
of  a  copy  of  the  summons  and  petition  may  be  made  out  of  the 
state  and  such  service  shall  be  proved  by  affidavit. 

It  is  not  denied  that  the  service  in  this  case  would  be  sufficient 
to  bring  said  Mann  within  the  jurisdiction  of  the  court,  pro- 
vided the  action  in  interpleader  herein  brings  it  within  any  one 
of  the  subdivisions  of  Section  5045,  or,  to  state  it  broadly,  if 
constructive  service  can  be  made  upon  a  non-resident  defendant 
in  an  action  of  interpleader. 

Attorney  for  plaintiff  claims  that  this  action  comes  within  the 
provisions  of  Section  3  or  5  of  said  Section  5045.  We  think,  how- 
ever, the  decisions  are  the  other  way. 

In  the  case  of  Benner  v.  Benner,  63  O.  S.,  220,  which  was  an 
action  for  alimony  and  support  of  child,  where  the  defendant, 
the  husband,  had  left  the  state  and  afterwards,  by  the  "death  of 
his -father,  had  become  the  owner  of  certain  real  property  in  the 
county  of  his  former  residence  and  was  also  entitled  to  a  dis- 
tributive share  of  personal  estate,  service  was  made  by  mailing 
to  him  a  summons  and  certified  copy  of  the  petition.  The  de- 
fendant disclaiming,  as  in  the  present  ease,  any  intention  to  enter 
his  appearance  generally  filed  his  motion  to  dismiss  on  the  ground 
that  the  court  had  no  jurisdiction  of  his  person.  This  motion 
having  been  overruled  and  a  decree  entered  on  behalf  of  plaint- 
iff, and  the  circuit  court  having  affirmed  the  judgment  of  the 
lower  court,  the  defendant,  in  the  Supreme  Court,  urged  in  argu- 
ment to  the  jurisdiction  of  the  court : 

"First.  That  in  an  action  of  this  kind  service  by  publication 
is  not  authorized  by  statute. 

"Second.  That  if  so  authorized  the  action  is  one  in  personam, 
of  which  the  court  could  acquire  no  jurisdiction  by  construc- 
tive service;  and 

"Third.  That  if  it  be  regarded  as  an  action  in  rem,  there 
was  not  a  seizure  of  the  property  which  brought  it  within  the 
control  of  the  court  when  the  judgment  was  rendered." 

The  court  said,  page  224 :  __ 


150  HAMILTON  COUNTY  COMMON  PLEAS. 

Insurance  Co.  v.  Berman  et  al.  [Vol.  VII,  N.  8. 

"Supplying  what  is  manifestly  implied  in  the  statutes,  it  per- 
mits, as  did  the  original  section,  constructive  service  on  non-resi- 
dent defendants,  in  actions  in  which  it  is  sought  by  a  provisional 
remedy  to  take  their  property,  or  in  which  it  is  Bought  to  appro- 
priate the  property  in  any  legal  proceeding  where  such  appro- 
priation is  proper." 

There  is  in  the  present  case  no  claim  that  any  property  of 
Mann  is  sought  to  be  taken  by  any  provisional  remedy,  nor  does 
the  petition  disclose  any  intention  to  appropriate  in  any  manner 
such  property  of  said  defendant.  If  this  view  is  correct  Section 
3  of  5045  would  not  apply  to  this  case.  While  we  have  not  been 
able  to  find  any  decision  which  exactly  fits  the  claim  of  plaintiff 
as  to  the  applicability  of  Section  5  to  au  action  in  interpleader, 
we  find  something  somewhat  analagous  in  the  ease  of  Evans  v. 
Scribner's  Sons  et  al,  58  Fed.  Rep.,  303.  This  was  an  action  in 
interpleader  in  which  the  Northwestern  Mutual  Life  Insurance 
Company  .admitted  that  policies  of  insurance  on  the  life  of  the 
claimant's  husband  were  in  force  at  the  time  of  his  death,  and 
acknowledged  its  indebtedness  on  the  said  policies,  and  asked  of 
the  court  that  it  might  be  lawfully  protected  as  a  disinterested 
bolder  of  the  fund,  and  that  the  parties  claiming  the  same  might 
be  properly  before  the  court  before  any  action  against  it  was 
had;  and  then  offered  and  requested  leave,  when  it  should  be 
so  protected,  to  deposit  the  amount  covered  by  the  policies  in  the 
court.  An  order  was  granted  (under  Sup.  Rev.  St.  U.  S.,  84) 
for  service  on  Scribner's  Sons.  The  section  of  the  statutes  re- 
ferred to  is,  so  far  as  material,  as  follows: 

"When  any  suit  is  commenced  in  any  court  of  the  United 
States  to  enforce  any  equitable  lien  or  claim  to  or  remove  any  in- 
cumbrance or  cloud  upon  the  title  to  real  or  personal  property, 
within  the  district  where  such  suit  is  brought,  and  one  or  more  of 
the  defendants  therein  shall  not  be  an  inhabitant  of  or  found 
within  said  district,  or  shall  not  voluntarily  appear  thereto,  it 
shall  be  lawful  for  the  court  to  make  an  order  directing  such 
absent  defendant  or  defendants  to  appear  and  plead,  answer  or 
demur,  by  a  certain  designated  day,"  etc. 

Service  was  made  on  an  order  as  provided  for  above.     On  mo- 


NISI  PRIUS  REPORTS—NEW  SERIES.  161 

1908.]  Insurance  Co.  v.  Berman  et  al. 

tion  to  Bet  aside  the  service  the  court  granted  the  motion,  saying, 
on  page  304 : 

"As  to  these  policies  the  suit  does  not  seek  to  enforce  any  legal 
or  equitable  lien  upon  or  claim  to  any  property,  either  real  or 
personal;  neither  does  it  seek  to  remove  any  incumbrance,  lien  or 
cloud  upon  the  title  to  any  real  or  personal  property." 

Returning  to  the  case  of  Benner  v.  Benner,  the  court  on  page 
224  distinguished  between  an  action  in  personam  and  one  in  rem, 
using  this  language: 

"If  the  action  below  was  merely  one  in  personam  the  judg- 
ment can  not  be  maintained ;  or,  in  such  an  action  the  court  could 
acquire  no  jurisdiction  to  render  judgment  without  personal  serv- 
ice on  the  defendant  or  appearance  by  him  in  the  action.  But  if 
it  may  properly  be  regarded  as  an  action  in  rem,  the  court  could 
undoubtedly  obtain  jurisdiction,  by  constructive  service,  to  ap 
propriate  the  property  of  the  defendant,  situated  in  the  county 
where  the  action  was  brought,  to  the  purposes  of  the  action, 
though  it  could  render  no  personal  judgment  on  which  a  general 
execution  could  issue  or  an  action  against  him  be  maintained." 

The  doctrine  thus  announced  is  supported  by  many'  authori- 
ties, both  federal  and  state.  Mexican  Cent.  R.  R.  Co.  v.  Pinkney, 
149  U.  S.,  209;  Kendali  v.  V.  8.,  37  U.  S„  12;  Harris  v.  Harde- 
man, 55  U.  S.,  14;  D'Arcy  v.  Ketcham,  11  Howard,  165;  Pen- 
noyer  v.  Neff,  95  U.  S.,  714. 

On  pages  226  and  227  the  court  makes  use  of  language  which 
might  well  be  construed  as  intending  to  distinguish,  if  not  to 
overrule,  the  ease  of  Cross  v.  Armstrong,  44  0.  S.,  613,  to  which 
we  shall  hereafter  refer.     It  said : 

"Finally,  it  is  insisted  that,  though  the  action  be  one  in  rem, 
the  property  was  not,  by  any  process,  so  brought  within  the 
control  of  the  court  as  was  necessary  to  warrant  the  judgment 
rendered.  The  rule  on  this  subject  and  the  reason  for  it  are 
stated  in  Pennoyer  v.  Neff,  supra,  where  it  is  said  that  'sub- 
stituted service  by  publication  or  any  other  authorized  form, 
may  be  sufficient  to  inform  parties  of  the  object  of  the  proceed- 
ings taken,  where  property  is  once  brought  into  the  control  of  the 
court  by  seizure  or  some  equivalent  act.  The  law  assumes  that 
property  is  always  in  the  possession  of  its  owner  in  person  or 


HAMILTON  COUNTY  COMMON  PLEAS. 


Insurance  Co.  v.  Barman  et  al.  [Vol. XI,  N.  a 

by  agent;  and  it  proceeds  upon  the  theory  that  its  seizure  will 
inform  him,  not  only  that  it  is  taken  into  the  custody  of  the 
court,  but  that  he  must  look  to  any  proceeding  authorized  by 
law  upon  such  seizure  for  its  condemnation  and  sale. '  •  •  • 
We  do  not  understand  it  is  necessary,  in  order  to  bring  property 
under  the  control  of  the  court,  that  it  shall  actually  be  taken  on 
attachment  or  other  writ.  Any  authorized  act  by  which  the 
court  takes  charge  of  property  or  asserts  its  control  over  it  is 
sufficient  within  the  meaning  of  the  rule  for  the  purposes  of 
jurisdiction." 

The  last. sentence  of  this  citation  might  easily  be  construed  as 
covering  the  deposit  in  court  of  a  disputed  fund  on  a  bill  of 
interpleader,  but  inasmuch  as  it  does  not  refer  in  any  way  to 
other  cases  previously  decided  which  hold  the  opposite  view,  we 
are  constrained  to  believe  that  it  was  not  intended  to  have  the 
broad  signification,  which  the  words  would  seem  to  imply. 

The  case  of  Cross  v.  Armstrong,  44  0.  S.,  613,  bears  a  close 
analogy  to  the  present  case  in  many  respects.  In  that  case  the 
Provident  Life  &  Trflst  Co.  of  Philadelphia  insured  the  life  of 
William  Armstrong,  a  resident  of  Tuscarawas  county,  Ohio,  in 
the  sum  of  $10,000,  his  wife,  Polly  Armstrong,  being  the  bene- 
ficiary. Up  to  the  time  of  the  death  of  said  Armstrong,  he  and 
his  wife  were  living  at  their  domicile  in  Ohio  and  after  his  death 
the  policy  came  into  the  possession  of  his  widow.  Cross,  the 
plaintiff,  was  appointed  administrator  of  the  estate  of  Arm- 
strong. Some  four  months  after  the  death  of  Armstrong,  his 
widow  brought  suit  in  a  common  pleas  court  of  Philadelphia, 
Pa.,  upon  the  policy  against  the  insurance  company  to  recover 
the  $10,000  named  therein;  the  insurance  company  came  into 
court  and  suggested  that  the  administrator  of  William  Armstrong 
claimed  to  have  some  interest  in  the  insurance  fund  and  prayed 
for  leave  to  bring  the  money  into  court  and  for  an  interpleader 
between  the  said  widow  and  the  administrator  of  the  husband ; 
such  leave  was  granted;  a  rule  of  the  court  was  entered,  copy 
of  which  was  sent,  in  accordance  with  the  laws  of  Pennsylvania 
and  delivered  to  the  administrator  at  his  home  in  Tuscarawas 
county.  Ohio,  together  with  a  letter  from  the  attorney  of  the 
company  notifying  Baid  administrator  that  under  the  laws  of 


NISI  PRIUS  REPORTS— NEW  SERIES.  153 

1M8.1  Insurance  Co.  v.  Barman  et  al. 

Pennsylvania  it  was  necessary  for  him  to  appear.  Afterwards 
the  rule  was  made  absolute,  the  money  paid  into  court,  citation 
upon  the  administrator  served  upon  him  by  personal  delivery 
to  him  in  said  Tuscarawas  county ;  the  administrator  did  not  ap- 
pear and  the  court  ordered  the  entire  fund  paid  to  the  widow. 
These  facts  being  set  out  in  the  pleadings  in  which  Cross,  the  ad- 
ministrator, made  a  claim  against  the  widow  for  a  portion  of 
the  proceeds  of  the  policy,  the  court  was  called  upon  to  pass  upon 
a  demurrer  to  the  answer  raising,  among  other  questions,  the 
principal  points  in  controversy  in  the  case  before  us.  The  sec- 
ond syllabus  in  that  case  is  as  follows : 

"In  a  suit  brought  against  the  company,  by  the  widow  of  such 
insured  person,  upon  a  policy  in  which  she  is  named  as  the  bene- 
ficiary, in  a  court  in  the  state  where  8uch  company  is  located, 
and  in  which  suit,  by  direction  of  the  court,  the  company  brings 
into  court  a  sum  of  money  sufficient  to  satisfy  the  amount  due 
on  the  policy,  and  obtains  an  order  requiring  the  administrator, 
resident  of  Ohio,  to  appear  and  interplead  with  such  widow  as 
to  their  respective  claims  under  the  policy,  service  in  Ohio  of 
copy  of  such  order,  and  of  citation  upon  such  administrator,  does 
not  give  the  court  jurisdiction  of  his  person  and  (there  being 
no  appearance  nor  other  service  on  sueh  administrator),  a  judg- 
ment in  the  action  purporting  to  debar  him  from  any  claim  or 
right  as  against  such  widow  is,  as  to  him,  void." 

The  plaintiff  in  that  case,  among  other  things,  claimed  (see 
page  618)  that— 

"When  the  Provident  Life  &  Trust  Co.  was  sued  by  the  widow 
upon  the  policy,  filed  its  suggestion,  not  denying  but  admitting 
its  indebtedness,  asked  that  an  interpleader  be  awarded  and 
brought  the  money  into  court  to  be  paid  to  whomsoever  the  court 
should  direct,  the  court  thus  obtained  jurisdiction  of  the  fund 
and  from  that  time  forward  the  proceeding  was  essentially  a  pro- 
ceeding in  rem.  The  court  having  thus  obtained  jurisdiction  of 
the  res  and  having  given  proper  notice  as  required  by  the  laws 
of  the  state  of  Pennsylvania,  had  ample  power  to  hear  and 
determine  as  to  all  the  rights  of  the  parties  in  and  to  the  fund, 
and  having  so  heard  and  determined,  the  parties  were  bound 
by  the  judgment." 

The  court,  replying  to  this  argument,  said,  on  page  623 : 


164  HAMILTON  COUNTY  COMMON  PLEAS. 

Insurance  Co.  v.  Herman  et  al.  [Vol.  VII,  N.  S. 

"That  such  proceeding  could  be  in  rem  seems  a  novel  doctrine. 
'In  rem'  is  understood  to  be  a  technical  term,  taken  from  the 
Roman  law  and  there  used  to  distinguish  an  action  against  a 
thing  from  one  against  a  person,  the  terms  in  rem  and  in  per- 
sonam always  being  the  opposite  one  of  the  other;  an  act  in  per- 
sonam being  one  done  or  directed  against  a  specific  person,  while 
an  act  in  rem  was  one  done  with  reference  to  no  specific  person 
but  against  or  with  reference  to  a  specific  thing  and  so  against 
whom  it  might  concern,  or  'all  the  world.'  " 

On  page  625  the  court  said : 

"The  proceeding  was  clearly  one  of  interpleader  and  that 
only.  We  do  not  understand  that  an  action  in  personam,  simply 
because  a  debtor  brings  money,  the  right  to  recover  which  is  in 
contention,  and  gives  to  the  custody  of  the  court  a  sum  sufficient 
to  discharge  his  debt,  changes  into  an  action  in  rem,  or  that  an 
interpleader  suit  is,  in  its  nature,  a  proceeding  i«  rem.  In  the 
Philadelphia  case  the  company  could  have  begun  the  action  by 
original  bill  and  obtained  a  complete  standing  in  court,  if,  with 
other  proper  averments,  the  pleader  had  alleged  a  willingness 
to  bring  the  money  into  court.  Manifestly  the  action  thus  be- 
gun would  not  have  been  in  rem." 

These  last  two  sentences  seem  to  fit  the  case  before  us  exactly. 
The  company  in  this  case  has  begun  its  action  by  original  bill ; 
has  made  the  proper  averments  and  has  alleged  its  willingness 
to  bring  the  money  into  court  and,  applying  the  dictum  in  the 
last  sentence,  the  action  thus  begun  is  not  one  in  rem.  Why  has 
not  the  non-resident  defendant  in  this  case  the  right  to  set 
up  the  same  claim  that  the  proceeding  in  the  present  case  is  not 
one  in  rem  but  in  personam? 

On  page  626  the  eourt  said : 

"If  the  case  made  in  the  answer  can  not  be  treated  as  a  suit 
in  rem,  it  appears  clear  that  the  judgment  rendered  is  void  as 
against  the  administrator  for  want  of  jurisdiction  at  least  of 
his  person." 

And  on  page  627 : 

"The  state  of  Pennsylvania  could  not  extend  its  sovereignty 
to  the  state  of  Ohio;  it  could  not,  in  an  action  in  personam,  com- 
pel a  eitizen  of  this  state  to  respond  to  the  process  of  its  courts 


NISI  PRIUS  REPORTS— NEW  SERIES.  165 

1908.]  Insurance  Co.  v.  Berman  et  al. 

served  in  this  state.  'No  sovereignty  can  extend  its  process  be- 
yond its  own  territorial  limits  to  subject  either  persons  or  prop- 
erty to  its  judicial  decisions.  Every  exertion  of  authority  of 
this  sort  beyond  this  limit  is  a  mere  nullity  and  incapable  of 
binding  such  persons  or  property  in  any  other  tribunals.' 
(Story  on  Conflict  of  Laws,  Section  539.) 

'The  jurisdiction  of  state  courts  is  limited  by  state  lines  and, 
upon  principle,  it  is  difficult  to  see  how  the  order  of  a  court, 
served  upon  a  party  out  of  the  state  in  which  it  is  issued,  can 
have  any  greater  effect  than  knowledge  brought  home  to  the 
party  in  any  other  way.  Mere  knowledge  of  the  pendency  of 
a  suit  in  the  courts  of  another  state,  without  serviee  of  the  pro- 
cess, or  an  appearance,  is  not  sufficient,  of  itself,  to  compromise 
the  rights  of  a  party  in  this  state.  (Ewers  v.  Coffin,  1st  dish- 
ing, 23,  28.)" 

In  the  ease  of  Gary  v.  Northwestern  Masonic  Aid  Association, 
50  Northwestern  Reports,  27,  the  defendant  company  filed  a  bill 
in  the  nature  of  interpleader  in  Illinois,  deposited  the  amount 
in  dispute  in  court  and  asked  that  the  claimants  thereto,  Julia 
Gary  and  E.  H.  Gary,  be  required  to  interplead.  E.  H.  Gary, 
was  a  resident  of  Illinois  and  Julia  Gary  of  Iowa.  Personal 
service  was  made  on  each.  E.  H.  Gary  appeared  and  answered. 
Julia  Gary  did  not  appear,  default  judgment  was  entered  against 
her,  and  decree  allowed  awarding  the  money  on  deposit  to  E.  H. 
Gary.  Afterwards  Julia  Gary  began  an  action  in  Iowa  against 
the  insurance  company,  claiming  the  amount  that  had  been  paid 
over  to  E.  H.  Gary.  The  defense  of  the  insurance  company  set 
forth  the  proceedings  in  the  Illinois  courts.  On  motion  that 
part  of  the  defense  was  stricken  from  the  answer  on  the  ground 
that  the  decree  in  Illinois  was  absolutely  null  and  void  as  to 
Julia  by  reason  of  the  fact  that  no  proper  service  had  been  made 
upon  her  in  the  Illinois  proceedings.     The  court  held  that: 

"A  bill  of  interpleader  by  a  benefit  society  to  determine  con- 
flicting claims  to  the  proceeds  of  a  certificate,  the  money  being 
paid  into  court,  is  not  a  proceeding  in  rem;  and  a  judgment  by 
default  against  a  claimant  who  is  served  outside  the  state  and 
who  does  not  appear  in  the  suit  is  a  nullity." 

In  the  case  of  Pratt,  Administrator,  v.  The  Aetna  Life  Insur- 
ance Co.,  5  C.  C,  587,  ap  action  was  brought  against  the  life 


166  HAMILTON  COUNTY  COMMON  PLEAS. 

Insurance  Co.  v.  Bernian  et  al.  [Vol.  VII,  N.  S. 

insurance  company  upon  a  policy  issued  by  the  company;  the 
defendant  came  in  under  Seetion  5016  of  the  Revised  Statutes, 
and  by  affidavit  admitted  its  liability  to  pay  the  amount  de- 
manded in  the  petition  upon  the  policy  and  averred  its  readiness 
to  pay  over  the  same  as  the  court  might  direct ;  but  alleged  that 
certain  persons  other  than  the  plaintiff  named  in  the  affidavit, 
claimed  the  fund  and  asked  that  they  might  be  brought  in  and 
required  to  interplead  and  that  it  might  be  discharged  from  lia- 
bility.    On  page  594  the  court  said: 

"It  may  be  here  stated  that  the  following  propositions  have 
been  settled  by  the  Supreme  Court: 

"1.  Proceedings  in  interpleader  in  an  aetion  on  contract 
for  the  recovery  of  money  only  do  not  convert  the  action  into  a 
proceeding  in  rem  against  the  fund ;  it  continues  in  its  legal 
aspect  and  characteristics  to  be  an  action  in  personam  against 
the  debtor  in  favor  of  the  respective  claimants  for  the  recovery 
of  money.     (Cross  v.  Armstrong,  44  O.  S.,  613.) 

"2.  Nor  in  such  action  does  the  interpleader  have  the  effect 
of  changing  it  into  a  special  proceeding.  It  remains  a  civil 
aetion  and  must  be  proceeded  in  accordingly.  (Maginnis  v. 
Schwab,  24  0.  S.,  336.)" 

In  the  case  of  Williams'  Admr's  v.  Welton's  Admr's,  28  O.  S., 
451,  service  was  made  on  one  Goheen,  the  return  being  in  the  fol- 
lowing language:  "Served  on  Goheen  by  leaving  with  him  a 
copy  of  the  writ  and  petition  at  Hagerstown,  Md."  And  the 
court,  on  page  467,  considered  the  question  as  to  whether  thia 
service  on  Goheen  in  the  state  of  Maryland  was  good.  After 
citing  the  various  sections  of  the  eode  applicable  to  service  by 
publication,  the  court  said : 

"It  is  not  claimed  that  any  of  the  provisional  remedies  of  the 
code,  which  warrant  service  by  publication,  were  sought ;  but  it  is 
claimed  that  it  is  an  action  where  there  is  property  in  this  state 
and  debts  owing  to  defendant,  sought  'to  be  appropriated  by  this 
action. ' 

"The  right  to  serve  a  defendant  by  summons  and  a  copy  of 
the  petition  outside  of  the  state,  is  limited  to  cases  where  con- 
structive service  can  be  made.     *     •     • 

"It  is  essential  to  the  jurisdiction  of  the  court,  either  that 
there  be  personal  service,  or  that  the  subject-matter  of  the  action 


NISI  PRIUS  REPORTS— NEW  SERIES.  167 

1908.]  Insurance  Co.  v.  Herman  et  al. 

be  under  the  control  of  the  court.  In  ease  there  is  no  personal 
service,  the  court  has  no  jurisdiction  unless  property  is  reached 
or  sought  to  be  appropriated.  To  appropriate  property  by  a 
judgment  or  decree  of  the  court  is  in  the  nature  of  a  proceeding 
in  rem.     *     •     " 

"The  relief  sought  in  the  ease  at  bar  was  a  money  judgment 
against  the  estate  as  authorized  by  statute.  Such  a  judgment 
would  not  appropriate  in  any  way  the  property  or  debts  owing 
to  the  estate  within  the  meaning  of  the  code." 

If,  as  the  court  held  above,  a  money  judgment  would  not  be  an 
appropriation  of  property,  can  it  be  said  that  an  action  in  inter- 
pleader would  have  that  effect  T 

In  conclusion  we  might  say  that  even  in  those  cases  where 
jurisdiction  in  rem  has  been  acquired  by  attachment  or  any 
similar  proceeding,  the  jurisdiction  of  the  court  only  attaches 
to  the  extent  of  the  value  of  the  attached  property.  Oil  Well 
Supply  Co.  v.  Koen  et  al,  64  0.  S-,  422. 

It  is  claimed  in  argument  that  if  it  is  held  that  service 
upon  Mann  can  not  be  obtained  by  the  method  adopted  in  this 
case  of  mailing  him  a  summons  and  copy  of  the  petition,  the 
plaintiff  may,  by  reason  of  a  suit  instituted  in  Kentucky  by 
Mann,  claiming  the  amount  of  the  policy,  be  compelled  to  make 
a  double  payment,  one  to  the  parties  claiming  the  proceeds  in 
this  state  and  one  to  Mann  claiming  the  same  proceeds  in  Ken- 
tucky. This  would  be  unfortunate  and  unjust,  but  it  is  not  a 
matter  which  this  court,  in  passing  upon  the  question  before  it, 
can  in  any  way  consider.  It  is  not  an  equitable  proceeding  in 
the  sense  that  the  court  would  be  at  liberty  on  account  of  any 
hardship  to  interpose  to  protect  the  plaintiff.  It  is  simply  a 
question  of  the  jurisdiction  of  this  court  over  the  defendant, 
Mann,  in  this  proceeding.  In  view  of  the  authorities  above  cited 
the  court'  is  of  the  opinion  that  the  motion  should  be  granted. 


168  LICKING  COUNTY  COMMON  PLEAS. 

Miller  et  al  t.  Miller  et  ml.  [VoL  VII,  N.  B. 

FAMXnH  Or  A  lOUKDUL 

Common  Pleau  Court  of  Licking  Comity. 
ClAKKN'CE   RAY    MlLIJER  ET  AL  V.   GEORGE   MlLLER  ET  AL. 

Decided,  April,  IMS. 

Will* — Death  of  Life  Tenant  Without  Issue — Failure  of  the  Remainder 
— Brother*  and  (Sitters  of  the  Half-blood  Share  in  the  Undevised 
band* — Pleading — Partition. 

Where  a  son  of  a  testator  Is  bequeathed  a  life  estate  In  lands  with  the 
remainder  to  his  legal  heirs  and  the  son  dies  without  issue,  the 
remainder  fails  and  the  lands  go  back  as  undevised. 

Robert  J.  Beatty,  for  plaintiffs. 

Robbins  Hunter  and  Fred  C.  Rector,  contra. 

Seward,  J.  (orally). 

The  ease  of  Clarence  Ray  Miller  and  Georgia  May  Beatty 
against  George  Miller.  Bert  Miller,  Deliah  Tippet  and  Anna 
Smith,  is  submitted  to  the  court  upon  a  demurrer  to  the  cross- 
petition.  The  grounds  of  the  demurrer  are:  First,  that  the 
cross- petition  does  not  state  facts  sufficient  to  entitle  the  defend- 
ants to  the  relief  demanded;  and,  second,  that  the  facts  stated 
do  not  constitute  a  defense. 

This  is  an  action  for  partition.  The  plaintiffs  are  the  half- 
brothers  and  sisters  of  the  defendants,  and  the  plaintiffs  and 
the  defendants  are  children  of  the  testator,  Washington  Miller. 

The  contention  arises  under  the  second  item  of  the  will  of 
Washington  Miller,  the  father  of  the  parties  to  this  suit,  and  of 
William  T.  Miller,  and  of  the  real  estate  devised  under  the 
second  item  of  the  will  to  William  T.  Miller  for  life,  and  after 
his  death  to  his  legal  heirs.  The  said  William  T.  died  unmar- 
ried and  without  issue,  and  the  cross-petitioner  claims  that  the 
brothers  and  sisters  of  the  whole  blood  take  the  title.  The 
cross-petition  sets  out  these  facts  fully,  and  a  copy  of  the  will 
of  the  testator,  who  died  February  4,  1901.  William  T.  died 
November  8,  1907. 


NISI  PRIUS  REPORTS— NEW  SERIES.  169 

1908.]  Miller  et  al  T.  Miller  et  al. 

This  demurrer,  for  its  purpose,  admits  the  facts  which  are 
well  pleaded  in  the  cross  petition ;  and  this  principle  of  law 
has  given  the  court  some  embarrassment  growing  out  of  a 
certain  allegation  in  the  cross-petition  which  was  not  referred 
to  by  counsel  in  argument.  That  allegation,  if  well  pleaded, 
makes  this  cross-petition  impervious  to  a  demurrer.  In  the 
next  succeeding  clause  of  the  cross-petition,  after  the  copy  of  the 
will,  appears  the  allegation:  "By  said  item  two  the  said  testa- 
tor intended  that  .the  said  William  Miller  should  have  a  life 
estate,  and  upon  the  death  of  the  said  WilLiam  T.  Miller  without 
issue,  said  real  estate  should  vest  in  fee  simple  in  the  defend- 
ants. ' ' 

If  that  was  the  intention  of  the  testator,  and  that  is  a  good 
allegation  in  the  pleading,  it  certainly  would  make  this  cross- 
petition  impervious  to  a  demurrer.  But,  as  the  court  construes 
it,  that  is  a  pleading  of  a  conclusion  of  law.  This  court  is  asked 
under  the  theory,  of  the  defendants,  to  construe  the  will,  and 
if  the  court  must  adopt  the  fact  that  it  is  well  pleaded  here, 
that  it  was  the  intention  of  the  testator  that  the  defendant 
should  take  the  real  estate,  providing  William  T.  Miller  died 
without  legal  heirs,  that  would  settle  the  matter,  and  there 
would  be  nothing  for  the  court  to  determine.  The  court  must 
determine  it  upon  the  construction  of  the  will;  and  the  court 
holds  that  that  allegation  in  the  cross-petition  is  a  conclusion 
of  law.  If  the  intention  of  the  testator  is  to  govern,  then  that 
intention  is  to  be  gathered  from  the  four  corners  of  the  will. 

In  Bonkatn  v.  Evans,  26  0.  S.,  410,  it  is  held  that  when  a  tes- 
tator makes  a  devise  to  his  son  throughout  his  natural  life,  and 
then  to  his  heirs,  and  in 'another  part  of  the  will  uses  the  term 
"heirs"  in  the  sense  of  "children,"  that  the  son  took  a  life 
estate  only,  with  remainder  to  his  children,  or  issue,  and  not  his 
heirs  generally,  and  upon  the  death  of  the  son,  without  issue. 
the  remainder  failed  and  the  estate  reverted  to  the  heirs  of  the 
testator. 

"Where  a  testator  made  a  devise  to  his  son  John  'through  his 
natural  life  and  then  to  his  heirs/  and  in  another  part  of  the 
will  used  the  word  'heirs'  in  the  sense  of  'children' — Held; 


1«0  LICKING  COUNTY  COMMON  PLEAS. 

Miller  et  al  v.  Miller  et  al.  [Vol.  VII,  N.  8. 

That  the  son  took  a  life  estate  only,  with  remainder  to  his  chil- 
dren, or  issue,  and  not  to  his  heirs  generally,  and  that  upon  his 
death  without  issue,  the  devise  in  remainder  failed,  and  the 
estate  reverted  to  the  heirs  of  the  testator." 

In  9  Circuit  Court,  page  143,  the  testator  gave  to  his  son 
throughout  life  and  then  to  his  heirs;  reciting  that  if  the  above 
named  heirs  bring  suit  against  his  estate,  their  share  shall  be 
forfeited  and  go  to  his  remaining  children.  And  the  court  hold 
that,  iu  using  the  word  "heirs"  he  meant  "children." 

The  testator  in  this  will,  which  is  referred  to  in  26  0.  S.,  in 
bounding  the  land  that  he  devised  to  certain  of  his  children, 
said  that  it  was  bounded  by  land  owned  by  the  heirs  of  John 
Doe,  we  will  say;  and  the  court  permitted  them  to  show  in  the 
trial  of  that  case,  that  John  Doe  had  children,  and  they  were 
his  heirs,  and  the  testator  therefore  meant  by  the  use  of  the 
word  "heirs"  the  word  "children."  They  made  that  con- 
struction of  the  will,  and  held  in  this  case  that  he  had  used  the 
word  "heirs"  as  intending  to  denote  his  children,  and  not  his 
heirs  generally. 

The  court  thinks  that  the  9  Circuit  Court  is  decisive  of  this 
case.     At  page  143  the  court  say: 

"S  devised  the  use  of  a  farm  to  a  married  daughter  for  her 
life,  with  remainder  in  fee  to  "her  heirs."  The  daughter  died,  , 
leaving  her  husband  surviving,  but  without  living  issue.  In 
other  items  of  the  will  the  testator  bounded  other  lands  devised 
to  other  of  his  children  by  lands  described  as  belonging  to  the 
"heirs"  of  certain  named  persons.  The  husband  of  the  daugh- 
ter was  not  named  or  referred  to  in  the  will. 

"Under  such  circumstances,  it  is  to  be  presumed  that  the 
testator  used  the  word  heirs  in  the  devise  of  the  remainder  in 
fee  in  the  sense  of  'children,'  and  intended  to  exclude  the  son- 
in-law;  that  the  devise  of  the  remainder  had  failed,  and  the 
estate  passed  to  the  heirs  of  the  testator." 

The  tenant  for  life  having  died  without  leaving  any  children, 
the  devise  in  remainder  failed,  and  the  land  went  back  to  the 
testator  as  undevised  land. 

The  court  thinks  the  demurrer  to  this  cross-petition  should 
be  sustained ;  exceptions  noted. 


NISI  PBIUS  REPORTS— NEW  SERIES. 
Street  Railway  v.  Cleveland. 


AS  TO  REVOCATION  OF  THE  RIGHTS  OF  A  STREET 
RAILWAY  COMPANY. 

Common  Pleas  Court  ot  Cuyahoga  County. 

The  'Woodland  Avenue  &  West  Side  Street  Railroad 
Company  v.  The  City  of  Cleveland  et  al. 

Street  Railway* — Franchises  of — Provition  Requiring  the  Company  to 
Re-pave  a  Certain  Portion  of  the  Street — Wat  the  "Devil  BTrip"  In- 
cluded?—Recognition  of  Rights  Claimed  by  Railway— Municipality 
may  Summarily  Interfere  with  Operation  of  Road,  When — Irrevoc- 
able Character  of  Contract  Embodied  in  Franchise — Disregard  of 
Conditions — Injunction. 

1.  The  acta  and  conduct  of  the  municipality  In  this  case  amounted  to 

a  recognition  by  it  of  the  rights  claimed  by  the  street  railway 
company  to  maintain  its  tracks  in  the  streets  as  to  which  it  is  now 
claimed  no  franchise  was  granted  by  the  renewal  ordinance. 

2.  It  is  competent  for  a  municipality  to  summarily  interfere  with  the 

operation  of  a  street  railway,  where  a  reservation  of  the  right  so 
to  do  has  been  made  and  the  grounds  for  so  doing  are  legally 
sufficient. 

3.  But  the  Irrevocable  character  of  the  contract  embodied  In  a  street 

railway  franchise  which  has  been  accepted  by  the  company,  binds 
the  municipality  to  the  agreement  then  made,  and  forbids  the  ap- 
plication of  provisions  embodied  in  ordinances  and  regulations 
thereafter  enacted,  unless  such  ordinances  and  regulations  have 
reference  to  governmental  matters. 

4.  Under  the  testimony  Mfered  in  this  case  an  injunction  is  warranted 

against  interference  with  the  operation  of  the  street  railway  be- 
cause of  the  refusal  of  the  company  to  comply  with  the  demands  of 
-the  municipality  as  to  the  width  of  the  atrip  In  the  street  which 
it  shall  re-pave.  Including  the  "devil  strip." 

Hamilton,  J. 

The  case  of  the  Woodland  AveDue  &  West  Side  Street  Rail- 
road Company  against  the  city  of  Cleveland,  George  W.  Gardner, 
mayor,  and  J.  W.  Schmitt,  superintendent  of  police,  is  before 
the  court  upon  an  application  for  an  injunction. 

In  brief,  the  allegations  of  the  petition  are  that  the  Woodland 
Avenue  &  West  Side  Street  Railroad  Company  is  the  successor 
of  the  Kinsman  Street  Railroad  Company,  which  was  chartered 
many  years  ago,  and  that  in  1879,  on  the  expiration  of  the  char- 


1«2    CUYAHOGA  COUNTY  COMMON  PLEAS. 

Street  Railway  v.  Cleveland.  [Vol.  Til,  N.  S. 

ter  of  the  Kinsman  Street  road  after  a  lapse  of  twenty  years  for 
which  it  was  originally  granted,  a  renewal  ordinance  was 
granted,  and,  by  the  terms  of  the  renewal  ordinance,  it  is  said 
that  it  was  provided  that — 

"Whenever  it  shall  be  deemed  necessary  to  grade,  pave  or  im- 
prove any  of  the  streets  wherein  said  tracks  are  laid,  the  com- 
pany shall  be  required  to  pave  any  part  or  all  of  the  track  be- 
tween the  rails  with  gravel,  stone  or  other  pavement  as  the 
council  may  deem  proper,  and,  if  said  company,  after  reasonable 
noticef  shall  fail  to  do  such  paving  at  the  same  time  with  any 
such  street  or  streets  so  being  so  improved  by  said  city,  or  at  the 
time  named  in  such  notice,  then  said  city  may  do  such  paving 
and  assess  the  cost  of  such  paving  against  said  company  in  the 
same  ordinance  with  the  property  owners  on  said  street,  or  by 
a  separate  ordinance,  and  may  collect  the  amount  thereof  by  suit 
or  otherwise,  according  to  law,  and  said  company  is  also  re- 
quired to  keep  said  pavement  in  constant  good  order;  and  pav- 
ing and  repairing  to  be  done  under  the  direction  of  and  to  the 
acceptance   of  the   board  of   improvements." 

It  then  avers  that  it  has  at  all  times  complied  with  the  pro- 
visions of  the  ordinance  under  which  the  renewal  of  the  grant 
was  effected.  It  further  avers  that  in  1889  the  city  came  to  the 
conclusion  and  so  expressed  itself  by  way  of  resolutions  and 
ordinances,  to  again  pave  Woodland  avenue,  between  Wilson 
avenue  and  East  Madison  avenue;  that  they  passed  the  neces- 
sary ordinance  to  repave,  and  required  thereby  the  plaintiff 
company  to  pave  between  the  rails — to^pave  its  track  between 
the  rails  of  its  tracks,  and  assessed  upon  the  property  owners 
adjoining  this  street  sufficient  to  pay  for  the  improvement,  less 
the  space  between  the  rails ;  that  is,  less  the  intersection  which 
the  city  at  large  would  pave;  that  the  money  was  paid  into 
the  treasury  by  the  property  owners,  and  that  the  plaintiff  com- 
pany paved  its  tracks  as  required,  or  substantially  did  so — per- 
haps it  is  not  quite  completed  in  all  respects  as  yet;  that  some 
time  in  June,  1890,  the  city  passed  another  ordinance,  by  which 
they  amended  the  assessing  ordinance,  and  therein  provided  that 
this  street  railroad  company  should  pave  not  only  its  track  be- 
tween the  rails,  but  should  pave  what  is  known  as  the  "devil 
strip,"  the  space  lying  between  its  two  tracks. 

Against   this  action   of   the  council   they   protest  and  insist 


NISI  PRIUS  REPORTS— NEW  SERIES.  168 

1908.]  Street   Hallway   v.   Cleveland. 

that  by  the  terms  of  the  contract  as  provided  in  the  renewal 
ordinance,  they  were  only,  bound  to  pave  their  tracks  between 
their  rails,  and  that  the  city  has  no  authority  or  right  to  re- 
quire more  of  them;  this  renewal  ordinance  being  an  ordinance 
which  was  accepted  by  the  plaintiff  company  and  was,  by  its 
terms,  to  continue  in  force  for  twenty-five  years;  that  it  is, 
therefore,  a  contract  between  the  city  and  this  plaintiff  com- 
pany and  can  not  be  abrogated  by  the  city;  but  the  city  claimed 
this  right  and,  having  passed  such  an  ordinance,  and  the  rail- 
road company  refusing  to  either  pave  this  additional  strip  itself 
or  to  pay  the  cost  and  expense  of  it  to  the  city,  the  city  then 
passed  a  resolution  forfeiting  the  rights  of  this  plaintiff  com- 
pany under  its  charter  or  under  the  ordinance  renewing  its 
rights,  until  such  time  as  the  company  should  comply,  and 
directed  the  mayor  to'issue  his  order  to  the  superintendent  of 
police  to  prevent  the  street  railroad  company  from  running  its 
cars,  or  in  any  manner  using  this  strip  of  ground  for  the  pro- 
pelling of  its  cars  over  it,  until  it  complied  with  the  provisions 
of  this  ordinance  by  paving  or  paying  for  the  paving  of  this 
disputed  strip  of  ground.  It  says  that  all  this  was  in  violation 
of  the  rights  of  the  company,  and  that  it  is  a  substantial  inter- 
ference with  the  contract  rights  of  this  company;  interferes 
with  its  business,  breaks  it  up,  and  interferes  with  and  discom- 
modes the  patrons  of  this  railroad  company  who  are  in  the 
habit  of  using  this  road  for  going  over  this  space  or  territory, 
and  hence  it  asks  an  injunction  at  the  hands  of  this  court  to  pre- 
vent this  state  of  things  continuing. 

The  city,  by  way  of  answer,  admits  that  there  was  a  renewal 
ordinance  in  1879  granted  to  this  company  or  its  predecessors ; 
admits  the  passage  of  the  ordinance  of  1889  for  paving  this 
street;  admits  the  passage  of  the  ordinance  in  June,  by  which 
it  required  the  plaintiff  company  here  to  pave  this  "devil  strip," 
so-called,  and  admits  the  passage  of  the  resolution  by  which 
it  seeks  to  forfeit  the  rights  of  the  company  for  non-compliance 
with  that  ordinance,  and  admits  the  taking  possession  of  this 
road  by  its  officers,  the  police  force  of  the  city,  and  the  pre- 
venting of  the  running  of  its  cars.  It  however  denies  that  the 
plaintiff  company  has  the  contract  rights  which  it  claims,  and 
expressly  claims  that  this  renewal  ordinance  was  subject  to  the 


164  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Street  Railway  v.  Cleveland.  [Vol.  VII,  N.  S. 

general  railroad  ordinance  passed  for  the  government  of  all 
the  railroads,  and  that,  by  its  provisions,  and  by  the  provisions, 
perhaps,  of  the  ordinance  of  renewal  itself,  it  was  to  be  subject 
to  all  future  legislation  of  the  city  in  respect  to  that  road. 

They  further  say  that,  by  the  provisions  of  the  charter,  "char- 
ter" so-called  (it  is  merely  a  contract  relation,  this  ordinance  of 
1879)  it  was  therein  provided  that,  on  failure  to  comply  with 
the  ordinance  and  with  the  former  ordinances,  the  general  ordi- 
nances, then  the  city  reserved  to  itself  the  right  to  pass  a  resolu- 
tion declaring  a  forfeiture  of  the  rights  of  the  railroad  com- 
pany to  run  its  road  and  to  take  posession  and  prevent  the  exer- 
cise of  its  rights.  There  is  no  controversy  as  to  the  fact  that 
they  did  pass  an  ordinance  originally;  that  is,  the  ordinance 
of  1889,  for  the  repavement  of  this  street,  requiring  the  rail- 
road company  to  pave  the  space  between  its  rails  or  its  tracks, 
and  that  subsequently  they  passed  this  requirement  that  it  do 
more  than  that,  to-wit,  pave  the  "devil  strip." 

They  further  say  that,  whether  that  be  so  or  not,  there  was 
a  settlement  and  adjustment  of  all  this  controversy  between 
the  city  and  its  officers  and  this  plaintiff  company,  setting  out 
that  there  was  still  another  ordinance  passed  than  the  one 
mentioned  in  the  petition,  to-wit,  an  ordinance  just  prior  to 
the  one  in  June,  which  required  the  paving  of  the  tracks  them- 
selves and  the  "devil  strip,"  but  there  had  been  an  ordinance 
passed  just  prior  to  that,  some  time  perhaps  in  April  (April  21, 
1890),  by  which  the  city  required  it  to  pave  not  only  its  tracks 
and  the  devil  strip,  but  a  foot  outside  of  its  tracks,  making  a 
space  of  sixteen  feet  instead  of  fourteen  feet  as  was  finally 
compromised  and  agreed  upon;  and  that  that  being  the  con- 
dition of  things,  a  law  having  been  passed  on  April  21st,  1890, 
by  the  Legislature  of  this  state,  authorizing  them  to  so  tax  in 
reference  to  these  pavements  all  railroad  companies  in  the  city, 
in  pursuance  of  that  authority,  they  passed  that  ordinance, 
and,  having  thus  passed  it,  that  the  railroad  companies  of  the 
eity  protested.  That  ordinance  was  passed  not  only  in  refer- 
ence to  this  road,  but  an  ordinance  was  passed  in  reference  to 
certain  other  roads  in  the  city,  requiring  them  to  pave  sixteen 
feet;  that  by  a  compromise  between  the  owners  of  the  ad- 
jacent property  and  the  eity  authorities  and  this  railroad  com- 


NISI  PRIUS  REPORTS— NEW  SERIES.  166 

1908.]  Street  Railway   v.   Cleveland. 

pany,  this  whole  subject  was  discussed  before  the  judiciary  com- 
mittee and  the*  committee  on  taxation,  and  it  was  agreed  that  the 
city  should  recede  from  its  demand  that  they  should  pave  six- 
teen feet,  and  might  pass  an  ordinance  with  their  assent,  the  as- 
sent of  everybody  interested,  requiring  them  to  pave  fourteen 
feet.  The  other  railroad  companies  have  carried  that  out  in 
good  faith,  but  this  railroad  company  refuses  to  carry  out  this 
agreement. 

It  further  avers  in  its  answer  (or  desired  to  so  amend; 
whether  it  has  formally  been  done  or  not,  it  was  allowed  to 
lie  done)  that  this  railroad  company  never  had  an  ordinance 
passed,  no  ordinance  was  ever  passed  giving  this  company  the 
right  to  lay  its  track  from  Willson  avenue  to  East  Madison 
avenue;  that  there  was  no  ordinance  upon  the  subject  at  all, 
and  they  possessed  no  right,  therefore,  to  cavil  about  terms,  for 
they  do  not  have  any  grant  at  all  over  that  road.  There  is  a 
general  denial  of  all  these  allegations  by  way  of  reply  on  the' 
part  of  the  plaintiff. 

First,  as  to  this  failure  of  a  grant.  I  am  inclined  to  think  that 
there  has  been  a  recognition  by  the  city  of  the  right  to  lay  down 
its  tracks  and  to  use  them  from  Willson  avenue  to  East  Madison 
avenue.  Some  years  ago  this  road  was  macadamized.  This  com- 
pany then  occupied  that  territory  by  its  rails.  It  then  paved, 
or  bore  its  portion  of  the  expense  of  paving  and  macadamizing 
that  street,  and  perhaps,  to  the  full  extent  of  covering  the  track 
and  this  "devil  strip."  That  was  under  a  prior  ordinance.  It 
was  therefore  a  recognition  by  the  city.  The  city  again  recog- 
nized it  when  it  passed  the  ordinance  of  1889  by  which  it  re- 
paved  this  street,  requiring  it  to  bear  an  expense,  and  it  has  re- 
cognized it  all  the  way  through  by  every  one  of  these  ordi- 
nances, and,  in  the  provisions  of  the  renewal  ordinance,  I  find 
there  was  a  reference  to  this  very  territory,  for  they  undertook 
to  describe  where  this  railroad  is  to  run,  and  they  get  it  on  to 
Woodland  avenue,  and  "hence  through  said  avenue  to  Madison 
avenue,  subject  to  the  following  conditions  and  limitations." 
So  that  it  is  contained  in  the  renewal  ordinance  of  1879,  and 
authority  is  granted  there  to  run  over  that  territory,  and  I 
apprehend,  there  is  no  serious  difficulty  in  that  part  of  the 


166  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Street   Railway   v.   Cleveland.  [Vol.  VII.  N.  S. 

But,  coming  to  the  provisions  of  the  contract  itself,  it  is  said 
that,  by  this  renewal  ordinance  of  1879,  it  was  made  subject  to 
the  future  legislation  of  the  city.  And  again,  in  Section  8  of  this 
renewal  ordinance,  all  right*  vested  in  the  city  council,  the  trus- 
tees of  water  works  and  gas  company  in  respect  to  the  care  and 
improvement  of  the  streets  are  expressly  reserved,  and  are  in 
no  wise  to  be  interfered  with  or  curtailed  by  this  grant.  Again, 
in  Section  14 — 

"That,  in  case  of  failure  by  neglect  or  otherwise  on  the  part 
of  said  Kinsman  Street  Railroad  Company,  its  successors  or 
assigns,  to  perform  all  and  singular  the  conditions  of  this 
ordinance,  together  with  all  and  singular  the  general  ordinance 
and  the  future  ordinances  of  the  city  in  relation  to  said  road, 
the  privileges  hereby  granted  and  renewed  shall  become  void  and 
of  no  effect,  and  shall  cease  upon  the  adoption  of  a  resolution 
of  council  to  that  effect." 

That  seems  to  be  a  provision  in  reference  to  the  enforcement 
of  the  ordinance.  That,  in  case  of  neglect  or  otherwise  on  the 
part  of  this  company,  its  successors  or  assigns,  to  perform  all  and 
singular  the  conditions  of  this  ordinance,  then  what  may  be 
done.  It  is  not  exactly  an  enacting  clause,  expressly  reserving 
in  so  many  words,  but  by  fair  implication,  perhaps,  it  is  as- 
sumed that  it  refers  to  the  former  ordinance  and  makes  that 
part  of  it.  By  the  old  ordinance,  the  general  railroad  ordinance, 
in  force  at  that  time.  Section  1  provides  (the  court  here  read 
Sections  1,  4,  13  and  14  of  said  ordinance). 

Now,  if  it  be  true  that  this  renewal  ordinance  places  them 
under  the  guidance  and  direction  of  the  general  ordinance  of 
the  city,  the  language  of  that  old  railroad  ordinance  is  certainly 
broad  enough  to  imply  and  to  carry  with  it  authority  for  the 
city  to  do  all  they  seem  to  have  done  or  required  in  this  case. 

Upon  the  subject  of  contract  relations,  there  can  scarcely  be 
a  doubt  that  when  an  express  contract  is  made  between  the  city 
and  a  railroad  company  in  reference  to  its  streets,  and  that  con- 
tract is  accepted  by  the  railroad  company  for  a  definite  period 
of  time,  that  that  makes  a  contract—that  we  can  ascertain 
what  that  contract  is — that  is  inviolable  and  must  be  recognized, 
and  can  not  be  done  away  with  simply  by  the  action  of  the 
city,  unless  they  have  expressly  reserved  to  themselves  rights  so 


NISI  PBIUS  REPORTS— NEW  SERIES.  167 

1908.]  Street  Railway  v.  Cleveland. 

to  do.  The  work  of  Elliott  on  Roads  and  Streets,  page  564, 
contains  this  language:  "It  is  the  prevailing  opinion  that  an 
ordinance  is  an  irrevocable  contract  when  it  is  accepted  by  the 
company."  Again,  on  page  565:  "What  the  Legislature  grants 
to  the  street  railway  company  can  not,  however,  be  taken  away 
or  abridged  by  the  municipality."  That  is  undoubtedly  true, 
as  a  general  proposition  of  law. 

"That  the  contract  obligations  between  the  city  and  parties 
occupying  the  streets  are  the  same  that  they  are  between  any 
other  parties,  and  yet  there  are  certain  rights  which  the  city 
may  legally  and  properly  reserve  to  itself,  and,  perhaps,  certain 
things  which  they  can  not  reserve,  to-wit,  the  governmental  care 
and  control  which  is  placed  in  the  hands  of  the  city  as  a  repre- 
sentative of  the  state,  alienate  or  give  away." 

That  is  undoubtedly  true. 

This  doctrine  of  contract  relation  has  been  recognized,  as 
has  been  said,  in  the  29th  Ohio  State,  but  there  was  an  express 
provision  in  the  ordinance  itself  that  there  should  be  a  contract 
relation  existing  between  them,  and  their  rights  should  be  con- 
tract rights,  yet  the  general  proposition  can  not  be  denied,  I 
think,  that  the  obligations  of  the  contract  must  be  regarded. 
Now,  the  question  is,  what  was  this  contract  t 

It  is  perfectly  manifest  and  clear  that,  by  this  renewal  ordi- 
nance of  1879,  this  company  was  required  to  pave  the  tracks  be- 
tween its  rails.  Some  argument  has  been  made  by  the  city  in 
this  case,  from  the  language  used,  that  it  might  reasonably  be 
supposed  that  between  the  tracks  meant  everything  occupied 
by  the  company,  inasmuch,  for  instance,  as  the  rails  are  laid  up- 
on ties  and  these  ties  extend  outside  of  the  rails,  that  that  is  a 
part  of  its  track,  and  that  a  fair  interpretation  of  it  covers  the 
whole,  ground  which  they  use,  but  I  think  a  careful  perusal  of 
the  language  of  this  ordinance  and  the  ordinance  ~as  worded 
speaks  of  between  the  rails,  "its  tracks  between  its  rails,"  must 
exclude  anything  outside  of  them.  The  city  certainly  so  in- 
terpreted it  in  making  its  assessment,  and  that,  it  seems  to  me, 
must  be  a  fair  interpretation  of  it. 

Now,  when  this  original  assessment,  or  this  original  ordinance 
was  passed,  both  the  renewal  ordinance  and  the  ordinance  as- 
sessing for   this  other  pavement,   the   track  between   its  rails, 


168  CUYAHOQA  COUNTY  COMMON  PLEAS. 

Street  Railway  v.  Cleveland.  [Vol.  VII,  N.  S. 

the  general  law  of  this  state,  as  passed  by  the  Legislature, 
recorded  in  Section  2504  of  the  Revised  Statutes,  provided  that 
the  city  of  Cleveland,  or  cities  generally,  might  require  a  street 
railroad  to  pave  its  tracks  between  its  rails,  and  that  is  all  that 
it  provided  for.  That  was  the  language  of  the  act,  and,  in 
pursuance  of  that  act,  as  it  then  stood  upon  the  statute  book, 
this  renewal  ordinance  was  passed,  following  the  language  of 
the  statute.  In  pursuance  of  it,  this  assessment  ordinance  of 
1889  was  also  passed,  assessing  the  company  for  the  pavement  be- 
tween the  rails  of  its  track,  and  it  was  thought  necessary  to  go  to 
the  Legislature  before  anything  else  could  be  done  and  get  an 
act  passed  by  which  cities  wece  empowered,  or  this  city,  being  a 
city  of  the  second  grade  of  the  first  class,  only  was  empowered 
to  charge  railroads  with  sixteen  feet  of  this  space — make  them 
pay  for  that ;  that  Ihe  railroad  and  the  city  could  agree  in  pur- 
suance of  this  general  act  when  it  was  passed — the  old  general 
railroad  ordinance  which  I  have  read,  passed  prior  to  the  re- 
newal of  this  ordinance,  and  under  which  it  is  claimed  that  they 
are  now  operating,  or  that  this  road  is  now  operating  by  the 
terms  of  the  renewal  ordinance;  provided  something  over  and 
beyond  what  the  statute  at  the  time  permitted  to  be  done,  to-wit, 
sixteen  feet.  There  is  no  doubt  about  that,  and  yet  if  a  railroad 
company  should  agree  with  the  city  to  adopt  that,  that  being  a 
subject  of  contract,  there  is  no  question  about  the  obligation  to 
perform  just  that  thing;  but  in  the  absence  of  any  agreement 
upon  the  subject,  I  am  apprehensive  that  the  eity  authorities 
would  have  the  right  to  compel  it  to  pave  just  what  the  law 
permitted  them  to  so  compel  them  to  pave ;  that  the  act  itself, 
the  ordinance,  went  beyond  the  limitation  of  the  law  at  that 
time  I  have  no  doubt,  and  yet,  if  they  have  come  in  and  said 
that  it  would  be  the  subject  of  contract  relation,  they  must  abide 
by  it. 

Now,  getting  back  to  the  contract  itself,  with  this  state  of 
the  law,  they  did  contract  when  they  renewed  this  ordinance  to 
pave  the  tracks  between  the  rails,  and  that  only.  This  contract 
was  to  be  in  existence  for  twenty-five  years,  and  I  am  inclined 
to  think  that  that  is  all  they  did  contract  for,  and  that  it  granted 
a  contract  obligation,  notwithstanding  the  language  of  the  gen- 
eral ordinance  that  future  legislation  might  be  had  in  reference 


NISI  PRIUS  REPORTS— NEW  SERIES.  169 

1908.]  Street  Railway  v.  Cleveland. 

to  this  road.  That  future  legislation  could  be  had  and  was  had 
and  properly,  there  can  be  no  controversy  in  reference  to  all 
governmental  matters,  all  police  regulations  and  all  sanitary 
matters,  all  matters  as  to  how  many  cars  they  should  run  and  as 
to  what  fare  they  should  charge,  all  these  things  were  subjects 
that  the  city  might  properly  legislate  upon.  But  when  we  find 
an  express  agreement  as  to  how  much  of  this  track  shall  be  paved, 
then,  notwithstanding  the  general  ordinance,  the  old  one,  pro- 
vided for  a  greater  space,  it  seems  to  me  that  that  must  control 
in  the  case.  Take  this  very  Section  14,  and  it  provides  that,  in 
case  of  a  failure  by  neglect  or  otherwise  on  the  part  of  said 
Kinsman  Street  Railroad  Company,  its  successors  or  assigns,  to 
perform  all  and  singlar  the  conditions  of  this  ordinance,  to- 
gether with  all  and  singular  the  general  ordinance  and  the 
future  ordinances  of  the  city  in  relation  to  said  road,  the  privi- 
leges hereby  granted  shall  become  null  and  void  on  the  passage 
by  the  council  of  a  resolution  to  that  effect. 

It  is  perfectly  patent  that  it  was  not  designed  that  they 
should  comply  with  both  of  those  ordinances,  one  requiring 
sixteen  feet  and  the  other  requiring  the  space  between  the  tracks, 
ten  feet,  more  or  less,  and  it  was  not  intended  that  there  should 
be  a  forfeiture  if  they  did  not  comply  with  both,  two  incon- 
sistent things.  When  they  specially  legislate  as  to  how  much 
they  may  or  shall  he  required  to  pave,  the  language  being 
"whenever  it  shall  be  deemed  necessary  to  repave,"  then  they 
shall  be  required  to  pave  so  much,  it  seems  to  the  court  that  that 
is  conclusive  upon  the  city,  and  that  the  general  provision  does 
not  apply  to  a  case  of  that  kind.  As  I  have  already  indicated, 
it  was  a  provision  beyond  what  the  law  would  permit  them  to 
make,  in  the  absence  of  an  agreement  at  the  time,  and,  it  seems 
to  me  entirely  conclusive,  that  when  it  refers  to  the  future  legis- 
lation, the  future  ordinances  of  the  eity,  it  is  in  reference  to  all 
those  legislative  matters  such  as  governmental  matters,  police 
and  sanitary  regulations,  regulations  as  to  fare,  etc.,  and  all 
those  things  necessary  to  come  within  the  scope  of  this  future 
legislation  that  is  referred  to,  and  there  can  be  but  one  conclusion 
to  be  arrived  at,  taking  the  whole  body  of  these  two  things  to- 
gether, and  that  is  that  they  did  agree  that  amount  and  that  only 
should  be  paved  by  this  railroad  company  for  the  space  of 


170  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Street   Railway   v.   Cleveland.  [Vol.  VII,  N.  S. 

twenty-five  years.  It  may  or  it  may  not  have  been  a  good  con- 
tract. That  is  a  matter  with  which  the  courts  have  nothing  to 
do.  Such  it  seems  to  the  court  they  have  done ;  have  made  such 
an  agreement  in  view  of  all  these  facts. 

I  have  been  referred  here  to  numerous  ordinances,  dealing 
not  only  with  this  Kinsman  street  railroad,  but  with  the  West 
Side  street  railroad,  under  which  certain  extensions  were  granted 
aud  certain  conditions  imposed,  and  that  they  should  manage 
these  extensions  in  pursuance  of  these  ordinances.  I  do  not  see 
that  they  affect  the  general  rights  of  the  company  under  this 
ordinance. 

In  reference  to  the  proposition  that  the  street  railroad  com- 
pany can  not  be  interfered  with  and  stopped  by  the  city  au- 
thorities in  this  summary  manner,  I  do  not  believe  that  objec- 
tion is  well  taken.  'If  I  could  have  found  that  this  ordinance 
was  subject  to  the  general  ordinance,  and  subject  to  the  power 
of  the  city  to  legislate  at  any  time  when  it  saw  fit,  then  I  think 
that  the  reservation  of  this  Section  14  and  the  provisions  there- 
in made  that  they  could,  on  the  passage  of  a  resolution,  forfeit 
this  license  and  this  right  of  the  company,  it  would  -be  perfectly 
legitimate  for  the  city  to  do  exactly  what  it  did  do,  for  they 
were  right  about  it,  notwithstanding  the  proposition  that  has 
been  urged  here  that  there  is  something  in  the  passage  of  this 
act  after  the  ordinance  had  been  passed  for  the  assessment; 
that  it  was  then  a  pending  proceeding,  and  that  a  legislative  act 
or  expression  repealing  it,  etc.,  would  be  informal  and  invalid, 
and  would  not  affect  it.  I  do  not  think  they  were  necessarily  a 
party  to  that  .proceeding,  and  with  this  reservation  expressly 
contained  in  the  charter  that  they  might  do  this  thing,  that  that 
provided  exactly  what  the  city  could  do. 

There  is  only  one  remaining  subject,  and  that  is  one  upon 
which  the  court  has  had  more  doubt  than  any  other,  and  that 
is  upon  the  subject  of  this  adjustment  and  settlement. 

If  this  railroad  company,  on  the  passage  of  that  ordinance 
No.  1169,  by  which  they  were  required  to  pave  sixteen  feet 
(whether  it  was  a  legitimate  ordinance,  or  a  proper  ordinance, 
it  was  a  claim  made  by  the  city,  and  they  [the  railroad  company] 
claimed  the  other  way— and  it  seems  that  there  was  an  ordi- 
nance passed  in  respect  to  certain  other  roads— of  course,  what 


NISI  PRIUS  REPORTS— NEW  SERIES.  171 

1908.)  Street  Railway  v.  Cleveland. 

the  rights  of  the  other  roads  were  or  what  their  ordinances  were, 
or  whether  their  rights  were  the  same  as  those  of  this  company 
is  not  upon  inquiry,  and  is  not  a  proper  subject  of  investiga- 
tion here),  but  if  these  people  came  down  and  made  a  stipula- 
tion that  they  would  pave  fourteen  feet,  and  another  ordinance, 
1169,  passed  some  time  in  April,  was  amended  and  changed 
into  the  ordinance  known  as  1202,  by  which,  instead  of  sixteen 
feet,  they  were  required  to  pave  fourteen  feet,  and  they  stood  by, 
consenting  to  that,  waiting  perhaps  until  the  city  had  refunded 
a  portion  of  this  fund  that  had  been  collected  of  the  property 
owners,  they  stand  in  no  position  to  come  into  a  court  of  equity 
now  and  say,  though  that  occurred,  that  it  was  not  legal  and 
therefore  they  won't  fulfill  it.  If  I  should  find  that  state  of 
things  to  exist,  I  should  dismiss  this  petition  at  once. 

How  stands  the  proof  in  reference  to  that?  It  is  said  that 
these  two  committees  of  the  council  were  in  consultation,  in 
joint  session,  and  that  Mr.  Mulhern,  the  superintendent  of  this 
railroad  company,  came  over;  that  the  counsel  of  the  railroad 
was  also  present;  that  they  were  objecting  to  the  legality  of 
this  ordinance,  which  undertook  to  require  the  company  to 
pave  sixteen  feet;  that  the  property  owners  were  also  there. 
They,  of  course,  were  interested  in  it,  and  they  were  in  con- 
tending for  the  existence  of  the  ordinance  as  it  then  stood,  re- 
quiring sixteen  feet ;  that  it  wan  then  said  that,  if  fourteen  feet 
was  the  measure  that  they  should  pave,  that  there  would  be  no 
objection  to  that,  and  they  would  proceed  and  do  it.  Now,  that 
was  so  represented,  it  is  claimed,  to  this  committee,  and  that 
the  committee,  in  pursuance  of  that  arrangement,  reported  an 
ordinance  recommending  fourteen  feet  to  be  paved;  that  the 
city  solicitor,  it  is  said,  in  pursuance  of  such  an  undertaking, 
reported  in  favor  of  making  the  space  fourteen  instead  of  six- 
teen feet,  thus  amending  the  ordinance,  and  stated  in  his  recom- 
mendation to  the  council,  officially,  that  it  had  been  agreed  upon 
between  all 'parties  and  that  the  council,  proceeding  on  that 
supposition,  had  acted  and  passed  this  amended  ordinance,  re- 
quiring fourteen  instead  of  sixteen  feet  of  paving.  In  proof  of 
that,  we  have  the  affidavits  of  some  six  or  seven  parties,  prop- 
erty owners,  the  chairman  of  this  joint  meeting.  Mr.  Davidson, 
and  an  assistant  city  solicitor  who  was  present,  making  such  a 


172  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Street  Railway  v.  Cleveland.  [Vol.  VII,  N.  8. 

statement  that  such  an  understanding  was  come  to;  that  Mr. 
Mulhern  so  represented,  and  that  these  recommendations  were 
made  upon  the  strength  of  that  statement  in  connection  with  the 
same  thing  being  gone  over  with  the  other  roads.  On  the  other 
side,  it  is  said  by  Mr.  Mulhern  that  he  made  no  such  statement ; 
that  the  most  he  did  say  was  he  was  there  and  counsel  for  the 
road  was  there,  protesting  against  it,  and  insisting  that  they  were 
not  bound  to  pave  but  ten  feet  instead  of  sixteen ;  that  he  con- 
tinually protested  about  it;  that  after  the  committee  had  gone 
into  secret  session  and  came  out,  he  immediately  went  to  one 
of  the  committee  and  asked  what  had  been  done.  This  one  of 
the  committee  to  whom  he  was  thus  speaking  responded  that 
they  had  agreed  upon  a  compromise  of  fourteen  feet.  Mr. 
Mulhern  then  immediatly  said  to  him  that  the  road  would  in 
his  opinion  contest  that.  We  have  the  affidavit  of  that  member 
of  the  committee,  who  says  that  was  what  took  place.  Mr. 
Mulhern  did  so  state  to  him.  The  most  that  Mr.  Mulhern 
says  he  did  do  about  it  was  that  when  this  matter  was 
upon  its  passage  in  the  council,  somebody  asked  him  if  he  was 
going  to  contest  it,  and  he  said  "no,"  believing,  as  he  supposed, 
that  it  having  been  thus  recommended  and  talked  over,  that 
they  would  pass  it  anyhow,  but  it  was  always  the  intention  of 
his  road,  so  far  as  he  knew,  to  contest  the  legality.  We  have  the 
affidavit  of  Mr.  Mulhern  also  upon  the  subject  that  he  had  no 
authority  to  make  such  a  compromise;  had  been  instructed  ex- 
actly the  reverse  all  the  time.  We  have  the  affidavit  of  Mr. 
Hanna,  the  president  of  the  road,  Mr.  Emery,  the  vice-president 
of  the  road,  Mr.  Hanna,  the  secretary  of  the  road,  and  all  of 
them  say  that  Mr.  Mulhern 's  duties  do  not  lie  in  that  direction 
at  all;  he  had  no  authority  whatever  about  it,  and  that  they 
had  instructed  their  counsel  at  all  times  to  contest  the  validity 
of  this  matter  to  make  them  pave  more  than  the  original  ordinance 
required,  to-wit,  ten  feet.  We  have  also  the  affidavit  of  two  of 
the  judiciary  committee.  They  say  there  was  no  understanding, 
so  far  as  they  know;  heard  no  such  thing;  no  such  agreement 
was  made  so  far  as  it  came  to  their  knowledge.  We  have  two  of 
the  tax  committee,  who  were  in  joint  session  at  the  same  time, 
two  members  of  that  committee,  who  also  testify  to  the  same 
thing. 


NISI  PBIUS  REPORTS— NEW  SERIES.  173 

1908.]  Street  Railway  v.  Cleveland. 

While  it  is  entirely  unsatisfactory  to  test  questions  of  fact 
upon  affidavits  without  having  The  witness 'before  you  and  sub- 
ject to  a  cross-examination,  1  have  come  to  the  conclusion  that 
I  can  not  find,  in  view  of  all  the  facts  in  this  case,  that  there  was 
a  definite  understanding  and  an  authorized  understanding  made 
by  which  they  consented  to  this  compromise  and  arrangement. 
It  may  be  that  it  will  appear  they  have  done  so,  when  the  wit- 
nesses are  got  into  this  court,  when  the  facts  can  be  developed  as 
they  really  are,  and  then  perhaps  we  can  find  out  what  the  real 
fact  is;  but  it  is  for  the  city  to  establish  that;  the  burden  is 
upon  it  to  prove  that  this  settlement  and  this  adjustment  was 
made.  I  am  unable  to  say  it  has  been  so  established  by  the 
evidence. 

It  is  said  here  that  this  railroad  company  took  out  a  permit  to 
do  this  work  under  this  ordinance,  and  that  it  did  tear  up  a 
space  substantially  covering  not  only  the  fourteen  feet,  but  the 
sixteen  feet.  They  were  required  to  move  the  tracks  and  con- 
fess to  that  themselves;  that  they  went  down  to  the  city  civil 
engineer  for  a  permit,  and,  when  they  asked  for  it,  he  issued 
one,  saying  that  they  should  pave  the  "devil  strip"  as  well  as 
between  the  rails.  Of  course,  that  was  wholly  unnecessary.  All 
that  he  could  say  about  it  was  to  give  them  a  permit  to  pave  in 
accordance  with  the  ordinances;  just  what  they  required;  he 
could  not  interpose  anything  in  it  that  was  not  in  the  ordinances 
themselves.  Well,  upon  that  being  placed  in  it,  they  objected 
and  would  not  take  the  permit,  whereupon  the  civil  engineer 
struck  out  the  words  "devil  strip"  and  they  took  it  in  that  shape, 
and  went  on  to  do  this  work.  They  were  required  to  move  these 
tracks  in  advance  of  the  paving.  The  only  bearing  that  ean 
possibly  have  had  upon  the  rights  of  the  city  is  to  throw  light 
upon  the  contention  here  as  to  whether  there  was  a  settlement  or 
not,  showing  that  at  that  date  they  were  contesting  and  that  all 
the  time  they  were  contesting  the  right  of  the  city  to  require 
them  to  pave  more  than  the  ten  feet. 

It  is  said  further  that  they  dug  oat  a  large  space  from  between 
the  tracks.  It  is,  at  any  rate,  described  as  all  dug  up,  and  that 
they  did  this  in  pursuance  of  this  arrangement  to  lay  down  this 
tracks;  that  shows  the  fact  that  they  so  understood  it.  We  have 
not  had  very  much  testimony  as  to  that.     We  have  had  some 


174  HAMILTON  COUNTY  COMMON  PLEAS. 

~  Castner  v.  Pleasant  Ridge.  [Vol.  VII.  N.  8. 

statements,  pro  and  con,  that  the  water  works  commissioners 
did  it,  laying  down  a  pipe,  *  •  •  and.  on  the  other  hand 
that  they  did  not  have  anything  to  do  with  it;  that  they  laid  it 
down  outside  of  the  "devil  strip"  entirely.  We  have  not  had 
any  evidence  on  that  subject  that  the  court  can  take  action  upon. 
But,  it  is  contended,  at  least,  that  they  disturbed  the  "devil 
strip"  more  or  less,  and  they  say  that  they  did  not  think  it 
necessary  to  put  that  in  repair  again  because  the  paving  con- 
tractor was  following  them  up;  therefore,  there  is  no  require- 
ment for  us  to  put  it  back.  If  it  was  a  question  as  to  whether 
he  had  torn  up  the  street,  and  was  obliged  to  put  that  back 
again  in  condition  in  which  he  found  it,  we  would  undoubtedly 
do  it.  But  that  is  not  the  question  here;  the  question  is  whether 
he  was  required  to  pave  this  strip. 

Now,  in  view  of  these  facts  (I  have  gone  over  it  at  much 
greater  length  than  I  had  anticipated  I  should  do  when  I  started 
to  give  my  views  on  this  matter,  but  it  seems  to  have  been  neces- 
sary to  go  over  a  good  deal  of  ground  here),  I  have  finally  come 
to  the  conclusion  that  a  temporary  injunction  must  he  granted 
in  this  case,  and  such  will  be  the  entry. 


INDEBTEDNESS  INCURRED  BY  A  VILLAGE  IN 
DISREGARD  OF  LAW. 

Common  Pleas  Court  of  Hamilton  County. 

Philip  Castner  v.  Village  of  Pleasant  Ridge  et  al. 

Decided,   November  1,   1907. 

Municipal  Corporations— Illegal  Purchase  of  Supplies — Authority  for 
Payment  for  can  not  be  Based  on  Moral  Obligations — Villages — 
Con  (roc  is — -In }  unctions. 

Where  a  village  purchases  supplies  in  an  amount  in  excess  of  (500 
'  without  advertising  for  bids  or  entering  Into  any  contract  as  re- 
quired by  law,  the  fact  that  the  goods  were  purchased  and  de- 
livered In  good  faith  does  not  render  the  village  liable  therefor 
because  of  the  moral  obligation  incurred,  and  upon  suit  by  a  tax- 
payer an  injunction  will  He  agalnat  payment  of  the  bill. 


NISI  PRIUS  REPORTS— NEW  SERIES.  175 

1JH)8.]  Caatner  v.  Pleasant  Ridge. 

A.  H.  Morrill,  for  plaintiff. 

J.  W.  Heintzman,  for  defendants. 

O'Connell,  J. 

This  is  a  suit  brought  by  a  tax-payer  of  the  village  of  Pleasant 
Ridge  to  enjoin  the  proper  village  officers  From  paying  a  cer- 
tain account  for  broken  stone  furnished  to  the  village  in  viola- 
tion of  the  statutes  governing  the  purchase  of  supplies  by  mu- 
nicipal officers. 

The  pleadings  admit  the  violation  of  the  statutes  in  that  sup- 
plies in  excess  of  $500  were  purchased  without  advertising  for 
bids  as  required  by  law ;  in  fact  no  contract  with  any  firm  for 
any  amount  seems  to  have  been  entered  into,  as  far  as  appears 
from  the  village  records.  The  village  in  its  answer  contends, 
however,  that  as  the  stone  was  actually  used  by  the  village  a 
"moral  obligation"  rests  upon  it  to  pay  for  the  same;  and  the 
village  council,  in  recognition  of  this  "moral  obligation,"  passed 
an  ordinance  authorizing  payment.  The  plaintiff  in  his  petition 
seeks  to  enjoin  the  payment  of  the  money  under  the  provisions 
of  this  ordinance. 

The  reply  of  the  plaintiff  to  the  answer  of  the  defendant  fur- 
ther alleges  that  the  stone  was  of  inferior  quality ;  that  its  pur- 
chase was  a  fraud  upon  the  tax-payers,  and  that  the  acts  of  the 
village  officers  making  the  purchase  were  fraudulent. 

The  plaintiff  wholly  failed  to  substantiate  these  allegations  of 
his  reply.  On  the  contrary,  the  evidence  clearly  showed  that  the 
stone  was  of  good  quality  and  that  the  price  was  fair  and  reason- 
able. Further,  the  books  of  the  firm  from  whom  the  stone  was 
purchased,  the  accounts  of  the  railway  company  over  whose 
road  the  stone  was  shipped,  and  the  accounts  of  the  contractor 
who  hauled  and  spread  the  rocks  on  the  village  streets,  all  sub- 
stantially agree  as  to  the  amount  delivered.  No  fraud  or  col- 
lusion of  any  kind  was  shown  on  the  part  of  the  village  officials. 
A  total  disregard,  however,  of  all  the  necessary  legal  formalities 
appertaining  to  contracts  was  shown  by  the  village  council  as  is 
admitted  in  their  answer  as  noted  above. 

Paragraph  4  of  the  syllabus  in  the  case  of  Wellston  v.  Mor- 
gan, 65  Ohio  St.,  219,  is  as  follows : 


176  HAMILTON  COUNTY  COMMON  PLEAS. 

Caatner  v.  Pleasant  Ridge.  [Vol.  VII,  N.  S. 

"Persons  dealing  with  officers  of  municipalities  must  ascer- 
tain for  themselves,  and  at  their  own  peril,  that  the  provisions  of 
the  statutes  applicable  to  the  making  of  the  contract,  agreement, 
obligation  or  appropriation  have  been  complied  with." 

This  the  firm  furnishing  the  stone  totally  failed  to  do,  and  sent 
car-load  after  car-load  as  ordered'  by  one,  or  sometimes  two,  of  the 
village  eouncilmen.  The  village  contends  that  having  received  the 
stone  it  is,  under  all  the  circumstances  of  the  case,  morally 
obliged  to  pay  for  the  same.  The  village  solicitor,  in  support  of 
the  right  of  the  village  to  pay  for  the  stone  as  a  moral  obliga- 
tion, cites  the  case  of  Emmert  v.  Elyria,  74  Ohio  St.,  185,  at 
pages  194  and  195. 

The  opinion  of  the  Supreme  Court  as  there  stated  appears 
to  bear  out  his  contention.  But  that  opinion  was  prompted  by 
a  state  of  facts  entirely  different  from  those  in  the  case  at  bar. 
In  that  case  the  court  distinctly  finds  that  there  was  a  contract; 
that  the  contract  was  made  in  accordance  with  the  statutes,  and 
that  the  contracting  company  had  fully  complied  with  all  its 
terms.  The  whole  contention  of  the  plaintiff  therein  rested  on  a 
narrow  and  technical  view  of  the  provisions  of  the  code  with 
reference  to  the  construe!  ion  to  be  placed  on  the  question  as  to 
whether  or  not  the  money  was  in  the  treasury  prior  to  the  award- 
ing of  the  contract. 

In  tie  case  at  bar  there  was  a  total  and  careless  disregard  of 
the  requirements  of  the  law  from  the  very  beginning  by  all  par- 
ties concerned.  While  it  is  a  hardship  on  the  firm  which  fur- 
nished the  stone,  yet  a  recognition  of  "moral  obligations"  such 
as  these  would  open  the  door  to  such  unwarranted  proceedings 
on  the  part  of  municipal  officers  that  much  evil  would  inevit- 
ably result. 

The  prayer  of  the  petition  for  a  permanent  injunction  must 
therefore  be  allowed. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Yakey,  Executor,  v.  Struntt. 


UABOJTY  OT  PRINCIPAL  DEBTOR  TO  ESTATE  OF  HIS  SURETY 
Of  WHICH  HE  IS  EXECUTOR- 

Common  Pleas  Court  ot  Shelby  County.  ■ 

Charles  L.  Yakey  v.  Alice  G.  Strunk.  * 

Decided,  1908. 

Promissory  Notes — Maker  Becomes  Executor  of  Estate  of  Surety— 
Right  of  Surety  to  Indemnity  is  a  "Claim" — Nature  of  Contract 
Between  Principal  and  Surety— Administrator  Must  Charge.  Him- 
self With  Amount  of  Indebtedness  in  Excess  of  his  Beneficial  In- 
terest in  the  Estate — As  to  Conversion  of  Debt  into  Assets  by  Ap- 
pointment of  Debtor  as  Administrator. 

An  insolvent  principal  maker  of  a  note,  who  Is  named  as  executor  In 
the  will  of  his  surety  and  accepts  and  qualifies  as  such,  and  who 
pays  his  own  notes  as  they  subsequently  fall  due  as  claims  against 
the  estate,  is  properly  chargeable,  under  the  provisions  of  Section 
6069,  Revised  Statutes,  as  for  so  much  money  In  his  hands. 

/.  D.  Barnes,  for  plaintiff  in  error. 
Wicoff,  Emmons  &  Needles,  contra. 

Mathers,  J. 

Charles  L.  Yakey  was  the  principal  maker,  and  his  father, 
Peter  S.  Yakey,  surety  on  certain  notes.  The  father  died  testate, 
before  the  notes  came  due,  and  named  Charles  his  executor,  who 
accepted  the  trust,  and  to  whom  letters  testamentary  were  is- 
sued, and  who  gave  bond  as  such.  At  the  time  of  his  appoint- 
ment and  ever  since  the  executor  was  and  has  been  insolvent. 
The  notes  fell  due  during  his  incumbency  and  were  presented  to 
him  as  executor,  as  claims  against  the  estate,  and  were  by  him 

*  Affirmed  by  the  Circuit  Court  June  2,  1908,  In  the  following  memo- 
randum opinion: 

"For  the  reasons  stated  In  the  well  considered  and  elaborate  opinion 
rendered  in  the  above  entitled  action  by  the  Judge  of  the  Common  Pleas, 
the  Judgment  of  that  court  is  affirmed  at  the  costs  ot  the  plaintiff 
in  error,  and  the  cause  Is  remanded  to  carry  this  Judgment  Into  exe- 
cution.   Exceptions  for  plaintiff  In  error  may  be  noted  In  the  entry." 


178  SHELBY  COUNTY  COMMON  PLEAS. 

Taker,  Executor,  t.  Strunk.  [Vol.  VII,  N.  3. 

allowed  and  paid  out  of  the  funds  thereof.  In  his  final  account 
he  took  credit  for  these  payments,  amounting  to  $2,800.90,  but  at 
no  time  did  he  charge  himself  with  their  amount.  On  exceptions 
to  his  final  account,  the  Probate  Court  of  Shelby  County  ordered 
him  to  charge  himself  with  the  amount  paid  on  these  claims' 
against  the  estate  as  with  so  much  money  in  his  hands.  To  this 
order  of  the  probate  court  he  prosecutes  error  here. 

The  exact  point  involved  has  never  been  determined  in  Ohio, 
so  far  as  the  court  is  aware.  Long  before  the  adoption  by  stat- 
ute in  1840,  of  the  rule  prescribed  by  Section  6069,  our  Supreme 
Court  (in  Big rtow  v.  Bigelow,  4  O.,  138)  determined  that  it  was 
then  "a  well  settled  principle  that  if  a  creditor  make  his  debtor 
his  executor,  it  is  not  absolutely  an  extinguishment  of  the  debt, 
but  it  remains  as  assets  in  his  hands";  but  that  such  action  "is, 
however,  a  quasi  release  at  law,  because  he  can  not  be  sued";  and 
that  a  personal  action,  once  suspended,  is  extinct.  Hall  v.  Pratt, 
5  O.,  72,  and  Tracy  v.  Cord,  2  O.  S.,  431,  are  to  the  same  effect. 
The  reason  of  the  rule  is  succinctly  stated  in  Winckop  v.  Bass,  12 
Mass.,  199,  which  case  was  cited  with  approval  in  Bigelow  v. 
Bigelow,  supra.    It  is  that — 

"The  executor  having  voluntarily  assumed  the  trust,  which 
prevents  any  one  from  suing,  and  being  unable  to  sue  himself,  he 
shall  be  considered  as  having  paid  the  debt  and  as  holding  the 
amount  in  his  bands  as  administrator." 

While  the  correctness  of  the  rule  laid  down  in  Bigelow  v. 
Bigelow  is  questioned  in  Rossman  v.  McFarland,  9  0.  S.,  370, 
yet  the  Bigelow  case  has  been  cited  numerous  times  since  as  au- 
thority for  the  rule  referred  to  (McCaughery  v.  Jaeoby,  54  O. 
8.,  498 ;  James  v.  West,  67  0.  S-,  45 ;  Perkins  v.  Scott,  9  C.  C, 
207).  In  McCoy  v.  Allen,  9  C.  C,  607,  the  Bigelow  case  is  re- 
pudiated as  authority  for  this  rule.  But  this  decision  was  sub- 
sequently reversed,  without  report,  in  57  O.  S.,  641,  and  the 
judgment  of  the  common  pleas  affirmed,  which  latter  judgment 
was  based  on  the  principle  enunciated  in  the  Bigelow  case. 

Section  6069,  originally  Section  66  of  the  act  of  1840,  enacted 
long  after  the  decision  in  the  Bigelow  case  and  presumably  for 
the  purpose  of  codifying  the  law  on  the  subjcet,  as  announced 


NISI  PRIUS  REPORTS— NEW  SERIES.  1T9 

1908.1  Taker,  Executor,  v.  Strunk. 

by  these  decisions,  by  its  terms  only  relates  to  executors.  Tet 
the  rule  enunciated  in  the  Bigelow  case,  which  makes  adminis- 
trators equally  accountable  with  executors  (the  ease  of  an  admin- 
istrator being  within  the  same  reason),  is  applied  to  administra- 
tors (James  v.  West,  67  0.  S.,  45 ;  Perkins  v.  Scott,  9  C.  C,  207 ; 
Martin  v.  Train,  6  C.  C,  49).  Thus  the  courts,  holding  the 
maxim  "expressio  unius,"  etc.,  inapplicable  to  this  Section  6069, 
have  applied  the  law  of  these  early  cases  to  cases  coming  within 
the  principle  there  stated. 

In  James  v.  West,  67  0.  S.,  45,  however,  Judge  Burket,  in 
delivering  the  opinion,  said : 

"While  under  the  rule  of  decision  of  this  court  •  •  • 
debts  owing  by  an  administrator  to  the  estate  are  to  be  regarded 
and  treated  as  assets  in  his  hands,  the  rule  is  so  far  unsatisfactory 
that  it  should  not  be  extended,  but  should  be  confined  to  eases 
in  which  the  administrator  owes  the  debt  individually  and  un- 
conditionally.  ' ' 

And  in  Shields  v.  Odett,  27  0.  S.,  398,  it  was  held  that  the 
principle  under  consideration  "does  not  apply  to  one  who  is 
only  conditionally  liable  to  the  estate."  In  the  opinion  in  the 
latter  ease,  Judge  Wright,  speaking  of  the  Bigelow  case,  said : 

"The  first  sentence  of  the  opinion  is,  'the  first  question  made 
is  whether  the  appointment  of  a  debtor  administrator  extinguishes 
the  debt,  and  eo  instanti,  turns  it  into  assets.'  This  shows  that 
it  must  have  been  a  debt  existing  during  the  lifetime  of  the  in- 
testate, for  it  is  a  debtor  who  is  appointed  administrator.  *  •  • 
Of  course  then  that  debt  must  have  existed  during  the  life  time 
of  the  testator.     2  Williams,  Executors,  1123." 

>  In  these  and  in  all  the  other  cases  the  court  has  examined  the 
obligation  on  the  part  of  the  executor  or  administrator  is  spoken 
of  as  a  debt,  an  accrued  claim.  But  the  words  of  the  statute  do 
not  limit  it  to  such  an  obligation.  Instead  of  speaking  of  it  as  a 
debt  the  language  is  "any  just  claim."  And  then  the  statute 
proceeds  to  require  such  a  claim  to  be  inventoried  and  "at  the 
time  such  debt  or  demand  becomes  due"  the  executor  shall  be 
liable  for  it  as  for  so  much  money  in  his  hands.  Manifestly  by 
the  word  claim  the  statute  contemplates  something  besides  an 


180  SHELBY  COUNTY  COMMON'  PLEAS. 

Yakey,  Executor,  v.  Btrunk.  [Vol.  VII,  N.  8. 

actual  accrued  indebtedness  in  favor  of  the  testator.  Martin  v. 
Train,  6  C.  C,  49. 

Did  the  relation  of  surety  on  the  notes  of  his  insolvent 
executor  give  the  testator  any  "just  claim"  against  the  former? 

What  is  a  claim!  "In  a  judicial  sense  it  is  a  demand  of 
some  matter  as  of  right  made  by  one  person  upon  another,  to  do 
or  to  forbear  to  do  some  act  or  thing  as  a  matter  of  duty. ' '  Story, 
J.,  in  Prigg  v.  Commonwealth,  16  Peters,  615  (41  U.  S.). 

A  demand,  according  to  Anderson's  Law  Dictionary,  is  "an 
account  upon  which  money,  or  other  thing  is,  or  is  claimed  to  be 
due,"  but  it  is  further  denned  as  "a  legal  obligation."  It  is 
said  to  be  the  most  comprehensive  word  in  law,  except  the  word 
claim.  If  "claim"  be  any  more  comprehensive  than  "demand" 
it  may  mean  something  more  than  is  implied  by  the  terms  "legal 
obligation" — Something  more  than  "demand,"  as  just  defined. 
In  the  case  in  16  Peters — which  may  also  be  found  in  41  U.  S. — 
it  was  applied  to  the  right  to  have  again  a  fugitive  slave  and  re- 
ferred to  the  application  of  the  owner  for  such  slave.  In  Fordyce 
v.  Oodman,  20  0.  S.,  14,  it  was  said:  "In  its  ordinary  sense,  a 
claim  imports  the  assertion,  demand  or  challenge  of  something 
as  a  right;  or  it  means  the  thing  thus  demanded  or  challenged." 
And  later  on:  "By  the  subject-matter  of  a  claim,  we  understand 
the  facte  or  circumstances  out  of  which  the  claim  arises." 

"When  a  demand  is  admitted  it  is  not  a  mere  claim,  but  a 
debt.  It  no  longer  rests  in  mere  clamor  or  petition,  but  is  some- 
thing done  upon  which  an  action  may  be  maintained."  Dowell 
v.  CardweU,  4  Sawyer's  U.  S.  Circuit  and  Dist  Ct.  Reports,  288. 

So  the  word  "claim"  being  used  in  this  statute,  being  the  most 
comprehensive  word  the  Legislature  could  use,  must  be  intended 
to  comprehend,  as  the  subject-matter,  all  facts  and  circumstances 
out  of  which  the  claim  might  arise,  which  later,  when  admitted 
or  determined,  would  become  a  debt  or  demand. 

It  is  true  that  the  relation  between  principal  and  surety  does 
not  entitle  the  former  to  call  upon  the  latter  to  refund  until  he 
has  paid  the  debt  or  some  part  of  it — until  his  right  to  indemnity 
passes  from  a  mere  claim  into  a  demand. 


NISI  PRIUS  REPORTS— NEW  SERIES.  181 

1308.]  Yakey,  Executor,  v.  S trunk. 

That  a  surety  has  some  claim  upon  or  against  his  principal, 
even  without  paying  the  debt,  was  decided,  in  1824,  in  Stump 
v.  Rogers,  1  0.,  533.  In  that  case  the  court  held  that  a  surety 
might  have  the  aid  of  a  court  of  chancery  to  subject  the  estate 
of  the  principal  to  the  payment  of  the  debt  without  first  advanc- 
ing or  paying  the  money,  as  he  must  do  before  he  could  sue  in  an 
action  at  law.  In  McConnell  v.  Scott,  15  Ohio,  403,  where  the 
same  thing  was  held,  the  court  say: 

"What  are  the  obligations  of  the  principal  debtor  to  his 
surety?  Certainly  to  save  him  harmless  from  every  injury 
which  may  result  from  such  relation,  and  a  promise  is  implied  to 
this  effect,  as  valid  as  if  made  in  express  terms,  between  the 
parties."     Citing  Ward  v,  Henry,  5  Conn.,  596. 

The  insolvency  of  the  principal  debtor  was  an  element  of  this 
ease,  but  in  both  the  debt  had  become  due.  Thin  was  also  true  iu 
Barber  v.  Bank,  45  0.  S.,  138,  where  these  two  cases  are  ap- 
proved. 

It  is  true  that  these  are  equitable  remedies,  and  of  course 
predicated  on  equitable  rights;  and  it.  may  be  said  that  the  rule 
contended  for  by  the  defendant  in  error  is  strictly  a  legal  one 
and  that  unless  the  facts  bring  the  executor  strictly  within  this 
legal  rule,  it  ean  not  be  extended,  especially  as  the  statutory  rule 
proceeds  on  a  legal  fiction  in  order  to  do  justice;  which  fiction 
will  not  be  indulged  where  injustice  will  result.  But  the  rule  of 
the  statute  was  originally  an  equitable  one— Perkins  v.  Scott,  9 
C.  C,  209,  designed  to  prevent  a  result  which,  if  the  common  law 
operated,  would  be  unjust. 

When  the  nature  of  the  contract  between  principal  and  sure- 
ty is  analysed,  it  will  appear  that  there  is  something  in  the 
nature  of  a  claim  in  favor  of  the  surety.  In  27  Am.  &  Eng. 
Ency.  Law,  2d  Ed.,  468,  it  is  laid  down  that  the  implied  con- 
tract of  indemnity  between  principal  and  surety  arises  and 
takes  effect  from  the  time  when  the  surety  becomes  bound  and 
that  the  surety  becomes  a  creditor  of  kis  principal  from  that 
time.  Several  authorities  are  cited  in  note  8,  and  among  them 
Washburn  v.  Blundel,  22  Southern  Rep.,  946,  which  is  very  full 
and  pertinent.     A  quotation  there  made  from  the  opinion  of 


182  SHELBY  COUNTY  COMMON  PLEAS. 

Yakey,  Executor,  t.  Strunk.  [VoL  VII.  N.  S. 

Chancellor  Cooper,  in  2  Tenn.  Ch.,  555,  556,  is  quite  apposite 
to  the  case  at  bar.     It  is : 

"The  obligation  created  by  the  act  of  becoming  surety  sub- 
sists from  the  moment  it  is  entered  into  and  the  fact  that  the 
statute  of  limitations  only  begins  to  run  between  the  parties 
from  the  payment  of  the  security  debt,  no  more  changes  its 
character  or  the  date  of  its  commencement,  than  the  fact  that 
the  statute  does  not  begin  against  a  creditor  who  takes  a  note  of 
the  testator  upon  long  time,  till  the  debt  falls  due.  *  *  * 
And,  obviously,  it  is  a  mere  play  upon  words  to  say  that  such 
a  liability  is  not  an  obligation  created  in  the  lifetime  of  the 
principal,  since  it  originates  in  the  execution  of  an  instrument 
by  the  principal  and  surety,  and  flows  from  a  principle  of 
equity  so  universally  acknowledged,  that,  in  the  language  of 
Lord  Eldon,  those  who  act  under  it  'may  properly  be  said  to 
act  under  the  head  of  contract.'"" 

And  the  language  of  the  court  in  Rice  v.  Soutkgate,  16  Gray, 
142,  is  also  quite  clear.     They  say : 

"Upon*Vell  settled  principles,  it  is  clear  that  the  contract 
of  a  principal  with  his  surety  to  indemnify  him  for  any  pay- 
ment which  the  latter  may  make  to  the  creditor  in  consequence 
of  the  liability  assumed,  takes  effect  from  the  time  when  the 
surety  becomes  responsible  for  the  debt  of  the  principal.  It 
is  then  that  the  law  raises  the  implied  contract  or  promise  of 
indemnity.  No  new  contract  is  made  when  the  money  is  paid 
by  the  surety,  but  the  payment  relates  back  to  the  time  when 
the  contract  was  entered  into  by  whicb  the  liability  to  pay  was 
incurred.  The  payment  only  fixes  the  amount  of  damages  for 
which  the  principal  is  liable  under  his  original  agreement"  to 
indemnify  the  surety." 

So  if  the  contract  to  indemnify  arises  and  takes  effect  at  the 
time  the  surety  becomes  bound,  the  mere  fact  that  there  is  noth- 
ing due  on  the  contract  until  the  surety  pays  the  debt  does 
not  make  the  obligation  of  the  contract  any  the  less  a  claim. 
And  especially  is  this  true  where  the  principal  is  insolvent  and 
there  is  no  reasonable  probability  of  his  paying  the  debt. 

It  is  contended  that  the  principal,  however,  is  only  contin- 
gently liable  to  his  surety  and  that,  as  the  debt  was  not  paid  in 
the  lifetime  of  the  testator  surety,  no  claim  against  the  executor 


NISI  PRIUS  REPORTS— NEW  SERIES.  188 

1908.]  Yakey,  Executor,  v.  Strunk. 

wss  in  existence  at  the  time  he  accepted  the  trust  and  conse- 
quently there  was  no  debt  to  convert  into  assets  when  the  ap- 
pointment was  made.  Skidds  v.  Odell,  27  0.  S.,  398,  is  cited 
as  authority  for  this  contention. 

If,  however,  the  doctrine  laid  down  in  27  Am.  &  Eng.  Ency. 
L.,  ante,  and  especially  that  of  the  opinion  of  Chancellor  Cooper, 
in  2  Tenn.  Ch.,  555,  be  correct,  the  claim  was  in  existence  at 
the  time  the  executor  accepted  the  trust.  So  he  was  within  the 
reason  of  the  rule  that  the  claim  must  have  existed  when  he  was 
appointed  and  accepted  the  trust,  "in  order  that  he  may  have 
knowledge  of  the  consequence  or  legal  effect  of  changing  the 
nature  of  his  liability,"  as  was  said  in  Martin  v.  Train,  6  C.  C, 
53.  Section  6069  does  not  eo  instanti,  the  appointment  of  the 
testator,  transmute  a  claim  against  him  into  money.  The  claim 
is  only  to  be  "included  among  the  credits  and, effects  of  the  de- 
ceased in  the  inventory,  and  the  executor  shall  be  liable  for  the 
same  as  for  so  much  money  in  his  hands  at  the  time  such  debt 
or  demand  becomes  due."  t 

While  it  is  true,  the  claim  in  the  case  at  bar  would  never 
have  ripened  into  a  debt  or  demand  had  the  estate  not  paid  the 
notes,  and  hence  the  testator  surety  may  be  said  to  have  been, 
at  the  time  of  his  appointment,  only  contingently  liable  to  the 
estate ;  yet  it  may  be  observed,  in  passing,  that  contingent  lia- 
bilities are  as  much  within'  the  letter  of  Section  6069  as  any 
other  and  it  is  only  such  as  fall  within  the  reason  of  the  ex- 
ception, as  denned  in  the  case  of  Shields  v.  Odell,  that  the  stat- 
ute can  not  operate  upon.  And  the  one  under  consideration  is 
not  within  that  reason. 

In  Shields  v.  Odell,  the  court  distinctly  bases  its  decision  on 
the  principle  that  the  debt  of  the  administrator,  if  debt  it  was, 
was  not  originally  his  own  debt  (p.  402),  and  that  he  was  not 
the  sole  debtor  or  obligor  who  could  be  sued  (p.  405).  TIe'nce 
the  case  was  not  within  the  reason  of  the  rule  that  makes  a  debt 
from  a  trustee  to  the  trust  fund  money  in  his  hands  because  he 
is  both  debtor  and  creditor  and  can  not  sue  himself.  In  the 
opinion,  at  p.  405,  it  is  said: 


184  SHELBY  COUNTY  COMMON  PLEAS. 

Yakey.  Executor,  v.  Strunk.  [Vol.  VII,  N.  8. 

"When  Moore  became  administrator  of  Armstrong,  although 
the  right  of  action  against  him  on  his  bond  might  be  suspended, 
still  he  could  sue  his  co-obligor,"  etc. 

The  same  principle  determined  the  question  in  Rossman  v. 
McFarland,  9  0.  S.,  370,  where  it  was  held  that  "the  ease  of 
Bigelow  v.  Bigelow,  4  0.,  138,  does  not  apply  to  cases  of  joint 
and  several  notes  where  only  one  of  the  makers  becomes  trustee 
to  a  payee;"  that  while  the  trustee — who  was  one  of  two 
joint  and  several  makers — could  not  sue  himself,  yet  he  could 
sue  the  other  maker  of  the  note;  and  that  there  was  no  such 
suspension  of  a  right  of  action  upon  the  note  as  would  authorize 
the  court  to  hold  the  note  assets  in  the  trustees'  hands. 

In  the  case  at  bar  no  such  condition  exists  as  will  present  a 
suspension  of  the  right  of  action.  The  claim  of  the  testator 
against  Jhe  executor  existed  in  the  lifetime  of  the  former,  who, 
by  reason  of  the  contract,  was  even  then  a  creditor  of  the  execu- 
tor (27  Am.  &  Eng.  Ency.  Law,  ante) ;  when  the  notes  fell 
due  and  were  paid,  the  amount  of  the  claim  was  fixed,  and  it 
became  a  demand  or  debt  and  at  that  time  transmuted  into 
money  in  the  executor's  hands,  because  he,  being  the  one  who 
was  to  pay  and  the  one  to  receive,  the  right  of  action  was  sus- 
pended and  became  extinct  (Bigelow  v.  Bigelow,  4  0.,  138,  and 
eases  cited).  Perhaps  it  would  be  more  accurate  to  say  the 
right  of  action  was  extinguished  because  the  debt  is  considered 
as  paid;  hence  there  could  be  no  right  of  action  for  there  is 
nothing  to  rest  it  on. 

Miller  y.  Donaldson,  17  0.,  264,  may  be  regarded  as  shaking 
the  rule  that  a  personal  action  once  suspended  is  extinet.  But 
if  that  case  is  not  an  exception  to  the  rule,  it  certainly  does 
not  have  the  effect  mentioned.  In  that  case  it  was  held  that, 
"a  mortgagee,  by  making  his  debtor  his  executor,  does  not 
thereby  extinguish  the  mortgage."  It  was  contended  that,  as 
the  mortgage  was  only  security  for  the  debt,  when  the  latter 
was  extinguished  by  the  debtor's  becoming  executor  the  secur- 
ity was  discharged.  The  court  do  not  say  the  action  is  not 
suspended,  in  order  to  sustain  the  mortgage,  but  do  say,  p.  266. 
"Nor  does  it  follow,  because  an  action  at  law  will  not  lie  for  the 


NISI  PRIUS  REPORTS— NEW  SERIES.  186 

1908.]  Takey,  Executor,  v.  S trunk. 

debt,  that  proceedings  in  chancery  can  not  be  maintained  to 
subject  the  land  according  to  the  terms  of  the  mortgage." 
Further  it  might  be  said  that  the  mortgage  was  given  to  secure 
the  payment  of  the  debt  by  the  mortgagee,  and  that  the  sure- 
ties on  the  mortgagee's  bond  as  executor  would  be  subrogated 
to  the  benefit  of  the  security  and  might  apply,  under  the  holdings 
in  Stump  v.  Rogers,  and  McConnell  v.  Scott,  ante,  to  subject 
the  mortgage  to  the  payment  of  the  debt,  if  as  a  matter  of  fact 
it  was  not  paid,  as  it  was  not,  even  before  paying  the  amount 
themselves ;  though  the  court  do  not  put  it  on  this  ground  but 
on  the  ground  that  the  transmutation  of  a  debt  into  money, 
when  the  debtor  becomes  executor  of  his  creditor's  estate,  is  a 
legal  fiction,  designed  to  promote  justice  and  will  not  be  ex- 
tended to  eases  where  the  opposite  will  result.  The  case  there- 
fore merely  holds  that  the  rule  that  the  testator's  debt  becomes 
money  in  his  hands  shall  not  operate  to  extinguish  the  security 
given  by  the  executor  to  his  testator  to  secure  that  debt,  which, 
at  most,  is  a  limitation  of  the  rule  in  favor  of  the  trust,  and 
it  might  be  added  in  favor  of  the  executor's  bondsmen  also. 

In  the  case  at  bar  there  is  no  question  of  preserving  security. 

It  is  urged,  however,  that  the  fiction  referred  to  (and  it  would 
be  a  pure  fiction  in  this  case,  for  the  testator  is  insolvent  and 
has  been  from  the  death  of  the  testator,  and  henee,  as  a  matter 
of  fact,  has  not  paid  his  indebtedness  to  the  estate  and  has  no 
funds  wherewith  to  do  so)  ought  not  to  be  applied,  as  it  would 
result  in  his  bondsmen  having  to  pay  the  amount,  which  would 
be  a  great  injustice  to  them;  that  they  did  not  undertake  to 
guaranty  the  payment  of  the  bad  debts  of  the  estate  nor  to 
pay  the  executor's  debts. 

But  the  same  point  was  made  in  McCaughery  v.  Jacoby,  54 
0.  S.,  4S7,  in  circumstances  which  appeal  far  more  potently 
to  one's  sense  of  fairness  than  those  here,  and  the  Supreme 
Court  held  that  the  fiction  must  be  applied,  nevertheless.  In 
that  case  the  bondsmen  were  induced  to  become  such  by  the 
fraud  of  the  executor,  who  represented  that  there  would  be  prac- 
tically no  estate  to  administer,  and  concealed  the  fact  that  he 
owed  the  testator,  and  said  one  other  of  the  bondsmen  was  fully 


186  SHELBY  COUNTY  COMMON  PLEAS. 

Yatey,  Executor,  v.  Strunk.  [T0LTII.N.  S. 

-  solvent  and  worth  all  the  value  of  the  estate,  when  in  fact  he 
was  insolvent.  Those  entitled  to  distribution,  being  innocent  of 
any  fraud,  the  bondsmen  were  held  liable  for  the  amount  of  the 
testator's  indebtedness,  as  for  so  much  money  in  his  hands 
though  he  was,  at  all  times,  wholly  insolvent. 

In  the  case  at  bar  the  testator  is  and  was  wholly  insolvent,  but 
that  makes  no  difference  (McCaughery  v.  Jacoby,  ante;  Perkins 
v.  Scott,  9  C.  C,  207;  Allen  v.  McCoy,  57  O.  S.,  641,  reversing 
McCoy  v.  Alien,  9  C.  C,  607).  Possibly  the  sureties  on  his 
bond  have  some  indemnity.  It  certainly  would  be  the  part  of 
wisdom  for  sureties  on  all  such  bonds  to  require  indemnity  and 
secure  it  before  undertaking  in  effect  to  guaranty  the  benefi- 
ciaries of  an  estate  against  loss  on  account  of  a  claim  the  estate 
may  have  against  an  insolvent  executor  or  administrator.  But 
if  they  have  no  indemnity,  and  should  ultimately  have  to  make 
good  the  amount  of  his  claim,  they  would  be  subrogated  to  the 
claims  against  their  principal  and  might  sue  him  and  would 
doubtless  be  more  likely  to  secure  reimbursement  than  any  one 
else,  such  as  an  administrator  de  bonis  non,  for  instance.  In- 
deed, it  is  doubtful  if  any  one  else  could  sue  the  testator  on  this 
liability,  for  doubtless,  in  an  action  to  recover  the  debt,  which 
admittedly  he  owes  this  estate,  he  would  plead  the  suspension 
or  extinguishment  of  the  cause  of  action  by  reason  of  his  having 
been  executor.  Further  than  this,  if  it  is  only  when  a  claim 
falls  due  that  it  is  to  be  considered  as  money  in  the  executor's 
hands — as  Section  6069  expressly  provides — the  plaintiff  in 
error  might  have  resigned  before  these  notes  came  due  and 
thus  have  prevented  the  operation  of  that  statute.  By  remain- 
ing in  office  until  the  statute  operated  be  put  the  claim  in  such, 
shape  that  it  could  not  be  sold  as  a  desperate  one  (Cheney  v, 
Powell,  20  C.  C,  399).  Again  the  sureties  might,  had  they  been 
reasonably  prudent,  have  ascertained  whether  the  testator  was 
insolvent,  by  reason  whereof  they  might  become  liable  for  any 
debt  he  owed  his  testator;  as  also,  whether  he  was  in  fact,  so 
indebted;  and  if  satisfied  he  was,  have  applied  under  Section 
6204  to  be  released  as  sureties,  and  doubtless  the  presentation 
to  any  fair  minded  probate  court  of  these  two  conditions  would 


NISI  PRIUS  REPORTS— NEW  SERIES.  187 

1908.]  Yakey,  Executor,  v.  Stmrik. 

move  such  a  court  to  require  a  new  bond  and  release  such  sure- 
ties; or  they  might  have  proceeded  under  Section  6017  to  pro- 
cure his  removal  because  there  were  "unsettled  claims  or  de- 
mands existing  between  him  and  the  estate,  which  •  •  • 
may  be  the  subject  of  controversy  or  litigation  between  him  and 
the  estate,  or  persons  interested  therein." 

The  surety  on  an  executor's  bond  undertakes  to  secure  the 
faithful  administration  of  the  estate,  and  it  is  his  duty,  as  well 
as  to  his  interest,  to  know  about  the  estate  and  how  it  is  being 
administered.  If  his  principal  so  conducted  his  trust  as  to 
prejudice  the  beneficiaries,  the  surety  and  not  the  beneficiaries 
ought  to  suffer.  Indeed,  that  is  just  what  the  sureties  con- 
tracted to  do.  And  if  they  negligently  or  willfully  permitted 
him  to  occupy  such  relations  to  the  estate  as  that  the  law  de- 
stroyed a  right  of  action  in  favor  of  the  estate  against  him,  and 
required  that  he  be  charged  with  such  money  in  its  stead, 
then  they  and  not  the  beneficiaries  should  suffer. 

As  has  been  said  before  a  cause  of  action  against  their  prin- 
cipal would  certainly  subsist  in  their  favor,  with  subrogation  to 
any  securities  and  rights  of  the  estate,  while  the  beneficiaries 
would  be  remediless;  for  neither  they  nor  an  administrator  do 
bonis  non  could  sue,  as  the  right  of  action  was  extinguished  when 
the  testator  owed  the  debt  to  the  estate  (Martin  v.  Train,  6  C.  0., 
49).  So  while  it  is  true  that  the  principle  involved  is  a  fiction, 
yet  not  to  indulge  in  it  would  work  a  greater  injustice  than  to 
do  so. 

In  Lambrigkt  v.  Lambrigkt,  74  0.  S.,  198,  the  faets  were  in 
all  respects  similar  to  those  in  the  case  at  bar,  except  that  the 
testator  was  a  beneficiary  of  the  estate  to  an  amount  greater 
than  his  indebtedness;  whereas,  here,  his  indebtedness  exceeds 
his  beneficial  interest.  To  the  extent  that  the  order  of  the  court 
below  comprehends  charging  the  plaintiff  in  error  with  an 
amount  equal  to  his  beneficial  interest  in  the  estate,  the  order 
is  fully  supported  by  the  Lambright  case,  supra.  It  was  in 
that  case  held  that  "a  debt  due  from  an  heir,  legatee,  or  credi- 
tor, to  an  estate,  is  an  asset  of  such  estate,  and  where  the  dis- 
tributive portion  of  such  heir  or  legatee,  or  the  claim  of  such 


188  LICKING  COUNTY  COMMON  PLEAS. 

Lewis  et  a)  v.  Owens.  [Vol.  VII.  N.  8. 

creditor,  is  equal  to  or  greater  than  bis  debt  to  the  estate,  the 
administrator  or  executor  should  charge  himself  with  and  ac- 
count for  the  full  amount  of  the  same." 

No  good  reason  suggests  itself  against  a  pro  tanto  compensa- 
tion of  claims,  where  the  debt  exceeds  the  beneficial  interest. 

The  Lambright  ease  does  not  determine  whether,  in  the  event 
the  indebtedness  exceeds  the  beneficial  interest,  the  excess  is  to 
be  considered  as  money  in  the  testator's  hands  in  such  circum- 
stances as  were  there  involved  and  are  here  involved.  This 
Court,  for  the  reasons  heretofore  given,  is  of  the  opinion  that  the 
rule  requires  the  plaintiff  in  error  to  charge  himself  with  such 
excess,  and,  therefore,  the  judgment  and  order  of  the  probate 
court  will  be  affirmed. 


RESTORATION  Of  BURNED  RECORDS  STATUTE 

UNCONSTITUTIONAL. 

Common  Pleas  Court  ef  Licking  County. 

Jane  Lewis  et  al  v.  Eric  Owens. 

Decided,  April  Term,  1908. 

Burned  and  Destroyed  Records— Act  for  the  Restoration  of.  Unconstitu- 
tional—Because  of  Denial  of  Opportunity  for  Review—Necessary 
Evidence  Upon  Which  to  Base  a  Restoration — Designation  of  an 
Heir— Property  Rights— 81    0.   L.,   159-160. 

1.  The  provision  oE  the  act  for  the  restoration  of  burned  or  destroyed 

records  (April  12,  1884;  81  O.  L..  169-160),  that  no  appeal  can  be 
taken  from  such  proceedings  and  no  error  prosecuted  thereto,  la  an 
interference  with  the  rights  of  property  and  is  unconstitutional. 

2.  It  is  error  to  order  the  restoration  of  a  record  which  It  Is  claimed 

has  been  destroyed,  unless  some  evidence  is  offered  that  such  a 
record  was  once  In  existence. 

3.  The  statute  of  limitations  has  no  reference  to  burned  or  destroyed 

records. 

J.  M.  Schwartz,  for  plaintiffs  in  error. 
Fulton  d-  Fulton,  for  defendant  in  error. 


NISI  PRIUS  REPORTS— NEW  SERIES.  189 

IMS-]  Lewis  et  al  v.  Owens. 

Seward,  J.  (orally). 

This  is  a  proceeding  in  error  to  the  probate  court.  Erie  Owens 
filed  an  application  in  the  probate  court  of  this  county  claiming 
that  he  had  been  designated  as  an  heir  by  David  W.  Lloyd,  about 
the  year  1857;  that  the  records  of  that  designation  have  been 
burned,  and  he  asked  to  have  the  record  restored.  His  appli- 
cation reads  as  follows: 

"And  now  conies  Eric  Owens  and  represents  to  the  eourt  that 

on  the day  of  May,  1857,  one  David  W.  Lloyd  filed  in  the 

Probate  Court  of  Licking  County,  Ohio,  an  application  to  make 
this  applicant,  Eric  Owens,  his  heir,  which  application  was  sub- 
stantially in  the  words  and  figures  following:" 

Then  the  pleader  has  substantially  followed  the  section  of  the 
statute  describing  the  matter  as  it  was  in  existence  at  that  time. 

"To  the  Honorable  Probate  Judge  of  Licking  County,  Ohio: 
The  undersigned,  David  W.  Lloyd,  represents  that  he  is  a  resi- 
dent of  Newark  township,  Licking  county,  Ohio;  that  he  is  of 
sound  mind  and  memory,  and  free  from  restraint;    that  he  is 

married,  and  is years  old  and  that  his  wife's  name  is 

Lloyd,  and  is years  old ;  that  they  have  no  child  or  children, 

and  that  they  have  living  with  them  a  boy,  a  minor,  by  the  name 
of  Eric  Owens,  aged years. 

"This  applicant  represents  to  the  court  that  he  is  desirous 
of  designating  and  does  hereby  designate  the  said  Eric  Owens, 
whose  place  of  residence  is  with  this  applicant,  to  stand  toward 
him  as  his  heir  at  law  in  the  event  of  the  death  of  this  applicant. 

' '  In  the  presence  of  two  witness,  names  unknown. 

"(Signed)  David  W.  Lloyd." 

' '  In  the  matter  of  the  application  of  David  W.  Lloyd  to  desig- 
nate Eric  Owens  as  his  heir  at  law. 

"This  day  came  David  W.  Lloyd,  and  thereupon  the  applica- 
tion of  said  David  W.  Lloyd  to  have  Eric  Owens  designated  as 
his  heir,  came  on  to  be  heard  by  the  court. 

"On  consideration  whereof,  and  the  court  being  fully  advised 
in  the  premises,  finds  that  the  said  David  W.  Lloyd  is  of  full  age 
and  of  sound  mind  and  memory  and  free  from  restraint;  that 
he  has  no  child  or  children,  and  he  applied  to  this  court  to  have 
Eric  Owens,  who  is  a  minor,  and  who  resides  with  said  David 
Lloyd,  designated  as  his  heir. 

"It  is  therefore  considered,  adjudged  and  decreed  by  the  court 
that  the  said  Eric  Owens  be  and  he  is  hereby  designated  to 


190  LICKING  COUNTY  COMMON  PLEAS. 

Lewis  et  al  v.  Owens.  [Vol.  Til,  N„  8. 

stand  in  the  relationship  of  an  heir  at  law  to  said  David  Lloyd 
in  case  of  his  death. 

"Said  Eric  Owens  further  represents  to  the  court  that   on 

the day  of  April,  1875,  the  court  house  of  Licking  county, 

Ohio,  was  destroyed  by  fire  and  that  the  records  of  the  above 
adoption  and  designation  of  Eric  Owens  to  be  the  heir,  as  afore- 
said, was  burned  and  he  asks  that  said  record  be  restored  by  order 
of  this  court. 

"Signed  by  counsel  and  sworn  to  by  T.  B.  Pulton." 

The  statute,  at  that  time,  governing  the  designation  of  an  heir 
is  found  in  Swan  and  Critchfield,  page  506: 

"Any  person  of  sound  mind  and  memory  may  appear  before 
the  probate  judge  of  his  proper  county,  and  in  the  presence 
of  such  probate  judge,  and  two  disinterested  persons  of  his  ac- 
quaintance, file  his  written  declaration,  which  shall  be  attested 
by  such  persons,  declaring  that  as  his  or  her  free  and  voluntary 
act,  he  or  she  did  designate  and  appoint  another,  naming  such 
person  specially,  and  stating  the  place  of  residence,  to  stand 
toward  him  (or  her)  in  relation  of  an  heir  at  law,  in  the  event 
of  his  death;  and  thereupon  the  judge  of  probate,  if  satisfied 
that  such  declaration  is  of  sound  mind  and  memory,  and  free 
from  restraint,  shall  enter  that  fact  upon  his  journal,  and  make 
a  complete  record  thereof;  and  thence  forward  such  person, 
thus  designated,  shall  be  taken  and  held,  in  all  places,  to  stand 
in  the  same  relation,  for  all  purposes,  to  said  declaration  as  he 
or  she  could,  if  a  child  born  in  lawful  wedlock;  and  the  relations 
by  blood  of  the  declarant  and  the  rules  of  inheritance  shall  be 
the  same,  between  him  or  her,  as  if  so  born ;  and  a  certified  copy 
of  such  record  shall  be  prima  facie  evidence  of  the  fact  stated 
therein,  arid  conclusive  evidence,  unless  impeached  by  reason  of 
actual  fraud,  or  undue  influence." 

So  it  is  claimed  that  there  was  such  a  record,  as  is  provided 
by  this  section  of  the  statute,  found  on  page  506  of  Swan  and 
Critchfield,  in  the  probate  court  of  this  county,  in  the  year  1857, 
and  from  that  time  up  until  the  burning  of  the  court  house  in 
1875.  Section  53356  provides  for  the  restoration  of  burned 
records : 

"Whenever  the  record  required  by  law  or  any  part  thereof  of 
the  proceedings  or  judgment  or  decree  in  any  action  or  other  pro- 
ceeding of  any  court  in  this  state  in  which  the  final  judgment 


NISI  PRIUS  REPORTS— NEW  SERIES.  191 

IMS.]  Lewis  et  al  v.  Owens. 

has  been  rendered,  is  lost  or  destroyed  by  fire,  riot,  or  civil  com- 
motion, and  such  loss  can  not  be  supplied  or  replaced  as  provided 
in  Section  5339o-2,  any  person  or  party  interested  therein  may 
make  written  application  to  the  court  to  which  said  record  be- 
longs, setting  forth  the  substance  of  the  record  so  lost  or  de- 
stroyed, which  application  shall  be  verified  in  the  manner  pro- 
vided for  the  verification  of  pleadings  in  a  civil' action,  and  there- 
upon summons  shall  issue  and  actual  service  or  service  by  publi- 
cation shall  be  made  upon  all  persons  interested  in  or  affected  by 
said  original  judgment  or  final  entry  in  the  manner  provided  by 
law  for  the  commencement  of  eivil  actions,  provided  the  parties 
may  waive  the  issuing  or  service  of  summons  and  enter  their  ap- 
pearance to  such  application ;  and  upon  the  hearing  of  such  ap- 
plication without  further  pleadings,  if  the  court  finds  that  such 
record  has  been  lost  or  destroyed  and  that  it  is  enabled  by  the 
evidence  produced  to  find  the  substance  or  effect  thereof  material 
to  the  preservation  of  the  rights  of  the  parties  thereto,  it  shall 
make  an  order  allowing  a  record,  which  record  shall  reeite  the 
substance  and  effect  of  said  lost  or  destroyed  record  or  part  there- 
of, and  the  same  shall  thereupon  be  recorded  in  said  court,  and 
shall  have  the  same  effect  as  the  original  record  would  have  if 
the  same  had  not  been  lost  or  destroyed,  so  far  as  it  concerns 
the  rights  of  the  parties  so  making  the  application,  or  persons  or 
parties  so  served  with  summons,  or  entering  their  appearance, 
or  persons  claiming  under  them  by  a  title  acquired  subsequently 
to  the  filing  of  the  application." 

This  act  of  the  Legislature  was  passed  April  4,  1884,  and  the 
Legislature  in  its  wisdom  ( J)  provided,  in  the  last  clause  of  the 
act,  that  no  appeal  could  be  taken  from  such  proceedings,  and 
that  no  proceedings  in  error  should  be  prosecuted  from  any  such 
proceedings.  Here  is  a  valuable  right  given  to  a  person,  which 
may  involve  the  rights  of  property,  fixed  by  these  records,  and  the 
Legislature  has  provided  that,  when  the  restoration  is  made,  al- 
though an.  entire  record  may  be  destroyed,  if  restoration  is  or- 
dered by, the,  probate  court,  that  a  party  who  may  be  affeeted  in 
his  rights  of  property  shall  not  have  a  right  to  a  review  oo 
error.  The  court  does  not  think  that  the  Legislature  has  any 
right  to  do  anything  of  that  kind.  It  interferes  with  the  rights 
of  property. 

The  later  clause  of  this  section  was  never  carried  into  revision. 


192  LICKING  COUNTY  COMMON  PLEAS. 

Lewis   et   al   v.   Owens.  [Vol.  VII,  N.  3. 

I  don't  know  why.  It  was  never  repealed,  or  amended,  ho  far  as 
the  court  is  able  to  determine,  and  it  stands  now  in  the  Tear  Book 
as  the  law  that  proceedings  in  error  shall  not  be  prosecuted  from 
any  finding  in  the  probate  court  in  regard  to  the  restoration  of 
a  burned  record.  That  might  be  a  reasonable  regulation,  if  it 
were  in  regard  to  a  certified  copy  of  a  will,  but  any  attempt  to 
interfere  with  the  rights  of  property,  where  an  heir  is  designated, 
and  a  finding  is  made  against  whom  the  order  of  the  count  might 
run  and  affecting  the  rights  of  property,  the  court  thinks  they  are 
going  further  than  they  have  a  right  to  go ;  and  the  court  thinks 
that  that  provision  of  the  statute  is  in  contravention  of  the  Con- 
stitution. 

What  does  this  record  show,  giving  it  the  strongest  effect  it 
has  a  right  to  1  What  does  it  show  in  relation  to  this  designa- 
tion f  The  strongest  witness  who  testified  was  Mrs.  Raisin. 
That  is,  she  gives  the  strongest  evidence  as  to  whether  there  was 
ever  any  such  record  or  not  I  will  call  attention  to  her  testi- 
mony (the  court  here  read  from  the  testimony  of  Mrs.  Raisin, 
as  found  in  the  bill  of  exceptions). 

Now,  there  is  not  a  word  in  this  record,  that  shows,  or  tends 
to  show,  that  anybody-  ever  saw  any  sueh  a  record ;  I  think  be- 
fore you  can  establish  a  record,  or  restore  a  record,  there  ought 
to  be  some  evidence  tending  to  show  that  there  was  sueh  a  record. 
There  is  no  acknowledgment  on  the  part  of  Lloyd  that  he  made 
any  application  in  the  probate  court.  They  went  down  there,  and 
Mrs.  Lloyd  said,  when  they  came  back,  he  is  mine.  I  think  thit 
is  too  slender  a  matter  to  base  the  rights  of  property  upon  in 
this  case  as  against  those  who  would  be  the  legal  heirs  of  Lloyd 
under  the  statute.  I  think  the  court  committed  an  error  in  the 
restoration  of  what  was  claimed  to  be  a  record  designating  Erie 
Owens  as  the  heir  of  David  Lloyd,  without  some  testimony  tend- 
ing to  show  that  there  had  been  a  record  of  that  kind  in  existence. 

It  is  the  judgment  of  the  court  that  the  judgment  of  the  pro- 
bate court  be  set  aside  and  reversed. 

I  intended  to  refer  to  the  statute  of  limitations.  I  do  not  think 
the  statute  of  limitations  has  any  reference  to  the  restoration  of 
burned  records. 


NISI  PRIUS  REPORTS— NEW  SERIES.  198 

1808.)  Slate  v.  Dickerson. 

CftOUNDS  FOR.  GRANTING  A  CHANGE  Of  VENUE. 

Common  Pleas  Court  of  Coshocton  County. 

The  State  op  Ohio  v.  Benjamin  Dickerson.  • 

Decided,   December,  1B07. 

Criminal  Lam — Change  of  Venue— Motion  for,  Should  be  Granted,  When 
— Influence  on  the  Public  Mind  of  Inflammatory  Articles  in  the 
Newspapers — Defendant  Entitled  to  a  Jury  Free  from  any  Settled 
Belief  with  Reference  to  his   Guilt— Sections  7263,  726^  and  7265. 

1.  While  it  is  the  rule  that  one  1b  qualified  to  alt  as  a  Juror  In  a  criminal 

case  who  states  that,  notwithstanding  an  opinion  he  has  formed 
as  to  the  guilt  of  the  defendant,  he  believes  he  can  lay  that  opin- 
ion aside  and  render  a  fair  and  impartial  verdict  based  atone  on 
the  evidence  and  charge  of  the  court,  It  is  nevertheless  the  duty 
of  a  court  to  secure  as  Jurors  men  who  do  not  entertain  a  settled 
belief  as  to  either  the  guilt  or  innocence  of  the  defendant 

2.  If  It  appears  from  the  evidence,  offered  In  support  of  a  motion  for 

a  change  of  venue,  that  it  is  improbable  the  defendant  can  secure  a 
fair  and  Impartial  trial  or  an  unbiased  or  unprejudiced  Jury  in  the 
county  of  his  residence,  tt  Is  the  duty  of  the  court  to  order  a 
change  of  venue.    State  v.  Elliott.  25  Law  Bulletin,  366,  doubted. 

Joseph  L.  McDowell,  Prosecuting  Attorney,  Coshocton  Coun- 
ty, Ohio;  James  Glenn  and  T.  H.  Wheeler,  for  the  State  of 
Ohio. 

J.  C.  Adams  and  J.  C.  Daugherty,  for  defendant. 

Wickhah,  J.  (orally). 

The  defendant  has  filed  a  motion,  under  Section  7263,  for  a 
change  of  venue.    Section  7263  reads  as  follows : 

"All  criminal  cases  shall  be  tried  in  the  county  where  the  of- 
fense was  committed,  unless  it  appear  to  the  court,  by  affidavits, 
that  a  fair  and  impartial  trial  can  not  be  had  therein;  in  which 
case  the  court  shall  direct  that  the  person  accused  be  tried  in 
some  adjoining  county." 

•  Error  not  prosecuted;    for  opinion  on  plea  in  bar,  sea  7  N.  P.— N.  8.,  2QS, 


COSHOCTON  COUNTY  COMMON  PLEAS. 


[VoL  VII,  N.  S. 


The  purpose  of  the  inquiry  in  such  cases  is  to  determine 
whether  a  fair  and  impartial  trial  of  the  defendant  can  be  had 
in  the  county  in  which  the  crime  is  alleged  to  have  been  com- 
mitted. By  that  we  understand,  a  trial  by  an  unbiased  jury;  a 
jury  that  goes  into  the  jury-box  without  prejudice  or  bias.  That 
is  what  it  means. 

Counsel  have  referred  to  a  case  decided  by  Judge  Pugh,  in 
Franklin  County,  some  years  ago — the  case  of  State  v.  Elliott, 
25  Law  Bulletin,  366.     The  first  paragraph  of  the  syllabus  is: 

"1.  To  authorize  a  change  of  venue  in  a  criminal  case,  on  the 
motion  of  the  defendant,  he  must  prove  by  clear,  explicit  and 
convincing  evidence  that  a  fair  and  impartial  trial  in  the  county 
where  the  indictment  was  found  can  not  be  obtained." 

With  all  due  respeet  for  the  opinion  of  Judge  Pugh,  we  have 
some  doubt  about  that  being  a  correct  proposition  of  law.  That 
would  amount  to  little  short  of  evidence  beyond  a  reasonable 
doubt,  if  any  short  of  that — "by  clear,  explicit  and  convincing 
evidence,  that  a  fair  and  impartial  trial  in  the  county  where 
the  indictment  was  found,  can  not  be  obtained." 

The  second  paragraph  of  the  syllabus  reads : 

"2.  Newspaper  denunciations  of  the  defendant  and  of  his 
alleged  crime  are  not  alone  sufficient  to  warrant  a  change  of 
venue." 

"3.  It  is  no  abuse,  but  may  be  a  wise  exercise  of  the  dis- 
cretion conferred  by  the  statute,  for  the  court  to  postpone  or 
overrule,  for  the  time  being,  the  motion  till  it  is  ascertained  by  an 
examination   of   jurors   whether   a   constitutional   trial  can   be 


That  does  not  concern  us  in-  this  case.  It  appears  from  a  note 
at  foot  of  page  253  that  this  opinion  was  approved  by  the  Su- 
preme Court.  As  an  authority,  it  is  somewhat  crippled  from  the 
fact  that  Judges  Bradbury  and  Minshall  dissented  from  the 
judgment  of  the  court.  So,  it  appears  that  three  of  the  mem- 
bers of  the  Supreme  Court  approved  the  opinion,  and  two  dis- 
proved it.  , 

Our  understanding  is,  that  if  it  appears  from  the  evidence 
offered  in  support  of  the  motion  to  be  improbable  that  the  de- 


NISI  PRIUS  REPORTS— NEW  SERIES.  196 

1908.]  Statu  v.  Dickeraon. 

fendant  can  secure  a  fair  and  impartial  trial,  or  an  unbiased  and 
unprejudiced  jury — if  it  should  so  appear — then  I  think  it  would 
be  the  duty  of  the  court  to  order  a  change  of  venue. 

I  might  say  that  I  came  here  today  with  the  impression  that 
the  state  of  the  public  mind  of  this  county  is  against  the  defend- 
ant ;  I  was  here  on  a  former  occasion,  which  counsel  remember, 
and  I  think  I  received  an  impression  at  that  time  to  that  effect, 
probably  from  what  was  said  by  the  county  commissioners  at 
their  session,  which  we  all  attended;  but,  from  the  evidence 
which  has  been  offered  here,  we  must  determine  the  matter;  and 
I  think  the  court  is  capable  of  taking  the  evidence  offered  at  this 
hearing,  without  being  biased  by  any  impression  received  here- 
tofore, and  determine  this  question. 

It  appears  from  the  affidavits  filed  by  defendant's  counsel  that 
the  press  of  this  eounty  at  the  time,  before  and  since  the  former 
trial,  published  a  great  many  articles  that  were  very  damaging 
to  the  right  of  the  defendant  to  a  fair  and  impartial  trial.  "We 
must  assume  that  the  people  read  the  newspapers,  and  we  also 
have  a  right  to  presume  that  the  reports  published  by  the  news- 
papers made  some  impression  upon  the  people  who  read  them. 
There  is  no  doubt  about  that.  Every-day  experience  teaches  us 
that. 

Judge  Pugh  says,  in  his  opinion,  which  we  may  regard  as  an 
authority  here,  that  newspaper  denunciations  of  the  defendant 
alone  will  not  afford  sufficient  ground  for  a  change  of  venue. 
But  we  should  go  further,  and  inquire  as  to  what  effect  the 
newspaper  articles  published  in  this  city  had  upon  the  public  in 
this  county.  The  circulation  of  the  papers,  it  appears,  was  very 
large.  Then  we  come  to  the  testimony  of  the  witnesses  called. 
In  some  of  the  affidavits  filed  by  the  state  it  is  stated  that  the 
spectators  at  the  former  trial  were  quiet  and  decorous,  orderly 
and  well-behaved,  and  in  the  same  affidavit  it  is  stated  that  the 
court  frequently  cautioned  the  audience. 

I  have  been  on  the  common  pleas 'bench  in  all  about  six  years, 
and  have  presided  at  some  cases  where  we  had  very  large  audi- 
ences— a  couple  of  murder  cases,  and  some  other  cases  that  were 
of  interest  to  the  people  where  they  were  tried,  and  they  attracted 


COSHOCTON  COUNTY  COMMON  PLEAS. 


[Vol.  VII,  N.  S. 


large  audiences;  and  I  do  not  know  that  it  was  ever  my  ex- 
perience that  the  court  was  called  upon  to  admonish  a  quiet, 
decorous  aDd  orderly  audience.  So,  it  would  seem,  from  the 
statements  in  the  affidavits  themselves,  that  there  was  some  reason 
for  the  court's  admonition  to  the  audience,  and  that  if  they  had 
been  quiet  and  orderly,  there  would  have  been  no  occasion  for 
the  court  to  admonish  or  caution  them.  But,  however  that  may 
be,  we  do  not  think  that  is  a  matter  that  is  very  material. 

Now  these  witnesses  who  testified — some  of  them  speak  di- 
rectly as  to  the  matter;  take  the  testimony. of  the  county  com- 
missioners who  testified ;  one  of  them  is  the  same  man  who  made 
a  statement  at  my  former  visit,  a  few  days  ago,  and  his  state- 
ment is  that  ninety  per  cent,  of  the  people  in  the  county  believe 
the  defendant  to  be  guilty ;  that  they  have  a  settled  conviction  or 
belief  that  the  defendant  is  guilty  of  the  crime  with  which  he 
stands  charged.  I  do  not  know  of  anybody  who  would  be  more 
capable  of  judging  than  the  county  commissioners.  Their  duties 
call  them  to  all  parts  of  the  county;  they  go  out  and  talk  to  the 
people;  they  come  in  contact  with  them;  they  know  what  the 
people  are  talking  about ;  what  they  are  saying,  better,  probably, 
than  any  other  public  officer  of  the  county;  and  so,  for  that 
reason,  the  opinions  and  statements  of  the  county  commissioners 
are  probably  entitled  to  more  weight  than  the  opinions  of  most 
other  men. 

Now,  if  it  is  so  that  ninety  per  cent,  of  the  people  of  the  county 
have  settled  opinion  or  belief  that  the  defendant  is  guilty,  how 
is  it  possible,  I  will  not  put  it  that  strong,  but  is  it  probable,  that 
an  unbiased  jury  could  be  obtained  to  try  the  caseT  It  is  not,  as 
some  of  the  witnesses  seem  to  think,  whether  there  is  a  possibility 
of  finding  twelve  men  who  would  be  unbiased  and  unprejudiced. 
It  is  not  that;  but  is  it  probable,  by  the  usual  mode  of  securing 
a  jury  in  the  trial  of  a  murder  ease,  to  get  a  jury  who  had  not 
.  formed  or  expressed  a  settled  opinion  as  to  the  guilt  of  the  de- 
fendant? It  appears  to  the  court,  from  the  testimony  of  the 
witnesses,  that  it  would  be  altogether  improbable. 

As  to  the  opinions  of  the  witnesses,  expressed  by  the  persons 
who  made   the   affidavits,   they   are  no   doubt   honest   in   their 


NISI  PRIUS  REPORTS— NEW  SERIES.  197 

1908.1  State  v.  DIckersoD. 

opinions,  and  they  say  that  they  think  that  the  defendant  could 
have  a  fair  and  impartial  trial.  They  go  so  far  as  to  say  orally 
that  they  think,  if  a  person  were  called,  no  matter  how  firm  a 
belief  he  had  before  of  the  guilt  of  the  defendant,  that  he  could 
lay  it  all  aside  and,  from  the  evidence  alone,  render  a  fair  and 
impartial  verdict.  Well  that  is  possible,  but  hardly  probable; 
and  to  be  compelled  to  call  such  men  to  sit  in  judgment  is  not 
what  the  law  contemplates.  The  Supreme  Court  says  that  if  a 
man  says  that  he  has  formed  an  opinion,  yet,  notwithstanding 
that,  if  he  says  that  he  ean  lay  his  opinion  previously  formed 
aside  and  render  a  fair  and  impartial  verdict  from  the  evidence, 
and  that  alone,  he  is  competent  to  sit  in  the  cause;  but,  in  the 
trial  of  a  criminal  case,  and  in  the  administration  of  criminal 
law,  it  ought  to  be  the  duty  of  the  court  to  secure  a  jury  that 
has  not  a  settled  belief  or  opinion  one  way  or  the  other,  of  the 
guilt  or  innocence  of  the  defendant.  I  do  not  regard  the  opin- 
ions of  these  men,  as  disclosed  by  the  affidavits,  without  stating 
any  facts  to  base  them  on,  as  of  very  great  .weight;  and  when 
counsel  for  the  defendant  came  to  interrogate  them  upon  what 
they  predicated  their  opinions,  it  appears  that  they  have  gone 
into  or  approached  the  domain  of  nfCtaphysics  to  some  extent, 
and  they  say  that  they  think,  after  examining  their  own  mind, 
that  they  could  lay  aside  the  conviction  previously  formed  and 
could  render  a  fair  and  impartial  verdict  from  the  evidence 
alone. 

Our  conclusion  is,  that  it  is  only  justice. to  the  defendant  that 
the  motion  should  be  granted,  and  a  change  of  venue  ordered. 
It  is  no  insult  to  the  people  of  Coshocton  county,  as  counsel  has 
suggested  in  argument.  If  that  is  so,  there  would  be  an  insult 
to  the  citizens  of  every  county  in  which  a  change  of  venue  wai 
had,  and  it  would  be  an  insult  for  the  Legislature  to  pass  an 
act  authorizing  a  change  of  venue.  Counsel  are  mistaken  about 
that.  There  is  no  reflection  upon  the  people  of  this  county.  The 
evidence  shows  that  this  case  has  been  talked  a.bout  to  that  ex- 
tent in  this  county,  that  it  would  be  very  difficult  at  least  to 
secure  an  unbiased  jury  in  the  eounty.  I  live  in  a  county  some- 
what  smaller    in    population — 26,000.      Coshocton    county    has 


198  LICKING  COUNTY  COMMON  PLEAS. 

Lane  t.  Bailey  et  aL  [Vol.  XI,  N.  a 

about  28.000  people ;  it  is  about  the  size  of  this  county,  and  we 
know  to  what  extent  a  case  of  this  character  would  be  talked 
about  by  the  people  of  the  community.  There  is  hardly  a  man, 
or  woman  or  child  in  the  community  who  would  not  talk  about 
it,  and  discuss  every  detail  of  it,  if  the  evidence  on  the  trial  had 
been  published  in  the  newspapers,  and  circulated  widely. 

Motion  for  change  of  venae  granted,  and  change  of  venne 
ordered  to  Holmes  county.  It  will  be  the  duty  of  the  clerk, 
under  Section  7265,  to  at  once  issue  a  warrant  to  the  sheriff  to 
transfer  the  prisoner  to  Holmes  county. 


CONSTRUCTION  ON  MECHANK3'  UKN  LAW. 

Common  Pleas  Court  or  Licking  County. 

O.  W.  Lane  v.  Bailey  &  Keeley  et  au 
Decided,  January  Term,  1908. 

Lien* — Of  Sub-contractors  and  Material  Men — Subordinate  to  Bet-off 
of  Debt  Due  Owner,  When — Payment  o/  Judgment  agait^t  Owner 
and  Contractor  Jointly  Tantamount  to  Payment  to  Contractor, 
When— Sections  3103  and  3/»i.. 

The  owner  ot  a  building  may  set-oil  an  antecedent  debt  due  to  him 
from  the  contractor  who  erected  the  building  against  the  amount 
remaining  due  on  the  contract  to  the  exclusion  or  claims  by  sub- 
contractors and  material  men,  notwithstanding  the  contract  did  not 
provide  that  payment  should  be  made  In  advance  or  make  any  state- 
ment ot  the  amount  due  the  owner  from  the  contractor  at  the  time 
of  entering  Into  the  contract. 

Wayne  Collier,  for  plaintiff. 

Frederick  M.  Black,  A.  A.  Stasel  and  Robbins  Hunter,  for  de- 
fendant. 

Seward,  J.  (orally). 

This  is  a  suit  brought  by  a  sub-contraetor  against  the  owner 
of  the  premises,  for  a  claim  due  the  sub-contractor  from  the 


NISI  PRIUS  REPORTS— NEW  SERIES.  199 

1908.]  Lane  v.  Bailey  et  al. 

principal  contractor.  Lane  claims  the  sum  of  $105.10  as  sub- 
contractor under  Rose,  the  principal  contractor.  He  filed  his 
statement  under  the  statute  with  Bailey  &  Keeley,  the  owners, 
on  April  25th,  1906.  He  notified  Rose  on  the  next  day,  Rose 
being  the  principal  contractor. 

I  do  not  think  there  is  any  question  raised  here  but  that  the 
plaintiff,  Lane,  has  perfected  his  right  to  the  amount  he  claims 
in  this  fund.  The  controversy  arises  upon  the  answer  and  cross- 
petition  of  Vogelmeier  Bros.  They  claim  a  right  to  participate 
in  the  funds  in  the  hands  of  Bailey  &  Keeley  due  the  contractor. 
Rose,  for  brick  and  stone  furnished  the  contractor  under  his  con- 
tract with  the  owner.  They  say  in  their  answer  that  the  contract 
price  for  the  building  was  $5,225,  and  it  is  not  controverted  but 
what  that  was  the  contract  price ;  that  the  contract  between  the 
owner  and  Bailey  &  Keeley  was  entered  into  in  1905— some  time 
in  the  latter  part  of  1905;  that  their  contract  with  Rose  was 
made  in  February,  1906;  that  from  February  1, 1906,  to  April  2, 
1906,  they  furnished  brick  to  the  amount  of  $794.50,  for  the 
construction  of  this  building;  that  they  contracted  with  Cramer, 
who  was  a  sub-contractor,  under  Rose,  January  17,  1906,  to  fur- 
nish the  stone;  and  on  that  day  they  did  furnish  stone  in  the 
amount  of  $465;  that  on  June  30,  1906.  they  filed  a  statement 
with  the  said  Bailey  &  Keeley,  and  notified  Rose  of  the  filing 
of  the  same. 

Bailey  &  Keeley  admit  that  there  is  in  their  hands  the  sum  of 
$1,003.47,  which  they  are  willing  to  pay,  upon  the  order  of  the 
court,  and  they  say  that  there  is  in  their  hands  no  more  than 
that.  They  admit  that  the  contract  price  was  $5,225;  that  the 
work  was  to  be  completed  April,  1906,  and  May  15,  1906— the 
tin-shop  so  that  it  could  be  used  in  April,  and  the  balance  of  the 
building  in  May.  The  contract  provided  that  Bailey  &  Keeley 
were  to  pay  Rose  $300  every  two  weeks  until  $1,500  had  been 
paid.  The  balance  was  to  be  paid  to  Rose  upon  the  completion 
of  the  building. 

Payments  according  to  the  evidence  before  the  court,  were 
made  as  follows:  To  Rose  himself.  January  27,  1906,  note  of 
Rose,  due  Bailey  &  Keeley,  $72.39;    January  27,  1906,  check, 


200  LICKING  COUNTY  COMMON  PLEAS. 

Lane  v.   Bailey  et  al.  [Vol.  VII,  N.  8. 

$300;  February  10,  1906,  check,  $150;  February  17,  1906,  casta, 
$30;   February  24,  1906,  eheck,  $300. 

I  should  say,  about  one  of  these  $300  payments,  that  it  is  uot 
set  out  in  the  answer  to  the  interrogatories,  but  the  testimony 
introduced  shows  that  there  was  $300  paid,  which  is  not  men- 
tioned in  the  answer  to  the  interrogatories. 

March  10,  1966,  $300  was  paid;  April  14,  1906,  $227.92; 
May  5,  1906,  $200;  there  was  paid  on  orders  from  Rose,  the 
following  sums:  February  10,  Norris  bill,  $19.70;  March  10, 
1906,  William  Nash,  $6.25 ;  March  30,  1906,  Farabee  judgment, 
$113.20.  The  judgment  was  in  a  case  where  Farabee  sued  Rose 
and  Bailey  &  Keeley  for  leaving  some  material  in  the  street, 
which  he  ran  over  and  broke  his  buggy,  or  injured  his  horse. 
He  sued  Bailey  &  Keeley  and  Rose,  and  got  a  judgment  against 
them  for  $113.20!  Rose  gave  to  Bailey  &  Keeley  an  order  to 
pay  the  judgment,  and  they  paid  it,  March  30,  1906.  April  14, 
1906,  was  paid  the  Norris  note,  $47.93 ;  April  14, 1906,  Nash  bill, 
$5;  May  14,  1906,  Gorsuch,  $33;  May  2,  1906,  Montgomery, 
$878.94;  June  9,  1906,  Timmer,  $1.70;  making  $1,104.02. 
Amount  paid  Rose,  $1,533.40.  Including  in  the  amount  paid 
on  order,  is  the  Farabee  judgment,  as  I  have  just  mentioned. 

Have  the  defendants  the  right  to  deduct  a  claim  that  they  had 
against  Rose,  as  against  the  contract  price  of  the  building — 
$5,225 1  They  had  a  claim  against  Rose,  and  they  deducted  that 
from  the  amount  due  Rose  on  the  contract.  It  is  claimed  by 
Vogelmeier  Bros,  that  they  have  no  right  to  deduct  this  $1,533.40, 
because  the  contract  with  Rose  did  not  provide  that  the  payment 
should  be  made  in  advance,  and  did  not  make  any  statement  of 
the  amount  due  Bailey  &  Keeley  at  the  time  of  entering  into 
the  contract  with  Rose. 

I  will  first  refer  to  the  sections  of  the  statutes  governing  in 
such  eases — Sections  3193-4 — and  the  subsequent  sections  relating 
to  the  liens  of  sub-contractors. 

"Any  sub- contractor,  material-man,  laborer  or  mechanic,  who 
has  performed  labor  or  furnished  material,  fuel  or  machinery, 
or  who  is  performing  labor,  or  furnishing  material,  fuel,  or 
machinery,  or  who  is  about  to  perform  labor,  or  furnish  ma- 


NISI  PBIUS  REPORTS— NEW  SERIES.  201 

1908.]  Lane  v.  Bailey  et  al. 

terial,  fuel  or  machinery  for  the  construction,  alteration,  re- 
moval or  repair  of  property,  appurtenances  or  structure,  as  de- 
scribed in  sections  three  thousand  one  hundred  and  eighty-four 
and  three  thousand  one  hundred  and  eighty-six,  or  for  the  con- 
struction, improvement  or  repair  of  any  turnpike  road  im- 
provement, sewer,  street  or  other  public  improvement,  or  public 
building  provided  for  in  a  contract  between  the  owner,  or  any 
board,  officer  or  public  authority  and  a  principal  contractor, 
and  under  a  contract  between  such  sub-contractor,  material-man, 
laborer  or  mechanic  and  a  principal  contractor  or  sub-contractor, 
may  at  any  time  of  beginning  to  perform  such  labor  or  furnish 
such  material,  fuel  or  machinery,  or  at  any  time  thereafter, 
not  to  exceed  four  months  from  the  performance  of  such  labor 
or  the  delivery  of  such  machinery,  fuel  or  material,  file  with 
the  owner,  board  or  officer,  or  the  authorized  clerk  or  agent 
thereof,  a  sworn  and  itemized  statement  of  the  amount  and 
value  of  such  labor  performed,  and  to  be  performed,  material, 
fuel  or  machinery  furnished,  containing  a  description  of  any 
promissory  note  or  notes  that  may  have  been  given  by  the  prin- 
cipal contractor  or  sub-contractor  on  account  of  said  labor, 
machinery  or  material,  or  any  part  thereof,  with  all  credits  and 
set-offs  thereon." 

The  section  of  the  statute,  of  which  this  is  an  amendment,  did 
require  notice,  but  this  section  does  not;  and  so  the  Legislature 
evidently  had  in  mind  the  section  of  which  this  is  an  amend- 
ment. 

"Section  3194.  Upon  receiving  the  notice  required  by  the 
preceding  section,  such  owner,  board  or  officer  or  public  authority 
or  authorized  clerk,  agent  or  attorney  thereof,  shall  detain  in 
his  hands  all  subsequent  payments  from  the  principal  or  sub- 
contractor to  secure  such  claims  and  the  claims  and  estimates  of 
other  sub-contractors,  material-men,  laborers,  mechanics,  or  per- 
sons furnishing  materials  to  or  performing  labor  for  any  con- 
tractor or  sub-contractor  who  may  intervene  before  the  next 
subsequent  payment  under  the  contract,  or  within  ten  days 
thereafter." 

Section  3193  provides  for  filing  an  itemized  statement.  I 
think  a  fair  construction  of  Section  3194  means — although  it 
say3  "notice" — that  he  shall  retain  from  the  amount  due  the 
contractor  all  subsequent  payments,  and  for  ten  days  after  the 


202  LICKING  COUNTY  COMMON  PLEAS. 

Lane  v.  Bailer  et  al.  [Vol.  VII,  N.  8. 

service  of  the  notice,  so  that  any  other  sub-contractor  may  come 
in  and  participate  in  the  lien  by  filing  hia  itemized  statement. 

The  Legislature,  in  passing  the  law,  had  in  view  two  different 
branches  of  liens.  One  was  a  lien  against  the  building  or  the 
structure,  and  they  provided  that  the  lien  should  date  from 
the  date  of  the  first  item  of  material  furnished,  or  labor  per- 
formed. The  other  feature  that  they  had  under  consideration 
was  the  claim  against  the  fund  in  the  owner's  hand  still  due  the 
principal  contractor;  and  as  to  that,  the  claim  is  fixed  as  of  the 
date  of  filing  the  notice.  The  lien  against  the  building  goes 
back  to  the  time  when  the  first  material  was  furnished,  or  the 
first  labor  performed. 

The  Supreme  Court  (and  Vogelmeier  Bros,  claim  that  this  is 
decisive  of  their  contention  in  the  ease)  hold,  in  the  44th  O.  S-, 
page  420; 

"1.  The  statutns  of  this  state  upon  the  subject  of  mechanic's 
liens,  being  remedial  in  their  nature,  are  to  be  liberally  con- 
strued in  order  to  carry  out  the  purpose  of  the  Legislature  in 
their  enactment. 

"2.  Where  a  mechanic  who,  under  the  employment  of  a  eon- 
tractor  and  with  the  knowledge  of  the  owner,  has  performed 
labor  in  the  construction  of  a  building,  and  the  account  not 
being  paid  takes  all  necessary  steps  as  provided  by  Sections  3193, 
3195,  3202  of  the  Revised  Statutes,  to  fix  the  liability  of  the 
owner  and  to  obtain  a  lien  upon  the  premises,  and  brings  his 
action  against  the  owner  to  recover  the  amount  due  and  have 
the  same  declared  a  lien,  such  account  being  less  than  the  bal- 
ance paid  on  the  contract,  such  owner  can  not  be  allowed  to  set 
off  a  claim  against  the  contractor,  not  growing  out  of  the  con- 
tract, acquired  by  him  after  the  labor  was  performed,  although 
such  claim  was  acquired  before  notice  that  the  mechanic's  de- 
mand had  not  been  paid." 

This  was  a  ease  where  Asa  Bullock  entered  into  a  ctntract 
with  Horn  to  ereet  a  building  for  him.  The  building  was  fin- 
ished in  August,  1883.  Another  Bullock  had  performed  labor 
for  Asa  Bullock  on  that  contract  and  finished  his  labor  on  Au- 
gust 25,  1883.  On  that  date  he  made  a  demand  upon  Asa 
Bullock  for  the  payment  of  his  claim,  but  was  refused.     On 


NISI  PBIUS  REPORTS— NEW  SERIES.  208 

IMS.}  Lane  v.   Bailey. et  al. 

the  11th  of  September  he  filed  his  claim  with  Horn  (the  de- 
fendant in  the  action) ;  he  filed  an  itemized  statement,  or  notice, 
as  the  statute  required,  and  perfected  his  lien.  Horn,  before 
the  itemized  statement  was  filed  with  him,  purchased  in  good 
faith,  not  knowing  but  what  the  claim  of  Bullock  had  been  paid, 
a  claim  against  Horn  from  s  lumber  company,  of  which  he  was 
a  stockholder,  and  he  attempted  to  set  that  off  against  the 
claim  of  Bullock,  the  sub-contractor.  The  court  held  that  he 
could  not  do  that;  that  it  did  not  grow  out  of  the  contract  that 
was  made  between  Horn  and  Asa  Bullock.  That  is,  that  it  was 
acquired  after  the  contract  was  made — after  the  work  was  com- 
pleted, and  after  notice  that  Bullock,  who  claimed  the  lien,  had 
performed  labor  on  the  building,  though  he  did  not  have  notice 
that  he  had  not  been  paid. 

The  distinguishing  feature  between  that  case  and  the  case  at 
bar  is  that  that  is  a  claim  which  was  purchased  by  the  owner 
against  the  principal  contractor,  and  was  attempted  to  be  set  off. 
It  was  not  a  claim  due  him.  It  was  a  claim  that  was  pur- 
chased after  the  labor  was  performed  by  the  sub-contractor,  and 
for  which  he  was  attempting  to  assert  his  lien. 

In  Stark  v.  Simmons,  54  0.  S.,  435,  the  Supreme  Court  say: 

"The  liability  of  the  owner  of  a  building  to  a  contractor  for 
labor  to  be  performed  thereon  is  pro  tanto  compensated  and 
discharged  by  a  valid  claim  against  such  contractor,  the  claim 
being  due  to  such  owner  when  the  contract  for  labor  is  entered 
into. ' ' 

Now,  the  only  question  for  consideration  here  is,  whether  the 
claim  was  due  Bailey  &  Keeley  at  the  time  that  this  notice  was 
served  upon  Bailey  &  Keeley. 

"In  the  absence  of  fraud  and  collusion  the  owner  may  insist 
upon  such  compensation  against  a  sub-liener."  Stark  v.  .Sim- 
mon*, 54  0.  S.,  435. 

This  is  a  case  where  a  elaim  was  brought  against  a  man  who 
was  doing  some  painting  on  a  house.  The  owner  of  the  prem- 
ises became  the  owner  of  the  claim  before  the  contract  was  en- 


LICKING  COUNTY  COMMON  PLEAS. 


tared  into,  and  the  court  held  that  he  had  a  right  to  set  it  off  as 
against  the  contractor. 

Judge  Shauck  says,  at  page  437 : 

"It  is  insisted  that  the  ruling  below  is  justified  by  Bullock  v. 
Horn,  44  Ohio  St.,  420,  It  was  there  decided  that  where  a  me- 
chanic, who  under  the  employment  of  a  contractor,  and  with 
the  knowledge  of  the  owner,  has  performed  labor  upon  the 
construction  of  a  building,  and  the  account  not  being  paid  takes 
the  necessary  steps  to  fix  the  liability  of  the  owner  and  obtain  a 
lien  upon  the  premises,  the  owner  can  not  defeat  the  claim  of 
such  mechanic  by  setting  off  against  it  a  claim  against  the  eon- 
tractor,  acquired  by  the  owner  after  the  labor  was  performed. 
In  that  case  the  owner  attempted  to  make  the  subsequently  ac- 
quired st; t -off  available  against  the  demand  of  the  mechanic 
to  defeat  his  right  to  resort  to  an  indebtedness  of  the  owner  to 
the  contractor,  which  existed  when  the  mechanic  performed  his 
labor.  The  opinion  approves  the  view  expressed  in  Phillips  on 
Mechanic's  Liens,  that  the  purpose  of  laws  of  this  character  is 
'to  take  from  the  owner  money  actually  owing  by  him  upon  his 
contract,  and  apply  it  in  payment  for  the  labor  and  material 
which  the  workman  and  material-men  have  contributed  toward 
the  performance  of  the  same  contract.'  " 

It  is  claimed  in  the  argument  that  it  would  be  an  injustice 
to  these  sub-contractors  to  permit  Bailey  &  Keeley  to  apply  the 
amount  due  them  from  Rose  on  this  contract,  because  it  would 
make  Vogelmeier  Bros,  pay  the  claim  that  was  due  Rose.  But 
another  view  of  the  case  is  that  it  would  make  Bailey  &  Keeley 
pay  Vogelmeier  out  of  their  own  funds,  if  this  fund  was  due 
them,  and  the  court  thinks  it  was  due  them  at  the  time. 

The  court  finds  for  the  plaintiff,  Lane,  and  finds  that  he  has 
the  first  and  best  lien,  and  is  entitled  to  be  fully  paid;  and  if 
there  is  any  excess,  it  is  to  be  paid  to  Vogelmeier  Bros.  There 
is  an  excess  of  several  hundred  dollars,  but  not  enough  to  pay 
Vogelmeier  Bros,  in  full. 

By  A.  A.  Stasel  :     How  about  the  judgment  before  the  squire  1 

Tub  Court:  That  judgment  was  paid  upon  the  order  of 
Rose.  It  is  specified  that  it  was  Rose's  liability;  that  he  agreed 
to  complete  the  building,  and  save  Bailey  &  Keeley  free  from 


NISI  PRIUS  REPORTS— NEW  SERIES.  205 

1908.)  McLean  et  al  v.  Cincinnati. 

any  damages  that  migh't  grow  out  of  the  erection  of  the  building. 
The  judgment  was  against  them,  jointly,  but  Rose  ordered 
Bailey  &  Keeley  to  pay  that  judgment  out  of  the  amount  due 
him.  It  is  tantamount  to  paying  it  to  Rose.  It  was  paid  upon 
his  order. 


TITLE  TO  VACATED  STREETS 

Common  Pleas  Court  of  Hamilton  County. 

McLean  et  al  v.  City  of  Cincinnati. 

Decided,  May,  1908. 

Streets— Title  to,  alter  Vocation— Language  of  Dedication—Municipal 
Corporal  ions — Section  2601 — Ejectment — Su  bdtvisions. 

Where  abutting  lot  owners  convey  their  Interest  in  the  property  on 
both  sides  of  a  street  to  the  municipality  and  the  street  Is  there- 
after vacated,  the  municipality  takes  &  fee  simple  title  In  the 
street  as  against  the  claims  of  those  who  laid  out  the  subdivision 
and  dedicated  the  streets  "to  the  public  forever,  to  be  used  as  pub- 
lic highways,  and  for  no  other  purpose." 

E.  R.  Donohue,  for  plaintiffs. 
City  Solicitor,  contra. 

"WoODMANSEE,  J. 

This  is  a  suit  in  ejectment  brought  by  the  heirs  of  William 
Burnet,  Eden  B.  Reeder,  Nat  C.  McLean  and  John  Shillito  to 
recover  possession  of  certain  real  estate  that  constitutes  a  part 
of  that  section  of  the  city  upon  which  the  new  city  hospital  is 
being  constructed.  Plaintiffs  waive  their  right  to  a  trial  by  jury, 
and  the  case  was  submitted  to  this  court  upon  an  agreed  state- 
ment of  facts. 

It  is  disclosed  that  the  parties  mentioned  above,  on  May  8, 
1850,  laid  out  the  Burnet  &  Reeder  subdivision,  and  dedicated 
certain  streets  and  alleys  to  the  public,  and  that  the  same  have 
been  vacated,  because  of  which  the  plaintiffs  claim  title  and  right 
to  possession. 


HAMILTON  COUNTY  COMMON  PLEAS. 

McLean  et  al  v.  Cincinnati.  [Vol.  VII,  N.  a 


Said  dedication  reads  as  follows:  ' 

"Know  all  men  by  these  presents:  That  William  Burnet, 
Eden  B.  Reeder,  Nat  C.  McLean  and  John  Shillito,  of  the  coun- 
ty of  Hamilton  in  the  state  of  Ohio,  do  make,  constitute  and  de- 
clare this  to  be  their  plat  of  subdivision  under  the  name  of  Bur- 
net &  Reeder  subdivision,  and  the  streets,  avenues  and  alleys  as 
laid  down  on  said  plat  they  do  hereby  dedicate  to  4he  public 
forever,  to  be  used'  as  public  highways,  and  for  no  other  pur- 


It  is  admitted  that  the  plaintiffs  herein  have  no  interest  in  the 
fee  simple  .title  to  the  lots  adjoining  the  streets  so  vacated.  The 
sole  question  is  as  to  ■who  took  title  to  said  streets  and  alleys  in 
question  upon  the  vacation  of  the  same  by  the  city. 

It  is  the  finding  of  this  court  that  the  plaintiffs  have  no  right, 
title  or  interest  in  said  streets  and  alleys.  The  law  is  that  upon 
the  vacation  of  a  street  by  a  municipality,  title  of  the  same  up  to 
the  center  line  thereof  vests  in  the  owner  of  the  adjoining  lots, 
so  that  when  the  owners  conveyed  all  their  right,  title  and  in- 
terest in  the  adjoining  lots  to  the  city  of  Cincinnati,  it  vested  in 
said  city  the  fee  simple  title  of  said  streets  and  alleys. 

It  is  urged  that  the  words  of  dedication  in  this  case  change  this 
established  rule.  The  dedication  contains  these  words:  "To  be 
used  as  public  highways,  and  for  no  other  purpose."  Counsel 
for  plaintiffs  insist  that  the  words  "for  no  other  purpose"  change 
the  usual  form  of  a  dedication,  but  in  the  opinion  of  this  court 
the  words  "for  no  other  purpose"  do  not  in  any  way  affect  the 
dedication,  because  in  any  event  it  was  for  street  purposes  only. 
An  abundance  of  words  might  have  been  used  specifying  what 
the  dedication  did  not  include,  but  when  it  set  forth  that  it  was 
to  be  used  as  public  highways  only,  it  would  be  just  as  effective 
as  though  it  included  the  reservation  of  all  things  for  which  the 
dedication  was  not  intended.  In  other  words,  the  dedication  in 
this  instance  was  simply  an  emphatic  expression  that  the  streets 
and  alleys  were  intended  to  be  used  as  public  highways  only. 

Counsel  for  plaintiffs  has  relied  with  some  confidence  upon 
what  is  known  as  the  Van  Wert  case,  reported  in  18  O.  S.,  page 
221.     In  that  case  the  dedication  was  for  school  purposes,  and 


NISI  PRIUS  REPORTS— NEW  SERIES.  207 

IMS.]  McLean  et  al  v.  Cincinnati. 

the  court  held  that  when  the  municipality  ceased  to  hold  the 
property  for  such  purposes  it  could  not  sell  the  property  and 
convey  a  fee  simple  title  and  apply  the  proceeds  of  purchase  to 
other  real  estate  for  school  purposes. 

In  the  case  of  Gotten  v.  Electric  Light  Co.,  66  0.  S.,  page  166, 
Judge  Spear,  speaking  for  the  entire  court,  said: 

"The  statutory  provision  respecting  the  effect  of  such  dedica- 
tion is  found  in  Section  2601  of  the  Revised  Statutes.  It  is  as 
follows : 

"  'And  thereupon,  the  map  or  plat  so  recorded  shall  be  deemed 
a  sufficient  conveyance  to  vest  in  the.  municipality  the  fee  of  the 
parcel,  or  parcels,  of  land  designated,  or  intended  for  streets, 
alleys,  ways,  commons  or  other  public  uses,  to  be  held  in  the 
corporate  name  in  trust  to  and  for  the  uses  and  purposes  in  the 
instrument  set  forth  and  expressed,  designated  or  intended.' 

"It  seems  plain  that  the  effect  of  the  provision  is  not  to  vest  in 
the  municipality  a  fee  simple  absolute  in  the  streets,  but  only  a 
determinable  or  qualified  fee,  and  that  what  is  granted  to  the  city 
is  to  be  held  in  trust  for  the  uses  intended,  viz.,  for  street  uses, 
and  street  uses  only.  Such  title  would  be  adequate  to  clothe  the 
municipality  with  power  to  fully  perform  its  statutory  duty 
towards  such  streets,  viz..  to  keep  the  same  open,  in  repair  and 
free  from  nuisance,  and  for  all  incidental  street  purposes.  The 
limitation  upon  the  title  necessarily  implies  that  there  is  a  sub- 
stantial interest  not  conveyed.  Naturally  it  would  be  presumed 
that  the  right  of  reverter  would  remain  either  in  the  original 
proprietor,  or  would  pass  to  and  vest  in  the  owners  of  the  abut- 
ting lots.  That,  as  between  these  two  classes,  the  interest  is  in 
the  owner  of  the  abutting  lots,  was  held  by  this  court  in  Steph- 
ens v.  Taylor,  Exr.,  51  0.  S.,  593,  where  a  street  had  been  va- 
cated by  the  city,  and  the  question  presented  was  whether  the 
fee  reverted  to  the  heirs  of  the  original  owner  who  dedicated  the 
street,  or  to  the  owners  at  the  time  of  the  vacation  of  the  lands 
abutting.  No  report  of  the  case  was  made  by  this  court,  but 
it  will  be  found  fully  reported  by  the  circuit  court  in  6  C.  C.  R., 
page  142.    The  same  principle  is  announced  in  65  0.  S.,  264." 

The  judgment  of  the  court  in  this  case  will  be  in  favor  of  the 
defendant,  the  city  of  Cincinnati,  and  plaintiffs'  petition  will  be 
dismissed. 


HOLMES  COUNTY  COMMON  PLEAS. 


PLEA  OF  AUTREFOIS  ACQUIT. 

Common  Pleas  Court  of  Holmes  County. 

State  of  Ohio  v.  Dickerson.  • 

Decided.  January  Term,  1908. 

Criminal  Law — Plea  in  Bar — Effect  of  a  Judgment  of  Revertttt  with 
Reference  to  Count*  a»  to  Which  the  Jury  were  Bilent — Autrefois 
Acquit  not  Available. 

The  reversal  of  the  judgment  in  a  criminal  case  places  the  state  and 
defendant  In  the  same  position  they  occupied  before  the  trial;  and 
where  a  defendant  secures  a  reversal  of  a  verdict,  which  was  silent 
as  to  the  first  and  second  counts  and  found  him  guilty  under  the 
third  count  of  the  Indictment,  he  can  not  thereafter  maintain  a 
plea'  In  bar  to  the  first  and  second  counts. 

Joseph  L.  McDowell,  Prosecuting  Attorney  Coshocton  County 
(the  case  having  been  sent  to  Milleraburgh  for  trial  on  a  change 
of  venue) ;   James  Glenn,  and  T.  E.  Wheeler,  for  State. 

J.  C.  Adams,  J.  ft  Dougherty  and  R.  M.  Voorkees,  for  de- 
fendant. 

Wickham,  J.  (orally). 

Indictment  for  murder  in  the  first  degree. 

This  cause  is  submitted  to  the  court  on  a  demurrer  filed  by  the 
state  of  Ohio  to  a  plea  in  bar  filed  by  the  defendant.  A  brief 
statement  of  the  facta  as  shown  by  the  plea  in  bar  is : 

That  at  the  January  Term,  1906,  of  the  Court  of  Common 
Pleas  of  Coshocton  County,  Ohio,  the  defendant  was  placed 
upon  trial  on  an  indictment  containing  three  counts.  The  first 
count  of  the  indictment  charges  the  defendant  with  murder  in 
the  first  degree,  with  deliberate  and  premeditated  malice;  the 
second  count  charges  murder  in  the  first  degree,  while  perpe- 
trating rape;  the  third  count  charges  murder  in  the  first  degree, 
while  attempting  to  perpetrate  a  rape.     The  trial  resulted  in  a 

•  Error  not  prosecuted;  for  opinion  on  motion  for  change  of  venue,  see 
7  N.  P.— N.  8..  193. 


NISI  PRIUS  REPORTS— NEW  SERIES.  209 

1908.]  State  v.  DIckerson. 

verdict  of  guilty  of  murder  in  the  first  degree,  while  attempting 
to  perpetrate  a  rape,  under  the  third  count  of  the  indictment. 
Afterward,  on  the  15th  day  of  April,  1906,  the  defendant  filed 
a  motion,  thereby  moving  the  court  to  set  aside  the  verdict  of 
the  jury  for  errors  of  law  committed  by  the  court  and  in  the 
trial  of  the  cause,  in  the  admission  and  rejection  of  evidence,  and 
in  the  court's  charge.  This  motion  was  overruled  and  a  judg- 
ment rendered  on  the  verdict. 

The  defendant  thereupon  filed  a  petition  in  error  in  the  Cir- 
cuit Court  of  Coshocton  County,  for  a  reversal  of  the  judgment. 
The  circuit  court,  at  its  October  Term,  1906,  reversed  the  judg- 
ment of  the  court  of  common  pleas,  for  errors  assigned  in  the 
record  and  in  the  motion  for  a  new  trial,  and  remanded  the  cause 
to  the  court  of  common  pleas  for  a  new  trial.  Thereupon  the 
prosecuting  attorney  for  Coshocton  county  prosecuted  error  in 
the  Supreme  Court,  and  in  October,  1907,  the  Supreme  Court 
of  Ohio  affirmed  the  judgment  of  the  circuit  court. 

The  defendant  claims  for  the  plea  in  bar  that  it  shows  he 
was  acquitted  of  the  crime  of  murder  as  charged  in  the  first  and 
second  counts  of  the  indictment  by  the  verdict  of  the  jury,  and 
that  he  can  not  now  be  put  upon  trial  on  those  counts,  or  either 
of  them;  that  to  compel  him  to  be  placed  upon  trial  on  those 
counts  would  be  a  violation  of  Section  10  of  Article  1,  of  the 
Bill  of  Rights,  which  provides  that  no  person  shall  be  twice  put 
in  jeopardy  for  the  same  offense. 

The  verdict  of  the  jury  did  not  in  express  terms  acquit  the 
defendant  of  the  crime  charged  under  the  first  and  second 
counts  of  the  indictment,  but  it  is  claimed  by  counsel  for  the  de- 
fendant that  the  verdict's  silence  on  those  counts  is  equivalent 
to  a  verdict  of  not  guilty,  and  this  view  is  sustained  by  authori- 
ties cited.  It  will,  therefore,  be  assumed  in  the  consideration 
of  this  question,  that  such  was  the  verdict  of  the  jury. 

This  brings  us  to  the  question  whether  the  plea  of  autrefois' 
acquit  is  available  to  the  defendant. 

Hurley  v.  State  of  Ohio,  6  Ohio,  399,  is  one  of  the  early  ad- 
judications of  our  Supreme  Court,     in  that  case  the  indictment 


HOLMES  COUNTY  COMMON  PLEAS. 


(Vol.  VII,  N.  S 


charged  Hurley  with  murder  in  the  first  degree  in  one  count, 
murder  in  the  second  degree  in  the  second  count,  and  of  man- 
slaughter in  the  third  count.  He  was  put  upon  trial  and  the 
jury  after  a  time  stated  to  the  court  that  they  had  agreed  that 
the  defendant  was  not  guilty  on  the  other  counts.  The  court 
thereupon  discharged  the  jury,  on  motion  of  the  prosecuting  at- 
torney and  against  the  consent  of  the  defendant. 

At  a  succeeding  term  the  defendant  filed  a  plea  in  bar  on  the 
ground  that  he  had  been  acquitted  of  the  charge  of  murder  in  the 
first  degree,  to  which  a  demurrer  was  filed  by  the  state.  On  the 
question  thus  made  the  Supreme  Court  said,  page  404: 

"A  verdict  in  either  a  civil  or  criminal  case  must  be  considered 
an  entire  thing.  It  must  respond  to  the  whole  declaration  and 
to  every  count  in  the  indictment,  or  the  court  can  not  legally  re- 
ceive it  as  the  verdict  of  the  jury. 

"In  this  case  the  record  shows  that  the  jury  could  not  agree  on 
a  verdict  on  the  last  two  counts  in  the  indictment,  and  having 
agreed  on  the  first  was  no  reason  why  the  verdict  should  have 
been  received.  It  was  in  law  no  verdict  and  the  court  did  not 
err  in  rejecting  it  altogether." 

In  the  case  at  bar  the  circuit  court  reversed  the  judgment  of 
the  trial  court  and  set  aside  the  verdict  for  errors  appearing  on 
the  record  of  the  case.  It  was  an  invalid  verdict  and  judg- 
ment. An  invalid  verdict  is  no  verdict,  and  is  equivalent  to  a 
disagreement  of  the  jury  on  the  count  on  which  it  is  returned. 

But  it  is  claimed  by  counsel  that  the  ease  at  bar  is  to  be  dis- 
tinguished from  this  authority,  and  it  must  be  conceded  that  the 
facts  are  quite  dissimilar.  Here  the  three  counts  of  the  indict- 
ment each  charged  murder  in  the  first  degree.  In  the  Hurley 
ease  the  counts  of  the  indictment  charged  crimes  of  different 
degree ;  but  would  not  the  general  analogies  of  the  law  require 
the  same  ruling  or  decision  in  the  one  case  as  in  the  other! 

A  case  of  similar  character  in  its  facts  is  State  v.  Bekeimer, 
20  O.  S.,  572.  Beheimer  was  put  upon  trial  on  an  indictment 
charging  murder  in  the  first  degree  in  a  single  count.  A  jury 
found  him  not  guilty  of  murder  in  the  first  degree  but  guilty  of 
murder  in  the  second  degree. 


NISI  PRIUS  REPORTS— NEW  SERIES.  211 

1908.]  State  V.  Dlckerson. 

The  defendant  thereupon  moved  the  court  to  set  aside  that 
portion  of  the  verdict  finding  him  guilty  of  murder  in  the  sec- 
ond degree  and  for  a  new  trial.  The  court  sustained  the  motion 
and  set  aside  the  verdict  and  granted  a  new  trial.  At  the  next 
term  of  the  court  a  plea  in  bar  was  filed,  setting  forth  the  ver- 
dict at  the  previous  term  in  bar  of  bis  further  prosecution  on 
the  indictment  charging  murder  in  the  first  degree.  The  state 
demurred  and  the  court  overruled  the  demurrer,  and  held 
that  the  special  plea  was  a  bar  to  the  further  prosecution  of  the 
defendant  on  the  indictment  for  murder  in  the  first  degree,  to 
which  ruling  the  prosecuting  attorney  excepted.  At  the  Febru- 
ary Term  of  court  1871,  the  case  came  to  trial  again,  and  the 
jury  found  the  defendant  not  guilty  of  murder  in  the  second  de- 
gree, but  guilty  of  manslaughter.  The  defendant  tfeaa  moved 
the  court  to  set  aside  this  verdict,  or  so  far  as  the  same  found  the 
defendant  guilty  of  manslaughter.  The  court  sustained  this  mo- 
tion and  ordered  the  verdict  to  be  set  aside,  and  awarded  tbe 
defendant  a  new  trial.  The  prosecuting  attorney  excepted,  and 
filed  a  petition  in  error  in  the  Supreme  Court  for  a  ruling  on  tbe 
questions  presented.  The  court  held  that  the  rule  in  criminal 
cases  was  the  same  as  that  in  civil  cases,  and  that  is,  that  where 
a  part  of  the  issue  has  been  found  for  the  defendant,  and  he 
should  obtain  a  new  trial,  that  the  whole  issue  would  be  re-opened 
for  investigation  on  the  second  trial. 

The  court  say,  at  page  577: 

"In  the  case  now  before  us,  if  after  the  granting  of  the  new 
trial  the  finding  of  the  jury  acquitting  the  defendant  of  mur- 
der in  the  first  degree  stood  as  an  adjudication  of  that  fact  and 
had  its  full  legal  effect,  it  would  preclude  his  retrial  for  any  of 
the  lesser  degrees  of  homicide. 

"Thus  an  acquittal  on  an  indictment  for  murder  will  be  a 
good  plea  to  an  indictment  for  manslaughter  of  tbe  same  per- 
son; and  converse  an  acquittal  on  an  indictment  for  man- 
slaughter will  be  a  bar  to  a  prosecution  for  murder;  for  in  the 
instance,  had  the  defendant  been  guilty,  not  of  murder  but  of 
manslaughter,  he  would  have  been  found  guilty  of  the  latter  of- 
fense on  that  indictment;  and  in  the  second  instance,  since  the 
defendant  is  not  guilty  of  manslaughter,  he  can  not  be  guilty  of 


HOLMES  COUNTY  COMMON  PLEAS. 


(Vol.  VII,  N.  S. 


manslaughter  under  circumstances  of  aggravation  which  enlarge 
it  into  murder. 

"But  the  effect  of  setting  aside  the  verdict  finding  the  defend- 
ant guilty  was  to  leave  at  issue,  and  undetermined,  the  fact  of 
the  homicide ;  also  the  fact  whether  the  defendant  committed  it, 
if  one  was  committed.  The  legal  presumption  of  his  plea  of 
not  guilty  was  of  his  innocence;  and  the  burden  was  on  the 
state  to  prove  every  essential  fact.  The  only  effect,  therefore, 
that  could  be  given  to  so  much  of  the  verdict  as  acquitted  the 
defendant  of  murder  in  the  first  degree,  after  the  rest  of  it  had 
been  set  aside,  would  be  to  regard  it  as  finding  the  qualities  of  an 
act  while  the  fact  of  the  existence  of  the  act  was  undetermined. 
This  would  be  a  verdict  to  the  effect  that  if  the  defendant  com- 
mitted the  homicide,  he  did  it  without  'deliberate  and  premedi- 
tated malice.' 

"There  can  be  no  legal  determination  of  the  character  of  the 
malice  of  a  defendant  in  respect  to  a  homicide  which  he  is  not 
found  to  have  committed ;  or,  rather,  of  which,  under  his  plea, 
he  is  in  law  presumed  to  be  innocent. 

"The  indictment  was  for  a  single  homicide.  The  defendant 
could,  therefore,  only  be  guilty  of  one  offense,  and  could  be  sub- 
ject to  only  one  punishment.  The  degrees  of  the  offense  differed 
only  in  the  quo  animo  with  which  the  act  causing  the  homicide 
was  committed.  The  question  of  fact  was  whether  a  criminal 
homicide  had  been  committed;  and,  if  so,  whether  the  circum- 
stances of  aggravation  were  such  as  to  raise  it  above  the  grade 
of  manslaughter.  If  the  finding  as  to  the  main  fact  .is  set  aside, 
the  finding  as  to  the  circumstances  necessarily  goes  with  it, 

"It  seems  to  us,  therefore,  that  the  necessary  result  of  grant- 
ing the  defendant's  motion  for  a  new  trial  was  to  set  aside  the 
whole  verdict;  and  this  having  been  done  at  his  own  instance, 
it  can  neither  operate  as  an  acquittal  nor  as  a  bar  to  the  fur- 
ther prosecution  of  any  part  of  the  offense  charged." 

Fox  v.  State,  34  O.  S.,  377,  is  perhaps  an  extreme  ease.  The 
defendant  was  indicted  on  a  charge  of  rape ;  the  jury  found  the 
defendant  not  guilty  of  rape  as  charged  in  the  indictment,  but 
guilty  of  an  attempt  to  commit  a  rape,  and  the  defendant  was 
sentenced  to  a  term  of  imprisonment  in  the  penitentiary. 

On  a  petition  in  error  the  Supreme  Court  held  that  an  attempt 
to  commit  a  rape  was  no  crime  in  Ohio,  and  instead  of  discharg- 
ing the  defendant  in  error,  Fox,  on  the  verdict  of  the  jury  of 


NISI  PRIUS  REPORTS— NEW  SERIES.  218 

1908.]  State  V.  DIckerson. 

not  guilty  of  rape,  reversed  the  judgment  of  the  common  pleas 
court,  and  remanded  the  cause  for  a  new  trial.  The  language  of 
the  court  is  as  follows,  page  381 : 

"In  our  opinion,  the  verdict  having  failed  to  respond  to  the 
whole  indictment  in  such  manner  as  to  authorize  the  court  be- 
low either  to  sentence  the  accused,  or  to  order  his  discharge,  it 
was  the  duty  of  the  court,  on  its  own  motion,  to  set  the  verdict 
aside  and  to  order  a  new  trial." 

A  case  more  nearly  in  point  in  its  facts  is  Jarvis  v.  State,  19 
O.  S.,  585.  In  that  case,  the  first  count  charged  homicide  by 
throwing  a  glass  tumbler  against  the  head  of  the  deceased;  the 
second  count,  by  striking  the  head  of  the  deceased  with  a  tumbler 
in  the  hand;  and  the  third  count,  by  striking  the  head  with 
the  hand.  A  trial  resulted  in  a  verdict  of  guilty  as  charged  in 
the  third  count,  and  not  guilty  as  charged  in  the  first  and  sec- 
ond counts.  The  court  sustained  a  motion  to  set  aside  the  ver- 
dict, and  Jarvis  filed  a  plea  in  bar  on  the  ground  of  the  former 
acquittal  on  the  first  and  second  counts.  A  demurrer  was  sus- 
tained to  this  plea  in  bar,  and  the  defendant  was  again  placed 
on  trial.  The  verdict  of  the  jury  at  the  second  trial  was  guilty 
as  charged  in  the  first  count,  and  not  guilty  as  charged  in  the 
second  and  third  counts.  The  court  overruled  a  motion  to  sot 
aside  this  verdict,  and  entered  a  judgment  thereon,  On  a  peti- 
tion in  error  in  the  Supreme  Court  the  judgment  of  the  court 
of  common  pleas  was  affirmed  on  the  authority  of  Leslie  v.  State, 
18  0.  S.,  390. 

The  Leslie  case  is  one  that  appears  to  be  directly  in  point. 
The  facts  are  not  fully  stated  in  the  report  of  the  case,  but  from 
the  statement  given  it  seems  to  be  more  nearly  like  the  case  at 
bar  in  its  facts  than  any  other  one  cited. 

At  the  December  Term,  1866,  of  the  Court  of  Common  Pleas 
of  Montgomery  County,  Joseph  < Leslie  was  indicted  on  three 
counts,  each  charging  him  with  murder  in  the  first  degree,  in 
causing  the  death  of  Mary  Miranda  Caylor,  by  means  of  a 
pistol  shot.  He  was  put  upon  trial  at  the  April  Term  of  that 
court,  1867.    The  jury's  verdict  was.  "guilty  of  murder  in  the 


214  HOLMES  COUNTY  COMMON  PLEAS. 

Slate  v.  Dickenson.  [Vol.  Til,  N.  S. 

first  degree,  as  charged  in  the  first  count  of  the  indictment;  and 
not  guilty  as  charged  in  the  second  and  third  counts  of  the  in- 
dictment." Leslie  moved  the  court  to  set  aside  this  verdict  and 
grant  a  new  trial,  on  grounds  therein  stated.  This  motion  was 
sustained  by  the  court,  and  Leslie  again  was  put  on  trial,  at  the 
December  Term,  1868 ;  that  trial  resulted  in  a  verdict  of  guilty 
of  manslaughter,  as  charged  in  the  third  count  in  the  indictment, 
and  not  guilty  as  charged  in  the  first  and  second  counts. 

Leslie  thereupon  moved  the  court  to  release  him  from  the 
charges  contained  in  the  indictment,  and  discharge  him  from  cus- 
tody, on  the  ground  that  on  the  first  trial  he  was  found  guilty  of 
murder  in  the  first  degree,  as  charged  in  the  first  count  of  the 
indictment,  and  not  guilty  as  charged  in  the  second  and  third 
counts,  and  that  this  verdict  was  set  aside  and  a  new  trial 
granted;  and  that  upon  the  second  trial  he  was  found  not  guilty 
upon  the  first  and  second  counts  in  the  indictment,  but  guilty 
of  manslaughter  upon  th«t  third  count,  and  claimed  that  the  ver- 
dict of  guilty  of  manslaughter  was  irregular,  illegal  and  void. 
This  motion  was  overruled,  and  he  was  sentenced  for  a  term  of 
imprisonment  in  the  penitentiary. 

The  court  say,  at  the  outset  of  the  opinion,  page  393 : 

"The  three  counts  of  the  indictment  in  this  case  relate  to  th.1 
same  person  killed  and  to  one  act  of  killing.  They  are  all 
founded  upon  the  same  transaction,  and  are  intended  to  meet 
the  facts  as  they  may  be  found  from  the  evidence  on  the  final 
trial.  A  conviction  upon  all  or  any  one  of  the  counts  would  have 
subjected  the  plaintiff  in  error  to  but  one  punishment.  This  is 
not  a  case  of  separate  and  distinct  offenses,  set  forth  in  differ- 
ent counts  of  the  same  indictment.  The  several  counts  are  in- 
serted solely  for  the  purpose  of  meeting  the  evidence  as  it  may 
appear  on  the  trial.  The  crime  charged  being  substantially  the 
same  in  each  count." 

These  words  of  the  Supreme  Court  are  equally  as  applicable  to 
the  case  at  bar.  "We  can  not  agree  with  counsel  for  the  defend- 
ant that  the  counts  of  the  indictment  in  this  case  charge  separate 
and  distinct  offenses.  They  each  charge  murder  in  the  first  de- 
gree, and  charge  separate  and  distinct  offenses  only  in  the  sense 


NISI  PRIUS  REPORTS— NEW  SERIES.  215 

1908.]  State  v.  Dickereon.  '         ~ 

that  murdeu  in  the  first  degree  includes  within  it  offenses  of 
lesser  atrocity. 

The  court  say  further: 

"The  ground  of  the  motion  for  the  discharge  of  the  defend- 
ant belaw,  under  his  conviction  upon  the  third  count  on  the  sec- 
ond trial,  was  that  he  had,  on  the  first  trial,  been  acquitted  on 
the  same  count.  The  logical  result  of  this  position  as  applied  to 
this  case  would  seem  to  be  that,  on  the  new  trial  being  granted,  he 
is  entitled  to  his  discharge  from  the  whole  indictment;  for  the 
first  and  third  counts  were  substantially  alike,  and  were  both  in 
fact  for  the  same  offense,  and  if  the  verdict  of  acquittal  on  the 
third  count  remained  in  foree  and  operated  as  a  bar  to  a  re- 
trial upon  that  count,  it  would  be  equally  effective  against  the 
further  prosecution  on  the  first  count,  and  could  be  formally 
pleaded  in  bar  as  a  former  acquittal.  A  verdict  of  acquittal  not 
only  operates  to  discharge  the  defendant  from  the  indictment 
upon  which  he  has  been  tried,  but  constitutes  a  bar  to  any  other 
substantially  like  it,  for  the  same  offense. 

"Where  the  indictment,  though  consisting  of  several  counts,  is 
founded  upon  a  single  transaction,  the  verdict  is  a  unit,  and 
lays  the  foundation  for  but  a  single  judgment.  A  verdict  of 
guilty  upon  one  of  the  counts,  and  of  not  guilty  upon  the  others, 
is  followed  by  the  same  legal  consequences  as  a  verdict  of  guilty 
upon  all  the  counts ;  and  where  in  either  case  the  verdict  is  set 
aside  and  a  new  trial  granted,  on  the  defendant's  motion,  the 
case  is  open  for  a  retrial  upon  the  counts  upon  which  he  was 
acquitted  as  well  as  those  upon  which  he  was  convicted.  If  this 
were  not  so,  the  value  and  object  of  the  rule  allowing  a  single 
offense  to  be  charged  in  different  ways,  m  several  counts,  would 
be  greatly  impaired,  and  often  defeated."" 

So,  too,  if  the  defendant  in  this  case,  by  the  former  verdict, 
were  freed  of  the  charge  of  the  murder  of  Katherine  Hughes 
in  the  commission  of  rape,  it  would  be  an  adjudication  of  the 
fact  of  the  killing,  and  also  of  the  fact  that  he  is  the  person  who 
committed  that  act ;  and  those  facts  being  adjudicated,  he  could 
not  be  placed  upon  trial  upon  the  third  count  of  this  indict- 
ment. The  argument  of  the  Supreme  Court  in  the  Leslie  ease 
applies  with  force  to  the  question  in  the  case  at  bar. 

We  therefore  hold  that  the  setting  aside  of  the  verdiet  by  the 
Circuit  Court  of  Coshocton   County,  and  the  reversal  of  the 


21«      HOLMES  COUNTY  COMMON  PLEAS. 

State  v.  Dfckeraon.  |  Vol.  VII,  N.  S. 

judgment,  placed  the  State  and  the  defendant  in  the  same  posi- 
tion that  they  Were  in  before  the  trial.  In  other  words,  that  the 
verdict  of  the  jury  in  that  trial  was  an  entire  thing,  and  when 
reversed  upon  the  application  of  the  defendant  himself,*  at  his 
instance,  he  can  not  now  be  heard  to  say  that  it  must  stand  as  an 
acquittal  of  the  offense  as  charged  in  the  first  and  second  counts 
of  the  indictment. 

The  authorities  cited  by  counsel  of  the  defendant,  many  of 
them,  are  foreign  to  our  state,  and  have  but  little  weight  as 
authority  as  against  the  decision  of  our  own  Supreme  Court. 
The  Suteliffe  case  cited  is  but  a  dictum,  and  is  entitled  to  but 
little  consideration. 

In  addition  to  the  authorities  cited,  we  might  call  the  atten- 
tion of  counsel  to  the  case  of  Hurley  v.  State,  decided  by  the 
Circuit  Court  of  Hamilton  County,  4  C.  C,  425.  We  call  the  at- 
tention of  counsel  particularly  to  the  language  of  the  court  on 
page  426: 

"The  plea  of  the  defendant  that  he  was  once  in  jeopardy  is 
not  well  founded,  for  the  judgment  for  and  against  him  is  set 
aside  at  his  own  instance,  and  he  has  no  right  to  complain  of 
that  which  he  himself  has  brought  about." 

Our  judgment  is  that  the  demurrer  to  the  plea  in  bar  should 
be  sustained  and  the  plea  dismissed. 


NISI  PBIUS  REPORTS— NEW  SERIES. 
Machine  Co.  v.  Nelli  et  al. 


DISCLOSURE  OF  SICRJtT  MICHAN1CAJL  IDEAS. 

Common  Pleas  Court  of  Montgomery  County. 

Recording  &  Computing  Machines  Company  v.  George  Neth 
and  Clarence  H.  Tamplin.* 

Decided,  April  S,  1904. 

Confidential  Information — Obtained  by  Employes  in  the  Course  of 
Their  Employment — Mechanical  Secrets  Learned  in  an  Experi- 
menting Room— Disclosure  of,  to  a  Rival  Concern  may  be  £n- 
joined — Corporat  ions — Contracts — Jurisdict  ion. 

1.  Where  the  minds  of  the  parties  have  met  with  reference  to  a  pro-  " 

posed  contract  aud  the  conditions  to  be  embodied  therein,  the 
mere  fact  that  the  contract  which  was  not  ready  for  signature 
at  the  time  of  reaching  the  agreement  was  never  signed  does  not 
deprive  It  of  Its  binding  character,  and  such  a  contract  where 
not  within  the  scope  of  the  statute  of  frauds  la  en  forcible. 

2.  One  employed  to  perfect  an  invention  occupies  a  confidential  rela- 

tion toward  his  employer,  and  Is  not  at  liberty  to  make  disclosures 
with  reference  to  the  work  In  band;  nor  will  he  be  permitted, 
after  successfully  accomplishing  the  work  for  which  he  was  em- 
ployed and  perfecting  the  machine,  to  claim  title  thereto  as 
against  his  employer,  or  to  engage  In  work  for  a  rival  concern 
on  the  same  machine  or  other  machines  Involving  the  same  me- 
chanical features,  or  Involving  devices  or  ideas  peculiar  to  said 
machine. 

Sprigg  &  Fitzgerald,  for  plaintiff. 

R.  J.  McCarty  and  Dickson  &  Clark,  contra. 

In  this  eaae  the  plaintiff  company  filed  the  subjoined  petition 
in  the  common  pleas  court: 

"Plaintiff  says  that  it  is  a  corporation  organized  under  the 
laws  of  the  state  of  Ohio,  with  its  principal  place  of  business 
in  the  city  of  Dayton,  Montgomery  county,  Ohio.  The  defend- 
ants, George  Neth  and  Clarence  Tamplin,  are  residents  of  the 
city  of  Dayton,  Montgomery  county,  Ohio. 

'Affirmed  by  the  Circuit  Court  without  report;  Circuit  Court  affirmed 
by  the  Supreme  Court  without  report,  75  Ohio  State.  603. 


218       MONTGOMERY  COUNTY  COMMON  PLEAS. 

Machine  Co.  v.  Nelh  et  al.  [Vol.  VII.  N.  S. 

"For  cause  of  action  against  the  said  defendants  plaintiff  says 
that  for  some  time  before  the  organization  of  the  plaintiff, 
Will  I.  Ohmer  was  engaged  in  the  business  of  manufacturing  or 
experimenting  in  the  manufacture  of  recording  or  computing  or 
registering  machines  in  the  said  city  of  Dayton,  Ohio,  and  was 
the  sole  owner  of  a  plant  in  the  said  city,  with  valuable  patents, 
good  will  and  the  accessories  to  the  manufacturing  business  in 
said  city. 

"On  or  about  the  5th  day  of  February,  A.  D.  1904,  the  said 
Will  I.  Ohmer  sold,  assigned  and  transferred  to  the  plaintiff, 
the  Recording  &  Computing  Machines  Company,  his  entire  busi- 
ness with  all  the  property  and  rights  of  every  kind  and  descrip- 
tion, and  since  said  date  the  plaintiff,  the  Recording  &  Comput- 
ing Machines  Company,  has  been  the  owner  and  possessor  of 
said  business,  and  has  been  engaged  in  the  manufacture  of 
recording,  computing  and  registering  machines  under  valuable 
patents  granted  by  the  patent  office  of  the  United  States  of 
America,  and  of  prosecuting  invention  thereon.  For  several 
years  last  past  the  defendants,  George  Neth  and  Clarence  Tamp- 
lin,  have  been  employed  by  Will  I.  Ohmer  and  by  the  plaintiff, 
as  his  successor,  as  experimenters  under  the  direction  of  said 
Will  I.  Ohmer  in  the  experimental  department  of  their  said  busi- 
ness, and  in  a  confidential  relation  to  them,  and  have  received 
large  salaries  in  their  said  employment  from  the  plaintiff  and 
the  said  Ohmer.  By  reason  of  their  connection  with  the  said 
experimental  department  of  plaintiff,  the  defendants,  George 
Neth  and  Clarence  Tamplin,  have  acquired  valuable  information 
as  to  the  mechanisms  of  the  machines  being  developed  and  manu- 
factured by  the  plaintiff.  On  or  "about  the  10th  day  of  May, 
1904,  the  defendants,  Neth  and  Tamplin,  represented  to  the  offi- 
cers of  the  plaintiff  that  they  had  developed  a  new  and  improved 
registering  and  operating  mechanism,  which  was  thoroughly 
practical  and  would  do  all  and  more  than  the  machines  made 
for  similar  purposes  by  the  said  plaintiff,  and  other  machines  of 
similar  nature,  and  represented  that  said  mechanism  is  new  in 
principle,  patentable,  and  that  it  did  not  infringe  upon  any 
other  mechanism  of  any  other  person  whatsoever.  Whereupon, 
Will  I.  Ohmer,  acting  for  the  plaintiff,  entered  into  a  contract 
in  his  name  with  the  defendants,  Neth  and  Tamplin,  by  the 
terms  of  which  he  agreed  to  buy,  and  defendant,  Xath  and  Tamp- 
lin, agreed  to  sell  to  him  such  new  and  improved  mechanism  and 
registering  machine  when  said  machine  was  completed  as  a 
practicable  and  acceptable  registering  machine.  By  the  terms  of 
said  contract  Will  I.  Ohmer  agreed  to  pay  $200  in  cash  and 


NISI  PRIUS  REPORTS— NEW  SERIES.  219 

1908.)  Machine  Co.  v.  Neth  et  al. 

targe  salaries  to  defendants,  Neth  and  Tamplin,  to  remain  in 
his  employment  and  perfect  the  said  machine.  He  was  further 
to  furnish  them  with  all  the  necessary  shop  room,  tools  and  ma- 
terial for  the  completion  of  the  first  model  of  said  machine,  and 
upon  its  completion  as  a  practicable  and  acceptable  registering 
machine  was  to  pay  them  a  large  sum  of  money  as  an  additional 
consideration  therefor,  to-wit,  the  sum  of  $4,000,  less  what 
had  been  already  paid  in  wages  to  the  two  men.  The  defendants, 
Neth  and  Tamplin,  agreed  to  work  upon  and  perfect  the  model 
of  said  machine  at  his  expense,  and  that  upon  the  request  of  Will 
I.  Ohmer,  or  his  nominee  or  nominees,  they  would  sign  all  papers, 
make  all  lawful  oaths,  assignments,  assign  all  applications  for 
letters  patent,  and  any  other  documents  necessary,  and  to  assign 
any  and  all  improvements  on  said  machine,  and  to  do  all  things 
necessary  or  desirable  in  procuring  the  issue  or  re-issue  of  any 
patent  or  patents  relating  to  the  inventions  set  out. 

"The  plaintiff,  after  said  contract  was  made,  tendered  to  the  ' 
defendants  the  sum  of  $200  in  cash,  gave  them  all  the  neces- 
sary shop  room,  tools  and  materials,  and  was  and  is  ready  and 
willing  to  pay  the  stipulated  weekly  wages  to  the  defendants, 
and  upon  the  completion  of  the  model,  drawings,  specifications, 
etc.,  to  inspect  the  same,  and  if  a  practical  machine  and  accept- 
able to  the  trade  using  the  same,  to  pay  for  the  same  according 
to  the  terms  of  the  contract,  the  defendants  to  turn  over  the 
application  for  the  patents,  and  the  patents  when  issued,  and 
all  models,  drawings,  etc. 

"Plaintiff  says  that  during  the  time  that  defendants  have 
been  with  it  and  Will  I.  Ohmer,  experimenting  at  its  and  his 
expense,  several  machines  or  models  have  been  constructed  con- 
taining special  devices,  and  in  their  confidential  employment  de- 
fendants have  become  familiar  with  the  business  and  mechanical 
secrets-of  the  plaintiff,  the  disclosure  of  which  to  its  rivals  would 
be  very  injurious,  and  they  have  acquired  a  special  knowledge, 
and  have  prepared  drawings  and  plans  which  they  should  not  be 
permitted  to  carry  away  to  the  said  rivals  or  other  persons. 

"Plaintiff  avers  that  notwith  standing  their  agreement  as 
aforesaid  the  defendants  have  purposely  and  intentionally  aban- 
doned the  same  without  cause;  they  have  refused  to  receive  the 
cash  payment ;  they  have  left  the  shop  of  the  plaintiff  and  taken 
away  their  tools;  and  decline  to  work  upon  the  invention  and  to 
perfect  the  model  for  the  plaintiff,  or  to  do  anything  under  the 
contract. 

' '  Plaintiff  avers  that  notwithstanding  their  agreement  as 
ment  with  some  other  person  or  corporation,  in  its  belief,  and 


220        MONTGOMERY  COUNTY  COMMON  PLEAS.         _ 
Machine  Co.  v.  Neth  et  al.  (Vol.  VII.  N.  8. 

it  avers  that  they  are  about  to  work  upon  the  same  elsewhere,  in 
the  interest  of  some  other  party,  and  to  sell  the  same  to  such 
other  party  without  giving  the  plaintiff  the  right  to  inspect  the 
same  and  exercise  its  option,  if  it  is  a  valuable  invention,  to  be- 
come the  exclusive  owner  of  the  same  upon  the  payment  of  the 
consideration  money  provided  in  the  contract.  And  unless  re- 
strained the  defendants  will  work  upon  the  same  in  the  interest 
of  other  parties,  disclose  to  them  the  secrets  involved  in  its  con- 
struction and  mechanism,  as  well  as  in  the  mechanism  and  con- 
struction of  various  other  machines  which  the  plaintiff  is  engaged 
in  making,  and  carry  to  them  drawings,  specif!  cat  ions  and  other 
ideas  and  information,  the  private  property  of  the  plaintiff,  ac- 
quired by  defendants  while  so  confidentially  engaged,  and  when 
said  invention  is  perfected  they  will  refuse  to  disclose  the  same 
to  the  plaintiff,  or  to  expose  to  it  the  model  and  the  invention 
thereon,  or  to  give  it  an  option  to  inspect  the  same  and  upon 
approval  to  take  the  said  model,  invention,  patents,  etc.,  at  the 
agreed  price,  or  to  transfer  the  same  to  it  upon  its  tender  of  the 
price,  all  of  whieh  will  be  to  the  irreparable  injury  of  the 
plaintiff. 

"Wherefore,  plaintiff  prays  that  the  defendants,  Neth  and 
Tamplin,  and  eaeh  of  ithem,  be  restrained  from  disclosing  or 
divulging  to  any  other  party  or  parties  the  information,  draw- 
ings, specifications,  or  mechanical  secrets  of  the  plaintiff,  from 
carrying  to  them  any  of  the  said  drawings  or  models;  or  from 
engaging  in  any  work  for  other  parties  than  the  plaintiff  upon 
the  invention  referred  to  herein,  in  the  perfection  of  the  same,  or 
the  making  of  machines  or  models  under  the  same;  from  com- 
municating in  any  way  to  other  parties  the  knowledge  of  the 
secrets  of  the  business  of  the  plaintiff,  acquired  by  them  while 
in  its  employ,  or  the  employ  of  the  said  Will  I.  Ohmer;  and 
from  in  any  way  placing  themselves  in  such  a  position  that 
they  will  not  be  able  to  comply  with  the  contract  made  with  the 
plaintiff. 

"And  plaintiff  prays  that  when  said  invention  is  perfected 
and  before  said  application  for  patent  is  filed,  and  patent  is 
issued,  the  plaintiff,  before  defendants  be  permitted  to  transfer 
the  same  to  anyone,  shall  have  a  reasonable  opportunity  of  in- 
specting and  examining  the  same,  and  of  having  the  option  to 
take  the  same  at  the  agreed  price,  and  that  the  defendants  be 
restrained  from  selling,  assigning,  transferring,  or  in  any  way 
granting  any  license  or  permit  under  the  same  until  such  option 
has  been  extended,  and  for  all  other  proper  relief." 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Machine  Co.  v.  Neth  et  al. 


To  this  petition  the  defendants  filed  the  following  answer: 

"Now  comes  the  defendants  and  for  answer  say,  that  they 
were  for  a  time  in  the  employ  of  said  Will  I.  Ohmer  and  the 
plaintiff;  that  on  the  7th  day' of  June,  191)4,  after  they  had  quit 
the  employment  of  plaintiff,  and  not  on  the  10th  day  of  May, 
1904,  as  alleged  in  the  petition,  and  not  prior  to  the  7th  day  of 
June,  1904,  they  told  said  Will  I.  Ohmer  that  they  had  in  mind  a 
registering  mechanism.  Defendants  further  say  that  they  had 
some  negotiations  with  said  Will  I.  Ohmer  with  reference  to  said 
mechanism,  looking  toward  a  contract  with  him;  that  said  Will 
I.  Ohmer  made  certain  proposals  to  them,  and  drew  up  in  writ- 
ing a  contract  containing  about  the  stipulations  mentioned  in  the 
petition;  hut  the  defendants  deny  that  they  entered  into  the 
contract  as  alleged  in  the  petition ;  but  on  the  contrary  aver  that 
they  refused  to  sign  same,  and  asked  for  a  copy  of  same  and  for 
further  time  to  consider  same.  Defendants  deny  that  they  ever 
entered  into  said  alleged  contract  or  that  they  are  under  any 
contract  whatever  with  said  Will  I.  Ohmer,  or  plaintiff.. 

"Defendants  deny  that  they  have  carried  away  any- drawings 
or  plans;  deny  that  they  are  about  to  divulge  the  secrets  men- 
tioned in  the  petition,  or  any  secrets  belonging  to  plaintiff  or 
Will  I.  Ohmer  to  any  one. 

"Defendants  say  that  at  the  time  they  requested  said  Ohmer 
to  give  them  a  copy  of  his  proposal  he  neglected  and  refused 
to  do  so ;  and  that  his  suit  was  brought  and  injunction  asked  for 
to  coerce  them  into  treating  as  a  contract  his  said  proposal  which 
they  never  signed. 

"Wherefore,  defendants  ask  to  he  dismissed  with  their  costs 
and  for  all  proper  relief." 

A  temporary  injunction  was  granted,  which  was  afterward 
made  perpetual  in  the  following  final  decree: 

"This  cause  came  on  to  be  heard  upon  the  petition  of  the 
plaintiff,  the  answer  of  the  defendants,  and  the  evidence,  and 
was  submitted  to  the  court;  whereupon  the  court,  being  fully 
advised,  upon  consideration  finds  upon  the  issurs  joined  in  favor 
of  the  plaintiff,  and  that  the  allegations  of  the  petition  are  true; 
it  is  therefore  ordered  and  adjudged  by  the  court  that  the 
temporary  injunction  heretofore  allowed  herein  be,  and  the 
same  is  hereby  made  perpetual,  and  the  said  defendants.  George 
Neth  and  Clarence  Tamplin,  and  each  of  them,  are  hereby  per- 
petually enjoined,  from  disclosing  or  divulging  knowledge  to 


222       MONTGOMERY  COUNTY  COMMON  PLEAS. 

Machine  Co.  v.  Netb  et  al.        '        (Vol.  VII,  N.  B 

any  person  or  persons  other  than  the  plaintiff,  of  all  and  singu- 
lar the  mechanical  ideas,  combinations,  mechanisms,  models, 
patterns,  sketches,  drawings,  and  devices  involved  in,  or  relating 
to  fare  and  ticket  registering,  recording  and  computing  machines, 
suggested,  disclosed,  or  developed  by  plaintiff  during  the  con- 
fidential employment  of  defendants  by  plaintiff  or  by  Will  I. 
Ohmer,  including  the  machines  known  in  plaintiff's  shops  as  Nob. 
1,  2  and  3,  and  the  machine  to  be  built  by  defendants  for  plaint- 
iff under  the  written  and  unsigned  contract  set  forth  in  the 
petition. 

"From  engaging  in  any  work,  save  for  plaintiff  only,  upon 
said  machines  or  upon  any  other  machines  involving  the  same 
mechanical  features,  devices,  or  ideas  original  with  and  peculiar 
to  said  machines  of  plaintiff. 

"From  in  any  way  placing  themselves  in  such  position  that 
they  will  not  be  able  to  comply  with  said  contract. 

' '  From  transferring,  assigning,  or  disposing  of  said  invention 
claimed  by  them  in  said  written  unsigned  contract,  or  of  any 
interest  in  or  concerning  same  or  the  right  to  use  or  manufac- 
ture same,  until  plaintiff  shall  have  had  through  defendants  a 
reasonable  opportunity  to  examine  and  test  the  same,  and  shall 
have  exercised  its  right  to  accept  or  reject  same  on  the  terms 
set  forth  in  the  said  contract. 

"And  it  is  further  adjudged  that'  plaintiff  recover  of  defend- 
ants its  costs  herein  expended,  taxed  at  $ . 

"To  all  of  which  finding,  order,  judgment,  and  decree,  de- 
fendants and  each  of  them  except. 

"And  defendants  giving  notice  of  their  intention  to  appeil 
to  the  circuit  court,  the  amount  of  the  appeal  bond  is  fixed  at 
$200." 

The  case  was  then  taken  to  the  circuit  court  where  the  de- 
fendants, George  Neth  and  Clarence  Tampliu,  were  perpetually 
enjoined  i 

"From  disclosing  or  divulging  knowledge  to  any  person  or 
persons  other  than  plaintiff,  of  all  and  singular  the  mechanical 
ideas,  combinations,  mechanisms,  models,  patterns,  sketches, 
drawings,  and  devices  involved  in  or  relating  to  fare  and  ticket 
registering,  recording  and  computing  machines,  suggested,  dis- 
closed or  developed  by  plaintiff  during  the  confidential  employ- 
ment of  defendants  by  plaintiff  or  by  Will  I.  Ohmer,  including 
the  machines  known  in  plaintiff's  shops  as  Nos.  1,  2  and  3,  and 


NISI  PRIUS  REPORTS— NEW  SERIES.  223 

1908.]  Machine  Co.  v.  Netb  et  al. 

the  machine  to  be  built  by  defendants  for  plaintiff  under  the 
written  and  unsigned  contract  set  forth  in  the  petition. 

"From  engaging  in  any  work,  save  for  plaintiff  only,  upon 
said  machines  otjr  upon  any  other  machine  or  machines  involving 
the  same  mechanical  features,  devices,  or  ideas  original  with  or 
peculiar  to  said  machines  of  plaintiff. 

"Prom  transferring,  assigning  or  disposing  .of  said  inven- 
tion claimed  by  them  in  said  written  unsigned  contract,  or  of 
any  interest  in  or  concerning  same  or  the  right  to  use  or  manu- 
facture same,  until  plaintiff  shall  have  had  through  defendants 
a  reasonable  opportunity  to  examine  and  test  same  when  com- 
pleted, and  shall  have  exercised  its  right  to  accept  or  reject 
same  when  completed  on  the  terms  set  forth  in  said  contract  of 
June  13th,  19Q4." 

In  the  Supreme  Court  the  judgments  below  were  affirmed. 
The  opinion  of  Judge  Kumler  in  the  common   pleas   follows: 


KUMLBB,    J. 

This  matter  came  before  Judge  Brown  last  July  on  an  appli- 
cation for  a  temporary  restraining  order  to  restrain  George  Neth 
and  Clarence  H.  Tamplin  from  giving  away  or  divulging  cer- 
tain information  or  transferring  certain  patents,  patent  rights, 
and  so  on. 

On  that  application  a  temporary  restraining  order  was  is- 
sued, and  the  matter  came  up  before  this  court  some  throe  or 
four  weeks  ago  to  be  heard  upon  its  merits. 

The  plaintiff,  after  making  the  usual  averments,  alleges  that 
on  the  5th  of  February,  1904,  William  I.  Ohmer  sold  and  trans- 
ferred to  plaintiff,  the  Recording  &  Computing  Machine  Com- 
pany, all  of  his  interest  in  certain  car  fare  registers,  inventions, 
processes  and  so  on.  The  petition  then  avers  that  for  several 
vears  last  past  the  defendants,  Neth  and  Tamplin,  have  been 
employed  by  said  Ohmer  and  by  the  plaintiff  as  successors,  as 
experimenters  under  the  direction  of  said  Ohmer  in  the  ex- 
periment department  of  their  said  business,  and  in  a  confidential 
relation  to  them,  and  have  received  large  salaries  under  said 
employment  from  plaintiff  and  the  said  Ohmer.  By  reason  of 
their  connection  with  the     said  experimental  department  of 


224       MONTGOMERY  COUNTY  COMMON  PLEAS. 

Machine  Co.  v.  Neth  et  al.  [Vol.  VII,  N.  S. 

plaintiff  said  Neth  and  Tamplin  have  acquired  valuable  infor- 
mation as  to  mechanism  of  the  machines  being  developed  and 
manufactured  by  the  plaintiff;  that  on  or  about  the  10th  day 
of  June,  1904,  the  defendants,  Neth  and  Tamplin,  represented 
to  the  officers  of  the  company  that  they  had  developed  a  certain 
machine,  representing  to  them  that  it  was  new  in  mechanism 
and  principle  and  that  it  was  patentable  and  did  not  infringe 
upon  any  other  mechanism  of  any  other  person  whatsoever. 
Whereupon  Mr.'  Ohmer,  acting  in  behalf  of  plaintiff,  entered 
into  a  contract  in  his  name  with  the  defendants,  Neth  and  Tamp- 
lin, by  the  terms  of  which  he  agreed  to  buy  of  the  defendants, 
Neth  and  Tamplin,  the  said  improved  mechanism  and  registering 
machine,  when  said  machine  was  completed  as  a  practicable  and 
acceptable  registering  machine;  that  Ohmer  was  to  pay  them 
$200  in  cash  and  was  to  pay  them  certain  wages  and  was  to 
furnish  them  with  room  and  tools  and  implements  by  which  to 
carry  out  this  scheme,  and  if  the  machine  was  acceptable  to 
him  when  constructed,  he  was  to  pay  them  the  sum  of  $4,000. 
That  the  defendants,  Neth  and  Tamplin,  accepted  said  agreement 
and  that  said  agreement  was  fully  entered  into  for  a  valuable 
consideration.  But  after  the  contract  was  all  agreed  upon  they 
declined  to  sign  the  contract;  and  that  subsequent  to  that  time 
they  sold  said  improvement  mechanism  to  a  rival  concern. 
Plaintiff  further  avers  that  while  they  were  working  as  em- 
ployes of  the  plaintiff  they  acquired  all  of  the  secrets  of  the 
mechanism  of  the  eash  car  register  machines — in  fact,  they  knew 
as  much  about  it  as  Ohmer  himself;  and  they  say  that  said 
defendants  are  about  to  divulge  all  of  those  secrets,  and  that 
they  not  only  do  that,  but  claim  to  be  inventors  thereof. 

The  petition  prays  that  the  defendants  may  be  enjoined  from 
communicating  any  of  the  secrets  which  were  acquired  in  a 
confidential,  way,  and  also  from  transferring  any  of  the  patents 
or  any  of  the  patentable  interests  in  these  machines,  and  also 
that  when  said  machine  is  completed  the  defendants  be  re- 
quired to  exhibit  the  machine  to  Mr.  Ohmer  for  his  inspection, 
and  if  it  is  such  a  machine  as  represented  and  as  called  for  by  the 
contract,  that  plaintiff  have  the  option  to  take  the  same  at  the 


NISI  PRIUS  REPORTS— NEW  SERIES.  226 

1908.1  Machine  Co.  v.  Neth  et  al. 

agreed  price,  he  being  willing  to  perform  all  and  singular  his 
part  of  the  contract,  and  for  equitable  relief. 

To  this  petition  there  is  a  motion  filed  to  dissolve  the  injunc- 
tion, and  also  an  answer  filed  last  July.  During  the  trial  of  the 
case  another  motion  waa  filed  to  strike  out  and  .to  have 
the  causes  of  action  separately  stated  and  numbered  and 
then  require  plaintiff  to  elect  upon  which  he  will  proceed.  The 
matter  came  on  for  hearing,  and  the  testimony  is  as  follows: 

That  Ohmer  was  for  twelve  or  thirteen  years  engaged  in  this 
business,  in  attempting  to  get  up  some  patent  registering  ma- 
chine, for  the  use  of  street  ear  conductors;  that  he  spent  part 
of  his  time  abroad,  part  of  his  time  here ;  that  he  opened  a  shop 
on  East  First  street;  that  he  had  expended  in  all  in  the  last 
ten  or  twelve  years  in  the  neighborhood  of  $200,000  in  order  to 
perfect  a  machine  of  this  character;  that  he  had  gotten  up 
numerous  models,  sketches  and  drawings;  that  in  December, 
1891,  he  employed  the  defendant,  Tamplin,  as  a  mechanic  to  do 
most  anything  that  was  to  be  done  around  the  premises;  that 
on  January  20th,  1902,  he  employed  Neth.  Neth  was  employed 
for  the  purpose,  as  he  testifies,  of  working  in  the  experiment  de- 
partment under  Mr.  Ohmer's  instructions  and  the  instructions 
of  the  foreman  at  that  time.  Neth,  when  he  was  employed,  re- 
ceived a  salary  of  $2.75  a  day.  He  worked  in  that  capacity  until 
the  following  fall,  I  think  it  was,  when  the  foreman  resigned. 
Thereupon  Neth  was  promoted,  as  Ohmer  says,  to  be  foreman 
of  the  experiment  room  at  a  salary  of  $21  and  something  a 
week ;  that  soon  after  Neth  came  there  Tamplin  was  also  trans- 
ferred to  the  experiment  room,  and  his  salary  was  increased 
from  $15  to  $16.80  a  week.  They  were  working  all  the  time,  so 
far  as  the  testimony  shows,  on  these  machines. 

They  got  out  what  was  known  as  machine  No.  1  first.  After 
machine  No.  1  was  out  they  commenced  to  build  machine  No.  2, 
which  contained,  as  the  testimony  shows,  valuable  improvements 
on  No.  1 ;  and  after  No.  2  was  out  Mr.  Ohmer  succeeded  in  get- 
ting a  patent  on  No.  2.  Then  they  commenced  to  construct  No. 
3,  with  the  idea  and  for  the  purpose  of  placing  on  that  machine 


226       MONTGOMERY  COUNTY  COMMON  PLEAS. 

Machine  Co.  v.  Neth  et  ftl.  [Vol.  VII,  N.  S. 

some  more  valuable  improvements.  It  was  supposed  to  be  the 
best  machine  of  the  three. 

No  patent  has  ever  been  taken  out  on  No.  1 ;  no  patent  has 
ever  been  taken  out  on  No.  3,  but  if  we  understand  the  testimony 
an  application  has  been  made  at  the  patent  office  for  the  allow- 
ance of  patents  on  No.  1  and  No.  3;  that  allowance  has  been 
granted,  but  the  patent  has  not  been  issued. 

Now,  the  claim  of  the  plaintiff  in  this  matter  is  that  everything 
went  along  smoothly  so  far  as  it  knew  in  the  matter,  until  about 
the  latter  part  of  May  or  first  of  June,  1904.  At  that  time,  as 
plaintiff  says,  and  as  Ohmer  and  Whistler,  his  assistant,  testify, 
they  missed  the  two  defendants  from  the  office  and  Ohmer  made 
inquiry  and  Mr.  Neth  said  he  had  been  sick.  The  testimony 
does  not  show  exactly  what  Mr.  Tamplin's  excuse  was.  At  any 
rate,  there  was  a  meeting  arranged  by  Whistler,  the  assistant, 
between  Mr.  Ohmer  and  Tamplin  and  Neth  at  the  Beckel  House. 
Mr.  Ohmer  testifies  that  that  is  the  first  knowledge  that  he  ever 
had  of  the  improved  machine  that  they  tried  to  sell  him  and 
the  first  knowledge  that  he  ever  had  that  they  claimed  any  in- 
terest as  inventors  in  the  machines  1,  2  and  3.  A  rough  propo- 
sition was  submitted  to  him  at  that  time  at  the  Beckel  House 
on  Friday,  June  10th,  1904.  He  took  the  matter  up  with  the 
defendants,  and  they  agreed  to  meet  him  at  his  shop  the  next 
morning,  which  was  Saturday  morning. 

Three  propositions  were  submitted  after  the  defendants  had 
had  a  consultation  for  perhaps  an  hour  or  more  in  the  experi- 
ment room.  They  had  the  contract  and  all  the  propositions  to- 
gether. After  having  consulted  for  some  time  they  repaired  to 
the  main  office,  as  Mr.  Ohmer  and  Mr.  Whistler  testify,  and 
the  defendants.  Neth  and  Tamplin,  said  there  were  three  things 
they  wanted  added  to  the  contract ;  one  was  that  they  wanted 
their  wages  to  be  stated  in  the  contract,  another  was  that  Tamp- 
lin's name  should  be  inserted  in  the  contract  with  that  of  Neth, 
and  the  third  was  that  they  should  receive  $200  cash. 

These  things,  as  Mr.  Ohmer  testified,  were  assented  to  on  his 
part.  They  then  left  and  came  back  on  Saturday  afternoon, 
and  at  that  time  the  matter  was  deferred  until  the  following 


NISI  PRIUS  REPORTS— NEW  SERIES.  227 

1908.]  Machine  Co.  v.  Neta  et  al. 

Monday  morning.  On  Monday  morning  they  came  around  and 
insisted  on  another  proposition,  as  the  testimony  of  the  plaintiff 
tends  to  show,  and  that  was  that,  in  the  course  of  construction 
of  this  machine,  should  it  in  any  wise  interfere  with  any  of  the 
patents  on  1,  2  and  3,  they  should  be  given  the  privilege  of 
using  so  much  of  those  patents  as  went  to  perfect  this  other 
machine  which  they  were  talking  about.  After  some  hesitation 
upon  the  part  of  Ohmer,  as  they  all  testify,  he  finally  assented 
to  that,  and  that  was  embodied  in  a  rough  proposition. 

It  seems  from  the  testimony  that  all  of  the  parties,  Ohmer, 
Neth  and  Tamplin,  were  anxious  to  consult  some  lawyer  to  get 
the  contract  in  legal  form  and  have  everything  all  right,  and 
finally  they  agreed  to  consult  Mr.  John  A.  McMahon.  In  the 
afternoon  of  Monday,  June  13th,  they  all  went  to  Mr.  McMahon 's 
office,  and  I  think  he  was  busy  trying  some  case  up  until  5 
o'clock;  at  least  it  was  late  when  they  got  there.  He  was  in- 
formed of  their  mission  by  Mr.  Ohmer,  who  seems  to  have  been 
foremost  of  the  three;  that  they  wanted  him  to  look  over  the 
matter  and  make  any  suggestions  that  he  thought  were  right 
and  proper  for  the  protection  of  all  of  them,  and  as  Mr.  Mc- 
Mahon testifies,  he  supposed  his  duties  were  in  the  nature  of 
arbitrator  rather  than  anything  else,  he  looked  over  the  con- 
tracts and  made  two  suggestions.  One  of  them  appears  in  the 
unsigned  contract  in  lead  pencil  in  his  own  handwriting,  and 
the  other  I  think  was  dictated  by  him,  but  reduced  to  writing 
by  Mr.  Ohmer.  The  thing  went  along  until  the  matter  wan 
ready  to  sign.  No  suggestion  was  made  at  that  time  coming 
from  any  one  of  the  three,  so  far  as  the  testimony  shows,  that 
there  was  anything  else  to  be  added  to  the  contract.  It  was  in 
bad  shape;  some  in  lead  pencil  and  some  on  one  piece  of  paper 
and  some  on  another,  and  it  was  scratched  and  interlined;  and 
Mr.  McMahon  would  not  permit  the  matter  to  be  signed.  If  an 
attempt  had  been  made  to  sign  it,  so  he  testified,  he  would  not 
have  permitted  a  paper  of  that  kind  to  go  out  of  his  office. 

The  suggestion  was  then  made  (and  there  is  a  dispute  upon 
that  point),  the  suggestion  was  made  that  the  contract  was  all 


238        MONTGOMERY  COUNTY  COMMON  PLEAS. 

Machine  Co.  v.  Neth  et  al.  [Vol.  VII.  N.  S. 

agreed  to;  that  Ohmer  should  take  it  with  him  and  have  it  run 
off  by  his  typewriter,  and  then  they  should  all  appear  at  his 
office  on  the  next  morning  and  sign  the  contract.  The  suggestion 
had  been  made  that  it  should  be  run  off  by  the  typewriter  in  Mr. 
McMahon's  office,  and  he  went  to  get  his  stenographer  and 
found  he  was  gone,  and  so  far  as  the  testimony  shows  they  left 
the  office.  Mr.  Ohmer,  I  think,  did  sign  the  rough  contract. 
At  any  rate  Tamplin  says  he  agreed  to  sign  the  contract,  if  he 
was  satisfied  with  it;  said  they  wanted  to  look  it  over.  Mr. 
McMahon,  who  was  on  the  stand,  and  testified,  says  that  so  far 
as  his  memory  goes  nothing  of  that  kind  was  said,  and  that  he 
is  quite  sure  that  if  he  had  said,  after  he  made  the  suggestions 
that  he  did,  that  this  contract  was  now  ready  to  sign,  they 
would  have  signed  it,  all  of  them.  That  is  his  view  of  the 
matter. 

The  contract  was  perfect  in  every  respect — it  contained  all 
the  essentials;  there  had  been  a  meeting  of  the  minds  upon  all 
of  them;  there  was  a  valuable  consideration;  everything  was 
done  that  could  be  done  or  ought  to  be  done  in  order  to  make  a 
complete  contract,  except  the  redrafting  of  the  contract  and  the 
signing  of  the  names. 

There  is  where  the  contention  in  a  very  large  degree  comes  in 
this  case.  It  is  insisted  by  the  plaintiff  that  they  did  enter  into 
a  contract,  and  the  mere  fact  that  the  contract  was  not  signed 
that  night  at  McMahon's  office  did  not  make  any  difference. 
They  entered  into  the  contract,  promising  to  sign  the  contract 
the  next  morning,  after  it  was  put  in  legal  form. 

Neither  Neth  nor  Tamplin  appeared  next  morning  to  sign 
the  contract,  nor  did  they  ever  appear  at  Ohmer  *s  office  for 
that  purpose.  But  Tamplin  appeared  next  morning  at  Mr. 
McMahon's  office,  and  asked  him  whether  or  not  that  was  a 
binding  contract.  Mr.  McMahon  said  to  him  that  he  thought 
the  proper  thing  for  him  to  do  was  to  go  and  employ  a  lawyer; 
and  that  is  the  last  we  hear  of  Tamplin.  A  few  days  after  that 
time,  perhaps  a  day  after  that,  Mr.  Neth  came  to  the  office  and 
said  that  he  and  Tamplin  had  a  disagreement;  that  Tamplin 


NISI  PRIUS  REPORTS— NEW  SERIES.  220 

1908.]  Machine  Co.  v.  Neth  et  al. 

was  going  to  the  other  firm,  and  he  (Neth)  wanted  to  stay  with 
Ohmer.  The  thing  went  on  for  a  day  or  two,  and  Neth  and 
Tamplin  came  and  got  their'  tools,  and  that  was  the  end  of  the 
matter  so  far  as  this  contract  was  concerned. 

Now,  the  question  presents  itself:  Is  that  a  valid  contract f 
It  is  admitted  by  the  defendants  to  be  valid  in  every  respect 
but  the  signature — the  mere  fact  that  the  contract  was  not 
signed. 

If  there  had  been  an  understanding  between  all  the,  parties 
that  evening— if  the  testimony  showed  that  Mr.  Ohmer  and 
Neth  and  Tamplin  agreed  that  that  would  not  be  a  binding 
contract  until  signed,  we  would  say.  No.  that  is  not  a  good  con- 
tract; but  the  testimony  does  not  disclose  that  fact.  Both 
Tamplin  and  Neth  admit  that  nothing  of  that  kind  was  said 
while  they  were  in  McMahon's  office;  but  they  say  that  this 
conversation  which  they  claim  to  have  had  with  Mr.  Ohmer  was 
after  they  left  Mr.  Ohmer 's  office,  that  it  was  then  they,  said 
they  would  be  in  to  sign  the  contract,  if  they  were  satisfied 
with  it.     Mr.  Ohmer  denies  it  in  tolo. 

There  is  a  case  reported  in  the  14  O.  S.,  292,  Blaney  <£•  Morgan 
v.  David  T.  Hoke.     The  syllabus  is  as  follows: 

' '  1.  Where  an  agreement  not  within  the  purview  of  the  statute 
of  frauds,  is  in  all  other  respects  complete — and  in  the  absence 
of  any  understanding  between  the  parties  that  the  same  should 
not  be  complete  until  reduced  to  writing — the  same  will  bind 
the  parties,  although  it  may  have  been  understood  between  them 
that  the  agreement  should  afterward  be  formally  reduced  to 
writing  and  executed, 

"2.  An  agreement  may  be  complete,  although  by  its  terms 
the  obligations  and  rights  of  the  parties  may  bs  made  to  depend 
upon  the  terms  of  a  contract  to  be  substantially  entered  into 
between  one  of  the  parties  to  the  agreement  and  a  third  party." 

This  ease  clearly  recognizes  the  rule  that  a  contract  can  be 
a  valid  contract  under  certain  circumstances  without  being 
signed  at  all.  If  the  understanding  of  all  the  parties  to  the  con- 
tract is  to  the  effect  that  the  contract  must  be  signed  after  it 
is  reduced  to  writing,  then  it  would  not  be,  as  we  understand 


280       MONTGOMERY  COUNTY  COMMON  PLEAS, 

Machine  Co,  v.  Neth  et  al.  [Vol.  VII,  N.  8. 

this  decision,  a  valid  contract  unless  it  was  so  signed.  But  sup- 
pose there  was  no  understanding  of  that  kind,  or  suppose  that 
after  the  contract  had  been  agreed  to  there  was  a  separation 
of  the  parties,  and  nothing  was  said  about  signing  this 
contract  except  that  it  should  be  signed  in  the  morning,  with- 
out any  further  consideration  whatever,  then  I  undertake  to 
say,  according  to  the  principles  of  this  case,  that  it  did  constitute 
a  valid  contract  between  the  parties. 

Another  thing  that  strengthens  the  view  of  the  court  that 
these  parties,  Neth  and  Tamplin,  recognized  that  as  a  valid 
contract,  is  the  fact  that  they  say— take  their  own  statement,  if 
you  please— that  "that  is  all  right  so  far  as  we  now  know;  we 
will  come  to  your  office  tomorrow  morning";  that  Neth  came 
back,  and  nothing  was  ever  said  about  any  other  elements  in 
that  contract  except  those  which  had  been  reduced  to  writing. 
What  does  that  indicate?  It  indicates  that  there  was  nothing 
'in  their  claims  at  all.  They  agreed  to  sign  it  the  next  morning. 
They  did  not  propose  anything  else.  So  far  as  one  of  the  parties 
to  the  contract  was  concerned,  he  was  never  again  heard  of  in 
his  relations  to  Mr.  Ohmer.  He  did  go  to  McMahon's  office  and 
a  conversation  took  place  as  we  have  said.  We  think  under 
the  decision  above  cited  and  under  the  testimony  in  this  case, 
that  it  constituted  a  contract  between  the  plaintiff  and  defend- 
ants in  this  case. 

The  testimony  in  this  case  further  shows  that  in  May  thesu 
same  defendants.  Neth  and  Tamplin,  undertook  to  sell  this 
patent  or  invention,  whatever  it  may  be,  to  a  syndicate  composed 
of  William  Breidenbaugh,  George  Weimer,  Clarence  Grier, 
Harry  Wagner,  James  Muldoon  and  a  man  by  the  name  of  Car- 
penter, from  Sidney.  That  they  were  very  anxious  to  sell  this 
same  machine  and  represented  to  these  men  what  it  was  worth, 
and  they  dickered  backward  and  forward  for  some  time  and 
could  not  agree  upon  terms  and  the  matter  was  given  up.  It 
cropped  out  from  the  testimony  that  the  defendants  in  this  ease 
were  very  anxious  to  perfect  that  maehine.  Mr.  Weimer  testi- 
fies to  this.    He  said  they  wanted  to  get  this  machine  out  before 


NISI  PRIUS  REPORTS—NEW  SERIES.  231 

1908.]  Machlae  Co.  v.  Neth  et  al. 

Ohmer  got  his  No.  3  out;  wanted  to  get  their  patent  first,  and 
they  said,  if  we  can  believe  Weimer,  and.  we  have  do  reason  for 
not  believing  him,  that  they  had  fixed  No.  3  so  that  that  ma- 
chine could  not  be  got  out  for  two  or  three  months. 

As  a  matter  of  fact,  if  Mr.  Ohmer  and  Mr.  Whistler  tell  the 
truth,  somebody  did  fix  No.  3,  because  it  took  the  better  part  of 
three  months  to  reassemble  that  machine  after  these  gentlemen 
left,  and  they  had  to  get  some  expert  from  Springfield  and  one 
from  Pittsburg.  It*  took  them  three  months  to  reassemble 
No.  3  and  put  it  in  proper  condition.  If  Weimer  tells  the  truth 
Neth  admitted  to  him  that  they  had  done  that  very  thing  for  the 
purpose  of  delaying  Mr.  Ohmer  in  getting  out  his  model  pre- 
paratory to  getting  a  patent.  It  does  not  look  right  for  a  per- 
son to  do  that;  much  less  a  person  who  is  engaged  in  business. 

■The  testimony  discloses  the  further  fact  that  within  two  or 
three  days  immediately  before  this  temporary  restraining  order 
was  allowed,  this  machine,  whatever  it  is,  was  sold  to  another 
competing  firm  here  in  town.  The  defendants,  Neth  and  Tamp- 
lin,  evidently  took  the  view  that  they  were  under  no  obligation 
to  carry  out  this  contract  with  Will  Ohmer.  They  therefore 
drspped  their  negotiations  with  him  and  went  ahead,  and  as 
they  testified,  sold  the  identical  improvement — that  is  the  lan- 
guage of  both  of  them — there  is  no  difference  between  the  ma- 
chine that  they  wanted  to  sell  to  Will  Ohmer  and  the  one  they 
wanted  to  sell  to  the  Ohmer  Car  Fare  Register  Company. 

The  testimony  further  shows  that  they  worked  there  from 
two  and  a  half  to  three  years.  There  is  a  total  failure  of  the 
testimony  to  show  that  either  of  the  defendants  made  any  claim 
to  have  any  interest  as  inventors  or  otherwise  in  machines  No.  I, 
2  and  3  until  about  the  last  of  May  or  first  of  June.  1904,  and 
there  is  nothing  in  the  testimony  to  show  that  they  had. 

They  did  claim,  I  believe,  to  have  done  some  work  at  the 
house.  They  also  admitted  they  had  done  some  work  on  Ohmer 's 
time  on  this  machine  they  were  about  to  sell;  that  they  had 
gone  away,  made  several  trips,  and  on  one  of  them  at  least 
Ohmer  was  paying  them  for  their  time  while  they  were  working 


282        MONTGOMERY  COUNTY  COMMON  PLEAS. 


Machine  Co.  v.  Neth  et  al.         J      (Vol.  VII.  N.  3. 

on  this  machine.  One  of  them  admits  that  to  be  true.  He  said 
he  didn't  think  it  was  the  right  thing  to  do,  but  he  was  doing 
it  all  the  same. 

Now,  that  is  substantially  what  we  have  in  the  case.  Mr. 
Ohmer  says  that  they  have  possession  of  all  his  secrets  in  refer- 
ence to  this  matter  and  all  the  secrets  in  reference  to  another 
machine — what  is  called  a  ticket  machine.  According  to  his 
description  it  does  everything  but  talk.  It  is  truly  a  wonder- 
ful machine.  He  described  the  action  of  the  machine,  what  it 
would  do.  The  mechanism,  of  course,  he  did  not;  was  not  al- 
lowed to. 

There  was  another  thing  that  cropped  out  in  this  matter; 
that  the  United  States  Patent  Commissioner  does  not  pay  much 
attention  to  an  order  of  this  kind  anyhow.  After  Judge  Brown 
had  allowed  a  temporary  restraining  order  in  this  case  a  patent 
was  issued  to  Mr.  Ohmer  on  No  2.  After  a  patent  is  issued  the 
knowledge  of  it  becomes  public  property;  anybody  can  see  then 
what  is  going  on  and  what  has  been  done.  Then  if  anybody 
claims  there  is  an  infringement,  he  may  bring  a  suit  in  the  United 
States  Circuit  Court  to  test  it.  As  testified  in  this  case  by  Mr. 
Ohmer  and  not  denied  by  defendants,  some  application  that  he 
had  in  the  patent  office  for  a  patent  on  No.  2  was  taken  by  the 
defendants  in  this  case,  and  No.  2  was  thrown  into  interference, 
so  there  is  a  contest  on  infringement  before  the  Datent  commis- 

After  your  patent  is  issued  it  seems  to  be  nothing  more  then 
than  prima  facie  evidence  of  title  until  it  has  been  tested  in  the 
Circuit  Court  of  the  United  States  and  thence  on  to  the  Su- 
preme Court  of  the  United  States.  It  is  not  until  then  that  a 
party  can  feel  sure  whether  he  has  a  patent 

Now,  I  say  these  things  all  came  along  at  the  time  they  quit. 
Up  until  that  time  the  testimony  does  not  show  that  there  was 
any  claim  made  for  these  inventions. 

What  is  the  law  on  a  case  of  this  kind?  There  are  three  or 
four  propositions  of  law.     I  will  call  your  attention  to  them. 

I  believe  it  was  first  claimed  that  this  court  did  not  have  juris- 


NISI  PRIUS  REPORTS— NEW  SERIES.  288 

1908.]  Machine  Co.  v.  Neth  et  w.1. 

diction;  that  this  whole  matter  ought  to  be  referred  to  the 
patent  office.  I  am  sorry  that  this  is  not  the  law  of  the  case, 
But  it  has  been  held  that  a  state  court  has  jurisdiction  to  pro- 
tect the  rights  of  parties  against  the  divulging  of  secrets,  and  to 
protect  the  rights  of  parties  in  reference  to  patents  while  a  case 
is  pending  on  a  suit  on  infringement  in  the  United  States  Courts, 
The  fact  that  the  plaintiff  would  have  a  remedy  in  the  Circuit 
Court  of  the  United  States  for  infringement  of  a  patent,  does 
not  deprive  him  of  his  remedy  in  the  state  courts  for  the  viola- 
tion of  the  terms  and  conditions  of  a  contract  for  the  manufac- 
ture of  such  patent  (Gordon  v.  Deckebach,  12  L.  B.,  169).  And 
we  have  exactly  the  same  holding  in  the  case  of  Fuller  &  John- 
son v.  Bartelle,  68  Wis.,  73. 

According  to  these  two  authorities,  we  have  jurisdiction  in 
the  matter,  notwithstanding  there  may  be  infringement  suits 
pending. 

Now  there  is  another  proposition :  That  a  court  of  equity 
will  protect  an  inventor  of  a  secret  process  against  its  disclo- 
sure by  any  one  obtaining  knowledge  of  it  in  confidence.  I  cite 
the  well-known  case  of  Bell  Foundry  v.  Dodds,  —  W.  L.  B.,  84, 
decided  by  Judge  Taft,  where  he  lays  down  the  proposition  that — 

"A  court  of  equity  will  protect  the  inventor  of  a  secret  pro- 
cess against  its  disclosure  or  unauthorized  use  by  any  person  ob- 
taining knowledge  of  it  in  confidence.  The  inventor  may  sell 
the  secret  to  another  and  thereby  vest  in  his  assignee  as  full 
right  to  protection  from  disclosure  or  use  by  persons  acquiring 
knowledge  of  it  in  confidence  as  he  himself  would  have.  The 
process  must  be  shown  to  be  a  secret  in  order  to  entitle  the  com- 
plainant to  protection/' 

In  the  86th  N.  Y.,  183,  we  find  the  same  doctrine,  in  the  case 
of  The  Eastman  Kodak  Company  v.  Richenback  et  al: 

"The  actual  creative  act  of  an  inventor  is  recognized  as  an 
invention,  although  he  may  have  called  to  his  assistance  the 
ideas  and  creations  of  other  parties,  provided  such  ideas  and 
creations  are  so  used  as  to  achieve  new  results." 

Here  is  another  proposition : 


284       MONTGOMERY  COUNTY  COMMON  PLEAS. 

Machine  Co.  v.  Neth  et  a).  [Vol.  VII,  N.  8. 

"When,  however,  knowledge  of  such  secret  process  is  ob- 
tained by  any  breach  of  confidence,  courts  of  equity  will  enjoin 
the  use  of  such  knowledge  by  parties  acquiring  the  same  in  that 
manner. ' ' 

That  decision  shows  that  the  right  was  perfectly  clear  for  the 
power  of  a  court  of  equity  to  be  invoked  for  that  purpose. 

What  is  theduty  of  the  master  and  the  servant  t  We  find  in 
the  41st  0.  S.,  what  we  think  is  applicable  to  a  question  of  this 
kind. 

What  is  the  duty  of  the  master  to  the  servant  or  the  servant 
towards  the  master  I  Under  similar  circumstances  it  seems  to 
me  that  the  principle  which  regulates  the  one,  when  the  rela- 
tionship of  principal  and  agency  is  created,  simply  would  regu- 
late the  other.  Here  was  a  question  as  to  the  relationship  of 
principal  and  agent.  The  agent  had  been  buying  certain  prop- 
erty while  he  was  agent,  and  claimed  it  as  his  own.  The  Su- 
preme Court  of  Ohio  held  that  he  was  not  entitled  to  it  at  all 
and  that  it  belonged  to  the  principal. 

"It  is  a  fundamental  rule  that  an  agent  employed  to  sell  can 
not  be  a  purchaser,  unless  he  is  known  to  his  principal  to  be 
such;  nor  is  the  rule  inapplicable  or  relaxed  when  the  employ- 
ment is  to  sell  at  a  fixed  price. 

"The  law  will  not  suffer  one  to  earn  a  profit  or  expose  him  to 
the  temptation  of  a  dereliction  of  duty,  by  allowing  him  to  act 
at  the  same  time  in  the  double  capacity  of  agent  and  pur- 
chaser." 

Now,  here  is  a  general  proposition,  as  said  by  Chancellor  Wal- 
worth in  Van  Epps  v.  Van  Epps,  9  Paige,  241 : 

"It  is  a  rule  which  applies  universally  to  all  who  come  within 
its  principles,  which  principle  is  that  no  party  can  be  permitted 
to  purchase  an  interest  in  property  and  hold  it  for  his  own  bene- 
fit, when  he  has  a  duty  to  perform  in  relation  to  such  property 
which  is  inconsistent  with  the  character  of  a  purchaser  on  his 
own  account  and  for  his  individual  use." 

Now,  let  us  read  that  another  way  and  see  how  it  would  apply 
to  this  case.  See  if  there  is  any  reason  why  it  should  not  apply 
with  all  its  force: 


NISI  PRIUS  REPORTS— NEW  SERIES. 
1908.]  Machine  Co.  v.  Netb  et  al. 

"It  is  a  rule  which  applies  universally  to  all  who  come  within 
Its  principle,  which  principle  is  that  no  party  can  be  permitted 
to  claim  an  interest  in  property  and  hold  it  for  his  own  benefit 
when  he  has  a  duty  to  perform  in  relation  to  such  property 
which  is  inconsistent  with  the  character  of  the  claimant,  on  his 
own  account  and  for  his  own  individual  use." 

I  say  the  principle  is  the  same  whether  it  reads  the  one  way  or 
the  other. 

There  is  still  one  more  proposition  in  this  ease.  It  is  not 
necessary  to  have  a  written  contract  in  a  case  of  this  kind.  The 
law  relationship  once  established,  whenever  an  employe  goes 
into  the  shop  of  an  inventor  and  proprietor  and  is  put  to  work 
on  some  inventive  process,  the  law  says  that  he  can  not  divulge 
that  secret  process,  independent  of  any  contract.  The  rela- 
tionship is  confidential;  therefore  the  law  raises  a  presumption 
that  it  shall  be  confidential.  The  law  raises  an  implied  contraet 
that  the  employe  who  occupies  a  confidential  relation  towards 
his  employer  shall  not  divulge  any  trade  secrets  imparted  to 
him  nor  discovered  by  him.  Kittle  v.  Gallvs  et  al,  4  Hunn  t 
(1896),  569;  Eastman  Kodak  Co.  v.  Richardson,  79  Hunn.,  183; 
Peabody  v.  Norfrick,  98  Mass.,  452. 

There  is  only  one  more  case  I  am  going  to  call  attention  to,  and 
that  is  the  case  of  Solomons  v.  United  States,  137  U.  8.,  342,  a 
case  that  was  decided  in  1890.  During  1867  and  1868  Spencer 
M.  Clark  was  General  Superintendent  of  the  Bureau  of  En- 
graving at  Washington.  The  Secretary  of  the  Treasury  wanted 
some  person  to  invent  some  kind  of  a  stamp  that  would  prevent 
frauds  upon  whiskey  and  liquor  of  all  kinds.  The  sub-committee 
of  the  Ways  and  Means  committee  waited  upon  him,  and  finally 
there  was  a  meeting  arranged  between  the  sub-committee,  the 
Secretary  of  the  Treasury  and  the  Internal  Revenue  Commis- 
sioner and  Mr.  Clark.  They  asked  him  if  he  could  not  devise 
some  appliance  by  which  these  stamps  would  be  effective  to  pre- 
vent all  sorts  of  frauds  by  the  re-use  of  the  stamps.  He  said  he 
thought  he  could  do  it,  and  went  about  to  devise  a  stamp  which 
would  do  the  work.     After  he  had  devised  it  and  before  he  ap- 


236        MONTGOMERY  COUNTY  COMMON  PLEAS. 

Machine  Co.  v.  Neth  et  al.  [Vol.  VII,  N.  S. 

plied  for  a  patent  upon  the  same,  he  sent  for  the  Secretary  of 
the  Treasury  and  sub-committee  and  the  Revenue  Commissioner, 
and  they  thought  it  was  a  very  good  thing  and  they  adopted 
it.  Subsequent  to  that  time  Clark  went  home.  While  he  was 
inventing  this  stamp  he  was  still  superintendent  of  the  Bereau 
of  Engraving  and  Printing,  and  said  that  he  did  not  want  any- 
thing for  his  invention ;  but  finally  he  applied  for  a  patent. 

The  ease  was  decided  by  Mr.  Justice  Breuer.  I  will  read 
part  of  the  opinion  to  you.    He  Bays: 

"The  case  presented  by  the  foregoing  facts  is  one  not  free 
from  difficulties.  The  government  has  used  the  invention  of 
Mr.  Clark  and  has  profited  by  such  use.  It  was  an  invention 
of  value.  The  claimant  and  appellant  is  the  owner  of  such 
patent,  and  has  never  consented  to  its  use  by  the  government. 
From  these  facts,  standing  alone,  an  obligation  on  the  part  of 
the  government  to  pay  naturally  arises.  The  government  has  no 
more  power  to  appropriate  a  man's  property  invested  in  a  patent 
than  it  has  to  take  his  property  invested  in  real  estate;  nor 
does  the  mere  fact  that  an  inventor  is  at  the  time  of  his  in- 
vention  in  the  employ  of  the  government  transfer  to  it  any 
title  to,  or  interest  in  it.  An  employe,  performing  all  the  duties 
assigned  to  him  in  hts  department  of  service,  may  exercise  his 
inventive  faculties  in  any  direction  he  chooses,  with  the  assur- 
ance that  whatever  invention  he  may  thus  conceive  and  perfect 
is  his  individual  property.  There  is  no  difference  between  the 
government  and  any  other  employer  in  this  respect.  But  this 
general  rule  is  subject  to  these  limitations.  If  one  is  employed 
to  devise  or  perfect  an  instrument,  or  a  means  for  accomplishing 
a  prescribed  result,  he  can  not,  after  successfully  accomplishing 
the  work  for  which  he  was  employed,  plead  title  thereto  as 
against  his  employer.  That  which  he  has  been  employed  and 
paid  to  accomplish  becomes,  when  accomplished,  the  property 
of  his  employer.  Whatever  rights  as  an  individual  he  may  have 
had  in  and  to  his  inventive  powers,  and  that  which  they  are  able 
to  accomplish,  he  has  sold  in  advance  to  his  employer.  [Italics, 
Judge  Kumler's.]  So  also  when  one  is  in  the  employ  of  another 
in  a  certain  line  of  work,  and  devises  an  improved  method  or 
instrument  for  doing  that  work,  and  uses  the  property  of  his 
employer  and  the  services  of  other  employes  to  develop  and 
put  in  practicable  form  his  invention,  and  explicitly  assents  to 


NISI  PRIUS  REPORTS— NEW  SERIES.  237 

1908.]  Machine  Co.  v.   Neth  et  al. 

the  use  by  his  employer  of  such  invention,  a  jury  or  court  trying 
the  facts  is  warranted  in  finding  that  he  has  so  far  recognized 
the  obligations  of  service  flowing  from  his  employment,  and  the 
benefits  resulting  from  his  use  of  the  property,  and  the  assistance 
of  the  employes  of  his  employer,  as  to  have  given  to  such  em- 
ployer an  irrevocable  license  to  use  such  invention. " 

In  this  case  the  testimony  of  Mr.  Ohmer  shows  and  both  of 
the  defendants  admitted  on  the  stand,  that  they  were  employed 
for  the  purpose  of  inventing  and  making  a  car  fare  register, 
"or  a  means  of  accomplishing  a  prescribed  result;  he  can  not 
after  successfully  accomplishing  the  work  for  which  he  is  em- 
ployed, plead  title  to  it  as  against  his  employer." 

These  two  defendants  now  claim  they  were  original  inventors 
of  these  machines.  Suppose  they  were,  then  whatf  "That 
which  he  has  been  employed  and  paid  to  accomplish  becomes, 
when  accomplished,  the  property  of  his  employer.  "Whatever 
rights  as  an  individual  he  may  have  had  in  and  to  his  inventive 
powers,  and  that  which  they  are  able  to  accomplish,  he  has  sold 
in  advance  to  his  employer," 

This  is  the  principle  of  law  announced  by  Justice  Brewer,  the 
best  judge,  perhaps,  that  ever  sat,  at  least  on  the  present  Su- 
preme Bench  of  the  United  States.  We  are  bound  to  bow  our 
heads  to  this  decision. 

Without  going  further  in  this  case,  the  holding  of  the  court 
is  that  the  temporary  restraining  order  be  made  perpetual  and 
and  a  perpetual  injunction  is  awarded. 


HAMILTON  COUNTY  COMMON  PLEAS. 
Daley  v.  Railway  Trainmen.  [Vol. 


COMPETENCY  OF  DECLARATIONS  BY  AN  INSURED  AS  TO 
HIS  PHYSICAL  CONDITION. 

Common  Pleas  Court  of  Hamilton  County. 

Eugene  Daley  v.   Brotherhood  op  Railway   Trainmen. 

Decided,    May,    1908. 

Life  Insurance — Statement!  Made  by  Insured  in  his  Application  Claimed 
to  have  been  False — Evidence  as  to  Oral  Declarations  Made  Con- 
temporaneously Held  not  Competent — Bame  Rale  Applicable  to 
Ordinary  Life  and  to  Beneficial  Associations. 

In  actions  upon  contracts  of  life  Insurance  the  general  rule  as  to  de- 
clarations made  by  the  deceased  are  applicable  where  the  policy 
was  held  In  a  mutual  benefit  society,  and  oral  statements  made  by 
the  Insured  with  reference  to  his  physical  condition  prior  and  sub- 
sequent to  the  time  of  the  filing  of  his  application  for  Insurance 
are  not  competent  for  the  purpose  of  showing  the  falsity  of  the 
written  answers  contained  in  his  application. 

The  defendant  is  a  fraternal  beneficiary  association  under 
the  laws  of  Ohio.  In  March,  1904,  James  Daley  was  admitted 
to  membership,  and  about  March  28  the  defendant  issued  and 
James  Daley  accepted  a  beneficiary  or  insurance  certificate  by 
which  at  his  death  in  accordance  with  and  subject  to  his  con- 
ditions set  forth  in  the  certificate  and  the  constitution  and  by-laws 
of  the  association  there  was  to  be  paid  to  the  plaintiff,  Eugene 
Daley,  the  sum  of  $1,350.  This  certificate  was  issued  after  and 
as  the  result  of  a  written  application  therefore  made  March  20, 
1904,  by  James  Daley.  In  this  application  James  Daley  made 
certain  statements  in  the  form  of  answers  to  certain  questions 
printed  on  the  application  blank.  James  Daley  died  April  28, 
1904,  and  this  suit  is  brought  by  Eugene  Daley  upon  the  insur- 
ance certificate. 

The  defendant  says  that  some  of  the  statements  of  James 
Daley  in  his  application  were  false,  and  in  its  answer  sets  up 
specifically  in  what  respect  such  statements  are  claimed  to  be 
false,  and  further  says  that  such  insurance  certificate  would  not 


NISI  PRIUS  REPORTS— NEW  SERIES.  239 

1908.]  Daley  v.  Railway  Trainmen. 

have  been  issued  except  by  reason  of  defendant's  reliance  on  the 
truth  of  such  statements  as  made. 

During  the  trial  the  defendants  offered  evidence  of  oral 
statements  or  declaration  of  James  Daley,  before  and  after  the 
issuance  of  the  insurance  certificate,  as  to  his  physical  condition 
at  and  before  the  time  such  oral  statements  were  made.  Such 
declarations  were  not  offered  as  expressions  of  physical  condi- 
tion, but  as  declarations  in  the  nature  of  admissions.  Objec- 
tions to  such  evidence  were  sustained.  The  jury  brought  in  a 
verdiet  for  the  plaintiff,  and  the  defendant  filed  a  motion  to  set 
aside  this  verdict  and  for  a  new  trial. 

William  Littleford  and  S.  Q.  Frost,  for  plaintiff. 

Hoffman,  Bode  &  LeBlond,  contra. 

Hunt,  J. 

Opinion  on  motion  for  new  trial. 

The  findings  of  the  jury  as  to  the  facts  necessary  for  them  to 
find  in  arriving  at  their  verdict  should  not  be  disturbed,  upon 
the  ground  that  they  are  against  the  weight  of  the  evidence. 

All  the  points  of  law  raised  upon  the  hearing  on  motion  for 
new  trial  were  urged  in  the  same  form  during  the  trial  except 
one,  that  is,  as  to  the  refusal  to  admit  evidence  of  the  declara- 
tions or  admissions  of  the  deceased  in  regard  to  his  health. 

During  the  trial  the  competency  of  these  declarations  was 
claimed  generally  and  denied  by  the  court  in  accordance  with 
the  general  rule  laid  down  in  Fraternal  Mutual  Life  Insurance 
Company  v.  Applegate,  7  0.  S.,  292;  Union  Central  Life  In- 
surance Company  v.  Ckeever,  36  0.  S.,  200;  and  Union  Central 
Life  Insurance  Company  v.  Buxer,  62  0.  S.,  385-400,  to-wit, 
that  the  declarations  of  the  deceased  made  prior  or  subsequent 
to  the  application  and  not  part  of  the  res  gestae,  of  an  act  as  to 
which  evidence  was  admissible,  nor  tending  to  show  that  the 
statements  in  the  application  were  to  the  knowledge  of  the  ap- 
plicant untrue,  are  not  competent  in  an  action  brought  by  a 
beneficiary  upon  a  poliey  of  insurance.  The  first  ease  referred 
to  applies  to  subsequent  declarations  and  the  second  to  prior 
declarations. 


240  HAMILTON  COUNTY  COMMON  PLEAS. 

Daley  v.  Railway  Trainmen.  [Vol.  VII,  N.  8. 

During  the  trial  no  claim  was  made  that  the  rule  was  any 
different  as  applied  to  ordinary  life  insurance  companies  than 
to  mutual  beneficiary  associations,  but  upon  the  motion  for 
a  new  trial,  while  it  is  admitted  that  the  general  rule  is  ap- 
plicable to  the  former,  its  application  is  denied  as  to  the  latter. 
The  case  of  Foxkever  v.  Order  of  Red  Cross,  2  C.  C— N.  S., 
394,  is  cited  in  support  of  such  distinction  and  exception  to  the 
general  rule.  The  real  question  in  that  case  as  stated  on  page 
398  is  whether  or  not  the  deceased  was  a  member  of  the  order  at 
the  time  of  his  death,  that  is,  whether  he  had  been  properly  ex- 
pelled from  the  order  during  his  life  time,  and  if  not  whether  he 
had  not  acquiesced  in  an  informal  expulsion  and  had  thereby 
ceased  to  be  a  member.  The  case  was  decided  on  the  authority  of 
Dimmer  v.  Supreme  Council  et  at,  22  C.  C,  366,  wherein  it  was 
held  that  a  three  years  acquiescence  in  a  void  expulsion  termi- 
nated deceased's  membership  in  the  order  and  voided  the  insur- 
ance certificate. 

In  the  Foxhever  case  the  declarations  were  explanations  of  the 
deceased's  conduct  in  acquiescing  in  his  expulsion,  and  were 
competent  as  part  of  the  res  gestae  of  such  acquiescence,  which 
was  a  relevant  fact.  The  recognition  of  the  distinction  and  ex- 
ception now  claimed  was  only  incidental,  the  court  citing  Nib- 
lack  and  Bacon  in  support  thereof. 

Niblack  on  Beneficial  Societies,  Section  325,  and  Bacon  on 
Beneficial  Societies,  Section  460,  recognizes  such  distinction, 
but  the  cases  cited  by  them  and  by  the  Ency.  of  Evidence,  Vol. 
7,  page  535,  with  few  exceptions,  are  not  authority  for  the 
general  distinction  attempted  to  be  made  by  Niblack  and  Bacon, 
although  authority  for  the  admission  of  such  declarations  under 
certain  circumstances. 

An  examination  of  the  eases  cited  by  these  authorities,  and  of 
other  cases  upon  the  same  subject,  shows  that  the  statements  of 
such  authors  are  rather  the  expressions  of  what  they  think  the 
law  ought  to  be  than  what  it  is,  and  the  reasons  given  by  them 
for  such  statements,  to-wit,  that  the  insured  could  at  any  time 
change  the  beneficiary  of  the  policy,  is  only  to  a  greater  degree 
applicable  to  mutual  beneficiary  certificates  than  it  is  to  ordi- 


NISI  PRIUS  REPORTS— NEW  SERIES. 


1908.]  Daley  v.  Railway  Trainmen. 

nary  policies  of  insurance  in  which  the  right  of  the  insured  to 
change  the  beneficiary  is  frequently  reserved. 

It  seems  to  me  that  such  authors,  and  the  few  cases  which  re- 
fer to  or  support  the  distinction  made  by  them,  fail  to  recognize 
or  at  least  fail  to  give  full  effect  to  the  fact  that  the  validity 
of  mutual  beneficiary  certificates  depends  on  the  insured  being 
a  member  of  the  order  or  society  at  the  time  of  his  death,  and 
fail  to  recognize  that  in  many  of  the  suits  upon  such  certifi- 
cates the  issue  is  not  as  to  the  truth  or  falsity  of  the  statements 
in  the  application,  but  whether  or  not  the  insured  was  a  mem- 
ber in  good  standing  at  the  time  of  his  death,  or  whether  or 
not  such  question  of  membership  had  not  already  been  tried  by 
the  order  itself,  and  acted  upon  formally  or  informally  in  such 
a  manner  or  with  such  acquiescence  on  the  part  of  the  member 
as  to  have  precluded  the'  member  during  his  lifetime  from 
claiming  otherwise. 

The  case  of  Hanson  v.  Supreme  Lodge  of  K.  of  H,,  140  111., 
301,  referred  to  by  Niblack,  is  such  a  case.  There  is  no  ques- 
tion that  a  member  of  a  beneficiary  order  can  at  any  time  ter- 
minate his  membership,  and  can  make  admissions  or  declara- 
tions and  waivers  of  rights  upon  which  the  society  can  act  in 
terminating  his  membership,  and  that  even  if  such  membership 
is  terminated  informally  by  the  society  the  member  can  by  his 
conduct  be  estopped  from  claiming  that  he  is  a  member,  and  if 
the  validity  of  the  insurance  certificate  depends  upon  the  in- 
sured being  a  member  at  the  time  of  his  death,  any  termination 
of  membership  binding  upon  the  member  will  terminate  all 
rights  under  the  insurance  certificate. 

Necessarily  admissions  or  declarations  of  the  member  upon 
such  an  issue  might  be  competent,  when  they  would  not  be  com- 
petent where  there  was  no  claim  of  any  termination  of  member- 
ship formally  or  informally,  and  where  the  issue  as  to  the  con- 
tractual liability  upon  the  insurance  certificate  is  in  no  respect 
different  than  the  ordinary  issues  upon  ordinary  life  insur- 
ance policies. 

In  the  case  of  Supreme  Lodge  K,  of  P.  v.  Sckmitt,  98  Ind., 
374,  although  the  declarations  were  rejected  under  the  general 


812  HAMILTON  COUNTY  COMMON  PLEAS. 

Daley  v.  Railway  Trainmen.  [Vol.  VII.  N.  S. 

rule  and  as  not  part  of  the  res  gestae  of  a  relevant  fact,  they 
might  also  have  been  rejected  because  they  were  in  no  way 
connected  with  the  termination  of  the  deceased's  membership, 
which  was  the  real  issue  in  the  case. 

The  case  of  Stewart  v.  Supreme  Council  et  al,  36  Mo.  App., 
319,  was  another  case  in  which  the  issue  was  as  to  the  member- 
ship, and  the  declarations  of  the  deceased  were  admitted  as 
part  of  defendant's  waiver  of  personal  notice  of  suspension  and 
abandonment  of  membership, 

In  another  class  of  cases,  without  regard  to  whether  they 
were  suits  upon  ordinary  life  insurance  policies  or  mutual 
beneficiaary  certificates,  such  declarations  were  admitted  only 
in  connection  with  other  substantive  evidence  showing  falsity 
of  statements  in  the  application,  and  as  evidence  of  knowledge 
by  the  insured  of  such  falsity  when  the  statements  in  the  ap- 
plication were  made.  Even  then  such  declarations  were  re- 
quired to  have  been  made  sufficiently  near  to  the  time  of  the 
application  to  charge  the  applicant  with  knowledge  of  such 
falsity  at  such  time. 

Such  eases  were  Supreme  Council  et  al  v.  O'ConneU,  107  Ga., 
97,  where  a  distinction  was  made  as  to  declarations  before  and 
after  the  application;  Ransom  v.  Milwaukee  Mutual  Life,  115 
Wis.,  641;  Union  Central  Life  Insurance  Company  v.  Pollard, 
94  Va.,  146;  McOowan  v.  Supreme  Council  et  al,  104  Wis.,  174. 
In  neither  of  the  last  two  cases  was  any  point  made  of  the 
character  of  the  company  or  society,  or  of  the  right  of  the  in- 
sured to  ehange  the  beneficiary.  In  the  same  general  class  of 
cases  belong  Swift  v.  Mass.  Mutual  Life,  63  N.  T.,  186;  and 
Thomas  v.  Grand  Lodge,  12  Wash.,  500;  Co-operative  Associa- 
tion v.  Laflore,  53  Miss.,  1. 

In  some  cases  such  declarations  were  admitted  only  as  part 
of  the  res  gestae  of  some  act  relevant  in  itself.  Such  cases 
were  Smith  v.  National  Benefit  Insurance  Company,  123  N.  T., 
85,  in  which  the  declarations  were  held  to  be  part  of  an  at- 
tempt to  defraud ;  Frank  v.  XI.  S.  Masonic  Benefit  Associa- 
tion, 158  111.,  560. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
1908.]  Daley  v.  Railway  Trainmen. 

All  such  cases,  although  the  declarations  were  held  to  be 
competent,  are  no  authority  for  excepting  mutual  beneficiary 
societies  from  the  application  of  the  general  rule  as  to  the  ex- 
clusion of  the  declarations  of  deceased  in  suits  upon  the  con- 
tract of  insurance. 

The  cases  of  Life  Insurance  Company  v.  Winn,  96  Tenn., 
224,  where  the  declarations  were  offered  by  the  beneficiary  him- 
self; Nix  v.  Donovan,  18  N.  Y.  Sup.,  435,  where  the  question 
was  only  as  between  beneficiaries;  and  Cohen  v.  Continental 
Life  Insurance  Company,  41  N.  T.  Sup.,  296,  where  the  in- 
sured and  the  beneficiary  jointly  applied  for  the  insurance,  are 
inapplicable   to   the  question   under  consideration. 

Niblack  cites  Smith  v.  Mutual  Benefit  Insurance  Company, 
51  Hun.,  575,  but  on  error  the  upper  court,  123  N.  Y.,  85,  sus- 
tains the  competency  of  the  declarations  only  as  part  of  the 
res  gestae  of  a  relevant  fact.  8teinhauser  v.  Preferred  Acci- 
dent Insurance  Company,  13  N.  Y.  Sup.,  36,  a  decision  of  an  in- 
termediate court,  may  be  considered  as  in  accordance  with  the 
distinction  made  by  Niblack;  and  Cullis  v.  Modern  Woodmen, 
98  Mo.  App.,  521,  without  an  examination  of  the  authorities, 
cites  and  follows  Niblack  in  the  admissions  of  declarations  of 
deceased  as  to  having  had  hemorrhages. 

The  Ency.  of  P.  &  P.,  Vol.  1,  p.  573,  states  that  declarations 
of  decedent  are  admissible  where  insured  had  the  right  to  change 
•  beneficiary  but  the  eases  cited,  with  the  exception  of  Steinhauser 
v.  Preferred  Ac.  Ins.  Co.,  do  not  support  such  statements. 

The  court  has  not  before  it  a  transcript  of  the  testimony 
given  in  this  case,  and  from  its  own  notes  and  memory  the 
declarations  offered  in  this  ease  seems  to  have  been  offered  only 
as  evidence  of  the  falsity  of  statements  made  in  the  application 
by  the  insured  for  insurance,  and  as  so  offered  they  would  be 
incompetent  under  the  general  rule,  and  not  within  the  distinc- 
tions made  in  the  cases  above  referred  to.  The  rulings  of  the 
court  made  at  the  time  of  trial  will  therefore  be  adhered  to  and 
the  motion  for  new  trial  will  be  overruled. 


244      HAMILTON  COUNTY  INSOLVENCY  COURT. 
Hyde  Park  v.  Dyer  et  al.  [Vol.  VII 


COMPENSATION  FOR  LAND  APPROPRIATED  FOR. 
SIDEWALKS. 

Hamilton  County  Court  of   Insolvency. 

Village  op  Hyde  Park  v.  Peank  B.  Dyek  et  al. 
Decided,  May,  1908. 

Eminent  Domain — Appropriation  of  Strip  for  Sidewalk — Payment  Long 
Delayed  and  Abutting  Lota  are  in  the  Meantime  Sold — Compenta- 
tation  Claimed  by  the  Grantee* — But  Treated  at  Having  Vetted  in 
the  Grantor. 

Where  the  right  to  compensation  for  land  appropriated  for  sidewalk 
purposes  has  once  vested,  but  payment  therefor  is  long  delayed, 
the  claim  therefor  will  be  treated  as  personal  In  the  original 
owner,  and  not  as  having  passed  with  the  lots,  subsequently  con- 
veyed after  the  building  of  the  sidewalk  b;  deeds  in  which  no 
reference  was  made  to  such  claim. 

Warner,  J. 

This  case  has  been  submitted  upon  an  application  to  distribute 
certain  moneys  paid  into  court  in  appropriation  proceedings, 
to  which  moneys  there  are  adverse  claimants. 

There  was  a  verdict  fixing  the  amount  of  compensation  to  be 
paid  various  owners,  upon  which  judgment  in  due  course  was 
entered  on  the  first  day  of  June,  1900.  confirming  the  verdict, 
and  finding  "that  such  lots  and  parcels  of  land,  and^the  several 
interests  therein,  belonged  to  the  persons  whose  names  are  set 
opposite  to  them  herein,  and  that  such  persons  are  entitled  to 
receive  the  proportion  of  said  compensation  as  herein  desig- 
nated," and  ordering  the  plaintiff  corporation  to  pay  into  court 
the  amount  thereof  for  the  use  of  the  said  owner. 

Nothing  further  was  done  in  the  case  until  the  7th  of  May, 
1901,  when,  by  consent  of  all  parties  to  the  action,  certain  par- 
ties were  dismissed  from  the  case  with  their  costs  taxed  and 
allowed;  after  which  the  decree  proceeded  as  follows: 

"And  it  further  appearing  to  the  court  that  the  plaintiff,  the 
village  of  Hyde  Park,  has  elected  to  take  lots  Nos.  17,  18,  19, 


NISI  PBIUS  REPORTS— NEW  SERIES.  245 

IMS.]  Hyde  Park  v.  Dyer  et  al. 

20  and  22  as  described  in  the  application  to  assess  compensation, 
and  at  the  judgmepts  hereinbefore  entered  and  the  owners  of 
said  lots  have  waived  the  right  to  the  deposits  of  the  respective 
judgments  awarded  to  them  against  the  plaintiff,  a  corporation, 
before  said  plaintiff  corporation  takes  possession  of  their  prop- 
erty, but  in  no  way  have  waived  their  right  to  compensation  for 
said  property  appropriated,  it  is  ordered  that  the  sheriff  of 
Hamilton  county,  Ohio,  put  plaintiff  corporation  in  possession 
of  the  lots  described  as  Nos.  17,  18,  19,  20  and  22  in  application 
to  assess  compensation ;  and  it  is  further  ordered  that  the*  judg- 
ment of  $1,600  to  James  E.  Mooney,  trustee,  as  owner  of  lot  No. 
22,  be  and  the  same  is  hereby  again  confirmed." 

Similar  confirmations  of  former  judgments  as  to  all  remaining 
parties  were  included  in  the  decree. 

The  lots  so  described  consisted  of  ten  feet  in  depth  off  the 
front  of  the  platted  lots  on  the  west  side  of  Edwards  road,  de- 
sired for  street  purposes.  The  village  took  possession  of  said  ten 
feet  and  constructed  a  sidewalk  thereon  some  time  in  or  prior  to 
1902.  From  May,  1904,  to  April,  1907,  said  Mooney,  trustee,  sold 
sixteen  lots  abutting  on  said  Edwards  road  and  affected  by  said 
appropriation  proceedings  to  various  purchasers,  and  conveyed 
same  by  deeds  of  general  warranty  without  reservation,  and  by  a 
description  giving  the  number  of  the  lot  and  name  of  subdivision 
and  plat  book  where  same  was  recorded.  Said  money  was  paid 
into  court  in  May,  1908.  A  part  of  said  grantees  from  Mooney, 
trustee,  and  others,  now  holding  title  to  certain  of  said  lots 
through  mesne  conveyances,  assert  claims  to  a  proportionate  share 
of  the  $1,600.     Mooney,  trustee,  claims  the  entire  amount. 

It  is  asserted  by  said  grantees  that  the  entry  of  May  7th,  1901, 
is  a  nullity  except  so  far  as  it  disposes  of  the  matter  of  costs 
and  attorneys'  fees.  If  this  were  true  it  would  be  difficult  to  see 
how  it  would  help  their  contention.  It  is  manifest  that  under 
the  terms  of  Section  2260,  Revised  Statutes,  in  force  at  that 
time,  the  village  of  Hyde  Park  at  the  expiration  of  six  months 
from  the  entry  of  judgment  on  the  verdict  on  the  first  of  June, 
1900,  lost  its  strict  legal  right  to  the  premises  by  virtue  of  said 
proceeding.    Its  ability  to  obtain  the  land,  however,  still  existed, 


248       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Hyde  Park  v.  Dyer  et  at.  [Vol.  VII.  N.  3. 

and  two  ways  were  open  for  it  to  proceed:  first,  by  another 
proceeding  for  the  due  appropriation  of  the.  property  (Trustees 
of  Southern  R.  R.  v.  Haas,  42  0.  S.,  239) ;  second,  by  some  ap- 
propriate agreement  with  the  owners  of  the  land. 

The  latter  course  seems  to  have  been  pursued,  and  by  con- 
sent of  all  the  parties  interested  the  agreement  was  made  sub- 
ject of  the  entry  of  May  7th,  1901,  of  record  in  this  case. 

The  court  had  jurisdiction  of  the  subject-matter,  and  the  order 
made  was  a  valid  and  legal  exercise  of  the  judicial  power  vested 
in  it.  Without  this  order  there  would  not  have  existed  any  basis 
of  authority  for  the  payment  of  the  money  into  court  for  dis- 
tribution. In  legal  effect  this  was  a  continuation  of  the  appropri- 
ation proceedings,  a  waiving  by  the  owners  of  the  forfeiture  of 
the  village  to  take  the  property  within  the  six  months,  and  the 
eonsent  on  their  part  to  accept  the  compensation  assessed  by  the 
jury.  Ryan  \.Hoffman,  26  O.  S.,  120;  Toledo  v.  Groll,  2  C.  C, 
199. 

By  the  entry  of  June  1st,  1900,  the  court  had  found  who  were 
the  owners  of  the  land,  that  such  owners  were  entitled  to  the 
compensation  assessed,  and  ordered  the  payment  thereof  into 
court  for  their  use.  The  entry  of  May  7.  1901,  by  eonsent  of  all 
parties  confirmed  this  judgment  and  directed  the  delivery  of  the 
possession  of  the  land  by  the  .sheriff.  Possession  was  taken  and 
sidewalk  constructed  about  two  years  before  Mooney,  trustee, 
made  any  conveyances. 

Upon  these  facts  I  am  of  the  opinion  that  it  was  the  intention 
of  the  parties  that  the  title  to  said  land  should  pass  to  the  vil- 
lage to  the  extent  permitted  by  law,  and  that  such  title  did  pass, 
upon  possession  being  taken  by  said  village. 

I  further  think  that  said  judgment  entries  and  such  delivery 
of  possession  gave  to  the  then  owners  a  vested  right  to  the  com- 
pensation fixed  therein,  and  that  said  right  did  not  pass  by  con- 
veyances of  the  lots  by  said  subsequent  deeds. 

Article  I,  Section  19,  of  the  Constitution  of  Ohio  does  not  re- 
quire compensation  to  be  first  made  to  the  owners  of  land  taken 
for  roads  "that  shall  be  open  to  the  public  without  charge,"  as 


NISI  PRIUS  REPORTS— NEW  SERIES.  247 

1908.]  Hyde  Park  v.  Dyer  et  al. 

was  the  case  in  this  appropriation,  and  it  was  perfectly  com- 
petent for  the  owners  to  accept  a  judgment  in  place  of 
payment  and  to  deliver  possession  of  the  property. 

No  Ohio  case  in  point  has  been  cited,  and  I  have  not  found 
any  that  sustains  the  contention  of  said  grantees.  I  have  been 
referred  to  the  following  cases  in  this  state : 

In  Railroad  Company  v.  Perkins,  49  0.  S.,  333,  Minshall,  J., 
said  in  reply  to  an  argument  advanced,  "Any  grantee  can 
maintain  an  action  to  recover  lands  wrongfully  held  against  his 
grantor  where  the  lands  are  included  in  his  grant."  But  this 
was  not  the  point  at  issue  in  that  ease. 

In  Railroad  Company  v.  Davis,  19  C.  C,  589,  the  circuit  court 
of  this  judicial  district  decided  that  the  conveyance  of  land  oc- 
cupied by  a  railroad  company  without  consent  entitles  the  gran- 
tee to  all  remedies  against  said  company  for  such  occupation, 
and  that  an  action  for  damages  by  a  former  owner  was  im- 
properly brought. 

In  Weaver  v.  Toledo,  3-C.  C— N.  S.,  319,  It  was  decided  that 
a  devisee  of  land  could  bring  an  action  in  her  own  name  against- 
a  municipality  to  recover  the  amount  assessed  during  the  lifetime 
of  the  devisor  in  appropriation  proceedings  but  never  paid. 

In  Clark  v.  Cleveland,  9  C.  C,  118,  where  the  owner  conveyed 
the  land  in  fee  simple  after  conditional  judgment  and  before  the 
expiration  of  the  six  months  limitation  in  Section  2260,  Revised 
Statutes,  and  the  city  took  possession  of  the  land  without  pay- 
ing therefor,  after  the  said  six  months  had  expired,  it  was  held 
that  the  right  of  the  vendor  to  recover  the  damages  was  ended, 
and  that  the  right  of  action  for  damages  accrued  to  the  vendee. 
It  is  obvious  that  none  of  these  cases  reached  the  controversy 
in  this  case.  In  many  other  states  it  has  been  held  that  after 
the  right  to  compensation  in  appropriation  cases  has  once  vested, 
it  becomes  a  personal  claim  and  does  not  pass  with  the  land  by 
a  subsequent  deed  making  no  reference  thereto.  Tenbroke  v. 
Jahke,  77  Pa,  St.,  392;  Appeal  of  Worrell,  130  Pa.  St.,  600; 
In  re  Ruebel,  103  N.  Y.  Supp.,  804;  R.  R.  Co.  v.  Engelhard,  57 
Neb.,  444;   Smith  v.  R.  R.  Co.,  88  Tenn.,  611;   Walton  v.  R.  R 


248      HAMILTON  COUNTY  INSOLVENCY  COURT. 

Hyde  Park  v.  Dyer  et  al.  [Vol.  VII,  N.  & 

Co.,  70  Wis.,  414;  R.  R.  Co.  v.  Lockwood,  43  So.  Rep.,  819; 
Green  v.  R.  R.  Co.,  112  Ga.,  849;  Ft.  Wayne  Traction  Co.  v.  R. 
R.  Co.,  80  N.  B.  Rep.,  837  (68  Ark.,  600) ;  Roberts  v.  R.  R.  Co., 
158  U.  S..  1. 

Id  Illinois  and  Virginia  the  doctrine  is  announced  sub- 
stantially sustaining  the  position  of  the  said  grantees.  The  de- 
cided weight  of  authority,  however,  is  with  the  contention  of  the 
former  owners  in  this  ease.  Upon  principle  also  it  would  seem 
certain  that  the  owners  in  giving  possession  of  their  property, 
without  any  reservation  of  lien  or  title,  coupled  with  a  retention 
only  of  the  right  to  compensation  already  fixed  and  ordered  paid 
into  court  for  their  use,  had  completely  vested  such  compensation 
in  them  and  severed  it  from  the  remaining  land.  Said  deeds  of 
general  warranty  vested  in  the  grantees  all  the  title  the  grantors 
had  at  that  time  to  the  land,  as  land,  but  no  stretch  of  any 
legal  principle  could  such  deeds  be  held  to  convey  vested  rights 
to  compensation  for  previously  acquired  interests  therein  actually 
in  possession  by  virtue  of  this  proceeding.  The  claim  of  the 
present  owners  is  strictly  technical  and  without  great  force,  in- 
justice or  right.  They  bought  the  property  after  the  ten  foot 
strip  was  improved  with  a  sidewalk,  and  without  actual  knowl- 
edge that  this  money  had  not  been  paid.  It  is  true  that  their 
deeds  called  for  the  lots  by  the  original  plat  as  recorded,  but 
they  took  them  subject  to  the  vested  rights  of  the  village  therein, 
of  which  they  must  be  conclusively  presumed  to  have  known, 
because  of  this  proceeding  in  a  court  of  record,  and  actual  pos- 
session and  use  by  the  village  at  the  time  they  bought. 

Decree  accordingly. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Cleveland  v.  Cleveland  et  al, 


THE  MUNICIPAL  ASSESSMENT  LIMITATION. 

Common  Pleas  Court  of  Cuyahoga  County. 

City  op  Cleveland  v.  City  op  Cleveland  *T  al.  * 

Decided,  March  18,  1907. 

Municipal  Corporations — Assess  men  ts  Which  Fall  Under  the  Long  worth 
Act — Grade  Crossings,  Sewers,  Paving — Construction  of  Sections 
2835,  1536-213,  1536-292,  333717a  et  sea,  3337-170,  28356,  1536-210 
and  2837— General  and  Superior  Object  Can  Xot  be  Defeated  by  a 
Less    General   and   Inferior  Direction. 

Such  Improvements  as  paving,  sewer  construction  and  abolishing  of 
grade  crossings  within  a  municipality  are  Improvements  within 
the  provisions  of  Section  2835,  Revised  Statutes,  limiting  the  au- 
thority of  council  to  Issue  bonds,  and  where  the  cost  of  proposed 
paving,  sewer  construction,  or  abolishing  of  grade  crossings  will 
raise  the  net  Indebtedness  of  the  city  beyond  the  4  per  cent. 
limit,  council  has  no  authority  to  Issue  bonds  therefor  without 
the  approval  of  the  electorate. 

N.  D.  Baker,  City  Solicitor,  for  plaintiff. 

W.  B.  Sanders,  contra 

Phillips,  J.  (orally). 

On  December  17  last  the  council  of  this  city  passed  an  ordinance 
to  issue  bonds  in  the  sum  of  $40,000  to  pay  the  city's  portion 
of  the  cost  of  sewering  certain  streets.  At  the  same  time  an 
ordinance  was  passed  to  issue  $250,000  to  pay  the  city's  portion 
of  the  cost  of  paving  certain  streets.  Bids  for  these  bonds,  aggre- 
gating $290,000,  have  been  accepted  and  the  proper  officers  are 
about  to  sign  and  deliver  these  bonds  to  the  purchasers  thereof. 

This  action  is  brought  by  the  city  to  enjoin  the  officers  from 
issuing  these  -bonds,  on  the  alleged  ground  that  the  present  in- 
debtedness of  the  city,  plus  the  amount  of  these  bonds,  will  ex- 
ceed the  4  per  cent,  limit  fixed  by  the  Longworth  aet,  unless 
their  issuance  be  first  authorized  by  a  vote  of  the  electors  of  the 
municipality. 

*  Affirmed  by  tbe  Supreme  Court  upon  the  reasoning  of  the  Common 
Fleas  and  without  further  report,  Cleveland  v.  Cleveland  et  al,  76 
Ohio  State. 


250  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Cleveland  v.  Cleveland  et  al.  [Vol.  VII.  N.& 

The  defendants  demur  to  the  petition.  The  petition  sets  out 
the  various  issues  of  municipal  bonds  now  outstanding,  all  of 
which  were  issued  without  submission  to  a  vote  of  the  electors- - 
the  aggregate  of  which  is  already  slightly  in  excess  of  4  per  cent. 
of  the  total  value  of  all  property  in  the  city,  as  listed  and  as- 
sessed for  taxation. 

Not  all  indebtedness  of  the  city,  but  only  that  incurred  for 
certain  specified  purposes,  falls  within  the  said  limitation  fixed 
by  law.  It  is  conceded  by  counsel  that  all  the  indebtedness 
enumerated  in  the  petition  falls  within  the  limitation,  unless  it  be 
an  issue  of  bonds  to  the  amount  of  $1,250,000,  issued  to  pay 
the  city's  share  of  the  costs  of  abolishing  grade  crossings  in  the 
city.  If  said  issue  of  bonds  falls  within  the  operation  of  the 
law  fixing  the  limitation,  it  makes  the  aggregate  of  such  in- 
debtedness so  great  that  the  proposed  issue  will  transcend  the 
limit,  if  the  proposed  issue  also  falls  within  tbe  operation  of  the 
law  fixing  the  limitation.  So  that,  the  concrete  question  under 
the  demurrer  to  the  petition  is  this : 

Does  either  of  these  purposes  of  expenditure — the  one  for 
abolishing  grade  crossings,  the  other  for  sewering  and  paving 
streets — fall  within  the  operation  of  the  Longworth  act*  If 
the  former  does  not,  it  is  immaterial  whether  the  latter  does,  as 
the  proposed  issue  of  bonds  would  not  then  exceed  the  limitation; 
but  if  the  former  purpose  does  fall  within  the  operation  of  said 
act,  the  proposed  issue  of  bonds  can  be  justified  only  if  their 
purpose  falls  without  the  operation  of  said  act. 

The  solution  of  this  question  involves  the  construction  of  96 
O.  L.,  40,  53,  Sections  53  and  100  (Sections  1536-213  and  1536- 
292),  of  Revised  Statutes,  Section  2835,  commonly  called  the 
"Longworth  act,"  and  of  Sections  1  and  7  of  an  act  passed 
May  2,  1902,  entitled  "An  act  to  abolish  grade  crossings  in  mu- 
nicipal corporations"  (95  O.  L.,  356;  Rev.  Stat.  3337 -17a  et 
seq.),  as  these  several  sections  may,  or  may  not,  be  found  to 
stand  correlated  to  the  constitutional  injunction  that  munici- 
palities shall  be  restricted  in  their  power  to  borrow  money  and 
contract  debts, 

Article  XIII,  Section  6  of  the  Constitution,  reads  as  follows: 


NISI  PRIUS  REPORTS— NEW  SERIES. 


18.] 


"The  General  Assembly  shall  provide  for  the  organization 
of  cities  and  incorporated  villages,  by  general  laws,  and  restrict 
their  power  of  taxation,  assessments,  borrowing  money,  contract- 
ing debts  and  loaning  their  credit,  so  as  to  prevent  the  abuse  of 
such  power." 

An  attentive  reading  of  this  seetion  of  the  Constitution  will 
show  that  it  deals  with  an  existing  and  inherent  power  in  mu- 
nicipalities to  borrow  money,  to  contract  debts,  and  to  levy  taxes. 
It  does  not  require,  or  contemplate,  a  limitation  as  to  the  amount 
of  total  indebtedness  that  may  be  incurred  by  a  municipality.  It 
contemplates  such  regulation  of  an  existing  power  "as  to  pre- 
vent the  abuse  of  such  power."  The  object  is,  to  prevent  an 
abuse  of  power,  and  this  is  to  be  done  by  restricting  the  power. 
The  nature  and  extent  of  the  restriction  are  matters  left  to 
the  Legislature. 

The  restriction  claimed  to  be  operative  as  to  the  proposed  issue 
of  bonds  is  imposed  by  Section  2835,  Revised  Statutes,  as  amended 
April  29,  1902  (95  0.  L.,  318},  which  amendment  is  known 
as  the  Longworth  act.  The  material  parts  of  Section  2835,  Re- 
vised Statutes,  found  in  the  Longworth  act,  are  these ; 

"That  the  trustees  of  any  township,  or  the  council  of  any 
municipal  corporation  of  the  state  of  Ohio,  shall  have  the  power 
to  issue  and  sell  bonds  in  such  amounts  and  denominations,  for 
such  period  of  time  and  at  such  rate  of  interest,  not  exceeding 
6  per  cent.,  and  in  such  manner  as  is  provided  by  law  for  the 
sale  of  bonds  by  such  township  or  municipal  corporation,  for 
any  of  the  purposes  provided  for  in  this  act,  whenever  such 
trustees  or  council  by  affirmative  vote  of  not  less  than  two-thirds 
of  the  members  elected  or  appointed  thereto  shall  by  resolution 
or  ordinance  deem  the  same  necessary." 

Then  follow  twenty-seven  subdivisions,  comprising  the  pur- 
poses for  which  this  power  may  be  exercised.  No.  14  of  this 
subdivision  is  in  these  words: 

"For  constructing  sewers,  sewage  disposal  works,  flushing 
tunnels,  drains  and  ditches." 

Section  22  says: 

"For  resurfacing,  repairing,  or  improving  any  existing  street 
or  streets,  as  well  as  other  public  highways." 


252  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Cleveland  v.  Cleveland  et  al.  [Vol.  VII,  N.  8. 

Following  this  enumeration  of  purposes,  and  coming  within 
the  operation  of  the  section,  it  says: 

"The  bonds  herein  authorized  may  be  issued  for  any  or  all 
purposes  enumerated  herein,  but  the  total  bonded  indebtedness 
hereafter  created  in  any  one  fiscal  year  under  the  authority  of 
this  act  by  any  township  or  municipal  corporation  shall  not  ex- 
ceed 1  per  cent,  of  the  total  value  of  all  property  in  such  town- 
ship or  municipal  corporation,  as  listed  and  assessed  for  taxa- 
tion, except  as  otherwise  provided  in  this  act." 

Further  on  in  the  section  it  says: 

"Provided,  however,  that  the  net  indebtedness  incurred  by 
any  township  or  municipal  corporation  after  the  passage  of 
Section  2835,  Revised  Statutes,  as  amended  April  29,  1902,  for 
the  purposes  herein  enumerated,  shall  never  exceed  4  per  cent. 
of  the  total  value  of  all  the  property  in  such  township  or  mu- 
nicipal corporation,  as  listed  and  assessed  for  taxation,  unless 
an  excess  of  such  amount  is  authorized  by  vote  of  the  quali- 
fied electors  of  such  township  or  municipal  corporation  in  the 
manner  hereafter  provided  in  Section  2837,  Revised  Statutes." 

It  is  conceded  in  argument,  and  I  think  it  clearly  appears, 
that  this  section  embraces  in  subdivisions  14  and  22  the  pur- 
poses of  the  proposed  issue  of  bonds,  bonds  for  sewering  streets 
and  bonds  for  paving. 

At  the  extraordinary  session  of  the  Legislature  held  in  the 
autumn  of  1902,  by  an  act  passed  October  22,  1902  (96  0.  L., 
20),  the  General  Assembly  established  a  code  for  the  organiza- 
tion and  government  of  all  municipalities  in  Ohio.  This  act 
took  effect  on  the  first  Monday  of  May,  1903. 

Act  96  0.  L.,  53,  Section  100  of  this  municipal  code,  is  as  fol- 
lows : 

"All  municipal  corporations  shall  have  power  to  issue  bonds 
for  the  various  purposes,  to  the  amounts  and  with  the  limita- 
tions provided  in  the  act  passed  April  29,  1902,  entitled,  *  •  • 
and  such  act  shall  be  and  remain  in  full  force  and  effect." 

This  section  of  the  municipal  code  makes  clear  the  legislative 
intent  that  the  Longworth  act,  or  Section  2835,  Revised  Statutes. 
of  the  statutes,  with  its  limited  limitations,  should  apply  to  the 
borrowing  of  money  by  municipalities  for  any  and  all  purposes 


NISI  PRIUS  REPORTS— NEW  SERIES.  258 

1908.]  Cleveland  v.  Cleveland  et  al. 

enumerated  in  Section  2835,  Revised  Statutes,  including,  as  we 
have  seen,  the  purposes  of  the  proposed  issue  of  bonds. 

Nothing  dubious  or  ambiguous,  nothing  calling  for  construc- 
tion, has  yet  been  encountered;  the  difficulty  so  far  as  the  pro- 
posed issue  of  bonds  is  concerned,  arises  from  the  provisions  of 
96  O  L.,  40,  Section  53.  Act  96  O.  L.,  39,  Section  50  (Revised 
Statutes  1536-210),  says: 

"The  council  of  any  municipal  corporation  may  assess  upon 
the  abutting,  adjacent  and  contiguous  or  other  specially  bene- 
fited lots  or  lands  in  the  corporation,  any  part  of  the  entire  cost 
of,  and  expense  connected  with,  the  improvement  of  any  street, 
alley  or  public  road  or  place  by  the  paving,  repaving,  construct- 
ing sidewalks,  sewers,  drains  or  water-courses,  and  any  part  of 
the  cost  of  lighting,  sprinkling,  cleaning  or  planting  shade  trees 
upon  the  same,  by  either  of  the  following  methods." 

This  Section  53  (96  0.  L.,  40)  says  that: 

"In  all  eases  of  assessments  the  council  shall  limit  the  same 
to  the  special  benefits  conferred  upon  the  property  assessed,  and 
in  no  case  shall  there  be  levied  upon  any  lot  or  parcel  of  land  jn 
the  corporation  any  assessment  or  assessments  for  any  or  fill 
purposes,  within  a  period  of  five  years,  exceeding  thirty-three 
and  one-third  per  cent._of  the  tax  value  thereof." 

Then: 

"In  all  municipalities  the  corporation  shall  pay  such  part  of 
the  cost  and  expense  of  improvements  for  which  special  assess- 
ments are  levied  as  council  may  deem  just,  which  part  shall  not 
be  less  than  one-fiftieth  of  all  such  cost  and  expenses;  and  in  ad- 
dition thereto,  the  corporation  shall  pay  the  cost  of  intersections." 

And  it  is  for  paying  these  parts  of  the  expenses  on  the  part  of 
the  municipality  tnat  some  of  the  bonds  are  proposed  to  be 
issued.     Then  the  section  finally  says: 

"Provided,  that  any  city  or  village  is  hereby  authorized  to 
issue  and  sell  its  bonds  as  other  bonds  are  sold  to  pay  the  cor- 
poration 's  pant  of  any  improvements  as  aforesaid,  and  may  levy 
taxes  in  addition  to  all  other  taxes  authorized  by  law  to  pay  such 
bonds  and  the  interest  thereon." 

Act  96  O.  L.,  40,  Section  53,  with  its  contextnral  Section  50, 
clearly  embraces  the  purposes  of  the  proposed  issue  of  bonds, 


254  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Cleveland  v.  Cleveland  et  al.  [Vol.  VII,  N.  a 

and  there  is  in  this  section  itself  no  limitation,  as  to  the  amount 
of  indebtedness  that  may  be  incurred  under  the  section.  But  it 
has  been  seen  that  96  0.  L.,  53,  Section  100,  just  as  clearly  em- 
braces the  proposed  issue  of  bonds  with  a  limitation  as  to  the 
amount. 

Both  of  these,  Sections  53  and  100  (96  O.  L.,  40,  53),  relate 
to  expenditures  that  are  authorized  and  legal.  These  expendi- 
tures may  lawfully  be  provided  for  by  taxation,  and  they  may 
be  provided  for  by  the  borrowing  of  money.  Taking  these  sec- 
tions each  by  itself,  the  meaning  of  each  is  obvious.  When  money 
is  borrowed  under  favor  of  96  O.  L.,  40,  Section  53,  it  is  clear 
there  is  no  limitation  therein  as  to  the  amount ;  and  when  bor- 
rowed nnder  favor  of  Section  106,  it  is  equally  clear  that  the 
amount  can  not  transcend  the  4  per  cent,  limitation,  unless  au- 
thorized by  vote  of  the  electors. 

Here  arises  necessity  for  construction,  and  we  must  go  per- 
haps beyond  the  literal  meaning,  the  absolute  sense  of  the  text, 
and  itaking  these  apparently  discordant  elements,  determine 
their  meaning  as  a  whole.  We  are  here  confronted  with  a  prob- 
lem of  real  difficulty,  and  it  is  as  important  in  its  consequences 
as  it  is  difficult  of  solution. 

The  decision  of  the  Supreme  Court,  in  the  case  of  Heffner  v. 
Toledo,  75  Ohio  St.,  relates  mainly  to  procedure,  and  is  not  very 
helpful  in  this  ease.  In  that  case,  the  city  of  Toledo  had  pro- 
vided by  ordinance  for  the  issuance  of  bonds  to  provide  a  fund 
from  which  to  pay  the  city's  part  of  the  cost  of  grading,  paving 
and  sewering  a  great  number  of  streets,  without  having  first 
passed  an  ordinance  providing  for  the  particular  street  im- 
provements. 

It  was  held  that  bonds  for  such  purpose  might  be  issued  under 
Section  53  of  code,  or  under  the  Longworth  act,  Section  100  of 
the  code.  That  if  issued  under  96  0.  L.,  40,  Section  53,  an  ordi- 
nance providing  for  the  specific  improvements  must  first  be 
passed,  but  that  such  ordinance  is  not  a  prerequisite  to  the  is- 
suance of  such  bonds  under  the  Longworth  act.  That  is  the 
question  upon  which  that  case  turned— the  only  question  they 
had  to  determine.     There  were  some  subordinate  questions,  but 


NISI  PRIUS"  REPORTS— NEW  SERIES.  266 

1908.]  Cleveland  v.  Cleveland  et  al. 

that  was  the  main  question  for  determination,  in  order  to  de- 
cide the  case. 

In  considering  this  decision  of  the  Supreme  Court,  we  must 
advert  to  the  fact  that  the  Longworth  act,  so-called,  was  only 
an  amendment  of  Section  2835,  Revised  Statues.  This  section 
as  it  stood  at  the  time  of  said  amendment,  conferred  power  upon 
municipal  corporations  to  issue  bonds  in  such  amount  as  may 
be  deemed  necessary  for  some  twenty  or  more  different  pur- 
poses therein  specified,  when  sanctioned  by  two-thirds  of  the 
electors  voting  at  an  election  to  be  held  for  that  purpose.  And 
they  could  be  issued  only  when  so  sanctioned.  The  amendment 
added  a  great  many  more  purposes,  and  provided  that  within  a 
fixed  limitation,  bonds  for  all  purposes  enumerated  might  issue 
without  submission  to  a  vote  of  the  electors. 

Recurring  now  to  the  case  of  Heffner  v.  Toledo,  supra,  Judge 
Summers,  delivering  the  opinion,  says,  page  430: 

"The  substance  of  Sections  2273  and  2274,  Revised  Statutes, 
providing  that  the  city  should  pay  for  the  intersections  and  not 
less  than  one-fiftieth  of  the  cost  of  the  improvement,  was  em- 
braced in  Section  53  of  the  municipal  code  of  1902,  and  this 
provision  was  added :  'Provided,  that  any  city  or  village  is  here- 
by authorized  to  issue  and  sell  its  bonds  as  other  bonds  are  sold 
to  pay  the  corporation's  part  of  any  improvement  as  afore- 
said; and  may  levy  taxes  in  addition  to  &\\  other  taxes  author- 
ized by  law  to  pay  such  bonds  and  the  interest  thereon.'  If  this 
was  only  authority  to  issue  bonds  for  this  purpose,  it  might  be, 
that  there  was  power  only  to  meet  the  city 's  part  of  the  cost  by 
issuing  bonds  instead  of  by  a  levy,  and  as  the  latter  could  not 
be  made  until  an  ordinance  to  proceed  with  the  improvement  had 
been  passed,  that  counsel 's  contention  is  sound  that  that  is  a  pre- 
requisite to  the  issuing  of  the  bonds.  But,  as  has  been  shown, 
the  authority  already  existed  in  the  Longworth  law,  and  the  pro- 
vision in  Section  53  is  not  to  be  construed  as  limiting  the  powers 
conferred  by  the  Longworth  law,  but  as  a  grant  of  additional 
power.  Attention  to  the  provisions  of  the  Longworth  law,  as 
well  as  to  the  provisions  of  the  sections  that  it  amended,  will 
disclose  that,  as  there  conferred,  the  power  was  not  limited  to 
the  issuing  of  bonds  to  pay  the  city's  part  of  the  cost  of  im- 
provement* that  had  been  provided  for  by  ordinance,  but  might 
be  exereised  when  they  were  merely  contemplated." 


256  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Cleveland  v.  Cleveland  et  al.  [Vol.  VII,  N.  8. 

The  only  cognate  principle  here  announced  by  the  Supreme 
Court  is,  that  the  authority  conferred  by  Section  2835,  Revised 
"Statutes,  already  existed  when  that  conferred  by  the  new  part 
of  96  O.  L.,  40,  Section  53,  was  given,  and  that  Section  53  is  not 
to  be  construed  as  limiting  the  powers  conferred  by  Section  2835, 
Revised  Statutes. 

By  parity  of  reasoning,  which  it  seems  to  me  is  warranted,  the 
limitation  imposed  by  Section  2835,  Revised  Statutes,  is  not  to 
be  removed  by  (the  new  and  subsequent  provision  of  96  O.  L.,  40, 
Section  53,  which  is  really  a  duplication  of  the  authority  of  Sec- 
tion 2835,  Revised  Statutes. 

Well  in  line  with  this  principle  announced  in  Heffner  v.  Tole- 
do, supra,  is  a  rule  of  construction  long  ago  announced  in  the 
ease  of  State  v.  Perrysburg,  14  Ohio  St.,  472,  and  not  referred  to 
in  Heffner  v.  Toledo,  supra.  I  read  the  fifth  paragraph  of  the 
syllabus  in  that  case: 

"It  is  an  established  rule  in  the  construction  of  statutes,  that 
a  subsequent  statute,  treating  a  subject  in  general  terms,  and 
not  expressly  contradicting  the  provisions  of  a  prior  act,  shall 
not  be  considered  as  intended  to  affect  more  particular  and 
positive  provision  of  the  prior  act,  unless  it  be  absolutely  neces- 
sary to  do  so,  in  order  to  give  its  words  any  meaning." 

We  nuist  bear  in  mind  that  96  0.  L.,  40,  53,  Sections  53  and 
100,  the  latter  adopting  and  incorporating  Section  2835,  Revised 
Statutes,  are  part  of  one  and  the  same  text  or  enactment  of  the 
municipal  code.  All  the  cognate  parts  of  this  enactment  must 
be  construed  together,  and  all  its  provisions  must  be  harmonious 
with  the  substance  and  general  spirit  of  the  entire  enactment, 
and  the  general  spirit  of  an  enactment  is  to  be  found  not  in  its 
subordinate  and  inferior  purposes,  but  in  its  superior  and  per- 
vading objects.  The  general  purpose  and  spirit  of  an  enactment 
can  generally  be  found  in  its  title,  and  tbe  title  to  the  municipal 
code  reads: 

"An  act  to  provide  for  the  organization  of  cities  and  incor- 
porated villages,  and  to  restrict  their  power  of  taxation,  assess- 
ment, borrowing  money,  contracting  debts,  and  lending  their 
credit,  so  as  to  prevent  the  abuse  of  such  powers,  as  required  by 
the  Constitution  of  Ohio,  and  to  repeal  all  sections  of  the  Re- 
viesd  Statutes  inconsistent  herewith." 


NISI  PRIUS  REPORTS— NEW  SERIES.  257 

1908.]  Cleveland  v.  Cleveland  et  al. 

It  looks  as  though  that  was  the  prevailing  motive  of  the 
Legislature  in  enacting  this  code.  At  any  rate,  the  Legislature 
must  have  had  that  subject  well  in  mind  in  its  enactment,  and 
no  construction  ought  to  be  placed  upon  any  parts  of  the  code 
that  would  do  violence  to  this  apparent  prevailing  purpose  of 
the  Legislature,  if  it  can  be  avoided. 

In  Lieber,  Hermeneutics,  a  rare  book,  and  as  valuable  as  it  is 
rare,  on  page  135,  Dr.  Lieber  lays  down  this  rule  of  construction : 

"The  general  and  superior  object  can  not  be  defeated  by  a 
less  general  and  inferior  direction ;  and  in  general  the  higher 
prevails  over  the  lower,  the  principle  over  a  specific  direction." 

Now,  96  O.  L.,  40,  Section  53,  provides  for  raising  money  for 
a  single  purpose,  whereas  Section  2835,  Revised  Statutes,  pro- 
vides for  some  fifty  or  sixty  different  purposes.  Dr.  Lieber  gives 
this  illustration,  not  very  apt  here,  but  it  illustrates  the  princi- 
ple that  he  stated  in  the  rule  that  I  have  read.    He  says: 

"Pufendorf  gives,  in  illustrating  another  rule,  however,  the 
instance  that  there  exists  a  law  that  no  citizen  shall  carry  arms 
on  festivals;  another  to  assemble  with  arms,  as  soon  as  the  alarm 
betf'is  sounded.  A  hostile  fleet  appears  on  Sunday  off  .the  har- 
bor; the  bells  are  rung;  What  has  the  citizen  to  do!'  He  has 
to  go  armed,  of  course,  because  the  first-mentioned  law  was  given 
to  maintain  peace  and  safety;  the  second  to  save  the  city.  The 
repelling  of  the  enemy  and  the  freedom  of  the  city  is  the  most 
important.  It  does  not  appear  to  me  that  the  citizens  ought  to 
go  armed  on  Sunday,  'because  the  second  law  forms  an  exception 
to  the  first';  in  this  case,  if  it  does,  it  is  only  because  the  ex- 
ception is  founded  upon  a  more  general  principle;  if  it  were 
not,  it  could  not  possibly  have  the  power  of  overcoming  the  other 
law,  which  prohibits  going  armed  on  festival  days." 

In  Smith  v.  Rockford,  4  N.  P.— N.  S-,  513,  decided  in  Novem- 
ber, 1906,  and  prior  to  the  decision  of  the  Supreme  Court  which 
I  have  read,  Judge  Mathers  in  a  fairly  well-reasoned  opinion 
says  this  (and  he  had  the  same  question  presented  here,  except- 
ing that  it  related  to  the  limitation  of  1  per  eent.  on  the  issue 
of  bonds  within  the  same  fiscal  year,  instead  of  the  limitation 
of  4  per  cent,  which  is  involved  here) : 

"The  code  ought  to  be  consdered  as  a  whole.  The  two  sec- 
tions involved,  53  and  100,  are  each  contained  in  the  code  as  it 


258  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Cleveland  v.  Cleveland  et  a!.  [Vol.  VII,  N.  8. 

was  adopted  in  the  act  of  October  22,  1902  (96  0.  L.,  20),  and 
they  remain  as  integral  parts  of  it.  Their  provisions  must 
have  been  within  the  legislative  contemplation  when  the  act  was 
adopted.  It  ia  true  the  Loagworth  bond  act  is  a  piece  of  ante- 
cedent legislation,  but  Section  100,  passed  at  the  same  time  as 
Section  53,  does  not  merely  provide  it  'shall  be  and  remain  in 
full  force  and  effect,'  but  contains  a  renewal  of  the  legislative  in- 
tent that  municipal  corporations,  when  they  issue  bonds  for  pur- 
poses mentioned  in  the  act  shall  be  governed  by  its  limitations. 
It  is  true  the  terms  of  the  act  are  permissive  as  to  the  issue  of 
bonds,  but  it  is  difficult  to  imagine  how  they  could  be  anything 
else,  for  the  Legislature  did  not  intend  to  direct  council  to  is- 
sue bonds  for  the  purposes  mentioned. 

"The  present  Constitution  of  Ohio  requires  the  General  As- 
sembly, by  Section  6  of  Article  XIII,  to  restrict  municipal  cor- 
porations in  their  powers  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to  pre- 
vent tie  abuse  of  such  powers.  One  of  the  purposes  of  the 
Legislature,  in  enacting  the  act  of  October  22,  1902,  commonly 
called  the  municipal  code,  was  to  carry  out  the  'constitutional 
requirement.  It  so  declared  itself  in  the  preamble  to  that  act. 
Where  one  of  two  constructions  of  a  section  or  sections  of  the 
code  will  effect  this  declared  purpose,  and  the  other  will  not,  the 
former  will  be  adopted." 

I  think  some  significance  attaches  to  the  provisions  of  Sec- 
tion 2H35&,  Revised  Statutes,  which  is  a  part  of  the  Longworih 
act,  and  Judge  Mathers,  in  the  opinion  that  I  have  been  reading 
from,  gives  that  section  consideration,  and  I  believe  Judge  Cun- 
ningham, who  decided  the  preliminary  motion  in  that  case,  4 
N.  P. — N.  S.,  476,  based  his  decision  entirely  on  that — on  the 
effect  that  he  thought  this  Section  28356  should  have.  This 
case  is  familiar  to  counsel,  and  I  will  not  take  the  time  to  read 
it,  as  I  had  intended. 

I  am  clearly  of  the  opinion  that  the  proposed .  issue  of  bonds 
falls  within  the  provisions  of  96  0.  L.,  53,  Section  100,  and  their 
issue  should  be  enjoined  unless  the  former  issue  for  grade  cross- 
ing elimination  falls  without  the  operation  of  said  section,  and  so 
makes  room  for  the  proposed  issue  without  a  vote  of  the  elector- 
ate. 

This  brings  us  to  inquire  whether  the  issue  of  $1,250,000  of 
bonds  for  paying  the  city's  share  of  the  cost  of  abolishing  grade 


NISI  PRIUS  REPORTS— NEW  SERIES.  260 

IMS.]  Cleveland  v.  Cleveland  et  al. 

crossings,  falls  within  the  operation  of  Section  2835,  Revised 
Statutes,  and  is  to  be  included  in  computing  the  net  indebted- 
ness under  said  section.  What  has  already  been  said  and  de- 
cided prepares  the  way  for  a  very  short  disposal  of  this  question. 
The  specific  authority  and  power  of  a  municipality  to  abolish 
grade  crossings  is  conferred  by  an  act  passed  May  2,  1902  (95  0. 
L.,  356).  Sections  1  and  7  of  this  act  are  perhaps  all  that  are 
material  to  the  question  under  consideration.  Section  1  (Re- 
vised Statutes,  3337-17a)  says: 

"Any  municipal  corporation  may  raise  or  lower,  or  cause  to 
be  raised  or  lowered,  the  grade  of  any  street  or  way  above  or  be- 
low any  railroad  tracks  therein,  and  may  require  any  railroad 
company  operating  a  railroad  in  such  municipality  to  raise  or 
lower  .the  grade  of  its  tracts  and  may  construct  ways  or  cross- 
ings above  the  tracks  of  any  railroad,  or  require  the  railroad 
company  to  construct  ways  or  crossings  that  are  to  be  passed 
under  its  tracks,  whenever,  in  the  opinion  of  the  council,  board 
of  legislation,  or  other  legislative  body,  the  raising  or  lowering 
of  the  grade  of  any  sueh  railroad  tracks,  or  the  raising  or  low- 
ering or  construction  of  such  ways  or  crossing  may  be  necessary, 
upon  the  terms  and  conditions  hereinafter  set  forth  in  this  act." 

The  intervening  sections  make  provisions  for  determining  what 
is  to  be  done  and  how  it  is  to  be  done,  and  perhaps  the  cost  of 
it,  and  so  on.  Then  Section  7  (Revised  Statutes,  3337-17fl) 
provides : 

"For  the  purpose  of  raising  the  money  to  pay  the  proportion 
of  the  cost  of  such  improvement  payable  by  the  municipality," 
which  I  believe  is  fixed  at  one-half  of  the  entire  cost,  "the  bonds 
of  the  municipality  may  be  issued  to  the  necessary  amount,  which 
bonds  shall  be  of  such  denomination  and  payable  at  such  place 
and  times  as  the  council,  board  of  legislation  or  other  legislative 
body  may  determine,  and  shall  bear  interest  not  exceeding  4  per 
cent,  per  annum,  and  shall  not  be  sold  for  less  than  their  par 
value.  A  tax  on  the  taxable  property  of  the  municipality  in  ad- 
dition to  all  other  levies  now  allowed  by  law  may  be  levied  to 
pay  the  principal  and  interest  of  the  bonds  as  the  same  may 
mature." 

It  provides  for  a  levy  to  raise  money  to  make  repairs.  Does 
the  language  in  Section  2835,  Revised  Statutes,  fairly  em- 
brace what  is  provided  for  in  the  act  for  abolishing  grade  cross- 


280  CUYAHOGA  COUNTY  COMMON  PLEAS. 

Cleveland  v.  Cleveland  et  ml.  [Vol.  XI,  N.  a 

ingsf  The  act  for  abolishing  grade  crossings  contemplates  the 
procurement  of  land,  which  is  necessary  to  make  approaches  to  it 
and  over  the  crossings. 

Subdivision  22  of  Section  2835,  Revised  Statutes,  in  the 
enumeration  of  purposes  which  will  come  within  the  operation  of 
this  section,  says: 

"For  resurfacing,  repairing,  or  improving  any  existing  street 
or  streets  as  well  as  other  public  highways." 

Subdivision  1  says: 

"For  procuring  the  real  estate  and  right  of  way  for  any  im- 
provement authorized  by  this  section,  or  for  purchasing  real 
estate  with  a  building  or  buildings  thereon,  to  be  used  for  pub- 
lic purposes." 

I  think  these  two  subdivisions  I  have  read  embrace  the  elim- 
ination of  grade  crossings,  for  that  is  certainly  an  improvement 
of  the  streets. 

Subdivision  22  says; 

"For  improving  any  existing  street  or  streets." 

In  the  act  providing  for  it,  the  abolishing  of  grade  crossings  is 
uniformly  referred  to  as  a  street  improvement.  The  word  "im- 
provement" being  used  twenty-two  tiroes  in  five  sections  of  the 
act.  I  do  not  know  that  that  has  much  significance.  It  is  the 
nature  of  the  work  that  determines  it,  not  the  use  of  terms. 

Certainly  the  elimination  of  grade  crossings  in  the  streets  of  a 
municipality  is  an  improvement  of  the  municipal  highway.  It 
would  not  be  authorized  if  it  were  not — I  suppose  it  could  not  be 
authorized  if  it  were  not. 

It  is  true  that  the  power  to  eliminate  grade  crossings,  and  the 
limitation  upon  the  incurring  of  indebtedness  are  found  in 
separate  enactments,  but  the  statute  limiting  the  authority  to 
borrow  money,  was  enacted  first,  and  was  in  existence  when  the 
other  act  was  passed. 

The  embodiment  of  Section  2835,  Revised  Statutes,  in  the  mu- 
nicipal code,  did  not  eliminate  it  from  the  general  statute,  but 
left  it  standing  and  operative  as  an  integral  part  of  the  Revised 
Statutes  of  the  state. 

As  said  by  Judge  Mathers,  in  the  case  already  quoted  from, 


NISI  PRIUS  REPORTS— NEW  SERIES.  261 

1S0S.]  McCabe  v.  From  et  al. 

we  must  not  confuse  the  power  conferred  to  make  an  improve- 
ment, with  the  power  conferred  to  adopt  the  means  to  pay  for 
.  the  improvement. 

Section  2835,  Revised  Statutes,  is  generic  and  general  in  that 
it  empowers  the  city  within  a  fixed  limitation,  to  borrow  money 
for  about  sixty  different  purposes.  The  act  empowering  the 
city  to  abolish  grade  crossings  is  specific  in  that  it  empowers  ths 
city  to  do  one  of  the  thnigs  embraced  in  the  generic  terms  of 
Section  2835,  Revised  Statutes.  The  specific  is  embraced  in  the 
generic,  and  is  subject  to  its  provisions  and  limitations,  since  the 
two  are  not  inconsistent,  and  the  specific  does  not  stand  as  an 
exception  to  the  general,  as  I  have  heretofore  pointed  out. 

I  find  that  the  outstanding  issue  of  bonds  in  the  sum  of  $1,- 
250,000  is  within  the  operation  of  the  Longworth  act,  and  must 
be  included  in  computing  the  net  indebtedness  of  the  city  under 
that  act.  I  find  that  the  proposed  issue  of  $290,000  is  likewise 
within  the  operation  of  said  act,  and  since  it  is  conceded  that 
such  inclusion  of  said  outstanding  issue  brings  the  net  indebted- 
ness of  the  city  up  to  the  limit  of  4  per  cent,  it  follows  that  the 
proposed  issue  can  not  be  legally  made  unless  first  authorized  by 
a  vote  of  the  electorate  of  the  city. 

The  demurrer  to  the  petition  is,  for  these  reasons,  overruled. 


IMPLIED  RESERVATION  OF  EASEMENT. 

Common  Pleas  Court  of  Franklin  County. 
James  McCabe  v.  Charles  H.  Fross  et  al. 
Decided,  April  13.  1908. 
Eatements-  Implied  Reservation  of — BricJfc  Walk  Leading  to  Side  En- 
trance not  a  Necessity— Question  of  Necessity  Determinable  from 
Circnmstances. 
1.  Ad  Implied  reservation  of  an  easement  by  a  grantor  in  lands  granted 
to  another,  wblch  la  beneficial  to  the  grantor  and  Injurious  to  bis 
grantee  and  could  well  have  been  guarded  against  by  specific  reser- 
vation, must  be  founded,  under  the  rule  of  construction  that  a 
grantor  can  not  derogate  from  bis  own  grant,  upon  a  real  and 
reasonable   necessity    determinable   by  the   court   from   the   facts 
and  clrcumBtancea  of  each  case. 


262  FRANKLIN  COUNTY  COMMON  PLEAS. 

McCabe  v.  Fross  et  al.  [Vol.  VII,  N.  B. 

2.  In  a  closely  built  city  where  bouses  are  commonly  placed  side  by 
Bide  with  adjoining  walls,  a  aide  entrance  to  a  residence  having 
the  [nil  width  thereof  open  on  the  street  In  front  and  an  alley  In 
the  rear,  la  simply  an  additional  convenience,  not  amounting  to* 
such  a  necessity  as  will  Imply  a  reservation  of  an  easement  in  a 
brick  walk  leading  to  such  entrance  on  an  adjoining  lot  conveyed 
by  grantor  without  any  reservation  In  bis  deed  of  such  right  to  the 
grantee. 

Marriott,  Belcher  &  Connor,  for  plaintiff. 

Safer,  Seymour  cS  Safer,  contra. 

Dillon,  J. 

The  plaintiff  is  the  owner  of  lot  No.  374  of  Collins  et  al's  ad- 
dition to  the  city,  on  which,  is  a  seven-room  frame  house,  known 
as  No.  1102  Michigan  avenue.  The  defendants  are  the  owners 
of  lot  No.  375  which  adjoins  this  property  on  the  south.  These 
two  lots  in  1872  were  owned  by  one  Hilihouse,  but  in  1877  he 
conveyed  the  lota  to  one  Henderson.  At  the  time  of  this  con- 
veyance, according  to  the  evidence  of  Henderson's  widow,  there 
was  a  house  and  a  barn  upon  the  lot  now  owned  by  the  plaint- 
iff and  there  was-at  that  time  a  brick  walk  about  three  feet  wide 
on  the  south  side  of  said  house,  being  located  upon  lot  No.  375. 
then  vacant,  and  which  has  since  been  purchased  by  the  defend- 
ants. Henderson  and  his  widow  continued  to  occupy  said  prem- 
ises and  to  own  both  lots  until  1897,  when  he  conveyed  lot  No. 
375  by  a  general  warranty  deed  to  one  Fielding,  and  by  mesne 
conveyances  since  that  time  and  by  warranty  deeds  the  defend- 
ants became  the  owners  of  said  lot  No.  375  in  December,  1907, 
and  erected  a  brick  dwelliDg  thereon.  The  brick  walk  continued 
to  be  used  by  Henderson  and  later  on  by  the  plaintiff  during 
all  the  time  mentioned.  The  defendant  is  about  to  close  the 
same  and  exercise  exclusive  ownership  over  it.  There  is  no  con- 
tention as  to  the  fact  that  the  brick  walk  is  not  upon  the  plaint- 
iff's land  at  all,  but  is  on  defendant's  lot  No.  375,  and  plaintiff's 
claim  is,  that  he  has  an  easement  over  the  same  which  remains 
as  an  appurtenant  to  his  lot  No.  374,  the  claim  being  that  the 
said  easement  exists  by  necessary  implication  for  a  reasonable 
use  of  his  lot.  The  plaintiff's  residence  is  of  the  usual  kind 
fronting  upon  the  street  anil  the  lot  runs  to  the  rear  where  it  has 
an  entrance  on  an  alley.     The  plaintiff  asks  for  a  temporary 


NISI  PEIUS  REPORTS— NEW  SERIES.  283 

1908.]  HcCabe  v.   Fross  et  al. 

restraining  order  and  upon  final  hearing  that  the  injunction 
against  the  closing  of  said  three-foot  strip  be  made  permanent. 

The  fact  that  the  continuous  use  and  occupation  of  this  three- 
foot  strip  was  made  by  the  owner,  Henderson,  up  to  the  year 
1897,  when  he  was  the  owner  of  both  lots,  disposes  of  any  claim 
which  might  be  made  of  a  title  by  adverse  possession,  and  the 
plaintiff's  claim  is  based  solely  upon  an  implied  reservation  of 
Henderson  when  he  deeded  away  lot  No.  375.  There  seems  to 
be  no  dispute  between  counsel  or  courts  that  a  continuous  and 
apparent  easement  or  quasi  easement  is  impliedly  reserved  where 
it  is  apparently  and  reasonably  necessary  to  {he  enjoyment  of 
the  property  retained.  Many  courts  make  a  distinction,  how- 
ever, holding  that  the  easement  is  reserved  by  implication  in 
the  case  of  a  grant,  only  when  it  is  strictly  necessary  to  .the  en- 
joyment of  the  property  retained ;  this  rule  being  founded  on 
the  principle  that  a  grantor  shall  not  derogate  from  his  own 
grant.  And  the  reasoning  is  strong,  that  when  a  man  grants  a 
thing  he  must  be  considered  as  granting  that  which  is  necessary 
in  the  proper  sense  of  the  word  for  the  enjoyment  of  that  which 
he  grants  and  he  can  not  derogate  from  his  own  grant;  he  can 
not  do  that  which  will  destroy  or  render  less  effectual  that  which 
he  has  granted.  But  the  doctrine  involved  here  pertains  to  a 
reservation  which  stands  on  a  little  different  principle,  it  being 
the  policy  of  the  law  that  the  grantor  may  reserve  to  himself  in 
entirety  that  which  may  be  beneficial  to  him  but  which  may  he 
most  injurious  to  his  grantee  and  which  he  could  well  have 
guarded  against  in  his  grant  by  making  a  specific  reservation. 
Thus  it  is  said  that  the  grantee  may  take  the  language  of  a  deed 
most  strongly  in  his  favor,  the  law  implying  an  easement  in  his 
favor  more  readily  than  it  will  in  favor  of  a  grantor,  and  this 
distinction  may  possibly  explain  some  of  the  apparent  incon- 
sistencies in  the  application  of  the  doctrine  as  we  find  it  in  the 
reported  cases.  Some  courts  have  held  that  the  implied  right- 
of-way  or  easement  must  be  one  of  real  necessity;  others  adopt 
the  holding  of  Moore  v.  Crosc,  43  Ind.,  30,  which  holds  that  the 
way  must  be  "essentially"  necessary. 

The  Ohio  rule  if  formulated  into  one  at  all  would  be  based 
upon  the  case  of  National  Exch.  Bank  v.  Cunningham,  46  Ohio 


284  FRANKLIN  COUNTY  COMMON  PLEAS. 

McCabe  v.  Ftobb  et  al.  [Vol.  VII,  N.  8. 

St.,  575,  and  the  two  cases  of  Baker  v.  Rice,  56  Ohio  St.,  463, 
and  Meredith  v.  Frank,  56  Ohio  St.,  479,  and  that  rale  I  would 
easily  deduce  to  he,  that  the  necessity  must  not  only  be  a  real 
necessity  but  also  a  reasonable  necessity.  Just  what  consti- 
tutes a  reasonable  necessity  and  real  necessity  it  has  been  over 
and  over  again  held  by  the  courts  must  depend  upon  the  facts 
and  circumstances  as  presented  by  each  case.  It  would  be  im- 
possible for  a  court  to  determine  the  exact  degree  of  necessity 
that  ought  to  be  required  to  support  the  right  to  the  easement. 
In  the  case  at  bar  we  must  concede  that  the  house  and  lot  of 
the  plaintiff  without  this  easement  did  have  an  opening  upon 
the  street  the  full  width  of  the  house  and  a  like  opening  upon 
the  back  of  the  lot  at  the  alley.  This  is  not  at  all  uncommon. 
Hundreds  and  even  thousands  of  houses  perhaps  in  this  city 
alone  are  built  side  by  side  with  walls  adjoining  and  have  no 
side  entrance  from  the  front  at  all.  The  necessity,  therefore, 
for  this  easement  is  not  such  a  necessity  as  is  recognized  in  law 
as  amounting  to  an  implied  reservation  of  an  easement.  It  is 
simply  an  additional  convenience,  and  no  cases  can  be  found 
which  will  imply  the  reservation  as  against  a  distinct  and  un- 
qualified grant  of  any  such  easement  as  a  matter  of  convenience 
nor  because  it  will  be  more  convenient  to  have  such  a  right-of- 
way  than  without  it.  It  was  clearly  within  the  power  of  the 
former  owner  of  both  these  lots  to  have  deeded  away  the  full  lot 
and  he  could  scarcely  have  used  any  language  different  from 
that  in  the  deed  in  doing  so;  the  grantee,  therefore,  was  not 
bound  by  any  apparent  or  obvious"  necessary  right-of-way  to 
anticipate  this  burden  upon  his  property  and  I  find  no  cases 
which  have  held  a  reasonable  necessity  to  apply  to  a  case  of  this 
kind.  There  is  no  reference  to  such  a  reservation  in  the  deed 
itself  and  the  situation  is  not  one  which  falls  within  any  other 
cases  cited  by  counsel  for  plaintiff  or  which  the  court  has  been 
able  to  find.  And  having  reference  to  the  manner  of  building 
residences  in  the  eity  it  would  be  unnatural  and  strained  in- 
deed for  a  court  to  hold  that  the  three-foot  brick  walk  was  im- 
pliedly reserved  in  the  absolute  warranty  deed  made  of  the 
same  to  another  person.  The  application  for  a  temporary  re- 
straining order  must  therefore  be  denied. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Railway  r.  Baum. 


JURISDICTION  Of  JUSTICES  OF  THE  PEACE  OVER  FOREIGN 
RAILWAY  CORPORATIONS. 

Common  Fleas  Court  of  Hamilton  County. 

The  Northern  Pacific  Railway  Co.  v.  Jacob  Bauh. 

Decided,  July,  1908. 

Justices  of  the  Peace— Jurisdiction  of — Over  Foreign  Railway  Corpora- 
tions in  Attachment — Publication  of  Summons — Sections  6477, 
6478,  6489  and  6496. 

A  Justice  of  the  peace  may  obtain  Jurisdiction  by  publication  over  a 
foreign  railway  corporation,  whose  president  does  not  reside  In 
the  township  and  whose  road  does  not  enter  the  township  and 
which  can  not  be  served  with  process  under  Section  8498.  Squire 
v.  Railway,  1  C.  C— N.  S.,  354,  not  followed. 

Harmon,  Colston,  Goldsmith  &  Hoadly,  for  plaintiff  in  error. 
Joseph  B,  Derbes  and  Victor  Abraham,  contra. 

Swing,  J. 

The  plaintiff  in  error,  the  Northern  Pacific  Railway  Company, 
is  a  foreign  corporation  foreign  to  the  state  of  Ohio,  and  has  no 
railroad  located  in  Ohio,  and  the  president  of  the  company 
does  not' reside  in  Ohio.  The  defendant,  Jacob  Baum,  doing 
business  as  J.  Baum  Safe  &  Lock  Co.,  at  Cincinnati,  Hamilton 
county,  Ohio,  commenced  an  action  in  1907  before  a  justice  of 
the  peace  in  and  for  Cincinnati  township,  Hamilton  county, 
Ohio,  against  the  said  the  Northern  Pacific  Railway,  to  recover 
the  sum  of  $21,  and  filed  an  affidavit  in  attachment.  Sum- 
mons was  issued  and  an  order  of  attachment,  and  the  summons 
was  served  upon  an  alleged  agent  of  the  company,  no  other 
officer  being  found  in  Hamilton  county,  Ohio,  and  the  order 
of  attachment  was  levied  on  certain  properties  of  the  said  the 
Northern  Pacific  Railway  Company  found  in  said  Cincinnati 
township. 

A  motion  was  made  by  the  Northern  Pacific  Railway  Com- 
pany before  the  justice  of  the  peace  to  set  aside  the  service  of 


2W  HAMILTON  COUNTY  COMMON  PLEAS. 

Railway  v.  Banm.  [Vol.VII.N.S. 

summons  and  toe  levy  in  attachment,  and  upon  hearing  thereof 
the  justice  of  the  peace  sustained  the  motion  to  set  aside  the 
service  of  summons,  but  overruled  the  motion  to  set  aside  the 
levy  and  attachment,  holding  that  said  railway  company  might 
be  sued  in  an  attachment  proceeding,  notice  being  given  by 
publication  as  in  other  cases  of  non -residents. 

The  railway  company  filed  a  petition  in  error  in  this  court 
to  reverse  the  judgment  of  the  justice  of  the  peace  in  overruling 
the  motion  to  set  aside  the  levy  and  attachment.  It  is  claimed 
by  the  plaintiff  in  error  that  the  justice  of  the  peace  had  no 
jurisdiction  in  this  case  to  entertain  the  action,  even  in  attach- 
ment, against  the  Northern  Pacific  Railway  Company,  for  the 
reason  that  under  the  law  of  Ohio  suit  can  not  be  brought 
against  a  railway  company  before  a  justice  of  the  peace,  whether 
it  be  a  foreign  or  a  domestic  corporation,  the  president  of  which 
does  not  reside  in  the  township  or  the  road  of  which,  whether 
owned  or  leased,  does  not  go  through  the  township.  It  is 
claimed  that  in  this  respect  railway  companies  are  in  a  differ- 
ent situation  under  our  statutes  from  other  corporations  or 
persons. 

Section  6478  of  the  Revised  Statutes  of  Ohio,  as  to  actions 
before  justices  of  the  peace  against  railroad  companies,  is  in 
part  as  follows: 

"Section  6478.  [Suits  before  justices  of  the  peace  against 
railway  companies;  process;  upon  whom,  and  when,  and  how 
service  or  process  may  be  made;  when  summons  to  be  issued  to 
sheriff,  and  how  served  and  returned.]  Suit  may  be  brought 
before  a  justice  of  the  peace  against  any  railroad  company  in 
the  township  in  which  the  president  of  the  company  may  reside. 
or  in  any  township  in  which  or  through  which  the  road  owned 
or  leased  by  said  company  may  be  located,  whether  sueh  com- 
pany be  foreign  or  created  under  the  laws  of  this  state,  and 
whether  the  charter  thereof  prescribes  the  place  where  suits 
must  be  brought  against  it,  or  the  manner  or  place  of  service 
or  process  thereon,"  etc. 

The  contention  of  the  plaintiff  in  error  is  that  this  section. 
6478,  is  the  only  section  of  our  statute  which  gives  jurisdiction 
to  justices  of  the  peace  to  entertain  an  action,  whether  it  be  in 


NISI  PRIUS  REPORTS— NEW  SERIES.  267 

1908.]  Railway  v.  Baum. 

attachment  or  not,  against  a  railway  company,  whether  foreign 
or  domestic;  and  that  the  provisions  of  such  sections  as  to 
service  and  summons  are  the  only  provisions  of  our  law  appli- 
cable to  actions  before  justices  of  the  peace  against  railway 
companies;  and  that  there  is  no  provision  of  our  statutes  giving 
to  justices  of  the  peace  jurisdiction  in  an  action  against  a  for- 
eign railway  corporation  which  ean  not  be  served  with  summons 
in  pursuance  of  Section  6478.  In  support  of  their  contentions 
they  cite  the  case  of  North  v.  The  Cleveland  &  Mahoning  Rail- 
road Co.,  10  0.  S-,  548.     In  that  case  it  is  said  by  the  court :    - 

"In  an  action  brought  against  the  railroad  company  before 
a  justice  of  the  peace  the  mode  of  service  of  summons  upon  the 
company  prescribed  by  the  act  of  March  21st,  1850,  directing 
the  manner  of  serving  mesne  process  against  railroad  companies 
(Curwen's  Statutes,  1538}  is  exclusive  of  any  and  all  other 
modes.  The  mode  for  the  service  of  summons  upon  corporations 
in  actions  brought  against  them  before  a  justice  of  the  peaee 
prescribed  in  the  fifteenth  section  of  the  act  of  March  14th, 
1853,  of  the  Jurisdiction  and  Procedure  for  Justices  of  the 
Peace,  etc.  (Curwen's  Statutes,  2055)  is  not  applicable  in  suits 
against  railroad  companies." 

This  decision  does  clearly  hold  that  the  provisions  of  the 
statutes  for  the  service  of  summons  upon  corporations  generally, 
are  not  applicable  to  an  action  against  a  railway  corporation 
before  a  justice  of  the  peace.  No  question,  however,  involving 
the  service  in  an  attachment  was  raised  or  determined.  But  in 
the  case  of  Squire  v.  Wheeling  &  Lake  Erie  Railroad  Co.,  25 
O.  C.  C,  Lucas  County  (1  C.  0.— N.  S.,  354),  it  is  held  as  fol- 
lows : 

Syllabus.  "  [Jurisdiction  of  justices  of  the  peace  in  actions 
against  railroad  companies.]  The  jurisdiction  of  justices  of  the 
peace  in  actions  against  railway  companies  is  defined  and  lim- 
ited by  Section  6478,  Revised  Statutes,  which  provides  that  such 
an  action  may  be  brought  before  a  justice  of  the  peace  in  the 
township  in  which  the  president  of  the  company  may  reside,  or 
in  any  township  in  which  or  through  which  the  road  owned  or 
leased  by  such  company  may  be  located." 


268  HAMILTON  COUNTY  COMMON  PLEAS. 

Railway  v.  Baum.  [Vol.  VII,  N.  S. 

Section  384,  Revised  Statutes,  which  provides  that  where  a 
summons  issued  by  a  justice  of  the  peace  against  a  leaseholder 
or  freeholder  resident  of  the  county  accompanied  with  an  order 
to  attach  property  the  jurisdiction  of  which  is  co-extensive  with 
the  county,  does  not  include  railway  companies;  hence  a  justice 
of  the  peace  has  no  jurisdiction  of  the  action  against  a  railway 
company  whose  road  does  not  enter  the  township  and  whose 
president  is  not  a  resident  therein,  although  the  summons  in  the 
action  is  accompanied  by  an  order  of  attachment. 

The  court  says  in  the  report  of  the  case,  which  is  brief  (page 
355): 

"The  railroad  company  Bled  its  petition  in  error  in  the  court 
of  common  pleas  to  reverse  such  judgment  (the  judgment  of  the 
justice  of  the  peace)  on  the  ground  that  the  justice  of  the  peace 
had  no  jurisdiction  over  it ;  and  in  the  petition  in  error,  which 
was  verified,  set  forth  the  facts,  namely,  that  its  line  of 
railroad  did  not  enter  into  Washington  township,  that  it  had 
no  officer  and  no  office  there,  and  the  judgment  was  reversed  by 
the  common  pleas  court." 

The  court  further  say : 

"We  are  of  opinion  that  the  judgment  of  the  court  of  com- 
mon pleas  was  right,  and  it  will  be  affirmed." 

Here  it  is  clearly  held  that  a  justice  of  the  peace  has  no  juris- 
diction in  any  action  against  a  railway  company,  whether  in  at- 
tachment or  not,  if  the  president  of  the  company  does  not  reside 

n  the  township  or  if  the  road  of  the  company  does  not  enter  into 
the  township.     If  this  be  the  law  the  contention  of  the  plaintiff 
error  in  this  case  is  correct. 
At  the  conclusion  of  the  argument  of  this  case  and  in  consider 

ng  the  case  for  some  time  afterward,  I  was  disposed  to  follow  the 
decision  of  the  Circuit  Court  of  Lucas  County  just  quoted,  but 
upon  further  consideration  I  could  not  but  doubt  the  correctness 
of  that  decision.  While  Section  6478,  Revised  Statutes,  is  as 
above  set  forth,  in  Section  6489,  Revised  Statutes,  in  the  same 
chapter  relating  to  the  commencement  of  actions  and  process 
before  justices  of  the  peace,  provision  is  made  for  attachments 
as  follows : 


NISI  PRIUS  REPORTS— NEW  SERIES.    .        209 
1908.]  Railway  v.   Baum. 

"Section  6489.  The  plaintiff  shall  have  an  order  of  attach- 
ment against  any  property  of  the  defendant  except  as  hereinafter 
provided,  in  a  civil  action  before  a  justice  of  the  peace  for  the 
recovery  of  money,  before  or  after  the  commencement  thereof, 
when  there  is  filed  in  his  office  an  affidavit  of  the  plaintiff,  his 
agent  or  attorney,  showing  the  nature  of  the  plaintiff's  claim, 
that  it  is  just,  the  amount  the  affiant  believes  the  plaintiff  ought 
w  recover,"  etc. 

Also  the  existence  of  some  one  or  more  of  the  following  par- 
ticulars. 1st.  That  the  defendant,  or  one  or  several  defendants, 
is  a  corporation  having  no  officer  upon  whom  a  summons  can  be 
served,  or  place  of  doing  business  in  the  county,  or  is  a  non- 
resident of  the  county. 

Section  6496,  Revised  Statutes,  on  the  same  subject,  is  as  fol- 
lows: 

"Section  6496.  [Sow  order  served  upon  the  company  with 
summons;  proceedings  if  summons  can  not  be  served.]  If  an 
order  of  attachment  is  made  to  accompany  the  summons,  a  copy 
thereof  and  the  summons  shall  be  served  upon  the  defendant  in 
the  usual  manner  for  the  service  of  the  summons,  if  the  same  can 
\te  done  within  the  county;  and  when  any  property  of  the  de- 
fendant has  been  taken  under  the  order  of  attachment,  and  it 
shall  appear  that  the  summons  issued  in  the  action  has  not  been 
and  can  not  be  served  on  the  defendant  in  the  county  in  the  man- 
ner prescribed  by  law,  the  justice  of  the  peace  shall  continue  the 
cause  for  a  period  not  less  than  forty  nor  more  than  sixty  days; 
whereupon  the  plaintiff  shall  proceed  for  three  consecutive  weeks 
to  publish  in  some  newspaper  in  the  county,"  etc. 

Upon  careful  consideration  of  these  sections  of  our  statutes  I 
am  not  able  to  see  why,  in  an  attachment  case,  they,  Sections 
6489  and  6496,  should  not  apply  as  well  in  an  action  against  a 
railway  company  coming  within  the  provisions  of  Section  6478  as 
against  any  other  corporations.  To  be  sure,  Section  6478  pro- 
vides the  particular  manner  in  which  service  of  process  must  be 
made  in  an  action  before  a  justice  of  the  peace  against  a  rail- 
way company  and  Section  6477  provides  a  different  manner  of 
service  of  summons  against  other  corporations  in  an  action  be- 
fore a  justice  of  the  peace;  but  both  sections  are  followed  by 
the  attachment  sections — 6489  and  6496. 


HAMILTON  COUNTY  COMMON  PLEAS. 


In  Champion  Machine  Company  v.  Button  et  al,  24  0.  S.,  503, 
it  is  said :  « 

"A  domestic  corporation  may  be  proceeded  against  by  attach- 
ment before  a  justice  of  the  peace  under  Section  28  of  the  jus- 
tice's act  in  a  county  of  this  state  where  it  has  no  office  or  place 
of  business,  upon  the  ground  that  it  is  a  non-resident  of  such 
county. ' ' 

In  Railroad  Company  v.  Morey,  47  O.  S.,  207,  it  is  said  in  the 
syllabus : 

"Section  5027,  Revised  Statutes,  prescribing  the  counties 
within  which  a  railroad  company  may  be  sued,  relates  solely  to 
the  jurisdiction  of  the  person,  and  it  is  not  necessary  that  the 
petition  should  state  that  its  road  passes  to  or  through  the  coun- 
ty where  the  action  is  brought.  A  railroad  company,  like  a  nat- 
ural person,  submits  itself  to  the  jurisdiction  of  the  court  by  .ap- 
pearing for  any  other  purpose  than  to  object  to  submit  to  such 
jurisdiction." 

The  court  in  the  opinion,  page  210,  say : 

"Section  5027  provides  that  an  action  against  a  railroad  com- 
pany may  be  brought  in  any  county  through  or  into  which  such 
road  passes.  This  section  like  the  other  sections  of  Chapter  5 
of  the  Code  of  Civil  Procedure  that  merely  prescribes  the  county 
in  which  a  defendant  may  be  sued,  relates  only  to  the  jurisdic- 
tion over  the  person.  Neither  a  railroad  company  nor  other 
corporation,  nor  even  a  natural  person,  is  bound  to  appear  in  an 
action  in  obedience  to  a  summons  served  out  of  the  prescribed 
county.  It  is  a  privilege,  however,  that  is  personal  and  may 
be  waived,  and  this  court  has  uniformly  held  that  a  defendant 
by  appearing  in  eourt  and,  without  objecting  to  its  jurisdic- 
tion over  its  person,  invoking  any  action  in  the  cause,  waives  this 
privilege  and  submits  its  person  to  the  jurisdiction  of  the  court." 

Section  5027  is  not  a  part  of  the  justice  of  the  peace  act,  but 
I  think  the  principle  is  applicable  to  this  case.  I  can  not  think 
that  Section  6478,  Revised  Statutes,  can  be  construed  to  deprive 
a  justice  of  the  peace  of  jurisdiction  over  the  subject-matter  of 
an  action  against  a  foreign  railway  company  whose  president 
does  not  reside  in  the  township  or  whose  road  does  not  enter  the 
township ;  but  as  in  Railroad  Co.  v.  Morey,  the  railroad  company 


NISI  PBIUS  REPORTS— NEW  SERIES.  271 

1308.]  Railway  v.  Baum. 

is  not  bound  to  appear  in  an  action  in  obedience  to  a  summons 
issued  by  a  justice  of  the  peace  in  a  township  in  which  the  presi- 
dent does  not  reside  or  into  which  the  road  does  not  enter.  I 
take  it  that  if  the  company  saw  fit  to  enter  its  appearance  it 
would  give  the  justice  jurisdiction. 

Just  so  I  am  constrained  to  think  that  a  justice  will  have  juris- 
diction under  the  attachment  statutes  where  property  of  the 
company  is  located  in  the  township  and  is  attached,  without 
having  jurisdiction  of  the  person  or  of  the  corporation  in  an  ac- 
tion under  Section  6478. 

In  the  case  of  Cartmell  v.  Rudolph  Wwtitzer  Co.,  Logan  Coun- 
ty Common  Pleas,  Weekly  Law  Bulletin  March  7th,  1898,  No. 
9,  page  380,  it  is  said  in  the  syllabus: 

"Attachment  of  foreign  corporations  before  a  justice  of  the 
peace  under  Revised  Statutes  6489,  which  is  amendatory  of 
Section  28  of  the  Justice's  act,  S.  &  C,  766,  foreign  corpora- 
tions may  be  proceeded  against  before  justices  of  the  peace  the 
same  as  domestic  corporations,  but  subject  to  like  statements 
in  the  affidavit  that  such  corporation  has  no  officer  in  the  county 
upon  whom  summons  may  be  served,  or  no  place  of  doing  business 
within  the  county." 

This  decision  applies  to  foreign  corporations  other  than  rail- 
way corporations,  but  I  am  not  able  to  see  why  the  same  thing 
may  not  be  said  as  well  of  foreign  railway  corporations  as 
of  others.  I  am  constrained,  therefore,  contrary  to  my  first 
impression  gathered  from  the  decision  of  the  Lucas  County 
Circuit  Court,  supra,  to  hold  that  in  an  attachment  case  the 
justice  of  the  peace  has  jurisdiction  against  a  foreign  rail- 
way company  whose  president  does  not  reside  in  the  township, 
and  whose  road  does  not  enter  the  township,  and  which  com- 
pany can  not  be  served  with  process  under  Section  6478. 


272  SUPERIOR  COURT  OP  CINCINNATI. 

Becker  et  al  v.  Shoemaker  et  al.        I  Vol.  VII,  N.  8. 

ACCEPTANCE  Of  SURRENDER.  OP  PREMISES. 

Superior  Court  ol  Cincinnati,  General  Term. 

Charles  Becker  et  al  v.  Francis  M.  Shoemaker  et  al. 

Decided,  November  22,  1907. 

Landlord  and  Tenant — Guaranty  of  Payment  of  Rent  Passes  with  Con- 
veyance of  the  Fee — Attempt  to  Surrender  Lease— Refusal  to  Accept 
Surrender — Charge  of  Court. 

Acceptance  by  a  landlord  of  the  surrender  of  leased  premises  Is  not 
ehown  by  testimony  *hat  the  agent  of  the  landlord  called  upon  the 
lessee  for  the  key,  saying,  "I  want  to  take  somebody  up  there  to 
show  them  the  place,"  when  the  only  testimony  as  to  anything 
further  Bald  by  the  agent  at  that  or  any  other  time  was  that  he 
refused  to  accept  the  premises  and  instated  on  holding  the  leasee 
for  the  rent  for  the  remainder  of  the  term  of  the  lease. 

Albert  Bettinger,  for  plaintiffs  in  error. 

Charles  B.  WUby,  contra. 

Woodmansee,  J.;  Hofpheimer,  J.,  and  Swing,  J.,  concur. 

This  suit  was  filed  to  recover  rent  upon  a  written  lease  for  a 
term  of  five  years.  It  is  sought  to  hold  certain  defendants  for 
the  rent  upon  a  written  guarantee  that  was  given  to  the  lessor 
Qt  the  time  of  making  the  lease.  The  tenant  left  the  premises  at 
the  end  of  three  years  and  this  suit  is  to  recover  rent  for  the 
remainder  of  the  term  from  the  tenant  and  his  guarantors. 

The  record  discloses  that  the  original  lessor  sold  the  premises 
subject  to  the  lease  to  the  defendants  in  error.  The  guarantors 
demurred  to  the  petition  on  the  ground  that  the  guaranty  did 
not  pass  to  the  defendants  in  error  by  the  conveyance  of  the  fee, 
but  we  hold  with  the  trial  judge  that  it  did  and  that  there  was 
no  error  in  overruling  the  demurrer. 

An  amended  answer  was  filed  and  plaintiff  demurred  to  the 
seeond  defense,  which  was  sustained,  and  upon  motion  the  third 
defense  was  stricken  from  the  amended  answer,  in  neither  of 
which  rulings  of  the  court  do  we  find  error. 

The  case  finally  went  to  trial  upon  the  petition,  the  second 
amended  answer  and  the  reply.  Various  exceptions  were  taken 
to  the  exclusion  of  certain  testimony  offered  by  the  defendants 


NISI  PRIUS  REPORTS— NEW  SERIES.  273 

1908.]  Becker  et  al  v.  Shoemaker  et  al. 

above,  but  we  find  that  the  rulings  of  the  court  upon  the  mo- 
tions did  substantial  justice  to  both  parties. 

As  to  whether  the  court  erred  in  charging  the  jury  to  bring 
in  a  verdict  for  the  plaintiffs  below,  it  must  be  determined 
whether  there  was  a  surrender  of  the  premises  by  the  tenant 
to  the  landlord  and  whether  such  surrender  was  accepted  by 
defendants  in  error,  either  personally  or  by  their  authorized 
agents.  This  is  now  the  only  vital  issue,  for  we  hold  that  the 
testimony  does  not  disclose  an  eviction  or  any  thing  tantamount 
thereto. 

The  tenant  testified  that  he  delivered  the  key  of  the  prem- 
ises to  defendant's  authorized  agent.  The  tenant's  testimony 
admits  that  such  agent  refused  to  accept  the  key.  Later  the 
agent  got  the  key  for  the  purpose  of  showing  the  property  to 
a  prospective  tenant,  and-this  is.  claimed  as  an  acceptance  by 
.counsel  for  plaintiffs  in  error. 

But  it  must  be  conceded  that  any  such  intent  is  rebutted  by 
the  testimony  of  the  tenant  himself.  The  tenant  testifies  on 
page  31  of  the  bill  of  exceptions,  that  the  agent  when  he  called 
for  the  key,  said:  "Let  me  have  the  key;  I  want  to  take  some- 
body up  there  and  show  them  the  place."  And  the  only  testi- 
mony in  the  case  relating  to  what  was  said  by  the  agent  at  any 
time  on  this  subject  was  that  he  refused  to  aecept  the  premises 
and  insisted  on  holding  the  tenant  for  the  rent. 

Subsequent  to  this  alleged  surrender  an  agreement  was  made 
between  the  parties  that  the  landlord  should  make  an  effort  to 
secure  a  tenant,  which  effort  would  in  no  way  affect  the  rights 
of  the  parties  under  the  lease. 

We  find  that  there  was  no  testimony  disclosing  a  surrender 
of  the  premises  and  its  acceptance  by  the  owners  or  their  au- 
thorized agent,  and  the  trial  judge  therefore  properly  instructed 
the  jury  to  render  a  verdict  for  plaintiffs. 

This  being  our  view  of  the  case  all  other  errors  assigned  rela- 
tive to  the  instructions  to  the  jury,  either  in  giving  or  refusing 
to  give  certain  charges,  are  in  no  way  important,  for  the  charge 
stands  simply  as  a  direction  to  the  jury  to  find  for  the  plaint- 
iffs below. 

Judgment  affirmed. 


274  SUMMIT  COUNTY  COMMOS  PLEAS. 

Search  v.  Search.  [Vol.  VII,  N.  S. 

SERVICE  Or  SUMMONS  M  DIVORCE  CASES. 

Court  of  Common  Pleas  of  Summit  County. 

William  N.  Search  v.  Edith  J.  Search. 

Decided,  June,   1908. 

Divorce — Service  of  Summons  in  Actions  for — Publication — Sections 
50-15,  5692  and  5S93. 

In  an  action  for  divorce,  where  the  defendant  1b  a  resident  of  thin 
state,  a  copy  of  the  petition  must  be  served  upon  him  with  the 
summons;  If  be  is  not  a  resident  of  this  state,  and  service  Is 
sought  by  publication,  a  summons  and  a  copy  of  the  petition  must 
be  sent  to  him  In  addition  to  the  copy  of  the  publication;  but  if  the 
residence  of  the  defendant  is  unknown  to  the  plaintiff,  and  can 
not  with  reasonable  dilllgence  be  ascertained,  and  these  facts  are 
made  to  appear  to  the  court  by  affidavit  or  otherwise,  notice  of 
the  pendency  of  the  action  may  be 'given  by  publication  as  In  other 
cases,  and  the  sending  of  a  copy  of  the  petition  and  summons 
to  the  defendant  may  be  dispensed  with. 

Doyle,  J. 

This  is  an  action  for  divorce.  Defendant  at  the  time  the  ac- 
tion was  commenced  was  not  a,  resident  of  the  state  of  Ohio,  but 
her  .residence  was  known.  Service  by  publication  was  made  as  in 
other  cases,  and  a  copy  of  the  publication  mailed  to  defendant. 
No  summons  and  no  copy  of  the  petition  was  mailed  or  sent  to 
the  defendant  as  required  by  Section  5693,  Revised  Statutes. 
The  service  by  publication  was  therefore  defective  because  a 
summons  and  a  copy  of  the  petition  was  not  forthwith,  on  the 
filing  of  the  petition,  deposited  in  the  post  office,  directed  to  the 
defendant  at  her  place  of  residence. 

The  statute  providing  for  constructive  service  upon  a  defend- 
ant in  a  divorce  ease  (Section  5693)  reads  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." 

If  this  were  all  that  was  required  for  service  of  this  kind 
in  divorce  eases,  and  the  plaintiff  followed  the  provisions  of 
Section  5045  and  sections  following,  which  provide  for  construe- 


NISI  PRIUS  REPORTS— NEW  SERIES.  275 

1908.]  Search  v.  Search. 

live  service  in  other  cases,  the  court  would  have  jurisdiction  over, 
defendant  and  could  proceed  to  hear  and  determine  the  case.  But 
Section  5693  contains  further  provisions,  The  remainder  of  the 
section  reads: 

"And  unless  it  be  made  to  appear  to  the  court,  by  affidavit  or 
otherwise,  that  his  residence  is  unknown  to  the  plaintiff,  and 
could  not  with  reasonable  diligence  be  ascertained,  a  summons, 
and  a  copy  of  the  petition  shall  forthwith,  on  the  filing  of  the 
petition,  be  deposited  in  the  post  office,  directed  to  the  defend- 
ant at  his  place  of  residence." 

This  means  that  in  addition  to  sending  a  copy  of  the  publica- 
tion as  required  by  Section  5045,  in  divorce  cases,  there  shall 
also  be  sent  to  the  defendant  a  summons  and  a  copy  of  the  pe- 
tition forthwith  on  filing  the  petition. 

This  is  in  harmony  with  Section  5692  providing  for  service 
by  summons  upon  a  defendant  resident  of  this  state,  where  it 
requires  that  such  summons,  "together  with  a  copy  of  the  pe- 
tition, shall  be  served,"  etc. 

The  rules  governing  the  kind  of  notice  to  be  sent  defendant  in 
divorce  cases  are  in  brief  as  follows: 

1.  When  the  defendant  is  a  resident  of  this  state,  a  copy  of 
ike  petition  shall  be  served  on  him  with  the  summons.  Section 
5692,  Revised  Statutes. 

2.  When  the  defendant  is  not  a  resident  of  this  state,  and 
service  is  sought  by  publication,  a  summons  and  a  copy  of  ike 
petition  shall  be  sent  him  in  addition  to  the  copy  of  the  publi- 
cation.    Section  5693  and  Section  5045. 

3.  When  the  residence  o£  the  defendant  is  unknown  to  the 
plaintiff,  and  can  not  with  reasonable  diligence  be  ascertained, 
and  these  facte  are  made  to  appear  to  the  court  by  affidavit  or 
otherwise,  then  notice  of  the  pendency  of  the  action  can  be 
given  by  publication  as  in  other  eases,  and  only  in  such  instance 
can  plaintiff  dispense  with  the  sending  of  a  copy  of  the*  petition 
and  a  summons. 

The  service  in  this  case  is  therefore  set  aside  and  cause  is 
continued  for  proper  notice  to  the  defendant  of  the  pendency 
of  the  action.    Harter  v.  Barter,  5  Ohio,  318. 


276  HAMILTON  COUNTY  COMMON  PLEAS. 

In  Re  Charles  Schooler.  {Vol.  Til,  N.  a 

COMMITMENT  FOR  MISDEMEANOR.. 

Common  Pleas  Court  of  Hamilton  County. 

In  re  Charles  Sch(Rjler. 

Decided.  January  Term,  1908. 

Sentence — Authority   to  Commit    to   Work  Bouse  for  Misdemeanor — 

Habeas  Corpus— Not  Available  Because  of  Errors  Which  do  not 

Render  the  Judgment  Void— Sections  1536-369  and  1536-383. 

1.  A  police  court  baa  authority  under  the  lav  of  Ohio  to  commit  to 

the  work   house  upon   conviction   of  a  misdemeanor.      Lemmon   v. 
The  State,  11  Ohio  State,  427,  not  followed. 

2.  But  were  It  true  that  such  authority  does  not  exist,  habeas  corpus 

will  not  He  because  of  error  In  committing  the  accused  to  the 
work  house  instead  of  the  county  Jail.  ( 

Howard  D.  Burnett,  for  petitioner.  f. 

John  M.  Thomas,  Jr.,  contra. 
WoODMANSEE,  J. 

This  is  a  petition  for  a  writ  of  habeas  corpus.  The  petitioner. 
Charles  Schooler,  represents  that  he  is  illegally  restrained  and 
deprived  of  his  liberty  by  being  confined  in  the  .work  house 
located  in  the  city  of  Cincinnati,  Hamilton  county,  Ohio. 

It  is  admitted  that  Schooler  pleaded  guilty  to  the  charge  of 
loitering  in  the  police  court,  Cincinnati,  and  was  fined  $50  and  ' 
costs,  and  thereupon  was  committed  to  the  work  house  in  said 
city  until  said  fine  and  costs  are  paid. 

Counsel  for  petitioner  claims  that  the  judge  of  the  police  court 
had  no  authority  to  commit  said  Schooler  to  the  work  house, 
and  that  aaid  committment  and  sentence  are  void  and  that  he 
should  therefore  be  discharged  from  custody  by  this  court. 

Counsel  for  the  petitioner  relies  upon  the  recent  decision  of 
the  Supreme  Court  of  Ohio  in  the  case  of  Lemmon  v.  State  of 
Ohio,  which  is  reported,  46  Ohio  Law  Reporter,  209.  In  that 
case  Lemmon  had  been  committed  to  the  work  house  in  the  city 
of  Toledo,  and  according  to  the  opinion  of  the  Supreme  Court 
by  virtue  of  Section  1536-369  of  the  Revised  Statutes  of  Ohio. 

This  section  provides  that: 

"When  a  person  over  sixteen  years  of  age  is  convicted  of  an 
offense  under  the  law  of  the  state,  or  an  ordinance  of  the  mu- 


NISI  PRIUS  REPORTS— NEW  SERIES.  277 

IMS.}  In  .Re  Charles  Schooler. 

nicipal  corporation,  and  the  tribunal  before  which  the  convic- 
tion is  had  is  directed  by  law  to  eommit  the  offender  to  the 
county  jail  or  corporation  prison,  the  court,  mayor,  or  justice  of 
the  peace,  as  the  case  may  be,  shall  sentence  the  offender  to  the 
work  house,  if  there  is  such  house  in  the  county." 

The  Valentine  law,  under  which  Lemmou  was  sentenced,  pro- 
vides for  a  fine  and  imprisonment,  but  does  not  direct  as  to 
where  the  convicted  party  shall  be  imprisoned,  and  therefore 
the  Supreme  Court  in  construing  the  section  herein  referred  to, 
states  that  the  provision  of  Section  1536-369  does  not  apply  be- 
cause this  latter  section  refers  only  to  cases  where  the  court  is 
directed  by  law  to  commit. 

I  can  not  understand  why  the  Supreme  Court  in  passing  upon 
this  ease  made  no  reference  to  Section  1536-383,  which  provides 
as  follows : 

"When  a  person  has  been  convicted  of  a  misdemeanor  by 
any  court  or  magistrate  of  this  state  in  a  district  in  which  there 
is  a  work  house,  it  shall  be  competent  for  such  court  or  magis- 
trate to  sentence  such  person  to  such  work  house  for  a  period 
not  exceeding  the  maximum  period  of  confinement  in  the  jail 
of  the  county  allowed  by  statute  for  such  offenses;  and  in  all 
such  cases  the  court  or  magistrate  may  funther  order  that  such 
person  stand  committed  to  such  work  house  unt'l  the  costj  of 
prosecution  are  paid,  or  he  be  discharged  as  herein  provided ; 
and  in  all  cases  where  a  fine  may  be  imposed  in  punishment  in 
whole  or  in  part  for  an  offense  and  the  court  or  magistrate 
could  order  that  such  person  stand  committed  to  the  jail  of  the 
county  until  such  fine  and  the  costs  of  prosecution  are  paid, 
such  count  or  magistrate  may  order  that  such  person  stand  com- 
mitted to  such  work  house  until  such  fine  and  costs  are  paid." 

Our  statutes  define  a  misdemeanor  to  be  any  offense,  the 
penalty  of  which  is  less  than  punishment  in  ,the  penitentiary. 
This  Btatute  clearly  gives  to  the  court  the  authority  to  commit 
to  the  work  house,  and  it  is  not  limited  in  terms  like  Section 
1536-369,  which  means  only  such  cases  as  those  where  the  court 
is  directed  by  law  to  commit. 

The  Supreme  Court  having  made  no  reference  to  this  section 
which  I  have  quoted,  I  am  constrained  to  follow  its  plain  terms 
unless  otherwise  directed,  and  in  doing  so.  I  find  that  the  police 
court  of  Cincinnati  was  acting  clearly  within  authority  when  it 


278  HAMILTON  COUNTY  COMMON  PLEAS. 

In  Re  Charles  Schooler.  [Vol.  VII.  N.  S. 

committed  the  petitioner  to  the  work  house  located  in  Cincinnati. 

The  statute  that  was  construed  by  the  Supreme  Court  was 
passed  in  1870,  and  the  statute  under  which  I  hold  that  the 
petitioner  is  properly  committed  in  this  case  was  passed  in  1883. 

I  also  find  that  Section  68016  makes  like  provisions  for  com- 
mitment of  persons  found  guilty  of  misdemeanors  in  counties 
and  municipalities  having  no  work  house,  to  sentence  such  per- 
sons to  a  work  house  in  some  other  county  or  municipality 
after  making  proper  arrangements  therefor  as  set  out  in  said 
statute.  But  independent  of  the  construction  which  I  have 
placed  on  the  statutes  referred  to,  I  find  that  the  writ  asked 
for  herein  should  be  refused. 

If  the  police  court  under  the  statute  was  without  authority  to 
commit  to  the  work  house,  did  that  act  in  itself,  make  the  whole 
proceeding  void  and  thereby  place  the  necessity  upon  this  court  of 
discharging  the  petitioner? 

I  think  the  general  rule  is  well  established  that  if  the  court 
bad  jurisdiction  and  power  to  convict  and  sentence,  the  writ  ean 
not  issue  to  correct  mere  error.     Ex  Parte  Parke,  93  U.  S.,  23. 

In  the  cases  of  Graham  and  McDonald,  74  Wis.,  450,  the  peti- 
tioners applied  for  writs  of  habeas  corpus,  claiming  to  have 
been  sentenced  respectively  to  imprisonment  in,  the  state  prison 
for  thirteen  and  fourteen  years,  when  the  act  under  which  con- 
victions were  had  permitted  imprisonment  for  not  more  than  ten 
years  nor  less  than  three  years.     The  court  said: 

"We  deny  the  writs  for  the  reason  that  the  error  in  the  judg- 
ments does  not  render  them  void,  or  the  imprisonment  under 
them  illegal  in  that  sense  which  entitles  them  to  be  discharged 
ou  writ  of  habeas  corpus.  The  judgments  are  doubtless  erro- 
neous and  would  be  reversed  on  a  writ  of  error,  but  the  judg- 
ments are  not  void.  The  court  had  jurisdiction  of  the  persons 
or  subject-matter  or  offense,  but  made  a  mistake  in  -the  judgment. 
For  mere  error,  no  matter  how  flagrant,  the  remedy  is  not  by 
habeas  corpus.  The  law  is  well  settled  in  this  court  that  on  ha- 
beas corpus  only  jurisdictional  defects  are  inquired  into.  The 
writ  does  not  raise  questions  of  errors  in  law  or  irregularities  in 
the  proceedings." 

In  Ex  Parte  Max.  44  Cal.,  579,  Max  petitioned  to  be  discharged 
on  habeas  corpus,  because  he  was  sentenced  as  for  conviction  of 
a  felony  when  he  was  convicted  for  a  misdemeanor  merely.     His 


NISI  PBIUS  REPORTS— NEW  SERIES.  279 

1908.]  In  Re  Charles  Schooler. 

counsel  contended  the  judgment  was  absolutely  void  and  con- 
ferred no  authority  to  the  warden  to  detain  the  petitioner.  The 
court  say: 

"We  are  of  the  opinion,  however,  that  the  position  can  not 
be  maintained.  The  indictment  upon  which  judgment  is  founded 
is  sufficient  in  all  respects.  The  offense  of  the  prisoner  so  con- 
victed was  one  within  the  scope  of  the  indictment,  and  the  judg- 
ment was  one  which  the  county  court  had  authority  to  render 
upon  the  appearance  and  plea  of  the  petitioner.  These  eori- 
ditkms  constitute  jurisdiction;  all  others  involve  questions  of 
mere  error,  and  the  latter  can  not  be  inquired  into  on  writ  of 
habeas  corpus  but  only  proceedings  in  error." 

In  People  v.  Kelley,  97  New  York,  212,  an  application  was 
made  for  a  writ  of  habeas  corpus  by  a  prisoner  who  had  been 
convicted  of  an  assault  in  the  third  degree  and  sentenced  to  im- 
prisonment at  hard  labor  in  .the  state  prison  for  a  term  of  one 
year.  The  court  of  appeals  held  that  the  offense  was  a  misde- 
meanor and  punishable  only  by  imprisonment  for  not  more  than 
one  year  or  by  a  fine  of  not  more  than  five  hundred  dollars,  or 
by  both.  The  case  was  one  of  an  excessive  sentence  upon  a  valid 
conviction.  But  the  court  refused  to  discharge  the  petitioner, 
and  remanded  him  ito  the  sheriff  in  order  that  the  trial  court 
might  deal  with  him  according  to  law. 

In  Ex  Parte  Bond,  9  S.  C,  80,  the  petitioner  had  been  con- 
victed of  assault  with  intent  to  kill  and  sentenced  to  confine- 
ment in  the  penitentiary  at  hard  labor.  The  court  held  that 
the  offense  was  not  punishment  by  confinement  in  the  state 
penitentiary,  and  that  the  sentence  was  therefore  erroneous, 
but  that  it  was  not  void,  and  refused  to  discharge  the  prisoner 
on  habeas  corpus.  See,  also,-22  Kansas,  477;  32  Me.,  440;  26 
W.  Va.,  32. 

/■»  re.  Bonner,  reported  in  151  IT.  S.,  252,  is  a  well  considered 
ease  where  .the  petitioner  had  been  wrongfully  confined  in  the 
penitentiary.  The  decree  of  the  court  was  the  discharge  of  the 
petitioner  from  the  custody  of  the  warden  of  the  penitentiary, 
but  without  prejudice  to  a  re-sentence.  In  that  case  it  was 
claimed  the  sentence  and  order  were  void. 

The  decision  in  this  case  really  modifies  the  strict  rule  set  out 


280  HAMILTON  COUNTY  COMMON  PLEAS. 

In  Re  Charles   Schooler.  [Vol.  VII,  N.  S. 

by  Justice  Harlan  in  the  case  of  Mills,  reported  in  135  U.  S., 
page  263. 

I  heartily  endorse  the  following  words  from  the  decision  of 
the  Supreme  Court  of  Pennsylvania  in  the  case  of  Beale  v.  Com- 
monwealth, 25  Pa.  St.,  page  11 : 

"The  common  law  embodies  in  itself  sufficient  reason  and 
common  sense  to  reject  the  monstrous  doctrine  that  a  prisoner 
who  was  guilty  as  established  by  a  regular  verdict,  is  to  escape 
punishment  altogether  because  the  court  committed  an  error 
in  passing  the  sentence.  If  this  court  sanctioned  such  a  rule  it 
would  fail  to  perform  the  chief  duty  for  which  it  was  estab- 
lished." 

Coming  now  to  Ohio  cases,  I  quote  from  Ex  Parte  Stephen  R. 
Shaw,  7  O.  S.,  p.  81: 

"A  habeas  corpus  can  not  be  used  as  a  summary  process  to 
review  or  revise  errors  or  irregularities  in  the  sentence  of  a 
court  of  competent  jurisdiction.  Imprisonment  under  a  sen- 
tence can  not  be  unlawful,  unless  the  sentence  is  an  absolute  null- 
ity. If  clearly  unauthorized  and  void,  relief  from  imprison- 
ment may  be  obtained  by  habeas  corpus.  If  voidable  a  writ  of 
error   is  the  appropriate   remedy." 

The  court  go  on  to  say: 

"It  is  said  to  be  the  practice  in  some  parts  of  this  state  to 
use  the  writs  of  habeas  corpus  as  a  short  and  summary  mode 
of  reviewing  as  upon  a  writ  of  error  and  annulling  the  sentences 
of  court.  If  this  be  so,  it  is  an  abuse  of  .the  writ  of  habeas  corpus 
which  can  not  be  too  soon  corrected." 

Ex  Parte  Joseph  VonHagen,  25  0.  S-,  p.  426: 

"Habeas  corpus  is  not  the  proper  mode  of  redress  where  the 

relator  has  been  convicted  of  a  criminal  offense  and  sentenced 

to  imprisonment  therefor  by  a  court  of  competent  jurisdiction. 

If  error  or  irregularities  have  occurred  in  the  proceedings,  a 

writ  of  error  is  the  proper  remedy." 

I  find  as  heretofore  stated  that  the  petitioner  was  properly 
committed  to  the  work  house  in  Cincinnati.  I  further  find  that 
if   a   mistake   was  made  such   as   claimed  by   counsel   for   the 

petitioner,  in  the  sentence  of  the  court,  that  the  same  should  , 
have  been  corrected  by  proceedings  in  error,  and  that  habeas 
corpus  is  not  the  proper  proceeding. 
The  writ  is  accordingly  refused. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
State  v.  Lanlng. 


PLEAIN  ABATEMENT. 

Common  Pleas  Court  of  Huron  County, 

The  State  of  Ohio  v.  Jay  F.  Laninq. 

Decided,  August  17,  1908. 

Criminal  Law — Plea  in  Abatement  to  Indictment  Charging  Embezzle- 
ment and  Larceny — Objections  to  Grand  Jury — Claim  that  Indict- 
ment was  Secured  by  Prejudice  Misconduct  and  Conspiracy — Sec- 
tions 5164,  5165,  5168,  5171,  7202,  and  7203 — Challenges. 

1.  It  may  be  plainly  implied  from  the  language  of  Section  5168,  Re- 

vised Statutes,  that  the  number  of  persons  constituting  a  legal 
grand  Jury  Is  fifteen. 

2.  Technical  objections  to  the  Impannellng  of  a  grand  Jury  will  not  be. 

considered  after  presentment  of  the  Indictment,  or  even  on  chal- 
lenge to  the  array;  and  where  the  Jury  wheal  has  been  tilled  with 
the  proper  proportion  of  names  from  each  ward  and  township,  a 
panel  Is  not  rendered  Illegal  because  the  names  which  were  drawn 
from  the  wheel  were  largely  from  one  locality, 

3.  Inquiry  by  the  court  or  prosecuting  attorney  as  to  the  qualification 

of  grand  jurors  la  not  required,  but  does  not  prejudice  the  rights 
of  the  accused,  who  under  a  plea  In  abatement  may  show  dis- 
qualification If  any  exist  and  thus  be  relieved  from  the  indictment 

4.  It  Is  the  duty  of  the  court  to  call  the  attention  of  the  grand  jury  to 

matters  requiring  Investigation,  and  If  a  mistake  were  made  in 
that  respect  It  would  not  afford  ground  for  a  plea  In  abatement. 

6.  Neither  absence  from  th,e  jurisdiction  at  the  time  the  Investigation 
waa  made  by  the  grand  Jury,  nor  ignorance  that  an  Investigation 
was  in  progress,  afford  ground  for  a  plea  1n  abatement.  Persons 
Indicted  under  such  circumstances  must  vindicate  tbemsejves 
before  a  petit  Jury. 

G.  It  Is  Impracticable  that  the  qualifications  of  grand  jurors  should 
be  Inquired  Into  with  the  same  care  as  in  the  case  of  petit  jurors, 
and  if  It  should  happen  through  the  infirmities  of  human  nature 
tbat  a  citizen  were  wrongly  Indicted  by  a  grand  Jury  whose  qualifi- 
cations have  been  favorably  passed  upon  by  the  Jury  commission 
and  who  have  taken  the  required  oath,  his  remedy  la  not  by  a 
plea  in  abatement,  but  with  a  presumption  of  Innocence  still  at- 
tending him  he  must  rely  upon  a  judge  and  petit  Jury  to"  establish 
his  Innocence. 


282  HURON  COUNTY  COMMON  PLEAS. 

State  V.  Lanlng.  [Vol.  VII,  N.  S. 

7.  Neither  the  fact  that  one  of  the  grand  jurors  was  the  husband  of 
the  prosecuting  witness;  nor  that  other  members  of  the  grand 
Jury  were  active  outside  of  the  grand  Jury  In  seeking  evidence 
to  secure  an  Indictment;  nor  that  members  of  the  grand  Jury 
were  personal  and  political  enemies  and  business  rivals  of  the  ac- 
cused; nor  that  some  of  the  grand  Jurors  had  before  being  sworn 
expressed  hostility  to  the  accused  and  declared  Mm  guilty;  nor 
that  unsworn  statements  and  publications  were  considered  by 
the  grand  Jury,  do  not  constitute  grounds  for  quashing  an  In- 
dictment on  a  plea  in  abatement 

L.  W.  Wickham  and  S.  M.  Young,  for  plaintiff. 
A.  V.  Andrews,  Horace  Andrews,  A.  M.  Beattie,  J.  J.  Sullivan 
and  W.  M.  Koons,  for  defendant. 

Doyle,  J. 

Heard  on  demurrer  to  defendant's  plea  in  abatement. 

The  plea  recites  at  great  length  that  the  indictment  against  the 
defendant  is  the  result  of  prejudice,  and  was  accomplished  by  a 
combination  and  conspiracy  formed  with  the  design  of  falsely, 
maliciously,  oppressively  and  wickedly  indicting  him  upon  in- 
sufficient competent  evidence,  and  in  willful  disregard  of  his 
rights  and  without  regard  to  his  guilt,  by  political  and  private 
enemies  and  business  rivals.  It  is  charged  that  the  grand  jury 
which  indicted  him  was  not  selected  and  impanneled  according  to 
law;  that  some  of  the  jury  had,  previous  to  being  sworn,  ex- 
pressed hostility  to  defendant  and  declared  him  guilty  of  the 
things  for  which  they  indicted  him;  that  the  grand  jury  called 
was  lacking  in  the  requisite  quota  to  constitute  a  grand  jury, 
and  that  the  substitutes  for  the  absentees  were  selected  by  the 
judge,  who  directed  the  sheriff  to  summon  them  to  serve  as  grand 
jurors  without  issuing  summons  to  them,  they  being  called  per- 
sonally by  the  sheriff  to  serve  without  any  due  process  of  law. 

It  is  charged  further  that  the  grand  jury  were  not  impartial, 
and  that  the  talesmen  were  not  judicious  and  discreet  persons; 
that  no  inquiry  was  made  of  the  jury  as  .to  their  qualification  to 
sit  as  grand  jurors  before  being  sworn ;  that  the  grand  jury  was 
not  selected  from  the  body  of  the  county,  but  a  majority  were 
from  the  city  of  Norwalk  where  the  prejudice  was  the  greatest ; 


NISI  PRIUS  REPORTS— NEW  SERIES.  288 

1908.]  State  v.  Lanlng. 

that  the  persons  selected  as  talesmen,  during  a  recess  of  the  grand 
jury,  attended  a  secret  meeting  called  to  consider  the  defendant's 
case,  and  there  met  attorneys,  other  than  the  prosecuting  at- 
torney, for  advice,  and  there  considered  defendant's  case;  that 
unsworn  statements  of  accountants  were  considered  by  said  grand 
jury;  that  the  jurors  read  unfair  statements  published  in  the 
newspapers  and  designed  to  injure  defendant  and  bring  about 
said  indictment;  that  the  reports  from  a  meeting  of  interested 
parties  concerning  the  acts  of  the  defendant,  not  sworn  to  by  any 
person,  were  brought  to  the  attention  of  the  grand  jury;  that 
witnesses  were  taken  before  the  grand  jury  who  did  not  swear  to 
things  they  personally  knew  about,  but  to  matters  to  which  they 
had  been  instructed  to  make  oath;  that  publications  of  the  ac- 
tions of  the  Chamber  of  Commerce  of  Norwalk,  secured  by  unfair 
means,  were  brought  to  the  attention  of  the  grand  jury ;  that  one 
of  the  grand  jurors  was  the  husband  of  one  of  the  prosecuting 
witnesses;  that  defendant  was  absent  form  the  county  when 
said  grand  jury  was  convened  and  sworn  and  did  not  know  that 
he  was  to  be  charged  before  said  grand  jury  with  the  commission 
of  any  offense  and  had  no  opportunity  to  challenge  said  grand 
jury  or  the  members  thereof. 

The  first  matter  to  consider  is  whether  there  was  a  legal  grand 
jury.  The  constitution  of  this  state  provides  that  in  cases  of  this 
kind  "no  person  shall  be  held  to  answer,  •  *  *  unless  on 
presentment  or  indictment  of  a  grand  jury  *  •  •."  This, 
like  the  39th  Article  of  the  Great  Charter  requires  the  accused  to 
be  prosecuted  according  to  the  laws  of  the  land  and  by  the  legal 
judgment  of  his  peers. 

The  offense  charged  against  the  accused  in  this  case  is  one  for 
which  he  can  not  be  put  upon  trial  unless  a  grand  jury  has  first 
presented  an  indictment  against  him,  either  from  notice  taken  by 
themselves  of  the  offense  from  their  own  knowledge,  observation 
or  information,  which  is  technically  termed  a  presentment,  or  on 
a  written  accusation  laid  before  them  at  the  instance  of  the  state 
by  its  representative.  By  the  common  law  this  grand  jury  con- 
sisted of  not  less  than  twelve  nor  more  than  twenty-three,  and  a 
con«nrrence  of  twelve  was  necessary  to  return  an  indictment. 


284  HURON  COUNTY  COMMON  PLEAS. 

SUte  v.  Lanlng.  [Vol.  VII,  N.  S. 

This  was  the  number  of  the  grand  jury  in  England  and  was  the 
common  law  on  the  subject  at  the  time  of  the  separation  of  the 
Colonies  from  Great  Britain. 

Unless  altered  by  statute  the  rule  would  be  the  same  in  this 
state.  The  number  required  to  constitute  a  grand  jury  in  Ohio 
has,  from  the  organization  of  the  state,  been  fifteen.  Among  the 
early  legislative  expressions  on  this  subject,  was  Section  8  of 
an  act  passed  February  8th,  1813,  "regulating  the  times  of  hold- 
ing the  judicial  courts."    (11  0.  L.,  89.) 

Jury  acts  were  passed  in  1824  and  1828.  On  February  9th, 
1831  (29  0.  L.,  94),  "An  act  relating  to  juries"  was  passed, 
Section  4  of  which  provides  for  drawing  from  the  jury  box 
twenty-seven  names,  the  first  fifteen  of  whom  should  be  summoned 
as  grand  jurors,  and  Section  12  of  which  provided  that  said 
fifteen  so  summoned  and  sworn  should  be  a  grand  jury.  This 
Section  4  became  Section  5  of  70  0.  L.,  167,  and  Section  5167 
of  Revision  of  1880,  in  so  far  as  providing  for  the  number  of 
grand  jurors  to  be  drawn. 

The  act  of  September  30th,  1902  (96  0.  L.,  3),  repealed  Sec- 
tion 5167  and  substituted  for  it  the  present  Section  5165.  This 
act  is  known  as  the  jury  commission  aot,  and  such  Section  5165 
provides  now  for  drawing  such  number  of  persons,  "to  be  sum- 
moned to  serve  as  grand  or  petit  jurors,"  as  the  court  may  have 
ordered. 

The  omission  of  the  portion  of  old  Section  5167  which  pro- 
vided for  the  number  to  be  drawn  for  each  of  said  juries  was 
evidently  an  oversight  or  was  deemed  unnecessary  in  the  light  of 
the  common  law  prevailing  in  this  state  on  the  number  which 
should  constitute  these  juries  respectively.  However,  Section 
5168  was  left  which  provides  for  drawing  juries  for  special 
terms  of  common  pleas  court  and  provides  for  "twelve  persons 
to  serve  as  petit  jurors,  or  twenty-seven  persons  to  serve  as 
grand  and  petit  jurors,"  thus  indicating  that  i.t  is  recognized 
that  a  grand  jury  in  this  state  shall  consist  of  fifteen  persons. 

So,  also.  Section  7203  was  left  unchanged,  which  provides  for 
calling  a  special  grand  jury  ' '  from  the  bystanders  or  neighboring 
citizens,  of  fifteen  good  and  lawful  men,  etc."    This  again  shows 


NISI  PRIUS  REPORTS— NEW  SERIES.  285 

IMS.]  State  v.  Lanlng. 

that  the  Legislature  of  this  state  has  not  changed  the  number  of 
persons  who  shall  constitute  a  grand  jury. 

The  fair  presumption  is  that  the  Legislature  omitted  direct- 
ing the  number  of  jurors  to  be  drawn  so  that  the  court  could 
draw  more  than  were  needed,  to  provide  for  absentees  and  per- 
sons excused  and  yet  leave  a  full  jury  of  persons  regularly  drawn, 
and  thus  obviate  the  necessity  of  filling  the  jury  with  talesmen 
or  issuing  a  special  venire.  However,  what  is  plainly  implied  in 
a  statute  is  as  much  a  part  of  it  as  that  which  is  expressed  (Doyle 
v.  Doyle,  50  0.  S.,  330;  Sawyer  v.  State,  45  0.  S.,  343),  and 
it  being  apparent  that  the  Legislature  did  not  mean  to  make 
any  change  in  the  number  of  grand  jurors,  we  must  hold  that 
fifteen  is  now  the  legal  number  to  constitute  a  grand  jury. 

Complaint  is  made  that  a  deficiency  of  six  in  the  regular  grand 
jury  was  filled  by  direction  of,  the  judge  presiding  in  that 
court  who  named  the  persons  to  make  up  the  deficiency  and  or- 
dered the  sheriff  to  call  them,  and  the  same  were  personally 
called  by  the  sheriff  for  that  purpose  without  any  special  ventre 
being  issued. 

Section  7202  provides  for  the  court  appointing  persons  to 
fill  vacancies  in  the  grand  jury  after  it  has  been  sworn. 

Section  5171  provides  for  the  filling  of  vacancies  in  both 
petit  and  grand  juries  by  the  sheriff  summoning  talesmen,  "or 
if  there  be  such  deficiency  in  the  grand  jury,  the  court  may 
issue  a  special  venire  to  the  sheriff  commanding  him  to  summon 
the  persons  therein  named  to  attend  forthwith  as  grand  jurors." 
Julian  v.  State,  46  0.  8.,  511. 

The  substitute  jurors  were  so  far  as  the  statute  provides  chosen 
in  a  lawful  way. 

Objections  to  the  manner  of  impanneling  the  grand  jury  should 
be  made  by  challenge  and  not  after  the  presentment  of  the  in- 
dictments. Rev.  Stat.,  Sec,  5175;  State  v.  Thomas,  61  O.  S., 
444,  461;  Wagner  v.  State,  42  0.  S.,  587,  541;  Ruling  v.  State, 
17  0.  S-,  583. 

The  manner  of  selecting  and  drawing  juries  concerning  the 
public  rather  than  the  parties,  technical  objections  will  not  be 
considered  even  on  challenge  to  the  array.    State  v.  Barlow,  70 


286  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Laning.  {Vol.  VII,  N.  a 

0.  S.,  363,  where  Biding  v.  State  is  considered,  approved  and 
the  doctrine  that  auch  provisions  are  directory  and  not  manda- 
tory, is  reaffirmed. 

This  would  also  dispose  of  the  objection  made  that  they  were 
not  drawn  from  the  body  of  the  county,  although  that  objection 
will  avail  nothing  considering  that  the  statutes  provide  a  man- 
ner for  impanneling  a  grand  jury  and  it  has  been  followed. 

The  provision  of  the  statute  for  drawing  jurors  from  the 
several  wards  and  townships  in  proportion  to  population  per- 
tains to  the  manner  of  tilling  the  wheel  from  which  the  names 
are  to  be  subsequently  drawn.  To  allow  any  such  selection  at  the 
time  of  drawing  would  defeat  one  of  the  objects  of  the  jury 
commission  law. 

The  court,  therefore,  finds  that  the  grand  jury  was  composed 
of  the  requisite  and  proper  number  of  persons  and  was  regularly 
selected  and  was  a  legal  grand  jury  in  respect  to  numbers'  and 
manner  of  impanneling. 

Inquiry  of  the  jurors  as  to  their  qualifications  by  the  judge  or 
prosecuting  attorney  is  not  required  by  law,  and  does  not  preju- 
dice the  rights  of  the  accused  because  if  any  were  not  qualified 
the  accused  has  his  rights  under  this  plea  in  abatement  to  show 
disqualification  of  jurors  and  be  relieved  of  the  indictment. 
Sage  v.  State,  127  Ind.,  15;   26  N.  E.,  667. 

An  examination  of  the  charge  of  the  court  does  not  show  that 
its  powers  were  exceeded.  The  court  has  the  right  and  it  is 
its  duty  to  call  the  attention  of  the  grand  jury  to  any  matters 
it  may  seem  necessary  for  the  grand  jury  to  investigate,  and  even 
though  wrong,  it  would  not  be  ground  for  a  plea  in  abatement. 
Stakl  v.  State,  5  C.  D.,  29. 

The  question  of  prejudice  and  misconduct  of  jurors  remains 
for  consideration.  The  accused  claims  he  was  out  of  the  state 
when  the  jury  was  impanneled  and  sworn,  and  could  not  be 
present  to  challenge  the  jurors.  He  was  in  no  worse  situation 
than  one  who  was  within  the  county  and  had  no  expectation 
that  the  grand  jury  would,  during  its  deliberations,  consider 
charges  on  its  own  presentment  against  him.  About  the  only 
persons  who  can  avail  themselves  of  challenges  to  a  grand  jury 


NISI  PRIUS  REPORTS— NEW  SERIES.  287 

1908.]  State  v.  Laning. 

are  those  who  have  been  bound  over  or  anticipate  a  presentment. 
There  is  no  practical  way  of  taking  care  of  others,  and  they  must 
therefore  vindicate  themselves  .through  the  petit  jury. 

The  qualifications  of  jurors  as  provided  in  Section  5164,  are 
that  they  shall  be  judicious  and  discreet  men,  having  the  qualifi- 
cations of  electors  of  the  county  where  drawn.  It  is  further 
provided  that  no  one  shall  be  selected,  who  shall  not  in  the  judg- 
ment of  all  the  commissioners  be  competent  in  every  respeet  to 
serve  as  a  juror.  This  imposes  upon  the  commissioners,  who  are 
to  select  the  names  of  persons  to  be  put  into  the  jury  wheel  from 
which  juries  are  to  be  drawn,  the  duty  of  choosing  persons 
capable  of  acting  with  judgment  and  who  are  prudent  and 
sensible  men.  The  determination  of  these  qualities  is  placed  upon 
the  commission.  While  a  failure  to  select  men  of  that  character 
might  be  considered  upon  challenge,  the  court  can  not  go  bach  of 
the  determination  of  the  commission  on  a  plea  in  abatement  to 
an  indictment  returned  by  a  grand  jury,  and  pass  upon  the 
correctness  of  the  judgment  of  the  commission  as  to  the  qualifi- 
cations in  that  particular  of  the  jurors  composing  that  grand 
jury.  It  is  presumed  that  the  commissioners  have  done  their 
duty  in  respect  to  matters  left  to  their  judgment  iu  determining 
the  personal  fitness  and  capability  of  the  jurors. 

"It  would  hardly  be  contended  that  it  would  be  a  good  plea 
in  avoidance  of  an  indictment,  that  one  or  more  of  the  grand 
jurors  were  not  men  of  fair  character,  or  sound  judgment  or 
well  informed." 

The  statute  does  not  say  that  none  but  judicious  and  discreet 
men  shall  be  put  on  the  jury,  but  enjoins  it  as  a  duty*  upon 
the  jury  commission  to  put  only  that  kind  of  men  on  the  jury  list. 

There  is  a  definite  distinction  between  a  direction  to  a  minis- 
terial officer  and  a  condition  precedent  to  the  competency  of  a 
person  to  serve  as  a  juror.  State  v.  Elson,  45  0.  S.,  648;  State 
v.  Cox,  52  Vt.,  471;   People  v.  Jewett,  6  Wend.,  386. 

Thus  in  Doyle  v.  State,  17  Ohio,  222.  it  was  held  that  where  a 
grand  juror  was  not  an  elector,  that  the  demurrer  of  the  state  to 
the  special  plea,  showing  that  fact,  should  be  overruled  and  the 


288  HURON  COUNTY  COMMON  PLEAS. 

SUte  v.  Laning.  [Vol.  VII,  N.  J3. 

indictment  quashed.  Lack  of  statutory  qualifications  on  the  part 
of  a  juror  would  be  good  ground  for  quashing  an  indictment  on 
a  plea  in  abatement.    Hiding  v.  State,  17  O.  S.,  583. 

If  a  single  juror  were  thus  disqualified,  he  can  not  be  counted 
as  a  juror,  and  the  grand  jury  would  then  not  have  the  number 
of  members  required  by  law,  and  would  not  be  a  grand  jury  and 
could  return  no  indictment.  It  requires  twelve  to  find  a  true  bill, 
and  for  aught  the  court  could  know  the  disqualified  person  might 
make  one  of  the  twelve  to  find  a  bill  of  indictment. 

This  rule  obtains  in  many  other  states  and  in  the  federal 
courts  though  regarded  by  some  authorities  as  an  exception  to 
the  general  rule. 

As  a  matter  of  interest  it  might  be  suggested  that  the  in- 
capacity of  a  person  not  an  elector  might  be  traced  to  the  old 
rule  that  one  could  not  be  prosecuted  except  "by  the  legal  judg- 
ment of  his  peers."  The  requirement  that  a  juror  must  be  an 
elector,  however,  is  a  condition  precedent  to  his  competency,  and 
exception  to  an  indictment  can  be  taken  by  plea  in  abatement, 
when  such  disqualification  exists. 

Our  Supreme  Court  has  ruled  in  a  number  of  cases  that  other 
objections  to  grand,  jurors  must  be  raised  by  challenge  and  can  not 
be  raised  on  a  plea  in  abatement,  even  though  the  accused  may 
have  had  no  notice  that  charges  against  him  were  to  be  investi- 
gated by  the  grand  jury  and  had  no  opportunity  to  challenge 
jurors  before  they  were  impanneled. 

In  State  v.  Easter,  30  0.  S.,  542,  it  was  held  that  the  fact 
that  one  of  the  grand  jurors  was  the  nephew  of  the  person 
murdered  and  for  whose  murder  the  accused  was  indicted,  was 
not  good  ground  for  a  plea  in  abatement. 

In  Koch  v.  State,  32  0.  S.,  353,  it  was  held,  in  a  prosecution 
for  violating  the  liquor  laws,  that  the  fact  that  one  of  the  jurors 
had  declared  that  "they  would  find  enough  bills  to  break  every 
liquor  seller"  in  that  county,  was  not  good  ground  for  a  plea  in 
abatement.  It  was  further  held  in  that  case  that  the  fact  that 
two  of  the  jurors  had  subscribed  funds  to  assist  in  prosecution 
of  .violators  of  the  Ohio  liquor  law,  did  not  disqualify  them 
as  grand  jurors.     Misconduct  on  the  part  of  a  juror  was  held 


NISI  PRIUS  REPORTS— NEW  SERIES.  289 

IMS.]  State  v.  Lanlng. 

not  good  ground  for  a  plea  to  the  indictment.  Turk  v.  State, 
7  Ohio.,  240. 

That  a  grand  jury  was  impanneted  for  a  malicious  purpose 
was  held  not  ground  for  plea  in  abatement.  Gibbs  v.  State,  45 
N.  J.  Law,  379. 

Where  a  member  of  the  grand  jury  "actively  assisted  in  find- 
ing a  true  bill"  and  was  a  son  of  the  injured  party,  it  was  held 
no  ground  for  quashing  the  indictment.  State  v.  Sharp,  110  N. 
C,  604;   14  S.  E.,  504. 

Active  investigations  by  a  grand  juror  and  belief  in  guilt 
before  impanneling  held  not  ground  for  plea  in  abatement.  Com- 
monwealth v.  Woodward,  157  Mass.,  516;  34  Am.  St.  Rep.,  302; 
32  N.  E.,  939,  940. 

Jurors  forming  and  expressing  opinions  of  guilt  of  accused 
before  impanneling,  was  held  not  a  good  ground  for  plea  in 
abatement.  State  v.  Hamlin,  47  Conn.,  95,  113,  114;  36  Am. 
Rep.,  54;  Mustek  v.  People,  40  111.,  268. 

In  State  v.  Dayton,  3  Zab;,  49  (23  N.  J.  L.,  49),  the  court  ex- 
presses its  opinion  of  the  law  oh  this  subject  as  follows: 

"That  an  indictment  was  found  by  the  grand  jury  upon  illegal 
evidence,  or  without  legal  evidence,  can  not  be  taken  advantage 
of  by  the  defendant."  "Where  the  facts  charged  in  the 
indictment  clearly  constitute  no  crime;  where  the  court 
in  which  the  indictment  is  found  have  no  jurisdiction  of 
the  offense;  where  it  appears  in  the  face  of  the  indict- 
ment that  the  prosecution  is  barred  by  lapse  of  time; 
or,  where  for  any  cause,  it  is  manifest  that  no  judgment  can 
be  rendered  on  the  indictment,  there  is  obvious  propriety  in  not 
putting  the  defendant  to  the  expense  and  vexation  of  a  trial. 
But  when  the  exception  is  purely  technical,  in  no  wise  affecting 
the  merits  of  the  controversy,  there  would  seem  to  be  no  good 
reason  why  the  court  should  exercise  its  discretionary  power  in 
aid  of  the  defendant." 

The  objection  that  one  of  the  grand  jurors  was  the  husband 
of  a  prosecuting  witness  is  met  by  the  case  of  State  v.  Easter,  30 
O.  S.,  542;  State  v.  Sharp,  110  N.  C,  604;  and  other  cases 
where  jurors  were  active  in  bringing  about  prosecutions  and 
had  formed  and  expressed  opinions. 


290  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Lading.  [Vol.  VII,  N.  S. 

The  grand  jury  from  its  origin  has  been  a  commission  to  in- 
quire into  charges  preferred  against  the  subject.  It  was  as 
well  a  protection  for  the  subject  against  unjust  and  vexations 
prosecutions  as  the  originator  of  presentments.  That  part  of 
the  Bill  of  Rights  quoted  above  (Art.  I.  Sec.  10,  Constitution  of 
Ohio),  is  a  continuation  of  that  ancient  protection  to  the  ac- 
cused. It  was  not  created'  to  prosecute,  but  to  inquire.  If  an 
indictment  were  preferred  by  the  crown  it  was  its  duty  to  in- 
vestigate and  determine  whether  that  indictment  should  be  pre- 
sented and  the  accused  prosecuted.  Its  province  was  to  ex- 
amine the  evidence  offered  and  determine  whether  there  were 
sufficient  to  put  the  accused  on  trial,  or  whether  any  crime  had 
been  charged.  It  was  not  a  trier  of  the  guilt  or  innocence  of 
the.  accused.  Blackstone,  Vol.  4,  page  303,  says:  "They  are 
only  to  hear  evidence  on  behalf  of  the  prosecution ;  for  the  find- 
ing of  an  indictment  is  only  in  the  nature  of  an  inquiry  or  ac- 
cusation, which  is  afterward  to  be  tried  and  determined;  and 
the  grand  jury  are  only  to  inquire  upon  their  oaths,  whether 
there  be  sufficient  cause  to  call  upon  the  party  to  answer  it." 

That  the  character  of  the  duty  of  the  grand  jury  has  not  in  the 
main  changed  is  shown  in  the  oath  required  by  Sec.  7191,  which 
denned  its  main  function.  They  are  required  to  "diligently  iu- 
quire  and  true  presentment  make,  of  all  such  matters  and  things 
as  shall  be  given  to  'them'  in  charge,  or  otherwise  come  to  'their' 
knowledge. ' ' 

The  scope  of  the  grand  jury's  investigation  is  not  only  to  con- 
sider the  cases  of  those  persons  bound  over  by  magistrates,  but 
to  take  in  charge  matters  presented  by  the  court  or  the  prosecu- 
ting attorney,  and  other  matters  disclosed  and  brought  to  light 
in  the  jury  room  during  the  investigations.  It  may  investigate 
matters  of  which  fellow  jurors  are  witnesses,  or  to  which  jurors 
may  call  attention.  All  these  things  come  within  the  purview  of 
the  oath  prescribed  by  statute  to  be  administered  to  the  grand 
jury. 

The  work  thus  laid  out  for  the  grand  jury  precludes  all  notion 
that  their  qualifications  should  be  as  nicely  inquired  into  as 
those  of  petit  jurors.  It  would  be  impractical  in  the  very 
nature  of  that  branch  of  criminal  investigation. 


NISI  PRIUS  REPORTS— NEW  SERIES.  291 

1908.]  State  v.  Lining. 

Their  qualifications  are  first  passed  upon,  and  unworthy  ones 
sifted  out  by  the  jury  commission  who  are  required  to  provide  for 
juries  only  judicious  and  discreet  persons.  When  impanneled 
as  grand  jurors  they  are  required  to  take  an  oath  (Sec.  7191), 
to  "present  no  person  through  malice,  hatred  or  ill  will,  nor 
*  *  *  leave  any  person  unpresented  through  fear,  favor  or 
affection,  or  for  any  reward  or  hope  thereof,"  and  in  all  present- 
ments to  "present  the  truth,  the  whole  truth  and  nothing  but 
the  truth,  according  to  the  best  of  'their'  skill  and  understand- 
ing." 

After  this  preparation  for  the  protection  of  the  citizen  from 
unjust  and  unwarranted  prosecutions,  if  through  the  infirmities 
of  human  nature  or  poor  judgment,  it  proves  unavailing,  he  then 
is  provided  with  a  judge  and  jury  to  try  the  question  of  his  guilt 
or  innocence,  with  the  presumption  of  innocence  attending  him 
throughout  the  trial  and  his  rights  guarded  by  all  the  technicali- 
ties which  the  ingenuity  of  lawyers  learned  in  the  legal  rights 
of  men,  could  invent  for  the  reasonable  protection  of  the  accused 
against  unjust  conviction.  He  has  by  this  machinery  of  the 
criminal  law  for  protection  against  prosecutions  for  felonies  and 
infamous  crimes  far  more  protection  than  in  case  of  minor  of- 
fenses or  in  eases  of  impeachment  or  eases  arising  in  the  Unity 
and  navy,  or  in  the  militia  when  in  actual  service.  In  the  latter 
cases  he  may  have,  under  the  Constitution,  no  protection  against 
arrest  and  prosecution  at  the  instance  of  the  most  malicious  and 
malignant  enemy,  and  may  be  thrown  entirely  on  his  civil  rights 
for  redress  for  malicious  prosecution. 

If  all  the  nice  technicalities  of  proceedings  with  a  petit  jury 
were  applicable  to  the  proceedings  before  a  grand  jury  the  result 
would  be  a  double  trial.  The  substantial  rights  of  the  accused 
having  been  guarded  by  the  state,  the  court  can  not  make  in- 
quiry into  the  irregularities  of  the  grand  jury  on -a  plea  in  abate- 
ment. If  grand  jurors  violate  their  oaths  and  willfully  fail  to 
do  their  part  in  the  administration  of  just;ei\  the  court  should 
be  provided  with  some  way  of  protecting  it*>lf.  Tha  state  is  as 
much  injured  as  the  accused.  It  is  as  much  the  interest  of  the 
court  and  the  community  to  be  relieved  of  the  burden  of  unwar- 


292  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Laning.  [Vol.  VII,  N.  S. 

ranted  prosecutions  as  for  the  accused  to  escape  them,  but  in  the 
present  state  of  our  law  a  person  accused  can  not  take  advantage 
of  it  to  stay  further  proceedings  after  indictment  returned. 

As  pointed  out  in  State  v.  Easter,  30  0.  S.,  542,  548,  the  excep- 
tion to  the  indictment  for  reasons  which  would,  before  the  jury 
was  sworn,  have  constituted  a  challenge  for  favor,  by  plea  in 
abatement  is  the  most  expensive  and  inconvenient  form  in  which 
the  matter  can  be  presented,  and  against  the  policy  of  the  law 
which  requires  matters  of  that  kind  to  be  disposed  of  in  the 
summary  manner  of  disposing  of  challenges.  This  summary  pro- 
ceeding can  not  be  had  on  plea  in  abatement  if  facts  are  in  dis- 
pute which  should  be  tried  by  a  jury.  "It  may  be  used  as  an 
engine  of  delay,"  so  as  to  defeat  the  ends  of  justice. 

The  court,  on  the  weight  of  authority  on  the  subject,  can 
not  find  that  the  grounds  alleged  in  the  plea  in  abatement 
are  sufficient  to  warrant  the  quashing  of  the  indictment,  pre- 
sented by  the  grand  jury,  and  the  demurrer  of  the  state  thereto 
is  sustained. 


NISI  PKIUS  REPORTS— NEW  SERIES.  298 

1908.]  Sutton  v.  Galbratth  et  al. 

GIFTS  INTER  VIVOS  AND  CAUSA  MORTIS. 

Common  Pleas  Court  of  Hamilton  County. 

Mary  L.  Sutton  et  al  v.  Charles  W.  Qalbraitii  et  al.* 

Decided,  April  8.  1908. 

Oi/tt — Inter  Vivos  and  Causa  Mortis— Bonds  Given  bj/  One  Sister  to  An- 
other—In Expectation  of  Death,  out  with  a  Condition  Attached. 

Bonds  delivered  by  an  invalid  to  her  sister  In  expectation  of  death, 
but  on  condition  that  the  Interest  be  said  to  her  and  the  bonds  be 
returned  to  her  In  the  event  that  she  needed  them  constitutes  a  girt 
causa  mortis,  where  tbe  donor  did  not  cancel  the  gift  and  died  from 
the  malady  from  which  she  was  then  suffering,  although  her  death 
did  not  occur  until  six  months  thereafter. 

George  8.  Hawke,  for  plaintiffs  in  error. 
David  Davis  and  J.  Q.  Martin,  contra. 

WOODMANSEE,  J. 

This  cause  comes  into-  this  court  upon  petition  in  error  from 
the  probate  court. 

The  record  discloses  that  Elizabeth  L.  Qalbraith  prior  to  her 
decease  was  the  owner  of  ten  one  hundred  dollar  United  States 
four  per  cent,  bonds,  and  the  question  involved  in  this  case  is 
as  to  whether  or  not  those  bonds  should  be  administered  as 
property  belonging  to  her  estate  at  the  time  of  her  death,  or 
whether  they  were  at.  that  time  the  property  of  her  sister,  Mary 
L.  Sutton,  who  claims  the  bonds  as  a  gift  from  her  sister. 

At  the  trial  below  counsel  for  Mary  L.  Sutton  claimed  the 
bonds  as  a  gift  inter  vivos.  This  court  agrees  with  the  court 
below  in  finding  that  there  was  such  a  condition  to  the  gift  as  to 
defeat  the  claim  on  that  theory.  The  sole  question  left  for  this 
court  to  determine  is  whether  or  not  the  plaintiff  is  entitled  to  the 
bonds  as  a  gift  causa  mortis. 

There  is  not  very  much  controversy  about  the  facts  in  the  case. 
In  order  for  this  court  to  maintain  the  claim  of  the  plaintiffs  it 

*  Reversing  In  Re  Estate  of  Elisabeth  L.  Qalbraith,  4  O.  L,  R.,  186;  af- 
firmed oj  tbe  circuit  court,  Qalbraith  v.  Button,  11  C.  C-— N.  S„  262. 


294  HAMILTON  COUNTY  COMMON  PLEAS. 

Sutton  v;  Galbraith  et  al.  [Vol.  Til,  N.  S. 

must  find  from  the  evidence  the  necessary  ingredients  of  a  gift 
cavsa  mortis.  It  must  find  that  the  donor  was  a  competent 
person  and  that  the  gift  was  given  in  expectation  of  death  and 
that  death  resulted  from  the  physical  ailment  which  the  party 
had  at  the  time  of  making  the  gift,  and  that  the  gift  being 
personal  property  must  have  been  delivered  and  have  been  ac- 
cepted by  the  donee;  that  the  donee  had  rightful  possession  of 
the  property  at  the  death  of  the  donor;  that  no  revocation  of 
the  gift  had  been  made,  and  that  there  was  sufficient  property 
exclusive  of  this  alleged  gift  to  pay  all  debts  of  decedent's  estate 
and  the  costs  of  administration. 

The  testimony  of  Mrs.  Sutton  is  to  the  effect  that  in  -the  fall 
of  1904  her  deceased  sister  said  to  her,  "Oh,  Mary,  I  am  sick; 
I  am  very  sick;  I  do  not  think  I  am  going  to  live  very  long;  I 
am  going  to  make  you  a  present;  I  am  going  to  give  you  some 
of  my  bonds."  Later,  in  the  month  of  December  of  1904,  her 
sister  upon  returning  from  a  hospital  where  she  had  been  ill  for 
some  time,  said  to  her.  "Mary,  I  am  going  to  give  you  some  of 
my  bonds;  1  talked  to  you  about  it  last  fall;  I  did  not  do  it;  I 
will  put  it  off  no  longer.  The  doctor  tells  me  in  all  probability 
I  will  not  live  a  year.  I  want  you  to  have  them.  Yon  have  a 
right  to  them.  You  know  where  the  money  came  from."  The 
testimony  disclosed  that  the  money  invested  in  these  bonds 
came  from  the  estate  of  the  parents  of  the  two  sisters. 

Mrs.  Sutton  further  testified: 

"She  gave  me  the  bonds  in  dispute.  There  were  ten  regis- 
tered bonds.  They  were  sent  to  Washington  and  exchanged  for 
other  bonds.  She  delivered  them  to  me.  That  was  in  January. 
She  says,  'Mary,  the  interest  will  be  due  on  these  bonds  the 
first  of  February.  You  know  how  much  expense  I  have  and 
what  expenses  I  have  to  meet.  So  when  this  interest  -comes 
you  give  it  to  me.  Let  me  get  this  interest.'  I  gave  her  the 
interest  in  February.  My  sister  died  the  following  July.  I 
had  the  control  of  the  bonds  after  she  delivered  them  to  me. 
They  were  in  my  possession.  My  sister  says.  'I  don't  know 
how  long  I  am  going  to  live.  I  do  not  expect  to  get  well.  I 
don't  know  just  how  matters  will  be.  If  I  should  ask  you  to 
return  those  to  me  will  you  do  it?'    I  said  undoubtedly  I  will. 


NISI  PRIUS  REPORTS— NEW  SERIES.  295 

1908.]  Sutton  v.  Galbraith  et  al. 

She  said  she  didn't  expect  to  get  well.     The  doctor  had  told 
her  he  did  not  think  she  would  live  a  year." 

Mrs.  Sutton  further  testified  that  later  Mrs.  Galbraith  upon 
delivering  the  bonds  to  her  said,  ' '  I  don 't  know  how  long  I  will 
live;  if  I  should  live  and  should  want  them  back,  will  you  give 
them  back  to  me."  I  said,*  "Certainly  I  will."  This  testi- 
mony discloses  that  Mrs.  Sutton  at  no  time  had  absolute  con- 
trol or  ownership  of  the  bonds ;  that,  in  other  words,  the  bonds 
were  delivered  with  a  condition  and  because  of  that  condition 
it  was  not  a  gift  inter  vivos,  and  it  is  a  little  surprising  to  this 
count  that  the  claim  was  ever  seriously  made,  but  the  condition 
complained  of  is  a  condition  that  goes  with  every  gift  causa 
mortis;  that  is  to  say,  that  the  donor  at  any  time  before  death 
can  cancel  the  gift  and  reclaim  the  property  and  the  gift  does 
not  become  absolute  until  the  death  of  the  donor.  If  we  are 
to  believe  the  testimony  of  Mrs.  Sutton,  we  must  find  that 
although  her  sister,  Mrs.  Galbraith,  did  not  die  until  more  than 
six  months  after  the  delivery  of  the  bonds  to- her,  yet  she  did  die 
from  the  malady  with  which  she  was  afflicted  at  the  time  the 
delivery  was  made;  that  she  never  recovered  from  it,  and  that 
although  she  asked  for  the  interest" that  accrued  upon  the  bonds, 
she  never  asked  either  for  the  possession  of  the  bonds  or  the  de- 
livery of  the  control  of  the  same  to  her. 

The  only  point  that  concerns  this  court  is  whether  or  not  Mrs. 
Sutton  correctly  states  the  facts  in  the  case,  for  the  law  looks 
with  suspicion  upon  gifts  among  relatives,  and  the  uniform 
rule  is  that  no  gift  of  this  sort,  will  be  sustained  upon  the  testi- 
mony of  the  donee  alone.  This  court  did  not  see  the  witnesses 
upon  the  stand  and  therefore  could  ndt  get  any  impressions 
that  often  come  from  observing  the  demeanor  of  witnesses  on  the 
stand.  But  the  court  is  impressed  with  the  fact  that  this  testi- 
mony was  certainly  not  arranged  for  the  purpose  of  making  out 
a  gift  causa  mortis,  because  no  such  claim  seems  to  have  been 
made,  and  if  it  was  gotten  up  for  the  purpose  of  making  it  a 
gift  intrr  vivos,  it  absolutely  failed  in  the  most  essential  feature, 
and  for  that  reason   I  am  constrained  to  look  upon  the  testi- 


298  HAMILTON  COUNTY  COMMON  PLEAS. 

Sutton  v.  Oalbraith  et  al.  [Vol.  VII.  N.  8. 

mony  of  Mrs.  Sutton  as  a  full  and  frank  statement  of  all  of  the 
facts  in  the  ease  as  she  understood  them.  But  following  the 
rule  in  such  cases,  1  would  not  sustain  the  gift  upon  her  testi- 
mony alone,  and  this  would  not  he  an  expression  of  a  lack  of 
confidence  in  her  testimony,  but  simply  to  follow  the  established 
rule  in  such  cases.  In  other  words,  that  a  gift  must  be  made 
out  by  corroborative  testimony. 

C.  B.  Sutton,  the  husband  of  plaintiff,  corroborates  her  tes- 
timony fully  as  to  the  material  facts  in  the  ease.  He  does  this 
both  in  direct  and  cross-examination,  and  it  seems  to  have  been 
brought  out  particularly  upon  cross-examination  in  an  effort 
to  prove  that  there  was  a  condition  to  the  gift  which  made  it 
void  as  a  gift  inter  vivos,  and  the  witness  frankly  admitted  the 
condition  which  destroyed  his  wife's  claim  to  a  gift  inter  vivos, 
but  that  testimony  is  surely  useful  in  proving  a  gift  causa  mor- 
tis. So  that  in  addition  to  having  possession  of  the  bonds  with 
the  full  explanation  of  the  delivery  thereof,  and  the  new  bonds 
being  in  the  name  of  the  donee,  we  have  also  the  statement  of 
the  donee  and  of  Mr.  Sutton  as  to  the  terms  and  conditions  of 
delivery.  We  have  undisputed  evidence  of  the  serious  illness 
of  the  decedent  at  the  time  the  gift  was  made,  and  that  she  died 
without  recovering  therefrom. 

Counsel  for  defendants  have  placed  much  stress  upon  certain 
admissions  that  were  claimed  to  have  been  made  relative  to  this 
gift,  and  the  testimony  of  the  appraisers  and  her  co-executor  is 
fully  set  out  in  the  bill  of  exceptions. 

After  fully  examining  this  testimony  I  am  persuaded  that 
such  testimony  assisted  defendants  in  error  in  maintaining  be- 
low that  the  gift  was  not  inter  vivos,  but  I  am  still  firmly  con- 
vinced that  the  claim  of  the  gift  causa  mortis  has  been  estab- 
lished, and  the  decree  will  be  accordingly.     58  Ohio  St..  218. 


NISI  PRIUS  BEPORTS— NEW  SERIES. 
Taylor  et  al  v.  Taylor  et  al, 


CONSTRUCTION  OP  A  WILL. 

Common  Pleas  Court  of  Hamilton  County. 

Frank  H.  Taylor  et  al,  Executors,  v.  Edward  Taylor  et  al. 

Decided,  July,  1908. 

Wills — Extrinsic  Evidence  in  Aid  of  Construction  of — Ambiguity  Solved 
by  Knowledge  of  Extraneous  Facta — Words  of  Description  and 
Words  Constituting  a  Separate  Bequest. 

1.  The  rule  that  extrinsic  evidence   la  admissible  In  aid  of  the  con- 

struction of  a  will,  permits  of  the  Introduction  of  evidence  as  to 
the  blood  relationship  existing  between  the  devisees,  and  also  of 
a  previous  will  after  which  the  one  In  hand  was  copied. 

2.  An  estate  was  devised  in  equal  parts  to  A,  B,  C,  D,  E,  F,  G,  helm  of 

the  body  ot  Rebecca  H.  Taylor  per  stirpes  and  not  per  capita,  G, 
H,  and  I. 
Held:  It  having  been  shown  that  E,  P,  and  O  are  heirs  of  Rebecca  M. 
Taylor,  the  phrase  "heirs  of  the  body  of  Rebecca  H.  Taylor  per 
stirpes  and  not  per  capita  must  be  construed  as  constituting  a 
separate  bequest,  and  not  to  be  descriptive  of  E,  F,  and  O,  who 
each  take  a  separate  share  of  the  estate  and  also  a  share  Jointly. 

R,  de  V.  Carroll  and  Maxwell  &  Ramsey,  for  plaintiffs. 
Kittredge  &  WUby,.  contra. 

Swing,  J. 

The  plaintiffs,  Prank  H.  Taylor  and  Frank  H.  Simpson,  as 
executors  of  the  last  will  and  testament  of  Laura  C.  Taylor,  de- 
ceased, pray  for  a  construction  of  tie  will  of  the  said  Laura  C. 
Taylor. 

The  particular  clause  of  the  will  which  seems  to  require  con- 
struction is  clause  one,  as  follows,  to-wit : 

"My  late  husband,  Henry  W.  Taylor,  bequeathed  me  an  es- 
tate appraised,  at  the  time  of  his  death,  at  two  hundred  and 
seventy-six  thousand  dollars  ($276,000)  more  or  less.  If  at  the 
time  of  my  decease  there  has  been 'no  shrinkage  or  loss  in  any 
of  my  investments  which  have  been  made  since  his  death,  or 
which  may  hereafter  be  made,  or  in  the  value  of  any  piece  or 
pieces  of  my  real  estate,  then  I  give  and  bequeath  two-thirds  of 
the  sum  of  two  hundred  and  seventy-six  thousand  dollars,  or  so 
much  thereof  as  may  remain  after  deducting  the  amounts  here- 
inafter provided  for,  to  be  divided  equally  among  the  following 


298  HAMILTON  COUNTY  COMMON  PLEAS. 

Taylor  et  al  t.  Taylor  et  al.  (Vol.  VII,  N.  S. 

relatives  of  my  late  husband,  viz:  Edward  Taylor,  of  Illinois; 
Edward  T.  Dugdale,  George  H.  Dugdale,  Emma  E.  Dugdale, 
Esther  E.  McGregor,  Edward  B,  Taylor,  Anna  H.  Williams, 
Howard  G.  Taylor,  the  heirs  of  the  body  of  Rebecca  H.  Taylor 
per  stirpes  and  not  per  capita,  Joseph  E,  Taylor,  Anne  M.  Tay- 
lor, Julia  K.  Taylor,  Alice  Marsh,  daughter  of  Joseph  E.  Taylor; 
and  if  any  of  the  said  legatees  shall  have  previously  died  leaving 
issue,  then,  in  that  event,  the  parent's  share  is  to  be  equally  di- 
vided among  his  or  her  surviving  children.  If,  however,  shrink- 
ages have  taken-  place  in  the  value  of  any  of  my  securities,  in- 
vestments, or  properties,  then  the  total  amount  to  be  divided,  as 
above  set  forth,  shall  be  redueed  by  two-thirds  of  the  amount  of 
such  shrinkages.  I  also  direct  that  the  amount  to  be  divided, 
as  above  set  forth,  shall  be  reduced  by  the  entire  amount  of  the 
taxes,  and  of  the  cost  of  administering  my  estate.  I  hereby 
authorize  my  executors,  at  their  option,  to  pay  the  bequests 
above  named,  to  the  said  above  named  legatees,  either  in  money, 
or  in  securities,  stocks,  or  bonds  which  may  belong  to  me  at  the 
time  of  my  death ;  or  by  transferring  to  them,  either  separately 
or  as  tenants  in  common,  real  estate  which  I  may  own  at  my 
death ;  and  if  said  bequests  are  paid  in  securities,  stocks,  bonds, 
or  real  estate,  their  value,  in  such  payment,  shall  be  the  value 
placed  upon  them  by  the  appraisers  of  my  estate.  The  above 
bequests  are  made  with  the  knowledge  of  my  children,  and  in 
accordance  with  my  husband's  desire  that  a  portion  of  my 
estate  should  be  so  divided." 

The  particular  words  in  said  clause  of  said  will  about  which 
the  plaintiffs  say  they  are  in  doubt  and  of  which  they  ask  con- 
struction are  the  words,  "the  heirs  of  the  body  of  Rebecca  H. 
Taylor  per  stirpes  and  not  per  capita." 

It  is  claimed  by  certain  of  the  parties  in  interest  that  by  the 
said  words  the  children  of  Rebecca  H.  Taylor  took  a  share  of 
the  estate  per  stirpes;  that  said  words  constitute  one  of  the 
particular  and  distinct  devises  of  the  said  will  and  proof  has 
been  offered  to  show  who  are  "the  heirs  of  the  body  of  Rebecca 
H.  Taylor." 

It  is  shown  by  the  proof  that  they  are  the  three  persons  named 
in  said  clause  immediately  before  the  said  words  of  which  con- 
struction is  sought,  to-wit:  Edward  B.  Taylor,  Anna  H.  "Wil- 
liams, Howard  G.  Taylor.  This  could  only  be  shown  by  ex- 
trinsic proof.    It  could  not  be  gathered  from  the  will  alone. 

It  is  claimed  that  by  the  said  clause  of  said  will  a  share  of 


NISI  PRIUS  REPORTS— NEW  SERIES.  298 

1908.]  Taylor  et  al  v.  Taylor  ot  al. 

the  estate  is  devised  to  Edward  Taylor,  of  Illinois;  a  share  to 
Edward  T.  ugdale;  a  share  to  Esther  E.  McGregor;  a  share  to 
Edward  T.  Dugdale;  a  share  "to  George  H.  Dugdale;  a  share  to 
Emma  E.  Dugdale;  a  share  to  Esther  E.  McGregor;  a  share- to 
Howard  6.  Taylor,  and  also  another  share  to  the  said  Edward  B. 
Taylor,  Anna  H.  Williams  and  Howard  0.  Taylor  as  "the  heirs 
of  the  body  of  Rebecca  H.  Taylor  per  stirpes,"  thus  giving  to 
the  said  Edward  B.  Taylor,  Anna  H.  Williams  and  Howard  0. 
Taylor  each  a  share  with  the  others  named  before  them,  and  with 
Certain  ones  named  after  them,  and  in  addition  thereto  a  share 
to  all  three  of  them  per  stirpes. 

It  is  claimed  by  other  parties  in  interest  that  the  words,  "the 
heirs  of  the  body  of  Rebecca  H.  Taylor  per  stirpes  and  not  per 
capita,"  are  to  be  read  as  part  of  the  one  devise  to  Edward  B. 
Taylor,  Anna  H.  Williams  and  Howard  G.  Taylor  described  by 
said  words  as  being  "the  heirs  of  the  body  of  Rebecca  H.  Tay- 
lor" who  are  to  take  per  stirpes  and  not  per  capita. 

Reading  clause  one  of  the  will  without  any  evidence  outside 
the  will  to  throw  light  upon  it,  it  would  seem  to  be  probably  or 
almost  certainly,  the  true  construction  that  the  provision  that 
the  "heirs  of  the  body  of  Rebecca  H.  Taylor"  are  to  take  a  share 
per  stirpes  and  not  per  capita,  is  in  itself  a  separate  bequest  to 
such  heirs;  but  doubt  is  thrown  upon  the  meaning  by  the  proof 
that  Edward  B.  Taylor,  Anna  H.  Williams  and  Howard  6.  Tay- 
lor are  the  "heirs  of  the  body  of  Rebecca  H.  Taylor,"  and  with- 
out further  explanation  by  evidence  outside  the  will  that  fact 
would  seem  to  be  in  some  degree  in  favor  of  the  contention  that 
the  words  "the  heirs  of  the  body  of  Rebecca  H.  Taylor"  are  sim- 
ply words  descriptive  of  the  persons  designated  as  Edward  B. 
Taylor,-Anna  H.  Williams  and  Howard  G.  Taylor;  though  not, 
I  think,  conclusive,  reading  the  whole  of  clause  one.  But  there 
are  other  facts  shown  by  the  evidence  outside  the  will  itself 
which  throw  further  light  upon  the  question  and  the  meaning 
of  the  will. 

Clause  one  of  the  will  itself  shows  that  the  testatrix  received 
the  estate  devised  by  will  from  her  deceased  husband,  Henry  W. 
Taylor.  Clause  one  commences  with  the  words,  "My  late  hus- 
band, Henry  W.  Taylor,  bequeathed  me  an  estate,"  etc.     The 


800  HAMILTON  COUNTY  COMMON  PLEAS. 

Taylor  et  si  v.  Taylor  at  at.  [Vol.  VII.  N.  8. 

last  sentence  in  clause  one  also  refers  to  the  will  of  her  de- 
ceased husband  by  the  words,  "The  above  bequests  are  made 
with  the  knowledge  of  my  children,  and  in  accordance  with  my 
husband's  desire  that  a  portion  of  my  estate  should  be  so  di- 
vided." 

The  evidence  outside  the  will  itself,  taken  together  with  the 
recitals  in  the  will,  goes  to  show  that  the  will  was  drawn  after, 
in  a  manner  in  accordance  with,  the  provisions  of  the  will  of 
the  said  Henry  W.  Taylor,  deceased,  and  the  will  of'  Henry  W. 
Taylor,  deceased,  has  been  offered  in  evidence,  though  objectefl 
to  as  incompetent,  as  throwing  light  upon  the  intention  of  the 
testatrix,  Laura  C.  Taylor,  in  her  will.  Beginning  with  item 
two,  the  will  of  the  said  Henry  W.  Taylor  makes  bequests  to 
the  said  persons  named  in  clause  one  of  the  will  of  Laura  C.  Tay- 
lor, deceased,  and  in  the  order  in  which  they  are  there  named 
in  the  said  will  of  Laura  C.  Taylor,  beginning  in  item  two  with 
the  words,  "I  give  and  bequeath  to  my  nephew  Edward  Taylor 
of  Illinois";  item  three,  "I  give  and  bequeath  to  my  nephew, 
Edward  T.  Dugdale";  and  so  on  through  the  list  to  item  nine 
inclusive,  the  said  item  nine  beginning  with  the  words,  "I  give 
and  bequeath  to  my  nephew,  Howard  G.  Taylor,"  etc. 

The  said  Henry  W.  Taylor  having  in  his  will  by  items  seven, 
eight  and  nine  made  bequests  to  Edward  B.  Taylor,  Anna  H. 
Williams  and  Howard  G.  Taylor  respectively,  proceeds  by  item 
ten  with  a  bequest  to  the  said  Rebecca  H.  Taylor  in  the  words 
following:  "10th.  I  give  and  bequeath  to  my  sister-in-law, 
Rebecca  H.  Taylor,  or  her  heirs,"  and  so  forth.  Then,  follow- 
ing the  bequest  to  Rebecca  H.  Taylor,  he  makes  bequests  by  suc- 
ceeding items  of  his  will  to  Joseph  E.  Taylor  and  Anne  M.  Tay- 
lor, Julia  K.  Taylor  and  to  Alice  Marsh  in  the  same  order  as  in 
the  will  of  Laura  C.  Taylor,  deceased. 

It  is  quite  apparent  that  the  will  of  Laura  C.  Taylor  was 
written  by  the  testatrix  with  the  will  of  Henry  W.  Taylor  before 
her  and  that  she  followed  it,  making  her  bequests  in  the  same 
order  as  those  in  the  will  of  the  said  Henry  W.  Taylor,  deceased ; 
but  Rebecca  H.  Taylor  being  dead  at  the  time  of  the  execution 
of  the  will  of  Laura  C.  Taylor,  she  made  a  bequest  to  the  "heirs 
of  the  body  of  Rebecca  H.  Taylor  per  stirpes  and  not  per  capita," 


NISI  PRIUS  REPORTS— NEW  SERIES.  SOI 

1908.]       "  Taylor  et  al  v.  Taylor  et  al. 

instead  of  a  bequest  to  the  said  Rebecca  H.  Taylor  herself.  It 
is  clear  tome  that  when  she  made  the  bequest  to  the  "heirs  of 
the  body  of  Rebecca  H.  Taylor,"  following  the  bequests  to  the 
persons  who  are  those  heirs  in  their  order  as  they  are  in  the 
will  of  Henry  W.  Taylor,  she  had  item  ten  of  that  will  before 
her  and  purposely  made  the  bequest  to  the  "heirs  of  the  body 
of  Rebecca  H.  Taylor"  in  the  place,  as  to  order,  of  the  bequest 
in  the  will  of  Henry  W.  Taylor  to  the  said  Rebecca  H.  Taylor, 
and  that  she  did  not  use  the  words  "the  heirs  of  the  body  of 
Rebecca  H.  Taylor"  as  descriptive  of  the  persons  named  before, 
Edward  B.  Taylor,  Anna  H.  "Williams  and  Howard  G.  Taylor, 
who  were  the  heirs  of  the  body  of  Rebecca  H.  Taylor. 

I  can  not  but  conclude  that  she  intended  by  her  will  to  give 
Edward  B.  Taylor  a  share,  Anna  H.  "Williams  a  share*  Howard 
G.  Taylor  a  share  per  capita,  and  the  three  together,  as  "the  heirs 
of  the  body  of  Rebecca  H.  Taylor,"  a  share  per  stirpes  and  not 
per  capita. 

The  evidence  shows  that  the  will  of  Laura  C.  Taylor*  de- 
ceased, is  in  her"  own  handwriting,  but  the  technical  legal*  ex- 
pressions used  in  the  words  "the  heirs  of  the  body  of  Rebecca 
H,  Taylor  per  stirpes  and  not  per  capita,"  indicate  that  some 
lawyer  had  taken  the  will  of  Henry  W.  Taylor  at  her  request 
and  written  the  will  for  her  following  the  provisions  of  the 
will  of  Henry  W.  Taylor  and  that  she  had  re-written  it  in  her 
own  hand  and  executed  it.  for  I  can  hardly  think  that  she 
could  have  used  the  words  "heirs  of  the  body"  and  "per 
stirpes"  and  "per  capita"  as  they  are  used.  Nor  can  I  think 
that  she  intended  the  words  "per  stirpes  and  not  per  capita," 
to  modify  the  bequests  to  the  said  three  by  name. 

But  the  will  as  it  is  written  is  her  will  and  I  can  not  think 
that  the  person  who  wrote  it  for  her  substituted  for  "Rebecca 
H.  Taylor  or  her  heirs,"  of  item  ten  of  the  will  of  Henry  W. 
Taylor,  the  words  "the  heirs  of  the  body  of  Rebecca  H.  Tay- 
lor per  stirpes  and  not  per  capita"  with  the  understanding  that 
they  were  merely  descriptive  of  the  presons  previously  named, 
who  were  in  fact  the  heirs  of  her  body,  nor  can  I  think  that 
Laura  C.  Taylor  in  writing  the  will  herself  used  those  words 
as  descriptive  merely. 


802  HAMILTON  COUNTY  COMMON  PLEAS. 

Taylor  et  a)  v.  Taylor  et  al.  [Vol.  VII.  N.  8. 

That  this  is  the  true  construction  of  the  will,  although  it 
gives  to  Edward  B  Taylor,  Anna  H.  Williams  and  Howard 
0.  Taylor  each  one  share  and,  in  addition,  to  the  three,  a  share 
per  stirpes,  is  rendered  the  more  probable  by  another  curious 
fact  shown  by  the  will  and  the  evidence  outside  the  will  and 
about  which  there  is  no  dispute  in  the  case;  for  following  the 
bequest  to  the  "heirs  of  the  body  of  Rebecca  H.  Taylor,  de- 
ceased," there  is  a  bequest  to  "Joseph  E.  Taylor,  Anna  M. 
Taylor,  Julia  K.  Taylor,  Alice  Marsh,  daughter  of  Joseph  E. 
Taylor." 

The  evidence  shows  that  Anne  M.  Taylor,  Julia  K.  Taylor 
and  Alice  Marsh  are,  all  of  them,  children  of  the  said  Joseph 
E.  Taylor.  The  will  by  the  words  quoted  gives  to  the  said 
Joseph  E.  Taylor  a  share,  and  to  each  of  his  said  three  children 
a  share,  and  then  adds,  "if  any  of  the  said  legatees  shall  have 
previously  died  leaving  issue,  then,  in  that  event,  the  parent's 
share  is  to  be  equally  divided  among  his  or  her  surviving  chil- 
dren. ' ' 

The  evidence  shows  that  before  the  death  of  the  testatrix, 
Laura  C.  Taylor,  but  after  the  execution  of  her  will,  the  said 
Joseph  E,  Taylor  died ;  and  by  the  terms  of  her  will  just  quoted 
the  children  of  the  said  Joseph  E.  Taylor  surviving  him,  to-wit : 
the  said  Anne  M.  Taylor.  Julia  K.  Taylor  and  Alice  Marsh  take 
each  a  share  of  the  estate  of  said  Laura  C.  Taylor,  and  in  addi- 
tion thereto  have  the  share  that  was  devised  by  the  will  to  the 
said  Joseph  E.  Taylor,  so  that  there  are  two  instances  in  this 
clause  one  of  the  will  of  Laura  C.  Taylor  in  which  persons 
named  take  twice,  about  one  of  the  instances  there  being  no 
dispute. 

This  last  instance  also  occurs  from  the  following  by  the  tes- 
tatrix of  the  will  of  the  said  Henry  W.  Taylor. 

All  this  seems  to  me  to  be  fairly  clear,  reading  the  will  of 
Laura  C.  Taylor  together  with  the  will  of  Henry  W.  Taylor. 

But  it  was  strenuously  contended  in  argument  of  the  case  that 
the  will  of  Henry  W.  Taylor  was  not  competent  evidence  to  ex- 
plain the  will  of  Laura  C.  Taylor,  to  enable  the  court  to  ascer- 
tain the  meaning  of  the  said  Laura  C.  Taylor. 

As  bearing  upon   this  question   I   quote  the   following.     In 


NISI  PBIUS  REPORTS— NEW  SERIES.  808 

1908.]  Taylor  et  al  V.  Taylor  et  al. 

Redfield  on  Wills,  Vol.  2,  p.  496,  eh.  10,  under  the  title  "Ex- 
trinsic Evidence  in  Aid  of  Construction,"  it  is  said: 

"The  rules  for  the  admission  and  exclusion  of  parol  evi- 
dence in  regard  to  wills  are  essentially  the  same  which  prevail 
in  regard  to  contracts  generally. 

"It  can  not  be  received  to  show  the  intention  of  the  testator 
except  by  enabling  the  court  where  the  question  arises  to  give 
hie  language  such  an  interpretation  as  it  is  reasonable  to  pre- 
sume from  the  circumstances  in  which  he  was  placed  he  in- 
tended it  should  receive;  or  to  put  the  court  in  the  place  of  the 
testator." 

In  same  volume,  page  501,  speaking  of  the  admission  of  evi- 
dence for  the  correction  of  mistakes  apparent  on  the  face  of 
wills,  but  also  upon  construction  of  wills  in  case,  of  ambiguity, 
it  is  said: 

"This  question  is  very  extensively  discussed  by  Chancellor 
Kent  in  the  earlier  cases  carefully  revised.  That  experienced  and 
careful  judge  thus  expresses  the  rule  of  law:  'It  is  a  well  set- 
tled rule  of  law  that  seems  not  to  stand  in  need  of  much  proof 
or  illustration  for  it  runs  through  all  the  books  from  Cheney's 
case  (5  Co.  Rep.,  68)  down  to  this  day,  that  parol  evidence  can' 
not  be  admitted  to  supply  or  contradict,  enlarge  or  vary  the 
words  of  the  will  nor  to  explain  the  intention  of  the  testator 
except  in  two  specified  cases;  1,  where  there  is  a  latent  ambi- 
guity arising  de  hors  the  will  as  to  the  person  or  subject-matter 
meant  to  be  described.'  " 

In  the  same  volume  of  Redfield  on  Wills,  p.  621.  it  is  said  i 

"The  courts  do  not  commonly  reject  any  evidence  which  in 
any  fair  view  may  be  presumed  to  have  a  bearing  upon  the 
construction  of  the  will,  and  it  is  not  uncommon  for  the  courts 
to  call  for  the  original  draught  of  a  mill,  or  a  former  will,  from 
which  the  will  in  question  was  made,  and  inspect  them  for  the 
purpose  of  seeing  precisely  how  the  mistake  did  occur." 

At  another  place  on  the  same  page,  621,  it  is  said: 

"The  only  advantage  which  in  such  cases  can  be  derived  from 
extrinsic  evidence  is  to  enable  the  court  to  place  themselves  in 
the  precise  position  of  the  testator  with  his  knowledge  of  ex- 
traneous facts  and  circumstances  so  as  to  enable  them  to  give 
such  a  construction  to  the  words  as  the  testator  himself  would 
have  done;  i.  e.,  such  as  will  carry  out  his  intention  in  using 


804  HAMILTON  COUNTY  COMMON  PLEAS. 

Taylor  et  a!  v.  Taylor  et  al.  [Tot.  XI,  N.  5. 

them  as  far  as  they  can  be  clearly  gathered  from  the  words  of 
the  will." 

The  author  after  saying  that  "it  is  not  uncommon  for  the 
courts  to  call  for  the  original  draught  of  a  will  or  a  former 
will  from  which  the  will  in  question  was  made  to  inspect  them," 
etc.,  makes  curious  and  interesting  comment  as  follows : 

"This  was  done  by  Lord  Brougham,  Chancellor,  in  the  im- 
portant case  of  Langston  v.  Langston,  and  his  Lordship  while 
deciding  precisely  in  accordance  with  the  light  thus  obtained 
disclaimed  all'  aid  from  this  source  and  declared  the  testimony 
inadmissible,  but  where  evidence  is  confessedly  inadmissible  it 
would  seem  more  consistent  and  more  dignified  aa  well  as  modest 
in  the  court  as  a  general  rule  certainly  not  to  examine  it" 

The  author  adds  a  note  on  the  same  page  with  the  quotation 
from  Langston  v.  Langston,  2  CI.  &  Fin.,  240,  to  which  I  make 
reference  without  quoting. 

Reference  is  made  by  the  author  in  a  note,  on  page  623,  also 
to  Blundell  V.  Gladstone,  11  Sim.,  467-468,  which  case  it  is  -Said 
'.'was  heard  on  appeal  before  the  chancellor  and  two  common 
law  judges  >and  affirmed.     1  Phillips  Rep.,  279." 

In  the  report,  Blundell  v.  Gladstone,  1  Phillips,  279,  it  is  said 
on  page  283:  "It  appears  that  the  testator  had  made  two 
former  wills,  one  in  the  year  1821  and  the  other  in  the  year 
1827."  A  statement  is  then  made  of  the  contents  of  those 
two  wills  as  bearing  upon  the  question  in  the  case  of  Blundell 
v.  Gladstone,  which  was  a  case  of  uncertainty  as  to  who  was  in- 
tended as  the  devisee  named  in  the  will.     It  is  said  on  page  284  r 

"From  both  these  wills  it  is  collected  that  the  testator  knew 
the  name  of  Mr.  Thomas  Wells'  next  brother  to  be  Joseph,  and 
from  the  will  of  1827  that  having  selected  the  second  son  of 
Mr.  Joseph  Wells  the  present  plaintiff  as  the  object  of  his  de- 
vise he  knew  how  to  describe  him,"  etc. 

See,  also,  pages  287-288  and  other  pages, 

These  statements  are  from  the  opinion  Of  the  judge  below 
and  the  Lord  Chancellor  in  deciding  the  case  upon  the  appeal 
said,  page  289: 

"We  are  much  obliged  to  the  learned  judges  for  their  assist- 
ance on   this  occasion   and   for  the   attention   they   have  paid 


NISI  PRIUS  REPORTS— NEW  8ERIES.  805 

1908.]  Taylor  at  al  v.  Taylor  et  al. 

to  this  question.  I  entirely  concur  in  the  opinion  which  they 
have  so  clearly  and  so  fully  expressed;"  proceeding  to  state 
the  ease. 

It  is  said  in  Redfield  on  Wills,  Vol  1,  page  573,  under  "Latent 
Ambiguities  and  the  Mode  of  their  Removal": 

"The  greatest  scope  for  the  admission  of  parol  evidence  in  ex- 
planation of  the  intention  of  the  testator  arises  in  regard  to  what 
are  denominated  latent  ambiguities.  These  are  so  called  since 
they  are  not  apparent  upon  the  face  of  the  will  but  arise  from 
the  proof  of  facts  outside  the  will  showing  that  the  words  of 
the  instrument  although  apparently  definite  and  specific  in 
themselves  are  nevertheless  susceptable  of  an  application  with 
equal  propriety  to  two  or  more  different  subjects  or  objects." 

The  ambiguity  in  the  will  of  Laura  C.  Taylor  arises  from  the 
proof  that  the  three  persons  previously  named  are  "the  heirs 
of  the  body  of  Rebecea  H.  Taylor." 

In  the  same  volume,  page  581,  is  an  interesting  note  upon  a 
doubt  expressed  by.  Blackburn,' J.,  in  the  case  of  the  will  of 
Joseph  Grant,  as  to  the  competency  of  certain  extrinsic  evi- 
dence.   And  in  the  note  it  is  said : 

"We  are  certainly  not  able  to  comprehend  the  ground  of  his 
hesitation"  etc.  "It  must  rest  upon  some  doubt  or  hesitation 
in  regard  to  the  fact  whether  the  ease  is  strictly-  one  of  latent 
ambiguity  or  only  one  of  defective  description  to  be  aided 
in  its  construction  by  placing  the  court  in  the  position  of  the 
testator,  at  the  time  he  made  his  will,  both  as  to  his  property  and 
the  person  whom  he  intended  to  benefit.  For  if  it  were  clearly 
a  case  of  the  former  character"  (latent  ambiguity)  "there  could 
be  no  question  upon  the  weight  of  existing  authority  in  the 
English  eourts,  that  all  the  evidence  offered  was  admissible.  But 
the  case  seems  to  us  clearly  one  of  latent  ambiguity  although  not 
strictly  one  of  equivocation,  but  no  doubt  in  either  view  the 
proof  of  the  surrounding  circumstances  was  admissible." 

It  is  stated  in  Jarman  on  Wills,  Vol.  1,  p.  443,  6th  Ed.,  that, 
"Evidence  of  all  the  material  facts  in  the  case  is  admissible  to 
assist  in  the  exposition  of  the  will." 

It  is  stated  in  Jarman  on  Wills,  Vol.  I,  star  pages  391,  392, 
393  that  extrinsic  evidence  is  admissible  to  prove  or  repel 
double  portion. 

On  page  392,  it  is  said : 


SOS  HAMILTON  COUNTY  COMMON  PLEAS. 

Taylor  et  al  r.  Taylor  et  al.  [Vol.  VII,  N.  S. 

' '  Such  evidence  may  also  be  adduced  to  repel  the  presumption 
as  distinguished  from  an  express  declaration  against  double  pro- 
tions. " 

It  is  said  also  on  the  same  page : 

"In  all  these  cases  parol  evidence  is  admissible  to  repel  the 
presumption;  counter  evidence  is  also  admissible  in  support  of 
it" 

Now  in  the  will  of  Laura  C.  Taylor,  clause  one,  there  is  clearly 
stated  a  bequest  to  "the  heirs  of  the  body  of  Rebecca  H.  Taylor 
per  stirpes  and  not  per  capita." 

As  the  basis  of  any  claim  that  these  words  are  descriptive  of 
persons  previously  named,  extrinsic  evidence  is  necessary  be- 
cause it  is  admitted  that  not  all  persons  previously  named  are 
heirs  of  the  body  of  Rebecca  H.  Taylor;  and  it  is  shown  by  ex- 
trinsic evidence,  and  could  not  be  ascertained  in  any  other  way, 
that  only  three  of  the  persons  previously  named  answer  that 
description,  to-wit,  Edward  B.  Taylor,  Anna  H.  Williams  and 
Howard  Q.  Taylor.  But  the  fact  that  these  three  are  in  fact 
heirs  of  the  body  of  Rebecca  H*.  Taylor  is  not  necessarily  con- 
clusive of  the  claim  that  the  words  "the  heirs  of  the  body  of 
Rebecca  H.  Taylor  per  stirpes  and  not  per  capita,"  are  simply 
descriptive  of  these  three;  and  I  think  "counter  evidence" 
must  be  admissible  to  show  the  real  intention. 
*  I  am  inclined  to  think  upon  consideration  that  reading  the 
will  just  as  it  is,  except  with  the  knowledge  that  the  three  are 
the  heirs  of  the  body  of  Rebecca  H.  Taylor,  the  words  "the  heirs 
of  the  body  of  Rebecca  H.  Taylor"  should  not  be  held  to  be  de- 
scriptive, but  to  constitute  a  separate  bequest. 

But  evidence  having  been  offered  to  show  that  the  three  per- 
sons named  are  the  heirs  of  the  body  of  Rebecca  H.  Taylor,  it 
would  seem  to  be  competent  that  any  other  evidence  of  circum- 
stances existing  at  the  time  of  the  execution  of  the  will  "which 
in  any  fair  view  may  be  presumed  to  have  a  bearing  upon  the 
construction  of  the  will,"  may  also  be  considered,  and  I  can  not 
but  think  that  the  will  of  the  deceased  husband  of  the  testatrix 
from  whom  she  received  the  estate  and  to  which  will  reference 
is  made  by  her  in  clause  one  of  her  will,  she  reciting  that  she 
made  her  bequests  in  accordance  with  her  said  husband's  de- 


NISI  PRrCS  REPORTS— NEW  SERIES.  307 

1908.]  In  re  Lemuel  P.  Craig. 

aire  that  a  portion  of  her  estate  should  be  so  devised  and  with  the 
knowledge  of  her  children,  is  competent. 

Leaving  the  will  of  Henry  W.  Taylor  out  of  consideration,  I 
would  still  be  inclined  to  think  in  view  of  the  whole  of  clause 
one  of  the  will  of  Laura  C.  Taylor  that  the  words,  "the  heirs 
of  the  body  of  Rebecca  H.  Taylor  per  stirpes  and  not  per  capita." 
constitute  a  separate  devise  to  such  heirs  in  addition  to  the  indi- 
vidual bequests  to  them  immediately  preceding  the  said  words, 
but  taking  into  consideration  the  will  of  Henry  W.  Taylor  it 
would  seem  quite  certain  that  such  is  the  proper  construction. 


EXTRADITION  PAPERS  VOID  WHEN  SIGNED  IN  BLANK. 
Common  PJeas  Court  of  Hamilton  County. 
In  re  Lemuel  F.  Oraio. 
Decided,  August  8,  1908. 
fugitive  from  Justice— Extradition  of — Papers  Saving  Reference  to. 
Must  Be  Examined  by  the  Qovernor  Personally — Power  to  Issue 
Warrant  can  not   be  Delegated — Sections  95,  96  and  97 — Habeas 
Corpus— Criminal  Law. 
When  a  warrant  of  extradition  Is  signed  by  the  Governor  In  blank  and 
is  afterward  filled  out  by  his  secretary  writing  therein  the  name 
of  some  accused  person,  it  Is  a  nullity;  but  the  Governor  may  Is- 
sue a  valid  warrant  on  the  same  paper. 

Scott  Bonham,  for  petitioner. 

John  H.  Russe,  Prosecuting  Attorney  for  Dearborn  County, 
Indiana,  contra. 

Swing,  J. 

This  matter  comes  before  me  upon  what  purports  to  be  an 
extradition  warrant  by  the  Qovernor  of  this  state  and  upon 
writ  of  habeas  corpus. 

Demand  was  made  upon  the  Governor  of  Ohio  by  the  Governor 
of  Indiana  for  the  arrest  of  Lemuel  F.  Craig  and  that  he  be 
delivered  to  the  Indiana  authorities  upon  a  charge  made  against 
him  in  that  state  of  false  pretenses,  etc.,  and  a  warrant  pur- 
porting to  be  an  extradition  warrant  signed  and  issued  by  the 
Governor  of  this  state  is  presented  to  me. 


308  HAMILTON  COUNTY  COMMON  PLEAS. 

Id  re  Lemuel  F.  Craig.  [Vol.  Tit,  N.  3. 

Lemuel  P.  Craig  was  arrested  upon  the  said  warrant  of  ex- 
tradition and  brought  before  me  as  a  judge  of  the  common  pleas 
court,  according  to  the  statute  in  such  case,  and  made  application 
for  a  writ  of  habeas  corpus,  alleging  that  he  was  unlawfully 
detained  and  setting  forth  various  grounds  for  his  claim. 

I  have  heard  the  matter  of  the  extradition  and  the  habeas 
corpus  upon  the  evidence  and  the  arguments  of  counsel. 

Without  going  into  all  the  questions  raised,  I  find  and  hold 
that  the  various  contentions  of  counsel  for  Lemuel  F.  Craig 
are  not  well  taken  except  as  to  the  validity  of  the  warrant  of  ex- 
tradition. 

It  was  shown  in  the  evidence  by  a  deposition  of  a  secretary 
in  the  office  of  the  Governor  of  this  state,  and  is  not  controverted, 
that  the  Governor  signed  certain  warrants  of  extradition  in 
blank,  and  that  in  his  absence  application  was  made  for  a  war- 
rant of  extradition  for  Lemuel  P.  Craig,  and  that  a  warrant  so 
signed  by  the  Governor  in  blank  was  filled  in  by  secretary  in 
his  office  with  the  name  of  Lemuel  P.  Craig  and  the  other  state- 
ments necessary  for  the  filling  of  the  blanks,  and  that  the  Gover- 
nor himself  did  not  grant  and  issue  the  warrant  of  extradition. 

It  is  claimed  by  counsel  for  Craig  that  the  said  warrant  of 
extradition  is  invalid. 

I  need  not  set  forth  the  provisions  of  the  Constitution  of  the 
United  States  and  of  the  state  of  Ohio  as  to  extradition. 

The  statute  of  Ohio  on  that  subject  enacted  in  accordance  with 
the  provisions  of  the  Constitutions  of  the  United  States  and  of 
the  state  of  Ohio,  R,  S.  0.,  Section  95,  provides  as  follows: 

"The  Governor  in  any  case  authorized  by  the  Constitution  of 
the  United  States  may  on  demand  deliver  over  to  the  executive 
authority  of  any  other  state  or  territory  any  person  charged 
therein  with  treason,  felony  or  other  crime  committed  there- 
in," etc. 

It  is  further  provided  by  said  Section  95  that: 

"The  demand  or  application  [for  the  delivery  of  the  person] 
must  be  accompanied  by  sworn  evidence  that  the  party  charged 
i3  a  fugitive  from  justice  and  that  the  demand  or  application  is 
made  in  good  faith  for  the  punishment  of  crime,  and  not  for  the 
purpose  of  collecting  a  debt  or  pecuniary  mulct  or  of  removing 


NISI  PRIUS  REPORTS— NEW  SERIES.  309 

1908.]  In  re  Lemuel  F.  Craig. 

the  alleged  fugitive  to  «  foreign  jurisdiction  with  a  view  there 
to  serve  him  with  civil  process;  and  also  by  a  duly  attested 
copy  of  an  indictment  or  an  information,  or  a  duly  attested 
copy  of  a  complaint  made  before  a  court  or  magistrate  author- 
ized to  take  the  same,  such  complaint  to  be  accompanied  by  an 
affidavit  or  affidavits  to  the  facts  constituting  the  offense  charged 
by  persons  having  actual  knowledge  thereof;  the  same  shall 
also  be  accompanied  by  a  statement  in  writing  from  the  prose- 
cuting attorney  of  the  proper  county  who  shall  briefly  set  forth 
all  the  facts  of  the  case,  the  reputation  of  the  party  or  parties 
asking  such  requisition,  and  whether  in  his  opinion  such  requisi- 
tion is  sought  from  improper  motives  or  in  good  faith  to  en- 
force the  criminal  laws  of  Ohio,  and  such  further  evidence  in 
support  thereof  as  the  Governor  may  require." 

Section  96,  R.  S.  0.,  provides  as  follows: 

"When  such  demand  or  application  is  made  the  Attorney- 
General  or  the  prosecuting  attorney  of  any  county  shall  if  the 
Governor  requires  it  forthwith  investigate  the  grounds  thereof 
and  report  to  the  Governor  all  the  material  facts  which  may  eome 
to  his  knowledge  with  an  abstract  of  the  evidence  in  the  case," 
etc.,  "with  an  opinion  as  to  the  legality  and  necessity  of  com- 
plying with  the  demand  or  application." 

In  Section  97,  R.  S.  0.,  it  is  provided  that,  "if  the  Governor 
decides  that  it  is  proper  to  comply  with  the  demand  he  shall 
issue  a  warrant,"  etc.,  and  it  is  provided  that  the  accused  shall 
be  brought  before  a  judge  of  the  Supreme  Court  or  of  a  circuit 
court  or  a  common  pleas  court  for  examination  upon  the  charge. 

The  provisions  of  the  statute  would  seem  clearly  upon  the 
face  of  them  to  impose  upon  the  Governor  personally  the  power 
and  duty  of  granting  and  issuing  extradition  warrants. 

Authority  is  not  wanting  upon  the  subject.  In  the  year  1892 
Judge  Moses  P.  Wilson,  then  a  judge  of  the  Court  of  Common 
Pleas  of  Hamilton  County,  in  the  Going  extradition  case  held 
that: 

.  "A  warrant  which  had  been  signed  by  the  Governor  in  blank, 
and  which  was  afterwards  in  his  absence  filled  out  by  his  secre- 
tary, was  invalid." 

See  editorial  on  this  decision,  in  Weekly  Imw  Bulletin;  Vol. 
28,  1892,  n.  133. 


810  HAMILTON  COUNTY  COMMON  PLEAS. 

In  re  Lemuel  F.  Craig.  [Vol.  VII,  N.  a 

The  editorial  in  Weekly  Law  Bulletin  further  says: 

"The  question  was  involved  in  the  case  of  Ex  parte  Larney 
and  decided  by  the  Supreme  Court  December  6,  1881  (see  6th 
Weekly  Law  Bulletin,  759,  797).  That  case  was  decided  with- 
out report,  but  several  lawyers  of  Cincinnati  who  were  inter- 
ested in  the  ease  wrote  to  the  court  asking  on  what  grounds 
the  court  had  decided  the  case.  Judge  Okey,  the  then  Chief 
Justice  of  the  Supreme  Court,  in  his  answer  stated  the  points 
of  the  decision  as  follows: 

"1.  'When  the  Governor  signs  a  warrant  for  extradition  in 
blank  it  is  a  nullity,  and  he  may  issue  a  valid  warrant  on  the 
same  paper.'  " 

And  then  in  the  letter  follow  other  points  that  were  decided. 

In  Weekly  Law  Bulletin,  Vol.  38,  1897,  p.  85,  there  is  another 
and  interesting  editorial  on  the  subject  to  which  attention  has 
been  called  by  counsel,  reviewing  the  record  in  the  Larney  case 
and  reaching  the  conclusion  that  the  question  of  the  validity  of 
an  extradition  warrant  signed  in  blank  by  the  Governor  and 
filled  out  afterward  by  a  secretary  in  the  Governor's  absence 
was  not  really  involved  in  that  case. 

The  record  as  published,  may,  if  not  carefully  read,  indicate 
that  the  question  was  not  necessarily  involved,  but  it  does  recite 
that  Judge  F.  W.  Moore  had  held  "the  warrant  to  be  invalid  upon 
information  deemed  reliable  that  it  was  issued  when  the  Governor 
was  not  present  at  his  office,"  and  that  Larney  had  been  ordered 
to  be  rearrested,  etc.,  and  he  was  rearrested  upon  a  second  war- 
rant. 

But  whether  the  question  was  necessarily  involved  in  the 
Larney  case  or  not,  it  is  quite  clear  that  Judge  Okey  in  his  letter 
in  relation  to  the  case  understood  that  it  was,  and  that  the  ques- 
tion had  been  decided,  and  understood  the  law  to  be  as  he  states, 
that  "when  the  Governor  signs  a  warrant  for  extradition  in 
blank  it  is  a  nullity." 

It  may  be  further  said,  however,  that  the  question  did  arise  as 
shown  by  the  Larney  case,  in  this  way,  to-wit,  the  record  shows 
that  one  of  the  grounds  of  attack  upon  the  second  arrest  under 
another  extradition  warrant  was  "as  to  the  regularity  of  the 
proceedings." 


NISI  PRIUS  REPORTS— NEW  SERIES.  811 

1908]  In  re  Lemuel  F.  Craig. 

I  have  no  doubt  that  the  question  arose  as  to  whether  the  sec- 
ond arrest  under  a  second  warrant  of  extradition,  the  first  having 
been  held  invalid  because  signed  by  the  Governor  in  blank, 
was  regular.  The  court  held  that  it  was  regular,  aad  it  is  in 
that  connection,  I  have  no  doubt,  that  Judge  Okey  wrote,  "when 
the  Governor  signs  a  warrant  for  extradition  in  blank  it  is  a 
nullity  and  he  may  issue  a  valid  warrant  on  the  same  paper.'.' 

It  appears  clear,  therefore,  that  the  question  was  before  the 
Supreme  Court  and  was  passed  upon,  and  I  can  not  assume,  as 
the  editor  in  the  article  in  the  38th  Weekly  Law  Bulletin  seems 
to  assume,  that  Judge  Okey  did  not  correctly  understand  what 
was  involved  in  the  Larney  cose,  and  what  was  decided  and 
what  the  law  was  when  he  wrote  the  letter  quoted.  In  Weekly 
Law  Bulletin,  Vol.  28. 

In  the  case  of  Work  V.  Corrington,  34  0.  S.,  64,  Judge  Okey, 
writing  the  opinion,  sets  forth  very  fully  the  grounds  upon  which 
it  would  seem  that  the  law  must  be  held  to  be  that  a  warrant  for 
extradition  signed  by  the  Governor  in  blank  is  invalid. 

In  that  opinion,  in  which  all  the  judges  of  our  Supreme  Court 
concur,  the  nature  of  the  power  and  duty  of  the  Governor  in 
such  a  case  is  ably  discussed.  The  question  in  that  case  was  as 
to  the  power*  of  the  Governor  to  revoke  an  extradition  warrant 
issued  by  his  predecessor  in  office,  but  the  discussion  as  to  powers 
and  duties  of  the  Governor  in  extradition  matters  is  very  in- 
structive. It  is  said,  quoting  from  Commonwealth  of  Kentucky 
v.  Dennison,  24  Howard  (U.  S-),  66:  "In  such  cases  the 
Governor  acts  in  his  official  character  and  represents  the 
sovereignty  of  the  state."  It  is  also  said,  quoting  from  Taylor 
v.  Taintor,  16  Wall.,  366,  that  the  Governor  "is  vested  with  dis- 
cretion to  withhold  the  warrant,"  and  a  number  of  instances 
are  mentioned  and  discussed,  and  it  is  said  on  page  75 : 

"The  duty  of  the  Governor  in  cases  of  that  elass  [referring 
to  a  certain  class  of  cases],  therefore,  is  one  of  great  delicacy." 

In  the  opinion  it  is  repeatedly  stated  that  the  Governor  has 
it  in  his  power  and  it  is  often  his  duty  to  exercise  "his  discre- 
tion." 


812  HAMILTON  COUNTY  COMMON  PLEAS. 

In  re  Lemuel  F.  Craig.  [Vol.  VII,  N.  S. 

In  the  esse  of  In  re  Tod,  12  S.  D.  Rep.  (1899-1900),  p.  386, 
it  is  said  in  the  syllabus : 

"The  duty  of  examining  extradition  papers,  passing  on  their 
validity  and  issuing  his  warrant  devolves  upon  the  Governor 
personally,  and  the  power  can  not  be  delegated." 

It  is  said  in  the  opinion,  page  396,  "it  was  also  shown  on  the 
hearing  that  the  warrant  purporting  to  be  signed  by  the  execu- 
tive of  this  state  was  never  in  fact  issued  by  him,  but  was  is- 
sued by  some  person  other  than  the  Governor.  The  duty 
of  examining  requisition  papers,  passing  upon  their  validity 
and  issuing  his  warrant  devolves  upon  the  Governor  per- 
sonally. It  is  a  power  that  can  not  be  delegated  to  any 
other  person.  The  liberty  of.  the  citizen  is  involved,  and 
he  can  only  be  restrained  of  that  liberty  by  the  personal  act 
of  the  Governor  upon  whom  the  power  has  been  conferred  by 
the  Constitution  and  laws  of  the  United  States  and  the  Consti- 
tution and  laws  of  this  state.  The  execution  of  the  power  re- 
quires examination  of  the  requisition  papers  and  involves  the 
exercise  of  a  sound  judgment  aided  in  case  of  necessity  by  the 
advice  of  the  Attorney-General  of  the  state.  The  liberty  of  the 
citizen  would  be  in  great  danger  if  any  person  could  be  allowed 
to  issue  such  extradition  warrants  in  the  absence  of  the  execu- 
tive. ' ' 

Other  authorities  bearing  directly  and  indirectly  upon  the  ques- 
tion might  be  cited  but  it  would  seem  to  be  unnecessary. 

I  am  reluctant  to  discharge  the  prisoner  in  this  case.  In  hold- 
ing the  warrant  invalid  I  do  not  mean  the  slightest  criticism 
upon  any  practice  that  may  prevail  in  the  Governor's  office,  and 
which  may  be  a  wise  practice  in  general.  The  validity  of  a 
Governor's  warrant  is  not  often  questioned  on  the  ground  raised 
in  this  case  for  the  reason  that,  as  held  by  Judge  Okey,  a  new 
warrant  can  be  readily  obtained.  Whatever  practice  may  pre- 
vail is  doubtless  quite  reasonable  under  all  the  circumstances 
that  exist,  but  when  the  question  of  the  validity  of  a  warrant 
signed  in  blank  by  the  Governor  and  filled  in  by  a  secretary  in 
his  absence,  is  clearly  raised  before  me  and  the  facts  are  shown 
conclusively,  I  can  only  decide  according  to  what  I  understand 
to  be  the  law  in  such  ease. 


NISI  PRIUS  REPORTS— NEW  SERIES.  818 

IMS.]  Bank  of  Montpeller  v.  Mullen  et  al. 

ABATEMENT  AND  REVIVAL  OF  JUDGMENT. 

Common  Pleas  Court  or  Williams  County. 

First  National  Bank  op  Montpelier  v.  Mullen  et  al. 

Decided,  November  11,  1907. 

Judgment*  and  Decrees — Grounds  for  Vacation  are  Cumulative — Effect 
of  Content  to  Vacation  and  Retrial  After  Term  of  Cause  Once  Re- 
duced to  Judgment — Facts  Constituting  Consent  to  Vacation De- 
termination of  Validity  of  Defense — Laches  and  Estoppel. 

1.  The  provisions  of  Section   15354,  Revised  Statutes,  with  reference  to 

the  vacation  or  modification  of  Judgments  after  term,  are  cumula- 
tive merely  and  not  exclusive. 

2.  Consent  by  counsel  to  the  opening  up  of  a  judgment  Is  a  waiver  of  a 

formal  finding  by  the  court  that  the  defense  about  to  be  offered  Is 
a  valid  one  within  the  meaning  of  Sections  E359  and  5360. 

3.  After  consent  by  counsel  for  the  payee  to  the  vacation  of  a  Judgment 

on  promissory  notes,  a  request  to  charge  the  Jury  not  to  undertake 
to  determine  the  validity  of  the  notes  comes  too  late  when  all  the 
evidence  has  been  heard,  and  the  right  to  question  the  action  of  the 
court  In  vacating  the  Judgment  Is  lost  by  laches. 

4.  Courts  may,  after  term,  redocket  and  retry  a  cause  once  tried  and  re- 

duced to  Judgment,  If  the  parties  so  request  and  the  subject-matter 
fe  within  the  province  of  the  court  to  decide;  and  neither  party  may 
withdraw  his  consent  after  the  new  trial  has  been  entered  upon. 

5.  It  is  sufficient  to  determine  the  Validity  of  a  defense  as  a  matter  of 

law  from  the  statement  pleaded,  and  the  existence  of  an  actual, 
defense  to  the  Judgment  sought  to  be  vacated  need  not  be  estab- 
lished before  the  order  of  vacation   Is  granted. 

6.  The  successive  steps  In  proceedings  to  vacate  a  Judgment  after  term, 

under  Sections  5354,  5359  and  5360,  are:  (1)  an  application  Hied  in 
the  original  case,  stating  the  ground  of  the  vacation  and  the  defense, 
upon  which  summons  shall  Issue,  and  no  further  pleading  is  re- 
quired; (2)  hearing  on  the  application;  (3)  if  ground  for  vacation 
Is  found  to  exist  and  a  valid  defense  Is  averred  In  the  application, 
the  Judgment  should  be  vacated,  but  the  Hen  of  the  original  Judg- 
ment saved  by  suspending  the  order  of  vacation  pending  trial  on 
the  merits;  (4)  a  pleading  setting  up  the  defense,  and  a  trial  upon 
the  issues  then  made  as  If  no  Judgment  had  been  rendered;  (5) 
the  rendering  of  a  Judgment  which  shall  either  restore  the  old  Judg- 
ment or  extinguish  It,  as  the  facts  found  on  the  trial  demand. 


814  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Montpeller  v.  Mullen  et  al.       [Vol.  VII,  N.  S. 

C.  A.  Bowcrsox,  Edward  Gaudem  and  S.  W.  Pressler,  for 
plaintiff. 

R.  L.  Starr,  contra. 

Killits,  J. 

The  unusual  complications  of  this  case,  out  of  which  has  grown 
an  issue  almost  unique,  apologize  for  this  contribution  to  the 
literature  upon  the  subject  of  vacating  judgments  shown  in  this 
ease  to  be  already  so  ample  as  to  confuse  lawyers  upon  the 
proper  practice  in  such  cases. 

During  the  November,  1904,  term  of  this  court,  four  actions, 
of  which  this  is  one,  and  which  were  afterwards  consolidated 
into  this  one,  were  brought  against  Austin  Mullen  and  Jennie 
Mullen,  upon  eight  promissory  notes.  The  plaintiff  here  was 
the  real  plaintiff  in  all  these  cases,  although  one  was  inad- 
vertently brought  in  the  name  of  the  payee  of  one  note  who  had 
endorsed  it  to  the  bank.  Three  of  these  cases,  this  one.  No.  5046. 
and  numbers  5045  and  5047,  were  upon  notes  with  warrants  of 
attorney  and  confessions,  upon  which  judgments  were  immedi- 
ately taken  against  Austin  and  Jennie  Mullen.  The  fourth,  No. 
5049,  was  in  five  causes  upon  as  many  notes,  each  for  less  than 
$100,  purporting  to  have  been  executed  by  .the  above  entitled 
parties.  Service  in  the  last  action  was  had  upon  Jennie  Mullen, 
and  judgment  therein  for  $211.39  was  taken  against  her  by  de- 
fault at  the  ensuing  term. 

A  year  later,  when  execution  was  sought  to  be  levied  upon 
these  four  judgments  on  the  lands  of  Alta  J.  Mullen,  who  was 
the  wife  of  Austin  Mullen,  she  began  proceedings  in  this  court 
to  vacate  each.  The  proceedings  were  begun,  in  each  instance, 
by  petition,  and  were  entered  upon  the  appearance  docket  as 
new  causes,  and  numbered  5266,  5267,  5276  and  5277.  That 
numbered  5267  was  the  one  appropriate  to  the  judgment  taken 
in  cause  No.  5049  upon  default,  and  5266  was  directed  at  the 
judgment  in  5046.  the  ease  at  bar.  In  each  of  the  vacation  pro- 
ceedings answers  Were  filed  and  issues  made  up  as  in -independ- 
ent actions,  the  bank  answering  as  defendant.  The  petition  in 
No.  5267  sets  up  the  judgment  in  5049  as  having  been  rendered 
by  default  upon  Austin  and  Jennie  Mullen,  the  issuance  of  an 


NISI  PRIUS  REPORTS— NEW  SERIES.  815 

1908.]  Bank  of  Montpeller  v.  Mullen  et  al. 

execution  to  be  levied  upon  the  lands  of  Alta  Jane  Mullen,  that 
the  latter  ' '  is  not  the  person  named  as  one  of  the  defendants  in 
said  cause"  (5049),  that  she  "is  not  the  person  whose  name  ap- 
pears as  one  of  the  signers  of  said  several  notes,"  that  she  never 
signed  either  of  said,  notes  and  never  authorized  the  signing  of 
either  of  them  in  her  behalf.  Then  follows  this  significant 
paragraph : 

"Plaintiff,  Alta  J.  Mullen,  further  says,  that  at  the  dates  of 
the  said  promissory  notes  there  resided  in  the  village  of  Mont- 
peller, Ohio,  a  person  by  the  name  of  Jennie  Mullen,  mother  of 
said  Austin  Mullen;  that  if  said  promissory  notes  are  genuine 
and  bear  bona  fide  signatures,  then  such  signatures  are  those  of 
said  Austin  Mullen  and  Jennie  Mullen,  mother  of  said  Austin 
Mullen. ' ' 

Further,  the  petition  avers  that  if  the  signature  "Jennie 
Mullen"  upon  either  of  the  notes  is  claimed  to  be  hers, 
Alta's,  the  same  is  a  forgery  and  the  judgment  rendered  in  said 
cause  was  obtained  by  fraud  practiced  by  the  said  defendant, 
the  bank,  plaintiff  in  the  original  action,  and  upon  false  testi- 
mony furnished  by  it,  and  that  she  has  a  valid  and  substantial 
defense  against  said  promissory  notes  as  above  herein  set  forth. 
Plaintiff  further  says  that  her  full  name  is  Alta  Jane  Mullen. 
The  prayer  is  that  if  the  bank  claims  that  the  signature  "Jennie 
Mullen"  is  hers  and  not  that  of  the  mother  of  Austin,  the  judg- 
ment be  opened  and  vacated  and  she  be  permitted  to  file  an  an- 
swer and  make  proof  of  the  falsity  of  such  claims,  and  "she 
further  prays  for  all  equitable  and  proper  relief  in  the  premises." 

The  First  National  Bank  of  Montpelier,  admitting  the  formal 
matters,  averred  that  it  bad  intended  Alta  Jane  Mullen  when  it 
sued  Jennie  Mullen  in  No.  5049,  and  that  she,  under  such  name, 
did,  in  fact,  execute  each  of  the  notes  set  out  in  the  petition  in 
such  ease,  and  knew  she  was  signing  the  same,  and  the  full  pur- 
port of  her  very  act,  and  knew  when  she  filed  her  petition  to 
vacate  that  she  had  executed  each  of  said  notes.  The  answer  also 
says:  "That  the  mother  of  Austin  Mullen  has  resided  in  the 
village  of  Montpelier,  Ohio,  more  or  less  of  the  time  for  the 
last  five  years."    The  prayer  of  this  answer  js  that  the  petition 


818  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Montpelter  v.  Mullen  et  al.       [Vol.  VII,  N.  8. 

to  vacate  the  judgment  may  be  dismissed  with  the  costs.  The 
answer  also  contains  a  general  denial.  A  reply  was  filed  in  the 
nature  of  a  general  denial  of  all  averments  of"  the  answer  not 
involving  admissions  of  matters  in  the  petition. 

The  petitions  to  vacate  in  the  other  three  proceedings  placed 
the  grounds  squarely  on  the  allegation  of  forgery.  At  the  call 
of  the  docket  of  November,  1906,  term  of  this  court,  these  ap- 
parently civil  actions  were  set  down  to  be  tried  to  a  jury  upon 
the  answer  of  counsel  in  this  case,  each  given  the  same  assign- 
ment. Number  5266,  being  the  number  appropriate  to  the  case 
■  at  bar  (5046),  was  agreed  upon  to  be  tried  first,  and  a  jury  was 
actually  empanneled  to  try  it,  when,  upon  statement  of  the 
nature  of  the  case  to  the  jury,  the  court  called  the  attention  of 
counsel  to  the  fact  that  the  issue  was  for  the  court.  Having,  how- 
ever, already  made  the  expense  of  the  jury,  and  there  being  no 
jury  ease  assigned  for  that  day  whereby  the  services  of  the 
twelve  men  in  the  box  might  be  utilized,  the  trial  judge  an- 
nounced to  counsel  that  he  would  keep  the  jury  in  the  box  and 
take  its  judgment  upon  the  question  raised  as  the  ground  of 
vacating,  namely,  the  alleged  false  signature,  counsel  being 
specially  notified  by  the  judge  that  the  "verdict"  of  the  jury 
would  be  used  by  the  court  only  as  advice  as  to  its  duty  with 
reference  to  vacating  the  judgment  permitting  a  defense  to  the 
note  to  be  interposed.  Under  these  circumstances  the  hearing 
continued  until  the  plaintiff,  Alta  Jane  Mullen,  was  about,  to 
rest  her  case,  when  counsel  for  the  bank  proposed  that  the  judg- 
ment in  5046  be  opened  as  asked  by  Mrs.  Mullen  and  that  the 
evidence  in  the  application  on  hearing  be  considered  as  ap- 
plicable to  the  other  cases,  and  the  same  action  be  taken  as  to  the 
judgments  in  cases  numbers  5045,  5047  and  5049,  as  asked  for 
by  her  in  the  proceedings  numbers  5276,  5277  and  5267.  He 
also  proposed,  that  if  these  four  judgments  were  opened  up,  the 
four  cases.  5045.  5046,  5047  and  5049,  should  be  consolidated  into 
5046.  with  leave  to  the  bank  to  file  an  amended  petition,  to  which 
Mrs.  Mullen  might  answer,  setting  up  her  defenses.  The  court, 
not  havihg  been  apprised  that  the  judgment  in  5049  differed 
from  those  in  the  other  cases  in  that  it  was  upon  default,  readily 


NISI  PRIUS  REPORTS— NEW  SERIES.  317 

1908.]  Bank  of  Montpeller  v.  Mullen  et  al. 

consented  to  this  proposition,  as  being  one  in  the  interest  of 
economy  and  the  dispatch  of  business.  Accordingly,  proceed- 
ings were  dropped  in  5266,  and  this  entry  was  made  in  the  trial 
docket : 

"Heard  as  to  appl'n  to  vacate.  Judg't  in  5046  vacated,  order 
of  vacation  suspended  until  cause  number  5046  be  tried.  Find- 
ing for  Pff.  Costs  of  this  action  to  be  taxed  with  5046." 

Substantially  the  same  entries  were  made  in  the  other  pro- 
ceedings upon  the  trial  docket,  numbers  being  changed  to  in- 
dicate the  several  judgments  affected.  By  this  action  the  de- 
fault judgment  in  5049  was  opened,  and  there  was  absolutely 
nothing  before  the  court,  directly  or  even  constructively  upon 
the  record  in  either  5049  or  its  appropriate  proceeding  to  vacate, 
No.  5267,  to  suggest  to  the  court  that  service  of  summons  was 
had  in  5049  upon  Alta  Jane  Mullen  sued  as  Jennie  Mullen.  The 
issues  made  in  the  proceedings  to  vacate  No.  5267,  were  of  such  ._ 
a  character  as  to  leave  the  court,  had  the  pleadings  been  ex- 
amined, to  infer  that  there  may  have  been  a  confusion  of  per- 
sons between  the  wife  and  mother  of  Austin  Mullen. 

These  entries  upon  the  trial  docket  were  read  in  open  court 
to  the  counsel  in  the  case,  who  were  apparently  satisfied  there- 
with. Thereupon  the  judge  presiding,  himself,  prepared  thp 
journal  entries  which  were  identical  in  all  four  proceedings. 
that  of  5267.  touching  the  default  "judgment  in  5049.  reading: 

"This  cause  coming  on  to  be  h?ard  upon  the  pleadings  and 
evidence  in  behalf  of  the  plaintiff,  and  the  defendant  not  in- 
troducing any  testimony  or  evidence,  and  the  plaintiff  having 
made  a  prima  facie  case  as  averred  in  her  petition,  it  was  agreed 
by  the  counsel  for  both  parties  that  so  mueh  of  the  judgment  in 
cause  number  5049  on  the  docket  of  this  court  as  purports  to  be 
against  one  Jennie  Mullen,  who  is  identified  with  the  plaintiff 
herein,  should  be  and  the  same  is  conditionally  vacated  in  order 
that  the  plaintiff  herein  sued  in  said  cause  numbered  50+9  as 
Jennie  Mullen  may  file  an  answer  in  said  cause  and  defend  there- 
in, and  it  is  further  ordered  that  there  be  no  further  reeord  of 
this  cause  except  the  entry  of  this  order  and  that  the  costs  here- 
in made,  taxed  at  $- ,  be  taxed  in  said  cause  No.  5049  to 

abide  the  result  in  said  cause  and  the  judgment  therein  upon 


818  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Montpelier  v.  Mullen  et  al.       [Vol.  VII,  N.  S. 

the  issues  to  be  joined  between  the  plaintiff  therein  and  the 
plaintiff  hereto,  made  defendant  therein  as  Jennie  Mullen,  and 
that  said  cause  No.  5049  be  redocketed  with  leave  to  plaintiff, 
sued  therein  as  Jennie  Mullen,  to  plead." 

The  four  entries  so  drawn  by  the  trial  judge  were  by  him  sent 
to  senior  counsel  for  the  bank,  by  bailiff,  for  such  counsel's  con- 
sideration. Shortly  thereafter  the  entries  were  brought  hack 
to  the  judge  by  counsel's  stenographer  with  an  unaddressed 
letter,  which  the  judge  naturally  understood  was  meant  for  him, 
and  which  reads  as  follows : 

"I  will  hardly  have  time  to  look  after  this  entry  business 
and  refer  it  to  you.  Will  you  take  up  the  subject  T  I  make  the 
following  ruggestions: 

"1.  I  do  not  know  that  it  makes  any  difference,  but  I 
hardly  think  the  words  'It  was  agreed,'  etc.,  ought  to  go  in  that 
form.  If  the  court  wishes  to  say  that  it  was  agreed,  that  the 
evidence  offered  should  be  considered  in  all  the  other  cases, 
thereupon  he  found  as  he  already  had,  it  might  not  be  a  matter 
of  objection.    Perhaps  it  is  not  anyhow,  but  you  may  think  of  it 

"2.  It  seems  to  me  the  entry  ought  to  show  that  upon  the  mo- 
tion of  the  plaintiff  bank,  all  the  cases  were  consolidated  or 
will  have  them  begin  to  consolidate  all  of  them  and  bring  the 
action  in  one  suit  of  the  proper  number  of  counts.  What  do  you 
think  of  thatt 

"3.  It  seems  to  me  that  it  ought  to  appear  in  the  case  of 
Pressler,  the  bank  has  taken  and  is  the  owner  of  that  judgment, 
which  as  a  matter  of  fact  it  now  is.  I  am  getting  my  matters 
together  to  be  absent  for  a  little  while,  and  must  refer  this  whole 
matter  of  these  entries  to  you." 

Long  after  the  entries  in  question  were  put  on  the  journal  it 
occurred,  on  a  re-reading  of  this  letter,  that,  although  brought 
directly  to  the  sitting  judge  as  a  seeming  reply  to  his  action  in 
submitting  the  entries,  it  may  have  been  intended  for  other  eyes. 
The  letter  is  here  quoted  to  show  that  the  court  did  not  misunder- 
stand counsel  for  the  bank  on  the  proposition  to  vacate  all 
four  judgments  and  in  his  suggestion  that  the  bank,  after  open- 
ing up  the  cases,  would  ask  to  have  them  consolidated.  Only  the 
suggestion  marked  number  one  in  the  letter  is  pertinent  to  these 
four  entries,  and  the  language  of  that  paragraph  was  so  enig- 


NISI  PRIUS  REPORTS— NEW  SERIES.  319 

1308.]  Bank  of  Montpeller  v.  Mullen  et  al. 

matical  that  the  author  of  the  entries  thought  that  they  were 
not  subject  to  substantial  objection  by  the  bank,  and,  there- 
fore, they  were  ordered  to  the  journal.  There  can  be  no  ques- 
tion whatever,  but  that  the  entries  conform  substantially  to  the 
proposition  of  counsel  for  the  bank  relative  to  the  opening  up  of 
all  the  judgments,  and  the  court's  clear  judgment  and  recollec- 
tion upon  that  point  is  fully  supported  by  the  language  of  the 
letter  above  quoted.  This  proposition  was  double,  first,  to  open 
up  the  judgments,  applying  the  testimony  as  to  5046  to  the  other 
three  cases,  and,  second,  to  consolidate  all  the  eases  under  one 
action,  with  the  new  petition  counting  on  all  the  notes  with  leave 
to  Mrs.  Mullen  to  answer.  It  was  further  agreed  that  the  cause 
then  under  consideration,  No.  5046,  whose  judgment  was  at- 
tacked in  the  proceeding  given  the  number  5266,  and  then  on 
hearing,  was  to  be  the  vehicle  to  bear  all  the  issues.  The  court 
thereupon  caused  the  four  original  eases  to  be  redocketed,  and 
on  the  trial  docket  made  an  entry  appropriate  to  the  circum- 
stances.   The  entry  for  5046  reads  i 

"Redocketed,  following  order  in  5266.  Costs  in  5266  to  abide 
result  of  trial  of  this  cause.  5045  and  5047  and  5049  consoli- 
dated herewith  and  Pff.  may  file  amended  petition  by  Jan.  15. 

next." 

The  entry  on  the  trial  docket  for  5049.  the  default  ease,  reads: 

'"Redocketed,  following  order  in  5267.  Consolidated  with 
.5046.  Costs  in  this  and  5267  to  abide  result  in  5046  and  to  be 
taxed  therewith." 

The  docket  entries  for  the  other  two  cases  were  substantially 
similar,  numbers  being  changed,  and  to  the  case  which  was 
brought  in  the  name  of  I.  W.  Pressler,  the  bank  being  the  real 
party  in  interest,  was  added:  "The  First  National  Bank  of 
Montpelier,  a  corporation,  is  substituted  as  party  plaintiff  for  I. 
W.   Pressler." 

These  trial  docket  entries  were  read  to  counsel  also,  and  on 
the  nest  morning,  the  court  having  prepared  the  additional 
journal  entries  for  each  of  these  matters,  one  of  the  latter  was 
read  to  counsel  from  the  bench,  and  counsel  were  informed  that 


820  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Montpelier  v.  Mullen  et  al.        [Vol.  VII,  N.  S. 

the  other  three  entries  were  similar  to  the  one  read.    The  entry 
for  5049  reads  as  follows : 

"Upon  motion  of  Jennie  Mullen  this  cause  is  redocketed 
following  the  order  of  the  court  in  cause  No.  5267,  and  this  cause 
is  by  consent  of  party  consolidated  with  cause  No.  5046,  in  this 
court,  wherein  the  First  National  Bank  of  Montpelier  is  plaintiff 
and  August  Mullen,  Jennie  Mullen  and  Mrs.  Jennie  Mullen  are 
defendants.  Judgment  in  .this  cause  heretofore  rendered  against 
the  defendant,  Jennie  Mullen,  is  vacated  in  said  order  of  vaca- 
tion suspended  in  order  to  permit  said  defendant,  Jennie  Mullen, 
to  defend  against  plaintiff's  cause  of  action.  Costs  in  said  cause 
No.  5267  to  follow  this  cause." 

It  will  be  noticed  that  in  these  latter  entries  the  court  has 
followed  substantially  the  suggestions  of  paragraphs  numbered 
2  and  3  of  the  letter  above  quoted,  the  only  variation  being  that 
instead  of  having  the  entry  show,  to  use  .the  language  of  the  let- 
ter, "that  upon  motion  of  the  plaintiff  bank  all  the  cases  were 
consolidated,"  it  shows  that  by  consent  of  parties  such  con' 
solidation  was  had.  It  is  plain  that  had  the  court  followed  tn? 
suggestion  and  had  ascribed  to  the  bank  the  sole  honor  of  pro- 
posing consolidation,  the  plaintiff  would  not  have  been  placed 
in  a  more  favorable  light  touching  the  question  now  before  us. 

The  proceedings  detailed  above  were  had  on  the  thirteenth 
and  fourteenth  days  of  December.  1906,  being  days  of  the  No- 
vember term,  and  the  foregoing  statement  embodying  documen- 
tary evidence  of  the  views  of  the  senior  counsel  for  the  bank  at 
the  time,  we  submit,  discloses  that  the  action  of  the  court  was 
exactly  such  as  counsel  for  the  bank  in  open  court  requested. 
In  addition  to  the  record  and  proofs  submitted,  we  have  dis- 
tinct recollection  that  particular  pains  were  taken  to  meet  the 
views  of  counsel  and  no  criticism  was  ever  offered  to  any  of 
either  the  docket  or  journal  entries  which  the  court  was  a> 
diligent  to  bring  to  the  attention  of  counsel  until  long  subsequent 
to  these  dates.  We  might  digress  here  to  say  that  about  six 
months  later,  while  these  matters  were  pending  on  the  motions 
about  to  be  disposed  of,  the  court  was  asked,  in  behalf  of  the 
bank,  to  allow  an  exception  to  be  entered,  as  of  the  date  Decern- 


NISI  PRIUS  REPORTS— NEW  SERIES.  321 

1908.]  Bank  of  Montpelier  r.  Mullen  et  al. 

ber  13,  1906,  to  the  order  vacating  the  judgment  in  No.  5049. 
This  request  is  naturally  opposed  by  counsel  for  Mrs.  Mullen, 
and.  as  it  is  the  undoubted  fact  that  such  judgment  was  opened 
up  at  the  direct  suggestion  of  the  bank  through  its  counsel  that 
the  action  of  the  court,  relative  to  the  judgment  in  5046,  should 
be  applied  to  5049,  as  shown  above,  we  indulge  in  unwillingness 
to  make  the  court  rediculous  by  allowing  such  a  retroactive  and 
second -thought  exception;    wherefore  the  request  is  denied. 

If  further  proof  be  needed  to  show  that  the  court  in  all  the 
above  but  met  the  wishes  of  counsel  for  the  bank,  it  is  furnished 
by  the  second  paragraph  of  its  amended  petition  filed  by  it  in 
the  original  and  redocketed  cause  No.  5046  on  January  14,  1907, 
leave  having  been  taken  to  file  the  same  before  the  fifteenth. 
The  paragraph  is  as  follows: 

"Said  plaintiff  says  that  by  agreement  of  counsel  and  the 
orders  of  the  court  heretofore  made  causes  No.  5045,  5046,  5047 
and  5049  are  consolidated  in  one  proceeding  as  original  cause 
5046,  with  the  necessary  and  proper  numbering  causes  of  ac- 
tion." 

On  the  fifth  of  March,  1907,  this  "Comedy  of  Errors,"  as  one 
of  the  counsel  for  the  bank  terms  the  matter  in  his  brief,  pro- 
ceeds to  another  act,  trial  commencing  to  a  jury  on  the  consoH- 
dated  case,  supposedly  upon  all  the  issues  involved  in  the  four 
old  cases,  and  upon  the  entire  number  of  notes.  By  evening  of 
the  first  day  plaintiff  bank  had  rested,  offering  all  the  notes, 
including  the  five  which  were  involved  in  the  judgment  in  No. 
5049.  The  last  witness  in  behalf  of  the  bank  was  the  defendant, 
Mrs.  Mullen,  who  was  placed  on  the  stand  for  cross-examination, 
the  sole  purpose  being  to  bring  out  the  facts,  that  in  January, 
1905,  the  sheriff  of  this  county  had  served  a  summons  on  her 
relative  to  the  claims  of  the  bank ;  that  thereafter  and  with  ref- 
erence thereto  she  had  visited  the  bank,  and  that  she  had  failed 
to  do  anything  else  in  the  matter  until  she  began  proceedings  to 
vacate  more  than  a  year  afterwards.  While  her  testimony  does 
not  clearly  show  that  the  paper  served  upon  her  in  January,  1905, 
was  the  alias  summons  in  5049,  yet  the  inference  that  it  was  such 
is  very  strong,  and  this  was  the  first  intimation  the  court  ever 


322  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  or  Montpeller  v.  Mullen  et  al.       [Vol.  VII.N.8. 

had  that  a  judgment  entered  upon  default  had  been  opened  by 
consent  of  counsel  for  the  judgment  creditor.  Even  then  no 
one  in  behalf  of  the  bank  suggested  repairing  any  step  of  the 
past  which  had  prejudiced  the  bank,  and  no  motion  or  intimation 
of  any  kind  was  made  to  the  court  that  the  bank  regretted  the 
opening  of  the  judgment,  or  desired  that  the  issues  upon  the 
five  notes  involved  therein  he  withdrew  from  the  jury's  consider- 
ation. To  our  mind  this  inaction  of  the  bank's  counsel,  at  this 
juncture  when,  if  the  opening  up  had  been  inadvertent,  a  motion 
might  have  saved  the  situation,  is  significant  that  the  plaintiff 
was  still  entirely  satisfied  to  let  matters  remain  as  they  were. 
Surely  no  action  of  the  court,  sua  sponte,  was  then  demanded. 

On  the  third  day  of  the  trial,  the  case  was  submitted  to  the 
jury,  not,  until  the  court  had  withdrawn  the  first  cause  of  ac- 
tion, Mrs.  Mullen  having  admitted  that  the  Pressler  note,  upon 
which  it  was  based,  was  genuine.  Judgment,  therefore,  was 
restored  immediately  to  the  bank  upou  this  cause  of  action  in- 
cluding all  the  costs  in  5045,  in  which  the  judgment  was  taken, 
and  in  5276,  the  proceeding  to  vacate.  The  other  seven  note* 
were  submitted  to  the  jury,  and  each  wa9  pronounced  by  the 
jury  to  be  a  forgery  a?  to  Mrs.  Mullen's  signature,  a  conclusion 
in  each  instance  almost  inevitable  from  the  testimony. 

After  three  days'  trial,  and  after  the  arguments  had  been 
made  to  the  jury  by  counsel  for  the  parties,  in  which  the  five 
pauses  of  action  upon  the.  notes  originally  sued  on  in  cause  No. 
504!)  were  treated  as  live  causes  for  the  jury's  consideration, 
the  bank's  counsel  for  the  first  time  moved  the  court  toward? 
relief  against  their  own  action  in  proposing  to  open  up  the 
judgment  in  5049,  by  making  this  request  to  instruct  the  jury: 

"It  appears  from  the  exhibits  and  the  admissions  of  the  de- 
fendant,  Jennie  Mullen,  that   in   case  No.   of  this  court 

summons  issued  and  was  served  upon  her  according  to  law.  and 
that  she  failed  to  answer  thereto,  but  was  in  default  and  judg- 
ment was  rendered  in  that  action  against  her.  The  law  authoriz- 
ing the  vacation  of  judgments  does  not  clothe  the  court  with 
jurisdiction  to  vacate  judgments  of  that  character  and  only 
authorize  the  court  to  vacate  judgments  for  the  specific  reason 
named  in  the  statute,    The  notes  sued  on  in  that  action  are  now 


NISI  PRIUS  REPORTS— NEW  SERIES.  823 

1908.]  Bank  of  Montpelier  v.  Mullen  et  al. 

set  up  in  the  fourth,  fifth,  sixth,  seventh  and  eighth  causes  in 
this  case  and  you  are  instructed  to  find  for  the  plaintiff  on  the 
fourth,  fifth,  sixth,  seventh  and  eighth  causes  of  this  action." 

This  request  was  refused,  the  court  being  of  the  opinion  that 
the  question  involved,  if  available  at  all  to  the  plaintiff,  should 
be  raised  either  by  motion  to  the  court  directly  to  reinstate  the 
vacated  judgment  or  on  the  application  of  the  verdict  to  the 
judgment,  the  vacation  of  which  was  suspended,  pending  the 
very  trial  which  the  plaintiff  bank  had  invoked.  Exceptions  were 
of  course  given  to  this  refusal  to  eharge. 

We  have  gone  into  the  facts  of  this  cause  at  great  length,  first, 
because,  as  against  all  of  the  above  stated  facts,  counsel  for  the 
bank  now  insist  that  they  never  intended  to  consent  to  the  vaca- 
tion of  the  default  judgment  in  cause  No.  5049 ;  and,  secondly, 
because  each  of  the  several  matters  above  stated  enters  intimately 
into  our  conclusions.  We  feel  confident  that  the  foregoing  de- 
tailed statement  of  the  facts  is  executable  to  make  plain  just 
where  the  bank's  predicament  began  to  develop  and  who  is  re- 
sponsible therefor. 

The  case  is  now  before  the  court  upon  three  motions  filed 
in  behalf  of  the  bank: 

First,  a  motion  for  a  new  trial  filed  in  this  case  within  three 
days  after  the  verdicit,  the  special  grounds  being: 

"The  court  at  no  time  found  that  any  of  the  grounds  to 
vacate  the  judgment  entered  in  the  original  cause  No.  5049, 
enumerated  in  Section  5354  of  the  Revised  Statutes  of  Ohio, 
did  exist. 

"It  was  at  no  time  adjudged  by  the  court  that  the  defend- 
ants had  a  valid  defense  to  said  action. 

"The  issues  submitted  to  the  jury  in  said  cause  for  its  de- 
termination were  not  authorized  by  law. 

"The  court  has  no  jurisdiction  to  enter  any  order  or  judg- 
ment in  said  cause,  or,  in  the  original  causes  referred  to  in  the 
pleadings  in  this  action." 

There  were  other  grounds  alleged,  being  some  of  those  speci- 
fied by  the  statute,  which  the  court  holds  to  be  untenable  with- 
out argument. 


WILLIAMS  COUNTY  'COMMON  PLEAS. 


Bank  of  Montpelier  v.  Mullen  et  al. 


Second,  a  motion  filed  in  this  case  a  month  after  the  trial,  in 
this  language : 

"Conies  now  the  First  National  Bank  of  Montpelier  and  moves 
the  court  for  an  order  reaffirming  the  finding  and  judgment  of 
the  court  rendered  in  cause  No.  5049  for  reasons  apparent  on  the 
face  of  the  record." 

Third,  a  motion  filed  two  months  after  the  trial,  and  in  the 
original  cause  No.  5049,  which  was  then  off  the  docket  by  an 
order  made  a  long  time  before,  which  motion  reads: 

"Comes  now  the  First  National  Bank  of  Montpelier  and 
moves  the  court  for  an  order  vacating  or  modifying  the  action, 
judgment,  order  or  decree  of  the  court  and  the  journal  entry 
thereof  in  cause  No.  5049,  on  the  docket  of  this  court,  of  the 
date  of  December  13,  1906,  wherein  and  whereby  the  judgment 
theretofore  rendered  in  said  cause  was  conditionally  vacated,  as 
if  by  consent,  for  the  reason  that  there  was  a  mistake  in  the 
journalizing  the  action  of  the  court  in  the  premises  in  this,  to- 
wit;  The  journal  entry,  purporting  to  set  forth  the  action  of 
the  court  in  said  matter,  was  drafted  by  the  judge  of  said  court, 
understanding  that  he  had  been  requested  to  so  draft  said  entry 
by  counsel  for  said  bank,  the  said  judge  not  being  informed  at 
the  time  that  summons  in  said  action  had  been  issued  and  regu- 
larly served  upon  said  defendant,  Jennie  Mullen,  and  that  she 
was  in  default  for  answer  or  demurrer  or  that  said  judgment 
was  regularly  rendered  against  her  by  default,  whereas,  in  fact, 
said  Jennie  Mullen  had  been  served  with  summons  in  said  action 
and  said  judgment,  so  conditionally  vacated,  was  regularly  ren- 
dered against  her  by  default,  and  that  had  said  judge  been  ad- 
vised of  said  default  he  would  not  have  so  ordered  or  prepared 
said  entry." 

It  will  be  observed  that  the  draftsman  of  this  last  motion 
does  not  undertake  to  claim  that  the  judgment  was  not  in  fact 
vacated  by  consent,  nor  that  the  decree  of  vacation  as  journal- 
ized by  the  court  was  different  from  the  understanding  of  the 
bank's  counsel,  nor  that  the  entry  does  not  in  fact  conform  to 
the  actual'  situation  at  the  time  it  was  ordered,  but  asks  that 
everything  to  the  prejudice  of  the  bank  be  now  undone  for  the 
reason,  quite  complimentary  to  the  court  at  least,  that  this  ex- 
traordinary thing  would  not  have  taken  place  had  the  court  known 


NISI  PRIUS  REPORTS— NEW  SERIES.  323 

1908.]  Bank  of  Montpeller  v.  Mullen  et  al, 

all  the  bank's  own  counsel  knew  at  the  time.     We  may  pass  this 
motion  with  this  comment.     It  is  overruled. 

The  first  legal  position  taken  by  counsel  for  the  bank  in 
argument  touches  the  first  two  averments  of  their  motion  for 
new  trial  quoted  above,  that  the  court  at  no  time  found 
grounds  existing  for  vacating  the  judgment,  such  as  are 
stated  to  be  essential  in  Section  5354.  Revised  Statutes,  and 
that  the  court  failed  to  adjudge  that  there  was  a  valid  defense 
to  the  original  action,  5049,  as  is  provided  by  Section  5360,  Re- 
vised Statutes;  in  other  words,  that  the  court  failed  to  follow 
the  provisions  of  Sections  5359,  5360,  Revised  Statutes.  The 
vice  of  the  argument  is  two-fold:  First,  in  assuming  that  a 
court  may  not  vacate  a  judgment  except  on  one  of  the  grounds 
set  out  in  Revised  Statutes,  5305  or  5354.  In  Brenzinger  v.  Bank, 
19  C.  C,  536,  Judge  Parker,  of  our  own  circuit  court,  says: 

"We  have  no  doubt  but  many  cases  may  arise  where  a  court 
may  properly  grant  a  new  trial  upon  grounds  other  than  those 
specifically  set  forth  in  the  statute.  We  are  of  the  opinion  that 
the  enumeration  of  certain  cases  in  the  statute,  which,  if  estab- 
lished, give  a  right  to  a  new  trial,  does  not  exclude  all  other 
cases  or  deprive  the  court  of  its  ancient  power  so  fully  recog- 
nized at  common  law,  to  grant  new  trials  for  other  good  and 
sufficient  reasons,  though  falling  short  of  statutory  grounds,  to 
promote  the  ends  of  justice." 

That  this  proposition  is  neither  novel  nor  revolutionary  is 
seen  from  the  decisions  of  the  Supreme  Court  in  Coates  v.  Bank, 
23  Ohio  St..  415.  and  Darst  v.  PhiUips,  41  Ohio  St.,  514,  in  each 
of  which  cases  it  is  held  that  the  provisions  of  Section  5354,  Re- 
vised Statutes,  are  cumulative  merely,  not  exclusive,  as  counsel 
argues. 

Secondly,  counsel  is  in  error  in  contending  that  the  entry  oF 
vacation  in  this  particular  case  should  include  an  adjudication 
that  Mrs.  Mullen  had  a  valid  defense.  It  must  not  be  forgot- 
ten that  the  bank's  representatives  distinctly  suggested  to  the 
court  that  all  four  of  the  cases  be  treated  as  if  heard  and  disposed 
of  with  5046  and  in  a  similar  manner;  that  the  vacation  of  the 
judgment  in  5049,  as  in  the  other  cases,  was  by  consent.     In 


828  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Mootpelier  v.  Mullen  et  al.       [Vol.  VII,  N.  S. 

National  Home  for  Dis.  Vol.  Sol.  v.  Overholser,  64  Ohio  St.,  517. 
519.  the  Supreme  Court  says  that  parties  may  waive  the  statu- 
tory grounds  for  opening  a  judgment  and  that  a  consent  to 
vacation  operates  as  such  waiver.  It  is  plain,  therefore,  that  a 
consent  opening  waives  a  formal  finding  by  the  court  that  the 
defense  which  the  plaintiff  consents  the  defendant  may  inter- 
pose for  trial  is,  if  made,  a  valid  one. 

The  first  really  interesting  proposition  in  this  case  is,  could 
the  court  vacate  the  judgment  in  5049,  even  by  consent,  it  ap- 
pearing that  defendant,  Mrs.  Mullen,  was  not  in  position  to  ask 
such  favor  upon  the  facts  that  were  not  known  to  the  court  at 
the  time,  but  which  afterward  came  to  its  attention!  Or,  in 
other  words,  is  this  attempted  vacation  of  what  was  practically  an 
irrevocable  judgment  effective?  It  goes  without  saying  that 
the  court  is  constructively  chargeable  with  knowledge  of  the 
state  of  the  record  with  which  it  is  dealing,  and  if  the  record  is 
equivocal,  the  court  may  act  upon  it  according  to  the  undisputed 
interpretation  of  the  parties  to  it.  as  shown  by  their  conduct  in 
court.  This  record,  in  5049,  and  in  its  affiliated  case,  5267,  was. 
on  December  13,  1906,  when  the  judgment  was  vacated,  equivocal 
to  the  court  according  to  the  interpretatibn  given  it  by  the  con- 
duct of  the  parties  and  their  silence  as  to  which  Jennie  Mullen 
the  summons  was  served  upon.  The  court  might  well  have  as- 
sumed, did  assume,  in  fact,  that  the  right  to  vacation  depended 
upon  the  confusion  as  to  these  persons,  which  fact  would  have 
given  ground  for  vacation  in  behalf  of  Jennie  Mullen,  the  wife. 
The  pleadings  in  5267  left  that  issue  prominent,  and  the  court 
was  justified  in  thinking  that  the  judgment  was  subject  to  vaca- 
tion when  the  beneficiary  of  it  consented  to  such  action— even 
proposed  it  in  the  first  instance.  But,  assuming  that  the  court 
knew  its  real  character,  could  the  court  vacate  the  judgment. 
even  by  consent,  and  reserve  the  issue  for  new  trial  f  Could  it 
reasume  jurisdiction  1  This  is  an  interesting  question.  Upon  it 
the  authorities  are  conflicting.  Two  eases.  Little  Rock  v.  Bullock. 
(i  Ark.,  282,  and  Anderson  v.  Thompson,  75  Tenn..  259,  hold 
that  the  court  loses  its  jurisdiction  with  the  first  trial,  and  may 
not  regain  it  thereafter,  even  by  consent;    that  all  subsequent 


NISI  PRIUS  REPORTS— NEW  SERIES.  327 

190S.J  Bank  of  Montpelier  v.  Mullen  et  al. 

proceedings  following  an  agreed  vacation  are  coram  non  judice 
and  void,  but  the  majority  of  the  holdings  are  the  other  way. 
In  Kidd  v.  McMillan,  21  Ala..  325,  it  is  said  that  if  a  court  set3 
aside  a  judgment  by  consent  and  again  tries  the  cause,  the  later 
judgment  is  not  void  for  want  of  jurisdiction,  but  the  court 
might  have  declined  to  entertain  it,  and  in  Hewetson  v.  Chicago, 
172  111.,  112,  the  court  says: 

"■The  rule  {that  the  court,  after  the  terra,  has  no  jurisdiction 
to  alter  or  vacate)  has  no  application  when  the  parties  voluntarily 
submit  themselves  to  the  jurisdiction  of  the  court  at  a  subsequent 
term,  and  ask  the  alteration,  opening  for  defense,  or  vacation  of 
a  judgment." 

Other  cases  in  point  are:  Gage  v.  Chicago,  141  111.,  642; 
Hair  v.  Moody,  9  Ala.,  399;  Royal  Trust  Co.  v.  Bank,  55  Neb., 
663;  Newman  v.  Newton,  14  Fed.  Rep.,  634;  Humphreyville  v. 
Culver,  73  111.,  485. 

Our  own  Supreme  Court  has  almost  decided  ihe  question  in 
the  National  Borne  for  Dis.  Vol,  Sol.  v.  Overholser,  supra,  when 
it  used  this  language  in  the  opinion;  the  case  being  weakened 
as  a  full  authority  only  because  of  the  peculiar  faots : 

"The  circuit  court  acted  •  •  •  apparently  upon  the  im- 
pression that  the  court  of  common  pleas  on  March  25,  1899,  was 
without  jurisdiction  to  set  aside  the  judgment  which  it  had 
rendered  on  the  twenty-fifth  of  November,  1898,  although  the 
parties  consented  thereto.  That  view  of  the  subject  is  erroneous. 
It  was  not  an  agreement  to  confer  upon  the  court  of  common 
pleas  jurisdiction  of  a  subject-matter.  That  court  is  vested  by 
statute  with  authority  to  set  aside  its  judgments  after  the  terms 
ait  which  they  are  rendered  for  specified  reasons,  and  when  coun- 
sel consented  that  that  jurisdiction  should  be  exercised  in  this 
ease,  they  did  no  more  than  to  waive  the  allegation  of  a  statutory 
ground  for  such  action." 

And  upon  principle  it  seems  that  the  majority  of  the  cases 
are  right.  Suppose  the  plaintiff  bank  should  have  come  into 
this  court  and  said,  "We  have  an  irrevocable  default  judg- 
'ment  against  Jennie  Mullen;  she  slept  upon  the  right  to  de- 
fend, but  she  insists  that  we  have  wronged  her  by  taking  it 


828  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Montpelier  v.  Mullen  at  al.       [Vol.  VII,  N.  S. 

upon  notes  that  were  fradulent  as  to  her.  We,  therefore,  waive 
our  right  to  this  judgment,  and  consent  that  the  court  should 
grant  her  prayer  for  vacation,  and  set  this  case  down  for  trial 
upon  our  claim  and  her  defense,"  would  there  be  any  reason  or 
good  sense  in  the  court's  refusal  to  permit  such  a  situation  to 
be  worked  out!  The  facts  before  us  present  substantially  this 
sort  of  case.  Mrs.  Mullen  is  before  the  court  seeking  to  have  a 
confession  judgment  on  what  she  claims  is  a  forged  cognovit  note 
vacated,  as  to  which  she  had  received  no  notice  (No.  5046).  She 
is  attacking,  in  as  many  proceedings,  three  other  judgments  in 
favor  of  the  same  plaintiff.  She  makes  a  prima  facie  case  for 
vacation  as  to  the  one  on  hearing,  whereupon  the  judgment 
creditor  proposes  to  the  court,  as  the  court  understood  counsel  for 
the  bank,  that  all  should  be  opened,  the  four  cases  consolidated 
and  the  defendant  allowed  to  contest  them  all.  Would  not  the 
court  have  made  itself  absured  should  it  have  said  to  the  parties 
thus  in  accord  for  vacation  r  "No,  we  can  not  hear  you  again  on 
the  default  judgment,  even  though  it  works  a  clear  fraud  upon 
Mrs.  Mullen!" 

The  second  question  of  interest  is,  assuming  that  the  court 
eould  not  reassume  jurisdiction  by  consent,  but  had  vacated  the 
judgment  by  consent  upon  a  record  that  bore  upon  its  face  an 
interpretation  favorable  to  the  jurisdiction  to  vacate,  but  which 
contained  a  latent  infirmity,  known  to  both  parties  but  not  to 
the  court,  which  destroyed  such  jurisdiction,  could  the  judgment 
creditor,  so  withholding  such  knowledge  from  the  court  and 
consenting  to  the  jurisdiction,  he  heard  to  recant  after  the  issues 
had  proceeded  to  the  length  they  had  gone  in  this  case  before 
plaintiff  bank  asked  for  the  instruction  relative  to  the  last  five 
causes  of  action  on  trial  1 

This  court  will  not  belittle  the  intelligence  of  counsel  for  the 
bank  by  entertaining  the  thought  that  this  judgment  was  allowed 
by  them  to  be  vacated  by  inadvertence  or  without  the  knowledge 
of  its  character,  nor  does  it  listen  with  patience  to  the  presenl 
insistence  in  the  briefs  that  they  did  not  consent  to  the  vacation. 
in  face  of  the  indubitable  proofs  that  they  are  not  merely 
agreed  to  that  act,  but  that"  the  proposition  that  the  evidence 


NISI  PRIUS  REPORTS— NEW  SERIES.  829 

1908.]  Bank  of  Moatpelier  v.  Mullen  et  al. 

offered  in  the  hearing  respecting  No.  5046  "should  be  considered 
in  all  the  other  cases,"  and  that  all  the  cases  should  be  consoli- 
dated and  "bring  the  action  in  one  suit  on  (the  proper  number  of 
counts,"  was  actually  "upon  the  motion  of  the  plaintiff  bank," 
as  the  letter  from  which  the  expressions  are  quoted  shows.  All 
three  of  'the  bank's  counsel  were  present  at  all  the  hearings,  and 
with  many  of  the  bank's  officers;  one  of  these  attorneys  took 
the  judgment  in  question  and  the  record  shows  that  he  personally 
looked  after  the  issuing  of  the  summons  upon  which  Mrs.  Mullen 
defaulted.  A  mouth  after  the  proposition  to  vacate  the  four 
cases  and  to  consolidate  was  acceded  to  by  the  court,  the  bank 
files  an  amended  petition  in  which  it  recites  that  all  four  of  the 
old  cases  are  resubmitted  for  trial  "by  agreement  of  counsel." 
Two  months  further  along,  three  months  after  the  order  of 
vacation,  the  court  still  in  ignorance  of  the  facts  which  the 
bank's  counsel  knew,  .the  consolidated  case  is  brought  to  trial 
before  a  jury,  and  the  trial  proceeds  for  three  days,  to  the  con- 
clusion of  testimony  and  full  presentation  of  the  case  to  the 
jury  by  the  cousnel,  before  any  motion  is  addressed  to  the  court 
whatever  affecting  the  status  of  the  judgment,  although  counsel 
for  the  bank,  on  the  first  day  of  the  trial,  in  cross-examining  the 
defendant,  disclosed  a  knowledge  of  all  the  facts  upon  which  it 
is  claimed  the  judgment  was  unimpeachable.  And  this  action 
is  not  in  the  form  of  a  motion  to  vacate  the  order  of  vacation, 
but  is  merely  a  request  to  charge  the  jury  not  to  undertake  to 
determine  the  validity  of  the  five  notes  sued  on  in  5049,  although 
in  the  opening  of  the  case,  with  the  same  knowledge  of  the  facts, 
the  issues  offered  by  these  five  notes  were  presented  to  the  jury  in 
the  statement  of  counsel  for  the  bank.  Was  the  bank  too  late 
in  this  matter !  Ought  it  to  be  heard  at  such  a  late  date  to  ask 
the  court  to  retrace  all  the  steps  taken,  and  make  a  farce  of  all 
the  previous  proceedings?  In  Brundage  v.  Biggs,  25  Ohio  St., 
651.  the  Supreme  Court  holds  that  a  motion  to  vacate  an  order 
vacating  a  dismissal  of  an  appeal  came  too  late  after  retrial  on 
the  merits,  although  the  movant  for  such  vacating  had  not  con- 
sented but  had.  in  fact,  objected  to  the  order  vacating  the  dis- 
missal.    Here,  a  party  finding  that  it  is  beaten  on  the  facts  on 


880  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Montpelier  v.  Mullen  et  al.       [Vol.  VII.  N.  S. 

ground  of  its  own  choosing,  asks  the  court  to  make  sport  of  the 
time  it  has  spent  upon  the  case  at  the  very  instance  of  such 
party. 

This  the  court  declines  to  do.  We  are  confident  that  the  bank, 
by  its  own  conduct  through  its  counsel,  lost  the  right  to  ask  that 
the  judgment  be  reinstated,  after  it  had  put  the  issues  in  the  old 
case  5049  to  the  jury.  Prior  to  the  empaneling  of  the  jury  per- 
haps it  would  have  been  the  court's  duty  to  put  the  judgment 
back  upon  a  showing  that,  as  to  the  court,  at  least,  the  vacation 
of  the  judgment  was  inadvertent,  but  the  application  came  too 
late  at  the  end  of  three  days'  trial,  even  if  the  request  to  charge 
may  be  considered  to  have  been  equivalent  to  a  request  to 
reinstate  the  judgment.  To  have  acted  upon  it  to  such  end  then 
would  have  opened  the  court  to  ridicule.  We  are  of  the  opinion 
that,  however  the  law  may  be  as  to  the  court's  right  to  enter- 
tain jurisdiction  to  vacate  a  default  judgment  after  term  by 
consent,  the  right  to  question  its  action  in  that  behalf  may  be 
lost  in  an  extreme  case,  by  laches  or  conduct,  and  that  such  an 
extreme  case  exists  here.  The  principle  that  jurisdiction  can 
not  be  conferred  by  consent  is  not  unlimited.  If  the  court  has 
jurisdiction  of  a  Bubject-matter,  generally,  consent  may  clothe 
it  with  power  to  hear  a  particular  case  involving  subject-matter 
of  that  category,  although  neither  party,  because  of  other  mat- 
ters, could,  against  the  other,  invoke  such  jurisdiction.  Having 
agreed  to  clothe  the  court  with  jurisdiction,  and  the  same  having 
been  assumed  by  the  court  upon  such  consent,  the  parties  are 
thereafter  estopped  to  deny  the  right  to  hear  the  ease.  Spring 
Street,  In  re,  112  Pa.  St.,  258. 

The  case  of  Warner  v.  Rowland,  10  Wis.,  8,  has  some  close 
analogy  to  the  point  in  this  case.  The  action  there  was  a  credi- 
tor's bill,  counting  upon  judgment.  The  defendant  answered, 
admitting  the  judgment,  but  on  the  trial  he-attempted  to  prove 
that  the  judgment  was  void  for  non-conformity  to  local  practice. 
The  court  denied  the  -testimony,  holding  that  while  the  existence 
of  the  judgment  was  jurisdictional,  the  admission  in  the  answer 
that  the  same  had  been  rendered  estopped  the  defendant  from 


NISI  PRIUS  REPORTS— NEW  SERIES.  881 

1908.]  Bank  of  Montpeller  v.  Mullen  et  al. 

endeavoring  to  discredit  ihe  jurisdiction  depending  upon  it  to 
which  he  had  volutarily  submitted. 

We  hold,  then,  that  the  court,  although  it  is  not  obliged  to, 
may,  after  the  term,  redocket  and  retry  a  cause  once  tried  be- 
fore it  and  reduced  to  judgment,  if  the  parties  request  it  and 
the  subject-matter  is  one  generally  within  the  court's  province 
to  decide,  and  that  neither  party  may  recant  his  consent  after 
the  court  has  entered  upon  the  new  trial.  It  follows  from  this 
that  the  several  motions  of  the  bank  having  reference  to  the  five 
causes  of  action  embraced  in  the  cause  No.  5049  should  be  and 
they  are  overruled,  and  the  suspension  of  the  vacation  of  the 
judgment  in  said  cause,  ordered  pending  this  trial  on  the  merits, 
should  be  ended,  and  that  judgment  be  now  rendered  in  Mrs. 
Mullen 's  favor  upon  the  fourth,  fifth,  sixth,  seventh  and  eighth 
causes  of  action  of  the  consolidated  case. 

This  opinion  is  already  too  long  to  go  farther  and  attempt  to 
set  counsel  for  the  bank  right  on  the  practice  under  Sections 
5354,  5359  and  5360,  Revised  Statutes,  by  comparing  what  seems 
to  be  their  erroneous  views,  as  set  out  in  their  argument,  with 
the  provisions  of  these  statutes.  We  will  end  by  briefly  setting 
out  what  seems  to  us  to  be  the  successive  steps  when  vacation  of 
a  judgment  is  sought  by  defendant  after  the  term,  for  any  rea- 
son other  than  these  embraced  in  the  first  three  sections  of  Sec- 
tion 5354,  Revised  Statutes :  First,  the  filing  of  a  petition,  con- 
taining an  averment  of  a  ground  for  vacation,  and  allegations 
suggesting  a  valid  defense.  This  petition  should  be  filed  in  the 
original  action,  and  not  under  the  reverse  title  and  with  a  new 
number  as  if  a  new  case,  as  was  done  in  the  cases  at  bar.  Sum- 
mons should  issue  for  the  plaintiff  to  meet  this  application,  but 
the  petition  need  not  be  pleaded  to  by  the  judgment  plaintiff; 
"second,  a  hearing  by  the  court  upon  the  grounds  advanced  for 
vacating,  and  a  consideration  of  the  defense  offered,  as  set  up  in 
the  petition  to  vacate;  third,  if  grounds  to  vacate  are  adjudged 
to  exist,  and  the  court  finds  that  a  prima  facie  defense  is  set 
up  in  the  averments  in  that  behalf  in  the  petition  to  vacate,  a 
vacation  of  the  judgment  must  be  ordered  and  order  of  vacation 


882  WILLIAMS  COUNTY  COMMON  PLEAS. 

Bank  of  Montpeller  v.  Mullen  et  al.        [Vol.  VII,  N.  S. 

suspended  pending  a  trial  on  the  merits,  such  suspension  to  be- 
come permanent  or  to  be  terminated  according  as  the  defendant, 
in  the  subsequent  trial,  fails  or  sustains  his  defense ;  this  to  pre- 
serve the  lien  of  the  judgment  if  the  new  trial  is  determined 
against  the  defendant.  It  is  not  required  by  the  practice,  as  coun- 
sel in  this  case  insists,  that  the  court  must  hear  the  testimony  as  to 
the  existence  of  an  actual  defense  before  it  may  order  vacation. 
The  court's  duty  in  that  behalf  is  limited  to  determination  of 
the  validity  of  the  defense  from  the  statement  of  it  which  the 
defendant  sets  up  in  his  petition  to  vacate;  fourth,  an  answer 
setting  up  defendant's  defense  to  the  original  petition  just  as  if 
no  judgment  had  toeen  rendered,  followed  by  a  reply,  if  necessary; 
and  then  a  trial  upon  the  issues  thus  made,  precisely  as  if  the 
case  had  never  theretofore  proceeded  to  judgment;  fifth,  such 
disposition  of  the  case  finally,  whether  to  restore  the  status  of 
the  old  judgment  or  to  finally  extinguish  it  in  favor  of  the  de- 
fendant, as  tbe  outcome  of  trial  demands.  As  we  have  said, 
the  consent  to  vacation  dispensed  with  some  of  the  intermediate 
steps,  but,  aside  from  them,  the  court,  in  these  proceedings,  en- 
deavored to,  and  did,  hold  the  eases  consistently  to  the  course 
outlined  above,  which  is  the  only  one  possible,  under  a  logical 
reading  of  the  several  statutes  and  the  decisions  annotating  them 
in  our  books  of  practice. 

To  the  report  of  the  case  of  Smead  Foundry  Co.  v.  Chesbor- 
ough,  18  C.  C,  783,  is  appended  a  colloquy  between  each  of  the 
judges  of  the  Lucas  county  circuit  court  and  one  of  the  attorneys 
in  the  case,  in  which  the  practice  is  explained.  This  dialogue 
is  commended  to  the  counsel  in  the  case  at  bar  for  their  edifica- 
tion. 


NISI  PRIUS  REPORTS—NEW  SERIES. 


PARTITION  OF  ANCESTRAL  PROPERTY. 

Common  Pleas  Court  of  Licking  County. 
John  W.  King  et  al  v.  Joshua  S.  Anderson. 

•Decided,   April  Term,   1908. 

Descent  of  Ancestral  Property— Partition  of— Releases  in  the  Form  of 
Warrant]/  Deed* — Ancestral  Character  of  Property  not  Changed 
Thereby — Widow  of  Parcener  Dying  Without  Issue  Takes  Life  Es- 
tate Only — Estoppel. 

Property  does  not  lose  Ite  ancestral  character  by  reason  of  the  fact 
that  In  making  a  partition  thereof  the  parceners  gave  releases  in 
the  form  of  deeds  of  general  warrant;  for  the  sole  purpose  of 
effecting  an  assignment  to  each  of  the  parties;  and  upon  the  death 
of  one  of  the  parceners  without  Issue,  bis  widow  takes  a  life  estate 
only,  the  fee  going  to  brothers  and  sisters  of  the  decedent. 

John  M.  Swartz  and  R.  W.  Howard,  for  plaintiffs. 
J.  R.  Daviet,  contra. 

Seward,  J.  (orally). 

This  ease  comes  into  this  court  on  appeal  from  the  probate 
court.  The  suit  is  brought  seeking  partition  of  several  traels 
of  real  estate,  but  the  only  tract  in  controversy  here  is  the  fifth 
tract  described  in  the  petition.  The  question  involved  is  whether 
that  was  ancestral  property  in  the  decedent  or  property  that 
came  to  him  by  purchase. 

John  W.  Anderson,  the  father  of  Joshua  S.  and  John  R.  Ander- 
son, died  intestate,  seized  of  about  140  acres  of  land,  including 
the  fifth  parcel  in  the  petition  described.  He  left  a  widow,  and 
two  sons,  Joshua  S.  and  John  R.  Forty-one  and  twenty  one- 
hundredths  acres  were  set  off  to  the  widow  for  her  dower.  It  was 
Bet  off  to  her  and  conveyed  to  her  by  their  joint  deed.  April  4, 
1883.  they  divided  the  balance,  104  26-100  acres,  each  deeding 
to  the  other  52  13-100  acres  by  different  descriptions,  there 
being  52  13-100  acres  in  each  deed.  The  consideration  named  in 
the  deeds  was  $1,400.    In  the  deed  from  Joshua  S.  to  John  R., 


884  LICKING  COUNTY  COMMON  PLEAS. 

King  et  al   v.  Anderson.  [Vol.  VII,  N.  8. 

the  one-half  is  recited.  In  the  other,  he  conveys  the  whole; 
and  these  deeds  contain  covenants  of  general  warranty.  , 

Subsequent  to  these  conveyances,  in  1898,  John  R.  died,  leav- 
ing a  widow,  but  no  children.  The  widow  of  John  R.  conveyed 
the  land  of  which  he  died  seized  to  one  Phillippi,  under  the  as- 
sumption that  the  land  came  to  John  by  purchase  and,  therefore, 
she  inherited  under  the  statute  in  that  respect. 

The  defendant,  Joshua,  claims  that  the  land  of  which  his 
brother  died  seized  was  ancestral  property,  and  that  the  land 
passed  to  him  as  heir  of  John  subject  to  the  widow's  life  estate. 
The  plaintiffs  claim  that  the  real  estate  was  not  ancestral  prop- 
erty, and  that,  upon  the  death  of  John  the  same  vested  in  his 
widow  in  fee. 

The  claim  is  made  by  the  plaintiffs'  counsel  that  this  deed 
from  Joshua  S.  to  John  R.,  contains  covenants  of  general  war- 
ranty, and  works  an  estoppel  upon  Joshua  to  claim  any  interest 
in  the  real  estate.  Joshua  claims  that  it  was  ancestral  property 
in  John  R.,  who  died,  and  upon  John's  death  the  title  passed  to 
tfce  widow  for  life  and  remainder  to  him,  subject  to  the  widow's 
life  estate.    And  that  is  so,  if  it  is  ancestral  property. 

The  deeds  were  made  on  the  same  date — the  4th  of  April.  I 
do  not  remember  the  year,  and  it  is  not  material.  These  deeds 
passed  between  John  R.  and  Joshua  S..  and  the  deed  from  the 
boys  to  their  mother  for  the  dower  interest. 

The  court  does  not  think  the  question  of  the  dower  interest  mils 
any  figure  in  relation  to  the  controversy  between  the  parties 
now  before  the  court.  It  is  claimed,  by  virtue  of  the  fact  that 
these  deeds  contained  covenants  of  general  warranty,  that  Joshua 
is  estopped  from  claiming  title,  he  having  made  a  warranty  deed 
to  John  R. ;  and  that  any  subsequent  title  that  John  R.  might 
acquire,  if  the  title  were  defective,  that  Joshua  would  be  es- 
topped from  claiming  any  interest  in  it. 

It  is  held  in  the  59th  Ohio  State,  page  96,  that  it  does  not  make 
any  difference,  if  deeds  are  passed  by  tenants  in  common,  in 
order  to  convey  to  each  tenant  his  particular  portion  of  the  land 
which  they  held  in  common  before,  that  it  does  not  affect  the 


NISI  PRIUS  REPORTS— NEW  SERIES.  835 

1908.]  Kins  et   al  v.   Anderson. 

question  of  the  title  to  the  property,  being  ancestral  property. 
That  it  is  only  where  it  came  by  purchase. 

There  are  three  ways  of  acquiring  title  to  real  estate  in  Ohio — 
by  descent,  by  deed  of  gift,  and  by  purchase.  If  this  prop- 
erty went  by  descent,  it  was  ancestral  property  in  these  boyB.  If 
it  went  to  either  of  them  by  purchase  from  the  other,  then  the 
ancestral  quality  of  the  property  was  destroyed,  and  it  became 
property  by  purchase,  and  would  go  to  the  widow  upon  the  death 
of  her  husband  without  leaving  any  heir  to  inherit  it ;  and  if  it 
was  ancestral  property,  it  would  go  to  her  for  life,  and  then  to 
the  brothers  of  the  whole  or  half  blood-  This  is  a  brother  of  the 
whole  blood. 

The  case  in  the  59th  Ohio  State,  page  96,  is  entitled  Carter 
et  al  v.  Day  et  al.    It  holds : 

"1.  The  line  of  descent  is  not  broken  by  partition  of  an  es- 
tate theretofore  held  in  common,  whether  the  partition  be  made 
in  a  legal  proceeding,  or  by  the  interchange  of  mutual  releases. 
In  either  ease  the  title  of  each  parcener  in  the  share  set  off  to  him 
in  severalty  remains  the  same  as  that  by  which  his  undivided  in- 
terest in  the  land  was  held.  » 

"2.  Where  the  estate  in  common  came  by  descent,  devise,  or 
deed  of  gift,  the  parcel  allotted  to  a  parcener  who  dies  seized 
of  the  same  descends  according  to  the  provisions  of  Section  4158 
of  the  Revised  Statutes. 

"3.  When  partition  is  made  by  mutual  releases,  they  should 
be  read  and  construed  together,  in  the  light  of  the  circumstances 
attending  their  execution;  and  it-is  competent. to  show  that  their 
only  purpose  was  to  accomplish  the  partition,  and  no  other  con- 
sideration passed  between  the  parties,  though  a  pecuniary  con- 
sideration be  expressed  in  the  deeds." 

It  looks  to  the  court  as  though  that  covers  the  case. 

"A  partition  of  land  by  action,  the  authorities  maintain,  cre- 
ates no  new  title  to  the  shares  set  off  to  the  parceners  in 
severalty.  While  its  effect  is  to  locate  the  share  of  each  in  his 
allotted  parcel  of  the  land,  and  extinguish  his  interest  in  all 
the  others,  the  title  by  which  he  holds  his  divided  share  is 
the  same  as  that  by  which  his  undivided  interest  in  the  estate  in 
common  was  held." 


886  LICKING  COUNTY  COMMON  PLEAS* 

King  et  al   v.  Andenoa.  [Vol.  VII,  N.  8. 

The  opinion  is  quite  lengthy,  and  the  court  will  not  go  into 
it  further. 

It  is  held  in  the  17th  Ohio  State,  page  527,  that  where  land 
came  to  tenants  in  common,  and  partition  proceedings  were 
commenced  by  some  of  the  tenants  against  others,  and  some  of 
the  tenants  elected  to  take  the  property  at  the  appraised  value, 
that  the  interest  that  the  tenant  took  at  the  appraised  valne 
came  by  purchase ;  and  that  the  interest  that  he  received  by  de- 
scent was  ancestral.  That  is  a  case  where  there  were  nine  chil- 
dren, and  one-ninth  came  by  descent  to  each.  Two  of  the  par- 
ceners elected  to  take  at  the  appraisement,  and  it  was  held  by 
the  Supreme  Court  that,  in  so  far  as  the  election  to  take  at  the 
appraisement,  that  portion  of  it  came  by  purchase,  but  the  other 
was  ancestral  property. 

It  is  claimed*  that  this  warranty  deed  cuts  some,  figure  in  the 
case ;  and  it  would  if  the  title  came  by  purchase,  possibly ;  but 
if  it  was  simply  a  scheme  to  give  to  each  parcener  his  particular 
portion  of  the  land  which  they  held  in  common,  then  it  would  not 
cut  any  figure,  as  'tne  court  views  it,  and  it  would  not  estop  the 
.grantor  from  claiming  title  by  descent  from  his  brother. 

I  am  cited  to  the  14th  Ohio  State,  page  341,  a  decision  by 
Judge  Ranney.  The  title  of  the  case  is  Jesse  Bukill  v.  Steuben- 
vilU  &  Richmond  Plank  Road  Co.  The  second  branch  of  the 
syllabus  is  as  follows : 

"Where  in  a  deed,  in  the  ordinary  form  of  bargain,  sale  and 
release,  and  whicb  purports  only  to  convey  to  the  grantees  'all 
the  estate,  right,  title,  interest,  claim  and  demand,  both  in  law 
and  equity,'  of  the  grantors,  'of,  in  and  to  the  said  premises, 
and  every  part  thereof,'  containing  no  recital  or  other  descrip- 
tion whatever,  of  any  particular  interest  owned  or  possessed  by 
the  grantors,  or  intended  to  be  conveyed,  a  covenant  is  inserted 
by  which  the  grantors  agree  to  'warrant  and  forever  defend  the 
said  premises  against  all  persons  claiming  or  to  claim,  by,  from 
or  under  them,  their  heirs  or  assigns,'  such  covenant  is  only  co- 
extensive with  the  grant,  and  binds  only  the  vested  interests  of 
the  grantors  in  the  property  at  the  time,  and  does  not  extend 
to  an  after-acquired  title." 

And  the  court  held  in  this  case  that  that  does  not  work  an 


NISI  PBIUS  REPORTS— NEW  SERIES. 


estoppel  on  the  part  of  the  grantor  as  to  any  future  title.     I 
read  from  page  343: 

"But  the  court  is  also  of  the  opinion  that  the  covenant  works 
no  such  consequence  as  is  supposed,  "—that  is,  an  estoppel — 
"and  that  it  is  not  of  the  slightest  consequence  whether  it  is  in 
or  out  of  the  deed.  The  deed  is  in  the  ordinary  form  of  bargain, 
sale  and  release,  and  purports  only  to  convey  to  the  grantees,  'all 
the  estate,  right,  title,  interest,  claim  and  demand,  both  in  law 
and  equity,  of  the  said  Michael  V.  Brocaw  and  Magdalene,  his 
wife,  of,  in  and  to  the  said  premises,  and  every  part  thereof. '  It 
contains  no  recital,  or  other  description  whatever,  of  any  par- 
ticular interest  owned  or  possessed  by  the  grantors,  or  intended 
to  be  conveyed." 

But  what  were  these  parties  attempting  to  dot  They  were  at- 
tempting to  divide  np  this  land  and  each  get  his  particular  por- 
tion of  it;  Joshua  to  get  his  52  13-100  acres  out  of  the  whole 
piece,  and  John  to  get  5213*100  acres  out  of  the  whole  piece — 
the  145  acres,  and  to  give  the  'widow  a  sufficient  portion  which 
would  satisfy  her  dower  interest.  That  Ib  what  they  were  at- 
tempting to  do.  They  put  inieaeh  deed  a  consideration  of  $1,400; 
each  deed  was  made  on  the  same  date;  and  the  court  thinks  that 
these  parties  were  simply  attempting  to  do,  and  were  doing,  at 
that  time,  what  they  had  a  right  to  do;  to  assign  to  each  his 
particular  portion  in  the  entire  tract  of  land;  and  that  this 
property  is  ancestral  property,  and,  upon  the  death  of  John  R., 
without  issue,  the  title,  in  fee  simple,  passed  to  his  brother, 
Joshua  S. ;  and  there  may  be  a  decree  accordingly. 


HAMILTON  COUNTY  COMMON  PLEAS. 

Sickles  et  a]  v.  State.  [Vol.  VII,  N.  8. 


CONSTRUCTION  OF  THE  STATUTE  GOVERNING  THE  SALE 
OF  DR.UGS  AND  POISONS. 

Common  Pleas  Court  of  Hamilton  County. 
E.  M.  Sickles  and  three  others  v.  The  Statu  op  Ohio. 

Decided.  May,   1908. 

Retailing  of  Drugs,  Compounding  of  Prescriptions,  Bale  o/  Poisons— 
Statutory  Regulation*  with  Reference  to — Prosecution*  Under  Sec- 
tion U05 — What  the  Statute  Prohibits — Jurisdiction  of  the  Magis- 
trate— Character  of  Proof  Required— Affidavits  Charging  the  Of- 
fense— Criminal  Law. 

1.  Section  4405,  Revised  Statutes,  governing  the  sale  of  drugs,  poisons. 

etc.,  embraces  two  offenses:  (a)  prohibiting  a  "proprietor  or  man- 
ager," not  a  legally  registered  pharmatist,  to  Open  or  conduct  a 
pharmacy  without  having  In  charge  a  legally  registered  pharma- 
cist; and  (SI  prohibiting  any  person  not  a  legal/y  registered 
pharmacist,  or  a  legally  registered  assistant  pharmacist  under  a 
legally  registered  pharmacist,  to  compound,  dispense  or  sell  any 
drug,  poison,  etc. 

2.  Unless  the  accused  waive  a  jury  in  writing,  the  magistrate  has  no 

authority  to  punish,  and  can  only  bind  the  prisoner  over  (o  the 

3.  Such  magistrate  being  only  an  examining  officer,  strict  proof  Is  not 

required,  it  being  only  necessary  to  show  that  the  offense  has 
been  committed,  and  that  there  was  probable  cause  to  believe  the 
prisoner  guilty. 

Hoffman,  Bode  &  LeBlond  and  Millard  Tyree,  for  plaintiffs 
in  error. 

Charles  F.  Williams,  contra. 

Pflegeb,  J. 

The  four  above  entitled  eases  taken  upon  error  from  the  magis- 
trate's court  were  prosecutions  under  Section  4405,  Revised 
Statutes,  governing  the  sale  of  drugs  by  registered  pharmacists. 
Three  questions  are  involved:  (1)  Was  the  evidence  sufficient 
to  convict  the  defendants!  (2)  Was  there  a  sufficient  allega- 
tion in  the  affidavits  constituting  the  offense  charged!  And, 
(3)  Did  the  magistrate  have  authority  to  impose  the  sentence! 


NISI  PRIUS  REPORTS— NEW  SERIES.  339 

1908.]  Sickles  et  ai  v.  State. 

Taking  the  last  assignment  of  error  first,  the  magistrate  tried 
the  accused  without  a  jury  or  a  waiver  of  a  jury  as  if  he  had 
final  jurisdiction,  and  punished  the  defendants  by  inflicting  a 
fine  of  $20.  Section  7147  provides  that  when  there  is  no  plea 
of  guilty  and  if  the  offense  charged  be  a  misdemeanor  and  the 
accused  does  not  waive  a  jury  in  writing,  the  magistrate  can 
only  inquire  into  the  complaint,  and  if  there  is  probable  cause 
to  believe  the  prisoner  guilty,  he  shall  bind  the  accused  over 
to  the  proper  court  and  take  a  recognizance  for  his  appearance 
in  the  other  court;  otherwise  he  shall  be  discharged  from  cus- 
tody. 

There  appears  to  he  no  special  provision  to  try  the  accused, 
unless  it  be  by  virtue  of  Section  3718,  Revised  Statutes,  appli- 
cable to  the  adulteration  or  deception  in  the  sale  of  dairy  pro- 
ducts or  any  other  foods,  drugs  and  medicines,  which  provides 
for  Impanneling  a  jury  from  the  common  pleas  jury  wheel  in 
the  event  a  jury  be  not,  waived. 

In  the  cases  at  bar  the  jury  was  not  waived  either  in  writing 
or  orally.  The  records  do  not  disclose  whether  a  jury  was 
waived  or  not.  In  Simmons  v.  State,  75  0.  S.,  346,  it  was  de- 
termined that  such  waiver  must  clearly  and  affirmatively  ap- 
pear upon  the  record  before  the  magistrate  can  hear  the 
plaint  and  render  final  judgment.  The  justice,  therefore,  had 
not  the  authority  under  the  circumstances  to  hear  and  deter- 
mine the  cases  and  render  final  judgment  by  fine.  This  was 
roneous. 

(2)  There  are  at  least  two  separate  offenses  charged  in  £ 
tion  4405,  Revised  Statutes.  One  is  that  it  is  unlawful  for 
a  "proprietor  or  manager"  not  a  legally  registered  pharmacist 
to  open  or  conduct  a  pharmacy  without  having  in  his  employ 
and  placed  in  charge  a  legally  registered  pharmacist  under  the 
laws  of  this  state.  The  other  is  that  it  is  unlawful  for  any  per- 
son not  a  legally  registered  pharmacist  to  compound,  dispense  or 
sell  any  drug  unless  he  be  a  legally  registered  assistant  employed 
under  a  legally  registered  pharmacist. 

Each  and  all  of  the  four  affidavits  charge  the  defendants  with 
unlawfully  opening  and  conducting  a  retail  drug  store,  offering 


810  HAMILTON  COUNTY  COMMON  PLEAS. 

Sickles  et  al  v.  State.  [Vol.  VII,  N.  S. 

and  exposing  for  sale  divers  drugs,  to-wit,  "tincture  of  iodine 
or  opiate,"  the  defendant  not  then  and  there  being  a  legally 
registered  pharmacist  under  the  laws  of  Ohio,  nor  having  in  his 
employ  such  a  legally  registered  pharmacist.  The  affidavits  wer^ 
insufficient  in  failing  to  state  that  the  defendants  were  either 
proprietors  or  managers  under  the  first  charge.  If  it  was  in- 
tended to  cover  the  second  charge,  then  the  gravamen  of  the 
offense  in  compounding,  dispensing  or  selling  such  drug  or 
poison  (not  in  offering  or  exposing  the  same  for  sale)  was  en- 
tirely omitted.  The  affidavits  in  all  four  cases  were,  therefore, 
defective  in  these  respects. 

(3)  On  the  ground  that  the  evidence  offered  was  insufficient 
to  convict,  it  may  be  stated  that  the  justice  in  these  cases  being 
merely  an  examining  magistrate,  it  was  only  necessary  to  show 
that  the  offense  had  been  committed  and  that  there  was  prob- 
able cause  to  believe  the  prisoner  guilty.  Strict  proof,  as  in 
courts  having  final  jurisdiction,  is  not  required. 

In  the  Sickles  case  it  was  shown  thatthe  defendant,  who  was 
not  a  registered  pharmacist  or  assistant,  was  in  sole  charge  of 
the  drug  store  and  sold  to  the  prosecuting  witness  tincture  of 
iodine.  In  none  of  the  cases  making  such  a  charge  except  the 
one  against  Andrews  was  there  proof  that  tincture  of  iodine 
was  a  drug  or  poison.  In  the  Sickles  case,  had  the  prosecution 
elected  to  try  the  case  on  the  second  charge  under  the  statute, 
it  would  have  furnished  sufficient  evidence  to  bind  the  defendant 
over;  assuming,  of  course,  that  it  wai  unnecessary  in  a  prelimin- 
ary hearing  to  produce  proof  that  the  article  sold  was  a  drug  or 
poison. 

In  the  Andrews  case  tincture  of  iodine  was  shown  to  be  a 
chemical  or  poison,  but  the  accused  was  charged  with  selling 
nux  vomica.  The  state,  however,  elected  to  proceed  against  the 
accused  as  one  who  opens  or  conducts  a  drug  store  without  a 
registered  pharmacist  instead  of  on  the  charge  of  being  an  un- 
registered pharmacist  who  sold  a  drug  or  poison,  and  under 
which  latter  offense  it  would  have  been  insufficient  to  ultimately 
convict  of  the  offense  charged  in  the  affidavit.  It  was  unneces- 
sary to  prove  the  sale  of  the  drug  in  the  first  offense  and  if 


NISI  PBII1S  REPORTS— NEW  SERIES.  841 

1908.]  Sickles  et  al  v.  State. 

the  testimony  that  the  defendant  was  in  charge  of  the  store  was 
sufficient  to  establish  that  the  defendant  was  the  "proprietor 
or  manager,"  the  proof  would  have  been  complete. 

In  the  Minsterketter  ease  the  charge  was  selling  nux  vomica, 
and  the  state  elected  to  proceed  on  the  charge  that  he  was  offer- 
ing and  exposing  for  sale  nux  vomica.  This  charge  was  insuffi- 
cient in  that  it  failed  to  allege  either  compounding,  dispensing 
or  selling.  The  proof  established  that  the  accused  sold  tincture 
of  arnica  and  not  nux  vomica.  The  proof  also  failed  to  show 
that  it  was  a  drug,  poison,  chemical  or  pharmaceutical  prepara- 
tion. In  the  Rhein  case  the  affidavit  charged  the  defendant  with 
exposing  and  offering  for  sale  tincture  of  opia,  and  the  state 
elected  to  proceed  on  the  charge  of  opening  and  conducting  a 
drug  store.  The  evidence  established  the  fact  that  the  accused 
was  a  relief  clerk  who  was  not  registered  in  accordance  with 
the  laws  of  the  state  and  that  he  was  in  charge  of  the  store  and 
that  the  proprietor  was  temporarily  absent  in  the  cellar.  It  does 
not  appear  that  the  accused  sold  any  drug  nor  that  the  proprie- 
tor, who  was  about  the  store,  to-wit,  in  the  cellar,  was  not  him- 
self a  registered  pharmacist  and  would  put  up  -the  prescriptions 
or  make  the  sales. 

The  proof  in  this  case  is  incomplete  in  establishing  even  a  case 
sufficient  to  bind  the  accused  over. 

The  proceedings  in  all  four  cases  are,  therefore,  reversed,  and 
inasmuch  as  all  of  the  charges  are  defective  in  the  particulars 
mentioned,  the  defendants  will  be  discharged  in  all  these  cases. 


GREENE  COUNTY  COMMON  PLEAS. 
Parish    *   Co.    v.    Kauffman.  [Vi 


TAXATION  OF  CHATTEL  MORTGAGES. 

Common  Pleas  Court  of  Greene  County. 

C.  R.  Parish  &  Company  v.  0.  B.  Kacffman,  Treasurer 
Greene  County,  Ohio. 

Decided,  July  7,   1908. 

Mortgage*— Taxation  of.  Where  Covering  Chattel  Property — What  De- 
termines Place  of  Taxation — Collection*  by  Agent — Owner'*  Resi- 
dence— Sitna  of  Property — Injunction. 

Where  an  owner  having  possession  of  notes  and  mortgages  covering 
chattel  property  resides  In  another  county,  such  notes  and  mort- 
gages are  taxable  In  the  county  of  the  owner's  residence,  and  not  In 
the  county  In  which  the  property  Is  situated,  notwithstanding  the 
owner  has  an  agent  in  the  county  of  the  situs  of  the  property  who 
is  authorised  to  receive  Interest  and  installments  on  the  principal 
as  they  fall  due. 

Carpenter  &  Voorhees,  of  Columbus,  for  plaintiff. 
William  F.  Orr,  Prosecuting  Attorney,  contra. 

Kyle,  J. 

This  is  an  action  brought  by  C.  R.  Parish  &  Company,  a 
partnership  consisting  of  C.  R.  Parish  and  T.  J.  Parish,  duly 
formed  for  the  purpose  of  carrying  on  the  business  of  dealing 
in  furniture,  household  goods,  etc..  with  its  principal  office  and 
place  of  business  in  the  city  of  Columbus,  Ohio,  where  said  part- 
ners reside,  against  O.  B.  Kauffman,  as  treasurer  of  Greene  coun- 
ty, Ohio,  seeking  to  enjoin  him  from  the  collection  of  certain 
taxes. 

The  said  plaintiff  in  March,  1907,  established  a  branch  store 
in  Xenia,  Ohio,  for  the  purpose  of  carrying  on  its  business,  and 
employed  one  L.  A.  Parrett  as  agent  to  conduct  the  same.  Said 
Parrett,  as  agent,  sold  the  goods  and  furniture  furnished  him 
for  cash  and  upon  deferred  payments  secured  by  chattel  mort- 
gage upon  the  goods  sold.  At  stated  periods  said  agent  re- 
ported to  the  plaintiff  his  sales,  and  turned  over  all  moneys  col- 
lected on  account  of" sales,  together  with  the  notes  and  chattel 


NISI  PRIUS  REPORTS— NE"W  SERIES.  848 

1908.]  Parish  £   Co.   v.    Kauffman. 

mortgages  taken  in  plaintiff's  name,  as  security  for  deferred 
payments  upon  goods  sold  by  him.  The  notes  and  chattel  mort- 
gages so  reported  and  delivered  to  the  plaintiff  were  received 
and  held  by  T.  J.  Parish,  the  manager  of  the  said  partnership, 
who  duly  made  out  copies  and  forwarded  to  the  county  re- 
corder for  filing,  and  continued  to  hold  and  keep  said  original 
notes  and  mortgages  in  his  possession  and  under  his  control. 

The  said  Parrett,  agent,  was  authorized  by  the  plaintiff  tn 
receive  payments  for  the  plaintiff  upon  the  said  notes  so  se- 
cured by  chattel  mortgage,  and  ke.pt  by  said  T.  J.  Parish,  man- 
ager, and  remit  the  same  to  plaintiff,  at  Columbus,  Ohio. 

In  August,  1907,  the  board  of  review  of  Greene  county  added 
to  the  return  of  the  plaintiff  for  taxation  for  the  year  1907  in 
said  Greene  county,  as  credits,  the  notes  and  said  chattel  mort- 
gages so  reported  and  returned  by  said  Parrett  to  the  plaint- 
iff, in  the  sum  of  $2,988,  and  the  treasurer  is  about  to  proceed 
to  collect  from  the  plaintiff  the  taxes  thereon. 

The  defendant  claims  that  because  the  property  upon  which 
the  chattel  mortgages  were  taken  is  in  Greene  county,  and  be- 
cause the  agent  of  plaintiff  in  charge  of  the  store  in  Xenia,  who 
made  the  sale,  makes  all  the  collections  due  on  said  mortgages, 
remitting  the  proceeds  to  the  plaintiff,  that  therefore  the  notes 
and  mortgages  are  returnable  in  Greene  county. 

It  is  not  a  question  of  the  taxation  of  the  property  upon  which 
the  mortgages  were  taken,  for  that  is  returnable  by  the  pur- 
chaser. The  defendant  here  is  seeking  to  charge  the  plaintiff 
with  taxes  upon  notes  and  mortgages  in  the  plaintiff's  posses- 
sion in  Franklin  county.  The  fact  that  the  plaintiff  has  an  agent 
in  Greene  county  authorized  to  receive  payments  does  not  make 
him  the  legal  custodian  of  the  notes  and  mortgages,  when  in 
fact  they  were  in  the  possession  and  under  the  control  of  T.  J. 
Parish,  as  manager,  in  Columbus,  Ohio. 

If  the  agent  had  neither  possession  nor  control  of  the  notes 
and  mortgages,  he  could  not  make  any  return  of  them  for  tax- 
ation. When  the  agent  of  plaintiff  made  the  sale  of  the  property 
and  turned  over  the  notes  and  mortgages  to  the  plaintiff,  his 
rights  and  duties  in  respect  thereto  were  at  an  end.  except  for 


844  GREENE  COUNTY  COMMON  PLEAS. 

Parish  *  Co.   v.   Kauttman.  [Vol.  Til.  N.  8. 

convenience  payments  could  be  made  to  him  for  remittance  to 
the  plaintiff,  but  that  authority  in  no  way  empowered  him  to 
make  any  return  of  the  notes  and  mortgages  for  taxation. 

The  notes  and  mortgages  taken  by  Parrett  and  delivered  to 
the  plaintiff  were  intangible  partnership  property,  in  the  pos- 
session and  control  of  the  plaintiff's  managing  partner  in  Co- 
lumbus, Ohio,  and  to  claim  that  because  the  property  upon  which 
the  chattel  mortgages  were  given  to  the  plaintiff  to  secure  the 
notes  so  held  by  the  plaintiff  was  in  Greene  county,  and  there- 
by fixed  the  situs  of  return  there,  is  simply  to  claim  that  the  situs 
of  the  chattel  property  upon  which  the  mortgage  is  given  de- 
termines the  place  of  taxation,  and  not  the  location  of  the 
partnership. 

Such  is  not  the  law.  The  residence  of  plaintiff  who  has  pos- 
session and  control  of  the  mortgages  and  notes  so  attempted 
to  he  assessed  for  taxation,  determines  the  situs  for  taxation. 
Worthington  v.  Sebastian,  Treas.,  25  0.  S.,  1;  Brown  v.  Noble, 
42  0.  S.,  405 ;  Sommers  v.  Boyd,  Treas.,  48  0.  S.,  662 ;  Lee  v. 
Dawson,  Treas.,  8  C.  C.  365;  Grant  v.  Jones,  39  0.  S.,  507; 
Myers  v.  Seaberger,  45  0.  S.,  232.  , 

The  plaintiff  claims  that  these  notes  and  mortgages  were  re- 
ported for  taxation  in  Franklin  county.  Whether  or  not  they 
were  included  in  their  return  for  taxation  there  is  of  no  con- 
sequence in  this  case.  The  only  question  presented  is:  Are 
the  notes  and  mortgages  so  held  by  plaintiff,  as  shown  by  the 
evidence  in  this  case,  taxable  in  Greene  county* 

It  seems  clear  to  me  that  they  are  not.  and  that  the  plaint- 
iff is  entitled  to  the  relief  asked  for  in  its  petition  and  an  in- 
junction against  the  treasurer  restraining  the  collection  of  the 
same,  and  an  order  and  decree  may  be  taken  according  to  the 
prayer  thereof. 

Decree  accordingly. 


NISI  PRIUS  REPOETS— NEW  SERIES. 


CRIMINAL  PROSECUTIONS  UNDER  THE  STATE 
BANKING  LAW. 

Common  Pleas  Court  of  Huron  County. 
State  of  Ohio  v.  James  G.  Gibbs  and  Jay  P.  Laning. 
Decided,  August  17,  1908. 
Criminal  Law—Indictment  Charging  Officers  of  a  State  Bank  with  Em- 
bezzlement of  Bank  Funds — Penal  Section  of  the  Free  Banking  Act 
not  Applicable   to   Banks   not   Organized   under   that   Act — Section 
3821-85 — Review   of  Bank  Legislation  in  Ohio. 
Section  30  ot  the  act  entitled  "An  act  to  authorize  tree  banking,"  passed 
March  21,  1851,  and  amended  In  76  0.  L.,  72,  enumerating  and  de- 
fining certain  acta  ot  officers  and  others  "of  any  banking  company," 
as  penal,  although  worded  In  general  language  Is  limited  in  Its 
operation  to  banks  organised  under  tbat  act. 

L.  W.  Wickham  and  S.  M.  Young,  for  plaintiff. 
A.  V.  Andrews,  Horace  Andrews,  A.  M.  Beattie,  C.  L.  Kennan, 
J.  J.  Sullivan  and  W.  M.  Koons,  for  defendants. 

Doyle,  J, 

Heard  on  demurrers  to  indictment. 

The  indictment  in  this  case  purports  to  charge  a  crime  under 
Section  30  of  "An  act  to  authorize  free  banking,"  passed  March 
21,  1851  (49  0.  L.,  41),  as  amended  April  24,  1879  (76  0.  L., 
72,  74) .  It  was  so  recognized  by  counsel  in  the  argument  of  the 
issues  in  this  ease,  and  is  apparent  from  the  fact  that  no  general 
criminal  statute  applying  to  banking  institutions  provides  pen- 
alties for  the  acts  complained  of  in  this  indictment,  under 
which  this  indictment  can  be  brought. 

Before  discussing  any  other  objections  to  the  indictment  it 
should  first  be  determined  whether  the  provisions  of  Section  30, 
as  amended  76  O.  L.,  72,  are  applicable  to  the  defendants.  If 
they  are  not,  then  no  crime  is  charged  against  these  defendants. 

The  indictment  charges  that  the  accused,  being  respectively 
president  and  vice-president  and  both  directors  of  the  Ohio  Trust 
Company,  with  intent  to  injure  and  defraud,  unlawfully  did  ab- 


846  HURON  COUNTY  COMMON  PLEAS. 

State  v.  QlbbB  et  al.  [Vol.  VII,  N.  8. 

stract  and  willfully  misapply  certain  funds  and  credits  of  aaid 
the  Ohio  Trust  Company,  by  unlawfully,  willfully  and  not  for 
any  use,  benefit,  gain  or  advantage  of  said  the  Ohio  Trust  Com- 
pany; converting,  applying  and  conveying  said  funds  and  credits 
to  the  use,  benefit,  control,  gain  and  advantage  of  certain  per- 
sons unknown  to  the  grand  jury. 

Section  30  of  the  act  in  question  as  amended  (R.  S.,  3821-85), 
reads  as  follows : 

"Every  president,  director,  cashier,  teller,  clerk,  or  agent  of 
any  banking  company,  who  shall  embezzle,  abstract,  or  willfully 
misapply  any  of  the  moneys,  funds,  or  credits  of  such  company, 
or  shall,  without  authority  from  the  directors,  issue  or  put  forth 
any  certificate  of  deposit,  draw  any  order  or  bill  of  exchange, 
make  any  acceptance,  assign  any  notes,  bonds,  drafts  or  bills  of 
exchange,  mortgage,  judgment  or  decree,  or  shall  make  any 
false  entry  in  any  book,  report,  or  statement  of  the  company, 
with  the  intent  in  either  case  to  injure  or  defraud  the  company, 
or  any  other  company,  body  politic  or  corporate,  or  any  indi- 
vidual person,  or  to  deceive  any  officer  of  the  company,  or  any 
agent  appointed  to  inspect  the  affairs  of  any  banking  company 
in  this  state,  shall  be  guilty  of  an  offense,  and,  upon  conviction 
thereof,  shall  be  confined  in  the  penitentiary,  at  hard  labor,  not 
less  than  one  year  nor  more  than  ten  years. ' ' 

It  was  put  in  this  form  April  24,  1879  (76  0.  L.,  74).  The 
section  as  originally  enacted  read  as  follows  (49  0.  L.,  41) : 

"Every  president,  director,  cashier,  teller,  clerk  or  agent  of 
any  banking  company,  who  shall  embezzle,  abstract,  or  willfully 
misapply  any  of  the  moneys,  funds,  or  credits  of  such  company, 
or  shall,  without  authority  from  the  directors,  issue  or  put  in 
circulation  any  of  the  notes  of  such  company,  or  shall  put  in 
circulation  any  bills  or  notes  purporting  to  be  the  circulating 
bills  or  notes  of  such  bank,  other  than  those  delivered  to  such 
bank  by  the  auditor  of  state,  as  provided  for  by  this  act,  either 
with  or  without  the  authority  of  the  directors;  or  shall,  without 
such  authority,  issue  or  put  forth  any  certificate  of  deposit,  draw 
any  order  or  bill  of  exchange,  make  any  acceptance,  assign  any 
note,  bond,  draft,  bill  of  exchange,  mortgage,  judgment  or  de- 
cree, or  shall  make  any  false  entry  on  any  book,  report  or  state- 
ment of  the  company,  with  an  intent  in  either  case  to  injure  or 
defraud  such  company,  or  to  injure  or  defraud  any  other  com- 
pany, body  corporate  or  politic,  or  any  individual  person,  or  to 


NISI  PBIUS  REPORTS— NEW  SERIES.  847 

1908.]  State  v.  Glbba  et  at 

deceive  any  officer  or  agent  appointed  to  inspect  the  affairs  of  any 
banking  company  in  the  state,  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof,  shall  be  confined  in  the  penitentiary 
at  hard  labor,  not  less  than  five  nor  more  than  ten  years." 

The  indictment  does  not  show  nor  is  it  claimed  that  the  Ohio 
Trust  Company  was  organized  under  the  act  of  March  21,  1851 
(49  0.  h.,  41). 

If  the  provisions  of  Section  30  above  noted  only  apply  to  banks 
organized  under  the  provisions  of  that  act,  then  this  indictment 
does  not  charge  facts  constituting  a  crime. 

During  the  early  history  of  our  state  it  was  regarded  that  the 
principal  privilege  of  a  bank  was  to  issue  and  put  in  circulation 
notes  which  were  designed  to  circulate  as  currency.  This  be- 
came a  great  evil  and  was  met  by  the  act  of  February  8,  1815 
(13  0.  L.,  152;  2  Chase,  868),  which  prohibited  individuals  and 
companies  of  individuals  from  issuing  bank  notes  unless  the 
individual  be  specially  authorized  or  the  company  incorporated 
for  that  purpose,  but  these  acts  did  not  prevent  companies  and 
individuals  from  receiving  deposits,  discounting  exchange,  loan- 
ing money  and  dealing  in  commercial  paper  and  doing  other 
things  which  are  regarded  as  a  legitimate  function  of  banking 
institutions  today.  Again  on  January  27,  1816  (36  0.  L.,  101; 
Swan,  136),  by  an  act  to  prohibit  unauthorized  bank  paper,  and 
the  exercise  of  banking  powers,  except  by  "banks  incorporated 
by  a  law  of  this  state. " 

From  that  time  until  1845  many  special  laws  were  passed  in- 
corporating companies  to  do  a  banking  business,  in  which  the 
powers,  restrictions,  manner  of  organization,  manner  of  conduct- 
ing business,  obligations  and  duration  of  franchise  of  each  of 
them  were  set  forth.    3  Chase,  2019-2083. 

March  7,  1842  (40  O.  L.,  39),  an  act  was  passed  which  pro- 
vided regulations  to  apply  to  banks  thereafter  incorporated  and 
was  amended  February  21,  1843  (41  O.  L.,  36),  by  incorporating 
several  new  banks  and  making  them  subject  to  these  regulations. 
These  restrictions  not  being  agreeable  to  some  of  the  banks 
which  had  come  in  under  its  provisions,  several  of  them  were  by 
act  of  February  15,  1844  (42  O.  L.,  19-),  restored  to  their  original 
charters. 


848  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Gibbs  et  al.  [Vol.  VII,  N.  S. 

These  banks  thus  authorized  by  those  several  acts  or  charters 
issued  currency  based  upon  the  credit  and  assets  of  the  respective 
companies.  These  franchises  were  eagerly  sought  and  companies 
ostensibly  chartered  for  other  purposes  attempted  to  so  have 
their  powers  construed  as  to  permit  them  to  do  banking.  Legis- 
lators carefully  scrutinized  bills  granting  charters,  to  ascertain 
if  lurking  within  the  powers  granted  were  any  that  could  be 
construed  into  an  authority  to  do  banking.  Along  with  many 
other  reported  eases  attention  is  called  to  those  reported  for  the 
December  term,  1841,  of  our  Supreme  Court — State  v.  Alexan- 
drian Soc,  11  Ohio,  1;  Lougee  v.  State,  11  Ohio,  68;  Bonsai  v. 
State,  11  Ohio,  73;  Steedman  v.  State,  11  Ohio,  82-  Slate  v.  Li- 
brary Co.,  11  Ohio,  96;  and  State  v.  Exporting  Co.,  11  Ohio. 
126,  as  interesting  fragments  of  the  history  of  banking  in  Ohio 
during  that  period,  and  as  throwing  light  on  the  causes  which 
induced  and  circumstances  surounding  subsequent  legislation 
on  banks  and  banking. 

Finally  to  meet  the  demand  for  safe  banks  and  for  a  better 
currency  and  to  give  the  business  the  benefits  and  sanction  of  a 
state  supervision  over  it  the  act  of  February  24,  1845  (43  O.  L., 
24;  Curwen,  1089;  S.  &  C,  117),  was  passed  which  provided  for 
incorporating  the  State  Bank  and  other  banking  companies. 
The  report  of  the  bank  commissioners,  July  26,  1842.  shows  the 
the  necessity.  The  year  1841  and  commencement  of  1842  were 
marked  by  the  failure  of  about  one-third  of  the  banks  of  Ohio. 

This  act  provided  in  detail  for  the  organization,  management. 
powers,  privileges  and  liabilities  of  such  banks  and  for  a  currency 
to  be  issued  by  them  based  upon  securities  deposited  with  the 
treasurer  of  state  to  the  amount  of  their  circulation,  by  the  inde- 
pendent banks  therein  provided  for  and  to  the  amount  of  10  per 
cent,  of  their  circulation  by  the  branches  of  the  State  Bank. 

The  duration  of  the  franchises  to  be  exercised  under  the  pro- 
visions of  this  act  was  limited  to  about  twenty-one  years,  the 
franchises  expiring  May  1,  1866.  Act  43  0.  L„  24,  Sections  16 
and  51. 

The  provisions  of  the  act  pertained  solely  to  the  batiks  organ- 
ized under  its  provisions,  except  where  other  banks  were  par- 


NISI  PRIUS  REPORTS— NEW  SERIES. 


ticularly  mentioned  and  except  that  the  last  section  provided  as 
follows : 

"Provided,  further,  that  nothing  contained  in  this  act  shall  be 
so  construed  as  to  permit  any  of  the  banks  of  this  state  to  issue 
notes  of  a  less  denomination  than  five  dollars,  except  such  banks 
as  shall  accept  of  and  comply  with  the  provisions  of  this  act." 

This  proviso  was  inserted  as  a  precaution  against  banks  not 
doing  business  under  this  act  from  claiming  the  right  to  issue 
currency  in  bills  of  less  denomination  than  five  dollars,  they 
being  prohibited  from  so  doing  by  Section  1  of  an  act  passed 
March  23,  1840  (38  0.  L.,  117;  Swan,  141),  amending  the  act 
of  January  27,  1816  (36  0.  L.,  101). 

The  state  bank  act  was  repealed  May  21,  1894  (91  O.  L.,  396). 

By  the  act  of  March  21,  1851  (49  0.  L.,  41 ;  S.  &  C,  168),  an- 
other kind  of  bank  was  provided  for  by  ' '  An  act  to  authorize  free 
banking,"  in  which  is  contained  the  penal  Section  30  under  which 
the  indictment  in  this  case  is  drawn.  This  act,  like  the  Si-ate 
Bank  act,  provided  a  scheme  of  organization,  management. 
powers,  privileges  and  liabilities  and  for  a  currency  to  be  issued 
by  banks  incorporated  pursuant  to  its  provisions. 

This  act  in  the  main  followed  the  provisions  of  the  State  Bank 
act  except  in  certain  details,  and,  in  some  parts,  is  an  identical 
transcript  therefrom. 

The  duration  of  the  franchises  of  these  banking  companies  was 
twenty-one  years,  expiring  in  1872  (49  O.  L.,  41,  Section  10). 
with  a  further  provision  that  the  corporate  existence  of  the  com- 
pany should  exist  thereafter  until  the  repeal  of  the  act.  This 
was  for  the  purpose  of  enabling  the  companies  to  wind  up  their 
business  and  nothing  more,  because  Section  42  provided  that 
nothing  in  the  act  should  be  construed  so  as  to  authorize  a  con- 
tinuance of  banking  business,  under  the  act.  after  1872, 

The  new  Constitution  had  been  adopted  eleven  days  before  this 
act  was  passed  and  provided  that  "the  General  Assembly  shall 
pass  no  special  act  conferring  corporate  powers"  (Article  Xllf, 
Seetion  1).  Tit  was  thereafter  out  of  the  power  of  the  Legisla- 
ture to  charter  banking  companies  in  the  old  way  by  special  act. 

The  entire  banking  system  of  the  state  had  been  bitterly  as- 


860  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Glbbs  et  al.  [Vol.  VII,  N.  3. 

sailed  in  the  constitutional  convention  because  from  it  had 
emanated  the  paper  currency  to  which  was  attributed  a  great 
amount  of  the  financial  troubles  through  which  the  people  had 
passed,  and  an  effont  was  made  to  have  inserted  in  the  Constitu- 
tion a  provision  to  deny  to  the  General  Assembly  power  to  create 
banking  institutions  or  to  authorize  the  issuing  of  paper  cur- 
rency. The  majority  of  the  committee  on  banks  and  currency 
reported  that  "the  business  of  loaning  and  dealing  in  money 
shall  be  left  free  to  all,"  and  reported  also  against  any  special 
privileges  and  against  paper  currency.  1  Debates  Ohio  Con- 
vention, 708. 

Another  result  of  the  agitation  against  banks  of  issue  and 
special  privileges  was  the  adoption  of  Article  XIII,  Section  7, 
which  provided  that  no  act  of  the  General  Assembly  authorizing 
associations  with  banking  powers  should  take  effect  until  it  should 
be  submitted  /to  the  people  at  the  next  election  after  it  passage, 
and  be  approved  by  a  majority  vote.  Interpreted  according  to 
the  genera|Jy  accepted  and  understood  meaning  of  the  term  at 
that  time  ''associations  with  banking  powers"  meant  banks  of 
issue.     Dearborn  v.  Bank,  42  Ohio  St.,  617. 

Here  then  was  another  obstacle  to  those  who  favored  the  old 
system  of  banks  of  issue.  With  the  feeling  throughout  the  state 
which  prevailed  against  these  institutions  and  which  was  an  ac- 
tive factor  in  the  choosing  of  delegates  to  the  convention  and  was 
exhibited  in  the  proceedings  of  that  body,  it  would  have  been 
very  difficult  after  the  Constitution  went  into  effect  to  have  gotten 
the  people  to  approve  any  act  of  the  General  Assembly  author- 
izing associations  with  banking  power, 

The  convention  met  May  6,  1850.  On  May  14  a  resolution  was 
introduced  to  inquire  into  the  expediency  of  preventing  the 
Legislature  from  granting  special  charters  for  banking  purposes 
and  against  the  Issuing  of  currency.  The  report  of  the  com- 
mittee on  banks  and  currency  was  made  July  5.  The  friends 
of  the  old  system  had  fair  warning  of  its  impending  doom.  The 
franchises  of  the  banks  organized  under  the  state  bank  act  ex- 
pired in  1866  and  the  only  hope  of  prolonging  the  system  was 
the  enactment  of  another  law  providing  for  banks  of  issue  before 


NISI  1'BIUS  REPORTS— NEW  SERIES.  SB1 

1908.]  State  v.  Gibtia  et  al. 

■the  new  Constitution  went  into  effect.  The  free  banking  act, 
though  paaaed  eleven  days  after  the  adoption  of  the  Constitution 
by  the  convention,  would  by  virtue  of  Section  1  of  the  schedule 
remaio  in  force  and  thus  extend  the  privileges  of  this  system  of 
banking  for  twenty-one  years. 

The  free  banking  act  does  not  bear  any  of  the  indicia  of  the 
reforms  demanded  at  that  time  in  the  banking  system  and  its  pro- 
visions are  only  applicable  to  the  banks  incorporated  under  it. 
It  differs  not  at  all  in  this  respect  from  the  state  bank  law.  They 
are  general  laws  but  their  provisions  are  limited  to  the  subjects 
created  by  them.  There  is  not  a  complete  provision  in  either  of 
them  that  can  be  taken  as  a  general  rule  for  subjects  besides 
those  arising  out  of  the  Law  itself.  They  show  for  (themselves 
that  they  were  not  designed  as  general  laws  <to  regulate  any  bank- 
ing except  the  banking  authorized  by  their  provisions  and  that 
banking  could  only  be  engaged  in  by  those  persons,  conforming 
to  their  provisions,  hence  none  of  their  provisions  oan  be  made 
applicable  .to  persons  engaged  in  banking  not  organized  and  car- 
ried on  under  these  acts.  Neither  in  the  titles  of  the  acts  nor 
by  any  express  language  contained  in  them  do  they  purport  to 
apply  to  any  other  banks  than  those  incorporated  under  them. 

It  is  claimed  that  the  court  must  imply  from  the  general  lan- 
guage used  in  the  introduction  of  some  of  the  sections  of  these 
acts,  that  they  are  to  apply  to  all  banks  whether  incorporated 
under  these  acts  or  otherwise. 

Section  2  of  the  free  banking  act  (49  0.  L.,  41;  Rev.  Stat. 
3821-65),  in  the  things  required  preliminary  to  forming  a  bank- 
ing company,  does  not  contain  a  single  allusion  in  express  terms 
to  forming  a  company  under  this  act,  yet  it  would  not  be  reason- 
able to  say  that  it  was  not  part  and  parcel  of  the  scheme  for  or- 
ganizing a  bank  under  this  act. 

Section  11  of  the  same  act  (Rev.  Stat.,  3821-70),  provides 
that,  "the  capital  stock  of  every  company  shall  be  divided  into 
shares  of  $50  each,"  etc.,  but  does  not  say  nor  contain  within  it 
anything  from  which  to  directly  draw  a  conclusion  that  it  op- 
plies  to  free  banking  companies,  yet,  no  one  would  hesitate  to  de- 
clare that  it  only  applies  to  companies  organized  under  the  act, 


862  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Globe  et  al.  [Vol.  VII,  N.  & 

If  it  can  be  construed  to  apply  to  other  banking  companies,  the 
term  "every  eompany"  is  broad  enough  to  make  it  apply  to 
every  company  whether  banking  or  not,  and  a  perusal  of  its 
provisions  will  show  that  the  Legislature  did  not  intend  under 
the  guise  of  a  banking  law  to  introduce  such  a  provision  into  the 
corporation  law  of  the  state.  About  the  same  results  are  reached 
in  attempting  to  make  the  provisions  of  other  sections  contain- 
ing only  general  words,  apply  to  other  banks. 

The  same  applies  to  the  state  bank  act  (43  0.  L.,  24).  In  both 
acts  there  is  shown  on  the  part  of  the  draftsmen  of  the  acts  a 
free  use  of  general  terms  in  sections  where  it  is  evident  that 
banks  incorporated  under  these  acts  alone  were  referred  to. 

In  most  cases  the  phrases  "authorized  by  this  act,"  "granted 
by  this  act,"  "under  .the  authority  of  this  act,"  "by  this  act 
specially  authorized,"  "any  such  independent  banking  eom- 
pany," "under  the  provisions  of  this  act,"  "organized  under 
this  act,"  etc.,  and  terms  of  like  import  are  used  in  sections 
interspersed  '  among  sections  using  general  terms  in  the  state 
bank  act,  and  in  the  same  manner  in  the  free  banking  act  are 
found  expressions  like  "hereby  authorized,"  "herein  author- 
ized," "formed  under  this  act,"  "under  the  provisions  of  this 
act,"  "which  shall  have  availed  itself  of  any  of  the  privileges 
granted  by  this  act,"  used  in  sections  throughout  the  act  in- 
terspersed with  sections  containing  only  general  words  to  de- 
note to  whom  their  provisions  apply. 

To  put  any  other  construction  upon  the  sections  containing 
the  general  terms  than  that  they  apply  solely  to  the  banks  or- 
ganized under  these  acts  respectively  would  do  violence  to  their 
meaning.  Take  the  sections  containing  these  general  terms  and 
apply  them  to  the  then  existing  companies  or  to  present  com- 
panies and  note  the  confusion  made  by  the  contradictory  provi- 
sions of  these  sections  and  the  charters  and  laws  under  whieh 
these  other  companies  were  organized. 

If  the  provisions  of  the  sections  containing  these  general 
words  in  the  state  bank  act  were  to  apply  to  all  banking  com- 
panies, then  why  re-enact  the  same  provisions  in  the  free  bank- 
ing act?     The  Legislature  evidently  did  not  regard  them  at  ap- 


NISI  PRIXJS  REPORTS— NEW  SERIES. 


1908.]  State  v.  Gibbc  et  al. 


plieable  to  other  banks  because  they  were  re-enacted  in  the  lat- 
ter law,  which  was  entirely  unnecessary  if  the  construction  asked 
for  is  correct. 

If  the  sections  of  the  free  banking  act  containing  general  terms 
were  to  have  universal  application,  why  duplicate  laws  on  the 
same  subject  ?  If  such  were  the  intention  of  the  General  As- 
sembly, it  would  have  repealed  those  general  provisions  of  the 
state  banking  act. 

If  the  contention  of  the  state  be  correct,  it  was  possible  for 
the  General  Assembly  at  that  time  under  any  title,  by  any  act 
purporting  to  be  for  some  certain  definite  purpose,  to  amend 
other  laws  or  enact  new  laws  by  .the  use  of  general  words  in 
some  of  the  sections  of  the  act  and  affect  persons  and  things  to 
which  the  title  and  purpose  of  the  act  were  not  at  all  germane. 
This  would  be  a  most  dangerous  innovation  in  legislation  and 
it  will  not  be  presumed  that  the  General  Assembly  of  Ohio  did 
it  in  these  instances. 

Looking  at  the  two  acts,  each  as  a  whole,  taking  into  consid- 
eration the  history  of  the  banking  business  and  the  legislation 
thereon,  and  that  this  bank  legislation  was  the  outgrowth  of  the 
special  charter  system  of  earlier  times,  the  conclusion  is  evident 
that  they  provided  general  charters  of  two  different  kinds.  In- 
stead of  special  oharters  for  each  company  these  acts  provided 
two  kinds  of  charters,  either  of  which  could  be  chosen.  These 
acts  ran  in  parallel  lines  and  the  institutions  formed  under  them 
were  co-existent  and  each  had  a  code  of  regulations,  restrictions, 
privileges  and  penalties  unto  itself. 

Neither  of  the  acts  show  that  they  were  designed  for  the 
regulation  of  banking  generally.  The  titles  and  the  context  of 
each  negative  that  construction.  No  demonstration,  beyond 
profert  of  the  acts  themselves  beside  of  acts  which  were  passed 
for  general  regulation  of  all  banking  institutions,  need  be  made 
to  make  that  apparent.  There  were  in  existence  statutes  affect- 
ing banking  concerns  generally  from  an  early  date.  Besides 
those  already  mentioned  there  was  the  act  of  February  25.  183!) 
{37  O.  L.,  30;  Swan,  126),  for  the  appointment  of  a  board  of 
bank  commissioners  "and  for  the  regulation  of  banks  within 
the  state  of  Ohio,"  and  its  amendment  of  March  23,  1840  (38  0. 


Z&4  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Glbba  et  al.  [Vol.  VII,  N.  S. 

L.,  117;  Swan,  132).  Then  the  amendments  to  the  act  of  Jan- 
uary 27,  1816  (36  0.  L.,  101;  Swan,  136),  as  follows:  Feb- 
ruary 16,  1858  (36  O.  L.,  16;  Swan,  139);  March  18,  1839  (37 
0.  L„  75;  Swan,  140);  and  March  23,  1840  (38  0.  L.,  117; 
Swan,  141).  Then  there  was  the  act  to  keep  out  banks  from 
other  jurisdictions  passed  January  9,  1839  (37  0.  L.,  10;  Swan, 
145),  and  the  act  regulating  judicial  proceedings  where  banks 
were  parties,  January  28,  1824  (29  0.  L.,  453;  Swan,  147). 
An  act  was  passed  to  restrain  banks  from  taking  usury  March 
19,  18"50  (48  O.  L.,  35;  S.  &  C,  149),  and  more  acts  on  the  sub- 
ject of  unauthorized  bank  paper,  March  12,  1845  (43  0.  L.,  121; 
S.  &  C,  152),  and  January  22,  1846  (44  0.  L.,  13;  S.  &  C,  154). 
In  addition  to  these  general  acts  there  were  others  passed  both 
before  and  a  short  time  after  .the  free  banking  act  showing  that 
the  General  Assembly  had  been  providing  regulations  for  all 
such  institutions  generally  by  direct  acts,  and  not  by  grafting 
general  regulations  upon  acts  designed  for  the  forming  and 
regulating  of  special  corporate  bodies. 

Neither  of  these  acts  have  been  regarded  by  the  bar  nor  the 
annotators  of  our  statutes  as  operative  upon  companies  other 
than  those  incorporated  under  them.  Swan  and  Critehfield. 
who  compiled  the  laws  of  Ohio  which  were  published  and  dis- 
tributed to  officers  of  the  state  under  act  March  16,  1860,  desig- 
nated them  as  obsolete.     Citizens  Sav.  Bank  v.  Ide,  20  C.  C,  665. 

The  commission  to  codify  the  laws  of  the  state  appointed  pur- 
suant to  act  of  March  27,  1875  (72  0.  L.,  87),  and  whose  codi- 
fied laws  were  passed  by  the  General  Assembly  June  20,  1879. 
and  are  known  as  the  Revised  Statutes  of  1880,  omitted  both  of 
the  laws  from  the  codification,  and  simply  appended  them  to 
the  report  as  laws  unrepealed  and  in  force.  They  did  not  con- 
aider  them  of  any  general  foree  outside  of  the  companies  therein 
created,  or  the  so-called  general  features  of  the  laws  would  have 
been  incorporated  into  the  code. 

The  duration  of  the  franchises  provided  for  in  these  acta,  one 
set  expiring  in  1866  and  the  other  in  1872,  shows  the  temporary 
character  of  the  acts  and  is  another  indication  that  they  were 
not  designed  for  universal  application.  This  temporary  char- 
acter is  recognized  again  by  the  General  Assembly  on  March  15, 


NISI  PRIUS  REPORTS— NEW  SERIES.  865 

1908.]  State  v.  Olbbe  et  al. 

1875,  by  an  aot  pertaining  to  the  winding  up  of  the  affairs  of 
these  banks.     72  0.  L.,  55. 

In  Franklin  Bank  "v.  Bank,  36  Ohio  St.,  350,  it  was  conceded 
that  the  corporate  existence  of  these  banks  organized  under  the 
free  banking  act  ceased  on  the  first  day  of  January,  1873,  ex- 
cept for  the  purposes  of  winding  up  their  affairs. 

Since  the  inauguration  of  the  national  banking  system  these 
acts  have  been  generally  regarded  as  obsolete  and  with  the  sys- 
tem of  banking  which  they  represented  were  generally  aban- 
doned. The  General  Assembly  has  provided  a  state  banking 
system  without  regard  to  them,  by  various  enactments.  Without 
the  aid  of  the  judicial  tribunals  these  acta  have  been  generally 
construed  and  that  construction  has  been  acted  upon,  and  that 
common  sense  construction  has  been  correct  and  will  hear  the 
test  of  the  rules  of  the  courts. 

With  the  construction  £'ven-  the  manifest  reason  and  inten- 
tion of  the  law  has  prevailed,  and  that  without  being  at  variance 
with  the  literal  import  of  the  language  employed,  although  such 
variance  could  have  been  ignored  if  necessary.  Slater  v.  Cave, 
3  Ohio  St.,  80,  82. 

And  the  intention  of  the  law  makers  has  been  collected  from 
the  causes  of  the  law,  its  scope,  its  object,  its  language,  its  pur- 
poses expressed  in  its  title  and  context  and  the  manifest  incen- 
tive for  their  enactment  as  evidenced  by  the  circumstances  at- 
tending its  passage,  all  harmonizing.  State  v.  Buchanan, 
Wright,  233;  Wilber  v.  Paine,  1  Ohio,  251,  256;  Burgett  v. 
Burgett,  1  Ohio,  469,  480;  Steamboat  Monarch  v.  Finley,  10 
Ohio,  384,  387  j  Johnson  v.  State,  42  Ohio  St.,  207,  210 ;  .Stone 
v.  Elliott,  11  Ohio  St.,  252,  258;  State  v.  Harmon,  31  Ohio  St., 
250,  264 ;  Brigel  v.  Starbuck,  34  Ohio  St.,  280,  285 ;  Terrill  v.  An- 
chauer,  14  Ohio  St.,  80;  Board  of  Education  v.  Board  of  Edu- 
cation, 46  Ohio  St.,  595 ;  State  v.  Alexandrian  Soc,  1 1  Ohio,  1,11; 
Sawyer  v.  State,  45  Ohio  St.,  343;  Steamboat  Messenger  v. 
Presslcr.  13  Ohio  St..  255,  262;  Schooner  Aurora  Borealis  v. 
Bobbie,  17  Ohio,  125;  Thompson  v.  Steamboat  J.  D.  Morton,  2 
Ohio  St.,  26;  Steamboat  Ohio  v.  Stunt.  10  Ohio  St.,  582; 
Broom's  Legal  Maxims  (7  Eng.  Ed.),  425;  Black,  Interp.  of 
Laws,  110,  224,  212,  204,  196;   Rockfield  v.  Bank,  77  O.  S.,  311, 


HURON  COUNTY  COMMON  PLEAS. 


[Vol.  vii,  n.  a 


329;  White-Smith  Music  Pub.  Co.  v.  Apollo  Co.,  209  U.  S.,  1, 
Advance  Sheets  Sup.  Ct.,  Oet.  Term,  1907,  pp.  319,  322. 

In  construing  this  act  every  part  of  it  should  be  considered 
in  order  to  collect  from  the  whole  one  uniform  and  consistent 
sense;  the  construction  must  be  made  upon  the  whole  act,  and 
not  from  disjointed  parts;  and  the  whole  contest  considered  al- 
though the  immediate  object  of  inquiry  may  be  the  meaning  of 
one  particular  section  or  other  isolated  part.  Coles  v.  Holme.  S 
Barn.  &  Cr.,  568 ;  32  R.  R.,  486  j  Hobart.  275 ;  Gale  v.  Reed,  8 
East,  79;   9  R.  R..  376;  Manuel  v.  Manuel,  13  0.  S.,  458,  465. 

In  Board  of  Education  v.  Board  of  Education,  46  Ohio  St., 
595,  the  court  rejected  the  letter  of  the  law,  where  the  use  of 
the  words  "all"  and  "any"  had  made  the  statute  sound  general, 
and  limited  the  meaning  of  such  general  words  to  the  object  to 
which  it  was  apparent  the  Legislature  intended  to  apply  them. 

Seetion  30  of  the  free  banking  act,  the  special  construction  of 
which  is  in  controversy  in  this  ease,  is  affected  by  the  general 
construction  of  the  act.  This  section,  however,  alone  pretty 
effectually  demonstrates  that  the  act  does  not  apply  outside  of 
the  companies  formed  under  the  act. 

The  section  begins  with  this  general  language:  "Every 
president.  •  *  *  of  any  banking  company."  This  sounds 
very  general  and  invites  an  inquiry  as  to  what  banking  com- 
pany. The  section  itself  answers  that  quaere.  In  the  enumera- 
tion of  the  acts  forbidden  occurs  .this  language  (49  0.  L..  41): 
"Or  shall  put  in  circulation  any  bills  or  notes  purporting  to  be 
the  circulating  bills  or  notes  of  such  bank,  other  than  those  de- 
livered to  such  bank  by  the  auditor  of  state,  as  provided  for  by 
this  act."  This  plainly  identifies  the  kind  of  bank  of  which 
the  accused  must  be  president.  The  act  provides  for  the  deliv- 
ering by  the  Auditor  of  State  of  circulating  bills  and  notes  only 
to  banks  formed  pursuant  to  its  provisions.  This  clearly  dem- 
onstrates that  before  the  officer  mentioned  in  the  aot  ean  be 
amenable  to  the  penal  provisions  of  this  section  he  must  be 
"president,  director,  cashier,  teller,  clerk,  or  agent". of  a  bank 
incorporated  under  the  free  banking  act.  Having  thus  fixed 
the  character  of  the  banking  institution,  every  other  allusion  to 
"such  bank"  in  this  section,  as  examination  will  show,  is  to 


NISI  PRIUS  REPORTS— NEW  SERIES.  867 

1908.]  State  v.  Glbbs  et  al. 

the  bank  of  which  the  person  accused  is  such  officer  and  that  is 
a  free  bank. 

If  the  Legislature  had  intended  this  penal  section  to  be  uni- 
versal in  its  application  to  officers  of  banking  companies,  it 
would  have  been  the  proper  and  natural  thing  to  do  to  have  put 
it  in  the  code  of  criminal  laws,  or  attached  it  to  some  of  the 
laws  for  regulating  banks  generally  to  which  reference  has  al- 
ready been  made. 

It  has  not  been  recognized  by  authors  and  editors  of  works  on 
criminal  law  in  Ohio,  except  in  one  instance,  as  belonging  to  the 
criminal  laws  of  general  application.  Neither  Warren  nor  Wil- 
son, who  began  the  publication  of  text  books  on  the  criminal 
laws  of  Ohio  a  great  many  years  ago,  recognized  it. 

The  codifying  commission  did  not  place  it  in  the  criminal 
code  nor  recognize  it  as  effective  outside  of  the  act  in  which  it 
was  contained.  The  code  was  passed  June  20,  1879,  and  on 
April  24,  1879,  at  the  same  session,  Section  30  had  been  amended 
by  which  the  clause  above  recited  with  reference  to  putting  in 
circulation  bills  or  notes  of  the  bank  had  been  eliminated.  This, 
change  leaves  the  section,  when  standing  alone,  sounding  very 
much  as  a  general  law  of  universal  application  but  nevertheless 
it  was  not  put  in  the  criminal  code. 

This  section  was  so  amended  April  4,  1879  (76  0.  L..  72,  74), 
by  an  act  "Further  to  amend  the  act  entitled  an  act  to  authorize 
free  banking,  passed  March  21,  1851  (49  0.  L.,  41),  and  the  acts 
amendatory  and  supplementary  thereto."  This  act  amended 
six  and  repealed  twenty  sections  of  the  free  banking  act.  Noth- 
ing in  this  act  indicated  that  the  Legislature  intended  to  extend 
the  scope  of  the  law.  It  simply  cut  out  of  the  aet  matter  that 
was  of  no  importance  at  that  time  in  winding  up  the  affairs  of 
such  free  banks  as  had  not  yet  had  their  affairs  closed.  It  was 
recognized  by  the  Legislature  as  a  part  of  the  old  act  and  as 
such  amended  and  left  as  a  part  of  the  old  banking  law. 

Its  construction  remains  the  same  so  far  as  the  persons  and 
things  to  which  its  provisions  apply.  Ebersole  v.  Schiller,  50 
Ohio  St.,  701. 

As  a  part  of  the  aet  of  March  21,  1851  (49  O.  L.,  41),  it  ap- 
plied only  to  officers  of  the  banks  therein  provided  for  and  that 


HURON  COUNTY  COMMON  PLEAS. 


(Vol.  VII,  N.  s. 


act  was  complete  within  itself  and  no  amendment  of  a  section  of 
the  act  can  change  its  character  so  as  to  make  it  applicable  to 
other  persona,  unless  there  be  some  expression  of  such  legislative 
intent  in  the  act  making  the  amendment,  either  in  the  title  or 
the  context. 

What  the  Legislature  has  omitted  to  include  within  the  ex- 
press provisions  of  a  penal  law,  reasonably  construed,  the  court 
ean  not  supply.  Whatever  the  object  of  this  amendment,  there 
has  been  no  legislative  expression  other  than  to  amend  the  old 
'  law  and  eliminate  one  of  the  offenses  of  theT>enal  section  thereof. 
State  v.  Finck,  37  Minn.,  433;  Black  on  Interpretation  of  Laws, 
110. 

Our  last  General  Assembly  on  May  1.  1908  (99  0.  L.,  269), 
passed  an  act  relating  to  the  organization  of  banks  and  inspec- 
tion thereof,  and  placed  therein  a  penal  section  (Section  44), 
similar  to  Section  30  of  the  free  banking  act.  Section  30  was 
not  repealed  nor  was  it  mentioned.  Section  35  of  the  new  act 
saves  to  all  banks  the  rights,  privileges  and  powers  heretofore 
conferred  upon  them  by  the  acts  under  which  they  were  incor- 
porated, until  pursuant  to  Section  36  they  shall  after  April  1. 
1910,  conform  their  business  to  the  provisions  of  this  act  and 
become  subject  thereto  as  provided  in  Section  91. 

If  Section  30  had  been  considered  operative  generally,  it  wonld 
seem  that  the  General  Assembly  would  have  repealed  it.  Even 
as  amended  it  was  ignored. 

The  state  bank  act  and  its  amendments  and  supplements  were 
repealed,  but  the  free  banking  act  was  left  unrepealed. 

The  committees  and  other  members  of  the  General  Assembly 
who  had  this  bill  in  charge  must  certainly  have  been  familiar 
with  Section  30  and  other  parte  of  the  aet.  It  is  a  matter  of 
history  that  the  bill  of  May  1  was  the  result  of  a  great  amount  of 
public  discussion  during  the  past  years  and  was  prepared  with 
much  care,  criticism  and  discussion.  Some  of  the  best  talent 
of  the  state  took  part  in  the  preparation  of  the  law  and  in  dis- 
cussing and  criticising  it,  and  it  is  fair  to  presume  that  the  com- 
monly recognized  construction  of  Section  30  was  accepted  and 
acted  upon.     209  II.  S.,  1;   77  O.  S„  311,  329. 

Section  30  being  a  penal  statute  must  -be  strictly  construed. 


NISI  PBIUS  REPORTS— NEW  SERIES.  860 

1908.1  State  v.  Glbbs  et  al. 

and  can  not  be  extended,  by  implication,  to  eases  not  falling 
within  its  terms.  This  is  a  rule  so  familiar  that  it  needs  no  au- 
thority to  sustain  it,  but  to  illustrate  the  rule  reference  is  made 
to  the  decision  of  Judge  Ranney  in  Ball  v.  State,  20  Ohio,  7. 
In  this  case  it  was  by  statute  made  an  offense  to  sell  liquor  within 
three  miles  of  any  iron  furnace,  forge  or  foundry,  used  for  the 
manufacturing  pig  iron,  etc.,  within  certain  counties.  The  ac- 
cused was  in  business  at  the  time  the  act  was  passed  in  one  of 
these  counties,  but  not  within  three  miles  of  any  iron  furnace  or 
foundry.  Subsequently  one  was  erected  within  three  miles  of 
his  place.  Judge  Ranney  in  giving  the  opinion  of  the  court  said, 
page  16: 

"A  statute  referring  to  or  affecting  persons,  places,  or  things, 
is  limited  in  its  operations,  to  persons,  places,  or  things,  as  they 
existed  at  the  time  the  statute  was  passed." 

In  United  States  v.  Paul,  31  U.  S.  (6  Pet.}.  141.  accused  was 
prosecuted  for  burglary  under  a  statute  of  the  United  States 
which  provided  that  if  an  offense,  for  the  punishment  of  which 
there  was  no  federal  statute,  were  committed  in  any  land  ceded 
to  the  United  States  for  forts,  etc.,  the  accused  was  to  receive 
the  same  punishment  that  the  state  law  provided.  When  the  act 
was  passed  burglary  was  not  a  crime  in  that  state  (New  York), 
though  subsequently  it  was  made  one,  and  prior  to  the  offense  of 
the  accused.  Held  by  Supreme  Court  of  the  United  States  that 
the  prosecution  was  confined  to  the  laws  of  that  state  as  they 
existed  at  the  time  the  act  of  Congress  was  passed,  and  accused 
was  not  guilty. 

In  the  case  of  State  v,  Meyers,  56  Ohio  St.,  340,  this  syllabus 
was  made: 

"A  statute  defining  a  crime  or  offense  can  not  be  extended,  by 
construction,  to  persons  or  things  not  within  its  descriptive 
terms,  though  they  appear  to  he  within  the  reason  and  spirit  of 
the  statute." 

A  deputy  county  treasurer  was  indicted  for  embezzling  county 
money.  Seetion  6841,  Revised  Statutes,  was  restricted  to  a  person 
"charged  with  the  collection,  •  *  *  of  the  public  money." 
Held:  That  this  was  restricted  to  persons  charged  by  law  with 
that  duty  and  the  deputy  did  not  come  within  its  terms. 


8B0  HURON  COUNTY  COMMON  PLEAS. 

Slate  v.  Gfbbs  et  al.  [Vol.  VII,  N.  S. 

In  a  case  where  a  statute  provided  a  penalty  for  betting  on  an 
election  it  was  held  not  to  apply  to  a  primary  election.  Common- 
wealth v.  Wells,  110  Pa.  St.,  463. 

Even  if  the  question  were  doubtful  it  wonld  be  the  duty  of  the 
court  to  construe  such  criminal  statute  in  favor  of  the  accused. 

In  Winnett  v.  State,  18  C.  C,  515,  the  court  say: 

"In  criminal  cases  where  the  liberty  of  an  individual  is  at 
stake,  and  there  exists  in  the  mind  of  the  court  a  reasonable  doubt 
as  to  the  criminal  liability  of  the  accused,  it  is  the  duty  of  the 
court  to  resolve  the  doubt  in  his  favor.  In  this  case,  in  the  light 
of  the  authorities  and  under  the  circumstances,  we  ean  not  do 
otherwise  than  hold  that  the  indictment  under  which  the  plaint- 
iff in  error  was  convicted  was  insufficient,  and  the  demurrer 
should  have  been  sustained,  and  in  overruling  the  demurrer  the 
count  of  common  pleas  erred,  and  that  the  judgment  should  be 
reversed." 

That  the  rule  of  strict  construction  in  criminal  matters  is  jeal- 
ously guarded,  see  Section  4948,  Revised  Statutes,  where  for  fear 
that  the  liberal  construction  in  eivil  matters  therein  provided 
may  be  taken  for  a  license  to  extend  the  same  to  matters  of  a 
penal  nature,  it  is  expressly  provided: 

"But  this  section  shall  not  be  so  construed  as  to  require  a 
liberal  construction  of  provisions  affecting  personal  liberty,  re- 
lating to  amercement,  or  of  a  penal  nature." 

"A  court  ean  not  create  a  penalty  by  eonstruotion,  but  must 
avoid  it  by  construction,  unless  it  is  brought  within  the  letter 
and  the  necessary  meaning  of  the  act  creating  it. 

"And  where  a  statute  may  be  so  construed  as  to  give  a  penalty, 
and  also  and  as  well  so  as  to  withhold  the  penalty,  it  will  be  given 
the  latter  construction."     Black,  Interp.  of  Laws,  287. 

If  there  be  any  reasonable  doubt  as  to  whether  the  offense 
mentioned  in  Section  30  of  the  free  banking  act.  if  done  by  an 
officer  of  another  kind  of  bank,  be  an  offense  punishable  by  law. 
that  doubt  should  be  resolved  in  favor  of  the  accused.  No  man 
should  be  guessed  or  construed  into  prison. 

The  demurrers  to  the  indictment  are  sustained  and  the  de- 
fendants are  discharged. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Payne  v.  George  H.  Stapely  Co. 


RECEIVER.  FOR.  PROTECTION  Or  A  SURETY. 

Common  Plena  Court  of  Hamilton  County. 

John  A.  Payne  v.  The  George  H.  Stapely  Company. 

Decided,  August.  1908. 

Receiver— Jurisdiction  for  Appointment  of— Stay  be  Named  on  Appli- 
cation of  a  Surety,  When — Pleading — Insolvency— Attachment — 
Section  55S9 — Words  and  Phrases. 

1.  An  allegation  that  a  defendant  Is  probably  insolvent  is  equivalent 

to  and  probably  stronger  than  the  statutory  phrase  "In  Imminent 
danger  of  becoming  Insolvent,"  and  is  sufficient  to  sustain  an  order 
appointing  a  receiver. 

2.  A  court  has  Jurisdiction  under  the  rules  of  equity  and  In  view  of 

the  provisions  of  Section  5539  to  appoint  a  receiver  for  the  pro- 
tection of  a  surety  for  rent  which  has  accrued  and  will  accrue 
under  a  lease,  who  further  alleges  that  he  Is  a  stockholder  of  the 
defendant  company  and  also  a  large  creditor  and  many  attachment 
suits  have  been  commenced  against  the  company  In  various  places 
and  others  are  threatened. 

Cohen  &  Mack,  for  plaintiff. 

H.  B.  Probasco,  for  Memphis  Commission  Co. 

Swing,  J. 

The  Memphis  Commission  Company,  which  has  been  made  a 
party  defendant  in  this  ease  and  which  filed  an  answer  and  cross- 
petition  May  13,  1908,  afterwards,  on  May  29th,  filed  its  motion 
and  application  to  the  court  "to  dissolve  and  hold  for  naught  the 
order  herein  made  appointing  a  receiver." 

The  principal  grounds  upon  which  this  action  is  asked  are 
substantially  that  the  petition  does  not  state  facts  sufficient  under 
our  statute  and  the  usages  of  equity  to  warrant  the  appointment 
of  a  receiver  or  to  give  the  court  jurisdiction  to  appoint,  and 
that  no  other  facts  than  those  alleged  have  been  shown ;  and  that 
the  action  is  solely  for  the  appointment  of  a  receiver  and  not 
for  any  other  relief  to  which  the  appointment  is  ancillary. 

On  June  3,  1908,  an  amended  petition  was  filed  by  leave,  mak- 
ing substantially  the  same  allegations  as  in  the  original  petition. 


862  HAMILTON  COUNTY  COMMON  PLEAS. 

Payne  v.  George  H.  Stapely  Co.  [Vol.  VII.  N.  S. 

but  more  full  and  complete,  and  in  some  respects  more  exactly 
in  the  language  of  the  statute  as  to  the  appointment  of  re- 
ceivers. The  motion,  being  filed  before  the  amended  petition, 
was  intended  to  apply  to  the  original  petition;  but  the  whole 
matter  was  argued  to  me  upon  the  pleadings  as  they  stand. 

The  original  petition  alleges  that  plaintiff  is  a  stockholder  of 
the  George  H.  Stapely  Company,  also  a  creditor  to  the  amount 
of  about  $10,000,  and  that  "he  is  personally  financially  respon- 
sible as  surety  for  certain  obligations  of  the  defendant  company, 
to-wit,  for  rent  and  certain  leases  of  said  defendant  company," 
and  it  is  shown  that  some  of  the  rent  was  unpaid.  He  also  al- 
leges that  "various  suits  have  been  brought  against  the  defend- 
ant company  in  attachment  and  garnishment  in  various  parts 
of  the  United  States  and  Canada,  and  that  the  funds  of  the  de- 
fendant company  at  various  places  have  been  tied  up  and  placed 
beyond  the  control  of  the  defendant  company,  and  that  other  such 
suits  are  threatened,  which  will  interfere  with  the  conduct  of  the 
business  of  the  company  and  make  it  impossible  to  carry  it  on 
properly";  that  the  company  is  "probably  insolvent"  and  that 
plaintiff  "is  in  jeopardy  as  surety  upon  the  said  obligations  of 
the  company"  for  rent;  and  various  other  things  are  alleged. 
The  prayer  is  that  a  receiver  be  appointed  to  take  charge  and 
dispose,  under  the  orders  of  this  court,  of  the  assets  of  the  cor- 
poration; to  convert  to  the  best  advantage  all  of  its  assets  into 
money ;  to  pay  and  discharge  its  obligations;  and  for  such  other 
relief  as  may  be  proper. 

To  the  original  petition  the  defendant  company  filed  an  an- 
swer, before  the  appointment  of  the  receiver,  in  which  it  "ad- 
mits all  the  allegations  of  the  petition  to  be  true,  and  joins  in 
the  prayer  of  the  petition  for  the  appointment  of  a  receiver." 

The  defendant,  the  Memphis  Commission  Company,  in  its  an- 
swer and  cross-petition,  alleges  that  it  is  a  creditor  of  the  com- 
pany and  that  "it  is  informed  and  believes"  that  the  defendant 
company  "is  wholly  insolvent  and  unable  to  pay  its  debts,  and 
that  if  said  corporation  is  not  insolvent  or  unable  to  pay  its 
debts,  it  is  in  imminent  danger  of  insolvency,  and  owes  a  large 
amount  of  debts  and  claims  which  it  is  unable  to  pay";   but  al- 


NISI  PKIUS  REPORTS— NEW  SERIES.  868 

1908.]  Payne  v.  George  H.  Stapely  Co. 

leges  that  the  petition  of  plaintiff  does  not  set  forth  facta  suffi- 
cient "to  entitle  him  to  the  appointment  of  a  receiver."  The 
cross-petition  prays  for  the  appointment  of  "a  master  to  ascer- 
tain and  report  who  the  stockholders  of  said  corporation  are," 
what  subscriptions  if  any  to  the  capital  stock  are  unpaid,  what 
property  and  business  the  company  has,  and  for  all  proper  relief. 

It  complains  among  other  things,  by  the  motion  to  vacate  the 
appointment,  that  the  petition  does  not  allege  that  the  defend- 
ant company  is  either  insolvent  or  in  imminent  danger  of  be- 
coming insolvent,  according  to  the  terms  of  the  statute.  The 
petition  does  not  use  the  language  of  the  statute,  but  says  as 
above  set  forth,  that  the  company  is  "probably  insolvent."  .It 
does,  however,  set  forth  facto  and  make  allegations  showing  that 
the  company  is  "in  imminent  danger  of  becoming  insolvent." 
The  facts  alleged  as  to  attachment  suits  in  many  places  and  the 
jeopardy  in  which  plaintiff  alleges  he  is  placed  as  surety  for  the 
defendant  company  and  all  the  allegations  taken  together  are 
sufficient,  if  indeed  there  could  be  any  question  as  to  the  suffi- 
ciency of  an  allegation  of  "probable  insolvency."  To  say  that 
the  company  is  "probably  insolvent"  is  quite  as  much  as  to  say 
that  it  is  "in  imminent  danger  of  becoming  insolvent,"  and  in- 
deed is  saying  more.  But,  as  stated  above,  the  Memphis  Com- 
mission Company,  by  its  answer  and  cross-petition,  removes  any 
question  as  to  the  facts,  so  far  as  the  allegations  in  the  pleadings 
are  concerned,  by  alleging  itself  that  the  company  is  either  "in- 
solvent or  in  imminent  danger  of  becoming  insolvent." 

Furthermore,  it  was  shown  upon  the  hearing  of  the  motion  to 
vacate  the  appointment,  by  the  statements  of  the  receiver  in  re- 
sponse to  questions  by  counsel,  for  the  Memphis  Commission 
Company,  that  the  Stapely  Company  js  in  fact  insolvent.  His 
statement  of  the  assets  and  liabilities  that  have  come  to  his  knowl- 
edge shows  it  to  be  badly  insolvent. 

But  it  is  claimed  by  the  Memphis  Commission  Company  that 
the  plaintiff  does  not  set  forth  in  his  petition  facts  showing  him 
to  have  such  an  interest  as,  under  the  law  and  the  usages  of 
equity,  entitled  him  to  ask  for  a  receiver,  does  not  state  facts 
sufficient  to  give  the  court  jurisdiction  to  appoint  a  receiver. 


364  HAMILTON  COUNTY  COMMON  PLEAS. 

Payne  v.  George  H.  Stapely  Co.  [Vol.  VII,  N.  S. 

It  is  held  in  Barbour  v.  National  Exchange  Bank,  45  O.  S.. 
133,  that  a  surety  may  have  recourse  to  a  court  of  chancery  for 
its  aid  in  protecting  him,  and  a  receiver  may  be  appointed  to  pre- 
serve the  property  for  his  protection.  The  whole  question  of 
the  jurisdiction  of  the  court  to  appoint  a  receiver  in  such  a  case 
is  discussed  and  decided  by  the  court  in  that  case,  the  court  say- 
ing, page  141:  "Our  conclusion  is,  that  the  appointment  was 
authorized  and  valid."  Indeed,  not  taking  time  to  quote  the 
opinion  more  fully  or  to  refer  to  the  authorities  cited  by  the  court 
in  the  opinion,  it  does  not  leave  the  question  of  jurisdiction  in 
the  Stapely  case  open  to  doubt.  So  there  is  here  a  case  of  an 
action  by  a  person  who  is  surety  for  rent  under  a  lease,  in  ad- 
dition to  being  a  stockholder  in  and  a  large  creditor  of  the  com- 
pany, and  many  attachment  suits  commenced  in  various  places 
and  others  threatened,  and  the  business  can  not  be  carried  on 
successfully  under  the  circumstances,  and  the  facts  admitted  by 
the  Stapely  Company,  and  afterward  more  fully  alleged  as  to 
the  insolvency  and  the  attachments  by  the  Memphis  Commission 
Company,  and  the  insolvency  shown  by  proof  in  open  court  on 
the  hearing  of  the  motion  to  vacate. 

It  may  be  added,  though  not  necessary,  that  our  statute 
specifically  provides  for  the  appointment  of  a  receiver  on  ap- 
plication of  the  plaintiff  in  an  attachment  case  (Section  5539, 
Revised  Statutes).  The  Stapely  case  is  not  a  suit  in  at- 
tachment, but  the  company  by  its  answer  joins  with  the  plaintiff 
in  asking  for  a  receiver,  because  numerous  attachment  suits  have 
been  commenced  in  various  places. 

In  the  case  of  JV.  Y.  Rubber  Co.  v.  Qandy  Belting  Co.  et  at, 
11  0.  C.  C.  Rep.,  618  (Cuyahoga  county),  it  is  held,  as  stated 
in  the  syllabus : 

"Where,  subject  to  a  levy  of  attachment,  the  debtor  corpora- 
tion applies  for  and  obtains  a  receiver  to  wind  up  its  affairs. 
and  the  books  of  aeeount  taken  in  attachment  are  turned  over  to 
the  receiver  of  the  corporation,  under  an  order  to  collect  the  ac- 
counts and  bring  the  proceeds  into  court,  the  order  is  equiva- 
lent to  appointing  a  receiver  in  the  attachment  case,  and  the-at- 
taehing  creditor  may  preserve  his  priority  and  work  out  his 
rights  through  the  receiver  of  the  corporation." 


NISI  PRIUS  REPORTS— NEW  SERIES.  865 

1908.]  State  of  Ohio  v.  Lynch. 

There  are  facts  in  the  New  York  Rubber  Company  case  not 
in  the  Stapely  case  that  may  be  and  probably  are  sufficient  to 
distinguish  it,  and  it  may  be  that  what  was  done  in  the  Stapely 
case  on  application  of  the  company  was  not  equivalent  to  the 
appointing  of  a  receiver  in  the  attachment  cases  under  Section 
5539,  Revised  Statutes ;  but  it  is  clear  enough  from  that  section 
and  the  rubber  company  case  that  the  existence  of  an  attachment 
suit  or  suits  is  a  most  important  consideration  in  the  exercise  of 
the  discretion  of  the  court  in  determining  whether  a  receiver 
should  be  appointed  or  not. 

Taking  all  the  pleadings  and  admitted  facts  in  this  case  into 
consideration,  I  think  it  clear  that  the  court  had  the  jurisdiction 
to  appoint  the  receiver  and  that  the  appointment' was  properly 
made —  "that  the  appointment  was  authorized  and  valid." 


PROSECUTIONS  FOR.  SELLING  LIQUOR  ON  SUNDAY. 

Probate  Court  of  Clark  County. 

State  op  Ohio  v.  John-  E.  Lynch. 

Decided,  1908.  . 

Criminal  Law — Selling  Intoxicating  Liquor  an  Sunday — Prosecution* 
for  First  Offense  and  for  Second  Offense — Plea  in  Bar  on  Ground  of 
being  Twice  Placed  in  Jeopardy  for  the  Same  Offense— Section 
438i-d». 

A  pies  of  guilty  of  selling  Intoxicating  liquor  on  Sunday  In  an  action 
which  whs  prosecuted  as  a  first  offense,  but  might  have  been  prose- 
cuted as  a  second  offense.  Is  a  bar  to  a  subsequent  prosecution  of 
the  same  defendant  In  another  ccurt  for  the  same  sale  charged  aa  a 
second  offense. 

Lawrence  Laybtmrn  and  John  M.  Coir,  for  the  State. 
W.  Y.  Mahar,  Edward  Lynch  and  II.  W.  Stafford,  for  the  de- 
fendant. 

Geiger,  J. 

An  affidavit  and  information  was  filed  in  thfs  court  charging 
that  John  E.  Lynch,  on  Sunday,  the  24th  day  of  March,  1907. 
sold  intoxicating  liquor  to  one  Lee  Holland,  and  such  other  al- 


866      CLARK  COUNTY  PROBATE  COURT. 

State  of  Ohio  v.  Lynch.  [Vol.  VII,  N.  & 

legations  are  made  as  show  said  sale  to  be  a  second  offense  of 
said  Lynch.  To  this  information  in  this  court,  the  defendant, 
Lynch,  pleads  in  bar  that  in  the  police  court  of  the  city  of 
Springfield,  on  the  26th  day  of  March,  1907,  he  pleaded  guilty  to 
the  offense  of  selling  liquor  to  Lee  Holland,  and  was  fined  there- 
for the  sum  of  $25. 

To  this  plea  in  bar  the  state  demurs,  claiming  that  the  same 
does  not  state  facta  sufficient  to  constitute  a  bar  to  the  prosecu- 
tion. 

The  section  of  statutes  under  which  the  offense  is  charged 
is  4364,  subdivision  20,  which  provides  in  substance  that  the 
sale  of  intoxicating  liquors  on  Sunday  is  unlawful,  and  that 
whoever  makes  any  such  sale  shall  be  fined  not  exceeding  $100 
for  the  first  offense,  and  for  each  subsequent  offense  not  more 
-than  $200,  or  be  imprisoned  in  the  county  jail  oiuuty  prison  not 
less  than  'tjq-.-days,  or  both. 

The  defendant,  by  his  plea  in  bar,  seeks  the  protection  of 
Section  10,  Article  I  of  the  Constitution  of  Ohio,  which  pro- 
-vides  that  no  person  shall  be  twice  put  in  jeopardy  for  -the  same 
offense.  It  is  clear  that,  if  the  selling  to  Lee  Holland  alleged 
as  a  second  offense  in  the.probate  court,  is  the  same  offense  as  the 
selling  to  Lee  Holland  which  was  alleged  in  the  police  court, 
then  the  plea  in  bar  of  the  defendant  would  be  good. 

It  is  conceded  that  the  act  referred  to  in  the  probate  court 
and  the  act  referred  to  in  the  police  court  are  identical,  viz.. 
the  selling  of  liquor  to  Lee  Holland  on  Sunday,  March  24th, 
1907 ;  but  it  is  claimed  by  the  prosecutor  that  the  word  "offense" 
used  in  the  Constitution  does  not  mean  the  act  or  thing  done, 
but  the  violation  of  a  statute  committed  by  the  doing  of  that  act 
or  thing;  that  is,  the  "offense"  is  not  the  act,  but  the  violation 
of  the  statute. 

The  claim  is  thus  made  that  the  selling  of  liquor  a  second 
time  by  John  E.  Lynch  is  not  the  same  offense  as  selling  the 
liquor  the  first  time.  It  is  clear  that  the  affidavit  in  the  police 
court  not  having  charged  a  prior  sale  of  liquor  must  conclu- 
sively be  construed  to  be  only  a  first  offense,  whereas  the  sale 
charged  in  the  probate  court  is  clearly  stated  to  be  a  second 
offense. 


NISI  PRIUS  REPORTS— NEW  SERIES.  367 

1906.]  State  of  Ohio  v.  Lynch. 

The  rule  is  that,  if  in  fact  the  same  identical  aet  had  been 
charged  successively  in  two  valid  indictments,  upon  one  of 
which  the  prisoner  has  been  in  jeopardy  by  trial,  and  the  evi- 
dence necessary  to  support  the  second  indictment  would  have 
been  sufficient  to  prove  a  legal  conviction  on  the  first,  the  plea 
of  former  jeopardy  will  be  sustained  to  the  last  indictment,  and 
otherwise  not;  but  the  former  conviction  must  be  upon  a  prose- 
cution for  the  same  identical  act  or  crime.  The  constitutional 
provision  extends  the  common  law  maxim,  which  was  limited 
to. felonies,  to  all  grades  of  offenses;  and  it  is  but  the  application 
of  the  maxim  that  no  one  shall  be  twice  vexed  for  one  and  the 
same  cause. 

The  prosecutor  claims  that  the  evidence  necessary  to  convict 
the*  defendant  in  the  probate  court  of  the  offense  of  second  sell- 
ing would  not  convict  the  defendant  of  the  offense'  of  first  sell- 
ing in  the  police  court;  that  the  offense  of  first  selling  is  a 
separate  and  distinct  offense  from  that  second  selling;  that  the 
conviction  for  a  first  sale  would  not  protect  the  defendant  from 
a  conviction  for  the  same  act,  if  that  act  is  proved  to  be  a  second 
sale;  that,  to  constitute  the  offense  charged  in  the  probate 
court  there  must  be  the  sale  alleged  to  have  been  made  on 
March  24th,  and  in  addition  thereto  another  sale  and  convic- 
tion at  a  prior  time;  that  if  the  defendant  had  been  charged  in 
the  police  court  with  the  offense  of  selling  liquor  on  the  24th  of 
March,  and  that  sale  had  not  been  charged  as  a  second  offense, 
and  the  defendant  had  then  shown  that  it  was  not,  as  a  matter 
of  fact,  his  first  sale,  but  a  subsequent  sale,  the  defendant  must 
then  have  been  acquitted.  A  necessary  consequence  to  this 
position  is  that  any  person  tried  for  an  offense  in  police  court, 
or  in  any  other  court,  is  not  secure  from  further  prosecution  for 
the  same  aet.  if  that  act  constituted  a  second  offense,  and  he  had 
been  charged  only  with  having  committed  a  single  offense,  where 
a  second  offense  carries  with  it  a  higher  degree  of  punishment 
than  a  first  offense. 

If,  as  the  prosecutor  claims,  the  offense  of  second  selling  is 
made  up  of  two  distinct  elements,  one  of  a  prior  sale,  and  one 
of  a  subsequent  sale,  and  that  such  two  sales  constitute  a  dis- 


868  FRANKLIN  COUNTY  COMMON  PLEAS. 

Moore  v.  Railway.  [Vol.  VII,  N.  S. 

tinct  offense,  then  it  must  follow  that  having  been  once  con- 
victed of  a  second  offense,  no  subsequent  offense  can  be  joined 
with  the  same  first  offense.  In  other  words,  that  for  a  second 
offense  a  person  could  be  punished  by  imprisonment  when  that 
second  offense  has  been  joined  with  his  first  offense ;  but  that,  for 
a  third  offense  he  could  not  be  punished  by  imprisonment,  for  the 
reason  that  he  has  already  been  punished  for  an  offense  made 
up  of  the  two  prior  offenses,  and  neither  of  those  offenses  can 
be  again  used  to  make  up  a  subsequent  offense. 

The  court  is  of  the  opinion  that  the  defendant  can  not  be  put 
twice  in  jeopardy  for  the  same  identical  act  of  selling  contrary 
to  law,  upon  the  claim  that  one  charge  is  for  first  sale  and  one 
is  for  second  sale,  and  that  the  two  offenses  are  different  in  the 
contemplation  of  the  law,  because  the  punishment  for  the  of- 
fenses is  different.  The  offense  of  selling  is  the  same,  and  the  law 
simply  allows  a  higher  degree  of  punishment  where  it  13  pleaded 
and  shown  by  the  evidence  that  the  sale  is  a  second  sale,  and  the 
law  allowing  such  increased  punishment  is  analogous  to  the 
habitual  criminal  acts. 

The  demurrer  of  the  State  to  the  plea  in  bar  will  be  over- 
ruled, and  the  prosecutor  given  leave  to  file  a  reply  to  the  plea 
in  bar. 


EFFECT  OF  RELEASE  OF  ONE  JOINT  TORT  FEASOR. 

Common  Pleas  Court  of  Franklin  County. 

Charles  A.  Moore  v.  P.,  C,  C.  &  St.  L.  Railway  Co. 

Decided,  March  26,  1908. 

Joint  Tort  Feasors — Aire  Not  Joint  Debtors,  Unless — Construction  of 
Sections  Slit  and  SI 66— Negligence — Words  and  Phrases. 

Joint  tort  feasors  are  not  joint  debtors,  within  the  meaning  of  Section 
3166,  until  the  claim  has  been  reduced  to  Judgment  or  otherwise 
liquidated  by  the  parties;  and  It  follows  that  the  release  of  one 
Joint  tort  feasor  operates  as  a  discharge  of  all  others  jointly  liable 
for  the  same  tort. 

Vlric  Kloave  and  E.  0.  Lloyd,  for  plaintiff. 
Henderson,  Livesay  rf1  Burr,  contra. 


NISI  PRIUS  REPORTS— NEW  SERIES.  8»9 

1908.]  Moore  v.  Railway. 

Rogers,  J. 

Heard  on  demurrer  to  answer. 

This  action  is  one  for  personal  injury  to  plaintiff,  who  was 
at  the  time  in  the  employ  of  the  Baltimore  &  Ohio  Railroad  Com- 
pany as  an  engineer,  and  the  accident  occurred  to  him  while 
running  his  train  on  the  railroad  jointly  operated  by  the  two 
companies  between  Columbus  and  Newark,  and  resulted,  as  he 
claims,  from  a  collision  between  his  train  and  the  defendant's 
engine,  negligently  permitted  by  defendant  to  be  on  the  track 
where  plaintiff  was  operating  his  train. 

The  defendant  files  an  answer  containing  two  defenses,  in  the 
second  of  which  it  pleads  facte  showing  that  the  act  which  pro- 
duced the  injury  was  the  joint  act  of  the  two  companies,  and 
alleges  that  the  Baltimore  &  Ohio  Railroad  Company,  for  a 
valuable  consideration,  obtained  a  full  release  from  the  plaintiff 
for  the  injury  of  which  he  complains. 

To  this  second  defense  the  plaintiff  demurs  generally,  and  con- 
tends that  a  release  of  one  joint  tort  feasor  does  not  discharge 
the  other,  founding  his  contentions  on  Sections  3162-3166,  Re- 
vised Statutes,  the  latter  of  which  sections  provides,  in  substance, 
that  joints  debtors  may  individually  compromise  for  their  joint 
indebtedness  without  impairing  the  right  of  the  creditor  to  pro- 
ceed against  other  joint  debtors  not  so  discharged. 

It  being  conceded  that  the  second  defense  of  the  answer  shows 
that  the  defendant  and  the  Baltimore  &  Ohio  Railroad  Company, 
if  liable  at  all  were  liable  as  joint  tort  feasors,  the  question  pre- 
sented is  this:  Does  the  statute  above  mentioned,  which  pro- 
vides that  the  discharge  by  a  creditor  of  one  joint  debtor  shall 
not  operate  as  a  discharge  of  the  other,  apply  to  joint  tort  feasors, 
so  as  to  preserve  the  right  to  proceed  against  one  after  the  other 
has  been  released  t 

I  have  examined  the  authorities  relied  on  by  plaintiff's  counsel, 
including  the  case  of  Jenkins  v.  Pachoud,  5  O.  L.  R.,  172.  From 
these  and  other  authorities  investigated,  I  am  unable  to  reach 
the  conclusion  that  the  discharge  by  one  joint  tort  feasor  does 
not  discharge  the  other.  The  cases  relied  on  as  authority  in 
Jenkins  v.  Pachoud  do  not  appear  to  me  to  sustain  that  decision. 


870  FRANKLIN  COUNTY  COMMON  PLEAS. 

Moore  v.  Railway.  [Vol.  VII.  N.  A 

In  the  case  of  Piatt  v.  Longworth,  27  Ohio  St.,  159,  the  statute 
in  question  was  not  the  basis  of  the  decision.  In  Spencer  v. 
Spencer,  53  Ohio  St.,  682  (35  Bull.,  4),  decided  by  the  Supreme 
Court  without  report,  the  liability  for  the  tort  had  been  reduced 
to  judgment,  and  such  judgment  was  clearly  a  debt  of  record, 
although  growing  out  of  a  tort.  The  relation  of  judgment  debtor 
and  judgment  creditor  then  existed  between  the  parties  as  a 
result  of  the  judgment.  In  Strdbler  v.  Bridge  Co.,  11  Circ.  Dee.. 
87,  the  case  was  not  one  of  joint  liability  at  all;  nor  does  the 
court  refer  to  the  statute  in  question.  Section  3166,  Revised 
Statutes,  uses  the  words  "joint  debtors,"  "joint  indebtedness," 
and  "creditors."  The  statute  is  in  derogation  of  the  common 
law,  and  therefore  should  receive  a  strict  construction.  While 
there  are  some  authorities  to  the  contrary,  the  better  weight  of 
the  authority,  as  it  appears  to  me,  sustains  the  proposition  that 
tort  feasors  are  not  debtors,  and  that  liabilities  for  torts  are  not 
debts  until  judgment  or  other  liquidation  of  the  liability  by  the 
parties. 

In  Rider  v.  Fritchey,  49  Ohio  St.,  285,  where  the  word  "dues" 
was  under  consideration  by  the  court,  in  the  opinion  the  court 
collated  the  cases  on  the  subject  of  what  was  meant  by-  the  word 
"debt."  These  eases  will  be  found  on  page  293.  The  court  in 
that  case  did  not  decide  as  to  whether  a  debt  included  a  Liability 
for  a  tort,  as  it  was  not  necessary  to  do  so.  But  I  cite  these  eases 
that  counsel  may  refer  to  them. 

From  an  extended  examination  I  am  satisfied  that  the  words 
"joint  debtors"  and  "indebtedness"  as  used  in  the  statute  do 
not  include  liability  for  torts  if  the  rule  requiring  a  strict  con- 
struction of  the  statute  is  applied,  and  applying  such  rule 
strictly,  an  I  believe  it  should  be  applied,  I  have  concluded  that 
joint  tort  feasors  are  not  included  within  the  words  "joint 
debtors"  as  used  in  the  statute,  and  that  the  second  defense  of 
the  answer  is  invulnerable  to  demurrer. 

The  demurrer  is  therefore  overruled  and  exceptions  entered 
for  the  plaintiff. 


NISI  PBIUS  REPORTS— NEW  SERIES. 
State  v.  Qlbbe  and  Laning. 


CHARGING  FALSE  PRETENSES  BY  BANK  OFFICIALS. 

Common  Pleas  Court  of  Huron  County. 
State  v.  Gibbs  et  al. 
Decided,  August  IT,  1908. 

Criminal  Laic — False  Pretense* — Charging  of.  Against  Ban*  Officials — 
Meaning  of  the  Words  "Invest"  and  "Speculate" — Office  of  the 
Innuendo. 

Tue  charge,  In  an  Indictment  against  officers  of  a  bank,  that  they  bad 
been  guilty  of  false  pretenses,  in  that  with  Intent  to  cheat  and 
dsfraud  they  Induced  and  procured  persons  to  deposit  in  the  bank 
by  falsely  representing  that  "wo  never  speculate  In  stocks;  we  loan 
money  on  real  estate;  It  Is  solid  rock  security;  we  require  Income 
producing  property,"  does  not  bear  the  meaning  ascribed  by  Innuendo, 
that  the  hank  did  not  Invest  Its  money  In  stocks  and  loaned  Its 
money   only   on   security   of.  Income   producing   real    estate,    " 


does  not  follow  from  the  statement  upon  which  the  charge  Is  based 
that  the  hank  loaned  all  Its  money  on  real  estate,  nor  does  It 
appear  whether  the  statement  applied  to  the  bank  or  to  the  ac- 
cused Individually. 

L.  W.  Wickkqm  and  8.  M.  Young,  for  plaintiff. 

A.  V.  Andrews,  Horace  Andrews,  A.  M,  Beattie,  C.  L.  Kennan, 
J.  J.  Sullivan  and  W.  M.  Koons,  contra. 

Doyle,  J. 

Heard  on  motions  to  quash. 

Criminal  causes  numbers  7238  and  7240  are  against  James  G. 
Gibbs  and  Jay  F.  Laning  for  obtaining  money  under  false  pre- 
tenses. The  indictments  in  form  are  alike  varying  only  as  to 
persons  from  whom  the  money  was  obtained,  the  amounts  thereof, 
and  the  dates  when  obtained. 

The  indictments  show  that  Gibbs  was  president  and  Laning 
vice-president  of  the  Ohio  Trust  Company,  a  company  incor- 
porated under  the  laws  of  the  state  of  Ohio,  and  engaged  in  the 
banking  business  in  the  city  of  Norwalk. 

It  is  charged  that  these  men  induced  and  procured  the  two 
parties  whom  defendants  are  charged  with  having  an  intent  to 
cheat  and  defraud,  to  deposit  money  with  the  Ohio  Trust  Com- 
pany. 

The  false  pretenses  alleged  arc : 


872  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Olbbs  and  Lanlog.  [Vol.  VII,  N.  3. 

"We  never  speculate  in  stocks;  we  loan  on  real  estate;  it  is 
solid  rock  security;  we  require  income  producing  property." 

By  an  innuendo  the  indictments  import  to  these  pretenses  the 
meaning, 

"That  said  the  Ohio  Trust  Company  did  not  invest  its  money 
in  stocks  or  loan  Its  money  on  the  security  of  stocks;  that  said 
the  Ohio  Trust  Company  loaned  its  money  only  on  the  security 
of  income  producing  real  estate." 

The  first  question  then  to  determine  is  whether  the  language 
alleged  to  have  been  used  will  bear  the  meaning  ascribed  to  it  by 
the  innuendo.  This  matter  is  peculiarly  one  for  the  court  and  if 
the  court  find  that  it  will  bear  that  meaning,  then  the  question 
whether  such  meaning  was  intended  must  be  submitted  to  the 
jury.  This  rule  from  Starkie  on  Slander  was  adopted  by  Judge 
Boynton  of  the  Supreme  Court  in  his  opinion  in  State  v.  Smily, 
37  Ohio  St.,  30,  35.  and  is  as  applicable  in  this  case  as  it  was  in 
that  libel  case.  The  rule  is  well  stated  in  Sturt  v.  Blogg,  10  Q. 
B.,  908. 

The  word  "speculate"  means  to  purchase  with  the  expecta- 
tion  of  an  advance  in  price,  and  of  selling  with  a  profit  by  means 
of  such  advance. 

"Merchants  speculate  upon  the  future  price  of  that  in  which 
they  deal,  and  buy  and  sell  accordingly.  In  other  words,  they 
think  of  and  weigh,  that  is,  speculate  upon,  the  probabilities  of 
the  coming  market  and  act  upon  this  outlook  into  the  future." 
Anderson's  Law  Die.  961 ;'  Kirkpatriek  v.  Bonsall,  72  Pa.  St.. 
155,  158. 

To  a  great  many  people  the  expression  "speculate  in  stocks" 
would  mean  speculative  ventures  made  upon  the  turn  of  the 
prices  of  the  stocks  alone  with  no  intent  to  deal  in  the  stock 
itself,  but  merely  to  risk  the  difference  between  the  rise  and  fall 
of  the  price,  where  no  capital  is  invested  except  what  is  necessary 
to  cover  the  difference  in  price  or  margin. 

The  innuendo  in  these  indictments  ascribes  to  the  word  "specu- 
late," as  used  by  the  accused,  the  meaning  of  investing  in  or  loan- 
ing  money  on  stocks.  An  investment  is  the  laying  out  of  money 
with  the  view  of  obtaining  an  income  or  profit  from  the  thing 
bought,  whether  it  be  an  interest  in  a  business,  a  farm;  stocks  or 


NISI  PRIUS  REPORTS— NEW  SERIES.  878 

1908.)  State  v.  Qlbbs  and  Lanlng. 

bonds ;  to  place  money  so  that  it  will  be  safe  and  yield  a  profit 
(Heel  v.  Beach,  92  Pa.  St.,  221,  226)_;  to  put  money  out  at  in- 
terest, either  by  way  of  loan  or  of  income  producing  property.  ■ 
Una  v.  Dodd,  39  N.  J.  Eq.,  173,  186. 

There  is  a  great  difference  between  the  meaning  of  the  word 
"speculate"  and  the  word  "invest."  Investments  can  be  made 
in  stocks  and  stocks  can  be  taken  as  security  for  loans  without 
the  transactions  becoming  speculations.  The  Standard  Dic- 
tionary gives  these  definitions: 

Invest:  "To  lay  out  (money  or  capital)  in  the  purchase  of 
property,  especially  for  permanent  use,  as  opposed  to  specula- 
tion. ' ' 

Speculate:  "To  make  a  purchase  or  investment  that  involves 
a  risk  of  loss,  but  also  offers  a  chance  of  considerable  profit; 
make  an  outlay  in  the  hope  of  possible  gain." 

Speculation:  "A  more  or  less  risky  investment  of  money  in 
expectation  of  considerable  gain,  or  any  business  or  commer- 
cial transaction  involving  such  a  use  of  money,  as  buying  com- 
modities to  hold  them  for  a  rise  in  price ;  as,  to  deal  in  futures, 
commonly  called  options,  is  a  mode  of  speculation." 

It  does  not  follow  that  because  a  man  says  he  does  not  specu- 
late in  stocks,  that  he  means  that  he  does  not  make  investments 
therein  nor  loans  thereon.  There  is  nothing  set  forth  in  the  in- 
dictment introductory  to  the  alleged  false  pretense,  one  of  the 
essential  elements  of  the  offense,  either  explanatory  of  it.  or  of 
the  manner  in  which  or  the  circumstances  under  which  it  was 
made.  The  meaning  ascribed  to  the  alleged  false  pretenses  is 
not  a  legal  inference  therefrom.  If  there  were  any  other  con- 
versation, any  correspondence  or  other  circumstances  connected 
with  the  transaction  which  led  up  to  the  making  of  the  state- 
ments set  forth  in  the  indictment*,  that  wou'd  tend  to  show  that 
the  words  were  used  with  that  understanding  and  meaning,  then 
the  meaning  attributed  to  them  in  the  indictment  could  be  justi- 
fied. Those  matters,  if  they  existed,  should  have  been  set  forth 
so  that  the  court  may  ascertain  if  the  innuendo  is  warranted. 

There  being  none  of  the  colloquium  set  forth  except  the  alleged 
false  pretense,  the  court  is  bound  to  limit  its  investigation  to  that 
alone,  and  determine  whether  the  meaning  attributed  to  it  is 
correct. 


874  HURON  COUNTY  COMMON  PLEAS. 

State  v.  Glbbs  and  Lanlng.  [Tot.  XI,  N.  S. 

The  use  of  the  term  "speculate"  in  the  negation  most  be  held 
to  the  meaning  given  it  in  the  innuendo  and  it  can  not  make  good 
what  the  indictment  otherwise  lacks. 

It  is  not  the  office  of  an  innuendo  to  add  to,  enlarge  or  change 
the  natural  sense  or  import  of  the  language  used  by  the  defend- 
ants. If  the  indictments  can  not  be  sustained  on  the  natural 
common  meaning  of  the  language  they  ean  not  be  helped  by  the 
use  of  an  innuendo  which  does  not  naturally  follow  from  the  lan- 
guage used.  Bishop  v.  Gazette  Co..  4  Bull.,  1082,  affirmed,  Cin- 
cinnati Gazette  Co.  v.  Bishop.  10  Am.  L.  Rec,  488;  Gohen  v. 
Volksblatt  Co.,  31  Bull.,  Ill;  State  v.  Cass.  5  N.  P.,  381. 

The  assertion  "we  loan  on  real  estate,"  can  not,  except  by 
forced  construction,  be  construed  to  mean  that  the  bank  did  not 
loan  on  any  other  security  than  real  estate.  It  meant  just  what 
its  language  implies,  that  the  bank  did  loan  money  on  real  es- 
tate and  that  "it  is  solid  rock  security."  If  there  were  any 
conversation  between  the  parties  leading  up  to  this  pretense  or 
any  subsequent  conversation  showing  any  different  meaning,  that 
colloquium,  if  there  were  any,  should  have  been  set  out  in  the  in- 
dictment. -A  loan  of  a  small  amount  upon  real  estate  security 
would  have  been  a  sufficient  fact  upon  which  to  predicate  the 
statement  that  "we  loan  on  real  estate."  The  statement  may  as 
well  be  interpreted  to  have  been  made  as  an  item  of  informa- 
tion, that  they  or  the  bank,  loaned  money  on  real  estate,  but  re- 
quired income  producing  property.  The  inference  which  the 
innuendo  makes  that  the  bank  loaned  all  its  money  on  income  pro- 
ducing real  estate  does  not  follow  from  the  statement,  without 
other  conversation  in  connection  with  the  statement  which  would 
explain  or  elucidate  it.  The  pretenses  will  not  bear  the  meaning 
given  to  them  nor  will  it,  standing  alone,  uncontradicted  as  to 
the  truthfulness  of  its  literal  meaning,  be  sufficient  to  support 
this  indictment. 

There  are  no  allegations  showing  whether  the  statements  made 
applied  to  the  hank  or  to  the  accused  individually.  For  all  that 
appears  in  the  statements  they  might  have  appjied  solely  to  th; 
business  methods  of  the  accused. 

The  natural  inquiry  is,  did  they  mean  that  they,  as  individuals. 
never  speculated  in  stocks  or  that  the  bank  never  speculated  in 
stocks. 


NISI  PEIUS  REPORTS— NEW  SERIES.  H75 

1908.]  State  v.  Qibbs  and  Laning. 

If  the  first  pretense  alone  is  considered  it  may  be  as  well  re- 
ferable to  the  individuals  as  to  the  bank,  if  standing  alone.  The 
character  of  the  business  methods  of  the  officers  of  a  bank  is  very 
often  as  much  taken  into  account  as  those  of  the  bank  by  persons 
dealing  with  the  bank.  Individuals  may  speculate  while  banks 
have  no  right  to  do  so,  as  is  well  known.  If  the  essential  matters 
and  things  in  this  indictment  are  to  be  arrived  at  by  inference, 
it  may,  with  more  reason,  be  supposed  that,  if  any  inquiry  were 
made  by  the  depositors  of  the  bank  about  whether  speculating 
were  done  by  those  connected  with  the  bank,  it  would  be  about 
the  officers,  rather  than  about  the  bank  itself.  People  generally 
know  that  banks  do  not  thus  transcend  their  powers,  while  it 
is  well  known  that  banks  are  very  often  injured  by  the  specula- 
tions of  their  officers.  But  the  remaining  pretenses  help  out  the 
inference  of  the  state,  and  taking  them  all  together  there  may  be 
said  to  be  a  fair  guess,  but  not  a  reasonable  certainty,  that  they 
referred  to  the  bank.  With  the  allegations  that  the  licensed  were 
president  and  vice-president  respectively  of  the  bank  as  an  in- 
ducement, and  the  pretenses  as  set  forth  for  the  colloquium 
would  the  innuendo  given  be  a  reasonable  deduction!  There  is 
not  a  direct  averment  in  the  indictments,  outside  of  the  innuen- 
dos,  that  those  pretenses  were  made  with  reference  to  the  busi- 
ness methods  of  the  bank.  The  only  grounds  then  for  that  in- 
ference is,  that  these  men  were  officers  of  this  bank  and  in  the 
pretense  used  the  pronoun  "we"  in  connection  with  their  man- 
ner of  loaning  money.  For  all  that  appears  in  the  indictment 
the  men  might  also  have  been  officers  of  other  institutions  mak- 
ing loans,  or  have  been  in  the  business  as  individuals  on  their 
own  account.  If  the  fact  be  that  these  pretenses  were  made  with 
reference  to  the  Ohio  Trust  Company's  methods  of  doing  busi- 
ness, should  not  that  fact  appear  in  some  other  manner  in  the 
indictment  than  by  an  innuendo,  which  is  only  a  conclusion 
drawn  from  foregoing  premises  set  forth  in  the  indictment! 
While  it  may  not  be  of  any  great  moment  about  whom  these  pre- 
tenses were  made,  if  they  were  the  inducing  cause  of  the  accusers 
parting  with  their  property,  yet  the  accused  are  entitled  to  have 
the  essential  facts,  making  up  the  various  elements  of  the  offense 
charged  against  them,  set  forth.  There  should  be  no  uncer- 
tainty to  whom  these  pretenses  referred. 


876  HURON  COUNTY  COMMON  PLEAS. 

State  t.  Gibba  and  Laning.  [Vol.  Til.  N.  S. 

If  there  is  any  doubt  about  the  persons  to  whom  these  state- 
ments contained  in  the  pretenses  apply,  that  doubt  must  be  re- 
solved iu  favor  of  the  accused. 

An  indictment  must  aver  with  reasonable  certainty  all  the  ma- 
terial facts  which  are  necessary  to  be  proven  to  procure  a  con- 
viction.   Ellars  v.  State,  25  Ohio  St.,  385,  388. 

Unless  these  pretenses  were  made  with  direct  reference  to  the 
business  methods  of  the  Ohio  Trust  Company,  evidence  can  not 
be  received  to  support  the  charges  in  the  indictment  because  the 
entire  theory  of  the  draftsman  of  the  indictment,  as  shown  by 
the  instrument,  was  that  these  statements  pertained  to  the  busi- 
ness methods  of  the  bank. 

If  the  statements  in  the  alleged  false  pretenses  referred  to 
their  individual  methods  of  doing  business,  then  the  indictments 
fail  in  all  their  negations  and  the  indictments  no  longer  contain 
facts  constituting  an  offense. 

The  indictment  does  not  state  facts  with  reference  to  the 
making  of  these  statements  with  such  reasonable  certainty  as  to 
advise  the  defendants  what  they  may  expect  to  meet  on  the  trial, 
nor  to  furnish  the  court  with  the  requisite  data  from  which  to 
determine  whether  the  defendants  or  either  of  them  have  com- 
mitted an  offense  within  the  statute.  Lamberton  v.  State,  11  Ohio, 
282,  284;  Dillingham  v.  State,  5  Ohio  St.,  280,  285;  Redmond  v. 
State,  35  Ohio  St..  81,  82;   State  v.  Trisler,  49  Ohio  St.,  583. 

The  Supreme  Court  of  this  state  has  said,  in  Redmond  v. 
State,  supra,  page  82 1 

"It  is  a  rule  of  criminal  law,  based  upon  sound  principles. 

that  ever)-  indictment  should  contain  a  complete  description  of 
the  offense  charged.  It  should  set  forth  the  facts  constituting 
the  offense,  so  that  the  accused  may  have  notice  of  what  he  is  to 
meet,"  of  the  act  done,  which  it  behooves  him  to  controvert,  "and 
so  that  the  court,  applying  the  law  to  the  facts  charged  against 
him.  may  sec  that  a  crime  has  been  committed." 

Judge  Ranney.  in  Dillingham  v.  State,  supra,  page  285,  said : 

"It  is  neither  consistent  with  general  principles  nor  constitu- 
tional safeguards,  to  allow  a  man  to  be  thus  put  to  trial  upon  a 
criminal  charge  in  the  dark." 


NISI  PRIUS  REPORTS— NEW  SERIES. 

German  Reformed  Church  v.  Welkel. 


DISPOSAL  OIT  PROPERTY  DEVISED  FOR.  USE  AS  A 
PARSONAGE. 

Common   Pleas  Court  of  Montgomery   County.    - 
First  German  Reformed  Church  v.  Weikbl  et  al. 

Decided.  September,  1908. 

Wills — Devise  of  Property  For  Use  as  a  Parsonage — Right  of  the  Church 
to  Sell  and  Re-invest  Proceeds — Disposition  of  Surplus — Gifts  for 
Pious  Uses — Cy  Pres — Quieting  Title— Seeing  to  Application  of 
Proceeds. 

1.  The  fact  that  a  gift  Is  made  to  a  particular  religious  denomination 

does  not  deprive  It  of  Its  character  as  a  public  charity  or  elimi- 
nate It  from  the  rule  which  applies  to  gifts  for  pIouh  usea. 

2.  Where  the  gift  ts  In  the  form  of  a  parsonage,  and  the  property 

enhances  greatly  In  value  and  becomes  unsuitable  for  Its  original 
purpose  by  reason  of  the  encroachments  of  business,  the  church 
may  sell  the  property  and  Invest  so  much  of  the  proceeds  as  Is 
necessary  to  provide  a  new  parsonage  in  another  locality,  and  may 
treat  the  balance  remaining  on  hand  as  a  maintenance  fund  for 
beeping  the  newly  acquired  property  In  repair  and  making  neces- 
sary improvements  and  paying  taxes. 

3.  The  purchaser  of  property  thus  sold  under  the  direction  of  the  court 

Is  not  bound  to  see  to  the  application  of  the  proceeds. 

Kenedy,  Munger  &  Kenedy,  for  plaintiff. 

Snediker,  J. 

This  ease  comes  before  the  court  on  a  petition  for  the  con- 
struction of  certain  clauses  of  the  will  of  Catherine  Weikel,  and 
for  the  further  purpose  of  quieting  the  title  to  certain  property 
now  held  by  the  plaintiff  church.  The  clause  of  the  will  asked 
to  be  construed  is  as  follows: 

"I  give,  devise  and  bequeath  to  the  First  German  Reformed 
Church  of  the  city  of  Dayton,  Ohio,  all  that  portion  of  in-lots 
numbered  223  and  224  as  designated  in  the  plat  of  the  city  of 
Dayton,  in  the  county  of  Montgomery,  state  of  Ohio,  being  the 
same  premises  conveyed  by  John  Sheets  and  Savila  Sheets,  his 
wife,  to  me  by  deed  dated  October  15,  1864,  recorded  in  Book 
T,  No.  3,  pages  400  and  401  of  the  records  of  Montgomery  conn- 


378       MONTGOMERY  COUNTY  COMMON  PLEAS. 

German  Reformed  Church  v.  Walkel.      [Vol.  VII,  N.  S. 

ty,  Ohio  (reference  being  had  to  said  deed  for  a  more  particular 
description  of  said  premises),  to  be  by  said  church  occupied  as 
a  parsonage  for  the  residence  of  the  pastor  of  said  church  per- 
petually, or  in  case  a  change  of  location  be  deemed  advisable  at 
any  time,  the  same  may  be  sold  and  the  proceeds  appropriated 
to  another  parsonage." 

Doubt  is  entertained  by  plaintiff  in  these  respects  : 

1.  Plaintiff  is  in  doubt  as  to  the  true  construction  of  the 
clause  therein  as  follows:  "To  be  by  said  church  occupied  as 
a  parsonage  for  the  residence  of  the  pastor  of  said  church 
perpetually,  or  in  case  a  change  of  location  be  deemed  advis- 
able at  any  time,  the  same  may  be  sold  and  the  proceeds  ap- 
propriated to  another  parsonage." 

2.  Plaintiff  is  in  doubt  as  to  whether  the  entire  proceeds,  on 
a  sale  being  had  of  said  premises,  must  be  used  in  the  pur- 
chase and  erection  of  another  parsonage,  or  whether  a  portion  of 
said  proceeds  may  be  used  as  a  fund  for  maintaining  such  other 
parsonage,  for  repairing  and  improving  same,  and  for  paying  the 
taxes,  insurance  and  other  expenses  thereof,  or  whether  some 
other  application  of  said  proceeds  is  required  under  the  will. 

3.  Plaintiff  is  in  doubt  as  to  whether  a  purchaser  of  such 
real  estate  is  required  to  see  to  the  application  of  the  purchase 
money. 

The  testimony  in  the  case  showed  that  for  a  period  of  more 
than  twenty-one  years  the  subject  of  the  above  devise  has  been 
in  continued  use  by  said  church  as  a  parsonage,  and  is  now  so 
used.  At  the  time  the  church  entered  into  possession  the  part 
of  the  city  in  which  it  is  located  was  a  residence  district;  but 
at  this  time  it  is  in  the  very  business  center  of  the  city,  so  that 
instead  of  being  as  it  then  was,-  a  desirable  site  for  the  purpose 
intended,  noise,  dirt  and  other  improper  surroundings  have  ren- 
dered it  almost  totally  unfit  therefor. 

Further,  the  value  of  the  property  at  first  occupancy  was 
about  $3,000.  Since  then  the  growth  of  the  crty  and  the  use  of 
surrounding  property  for  commercial  purposes  has  enhanced  its 
worth,  so  that  now  it  should  bring  from  $20,000  to  $25,000. 

The  plaintiff  church  has  a  membership  of  about  700  persons. 


NISI  PRUTS  REPORTS— NEW  SERIES.  879 

1908.]  German  Reformed  Church  v.  WelkeL 

and  recognizes  the  fact  that  this  parsonage  is  both  undesirable 
for  its  intended  use,  and  is  an  expensive  luxury. 

The  purpose  of  this  proceeding,  if  it  may  be  done,  is  to  sell 
the  parsonage  and  rebuild  at  less  than  the  selling  price  in  a 
proper  location,  using  the  balance  of  the  fund  created  by  the 
sale  and  left  after  building  or  buying  in  such  a  way  as  bo  carry 
out  the  intention  of  the  testatrix. 

It  appears  also  as  a  matter  of  fact  in  the  case  that  an  invest- 
ment of  the  amount  of  the  value  of  this  property  in  a  parsonage 
for  the  use  of  the  pastor  of  said  church,  would  impose  upon  him 
the  burden  of  maintaining  an  establishment  far  in  excess  jf 
what  his  income  as  sucn  pastor  would  warrant. 

Our  first  inquiry  is  as  to  the  character  of  the  gift.  The 
language  of  the  will  is  as  before  quoted.  Undoubtedly  it  is  a 
gift  to  pious  uses. 

In  the  8  La.,  at  page  246,  in  the  case  of  State  of  Louisiana  et 
at  v.  Executors  of  John  McDonogh  and  the  City  of  New  Orleans, 
the  court  defines  legacies  to  pious  uses  in  the  following  language: 

"Legacies  to  pious  uses  are  those  which  are  destined  to  some 
work  of  piety,  or  object  of  charity,  and  have  their  motive  in- 
dependent of  the  consideration  which  the  merit  of  the  legatees 
might  procure  to  them.  In  this  motive  consists  the  distinction 
between  these  and  ordinary  legacies.  The  term  pious  uses  in- 
cludes not  only  the  encouragement  and  support  of  pious  and 
charitable  institutions,  but  those  in  aid  of  education  and  the  ad- 
vancement of  science  and  the  arts.  They  are  viewed  with  special 
favor  by  the  law  and  with  double  favor  on  account  of  their 
motives  for  sacred  usages  and  their  advantages  to  the  public 
weal. ' ' 

In  the  14th  Allen,  at  page  556,  in  the  case  of  Jackson  v.  Phil- 
lips et  al,  the  court  defines  a  charity  as  follows : 

"A  charity,  in  the  legal  sense,  may  be  more  fully  defined  as  a 
gift,  to  be  applied  consistently  with  existing  laws,  for  the 
benefit  of  an  indefinite  number  of  persons,  either  by  bringing 
their  minds  or  hearts  under  the  influence  of  education  or  re- 
ligion, by  relieving  their  bodies  from  disease,  suffering  or  con- 
straint, by  assisting  them  to  establish  themselves  in  life,  or  by 
erecting  or  maintaining  public  buildings  or  works  or  otherwise 
lessening  the  burdens  of  government.    It  is  immaterial  whether 


380        MONTGOMERY  COUNTY  COMMON  PLEAS. 

German  Reformed  Church  v.  Weikel.      [Vol.  VII,  N.  S. 

the  purpose  is  called  charitable  in  the  gift  itself,  if  it  is  so  de- 
scribed as  to  show  that  it  is  charitable  in  its  nature." 

In  the  28th  Penn.,  page  35,  the  case  of  Price  et  al  v.  Maxwell 
et  al,  the  court  say : 

"If  we  were  to  attempt  a  definition  which  would  embrace  all 
gifts  for  charitable  uses,  we  should  adopt  the  language  of  the 
eminent  patriarch  of  our  profession,  Mr.  Binney,  as  expressed 
in  his  argument  in  Vidal  et  al  v.  The  City  of  Philadelphia,  'what- 
ever is  given  for  the  love  of  God,  or  for  the  love  of  your  neigh- 
bor, in  the  catholic  and  universal  sense— given  from  these  mo- 
tives and  to  these  ends— free  from  the  stain  or  taint  of  every 
consideration  that  is  personal,  private. or  selfish,'  is  a  gift  for 
charitable  uses  according  to  that  religion  from  which  the  law  of 
charitable  uses  has  been  derived." 

It  is  apparent  from  the  foregoing  that  the  gift  in  question 
is  a  public  charity ;  and  the  fact  that  the  gift  is  to  a  particular 
denomination  does  not  deprive  it  of  its  public  character. 

In  the  71st  Conn,  at  page  135,  Mack's  Appeal  from  Probate, 

the  court  uses  the  following  language : 

"The  maintenance  of  religious  services  in  accordance  with  the 
views  of  any  denomination  of  Christians,  is  a  public  charity 
within  the  meaning  of  our  statute  of  charitable  uses.  We  recog- 
nize the  right  of  every  man  to  establish  foundations  and  charities, 
to  promote  his  own  or  any  other  peculiar  religious  opinions." 

In  the  2d  Weekly  Law  Bulletin,  at  page  168,  in  the  case  of 
Gilmour  v.  Pelton,  the  court  say : 

"A  Presbyterian  church  is  no  less  a  place  of  worship  because 
Baptists,  Catholics,  Unitarians  or  Jews  may  not  choose  to  worship 
therein.  And  our  Supreme  Court  in  discussing  a  similar  case, 
says:  'For  the  purpose  of  determining  the  publie  nature  of 
the  charity,  it  is  not  material  through  what  particular  form  the 
charity  may  be  administered ;  if  it  is  established  and  maintained 
for  the  benefit  of  the  public,  and  so  constituted  that  the  public 
can  make  it  available,  that  is  all  that  is  required.'    25  0.  S.,  224." 

In  the  69th  Ga.,  page  570,  the  case  of  Beckwith,  Trustee,  v. 
The  Rector  .Wardens  and  Vestrymen,  etc.,  the  coipt  say: 

"The  support  and  propogation  of  religion  is  clearly  a  chari- 
table use.  and  this  includes  gifts  for  the  erection,  maintenance 


NISI  PRIUS  REPORTS— NEW  SERIES.  881 

1908.]  German  Reformed  Church  v.  Weikel. 

and  repair  of  church  edifices  of  worship,  the  support  of  the 
ministry,  etc.,  2  Pom.  Eq.,  587-8;  Law  of  Trusts  (Tiffany  & 
Bullard),  232,  236-39-40." 

Perry  on  Trusts,  Section  701,  contains  the  following: 

"Both  before  and  since  the  statute  (referring  to  the  statute 
of  Elizabeth),  gifts  for  the  advancement,  spread,  and  teaching  of 
Christianity,  or  for  the  convenience  and  support  of  worship,  or 
of  the  ministry  have  been  held  to  be  charitable." 

These  authorities  further  satisfy  the  court  that  the  gift  of  this 
parsonage  is  a  charity.  That  having  been  ascertained,  what  be- 
comes of  the  fund  realized  on  the  sale  of  this  property  if  a  sale 
is  had  under  the  power  given  in  the  willt 

In  addition  to  the  facts  already  stated,  it  appeared  from  the 
evidence  that  a  suitable  parsonage  for  this  church  should  not 
cost  more  than  $10,000.  There  would  remain,  therefore,  a  bal- 
ance, after  .the  purchase  of  such  a  parsonage,  a  fund  of  at  least 
$10,000  or  more  to  be  applied  and  disposed  of.  The  question  is, 
how  shall  this  be  done!  If  at  all  it  must  be  under  the  doctrine 
of  cy  prea. 

By  this  doctrine,  "'Where  the  literal  execution  of  the  trusts 
of  a  charitable  gift  is  inexpedient  or  impracticable,  a  court  of 
equity  will  exeeute  them,  as  nearly  as  it  can,  according  to  the 
original  plan.  The  general  principle  upon  which  the  court  acts 
is  that,  if  the  testator  has  manifested  a  general  intention  to 
give  to  charity,  the  failure  of  the  particular  mode  in  which  the 
charity  is  rto  be  executed  shall  not  destroy  the  charity ;  but,  if 
the  substantial  intention  is  charity,  the  law  will  substitute  an- 
other mode  of  devoting  the  property  to  charitable  purposes, 
though  the  formal  intention  as  to  the  mode  can  not  be  accom- 
plished."    Eaton  on  Equity,  p.  393. 

This  doctrine  of  charitable  trusts  as  applying  to  the  jurisdic- 
tion of  equity  is  in  force  at  least  in  its  essential  features  in  the 
state  of  Ohio.  This  is  illustrated  in  the  case  of  Mclntire's 
Admrs.,  v.  the  City  of  Zanesville,  17  O.  S..  p.  352.  Also  by  the 
case  of  Francis  LeClercq  et  al  v.  Trustees  of  the  Town  of 
Qallipolis,  7  Ohio,  p.  218;  in  that  case  the  court  by  way  of 
quotation  says: 


382       MONTGOMERY  COUNTY  COMMON  PLEAS. 

German  Reformed  Church  v.  Wclkol.       [Vol.  XI,  N.  S. 

"If  the  object  of  the  creation  of  the  trust  can  be  attained,  the 
court  of  chancery  will  enforce  its  execution.  Where  circum- 
stances are  so  changed,  that  the  direction  of  the  donor  prescribing 
the  use,  can  not  be  literally  carried  into  effect,  the  Legislature  or 
the  court,  in  those  cases  where  general  intention  can  be  effected, 
may  lawfully,  in  some  cases,  enforce  its  execution  as  nearly  as  cir- 
cumstances admit  by  the  application  of  the  doctrine  of  cy  pres, 
7  Vera.,  36,  490;   9  Vera.,  405;   1  Vera.,  248;   2  Cox,  365." 

In  the  50th  Mo.,  p.  167,  Academy  of  the  Visitation,  v.  Clemens 
et  al,  .the  court  say : 

"Where  lands  are  vested  in  a  corporation  by  devise  for 
charitable  purposes,  and  it  is  contemplated  by  the  donor  that 
the  charity  should  last  forever,  the  heirs  can  never  have  the 
lauds  back  again.  If  it  should  become  impossible  to  execute  the 
charity  as  expressed,  another  charity  will  be  substituted  by  the 
court  so  long  as  the  corporation  exists." 

In  Adams  Equity  (3d  Am.  Ed.),  pp.  234-5,  we  find  the  fol- 
lowing : 

"If  in  a  gift  to  charity  the  intended  object  •  •  *  ceases 
to  afford  the  means  of  applying  the  entire  fund  the  presumed 
general  object  will  be  effectuated  by  the  doctrine  of  cy  pres,  i,  e., 
nn  application  to  some  other  purpose,  having  regard  as  nearly 
as  possible  to  the  original  plan." 

In  the  ease  of  John,  W:  Harper  v.  The  Central  Trust  «£  Safe. 
Deposit  Co.,  8  N.  P..  157,  we  find  the  following: 

"It  is  not  necessary  that  the  object  of  the  trust  should  cease 
entirely  to  exist,  or  that  the  express  trust  should  become  abso- 
lutely impossible  of  application  before  the  doctrine  of  cy  pres 
can  be  invoked." 

Lewin  on  Trusts,  Vol.  2,  p.  688,  lays  down  the  rule  that :  ' '  The 
management  of  the  trust  may  contravene  the  letter  of  the 
founder's  will,  and  yet  on  a  favorable  construction,  be  conform- 
able to  the  intention." 

"Among  the  eharitable  trusts  which  have  been  most  liberally 
construed  and  most  uniformly  sustained,  have  been  those  created 
for  the  promotion  of  religion  and  education."  Sowers  v.  Cyre- 
nius,  39  0.  S.,  29. 


NISI  PRIUS  REPORTS— NEW  SERIES.  383 

IMS.]  German  Reformed  Church  v.  Welkcl. 

"The  great  consideration  which  the  law  attaches  to  these 
legacies,  controls  tribunals  in  the  interpretation  of  them-,  and 
has  secured  for  their  support  a  doctrine  of  approximation  which 
is  coeval  with  their  existence."    8  La.,  246. 

In  the  case  at  bar,  if  .this  property  is  sold,  as  it  may  be  sold 
under  the  power  given  in  the  will  and  found  in  the  clause  al- 
ready referred  to,  a  fund  is  created  which  under  the  terms  of 
the  will  should  be  reinvested  in  another  parsonage.  The  needs 
of  this  church  are  such  and  the  circumstances  generally  are 
such  that  the  application  of  this  whole  fund  to  the  purchase  of 
a  parsonage  is  wholly  unnecessary  and  uncalled  for.  What- 
ever balance  is  left  after  satisfying  the  needs  of  the  church  by 
the  purchase  of  a  proper  parsonage  comes  within  the  rule  here 
laid  down  by  Adams  and  within  the  doctrine  of  cy  pres  as  al- 
ready defined  by  the  authorities  quoted.  A  wise  disposition  of 
any  surplus  fund,  therefore,  would  be  its  use  for  the  maintain- 
ing .of  the  parsonage  purchased,  for  repairing  and  improving  the 
same,  and  for  paying  the  taxes,  insurance  and  other  expenses 
thereon,  and  such  use  will  be  approved  by  the  court. 

The  only  remaining  question  on  the  part  of  counsel  with 
reference  to  the  will  is  as  to  whether  a  purchaser  of  the  real 
estate  in  question  is  required  to  see  to  the  application  of  the 
purchase  money. 

Lewin  on  Trusts,  Vol.  2,  p.  597,  lays  down  the  rule  ai  fol- 
lows: 

"If  a  sale  be  directed,  and  the  proceeds  are  not  simply  to  be 
paid  over  to  certain  parties,  but  there  is  a  special  trust  annexed, 
the  inference  is,  that  the  settlor  meant  to  confide  the  execution 
of  the  trust  to  the  hands  of  the  trustee,  and  not  of  the  purchaser, 
and  that  the  trustee  therefore  can  sign  a  receipt." 

This  rule  is  supported  by  the  case  of  Clyde  v.  Simpson  et  al,  in 
the  4th  0.  S-,  445. 
Perry  on  Trusts,  Vol.  2,  Sec.  794,  says: 

"If  a  sale  is  directed,  but  the  proceeds  are  not  to  be  paid 
over  to  the  cestui*  que  trust,  but  are  to  be  held  by  the  trustees 
upon  some  special  trusts.  In  such  case  the  implication  is  plain, 
that  the  settlor  intended  to  confide  the  execution  of  the  trust  to 


384  SUPERIOR  COURT  OP  CINCINNATI. 

Baker  v.  Morehead  A  Co.  [ToLTII.N.  8. 

the  trustees,  and  that  they  have  power  and  authority  to  receive 
the  trust  fund  and  to  give  receipts.  Power  of  sale  and  rein- 
vestment relieves  the  purchaser  of  any  burden  *of  looking  after 
the  application  of  the  money."' 

"When  the  object  of  the  trust  is  defined,  but  the  purchase 
money  is  to  be  reinvested  upon,  trusts  requiring  time  and  dis- 
cretion, the  purchaser  is  not  bound  to  see  to  the  application 

thereof."    78  Vs.,  313. 

"Where  trustees  under  a  will  have  power  to  sell,  in  their 
discretion,  and  re-invest  the  proceeds  on  the  same  trusts,  a 
purchaser  from  them  is  not  bound  to  see  to  the  application  of 
the  purchase  money."    58  Md.,  53. 

It  is  apparent  from  the  above  authorities  (that  a  purchaser  of 
real  estate  devised  by  defendant's  testatrix  to  this  church  is  not 
required  to  see  to  the  application  of  the  purchase  money. 

With  reference  to  the  quieting  of  the  title  to  said  real  estate, 
the  court  being  satisfied  that  the  same  should  be  done,  it  is  ac- 
cordingly ordered. 

Let  an  entry  be  drawn  in  conformity  to  these  findings  of  the 
court. 


ATTACHMENT  FOB.  MONEY  LOST  IN  A  BUCKET  SHOP. 

Superior  Court  ot  Cincinnati. 

Evbbbt  R.  Baker  v.  Morehead  &  Co. 

Decided,  October  1,  1908. 

Attachment — In  Action  for  Money  Lo»t  in  Scheme  of  Chance — Con- 
structive Contract*— Pleading— Section*  3521,  4283  and  4272. 

An  order  tor  attachment  without  bond  will  lie  against  a  defendant  tor 
etgn  corporation  In  an  action  tor  the  recovery  ot  money  lost  In  a 
scheme  of  chance,  commonly  called  a  bucket  shop. 

Ernst  &  Cassatt,  for  the  motion. 
Peck,  Shaffer  &  Peck,  contra. 

Spiegel,  J. 

Plaintiff  alleges  that  the  defendant  is  a  corporation  under  the 
laws  of  Ohio,  maintaining  a  scheme  of  chance,  commonly  called 


NISI  PRIUS  REPORTS— NEW  SERIES.  885 

1908.]  Baker  v.  Morehead  ft  Co. 

a  bucket  shop ;  that  between  the  23d  day  of  February,  1907,  and 
the  10th  day  of  September,  1907,  he  loat,  expended  and  paid  to 
the  said  defendant  on  account  of  aaid  game  of  chance  $13,100, 
which  sum  the  defendant  received  to  the  use  of  said  plaintiff, 
and  in  which  sum,  together  with  exemplary  damages  in  the 
sum  of  $500,  defendant  is  indebted  to  him. 

Upon  this  petition,  plaintiff  obtained  an  order  of  attach- 
ment against  the  defendant  without  giving  bond,  and  the  case  is 
now  before  me  on  a  motion  to  discharge  and  set  aside  the  order 
of  attachment  because  no  bond  was  given. 

Section  5521  of  the  Revised  Statutes  provides  that  plaintiff 
may  have  an  attachment  when  a  defendant  is  a  foreign  corpora- 
tion, and  plaintiff's  claim  arises  upon  a  contract,  judgment  or 
decree ;  or  for  causing  death  or  a  personal  injury  by  a  negligent 
or  wrongful  act,  and  Section  5523  provides  that  when  a  defend- 
ant is  a  foreign  corporation  no  undertaking  need  be  given. 

It  is  admitted  that  defendant  is  a  foreign- corporation,  and 
that  plaintiff's  claim  does  not  arise  upon  judgment  or  decree  or 
from  causing  death  or  a  personal  injury.  Does  his  claim  then 
arise  upon  contract  t 

This  action  is  brought  under  the  provisions  of  Section  4269, 
e.t  seq.,  which  provide  that  all  promises,  agreements,  notes  or 
other  contracts  when  the  whole  or  any  part  of  the  consideration 
of  such  promise,  etc.,  is  for  money  or  other  valuable  thing  what- 
soever, won  or  lost  upon  any  game  of  any  kind,  shall  be  abso- 
lutely void  and  of  no  effect ;  but  any  person  who  loses  to  another 
person  any  sum  of  money  or  thing  of  value  in  playing  at  any 
game  or  scheme  of  chance,  or  any  citizen  for  him,  may  sue  for 
and  recover  the  same  by  civil  action  founded  on  this  chapter,  in 
which  action  it  shall  be  sufficient  for  the  plaintiff  to  allege  that 
the  defendant  is  indebted  to  the  plaintiff  in  the  sum  so  lost  and 
paid. 

Contracts  are  divided  into  three  classes — express,  implied  and 
quasi  or  constructive.  Only  the  first  two  fall  under  the  class  of 
true  contracts,  namely,  an  agreement  or  promise  enforceable  by 
law,  as  defined  by  Pollock.  The  third  category  applies  to  a  class 
of  obligations  which  are  imposed  or  created  by  law  without  re- 
gard to  the  assent  of  the  party  bound,  on  the  ground  that  they 


386  SUPERIOR  COURT  OP  CINCINNATI. 

Baker  v.  Morehead  ft  Co.  [Vol.  VII,  N.  S. 

are  dictated  by  public  policy,  and  which  are  allowed  to  be  en- 
forced by  an  action  ex  contractu.  These  obligations,  however, 
are  not  contract  obligations  at  all  in  the  true  sense,  for  there  is 
no  agreement;  but  they  are  clothed  with  the  semblance  of  con- 
tract for  the  purpose  of  the  remedy.  They  are  therefore  called 
quasi  or  constructive  contracts. 

Possibly  nowhere  have  these  constructive  contracts  been  better 
explained  than  by  Judge  Lowrie,  of  the  Pennsylvania  State 
Supreme  Court,  in  Herzog  v.  Rerzog,  29  Penn.,  467.  Quoting 
Blackstone,  who  knew  but  two  classes  of  contracts,  express  and 
implied,  he  says : 

"This  is  the  language  of  Blackstone,  2  Coram.,  443,  and  it  is 
open  to  some  criticism.  There  ia  some  looseness  of  thought  in 
supposing  that  reason  and  justice  ever  dictate  any  contracts  be- 
tween parties,  or  impose  such  upon  them.  All  true  contracts 
grow  out  of  the  intentions  of  the  parties  to  transactions  and  are 
dictated  only  by  their  mutual  and  accordant  wills.  When  this 
intention  is  expressed  we  call  the  contract  an  express  one.  When 
it  is  not  expressed  it  may  be  inferred,  implied  or  presumed  from 
circumstances  as  really  existing,  and  then  the  contract  thus 
ascertained  is  called  an  implied  one.  The  instances  given  by 
Blackstone  are  an  illustration  of  this.  But  it  appears  in  an- 
other place,  3  Comm..  159-166,  that  Blackstone  introduces  this 
thought  about  reason  and  justice  dictating  contracts,  in  order  to 
embrace  under  his  definition  of  an  implied  contract,  another 
large  class  of  relations,  which  involve  no  intention  to  contract 
at  all,  though  they  may  be  treated  as  if  they  did.  Thus,  when- 
ever, not  under  our  varient  notions  of  reason  and  justice,  but 
the  common  sense  and  common  justice  of  the  country,  and  there- 
fore the  common  law  or  statute  law,  impose  upon  any  one  a  duty, 
irrespective  of  contract,  and  allow  it  to  be  enforced  by  a  contract 
remedy,  he  calls  this  a  case  of  implied  contract.  Thus  out  of 
torts  grows  the  duty  of  compensation,  and  in  many  cases  the  tort 
may  be  waived,  and  an  action  brought  in  assumpsit.  It  is  quite 
apparent,  therefore,  that  radically  different  relations  are  classi- 
fied under  the  same  term,  and  this  must  often  give  rise  to  in- 
distinctness of  thought.  And  this  was  not  at  all  necessary;  for 
we  have  another  well  authorized  technical  term  exactly  adapted 
to  the  office  of  making  the  true  distinction.  The  latter  class  are 
merely  constructive  contracts,  while  the  former  are  truly  im- 
plied ones.  In  one  case,  the  contract  is  mere  fiction,  a  form  im- 
posed in  order  to  adapt  the  case  to  a  given  remedy ;  in  the  other, 


NISI  PRIUS  REPORTS— NEW  SERIES.  887 

1908.]  Baker  v.  Morehe&d  A  Co. 

it  is  a  fact  legitimately  inferred.  In  one  the  intention  is  disre- 
garded ;  in  the  other  it  is  ascertained  and  enforced.  In  one,  the 
duty  defines  the  contract ;  in  the  other,  the  contract  defines  the 
duty.  We  have,  therefore,  in  law  three  classes  of  relations  called 
contracts :  1.  Constructive  contracts,  which  are  fictions  of  law 
adapted  to  enforce  legal  duties  by  actions  of  contract,  where  no 
proper  contract  exists,  express  or  implied.  2.  Implied  con- 
tracts, which  arise  under  circumstances,  which,  according  to  the 
ordinary  course  of  dealing  and  the  common  understanding  of 
men,  show  a  mutual  intention  to  contract.  3.  Express  contracts, 
already  sufficiently  distinguished." 

Also,  Judge  Graves,  of  the  Michigan  Supreme  Court,  who  ex- 
plains it  historically  in  Woods  v.  Ayers,  39  Mich.,  348 : 

"In  early  times,  the  want  of  a  common  law  remedy  suited  to 
cases  of  non-performance  of  simple  promises  caused  frequent  re- 
course to  equity  for  relief;  but  at  length  in  the  21st  of  Henry 
VII  it  was  settled  by  the  judges  that  an  action  on  the  case  would 
lie  as  well  for  nonfeasance  as  for  malfeasance,  and  in  that  way 
assumpait  was  introduced.  In  theory,  it  was  an  action  to  recover 
for  non-performance  of  simple  contracts,  and  the  formula  and 
proceedings  were  constructed  and  carried  on  accordingly.  Very 
early,  there  were  successful  efforts  to  apply  it  beyond  its  import, 
and  from  the  reign  of  Elizabeth  'this  action  has  been  extended' 
— as  Mr.  Spence  informs  us — 'conscience  encroaching  on  common 
law'  to  almost  every  case  where  an  obligation  arises  from  natural 
reason,  and  the  just  construction  of  law,  that  is  quasi  ex  con- 
tractu, and  is  now  maintained  in  many  cases  which  its  principles 
do  not  comprehend  and  where  fictions  and  intendments  are  re- 
sorted to,  to  fit  the  actual  eause  of  action  to  the  theory  of  the 
remedy.  It  is  thus  sanctioned  where  there  has  been  no  actual  as- 
sumpsit, no  real  contract,  but  where  some  duty  is  deemed  suffi- 
cient to  justify  the  court  in  imputing  a  promise  to  perform  it, 
and  hence  in  bending  the  transaction  to  the  form  of  action. 
This  tendency  to  apply  assumpsit  to  causes  of  action  foreign  to 
its  original  -spirit  and  design  is  apparent  in  our  legislation.  The 
statute  allows  it  to  be  brought  on  judgments  and  sealed  instru- 
ments, also  for  penalties  and  forfeitures." 

Coming  now  to  the  case  at  bar,  it  distinctly  falls  within  the 
definition  of  a  constructive  contract.  It  makes  gaming  contracts 
unlawful  and  authorizes  the  loser  to  sue  ex  contractu.  Section 
4272  provides  as  follows : 


888  SUPERIOR  COURT  OF  CINCINNATI. 

Baker  v.  Morohead  *  Co.  [Vol.  VII,  N.  S. 

"In  the  prosecution  of  such  actions  it  shall  be  sufficient  for 
the  plaintiff  to  allege  that  the  defendant  is  indebted  to  the  plaint- 
iff or  received  to  the  plaintiff's  use  the  money  so  lost  and  paid, 
or  converted  the  goods  won  of  plaintiff  to  the  defendant's  use, 
whereby  the  plaintiff's  action  accrued  to  him." 

In  Meech  vs  Stoner,  19  N.  T.,  page  30,  the  Court  of  Appeals 
says: 

"The  principles  involved  in  this  question  have  been  several 
times  considered  in  the  courts  of  England,  and  the  question  it- 
self there  determined.  The  statute  of  Anne  (ch.  14)  gave  to  the 
person  losing  at  play  an  action  of  debt,  at  any  time  within  three 
months  against  the  winner ;  and  in  the  ease  of  Turner  v.  Warren 
(2  Strange,  1079),  the  question  was  whether  in  an  action  founded 
on  that  statute,  the  defendant  could  be  held  to  special  bail,  the 
defendant's  counsel  comparing  it  to  penal  actions  where  no  bail 
was  ever  required.  But  the  court  held  there  ought  to  be  special 
bail  in  the  case,  because  the  defendant  was  a  debtor  of  the 
plaintiff.  The  clause  of  the  statute  was  considered  as  remedial 
and  not  penal.  In  Bones  v.  Booth  (2  Wm.  Blackstone,  1226), 
the  plaintiff  sued  to  recover  back  seventeen  guineas  lost  at  play. 
The  jury  having  found  a  verdict  for  the  defendant,  a  motion  for 
a  new  trial  was  made,  for  the  reason  that  the  verdict  was  against 
the  evidence.  This  was  resisted  on  the  ground  that  there  was  no 
precedent  for  a  new  trial  in  a  penal  action.  But  the  court  said 
that  the  statute  was  not  penal  but  remedial;  and  Sir  William 
'  Blackstone  observed  'The  statute  makes  the  winning  of  £10  at 
any  one  time  or  sitting,  a  nullity,  and  therefore  gives  the  loser 
an  action  to  recover  back  what  still  properly  continues  to  be  his 
own  money.'  " 

In  Barbour's  Supreme  Court  Reports  (N.  T.),  Vol.  48,  page 
370,  the  Court  of  Appeals  says: 

"The  winner  of  money  by  betting  or  gaming  has  so  much  be- 
longing to  the  loser.  The  winner  can  not  defend  himself  against 
the  claim  of  the  loser  by  virtue  of  the  gaming  or  betting  con- 
tract under  which  he  acquired  the  money,  because  the  statute 
says  the  contract  is  void.  The  winner  has  so  much  money  of  the 
loser  to  which  he  has  no  title.  The  winner  is  in  the  condition  of 
one  who  has  found  a  sum  of  money  belonging  to  another.  There 
is  an  implied  contract  to  pay  it  to  the  loser.  So  when  money 
has  been  obtained  by  fraud  or  violence,  the  injured  party  may 
waive  the  wrong,  and  sue  as  upon  a  promise,  the  law  implying  a 


NISI  PRIUS  REPORTS— NEW  SERIES.  889 

1908.]  Speaks  ft  Ryan  v.  Llaey  ft  Co.  ■ 

promise  from  the  moral  obligation.  The  injured  party  has  a 
choice  of  forms  of  action.  The  statute  against  betting  and  gam- 
ing demands  a  liberal  construction.  They  are  remedial,  not 
penal. ' ' 

In  our  Superior  Court,  in  the  ease  of  Kleimeyer  v.  John  A. 
Payne  et  al,  Ohio  Law  Rep.,  Vol.  3,  page  19,  a  case  of  money  lost 
on  betting  on  races,  Judge  Hoffheimer  held: 

"Were  the  petition  in  this  action  founded  on  this  section  the 
authorities  cited  by  defendant,  Payne,  in  support  of  his  demur- 
rer, would  be  applicable,  but  Section  1956  (Ky.  Stat.)  is  remedial 
in  its  nature;  its  purpose  is  not  to  punish  the  winner  but  to  give 
to  the  loser  the  right  to  recover  that  which  it  is  presumed  was 
wrongfully  taken  from  him.  Its  provisions  are  liberally  con- 
strued (American  &  English  Encyiopedia,  2d  Ed.,  Vol.  14,  p. 
625).  The  right  to  recover  under  this  section  is  founded  in  con- 
tract. The  law  declares  that  the  defendant  had  no  right  to  re- 
ceive the  amount  in  question.  Having  no  right  to  receive  it, 
it  is  bound  to  return  it  to  the  owner,  the  person  from  whom  he 
won  it.  In  other  words,  the  law  imputes  an  implied  contract 
that  the  money  should  be  restored  by  the  person  who  unlawfully 
obtained  it." 

The  motion  to  dismiss  the  attachment  must,  therefore,  be  over- 
ruled. 


PROCEEDINGS  IN  ATTACHMENT  BEFORE  JUSTICE  OF 
THE  PEACE. 

Common  Pleas  Court  of  Licking  County. 

Speaks  &  Ryan  et  al  v.  P.  Lisey  &  Co.  " 

Decided,  April  Term,  1908. 

Attachment— Affidavit  Charging  Intent  to  Defraud— Failure  of  Evidence 
to  Support  Charge— Bill  of  Exceptions — Endorsement  of  Bill  by  Jus- 
tice in  Irregular  Manner— Extension  of  Time  Within  Which  to  File 
Bill — Section  S-Jflf 

1.  An  lnterltaeatlon  In  the  bill  of  exceptions  from  the  court  of  a  Jus- 
tice of  the  peace,  purporting  to  overrule  the  motion  to  discharge 
the  attachment  and  extending  the  time  for  filing  the  bill  of  excep- 
tions, together  with  the  pasting  on  the  bill  of  a  piece  of  paper  on 


890  LICKING  COUNTY  COMMON  PLEAS. 

Speaks  *  Ryan  v.  Ltsey  A  Go.  [Vol.  VII,  N.  a 

which  1b  written  the  apparent  endorsement  and  allowance  of  the 
bill  by  the  Justice,  will  be  presumed  by  a  reviewing  court  to  nave 
been  placed  there  In  good  faith  and  at  the  time  stated,  as  against 
hints  by  counsel  that  these  additions  were  made  at  a  later  date. 
2.  Evidence  that  the  constable,  when  he  levied  the  attachment,  simply 
marked  certain  goods  as  "attached"  but  made  no  further  effort  to 
take  possession  of  them,  notwithstanding  the  expressed  willingness 
of  the  defendants  that  sufficient  goods  should  be  taken  to  satisfy 
the  claim,  does  not  support  the  charge  in  the  affidavit  that  the  de- 
fendants were  about  to  dispose  of  their  property  with  Intent  to  de- 
fraud their  creditors,  although  It  appears  that  the  defendants  did 
soon  afterward  make  an  assignment  for  the  benefit  of  their  credi- 
tors. 

A.  A.  Stasel  and  E.  S.  Randolph,  for  plaintiff  in  error. 
Smytke  &  Smyths,  contra. 

Seward,  J.  (orally). 

This  is  a  proceeding  in  error  from  the  docket  of  Lee  S.  Lake, 
justice  of  the  peace.  An  affidavit  in  attachment  was  filed  before 
the  justice  against  the  defendant  by  Pred  Lisey  &  Co.  The 
case  is  brought  here  upon  a  petition  in  error.  The  testimony  is 
all  set  out.  It  is  claimed  that  there  is  error  in  the  proceedings 
of  the  justice  in  failing  to  sustain  a  motion  to  dismiss  the  at- 
tachment on  the  ground  that  the  affidavit  is  insufficient;  that 
the  facts  stated  in  the  affidavit  are  untrue,  and  that  tbe  attach- 
ment was  not  valid  because  the  constable  did  not  take  possession 
of  the  property. 

The  record  shows  that  the  property  was  a  stock  of  goods  in  a 
store  building  in  this  city;  that  the  constable  on  the  19th  of 
November,  after  having  had  this  writ  of  attachment  placed  in 
his  hands,  went  to  the  store  room  and  marked  "Attached"  on 
some  of  the  property  that  be  returned  as  levied  on  by  the  proceed- 
ing id)  attachment.  The  record  does  not  disclose  that  he  took  any 
other  possession  of  the  property.  I  think  the  record  is  pretty 
clear  on  that  proposition ;  that  the  constable  did  not  take  posses- 
sion of  the  property.  It  shows  that  no  appraisement  was  made 
until  the  next  day,  after  the  property  had  been  assigned  to 
Randolph,  as  assignee  for  the  creditors  of  Speaks  &  Ryan.  But 
it  is-  claimed,  and  the  record  tends  to  show,  that  Speaks  &  Ryan 


NISI  PBIUS  REPORTS— NEW  SERIES.  881 

1H08.]  Speaks  ft  Ryan  v.  Lisey  ft  Co. 

offered  the  plaintiff  the  right  to  take  such  property  as  would 
satisfy  his  claim. 

The  principal  ground  of  .the  attachment,  and  the  ground  as 
set  out  in  the  affidavit,  is  that  they  were  about  to  dispose  of 
their  property  with  intent  to  defraud  their  creditors.  They 
made  an  assignment  for  the  benefit  of  their  creditors,  and  they 
were  frank  enough,  when  Lisey  was  there,  to  offer  to  let  him  take 
out  property  sufficient  to  satisfy  his  claim.  They  seemed  to  want 
to  pay  their  creditors.    This  was  before  the  affidavit  was  made. 

It  is  claimed  that  there  is  no  bill  of  exceptions  here,  because 
the  bill  of  exceptions  was  not  presented  to  the  justice  within 
the  time  required  by  the  statute.  The  justice  has  the  right  to 
extend  the  time  for  presenting  a  bill  of  exceptions  for  a  period 
not  exceeding  ten  days  and  not  less  than  five  days,  if  required 
or  requested  by  either  party.  The  following  is  interlined,  and 
it  is  mildly  suggested  that -it  was  interlined  after  the  bill  of  ex- 
ceptions was  signed.    It  says: 

"The  motion  in  attachment  overruled,  to  which  defendants 
excepted."  After  that,  appears  these  words:  "Saying  he  bad 
ten  days  within  which  to  file  a  bill  of  exceptions,  to  which  the 
justice  replied:    Alright." 

It  is  claimed  by  one  of  the  parties  that  that  was  not  an  ex- 
tension of  the  time  for  a  period  of  ten  days  within  which  to  pre- 
pare and  sign  the  bill  of  exceptions.  The  court  thinks  that  if 
that  occurred  there,  that  was  an  extension  of  the  time  under  the 
statute  to  prepare  and  present  the  bill  of  exceptions  to  the  justice 
of  the  peace  for  his  signature. 

It  is  claimed  that  the  court  has  the  right  to  go  to  the  original 
papers  to  find  out  about  the  matter.  The  court  is  governed  by 
the  bill  of  exceptions,  which  is  signed  by  the  justiee  of  the  peace. 
These  words  are  pasted  on  the  bill  of  exceptions — on  a  piece  of 
yellow  paper,  the  kind  that  we  used  in  taking  notes  here,  and 
it  is  mildly  intimated  that  this  was  done  after  the  bill  of  ex- 
ceptions was  signed: 

"P.  Lisey  &  Co.  v.  Speaks  &  Ryan.  Before  Lee  S.  Lake,  a 
Justice  of  the  Peace,  in  and  for  Newark  Township,  Licking  Coun- 
ty, Ohio. 


LICKING  COUNTY  COMMON  PLEAS. 


Speaks  *  Ryan  v.  Ltsey  A  Co.  (Vol.  Til,  N.  S. 

"December  18th,  1906,  the  defendant  presented  its  bill  of  ex- 
ceptions herein,  which  embodies  all  of  the  evidence,  both  parol 
and  written,  which  was  adduced  on  the  hearing  of  the  motion  to 
discharge  the  attachment  herein. 

"In  consideration  whereof,  the  court  finds  that  said  bill  of  ex- 
ceptions does  include  all  of  the  evidence  adduced  on  said  hear- 
ing, and  said  bill  of  exceptions  is  allowed,  and  this  day  filed." 

If  the  court  is  right  in  ils  conclusion,  that  the  announcement 
of  the  justice,  gave  to  the  exceptors  ten  days  within  which  to 
file  a  bill  of  exceptions,  and  this  motion  for  the  dismissal  of  the 
attachment  was  overruled  on  the  12th  of  December,  then  this 
bill  of  exceptions  was  presented  in  time.  The  court  is  not  going 
to  guess  at  this  matter,  as  to  whether  this  was  on  here  or  not. 
The  court  presumes  that  it  was  on  when  signed  by  the  justice. 
While  it  is  a  bad  way  to  get  up  a  bill  of  exceptions,  and  ought 
not  to  be  allowed  by  the  justice  of  the  peace,  yet,  the  court  is 
not  going  to  presume  bad  faith  because  of  any  of  these  charges, 
that  they  pasted  this  on  the  hill  of  exceptions  after  is  was  signed 
by  the  justice  of  the  peace.  Counsel  should  not  permit  anything 
of  that  kind  to  he  done,  where  it  would  give  ground  for  such  an 
attack  as  is  made  in  this  case.  The  court  thinks  this  is  the  bill 
of  exceptions  signed  by  the  justice  of  the  peace,  and  the  court 
goes  to  the  bill  of  exceptions  to  find  what  the  record  shows. 

Now,  as  to  the  evidence.  The  court  is  thoroughly  satisfied  that 
the  affidavit  of  the  plaintiff  was  not  sustained  by  the  evidence  at 
all;  that  these  parties  were  not  attempting  to  dispose  of  their 
property  with  intent  to  defraud  their  creditors.  There  isn't  any 
evidence  that  tends  to  show  this  in  the  mind  of  the  court;  and  if 
this  case  had  been  appealed  under  Section  6494,  the  court  would 
have  no  trouble  with  the  case  at  all,  in  sustaining  the  motion 
to  dismiss  the  attachment,  and  has  very  little  trouble  with  it, 
on  the  bill  of  exceptions. 

The  petition  in  error  is  sustained,  and  the  judgment  of  the  court 
below  is  reversed. 


NISI  PRIUS  REPORTS— NEW  SERIES. 


STATUTE  OF  LIMITATIONS  AS  TO  STREET  ASSESSMENTS. 

Court  of  Insolvency  of  Hamilton  County. 

Caroline  V.  Bell  v.  City  op  Cincinnati. 

Decided,  January.  1908. 

Assessments — For  Street  Improvement — Application  of  the  Statute  of 
.  Limitations — Certificate  bv  Auditor— Injunction, 

An  Injunction  restraining  the  certification  of  assessments  to  the  county 
auditor,  under  Section  2297,  Revised  Statutes,  operates  to  sus- 
pend tbe  power  to  so  certify  only  for  the  time  the  Injunction  is  in 
force,  and  the  period  which  may  have  elapsed  In  which  the  certifica- 
tion could  have  been  made  prior  to  the  granting  of  the  Injunction 
must  enter  Into  the  computation  in  determining  whether  the  two 
years  limitation  haa  expired. 

Wabner,  J. 

The  petition  seeks  to  enjoin  all  assessments  against  the  prop- 
erty of  plaintiff  Bituated  on  Washington  avenue  levied  to  pay 
the  costs  of  an  improvement  of  said  avenue  from  Warsaw  Pike 
to  West  Eighth  street.  One  ground  for  the  relief  sought  is 
"that  more  than  two  years  elapsed  after  the  time  said  assess- 
ment, and  all  parts  thereof,  became  payable,  before  the  same  or 
any  part  thereof  was  certified  to  the  auditor  of  Hamilton  county 
for  collection." 

The  defendant  pleads  by  answer  the  statute  of  limitations.  It 
appears  that  the  assessments  became  due  on  the  3d  day  of  Feb- 
ruary in  each  year,  from  1887  to  1896,  inclusive,  and  were  all 
certified  to  the  auditor  of  Hamilton  county,  on  the  15th  day  of 
May,  1905.  As  this  aetion  was  duly  commenced  on  May  20th, 
1905,  it  is  apparent  that  it  was  begun  in  time  to  obtain  relief 
for  the  reasons  stated,  if  they  proved  to  be  true. 

The  only  other  ground  for  relief  relied  upon  by  the  plaintiff 
on  trial  was,  "that  the  amount  of  said  assessment  was  and  is 
greatly  in  excess  of  twenty-five  per  cent,  of  the  value  of  said 
property." 

As  to  this  ground  the  court  is  of  the  opinion  that  the  statute 
of  limitations  is  a  bar.     About  eighteen  years  elapsed  from  the 


894      HAMILTON  COUNTY  INSOLVENCY  COURT. 

Bell  v.  Cincinnati.  [Vol.  VII,  N.  S. 

passage  of  the  assessing  ordinance  to  tbe  filing  of  the  petition 
herein.  A  suit  in  the  superior  court  was  instituted  December 
20th,  1890,  by  plaintiff  herein  attacking  the  validity  of  said  as- 
sessment, and  one  of  the  grounds  therein  set  up  was  the  same  as 
the  one  now  under  consideration.  The  superior  court  suit  was 
dismissed  without  prejudice  by  the  court  on  its  own  motion  on 
January  30th,  1904.  This  was  a  dismissal  not  on  the  merits, 
and  under  Section  4991,  Revised  Statutes,  the  plaintiff  could 
have  brought  another  action  within  one  year  after  such  dis- 
missal; but  not  having  done  so  she  is  finally  barred  as  to  the 
causes  of  action  litigated  in  said  superior  court  case. 

It  is  claimed  that  this  suit  is  in  its  nature  one  to  quiet  title 
and  so  not  affected  by  the  statute  of. limitations,  but  this  con- 
tention can  not  be  sustained  under  well  established  principles  of 
law.  While  this  suit  might  quiet  title  in  some  general  sense,  it 
is  not  in  form  or  substance  anything  but  an  action  to  enjoin 
collection  of  said  assessment  on  the  grounds  mentioned.  The 
question  upon  the  matter  of  certification  must  be  determined 
under  Section  2297,  Revised  Statutes,  which  provides  that  the 
assessment  lien  shall  continue  two  years  from  the  time  the  as- 
sessment is  payable  and  no  longer,  unless  certified  as  therein 
stated  or  suit  brought  to  enforce  lien.  No  such  suit  was  brought, 
and  no  certification  was  made  until  May  15th,  1905.  The  first 
annual  assessment  was  payable  February  3d,  1887,  and  the  other 
nine  at  yearly  intervals  thereafter.  The  injunction  in  the 
superior  court  case  suspended  certification  from  December  20th. 
1890,  to  January  30th,  1904.  The  dissolution  of  said  injunc- 
tion did  not  give  the  full  time  of  two  years  thereafter  to  make 
certification,  except  as  to  such  assessments  as  became  payable 
after  said  injunction  was  granted. 

It  follows  that  the  first  four  assessments  payable  on  February 
3d,  in  the  years  1887,  1888,  1889  and  1890,  were  not  certified  in 
time  to  the  auditor  of  the  county,  whereby  the  lien  thereof  was 
finally  lost.  The  collection  of  these  installments  must  be  per- 
petually enjoined.     The  other  six  were  duly  certified. 

The  city  by  cross-petition  seeks  to  recover  a  personal  judg- 
ment against  the  plaintiff  for  all  ten  assessments  with  penalties 


NISI  PRIUS  REPORTS— NEW  SERIES.  895 

1908.)  Hart  v.  Roeckere. 

and  interest,  to  which  action  the  plaintiff  pleads  the  statute  of  . 
limitation.  The  plea  of  said  statute  must  be  sustained.  It  is 
settled  in  this  state  that  such  action  must  be  brought  within  six 
years  from  the  time  when  payment  became  due.  Hartman  v. 
Hunter,  Treasurer,  56  0.  S-,  175,  and  cases  cited  in  opinion  of 
Judge  Shauck. 

Decree  accordingly. 


LIABILITY  OF  LODGING  HOUSE  KEEPER.  FOB-  VALUABLES 
BELONGING  TO  GUESTS. 

Common  Pleas  Court  of  Hamilton  County. 
Joseph  Hart  v.  H.  Roeckebs.  • 

Decided,  June,  1907.  , 

Inns  and  Innkeepers — Lodging  Bouse  is  an  Inn,  When—Proprietor 
of  Lodging  House  Liable  for  Valuables  Deposited  with  Him-  for 
Safekeeping  and  Lost — Section  HSU. 

The  proprietor  ot  a  lodging  house,  In  connection  with  which  meal  a 
are  served  and  a  bar  Is  operated,  Is  an  innkeeper,  and  a  patron, 
paying  a  stipulated  sum  tor  board  and  lodging,  of  such  a  house  is 
a  guest;  and  where  the  patron  deposits  valuables  with  the  pro- 
prietor for  safekeeping  and  they  are  lost,  the  proprietor  Is  liable 
therefor. 

Wm.  C.  McLean,  for  the  motion. 
W.  A.  Rinckhoff,  contra. 

WOODMANSEE,  J. 

In  this  case  the  jury  returned  a  verdict  for  the  plaintiff  for 
monies  deposited  with  the  defendant  for  safe  keeping. 

The  defendant  was  the  proprietor  of  a  lodging  house  on  Vine 
street,  Cincinnati,  in  connection  with  which  he  served  meals 
and  operated  a  bar.  The  monies  for  which  judgment  was  ren- 
dered were  left  by  the  plaintiff  with  the  barkeeper.  Later  the 
proprietor  was  advised  of  the  matter,  and  took  possession  of  the 
monies  with  plaintiff's  knowledge  and  consent.  On  the  following 
morning  the  proprietor  delivered  the  monies  to  the  barkeeper 
with  the  instructions  that  he  return  the  same  to  the  plaintiff. 
•  Affirmed  by  the  Circuit  Court,  Roeckers  v.  Hart,  11  C.  C— N.  8., . 


89«    HAMILTON  COUNTY  COMMON  PLEAS. 

Hart  v.  Roecken.  [Vol.  VII,  N.  S. 

During  the  day  the  barkeeper  absconded,  taking  the  monies 
with  him. 

The  eonrt  instructed  the  jury  that  if  it  found  from  the  evi- 
dence that  the  plaintiff  made  the  barkeeper  his  agent,  then  he 
could  not  recover.  The  verdict  indicates  that  the  jury  con- 
sidered the  barkeeper  aa  the  agent  only  of  the  defendant,  and 
the  court  believes  the  evidence  justifies  this  finding. 

A  new  trial  is  urged  for  the  reason  that  defendant  is  not  an 
innkeeper;  that  plaintiff  was  not  a  guest,  and  that  the  laws 
governing  the  relations  of  innkeeper  and  guest  do  not  apply. 

It  must  be  conceded  that  an  innkeeper  like  a  carrier  is  an  in- 
surer against  the  burglar  and  the  thief.  An  ancient  authority 
said :     *t 

'The  defendant  if  he  will  keep  an  inn  ought  at  his  peril  to 
keep  safely  his  guests'  goods." 

The  old  presumption  against  the  landlord  is  overcome  only 
by  the  negligence  or  fraud  of  the  guest,  by  the  act  of  God  or 
the  public  enemy. 

Who  is  a  guest !  In  its  broad  sense  the  word  is  used  to  desig- 
nate those  who  patronize  an  inn  and  especially  those  who  take 
lodging.  It  was  claimed  at  the  trial  of  this  cause  that  a  guest 
must  necessarily  be  a  wayfaring  man — a  traveler.  However,  in 
the  case  of  Walling  v.' Potter,  35  Conn.,   183,  the  court  say: 

"A  person  receiving  transient  accomodation  at  an  inn,  for 
which  he  is  charged  toy  the  innkeeper,  is  a  guest  and  entitled 
to  all  the  rights  of  a  guest  although  he  is  not  actually  a  traveler. ' ' 

In  this  case  it  is  also  held  that  a  man  living  in  the  town  where 
the  inn  is  located  may  be  a  guest.  And  an  inn  is  defined  to  be  "a 
public  house  of  entertainment  for  all  who  choose  to  visit  it." 
The  ease  of  Wintermutk  v.  Clark,  5  Sandi,  242,  holds  that: 

"To  charge  defendant  as  an  innkeeper,  it  is  sufficient  to 
prove  that  he  received  as  guests  all  who  choose  to  visit  his 
house,  without  any  previous  agreement  as  to  the  duration  of  their 
stay  or  the  terms  of  their  entermainment. " 

The  case  of  Cromwell  v.  Stephens,  2  Daly  (N.  T.),  15,  is 
more  directly  in  point,  as  it  refers  to  an  establishment  like  the 
one  operated  by  the  defendant  herein: 


NISI  PBIUS  REPORTS— NEW  SERIES.  897 

1908.]  Jung  v.  State  of  Ohio. 

"Where  the  restaurant  forms  a  part  of  the  establishment  and 
the  house  is  kept  under  one  general  management  for  the  re- 
ceipt of  all  travelers  or  guests  that  may  come,  it  is  an  inn — there 
being  no  particular  difference  between  it  and  the  Elizabethan 
inn,  in  which  the  traveler  paid  separately  for  his  apartments 
and  his  meals." 

Our  statute  relating  to  guests  depositing  valuables  with  the 
landlord  for  safekeeping  is  for  the  landlord's  protection.  The 
plaintiff  in  this  case  adopted  the  best  protection,  and  to  say  now 
that-  he  was  not  a  guest  and  that  the  relation  of  guest  and  inn- 
keeper did  not  exist  is  not  well  taken. 

The  act  of  Parliament  which  is  now  the  law  of  England  govern- 
ing in  these  matters  defines  who  are  guests,  but  in  the  absence 
of  a  definition  in  our  law  we  ought  to  follow  the  definition  es- 
tablished by  long  usage. 

Aside  from  all  this  the  court  is  of  the  opinion  that  the  ver- 
dict in  this  case  ought  to  stand,  for  the  monies  lost  were  en- 
trusted to  the  defendant  and  have  not  been  returned  to  the 
plaintiff. 

Motion  overruled. 


PROSECUTION  OF  SALOON  KEEPERS  UNDER.  THE  SUNDAY 
CLOSING  LAW. 

Common  Pleas  Court  of  Clark  County, 

John  Juno  v.  The  State  op  Ohio.  * 

Decided,  1907. 

Sunday  Closing  and  Sunday  Selling — First  Offense  and  Second  Offense 
—Section  4364-20  Construed — Criminal  Law. 

Inasmuch  as  the  unlawful  sale  of  intoxicating  liquors  on  Sunday,  and 
unlawfully  allowing  a  place  where  Intoxicating  liquors  are  sold 
to  remain  open  on  Sunday,  are  merely  different  forms  of  com- 
mitting the  aamo  legal  offense,  the  unlawful  sale  of  Intoxicating 
liquors  on  Sunday  can  be  charged  as  a  second  offense,  when  the 
Bret  conviction  relied  upon  was  for  unlawfully  allowing  a  saloon  to 
remain  open  on  Sunday. 

M.  T.  Burnham,  for  plaintiff  in  error. 
John  M.  Cole,  for  defendant  in  error. 

*  Affirmed  by  the  Circuit  Court  without  report,  December,  1907. 


398  CLARK  COUNTY  COMMON  PLEAS. 

Jung  t.  State  of  Ohio.  [Vol.  Til,  N.  8. 

KlWKLE,   J. 

The  plaintiff  in  error  was  tried  in  the  probate  court  of  this 
county.  He  was  charged  with  violating  paragraph  20  of  Section 
4364  of  the  Revised  Statutes  of  Ohio,  and  was  convicted  as  for 
a  second  offense. 

Various  errors  are  complained  of  in  the  petition  in  error. 

Upon  the  hearing  of  this  case,  counsel  for  plaintiff  in  error 
especially  urged  the  fact  that  his  client  had  been  improperly 
charged,  convicted  and  sentenced  as  for  a  second  offense;  that 
the  former  conviction  of  the  plaintiff  in  error  was  for  "unlaw- 
fully allowing  his  saloon  to  remain  open  on  Sunday,"  whereas 
the  present  charge  is  for  "unlawfully  selling  intoxicating  liquors 
on  Sunday." 

The  question  presented  for  determination  therefore  is,  can 
an  "unlawful  sale  of  intoxicating  liquors  on  Sunday"  be  charged 
as  a  second  offense  when  the  first  conviction  relied  upon  was 
for  "unlawfully  allowing  his  saloon  to  remain  open  on  Sunday." 

Section  4364-20  of  the  Revised  Statutes  of  Ohio,   provides: 

"That  the  sale  of  intoxicating  liquors,  whether  distilled,  malt 
or  vinous,  on  the  firBt  day  of  the  week,  commonly  ealled  Sunday, 
except  by  a  regular  druggist  on  a  written  prescription  of  a 
regular  practicing  physician  for  medical  purposes  only,  is  here- 
by declared  to  be  unlawful,  and  all  places  where  such  intoxica- 
ting liquors  are  on  other  days  sold  or  exposed  for  sale,  except 
regular  drug  stores,  shall  on  that  day  be  closed,  and  whoever 
makes  any  such  sales,  or  allows  any  such  place  to  be  open  or  re- 
main open  on  that  day  shall  be  fined  in  any  sum  not  exceeding 
one  hundred  dollars  and  not  less  than  twenty-five  dollars  for  the 
first  offense,  and  for  each  subsequent  offense  shall  be  fined  not 
more  than  two  hundred  dollars  or  be  imprisoned  in  the  county 
jail  or  city  prison  not  less  than  ten  days  and  not  exceeding  thirty 
days,  or  both." 

This  seetion  was  evidently  enacted  by  our  Legislature  to  re- 
strain the  evils  which  result  from  trafficking  in  intoxicating  liquors 
on  Sunday,  and  this  evident  purpose  of  the  Legislature  should 
be  kept  in  mind  in  attempting  .to  construe  the  seetion  in  question. 

The  purpose  of  the  Legislature  was  to  keep  such  places  actually 
closed  as  against  the  public  on  Sunday.  If  sueh  places  are 
kept  actually  closed,  then  no  evils  can  result  therefrom  by  per- 
sons buying  liquors  thereat  or  being  therein. 


NISI  PBIUS  REPORTS— NEW  SERIES.  399 

1908.]  Jung  v.  State  of  Ohio. 

The  seotion  provides,  among  other  things,  that  "all  places 
where  such  intoxicating  liquors  are  on  other  days  sold  or  ex- 
posed for  sale,  except  regular  drug  stores,  shall  on  that  day  be 
closed."  If  such  places  are  actually  closed  on  Sunday,  then,  of 
course,  no  sales  can  be  made  at  such  places  of  business. 

The  seotion  does  provide  that  it  shall  be  an  offense  to  make 
any  such  sales  or  allow  any  such  places  to  be  open  or  to  remain 
open  on  Sunday,  but  it  will  be  noted  that  the  penalty  is  single ; 
that  is,  there  is  but  one  penalty  for  any  violation  of  the  pro- 
visions of  the  section,  whether  such  violation  consists  of  selling 
or  allowing  such  place  to  be  open  or  remain  open. 

For  the  first  offense  against  the  act  in  question,  whether  such 
offense  consists  of  selling  or  allowing  such  place  to  be  open  or 
remain  open,  the  penalty  is  a  fine  of  not  less  than  $25  nor  more 
than  $100. 

For  each  subsequent  offense  against  this  act,  the  penalty  con- 
sists of  a  fine  of  not  more  than  $200  or  imprisonment  or  both. 

The  language  of  the  section  is,  "for  each  subsequent  offense." 
We  think  this  means  for  each  subsequent  offense  against  the 
act  in  question,  whether  such  offense  consists  of  "unlawfully 
selling,"  or  "unlawfully  allowing  such  place  to  be  open  or  re- 
main open  on  Sunday." 

The  Legislature  has  evidently  intended  to  provide  a  more 
severe  punishment  for  a  second  violation  of  any  of  the  pro- 
visions of  the  act  in  question. 

If  this  section  read,  "for  each  subsequent  offense  of  the  same 
exact  nature"  then  the  contention  of  counsel  for  plaintiff  in  error 
would  be  justified,  but  in  view  of  the  language  used  it"  seems 
evident  that  the  Legislature  meant  to  notify  offenders  not  to 
commit  a  subsequent  offense  against  any  of  the  provisions  of  the 
act  in  question. 

The  fact  that  the  Legislature  has  joined  two  distinct  offenses 
in  the  same  act  and  has  provided  but  one  penalty  for  a  first 
violation  of  any  of  the  provisions  of  such  act,  and  has  further 
provided  but  one  greater  or  more  excessive  penalty  for  "each 
subsequent  offense,"  would  seem  to  indicate  that  these  two  sep- 
arate criminal  acts  are  to  be  treated  as  one  offense,  in  so  far  aa 
the  penalty  is  concerned. 


400  CLARK  COUNTY  COMMON  PLEAS. 

Jung  v.  State  of  Ohio.  [Vol.  VII,  N.  S. 

We  have  not  been  able  to  find  any  Ohio  decisions  upon  this 
question. 

The  principle  determined  in  the  ease  of  State  v.  Sawyer,  re- 
ported in  the  67  Vermont  Reports,  at  page  239,  is  applicable  to 
the  case  at  bar.  The  second  paragraph  of  the  syllabus  of  this 
case  is  as  follows: 

"In  a  prosecution  under  R.  L.  Section  3802,  as  amended  by 
No.  42,  Acts  1888,  for  keeping  intoxicating  liquors  with  intent  • 
to  sell,  a  previous  conviction  for  selling  may  be  shown  to  en- 
hance the  penalty." 

The  court  says: 

"These  are  different  forms  of  committing  the  same  legal 
offense,  violating  the  act." 

In  the  case  of  State  v.  Raynes,  reported  in  36  Yermont 
Reports,  at  page  667,  the  court  holds  that : 

"Where  the  former  conviction  is  for  the  sale,  the  enhanced 
penalty  is  incurred  by  the  subsequent  offense  of  furnishing. 
Selling,  furnishing  or  giving  away  are  but  different  forms  of 
committing  the  same  legal  offense  in  violation  of  the  liquor 
act;  and  a  conviction  for  violating  the  statute  in  one  of  these 
forms  is  available  to  double  the  penalty  on  a  second  conviction 
for  the  violation  of  another." 

In  Section  1268  of  McClain  on  Criminal  Law,  it  is  stated  that: 

"A  second  violation  means  a  violation  of  the  law  after  con- 
viction for  a  prior  offense,  of  the  same  character.  All  the  acts 
of  illegal  selling  before  a  first  conviction  constitute  but  one 
offense;  at  any  rate  there  must  be  evidence  of  a  prior  convic- 
tion before  there  can  be  conviction  of  a  second  offense.  A 
second  offense  does  not  necessarily  consist  in  the  same  form  of 
violation  of  the  statute,  but  if  the  statute  prohibits  the  selling, 
furnishing  or  giving  away,  a  conviction  for  selling  is  available 
to  double  the  penalty  if  .there  is  a  subsequent  conviction  for 
furnishing." 

In  the  case  at  bar,  we  think  "an  unlawful  sale  of  intoxicating 
liquors  on  Sunday,"  and  "unlawfully  allowing  such  place  to  be 
open  or  remain  open  on  Sunday"  are  merely  different  forms 
of  committing  the  same  legal  offense  against  the  act  in  question, 
and  that  the  plaintiff  in  error  was  properly  charged,  convicted 
and  sentenced  ns  for  a  second  offense. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Akron  Board  of  Education  v.  Sawyer. 


INSPECTION  Or  SCHOOL  HOUSES  AS  TO  FIRJt 
PROTECTION. 

Common  Pleas  Court  ot  Summit  County. 

Board  of  Education  of  Akron  v.  Sawyer. 

Decided,  September  23,  1908. 

Constitutional  Law — Fire  Protection  for  School  Houses  and  Other 
Buildings  for  Public  Assemblage — Inspection  with  Reference  to — 
Police  Power  to  Compel  Proper  Precautions — Taking  of  Property 
Without  Due  Process  of  Law—Details  as  to  Protection — Rights  of 
Board  of  Education  Against  Arbitrary  Action  in  Ordering  Schools 
Closed— Injunction-- 99  0.  L„  232— Fourteenth  Amendment, 

1.  The  act  of  April  28,  1908  (99  O.  L-,  232),  enlarging  the  duties  of  the 

chief  Inspector  of  work  shops  and  factories  by  requiring  inspec- 
tion of  school  houses  and  other  places  of  public  assemblage,  and 
authorizing  him  where  means  for  safe  and  speedy  egress  are  In- 
sufficient to  specify  such  appliances,  additions  or  alterations  as 
are  necessary  to  Insure  proper  protection  and  require  that  they 
be  Installed  1b  not  a  provision  for  the  taking  of  property  without 
due  process  of  law,  but  is  a  mere  requirement  that  such  property 
be  used  In  a  lawful  way,  and  is  a  constitutional  and  valid  enact- 
ment. 

2.  The  provision  of  this  act  which  authorises  the  closing  of  school 

houses  and  other  public  buildings  pending  the  Installation  of  such 
appliances  for  protection  against  Are  as  the  chief  Inspector  of 
work  shops  may  have  ordered,  is  not  in  excess  of  the  police 
powers  of  the  state. 

3.  The  duty  of  determining  what  appliances  and  alterations  are  neces- 

sary for  protection  and  safety  of  persona  against  dangers  from 
fire  in  public  buildings  and  school  houses  may  properly  be  dele- 
gated to  Inspectors  as  prescribed  In  this  act;  and  the  fact  that 
details  as  to  such  Inspection  are  not  fixed,  but  are  left  to  be 
worked  out  by  the  administrative  officers,  does  not  Invalidate  the 
act. 

4.  While  the  right  Is  not  open  to  a  state  agency,  as  it  may  be  to  a  pri- 

vate property  owner,  to  claim  exemption  from  the  operation  of  an 
act  prescribing  duties  to  be  performed  by.  another  state  agency,  yet 
a  board  of  education  would  have  the  capacity  to  bring  suit  to 
enjoin  oppressive  and  arbitrary  acts  whereby  school  houses  are 
closed  and  school  children  deprived  of  the  advantages  of  the  public 
schools. 


SUMMIT  COUNTY  COMMON  PLEAS. 


Akron  Board  of  Education  v.  Sawyer.   [Vol.  VII,  N.  S. 

Authorities  were  cited  as  follows: 

As  to  the  constitutionality  of  the  act.  State  v.  Ilildeii,  14 
Utah,  71;  State  v.  Coal  Co.,  36  W.  Va.,  802;  Munn  v.  People, 
94  V.  S„  113;  Union  Pac.  Ry.  v.  United  States,  99  U.  S„  700; 
Cooley,  Const.  Lim.,  64;  Pattison  v.  Yuba  Co.,  13  Cal.,  175; 
Leonard  v.  Wisemnn.  31  Md.,  201;  Weller  v.  State,  53  Ohio 
St.,  77 ;   Champion  v.  Ames.  188  U.  S..  321. 

As  to  interference  with  police  powers.  Davidson  v.  New 
Orleans,  96  U.  S.,  97;  Meeker  v.  Van  Rensselaer,  15  Wend.,  397; 
Ferguson  v.  Selma,  43  Ala.,  398;  Montgomery  v.  Hutchinson, 
13  Ala.,  573;  Rose  v.  King,  49  Ohio  St.,  213. 

As  to  questions  involved.  Cincinnati  v.  Steinkamp,  54  Ohio 
St.,  284;  L.  S.  &  M.  S.  Ry.  v.  Railway,  30  Ohio  St.,  607; 
Pennsylvania  Co.  v.  Wentz,  37  Ohio  St:,  333;  L.  S.  &  M.  S. 
Ry.  v.  Sharpe,  38  Ohio  St.,  150;  Powell  v.  Commonwealth. 
114  Pa.  St.,  265;  State  v.  Addington,  77  Mo.,  110;  State  v. 
Gas  Light  &  Coke  Co.,  34  Ohio  St.,  572;  Budd  v.  New  York, 
•143  U.  S-,  517;  Mugler  v.  Kansas,  123  U.  S.,  623;  N.  Y.  &  N. 
E.  Ry.  v.  Bristol,  151  U.  S.,  556;  3  Tiedman,  State  and  Fed. 
Control  of  Persons  and  Prop.,  Article  150;  Commonwealth  v. 
Roberts,  155  Mass.,  281;  People  v.  D'Oench,  111  N.  Y.,  359; 
Wadleigh  v.  Oilman,  12  Me.,  403 ;  Welsh  v.  Hotchkiss,  39  Conn., 
140;  Vanderbilt  v.  Adams,  7  Cow.,  349;  Knoxville  v.  Bird, 
80  Tenn.  (12  Lee),  121;  Fiske,  Ex  parte,  72  Cal.,  125;  Brook- 
lyn, In  re,  87  Hun.,  54;  Klinger  v.  Biekell,  117  Pa.  St.,  326; 
King  v.  Davenport,  98  III.,  305;  Champaign  County  v.  Church, 
62  Ohio  St.,  318;  State  v.  Powell,  58  Ohio  St.,  324;  Palmer  v. 
State,  39  Ohio  St.,  236;  State  v.  Telephone  Co.,  36  Ohio  St., 
296;  Roth  v.  State,  51  Ohio  St.,  209;  Cincinnati  Gas  Light  & 
Coke  Co.  v.  State,  18  Ohio  St.,  237;  State  v.  Pipe  Line  Co., 
61  Ohio  St.,  520;  C,  H.  &  D.  Ry.  v.  Sullivan,  32  Ohio  St.,  152; 
Davis  v.  State,  19  Ohio  St.,  270;  Marmet  v.  State,  45  Ohio  St., 
63;  Walker  v.  Cincinnati,  21  Ohio  St.,  14;  State  v.  Nelson,  52 
Ohio  St.,  88. 

Can  a  board  maintain  such  an  action?  Hopewell  Township 
v.  Guy,  64  Ohio  St.,  434;  Buckingham  v.  Buckingham,  36  Ohio 
St.,  68;   Moody  v.  Arthur,  16  Kans.,  419;   Trustees  v.  Thotnan, 


NISI  PKIUS  REPORTS— NEW  SERIES.  408 

1908. J  Akron  Board  of  Education  v.  Sawyer. 

51  Ohio  St.,  285;  High,  Injunctions,  Section  573;  Gallia  County 
v.  Holcomb,  7  Ohio  (pt.  1),  232;  Putman  v.  Valentine,  5  Ohio, 
187;  Cornell  v.  Guilford,  1  Denio,  510;  State  v.  Powers,  38 
Ohio  St.,  54;  Hamilton  County  v.  Mighels,  7  Ohio  St.,  109;  C, 
W.  &  Z.  Ry.  v.  Clinton  County,  1  Ohio  St.,  77 ;  Hunter  v. 
Marion  County,  10  Ohio  St.,  515;  Finch  v.  Board  of  Education, 
30  Ohio  St.,  37;  State  v.  Davis,  23  Ohio  St.,  434;  Neil  v. 
Agricultural  College,  31  Ohio  St.,  15;  State  v.  Covington,  29 
Ohio  St.,  102;  Cincinnati  v.  Volk,  72  Ohio  St.,  469;  State  v. 
Gardner,  54  Ohio  St.,  24;  Reeves  v.  Griffin,  29  Bull.,  281;  Thorpe 
v.  Railway,  27  Vt,  140;  Salem  v.  Railway,  98  Mass.,  431;  Train 
v.  Boston  Disinfecting  Co.,  144  Mass.,  523;  Commonwealth  v. 
Alger,  61  Mass. -(7  Cush.),  53;  Treasurer  v.  Bank,  47  Ohio  St, 
503;  Cincinnati  v.  Bryson,  15  Ohio,  625;  Brown,  In  re,  6  N. 
P.,  178 ;  Squires  v.  Weimer,  19  C.  C,  736 ;  Stevens  v.  State,  61 
Ohio  St.,  597 ;   Gibbons  v.  Institute,  34  Ohio  St.,  289. 

Orant,  Sieber  &  Mather  and  E.  F.  Voris,  for  plaintiff. 
JV.  M.  Greenberger,  City  Solicitor,  J.  Taylor  and  O.  E.  Harri- 
son, for  defendant. 

Doyle,  J. 

The  plaintiff  alleges  that  it  was  notified  by  the  inspector  of 
work  shops  and  factories  to  equip  certain  school  buildings  under 
its  control  "with  divers  fixtures,  appliances  and  contrivances, 
called  fire  escapes  and  things  appertaining  thereto,  ostensibly 
and  pretendedly  to  promote  the  bodily  safety  and  protection  of 
the  pupils  to  be  attendant  upon  the  said  schools." 

Thereupon  the  plaintiff  "caused  a  due  and  adequate  inspec- 
tion of  each  and  all  said  buildings  to  be  made  by  its  own  mem- 
bers in  person  and  by  competent  mechanics  and  architects,  with 
sole  and  especial  regard  to  making  the  said  buildings"  safe  in 
all  ways  for  the  free  exit  of  persons  therein  in  case  of  fire. 

Plaintiff  did  not  follow  the  directions  of  the  inspector,  but 
made  contracts  for  such  fire  escapes  as  it  deemed  necessary,  and 
alleges  that  to  this  extent  it  attempted  to  obey  the  orders  of  the 
inspector.  As  to  the  other  buildings,  plaintiff  claims  that  the 
fire  escapes  with  which  they  are  already  equipped  arp  adequate 


404  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  Board  ot  Education  v.  Sawyer.    [Vol.  VII,  N.  S. 

for  the  safety  of  all  persons  who  may  be  in  any  of  said  build- 
ings in  case  of  fire,  and  for  all  the  uses  and  purposes  of  the 
statute,  and  the  expenditure  of  money  required  to  further  carry 
out  and  obey  the  order  of  the  inspector  "would  be  unneces- 
sary and  wholly  wasted,  without  any  compensating  public  ad- 
vantage or  benefit  whatever," 

The  defendant  pursuant  to  the  statute  threatened  to  pro- 
hibit the  opening  and  occupancy  of  said  school  buildings  until 
all  of  said  fire  escapes  and  fixtures  as  ordered  by  the  inspector 
were  provided. 

This  action  was  brought  to  enjoin  the  defendant  from  pre- 
venting the  use  of  the  school  houses  in  question.  It  is  alleged 
that  defendant  at  the  instance  of  the  chief  inspector  of  work  shops 
and  factories  has  taken  said  action;  that  such  inspector  and 
defendant  in  that  behalf  are  acting  arbitrarily,  oppressively 
and  unlawfully;  and  that  the  statute  under  which  they  are 
assuming  to  act,  in  so  far  as  it  purports  to  confer  such  arbitrary, 
oppressive  or  unconscionable  powers  or  to  authorize  such  use- 
less expenditure  of  public  money,  is  unconstitutional  and  void. 

It  is  further  urged  that  if  the  orders  of  the  defendant  are 
carried  out  it  will  deprive  the  children  of  the  city  school  privileges 
which  will  be  a  public  calamity,  and  be  a  punishment  to  them 
for  something  of  which  they  are  not  at  fault,  and  will  be  a 
taking  of  property  of  the  plaintiff  and  said  city  without  due 
process  of  law  and  in  violation  of  the  Constitution  of  the  United 
States  and  its  amendments. 

The  defendant  demurs  to  the  petition  on  the  following 
grounds:  first,  that  the  court  has  no  jurisdiction  of  the  sub- 
ject of  this  action ;  second,  that  plaintiff  has  no  legal  capacity  to 
sue;  third,  that  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

The  first  two  grounds  of  the  demurrer  will  be  passed  upon  in 
connection  with  the  third  ground. 

The  petition  attacks  the  authority  of  the  defendant  on  one 
point,  that  the  act  under  which  he  acts  is  unconstitutional  in 
that  it  provides  for  a  taking  of  property  without  due  process 
of  law.  This  point  was  the  one  most  carefully  and  persistently 
discussed  by  counsel  and  is  of  vital  importance  in  this  case. 


NISI  PBIUS  REPORTS— NEW  SERIES. 
1908.]  Akron  Board  of  Education  v.  Sawyer. 


Section  1  of  the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States  provides:  "nor  shall  any  state  deprive 
Any  person  of  life,  liberty,  or  property,  without  due  process  of 

law. ' ' 

"Due  process  of  law  is  process  due  according  to  the  law  of 
the  land-  This  process  in  the  states  is  regulated  by  the  law  of 
the  state."     Walker  v.  Sauvinet,  92  U.  S.,  90,  93. 

Legislation  is  not  open  to  the  eharge  of  depriving  one  of  his 
rights  without  due  process  of  law,  if  it  be  general,  in  its  opera- 
tions upon  the  subjects  to  which  it  relates,  and  is  enforcible  in 
the  usua.1  modes  established  in  the  administration  of  govern- 
ment with  respect  to  kindred  matters;  that  is,  by  process  or 
proceedings  adapted  to  the  nature  of  the  case.  Dent  v.  West 
Virginia,  129  V.  S.,  114. 

Due.  process  of  law  and  the  equal  protection  of  the  laws  are 
secured,  "if  the  laws  operate  on  all  alike,  and  do  not  subject  the 
individual  to  an  arbitrary  exercise  of  the  powers  of  government. ' ' 
Duncan  v.  Missouri,  152  U.  S.,  377;  Leeper  v.  Texas,  139  U.'  S., 
462. 

The  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States  was  not  designed  to  interfere  with  the  power  of  the  state 
to  exercise  its  police  powers  to  prescribe  regulations  to  promote 
the  health,  peace,  morals,  education  and  good  order  of  the 
people,  and  to  legislate  so  as  to  increase  the  industries  of  the 
state,  develop  its  resources  and  add  to  its  wealth  and  prosperity. 
Barbier  v.  Connolly,  113  U.  S-,  27;  Mugler  v.  Kansas,  123  U. 
S-,  623;   Kemmler,  In  re,  136  U.  S„  436. 

"The  state  may  interfere  wherever  the  public  interests  de- 
mand it,  and  in  this  particular  a  large  discretion  is  necessarily 
vested  in  the  Legislature  to  determine  not  only  what  the  in- 
terests of  the  public  require,  but  what  measures  are  necessary 
for  the  protection  of  such  interests."  Lawton  v.  Steele,  152 
'   U.  S.,  133,  136;  Phillips  v.  State,  77  Ohio  St.,  214,  217. 

It  is  a  generally  recognized  proposition  that  the  states  possess 
certain  powers  never  surrendered  to  the  general  government, 
and  among  these  powers,  are  the  right  to  legislate  for  public 
health,  public  morals,  public  safety,  for  the  general  and  com- 


408  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  Board  of  Education  v.  Sawyer.  I  Vol.  VII.  N.  S. 

mou  good  and  for  the  well-being,  comfort  and  good  order  of 
the  people.  The  power  of  the  state  may  be  exerted  over  these 
subjects  without  limit,  except  as  it  is  restrained  by  the  Con- 
stitution of  the  United  States  or  its  own  constitutional  re- 
strictions. Western  Turf  Assn.  v.  Oreenberg,  20i  U.  S.,  359, 
363;  Hartford  Fire  Ins.  Co.  v.  Railway,  175  U.  S.,  91. 

The  act  of  April  28,  1908  (99  O.  L.,  232),  entitled,  "An 
act  to  enlarge  the  powers  of  the  chief  inspector  of  work  shops 
and  factories  in  the  matter  of  public  schools  and  other  build- 
ings, and  to  increase  the  number  of  district  inspectors,"  is 
the  one  under  which  defendant  waa  threatening  to  act. 

This  act  provides  that  the  chief  inspector  of  work  shops  and 
factories  shall  cause  the  district  inspector  to  inspect  all  school 
houses  and  other  buildings  stated  therein,  used  for  the  as- 
semblage or  betterment  of  people,  with  special  regard  to  the  pre- 
cautions taken  for  the  prevention  of  fires,  and  the  provision  of 
fire  escapes,  exits,  emergency  exits,  hallways,  air  space,  and 
all  other  matters  which  relate  to  the  health  and  safety  of  those 
occupying  or  assembling  in  such  structures. 

The  district  inspectors  are  required  to  file  written  reports  of 
their  inspection  with  the  chief  inspector,  and  If  such  district 
inspector  shall  find  that  necessary  precautions  for  the  pre- 
vention of  fire  or  other  disaster  have  not  been  taken,  nor  means 
provided  for  the  safe  and  speedy  egress  of  the  persons  who 
might  be  assembled  therein,  said  report  shall  specify  such 
appliances,  additions  or  alterations  as  are  necessary  to  pro- 
vide such  precautions  and  protection. 

It  is  then  the  duty  of  the  chief  inspector  to  notify  the 
owner  or  person  having  control  of  such  structure  of  the  ap- 
pliances, additions  or  alterations  necessary  to  be  added  to  or 
made  to  such  structure, 

The  statute  further  provides: 

"Upon  receiving  said  notice  it  shall  be  the  duty  of  the 
owner  or  person  in  control  of  such  structure  to  comply  with 
each  and  every  detail  embodied  therein." 

It  is  made  the  duty  of  the  mayor,  with  the  aid  of  the  police, 
"to  prohibit  the  use  of  said  structure  for  the  assemblage  of 


NISI  PRIUS  REPORTS— NEW  SERIES.  407 

1808.]  Akron  Board  ol  Education  v.  Sawyer. 

people  until"  the  recommendations  of  the  report  are  complied 
with. 

While  the  statute  does  not  provide  for  any  direct  taking  of 
the  substance  of  the  property  nor  a  sequestration  of  the  issues 
therefrom,  nor  a  deprivation  of  the  use  thereof  for  the  bene- 
fit of  any  particular  person,  it  does  provide  that  the  owner 
or  the  one 'having  control  shall  be  prohibited  from  using  it. 
This  is  for  the  benefit  and  safety  of  those  whom  business,  duty, 
necessity  or  pleasure  may  cause  to  assemble  at  such  place  and 
for  the  general  benefit,  in  that  it  tends  to  the  peace  of  mind 
of  the  community  by  providing  immunity  from  the  horrors  of 
accidents  at  such  places. 

This  is  not  a  taking  of  property  nor  depriving  the  owner  of 
the  lawful  use  of  it,  but  simply  requires  him  to  use  it  in  a  law- 
ful manner.     Cincinnati  v.  Steinkamp,  54  Ohio  St.,  284,  289. 

Is  the  necessity  for  immediate  action  such  that  the  state  may 
immediately  elose  the  structure  until  the  measures  of  safety 
prescribed  by  its  officers  have  been  carried  out*  Has1, the 
state,  in  the  exercise  of  its  poljce  power,  the  right  in  this  instance 
to  deprive  the  owner  of  the  use  of  his  property  until  its  order,s 
are  obeyed?  Is  the  necessity  such  that  the  owner  must  suffer 
loss  for  the  general  good  and  peace  of  mind  of  society  and  the 
safety  of  the  inmates  of  the  buildings  in  question? 

The  possession  and  enjoyment  of  all  rights  are  subject  to 
such  reasonable  conditions  as  may  be  deemed  by  the  governing 
authority  of  the  country  essential  to  the  safety,  health,  peace. 
good  order  and  morals  of  the  community.  There  can  be  no 
serious  contention  over  the  right  of  the  state  to  exert  its  police 
powers  to  prescribe  rules  for  building,  construction  and  equip- 
ment to  insure  the  safety  of  the  public  and  the  occupants. 

The  contention  in  this  case  is  over  the  manner  in  which  the 
state  has  attempted  to  exercise  that  power.  It  has  delegated 
to  an  officer,  the  inspector,  the  important  function  of  deter- 
mining whether  the  "necessary  precautions  for  the  prevention 
of  fire  or  other  disaster"  have  been  taken,  and  whether  means 
have  been  provided  for  the  safe  and  speedy  egress  of  the  persons 
who  may  be  assembled  therein  and  to  specify  what  "appliances, 


408  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  Board  of  Education  v.  Sawyer.    [Vol.  VII,  N.  8. 

additions  or  alterations  are  necessary  to  provide  such  precau- 
tions and  protection." 

The  rights  of  the  property  owner  can  not  be  subjected  to  the 
caprice  nor  the  arbitrary  decision  of  an  official,  nor  can  it  be 
subjected  to  an  unreasonable  regulation,  but  the  circumstances 
of  each  class  or  case  must  determine  the  reasonableness  of  the 
regulations  prescribed. 

In  the  matter  of  taxation  and  the  making  of  assessments 
the  owner  must  have  notice  and  an  opportunity  to  be  heard.  In 
Londoner  v.  Denver,  28  Sup.  Ct.  Rep.,  708,  decided  by  the 
Supreme  Court  of  the  United  States  at  October  term,  1907, 
the  authorities  are  cited. 

The  courts,  however,  have  made  a  distinction  between  mat- 
ters of  taxation  and  the  appropriation  of  property  for  public 
uses,  and  eases  where  the  state  exerts  its  police  power.  The 
delays  incident  to  notice  and  hearing  in  taxation  and  appropria- 
tion cases  work  no  hardship  or  danger  to  the  public.  The  due 
process  of  law  in  executing  the  police  power  of  the  state  is  of 
necessity  of  a  different  kind.  The  exigencies  of  many  cases 
require  immediate  action.  When  the  public  health  or  safety  is 
in  peril,  the  process  of  action  for  relief  must  be  swift.  An 
impending  disaster  requires  prompt  administrative  action.  The 
public  authorities  may  destroy  buildings  in  the  course  of  a 
conflagration,  to  arrest  its  further  progress,  destroy  property 
to  prevent  spread  of  pestilence  and  act  swiftly  on  many  other 
occasions  of  public  calamity.  Cooley,  Const.  Lim.  (7th  Ed.), 
877. 

So  a  particular  use  of  property  may  he  forbidden  where  by 
a  change  of  circumstances  or  for  any  other  good  reason,  with- 
out the  fault  of  the  owner,  that  which  was  once  lawful,  proper 
and  unobjectionable  has  become  a  menace  to  the  public  health 
or  safety.  So  may  dangers  and  nuisances  which  have  long 
been  permitted,  be  abated  when  the  public  conscience  of  the  state 
has  aroused  official  action. 

An  act  of  this  state  which  required  owners  of  certain  build- 
ings, upon  notice  from  the  inspector,  to  put  up  suitable  fire 
escapes  was  held  not  to-be  a  taking  without  due  process  of  law 


NISI  PRIUS  REPORTS— NEW  SERIES.  409 

1908.]  Akron  Board  of  Education  v.   Sawyer. 

in  Cincinnati  v.  Steinkamp,  supra.  The  law  passed  upon  in 
that  case  was  enacted  February  28,  1888  (85  0.  L.,  34),  and 
provided  that  the  inspector  should  determine  the  location  and 
numbers  of  the  fire  escapes  and  the  material  therefor  and  man- 
ner of  construction.  Being  of  a  general  nature  and  not  having 
uniform  operation  throughout  the  state,  it  was  held  unconstitu- 
tional on  the  ground  that  it  violated  Article  II,  Section  26  of 
the  Constitution  of  Ohio;  but  upon  the  question  of  due  process 
of  law  the  court  held  it  would  have  been  constitutional,  and  this 
even  though  the  act  had  not  provided  for  enforcing  the  orders 
of  the  inspector  by  a  suit  in  equity.  Reading  from  the  dictum 
of  Judge  Spear  in  Cincinnati  v.  Steinkamp,  supra,  I  quote  from 
page  290: 

"The  enactment  is  but  the  exercise  of  the  police  power  of 
the  state,  that  power  which  is  characterized  hy  Mr.  Justice 
Gray,  in  Leisy  v.  Hardin,  135  U.  S.,  127,  as  'that  inherent  and 
necessary  power,  essential  to  the  very  existence  of  civil  society, 
and  the  safeguard  of  the  inhabitants  of  the  state  against  dis- 
order, disease,  poverty  and  crime,'  and  necessarily  extends  'to 
the  protection,  health,  comfort  and  quiet  of  all  persons  and  all 
property  within  the  state.'  It  no  more  denies  to  the  owner 
the  use  of  his  property  than  do  those  acts  known  as  building 
laws,  which  forbid  the  erection  of  frame  structures  within  pre- 
scribed limits,  or  define  the  thickness,  and  strength  of  walls, 
bearers,  girders,  etc.,  or  direct  the  demolition  of  structures 
falling  to  decay,  or  otherwise  endangering  the  lives  of  passersby, 
which  acts  so  far  as  they  are  reasonable  in  their  character,  and 
adapted  to  accomplish  the  purpose  for  which  they  are  designed, 
are  uniformly  held  to  be  within  the  constitutional  authority  of 
the  General  Assembly  in  its  just  exercise  of  the  police  power 
of  the  state." 

From  page  291 : 

"Nor  is  the  act  open  to  the  criticism  that  it  violates  that  pro- 
vision of  Section  1\  of  Article  IV  of  the  Constitution  of  the 
United  States,  which  declares  •  *  •  'nor  shall  any  state 
deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law,'  for  the  settled  doctrine  is  that  this  section  does 
not  abridge  the  exercise  of  the  police  power  of  the  states,  nor 
limit  the  subjects  upon  which  they  nmy  legislate." 


410  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  Board  of  Education  v.  Sawyer.    [Vol.  VII,  N.  S. 

In  the  exercise  of  the  police  power  of  the  state,  for  a  pur- 
pose highly  necessary  in  the  promotion  of  the  public  health, 
i.  e.,  construction  of  a  drainage  system,  it  became  necessary  to 
change  the  location  of  the  pipes  of  a  gas  company  so  as  to  accom- 
modate them  to  the  new  public  work  and  the  cost  was  put  on 
the  gas  company.  Held  not  a  taking  of  property  and  a  proper 
exercise  of  police  power.  New  Orleans  Gaslight  Co.  v.  Drain- 
age Commission,  197  U.  S.,  453. 

Statutes  requiring  manufacturers  and  sellers  of  mixed  paints 
to  put  label  on  same  showing  constituent  ingredients  and  quan- 
tity of  each,  held  not  violation  of  the  Fourteenth  Amendment 
to  the  United  States  Constitution.  Heath  &  MUligan  Mfg.  Co. 
v.  Worst,  207  U.  8.,  338. 

A  railroad  is  not  deprived  of  propenty  without  due  process 
of  law  by  the  recovery  of  penalties  against  it  for  violations  of 
a  valid  state  statute  prohibiting  the  heating  of  passenger  ears 
on  other  than  mixed  trains  by  stove  or  furnaces  inside  of,  or 
suspended  from  the  ears,  exeept  for  temporary  use  in  case  of 
accident  or  other  emergency,  where  the  defendant  was  before 
the  court.     Harlan,  J. : 

"One  of  the  assignments  of  error  questions  the  validity  of  the 
statute  upon  the  ground  that  it  deprives  the  plaintiff  in  error 
of  its  property  without '  due  process  of  law.  As  the  action 
against  the  company  was  instituted  and  conducted  to  a  con- 
clusion under  a  valid  statute,  .the  defendant  being  before  the 
court,  there  is  no  reason  to  hold  that  there  was  any  want  of 
the  due  process  of  law  required  by  the  Fourteenth  Amend- 
ment.'*   New  York,  N.  S.  &  H.  Ry.  v.  State,  165  U.  S.,  628. 

It  was  held  constitutional  to  compel  a  railroad  company  to 
light  its  tracks,  in  ft,  H.  &  D.  Ry.  v.  Bowling  Green,  57  Ohio 
St.,  336. 

The  owner  of  a  building  which  he  knowingly  permits  to  be 
used  for  gaming  purposes  is  not  deprived  of  his  property 
without  due  process  of  law  by  Section  4275,  Revised  Statutes, 
which  authorizes  an  action  to  subject  such  building  to  the  pay- 
ment of  a  judgment  obtained  by  an  informer  for  the  recovery 
of  money  lost  there  at  play.     Marvin  v.  Trout,  199  U.  S-,  212. 


NISI  PRIUS  REPORTS— NEW  SERIES.  411 

1908.]  Akron  Board  of  Education  v.  Sawyer. 

An  aet  compelling  a  person  in  possession  of  a  race  track  to 
recognize  tickets  of  admission,  and  on  failure  <to  be  liable  to  suit 
for  damages  and  $100  in  addition  to  actual  damages,  held  not 
taking  of  property  without  due  process.  Western  Turf  Assn.  v. 
Greenberg,  204  U.  S-,  359. 

The  act  of  the  General  Assembly  of  Ohio  (90  0.  L.,  220 ;  R.  S-, 
3443-3)  requiring  street  railway  companies  to  provide  screens 
for  protection  of  mo  tor  men,  held  proper  exercise  of  police 
power  and  not  a  taking  without  due  process.  State  v.  Nelson, 
52  Ohio  St.,  88. 

The  establishment  of  limits  within  the  denser  portions  of 
cities  and  villages,  within  which  buildings  constructed  of  in- 
flammable materials  shall  not  be  constructed,  erected  or  re- 
paired, may,  in  some  instances  be  equivalent  to  a  destruction  of 
property,  but  regulations  for  this  purpose  have  been  sustained 
notwithstanding  this  result.     Cooley,  Const.  Lim.  (7th  Ed.),  878. 

Prohibiting  slaughter  houses  in  certain  parts  of  city  held 
reasonable.  Cronin  v.  People,  82  N.  Y.,  318 ;  Metropolitan  Bd. 
of  Health  v.  Heister,  37  N.  T.,  661;  Milwaukee  v.  Gross,  21 
Wis.,  241. 

Forbidding  laundries  except  in  brick  or  stone  buildings  up- 
held. Yick  Wo,  In  re,  68  Cal.,  294;  Yick  Wo  v.  Hopkins,  118 
IT.  S.,  356. 

It  is  unnecessary  to  cite  the  many  cases  where  the  exereise 
of  the  police  power  by  the  state  has  been  upheld,  though  it  had 
provided  no  scheme  for  a  hearing. 

In  the  exercise  of  its  right  the  state  in  many  instances  must 
vest  authority  in  the  authorities  of  some  of  the  political  subdivi- 
sions of  the  state,  or  in  state  officers,  the  power  to  make  such 
necessary  and  reasonable  regulations  as  are  necessary  to  secure 
the  health,  safety  and  well-being  of  the  community  in  respect  to 
the  matters  legislated  upon,  and  also  in  other  instances  to  pass 
upon  the  things  necessary  to  be  done  in  order  to  carry  out  the 
provisions  made  in  the  state  statutes. 

There  are  some  dangerous  things  to  be  regulated,  concerning 
the  treatment  of  which  the  Legislature  can  not  anticipate.  It 
can  make  general  requirements  but  the  details  must  be  worked 


412    ■  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  Board  of  Education  v,  Sawyer.    [Vol.  VII.  N.  S. 

out  by  some  administrative  officer.  See  Ozan  Lumber  Co.  v. 
Bank,  207  U.  S.,  251,  and  casea  oited  on  page  253. 

Take  the  matter  of  providing  for  the  safety  of  persons  who 
assemble  in  buildings,  or  of  providing  against  dangers  from 
fires  or  other  calamity.  If  the  state  cares  only  to  legislate  as  to 
height  and  declares  that  buildings  shall  be  limited  to  a  certain 
number  of  feet  in  height,  as  was  the  case  in  Attorney-General 
v.  Williams,  178  Mass.,  330,  the  problem  is  simple. 

But  if  the  legislation  is  to  provide  for  the  entire  safety  of  the 
occupants  so  far  as  practicable,  it  would  be  impracticable  to 
frame  legislation  in  detail  to  cover  it.  The  exposure  of  the 
building  to  streets,  alleys,  squares,  vacant  lots,  and  other  build- 
ings, its  height  and  other  dimensions,  openings,  stairways,  plans 
of  hallways  and  rooms,  height  of  ceilings  and  numerous  other 
physical  features  of  the  structure  must  be  taken  into  considera- 
tion as  well  as  the  arrangement  of  the  contents  of  the  building, 
the  uses  to  which  it  is  put,  means  of  access  from  one  part  to 
the  other  and  to  adjoining  premises,  the  age,  condition,  and 
character  of  the  occupants,  etc.  Where  all  these  must  be  taken 
into  consideration  in  determining  what  appliances  are  neces- 
sary to  insure  the  safety  of  the  occupants  of  the  building,  it 
is  necessary  for  the  Legislature  to  delegate  to  some  officer  the 
function  of  making  these  determinations. 

The  act  in  question  in  this  state  has  imposed  upon  the  in- 
spector the  duty  of  making  such  determinations.  Now,  then, 
what  view  have  the  courts  taken  of  this  delegation  of  authority 
Ln  the  matter  of  police  regulations,  as  bearing  upon  the  ques- 
tion of  whether  the  restrictions  put  upon  property  owners  by 
that  means  are  a  taking  of  property  without  due  process. 

The  Roberts  law  (94  O.  L.,  33),  providing  for  granting  li- 
censes to  engineers,  if  the  examiner  found  the  applicant  trust- 
worthy and  competent,  was  hold  unconstitutional  in  Harmon 
v.  State,  66  Ohio  St.,  249,  because  the  act  provided  no  standard 
as  to  qualification  and  no  specifications  as  to  wherein  the  appli- 
cant shall  be  trustworthy  and  competent,  but  all  was  left  to  the 
opinion,  finding  and  caprice  of  the  examiner.  There  being  six 
examiners  it  would  have  meant  a  possible  six  separate  standards. 


NISI  PRIUS  REPORTS— NEW  SERIES.  418 

1908.]  Akron  Board  of  Education  v.   Sawyer. 

This  was  held  to  be  a  delegation  of  legislative  power  and  in 
conflict  with 'Article  II,  Section  1  of  the  Constitution. 

This  law  was  re-enaeted  by  act  95  0.  L.,  49  (Rev.  Stat.  4364- 
89p),  providing  for  an  examination  in  the  construction  and 
operation  of  steam  boilers,  steam  engines  and  steam  pumps,  and 
also  hydraulics,  under  rules  made  by  the  chief  examiner,  which 
should  be  uniform  throughout  the  state.  This  act  was  held  con- 
stitutional in  Theobald  v.  State,  10  C.  C— N.  S-,  536. 

Complaint  was  made  in  this  case  that  no  standard  of  qualifi- 
cations existed.     The  court  said: 

""In  the  former  act  no  subjects  for  examination  were  men- 
tioned. Here  the  statute  fixes  just  what  subjects  the  applicant 
is  to  be  examined  in.  How  the  Legislature  could  have  more  defi- 
nitely fixed  what  the  examiners  shall  do  is  not  easy  to  under- 
stand. If  a  percentage  of  answers  had  been  fixed  or  a  percent- 
age of  qualification  had  been  fixed  by  the  statute,*  it  would  still 
have  been  with  the  examiner  to  say  what  degree  of  qualification 
was  indicated  by  any  per  cent,  of  marking." 

The  court  cites  a  similar  delegation  of  authority  in  Section  559 
governing  examinations  for  admission  to  practice  law;  Sections 
4403  and  4403c,  governing  examinations  of  physicians;  Section 
4070  as  to  examination  of  teachers  in  the  public  schools ;  Section 
4071a  delegating  to  state  commissioner  of  common  schools  au- 
thority over  preparation  of  questions  for  examinations. 

The  federal  government  has  authorized  the  Postmaster-general 
to  hold  up  mail  matter  of  persons  who  in  his  judgment  are  con- 
ducting a  fraudulent  business  and  for  other  prohibited  purposes. 
This  was  held  a  proper  delegation  of  authority.  Public  Clear- 
ing House  v.  Coyne,  194  U.  S.,  497. 

Power  delegated  to  the  Secretary  of  War  to  determine  when 
a  bridge  is  an  unreasonable  obstruction  to  navigation  and  to  re- 
quire such  changes  as  the  government  engineer  may  prescribe, 
was  not  unconstitutionally  delegated.  Union  Bridge  Co.  v. 
United  States,   204   U.   S.,   359,   364. 

Under  a  statute  authorizing  a  municipal  corporation,  when 
the  council  shall  deem  it  necessary,  to  require  railroad  company 
to  light  its  railway,  a  village  in  Ohio  passed  an  ordinance  re- 


414  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron   Board  or  Education  v.   Sawyer.    [Vol.  VII.  N.  & 

quiring  a  portion  of  a  railway  track  to  be  lighted  with  electricity 
in  a  certain  manner.  Held  a  proper  exercise  of  power  in  C,  H. 
&  D.  Ry.  v.  Bowling  Oreen,  57  Ohio  St.,  336. 

An  ordinance  of  San  Francisco  put  into  the  board  of  police 
commissioners  power  to  grant  liquor  licenses,  and  provided  that 
they  should  grant  it  if  the  applicant  got  the  written  recommen- 
dation of  twelve  citizens  owning  real  estate  in  the  block  or 
square  where  the  business  of  liquor  selling  was  to  be  carried  on. 
It  was  held  that  the  refusal  to  grant  license  was  no  violation  of 
the  federal  Constitution.     Crowley  v.  Ckristensen,  137  U.  S.,  86. 

A  statute  of  Illinois  confided  to  state  mine  inspectors  dis- 
cretion to  determine  the  number  of  times  each  mine  should 
be  inspected,  and  to  regulate  the  charges  therefor,  which  must  be 
paid  by  the  mine  owner.  This  act  was  held  not  repugnant  to 
the  Fourteenth  Amendment  nor  arbitrary  or  unreasonable.  Con- 
solidated Coal  Co.  of  St.  Louis  v.  Illinois,  185  U.  S.,  203. 

Delegation  of  power  to  the  American  Railway  Association  and 
the  Interstate  Commerce  Commission  to  fix  heighth  of  drawbars 
of  freight  cars  held  not  unconstitutional.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  v.  Taylor,  210  U.  S.,  281 ;  advance  sheets  Reports  U.  S. 
Supreme  Court,  October  term,  1907,  p.  616;  28  Sup.  Ct.  Rep., 
616. 

In  Cincinnati  v.  Steinkamp,  supra,  the  delegation  of  a  discre- 
tion to  the  inspector  to  determine  the  location  and  number  of 
the  fire  escapes  on  a  building  and  the  material  out  of  which  to 
be  built  and  the  manner  of  construction  including  size,  shape, 
plan,  strength,  etc..  was  not  held  objectionable. 

Inspectors  have  been  clothed  with  discretionary  powers  in  the 
following  instances  and  the  acts  upheld  by  the  courts.-  Cows 
infected  with  tuberculosis  destroyed  without  compensation.  Hous- 
ton v.  State,  98  Wis.,  481;  peach  trees  affected  with  "yellows" 
destroyed,  State  v.  Main,  69  Conn.,  123;  milk  of  a  quality  below 
a  prescribed  standard  destroyed,  Deems  v.  Baltimore,  80  Md., 
164;  health  officer  may  kill  diseased  animal,  Newark  &  S.  O.  H. 
C.  Ry.  v.  Hunt,  50  N.  3.  h.,  308;  to  destroy  nets  used  in  viola- 
tion of  fishing  laws,  Bittenhaus  v.  Johnston,  92  Wis.,  588. 

Mining  cases  providing  for  ventilation  and  the  erection  of 


NISI  PRIUS  REPORTS— NEW  SERIES.  415 

1808.]  Akron  Board  of  Education  v.  Sawyer. 

structures  to  facilitate  escape  of  miners  in  case  of  accident  are : 
Chicago,  W.  &  V.  Coal  Co.  v.  People,  181  III,  270;  Consoli- 
dated Coal  Co.  v.  People,  186  111.,  134. 

An  ordinance  giving  the  mayor  power  to  determine  whether  a 
person  applying  for  a  license  to  sell  cigarettes  has  good  character 
and  reputation  and  is  a  suitable  person  to  be  intrusted  with 
their  sale,  but  requiring  him  to  grant  a  license  to  every  person 
fulfilling  these  conditions,  does  not  vest  in  him  any  arbitrary 
power  to  grant  or  refuse  a  license,  in  violation  of  the  provisions 
of  the  Fourteenth  Amendment  to  the  United  States  Constitution, 
either  in  regard  to  the  clause  requiring  due  process  of  law,  or 
in  that  requiring  equal  protection  of  the  laws. 

Regulations  respecting  the  pursuit  of  a  lawful  trade  or  busi- 
ness, being  an  exercise  of  the  police  power,  are  within  the  au- 
thority of  the  state,  and  form  no  subject  for  the  federal  in- 
terference unless  they  are  so  utterly  unreasonable  and  extrava- 
gant in  their  nature  and  purpose  that  the  property  and  per- 
sonal rights,  of  the  oitizen  are  unnecessarily  and  in  a  manner 
wholly  arbitrary  interfered  with  or  destroyed  without  due  pro- 
cess of  law.     Gundling  v.  Chicago,  177  U.  S.,  183. 

The  determination  of  whether  necessary  precautions  for  the 
prevention  of  fire  or  other  disaster  have  been  taken,  or  means 
provided  for  the  safe  and  speedy  egress  of  the  persons  who  might 
be  assembled  in  a  building,  must,  as  heretofore  pointed  out,  nec- 
essarily be  confided  to  some  officer. 

The  Legislature  could  not  anticipate  the  necessities  of  each 
case,  and  must  confide  it  to  some  official.  As  was  said  by  Judge 
Spear  in  Rose  v.  King,  49  Ohio  St.,  213,  222,  "What  would  be 
proper  and  'convenient'  would  have  to  be  determined  by  the 
'  circumstances  of  each  case."  This,  also,  was  a  fire  escape  case 
arising  out  of  Seetion  2573,  Revised  Statutes. 

If  the  case  in  hand  involved  a  private  property  owner,  and 
the  current  authority  on  the  subject  of  the  exercise  of  the  police 
power  of  the  state  were  consulted,  and  followed,  the  court  would 
be  constrained  to  hold  the  act  of  April  28,  1908  (99  0.  L.,  2321, 
constitutional,  but  the  plaintiff  in  this  case  is  a  public  body,  an 
agency  of  the  state,  which  complains  of  the  requirements  made 
of  it  by  another  agency  of  the  state,  and  it  is'  not  in  a  position  as 


418  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  Board  of  Education  v.  Sawyer.   [Vol.  VII,  N.  8. 

against  the  state  to  urge  those  considerations  which  might  ex- 
empt a  private  property  owner  from  the  operation  of  the  stat- 
ute. The  statute  might  be  unconstitutional  as  to  private  owner 
and  not  as  to  the  board  of  education. 

Article  I,  Section"7  of  the  Constitution  of  the  state  provides 
that  "It  shall  be  the  duty  of  the  General  Assembly  to  pass 
suitable  laws  *  *  *  to  encourage  schools  and  the  means 
of  instruction." 

Article  VI,  Section  2  of  the  Constitution  provides:  "The 
General  Assembly  shall  make  such  provisions,  by  taxation,  or 
otherwise,  as  *  *  *  will  secure  a  thorough  and  efficient  sys- 
tem of  common  schools  throughout  the  state." 

In  obedience  to  these  mandates  of  the  Constitution,  in  1853, 
the  General  Assembly  passed  an  act  "To  provide  for  the  reor- 
ganization, supervision  and  maintenance  of  common  schools" 
(51  0.  L.,  429).  See  Section  3885,  Revised  Statutes,  et  seq.,  for 
statutes  providing  for  a  continuation  and  extension  of  that  pol- 
icy of  the  state.  This  system  created  by  this  act  will  save  it 
icy  of  the  state.  This  system  created  by  this'  act  was  the  out- 
growth of  and  superseded  the  system  inaugurated  under  the 
Akron  School  law. 

The  common  schools  of  the  state  are  the  fruit  of  the  Constitu- 
tion, making  a  general  educational  system.  Finch,  v.  Bd.  of 
Education,  30  0.  S.,  37;  Diehm  v.  Cincinnati,  25  0.  S.,  305. 

The  boards  of  education  of  the  state  hold  the  property  in- 
trusted to  their  custody  only  as  a  public  agency  of  the  state ; 
Atty-Oen.,  ex  rel  Kies,  v.  Lowrey,  199  U.  S.,  233,  239;  50:  167. 
170. 

The  school  districts  are  organized  as  mere  agencies  of  the 
state  in  maintaining  its  public  schools.  State  v.  Powers,  38  0. 
S„  54,  61. 

The  board  is  simply  the  custodian  of  what  the  Legislature 
sees  fit  to  intrust  to  it  and  is  bound  to  use  what  is  thus  in- 
trusted to  it  in  the  manner  directed  by  the  Legislature  and  not 
otherwise,  and  to  deliver  it  up  when  directed.  It  holds  prop- 
erty, but  only  for  carrying  out  the  policy  of  the  state.  It  con- 
stitutes an  agency  by  which  the  state  carries  out  its  policy  and 
purposes  in  educating  the  yonth  of  the  state. 


NISI  PRIUS  REPORTS— NEW  SERIES.  417 

1908.]  Akron  Board  of  Education  v.  Sawyer. 

The  board  of  education  is  only  a  quasi  corporation  (30  0.  S., 
37;  38  O.  S.,  54;  10  0.  S.,  515;  20  O.  S.,  18),  an  organization 
subject  to  the  control  of  the  Legislature.  It  constitutes  the 
instrument  by  which  the  Legislature  administers  the  depart- 
ment of  the  civil  administration  of  the  state  which  relates  to 
education  and  the  schools. 

Any  regulation  the  state  may  prescribe  for  the  government 
of  the  schools,  the  care  of  the  school  property  or  the  means  of 
protecting  the  inmates  of  the  schools  must  be  obeyed.  If  it  dele- 
gates to  the  inspector  of  work  shops  and  factories  the  duty  of 
prescribing  ways  and  means  tending  to  insure  safety  for  the  in- 
mates of  the  schools  or  other  public  institutions,  the  orders  of 
these  inspectors  become  rules  of  conduct  for  the  boards  having 
charge  of  such  institutions. 

The  boards  can  not  interpose  their  judgments  in  the  premises 
against  that  of  the  officers  designated  and  appointed  by  the 
state   for   that  special   purpose. 

If  the  unconstitutional  provisions  of  an  aet  are  so  interwoven 
with  the  other  provisions  of  the  act  as  to  be  inseparable,  the 
whole  aet  would  be  unconstitutional  (Harmon  v.  State,  66  0.  S., 
249,  252),  but  otherwise  a  part  of  an  act  may  be  constitutional 
and  the  balance  unconstitutional.  Pump  v.  Commissioners,  69 
0.  S.,  448. 

Id  construing  statutes  the  rule  is  to  enforce  them  so  far  as 
they  are  constitutionally  made,  rejecting  only  those  provisions 
which  show  an  excess  of  authority  by  the  enacting  power.  Cin- 
cinnati v.  Bryson,  15  0.,  625. 

Where  part  of  an  act  is  separable  from  the  remainder,  its 
constitutionality  will  save  it  from  the  constitutional  infirmities 
of  the  remainder.  Gibbons  v.  Catholic  Institute,  34  Ohio  St., 
289;  Treasurer  v.  Bank,  47  Ohio  St.,  503. 

A  part  of  a  section  may  be  constitutional  and  another  not. 
Sections  are  artificial  divisions  of  a  law.  The  substance  and 
the  parties  and  subjects  respectively  affected  are  to  be  con- 
sidered.    Stevens  v.  State,  61  Ohio  St.,  597. 

Where  a  literal  reading  of  an  act  would  make  it  unconstitu- 
tional, but  if  read  and  interpreted  in  the  light  of  the  extent  of 
the  authority  which  the  Legislature  had.  it  would  be  constitu- 


418  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  Board  of  Education  v.  Sawyer.   [Vol.  VII,  N.  S. 

tional,  it  was  held  that  it  should  be  regarded  as  constitutional. 
Coburn  v.  San  Mateo  Co.,  75  Fed  Rep.,  520,  526. 

The  rejection  of  some  of  the  provisions  of  a  statute  for  un- 
constitutionality will  not  vary  the  sense  or  meaning  of  its  re- 
maining provisions,  which  are'  to  be  construed  as  well  in  the 
light  of  those  rejected  as  of  those  which  remain.  State  v.  Dom- 
baugh,  20  Ohio  St.,  167,  174. 

A  part  of  a  statute  may  be  unconstitutional  and  the  remain- 
der valid ;  whether  or  not  the  infirmity  that  avoids  a  part  af- 
fects the  entire  act,  depends  upon  the  connection  and  depend- 
ence on  each  other  of  its  various  provisions.  Little  Miami  fly. 
v.  Greene  County,  31  Ohio  St.,  338,  444. 

When  the  unconstitutional  part  is  stricken  out,  if  that  which 
remains  is  complete  in  itself  and  capable  of  being  executed  in 
accordance  with  the  apparent  legislative  intent,  wholly  inde- 
pendent of  that  which  was  rejected,  it  must  be  sustained. 
Cooley,  Const.  Lim.  (7th  Ed.),  247. 

If  the  act  in  question  be  construed  as  to  its  constitutionality 
only  as  it  affects  school  houses  used  in  the  public  school  system 
of  the  state,  and  in  the  custody  and  control  of  the  boards  of 
education  created  by  the  state,  and  the  asylums  and  other  build- 
ings in  the  custody  and  under  the  control  of  state  institutions 
and  state  agencies,  these  are  entirely  separable  from  the  other 
buildings  mentioned  and  the  statute  may  be  considered  as  con- 
stitutional so  far  as  it  affects  these  objects,  though  it  may  be 
otherwise  in  so  far  as  it  affects  buildings  owned  and  controlled, 
and  in  the  custody  of  private  persons.  Black,  Interp.  of  Laws, 
and  cases  cited,  pp.  96-98. 

In  view  of  that  criterion  of  interpretation  that  the  court  must 
presume  the  constitutionality  of  the  act,  the  court  finds  that  as 
to  the  plaintiff  in  this  suit,  the  act  in  controversy  is  constitu- 
tional. Black,  Interp.  of  Laws,  93;  Cooley,  Const.  Lim.,  252, 
ct  seq. 

If  the  constitutionality  of  the  act  under  which  the  defendant 
has  presumed  to  act  in  this  case,  wore  all  that  was  to  be  con- 
sidered, the  demurrer  should  be  sustained,  but  the  petition 
charges  that  the  defendant  and  the  inspector  of  work  shops  and 


NISI  PRIUS  REPORTS— NEW  SERIES.  419 

1908.]  Akron  Board  of  Education  v.  Sawyer. 

factories,  under  whose  orders  the  defendant  has  acted  and  threat- 
ens to  aet,  have  acted  arbitrarily  and  oppressively. 

Without  regard  to  the  question  of  the  constitutionality  of 
the  act  under  which  the  mayor  is  acting,  if  his  acts  are  op- 
pressive and  arbitrary,  or  the  exactions  of  the  officer  under 
whose  orders  he  is  acting  pursuant  to  the  statute  are  unrea- 
sonable, arbitrary  and  oppressive,  a  court  of  equity  would  have 
jurisdiction  to  restrain  the  execution  of  the  requirements  of 
the  inspector  and  the  execution  by  the  mayor  of  the  requirement 
of  the  inspector.     Chase  v.  Middleton,  123  Mich.,  647. 

It  is  the  duty  of  the  court  under  the  circumstances  and  under 
the  allegations  of  the  petition,  in  the  interests  of  justice  and  the 
public  welfare,  to  inquire  into  the  charge  that  these  officials 
are  acting  arbitrarily  and  oppressively,  and  determine  whether 
the  plaintiff  for  that  reason  is  entitled  to  the  relief  demanded. 
The  courts  have  ever  interposed  to  protect  the  citizen  from  the 
unnecessary,  unreasonable,  arbitrary,  oppressive  and  unjust  ex- 
actions of  public  officials. 

Even  in  carrying  out  the  police  power  of  the  state,  such  acts 
of  officials  would  constitute  a  want  of  due  process  of  law.  The 
general  power  of  the  Legislature  to  determine  what  .is  neces- 
sary for  the  public  interests  and  the  right  of  its  officers  to  exe- 
cute its  commands  are  limited  only  by  the  rights  of  public  and 
private  parties  to  have  an  inquiry  as  to  the  reasonableness  and 
fairness  of  the  exactions  and  whether  the  same  are  under  and 
within  the  limits  of  the  Constitution.  Phillips  v.  State,  77  Ohio 
St.,  214,  217. 

If  by  any  unreasonable,  arbitrary  and  oppressive  act  the 
defendant  threatens  to  close  up  any  of  the  schools  and  de- 
prive the  school  children  of  the  benefits  thereof,  and  to  that  ex- 
tent impede  the  state  in  carrying  out  its  policy  of  instruction, 
the  board  of  education  is  the  only  hotly  or  person,  logically,  upon 
whom  would  devolve  the  duty  of  protecting  the  public  interest 
in  that  behalf. 

The  plaintiff,  therefore,  having  capacity  to  sue  and  the  court 
having  jurisdiction,  and  the  plaintiff  having  complained  in  its 
petition  that  the  acts  of  the  defendant  are  unreasonable,  arbi- 
trary and  oppressive,  and  it  being  entitled  to  have  a  judicial 


420  SUPERIOR  COURT  OF  CINCINNATI. 

United  Cigar  Stores  Co.  v.  Von  Bargen.  [Vol.  VII,  N.  S. 

inquiry  into  this  matter  and  the  petition  for  that  reason  con- 
taining facts  sufficient  to  constitute  a  cause  of  action,  the  de- 
murrer of  the  defendant  to  the  petition  is  overruled. 


OCCUPATION  OF  SIDEWALK  WITH  STAND  FOR 
VENDING  WARES. 

Superior  Court  of  Cincinnati. 

United  Cigar  Stores  Co.  v.  Von  Bargen,  Auditor,  et  al. 

Decided,  October  8,  1908. 

Foreign  Corporation — Right  of,  to  Bring  Suit  as  a  Tax-Payer^— Mu- 
nicipal Corporations — Power  to  License — Neither  City  nor  Abut- 
ting Property  Owner  can  Authorise  Use  of  Sidewalk  by  Vendors 
— Sections  I'i36-S68  and  15S6S21. 

1.  Where  a  foreign  corporation  Is  a  tax-payer,  it  has  the  same  author- 

ity under  Section  1778  (1536-668)  as  a  resident  corporation  or  In- 
dividual to  bring  an  action  to  enjoin  a  municipality  from  abuse  of 
Its  corporate  powers. 

2.  The   general    licensing    powers    conferred    upon    municipalities   by 

Section  2669  (1536-327)  do  not  render  valid  an  ordinance  whereby 
the  municipality  permits  a  peddler,  under  the  guise  of  a  license, 
to  occupy  a  portion  of  the  inside  of  the  sidewalk  by  a  structure 
built  against  the  wall  and  used  by  him  for  the  purpose  of  vend- 
ing his  wares. 

3.  The  fact  that  such  a  peddler's  stand  has  been  maintained   for  a 

period  of  seventeen  yearB  does  not  create  any  right  in  the  side- 
walk, nor  relieve  the  municipality  from  the  duty  of  clearing  the 
sidewalk  of  such  obstruction;  nor  does  the  fact  that  the  structure 
Is  maintained  under  an  agreement  with  the  property  owner  create 
any  right  for  such  occupancy  of  the  sidewalk  aa  against  the  rights 
of  the  general  public 

Jacob  Shrodcr,  for  plaintiff. 

Ooeffrey  Goldsmith,  Assistant  Solicitor,  for  the  City. 

Gideon  C.  Wilson,  for  Joseph  Massa. 

Spiegel,  J. 
Heard  on  demurrer. 

The  plaintiff,  the  United  Cigar  Stores  Company,  files  a  peti- 
tion alleging  that  it  is  a  corporation  incorporated  under  the 


NISI  PRIUS  REPORTS— NEW  SERIES.  421 

1908.]  United  Cigar  Stores  Co.  v.  Von  Bargen. 

laws  of  New  Jersey,  and  that  it  institutes  this  suit  on  behalf  of 
the  city  of  Cincinnati,  the  city  solicitor  having  failed  to  do  so, 
although  requested  thereto,  and  complains  that  the  council  of 
said  city  passed  an  ordinance  on  the  2d  day  of  June,  1905, 
authorizing  peddlers  from  stands  to  sell  fruits,  candies,  groceries 
and  other  articles  upon  payment  of  a  license  fee  of  fifteen  dol- 
lars annually;  that  in  pursuance  of  said  ordinance,  which  was 
duly  approved  by  the  mayor,  said  auditor,  Ernst  Von  Bargen, 
issued  such  license  to  the  defendant,  Joseph  Massa,  who  there- 
upon took  possession  of  a  permanent  stand  at  the  northwest 
corner  of  Fifth  and  Walnut  streets  and  extending  on  the  west 
side  of  Walnut  street,  from  which  he  sells  fruits,  etc. ;  that  the 
issuance  of  such  license  to  use  and  occupy  said  space  with  a 
permanent  stand  is  an  abuse  of  the  corporate  power  conferred 
by  law  on  said  city,  and  that  said  ordinance  is  invalid. 

Plaintiff  further  says  that  said  northwest  corner  of  Fifth  and 
Walnut  streets  and  the  west  side  of  Walnut  street  for  more  than 
one  hundred  feet  north  of  said  corner  is  used  by  a  large  number 
of  lines  of  the  street  railway  system  as  one  of  its  termini,  and 
that  said  sidewalk  is  in  consequence  constantly  made  use  of  as 
a  passage-way  during  the  day  and  evening  by  a  great  number 
of  passengers  of  said  lines,  and  that  said  stand  extends  north- 
ward on  Walnut  street  about  twelve  feet,  and  extends  over  the 
sidewalk  about  three  feet;  that  this  a  gross  abuse  of  the  cor- 
porate power  of  the  city  from  which  the  damage  is  irreparable, 
and  for  whieh  there  is  no  adequate  remedy  at  law. 

Plaintiff  prays  for  an  injunction  against  the  defendants 
restraining  the  granting  and  continuance  of  licenses  under  said 
ordinance  to  a  "peddler  from  stand,"  and  especially  the  con- 
tinuance of  a  license  to  Mr.  Massa,  restraining  him  from  oc- 
cupying said  stand.  There  is  attached  to  said  petition  a  copy 
of  the  license  issued  to  him. 

To  this  petition  the  city  and  its  auditor  file  a  joint  answer 
admitting  the  issuance  of  a  peddler's  stand  license  to  Massa, 
denying,  however,  that  said  license  assigned  to  him  the  north- 
west corner  of  Fifth  and  Walnut  streets  and  twelve  feet  on 
Walnut  street,  or  any  other  locality  whatsoever,  but  admits 
that  said  stand  has  for  seventeen  years  been  occupied  in  said 


422  SUPERIOR  COURT  OP  CINCINNATI. 

United  Cigar  Stores  Co.  v.  Von  Bargen.  [Vol.  VI I,  N.  S. 

locality  for  said  purpose,  and  finally  denies  that  such  stand  is 
in  any  way  a  nuisance  or  impediment  to  travel.  The  answer 
further  alleges  that  ithe  occupancy  of  the  inside  strip  of  said 
sidewalk  is  by  virtue  of  a  lease  subsisting  between  the  defend- 
ant, Joseph  Massa,  and  the  Owl  Drug  Company,  the  owner  of 
the  property  on  which  said  stand  abuts.  The  defendants  finally 
deny  any  abuse  of  corporate  power  on  the  part  of  the  city,  or 
that  said  license  is  invalid. 

The  defendant,  Joseph  Massa,  interposes  a  demurrer  to  the 
petition  on  three  grounds,  namely:  that  the  United  Cigar 
Stores  Company,  a  corporation  under  the  laws  of  New  Jersey, 
has  not  the  legal  capacity  to  institute  this  proceeding;  that 
(here  is  a  defect  of  parties  defendant,  and  that  the  petition  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action. 

This  decision  is  upon  the  demurrer. 

The  first  ground  for  demurrer  is  based  upon  'the  legal  incapac- 
ity of  the  plaintiff,  a  foreign  corporation,  to  institute  this  pro- 
ceeding, Section  1778  (1536-668),  Revised  Statutes,  provides 
that  any  tax-payer  may  institute  such  suit,  the  city  solicitor 
upon  .request  failing  to  do  so.  No  distinction  is  made  by  law 
in  the  filing  of  such  suit,  as  to  whether  the  plaintiff  is  a  person 
or  a  corporation,  and  whether  such  corporation  is  resident  or 
foreign.  All  that  is  required  is  that  the  party  instituting  the 
suit  shall  be  a  tax-payer.  The  Elyria  case  (57  0.  S.,  374}  is 
in  point  as  to  the  question  of  corporations  bringing  such  suit, 
and  I  can  not  see  any  distinction  between  a  foreign  and  a  resi- 
dent corporation  as  long  as  such  corporation  is,  in  the  words  of 
the  statute,  a  tax-payer.  The  question  of  interstate  comity 
does  not  arise  in  this  case. 

The  second  proposition,  that  there  is  a  defeet  of  parties  de- 
fendant, is  not  urged  by  demurrant,  and  an  examination  of  the 
pleadings  does  not  disclose  a  defeet  of  parties  defendant. 

I  come  now  to  the  third  ground,  that  the  petition  does  not 
state  facta  sufficient  to  eonstituite  a  cause  of  action.  The  peti- 
tioner alleges  that  the  city  has  been  guilty  of  an  abuse  of  its 
corporate  authority  by  issuing  licenses  to  peddlers  from  stands 
in  accordance  with  the  ordinance  already  cited.  It  is  axiomatic 
American  law  that  a  municipality  has  only  such  powers  as  are 


NISI  PRIUS  REPORTS— NEW  SERIES.  423 

1908.]  United  Cigar  Stores  Co.  v.  Von  Bargen. 

granted  to  it  by  the  state.  Section  2669  (1536-327),  Revised 
Statutes,  authorizes  municipal  councils  to  license  peddlers.  This 
is  a  generic  term.  It  is  certainly  opposed  to  permanency,  such 
permanency  as  a  structure  on  a  sidewalk  built  against  the 
house  used  for  the  purpose  of  vending  wares.  The  action  of 
him  receiving  this  license  in  locating  in  a  structure  on  the  side- 
walk and  using  it  for  a  permanent  storeroom,  the  city  author- 
ities permitting  it,  stamps  this  "peddler  stands"  license  with 
its  true  quality,  although  the  same  does  not  specifically  assign 
any  locality  to  its  recipient.  The  word  peddler  has  a  well  de- 
fined meaning.  It  means  an  ambulatory  person,  not  a  merchant 
with  a  fixed  location,  and  council  has  no  authority  to  add  to  or 
widen  this  meaning,  unless  directly  authorized  by  the  state  so 
to  do.     Mays  v,  Cincinnati,  1  0.  S.,  269. 

The  fact  that  the  stand,  as  alleged  in  the  city's  answer,  has 
been  in  that  locality  for  seventeen  years  does  not  create  any 
tights  against  the  city  {Elster  v.  Springfield?  49  0.  S.,  82).  It 
is  the  city's  duty  to  keep  its  sidewalks  and  streets  free  from 
obstruction,  and  not  to  license  individuals  to  occupy  them  and 
obstruct  public  travel. 

Arguments  relative  to  markets,  etc.,  are  not  aualagous  nor 
in  point,  for  the  Ohio  statutes  expressly  distinguish  market 
places  from  streets,  and  permanent  stands  in  markets  are  au- 
thorized by  statute.  It  is  the  policy  of  our  law  to  keep  our 
public  places  free  from  obstruction,  and  this  duty  is  cast  upon 
the  municipal  authorities.  They  can  not  evade  it,  much  less 
destroy  it,  by  illegally  enlarging  the  terms  of  the  statute  by  the 
passage  of  an  ordinance.  It  is  true  the  city  alleges  in  its  an- 
swer that  it  does  not  authorize  the  use  of  the  sidewalk  or  any 
part  thereof  for  private  business  purposes,  that  this  license 
designates  no  permanent  place,  and  if  so  occupied  this  is  done 
by  private  arrangement  between  the  owner  of  the  premises  and 
the  peddler  from  the  stand,  but  this  is  a  mere  subterfuge.  Thi> 
municipal  authorities  instead  of  keeping  the  sidewalk  free 
from  obstruction  stand  idly  by  and  see  it  thus  occupied  for 
seventeen  years.  The  owner  of  the  property  has  no  greater 
right  in  the  sidewalk  in  front  of  his  premises  than  the  gen- 


424       MONTGOMERY  COUNTY  COMMON  PLEAS. 

Stasel,  Receiver,  v.  Savings  Bank.         [Vol.  XI.  N.  S. 

eral  public.  He  has  a  right  to  have  it  free  from  obstruction 
the  same  as  the  t>eopleI  so  that  anybody  may  freely  enter  his 
premises.  The  general  public  has  the  right  to  have  the  sidewalk 
in  front  of  his  premises  free  from  obstruction  for  the  general 
purposes  of  travel.  The  rights  and  duties  of  both  the  owner 
of  the  premises,  and  the  general  public  in  said  sidewalk  are  re- 
ciprocal. The  owner  possesses  but  an  easement,  and  so  does  the 
general  public.  Branahan  v.  Hotel  Co.,  39  0.  S-,  334. 
The  demurrer  is  overruled. 


SET-OFF  ON  CLAM  OF  INSOLVENT  BANK. 

Common  Pleas  Court  of  Licking  County. 

A.  A.  Stasel,  Receiver  op  Toe  Newark  Savings  Bank  Co., 

v.  Q.  C.  Daugherty. 

Decided,  January  Term,  1907. 

Banks  and   Banking — Receiver—  Set-off— Promissory   Note — Right*    of 

Depositor, 
The  maker  ot  a  promissory  note  held  by  the  receiver  of  an  insolvent 
bank  has  no   right  to  set  off  a   deposit   in   the  bank  standing 
In  his  name  as  executor. 
A.  A.  Stasel,  for  plaintiff. 
Kibler  &  Montgomery,  contra. 

Seward,  J.  (orally). 

This  case  is  submitted  to  the  court  upon  the  pleadings  and 
the  evidence.  I  might  say  that  there  is,  substantially,  an  agreed 
statement  of  facts  in  the  case. 

This  is  a  suit  brought  by  Stasel.  as  receiver,  v.  Daugherty  to 
recover  on  a  promissory  note.  Daugherty  files  an  answer  set- 
ting up  what  is  claimed  to  be  a  set-off,  he  having  been  a  de- 
positor in  the  bank  of  which  Stasel  is  receiver.  That  deposit  is 
in  the  name  of  Daugherty,  as  executor  of  Iliekey. 

The  question  is  whether  Daugherty  has  a  right  to  set  off  this 
claim  which  he  has  against  the  bank  as  executor. 

The  court  does  not  think  he  has.  and  there  may  be  a  judg- 
ment for  (he  plaintiff.     Motion  for  new  trial  overruled. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Telephone  Co.  v.  Telephone  Go. 


VALIDITY  OF  CONTRACTS  rOR.  EXCLUSIVE  EXCHANGE  OF 
BUSINESS  BETWEEN  TELEPHONE  COMPANIES. 

Common  Pleas  Court  of  Van  Wert  County. 

The  United  States  Telephone  Company  v.  The  Middlbpoint 
Home  Telephone  Company. 

Decided,  October,  1908. 

Telephones — Contract*  for  Exclusive  Exchange  of  Toll  Business— Not 
In  Restraint  of  Trade — Combinations  of  Telephone  Companies  Dis- 
tinguished from,  Combinations  of  Gas  and  Btreet  Railway  Com- 
panies— Evidence  as  to  Circumstances  Surrounding  Slaking  of 
Contract  Admissi  ble — Monopo  ly — M « tun  lit  y — Injunct  w  n — Sections 
3455,  3*70  and  Sill. 

1.  In  an  action  to  determine  the  validity  Of  a  contract  between   two 

telephone  companies,  evidence  of  the  condition  of  the  telephone 
business  within  the  field  In  which  the  companies  were  operating 
Is  admissible  for  the  purpose  of  showing  the  tendency  and  effect 
of  the  agreement  which  was  made. ' 

2.  Where  the  prayer  or  the  petition  In  such  a  case  le  for  an  Injunction 

restraining  the  defendant  from  violating  the  contract  by  routing 
Its  business  over  lines  belonging  to  a  third  company,  Instead  of 
sending  it  over  the  lines  of  the  plaintiff,  the  action  Is  not  open 
to  the  objection  tbat  it  Is  an  attempt  to  enforce  a  contract  by 
mandatory  Injunction  and  will  He. 

3.  Inasmuch  as  combinations  of  telephone  exchanges  and  telephone 

lines  are  necessary  In  order  to  afford  proper  facilities  for  tbe  pub- 
lic, and  the  Legislature  has  recognized  this  necessity  by  provision 
for  mergers  and  combinations  of  such  companies,  a  contract  be- 
tween two  telephone  companies  which  provides  for  an  exclusive 
Interchange  of  business  must  be  distinguished  from  contracts  ef- 
fecting mergers  of  gas  or  street  railway  companies,  and  la  not  void 
because  of  a  tendency  to  create  a  monopoly  or  subversive  of  the 
public  Interest  and  benefit;  and  where  a  system  of  lines  has  been 
built  up  on  the  faith  of  such  an  Interchange  of  business,  the 
claim  on  the  part  of  the  defendant  company  that  the  contract 
Is  In  restraint  of  trade  and  should  be  abrogated  Is  not  well  founded. 

0.  M.  Saltzgaber  and  Cable  &  Parmenter,  for  plaintiff. 
J.  F.  Lindemann,  Dailey  &  Alien,  W.  B.  Mann  and  D.  K, 
Tone,  contra. 


426  VAN  WERT  COUNTY  COMMON  PLEAS. 

Telephone  Go.  v.  Telephone  Co.  [Vol.  XI.  N.  S. 

Matthias,  J. 

The  questions  presented  in  this  ease  upon  a  motion  to  dis- 
solve the  injunction  heretofore  granted,  upon  the  application  of 
the  plaintiff,  are  almost  entirely  questions  of  law.  Although 
more  than  two  days  were  consumed  in  taking  evidence  there 
are  but  few  questions  of  fact  to  he  considered. 

The  plaintiff  seeks  to  have  the  defendant  enjoined  from  a 
continued  and  continual  violation  of  the  terms  of  its  contract 
with  the  defendant,  by  reason  of  which  violation  toll  business 
which,  under  the  terms  of  said  contract  should  be  transmitted 
over  the  lines  of  the  plaintiff,  has  been  diverted  and  will  con- 
tinue to  be  diverted,  by  the  defendant,  to  the  lines  of  the  Bell 
system,  so-called.  The  defendant  contends  that  the  plaintiff  is 
not  entitled  to  the  remedy  it  seeks  because  the  contract  upon 
which  it  relies  is  contrary  to  public  policy  and  void,  for  the 
reason  that  it  tends  to  create  a  monopoly,  and  also  prohibits 
the  defendant  company  from  discharging  the  obligation  which 
it  owes  to  the  public,  and  for  the  further  reason  that  said  con- 
tract lacks  mutuality  and  is  oppressive  and  unjust. 

A  preliminary  question  arose  during  the  hearing  of  the  case 
aud  presents  itself  at  this  time — whether  evidence  of  the  con- 
ditions relative  to  the  telephone  business  in  Middlepoint  and 
vicinity,  about  and  before  the  time  said  contract  was  made, 
could  be  received  and  considered  by  the  court  in  determining 
the  validity  of  the  contract,  on  the  theory  that  it  shows  the 
real  tendency  and  effect  thereof?  The  court  permitted  such 
evidence  to  be  introduced,  and  we  are  still  of  the  opinion  that 
it  should  be  considered  for  the  purpose  stated. 

The  United  States  Telephone  Company  was  organized  in 
1898,  and  incorporated  under  the  laws  of  this  state,  the  powers 
thereby  granted  being  those  of  "constructing,  purchasing,  ac- 
quiring, owning  and  operating  toll  lines  for  the  transmission 
of  telephonic  communications  from  and  to  various  cities,  towns,t 
villages  and  points  within  and  beyond  the  state  of  Ohio,  and  to 
connect  said  toll  lines  with  telephone  exchanges  and  telephone 
devices  in  said  several  places." 

At  that  time  and  for  sometime  thereafter  numerous  tele- 
phone exchanges,  being  so-called  independent  exchanges,  were 


NISI  PRIUS  REPORTS— NEW  SERIES.  427 

1908,]  Telephone  Co.  v.  Telephone  Co. 

in  operation  throughout  Ohio  and,  as  the  evidence  shows,  es- 
pecially in  northwestern  Ohio,  said  exchanges  then  and  for 
sometime  thereafter  were  isolated,  there  being  no  connection 
between  them  by  means  of  toll  or  long  distance  lines  or  other- 
wise. Long  distance  lines  were  then  and  long  theretofore  had 
been  in  operation  by  the  Central  Union  Telephone  Company, 
and  other  companies  allied  therewith,  together  known  as  the 
Bell  system.  It  was  impossible  however  for  such  independent 
exchanges  to  procure  service  over  said  Bell  lines,  and  it  was  to 
meet  such  emergency  and  to  supply  the  demand  arising  from 
such  conditions  that  the  United  States  Company  was  organized. 
Said  United  States  Company  thereupon  entered  into  a  contract 
with  said  independent  exchanges,  and  undertook  to  construct 
toll  lines  connecting  such  exchanges  and  affording  their  sub- 
scribers long  distance  service  which  theretofore  had  been  denied 
them.  Such  lines,  together  with  the  exchanges  connected  there- 
by, became  known  as  the  Independent  system  and  it  appears 
that,  until  the  happening  of  the  things  herein  complained  of  by 
the  plaintiff,  said  systems — Bell  and  Independent— had  been 
maintained  separate  and  distinet  from  each  other,  and  they  have 
been  and  are  competitors  for  long  distance  business. 

Since  its  organization  the  plaintiff  has  entered  into  contract, 
similar  to  that  in  question,  with  nearly  300  independent  com- 
panies operating  exchanges,  and  claims  that  its  investment  of 
large  sums  of  money  in  constructing,  extending  and  maintain- 
ing its  lines  to  meet  .the  demands  of  the  public  has  been  made  be- 
cause of,  and  upon  the  faith  of,  said  contracts,  including  the 
one  in  question  here. 

The  defendant  is  the  successor  of  the  Middlepoint  Southern 
Telephone  Company,  with  which  in  1902  the  plaintiff  entered 
into  a  contract  similar  in  its  terms  to  that  involved  herein,  and 
two  years  later  when  said  Middlepoint  exchange  was  taken  over 
by  the  defendant  a  new  contract  was  made.  Copies  of  said  con- 
tracts are  attached  to  the  petition. 

The  terms  of  said  contract  are  such  that  the  parties  thereto 
agreed  upon  a  complete  interchange  of  business  between  them 
upon  the  basis  of  compensation  therein  stated,  and  the  defend- 
ant thereby  became  a  part  of  the  system  comprised  of  the  in- 


428  VAN  WERT  COUNTY  GOMMON  PLEAS. 

Telephone  Co.  v.  Telephone  Co.  [Vol.  VII,  N.  S. 

dependent  exchangee  of  Ohio  and  adjoining  states,  linked  to- 
gether by  the  toll  lines  of  the  plaintiff. 

The  value  of  such  agreement  to  the  parties  as  well  as  all  ex- 
changes connected  with  said  system,  and  hence  to  the  sub- 
scribers (which  the  evidence  shows  constituted  a  great  portion 
of  the  public),  depended  upon  the  permanency  of  the  plan  of 
operation,  and  that  was  attempted  to  be  secured  by  one  of  the 
provisions  of  the  contract.  It  was  agreed  that  neither  company 
should  enter  into  any  contract  with  any  other  person,  firm  or 
corporation  "whereby  the  rights,  privileges  or  advantages  here- 
in acquired  by  either  party,  may  be  impaired,"  and  it  was  fur- 
ther agreed  that  such  contract  should  remain  in  force  for  and 
during  the  period  of  99  years.  The  contract  of  1902  contained 
a  further  provision  which  was  not  incorporated  in  the  later 
contract,  whereby  the  Middlepoint  company  agreed  to  withdraw 
its  lines  from  the  village  of  Wetsel  and  also  Delphos,  and  fur- 
ther agreed  not  to  establish  any  toll  station  or  stations  where  the 
plaintiff  then  had  or  should  thereafter  establish  a  toll  station, 
or  to  build  to  or  connect  with  any  other  telephone  company  for 
the  exchange  of  toll  business. 

Defendant  now  complains  of  the  exclusive  provisions  of  said 
contract  and  of  the  period  of  its  duration,  and  insists  that  it 
can  not  be  enforced  by  mandatory  injunction.  We  do  not  agree 
with  the  view  taken  by  counsel  for  the  defendant  that  the  action 
brought  by  plaintiff  is  one  for  the  specific  enforcement  of  a 
contract.  Plaintiff  does  not  ask  nor  seek  a  mandatory  injunc- 
tion. It  only  prays  that  the  defendant  be  restrained  from  com- 
mitting the  breach  specified,  the  particular  violation  which  con- 
sists in  carrying  out  a  contract  with  the  Central  Union  Company 
to  transmit  messages  over  its  lines  which  it  has  agreed  to  send 
over  the  lines  of  the  plaintiff.  On  the  other  hand  the  defend- 
ant is  not  here  seeking  a  recission  of  its  contract  with  the  plaint- 
iff, but  on  the  contrary  it  quite  apparently  desires  to  retain 
all  the  benefits,  privileges  and  advantages  secured  to  it  by  that 
contract. 

Plaintiff  and  defendant  co-operated  harmoniously  in  pur- 
suance of  and  in  compliance  with  the  terms  of  said  contract. 


NISI  PRIUS  REPORTS— NEW  SERIES.  428 

1S08.]  Telephone  Co.  v.  Telephone  Co. 

until  December  23d,  1907,  when  the  defendant,  agreeably  to 
the  provisions  of  a  contract  theretofore  made  with  the  Central 
Union  Telephone  Company,  connected  the  lines  of  the  latter 
company  with  its  switch-board  and  undertook  to  act  as  toll 
agent  for  the  said  Central  Union  Company,  transmitting  mes- 
sages over  the  lines  of  said  company  and  receiving  all  messages 
from  the  lines  thereof  which  were  destined  to  Middlepoint.  Ou 
February  22d,  1908,  the  temporary  injunction,  now  sought 
to  be  dissolved,  was  granted,  restraining  the  defendant  from 
maintaining  such  connection  with  the  Central  Union  lines. 

Is.  the  contract  between  the  plaintiff  and  defendant  void  be- 
cause it  is  contrary  to  publie  policy  and  prejudicial  to  the  pub- 
lic welfare?  "Whether  the  contract  is  one  whieh  tends  to  create 
a  monopoly  and  for  such  reason  is  void,  we  find  depends  much 
upon  the  facts.  An  agreement  may  be  void  because  of  its 
tendency  to  create  monopoly,  when  applied  to  certain  classes  of 
business,  and  be  quit*  the  contrary  when  applied  to  the  tele- 
phone enterprise.  Some  combination  of  telephone  exchanges  and 
of  telephone  lines  is  absolutely  necessary  to  a  proper  enjoy- 
ment thereof  by  the  public.  The  development  of  the  Independent 
system  whieh  we  have  heretofore  noticed  is  an  illustration  of 
that  fact.  The  Legislature  of  Ohio  recognized  the  necessity  for 
such  a  merger  and  combinations  when  it  enacted  Sections  3455. 
3470  and  3471  of  the  Revised  Statutes  of  Ohio,  and  the  sort  of 
merger  effected  by  the  contract  in  question  seems  to  have  been 
contemplated  by  the  law  making  power  of  the  state. 

The  Middlepoint  Company  was  organized  for  a  purpose  quite 
different  from  that  of  the  plaintiff.  The  defendant  was  or- 
ganized for  the  purpose  of  acquiring,  constructing,  owning  and 
operating  a  telephone  exchange  in  the  village  of  Middlepoint, 
Ohio,  and  to  supply  telephone  service  to  the  people  of  Middle- 
point  and  vicinity.  The  plaintiff  and  defendant  were  not 
competitors;  the  nature  of  their  business  made  them  natural 
and  necessary  co-operators — the  one  providing  local  service  to 
its  subscribers,  while  the  other  provided  toll  and  long  distance 
service  for  said  exchange,  whieh  otherwise  would  have  been 
isolated,  and  thus  brought  all  the  subscribers  into  communica- 


430  VAN  WERT  COUNTY  COMMON  PLEAS. 

Telephone  Co.  v.  Telephone  Co.  [Vol.  VII,  N.  S. 

tion  with  the  subscribers  of  all  other  independent  exchanges.  The 
merger  or  combination,  if  such  it  may  be  termed,  was  natural, 
for  it  was  a  matter  of  necessity  to  both  companies,  and  of  un- 
questioned benefit  to  the  public.  When  the  defendant  by  said 
contract  procured  the  benefits  and  advantages  of  toll  service 
for  its  subscribers,  it  went  further  than  it  was  required  to  go 
to  discharge  its  full  duty  under  the  terms  of  its  charter.  There 
was  no  legal  obligation  resting  upon  the  defendant  to  do  more 
than  conduct  a  local  exchange.  It  is  also  clear  that  the  defend- 
ant could  not  be  compelled  to  make  such  connections  with  the 
plaintiff  or  with  any  other  company,  nor  could  the  defendant 
require  any  toll  company  to  connect  with  its  switch-board  and 
furnish  its  subscribers  long  distance  service.  The  defendant 
was  not  required  to  transmit  messages  beyond  its  own  lines, 
but  it  may  do  so  and  by  such  lines  as  it  chooses,  and  when  an 
exclusive  contract  is  made  with  such  company  it  can  not  be  cor- 
rectly stated  that  such  contract  is  in  the  restraint  of  trade.  The 
evidence  is  convincing  that  such  contracts  have  not  stifled  com- 
petition, nor  ib  that  their  tendency.  On  the  contrary  they  have 
created  competition,  as  is  shown  by  the  mere  presence  of  this 
ease  in  court. 

The  parallel  which  is  attempted  to  be  drawn  with  the  line 
of  cases  dealing  with  the  combination  of  gas  and  street  railway 
companies  is  not  justified  and  the  rule  governing  such  con- 
tracts we  regard  as  inapplicable.  A  Large  number  of  such  cases 
have  been  cited.  We  shall  not  take  time  to  discuss  them  severally 
and  point  out  the  distinction  in  each.  It  is  sufficient  to  say  that 
in  such  cases  it  clearly  appears  that  the  contracts  involved 
were  contrary  to  public  policy  because  of  the  restraint  of  trade ; 
while  in  case  at  bar  the  benefit  of  such  agreement  to  the  public 
is  apparent.  The  objection  to  the  contract  in  question  most 
insistently  urged  by  counsel  for  the  defense  is,  that  the  toll 
connection  with  the  Bell  system  which  the  plaintiff  seeks  to 
enjoin  is  a  service  "which  the  public  demands  within  the 
county  of  Van  Wert  required."  This  is  not  shown  byitheevi- 
deuee.  The  best  evidence  upon  this  point  is  the  business  done 
with  the  Bell  company  during  the  two  months  such  connection 


NISI  PRIUS  REPORTS— NEW  SERIES.  431 

1908.]  Telephone  Co.  v.  Telephone  Co. 

was  maintained.  It  appears  that  during  such  period  practically 
all  the  business  routed  over  the  Bell  line  was  to  and  from  point, 
reached  by  plaintiff's  lines,  the  service  over  which  had  been 
reasonably  satisfactory.  Such  serviee  was  therefore  not  re- 
quired to  meet  the  demands  of  the  public,  for  the  public  un- 
questionably theretofore  had  the  benefit  of  the  same  service,  and 
the  additional  benefits  conferred  by  the  dual  connection  were 
chiefly  upon  the  Central  Union  Company. 

A  line  of  eases  has  been  cited  and  quotations  freely  made 
therefrom  by  counsel,  which  hold  that  a  contract  for  the  ex- 
clusive right-of-way  over  land  can  not  be  enforced.  Such  is  the 
unquestioned  rule,  but  it  is  not  applicable  to  the  issue  presented 
in  this  case.  No  man  can  by  contract  or  otherwise  free  his 
land  from  the  liability  of  eminent  domain,  but  that  does  not 
argue  that  a  telephone  company  can  not  refuse  to  enter  into  a 
contract  with  another  company  to  solicit  and  transmit  over  its 
line  long  distance  messages,  nor  does  it  argue  that  it  can  not 
enter  into  a  binding  contract  to  send  all  messages  from  its  ex- 
change to  points  beyond  its  own  line  over  the  line  of  another 
company.  , .     ■ 

But  it  is  argued  that  the  defendant  should  be  permitted  to 
furnish  service  for  its  patrons  to  points  not  now  reached  by  the 
lines  of  the  plaintiff.  We  think  it  should  be  made  possible  so 
to  do.  But  it  has  been  shown  by  the  evidence  and  demonstrated 
by  counsel  for  the  defendants  in  argument  that  such  limited 
operation  is  impossible.  Counsel  have  skillfully  argued  that 
the  defendant  under  the  terms  of  said  contract  is  not  forbidden 
to  arrange  with  the  Central  Union  Company  for  the  transmis- 
sion of  messages  to  and  from  points  not  reached  by  the  United 
States  system ;  that  such  messages  can  not  be  transmitted  with- 
out connecting  the  line  of  the  Bell  system  with  the  defend- 
ant's switch-board;  that  when  such  connection  is  thus  made 
with  the  switch-board  of  the  defendant  any  restriction  or 
limitation  as  to  the  business  to  be  dbne  with  the  Bell  system 
would  require  the  constant  control  and  supervision  of  the  court. 
Conclusion :  therefore  there  can  be  no  limitation  or  restriction 
whatever  and  the  injunction  must  be  dissolved. 


482  VAN  WERT  COUNTY  COMMON  PLEAS. 

Telephone  Co.  v.  Telephone  Go.  [Vol.  Til,  N.  S. 

The  evidence  shows  a  comparatively  email  demand  by  the  pa- 
trons of  the  Middlepoint  company  for  service  other  than  that  fur- 
nished by  the  Independent  system ;  that  the  Central  Union  Com- 
pany is  able  to  and  has  heretofore  provided  service  for  those  de- 
manding it  and  that  it  now  maintains  a  toll  booth  in  Middlepoint. 
In  order  that  the  limited  demand  for  such  service  may  be  met  more 
conveniently  by  plaintiff's  competitor,  should  the  contract  be- 
tween the  plaintiff  and  the  defendant  be  avoided  and  the  entire 
system  known  as  the  Independent  system  be  thrown  open  to 
its  competitor  t  This  is  what  we  are  called  upon  to  determine, 
for  if  such  connection  can  be  made  and  maintained  with  the 
Middlepoint  exchange,  it  can  be  done  throughout  the  field 
occupied  by  the  Independent  system.  Should  this  be  done  in 
view  of  the  f  aots  presented  T  . 

The  defendant  as  we  have  seen  does  not  seek  to  avoid  the 
contract  in  question,  but  apparently  desires  to  retain  all  the 
benefits  and  advantages  secured  to  it  thereby.  With  the  dual 
connection  we  have  seen  that  but  two  or  three  of  the  points 
from  or  to  which  messages  were  transmitted  over  the  Bell 
lines  were  not  reached  by  the  United  States  Company  with 
reasonably  satisfactory  service.  Then  the  defendant  company, 
if  such  dual  connection  be  maintained  regardless  of  the  con- 
tract with  the  plaintiff,  is  placed  in  the  position  of  an  agent 
serving  two  masters  whose  interests  are  necessarily  antagonistic. 
It  is  as  true  today  as  when  first  spoken  in  ithe  parable  and  has 
become  a  fundamental  rule  that,  "No  servant  can  serve  two 
masters;  for  either  he  will  hate  the  one  and  love  the  other; 
or  else  he  will  hold  to  the  one  and  despise  the  other."  Corpora- 
tions are  controlled  and  managed  by  men,  and  what  is  true 
of  individuals  is  true  of  corporations.  There  can  be  no  ques- 
tion upon  a  consideration  of  the  evidence  before  us  but  that, 
if  the  contract  with  the  Central  Union  Company  be  performed, 
the  end  will  be  accomplished,  whether  or  not  that  be  the  present 
purpose  and  aim  of  the 'defendant,  of  diverting  from  the  plaint- 
iff the  business  to  which  it  is  entitled  under'  the  terms 
of  it«  contract,  not  only  business  originating  at  Middlepoint, 
but  business  originating  at  all  points  reached  by  the  Bell  sys- 


NISI  PRIUS  REPORTS—NEW  SERIES.  488 

1908.]  Telephone  Co.  v.  Telephone  Co. 

tem  and  destined  to  Middlepoint.  Such  business  may  be  di- 
verted by  the  operator  without  the  knowledge  of  the  subscriber 
or  of  the  company.  The  conclusion  is  justified  by  the  evidence 
before  us  that  the  ultimate  result  would  not  be  beneficial  either 
to  the  Middlepoint  company  or  the  general  public. 

The  contract  in  question  is  not  void  because  of  any  tendency 
to  create  a  monopoly.  The  line  of  decisions  relative  to  the  com- 
bination of  gas  and  street  car  companies,  as  heretofore  stated, 
we  have  found  inapplicable  to  the  issues  here  presented.  But 
few  cases  have  been  passed  upon  by  the  court  which  called  for 
any  determination  of  the  rights  and  liabilities  of  telephone  com- 
panies to  each  other  and  to  the  public.  The  Supreme  Court  of  this 
state  in  the  ease  of  State,  ex  rel,  v.  Telephone  Company,  36  0. 
S.,  296,  goes  no  further  than  to  hold  that  a  telephone  company 
shall  not  discriminate  in  its  service  against  any  member  of  the 
general  public  who  is  willing  and  ready  to  comply  with  the 
conditions  imposed  upon  all  other  patrons  or  customers  who  are 
in  like  circumstances.  This  decision  is  not  in  the  least  incon- 
sistent with  the  view  that  a  telephone  company,  in  the  absence  of 
specific  legislation,  can  not  require  a  competing  company  to 
connect  its  entire  system  with  the  switch-board  of  the  other.  The 
import  and  effect  of  the  decision  of  Judge  Parker  in  People.,  ex 
rel,  v.  Hudson  River  Telephone  Company,  19  Abbotts'  New 
Cases,  479,  is  quite  similar  to  that  of  our  Supreme  Court. 

A  railroad  company  to  secure  the  necessary  investments  of 
capital  in  the  discharge  of  the  duty  of  furnishing  sleeping  car 
facilities  to  the  public  may  secure  to  the  sleeping  car  company 
freedom  from  competition,  and  the  same  principle  applies  to 
simitar  exclusive  contracts  with  express  companies  and  stock 
yard  delivery  companies.  See  United  States  v.  Addyston  Pipe 
&  Steel  Co.,  85  Fed.,   287,  and  cases  there  cited. 

The  contract  in  question  is  not  subversive  of  the  public  in- 
terest and  benefit  and  is  not  in  restraint  of  trade.  The  desire  of 
persons  to  have  use  of  other  telephone  lines  would  not  justify 
the  abrogation  of  this  contract.  When  it  and  other  similar  con- 
tracts were  made  a  toll  and  long  distance  system  connecting  the 
many  independent  exchanges  of  this  and  adjoining  states  was 


43i  VAN  "WERT  COUNTY  COMMON  PLEAS. 

Telephone  Co.  v.  Telephone  Co.  [Vol.  VII,  N.  S. 

formed.  Its  formation  would  not  have  been  justified  otherwise, 
and  it  seems  far  from  equitable  at  this  time  when  this  system  has 
been  built  up  and  extended  upon  the  faith  of  said  contracts  and 
in  reliance  thereon,  and  such  investments  have  materially  in- 
creased the  value  of  the  local  exchanges  and  so  widely  benefited 
the  public,  bringing  this  modern  convenience  to  almost  every 
household,  to  absolutely  disregard  the  obligations  of  said  con- 
tracts and  brush  them  aside  upon  the  theory  that  they  are  in  re- 
straint of  trade,  because  it  now  seems  possible  to  secure  access 
to  the  lines  of  a  competing  company  which  was  denied  until  the 
last  two  years. 

Defendant  has  not  only  urged  that  such  contract  is  against 
public  policy  and  in  restraint  of  trade  but  contends  also  that 
it  lacks  mutuality  and  is  oppressive  and  unjust.  In  support  of 
the  claim  of  want  of  mutuality,  counsel  seem  to  rely  chiefly 
upon  the  clause  of  said  contract  which  permits  the  plaintiff  to 
fix  the  rates  of  toll  service.  The  plaintiff  does  not  determine  the 
proportion  of  such  rates  which  the  defendant  is  to  receive ; 
that  is  fixed  by  the  contract.  We  regard  ithe  contract  as  no 
stronger  or  weaker  because  of  the  clause  referred  to  for  the  rea- 
son that  .the  provision  is  implied  that  the  rates  must  at  all  times 
be  reasonable  and,  "the  business  ia  of  such  a  public  character 
that  it  is  entirely  subject  to  legislative  regulation." 

The  motion  of  the  defendant  to  dissolve  the  temporary  in- 
junction heretofore  granted  herein  is  overruled. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Wilson  v.  Wilson  et  al. 


TESTIMONY  BY  A  DEVISEE  W  A  WLL  CONTEST. 

Common  Pleas  Court  of  Licking  County. 

Joseph  B.  Wilson  v.  Prank  Wilson  et  al. 

Decided,  April  Term,  1908. 

Will* — Action  to  Context — Charge  of  Court  as  to  Preponderance  of 
Evidence  and  Prima  Facie  Case — Admission  of  Deeds  in  Evidence 
— Failure  to  Prove  Execution  of  Deed— Right  of  Devisee  to  Testify 
— Section  oiktS. 

1.  Deeds  executed  by  a  testator  may  be  admitted  Id  evidence  In  an 

action  to  set  aside  his  will,  where  the  purpose  Is  to  throw  light  on 
the  mental  capacity  of  the  testator  by  showing  his  method  of 
transacting  business  and  the  nature  of  the  business  transacted  by 
him  at  about  the  time  of  the  making  of  the  will. 

2.  A  plaintiff  in  a  will  contest,  although  a  son  of  the  testator  and  a 

devisee  under  the  will,  is  a  competent  witness  to  testify  to  acts 
of  the  testator  and  the  manner  In  which  those  acts  were  per- 
formed. 

Kibler  &  Montgomery,  for  plaintiff. 

A.  A.  Stasel  and  F lory  &  Flory,  contra. 

Seward,  J.  (orally). 

This  case  is  submitted  to  the  court  upon  a  motion  for  a  new- 
trial.  It  is  an  action  brought  to  contest  the  will  of  James  P. 
Wilson.  It  was  tried  to  a  jury,  and  resulted  in  a  verdict  set- 
ting aside  the  will  of  James  P.  Wilson.  The  charges  made  in 
the  petition  are  undue  influence  and  mental  incapacity.  The 
grounds  of  the  motion  for  a  new  trial  are,  first,  for  errors  in  the 
charge;  second,  error  in  the  exclusion  of  a  deed,  which  was 
offered  in  evidence,  and  was  excluded  because  it  was  not  shown 
to  have  been  executed  by  James  P.  Wilson;  third,  for  permit- 
ting the  plaintiff  to  testify  as  to  the  mental  capacity  of  the 
testator. 

Several  deeds  were  permitted  to  go  to  the  jury,  simply  for 
the  purpose  of  showing  that  James  P.  Wilson  had  been  transact- 
ing business,  and  the  nature  of  the  business;  what  he  did  at 
that  time,  and  how  the  business  was  transacted.    What  he  did 


LICKING  COUNTY  COMMON  PLEAS. 


.  Wilson  et  al.  [Vol.  VII,  N.  S. 


might  reflect  upon  his  mental  capacity,  and  the  court  per- 
mitted his  acts  to  go  to  the  jury  for  that  purpose  alone.  One 
deed  to  a  man  named  Stare,  I  believe,  was  offered  in  evidence. 
Objection  was  raised  to  the  introduction  of  that  deed;  in  fact, 
objections  to  all  of  these  deeds  were  made,  first,  for  reasons  that 
they  were  incompetent  in  any  view  of  the  case.  The  court  did 
not  think  that  was  so.  It  thought  the  deeds  were  competent, 
to  show  the  nature  of  the  business  he  was  transacting,  and  how 
he  transacted  it;  whether  as  a  sane  and  mentally  capacitated 
man  would  transact  such  business  or  not.  Objection  was  made 
to  the  last  deed,  because  it  was  not  shown  that  it  was  executed 
by  James  P.  Wilson.  The  record  of  that  deed  was  introduced 
in  evidence,  and  it  is  claimed  now,  and  I  think  well  claimed, 
that,  if  there  is  a  record  of  the  deed,  duly  recorded  in  the  re- 
corder's office,  proof  of  its  execution  is  not  necessary;  and 
while  the  court  thinks  that,  possibly,  there  was  an  error  in  re- 
fusing to  permit  the  deed  to  go  in  evidence,  still  the  testimony 
was  purely  cumulative.  Several  other  deeds  were  introduced 
in  evidence,  to  the  same  import,  and  for  the  same  purpose,  and 
the  court  thinks  the  testimony  was  purely  cumulative;  and  it 
does  not  think  the  verdict  ought  to  be  set  aside  for  that  reason. 
As  to  the  first  ground  of  error,  the  charge  of  the  court,  it  is 
claimed  that  the  court  should  have  charged  the  jury  that  they 
must,  not  only  find  by  a  preponderance  of  the  evidence,  but  that 
there  must  be  sufficient  evidence  introduced  to  overcome  the 
prima  facie  case  made  by  the  introduction  of  the  will  and  its 
probate.  And  the  Supreme  Court  has  so  held.  They  so  held 
in  a  case  recently,  reported  on  May  18.  This  is  the  case  of 
Anne  S.  Hall  v.  Charles  F.  Q.  Bail.  There  is  no  complaint 
but  what  the  court  stated  the  law  properly  as  far  as  it  went, 
but  it  is  claimed  that  it  should  have  gone  further,  and  stated 
that  there  must  not  only  be  a  preponderance  of  the  evidence. 
but  sufficient  evidence  to  overcome  the  prima  facie. case  made 
by  the  introduction  of  the  probate  of  the  will.  This  is  the 
entry  of  the  Supreme  Court: 

"This  cause  came  on  to  be  heard  upon  the  transcript  of  the 
record  of  the  Circuit  Court  of  Hamilton  County,   and  was 


NISI  PRIUS  REPORTS— NEW  SERIES.  487 

1908.]  Wilson  v.  Wilson  et  al. 

argued  by  counsel.     On  consideration  whereof  it  is  ordered  and 

adjudged  by  this  court  that  the  judgment  of  the  said  circuit  court 
be  and  the  same  is  hereby  reversed,  for  the  reason  that  the  charge 
to  the  jury  is  misleading  and  erroneous,  in  that  it  nowhere 
distinctly  states  nor  sufficiently  emphasizes  that  the  order  of 
probate  of  the  will,  by  -the  probate  court,  raises  a  presumption 
that  the  will  so  probated  is  the  valid  will  and  testament  of 
Mercy  A.  Hall;  that  the  court  did  not  clearly  explain  to  the 
jury  the  legal  effect  of  the  provision  of  the  statute,  '  that  the 
order  of  probate  shall  be  prima  facie  evidence  of  due  attesta- 
tion, execution  and  validity  of  the  will  or  codicil.'  " 

It  is  claimed  that  the  court  did  not  do  that  in  this  ease. .  That 
the  jury  was  not  instructed,  as  they  should  have  been  instructed, 
that  the  order  of  probate  of  the  will  raises  a  presumption  that 
the  will  so  probated  is  the  valid  will  and  testament  of  James 
P.  Wilson. 

Now,  let  us  see  about  that.  I  think  the  court  gave  that  in 
that  exact  language,  or  with  a  slight  variation.  The  court  said 
to  the  jury,  before  the  argument: 

"Capacity  to  make  a  will  requires  that  James  P.  Wilson,  at 
the  time  the  will  was  made,  possessed  sufficient  mind  to  know 
and  understand  what  he  was  doing,  and  sufficient  mental  capac- 
ity to  know  and  understand  the  nature  and  extent  of  his  prop- 
erty, and  the  persons  who  would  naturally  be  the  objects  of 
his  bounty,  and  that  he  was  able  to  keep  those  things  in  mind 
long  enough  to  form  a  rational  judgment  in  regard  to  them." 

It  was  given  after  the  argument,  too: 

"You  are  instructed  that  the  order  of  the  probate  of  this  will 
is  prima  facie  evidence  of  the  due  attestation,  execution  and 
validity  of  such  will,  and  before  the  jury  is  entitled  to  return  a 
verdict  setting  aside  the  will,  they  must  be  able  to  find  that  the 
evidence  adduced  by  the  plaintiff  outweighs  both  the  evidence 
adduced  by  the  defendants  and  the  presumption  arising  from 
the  order  of  the  probate  court  admitting  the  will  to  probate  as 
the  valid  last  will  and  testament  of  James  P.  Wilson." 

So,  that  identical  proposition  went  to  the  jury  before  the  argu- 
ment, and  went  to  them,  in  their  retirement,  in  writing. 

Now,  as  to  the  question  of  permitting  Joseph  B.  Wilson,  the 
plaintiff,  who  was  interested  as  a  legatee,  to  testify  tvt  to  the 


488  LICKING  COUNTY  COMMON  PLEAS. 

Wilson  v.  Wilson  et  al.  [Vol.  VII,  N.  8. 

mental  capacity  of  his  father,  the  testator.  It  is  claimed  that 
the  court  erred  in  permitting  hint  to  testify  as  to  his  condition. 
The  court  is  cited  to  Thompson's  Ohio  Trial  Evidence,  Section 
1115,  in  which  it  is  said: 

"The  adjudicated  cases  differ  upon  the  rule  as  to  the  admis- 
sibility of  declarations  of  a  devisee  or  legatee  as  to  the  mental 
incapacity  of  the  testator,  where  such  declarations  may  affect 
others  not  in  privity  with  such  devisee  or  legatee.  In  speak- 
ing of  the  rule  as  to  the  admissibility  of  declarations  made  by 
one  of  several  parties  to  the  record,  Mr.  Greenleaf  says:  'Nor 
are  the  admissions  of  one  of  several  devisees  or  legatees  admis- 
sible to  impeach  the  validity  of  a  will,  where  they  may  affect 
others  not  in  privity  with  him. ' 

"The  judge  of  a  common  pleas  court  in  the  ease  stating  the 
rule  from  Mr.  Greenleaf  further  said:  'I  think  an  examina- 
tion of  the  most  carefully  considered  cases  will  show  that  the 
declarations  of  a  devisee  or  legatee  in  disparagement  of  the 
testator's  capacity — not  made  in  the  presence  of  other  devi- 
sees and  legatees  who  are  interested  in  sustaining  the  will,  nor 
in  the  presence  of  the  testator — can  not  be  offered  by  the  party 
seeking  .to  set  aside  the  will  in  an  action  to  try  its  validity;  nor 
will  the  fact  that  the  declarations  were  made  in  the  lifetime  of 
the  testator  by  a  member  of  his  family,  who  is  a  party  defend- 
ant, make  any  difference.'  " 

I  am  also  oited  to  the  13th  Ohio  State,  356,  which  is  to  the 
same  effect: 

"On  the  trial  of  an  issue  in  a  proceeding  under  the  statute,  to 
contest  the  validity  of  a  will,  declarations  in  reference  to  the 
mental  capacity  of  the  testator,  of  a  legatee,  or  devisee  who  is 
a  party  defendant  to  the  proceeding,  are  not  admissible  in  evi- 
dence to  impeach  the  will,  where  there  are  other  devisees  or 
legatees  whose  interests  may  be  injuriously  affected  by  the 
admissions  of  such  evidence." 

In  both  of  these  cases,  in  Thompson's  Trial  Evidence,  and 
in  the  13th  Ohio  State  Reports,  they  attempted  to  prove  declara- 
tions made  by  the  party  on  the  witness  stand — a  declaration 
that  he  had  made  before  as  to  the  mental  capacity  of  the  tes- 
tator. Now,  the  court  thinks  there  is  a  distinction  between  a 
declaration  and  the  testimony  of  a  witness  given  on  the  stand. 


NISI'  PBIUS  REPORTS— NEW  SERIES.  439 

1908.]  Wilson  v.  Wilson  et  al. 

Section  5242-8.  "Nothing  in  this  section  contained  shall 
apply  to  actions  for  causing  death,  or  actions  or  proceedings 
involving  the  validity  of  a  deed,  will,  or  codicil ;  and  when  a 
case  is  plainly  within  the  reason  and  spirit  of  the  last  three 
sections,  though  not  within  the  strict  letter,  their  principles 
shall  be  applied." 

So,  there  is  an  exception  there,  and  a  party  may  testify  con- 
cerning a  deed,  will  or  codicil. 

But  we  are  not  without  some  authority  on  that  proposition. 
The  case  of  Wolf  et  al  v.  Powner,  Excrs.,  et  al,  30  0.  S.,  472,  was 
not  cited  by  counsel  on  either  side.  In  that  ease  the  Supreme 
Court  has  construed  Section  342,  which  was  originally  Section 
313.     It  was  a  contest  of  a  will. 

"Section  313  of  the  code  of  civil  procedure,  as  amended  May 
2,  1871  (68  0.  L.,  127;  3"  Sayler,  2531;  Section  5242,  Rev. 
Stat.),  did  not  make  the  husband  of  an  heir,  who  was  joined 
with  her  as  a  plaintiff,  in  an  issue  of  devimvit  vel  non,  incom- 
petent as  a  witness  for  the  contestants." 

Now,  while  the  Supreme  Court  decides  this  case  on  the  ground 
that  the  husband,  who  was  called  as  a  witness  to  testify,  was  not 
a  real  party  in  interest,  and  therefore  not  incompetent  to  be  a 
witness  in  the  case,  the  Supreme  Court  go  further  in  relation 
to  the  matter.  It  was  Louis  Wolf  who  was  called.  In  deciding 
the  case,  Scott,  J.,  says: 

"Had  Louis  Wolf  been  an  interested  heir,  and  as  such  been 
a  party  plaintiff,  his  right  to  testify  would  have  been  unques- 
tionable, by  the  very  words  of  the  proviso.  Neither  his  inter- 
est as  a  party,  or  otherwise,  would  have  rendered  him  incom- 
petent. But  it  is  said  he  was  not  an  heir,  and  had  no  direct 
interest  in  the  issue  on  trial.  To  which  we  answer,  a  fortiori, 
he  might  testify.  The  Legislature  has  guarded  against  an 
erroneous  construction  of  which  it  was  thought  the  language 
might  be  susceptible,  but  did  not  think  it  necessary  to  go  further, 
and  guard  against  a  construction  every  way  unreasonable.  Hav- 
ing said  the  section  should  not  be  so  construed  as  to  prevent  par- 
ties most  deeply  and  directly  interested  in  the  issue  from  testify- 
ing, it  was  not  thought  necessary  to  guard  against  a  construction 
whieh  would  exclude  witnesses  who  might  have  a  remote  or 
contingent  interest,  or  no  interest  whatever  in  the  controversy, 
if  they  should  happen  to  be  made  parties  on  the  record. 


44ff  LICKING  COUNTY  COMMON  PLEAS. 

Wilson  v.  Wilson  at  al.  [Vol.  VII,  N.  a. 

"Speaking  for  myself  alone,  I  should  be  very  strongly  in- 
clined to  hold,  that  even  if  no  such  proviso  were  found  in  this 
section,  it  would  be  a  perversion  of  its  purpose  to  apply  its  in- 
hibition to  any  party  to  an  issue  of  devisavit  vel  non.  The 
reason  and  policy  of  the  section  are  obvious.  The  persons  en- 
titled to  claim  its  protection  are  an  actual  executor  or  adminis- 
trator of  a  deceased  person,  or  the  actual  heir,  grantee,  or  devisee 
of  a  deceased  person,  who  is  claiming,  or  defending  against  a 
claim  made  against  him,  as  such." 

To  the  same  effect  is  the  1st  C.  C.  Rep.,  page  16 ;  at  the  bottom 
of  page  17,  and  the  top  of  page  18.  This  was  an  action  brought 
against  a  trustee  under  a  will : 

"An  objection,  therefore,  interposed  to  a  competent  witness. 
before  he  testifies  at  all.  is  premature,  and  is  properly  overruled 
by  the  court.  The  party  desiring  to  object  must  wait  and  see 
what  it  ts  proposed  the  witness  shall  say,  and  if  it  is  not  allow- 
■  able  for  him  to  testify  as  to  such  matters,  the  objection  can  then 
properly  be  made.  But  in  a  case  like  the  one  at  bar,  as  we 
understand  it.  the  section  referred  to,  in  effect,  provides  that 
parties  to  the  action  shall  stand  on  the  same  footing  as  other 
witnesses.  It  states  expressly  that  the  provisions  of  the  sec- 
tion shall  not  apply  to  actions  or  proceedings  involving  the 
validity  of  a  deed  or  will,  and  such  we  think  is  this  case.  This 
construction  was  put  upon  this  statute  by  the  district  court  of 
Oreen  county,  some  years  ago.  and  exception  having  been  taken 
to  the  ruling,  the  Supreme  Court  either  refused  leave  to  file  a 
petition  in  error,  or  affirmed  the  judgment  without  reporting  the 
case  fully." 

So  that  the  court  thinks  that  the  plaintiff  in  the  case,  although 
a  legatee  or  devisee  under  the  will,  was  a  competent  witness  to 
testify  to  acts  of  his  father,  and  as  to  his  mental  capacity,  as 
based  upon  what  he  saw  his  father  do,  and  how  he  saw  him  act. 
And  while  the  court  does  not  agree  with  the  jury  in  this  case — 
the  court  would  have  found  a  different  verdict  from  what  the 
jury  did — it  is  not  in  the  province  of  the  court  to  set  aside  the 
verdict  unless  there  has  intervened  error  which  was  prejudicial. 

The  court  does  not  think  any  such  error  intervened.  !  am 
free  to  say  that  I  do  not  agree  with  the  jury  in  their  finding 
in  the  ease,  but  that  is  neither  here  nor  there. 


NISI  PBIUS  REPORTS— NEW  SERIES. 
McNeely  v,  Cincinnati. 


PARTITION  WHERE  TITLE  TO  THE  PROPETTY  IS 
IN  DISPUTE. 

Superior  Court  of  Cincinnati. 

McNeely  v.  City  op  Cincinnati  et  al  and  Gray  v.  McNeely.* 

Decided,   February,   1906. 

Partition — Nou>  a  Port  of  the  Code— Title  in  Dispute  to  Property  In- 
volved— Jurisdiction — Stafufe  of  Limitations— Necessity  for  Ap- 
pointing a  Trustee  to  Make  Title — Condemnation  of  Land  for 
Street— Parties—Adverse  Possession  of  Municipality— Rights  of 
Unborn  Issue  of  Life  Tenants  in  Tail — Law  and  Equity, 

1.  Under  the  law  of  Ohio  a  court  Is  not  ousted  from  jurisdiction  in  a 

partition  case  by  the  filing  of  a  petition  denying  title  and  set- 
ting up  the  statute  of  limitations,  nor  is  it  necessary  that  tbe  case 
be  held  pending  a  determination  of  the  questions  of  title  In  a 
court  at  law,  but  the  court  has  full  authority  under  Its  equity 
powers  to  itself  determine  the  disputed  questions  of  title.  ■ 

2.  Where  the  life  tenants  of  an  estate  tall  under  a  will  which  provided 

that  the  remainder  should  go  to  bis  or  her  issue  for  life,  with  the 
next  remainder  In  tall  to  unborn  issue,  where  not  made  parties  to 
an  action  for  tbe  appropriation  of  land  for  street  purposes,  the  ad- 
verse possession  of  the  municipality  for  more  than  twenty-one 
years  does  not  deprive  such  subsequent  life  tenants  of  title  until 
the  requisite  period  after  their  right  of  entry  accrued. 
*  Since  this  case  was  decided,  the  point  that  no  possession  can  be 
deemed  adverse  to  a  party  who  bas  not  at  the  time  the  right 
of  entry  and  possession  has  been  finally  determined  by  the  Su- 
preme Court  in  another  case.  See  Webster  v.  P.,  C.  &  T.  R.  B. 
Co.,  78  Ohio  St.,  87. 

Edwards  Ritchie  and  Saul  Zielonka,   for  plaintiff. 

Charles  J.  Hunt,  Albert  H.  Morrill,  J.  L.  Huddle,  Charles 
Broadwell,  Chas.  H.  Urban,  Thos.  J.  Brock,  Ben  B.  Dale,  Je- 
rome D.  Creed  and  Turnipseed  d>  Morgan,  contra. 

HOFFHEIMER.  J. 

This  was  a  civil  action  under  the  code,  for  equitable  partition. 
Plaintiff  claims  he  bas  the  legal  right  to  the  possession  of  and  is 


442  SUPERIOR  COURT  OF  CINCINNATI. 

McNeely  v.  Cincinnati.  [Vol.  VII,  N.  S. 

the  owner  in  fee  simple  of  a  certain  undivided  part  of  the  real 
estate  set  out  in  the  petition.  The  interest  in  such  lands  thus 
set  out,  as  claimed  by  the  defendants,  also  appears  from  the 
pleadings.  It  is  claimed  that  the  real  estate  in  question  can 
not  be  divided  in  partition  by  metes  and  bounds  without  mani- 
fest injury  to  the  same,  and  .that  it  will  have  to  be  sold  in  or- 
der that  the  parties  may  realize  the  fair  value  thereof.  Plaint- 
iff prays  that  a  trustee  be  appointed  to  represent  the  interests 
of  parties  who  can  -not  now  be  determined,  and  who,  upon  the 
decease  of  certain  parties  hereafter  to  be  mentioned,  will  be 
entitled  to  a  certain  interest  in  a  fee  simple  part  of  the  four  and 
twenty-one  hundredths  part  of  the  real  estate  in  question.  It 
is  urged  that  a  trustee  will  be  necessary  to  protect  said  interests, 
and  to  make  title  to  the  premises  herein.  All  the  defendants, 
except  the  city  of  Cincinnati,  admit  the  plaintiff's  title  and  join 
in  ithe  prayer  for  partition. 

The  original  answer  of  the  city  of  Cincinnati,  was  practically 
a  general  denial.  The  case  was  submitted  to  the  court  on  an 
agreed  statement  of  facts,  and  on  the  evidence  adduced  by  the 
plaintiff.  The  defendant,  the  city  of  Cincinnati,  offered  no  evi- 
dence. Before  the  case  was  finally  submitted,  however,  the  city 
filed  an  amended  answer,  denying  title  and  set  up  the  plea  of 
the  statute  of  limitations,  the  purpose  of  which  was  to  oust 
this  court  of  jurisdiction  and  remit  the  parties  to  an  action  at 
law  and  a  trial  of  -the  issues  herein  raised  by  a  jury. 

At  the  threshhold  of  the  case,  therefore,  we  are  met  by  the 
question  as  to  whether  this  court  has  power  to  further  proceed 
in  the  matter  to  determine  disputed  questions  of  title,  and  then 
decree  partition.  The  claim  of  the  city  practically  amounts  to 
this:  That  under  the  allegations  of  the  amended  answer,  dis- 
puted questions  of  title  ean  not  be  determined  in  this  proceed- 
ing- and  the  court  must  either  send  these  issues  to  a  court  of 
law  to  be  tried  by  a  jury,  or  hold  this  action,  pending  such  de- 
cision. The  city  relies  principally  upon  Delancy  v.  McFaddcn. 
7  0.  W.  L.  B.,  266;  McBain  v.  Mc-Bain,  15  O.  S-,  335,  350,  and 
likewise  a  mimber  of'  authorities  of  other  jurisdictions.  The 
case  having  been  submitted  on  an  agreed  statement  of  fact,  with 


NISI  PRIUS  REPORTS— NEW  SERIES.  448 

1808.]  McNeely  v.  CinclnnatL 

out  any  express  stipulation  reserving  the  questions  raised  after 
the  submission  of  such  agreed  statement  of  fact,  it  is  a  question 
whether  or  not,  the  city  has  not  waived  the  objection  now  made 
by  it.  See  Culver  v.  Rodgers,  33  0.  S.,  537,  541,  543,  544; 
Byers  v.  Weckham,  16  0.  S.,  441,  443;  Bonewitz  v.  Bonemtz, 
5  0.  S.,  373,  377 ;  Russell  v.  Loring,  3  Allen,  121. 

I  am  of  opinion  that  the  cases  relied  on  by  defendant,  the  city 
of  Cincinnati,  do  not  support  the  contention  of  the  city."  In 
Delaney  v.  McFadden,  supra,  it  will  be  found  that  the  exact 
question  presented  here  was  not.  before  the  court  in  that  case, 
and  although  the  court  did  not  decide  that  title  could  be  de- 
termined, yet  by  fair  implication,  it  seems  that  the  court  may 
do  so.    At  page  207  of  that  decision,  the  court  says: 

"While  in  an  ordinary  action  under  the  code  for  partition, 
it  would,  and  in  the  proceeding  under  the  statute  it  might,  be 
error  in  the  court  to  refuse  to  receive  proof,  because  of  a  mere 
denial  that  plaintiff  was  seized." 

And  in  McBain  v.  McBain,  supra,  it  is  not  decided  that  title 
to  property  in  controversy  can  not  be  determined  by  the  court, 

Authorities  of  other  states  to  which  I  am  cited,  are  of  little 
avail,  for  although  the  doctrine  contended  for  by  the  defendant, 
the  city  of  Cincinnati,  appears  to  obtain  in  many  states,  and  in- 
deed, seems  to  be  sustained  by  the  weight  of  authority,  it  is, 
nevertheless,  not  the  law  of  this  state.  Our  courts,  it  seems,  are 
vested  with  more  ample  powers  under  the  circumstances  than  the 
courts  of  other  states,  notably  those  to  which  I  am  cited.  Free- 
man in  his  work  on  "Co-tenancy  and  Partition"  calls  attention 
to  this  very  condition,  and  he  says: 

"In  several  of  the  states,  the  courts  having  jurisdiction  over 
partition  are  entrusted  with  more  ample  powers  than  those 
elsewhere  exercised  by  courts  proceeding  in  conformity  with  the 
common  and  statute  law  of  England.  This  is  particularly  so 
in  disputes  concerning  title.  Such  disputes  may  in  the  states 
referred  to,  be  tried  and  conclusively  determined,  and  no  neces- 
sity exists  for  referring  any  of  the  issues  to  some  other  tribu- 
nal for  trial."  See  Freeman  on  ',' Co-tenancy  and  Partition," 
Section  503,  and  cases  cited,  including  Perry  v.  Richardson,  27 


444  SUPERIOR  COURT  OP  CINCINNATI. 

McNeely  v.  Cincinnati.  [Vol.  VII,  N.  S. 

0.  8.,  110.    See  also,  6  Pom.  Eq.  Jur.,  Section  712  (1906),  and 
cases  cited. 

That  the  answer  denying  title,  and  setting  up  the  plea  of 
statute  of  limitations,  does  not  oust  the  court  of  jurisdiction, 
necessitating  a  trial  of  the  issue  by  jury,  seems  not  only  estab- 
lished in  -Perry  v.  Richardson,  supra,  but  also  by  the  later  case 
of  Hogg  v.  Beerman,  41  O.  S-,  81.  In  both  of  these  cases,  de- 
fendants denied  the  plaintiff's  title  and  set  up  the  statute  of 
limitations.  The  question  of  title  was  decided  and  partition  was 
accordingly  decreed.  Prior  to  the  revision  of  the  statutes  in 
1880,  a  partition  proceeding  was  a  special  proceeding,  and  not  a 
civil  action,  but  now  a  partition  proceeding  is  no  longer  a 
special  proceeding  but  is  a  part  of  the  code.  Swikart  v.  Swikart, 
7  C.  C,  338,  344  (Moore,  Seney  and  Day,  JJ.).  So  that  the 
action  before  me  is  a  civil  action  (Elever  v.  Seawell,  65  Fed. 
Rep.,  393)  for  equitable  partition.  And  while,  in  all  proba- 
bility, all  actions  for  partition  are  now  equitable,  as  this  par- 
ticular case  at  bar  necessitates  special  equitable  relief,  viz.,  the 
appointment  of  a  trustee  in  order  to  make  title  and  to  protect 
the  rights  of  persons  at  this  time  un  ascertainable,  there  can 
scarcely  be  any  doubt  as  to  the  jurisdiction  of  this  court. 

Having  thus  concluded  that  notwithstanding  the  allegations 
of  the  defendant,  the  city  of  Cincinnati's  amended  answer,  that 
this  court  has  full  power  to  determine  disputed  questions  of 
title,  we  proceed  to  that  part  of  the  case,  and  to  an  investigation 
of  the  involved  questions  of  title.  I  may  say  that  the  agreed 
statement  of  fact  shows  that  all  the  parties  acquired  their  prop- 
erty from  a  common  source,  viz,  one  Samuel  Stitt,  who  died  in 
the  year  1847,  and  whose  will  was  subsequently  before  our  Su- 
preme Court  for  construction.  The  plaintiff  and  the  defendants 
(except  the  city  of  Cincinnati)  claim  title  as  the  devisees  of  said 
Samuel  Stitt,  deceased.  The  city,  it  seems,  acquired-  what  title 
it  has,  by  conveyances  from  some  of  the  heirs  or  devisees  of 
Samuel  Stitt,  deceased,  and  condemnation  proceedings.  The 
parties  now  claiming  were  devisees  of  said  Samuel  Stitt,  de- 
ceased, who  were  not  made  parties  to  any  condemnation  proceed- 


NISI  PRIUS  REPORTS— NEW  SERIES.  446 

1908.]  McNeely  v.  Cincinnati. 

ings,  nor  to  deeds  conveying  the  real  estate  in  question  to  the 
city,  nor  were  they  in  any  way  represented  in  said  proceedings. 
As  the  parties  claiming  title  in  this  case  were  complete  strangers 
to  said  proceedings,  their  rights,  if  any  they  had,  were  not  con- 
•  eluded  by  said  proceedings.  See  Young  v.  Hefner,  36  0.  S., 
238;  McArtkur  v.  Scott,  113  U.  S.,  340. 

Prom  the  agreed  statement  of  facts,  and  from  the  evidence, 
I  find  as  follows: 

Samuel  Stitt  died  in  the  year  1847,  leaving  a  will.  The  Bixth 
clause  of  said  will  was  as  follows : 

"In  case  of  the  death  of  one  or  more  of  said  children,  leav- 
ing issue  of  his,  her  or  their  bodies,  at  the  time  this  devise  takes 
effect,  it  is  my  wish  and  I  do  hereby  order  and  direct  that  such 
issue,  for  and  during  the  terms  of  their  natural  lives,  shall  take 
under  this,  my  will,  precisely  in  the  same  manner  as  the  im- 
mediate ancestor  or  ancestors  of  said  issue  would  have  taken  had 
he,  she  or  they  been  then  in  being;  and  at  the  decease  of  any  of 
the  said  devisees  who  shall  have  taken  at  the  time  aforesaid  for 
the  term  of  his,  her  or  their  natural  lives,  I  give  and  devise  the 
shares  so  given  and  taken  aforesaid  to  the  issue  of  such  devi- 
sees so  dying,  share  and  share  alike,  for  their  lives  respectively ; 
and  again,  at  the  death  of  the  issue  last  aforesaid,  or  any  of 
them,  I  further  give  and  devise  respectively,  the  share  or  estate 
of  the  said  issue,  or  any  one  of  them  dying,  to  the  issue  of  said 
issue  or  any  of  them,  share  and  share  alike,  for  the  terms  of 
their  natural  lives;  and  in  this  manner,  down  in  entailment 
as  far  as  may  be  allowed  by  the  statute  in  such  cases  made  and 
provided. ' ' 

Said  will  is  dated  February  26.  1844,  and  was  probated  in 
Hamilton  County  Probate  Court  October  5,  1847.  (Par.  20, 
agreed  statement  of  facts.) 

Nancy  Wilson,  sister  of  Samuel  Stitt,  died  leaving  three 
children:  Nancy  Wilson,  Jr.,  Jane  Wilson  McNeely  and  Wil- 
liam Wilson. 

Nancy  Wilson.  Jr..  died,  leaving  Mrs.  M.  A.  Gibson,  an  illegiti- 
mate child. 

Jane  Wilson  McNeely  died,  leaving  seven  children  as  fol- 
lows: 1.  James  C.  McNeely,  born  1832.  died  May  17,  1903;  2, 
Eliza  Jane  McNeely,  born  1834;    3,  Mary  Keown,  born  1839; 


446  SUPERIOR  COURT  OF  CINCINNATI. 

McNeely  v.  Cincinnati.  [Vol.  VII,  N.  S. 

4,  William  McNeely,  born  1842;  5,  Agnes  McNeely  Cluggish, 
bom  1844,  died  November  8,  1902;  6,  Samuel  McNeely,  born 
1846;    7,  Hamilton  McNeely,  born  1849. 

William  Wilson  died  in  1850. 

James  C.  McNeely,  son  of  Jane  Wilson  McNeely,  died  May  17, 
1903,  leaving  three  children:  John  W.,  Anna  McNeely  Owens 
and  Rachel  McNeely  Gray. 

William  McNeely,  son  of  Jane  Wilson  McNeely,  disappeared 
and  has  not  been  heard  of  by  his  wife,  child  or  relatives  for  a 
period  of  more  than  seven  years  prior  to  the  filing  of  this  action. 
Plaintiff,  Harry  McNeely,  is  the  sole  child  of  said  William 
McNeely. 

Agnes  McNeely  Cluggish  died  November  8,  1902,  leaving  nine 
children,  as  follows:  1,  Richard  Cluggish;  2,  Robert  Cluggish; 
3,  Jennie  Cluggish  Harrison ;  4,  William  Cluggish ;  5,  Samuel 
Cluggish;  6,  Hamilton  Cluggish ;  7,  Maud  Cluggish  Cummings; 
8,  Walter  Cluggish;  9,  Clarence  Cluggish. 

Samuel  Stitt  died  seized  of  the  property  described  in  the  peti- 
tion {see  agreed  statement  of  facte,  par.  1),  and  this  property 
was  devised  according  to  the  sixth  seetion  of  the  will,  as  herein- 
before set  out. 

This  will  of  Samuel  Stitt,  deceased,  has  been  construed  by  our 
Supreme  Courts' in  11  O.  S.  Reports,  131,  titl»  of  the  case  be- 
ing "Hugh  Gibson  and  Mary  Ann  Gibson,  wife,  v.  William 
McNeely  and  Jane  McNeely,  his  wife,  and  others. 

According  to  the  construction  placed  by  the  Supreme  Court 
upon  the  sixth  clause,  of  said  will,  Nancy  Wilson,  Jr.,  Jane 
Wilson  McNeely  and  William  Wilson  each  received  a  life  estate 
in  the  undivided  third  part  of  the  premises  devised,  remainder 
for  life  as  tenant  in  tail  of  each  one's  share  to  his  or  her  issue; 
remainder  in  tail  to  the  unborn  issue,  which  gives  them  the  fee. 

Mrs.  M.  A.  Gibson  therefore,  received  a  life  estate  in  the  same 
property  formerly  held  for  life  by  Nancy  Wilson,  Jr.;  the 
seven  children  of  Jane  McNeely  received  a  life  estate  in  the 
same  property  formerly  held  for  life  by  their  mother,  and  Wil- 
liam Wilson's  child  received  a  life  estate  in  the  same  property 
formerly  held  by  his  father,  if  living. 


NISI  PRIUS  REPORTS— NEW  SERIES.  447 

1908.]  McNeely  v.  Cincinnati. 

The  children  of  James  C.  MeNeely,  Eliza  Jane  McNeely, 
Martha  McNeely  Keowa,  William  McNeely,  Agnes  McNeely 
Cluggish,  Samuel  MeNeely,  Hamilton  McNeely,  following  the 
construction  of  this  will  in  11  0.  S.,  131,  are  entitled  to  an  un- 
divided third  part  of  the  fee  simple  property  described  in  the 
petition,  after  the  termination  of  the  life  estate.  That  is  to  say, 
that  the  heirs  of  each  of  the  children  of  Jane  McNeely,  de- 
ceased, are  entitled  to  one-seventh  (seven  children  of  Jane 
McNeely)  of  one-third,  equaling  on e-tjwenty -first  part  of  the  fee 
simple  estate.  Harry  McNeely,  being  the  sole  child  of  William 
McNeely,  deceased,  on  proof  of  his  father's  death,  would  be  en- 
titled to  one-twenty-firet  part  of  the  fee  simple  estate. 

Jane  W.  McNeely,  Anna  MeNeely  Owens  and  Rachel  Gray 
are  each  entitled  to  one-third  of  one-seventh  of  one-third,  equal- 
ing one-sixty -third  part  of  the  fee  simple  estate. 

Richard  Cluggish,  Jennie  Harrison,  Robert  Cluggish,  Wil- 
liam Cluggish,  Samuel  Cluggislr;  Hamilton  Cluggish,  Maud 
Cummings,  Walter  Cluggish  and  Clarence  Cluggish  are  each 
entitled  to  one-ninth  of  one-seventh  of  one-third,  equaling  one 
one-hundred  and  eighty-ninth  part  of  the  fee  simple  estate. 

The  owners  of  the  remaining  four-twenty-first  part  of  the  fee 
simple  estate,  can  not  now  be  determined,  as  Eliza  Jane  Me- 
Neely, Martha  Keown,  Samuel  MeNeely  and  Hamilton  McNeely 
are  alive. 

The  undivided  two-third  part  of  the  fee  simple  property  de- 
scribed in  the  petition,  descended  to  the  heirs  of  Samuel  Stitt, 
deceased,  who  were:  Nancy  Wilson,  Jr.,  Jane  McNeely  and 
William  Wilson,  children  of  Nancy  Wilson.    11  0.  S.,  135. 

The  city  of  Cincinnati  acquired  the  undivided  two-third  part 
o£  the  fee  simple  estate  by  legal  proceedings  to  condemn  the 
property  for  street  purposes,  and  by  various  deeds.  (See  agreed 
statement  of  facts,  par.  6,  3,  4,  5.) 

The  city  of  Cincinnati  also  acquired  the  life  estates  of  Samuel 
McNeely,  Hamilton  McNeely,  Agnes  Cluggish,  Martha  Keown, 
Elizabeth  McNeely,  James  C.  MeNeely  and  William  MeNeely. 
(See  agreed  statement  of  facts,  par.  7,  9,  10,  11,  12,  13,  14 
and  15.) 


448  SUPERIOR  COURT  OP  CINCINNATI. 

McNeely  v.  Cluclonatl.  [Vol.  VII,  N.  S. 

Neither  plaintiff  nor  the  defendants,  except  the  city  of  Cin- 
cinnati, were  parties  to  the  legal  proceedings;  nor  were  they 
represented.  (See  Youngs  v.  Heffner,  supra;  Mc Arthur  v. 
Scott,  supra.) 

The  eity  of  Cincinnati  had  been  in  open,  notorious  and  ad- 
verse possession  of  the  property  described  in  the  petition  for 
more  than  twenty-one  years  prior  to  the  filing  of  this  suit. 
Rut  this  does  not  affect  the  rights  of  these  parties,  because  of 
the  date  at  which  their  right  of  entry  accrued,  as  will  be  shown. 
29  0.  S.,  379,  397,  398;   17  0.  S.,  374. 

According  to  the  construction  of  the  will  Samuel  Stitt,  de- 
ceased, in  Gibson  v.  McNeely,  supra,  the  parties  to  this  suit, 
except  the  city  of  Cincinnati,  are  entitled  to  certain  undivided 
parts  of  the  fee  simple  estate,  determined  on  the  life  estates  of 
their  parents. 

1.  As  to  Harry  McNeely.  Harry  McNeely,  as  appears  from 
the  above  findings,  was  the  son  of  William  McNeely.  Accord- 
ing to  proof,  his  father  was  absent  from  home  and  not  heard  of 
for  more  than  seven  years  prior  to  the  bringing  of  this  suit.  A 
legal  presumption  of  death  therefore  arose.  The  prima  facie 
evidence  of  his  death  was  not  rebutted  by  counter-proof  (Youngs 
v.  Heffner ,  36  0.  S-  233).  Harry  McNeely  is  therefore  en- 
titled to  whatever  rights  he  may  have  in  the  property  as  though 
"his  father  were  proven  dead.  The  life  of  said  William  McNeely 
having  determined.  1  therefore  find  his  son.  Harry  E.  McNeely, 
to  be  seized  of  an  absolute  estate  in  fee  simple,  and  entitled  to 
the  possession  of  an  undivided  one- twenty-first  part  of  the  prem- 
ises. His  right  of  entry  accrued  in  1898  (see  record,  page  31). 
See,  also,  Carpenter  v.  DeNoon,  29  0.  S.,  379,  par.  9. 

2.  As  to  the  children  of  Agnes  McNeely  Ctyggish.  Agnes 
McNeely  Cluggish  having  died  November  8,  1902,  and  her  life 
estate  having  thus  determined,  I  find  her  children.  Richard, 
Robert,  Jennie  Cluggish  Harrison,  William.  Samuel,  Hamilton. 
Maud  Cluggish  Cummings.  Walter  and  Clarence,  each  to  he 
seized  of  an  absolute  estate  in  fee  simple,  and  are  entitled  to  the 
possession  of  an  undivided  part  respectively,  amounting  to  one 
one-hundred   and  eighty-ninth   part   of  the   fee  simple  estate. 


NISI  PRIUS  REPORTS— NEW  SERIES.  449 

1908.]  McNeely  r.  Cincinnati. 

Their  right  of  entry  accrued  at  the  death  of  their  mother,  No- 
vember 8,  1902. 

3.  As  to  the  children  of  James  C.  McNeely.  James  C.  Mc- 
Neely having  died  May  17,  1903,  and  his  life  estate  having 
thus  determined,  I  find  his  children,  Jane  W.,  Ann  McNeely 
Owens  and  Rachel  Gray,  are  seized  of  an  absolute  estate  in  fee 
simple  and  are  each  entitled  to  the  possession  of  an  undivided 
one-sixty-third  part  of  the  fee  simple  estate.  Their  right  of 
entry  accrued  at  the  death  of  their  father,  May  17,  1903. 

4.  Eliza  Jane  McNeely,  Martha  Keown,  Samuel  McNeely, 
Hamilton  McNeely,  children  of  Jane  McNeely,  are  as  already 
shown,  still  alive.  Whatever  reversionary  interests  there  may 
be  at  their  deaths,  will,  under  the  construction  placed  upon  the 
will  by  our  Supreme  Court  (if  they  die  without  issue)  go  to 
the  respective  heirs  at  law  of  Samuel  Stitt,  not  as  devisees,  but 
as  heirs  (see  11  0.  S.,  135).  But  if  they  die  leaving  issue,  such 
issue  will  take  in  accordance  with  the  opinion.  It  therefore  be- 
comes necessary  to  appoint  a  trustee  to  protect  the  rights  of 
those  not  yet  ascertained,  and  to  satisfy  such  future  interests  as 
they  may  arise.  And  the  court  will  appoint  such  trustee  when 
the  decree  is  drawn.  This  trustee  shall  receive  and  hold  the 
value  of  an  undivided  four- twenty-first  part  of  the  fee  simple  es- 
tate, to  which  the  unascertained  and  unknown  owners,  for  whose 
benefit  the  trustee  is  to  be  appointed,  will  be  entitled.  At  this 
point,  it  is  well  to  call  attention  to  the  fact  that  the  original 
petition  asks  that  a  trustee  be  appointed  to  receive  and  hold  the 
value  of  six -twenty -first  part  of  the  fee  simple  estate,  and  that 
the  supplemental  petition  askes  for  the  appointment  of  a  trustee 
to  take  charge  of  the  value  of  four- twenty-first  part.  The  differ- 
ence is  caused  by  the  fact  that  the  original  petition  herein  was 
filed  September  27,  1900.  Since  the  filing  thereof,  James  C. 
McNeely  and  Agnes  McNeely  Glnggish  have  (lied  leaving 
children. 

5.  The  city  of  Cincinnati  is  seized  in  fee  simple  and  is  en- 
titled to  the  possession  of  an  undivided  fourteenth -twenty-first 
part  of  the  property,  and  also  the  life  estates  of  the  other  par- 
ties above  set  out.    As  these  co-parceners  are  seized  of  the  parts 


460  SUPERIOR  COURT  OP  CINCINNATI. 

McNeely   v.  Cincinnati.  J  Vol.  VII,  N.  S. 

of  the  fee  simple  estate  as  above  set  forth,  and  are  entitled  to 
the  possession  of  the  undivided  parts  thereof,  and  as  the  prop- 
erty can  not  be  divided  into  metes  and  bounds  without  manifest 
injury  to  the  value  of  same,  the  plaintiff  is  entitled  to  partition' 
as  prayed  for,  and  the  decree  may  be  drawn  in  accordance 
therewith.  If  the  parties  can  agree  upon  the  name  of  the  trus- 
tee to  be  appointed,  such  party  will  be  appointed.  Otherwise, 
the  court  will  appoint  a  proper  and  suitable  person  to  serve  in 
the  capacity  mentioned. 
Decree  accordingly. 


Gray  v.  McNeely. 

ElOFFHElMER,  J. 

The  foregoing  opinion  in  McNeely  v.  The  City  of  Cinc'mmti 
et  al,  was  handed  down  some  time  since,  but  by  agreement  of 
counsel  and  the  parties,  the  decree  was  withheld  because  in  the 
case  of  Rachel  Gray  v.  John  M.  McNeely  et  al,  No.  52246,  Su- 
perior Court  of  Cincinnati,  similar  questions  were  involved  and 
counsel  asked  leave  to  make  other  parties  in  lineal  descent  par- 
ties defendant.  Leave  having  been  granted,  there  was  practically 
a  rehearing  covering  all  the  questions  previously  considered  and 
as  to  the  former  and  the  new  parties.  Able  arguments  were 
made  on  the  rehearing,  and  elaborate  briefs  were  submitted,  but 
it  is  impossible  for  this  court  to  reach  any  other  conclusions  than 
those  heretofore  set  out  without  refusing  to  follow  the  decision  of 
Gibson  v.  McNeely,  11  0.  S.,  131,  wherein  the  will  involved  here- 
in was  construed  and  this  the  court  declines  to  do.  Let  a  decree 
therefore  be  drawn  in  accordance  with  the  opinion  heretofore 
rendered  by  this  court  in  McNeely  v.  City  of  Cincinnati, 
No.  50855. 


NISI  PRIUS  REPORTS— NEW  SERIES. 

Ohio  Dairy  Co.  V.  Railway. 


STATE  COURTS  WITHOUT  JURISDICTION  OVXB.  INTERSTATE 
ntUCHT  RATES. 

Common  Pleas  Court  of  Lucas  County. 

Ohio  Dairy  Company  v.  The  Lake  Shore  &  Michigan 
Southern  Railway  Company. 

Decided,  October  12,  1908. 

ReasonablenesB  of  Freight  Rates — Proposed  Increase  in  Rates  on  In- 
terstate Shipments — Can  not  be  Temporarily  Enjoined  by  a  State 
Court — Shipping  Contracts  to  be  Performed  Within  and  Between 
States — Extent  of  Federal  Judicial  Power— Relief  Which  may  be 
Granted  by  State  Courts — Injunction — Discrimination — Jurisdic- 
tion—Sections  2.(4-11  and  8374-1. 

A  state  court  Is  without  jurisdiction  to  temporarily  enjoin  tbe  putting 
Into  street  of  an  increase  in  freight  rates  on  interstate  traffic, 
pending  a  determination  by  the  Interstate  Commerce  Commis- 
sion of  tbe  question  of  tbe  reasonableness  of  the  proposed  rate. 

Doyle  &  Lewis,  for  motion, 
G.  W.  Kinney,  contra. 

Bassett,  J. 

This  matter  comes  up  for  decision  at  this  time  on  the  mo- 
tion of  the  railway  company  to  dissolve  the  temporary  injunc- 
tion heretofore  granted  herein,  for  the  reasons  that  this  court 
has  no  jurisdiction  over  the  subject-matter,  and  that  the  peti- 
tion does  not  state  facta  sufficient  to  entitle  the  plaintiff  the 
relief  prayed  for. 

The  plaintiff  is  an  Ohio  corporation,  with  its  principal  office 
located  in  the  city  of  Toledo.  Its  business  is  that  of  purchasing 
and  collecting  eream  and  milk  in  the  states  of  Ohio  and  Michigan 
and  elsewhere  and  causing  the  same  to  be  transported  by  the 
defendant  and  other  common  carriers  from  the  place  of  pur- 
chase and  collection  to  its  creamery  in  said  city,  and  thereafter 
manufacturing  a  portion  of  the  same  into  butter,  and  selling 
said  cream,  milk  and  butter.    It  is  further  averred  that  thirty 


LUCAS  COUNTY  COMMON  PLEAS. 


Ohio  Dairy  Co.  v.  Railway.  [Vol.  XI,  N.  S. 

per  cent,  of  all  the  cream  so  purchased  and  collected  by  it  conies 
from  the  northern  part  of  Ohio  and  the  eastern  part  of  Michigan 
and  in  territory  tributary  to  the  lines  of  the  defendant  com- 
pany, and  that  the  amount  thus  stated  has  been  transported 
from  the  territory  mentioned  to  Toledo  over  the  lines  of  the  de- 
fendant. The  plaintiff  says  that  it  has  been  engaged  in  that 
business  for  a  period  of  between  three  and  four  years,  and 
has  actually  invested  in  its  business  about  one  hundred  and  fifty 
thousand  d oilers. 

The  cause  of  the  complaint  now  made  by  the  plaintiff  against 
the  defendant  is  that  the  latter  on  or  about  the  26th  day  of 
June,  1908,  adopted  a  new  schedule  of  rates  for  the  transpor- 
tation of  cream  shipped  into  the  city  of  Toledo  from  the  terri- 
tory referred  to,  which  new  schedule  was  to  have  gone  into 
effect  on  the  first  day  of  August,  1908;  but  it  was  not  en- 
forced because  of  the  restraining  order  issued  in  this  cause. 

Plaintiff  says  that  the  new  rates  did  not  affect  the  transporta- 
tion of  milk,  but  applied  only  to  the  transportation  of  eream, 
and  that  the  rates  for  the  transportation  of  mHk  remained  the 
same  as  theretofore,  according  to  the  plaintiff's  information.  It 
further  says  that  the  new  schedule  for  the  transportation  of 
cream  will  result  in  an  increased  cost  of  substantially  fifty  per 
cent,  over  the  lines  of  the  defendant  company,  for  a  distance 
not  exceeding  sixty  miles  from  Toledo.  It  further  alleges  that 
the  price  which  it  pays  for  cream  is  based  upon  the  weekly 
rates  fixed  by  the  Elgin  Butter  Board,  and  that  it  would  be 
impossible  for  plaintiff  to  pay  a  greater  price  for  cream  pur- 
chased by  it  and  make  any  money,  because  of  the  close  competi- 
tion in  said  business.  It  is  further  set  forth  by  the  plaintiff  that 
it  has  no  contract  with  the  producers  of  cream,  whereby  the 
said  producers  are  under  any  obligations  to  furnish  cream  to  it, 
and  that  the  custom  has  been  to  accept  all  cream  shipped  by 
said  producers  to  the  plaintiff  and  pay  for  the  same  at  the  rates 
referred  to  in  the  petition. 

The  further  allegation  is  made  that  the  producers  of  eream 
could  not  afford  to  and  could  not  sell  said  cream  to  the  plaintiff 
at  the  prices  so  fixed,  if  they  were  obliged  to  pay  the  above 


NISI  PEIUS  REPORTS— NEW  SERIES.  458 

1908.]  Ohio  Dairy  Co.  v.  Railway. 

stated  increased  tariff  rate;  but  that  if  compelled  to  pay  said 
increased  tariff  rate,  they  would  refuse  to  ship  cream  to  plaintiff. 

It  is  further  alleged  that  if  said  new  tariff  rates  are  permitted 
to  be  enforced,  the  plaintiff  will  be  unable,  as  the  direct  result 
therefrom,  to  obtain  any  cream  from  purchasers  on  the  line  of 
the'said  defendant's  road,  over  which  it  now  is  and  heretofore 
has  been  receiving  thirty  per  cent,  of  all  the  cream  received  by  it, 
to  the  great  and  irreparable  damage  of  the  plaintiff,  for  which 
it  has  no  adequate  remedy  at  law, 

The  plaintiff  saya  that  by  reason  of  the  publication  of  the  new 
schedule  of  rates  by  the>  defendant,  knowledge  thereof  has  come 
to  many  of  the  producers,  who  have  been  heretofore  selling  to 
the  plaintiff,  and  many  of  said  producers  have  olready  refused 
to  ship  cream  to  plaintiff,  and  have  notified  plaintiff  that  they 
will  refuse  in  the  future  to  ship  it. 

The  plaintiff  further  says  that  the  existing  tariff  rates  set 
forth  in  the  petition  have  been  and  still  are  fully  compensa- 
tory and  remunerative  to  the  defendant  for  the  services  ren- 
dered in  and  about  the  transportation  of  cream,  and  that  the 
defendant  has  been  and  still  is  earning  profits  under  and  by 
means  of  said  existing  tariff  rate;  that  the  proposed  increased 
tariff  rate  was  not  made  necessary  by  reason  of  any  changed  con- 
ditions affecting  the  transportation  of  cream,  or  the  service  ren- 
dered in  connection  therewith,  and  that  the  same  is  unreason- 
able, unjust,  vicious,  excessive  and  extortionate,  and  has  been 
arbitrarily  imposed  by  the  defendant. 

It  is  further  stated  in  the  petition  that  there  is  now  pending 
before  the  Interstate  Commerce  Commission,  an  action  or  pro- 
ceeding brought  by  the  Blue  Valley  Creamery  Company  and 
the  Beatrice  Creamery  Company  against  the  Michigan  Central 
Railroad  Company  and  other  railroads,  in  Chicago,  which  action 
involves  the  validity  under  the  Interstate  Commerce  law  of  in- 
creased tariff  rates,  on  the  transportation  of  cream,  and  that 
the  decision  of  the  commission  will  determine  whether  or  not 
the  railroad  companies  are  justified  in  charging  said  iucreased 
rates. 

This  language  of  the  pleader  may  be  fairly  taken  as  an  ad- 
mission that  the  question  here  presented  is  a  federal  question. 


454  LUCAS  COUNTY  COMMON  PLEAS. 

Ohio  Dairy  Go.  v.  Railway.  [Vol.  VII,  N.  S. 

Or,  as  stated  in  his  brief,  the  plaintiff  in  the  case  before  us  is 
"simply  asking  that  the  railroad  company  be  enjoined  from 
changing  unreasonably  and  unjustly  its  existing  rates  until 
the  question  of  the  justness  and  reasonableness  of  the  previous 
rates  may  be  passed  upon  by  the  Interstate  Commerce  Commis- 
sion." 

By  its  motion  to  dissolve  the  temporary  injunction  in  this 
case,  the  defendant  challenges  the  jurisdiction  of  this  court 
over  the  subject-matter  of  the  controversy;  and  contends  that 
not  this  court  but  either  the  Interstate  Commerce  Commission 
or  the  Ohio  Railroad  Commission  is  the  proper  tribunal  to  hear 
and  determine,  in  the  first  instance,  the  question  of  the  reason- 
ableness or  unreasonableness  of  the  rate  in  question — according 
to  whether  the  rate  relates  to  interstate  or  intrastate  shipments 

The  federal  rate  law,  so-called,  has  a  national  and  interstate 
object  and  purpose.  It  is  designed  to  establish  uniformity  and 
equality  in  railroad  freight  rates  in  interstate  commerce  or 
traffic,  because  the  several  states  themselves  can  not  lawfully  do 
so.  It  is  in  no  sense  local  or  municipal,  as  distinguished  from 
national  or  interstate.  It  is  intended  to  operate  upon  all  the 
people  equally,  and,  if  we  may  borrow  the  language  of  the 
fifth  enumeration  of  the  preamble  of  the  federal  Constitution, 
"to  promote  the  general  welfare."  Its  purpose  is  to  prevent 
favoritism  or  discrimination,  and  to  ex-tend  to  all  persons  equal 
opportunities  and  facilities  for  receiving  and  shipping  freights 
of  all  kind  of  the  same  class. 

Railway  rates  enter  to  a  greater  extent  than  might  at  first 
thought  be  supposed  into  the  business  operations  of  this  country. 
Manifestly,  it  is  an  economic  hardship  and  an  economic  waste 
for  the  farm,  the  mine,  or  the  factory,  to  put  labor  and  capital 
into  the  production  of  commodities  if  they  can  not  be  trans- 
ported to  market  at  reasonable  rates  and  with  reasonable  dis- 
patch. For  many  years  the  right  of  railroads  to  alter  or  ad- 
vance their  rates  went  unquestioned,  but  gradually,  step  by 
step,  the  situation  became  such  that  both  courts  and  legislatures, 
as  well  as  Congress,  were  impelled  to  take  action  on  this  sub- 
ject. One  result  of  it  all  was  the  enactment  by  Congress  of  the 
present  rate  law  and  the  amendments  thereto. 


NISI  PRIUS  REPORTS— NEW  SERIES.  455 

1908.]  Ohio  Dairy  Co.  v.  Railway. 

Under  our  plan  of  government  there  is  reserved  to  the  states, 
on  the  score  of  expediency  alone,  if  for  do  other  reason,  the 
entire  control  of  their  internal  affairs.  But  the  federal  govern- 
ment, though  limited  in  the  number  of  its  objects  to  those 
which  are  national  or  interstate,  is  nevertheless  supreme  in 
those  objects ;  and  in  cases  of  conflict  or  doubt  the  state  govern- 
ment must  yield,  being  thus  far  subordinate.  This  would  re- 
sult necessarily  from  the  very  nature  of  the  two  governments. 
But  to  avoid  all  shadow  of  doubt  on  so  momentous  a  subject,  this 
supremacy  is  declared  by  the  federal  Constitution  in  these  ex- 
plicit terms: 

"This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof  •  •  ■  shall  be  the  su- 
preme law  of  the  land;  and  the  judges  in  every  state  shall  be 
bound  thereby,  anything  in  the  Constitution  or  laws  of  any 
state  to  the  contrary  notwithstanding." 

Stronger  language  than  this  would  be  difficult  to  formulate. 
It  is  clear  and  decisive.  The  lower  must  yield  to  the  higher 
authority  and  power. 

The  federal  Constitution  goes  still  further.  It  enumerates, 
specifically,  the  objects  to  which  the  judicial  powers  shall  ex- 
tend.    And  it  is  provided  that: 

"The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution  or  the  laws  of  the  United 
States,"  etc. 

It  would  seem  that  this  language  confers  the  whole  power  of 
deciding  these  and  other  proper  questions  in  law  or  in  equity 
upon  the  federal  judiciary.  And,  of  course,  if  this  be  true, 
nothing  is  left  to  be  exercised  by  any  other  tribunal,  unless,  for 
special  reasons  and  to  meet  special  emergencies,  some  other 
tribunal  is  created  by  the  act  of  Congress. 

It  might  also  be  here  stated  that  in  the  first  draft  of  this 
clause  of  .the  Constitution,  as  originally  reported  to  the  Federal" 
Convention,  the  declaration  of  supremacy  was  confined  to  acts 
of  Congress.  Reference  to  the  Constitution  was  entirely  omitted, 
but  was  afterwards  adopted  by  unanimous  vote,  in  order  that 


456  LUCAS  COUNTY  COMMON  PLEAS. 

Ohio  Dairy  Co.  v.  Railway.  [Vol.  VII,  N.  S. 

there  might  be  no  doubt  as  to  the  powers  of  the  federal  judiciary 
to  expound  the  Constitution,  as  well  as  the  laws  of  Congress,  in 
all  cases  of  a  judicial  nature. 

When,  therefore,  such  a  case  is  presented  as  grows  out  of  or 
involves  any  provision  of  the  federal  Constitution,  or  the  laws 
of  Congress,  it  falls  exclusively  within  the  jurisdiction  of  the 
federal  court,  or  of  that  tribunal  which  has  been  especially  cre- 
ated to  meet  the  particular  emergency.  And  this  without 
reference  to  the  parties.  The  jurisdiction  thereby  becomes  either 
original,  exclusive,  concurrent,  or  appellate,  dependent  upon 
the  provisions  of  the  act  in  that  regard. 

Each  state  is  therefore  entirely  sovereign  within  its  terri- 
torial limits,  and  is  also  subordinate  to  the  federal  government. 
No  law  of  Ohio  is  or  could  be  enforcible  in  relation  to  inter- 
state commerce.  The  courts  of  Ohio  have  no  jurisdiction  in 
such  matters,  and  can  not  control  freight  rates  affecting  inter- 
state traffic.  Ashley  v.  Ryan,  49  0.  S.,  504,  526  (aff.  153  U.  S.. 
436) ;   Perry  v.  Torrence,  8  Ohio,  521,  523. 

The  inability  of  the  separate  states  to  deal  with  such  transac- 
tions as  are  involved  in  this  controversy  made  it  necessary  for 
the  Congress  to  enact  the  so-called  rate  law,  and  amendments 
thereto,  and  in  doing  so  it  fixed  the  remedy  for  such  violations 
as  occur  thereunder. 

If  the  rates  complained  of  were  such  as  affected  and  grew  out 
of  shipping  contracts  to  be  performed  entirely  within  the  boun- 
daries of  Ohio,  there  is  no  question  but  what  the  courts  of  Ohio, 
as  well  as  the  Railroad  Commission  of  Ohio,  would  have  juris- 
diction in  such  eases;  and  the  Interstate  Commerce  Commis- 
sion would  not  have  jurisdiction  thereof.  Interstate  Com.  Com- 
mission v.  Railway,  77  Fed.  Rep.,  942. 

Special  provisions  have  been  made  by  the  General  Assembly 
of  Ohio  for  controversies  of  this  character.  Section  244-11, 
passed  April  2d,  1906.  and  kindred  sections,  create  such  a  rail- 
road commission  and  define  its  powers,  as  well  as  define  certain 
duties  of  a  public  nature  that  shall  he  performed  by  the  railroad 
companies.  City  of  Zaiiesviltc  v.  Farran.  53  0.  S-.  605  (par. 
2  syl.). 


NISI  PRIUS  REPORTS— NEW  SERIES.  457 

1908.]  Ohio  Dairy  Co.  v.  Railway. 

If,  upon  investigation  by  the  State  Commission,  the  rate  or 
rates  or  any  regulation,  practice  or  service  complained  of, 
shall  be  found  to  be  unreasonable  or  unjustly  discriminatory, 
or  the  service  shall  be  found  to  be  inadequate,  the  Commission 
has  the  power  to  grant  relief;  and  in  that  event,  if  its  orders 
are  not  complied  with,  it  may  compel  compliance  by  proceed- 
ings in  mandamus,  injunction  or  by  other  proper  civil  pro- 
ceedings. 

It  is  further  provided  by  the  statutes  of  Ohio  (notably  by 
Section  3373-1  of  the  Revised  Statutes)  that  the  courts  may 
grant  relief  in  eases  where  railroad  companies  do  not  secure  and 
extend  to  all  shippers  the  same  and  equal  opportunities  and 
facilities  for  receiving  and  shipping  freight. 

One  of  the  most  recent  cases  of  this  kind,  considered  by  the 
Supreme  Court  of  Ohio,  is  that  of  The  Toledo  &  Ohio  Central 
Railway  Company  v.   Wren,  decided  April  14th,  1908   (78  0. 

a,  137). 

So  that  it  will  be  conceded  that  these  rate  matters  are  cogni- 
zable, in  proper  oases,  either  by  the  state  railroad  commission 
or  by  the  state  courts,  because  of  the  scope  and  character  of 
our  statutes  on  the  subject  of  railroad  shipments. 

It  is  undisputed  that  the  rates  eomplained  of  in  the  case 
before  us  involve  freight  rates  on  interstate  traffic,  that  is,  on 
shipments  originating  in  Michigan  and  destined  for  Toledo, 
in  Ohio;  and,  therefore,  it  follows  that  this  action  can  not 
be  disposed  of  without  considering  the  law  of  Congress  relat- 
ing to  that  subject. 

Whether  it  is  the  duty  of  the  complaining  shipper  to  file  his 
grievances  with  the  Interstate  Commerce  Commission,  in  the 
first  instance,  or  file  them  in  the  federal  court,  becomes  an  im- 
portant matter,  but  we  need  not  determine  it  here,  for  it  has 
already  been  considered  by  the  United  States  Supreme  Court. 
In  the  case  of  Texas  Pacific  Railway  Co.  v.  Abiline  Cotton  Oil 
Co.,  204  U.  S.,  426.  that  court  has  given  its  interpretation  of 
the  language  of  Section  9  of  the  Interstate  Commerce  act.  That 
was  a  suit  originally  instituted  in  a  state  court.  The  oil  com- 
pany claimed  that  the  charges  made  by  the  railway  company  were 


468  LUCAS  COUNTY  COMMON  PLEAS. 

Ohio  Dairy  Co.  v.  Railway.  [Vol.  VII.  N.  S. 

exorbitant.  The  railway  contended  that  the  reasonableness  of 
the  posted  rates  could  not  be  contested  in  the  state  court,  and 
the  trial  court  sustained  the  position  of  the  railway  company. 
but  the  Texas  court  of  final  resort  reversed  that  holding  and 
gave  judgment.  The  Supreme  Court  of  the  United  States  set 
aside  this  judgment.     Section  9  of  the  act  reads,  in  part,  as 

follows : 

"That  any  person  or  persons  claiming  to  be  damaged  by  any 
common  carrier  subject  to  the  provisions  of  this  act,  may 
either  make  complaint  to  the  Commission  as  hereinafter  pro- 
vided for,  or  may  bring  suit  in  his  or  their  own  behalf,  for  the 
recovery  of  the  damages  for  which  such  common  carrier  may  be 
liable  under  the  provisions  of  this  act,  in  any  district  or  cir- 
cuit court  of  the  United  States  of  competent  jurisdiction;  but 
such  person  or  persons  shall  not  have  the  right  to  pursue  both 
of  said  remedies,  but  must,  in  each  case  elect  which  one  of  the 
two  methods  of  procedure  herein  provided  for  he  or  they  will 
adopt. ' ' 

With  special  reference  as  to  whether  the  complaint  should  be 
made  before  the  Interstate  Commerce  Commission,  the  court 
say: 

"When  the  general  scope  of  the  act  is  enlightened  by  the 
considerations  just  stated,  it  becomes  manifest  that  there  is. not 
only  a  relation  but  an  indissoluble  unity  between  the  provisions 
for  the  establishment  and  maintenance  of  rates  until  corrected 
in  accordance  with  the  statutes  and  the  prohibitions  against 
preferences  and  discrimination.  This  follows,  because,  unless 
the  requirement  of  a  uniform  standard  of  rates  be  complied 
with,  it  would  result  that  violations  of  the  statute  as  to  prefer- 
ences and  discrimination  would  inevitably  follow.  Thjs  is 
clearly  so.  for  if  it  be  that  the  standard  of  rates  fixed  in  the 
mode  provided  by  the  statute  could  be  treated  on  the  complaint 
of  a  shipper  by  a  court  and  jury  as  unreasonable,  without 
reference  to  prior  action  by  the  Commission,  finding  the  estab- 
lished rate  to  be  unreasonable  and  ordering  the  carrier  to  desist 
in  the  future  from  violating  the  act.  it  would  come  to'  pass 
that  the  shipper  might  obtain  relief  upon  the  basis  that  the 
established  rate  was  unreasonable,  in  the  opinion  of  the  court 
and  jury,  and  thus  such  shipper  receive  a  preference  and  dis- 
crimination not  enjoyed  by  those  against  whom  the  sohedule  of 


NISI  PRIUS  REPORTS— NEW  SERIES.  459 

1903.]  Ohio  Dairy  Co.  v.  Railway. 

rates  was  continued  to  be  enforced.  *  *  *  If,  without  previ- 
ous action  by  the  Commission,  power  might  be  exerted  by 
courts  and  juries  generally  to  determine  the  reasonableness  of 
an  established  rate,  it  would  follow  that  unless  all  courts  reached 
an  identical  conclusion,  a  uniform  standard  of  rates  in  the 
future  would  be  impossible,  as  the  standard  would  conflict  and 
vary,  dependent  upon  the  divergent  conclusions  reached  as  to 
reasonableness  by  the  various  courts  called  upon  to  consider  the 
subject  as  an  original  question.  Indeed,  the  recognition  of  such 
a  right  is  wholly  inconsistent  with  the  administrative  power 
conferred  upon  the  commission,  and  with  the  duty  which  the 
statute  casts  upon  that  body,  of  seeing  to  it  that  the  statutory 
requirements  as  to  uniformity  and  equality  of  rates  is  observed. 
Equally  obvious  is  it  that  the  existence  of  such  a  power  in  the 
courts,  independent  of  prior  action  by  the  commission,  would 
lead  to  favoritism  and  the  enforcement  of  one  rate  in  one 
jurisdiction  and  a  different  one  in  another,  would  destroy  the 
prohibitions  against  preferences  and  discrimination  and  afford 
a  ready  means  by  which,  through  collusive  proceedings,  the 
wrongs  which  the  statute  was  intended  to  remedy  could  be 
successfully  inflicted.  Indeed  no  reason  can  be  perceived  for 
the  enactment  of  the  provision  endowing  the  administrative  tri- 
bunal which  the  act  created  •  *  *  if  the  power  was  left  in 
the  courts  to  grant  relief  on  complaint  of  any  shipper  upon  the 
theory  that  the  established  rate  could  be  disregarded  and  be 
treated  as  unreasonable,  without  reference  to  previous  action 
by  the  Commission  in  the  premises.  This  must  be,  because,  if 
the  power  existed  in  both  courts  and  the  Commission  to  orig- 
inally hear  complaints  on  this  subject,  there  might  be  a  diverg- 
ence between  the  action  of  the  Commission  and  the  decision  of  a 
court.  In  other  words,  the  established  schedule  might  be  found 
reasonable  by  the  Commission  in  the  first  instance,  and  unreason- 
able by  a  court  acting  originally,  and  thus  a  conflict  would  arise, 
which  would  render  the  enforcement  of  the  act  impossible." 

These  quotations  go  to  show  that  as  to  the  reasonableness  or 
unreasonableness  of  freight  rates  on  interstate  commerce,  the 
Interstate  Commerce  Commission  has  original  jurisdiction  per- 
taining to  the  same,  and  is  the  proper  tribunal  with  which  to 
lodge  complaints  of  the  character  involved  in  the  case  now  under 
consideration,  particularly  when  the  schedule  complained  of  is 
an  established  tariff,  legally  filed,  published  ■  and  posted  as  re- 
quired by  the  federal  statute,  as  is  conceded  in  this  case. 


460  LUCAS  COUNTY  COMMON  PLEAS. 

Ohio  Dairy  Co.  v.  Railway.  [Vol.  VII,  N.  a 

There  is  another  section  of  the  Interstate  Commerce  act  (Sec- 
tion 22)  which  bears  upon  this  subject,  and  should  not  be 
overlooked.     Tt  is  therein  provided: 

"Nothing  in  this  act  contained  shall,  in  any  way,  abridge  or 
alter  the  remedies  now  existing  at  common  law  or  by  statute, 
but  the  provisions  of  this  act  are  in  addition  to  such  remedies." 

In  construing  this  section,  however,  Justice  White  says: 

"This  clause,  however,  can  not  in  reason  be  construed  as  con- 
tinuing in  shippers  a  common  law  right,  the  continued  exist- 
ence of  which  would  be  absolutely  inconsistent  with  the  pro- 
visions of  the  act.  In  other  words,  the  act  can  not  he  held  to 
destroy  itself.  •  *  *  The  proposition  that  if  the  statute  be 
construed  as  depriving  courts  generally,  of  the  power  to  grant 
redress,  upon  the  basis  that  the  established  rate  was  unreason- 
able, without  previous  action  by  the  Commission,  great  harm 
will  result,  is  only  an  argument  of  convenience,  which  assails 
the  wisdom  of  the  legislation  or  its  efficiency,  and  affords  no 
justification  for  so  interpreting  the  statute  as  to  destroy  it." 

In  the  concluding  part  of  the  opinion  of  Justice  "White,  the 
following  language  is  used: 

"Concluding,  as  we  do,  that  the  shipper  seeking  reparation 
predicated  upon  the  unreasonableness  of  the  established  rate, 
must,  under  the  act  to  regulate  commerce,  primarily  invoke 
redress  through  the  Interstate  Commerce  Commission,  which 
body  alone  is  vested  with  power  originally  to  entertain 
proceedings  for  the  alteration  of  an  established  schedule,  be- 
cause the  rates  fixed  therein  are  unreasonable,  it  is  unnecessary 
for  us  to  consider  whether  the  court  below  would  have  had 
jurisdiction  to  afford  relief,  if  the  right  asserted  had  not  been 
repugnant  to  the  provisions  of  the  act  to  regulate  commerce. 
It  follows,  from  what  we  have  said,  that  the  court  below  erred 
in  the  construction  which  it  gave  to  the  act  to  regulate  com- 
merce." 

Agaiu,  it  in  said  in  the  case  of  U.  S.  v.  Railway,  122  Fed., 
544.  546: 

"But  in  that  case,  the  Interstate  Commerce  Commission  had 
never  granted  a  hearing,  or  made  an  order  in  the  matter  in- 


NISI  PRIUS  REPORTS— NEW  SERIES.  461 

IMS.]  Ohio  Dairy  Co.  v.  Railway. 

volved.  The  Commission  is  the  tribunal  instituted  by  the  govern- 
ment to  inquire  primarily  into  the  fact  as  to  whether  discrimi- 
nation exists.  Until  an  inquiry  is  there  made,  and  finding  and 
order  had,  the  jurisdiction  of  a.  court  of  equity  may  not  be  in- 
voked, because,  for  a  court  to  take  hold,  at  that  primary  point 
in  a  ease,  would  be  to  transfer  the  jurisdiction  of  the  Inter- 
state Commerce  Commission— the  jurisdiction  to  first  inquire 
into  the  facts — to  a  court  of  equity.  In  practical  application 
it  would  abolish  the  Interstate  Commerce  Commission  and  de- 
volve upon  a  master  in  chancery  the  preliminary  inquiry  into 
the  facts." 

Another  case  bearing  upon  this  controversy,  is  that  of  Kin- 
nossy  v.  Railway,  81  Fed.,  803,  the  court  there  using  this 
language : 

"The  rates  so  published  and  on  file  are  the  only1  rates  the 
carrier  can  charge,  and  any  variation  from  them  subjects  the  ' 
carrier  to  the  penalties  of  the  act.  ■  *  *  •  These-  rates  as 
published  and  filed  must  therefore  be  prima  facie  the  criterion 
in  determining  whether  a  given  charge  is  reasonable  or  not. 
If  the  charge  conforms  to  the  schedule  of  rates,  it  is  therefore 
prima  facie  reasonable.  Under  such  circumstances,  therefore, 
to  state  a  cause  of  action  based  upon  Section  1  of  the  act,  there 
must  be  an  averment  there  that  the  carrier  failed  to  publish  its 
schedule  of  rates,  or  that  it  charged  in  excess  of  the  rates  as 
published  and  then  in  force,  and  in  either  case  that  the  charge 
as  made  was  unreasonable,  or  an  averment  of  other  facts  suffi- 
cient to  do  away  with  the  prima  facie  effect  of  the  schedule 
rates. ' ' 

And  still  another  adjudication  might  be  cited.  In  the  case 
of  Texas  Pacific  Ky,  Co.  v.  Cisco  Oil  Mills,  204  U.  S.,  449,  the 
United  States  Supreme  Court  held  that  interstate  freight  rates 
are  established  when  a  schedule  thereof  is  filed  by  a  carrier 
with  the  Commission  and  copies  are  furnished  by  the  railway 
company  to  its  freight  offices,  although  such  rates  may  not  be 
"posted"  as  required  by  Section  6  of  the  act. 

In  view  of  these  decisions  to  which  we  have  called  attention, 
and  in  view  of  the  allegations  of  the  petition,  the  court  holds 
that  the  restraining  order  pendente  lite  heretofore  granted  by 
another  branch  of  this  court,  and  made,  as  is  frequently  done, 


SUPERIOR  COURT  OP  CINCINNATI. 

Cincinnati  Traction  Co.  v.  Jennings.     [Vol.  VII,  X.  S. 


upon  ej:  parte  hearing  and  without  argument  or  citation  of 
authorities,  should  be  dissolved, 

The  court  is  further  influenced  to  grant  the  motion  by  the 
well  established  rule  that  the  burden  of  establishing  the  right 
to  a  perpetual  injunction  is  upon  the  party  asking  for  it.  It 
is  true  that  the  court  is  not  asked  directly  to  make  restraining 
order  of  perpetual  binding  force  upon  the  railway  company. 
but  is  asked  to  continue  it  in  force  until  someone  else,  foreign 
to  this  case  and  in  some  other  jurisdiction,  obtains  in  the 
future,  in  a  similar  controversy,  a  decision  by  the  Interstate 
Commerce  Commission.  This  would  entail  a  delay  which  the 
defendant  vigorously  objects  to,  and  which  the  court  is  not 
warranted  in  favoring.  For,  as  is  so  often  said  in  different 
adjudications,  "the  court  will  grant  a  perpetual  injunction  only 
when  a  clear,  right  thereto  is  shown."  Spanglcr  v.  Cleveland, 
43  0.  S.,  526.  .',., 

This  being  a'  subject-matter,  therefore,  of  which  this  court  can 
not  entertain  jurisdiction,  the  motion  is  granted,  and  the  action 
dismissed. 


UNFAIR.  COMMENT  ON  THE  EVIDENCE. 

Superior  Court    or   Cincinnati,   General    Term. 

The  -Cincinnati    Traction   Co.   v.    Eva   Jenninor. 
Administratrix,  * 
Decided,  March  20,  1907. 

Negligence— In  Driving  in  Front  of  an  Electric  Car— Duty  of  Motorman 
to  have  His  Car  Under  Control — Charge  of  the  Court — Unfair 
Comment  on  the  Evidence  to  the  Jury — Exceptions  to  Action  of 
the  Court — Sufficient   Warning   to  the  Jwry. 

1.  The  salutary  rule  that  error  will  be  presumed,  where  a  trial  Judge 
talla  to  take  any  action  with  reference  to  unfair  comment  on  the 


•  Affirmed  by  the  Supreme  Court  without   report,  October  20,   190S, 
Cincinnati  Traction  Co,  v.  Jennings, 


NISI  PRIUS  REPORTS— NEW  SERIES.  468 

1908.]  Cincinnati  Traction  Co.  v.  Jennings. 

evidence  by  counsel,  does  not  apply  to  a  mere  desultory  remark  of 
the  character  made  by  counsel   In  this  case. 

2.  Where  objection  1b  made  to  a  statement  by  counsel  to  the  Jury,  and 

the  court  Ignores  the  objection,  an  exception  must  be  reserved 
If  counsel  desire  to  take  advantage  of  the  alleged  error,  and  if  the 
court  failed  to  rule,  the  exception  must  still  be  noted. 

3.  When  the  court  states  that  a  document  offered  In  evidence  Is  ruled 

out,  and  directs  the  Jury  not  to  consider  "any  testimony  out  of  the 
case" — that  document  or  anything  relating  to  It" — the  Jury  Is  fully 
cautioned  with  regard  to  it.  and  the  court  has  done  all  that  it 
can  fairly  be  asked  to  do. 

4.  It  Is  not  error  to  charge  that  where  the  Jury  have  found  that  both 

the  plaintiff  (driver  of  a  cab)  and  the  motorman  of  the  car  which 
collided  with  the  cab  were  negligent,  they  may  then  take  into  con- 
sideration whether  the  motorman  had  his  car  under  control  to 
such  an  extent  that  he  could  have  avoided  the  accident  after  he 
saw,  or  by  the';exerclse  of  ordinary  care  could  have  seen,  the 
vehicle  on  the  track.  ' 

5.  Nor  la  It  error  to  charge  that  "it  Ib  not  negligence  in  the  'driver  "of 

a  vehicle  to  attempt  to  cross  a  street  car  track  ahead  of  an  ap- 
proaching car,  when  the  car  is  so  far  away  that  by  the  exercise 
of  reasonable  care  it  might  have  been  stopped  before  reaching  the 
place  of  the  crossing,"  where  the  circumstances  of  the  case  render 
such  a  charge  appropriate. 

Kinkead  rf:  Rogers,  for  plaintiff  in  error. 
Healy  &  McAvoy,  for  defendant  in  error. 

Hoffheimer,  J. ;  IIorea,  J.,  concurs ;  SwiNO.  J.,  concurs  in  a 
separate  opinion. 

This  was  an  action  to  recover  damages  for  wrongful  death.  A 
substantial  verdict  was  rendered  by  the  jury  ($7,650).  and  in 
due  course  judgment  was  rendered  thereon-  There  is  no  claim 
that  the  verdict  is  against  the  weight  of  the  evidence,  but  error 
is  prosecuted  to  this  court  for  the  reasons  taken  up  seriatim — 

1,  It  is  claimed  that  there  was  misconduct  of  counsel  at  the 
conclusion  of  the  direct  examination  of  witness  Delia  Wright. 
Plaintiff  in  error  claims  that  counsel  contemptuously  remarked, 
and  in  the  hearing  of  the  jury:  "It  is  very  amusing."  At  page 
172  of  the  record  the  following  question  was  put: 

Q.    "Then  what  happened?" 


464  SUPERIOR  COITRT  OP  CINCINNATI. 

Cincinnati  Traction  Co.  v.  Jennings.     [Vol.  VII.  N.  S. 

A.     "There  was  a  crash. " 

Mr.  Rogers:     "That  is  all." 

Mr.  Healy:     "That  is  all.     It  is  very  amusing." 

Mr.  Kinkead:     "I  take  exception  to  the  remark  of  counsel." 

The  court  it  seems,  did  not  take  any  action,  and  the  claim  is 
now  made  that  this  failure  of  the  court  to  take  action  in  effect 
amounted  to  an  approval  of  counsel's  comment,  and  that  it 
led  the  jury  to  suppose  that  the  court  was  in  sympathy  with  the 
remark.  In  other  words,  that  the  remark  was  clearly  in  the 
nature  of  unfair  comment  on  the  evidence,  and  that  error  will 
be  presumed,  unless  it  affirmatively  appear  that  the  prejudicial 
tendency  had  been  removed  by  a  proper  instruction  given  by  the 
court,  or  by  a  retraction  of  counsel,  or  both.  C,  P.  &  E.  Rail- 
road v.  Prjtschau,  69  O.  S.,  438 ;  Hayes  v.  Smith,  62  0.  S.,  186. 

We  do  not  doubt  but  that  the  rule  announced  in  these  cases 
is  a  most  salutary  one,  when  applied  to  circumstances  justifying 
its  application,  but  we  do  not  believe  that  the  principle 
was  ever  intended  to  apply  to  a  mere  desultory  remark, 
such  as  this  appears  to  have  been.  In  the  Pritsehau  case  the 
comments  complained  of  were  numerous  and  untimely,  and  in 
the  Hayes  case  the  frequent  recurrence  of  the  objectionable 
conduct  is  thus  spoken  of  by  the  Supreme  Court: 

"Thus  sustained  and  passing  unrebuked  by  the  court,  al- 
though the  attention  of  the  latter  was  frequently  challenged  by 
counsel  for  defendant,  it  could  not  fail  to  impress  itself  on  the 
jury  as  sanctioned  by  the  character  of  counsel  and  approved  by 
the  trial  judge." 

2.  As  shown  on  page  206  of  the  record,  one  of  counsel  for 
plaintiff  below  in  addressing  the  jury  made  use  of  the  following 
language : 

"We  think  the  evidence  which  has  been  adduced  in  this  case 
has  met  substantially  the  statements  made  by  Mr.  Healy  in  his 
opening  statement  to  you,  although  it  has  been  with  great  diffi- 
culty apparently,  owing  to  the  objection  of  the  other  side  to  get 
at  the  facts  in  the  case." 

Counsel  for  plaintiff  in  error  objected  to  this  statement,  and 
the  court  said:     ^'Go  ahead."    By  directing  the  counsel  to  go 


NISI  PRIUS  REPORTS— NEW  SERIES.  4«6 

1908.1  Cincinnati  Traction  Co.  v.  Jennings. 

ahead,  it  is  claimed  the  court  below  expressly  endorsed  this 
language,  and  that  this  criticism  of  plaintiff  in  error's  counsel 
tended  to  prejudice  his  client  by  misleading  the  jury,  and  direct- 
ing their  minds  from  the  strict  line  of  inquiry  with  which  they 
were  charged.  We  note  that  the  record  discloses  plaintiff  in 
error's  objection,  and  that  the  court  did  not  rule  on  the  objec- 
tion. While  it  may  not  be  necessary  to  have  the  court's  ruling, 
an  exception  must  still  be  reserved.  No  exception  appears  to 
have  been  reserved,  and  consequently  the  point  can  be  given  no 
further  consideration. 

3.  It  is  claimed  that  the  court  erred  in  failing  to  instruct  the 
jury  that  they  were  to  disregard  some  alleged  statements  of 
counsel  for  plaintiff  below,  with  reference  to  a  certain  paper 
writing,  with  which  counsel  was  endeavoring  to  call  the  witness' 
attention,  evidently  to  some  prior  statement  made  therein.  It 
is  not  necessary  to  determine  whether  the  court's  ruling  was  cor- 
rect (the  court  sustained  plaintiff  in  error's  objection),  and  we 
note  that  the  court  after  it  was  requested  to  warn  the  jury  that 
they  were  not  to  pay  any  attention  to  any  remarks  in  regard  to 
the  paper,  said : 

The  Court:  "I  fear  I  would  make  a  mistake  as  much  as  if  I 
ruled  the  other  way.  I  would  have  to  go  into  the  grounds  for  the 
ruling  at  length." 

Mr.  Kinkead:    "I  just  want  them  warned." 

The  Court:  "I  will  say  to  the  jury,  I  don't  want  them  to 
consider  any  testimony  out  of  the  case.  I  have  ruled  that  out  of 
the  case;   that  document  or  anything  that  relate?  to  it." 

Mr.  Rogers:  "Or  any  other  statement  of  counsel  that  related 
to  that!" 

The  Court:    "No,  I  decline  to  do  that." 

When  the  court  said  that  the  testimony  sought  to  be  intro- 
duced was  ruled  out,  and  when  it  instructed  the  jury  that  it  was 
not  to  consider  any  testimony  out  of  the  case — "that  document 
or  anything  relating  to  it" — we  think  the  court  had  fully  and 
sweepingly  cautioned  the  jury  in  that  regard,  and  had  done  all 
that  could  have  fairly  been  asked.  Without  being  captious,  we 
do  not  see,  in  view  of  the  caution  thus  given  that  the  court's 
final  instruction,  that  the  jury  was  to  base  its  verdiet  on  "a 


SUPERIOR  COURT  OF  CINCINNATI. 


Cincinnati  Traction  Co.  v.  Jennings.     [Vol.  VII,  N.  8. 

consideration  of  the  evidence,"  how  plaintiff  in  error  could  have 
suffered  any  prejudice  for  the  reason  urged. 

4.  The  next  error  assigned  is  with  reference  to  the  court's 
general  charge  to  the  jury.  After  instructing  the  jury  on  the 
alleged  negligence  of  the  railroad  company  and  the  alleged 
negligence  of  deceased,  the  court  instructed  the  jury  that,  if  they 
should  find  that  the  company  was  negligent,  and  Jennings  was 
negligent — 

"Then  it  would  be  your  duty  to  go  another  step,  and  go  into 
the  examination  of  the  conduct  of  the  servants  of  the  railroad 
eompany  after  they  had  discovered,  or  in  the  exercise  of  ordinary 
care  could  have  discovered  the  danger  the  driver,  Jennings, 
was  in  at  the  time.  On  that  point  the  duty  is  on  the  railroad 
company,  through  its  motorman,  to  have  its  car  under  what  is 
called  control.  That  is,  the  car  must  be  in  the -power,  dominion 
and  government  of  the  motorman.  to  such  an  extent  that  when 
■he  saw  this  vehicle  on  the  track,'  or  when  by  the  exercise  of  or- 
dinary eare  in  his  duty  of  looking  out  and  watching  for  vehicles, 
he  ought  to  have  seen  this  cab  on  the  track,  he  could  stop  his 
car  within  a  reasonable  time  and  reasonable  distance,  so  as  to 
avoid,  if  possible,  the  collision."  , 

Counsel  for  plaintiff  in  error  asserts  that  the  court  below  in 
giving  this  charge  followed  P..  ('..  C.  rf-  St.  L.  v,  nail,  3  O.  L. 
K..  364.  and  asks  this  court  to  reverse  that  ruling.  Sine? 
the  case  under  consideration  has  been  submitted  the  Hall  case 
has  been  affirmed  by  the  Supreme  Court,  and  we  therefore  are 
of  opinion  that  the  charge  as  given  by  the  trial  court  was  proper. 
See.  also.  RaihCay  Co.  v.  Schadc,  15  C.  C,  424;  Railroad  Co.  v. 
Snell,  54  0.  S.,  206. 

5.  It  is  claimed  the  court  erred  in  giving  special  charge  Xo, 
1.    The  special  charge  is  as  follows: 

"It  is  not  negligent  in  the  driver  of  a  Vehicle  to  attempt  to 
cross  a  street  car  track  ahead  of  an  approaching  car,  when  the 
ear  is  so  far  away  that  by  the  exercise  of  reasonable  care  it  might 
have  stopped  before  reaching  the  place  of  crossing." 

We  think  this  was  justified  by  the  evidence.  See.  also.  Rail- 
road Co.  v.  Westenhuber,  22  C.  C,  67.  at  page  69  (affirmed  65 
0.  S.,  567). 


NISI  PRIUS  REPORTS— NEW  SERIES.  40T 

1908.]  Cincinnati  Traction  Co.  v.  Jennings. 

6.  Charge  No.  4  was  also  complained  of,  and  we  likewise 
think  this  charge  was  justified.  See  Nellis  on  Street  Railroad 
Company  Accident  Law,  at  page  704,  and  cases  cited, 

We  find  no  error  in  the  court's  refusal  to  give  the  next  special 
charge,  claimed  to  have  been  requested  by  defendant  below. 
The  record  states  that  this  charge  was  requested  by  plaintiff 
below,  but  if  we  have  any  right  under  these  circumstances  to 
consider  this  charge  at  all,  we  think  it  would  still  have  been  for 
the  jury  to  say  whether  the  deceased  had  been  negligent  in 
undertaking  to  pass  in  front  of  the  approaching  car. 

The  special  charges '  requested  by  defendant  below  we  think 
were  properly  refused,  and  we  are  of  opinion  that  the  general 
charge  of  the  court,  taken  as  a  whole,  was  a  fair  exposition  of 
the  law  governing  the  ease. 

Finding  no  error  prejudicial  to  the  plaintiff  in  error^  we  are 
of  opinion  that  the  judgment  should  be  affirmed,  and  it  is  so 
ordered. 

Swing,  J.   {concurring  opinion). 

I  have  been  slow  to  agree  with  the  majority  of  the  court  as 
to  the  correctness  of  the  charge  of  the  trial  court  to  the  jury  in 
the  respect  chiefly  complained  of  by  plaintiff  in  error. 

The  trial  court  in  the  charge  instructed  the  jury,  pages  ;>  and  fi 
of  the  record,  as  to  ordinary  care  on  the  part  of  the  motorman 
of  the  ear.  that  in  determining  the  question  they — 

"Would  have  a  right  to  say  from  the  testimony  how  rapidly 
was  the  ear  moving,  was  a  gong  being  sounded — was  it  sounded 
— whether  the  conditions  were  such  that  plaintiff  could  see  the 
approaching  car,  the  character  of  the  day,  and  all  the  circum- 
stances in  evidence  which  would  aid  you  in  determining  wheth- 
er ordinary  care  under  the  circumstances  of  the  ease  had  been 
exercised  by  the  defendant  company." 

Again,  record,  page  6,  the  court  said: 

"If  therefore  yon  should  find  that  the  accident  was  the  re- 
sult of  the  combined  negligence  of  both  plaintiff  and  defendant, 
or  that  it  would  not  have  occurred  unless  the  plaintiff  himself 
had  been  negligent,  then  no  recovery  can  be  had  by  the  plaintiff." 


488  SUPERIOR  COURT-  OP  CINCINNATI. 

Cincinnati  Traction  Co.  v.  Jennings.     [Vol.  VII,  N.  S. 

Again,  record,  page  7 : 

"It  must  appear  before  recovery  caa  be  had  that  plaintiff 
was  not  guilty  of  contributory  negligence." 

The  court  further  said,  record,  page  8: 

"The  duty  imposed  upon  the  defendant  was  a  duty  upon  the 
part  of  the  motorman  to  keep  a  vigilant  watch  and  look  out  for 
vehicles  and  persons  who  might  be  upon  the  track — or  ap- 
proaching the  track — and  you  are  to  say  from  the  evidence, 
whether  he  did  keep  such  vigilant  watch  and  look  out." 

Further,  record,  page  9,  the  court  said : 

"If  the  motorman  saw,  or  in  the  exercise  of  his  duty  should 
have  seen  the  vehicle  on  the  track  or  approaching  the  track, 
then  the  duty  was  imposed  upon  him  of  giving  such  a  warning  or 
signal  as  a  man  of  ordinary  prudence  would  have  given." 

The  court  charged  the  jury  quite  clearly,  record,  pages  10j 
11,  12,  13,  14,  as  to  the  duty  of  plaintiff  being  upon  the  track 
and  the  law  as  to  contributory  negligence  on  his  part,  what 
due  care  on  his  part  required,  stating  again  that  if  he  acted 
without  such  care  and  so  directly  contributed  to  the  happening 
of  the  accident,  he  could  not  recover. 

With  all  these  matters  contained  in  the  charge  no  fault  can  be 
found. 

But  the  complaint  is  that  after  so  charging  the  jury,  the 
court,  record,  pages  14,  15,  said: 

"If  you  should  find  that  there  was  negligence  upon  the  part 
of  the  railroad  company  and  negligence  on  the  part  of  Jen- 
nings, then  it  would  be  your  duty  to  go  another  step  and  go  into 
the  examination  of  the  conduct  of  the  servants  of  the  company 
after  they  had  discovered  or  in  the  exercise  of  ordinary  care 
ought  to  have  discovered  the  danger  the  driver,  Jennings,  was 
in  at  the  time.  On  that  point,  the  duty  is  upon  the  railroad 
company,  through  its  motorman,  to  have  his  ear  under  what  is 
called  control,  that  is,  the  ear  must  be  in  the  power  of  the 
motorman  to  such  an  extent  as  that  when  he  saw  this  vehicle  on 
the  tracks — or  when  by  ordinary  care  in  his  duty  of  looking 
out  and  watching  for  vehicles  he  ought  to  have  seen  this  cab 
on  the  track — he  could  stop  his  ear  within  reasonable  time  and 
distance  so  as  to  avoid  if  possible  the  collision." 


NISI  PRIUS  REPORTS-vNEW  SERIES.  489 

1908.1  Cincinnati  Traction  Co.  v.  Jennings. 

It  is  urged  by  counsel  for  plaintiff  in  error  that  while  it  is 
the  law  that  the  motorman  after  he  has  seen  the  vehicle  in 
danger  must  use  his  endeavors  to  stop  the  ear  and  avoid  in- 
jury, and  a  failure  to  do  so,  where  the  injury  eould  have  been 
avoided  by  his  doing  so,  will  excuse  contributory  negligence,  yet 
actual  knowledge  on  the  part  of  the  motorman  is  neces- 
sary to  the  application  of  the  rule,  and  that  is  was  error 
for  the  court  to  say  that  if  he  did  not  use  sueh  endeavors  after 
he  saw,  or  after  he  could  have  seen  the  danger  if  he  had  kept 
proper  watch,  the  plaintiff  could  recover  notwithstanding  con- 
tributory negligence;  that  while  a  failure  to  see  when  he  ought 
to  have  seen  is  negligence  which  makes  the  company  liable,  it 
is  not  such  negligence  as  will  excuse  contributory  negligence; 
that  the  court  had  already  charged  the  jury  to  that  effect  and 
that  this  last  charge  was  necessarily  a  contradiction  of  the 
former  instruction  if  not  itself  contradictory  in  terms.  This  seems 
to  me  true  unless  it  can  be  said  that  there  may  be  negligence  in 
not  seeing  and  then  further  negligence  in  not  seeing. 

But  after  having  read  the  entire  record  in  the  case,  and  after 
having  considered  the  whole  charge  with  care,  I  am  inclined  to 
think  the  error,  if  error  it  was,  not  so  calculated  to  mislead  and 
confuse  the  jury  as  to  have  been  prejudicial  to  the  defendant 
company  and  to  require  e  new  trial  of  the  case,  the  verdict  be- . 
ing  warranted  by  the  evidence. 

I  am  the  more  inclined,  if  not  indeed  required,  to  concur  with 
my  associates  in  affirming  the  judgment  of  the  court  below  as 
to  this  question  in  the  charge  for  the  following  reasons:  This 
court.  General  Term,  Judge  Littleford  of  Common  Pleas  sitting 
and  dissenting,  in  case  of,  Veronicka  Hall  v.  P.,  C,  C.  <&  St. 
L.  By.  Co.,  Vol.  3  O.  L.  R.,  p.  364,  held,  as  stated  in  the  sylla- 
bus, as  follows: 

"It  is  a  proper  instruction  to  the  jury  to  say  that  a  plaintiff 
may  recover  notwithstanding  his  own  negligence  exposed  him 
to  risk  of  injuries  of  "which  he  complains,  if  the  defend- 
ant after  he  became  aware  or  ought  to  have  become  aware  of 
the  plaintiff's  danger,  failed  to  use  ordinary  care  to  avoid  in- 
juring him,  and  was  thereby  injured." 


.470  SUPERIOR  COURT  OP  CINCINNATI. 

Cincinnati   Traction   Co.   V.   Jennings.      [Vol.  VII,  N.  S. 

The  judgment  of  this  court  in  the  Hall  case  was  recently 
affirmed  by  the  Supreme  Court  without  report. 

The  same  charge,  or  substantially  the  same,  was  held  good 
in  the  Circuit  Court  of  Cuyahoga  County  in  the  ease  of  L.  S. 
&  1&.  S.  Ry.  Co.  v.  Schade,  15  C.  C,  424,  which  was  affirmed  by 
the  Supreme  Court  without  report.  The  last  reported  ease  on 
the  same  or  substantially  the  same  question,  as  it  appears  to  me. 
decided  by  our  Supreme  Court,  is  the  case  of  The  Erie  R.  R. 
Co.  v.  McCormick,  69  0.  S.,  45,  in  which  it  is  held  in  the 
syllabus  as  follows: 

"In  an  action  against  a  railroad  company  by  one  who,  by 
his  own  fault,  is  upon  its  tracks  and  in  a  place  of  danger,  to 
recover  for  a  personal  injury  caused  by  the  failure  of  its  em- 
ployes operating  one  of  its  trains  to  exercise  due  care  after 
knowledge  of  his  peril,  it  is  necessary  to  show  actual  knowl- 
edge imputable  to  the  company.  R.  R.  Co.  v.  Kassen,  49  0.  S.. 
230,  distinguished." 

In  the  opinion  in  the  McCormick  case,  the  court,  speaking  of 
"the  law  which  defines  liability  for  the  wanton  and  willful  in- 
fliction of  the  injury,"  says: 

"The  concrete  rule  upon  the  subject  is  that  if  one  is  upon 
the  track  of  a  railroad  company  by  his  own  fault  and  in  peril 
-of  which  he  is  unconscious,  or  from  which  he  can  not  escape, 
and  these  facts  are  actually  known  by  the  engineer,  it  is  his 
duty  to  exercise  all  reasonable  care  to  avoid  the  infliction  of 
injury." 

Again  it  is  said  in  discussing  the  Kassen  case: 

"It  is  entirely,  clear,  therefore,  that  the  liability  of  the  com- 
pany was  placed  upon  the  sole  ground  that  after  receiving  act- 
ual notice  that  Kassen  was  upon  the  track  and  in  a  position  of 
peril,  it  failed  to  use  the  means  at  hand  to  avoid  injury  to  him." 

It  is  also  said  in  the  opinion  as  to  the  rule: 

"It  does  not  impose  the  duty  to  exercise  care  to  discover  thst 
one  is  so  upon  the  tracks  (i.  e..  upon  the  track  by  his  own  fault  1, 
is -in -a -place- of  danger,  but  it  does  impose  a  duty  to  be  exer- 
cised upon  the  actual  discovery." 


NISI  PRIUS  REPORTS— NEW  SERIES.  471 

1908.]  Cincinnati  Traction  Co.  v.  Jennings. 

The  decision  in  the  McCormick  case  has  not  been  reversed  or 
modified  by  our  Supreme  Court  in  any  reported  case. 

It  is  urged  that  the  rule  stated  in  the  McCormick  case  does  not 
apply  to  a  street  railway  case,  where  a  person  had  an  equal 
right  with  the  street  car  to  the  use  of  the  part  of  the  street 
occupied  by  the  ear  tracks  and  where  the  motorman  is  required 
to  keep  a  look  out  for  persons  on  the  track.  Although  it  is 
held  in  Kistler  v.  P.,  C,  C.  &  St.  L.  R.  R.,  66  0.  8.,  326,  that 
"It  is  the  duty  of  a  locomotive  engineer  to  keep  a  look  out  on 
the  track  ahead  of  the  train."  and  to  use  ordinary  care  to 
prevent  injury  to  a  person  who  is  evidently  going  on  the  track. 
I  am  not  able  to  see  clearly  that  the  distinction  is  a  good  one. 
I  am  not  able  to  see  clearly  how  there  can  be  "the  wanton  and 
willful  infliction  of  injury"  in  a  street  railway  case  any  more 
than  in  a  steam  railway  case,  without  aetual  knowledge,  or  how 
it  can  be  said  that  if  the  defendant  company  was  negligent  in 
not  seeing  the  person  on  the  track  and  the*  person  on  the  track 
was  also  negligent,  guilty  of  contributory  negligence,  the  plaint- 
iff can  not  recover,  and  yet  that  it  can  be  said  that  if  the  de- 
fendant company  was  guilty  of  negligence  in  not  knowing  that 
the  plaintiff  was  on  the  track,  such  negligence  will  excuse  the 
contributory  negligence  of  the  plaintiff  under  all  the  circum- 
stances. 

If  the  plaintiff  in  a  street  car  damage  case  can  not  be  held 
accountable  for  contributory  negligence  when  the  negligence 
of  the  motorman  was  in  not  seeing  him  when  he  should  have 
seen  him,  is  there  then  any  such  thing  as  contributory  negli- 
gence in  a  case  where  one  is  struck  by  a  moving  ear? 

I  do  not  say  that  there  may  not  be  a  case  in  which  the  negli- 
gence is  so  gross  as  to  be  practically  "wanton  and  willful."  and 
wicked,  but  that.  I  think  would  be  different  from  the  ordinary 
ease  of  negligence  of  the  motorman  in  not  seeing  when  he  should 
have  seen,  and  governed  by  a  different  rule,  the  very  mle  as  to 
wanton  and  willful  negligence  where  the  failure  to  see  was 
practically  as  gross  and  culpable  misconduct  as  the  failure  to 
use  care  after  seeing,  but  it  is  not  claimed  that  this  is  such  a 
ease. 


472  SUPERIOR  COURT  OF  CINCINNATI. 

Cincinnati  Traction  Co.  v.  Jennings.     [Vol.  VII,  N.  H. 

Nevertheless,  as  I  have  said,  in  view  of  the  facts  in  this  case, 
regarding  the  verdict  as  warranted  by  the  evidence,  and  con- 
sidering the  error,  if  any  there  was,  as  not  prejudicial  in  this 
particular  case,  and  in  view  of  the  decisions  which  I  have  quoted 
as  affirmed  without  report,  I  concur  in  the  affirmance  of  the 
judgment  of  the  court  below. 


Opinion  on  Rehearing. 

Per  Curiam. 

The  overwhelming  consensus  of  testimony  shows  that  the  de- 
fendant's cab  was  upon  the  car  track  in  front  of  the  car  a  con- 
siderable time  before  the  collision.  The  plaintiff  in  error  at- 
tempted to  show  that  it  turned  completely  out  of  the  track  and 
the  motorman  put  on  increased  power,  and  that  defendant's 
cab  came  on  to  the  track  again  too  close  to  the  car  to  avoid  a 
collision.  This  was '  the  issue  of  fact  submitted  to  the  jury. 
Their  verdict  is  in  accordance  with  the  weight  of  the  testi- 
mony in  favor  of  the  contention  of  plaintiff  below,  and  cuta  out 
the  basis  of  fact  on  which  alone  the  last  chance  doctrine  could 
rest. 

Under  the  testimony  we  do  not  see  how  any  other  verdict  could 
be  sustained.  This  being  so,  the  errors  of  the  trial  court  com- 
plained of  are  immaterial.  5  0.  8.,  88;  8  0.  S.,  405;  37  0. 
8.,  49;    49  0.  S.,  82. 

Judgment  affirmed. 


NISI  PRIUS  REPORTS— NEW  SERIES. 

Augustus  v.   Lynd   et   al. 


SELECTION  OV  NEWSPAPER.  FOR.  ADVERTISING 
SHERirr S  SALE. 

Common  Fleas  Court  of  Lawrence  County. 

Augustus  v.  Lynd  et  al. 

Decided,  October  22,  1908. 

Judicial  Bates — Right  of  Sheriff  to  Select  Newspaper  for  Advertising 
Bale — Master  Commissioner — Appointment  of,  to  Convey  Prop- 
erty can  only  be  Made,  When — Section*  59.19,  SS93  and  .}87fW. 

1.  The  appointment  of  a  special  master  commissioner  for  tbe  sale  of 

specfflc  property,  together  with  tbe  special  reason  or  reasons  why 
the  sale  should  not  be  made  by  the  sheriff  of  the  county,  should  be 
embodied  In  and  made  part  of  tbe  Judgment,  order,  or  decree 
ordering  tbe  sale. 

2.  The  refusal,  by  the  sheriff,  of  a  request  of  the  Judgment  creditor  to 

Insert  the  notice  of  sale  In  a  particular  newspaper  Is  not  a 
ground  for  the  appointment  of  a  special  master  commissioner  to 
make  tbe  Bale. 

3.  The  statute  makes  it  the  duty  of  the  sheriff  to  give  public  notice 

of  the  time  and  place  of  sale  In  a  newspaper;  and  he  may  select 
any  paper  he  pleases,  subject  only  to  the  statutory  requirement 
that  the  paper  so  selected  be  one  printed  and  of  general  circula- 
tion in  the  county. 

J.  0.  Yates  and  T.  A.  Jenkins,  for  the  motion. 

A.  H.  Johnson,  contra.  } 

Corn,  J. 

This  cause  is  now  before  the  court  upon  a  motion  by  plaintiff 
for  the  appointment  of  a  special  master  commissioner  to  ap- 
praise, advertise  and  sell,  as  upon  execution,  the  property  de- 
scribed in  the  petition. 

On  April  24.  1908.  the  plaintiff  tiled  a  petition  in  ordinary 
form,  seeking  a  money  judgment  against  the  defendants,  and 
the  foreclosure  of  a  mortgage,  upon  the  real  estate  described. 
given  to  secure  the  debt.  The  defendants  made  default,  and 
at  the  present  term  Mr.  Jenkins,  one  of  the  counsel   for  the 


474  LAWRENCE  COUNTY  COMMON  PLEAS. 

Augustus  v.  Lynd  et  al.  [Vol.  VII,  N.  a 

plaintiff,  asked  and  obtained  a  default  judgment  against  the 
defendants  for  $2,200,  with  interest,  and  an  order  of  foreclosure 
and  sale  of  the  premises  described;  at  the  same  time  making 
W.  Wilson  Lynd  a  party  defendant  and  a  summons  was  allowed 
to  issue  for  him;  the  court's  minutes  made  on  the  docket  are 
these:  "Judgment  for  plaintiff  for  $2,200  with  interest;  fore- 
closure and  order  of  sale;  W.  Wilson  Lynd  made  defendant; 
summons  issued." 

No  journal  entry  of  this  judgment  has  been  made  except  as 
to  that  portion  making  Dr.  Lynd  a  party;  by  taking  notice  of 
the  records  of  the  court  it  appears  that  this  judgment  and 
order  were  taken  on  September  15,  1908,  no  mention  being 
made  at  that  time  of  a  master  commissioner;  and  so  far  as  the 
court  is  advised  it  was  then  the  intention  that  the  sheriff  should 
receive  the  order  and  make  the  sale  in  the  ordinary  way. 

It  appears  that  some  differences  arose  between  the  plaintiff's 
counsel  and  sheriff  as  to  what  newspaper  should  make  the  pub- 
lication of  the  notice  of  the  sale,  the  attorneys  claiming,  and 
the  sheriff  denying,  their  right  to  designate  the  paper  in  which 
he  should  insert  the  notice  of  sale. 

Thereupon,  on  September  29,  1908,  upon  the  foregoing  status 
of  the  case,  the  plaintiff's  attorneys  filed  a  motion  for  the  ap- 
pointment of  a  special  commissioner  to  appraise,  advertise  and 
sell  said  premises,  and  for  the  following  reasons: 

First.  That  the  sheriff  of  Lawrence  county  has  unlawfully 
entered  into  an  unlawful  agreement  with  the  Register  Publishing 
Company  of  Ironton,  Ohio,  by  virtue  of  which  agreement  tin; 
said  sheriff  has  bound  himself  to  place  with  the  said  Register 
Publishing  Company  for  publication  all  of  the  publications,  ad- 
vertisements, legal  notices,  and  other  kindred  business  that  comes 
through  his  hands  by  virtue  of  his  office,  thereby  giving  to  the 
said  Register  Publishing  Company  a  monopoly  of  the  public 
printing  of  his  office,  and  enahling  said  company  to  charge  un- 
reasonable and  illegal  fees  for  said  work. 

Second.  By  reason  of  said  above  agreement  with  the  said 
Register  Publishing  Company,  said  company  has  charged  un- 


NISI  PRIUS  REPORTS— NEW  SERIES.  476 

1908.]  Augustus  v.    Lyrid   et   al. 

reasonable  and  illegal  fees  while  the  same  services  could  have 
been  procured  from  other  publishing  companies  at  a  more  rea- 
sonable rate. 

Third.  The  different  attorneys  at  this  bar,  including  the 
undersigned,  have  on  numerous  occasions  complained  to  the  elerk 
and  sheriff  of  the  unreasonable  and  illegal  charges  made  for 
publications  by  said  Register  Publishing  Company,  and  have 
protested  to  the  sheriff  against  his  placing  the  publication  of 
their  clients  in  the  hands  of  the  said  Register  Publishing  Com- 
pany, but  notwithstanding  said  complaints  and  protests  the 
sheriff  has  placed,  and  still  insists  on  placing,  all  publications 
of  his  office  with  said  publishing  company,  although  said  pub- 
lishing company  continued  to  charge  unreasonable  and  illegal 
fees,  notwithstanding  the  complaints  and  protests  of  the  at- 
torneys, to  the  great  prejudice  and  against  the  interest  of  parties 
to  proceedings  in  the  court. 

Fourth.  That  the  sheriff  of  Lawrence  county  insists  that 
the  publications  in  the  above  entitled  cause  must  be  given  to 
the  Register  Publishing  Company,  over  the  protests  of  the  at- 
torneys for  the  plaintiff  in  the  case  and  when  the  publications 
can  be  had  from  other  publishing  companies  at  a  more  reason- 
able rate. 

This  motion  is  verified  by  Mr.  Yates,  one  of  the  attorneys. 

The  sheriff  appears  by  counsel,  and  though  filing  no  answer 
or  denial,  the  matter  is  heard  as  though  a  denial  of  all  the  al- 
legations had  been  entered. 

If  a  master  commissioner  or  special  commissioner  can  be  ap- 
pointed, it  must  be  by  virtue  of  Revised  Statutes,  Section  5399. 
This  section  provides  that  real  property  may  be  conveyed  by 
master  commissioner  or  special  master  only  in  two  cases: 

First.  "When  by  order  or  judgment  in  an  action  or  proceed- 
ing a  party  is  ordered  to  convey  such  property  to  another  and 
h?  neglects  or  refuses  to  comply  with  the  order  or  judgment, 
and  the  master  is  directed  to  convey  on  failure  of  the  party 
to  comply  with  the  order."  Well,  that  is  clearly  not  applica- 
ble to  this  case. 


476  LAWRENCE  COUNTY  COMMON  PLEAS. 

Augustus  t.  Lynd  et  al.  [Vol.  VII.  N.  S. 

Second.     ""When  specific  real  property  is  sold  by  a  master 
under  an  order  of  the  court." 
But  the  section  further  provides: 

"No  court  within  this  state  shall  make  or  issue  an  order  to 
any  master  commissioner  for  the  sale  of  any  real  estate  unless 
there  exists  some  special  reason  or  reasons  why  the  sale  of  said 
real  estate  should  not  be  made  by  the  sheriff  of  the  county 
where  said  decree  or  order  shall  be  made;  which  said  reason, 
or  reasons,  if  the  court  shall  find  any  such  to  exist,  shall  be  em- 
bodied by  said  court  in,  and  made  part  of  its  judgment,  order, 
or  decree  ordering  such  sale." 

Now  the  court  made  its  judgment  and  decree  ordering  this 
sale  fourteen  daj's  before  the  motion  for  the  special  master  was 
filed  or  the  question  raised ;  the  court,  therefore,  could  not  and 
did  not  embody  the  appointment  of  the  special  commissiouer 
and  the  special  reason,  or  reasons,  if  any  existed,  for  such  ap- 
pointment, and  why  the  sheriff  should  not  make  the  sale,  in 
its  judgment  ordering  the  sale. 

In  my  judgment,  then,  this  motion  comes  too  late.  The  fact 
that  no  entry  of  this  judgment  had  been  made  oo  the  journal 
makes  no  difference,  for  such  record  is  made  for  the  purpose 
of  preserving  the  evidence  of  what  was  actually  transacted 
(Lessee  of  Mitchell  v.  Eyster,  7th  O.  [pt.  1],  page  258);  so 
that  when  the  record  is  made  showing  correctly  what  was  trans- 
acted, it  will  show  that  the  judgment  and  order  of  sale  did  not 
embody  the  appointment  of  a  special  master  and  the  special 
reason  or  reasons  therefor,  as  provided  in  Section  5399. 

This  would  seem  to  dispose  of  this  question,  but  this  mo- 
tion is  of  such  importance  and  containing,  as  it  does,  charges 
seriously  reflecting  upon  the  sheriff,  an  officer  of  this  court, 
that  I  deem  it  proper,  in  fact  almost  obligatory  upon  me,  to 
take  up  the  whole  question  and  dispose  of  it  upon  its  merits, 
notwithstanding  my  notion  of  this  section  of  the  statutes. 

TTpon  the  evidence  offered  I  find  that  the  plaintiff  has  wholly 
failed  to  make  out  a  single  one  of  the  charges  she  makes  against 
the  sheriff,  and  so  far  as  this  court  is  able  to  do  so,  it  com- 


NISI  PRIUS  REPORTS— NEW  SERIES.  477 

1908.]  Augustus  v.  Lyod  et  al. 

pletely  exonerates  the  sheriff  from  whatever  imputation  is  con- 
tained in  the  motion. 

Taking  up  the  assignments  seriatim: 

The  evidence  shows  conclusively  that  no  such  agreement  as 
claimed  in  the  first  assignment,  in  the  sense  of  an  agreement, 
was  ever  entered  into  by  the  sheriff  and  the  Register  Publish- 
ing Company;  the  sheriff's  sales  book,  which  was  in  evidence, 
or  inquired  about,  and  exhibited,  shows  as  a  fact  that  very  re- 
cently he  has  inserted  notices  of  sales  in  another  paper,  notably, 
Star  Building  &  Loan  Co.  v.  Vinson,  No.  9843,  page  104;  and 
the  same  plaintiff  v.  Davis,  No.  9820,  on  page  102  of  the  sheriff's 
sales  book ;  this  conclusively  shows,  in  my  opinion,  that  the  sher- 
iff has  not  placed  all  of  the  publications  of  his  office  with  the 
said  Register  Publishing  Company,  and  does  not  insist  on  plac- 
ing all  of  his  publications  with  said  publishing  company.  Be- 
sides, the  sheriff  and  Mr.  Moore,  manager  of  the  Register  Pub- 
lishing Company,  with  whom  it  is  claimed  the  agreement  was 
made,  both  swear  most  positively  that  no  such  agreement  nor  any 
agreement  was,  in  fact,  made. 

The  only  evidence1  offered  to  prove  the  allegations  of  the  mo- 
tion relative  to  this  alleged  agreement  is  statements  claimed  to  ' 
have  been  made  by  the  sheriff.  Every  lawyer  knows  how  this 
class  of  testimony  is  to  be  received  and  regarded  (Crowell  v. 
Bank,  3d  0.  S..  406,  413).  and  counsel  who  held  this  conversa- 
tion must  have  honestly  misunderstood  the  sheriff,  or  the 
sheriff  did  not  make  his  meaning  plain. 

The  second  assignment  is:  "By  reason  of  said  above  agree- 
ment with  the  Register  Publishing  Company,  said  company  has 
charged  unreasonable  and  illegal  fees,  while  the  same  service 
could  have  been  procured  from  other  publishing  companies  at 
a  more  reasonable  rate." 

I  have  already  found  that  no  such  agreement  existed,  ftnd 
the  evidence  failed  to  show  that  such  services  could  have  been 
procured  at  a  more  reasonable  rate.  On  the  contrary  Mr. 
Danghtery.  manager  of  the  Star,  a  witness  offered  to  sustain  this 
allegation,  told  the  court  that  the  type  used  by  his  company 


478     LAWRENCE  COUNTY  COMMON  PLEAS. 

Augustua  v.  Lynd  et  el.  [Vol.  VII,  N.  S. 

and  the  manner  of  setting  it  will  make  precisely  the  same  num- 
ber of  squares  as  that  of  the  Register,  and  that  his  company 
charges  precisely  the  same  rate  as  the  Register. 

It  is  true  that  Mr.  Yates  says  that  he  has  an  agreement  with 
the  /ronton tau  to  have  his  printing  done  at  a  discount,  and  that 
he  thinks  it  would  reach  a  publication  by  the  sheriff  in  a  case 
in  which  he  is  counsel;  but  from  all  the  court  could  see  at  the 
hearing  and  learn  from  the  evidence  the  Irontonian  was  never 
seriously  considered  by  any  of  the  parties;  and  Mr.  Yates 
states,  also,  that  in  all  publications  requiring  insertion  in  two 
papers  of  opposite  politics  his  impression  was  that  the  charges 
were  the  same  in  both  papers. 

As  to  the  third  assignment,  I  find  that  there  is  no  evidence  to 
show  that  prior  to  this  controversy  the  sheriff  had  notice,  nor 
had  any  protest  been  made  to  him,  that  the  charges  for  print- 
ing made  by  the  Register  Publishing  Company  were  not  in  ac- 
cordance with  the  legal  rate,  nor  that  the  publications  were 
not  properly  measured.  The  sheriff  testifies  very  positively 
about  this,  and  while  counsel  is  clear  that  complaint  was  made 
to  the  clerk  (and  that  is  where  it  should  -be  made,  or  to  the 
court),  he  does  not  claim  that  prior  to  this  time  any  complaint 
was  made  to  the  sheriff. 

There  can  be  no  question  that  the  charges  made  by  the  Rrgis- 
Irr  in  the  several  instances  inquired  about  exceeded  the  amount 
which  a  correct  measurement,  at  the  legal  rate,  would  permit 
them  to  charge,  but  the  evidence  is.  that  this  arose  from  an 
honest  mistake  that  their  method  of  measurement  brought  about 
the  same  result  as  the  eorree.t  method;  as  soon  as  they  learned 
that  they  were  wrong,  they  adopted  the  proper  method  of 
measurements.  And  these  excess  charges  should  have  been  cor- 
rected by  a  motion  to  retax  costs. 

The  fourth  assignment  has  been  sufficiently  covered  by  what 
[  have  said  under  the  other  assignments. 

If  charges  in  this  or  any  other  case  exceed  those  allowed  by 
law.  the  proper  remedy  is  a  motion  to  retax  costs,  and  not  an 
npplioation  for  a  special  master  commissioner  to  deprive  the 


NISI  PBIUS  REPORTS— NEW  SERIES.  478 

190S.1  Augustus  v.  Lynd  et  al. 

sheriff  of  some  of  his  duties,  and  the  emoluments  of  his  office. 

Not  only  has  the  sheriff  a  right  to  the  full  emoluments  of  the 
office  to  which  he  has  been  elected  by  the  people,  but  the  county, 
under  the  salary  law,  is  interested  in  having  the  fees  earned  by 
the  sheriff  covered  into  the  officers'  fee  fund,  and  these  rights 
should  not  be  abridged  without  some  good  reason  for  it. 

Now  the  real  question  here  is  whether  a  party  to  an  action  in 
whose  favor  a  decree  for  the  sale  of  specific  property  has  been 
made  has  a  right  to  require  the  sheriff  to  publish  a  notice  of  it 
in  a  newspaper  designated  by  such  party.  And  while  counsel 
have  filed  their  motion  in  the  utmost  good  faith,  it  seems  to 
me  that  this  question  eould  have  been  squarely  raised  upon  an 
application  to  the  court  for  that  purpose. 

On  the  question  of  the  publication  of  notices  of  sale,  except 
as  to  German  newspapers,  Section  5393,  Revised  Statutes,  gov- 
erns.    I  read  such  extracts  as  are  applicable: 

"Lands  and  tenements  taken  in  execution  shall  not  be  sold 
until  the  officer  causes  to  be  given  notice  of  the  time  and  place 
of  the  sale,  for  at  least  thirty  days  before  the  day  of  the  sale, 
hy  advertisement  in  a  newspaper  printed  and  of  general  circu- 
lation in  the  comity ;  •  •  *  hut  if  there  is  published  both  a 
daily  and  weekly  edition  of  the  paper  selected  for  such  adver- 
tisement #  *  *  it  shall  be  sufficient  to  publish  the  adver- 
tisement in  the  daily  once  a  week  for  five  consecutive  weeks." 
etc. 

While  the  motion  docs  not  call  for  a  decision  of  this  question. 
the  claim  was  made  in  the  evidence  of  the  attorneys  for  the  mo- 
tion of  such  right  in  their  client,  and  the  court  will  dispose  of 
this  question. 

It  is  my  opinion  that  Section  5393  casts  this  duty  upon  the 
officer  alone,  and  h?  and  his  bondsmen  are  responsible  for  the 
proper  discharge  of  that  duty.     The  language  is: 

"Lands  and  tenements  taken  in  execution  shall  not  be  sold 
until  the  officer  causes  to  be  given  public  notice  of  the  time  and 
place  of  the  sale." 

And  further:  "If  there  is  published  both  a  daily  and  weekly 
edition  of  the  newspaper  selected  for  such  advertisement,"  etc. 


480  LAWRENCE  COUNTY  COMMON  PLEAS. 

Augustus   V.   Lyntl   et   al.  (Vol.  VII,  N.  8. 

Selected  by  whom?  The  selection  must  be  made  by  same- 
body;  and  who  is  that  somebody  unless  it  be  the  officer  whose 
duty  it  is  to  make  the  publication  and  see  that  it  complies  in 
all  respects  with  the  law  governing  the  same!  He  has,  in  my 
opinion,  a  discretion  in  the  matter,  which  is  limited  only  by 
the  statute  which  requires  him  to  select  "a  newspaper  printed 
and  of  general  circulation  in  the  county." 

The  approval  of  the  publication  and  allowance  of  the  costs  are 
by  Section  4370-1,  Revised  Statutes,  cast  upon  the  clerk  or  the 
court. 

Section  4370-1.  "That  every  publication  of  any  advertise- 
ment, notice,  or  proclamation  required  to  be  published  in  a 
newspaper  by  a  trustee,  assignee,  executor,  administrator,  re- 
ceiver, or  any  other  officer  of  the.  court,  or  any  party  in  any 
case  or  proceeding  shall  be  approved  by  the  court  or  clerk 
thereof,  and  allowed  as  a  part  of  the  costs  in  the  case  or  pro- 
ceedings." 

The  view  the  court  has  taken  of  the  sheriff's  right  in  such 
matters  seems  to  be  sustained  by  the  ease  of  The  State,  ex  rel, 
v.  Tual,  Sheriff,  in  the  16th  Circuit  Court  Report,  p.  680.  This 
case  was  a  proceeding  in  mandamus  in  form,  but  the  circuit 
court  found  that  it  was  in  snb-stance  an  action  to  enjoin  the 
sheriff  from  making  the  publication  in  a  certain  paper,  and  the 
circuit  court  dismissed  the  action  because  it  had  no  original 
jurisdiction  in  injunction  cases.  The  facts- of  the  ease,  briefly 
stated  as  shown  by  the  petition,  are  that  one  Samuel  A.  Hunter, 
as  treasurer,  obtained  a  judgment  against  the  defendant,  Os- 
liorn.  and  a  d"cree  ordering  the  sale  of  lot  number  one  in 
Boody's  addition  to  the  city  of  Toledo;  that  a  precipe  was  filed 
ordering  the  sale  and  the  clerk  caused  to  be  issued  to  the  sheriff 
such  order  of  sale;  that  the  sheriff  caused  appraisal  to  be  made 
and  a  notice  of  sheriff's  sale  to  be  published  in  the  Toledo  Legal 
iYcm'j*.  It  is  claimed  that  the  Toledo  Legal  News  is  not  a  news- 
paper printed  and  of  general  circulation  in  the  county,  but  it  is 
a  technical  publication  solely  for  the  us?  of  the  court  and  law- 
yers at  the  bar  of  said  county  devoted  especially  to  the  interests 


NISI  PRIUS  REPORTS— NEW  SERIES.  481 

1908.)  Augustus  v.   Lynd  et  al. 

of  the  legal  profession ;  that  the  Toledo  Legal  News  contains  no 
matters  of  general  interest,  but  is  simply  a  record  of  the  pro- 
ceedings of  the  several  courts  of  said  county,  etc. ;  that  there 
are  newspapers  printed  and  of  general  circulation  within  said 
county  in  which  said  notice  could  have  been  published  as  re- 
quired by  law,  but  that  the  sheriff  refused,  though  requested 
to  do  so,  to  publish  said  notices  in  any  other  publication  than 
the  Toledo  Legal  News;  the  prayer  of  the  petition  is  that  a 
writ  of  mandamus  issue  commanding  the  sheriff  of  Lucas  county, 
that  he  proceed  according  to  law  to  publish  said  notice  of  the 
sale  of  said  lot  in  a  newspaper  printed  and  of  general  circula- 
tion within  said  Lucas  county  in  accordance  with  the  statute 
in  such  cases  made  and  provided. 

I  may  say  that  the  answer  admitted  practically  all  the  aver- 
ments of  the  petition  except  that  the  Toledo  Legal  News  is  not 
a  newspaper  of  general  circulation  in  the  county  of  Lucas. 

1  read  from  the  opinion  on  page  684: 

"The  averment  in  the  petition  is  that  the  paper  in  which  the 
sheriff  is  proceeding  to  advertise  is  not  a  newspaper  of  general 
circulation  within  said  Lucas  county,  and  this  court  is  asked 
to  compel  him— to  require  him — to  proceed  and  advertise  it, 
not  in  any  particular  newspaper,  but  in  a  newspaper  of  gen- 
eral circulation  in  the  county,  it  being  averred  that  the  paper 
in  which  the  sheriff  is  proceeding  to  advertise  his  notice  of  the 
sale  is  not  a  newspaper  printed  and  of  general  circulation  in 
the  county." 

And  on  page  685: 

"But  again — as  already  stated — this  court,  if  it  made  an 
order  under  this  petition,  would  have  to  make  it  in  conformity 
to  the  prayer  of  the  petition.  And  that  is  what!  The  court 
would  have  to  require  the  sheriff  to  proceed  to  advertise  in  a 
newspaper  printed  and  of  general  circulation  within  the  county 
of  Lucas.  This  court  would  not  undertake  to  point  out  a  paper 
in  which  the  sheriff  should  advertise.  But,  practically,  upon  the 
statements  contained  in  the  petition  and  the  grounds  assigned 
for  the  interposition  of  the  court,  a  mandate  to  advertise  in  any 
other  paper  than  the  Toledo  Legal  News,  would  be  in  effect 
equivalent  to  an  injunction  forbidding  the  sheriff  to  advertise 


CLINTON  COUNTY  COMMON  PLEAS. 


[Vol.  VII,  N.  S. 


■  in  the  Legal  News,  for  the  reason,  as  is  alleged,  that  it  is  not 
a  newspaper  printed  and  of  general  circulation  in  the  county 
of  Lucas.  The  court  can  not  under  any  view  of  the  law  it  can 
regard,  require  the  sheriff  to  advertise  in  any  particular  paper, 
but  it  is  asked  to  command  the  sheriff  not  to  advertise  in  this 
particular  paper." 

This  is  not  only  the  law,  as  I  understand  it,  but  so  far  as  I 
have  been  able  to  learn  it  is  the  universal  custom  in  Ohio  for 
the  sheriff  to  select  the  paper  in  which  the  advertising  for  which 
he  is  responsible  shall  be  done. 

In  the  opinion  of  the  court  the  plaintiff  shows  no  reason  for 
the  appointment  of  a  special  master  commissioner  and  the  mo- 
tion is  therefore  refused. 

If  the  plaintiff  is  not  satisfied  with  the  charges  made  by  what- 
ever paper  is  selected  by  the  sheriff  for  this  advertising,  all  her 
rights  can  be  cared  for  by  a  motion  to  retax  costs. 


QUESTIONS  ARISING  ON  TRIAL  UNDER.  THE 
REAL  LAW. 

Common  Pleas  Court  of  Clinton  County. 

Eli  Gilliam  v.  State  of  Ohio. 

Decided,  October  12,  1908. 

Liquor  Laws — Appearance  0}  Attorney  Other  than  the  Prosecuting  At- 
torney— Representing  the  State  in  Prosecution  under  the  Beat 
Law — Autrefois  Acquit — Affidavit — Section  1213  and  98  0.  L., 
1H  (Section  20). 

1.  An  attorney  other  than  the  prosecuting  attorney  may  appear  for 

the  prosecution  for  a  violation  of  the  Beal  law  and  may  file  a 
reply  to  a  plea  in  bar. 

2.  An   affidavit  charging  the  commission  of  two  or  more  things  In  the 

disjunctive  Is  bad  for  uncertainty,  and  the  record  of  the  dismissal 
of  a  case  predicated  upon  such  an  affidavit  Is  not  a  bar  to  a  sub- 
sequent prosecution. 

Joseph  M.  Brant,  for  plaintiff. 

Melville  Hayes  and  Eldon  L,  Hayes,  contra. 


NISI  PRIUS  REPORTS— NEW  SERIES.  488 

1908.]  01111am  v.  The  State. 

On  the  sixth  day  of  September,  1908,  an  affidavit  was  filed  be- 
fore II.  G.  Bates,  mayor  of  Blanchester,  Clinton  county,  Ohio, 
charging  among  other  things  that  the  defendant  "did  on  the 
13th  day  of  June,  1908,  at  the  village  of  Blanchester.  unlaw- 
fully furnish,  sell  or  give  away  intoxicating  liquor  to  be  ii3ed 
as  a  beverage,  to  one  G.  R.  Smith,"  and  that  the  same  "was  then 
and  there  prohibited  and  unlawful,"  etc.  Upon  this  affidavit 
the  defendant  was  arrested  aDd.  upon  being  arraigned,  plead  not 
guilty  and  case  set  for  trial  September  9,  at  which  time  the 
following  entry  was  made  by  the  mayor:  "On  application  of 
attorneys  for  the  prosecution,  this  case  is  dismissed  without 
prejudice  and  the  defendant  released."  The  same  day  another 
affidavit  was  filed  against  the  defendant  charging  him  with  the 
commission  of  a  crime  in  the  same  language  as  in  the  original 
affidavit,  except  the  acts  charged  to  have  been  committed  were 
charged  in  the  conjunctive  instead  of  the  disjunctive. 

To  this  second  affidavit  the  defendant  interposed  his  plea  in 
bar  pleading  the  former  discharge  in  bar  of  a  prosecution  on 
the  second  affidavit ;  to  this  plea  a  reply  was  filed,  under  oath, 
by  Melville  Hayes,  as  counsel  for  the  state,  controverting  the 
facts  set  up  in  said  plea  in  bar;  then  defendant  moved  to  strike 
this  plea  in  bar  from  the  files  for  the  reason  that  Mr.  Hayes  was 
not  the  prosecuting  attorney  of  Clinton  county.  Ohio.  Mr. 
Hayes  admitted  that  he  was  not  the  prosecuting  attorney  (if 
said  county,  nor  of  any  other  county,  but  was  employed  by  the 
village  of  Blanchester  to  appear  for  the  State  of  Ohio  in  the 
prosecution  of  this  case.  Thereupon  the  court  overruled  said 
motion  and  the  defendant  excepted. 

Thereupon  the  case  came  on  for  hearing  on  the  issue  arising 
on  said  plea  in  bar  and  the  reply  thereto,  and  the  defendant 
offered  in  evidence  a  transcript  of  the  former  ease,  which, 
upon  ohjeetion  by  the  State,  was  ruled  out.  to  which  the  defend- 
ant excepted.  The  plea  in  bar  was  determined  adversely  to  the 
defendant.  A  trial  was  had  resulting  in  the  conviction  of  the 
defendant. 


484  CLINTON  COUNTY  COMMON  PLEAS. 

Gilliam  t.  The   State.  [VoLXI.N.  S. 

Wert,  J. 

This  cause  comes  before  this  court  upon  an  application  of  the 
defendant  for  leave  to  file  a  petition  in  error.  The  first  ground 
of  error  assigned  is  the  refusal  of  the  court  to  strike  from  the 
files  the  reply  filed  to  the  defendant's  plea  in  bar  on  the 
ground  that  such  reply  can  only  be  filed  by  the  prosecuting  at- 
torney of  the  proper  county. 

The  general  duties  of  a  prosecuting  attorney  as  prescribed  by 
Section  1273,  Revised  Stattites,  provides: 

'"The  prosecuting  attorney  shall  prosecute  ou  behalf  of  the 
State,  all  complaints,  suits  and  controversies  in  which  the  State 
is  a  party,  and  such  suits,  matters  and  controversies  as  he  is 
directed  by  law  to  prosecute  within  the  county,  in  the  probate 
court,  cdmmon  pleas  court  and  circuit  court." 

Nowhere  does  the  statute  require  the  prosecuting  attorney  to 
appear  liefore  and  prosecute  actions  in  any  other  tribunal  and 
especially  in  magistrates'  courts. 

The  statute,  as  it  now  stands,  is  practically  the  same  as  it 
has  been  since  the  act  found  in  31  0.  L.,  13.  This  aet  came 
under  review  in  the  ease  of  Smith  v.  Commissioners  of  Portage 
County.    Judge  Wood,  delivering  the  opinion  of  the  court,  held: 

"It  thus  appears  that  the  duty  of  the  county  attorney  is 
confined  to  the  Supreme  Court  and  the  common  pleas  court,  and 
his  appearance  in  an  inferior  court  is  a  mere  voluntary  aet." 
9  0.  Rep.,  25. 

Since  then  courts  of  probate  have  been  created  by  the  Con- 
stitution of  1851  and  the  circuit  court  created,  but  do  not  in 
any  way  affect  the  questions  and  the  duties  of  the  prosecuting 
attorney,  which  now  extend  to  those  courts. 

The  case  of  Smith  v.  Commissioners  of  Portage  County  has 
been  followed  and  approved  in  the  case  of  Railroad  Company  v. 
Lee,  37  O.  S-.  480.  Okey,  Judge,  delivering  the  opinion  of  the 
court,  said: 

"It  is  the  duty  of  the  prosecuting  attorney  to  conduct  the 
prosecution  of  offenses  in  the  court  of  common  pleas;  but  in 
Smith  v.  Portage  County,  9  0.,  25,  it  is  said  that  he  is  not  bound 


NISI  PBIUS  REPORTS—NEW  SERIES.  485 

1908.]  Gilliam  v.  The   State. 

to  appear  before  the  justice  of  the  peace  or  mayor  in  a  criminal 
case.  The  law  remains  the  same  to  the  present  day.  But,  in 
fact,  that  officer,  in  many  eases,  appears  voluntarily  in  an  ex- 
amining court  and  conducts  the  prosecution  therein.  He  does 
the  same  thing  sometimes  at  the  request  of  the  citizens  with- 
out any  expectation  on  his  part  to  receive,  or  on  the  part  of  the 
citizens  to  pay,  compensation  for  the  services." 

The  mayors  of  villages  have  final  jurisdiction  to  hear  and  de- 
termine prosecutions  under  the  Beal  law.  Now,  if  the  prosecu- 
ting attorney  is  not  required  to  attend  upon  these  courts  and 
prosecute  this  class  of  cases,  can  it  be  claimed  for  a  moment  that 
thereby  offenders  ought  to  go  unprosecuted,  which  would  be  the 
logical  effeot  of  the  claim  made  by  the  defendant  here!  That 
such  is  not  the  law  I  think  is  clearly  borne  out  by  an  examina- 
tion of  Section  20  of  the  act  of  February  23,  1906  (98  0.  L.,  p. 
18),  which  provides: 

"Section  20.  No  petition  in  error  shall  be  filed  in  any  court 
to  reverse  any  conviction  for  violation  of  any  law  prohibiting  the 
sale  of  intoxicating  liquors  in  any  territory  or  district  or  to 
reverse  any  judgment  affirming  such  conviction  except  after 
leave  granted  by  the  reviewing  court  and  no  such  leave  shall 
be  granted  except  after  good  cause  shown  at  a  hearing  of  which 
counsel  for  the  complainant  in  the  original  case  shall  have  had 
actual  and  reasonable  notice." 

Now,  it  appears  to  this  court  that  if  the  prosecuting  attorney 
alone  had  the  power  to  appear  and  prosecute,  there  would  have 
been  no  necessity  for  the  passage  of  the  act  in  question.  Why 
should  notice  be  given  to  counsel  for  "complainant  in  the  origi- 
nal ease"  unless  such  counsel  had  the  power  to  appear  and 
prosecute. 

I  may  indeed  add  that  it  has  been  almost  the  universal  prac- 
tice throughout  the  state  of  Ohio  for  private  counsel  to  appear 
inithe  prosecution  of  cases  before  mayors  and  magistrates  where 
those  officers  hod  final  jurisdiction,  as  well  as  those  in  which 
they  acted  only  as  examining  courts.  It,  therefore,  logically 
follows  that  if  counsel  may  be  employed  other  than  the  prose- 
cuting attorney  to  prosecute  this  class  of  eases,  he  has  power  to 


486  CLINTON  COUNTY  COMMON  PLEAS. 

Gilliam   v.   The   State.  [Vol.  VII.  N.  S. 

perform  any  act  necessary  in  the  prosecution  of  a  case,  which 
would  include  the  filing  of  such  pleadings  and  taking  such  ac- 
tion as  is  necessary  to  dispose  of  the  plea  in  bar. 

The  next  error  assigned  is  the  refusal  of  the  court  to  ad- 
mit in  evidence  the  transcript  of  the  former  case.  The  record 
shows  that  in  the  first  case  the  affidavit  charged  the  offense  in 
this  language,  that  the  defendant  furnished,  sold  or  gave  away 
the  intoxicating  liquor  in  question.  Now,  the  question  naturally 
arises — did  this  affidavit  charge  the  defendant  with  the  com- 
mission of  either  of  Baid  acts?  The  pleader  in  the  first  case  evi- 
dently followed  the  rule  that  it  is  generally  sufficient  to  charge 
the  crime  in  the  language  of  the  statute,  but  he  overlooked  the 
fact  that  charging  the  commission  of  several  acts  in  the  dis- 
junctive does  not  charge  the  defendant  with  the  commission  of 
either  of  them.  Black,  in  his  work  on  "Intoxicating  Liquor," 
at  Section  439  says,  "or  is  a  dangerous  word  to  use  in  an  in- 
dictment." 

The  reason  is  that  it  is  extremely  liable  to  make  the  statement 
of  the  offense  uncertain.  When  its  effect  is  to  render  it  doubt- 
ful which  of  the  two  or  mora  acts,  articles  or  agencies  is  in- 
tended to  be  alleged,  its  use  is  fatal  to  the  indictment.  There 
is  but  one  case  in  which  it  is  safe  to  copy  the  disjunctive  from 
the  statute,  and  that  is  where  or  is  in  the  statute  in  the  sense  of 
"to-wit,"  that  is,  where  that  which  follows  is  merely  descriptive 
or  explanatory  of  that  which  precedes,  so  that  the  two  are  iden- 
tical or  equivalent.  If  the  two  things  separated  by  this  word 
are  different  things,  the  pleader  must  allege  only  one  of  them  or 
use  the  conjunctive  "and."  Now,  coming  to  the  affidavit  in 
question,  these  other  several  aets  charged  to  have  been  com- 
mitted by  the  defendant  are  charged  in  th?  disjunctive.  ThDrc- 
fore.  that  affidavit  was  bad.  Th?se  principles  are  amply  illus- 
trated by  decisions  dealing  with  our  particular  subject-matter. 
Thus,  an  indictment  which  alleges  an  unlawful  sale  of  " spirituous 
or  intoxicating  liquor."  or  of  ardent  or  intoxicating  liquor,  or  of 
"ale.  beer  or  wine,"  following  the  language  of  the  statute,  is 
bad  for  uncertainty.  State,  v.  Moran,  40  Me.,  129;.  Stale  v. 
Fairgrieve.  23  Mo.  App.,  641 ;    Raider  v.  State,  55  Ala..  64. 


NISI  PBIUS  REPORTS— NEW  SERIES.  487 

1908.]  Taneyhlll  v.  B.  4  0.  R.  R.  Co. 

Now,  if  the  affidavit  here  was  bad  for  uncertainty,  advantage 
could  have  been  taken  even  after  a  conviction,  by  a  motion  in 
arrest  of  judgment.  Therefore,  it  seems  to  me  that  under  the 
first  affidavit  the  defendant  was  never  in  jeopardy  because  no 
conviction  could  be  sustained  upon  that  affidavit.  It  therefore 
necessarily  follows  that  the  mayor  did  not  err  in  ruling  out  the 
record  of  the  first  case. 

Let  its  now  recur  again  to  Section  20  of  the  act  of  February 
23,  1906,  defining  the  duties  of  the  courts  in  cases  like  this.  That 
statute  expressly  provides  that  no  petition  in  error  can  be  filed 
except  upon  application  and  upon  good  cause  shown  at  a  hear- 
ing. This  statute  is  not  merely  directory,  as  I  take  it.  but  is 
mandatory  to  the  extent  that  good  cause  must  be  shown  before 
the  court  would  be  authorized  to  grant  the  leave. 

I  imagine  that  the  reason  for  the  passage  of  this  statute  is  to 
prevent  encumbering  the  records  of  the  eourts  with  cases  with- 
out merit,  but  by  far  the  greater  and  higher  reason  for  the 
passage  of  that  statute  was  to  prevent  the  delays  that  usually 
follow  in  this  class  of  cases  whereby  justice  is  practically  de- 
feated. 

Therefore,  looking  over  the  whole  record,  I  am  unable  to  find 
that  there  exists  good  cause  for  the  allowance  of  this  applica- 
tion to  file  a  petition  in  error.  The  application  will,  therefore, 
be  denied. 


VALIDITY  OF  ASSIGNMENT  OF  PART  OF  A  CLAIM. 

Common  Pleas  Court  of  Licking  County. 

R.  L.  Taneyhill  v.  The  Baltimore  &  Ohio  Railroad  Company." 

Decided,  January  Term,  1907. 
Assignment — Claim  Includes  Only  Part  of  Indebtedness  Due  Assignor 

— Remedy  of  Assignee — Law  and  Equity. 
1.  An  assignment  of  a  claim  la  not  rendered  Invalid  by  reason  ot  the 

tact  that  It  Includes  only  a  part  of  the  amount  due  from  the  debtor 

to  the  assignor. 

•  Affirmed  by  the  Circuit  Court  without  report. 


488  LICKING  COUNTY  COMMON  PLEAS. 

Taneyhill  V.  B.  *  O.  R.  R.  Co.  [Vol.  VII,  N.  a 

2.  But  the  remedy  of  the  assignee  of  such  a  claim  Is  not  in  an  ac- 
tion at  law,  but  In  an  action  In  equity. 

K.  L.  Taneyhill,  in  person. 

Kibler  &  Montgomery,   for  defendant. 

Seward,  J.   (orally). 

This  is  a  suit  for  $5  brought  by  R.  L.  Taneyhill  against  the 
Baltimore  &  Ohio  Railroad  Company,  and  while  there  is  not 
much  involved  as  to  money  value,  there  is  a  principle  involved 
in  the  ease,  and  that  is  the  reason  the  panties  are  litigating  this 
ease,  I  ■presume. 

It  is  the  question  as  to  whether  Taneyhill  can  bring  this  ac- 
tion and  prosecute  it  to  judgment— an  action  at  law  against 
the  B.  &  0.  R.  R.  Co.  where  only  a  part  of  the  claim  that  was 
owing  by  the  B.  &  0.  Railroad  to  the  assignor  of  Taneyhill  was 
assigned.  Taneyhill  procured  an  assignment  for  $5  from  a 
creditor  of  the  B.  &  0.  Railroad  Company"  who  was  working 
for  the  company,  when  there  was  about  $29  due  the  assignor. 
He  assigned  to  Taneyhill  $5.  Taneyhill  sent  a  registered  let- 
ter to  the  company,  notifying  them  of  this  assignment.  There 
isn't  any  question  in  the  mind  of  the  court  but  what  the  creditor 
of  the  B.  &  0.  Railroad  Company  had  a  perfect  right  to  make 
this  assignment.  The  only  question  that  confronts  the  court 
is  whether  Mr.  Taneyhill  has  a  right  to  pursue  his  remedy  at 
law.  The  court  does  not  think  he  has.  The  court  is  cited  to 
the  17th  Ohio  State,  which  holds  that  he  has  a  right  in  equity 
to  pursue  the  remedy.  The  58th  Ohio  State  holds  the  same 
way.  The  assignment  of  the  claim  is  perfect,  but  the  assignee 
has  no  right,  as  the  court  views  it,  to  pursue  his  remedy  at  law, 
but  is  relegated  to  his  remedy  in  equity,  if  any  there  is;  and 
there  may  be  a  judgment  for  the  defendant. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
McGlll  v.  Traction  Co. 


SUV  ANTS  ASSUME  RISK  OF  INJURY  FROM 

APPLIANCES. 

Common  Pleas  Court  of  Lorain  County. 

McGill  v.  Cleveland  &  Southwestern  Traction  Co. 

Decided,  June  5,  1907. 

Matter  and  Servant— Assumed  Risk— Promise  to  Supply  New  Jnstru- 
ment&ity  Equivalent  to  Promise  to  Remedy  Defect — Application 
of  Promise  to  Simple  Toots  and  Appliances. 

1,  A  promise  by  a  master  to  supply  a  new  Instrumentality  In  place  of 
one  from  which  the  servant  apprehends  danger  is  of  the  same 
effect  in  law  as  a  promise  to  repair  a  defect  In  an  existing  in- 
strumentality, the  use  of  which  Is  to  be  continued. 
.  2.  But  In  the  case  of  simple  tools  and  portable  appliances  (such  as  n. 
step-ladder),  where  obvious  defects  are  as  perfectly  understood 
by  the  servant  as  the  master,  the  risk  from  their  further  use 
Is  assumed;  and  a  promise  to  repair  or  replace  such  a  defective 
tool  or  appliance,  as  distinguished  from  intricate  machinery,  the 
use  of  which  requires  great  skill  and  care,  does  not  shift  the  as- 
sumption of  the  risk  from  the   servant  to  the  master. 

Skiles,  Green  d>  Skiles,  L.  Stroup  and  L.  B.  Fauver,  for  plaint- 
iff. 

E.  Q.  &  H.  C  Johnson,  contra. 

•Affirmed  by  the  Circuit  Court  of  Lorain  county,  September  27,  1907. 
in  the  following  memorandum  opinion: 

Henry,   J.;     Marvin,   J.,   and  Winch,   J.,   concur. 

The  judgment  below  is  sustained  by  the  overwhelming  weight  of  au- 
thority. One  Kentucky  case  alone  supports  the  contrary  view  found 
In  1  Labatt.  Mas.  ft  Serv.,  419.  Though  not  unimpressed  by  that 
writer's  dCubto  concerning  the  soundness  of  the  general  rule,  we  fol- 
low the  authorities  m  holding  that  ordinarily  an  employe  Is  con- 
clusively presumed  to  know  the  manifest  delect  s  of  hand  tools 
and  other  simple  portable  appliances  which  be  bandies  and  uses,  and 
because  he  can  accurately  estimate  and  easily  avoid  or  remedy  the 
danger  therefrom,  a  promise  by  the  employer  to  repair  or  replace  such 
objects  can  not  ordinarily  be  deemed  to  imply  that  the  assumption  of 
risk  from  defects  complained  of  has  shifted  from  the  employe  to  the 
employer.  A  common  step-ladder  Is  within  this  rule.  The  Judgment 
below  is  affirmed. 


490  LORAIN  COUNTY  COMMON  PLEAS. 

McGill  v.  Traction  Co.  [Vol.  VII,  N.  S. 

Washburn,  J. 

This  case  has  been  submitted  to  the  court  upon  demurrer  to 
the  petition.  The  petition  alleges  in  substance  that  the  plaintiff 
was  working  for  the  defendant  and  that  it  was  his  duty,  among 
other  things,-  to  wash  the  windows  of  the  cars  of  the  defendant, 
and  that  the  defendant  furnished  him  with  a  step-ladder  for  that 
purpose.    And  then  he  avers  that: 

"Some  days  prior  to  the  twenty-third  day  of  October,  1906, 
plaintiff  discovered  that  said  ladder  which  the  defendant  had 
furnished  to  him  to  use  while  performing  his  duties  as  afore- 
said had  become  old.  worn  and  defective  to  such  an  extent  that 
the  same  was  unfit  for  plaintiff  to  use  in  connection  with  his 
said  work  in  that  the  steps  of  the  step-ladder  were  loose  and 
worn  and  the  iron  braces  holding  said  steps  to  the  side  posts 
of  said  ladder  were  loose,  broken  and  defective." 

Then  follows  an  allegation  that  soon  after  discovering  the 
condition  of  said  step-ladder  the  plaintiff  complained  to  his 
foreman  "of  the  defective  and  dangerous  condition  of  said 
ladder"  and  that  said  foreman  promised  to  replace  said  ladder 
with  a  new  and  proper  one. 

There  is  a  further  allegation  that  along  about  the  same  time 
the  plaintiff  complained  to  the  master  mechanic  of  the  defend- 
ant company  "of  the  defective  and  dangerous  condition  of  said 
ladder"  and  that  the  master  mechanic  promised  and  assured 
plaintiff  that  he  would  be  furnished  with  a  new,  sufficient  and 
proper  ladder  with  which  to  perform  his  work  as  soon  as  the 
same  could  be  made;  that  he  should  use  said  ladder  until  a 
new  ladder  was  furnished.  There  is  also  an  allegation  that  the 
plaintiff  relied  upon  the  defendant's  fulfilling  its  said  promise 
and  that  he  continued  to  perform  his  labor  as  directed  by  his 
foreman;  that  his  foreman  directed  him  to  clean  the  windows 
on  the  outside  of  the  vestibule  of  one  of  the  defendant's  cars, 
and  that,  in  order  to  do  bo,  it  was  necessary  for  him  to  use  said 
ladder,  and  that  while  attempting  to  use  said  ladder  "the  steps 
of  said  ladder  and  braces  thereof  gave  way  by  reason  of  Us  old. 
defective  and  dangerous  condition,"  and  plaintiff  was  thrown 
upon  and  across  the  bumper  of  said  car  and  injured. 


NISI  PRIUS  REPORTS— NEW  SERIES.  491 

1908.!  McGill  v.  Traction  Co. 

The  negligence  complained  of  is  the  carelessness  of  the  de- 
fendant in  permitting  and  allowing  said  ladder  to  be  and  re- 
main in  said  defective,  worn-out  and  dangerous  condition  and 
in  not  furnishing  plaintiff  with  a  new,  proper  and  sufficient 
ladder  in  accordance  with  said  promise. 

As  I  have  said,  a  demurrer  has  been  filed  to  this  petition  on 
the  ground  that  it  does  not  state  facts  sufficient  to  constitute  a 
cause  of  aetion  in  favor  of  the  plaintiff  and  against  the  defend- 
ant. 

In  argument  the  question  is  raised  whether  or  not  a  promise 
of  the  master  to  supply  a  new  instrumentality  is  the  same  in  law 
as  the  promise  of  the  master  to  repair  a  defect  in  an  exist- 
ing instrumentality.  On  that  proposition  I  quote  with  approval 
what  is  said  by  1  Labatt,  Mas.  &  Serv.,  419: 

"There  is  apparently  no  adequate  ground  upon  which  it  ean 
be  maintained  that  a  promise  to  furnish  other  instrumentalities 
in  place  of  those  from  which  the  servant  apprehends  danger 
should  not  be  deemed  equivalent  in  its  legal  effect  to  a  prom- 
ise to  remedy  a  defect  in  some  instrumentality  the  use  of  which 
is  to  be  continued.  Such  equivalence  has  been  asserted  or  taken 
for  granted  in  several  cases." 

Although  there  are  intimations  in  some  of  the  oases  which 
would  put  promises  of  .these  two  descriptions  upon  different 
footings.  I  have  found  no  well-considered  case  which  so  decides; 
and  in  view  of  the  large  number  of  cases  where  the  promise  in 
reference  to  a  new  instrumentality  has  been  taken  to  he  the  same 
as  a  promise  to  repair  an  instrumentality  in  use.  and  in  view 
of  the  fact  that  I  can  see  no  good  reason  for  a  distinction,  I  hold 
that  the  petition  states  a  cause  of  action  so  far  as  that  is  con- 
cerned. 

The  next  question  raised  by  this  demurrer  is  whether  or  not 
the  rule  that  a  servant  is  entitled  to  go  on  working  for  a  rea- 
sonable time  after  a  promise  to  remove  a  danger,  without  his 
being  charged  with  an  assumption  of  the  risk,  is  applicable  to 
a  case  where  the  injury  is  caused  by  a  simple  appliance  the  de- 
fects of  which  are  understood  as  fully  by  the  servant  as  by  the' 
employer.  So  far  as  I  know  this  question  has  not  been  deter- 
mined by  any  eourt  in  Ohio. 


492  LORAIX  COUNTY  COMMON  PLEAS. 

McGill  v.  Tractioo  Co.  [Vol.  VII,  N.  S. 

Under  the  facts  shown  by  the  petition  in  this  case  it  is  plain 
that  the  plaintiff  would  not  be  entitled  to  recover  except  upon 
the  theory  that  the  promise  of  the  defendant  to  substitute  a  new 
ladder  relieved  him  from  the  assumption  of  risk  which  would 
follow  from  his  intimate  knowledge  of  the  condition  of  the  lad- 
der. The  plaintiff  alleges  that  he  ascertained  that  the  ladder 
was  defective  and  dangerous,  and  was  "unfit  for  plaintiff  to 
use  in  connection  with  his  said  work."  It  follows,  then,  that 
but  for  the  promise  which  it  is  claimed  the  defendant  made, 
he  could  not  recover  for  an  injury  resulting  from  the  use  of  a 
step-ladder  which  he  knew  was  in  such  a  defective  and  dangerous 
condition. 

It  is  significant  that  the  plaintiff  was  so  impressed  with  the 
dangerous  condition  of  the  step-ladder  that  he  complained  of 
it  not  only  to  his  immediate  boss  but  to  the  master  mechanic 
of  the  defendant,  and  that  the  boss  and  the  master  mechanic 
both  regarded  the  step-ladder  as  beyond  repair,  and  the  plaint- 
iff claims  that  each  of  them  promised  to  supply  a  new  ladder. 
The  plaintiff  appreciated  that  the  using  of  the  old  step-ladder 
was  dangerous,  because  he  says  in  his  petition  that  he  discovered 
that  it  was  dangerous  and  so  reported  it  two  different  times. 

It  is  beyond  question  that  if  the  plaintiff  with  his  knowledge 
of  the  defective  condition  of  the  step-ladder  and  his  apprecia- 
tion of  the  danger  in  using  the  same,  had  continued  to  use  it 
wthout  any  promise  on  the  part  of  the  company  to  replace  it 
with  a  new  leddsr,  he  could  not  recover.  It  is  also  true  that 
if  the  promise  alleged  in  this  case  brings  the  ease  within  the 
general  rule  on  the  subject,  he  is  relieved  by  such  promise  from 
the  consequences  of  his  knowledge  of  the  defective  condition 
of  the  step-ladder.  The  general  rule  is  stated  as  follows  by 
Cooley,  Torts,  661 : 

"If  the  servant,  having  a  right  to  abandon  the  service  be- 
cause it  is  dangerous,  refrains  from  doing  so  in  consequence  of 
assurances  that  the  danger  shall  be  removed,  the  duty  to  remove 
the  danger  is  manifest  and  imperative,  and  the  master  is  not 
in  the  exercise  of  ordinary  care  unless  or  until  he  makes  his 
assurances  good.     Moreover,  the  assurances  remove  all  ground 


NISI  PRIUS  REPORTS— NEW  SERIES.  498 

1908.]  McGlll  v.  Traction  Co. 

for  the  argument  that  the  servant  by  continuing  the  employ- 
ment engages  to  assume  its  risks." 

The  courts  of  Kentucky  and  Kansas  hold  1^iat  this  rule  ap- 
plies to  simple  appliances  where  the  servant  is  employed  in  the 
performance  of  ordinary  labor,  while  the  courts  of  several  other 
states  have  determined  that  the  rule  does  not  apply  where  the 
servant  is  employed  in  the  performance  of  ordinary  labor  in 
which  no  machinery  is  used,  the  use  of  which  requires  the  ex- 
ercise of  great  skill  and  care,  where  the  defects  of  the  appliance 
used  are  understood  and  appreciated  as  fully  by  the  servant 
as  by  the  employer.  Perhaps  the  leading  case  on  this  subject 
is  Marsh  v.  Chickering,  101  N.  Y.,  396.  That  happens  to  be  a 
step-ladder  case  and  is  quoted  with  approval  in  1  Bailey,  Mas- 
ter's Liability  -  for  Injuries  to  Servant,  p.  181,  Section  525;  p. 
1053,  Section  3105,  where  it  is  laid  down  that  defects  in  a  ladder 
used  by  the  employes  were  not  within  the  general  rule  and  that 
the  promise  to  repair  such  implements,  and  those  of  like  char- 
acter and  purpose,  did  not  affect  the  master.  I  will  not  quote 
at  length  from  this  case,  because  counsel  may  be  familiar  with 
it,  and  if  not,  they  will,  of  course,  desire  to  read  the  whole  case. 
In  a  case  in  the  Supreme  Court  of  Arkansas,  where  there  was 
a  defective  ladder,  which  defect  had  been  reported  and  the  em- 
ployer had  promised  to  supply  a  better  ladder,  it  was  held  in 
an  action  against  an  employer  for  damages  that  the  plaintiff 
could  not  recover,  he  having  assumed  the  risk.  St.  Louis,  A, 
&  T.  Ry.  v.  Kelton,  55  Ark.,  483. 

The  same  doctrine  is  held  by  the  Supreme  Court  of  Indiana 
where,  in  a  case  decided  in  1894,  it  is  said  in  the  syllabus: 

"A  master  is  not  liable  to  a  servant  of  mature  years,  and  or- 
dinary mental  capacity,  who  is  injured,  in  his  employ  by  rea- 
son of  a  defect  in  a  ladder,  of  which  he  was  aware,  though  the 
servant  had  notified  the  master  of  such  defect  and  was  told  to 
use  the  ladder  until  another  was  furnished."  Meador  v.  Rail- 
way, 138  Ind.,  290.  See.  also,  Crum  v.  Pump  &  Lumber  Co., 
34  Ind.  App.,  253. 

That  doctrine  is  approved  in  Oowcn  v.  Hurley,  56  Fed.  Rep., 
973.     In  a  case  decided  hy  the  Supreme  Court  of  Maine  and 


494  LORAIN  COUNTY  COMMON  PLEAS. 

McGlll  v.  Traction  Co.  [Vol.  VII,  N.  S. 

reported  in  Conley  v.  Exposition  Co.,  87  Me.,  352,  it  was  held 
under  similar  circumstances  that  the  servant  could  not  recover. 

From  what  appears  in  the  digest  it  seems  that  the  Illinois 
Court  of  Appeals 'has  recently  had  this  subject  before  it  for 
determination  in  three  cases,  and  it  is  there  held  that  the  gen- 
eral rule  hereinbefore  quoted  does  not  apply  to  injuries  caused 
by  a  simple  appliance.  McCormick  Harv,  Mack.  Co.  v.  Wojcie- 
ckowshi.  111  111.  App.,  641;  Boicenv.  Railway,  117  III.  App.,  9; 
International  Packing  Co.  v.  Krelowicz,  119  111.  App.,  448. 

In  a  recent  ease  decided  by  the  Supreme  Court  of  Illinois, 
Gunning  System  v.  Lapointe,  72  N.  E.  Kep.,  393,  395,  the  fol- 
lowing language  is  used : 

"While,  as  a  broad,  general  proposition,  the  master  is  required 
to  furnish  the  servant  a  reasonably  safe  place  in  which  to  work, 
it  is  also  true  that  if  the  defect  is  so  open  and  obvious  that  the 
servant  does  see  and  know  of  the  existence  of  the  defect,  and  the 
danger  arising  therefrom  is  apparent  and  known  to  him,  or 
within  the  observation  of  a  reasonably  prudent  man  in  his  situa- 
tion, and  the  servant  enters  upon  and  continues  the  work,  he  is 
held  to  assume  the  risks  and  hazards  of  the  employment  due  to 
such  conditions.  The  servant  may,  however,  in  some  eases,  sus- 
pend the  operation  or  force  of  the  rule  of  assumed  risk  as  to 
,  such  defects  and  dangers  by  complaining  to  or  informing  the 
master  thereof  and  obtaining  from  him  the  promise  to  repair 
the  defects  and  obviate  the  danger.  It  is  not  in  all  cases  that  the 
servant  may  relieve  himself  from  the  assumption  of  the  risk 
incident  to  defects  and  dangers  of  which  he  has  full  knowledge 
by  exacting  from  the  master  a  promise  to  repair.  The  eases 
where  the  rule  of  assumed  risk  is  suspended,  and  the  servant 
exempted  from  its  application  under  a  promise  from  the  master 
to  repair  or  cure  the  defect  complained  of,  are  those  in  which 
particular  skill  and  experience  are  necessary  to  know  and  ap- 
preciate the  defect  and  the  danger  incident  thereto,  or  where 
machinery  and  materials  are  used  of  which  the  servant  cap 
have  little  knowledge,  and  not  those  cases  where  the  servant  is 
engaged  in  ordinary  labor,  or  the  tools  used  are  only  those  of 
simple  construction,  with  which  the  servant  is  as  familiar  and 
as  fully  understands  as  the  master." 

There  is  another  case  decided  by  the  Supreme  Court  of  Illi- 
nois where  the  same  doctrine  is  laid  down  (Webster  Affg.  Co.  v. 


NISI  PRIUS  REPORTS— NEW  SERIES.  495 

1908.1  McQlll  v.  Traction  Co. 

Nesbitt,  205  111.,  275).  In  this  case  a  blacksmith  was  furnished 
by  his  master  with  a  hammer  that  had  become  chipped  and  he 
was  injured  owing  to  its  defective  condition  after  a  promise  to 
repair  had  been  made  by  the  master;  and  it  was  held  that  the 
tool  being  merely  a  common  hammer  of  which  the  servant  had 
as  complete  knowledge  as  the  master,  the  servant  would  be 
deemed  to  have  assumed  the  risk.  And  after  stating  the  gen- 
eral rule  to  the  effect  that  a  promise  of  the  master  to  repair  a 
defect  in  an  appliance  used  by  the  servant  relieves  the  servant 
from  the  charge  of  negligence  by  continuing  in  the  service,  the 
opinion  proceeds  as  follows: 

"But  the  rule  which  exempts  an  employe  from  assuming  the 
risk  where  a  promise  to  repair  is  made  is  designed  for  the  bene- 
fit of  those  engaged  in  work  where  machinery  and  materials 
are  used  of  which  the  employe  has  little  knowledge,  but  it  does 
not  apply  to  ordinary  labor  which  only  requires  the  use  of 
implements  with  which  the  employe  is  entirely  familiar." 

In  a  case  decided  by  the  Supreme  Court  of  Wisconsin,  Cocoran 
v.  Gas  Light  Co.,  81  Wis.,  191,  it  was  decided  that  a  petition 
did  not  state  a  good  cause  of  action  for  personal  injuries 
where  the  plaintiff  alleged  that  he  was  employed  by  the  defend- 
ant and  occasionally  required  to  use  a  ladder,  and  that  on  edm- 
plaining  that  the  ladder  furnished  was  not  safe  he  was  told 
that  a  suitable  one  would  be  provided  for  future  work,  and  re- 
lying on  such  promise  he  continued  in  the  employment  and  that 
a  suitable  ladder  was  not  provided,  and  that  thereafter,  while, 
by  the  foreman's  order,  he  was  ascending  a  ladder  which  was 
unprovided  with  spikes  at  its  end  or  with  other  safe  appliance, 
and  resting  upon  an  oily  floor,  it  slipped  and  occasioned  the 
injury  complained  of. 

Prom  a  reading  of  these  cases  it  is  apparent  that  the  courts 
have  many  times  decided  that  the  mere  promise  of  the  master 
to  supply  a  new  ladder  will  not  justify  a  servant  in  using  an  old 
ladder  which  he  knows  to  be  defective  and  dangerous;  and 
while  there  are  other  cases  where  other  appliances  than  ladders 
are  involved  which  hold  a  different  rule  than  that  indicated  by 
the  casp  X  have  stated,  still  T  am  of  the  opinion  that  the  great 


496  LORAIN  COUNTY  COMMON  PLEAS. 

McOill  v.  Traction  Co.  [VoLVII.N.  S. 

weight  of  authority  is  to  the  effect  that  the  plaintiff  in  this  case 
is  not,  under  the  facts  alleged  in  his  petition,  entitled  to  recover, 
for  the  reason  that  he  is  conclusively  presumed  to  know  the 
plain  and  obvious  defects  of  such  simple  portable  appliances  as 
he  handles  in  the  daily  prosecution  of  his  work.  As  to  such  de- 
fective tools  and  appliances  he  is  in  a  position  where  he  eau 
readily  discover  and  easily  avoid  or  remedy  the  danger  reason- 
ably to  be  anticipated  and  ordinarily  resulting  from  their  use. 
In  such  case  the  promise  of  the  employer  to  repair  or  replace 
such  defective  tools  or  appliances  does  not  shift  the  assumption 
of  risk  in  their  use  from  the  employe  to  the  employer. 

I  am  not  unmindful  of  the  decision  of  our  Supreme  Court. 
Manufacturing  Co.  v.  Morrissey,  40  Ohio  St.,  148.  That  was  a 
case  which  under  all  the  authorities  comes  within  the  general 
rule  which  permits  a  servant  to  continue  in  the  employment  of 
the  master  with  knowledge  of  defects  in  a  machine  of  which  he 
has  complained  and  received  assurance  that  the  same  would  be 
remedied  without  being  charged  with  assumption  of  the  risk. 
The  injury  in  that  case  was  caused  by  a  machine  and  not  by 
a  simple  appliance  like  a  ladder. 

If  the  case  at  bar  comes  within  the  general  rule,  then,  of 
course,  the  law  as  laid  down  in  the  above  case  is  applicable, 
but,  as  I  have  heretofore  stated,  it  is  my  judgment  that  the 
case  at  bar  does  not  come  within  said  general  rule  and  for  that 
reason  the  promise  of  the  master  to  supply  a  new  step-ladder 
does  not  change  or  enlarge  the  liability  of  the  master. 

The  demurrer  will,  therefore,  be  sustained. 


NISI  PRIUS  REPORTS— NEW  SERIES. 


ACTION  BY  A  TRUST  COMPANY  TO  RECOVER  COMPENSATION 
FOB.  LAND  WRONGFULLY  TAKEN  BY  A 
RAILWAY  COMPANY. 
Court  of  Insolvency  of  Hamilton  County. 
Union  Savings  Bank  &  Trust  Co.  et  al  v.  Baltimore  &  Ohio 
Southwestern   Railroad   Co. 
Decided,  October  14,  1908. 
Trusts — For  the  Care  and  Management  of  Property — Legal  Title  May 
be  Devised  for  That  Purpose,  Where  the  Trustee  is  a  Domestic 
Trust    Company — Foreign    Trust    Company    may   Execute   such    a 
Trust  in  this  State,  When — May  Bring  Action  for  Land  Unlawfully 
Taken  by  a  Railway  Company— Rights  of  a  Tenant  in  Common — 
Notice  of  Suit— May   be  Made   Valid,   and   Validity   Relates   Back, 
When —  Words  "Owner"  and  "Doing  Business"  Defined — Abatement 
.Sections    6448,    6411,    148d,    38216,    5970,    5942,    5937,    5987,    3283 
and  3284. 

1.  Where  a  domestic  trust  company,  under  the  provisions  of  Section 

38216,  Revised  Statutes,  le  appointed  trustee  In  a  will  "creating 
a  trust  for  the  care  and  management  ot  property"  In  thla  state, 
the  devisor  may  properly  devise  to  such  trustee  the  legal  title 
to  land  In  trust  to  exercise  such  care  and  management 

2.  A  foreign  trust  company  appointed  trustee  of  land   In  this  state 

and  given  the  legal  title  thereto  In  trust,  by  a  will  probated  In 
another  state,  and  of  record  here,  may,  upon  giving  bond  here, 
upon  established  principles  of  comity,  execute  such  trust  to  the 
same  extent  as  a  domestic  trust  company  Is  authorized  to  do 
by  Section  38216,  Revised  Statutes. 

3.  Domestic  and   foreign   trust  companies   having  the   legal    title    In 

trust  to  real  estate  in  this  state  may,  In  the  exercise  of  proper 
care  and  management  thereof,  bring  a  proceeding  under  Section 
6448,  Revised  Statutes,  to  recover  compensation  for  such  land 
when  unlawfully  taken  by  a  railroad  company. 

4.  Where  notice  Is  served  and  suit  brought  under  Section  6448,  Re- 

vised Statutes,  by  a  trustee  appointed  in  a  foreign  will  before  rec- 
ord of  such  will  here,  and  before  bond  given,  but  afterwards,  be- 
fore hearing,  such  record  Is  made  and  bond  given,  such  subse- 
quent compliance  with  the  statute  will  relate  backward  and  give 
validity  to  such  notice  and  suit. 

5.  The  bringing  of  a  suit  by  a  foreign  trust  company  trustee  under 

a  will  probated  in  another  state,  and  of  record  In  this  state.  Is 
not  "doing  business"  within  the  meaning  of  Section  148rf.  Revised 


488       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Trust  Co.  v.  Railway.  [Vol.  VII.  N.  S. 

Statutes,  requiring  a  certificate  from  the  Secretary  of  State  as 
directed  by  such  section. 

6.  A  tenant  In  common  Is  an  "owner"  of  land  within  the  meaning  of 

Section  6448,  Revised  Statutes,  and  if  ousted  by  a  railroad  com- 
pany co-tenant,  may  sustain  an  action  for  compensation  and  dam- 
ages under  that  section  against  such  co-tenant, 

7.  A  pending  suit  to  recover  the  possession  of  land  together  with  the 

rents.  Issues,  and  profits  thereof.  Is  not  a  bar  to  a  proceeding  to 
recover  compensation  for  such  land  under  Section  6448,  Revised 
Statutes. 

E.  P.  Bradstrcet,  John  Weld  Peck  and  W.  S.  Little,  for 
plaintiffs. 

Edward  Colston,  George  Eoadly,  Edward  Barton  and  R.  S. 
Alcorn,  contra. 

Wabneb,  J. 

This  action  has  been  brought  by  the  plaintiffs,  under  the 
provisions  of  Section  6448  of  the  Revised  Statutes,  against  the 
defendant,  to  recover  compensation  for  certain  land  alleged 
to  have  been  taken  possession  of  and  occupied  without  right, 
legal  or  equitable,  and  not  appropriated  and  paid  for  by  the 
defendant,  together  with  damages  to  the  residue.  Pleadings  as 
in  ordinary  civil  actions,  including  answer  and  reply,  have 
been  filed  herein,  under  which  all  issues  made,  other  thau 
amount  of  compensation  and  damages,  have  been  submitted  to 
the  court  for  determination. 

I  will  state  as  concisely  as  possible  the  conclusions  at  which 
I  have  arrived  after  careful  consideration  of  the  evidence  and 
authorities  presented  on  the  contested  claims  submitted. 

While  the  chapter  on  appropriations,  in  which  said  Section 
6448  is  found,  does  not  provide  for  any  pleadings  other  than 
a  petition,  the  subsequent  pleadings  filed  in  this  case  are  proper. 
Section  6411  of  the  Revised  statutes  provides  that: 

"The  provisions  of  law  governing  civil  proceedings  in  the 
court  of  common  pleas  shall,  so  far  as  applicable,  govern  like 
proceedings  in  the  probate  court  when  there  is  no  provision  on 
the  subject  in  this  title." 

Minahall,  J.,  in  Railroad  Co.  v.  O'Harra,,  48  O.  S.,  at  page 
356,  in  commenting  upon  this  section  says,  referring  to  pro- 
cedure in  the  probate  court; 


NISI  PRIUS  REPORTS— NEW  SERIES.  499 

1908.]  Trust  Co.  v.  Railway. 

"Indeed  the  special  rules  of  procedure  provided  for  this 
court  are  quite  limited,  because  by  Section  6411,  Revised  Stat- 
utes, all  the  provisions  of  law  governing  civil  proceedings  in  the 
court  of  common  pleas  are  made  applicable  to  the  probate  court 
where  there  is  no  special  provision  on  the  subject  applicable 
to  that  court." 

The  pleadings  subsequent  to  the  petition  in  this  case  there- 
fore become  proper  and  necessary  to  define  the  issues,  there  be- 
ing "no  provision  on  the  subject"  in  the  chapter  on  appropria- 
tions, and  such  pleadings  should  have  the  same  construction 
and  legal  effect  as  in  civil  proceedings  in  the  court  of  common 
pleas. 

During  the  progress  of  this  case  several  applications  have 
been  made  to  the  court  by  way  of  motions,  which  will  now  be 
disposed  of. 

The  defendant  filed  a  motion  to  dismiss  this  proceeding  be- 
cause the  notice  provided  in  said  Section  6448  is  not  suffi- 
cient in  certainty  of  description  of  the  real  estate  therein  de- 
scribed. 

The  petition  having  alleged  due  service  of  the  notice  re- 
quired by  said  section,  and  the  answer  having  admitted  such 
service  of  notice,  without  attacking  the  sufficiency  thereof  by 
any  allegation  whatsoever,  I  think  the  defendant  is  concluded 
by  such  admission  and  can  not  on  the  hearing  'contest  the  suffi- 
ciency of  such  notice.     This  motion  must  therefore  be  denied. 

At  the  conclusion  of  the  evidence  a  further  motion  was  made 
by  defendant  to  dismiss  the  proceedings,  "for  the  reason  that 
there  is  no  evidence  that  the  premises  described  in  the  ptition 
are  not  held  by  any  agreement  in  writing  with  the  owner 
thereof." 

I  think  the  evidence  on  cross-examination  of  a  witness  for  the 
defendant  brought  out  the  fact  that  no  such  agreement  was 
known  to  exist,  or  was  found  in  the  archives  of  the  defendant 
or  its  predecessor  in  interest,  which  it  seems  to  me  is  sufficient 
to  sustain  the  allegation  of  the  petition  in  this  regard.  Motion 
denied. 

A  further  motion  was  made  by  defendant  to  dismiss  as  to  the 
thirty-foot  strip  of  land  described  in  the  petition,  on  the  ground 
that    the    defendant    is    the    owner    of    eleven -twelfths    thereof. 


600       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Trust  Co.  v.  Railway.  [Vol.  VII,  N.  8. 

which  ownership  is  admitted,  and  is  and  has  been  in  possession 
thereof  as  a  tenant  in  common,  and  that  this  court  is  without 
jurisdiction  to  require  it  to  appropriate  the  remaining  one- 
twelfth  thereof  in  this  proceeding. 

I  am  of  the  opinion  that  the  word  "owner"  in  said  Section 
6448  includes  one  having  title  to  an  undivided  fractional  part 
of  land,  and  as  one  tenant  in  common  may  oust  his  co-tenant 
from  possession  of  the  common  property,  that  when  this  is  done 
by  a  railroad  company  the  co-tenant  can  sustain  this  proceeding 
to  recover  compensation  for  his  interest  so  taken.    Motion  denied. 

A  further  motion  was  made  by  the  defendant  to  dismiss  this 
proceeding,  upon  three  grounds: 

First.  "That  the  Minneapolis  Trust  Co.  has  failed  to  show 
by  the  evidence,  or  otherwise,  that  it  has  complied  with  the  re- 
quirements of  Section  148d  of  the  Revised  Statutes  of  Ohio,  by 
procuring  from  the  Secretary  of  State  the  certificate  therein 
mentioned. ' ' 

Second.  "Because  the  evidence  fails  to  show  that  the  plaint- 
iffs, or  either  of  them,  has  the  right  or  capacity  to  maintain" 
this  suit.     And, 

Third.  "For  failure  to  show  a  cause  of  action  under  the 
statute  in  favor  of  the  plaintiffs,  or  either  of  them." 

On  this  motion  the  arguments  and  briefs  have  taken  a  very 
wide  range,  and  have  received  careful  consideration;  but  in  the 
view  of  the  case  taken  by  the  court  it  will  become  unnecessary 
to  refer  to  all  the  propositions  submitted  by  counsel. 

As  to  the  first  ground  set  up  in  said  motion,  I  am  of  the.  opin- 
ion that  the  bringing  of  this  suit  is  not  "doing  business"  within 
the  meaning  of  Section  148rf,  and  as  no  other  acts  are  shown 
this  ground  must  be  held  insufficient.  C.  E.  &  C.  Co.  v.  Poole.. 
24  L.  R.  A.,  289,  note  and  authorities  there  cited. 

It  is  contended  in  support  of  the  other  grounds  set  up  in 
this  motion  that  a  trust  company,  domestic  or  foreign,  has  no 
legal  authority  or  capacity  to  act  as  executor  in  this  state. 

Under  the  pleadings  and  evidence  I  am  of  the  opinion  that 
this  question  does  not  properly  arise  in  this  ease.  It  is  true 
that  the  title  of  the  case  describes  the  plaintiffs  as  executors 
and  trustees,  and  it  is  also  alleged  in  the  body  of  the  amended 
petition  that  they  are  executors  and  trustees  of  their  respective 
testators,   hut  the   material   and   controlling   allegation   of  tin- 


NISI  PRIUS  REPORTS— NEW  SERIES.  501 

1908.)  Trust  Co.  v.  Railway. 

amended  petition  is  "that  as  such  trustees  the  plaintiffs  are 
seized  in  fee  simple  as  tenants  in  common  of  the  real  estate 
hereinafter  set  forth."  The  amended  petition,  therefore,  and 
the  evidence  in  support  thereof,  clearly  shows  that  the  plaintiffs 
are  asserting  rights  in  this  case  simply  and  alone  as  trustees 
of  an  express  trust. 

The  defendant  attacks  by  this  motion  their  legal  capacity  to 
so  act.  So  far  as  the  Union  Savings  Bank  &  Trust  Co.  is  con- 
cerned, it  being  a  domestic  corporation,  no  question  has  been 
raised  as  to  its  trusteeship.  Section  3821ft  of  the  Revised  Stat- 
utes provides  as  to  trust  companies: 

"Any  such  company  may  be  appointed  trustee  under  any 
will  or  instrument  creating  a  trust  for  the  care  and  manage- 
ment of  property  under  the  same  circumstances,  in  the  same 
manner  and  subject  to  the  same  control  by  the  court  having 
jurisdiction  of  the  same  as  in  the  case  of  a  legally  qualified 
person. ' ' 

The  capacity  of  this  company  to  act  as  such  trustee  under 
this  provision  of  said  section  in  the  "care  and  management" 
of  property  is  not  open  to  question.  That  a  proper  exercise 
of  such  "care  and  management"  does  authorize  it  to  bring  or 
join  in  this  proceeding  seems  also  to  be  true.  I  think  the  terms 
"care  and  management"  are  not  used  in  this  section  in  any 
restricted  sense  but  in  a  sense  large  and  broad  Enough  to  sus- 
tain the  bringing  of  this  action. 

It  seems  to  be  well  settled  that  a  trustee  having  the  legal 
title  to  land  may  in  the  proper  management  of  the  trust  bring 
any  action  necessary  to  protect  or  defend  such  land,  or  to  re- 
cover possession  of  such  property,  or  compensation  for  it.  when 
unlawfully  appropriated  by  another.  I  find  from  the  evidence 
that  the  legal  title  to  the  undivided  moiety  of  the  land  in  ques- 
tion was  devised  to  this  company  as  trustee,  in  trust  for  cer- 
tain purposes  set  forth  in  the  last  will  and  testament  of  Adolphus 
II.  Smith,  deceased.  I  think  that  as  the  owner  of  such  legal 
title  it  should  and  must  in  the  proper  "care  and  management" 
of  the  property  entrusted  to  it  protect  such  title  and  such  prop- 
erty, and  is  competent  to  institute  this  or  any  other  proper 
suit  in  that  behalf, 

It  is  urged,  however,  that  in  any  event  the  trustees  take  only 


502       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Trust  Co.  v.  Railway.  [Vol.  VII.  N.  S. 

so  much  of  the  legal  estate  as  the  purposes  of  the  trust  require, 
although  words  of  inheritance  are  used  in  creating  the  trust, 
and  the  opinion  of  the  court  in  Gilpin  v.  Williams,  17  0.  S..  417. 
is  cited  as  sustaining  this  view.  But  that  case  involved  a  ques- 
tion arising  before  Section  5970,  Revised  Statutes,  was  enacted, 
which  section  provides  that  the  devisee  shall  take  all  of  the 
estate  of  the  devisor  unless  it  clearly  appear  that  a  less  estate 
was  intended.  And  besides  it  seems  clear  that  the  purposes 
of  this  trust  required  that  the  trustee  be  vested  with  the  full 
legal  title  as  devised  to  it. 

So  far,  then,  as  the  Union  Savings  Bank  &  Trust  Co.  is  con- 
cerned I  think  this  motion  is  not  well  taken. 

The  principal  contention,  however,  on  this  motion  has  been 
directed  against  the  Minneapolis  Trust  Co..  a  foreign  corpora- 
tion, and  its  capacity  to  act  as  co-plaintiff  has  been  earnestly 
attacked. 

It  appears  from  the  evidence  that  John  T.  West  died  testate 
March  13th,  1899,  being  at  that  time  a  resident  of  Hennepin 
county.  Minnesota.  His  will  was  duly  probated  in  that  county 
on  April  10th.  1899.  This  trust  company  qualified  as  executor 
of  said  will,  performed  the  ordinary  duties  attending  the  settle- 
ment of  the  estate,  reported  to  the  proper  court,  and  was  ordered 
on  May  the  1st,  1900.  to  distribute  to  itself  as  trustee  under 
said  will  more  than  $135,000  of  personalty.  That  the  legal 
title  to  certain  real  estate  was  also  devolved  upon  it  as  such 
trustee,  including  that  involved  in  this  proceeding.  Such  dis- 
tribution was  made,  and  the  final  account  of  said  company  as 
executor  was  duly  presented,  audited  and  allowed.  On  Decem- 
ber 14th.  1907.  said  company  joined  with  its  co-plaintiff  in  this 
case  in  giving  the  notice  required  by  said  Section  6448,  and 
joined  as  plaintiff  in  a  petition  filed  thereunder  in  this  court 
December  26th.  1907,  and  in  the  amended  petition  filed  Decem- 
ber 30th,  1907.  On  January  29th,  1908.  a  duly  authenticated 
copy  of  said  will  of  John  T.  West,  deceased,  was  filed  for  record 
in  the  Probate  Court  of  Hamilton  County  pursuant  to  Section 
6937  of  the  Revised  Statutes,  and  on  February  14th,  1908,  said 
company  gave  bond  in  said  probate  court  of  this  county  as  trus- 
tee under  Section  5988  of  the  Revised  Statutes.  Upon  these 
facts  numerous  objections  have  been   urged  against  the  right 


NISI  PRIUS  REPORTS— NEW  SERIES.  503 

1908.]  Trust  Co.  v.  Railway. 

and  capacity  of  this  company  to  join  in  this  proceeding,  some  of 
which  seem  to  be  more  technical  than  meritorious.  The  basic 
contention  is  that  the  will  of  said  West  does  not  create  a  trust 
to  be  executed  by  a  trustee  as  distinguished  from  an  executor, 
The  material  provisions  of  the  will  upon  this  question  are  as 
follows ;  after  directing  the  payment  of  such  charges  as  apper- 
tain to  the  ordinary  administration  of  his  estate,  the  will  pro- 
ceeds: 

"Second.  I  give,  devise  and  bequeath  all  my  property  of 
whatever  nature,  real  personal  or  mixed  and  wherever  situated, 
to  my  executor  hereinafter  named,  in  trust  nevertheless  for  the 
purposes  hereinafter  set  forth. 

"Third.  1  desire  and  direct. that  my  estate  shall  be  so  in- 
vested and  managed  that  it  shall  yield  the  best  income  compati- 
ble with  safety.  I  desire,  however,  that  if  practicable  my 
hotel  property  in  the  city  of  Minneapolis,  known  as  the  West 
Hotel,  shall  be  continued  and  operated  as  a  hotel  during  the 
life  of  my  daughters,  Clara  Howard  West  and  Nellie  Walker 
West,  or  so  long  as  the  same  can  be  profitably  managed  as  a 
hotel.  And  that  while  so  belonging  to  my  estate  proper  ex- 
penditures shall  be  made  for  the  purpose  of  maintaining  the 
character,  condition  and  management  of  said  hotel  in  a  first- 
class  manner.  Should  my  executor,  however,  deem  it  for  the 
best  interests  of  my  estate  that  my  hotel,  or  any  part  of  my 
said  estate,  shall  be  leased  or  sold,  and  should  a  majority  of 
the  directors  of  my  executor  so  determine,  then  and  in  that 
case  I  hereby  expressly  authorize  and  empower  my  executor  so 
to  sell  or  lease  by  such  deeds  or  instruments  of  conveyance, 
or  lease  upon  such  terms  and  conditions  and  for  such  prices 
as  to  it  shall  seem  best,  and  the  proceeds  thereof  to  invest  in 
such  manner  as  my  said  executor  shall  determine. 

"Fourth.  And  whereas  there  is  a  bonded  indebtedness  on 
said  hotel,  therefore  I  desire  my  executor  to  provide  such  n 
sinking  fund  from  the  income  of  my  estate  as  shall  in  its  judg- 
ment be  right  «nd  proper  to  meet  the  same,  either  on  expira- 
tion of  the  present  loan  or  any  renewal  of  the  same  or  any  part 
thereof,  provided  that  an  annual  income  of  not  less  than  $3,000 
shall  be  paid  to  each  of  my  said  daughters  quarterly  in  ad- 
vance. 

"Fifth.  After  providing  for  the  proper  care  and  mainten- 
anee  of  my  hotel  and  other  real  property  by  the  creation  of  a 
sinking  fund  or  otherwise  as  aforesaid,  I  direct  my  executor 
to  pay  over  annually  to  each  of  my  said  daughters  one-half  of 
the  net  income  of  my  estate  until  my  daughter,  Nellie  Walker 


504       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Trust  Co.  v.  Railway.  [Vol.  VII.  N.  & 

West,  shall  reach  the  age  of  forty  years.  My  executor  and 
trustee  shall  thereupon  divide  my  estate  as  then  constituted 
into  two  equal  parts  or  portions  as  near  as  may  be,  provided  that 
if  in  so  dividing  said  estate  my  executor  shall  deem  it  best  to 
assign  to  each  of  said  legatees  an  undivided  one-half  of  any 
portion  of  my  estate  it  may  do  so ;  and  thereupon  one  of  said 
parts  of  my  estate  shall  vest  in  each  of  my  said  daughters.  •  *  * 
"Eighth.  I  nominate  and  appoint  the  Minneapolis  Trust  Co. 
executor  of  this  my  last  will  and  testament,  and  trustee  of  the 
trusts  herein  created." 

The  construction  of  these  provisions,  so  far  as  the  land  lo- 
cated in  Ohio  is  concerned  and  affected  in  this  case,  must  be 
determined  by  the  law  of  this  state. 

That  the  testator  intended,  after  settlement  of  the  ordinary 
and  usual  matters  connected  with  the  administration  o?  his 
estate,  to  create  a  trust  as  to  the  entire  remainder  thereof,  I 
think  is  apparent  from  the  terms  of  his  .vill.  The  intention 
(if  the  testator  once  discovered  must  prevail,  ir  not  unlawful, 
and  must  be  given  full  respect  and  enforcement  in  this  state 
as  to  property  here  located. 

The  further  and  very  important  question  remains,  whether 
he  intended  such'  trust  to  be  executed  by  his  executor  as  Bueh 
or  as  trustee.  In  directing  what  was  to  be  done  in  executing 
the  trust,  in  every  instance  but  one  he  uses  the  term  "my  ex- 
ecutor." and  in  the  one  instance  he  says  "my  executor  and 
trustee."  If  this  were  all,  the  conclusion  might  be  reached  that 
he  intended  his  executor  as  such  to  execute  the  trusts  of  his 
will.  But  by  the  last  clause  of  Item  8  he  distinctly  and  clearly 
removes  all  doubt  and  appoints  said  company  "trustee  of  the 
trusts  herein  created,"  and  this  in  clear  distinction  to. its  ap- 
pointment as  executor.  I  think  this  company  occupied  the 
dual  relation  of  executor  and  trustee  to  this  estate,  and  that  the 
legal  title  to  land  devised  in  trust  devolved  upon  it  as  trustee 
when  it  assumed  the  duties  of  trustee. 

The  ease  of  Oavdolfo  v.  Walker,  15  0.  S.,  251,  is  cited  by  de- 
fendant as  sustaining  its  contention.  This  was  a  suit  against  the 
sureties  on  the  bond  of  an  executor.  One  defense  was  that  the 
money  sued  for  was  not  assets  coming  into  the  hands  of  the 
executor  as  such  hut  was  received  by  him  as  trustee  under  the 


NISI  PBIUS  REPORTS— NEW  SERIES.  505 

1908.]  Trust  Co.  v.  Railway. 

provisions  of  the  will.     The  will  provided  as  follows,  so  far 
as  the  alleged  trust  was  concerned: 

"I  direct  that  my  brewery  be  carried  on  under  the  direction 
and  superintendence  of  my  executors  for  the  benefit  of  my  es- 
tate for  the  terni  of  seven  year3  after  the  date  of  my  decease, 
and  for  this  purpose  I  authorize  my  executors  to  employ  com- 
petent persons  at  proper  salaries  to  carry  on  the  same;  and  at 
the  expiration  of  seven  years  I  give  and  devise  my  said  brewery 
property  and  the  proceeds  thereof,  together  with  the  machinery 
and  fixtures  and  the  stock  at  that  time  on  hand,  to  the  children 
of  my  brother  William  Walker,  my  brother  James  Walker  and 
my  sister  Ann  share  and  share  alike." 

The  Supreme  Court  held  that  the  entire  will  of  the  testator 
"constituted  his  plan  for  administering  the  estate";  that  the 
brewery  business  was  the  business  of  the  estate,  to  be  carried  on 
at  the  expense  and  risk  of  the  estate,  and  that  there  was  no 
devise  or  bequest  to  the  executor  in  trust  as  trustee  either  of  the 
brewery  or  of  the  funds  to  carry  it  on ;  and  the  claim  of  the  de- 
fense was  not  allowed. 

But  Welch,  J.,  who  delivered  the  opinion  in  this  case,  in  re- 
ferring to  trusts  to  be  executed  by  an  executor  as  trustee  inde- 
pendent of  the  executorship,  says: 

"I  admit  that  a  testator  may  direct  the  continuance  of  a  trade 
or  business  by  his  executor  as  trustee  independent  of  his  execu- 
torship, and  such  cases  often  occur.  But  they  are  always  either 
where  there  is  a  devise  or  bequest  to  the  executor  in  trust,  or 
where  part  of  the  assets  are  specifically  set  apart  and  directed 
to  be  invested  as  a  trust  fund.  In  the  former  case  the  executor 
receives  them  at  once  as  trustee  and  they  never  become  assets." 

In  the  case  at  har  there  was  a  devise  of  the  entire  estate  real 
and  personal,  to  the  executor  in  trust,  which  according  to  the 
law  as  expounded  by  Welch,  J.,  just  quoted,  said  trust  company 
must  have  received  as  trustee,  and  hence  no  part  of  it  became 
assets  in  its  hands  as  executor  except  such  part  of  the  personalty 
thereof  as  was  necessary  to  be  used  in  the  settlement  of  the  usual 
and  ordinary  charges  of  administration. 

Attention  has  also  been  called  by  the  defendant  to  the  ease 
of  Mathers,  Admr.,  v.  Meek,  23  0.  S.,  272.  The  opinion  of 
Mellvaine,  J.,  at  page  290  is  sufficient  to  show  that  the  will  in 


506        HAMILTON  COUNTY  INSOLVENCY  COURT. 

TruBt  Co.  v.  Railway.  [Vol.  VII.  N.  3. 

that  case  did  not  specifically  appoint  a  trustee,  as  did  the  will  of 
said  West.     He  says: 

"Now  in  the  will  of  Benjamin  H.  Johnson  there  is  not  a  single 
expression  from  which  it  can  be  clearly  inferred  that  the  testator 
intended  that  the  parties  named  in  the  will  as  executors  should 
manage  this  fund  in  the  capacity  of  special  trustees  and  not  in 
the  capacity  of  executors." 

Justice  Mellvaine  further  says  in  the  same  opinion : 

"To  constitute  the  person  named  in  the  will  as  executor  a 
special  trustee  separate  and  apart  from  his  office  of  executor  it 
is  not  enough  that  the  powers  granted  to  him,  or  the  duties  im- 
posed upon  him  in  relation  to  a  particular  fund  be  such  as  are 
unusual  in  the  course  of  ordinary  administration ;  it  must  also 
appear  that  the  intention  was  to  withdraw  the  particular  trust 
from  the  management  and  control  of  the  executor  as  such  and 
to  create  a  separate  office  for  its  management." 

It  is  apparent  from  the  terms  of  the  will  of  said  West  that 
he  intended  to  create  a  trust  estate  whieh  included  the  Obio  land 
in  question,  and  intended  to  appoint  a  trustee  to  execute  such 
trust.  I  must  hold,  therefore,  that  a  trust  was  created  by  the 
will  of  said  West,  which  included  the  land  in  controversy  here, 
and  that  the  Minneapolis  Trust  Company  was  appointed  the 
trustee  thereof,  and  intrusted  with  the  legal  title  thereto.  Can 
it  act  as  such  trustee  in  this  state?  Section  5987  of  the  Re- 
vised Statutes,  and  others  following  it,  specifically  provide  for 
the  execution  of  trusts  created  by  wills  made  out  of  the  state,  and 
relating  to  land  situated  here,  by  trustees  named  in  such  foreign 
will. 

I  think  upon  well  settled  principles  of  comity  a  foreign  trust 
company  having  the  legal  title  to  land  in  this  state  is  entitled 
to  exercise  the  same  powers  as  to  the  "care  and  management" 
of  such  property  as  are  conferred  upon  domestic  trust  companies 
by  said  Section  38216,  as  herein  defined. 

It  is  objected,  however,  that  inasmuch  as  the  authenticated 
copy  of  the  West  will  had  not  been  admitted  to  record  in  the 
probate  court  of  this  county  under  Section  5937  of  the  Revised 
Statutes,  nor  the  bond  given  as  provided  by  Section  5988,  until 
after  the  service  of  the  notice  required  by  said  Section  6448,  and 
after  suit  brought,  that  such  notice  is  absolutely  void  and  the 


NISI  PEIUS  REPORTS— NEW  SERIES.  507 

1908.]  Trust  Co.   v.  Railway. 

suit  improperly  instituted.  If  this  were  so,  at  bsst  it  would 
only  involve  a  matter  of  costs,  as  the  plaintiff  could  at  once  upon 
dismissal  commence  de  novo,  unless  prevented  by  the  running 
of  the  statute  of  limitations.  But  is  the  claim  tenable?  The 
argument  is  based  upon  provisions  of  Section  5942,  Revised  Stat- 
utes, which  declares: 

"No  will  shall  be  effectual  to  pass  real  or  personal  estate  un- 
less it  shall  have  been  duly  admitted  to  probate  or  record  as  pro- 
vided in  this  title." 

Doubtless  it  would  have  been  strictly  regular  to  have  followed 
the  requirements  of  said  sections  as  to  record  of  the  will  and 
the  giving  of  a  bond  before  attempting  to  proceed  under  said 
Section  6448  in  the  bringing  of  this  proceeding.  But  the  vital 
question  now  presented  is,  did  not  subsequent  compliance  with 
said  sections  as  to  record  of  the  will  and  giving  of  bond  relate 
backward  and  give  validity  to  the  acts  done?  The  case  does  not 
present  any  question  of  ratification  or  adoption.  There  is  noth- 
ing to  be  ratified  or  adopted,  and  no  one  to  do  either  of  these 
acts  from  the  very  nature  of  the  case.  The  principles  therefore 
applicable  to  the  doctrine  of  ratification  and  adoption  would  be 
misleading  and  have  no  bearing  upon  the  real  question  at  issue 
here.  No  question  is  or  can  be  successfully  raised,  but  that  the 
record  of  a  foreign  will  as  provided  by  Section  5937  is  necessary 
to  effectually  pass  the  title  to  property  in  this  state,  but  when 
this  is  done  will  the  doctrine  of  relation  apply  and  validate  acts 
previously  done  which  after  such  record  may  be  performed?  I 
think  this  is  a  proper  case  in  which  to  apply  the  doctrine  of  re- 
lation. It  is  the  provisions  of  the  will  that  establish  title,  while 
the  record  thereof  only  make  such  title  "effectual,"  and  relates 
more  particularly  to  the  establishment  of  a  proper  chain  of  title 
in  the  state  and  county  where  the  land  is  situated. 

In  the  case  of  Poole  v.  Fleeger,  11  Peters,  185,  which  involved 
a  question  in  reference  to  real  estate  located  in  Tennessee  and 
dpviscd  by  a  will  admitted  to  probate  in  Pennsylvania,  which 
will  was  registered  in  Tennessee,  objection  was  made  on  the  trial 
to  the  introduction  of  such  will  as  evidence,  on  the  ground  that 
the  will  was  not  registered  in  the  state  of  Tennessee  until  after 
the  institution  of  the  suit.     But  the  court  held: 


608       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Trust  Co.  v.  Railway.  [Vol.  VII,  N.  8. 

"Where  a  will  devising  lands  made  in  one  state  is  registered 
in  another  state  in  which  the  lands  lie  the  registration  has  re- 
lation backward,  and  it  is  wholly  immaterial  whether  the  same 
was  made  before  or  after  the  commencement  of  a  suit." 

Poole  v.  Fleeger  and  the  case  at  bar  seem  to  be  on  all  fours 
with  each  other  upon  the  point  now  being  considered. 

No  case  in  Ohio  directly  decides  the  point.  Douglass  v.  Miller, 
3  N.  P.,  220,  did  decide,  apparently  on  the  authority  of  Wood- 
bridge  v.  Banning,  14  0.  S.,  328,  thai  a  title  by  devise  was  a 
new  and  independent  title,  not  affected  by  conveyances  previous 
to  probate  of  a  will,  but  this  case  appears  to  have  been  reversed 
by  the  circuit  count  and  dismissed  by  plaintiff  in  error  in  the 
Supreme  Court.  Woodbridge  v.  Bantling,  supra,  practically  de- 
cided that  a  devisee  under  a  will  finally  established  against  the 
contention  of  certain  heirs  at  law  was  not  estopped  by  a  decree 
in  partition,  secured  by  such  heirs  at  law  against  the  objection 
of  said  devisee  pending  such  contest,  from  setting  up  a  title  as 
devisee  under  such  will  of  the  common  ancestor  admitted  to  pro- 
bate subsequent  to  the  said  decree  in  partition.  Manifestly  the 
doctrine  of  relation  as  interpreted  in  Poole  v.  Fleeger,  supra,  was 
not  decided  or  involved.  In  Woodbridge  v.  Banning  it  may  have 
been  invoked  by  the  heirs  at  law  to  defeat  the  innocent  devisee, 
who  had  done  nothing  in  the  entire  matter  but  contest  for  his 
rights;  but  to  apply  it  to  the  facts  of  that  case  would  have  been 
a  violent  misapplication  of  the  doctrine.  A  title  by  devise  is 
doubtless  a  new  and  independent  title  as  distinguished  from  a 
title  by  descent,  and  is  in  abeyance  until  probate  of  the  will,  or 
record  thereof  in  this  state  in  the  case  of  a  foreign  will,  but 
probate  once  finally  had,  or  record  in  case  of  a  foreign  will,  es- 
tablishes the  next  link  in  the  chain  of  title  from  the  devisor,  and 
makes  the  title  of  the  devisee  effective  from  the  death  of  such 
devisor. 

It  has  been  further  urged  that  ancillary  administration  in 
Ohio  is  also  a  prerequisite  to  the  vesting  of  title  in  this  trustee. 
I  do  not  so  interpret  the  statutes  of  this  state.  The  ordinary 
objects  of  administration  are  well  understood,  and  so  far  as 
real  estate  is  concerned  include  the  payment  of  the  debts  of  the 
deceased.  These  objects  in  this  case  had  been  accomplished  by 
the  administration  in  the  state  of  domicile  eight  years  ago,  and 


NISI  PRIUS  REPORTS— NEW  SERIES.  509 

1908.J  Trust  Co.  v.  Railway. 

no  creditors  are  moving  in  Ohio  or  shown  to  exist  here,  and  under 
the  circumstances  it  must  be  presumed  that  none  do  exist.  The 
title  to  land  in  the  devisee  can  only  be  divested  to  pay  debts. 
There  being  no  debts  the  title  is  perfect.  Under  the  compre- 
hensive provisions  of  Section  5987  no  administration  in  this 
state  appears  to  be  required  as  preliminary  to  the  execution  of 
such  trusts  as  this  at  bar,  although  it  is  clear  that  Ohio  creditors 
might  invoke  ancillary  administration  as  against  any  property 
located  in  this  state.  But  no  such  creditors  appear  to  exist. 
I  think,  therefore,  that  this  motion  must  be  denied. 

Coming  now  to  the  issues  made  hy  the  pleadings.  The  answer 
alleges  the  pendency  of  another  action  in  the  Superior  Court 
of  Cincinnati,  wherein  the  plaintiffs  at  bar  are  plaintiffs  and 
the  Ohio  &  Mississippi  Railway  Company  is  defendant,  com- 
menced December  31st,  1887,  to  recover  possession  of  the  same 
land,  with  rents,  issues  and  profits  and  damages,  which  action 
it  is  claimed  should  abate  this  proceeding.  I  think  not.  While 
the  parties  to  the  superior  court  case  are  not  identical  doubtless 
they  might  be  made  so  by  the  substitution  of  the  defendant  in 
this  case  in  the  place  of  the  defendant  in  that  ease.  .  But  there 
is  no  identity  of  causes  of  action  nor  of  relief  sought,  and  while 
the  plaintiffs  must  establish  title  to  recover  in  either  case  this 
is  but  a  matter  of  proof.  This  done  in  the  superior  court  case 
would  hardly  entitle  plaintiffs  to  a  writ  of  possession  under  the 
circumstances  as  against  the  defendant  at  bar,  a  great  public 
corporation,  and  the  interests  of  the  public  being  vitally  con- 
cerned, but  doubtless  would  result  if  litigation  was  continued  in 
some  proceeding  under  the  chapter  on  appropriation  of  property. 
However  the  distinction  between  the  cases  is  obvious  and  com- 
plete. 

It  might  be  added  that  it  is  very  doubtful  whether  the  superior 
eourt  case  to  recover  possession  is  the  proper  remedy,  in  view  of 
the  opinion  of  Minshall,  J.,  in  R.  R.  Co.  v.  0  'Harra,  supra,  where 
he  says,  "It  would  seem  that  when  a  highway  has  been  taken 
possession  of  by  a  railroad  company  under  an  agreement  with 
the  public  authorities  a  proceeding  to  compel  condemnation  is 
the  only  remedy  of  the  land  owner."  If  the  "only  remedy" 
then  ejectment  must  fail. 


510       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Trust  Co.  v.  Railway.  [Vol.  VII,  N.  S. 

There  appears  to  be  a  clear  distinction  drawn  by  the  Supreme 
Court  as  to  remedies  between  the  case  of  a  highway  occupied 
by  a  railroad  company  under  proper  authority  and  a  case  where 
such  company  takes  possession  of  private  property  without  right, 
as  in  Railroad  Company  v.  Rabbins,  35  0.  S.,  531.  The  doctrine 
of  election  of  remedies,  therefore,  as  held  in  the  latter  case  would 
not  apply  to  cases  where  a  highway  is  occupied  of  right,  as  is 
claimed  by  defendant  in  case  at  bar. 

I  come  now  to  the  question  of  title.  The  land  in  controversy 
consists  of  two  parcels.  The  principal  contention  arises  over  a 
tract  alleged  to  be  60  feet  wide  and  some  347  feet  in  length,  lying 
next  south  and  adjoining  the  former  towpath  of  the  old  White- 
water canal,  and  claimed  to  have  constituted  in  1853  and  for  a 
long  time  thereafter  a  section  of  the  Old  Lower  River  road, 
which  appears  to  have  been  a  county  road  but  now  abandoned. 
Other  lands  of  plaintiffs,  the  title  to  which  is  not  in  question, 
abut  on  the  south  line  of  said  strip  and  run  back  to  the  Ohio 
river.  The  plaintiffs  have  shown  a  record  title  to  this  parcel  in 
controversy,  subject  to  an  admitted  right  of  defendant  to  main- 
tain a  single  track  through  the  entire  length  thereof,  and  unless 
the  defendant  has  obtained  title  by  prescription  to  the  entire 
strip  now  occupied  by  it,  upon  the  law  and  the  evidence  the  title 
of  plaintiffs  must  prevail,  subject  to  the  right  of  the  one  track 
aforesaid.  If  material  to  be  determined  in  this  case,  I  am  of 
the  opinion  that  the  record  evidence  establishes  the  width  of 
the  Old  Lower  River  road  to  be  sixty  feet. 

The  defendant  claims  that  by  virtue  of  an  agreement  with  th:? 
commissioners  of  Hamilton  county,  made  in  November,  1853.  its 
predecessor,  the  Ohio  &  Mississippi  Railroad  Company,  acquired 
the  right  to  lay  its  tracks  in  said  Old  Lower  River  road  from  a 
point  near  to  and  west  of  Millcreek  to  Leib's  bridge,  which  in- 
cludes the  section  of  said  road  in  question,  and  considerable  dis- 
tance besides,  under  the  provisions  of  the  statute  now  known 
as  Section  3284  of  the  Revised  Statutes.  That  said  road  was 
diverted,  as  permitted  by  said  section,  and  constructed  just  north 
of  said  canal  from  Leib's  bridge  east  to  Millcreek.  That  said 
agreement  gave  said  company  color  of  title  to  the  whole  road; 
that  by  occupancy  of  a  part  thereof  the  company  was  in  legal 
possession  of  the  entire  road,  and  that  such  occupation  hy  said 


NISI  PRIUS  REPORTS— NEW  SERIES. 
1908.]  Trust  Co.  v.  Railway. 


company  and  the  defendant,  its  successor,  having  continued 
adversely  for  more  than  twenty-one  years,  its  prescriptive  title 
is  complete. 

The  plaintiffs,  however,  assert  that  the  O.  &  M.  Co.  acquired 
whatever  rights  it  obtained  from  said  commissioners  under  the 
terms  of  Section  3283  of  the  Revised  Statutes;  that  its  arrange- 
ment with  them  did  not  give  color  of  title  to  the  whole  road, 
and  that  the  possession  by  the  0.  &  51.  Company  and  the  de- 
fendant at  bar  has  not  been  adverse  for  twenty-one  years  last 
past. 

It  appears  that  the  agreement  referred  to  took  the  form  of 
correspondence  between  the  parties.  The  president  of  the  O. 
&  M.  Company  addressed  the  commissioners  of  Hamilton  county 
in  the  following  terms: 

"This  company  desires  to  occupy  the  south  line  of  the  county 
road  {for  the  location  of  our  track)  from  Leib's  bridge  to  Mill- 
creek,  and  desire  to  know  upon  what  terms  an  arrangement  for 
this  purpose  can  be  made." 

The  commissioners  of  Hamilton  county  replied  as  follows: 

"Your  note  of  the  23d  inst.  was  received  and  has  been  before 
the  board  of  county  commissioners.  You  are  pleased  to  say  that 
your  railroad  company  desire  to  occupy  the  south  side  of  the 
river  road  for  the  location  of  your  track  from  Leib's  bridge  to 
Millcreek,  and  to  know  upon  what  terms  an  arrangement  can  be 
made  for  the  above  purpose.  Desiring  as  we  do  the  success  of 
all  meritorious  public  enterprises,  we  believe  it  our  duty  as 
public  servants  to  contribute  to  all  such  in  any  reasonable  and 
proper  way.  This  hoard  therefore  makes  the  following  official 
reply  to  your  note." 

Then  follows  in  the  letter  of  the  commissioners  certain  con- 
ditions, which  were  substantially  agreed  to  afterwards  by  the 
O.  &  31.  Company,  but  which  are  not  material  to  this  inquiry. 

It  will  be  olserved  that  the  county  commissioners,  who  were 
the  proper  "public  authorities"  to  be  consulted  in  the  premises, 
were  applied  to  in  this  matter,  and  that  the  phraseology  used 
includes  the  essential  words  of  said  Section  3283,  which  shows 
that  the  parties  were  intending  to  act  under  that  section  and  not 
under  said  Section  3284. 

While  the  opening  of  a  new  road  north  of  the  canal,  as  pro- 


512       HAMILTON  COUNTY  INSOLVENCY  COURT. 

Trust  Co.  v.  Railway.  [Vol.  VII.  N.  8. 

vided  in  said  agreement,  operated  to  transfer  public  travel 
thereto  after  some  time,  this  was  not  a  diversion  of  the  Lower 
River  road  within  the  meaning  of  Section  3284,  but  the  construc- 
tion of  such  new  road  was  simply  one  of  the  conditions  imposed 
by  the  county  commissioners,  the  proper  public  officers,  upon  the 
0.  &  M.  Company,  as  permitted  by  Section  3283,  in  granting 
the  right  to  jointly  "occupy"  a  part  of  said  road  with  the  public. 
The  company  did  not  ask  "to  cross"  said  road,  but  only  "to 
occupy"  a  part  thereof,  and  the  commissioners  were  acting 
strictly  within  their  authority  in  making  the  conditions  of  such 
occupation  as  they  assumed  to  do.  The  road  was  not  changed 
or  diverted,  by  the.  execution  of  this  agreement,  but  it  still  re- 
mained in  the  old  location  for  the  use  of  the  public  and  abutting 
owners.  In  making  these  conditions  the  commissioners  may 
have  had  in  mind,  and  doubtless  did,  the  inconvenience  that 
would  result  to  public  travel  by  reason  of  this  track  laid  in  the 
public  road,  and  hence  the  requirement  as  to  the  building  of 
another  road  north  of  the  canal.  But  this  was  for  the  benefit 
of  the  traveling  public  and  not  for  the  owners  of  land  abutting 
on  the  road,  who,  from  the  location  of  such  new  road,  could  not 
be  specially  benefited  thereby. 

Did  the  right  granted  by  said  agreement  give  color  of  title  to 
the  whole  road? 

Color  of  title  is  defined  to  be  "that  which  in  appearance  is 
title  but  which  in  reality  is  not  title"  (Wright  v.  Mattison,  18 
Howard,  56).  But  there  must  be  appearance  of  title,  which  is 
tantamount  to  saying  that  the  land  must  be  described  in  the 
instrument  giving  color  of  title,  and  can  not  include  any  part 
not  so  described  (Humphries  v.  Huffman,  33  0.  S..  395).  The 
descriptive  words  in  said  agreement  are  "the  south  line  of  the 
county  road  for  the  location  of  our  track,  from  Loib's  bridge  to 
Millcreek,"  in  the  letter  of  the  0.  &  M.  Company  to  the  county 
commissioners;  "the  south  side  of  the  River  road  for  the  loca- 
tion of  your  track,  from  Leib's  bridge  to  Millcreek"  in  the  an- 
swer of  the  county  commissioners.  The  description  is  substan- 
tially the  same  in  both  letters,  and  can  not  be  fairly  construed 
to  include  the  whole  road.  The  county  commissioners  had  no 
legal  power  to  grant  anything  more  than  a  right  to  jointly  oe- 


NISI  PRIUS  REPORTS— NEW  SERIES.  513 

1908.]  Trust  Co.  v.  Railway. 

copy  the  road  with  the  public  and  the  abutting  owners  {Bail- 
road  Co.  v.  Elyria,  69  0.  S.,  414).  The  right  to  lay  one  track 
and  to  jointly  use  said  road  to  that  extent  with  the  public  must 
be  held  to  include  all  that  was  given  or  intended  to  be  given  by 
said  agreement. 

There  being  no  color  of  title  to  the  whole  road,  the  right  ac- 
quired therein  extends  only  to  the  land  actually  occupied — the 
pedis  posses&io — by  the  one  track. 

As  to  the  running  of  the  statute  of  limitations  against  the 
plaintiffs.  I  think  the  evidence  shows  that  for  some  time  after 
the  opening  of  the  0.  &  M.  in  1854  the  River  road  was  used 
jointly  by  the  public  and  said  company,  and  that  gradually 
the  O.  &  M,  acquired  all  the  abutting-  land  between  Leib's  bridge 
and  Evans  street,  and  adapted  the  same  to  its  purposes,  includ- 
ing the  River  road  between  those  points.  I  also  think  it  is 
shown  that  from  Evans  street  to  Millereek.  which  includes  the 
land  in  question,  the  joint  use  of  the  road  continued  until  the 
explosion  at  Crawford's  mill,  about  April  4th,  1888. 

I  conclude,  therefore,  that  the  defendant  and  its  predecessor 
have  not  had  adverse  possession  of  the  land  in  question  for 
twenty-one  years  prior  to  the  bringing  of  this  action,  and  that 
the  title  thereto  is  in  the  plaintiffs,  subject  to  the  servitude  of 
on»  track  that  has  existed  therein  for  more  than  twenty-one 
years.  I  find  from  the  evidence  that  only  one  track  was  laid  on 
the  land  in  suit  prior  to  1888. 

The  extent  and  width  of  the  right  acquired  for  the  one  track 
becomes  important  to  determine.  A  track  in  this  connection  must 
not  be  confounded  with  the  usual  right-of-way.  The  right  to  lay 
one  track,  not  a  right-of-way,  is  what  was  originally  acquired. 
It  appears  that  the  original  track  was  a  broad  gauge,  later 
changed  to  a  standard,  and  that  the  ties  were  about  eight  and 
a  half  feet  in  length,  and  not  to  exceed  nine  feet,  upon  which 
the  rails  were  laid.  Xo  reason  exists  in  this  case  why  the  limits 
of  the  '"track"  should  be  extended  beyond  the  actual  possession, 
the  pedis  possessio,  and  I  think  that  nine  feet  will  fully  cover 
such  possession,  and  is  certainly  commensurate  with  the  de- 
scription used  by  the  parties  in  the  original  agreement. 

It  has  been  urged  that  the  court  should  locate  such  track  with 
some  exactness  in  said  road  if  the  conclusions  of  the  court  were 


514  ASHTABULA  COUNTY  COMMON  PLEAS. 

Trust  Co.  v..  Railway.  (Vol.  XI,  N.  S. 

adverse  to  the  claims  of  the  defendant  as  to  title.  Upon  this 
subject  the  evidence  is  conflicting  as  well  as  confusing  in  the 
extreme,  and  I  am  of  the  opinion  that  a  determination  of  this 
matter  is  not  essential  or  important  in  the  further  progress  of 
this  case  to  a  jury.  The  value  of  the  land  taken,  stibjeet  to  an 
easement  of  nine  feet  through  its  entire  length,  can  he  deter- 
mined by  evidence,  and  the  damage  to  the  residue  by  reason  of 
the  land  taken  can  be  shown  by  testimony,  excluding  the  nine- 
foot  track  from  the  consideration. 

As  to  the  thirty-foot  tract  described  in  the  petition,  no  serious 
contest  has  been  made,  and  I  find  on  the  evidence  that  the 
plaintiff  are  the  owners  of  one-twelfth  thereof. 

A  jury  will  be  impanneled  to  assess  compensation  and  damages. 


PROCEEDINGS  FOR.  ANNEXATION  OF  TERRITORY  TO  A 
MUNICIPALITY. 

Common  Pleas  Court  of  Ashtabula  County. 
Shipbaugh  btalv.  Kimball,  Recorder,  et  al. 
Decided,  August  15,  1908. 
Annexation — Transcript  of  Proceedings  Must  be  Filed  with  City  Cleric 
—Approval  of  Ordinance  Without  Validity — Where  Mayor  has  a 
Considerable  Financial  Interest  at  Btake — County  Commissioners — 
Misinterpretation  of  Judicial  Functions  of — Injunction — Municipal 
Corporations-^-Construction  of  Statute  Relating  to  Annexation — 
Organization  of  Villages  and  Hamlets. 

1.  The  requirement  of  Section  1590  (1536-32)   et  seq.,  with  reference 

to  filing  with  the  municipal  clerk  the  transcript  of  the  proceed- 
ings by  the  county  commissioners  upon  an  application  by  citizens 
for  the  annexation  of  territory  to  the  municipality,  apply  under 
Section  1599  (1536-41)  to  the  annexation  of  territory  upon  applica- 
tion of  the  corporation  itself,  and  injunction  will  He  to  prevent  a 
county  recorder,  to  whom  such  proceedings  have  been  certified, 
from  making  a  record  thereof. 

2.  Under  Section  125  of  the  municipal  code  of  1902,  clothing  mayors 

with  the  Impartial  and  disinterested  legislative  function  of  ap- 
proving or  vetoing  ordinances,  the  approval  by  a  mayor  of  an 
ordinance  authorizing  annexation  to  a  municipality  of  territory  In 
which  he  has  a  considerable  financial  interest  Is  clearly  against 
public  policy  and  invalid. 


NISI  PBIUS  REPORTS— NEW  SERIES.  515 

1908-1  Shipbaugh  v.  Kimball,  Recorder. 

3.  County  commissioners  exercise  a  Judicial  function  In  acting  upon 

an  application  for  the  annexation  of  territory  to  a  municipality, 
and  where  such  an  application  is  granted  merely  because  of  tbe 
passage  of  an  ordinance  authorizing  the  annexation,  the  com- 
missioners misinterpret  and  fall  to  properly  exercise  their  Judicial 
functions,  and  Injunction  will  He  to  prevent  the  recording  of  an 
annexation  ttaua  effected;  and  especially  Is  this  true  if  the  ordi- 
nance was  passed  at  the  suggestion  of  the  commissioners  and  for 
the  purpose  of  throwing  on  council  the  responsibility  for  a  pro- 
ject to  which  they  were  themselves  opposed. 

4.  The  granting  of  an   Injunction   to   restrain   recording  of  the  an- 

nexation of  territory  to  a  municipality,  because  of  failure  of  the 
county  commissioners  to  give  Judicial  consideration  to  the  questions 
and  Interests  Involved,  does  not  have  the  street  under  Section  1592 
(1536-34)   of  barring  further  proceedings  with  reference  thereto. 

Herbert  Willianis  and  Hoyt,  Muvsell  &  Hall,  for  plaintiffs. 
F.  B.  Hogue  and  McGiffert  &  Vllman,  for  defendants. 

Hole,  J. 

In  this  case  the  plaintiffs,  Fred  Shipbaugh  et  al,  have  entered 
suit  against  Elliott  Kimball,  as  recorder  of  the  county  of  Ashta- 
bula, seeking  to  enjoin  said  official  or  his  successors  in  office  from 
making  a  record  of  certain  proceedings  for  the  annexation  of 
territory  to  the  city  of  Ashtabula. 

It  is  alleged  that  two  of  the  plaintiffs  are  residents  and  free- 
holders of  lands  within  the  territory  sought  to  be  annexed,  and 
that  the  plaintiff,  Salisbury,  is  a  resident  of  the  sewer  district  in 
the  city  of  Ashtabula  lying  contiguous  to  said  territory. 

The  plaintiffs  claim  the  right  to  maintain  this  proceeding  by 
virtue  of  certain  sections  of  the  Ohio  statutes  relating  to  th.> 
incorporation  of  municipalities,  and  to  the  annexation  of  ad- 
ditional territory  to  such  municipalities. 

Without  reading  the  petition  in  ftill  it  may  be  ohserved  that 
it  is  claimed  that  there  is  error  in  the  proceedings  for  the  annex- 
ation of  said  territory  in  various  respects,  including  the  pro- 
ceedings before  the  city  council  of  Ashtabula,  and  also  errors  in 
the  proceedings  of  the  commissioners  of  Ashtabula  county  in 
various  respects;  and  thp  further  claim  is  made  that  it  is  not 
right,  just  nor  equitable  that  said  annexation  he  made  for  many 
reasons,  among  others  that  the  limits  of  said  city  of  Ashtabula, are 
already  tin  reasonably  large,  and  contain  more  territory  than  it 


618  ASHTABULA  COUNTY  COMMON  PLEAS. 

Shipbaugh  v.  Kimball.  Recorder.  [Vol.  VII,  N.  S. 

can  now  keep  in  order,  and  has  many  miles  of  common  dirt 
highways  which  are  wholly  unimproved,  many  of  them  being 
wholly  impassable  for  teams  and  in  a  bad  and  unsafe  condition. 
The  claim  is  also  made  that  <he  population  of  said  city  is  rapid- 
ly diminishing  in  numbers,  and  that  for  this  reason  there  is  no 
demand  for  additional  property  or  buildings  in  said  city.  And 
it  is  further  claimed  that  the  annexation  of  said  territory  is  not 
desired  by  the  inhabitants  of  said  city  generally,  nor  by  the  resi- 
dent and  non-resident  freeholders  of  land  lying  within  the  terri- 
tory sought  to  be  annexed;  but  that  the  same  is  desired  and 
prosecuted  solely  as  a  real  estate  speculation  by  one  H.  D.  Cook, 
who  is  now  mayor  of  Ashtabula,  and  one  C.  E.  Zeile.  That  said 
Cook  and  Zeile  in  the  years  1906  and  1907  purchased  a  large 
tract  of  land  in  said  territory,  and  have  since  been  trying  to  get 
the  same  annexed  to  the  city  in  furtherance  of  their  speculative 
projects,  and  against  the  wishes  of  almost  all  the  inhabitants  and 
owners  of  property  in  said  territory. 

The  petition  then  gives  the  history  of  former  attempts  which 
are  alleged  to  have  been  made  by  the  said  Cook  to  procure  the 
annexation  of  said  territory  on  petition  by  resident  landowners, 
and  the  failure  of  said  proceedings.  It  is  further  alleged  that  the 
said  Cook  then  presented  to  the  city  council  of  Ashtabula  a 
petition  purporting  to  be  signed  by  resident  freeholders  of  said 
territory  sought  to  be  annexed,  and  that  the  said  council  acting 
solely  by  their  request  and  influence  of  said  H.  D.  Cook,  imme- 
diately suspended  the  rules  and  passed  said  ordinance  without 
argument,  and  without  any  consideration  of  its  merits ;  without 
giving  other  persons  any  opportunity  to  be  heard,  and  the  peti- 
tioners attach  a  copy  of  said  petition  and  ordinance  to  the  peti- 
tion in  this  case. 

It  is  further  claimed  that  when  the  petition  prepared  by  the 
solicitor  in  accordance  with  such  ordinance  was  presented  to  the 
county  commissioners,  that  the  said  commissioners  did  not  give 
said  matter  any  consideration;  but  said  commissioners  had 
promised  and  agreed  with  said  Cook  that  if  he  could  and  would 
get  an  ordinance  passed  by  the  city  council  of  Ashtabula,  to 
annex  said  territory,  they,  the  said  board  of  county  commis- 
sioners, would  ratify  the  same,  and  authorize  said  annexation 
without  delay,  and  that  said  commissioners  committed  error 


NISI  PRIUS  REPORTS— NEW  SERIES.  617 

1908.]  Shipbaugh  v.  Kimball.  Recorder. 

therein,  because  they  assumed  that  said  city  council  was  of  equal 
or  superior  authority  with  themselves,  and  by  reason  thereof 
and  of  said  agreement  with  said  Cook  they  refused  to  reverse  or 
review  said  action  of  said  city  council. 

The  city  of  Ashtabula,  on  its  own  motion,  has  been  made  a 
party  defendant,  and  though  no  answer  has  been  filed,  it  has  ap- 
peared by  counsel,  and  has  been  permitted  to  offer  evidence  as 
though  a  general  denial  had  been  filed  to  the  petition. 

This  proceeding  is  a  statutory  one.  There  seems  to  be  a  little 
uncertainty  as  to  the  law  governing  this  case,  for  the  reason  that 
there  axe  cross-references  from  one  statute  to  another,  requir- 
ing that  proceedings  shall  be  had  in  all  respects,  "so  far  as  ap- 
plicable." 

Section  1599  (1536-41),  Revised  Statutes,  provides— 

"When  the  inhabitants  generally  of  any  municipal  corpora- 
tion desire  to  enlarge  its  corporate  limits  by  the  annexation  of 
contiguous  territory,  it  shall  be  done  in  the  manner  hereinafter 
specified." 

Section  1600  (1536-42),  Revised  Statutes,  provides  that— 

"The  council  #  "  •  by  a  vol*  of  not  less  than  a  majority 
of  the  members  elected,  shall  pass  an  ordinance  authorizing  such 
annexation  to  be  made,  and  directing  the  solicitor  of  the  corpo- 
ration, or  some  one  else  to  be  named  in  the  ordinance,  to  prose- 
cute the  proceedings  necessary  to  effect  such  annexation." 

Section  1601  (1536-43).  Revised  Statutes,  provides  for  the 
filing  of  a  petition  by  the  corporation,  with  the  county  commis- 
sioners, to  be  accompanied  by  an  accurate  description  of  the 
territory  and  an  accurate  map  thereof. 

Seetion   1602    (1536-44),   Revised   Statutes,   provides: 

"When  such  petition  is  presented  to  the  commissioners,  like 
proceedings  shall  be  had,  in  all  respects,  so  far  as  applicable,  as 
are  required  under  the  provisions  of  subdivision   one  of  this 
■  chapter." 

Subdivision  one  contains  the  sections  providing  for  annex- 
ation of  territory  on  application  of  its  citizens,  and  by  Seetion 
1590  (1536-32),  Revised  Statutes,  it  is  provided  that— 


"Such  petition  shall  be  presented  to  the  board  of  ( 
aioners,  and  when  so  presented  the  same  proceedings  shall  be 


518  ASHTABULA  COUNTY  COMMON  PLEAS. 

Shlpbaugh  t.  Kimball,  Recorder.  [Vol.  VII,  N.  S 

had,  in  all  respects,  as  far  as  applicable,  and  the  same  duties 
in  respect  thereto  shall  be  performed  by  the  commissioners  and 
other  officers,  as  are  required  in  .the  ease  of  an  application  to  be 
organized  into  a  village  under  the  provisions  of  this  division; 
and  the  final  transcript  of  the  commissioners,  and  the  accom- 
panying map  or  plat  and  petition,  shall  be  deposited  with  the 
clerk  of  the  city  or  village  to  which  such  annexation  is  proposed 
to  be  made,  who  shall  file  the  same  in  his  office." 

Section  1591    (1536-33),  Revised  Statutes,  provides: 

"At  the  next  regular  session  of  the  council  of  such  city  or 
village,  after  the  expiration  of  sixty  days  from  the  date  of  such 
filing,  the  clerk  shall  lay  the  transcript  and  the  accompanying 
map  or  plat  and  petition  before  the  council;  and  thereupon  the 
council  shall,  by  resolution  or  ordinance,  accept  or  reject  the 
application  for  annexation." 

Section  1594   (1536-36),  Revised  Statutes,  provides: 

"If  the  clerk,  within  sixty  days  from  the  filing  of  such  tran- 
script •  •  *  receive  notice  from  any  person  interested  that 
he  has  presented  to  the  court  of  common  pleas,  or  a  judge  there- 
of, a  petition  to  enjoin  further  proceedings,  the  clerk  shall  not 
report  to  the  council  such  transcript,  map  or  plat  and  petition 
filed  with  him,  until  after  the  final  hearing  and  disposition  nf 
the  petition  so  presented  to  such  court  or  judge." 

From  these  provisions  of  the  statute,  it  would  appear  that 
the  transcript  of  the  commissioners  should  be  deposited  with 
tlie  clerk  of  the  city,  rather  than  the  recorder  of  the  county,  as 
was  done  in  the  proceedings  under  consideration  in  this  case. 

The  claim  is  made  that  the  provision  regarding  the  filing  of 
papers  with  the  clerk  of  the  city  is  not  applicable  in  a  case  where 
the  corporation  itself  files  a  petition,  and  it  is  claimed  that  the 
cross-reference  from  Section  1590  (1536-32),  Revised  Statutes, 
to  the  other  provisions  providing  for  the  application  to  be  organ- 
ized into  a  village  should  be  applied  to  an  application  of  this 
kind. 

Section  1557  (1536-10).  Revised  Statutes,  of  the  chapter  pro- 
viding for  incorporation  of  villages  and  hamlets,  provides: 

"The  hearing  shall  be  public,  and  may  be  adjourned  from 
time  to  time,  and  from  place  to  place,  according  to  the  discretion 
of  the  commissioners,  and  any  person  interested  may  appear,  in 


NISI  PRIUS  REPORTS— NEW  SERIES.  51S) 

1908.]  Shlpbaugh  v.  Kimball,  Recorder. 

person  or  by  attorney,  and  contest  the  granting  of  the  prayer 
of  -the  petition,  and  any  affidavits  presented  in  support  of  or 
against  the  prayer  of  the  petition  shall  be  considered  by  the 
commissioners,  and  the  petition  may  be  amended  by  their  leave." 

Section  1558  (1536-11),  Revised  Statutes,  provides; 

"If  the  commissioners,  upon  such  hearing,  find  that  the  peti- 
tion contains  all  the  matters  required,  that  its  statements  are 
true,  that  the  name  proposed  is  appropriate,  that  the  limits  of 
the  proposed  corporation  are  accurately  described,  and  are  not 
unreasonably  large  or  small,  that  the  map  or  plat  is  accurate, 
that  the  persons  whose  names  are  subscribed  to  the  petition  are 
electors  residing  on  the  territory,  that  notice  has  been  given  as 
required,  that  there  is  the  requisite  population  for  the  proposed 
corporation,  and  if,  moreover,  it  seems  to  the  commissioners 
right  that  the  prayer  of  the  petition  be  granted,  they  shall  cause 
an  order  to  be  entered  on  their  journal  to  the  effect  that  the 
corporation  may  be  organized," 

Section  1559   (1536-12),  Revised  Statutes,  provides: 

"The  commissioners  shall  cause  to  be  entered  on  their  journal 
all  their  orders  and  proceedings  in  relation  to  such  incorporation, 
and  they  shall  cause  a  certified  transcript  thereof,  signed  by  a 
majority  of  them,  to  be  delivered,  together  with  the  petition, 
map,  and  all  other  papers  on  file,  relating  to  the  matter,  to  the 
recorder  of  the  county,  at  the  earliest  time  practicable." 

Section  1560  (1536-13),  Revised  Statutes,  provides: 

"The  recorder  shall  file  the  transcript  and  other  papers  in  his 
office,  and  at  the  expiration  of  sixty  days  thereafter,  unless  en- 
joined as  hereinafter  provided,  he  shall  make  a  record  of  the 
petition,  transeript,  and  map  in  the  proper  book  of  records,  and 
preserve  in  his  office  the  original  papers  delivered  to  him  by 
the^commissioners.  certifying  thereon  that  the  transcript,  peti- 
tion, and  map  are  properly  recorded." 

Section  1562   (1536-18),  Revised  Statutes,  provides: 

"Any  person  interested  may.  within  sixty  days  from  the  filing 
of  the  papers  with  the  recorder,  as  above  provided,  make  appli- 
cation by  petition  to  the  court  of  common  picas,  or,  if  during 
vacation,  to  a  judge  thereof,  setting  forth  the  errors  complained 
of,  or  the  inaecuracy  of  the  boundaries,  or  that  the  limits  of  the 
proposed  corporation  are  unreasonably  large  or  small,  or  that 
it  is  not  right,  just,  or  equitable  that  the  prayer  of  the  petition 


520  ASHTABULA  COUNTY  COMMON  PLEAS. 

Shtpbaugh  v.  Kimball,  Recorder.  [Vol.  VII.  N.  & 

presented  to  the  board  of  commissioners  be  granted,  or  containing 
any  or  all  of  such  averments,  and  praying  an  injunction  re- 
straining the  recorder  from  making  the  record  and  certifying 
the  transcript,  as  above  required." 

Section  1564  (1536-20),  Revised  Statutes,  provides,  among 
other  things,  that  upon  the  hearing  of  said  petition — " 

"The  court  or  judge  may  hear  evidence  upon  the  matters  and 
things  averred  in  the  petition ;  and  if,  upon  such  hearing,  no 
error  is  found  in  the  proceedings  before  the  commissioners,  and 
no  inaccuracy  in  the  boundaries,  and  if  the  court  shall  further 
find  that  the  limits  of  the  proposed  corporation  are  not  un- 
reasonably large  or  small,  and  that  it  is  right,  just  and  equi- 
table that  the  prayer  of  the  petition  presented  to  the  commis- 
sioners be  granted,  the  petition  for  such  injunction  shall  be 
dismissed ;  # ,  *  *  but  if  error  is  found  in  the  proceedings, 
or  if  the  boundaries  are  found  to  be  so  inaccurately  described  as 
to  render  indefinite  or  uncertain  limits  or  extent  of  the  proposed 
corporation,  or  if  the  court  shall  find  that  the  limits  of  the  pro- 
posed corporation  are  unreasonably  large  or  small,  or  that  it  is 
not  right,  just  or  equitable  that  the  prayer  of  the  petition  pre- 
sented to  the  commissioners  be  granted,  then  the  court  or  judge 
shall  make  an  order  enjoining  the  recorder  from  making  the 
record ;  provided  that  such  order  shall  not  be  a  bar  to  any  sub- 
sequent application  to  the  commissioners  for  the  purpose  of 
effecting  such  incorporation." 

Neither  the  plaintiffs  nor  the  city  of  Ashtabula,  which  was 
made  a  party  defendant  on  its  motion,  has  urged:  the  fact  that 
these  papers  were  filed  with  the  recorder  rather  than  with  the 
clerk  of  the  city  of  Ashtabula,  as  a  ground  to  be  considered  by 
this  court  in  determining  this  ease;  but  have  each  insisted  that 
the  matter  should  be  heard  fully  upon  its  merits. 

However,  it  seems  that  it  is  necessary  that  this  question  should 
be  determined,  and  a  careful  consideration  of  the  statutes  above 
referred  to  leads  to  the  conclusion  that  the  papers  should  have 
been  filed  with  the  clerk  of  the  city  and  not  with  the  county  re- 
corder. It  is  suggested  that  the  fact  that  the  corporation  filed 
the  petition,  after  the  city  council  had  by  ordinance  declared  in 
favor  of  the  annexation,  would  make  it  unnecessary  to  have  the 
papers  returned  to  the  elerk  of  the  corporation  to  be  laid  be- 
fore the  council.  It  is  clear,  however,  that  the  action  of  the 
council  in  passing  the  original  ordinance  only  started  the  ma- 


NISI  PBIUS  REPORTS— NEW  SERIES.  521 

1908.]  Sbipbaugh  v.  Kimball,  Recorder. 

chinery  in  motion,  and  it  is  certainly  right  and  proper  that  the 
final  result  of  the  application  should  be  certified  to  the  clerk  * 
of  the  city,  to  be  by  him  laid  before  the  council,  and  made  a 
part  of  the  records  of  the  city  that  all  concerned  might  be  ad- 
vised as  to  the  enlarged  limits  of  said  corporation.  Of  eourse 
there  would  be  nothing  illogical  in  filing  these  papers  with  the 
recorder  of  the  county,  and  yet  the  provisions  for  filing  with  the 
recorder  are  coupled  with  the  procedure  to  be  taken  when  a 
village  is  to  be  incorporated  and  named,  and  this  provision  for 
so  filing  with  the  recorder  is  not  necessarily  applicable  in  a 
ease  for  the  annexation  of  territory  merely,  and  inasmuch  as 
the  procedure  for  the  annexation  of  territory  on  the  petition  of 
inhabitants  of  such  territory  provides  for  the  filing  of  the  tran- 
script and  other  papers  with  the  clerk  of  the  eity,  and  this  sec- 
tion is  referred  to  as  governing,  "so-far  as  applicable,"  in  cases 
where  the  corporation  itself  files  the  petition,  the  court  has 
reached  the  conclusion,  as  above  suggested,'  that  these  papers 
should  have  been  filed  with  the  clerk  of  the  city  rather  than  with 
the  county  recorder.  Nor  is  the  court  without  precedent  for  so 
finding,  for  in  the  case  of  Pollock  v.  Toland,  1  C.  C— N.  S..  315. 
the  circuit  court  of  the  eighth  circuit.  Judge  Laubie  of  this 
circuit  sitting  as  one  of  the  trial  justices,  approved  and  eon- 
firmed  proceedings  in  which  the  city  of  Cleveland  had  filed  a 
■  petition  for  annexation  of  territory,  in  which  proceedings  the 
transcript  and  other  papers  from  the  commissioners  were  filed 
with  the  clerk  of  the  eity  of  Cleveland.  So  far  as  appears,  from 
the  report  of  that  case,  no  question  was  raised  as  to  the  pro- 
priety of  that  procedure,  but  it  seems  to  have  been  taken  for 
granted  by  both  court  and  council. 

In  view  of  the  conclusion  which  the  court  has  reached  upon 
this  proposition,  it  would  seem  that  the  plaintiff  is  entitled  to 
an  injunction  restraining  the  recorder  from  taking  further  pro- 
ceedings which  would  tend  to  confuse  and  mislead  the  board  of 
county  commissioners,  as  well  as  the  general  public;  and  for 
this  reason  the  consideration  of  the  further  questions  raised  by 
the  petition  in  this  case  would  scarcely  seem  necessary. 

In  view  of  the  manner  in  which  this  case  has  been  tried, 
however,  and  because  the  court  may  be  in  error  as  to  this  ques- 


522  ASHTABULA  COUNTY  COMMON  PLEAS. 

Shipbaugh  v.  Kimball,  Recorder.  [Vol.  VII,  N.  S. 

tion  of  the  proper  depositary  for  said  papers,  it  may  be  well 
to  consider  the  other  questions  which  have  been  presented  by 
counsel. 

It  is  claimed  that  the  injunction  should  be  allowed  for  many 
reasons,  the  chief  ones  which  have  been  discussed  being — 

First.  That  the  mayor  of  the  city  of  Ashtabula  has  a  large 
financial  and  property  interest  in  having  the  proposed  annex- 
ation made,  and  had  such  interest  at  the  time  that  he.  as  mayor, 
approved  the  ordinance  providing  for  such  annexation. 

Second.  That  the  commissioners  erred,  or  were  guilty  of  mis- 
conduct in  performing  the  duties  devolving  upon  them,  in  this, 
to-wit,  that  they  based  their  finding  almost  solely  upon  the 
finding  of  the  city  council  and  that  prior  to  the  hearing  they  had 
practically  assured  the  mayor  of  said  city  that  they  would  take 
favorable  aotion  if  the  city  council  should  pass  an  ordinance  in 
favor  of  annexation. 

Third.  That  it  is  not  just  or  equitable  that  the  proposed  an- 
nexation should  be  made,  for  many  reasons,  among  others  that 
the  proposed  territory  is  too  large,  much  of  it  being  simply  un- 
occupied farm  land,  that  the  city  of  Ashtabula  already  has  a 
large  amount  of  unimproved  territory,  that  it  has  many  miles  of 
unimproved  highways,  variously  estimated  from  seventy  to  one 
hundred  and  twenty-five  miles  of  which  only  about  seven  miles 
have  been  improved  by  paving  and  only  about  twenty-two  miles 
improved  by  sewers,  and  that  the  burden  of  maintaining  addi- 
tional streets  with  the  duty  of  lighting  and  caring  for  the  same, 
as  required  by  law,  would  be  placing  an  unreasonable  burden 
upon  the  tax-payers  of  said  city  in  view  of  the  present  high  rate 
of  taxes. 

As  to  the  first  question  suggested,  that  of  the  financial  inter- 
ests of  the  mayor,  in  the  proposed  annexation,  it  may  be  ob- 
served that  the  issue  raised  is  very  similar,  though  not  identical, 
to  the  question  passed  upon  by  the  court  of  common  pleas  and 
the  circuit  court  of  Cuyahoga  county,  in  cases  involving  the 
validity  of  ordinances  granting  certain  franchises  for  the  con- 
struction of  street  railways  in  the  city  of  Cleveland. 

The  legal  questions  raised  in  those  cases  were  passed  upon  by 
Judge  Phillips  in  a  very  exhaustive  opinion  in  Cleveland  Elec. 


NISI  PBIUS  REPORTS— NEW  SERIES.  628 

1908.]  Shlpbaugh  v.  Kimball.  Recorder. 

Ry.  v.  Cleveland,  unreported,  and  the  doctrine  which  he  enunci- 
ated was  affirmed  by  the  circuit  court.  In  that  opinion  Judge 
Phillips  says: 

"In  the  whole  realm  of  jurisprudence  no  principle  is  better 
established  or  rests  on  firmer  foundation,  than  the  oue  which 
forbids  one  occupying  a  fiduciary  relation  from  placing  himself 
in  any  degree  in  antagonism  to  his  trust.  Agents,  guardians, 
executors,  directors  of  corporations,  officers  of  municipalities, 
and  all  other  persons  clothed  with  fiduciary  character  are  sub- 
ject to  this  rule.  And  this  rule  is  accentuated  in  its  application 
to  the  officers  and  agents  of  municipal  corporations.  The  reason 
and  propriety  for  accentuating  this  rule  in  its  application  to 
public  officers  are  at  once  plain  and  strong.  A  public  officer  is 
one  to  whom  is  delegated  some  of  the  sovereign  functions  of 
government,  to  be  exercised  by  him  for  the  public  benefit.  He 
acts  only  for  the  public;  and 'the  public  are  represented  in  the 
instance  only  by  him ;  and  the  theory  upon  which  his  acts  bind 
the  public  is  that  his  acts  have  the  public  sanction,  because  they 
are  exclusively  in  the  interest  of  the  public." 

In  support  of  his  conclusion  Judge  Phillips  cites  many  author- 
ities, among  others  Dillon,  Miin.  Corp.,  Section  444,  as  follows : 

"It  is  a  well  established  and  salutary  rule  in  equity  that  he 
who  is  entrusted  with  the  business  of  others  can  not  be  allowed 
to  make  such  business  an  object  of  pecuniary  profit  to  himself. 
This  rule  does  not  depend  on  reasoning  technical  in  its  character, 
and  is  not  local  in  its  application.  It  is  based  upon  principles 
of  reason,  of  morality  and  of  public  policy;  it  has  its  foundation 
in  the  very  constitution  of  our  nature,  for  it  has  authoritatively 
been  declared  that  a  man  can  not  serve  two  masters,  and  is 
recogni2ed  and  enforced  wherever  a  well  regulated  system  of 
jurisprudence  prevails.     •     •     * 

"The  law  will  in  no  ease  permit  persons  who  have  undertaken 
a  character  or  a  charge  to  change  or  invert  that  character,  by 
leaving  it  and  acting  for  themselves  in  a  business  to  which  their 
character  binds  them  to  act  for  others.  The  application  of  the 
rule  may,  in  some  instances,  appear  to  bear  hard  upon  indi- 
viduals who  had  committed  no  moral  wrong;  but  it  is  essential 
to  the  keeping  of  all  parties  filling  a  fiduciary  character  to  their 
duty,  to  preserve  the  rule  in  its  integrity  and  to  apply  it  to  every 
case  which  justly  falls  within  its  principle.  The  principle  gener- 
ally applicable  to  all  officers  and  directors  of  a  corporation  is 
that  they  can  not  enter  into  contracts  with  such  corporation  to 
do  any  work  for  it,  nor  can  they  subsequently  derive  any  bene- 


624         ASHTABULA  COUNTY  COMMON  PLEAS. 

Shipbaugh  v.  Kimball,  Recorder.  [Vol.  VII,  N.  S. 

fit  from  auch  contracts.  To  deny  the  application  of  the  rule 
to  municipal  bodies  would,  in  the  opinion  of  the  Canadian  Chan- 
eery  Court,  be  to  deprive  it  of  much  of  its  value,  for  the  well 
working  of  the  municipal  system,  through  which  a  large  portion 
of  the  affairs  of  the  country  are  administered,  must  depend  very 
much  upon  the  freedom  from  abuse  with  which  they  are  con- 
ducted. ' ' 

Numerous  eases  might  be  cited  to  sustain  this  doctrine,  which 
so  far  as  this  court  has  been  advised,  has  never  been  questioned 
by  any  high  authority.  Without  citing  in  detail  I  will  simply 
refer  to  the  following:  People  v.  Overyssel  Tp.,  11  Mich.,  222, 
226 ;  Grand  Island  Gas  Co.  v.  West,  28  Neb.,  852,  855 ;  Smith  v. 
Albany,  61  N.  Y.,  444,  447. 

In  the  case  at  bar  the  plaintiffs  offered  evidence,  which  they 
claim  would  have  shown  more  fully  the  connection  of  the 
mayor  with  the  action  taken  by  the  city  council,  and  the  arbi- 
trary manner  in  which  the  council  so  acted.  "This  offer  was  ob- 
jected to  by  defendants  and  the  court  at  that  time  sustained 
the  objection,  and  was  possibly  not  warranted  in  so  holding. 
During  the  progress  of  the  trial,  however,  by  examination  of  the 
mayor  himself,  as  well  as  from  the  examination  of  other  wit- 
nesses offered  by  the  defendant,  it  appears,  without  contradic- 
tion, that  the  mayor  is  the  owner  of  considerable  land  in  said 
territory,  for  which  he  has  paid  many  thousands  of  dollars,  that 
he  assumed  to  act  as  agent  for  the  owners  of  real  estate  in  the 
territory  sought  to  be  annexed,  his  own  statement  being  that 
he  supposed  he  appointed  himself  as  agent,  that  after  the  two 
successive  petitions  of  property  owners  had  been  dismissed  by 
the  commissioners,  he  appeared  quite  incensed  and  to  use  his 
own  language  "he  declared  to  members  of  the  board  that  he 
had  been  skinned  and  robbed"  and  had  expended  the  sum  of 
$60,  by  reason  of  the  said  commissioners  having  assumed  juris- 
diction by  reason  of  which  considerable  sums  had  been  spent  for 
giving,  notice  of  said  application.  That  thereupon  one  or  more 
of  the  commissioners  assured  him  that  if  he  would  have  the 
city  council  of  Ashtabula  pass  an  ordinance  for  the  annexation, 
the  board  of  commissioners  would  not  oppose  it.  and  would  act 
promptly  in  the  matter,  or  words  to  that  effect.  That  thereupon 
the  mayor  employed  a  man  to  circulate  a  petition  among  the 


NISI  PRIUS  REPORTS— NEW  SERIES.  525 

1908.)  Shlpbaugh  v.  Kimball,  Recorder. 

owners  of  land  in  that  territory,  and  that  he  showed  his  interest 
in  the  matter  to  the  extent  that  he  deeded  some  land  to  an  em- 
ploye or  care-taker,  without  any  consideration  paid  except  the 
sum  of  one  dollar,  and  upon  the  day  that  the  deed  was  executed. 
procured  the  said  employe  to  sign  the  petition  as  an  owner  of 
land  in  said  territory.  As  to  whether  or  not  the  mayor  took 
any  definite  steps  to  influence  the  action  of  the  council,  was  not 
shown  by  plaintiffs  in  view  of  the  holding  of  the  court  against 
their  offer,  and  the  mayor  himself  declared  that  he  had  taken 
no  action  whatever  to  influence  their  conduct. 

Under  the  statute  (Section  125,  Mun.  Code  of  1902).  how- 
ever, the  mayor  must  approve  the  ordinance  in  order  to  make 
it  effective.  He  has  a  right  to  veto  any  ordinance,  in  which 
case  it  would  require  two-thirds  of  the  council  to  pass  it  over 
his  veto.  As  a  public  officer  his  duty  was  to  act  in  the  prem- 
ises with  entire  impartiality  and  with  an  eye  single  to  the  in- 
terests of  the  municipality  which  he  represented.  After  a 
careful  consideration  of  this  question  the  court  has  arrived  at 
the  conclusion  that  the  ordinance,  passed  as  it  was  and  approved 
by  the  mayor  in  the  light  of  his  strong  financial  interest,  was 
invalid  for  the  purpose  of  authorizing  the  solicitor  to  take 
further  proceedings,  and  therefore  there  was  no  proper  peti- 
tion to  be  considered  by  the  county  commissioners. 

It  is  claimed  by  counsel  for  defendants  that  this  view  of  the 
ease  would  prevent  the  improvement  of  any  street  on  which  the 
mayor  might  own  any  piece  of  property.  Without  assuming 
to  pass  upon  any  hypothetical  case,  it  may  simply  be  observed 
that  a  court  of  equity  might  disregard  some  unimportant  inter- 
est which  a  mayor  might  own  in  real  estate  to  be  effected  by 
an  ordinary  street  improvement  where  the  scheme  of  the  improve- 
ment provides  that  almost  all  the  costs  shall  be  assessed  upon 
the  abutting  property,  but  be  that  as  it  may,  it  is  apparent. 
even  from  the  evidence  adduced  by  the  defendant  itself,  that 
this  entire  plan  for  annexation  was  largely  devised  by  the 
mayor,  and  would  not  have  been  urged  upon  the  commissioners 
or  the  council  had  it  not  been  for  his  active  interest  in  the  mat- 
ter, and  an  ordinance  so  passed  is  clearly  invalid  as  against 
public  policy. 


626         ASHTABULA  COUNTY  COMMON  PLEAS. 

Shlpbaugh  v.  Kimball,  Recorder.  |  Vol.  VII,  N.  S. 

In  speaking  of  the  ordinance  passed  by  the  city  of  Cleveland 
Judge  Phillips  makes  this  statement  which  it  seems  to  me  is  en- 
tirely applicable,  in  principle,  to  the  case  at  bar. 

"I  suppose  that  strictly  speaking  such  grant  by  the  city 
officials  would  be  intra  vires.  Its  invalidity  would  not  come 
from  want  of  corporate  capacity;  it  would  come  from  the  vires 
of  corruption  and  fraud  from  dereliction  of  official  duty,  from 
bad  faith  in  a  trust  relation,  from  antagonism  of  personal  in- 
terest and  fidelity  to  the  public  interest.  Such  transaction 
would  contravene  public  policy,  which  Mr.  Greenleaf  says  is  a 
principle  of  the  law  which  "secures  the  people  against  the  cor- 
ruption of  justice  or  the  public  service,  and  places  itself  as  a  bar- 
rier before  all  devices  to  disregard  public  convenience." 

Concerning  the  second  question  suggested,  as  to  the  misconduct 
or  misinterpretation  of  their  duty  by  the  board  of  county  com- 
missioners, it  may  be  said  that  while  the  board  undoubtedly 
acted  in  good  faith,  and  although  the  court  finds  that  there  was 
no  intention  to  do  anything  'that  was  wrong  or  dishonest,  it  is 
clear  that  they  misapprehended  the  judicial  character  of  the 
duty  which  they  had  to  perform.  While  the  evidence  will 
scarcely  warrant  the  conclusion  that  there  was  any  definite  prom- 
ise or  agreement  between  them  and  Mayor  Cook,  as  eharged  in 
the  petition,  the  fair  import  of  the  testimony  of  these  commis- 
sioners themselves,  together  with  the  testimony  of  the  witnesses, 
adduced  by  the  plaintiff  upon  this  issue,  is  that  they  suggested 
to  the  mayor,  that  if  the  city  council  would  first  act,  they  would 
not  further  oppose  the  project  of  annexation.  And  the  fair  im- 
port of  the  testimony  *f  the  commissioners  is,  that  when  the  pe- 
tition of  .the  city  of  Ashtabula  came  before  them,  they  felt  there 
was  nothing  else  they  could  do  but  to  grant  it.  and  that  :it 
least  one  or  more  of  the  commissioners  sets  aside  his  own  indi- 
vidual judgment  in  the  premises  in  favor  of  the  action  taken  by 
the  city  council. 

But  is  this  such  error  as  may  be  taken  advantage  of  in  the 
manner  attempted  to  be  done  by  the  petition  in  ttiis  case?  This 
error,  if  it  may  be  called  an  error,  is  not  shown  by  the  record 
of  any  proceedings  which  were  had  before  the  county  commis- 
,  but  has  been  disclosed  by  extrinsic  evidence  admitted 


NISI  PRIUS  REPORTS— NEW  SERIES.  627 

1908.1  Shipbaugh  v.  Kimball.  Recorder. 

by  the  court,  over  the  objection  of  the  defendant  city,  to  sustain 
the  allegations  of  the  petition. 

The  statutes  make  no  definite  provision  by  which  a  bill  of  ex- 
ceptions may  be  taken  in  proceedings  before  the  board  of  county 
commissioners,  and  so  far  as  the  statutory  provisions  are  con- 
cerned, it  seems  that  the  court  is  left  only  to  examine  the  tran- 
script of  journal  entries,  etc.,  as  certified  by  the  board  of  com- 
missioners. 

If  we  are  to  consider,  however,  that  the  court  of  common 
pleas  upon  this  petition  is  to  consider  the  justice  and  equity  of 
this  annexation,  can  the  court  consider  the  issue  made  as  to  the 
conduct  of  the  commissioners  as  bearing  upon  this  question  of 
justice  and  equity  ?  It  must  be  noted  that  this  court  is  not  the 
original  tribunal  to  pass  upon  the  question  of  annexation.  The 
board  of  county  commissioners  must  pass  upon  the  issues  of  fact 
raised  as  to  whether  or  not  such  annexation  should  be  allowed, 
and  they  are  bound  to  consider,  not  only  the  needs  of  the  city 
but  also  the  rights  of  the  owners  of  property  in  the  territory 
sought  to  be  annexed.  Their  duty  is  of  a  judicial  character 
and  requires  that  they  should  consider  it  from  the  view  point 
of  all  the  parties  interested,  and  all  these  parties  have  an  abso- 
lute right  under  the  statute  to  have  the  deliberate  judgment  of 
this  tribunal  before  it  is  taken  <to  any  other  tribunal.  If  this 
tribunal,  the  Voard  of  county  commissioners,  refuse  to  grant 
such  annexation,  this  court  has  no  power  to  review  their  holding 
and  to  grant  an  annexation.  It  is  only  when  they  have  acted 
favorably  that  any  person  interested  has  a  right  to  appeal  to  the 
court  of  common  pleas.  And  while  this  court  may  set  aside  their 
affirmative  action,  or  may  approve  what  they  have  done,  it  has 
no  original  power  to  pass  upon  the  question  on  its  merits. 

Therefore  it  is  clear  that  all  parties  interested  have  a  right  to 
the  proper  consideration  of  the  question  on  its  merits,  by  this 
first  tribunal,  and  while  it  is  doubtful  whether  -the  question  as 
to  the  misapprehension  of  their  duty  by  the  board  of  commis- 
sioners can  be  considered  technically  as  an  error  in  the  pro- 
ceedings, this  court  has  reached  the  conclusion  .that  justice  and 
equity  require  that  the  question  should  be  first  fully  and  fairly 
considered  by  that  tribunal,  and  because  the  testimony  shows 


628  ASHTABULA  COUNTY  COMMON  PLEAS. 

Snipbaugh  v.  Kimball.  Recorder.  (Vol.  VII,  N.  S. 

■  that  they  failed  to  give  it  such  fair  consideration,  the  prayer 
of  the  petition  ought  to  be  granted. 

Holding  the  views  thus  expressed  as  to  the  duty  of  the  court 
to  grant  the  prayer  of  the  petition,  it  would  seem  unnecessary 
for  the  court  to  determine  in  detail  on  the. merits,  whether  or 
not  the  annexation  of  tie  proposed  territory  ought  to  be  made, 
considering  the  interests  both  of  the  city  and  of  the  owners  of 
land  in  such  territory. 

Under  the  statutes,  the  determination  of  this  ease  is  no  bar 
to  new  proceedings  to  be  taken.  And  as  this  matter  may  later 
come  up  for  consideration,  on  other  proceedings,  it  scarcely 
seems  necessary  or  advisable  for  this  court  to  make  a  finding 
which  might  be  insisted  on  as  a  precedent  hereafter. 

The  -trial  judge,  upon  the  evidence  presented,  has  formed  an 
opinion  upon  the  merits  of  the  case,  but  such  an  opinion  would 
seem  to  be  immaterial,  unless  the  counsel  for  defendant  insist 
upon  their  request  for  a  separate  finding  of  fact  and  of  law,  in 
which  event  this  court  is  of  the  opinion  that  .they  would  be  en- 
titled to  such  finding. 

The  question  as  to  whether  this  separate  finding  shall  be  insisted 
upon  is  therefore  left  to  counsel  for  defendant,  and  if  insisted 
upon,  the  trial  judge  will  prepare  and  file  a  separate  finding  of 
law  and  of  fact. 

The  entry  in  the  case  will  be,  "Trial  to  court,  perpetual  in- 
junction allowed  as  prayed  for,  and  costs  assessed  against  th:; 
defendant,  the  city  of  Ashtabula,"  inasmuch  as  the  recorder 
has  no  more  than  a  nominal  interest  in  the  issues  involved. 


NISI  PKIUS  REPORTS— NEW  SERIES. 
Brown  et  al  v.  Railway. 


DIVERSION  OF  A  HIGHWAY  IN  LOCATING  A  RAILWAY. 
Common  Pleas  Court  of  Medina  County. 

L.  0.  Brown  and  others,  Commissioners  op  Medina  County, 
v.  Akron  &  Chicago  Junction  Railroad  Company.  • 

Decided,  December  IT,  1906. 

Roads — Diversion  of  Highway  for  the  Purpose  of  Securing  a  Better 
Crossing  of  Railway — Right  to  Re-locate  Highway  Governed  by 
Public  Convenience — Necessity  for  Diversion  of  Road  is  for  the 
Court — Diversion  may  be  Made  Permanent — Section  .{„'&(. 

1.  Authority  1b  conferred  by  Section  3284  upon  a  railroad  company  to 

divert  the  course  of  a  highway  for  the  purpose  of  making  practical 
the  crossing  of  the  highway  by  an  overhead  bridge,  where  the 
change  in  the  course  of  the  highway  does  not  Impair  Its  usefulness. 

2.  The  question  of  the  necessity  of  such  a  diversion  of  a  highway  Is  for 

the  court  to  decide,  and  in  determining  It  the  convenience  of  the 
whole  public.  Including  those  using  the  railway  as  well  as  the 
highway,  must  be  considered. 

I.  T.  Siddall,  N.  H.  McClure  and  F.  W.  Wood,  for  plaintiff. 
J,  M.  Lessick,  Lee  Elliott  and  Frank  Heath,  contra. 

Washburn,  J. 

The  defendant  is  engaged  in  the  reams  trillion  of  its  road  in 
Medina  county,  for  the  purpose  of  avoiding  dangerous  grades  and 
curves,  and  in  Harrisville  township  it  is  practically  building 
a  new  road;  the  location  of  the  present  road  being  a  long  dis- 
tance from  the  old  road  and  the  difference  in  the  grade  being 
more  than  twenty-five  feet. 

In  constructing  its  road  upon  the  new  line,  it  crosses  a  high- 
way known  as  the  Lodi  and  West  Salem  road,  which  is  a  diagonal 
road  extending  from  Lodi  southwest  to  West  Salem  and  beyond. 
This  highway  is  a  main  highway,  much  traveled.  The  railroad 
crosses  it  a  little  over  a  mile  southwest  of  Lodi.  at  an  angle  of 
about  twenty-one  degrees,  and  the  grade  of  the  railroad  is  at 

•  Affirmed  by  the  Supreme  Court  without  report,  with  the  exception 
that  the  judgment  as  to  Ave  thousand  dollars  was  reversed,  Brown 
et  at.  Commissioners,  v.  Raihcay,  79  O.  S.,  . 


680  MEDINA  COUNTY  COMMON  PLEAS. 

Brown  et   al  v.   Railway.  [Vol.  Til,  N.  S. 

least  twenty-seven  feet  above  the' grade  of  the  highway  at  the 
point  of  crossing.  West  of  the  point  of  crossing  this  highway 
a  distance  of  about  1500  feet  the  railroad  crosses  at  right  angles 
a  north  and  south  highway,  known  as  the  Chatham  road,  which 
road  intersects  the  Homorville  road  just  south  of  the  railroad, 
and  ends  in  the  beforenientioned  diagonal  road  about  a  thousand 
feet  south  of  the  railroad.  The  Chatham  road  is  a  very  little 
used  highway,  especially  for  travel  south  from  the  point  where 
the  railroad  crosses  it.  About  2000  feet  west  of  where  the  rail- 
road crosses  the  Chatham  road  the  railroad  company  is  building 
a  stone  arch  bridge,  and  is  proposing  to  connect  the  east  and  west 
Homerville  road  through  under  this  bridge  to  a  new  east  and 
west  road  just  north  of  the  railroad,  and  parallel  thereto,  which 
it  proposes  to  lay  out  and  construct  eastward  across  said  Chat- 
ham road  and  to  said  diagonal  road. 

Then  the  railroad  company  is  proposing  to  divert  said  diagonal 
road  at  the  point  of  the  crossing  of  the  railroad  to  the  westward 
about  500  feet  and  thenee  south,  crossing  the  railroad  at  right 
angles  under  a  stone  arch  bridge  and  connecting  again  with  the 
diagonal  road.  And  the  railroad  company  is  proposing  to  fill  up 
the  Chatham  road  where  it  crosses  the  same  with  an  embankment 
about  forty  feet  high. 

The  plaintiffs,  claiming  that  these  diversions  of  the  highways 
were  not  authori»ed  by  law,  brought  this  action  to  enjoin  the 
railroad  company  from  making  them  and  from  diverting  or  ob- 
structing said  diagonal  road  and  said  Chatham  road  at  the  points 
of  crossing.  A  temporary  injunction  was  granted,  and  the  case 
is  now  submitted  to  the  court  for  final  disposition. 

I  never  tried  a  case  in  which  the  law  which  the  plaintiff 
claims  should  govern  the  ease  differed  so  widely  from  the  law 
which  the  defendant  claims  should  govern  the  case. 

The  defendant  is  proceeding  to  divert  the  highways  in  ques- 
tion under  the  provisions  of  Section  3284,  which  reads: 

"A  company  may,  whenever  it  is  necessary  in  the  construction 
of  its  road  to  cross  a  road  or  stream  of  water,  divert  the  same 
from  its  location  or  bed;  but  the  company  shall,  without  unneces- 
sary delay,  place  such  road  or  stream  in  such  condition  as  not  to 
impair  its  former  usefulness." 


NISI  PRIUS  REPORTS— NEW  SERIES.  581 

1908.]  Brown  et  a]  v.   Railway. 

It  has  been  held  that  this  section  applies  only  to  country  roads 
and  not  to  the  crossing  of  streets  or  highways  in  municipal 
corporations.    3  C.  C  214;  8  Bull.,  334. 

The  plaintiff  claims  that  a  railroad  company  can  not  legally 
acquire  one  inch  of  a  pubjie  highway  so  as  to  occupy  it  to  the  ex- 
clusion of  the  public,  unless  the  same  is  acquired  by  proceedings 
for  the  vacation  of  highways  in  accordance  with  the  law  pro- 
viding for  the  vacation  of  highways.  And  it  is  not  claimed 
that  any  such  proceedings  were  had  in  this  case. 

On  the  other  hand,  the  defendant  claims  that  the  statute  above 
quoted  gives  it  the  right  to  divert  a  highway  in  the  country  with- 
out asking  permission  of  the  township  trustees,  county  commis- 
sioners or  any  one  else,  and  that  the  railroad  company  is  itself 
the  judge  of  whether  .or  not  it  is  necessary  to  divert  the  high- 
ways in  question.  In  other  words,  that  the  railroad  company 
has  the  absolute  right  under  that  statute  to  divert  the  highways 
in  question,  provided  it  restores  them  to  their  former  state  of 
usefulness,  and  that  in  a  proceeding  like  this  the  court  even  can 
not  determine  that  there  is  no  necessity  for  the  diversion,  and  en- 
join the  same. 

The  court  can  not  agree  with  the  law  as  above  claimed  by 
either  party  to  this  action. 

If  the  plaintiff's  claim  is  correct,  that  is,  that  the  location  of 
a  highway  can  not  be  changed,  except  by  vacating  the  part 
changed,  then  Section  3284  as  above  quoted  is  entirely  super- 
fluous; because  if  the  railroad  company  proceed  as  the  plaintiff 
claims  it  must  proceed,  under  the  vacation  statute,  it  could  ac- 
quire the  absolute  title  in  fee  simple  to  the  parts  of  the  high- 
way diverted,  without  the  aid  of  Section  3284. 

Megrue  v.  Putnam  County,  15  C.  C,  242,  is  a  ease  in  which 
Judge  Price,  then  a  circuit  judge,  participated,  and  it  was  there 
held  that  Sections  3283  and  3284  gave  authority  to  the  county 
commissioners  to  contract  with  -a  railroad  company  for  a  sur- 
render to  the  railroad  company  for  its  exclusive  use  of  a  por- 
tion of  a  public  highway,  provided  the  railroad  company  di- 
verted the  highway  and  restored  the  same  to  its  former  state  of 
usefulness  by  substituting  another  way  for  the  part  taken  by 
the  railroad  company.     There  was  no  vacation"  of  the  highway 


682  MEDINA  COUNTY  COMMON  PLEAS. 

Brown  et   al  v.  Railway.  [Vol.  VII,  N.  S. 

under  the  statute  in  this  case  and  there  was  an  exclusive  use 
granted,  but  it  was  authorized  because  there  was  a  diversion  and 
the  substitution  of  another  way. 

In  other  words,  while  the  authorities  could  not  give  away  or 
sell  a  part  of  the  highway,  they  could  exchange  a  part  of  it  for 
another  way. 

I  am  aware  that  there  are  numerous  cases  in  Ohio  which  hold 
that  the  public  highways  of  the  state  are  sacred,  and  that  neither 
the  commissioners  nor  the  township  trustees  nor  the  council  of 
cities  have  any  authority  to  make  an  agreement  with  a  railroad 
company  by  which  the  company  shall  acquire  the  right  to  use  any 
part  of  the  public  highway  to  the  exclusion  of  the  public,  with- 
out substituting  another  way  for  the  part  used  by  the  railroad. 

That  is  the  well  settled  law  in  Ohio,  and  it  is  stated  in  very 
strong  language  by-the  Supreme  Court  in  the  case  of  Railway 
Company  v.  City  of  Elyria,  69  0.  S.,  at  page  414,  and  in  the  52 
0.  S.,  page  262. 

But  a  careful  reading  of  these  cases  and  of  all  the  cases  cited 
by  counsel,  discloses  the  fact  that  a  part  of  the  highway  was  be- 
ing taken  without  substituting  any  other  way  therefor,  and 
under  the  laws  of  Ohio  such  a  result,  that  is,  the  taking  of  a  part 
of  the  highway  without  substituting  another  way  therefor,  can 
be  accomplished  only  by  proceedings  under  the  statute  for  the 
vacation  of  highways. 

In  other  words,  the  public  highways  can  not,  by  agreement  of 
the  parties  or  otherwise,  be  obstructed;  hut  must  be  kept  open 
and  in  repair  and  for  the  use  of  the  public. 

But  the  case  at  bar  is  not  a  case  where  the  railroad  company  is 
seeking  to  take  a  part  of  the  highway  without  substituting  any 
other  way  therefor.  The  railroad  company  does  not  claim  that 
it  has  a  right  to  obstruct  the  highway  or  to  take  a  part  of  the 
highway  and  use  it  to  the  exclusion  of  the  public,  except  on 
condition  that  it  restore  the  highway  to  its  former  state  of  use- 
fulness by  substituting  another  highway  therefor.  And  if  it 
does  restore  the  highway  to  its  former  state  of  usefulness  by 
substituting  another  way,  then  it  does  not  obstruct  the  highway, 
nor  does  it  exclude  the  public  from  the  highway. 


•  NISI  PRIUS  REPORTS— NEW  SERIES.  633 

1908.]  Brown  et  al  v.   Railway. 

Section  3283,  Revised  Statutes,  gives  to  certain  public  author- 
ities, having  charge  of  streets  and  highways,  authority  to  agree, 
under  certain  circumstances,  that  a  railroad  company  may  use  a 
street  or  highway  or  a  part  thereof  in  the  construction  of  its 
*  railroad,  and  on  failure  to  so  agree  the  railroad  company  is  em- 
powered to  acquire  such  right  by  appropriation  proceedings; 
but  it  is  settled  that  the  right  so  acquired  by  agreement  or  appro- 
priation is  only  that  of  joint  occupancy,  and  said  section  does 
not  provide  a  way  whereby  the  railroad  can  acquire  the  ex- 
clusive occupancy  and  use  of  the  street  or  highway,  without 
substituting  another  way  therefor.  63  0.  S.,  page  614;  69  0.  S-, 
page  414. 

Under  Section  3283  a  railroad  can  not  acquire  by  appropri- 
ation the  right  to  the  exclusive  use  of  a  highway;  neither  can 
it,  under  this  section,  acquire  such  right  by  agreement  with  the 
public  authorities,  except  by  substituting  another  way  for  the  one 
taken.  If  the  public  authorities  arbitrarily  and  without  good 
cause  refuse  to  agree  to  a  reasonable  substitution  of  another  way, 
and  the  people  in  the  vicinity  arbitrarily  and  because  of  an  un- 
reasonable hostility  prevent  a  vacation  of  the  highway,  then,  if 
there  is  no  other  way  provided  by  law  by  which  the  railroad 
company  can  acquire  that  which  is  reasonably  necessary  in  the 
construction  of  its  railroad,  it  would  be  very  difficult — almost  im- 
possible— to  build  railroads  in  Ohio. 

Railroads  are  public  necessities  and  are  so  reeognized  by  the 
law.  While  they  are  conducted  for  private  gain,  they  hava  a 
public  character  and  many  laws  have  been  passed  regulating 
and  controlling  them  as  public  agencies,  and  the  rights  which 
their  public  character  entitles  them  to  must  be  considered  as 
well  as  the  convenience  of  those  traveling  on  a  highway  in  the 
country. 

The  Legislature  must  have  intended  to  provide  some  way  by 
which  those  having  charge  of  a  country  road  in  a  township  and 
the  people  living  in  that  immediate  vicinity  could  not  obstruct  a 
great  public  improvement  and  prevent  the  building  of  the  rail- 
road by  arbitrary  and  unreasonable  opposition,  and  my  judg- 
ment is  that  Section  3284,  when  construed  with  the  other  sec- 
tions of  the  statutes  and  the  decisions  of  the  Supreme  Court,  can 


MEDINA  COUNTY  COMMON  PLEAS. 


Railway.  [Vol.  VII,  N.  8. 


be  and  should  be  so  construed  as  to  have  some  force  and  effect, 
and  that  it  does  provide  a  way  by  which  a  railroad  company, 
when  it  is  prevented  by  arbitrary  and  unreasonable  opposition 
from  acquiring  the  right  to  the  exclusive  use  of  a  part  of  a  high- 
way in  the  country,  by  appropriation  proceedings  or  agreement  - 
under  Section  3283  or  by  having  the  same  vacated,  may  acquire 
that  right  by  diverting  the  highway  and  substituting  another 
way  therefor,  provided  such  use  be  reasonably  necessary  and  the 
substituted  way  is  a  substantial  restoration  of  the  highway  to 
its  former  state  of  usefulness. 

On  the  other  hand,  the  claim  of  the  defendant  that  it  is  the 
judge  of  whether  or  not  a  diversion  of  the  highway  is  necessary, 
and  that  it  may  divert  a  highway  in  the  country  at  will,  subject 
only  to  the  restriction  that  it  restore  the  same  to  its  former  state 
of  usefulness,  ought  not  to  be  the  law  in  my  judgment,  for  if  it 
was,  a  railroad  company  building  across  a  county  might  divert  all 
the  highways  of  that  county  simply  and  solely  for  the  reason 
that  it  would  be  some  convenience  to  the  railroad  company  in 
building  its  railroad,  and  without  reference  to  the  convenience 
or  wishes  of  the  people  of  the  county. 

It  is  well  settled  that  a  grant  such  as  is  contained  in  Section 
3284  should  be  strictly  construed  against  the  railroad  company, 
and  I  do  not  think  that  the  Legislature  intended  to  vest  in  rail- 
road companies  the  absolute  right  to  divert  highways  at  will, 
even  if  the  railroad  companies  can  and  do  restore  the  diverted 
highways  to  their  former  state  of  usefulness. 

After  listening  to  the  very  able  and  extended  arguments  of 
counsel  in  this  case,  and  after  looking  over  the  various  authorities 
cited  by  them.  I  have  come  to  the  conclusion  that  a  proper  con- 
struction of  Section  3284  is  this: 

That  when  in  the  construction  of  a  railroad  it  becomes  neces- 
sary to  cross  a  highway,  in  the  country,  the  railroad  company  is 
granted  by  this  section  the  right  to  divert  such  highway,  pro- 
vided: 

First.  That  the  proposed  diversion  is  reasonably  necessary; 
and 

Second.  Provided  the  railroad  company  restores  the  highway 
to  its  former  state  of  usefulness. 


NISI  PRIUS  REPORTS— NEW  SERIES.  686 

1908.]  Brown  et  al  v.   Railway. 

The  railroad  company  may  in  .the  first  instance  determine 
whether  or  not  it  is  necessary  to  divert  the  highway;  if  that 
claimed  necessity  be  questioned  in  court,  then  it  is  a  question  for 
the  court  to  decide  whether  or  not  the  proposed  diversion  is 
reasonably  necessary. 

In  considering  whether  or  not  the  diversion  is  necessary,  the 
court  should  consider  the  convcniencies  and  necessities  of  the 
whole  public,  the  railroad  being  a  part  of  the  public ;  the  rights 
of  the  public  traveling  along  the  railroad  are  to  be  considered 
as  well  as  the  rights  of  the  public  traveling  on  the  highway. 

Among  other  things,  the  court  should  take  into  consideration 
the  location  and  use  of  the  highway ;  the  location,  character  and 
use  of  the  railroad;  the  necessities  of  the  public,  not  only  in 
the  use  of  the  highway,  but  in  the  use  of  the  railroad;  the 
feasibility  and  practicability  of  building  the  railroad  without 
diverting  the  highway,  and  the  expense  that  would  be  made 
necessary  to  do  that ;  the  grade  of  the  railroad  and  the  highway, 
and  all  of  the  facts  and  circumstances  of  the  situation  as  shown 
by  the  evidence. 

If  the  court  determines  that  the  diversion  is  necessary,  then  the 
next  question  is,  can  and  will  the  railroad  company  restore  the 
highway  to  its  former  state  of  usefulness  ? 

And  in  determining  whether  or  not  the  highway  can  be  re- 
stored to  its  former  state  of  usefulness,  it  goes  without  saying, 
that  this  does  not  mean  that  it  must  be  restored  to  its  former 
location,  because  if  that  was  the  case  there  would  be  no  sensa  in 
saying  it  could  be  diverted.  Besides  &  very  large  number  of 
eases  have  been  cited  by  counsel  which  hold  that  the  railroad 
company  need  not  restore  the  highway  to  its  former  location,  and 
as  I  remember  it  none  have  been  cited  which  hold  that  it  mnsi 
restore  the  highway  to  its  former  location. 

If  the  diversion  is  permanent,  then  of  course  there  is  no  restor- 
ation of  the  highway  in  its  former  location,  and  the  Supreme 
Court  of  this  state  has  decided  that  the  diversion  may  be  perma- 
nent, and  that  authority  is  given  a  railroad  company  to  condemn 
property  necessary  to  substitute  another  highway  for  the  one 
taken.  The  language  of  the  Supreme  Court  decision  in  34  0. 
S.,  at  page  119,  is  as  follows: 


5110  MEDINA  COUNTY  COMMON  PLEAS. 

Brown   et  al  v.  Railway.  [Vol.  VII,  N.  S 

"This  provision  confers  power  to  divert  the  road  or  stream, 
coupled  with  the  duty  imposed  to  place  the  same,  after  diver- 
sion, in  such  condition  as  not  to  impair  its  previous  usefulness. 
The  requirement  is  not  to  restore  to  its  former  place  or  con- 
dition, but  to  such  condition  as  not  to  affect,  materially,  its  util- 
ity. It  is  to  be  left  in  such  condition,  how  much  soever  it  may 
be  diverted  from  its  former  course,  that  the  right  to  its  public 
or  private  enjoyment,  where  such  right  exists,  shall  not  he 
materially  disturbed  or  interfered  with.  Subject  to  the  perfor- 
mance of  this  condition,  the  power  or  right  to  divert  the  same  is 
co-extensive  with  the  public  necessity  which  calls  for  its  exercise. 
The  meaning  assigned  to  the  language  of  this  section,  by  counsel 
for  the  defendant,  confines  the  right  to  divert  the  stream  or  high- 
way, to  a  use  merely  temporary  in  its  character.  This  we  think 
far  too  restricted;  so  much  so,  that,  if  adopted,  it,  to  a  greater 
or  less  extent,  would  result  in  defeating  the  obvious  d?sign  of 
the  statute.  The  diversion  may  be  temporary  or  permanent,  as 
the  public  needs  or  necessities  require." 

In  20  0.  S.,  150,  which  was  a  case  where  the  diversion  was  a 
permanent  one,  the  language  of  the  decision  begin  ing  at  the 
bottom  of  page  l6l  is: 

"The  company  was  empowered  by  its  charter  to  divert  high- 
ways wherever  it  is  necessary  in  the  construction  of  its  road ; 
■   but  they  were  also  required  to  place  such  highway,  without  un- 
necessary delay,  "in  such  condition  as  not  to  impair  its  former 
usefulness.'  " 

And  further  on  this  subject.  Judge  Boynton  speaking  for  the 
Supreme  Court  in  31  0.  S..  at  page  347,  says: 

"There  is  little  doubt  that  the  Legislature  did  not  intend  to 
require  a  railroad  company  in  crossing  a  public  highway  to  re- 
store the  same  to  its  actual  former  condition.  This  would  be 
practically  impossible.  Substantial  restoration  is  all  that  was 
contemplated  or  intended.  Some  inconveniences  to  public  travel 
are  necessarily  incident  to  all  public  railroad  crossings,  and  such 
as  are  inseparably  connected  therewith,  must  be  submitted  to  by 
the  public." 

So  that  my  conclusion  is,  that  if  the  court  finds,  considering 
all  the  facts  and  circumstances,  that  the  proposed  diversion  of 
the  highways  in  question  is  necessary,  and  that  the  railroad  com- 
pauy  can  and  will  make  a  substantial  restoration  of  the  highway, 
by  diverting  the  same  and  substituting  another  way  therefor,  then 


NISI  PRIUS  REPORTS— NEW  SERIES.  637 

1908. J  Brown    el   al   v.   Railway. 

the  proposed  diversion  is  authorized  by  law.  This  being  the 
law,  what  solution  does  it  lead  us  to  when  applied  to  the  facts 
and  circumstances  of  this  case? 

First.  As  to  the  diagonal  road  or  the  road  known  as  the  Lodi 
and  West  Salem  road:  At  the  point  of  crossing  this  highway, 
this  highway  is  more  than  sixty  feet  wide;  the  railroad  crosses  it 
at  a  very  acute  angle,  and  the  testimony  satisfies  the  court  that  it 
is  very  difficult  and  very  expensive  to  construct  a  bridge  across 
the  highway  at  that  angle,  and  that  it  would  not  be  good  railroad 
construction  to  do  so,  and  considering  the  character  of  the  rail- 
road being  built  by  the  defendant  company  and  the  cast  and  diffi- 
culties of  constructing  such  a  bridge  as  would  be  necessary  at 
sueh  an  angle,  the  court  feels  fully  satisfied  that  it  would  be  un- 
just to  require  the  railroad  company  to  bridge  the  highway  as  it 
is  now  located,  but  that  some  diversion  of  the  highway  so  as  to 
permit  a  crossing  at  right  angles  is  necessary. 

I  find,  however,  that  it  is  not  necessary  to  divert  the  highway 
to  the  westward  as  far  as  is  proposed  by  the  railroad  company; 
but  that  a  reasonable  diversion  would  be  to  divert  it  so  far  and 
no  more  than  is  necessary  to  cross  the  railroad  at  right  angles. 
That  can  be  done  without  materially  lengthening  the  highway, 
without  changing  its  grade  and  with  but  slight  inconvenience  to 
the  public,  except  that  the  view  would  be  obstructed,  and  that  in 
my  judgment  is  one  of  the  inconveniences  to  public  travel  that  is 
necessarily  incident  to  such  crossings,  and  is  insignificant  when 
compared  with  the  expense  and  difficulty  of  building  such  a 
bridge  as  would  be  required  at  that  point  if  no  diversion  wis 
permitted. 

I,  therefore,  find  in  reference  to  this  highway,  that  if  the  rail- 
road company  divert  it  as  I  have  indicated,  and  drain,  gravel 
and  macadam  it  as  is  proposed  by  them,  and  in  addition  to  that, 
will  build  the  kind  of  a  bridge  that  is  proposed  to  be  built  by 
them,  that  is,  a  stone  arch  bridge  over  the  whole  width  of  the 
highway  at  right  angles,  and  will  construct  the  same  so  that  a 
street  car  track  may  be.  laid  on  their  right-of-way  through  and 
under  one  of  the  arches  to  said  bridge  off  of  the  highway,  so  that 
when  a  street  car  company  is  granted  the  right  to  use  said  high- 
way for  street  railway  purposes,  it  may  build  its  track  through 


688  MEDINA  COUNTY  COMMON  PLEAS. 

Brown  et  al  v.  Railway.  [Vol.  Vtl,  N.  S. 

said  arch  and  thus  avoid  inconvenience  and  danger  to  the  public 
at  the  point  of  crossing  the  railroad.  If  these  things  be  done, 
my  judgment  is  that  there  will  be  a  substantial  restoration  of 
the  highway  to  its  former  state  of  usefulness. 

Having  heretofore  found  that  it  is  necessary  to  divert  this 
highway  and  having  indicated  what  the  court  considers  would  be 
a  substantial  restoration  of  the  highway  to  its  former  state  of 
usefulness,  I  find  that  the  highway  may  be  diverted,  provided  the 
railroad  company  does  what  I  have  indicated. 

As  to  the  crossing  of  the  Chatham  road,  I  find  from  the  evi- 
dence that  the  Chatham  road  is  a  very  little  used  highway, 
especially  for  travel  toward  West  Salem ;  that  it  ends  to  the 
south  within  about  a  thousand  feet  of  this  railroad  by  running 
into  and  connecting  with  said  diagonal  road,  known  as  the  Lodi 
and  West  Salem  road;  that  if  the  railroad  company  divert  the 
same  as  proposed,  by  building  along  the  north  line  of  their  track 
a  highway,  properly  drained,  graveled  and  macadamed,  connect- 
ing said  Chatham  road  to  the  cast  with  said  -diagonal  road,  and 
on  the  west  through  the  arch  bridge  over  Black  river  with  the 
Homcrville  road,  such  a  diversion  will  be  of  very  little  incon- 
venience to  the  public  travel;  but  on  the  contrary  will  be  a  bene- 
fit to  the  most  of  the  travel  on  the  Chatham  road.  The  public 
using  the  Chatham  road  north  of  the  railroad  could  then  have 
equally  as  good  facilities  for  using  the  Homervllle  road  as  they 
now  have,  and  they  would  have  much  better  facilities  for  using 
the  diagonal  road  in  driving  to  Lodi,  and  the  only  inconvenience 
would  be  to  those  desiring  to  go  toward  West  Salem,  and  that  in- 
convenience would  cause  them  to  travel  two  sides  of  a  triangle 
about  fifteen  or  eighteen  hundred  feet  in  length  instead  of  one 
side  of  that  triangle,  and  the  travel  in  that  vicinity  as  shown  by 
the  evidence  toward  West  Salem  is  very  light,  and  in  all  human 
probabilities  will  remain  so. 

There  would  be,  however,  an  additional  burden  placed  on  the 
people  to  maintain  and  keep  in  repair  a  somewhat  greater  length 
of  highway. 

So  that  I  feel  that  if  the  Chatham  road  is  diverted  by  the  rail- 
road company  as  proposed,  and  the  defendant  will  pay  to  the 
proper  authorities  having  charge  of  the  keeping  and  repair  of 


NISI  PEIUS  REPORTS— NEW  SERIES.  589 

1908.]  Brown  et  al   v.  Railway. 

said  road  the  sum  of  $5,000  to  be  used  by  said  authorities  in  keep- 
ing said  roads  in  repair  in  the  future,  said  Chatham  road  will, 
all  things  being  considered,  be  restored  to  substantially  its  former 
state  of  usefulness. 

But  I  have  had  some  trouble  in  determining  whether  or  not 
there  is  such  a  necessity  for  the  diversion  of  the  Chatham  road 
as  justifies  the  court  in  permitting  its  diversion.  The  Chat- 
ham road  as  it  now  crosses  the  railroad  is  at  right  angles,  and 
the  only  necessity  for  the  diversion  is  the  fact  that  it  would  save 
the  railroad  company  the  expense  of  building  a  bridge  over  the 
entire  highway  at  an  expense  of  at  least  fifty  thousand  dollars. 
The  expense  of  building  the  railroad  without  diverting  the  high- 
way is  proper  to  be  considered  in  determining  the  necessity  of 
the  diversion,  and  there  may  be  circumstances  where  the  incon- 
veniences to  the  public  traveling  on  the  highway  by  the  diver- 
sion is  so  light,  and  the  expense  of  building  the  railroad  without 
diverting  the  highway  so  great,  that  a  court  of  equity  ought  to 
determine  that  the  great  expense  alone  is  sufficient  necessity  for 
the  diversion. 

Suppose,  for  instance,  that  a  railroad  crosses  two  highways 
within  one  hundred  feet,  and  that  one  highway  can  be  turned 
into  the  other  for  a  short  distance  without  materially  affecting 
or  inconveniencing  travel  on  the  highway,  but  in  fact  benefitting 
the  bulk  of  the  travel  on  the  highway,  and  suppose  that  the  cost 
of  the  extra  bridge  to  be  one  hundred  thousand  dollars,  would 
any  reasonable  man  elaim  that  the  one  hundred  thousand  dol-' 
lars  expense  of  an  extra  bridge  within  one  hundred  feet  of  an- 
other bridge  was  not  a  sufficient  necessity  for  the  slight  diversion  T 

The  present  ease  as  to  the  Chatham  road  is  like  the  one  above 
suggested,  except  as  to  the  extent  of  the  diversion  and  the  cost  of 
the  bridge. 

But,  as  the  railroad  company  must  build  such  a  bridge  across 
said  diagonal  road  about  fifteen  or  eighteen  hundred  feet  cast- 
ward  from  the  Chatham  road,  and  as  the  railroad  company  is 
building  a  similar  bridge  about  two  thousand  feet  to  the  west- 
ward, near  Black  river,  and  as  I  find  that  the  Chatham  road  as 
it  is  proposed  to  be  diverted  is  a  substantial  restoration  of  it 
to  its  former  state  of  usefulness,  my  best  judgment— although  I 


540  MEDINA  COUNTY  COMMON  PLEAS. 

Brown   et  al  v.  Railway.  [Vol.  VII,  N.  S. 

am  in  some  doubt  about  the  matter— leads  me  to  the  conclusion 
that,  considering  the  slight  inconvenience  the  public  will  be  put 
to  by  such  diversion,  and  the  expense  that  the  railroad  company 
would  be  put  to  in  building  a  third  bridge  of  this  character 
within  less  than  a  mile,  there  is  a  sufficient  necessity  shown  to 
justify  the  court  in  granting  the  permission  to  divert,  upon  the 
conditions  and  as  I  have  indicated.  See  12  C.  D.,  805,  where 
a  greater  diversion  was  permitted  in  Lorain  county  by  our  cir- 
cuit court. 

The  court  having  found  that  the  diversion  of  these  highways 
as  proposed  by  the  railroad  is  not  a  proper  diversion  in  all  re- 
spects, the  order  will  be  that  the  defendant  pay  the  costs  of 
these  proceedings;  if  the  railroad  company  will  not  make  the 
diversions  upon  the  conditions  and  in  the  manner  I  have  in- 
dicated, then  a  decree  may  be  entered  enjoining  said  company 
from  diverting  said  highways  as  it  is  now  proposing  to  do; 
but  if  the  railroad  company  will  adopt  the  suggestions  of  the 
court  as  to  the  diversion  of  these  highways,  and  make  it  appear 
to  the  eourt  that  it  proposes  to  and  will  divert  the  highways 
upon  the  conditions  and  as  I  have  indicated,  then  the  injunction 
in  this  case  will  be  dissolved  and  the  petition  of  the  plaintiffs  dis- 
missed. That  will  permit  a  taking  of  the  case  to  the  circuit 
court  by  the  plaintiffs. 

But,  should  the  plaintiffs  not  desire  to  take  the  case  higher, 
the  court  will  make  an  order  dissolving  the  injunction  and  con- 
tinuing the  case,  with  the  understanding  that  if  the  railroad  com- 
pany does  divert  these  highways  as  above  indicated,  and  to  the 
full  satisfaction  of  the  court,  then  the  ease  will  be  dismissed,  but 
if  it  does  not  do  so,  then  the  railroad  company  will  be  required  to 
restore  said  highways  to  their  present  location  and  condition, 
36  0.  S.,  434. 


NISI  PRIUS  REPORTS— NEW  SERIES. 

State  v.  Railway. 


PR.OSECUTION  UNDER.  THE  STATE  AUTOMATIC 
COUPLER  ACT. 

Common  Fleas  Court  of  Jackson  County. 

State  op  Ohio  v.  Detroit,  Toledo  &  Ikonton  Railway 
Company. 

Decided,   October,    190S. 

Constitutional  Law— Application  of  the  State  and  Federal  Automatic 

Coupler  Acts — State  and  Interstate  Traffic — <Each  Car  a  "Unit" 

Present  Use  of  a  Car  Controls — 98  O.  L.,  75. 

1.  The  federal  law  providing  for  automatic  couplers  on  cars  moving  In- 

terstate traffic  and  the  state  law  providing  for  automatic  couplers 
on  cars  moving  state  traffic  are  not  contradictory  or  In  conflict,  and 
the  constitutionality  of  the  state  statute  (98  0.  L.,  75)  can  not  be 
successfully  attacked  on  that  ground. 

2.  It  Is  not  the  train,  but  the  car  complained  of,  that  Is  the  unit  which 

these  statutes  seek  to  control,  and  the  fact  that  a  large  proportion 
of  the  cars  In  a  train  are  loaded  with  Interstate  traffic  does  not 
prevent  the  application  of  the  state  statute  to  a  car  or  cars  in  the 
same  train  which  are  loaded  with  state  traffic;  nor  Is  It  the  common 
use,  but  rather  ft  Is  the  present  use  of  a  car  which  controls,  and 
an  allegation  that  the  car  complained  of  Is  commonly  used  in 
interstate  traffic  can  not  save  It  from  the  operation  of  the  state  stat- 
ute when  at  the  time  alleged  it  was  being  used  within  the  state  for 
the  transportation  of  state  traffic. 

W.  H.  Miller,  Assistant  Attorney -General,  and  Evan  E.  Eu- 
banks,   Prosecuting   Attorney,   for   plaintiff. 
Smith  &-  Bobbins,  for  defendant. 

The  authorities  cited  on  behalf  of  the  State  in  support  of  the 
demurrer  to  the  answer  in  this  ease  were: 

As  to  the  right  of  the  state  to  exercise  this  police  power  in 
the  regulation  of  the  speed  of  interstate  trains  within  city 
limits,  161  U,  S.,  677;  in  the  regulation  of  rates  within  state 
limits,  95  U.  S.,  155;     in  establishing  a  rule  of  evidence,  169 


542  JACKSON  COUNTY  COMMON  PLEAS. 

State  v.  Railway.  [Vol.  VII,  N.  S. 

U.   S.,  311;  in   enforcing  track   connections  between  railways, 
179  U.  S.,  287. 

As  to  the  exclusive  power  of  Congress  with  respect  to  com- 
merce itself  and  the  subordinate  power  of  the  states  over  the 
instrumentalities  of  such  commerce.  161  U.  S.,  677;  169  U.  S., 
613;  102  U.  S.,  211;  102  U.  S.,  541;  154  U.  S.,  204. 

As  to  conflict  between  the  federal  and  state  statutes,  129  Fed. 
Rep.,  522. 

Possession  of  a  federal  coasting  license  does  not  authorize 
ferriage  in  violation  of  state  laws,  11  Mich.,  43;  108  Mo.,  550; 
1  Black  (Ky.),  603;  107  U.  8.,  365. 

State  laws  for  organizing  militia  are  valid  unless  in  conflict 
with  national  legislation  on  that  subject,  5  Wheat.,  1. 

As  to  punishment  for  counterfeiting  or  passing  counterfeit 
money,  1  Doug.  (Mich.),  207;  5  How.,  410;  9  How.,  560;  5 
Leigh,  707 ;  18  Grat,  933 ;    14  How.,  13. 

As  to  the  amendment  to  the  federal  act,  United  States  v.  C. 
&  N.  Ry.,  decided  Dec.  30,  1907,  and  Howard  v.  Railway,  de- 
cided October,  1907. 

The  Legislature  has  all  power  not  expressly  denied  to  it  by 
the  Constitution,  Cooley's  Constitutional  Limitations,  200. 

An  act  can  not  be  set  aside  as  against  public  policy  or  nat- 
ural right,  Probasco  v.  Raibes,  50  O.  S-,  378. 
■   As  to  the  construction  of  statutes  relating  to  commerce,  113 
U.  S.,  727,  and  59  Amer.  Rep.,  247. 

Middleton,  J.  (orally). 

This  is  an  action  brought  to  recover  a  penalty  of  one  hundred 
dollars  provided  for  by  an  act  passed  by  the  General  Assembly 
of  this  state,  on  the  19th  day  of  March.  1906,  found  in  98 
volume  of  the  Ohio  Laws,  page  75,  which  act  provides: 

"That  it  shall  be  unlawful  for  any  such  common  carrier  to 
haul,  or  permit  to  be  hauled  or  used  on  its  line,  any  locomotive, 
car,  tender,  or  similar  vehicle  used  in  moving  state  traffic,  not 


NISI  PBTUS  REPORTS— NEW  SERIES.  548 

1908.]  State  v.  Railway. 

equipped  with  couplers  coupling  automatically  by  impact,  and 
which  can  be  uncoupled,  -without  the  necessity  of  men  going 
between  the  ends  of  cars." 

The  petition,  in  substance,  alleges  that  the  defendant  company 
is  a  corporation  organized  under  the  laws  of  the  state  of  Michi- 
gan, and  is  engaged  in  operating  a  liue  of  railroad  from  the 
eity  of  Detroit,  in  said  state,  to  city  of  Ironton,  in  this  state,  and 
that  the  line  of  said  railroad  company  passes  through  this 
county. 

It  alleges  further  that  on  or  about  the  17th  day  of  January, 
1907,  the  defendant  company  hauled  upon  this  line  of  railroad, 
in  its  business  as  a  common  carrier  in  this  county,  a  certain 
railroad  car,  to-wit,  No.  4161 ;  said  car  being  then  and  there  used 
'  for  moving  state  traffic  in  train  second  54 ;  said  car  being  de- 
ficiently equipped  so  that  the  same  could  not  be  uncoupled  from 
the  other  cars  of  said  train  without  the  necessity  of  a  man  going 
between  the  end  of  said  car  and  the  end  of  the  other  cars  of  said 
train,  etc.  The  petition  prays,  therefore,  for  judgment  against 
the  defendant  in  the  sum  of  one  hundred  dollars. 

Now,  it  will  be  noticed  in  this  connection  that  this  petition 
brings  the  case  clearly  within  the  provisions  of  the  state  law 
which  I  have  just  read,  the  operative  fact  of  the  petition  being 
that  this  car  in  question  was  then  and  there  used  for  moving 
state  traffic. 

The  defendant  company  has  filed  an  answer  to  this  petition, 
and  for  a  first  defense  sets  up,  in  substance,  that  it  was  at  the 
time  complained  of  in  the  petition  a  common  carrier  engaged 
in  the  business  of  interstate  commerce  and  that  its  line  of  rail- 
road and  all  its  locomotives  and  oars,  including  the  car  described 
in  the  petition,  are  and  were  commonly  used  and  engaged  in 
interstate  traffic.     That  is  the  first  defense. 

The  second  defense,  in  addition  to  what  I  have  already  stated, 
sets  up  that  other  cars  in  the  train — this  second  54  train  de- 
scribed in  plaintiff's'  petition — were  actually  loaded  with  traffic 
consigned  from  points  in  this  state  to  points  in  another  state. 

Now,  the  claim  of  the  defendant  company  upon  these  two  de- 
fenses is,  in  substance,  that  it  is  within  the  exclusive  power  of 


644  JACKSON  COUNTY  COMMON  PLEAS. 

State  v.  Railway.  {Vol.  VII,  N.  S. 

Congress  to  regulate  traffic  between  the  states,  as  well  as  the  in- 
strumentalities of  such  traffic,  which  would  include,  of  course, 
ears,  locomotives  and  trains,  and  that  therefore  in  the  case  where 
a  common  carrier  is  engaged  in  interstate  traffic,  as  distinguished 
from  state  traffic,  all  its  cars,  locomotives,  and  other  agencies 
of  traffic  are  withdrawn  from  the  control  of  the  state  and  come 
under  the  control  of  Congress  alone,  and  that  this  act  of  the 
3tate  of  Ohio,  in  so  far  as  it  seeks  to  control  these  agencies,  is 
unconstitutional  and  void. 

In  1893  the  Congress  of  the  United  States  passed  an  act 
similar  to  the  state  act  I  have  just  read,  which  provides,  in 
Section  2  thereof  r 

"That  on  and  after  the  first  day  of  January,  eighteen  hun- 
dred and  ninety-eight,  it  shall  be  unlawful  for  any  such  common 
carrier  [that  means  railroad  companies  engaged  in  interstate 
commerce]  to  haul  or  permit  to  be  hauled  or  used  on  its  line 
any  ear  used  in  moving  interstate  traffic  not  equipped  with 
couplers  coupling  automatically  by  impact,  and  which  can  be 
uncoupled  without  the  necessity  of  men  going  between  the  ends 
of  the  cars." 

It  will  be  observed  that  these  two  laws,  the  state  law  and 
the  federal  law,  are  practically  identical  in  defining  the  sub- 
jects sought  to  be  controlled  by  their  provisions,  and  if  it  were 
true,  as  claimed  here  by  the  defendant  company,  that  the  car 
in  question  in  this  case  comes  within  the  provisions  of  this  act 
of  Congress,  and  under  the  conditions  specified  in  said  act,  it 
will  not  be  questioned,  I  think,  that  the  state  law  can  not  apply. 
In  other  words,  there  can  be  no  dual  control  of  this  car  in  ques- 
tion by  the  state  and  federal  government  at  the  same  time. 

Now,  very  elaborate  briefs  have  been  filed  by  counsel  for  the 
defendant  company,  as  well  as  the  Attorney -General  of  this 
state  and  the  prosecuting  attorney  of  this  county  on  behalf  of 
the  plaintiff,  and  it  seems  that  the  question  involved  in  this 
case  is  regarded  by  all  parties  as  a  very  important  question. 

1  have  very  carefully  examined  the  authorities  cited  by  coun- 
sel upon  both  sides,  as  well  as  the  authorities  which  I  have  been 
ahle  to  find   myself,  and   from   all   the  authorities   examined. 


NISI  PRIUS  REPORTS— NEW  SERIES.  546 

1908.]  State  v.  Railway. 

I  have  concluded  that  under  the  federal  law,  before  there  can 
be  a  violation  thereof,  it  must  appear: 

First.  That  the  car  in  question  must  be  in  actual  use  as  an 
instrument  of  interstate  traffic,  as  distinguished  from  state 
traffic;  or, 

Second.  It  must  be  shown  that  it  was  the  intention  of  the 
common  carrier  to  so  use  the  car. 

Now,  I  think  these  two  propositions  are  clearly  shown  by 
the  federal  authorities  under  thiB  statute.  Take  for  instance  the 
196  U.  S.,  p.  1,  the  cause  of  Johnson  v.  Southern  Pacific  Com- 
pany. In  that  case  the  court  holds  that  it  was  not  necessary 
that  the  car  involved  in  that  case  should  actually  be  engaged 
in  interstate  movement,  but  if  it  appears  sufficiently  that  it  was 
the  intention  of  the  defendant  company  to  so  use  the  car,  it  is 
a  violation  of  the  federal  statute,  if  the  ear  is  not  equipped  as 
that  statute  requires. 

In  this  connection  it  must  be  further  observed  that  these 
two  laws,  by  their  very  terms,  do  not  apply  to  anything  more 
than  a  car  or  single  agency,  and  that  they  do  not  apply  to  trains. 
The  train  is  not  the  "unit,"  in  other  words,  which  the  two 
statutes  seek  to  control;  it  is  the  car,  and  it  can  readily  be  seen 
that  a  case  will  frequently  arise  in  which  a  part  of  a  single 
train  will  be  devoted  to  interstate  commerce,  and  the  remainder 
of  that  train  will  be  devoted  to  state  traffic, 

In  order  then  to  give  the  federal  statute  that  scope  and  appli- 
cation which  the  defendant  claims  in  this  case,  the  court  would 
be  compelled  to  apply  the  statute  not  to  the  separate  car,  but 
to  the  train  as  a  whole.  I  do  not  think,  and  I  so  hold,  that  the 
statute  intends  anything  of  that  sort. 

It  is  the  purpose  of  both  laws — both  the  federal  laws  and  the 
state  law — to  apply  solely  to  a  single  car  or  instrument  of 
commerce,  and  the  use  or  intended  use  of  the  ptirticular  car  in 
question  must  determine  which  law  applies.  These  two  laws 
are  not  contradictory  or  conflicting  in  their  terms.  There  is 
nothing  in  the  language  of  the  state  law  which  conflicts  in  any 
way  with  any  of  the  provisions  of  the  federal  law,  or  by  its 


646  JACKSON  COUNTY  COMMON  PLEAS. 

State  v.  Railway.  [Vol.  VII,  N.  S. 

language  undertakes  to  control  the  same  thing  which  federal 
law  controls. 

The  language  of  the  federal  law  is,  "any  car  used  in  mov- 
ing interstate  traffic."  The  language  of  the  state  law  is,  "any 
car  used  in  moving  state  traffic,"  and  that  the  state  has  the 
right  to  control  in  cases  of  state  traffic  is  recognized  by  the  fed- 
eral courts.  Take  for  instance  the  case  reported  in  the  llfi 
Fed.  Rep.,  873,  the  case  of  Voelker  v.  Chicago,  M.  d-  St.  P.  Ry. 
Co.     The  court  says  in  construing  the  federal  statutes: 

"Legislation  on  this  matter  of  the  use  of  automatic  couplers 
was  sought  and  obtained  from  Congress,  as  well  as  from  state 
legislatures  so  that  companies  would  not  be  afforded  a  loop- 
hole for  escape  from  liability  on  the  theory  that  the  agencies 
used  in  interstate  commerce  are  without  the  control  of  the 
state  legislation." 

This  language  clearly  implies  the  conclusion  that  because 
today  these  agencies  might  come  under  the  provisions  of  t'l? 
federal  law,  it  does  not  necessarily  follow  that  tomorrow  th« 
same  instrumentalities,  the  same  agencies,  the  same  ca:-s,  might 
not  eome  under  the  state  law.  That  which  determines  which 
law  should  apply,  is  the  use  or  intended  use  of  each  particular 
car  at  each  particular  time.  The  federal  courts  are  always  par- 
ticular to  qualify  every  expression  by  limiting  it  to  interstate 
traffic. 

The  court  further  says  in  this  case; 

"When  companies  are  engaged  in  interstate  traffic,  it  is  their 
duty  under  the  act  of  Congress  not  to  use  in  connection  with 
such  traffic,  cars  not  equipped  as  required  by  that  act." 

It  necessarily  follows  that  if  the  same  companies  are  at  the 
same  time  engaged  in  state  traffic,  it  is  their  duty,  under  the 
state  law,  not  to  use  in  connection  with  state  traffic,  cars  which 
are  not  equipped  as  required  by  the  state  law.  It  is  the  present 
use  of  the  car  that  controls,  not  the  general  character  of  the 
train  in  which  the  car  may  be,  nor  the  general  character  or  na- 
ture of  the  business  in  which  the  common  carrier  is  engaged. 

In  this  case  it  was  held  that  it  was  not  necessary  in  order  to 
bring  the  car  within  the  provisions  of  the  federal  statnte,  that 


NISI  PRIUS  REPORTS— NEW  SERIES.  517 

1908.]  State  v.  Railway. 

it  be  actually  in  use  as  the  agency  of  interstate  commerce,  but 
it  was  sufficient  if  it  appeared  that  it  was  designed,  or  intended 
by  the  common  carrier  to  use  it  for  that  purpose.  So  that  I 
am  of  the  opinion  that  these  two  statutes  do  not  conflict  in  any 
way,  and  that  the  only  case,  after  thinking  the  matter  over,  in 
which  there  might  be  a  serious  question  for  the  court,  would 
be  a  case  in  which  a  car  was  loaded  partly  with  state  traffic  and 
partly  with  interstate  traffic.  Now,  that  might  occur.  It  might 
occur  upon  the  line  of  the  defendant  company  in  this  case,  and 
it  probably  might  happen  that  this  company,  along  the  northern 
part  of  its  line  in  this  state,  would  place  in  some,  car  that  was 
partly  loaded  with  traffic  designed  for  some  point  in  Michigan, 
some  article  or  some  merchandise  that  was  designed  for  some 
point  in  the  state  of  Ohio. 

Id  that  case  the  court  would  then  have  this  question  to  meet, 
but  not  under  the  facts  as  they  appear  in  this  case. 

The  petition  alleges  that  this  car  in  question  was  being  used 
for  moving  state  traffic.  Neither  the  first  nor  second  defenses 
in  the  answer  denies  this,  but  'the  defendant  simply  claims  that 
this  car  was  commonly  used  in  interstate  traffic,  as  well  as  all  of 
its  other  cars  and  locomotives.  It  is  not  the  common  use  of  the 
car  which  determines  the  question.  As  I  said  before,  it  is  the 
present  use  of  the  car,  or  the  present  intended  use  of  the  car 
which  controls.  The  defendant  says  in  the  second  defense  there 
were  a  number  of  cars  in  the  train  which  were  being  then  used 
for  interstate  traffic.  But  it  is  of  no  consequence  to  what  use 
all  the  other  cars  in  that  train  were  being  put.  The  court  is 
only  dealing  with  the  car  described  in  the  petition. 

Now,  for  a  third  defense,  the  defendant  alleges  that  it  had  in 
its  employ  a  sufficient  number  of  competent  inspectors,  whose 
duty  it  was  to  properly  inspect  all  cars  and  equipment,  and 
that  said  inspectors  went  over  and  inspected  this  train,  and  all 
ears  and  equipment  were  in  good  repair  and  condition.  I  think 
this  defense  is  very  fully  covered  by  the  ease  of  Wellston  Coal 
Co.  v.  Smith.,  found  in  65  0.  S.,  pp.  70  and  76. 

The  demurrer  to  the  answer,  and  to  each  defense  of  the  an- 
swer, will  be  sustained. 


HAMILTON  COUNTY  COMMON  PLEAS. 
Scbott  ft  Sons  Co.  v.  Insurance  Co.        [Vol. 


INSURABLE  INTEREST  OF  CORPORATION  IN  LIVES  OF 
ITS  DIRECTORS. 

Common  Pleas  Court  of  Hamilton  County. 

The  J.  M.  Schott  &  Sons  Co.  v.  Security  Mutual  Life 
Insurance  Co.  et  al.  • 

Decided,  April  30,  1008. 

Corporationt-^-Without  Insurable  Interest  in  Lives  of  Directors,  When 
— Recover^  of  Premiums  Paid — Function*  of  Directors — Acts  of 
Directors  Binding  only  Within  the  Scope  of  Their.  Authority — 
Separate  and  individual  Action  of  No  Effect — Presumption  as  to 
Knowledge  of  Life  Insurance  Agent  as  to  insurable  Interest — Re- 
bates upon  Premium. 

1.  A  corporate  act  can  <  not  be  performed  by  directors  of  the  corporation 

acting  separately  or  Individually,  but  must  be  exercised  by  joint 
action  as  a  board;  and  things  done  by  directors  acting  separately 
will  be  treated  as  of  no  effect,  unless  It  appear  tbat  innocent  per- 
sons dealing  wltb  them  In  good  faith  have  been  misled  thereby. 

2.  A  corporation  has  no  Insurable  Interest  In  the  lives  of  members  of 

Its  board  of  directors  who  are  not  Indebted  to  It;  and  where  In- 
dividual directors  Insure  their  lives  for  tbe  benefit  of  the  corpora- 
tion If  It  Is  still  In  existence  at  the  time  of  tbelr  deaths  or  at  the 
end  of  twenty  years,  otherwise  the  proceeds  of  the  policies  to  go 
to  their  own  executors  or  administrators,  tbe  premiums  to  be  paid 
out  of  tbe  treasury  of  the  company,  their  action  is  void. 

3.  A  life  Insurance  agent  will  be  presumed  to  know  that  a  corporation 

has  no  Insurable  Interest  In  the  Uvea  of  its  directors,  and  an  action 
will  He  against  the  company  for  cancellation  of  the  policies  and  re- 
covery of  the  premiums  paid. 

Five  of  the  directors  of  the  J.  M.  Schott  &  Sous  Company  in- 
sured their  lives  in  the  Security  Mutual  Life  Insurance  Com- 
pany, for  the  benefit  of  the  corporation  if  in  existence  when 
death  should  occur  or  at  the  end  of  twenty  years,  otherwise  pay- 
able to  the  executors  or  administrators  of  the  persons  whose  lives 
were  insured.    The  premium  was  to  be  paid  by  the  company,  and 

•  Affirmed  by  the  Circuit  Court,  Security  Mutual  Life  Insurance  Co.  v. 
the  J.  M.  Schott  a  Sons  Co.,  11  C.  C— N.  S.,  401. 


NISI  PRIUS  REPORTS— NEW  SERIES. 


1908.]  Schott  &  Sons  Co.  v.  Insurance  Co. 

was  so  paid  for  the  first  two  years  by  the  company's  notes.  This 
was  done  without  the  knowledge  of  the  president  of  the  corpora- 
tion, who  held  a  majority  of  its  stock,  and  without  the  knowledge 
of  the  other  stockholders,  and  it  was  not  done  at  a  meeting  of 
either  the  directors  or  the  stockholders. 

The  John  M.  Sehott  &  Sons  Co.  was  incorporated  to  manufac- 
ture general  cooperage.  The  evidence  showed  that  the  per- 
sons insured  were  not  indebted  to  the  company,  and  were  not 
under  any  pecuniary  obligation  whatever  to  the  company.  The 
stockholders  and  directors  of  the  company  are  all  members  of 
the  family  of  its  founder,  the  late  John  M.  Schott,  and  consist 
of  his  wife,  his  daughters  and  his  sons.  Four  sons  whose  lives 
were  insured  were  actually  engaged  in  the  management  of  the 
business  of  the  corporation,  and  had  been  so  engaged  with  their 
father  and  for  the  corporation  for  a  great  number  of  years.  Only 
one  directors'  meeting 'a  .year  is  usually  held  and  the  entire 
management  and  control  of  the  business  has  been,  by  common 
consent,  delegated  to  Christian  Sehott,  who  is  the  secretary  and 
general  manager  of  the  company.  The  policies  were  for  $5,000 
each  and  were  written  for  the  benefit  of  the  John  it.  Sehott  & 
Sons  Company. 

The  action  was  to  enjoin  A.  Wolfsohn,  one  of  the  defendants, 
an  agent  of  the  Security  Insurance  Company,  from  negotiating 
a  note  of  the  John  M.  Schott  &  Sons  Company,  executed  by 
Christian  Sehott,  secretary  and  manager,  which  had  been  given 
to  said  Wolfsohn  in  payment  for  the  premiums  for  two  years 
on  said  policies.  The  petition  prayed  in  the  alternative  that  if 
said  Wolfsohn  had  already  negotiated  said  note  to  a  bona  fide 
purchaser  for  value  without  knowledge,  then  the  plaintiff  might 
recover  the  amount  of  said  note  from  the  said  insurance  com- 
pany. 

Upon  this  state  of  facts  the  court  made  the  following  findings 
and  holdings: 

Bromwell,  J. 

First.  The  board  of  directors  of  a  corporation  is  its  agent  for 
carrying  on  the  business  for  which  said  norporation  was  created. 


650  HAMILTON  COUNTY  COMMON  PLEAS. 

Schott  &  Sons  Co.  v.  Insurance  Co.       [Vol.  VII,  N.  S. 

Second.  The  articles  of  incorporation  prescribed,  among  other 
things,  the  purpose  for  which  the  company  is  incorporated. 

Third.  Neither  the  company,  nor  its  agents  or  board  of 
directors  acting  in  its  behalf,  has  authority  to  transact  any  busi- 
ness or  to  do  any  act  in  relation  thereto  except  such  as  are  au- 
thorized in  its  charter  or  are  reasonably  necessary  and  proper  for 
the  performance  of  its  authorized  business. 

Fourth.  A  company  authorized  to  carry  on  a  general  cooper- 
age business  would  have  no  authority  to  use  its  funds  for  the 
purpose  of  mere  speculation  in  life  insurance,  nor  to  take  out 
insurance  upon  the  life  of  any  person  where  it  has  no  insurable 
interest  therein. 

Fifth.  While  there  might  be  eases  where  it  would  be  proper 
for  a  corporation  to  procure  and  maintain  insurance  upon  the  life 
of  one  or  more  of  its  directors  (as,  for  instance,  where  the  said 
director  is  indebted  to  the  company  and  the  insurance  so  taken 
is  for  the  purpose  of  securing  said  indebtedness),  the  evidence  in 
the  present  ease  allows  no  such  relation  of  any  of  the  directors 
to  the  company  as  would  authorize  it  to  take  out  such  insurance 
or  attempt  to  create  an  insurable  interest  on  behalf  of -the  com- 
pany in  the  life  or  lives  of  any  of  its  directors. 

Sixth.  "Within  the  scope  of  their  authority  the  directors  act- 
ing as  a  board  bind  the  company  by  their  acts;  outside  of  the 
scope  of  their  authority  sueh  acts  are  void  except  where  the  right 
of  innocent  persons  dealing  in  good  faith  with  said  board  of  di- 
rectors are  involved. 

Seventh.  Except  for  the  transaction  of  minor  and  usual  de- 
tails of  the  business  of  the  company,  any  important  action  out- 
side of  its  regular  and  everyday  business  should  be  first  author- 
ized by  the  board  of  directors,  and  their  action  thereon  be  noted 
on  the  minutes  of  the  board  and  made  a  matter  of  record. 

Eight.  The  separate  and  individual  action  of  one  or  more,  even 
all,  of  said  directors  is  not  the  action  of  the  board  and  will  be  of 
no  effect  unless  subsequently  ratified  at  a  meeting  of  the  board. 

Ninth.  In  the  present  case,  the  business  of  the  company  was 
cooperage,  the  making  and  selling  of  barrels,  etc. ;  none  of  its 
directors  was  indebted  to  it;  the  business  itself  is  solvent;  there 


NISI  PRITJS  REPORTS— NEW  SERIES.  561 

1908.}  Scbott  A  Sons  Co.  v.  Insurance  Co. 

is  no  evidence  to  show  that  upon  the  death  of  aoy  of  its  direc- 
tors or  his  removal  or  withdrawal  from  the  business  it  would 
suffer  any  serious  or  lasting  detriment  thereby.  Under  these 
circumstances  the  taking  out  of  insurance  on  the  lives  of  its  five 
directors  was  not  necessary  for  the  carrying  on  of  its  author- 
ized business,  nor  was  it  a  necessary  or  proper  incident  thereto. 

Tenth.  The  action  of  said  individual  directors  in  causing 
their  lives  to  be  insured  and  giving  the  note  of  the  company  to 
pay  the  premium  on  the  policies  issued  was  never  authorized  or 
ratified  by  them  as  a  board,  and  did  not  bind  the  company  unless 
by  such  action  innocent  parties  dealing  with  them  in  good  faith 
were  misled. 

Eleventh.  The  evidence  shows  in  this  case  that'  the  agent  for 
the  insurance  company,  knowing  the  character  of  the  business 
transacted  by  plaintiff,  himself  first  suggested  and  urged  the  tak- 
ing out  of  said  insurance,  citing  the  eases  of  others  who  had 
taken  insurance  for  the  benefit  of  the  business  in  which  they 
were  engaged,  and  held  out  to  said  directors  the  probability  of  n 
large  profit  to  the  company  by  such  investment  of  its  funds.  It 
may  be  presumed  from  the  evidence  that  said  agent  knew  as  a 
matter  of  law  that  the  plaintiff  had  no  insurable  interest  in  the 
lives  of  said  directors,  and  that  the  giving  of  the  note  of  said 
company  was  without  consideration. 

Twelfth.  Said  insurance  agent  must  also  have  known  as  a 
matter  of  law,  from  the  terms  of  the  policies  issued,  that  a  fraud 
was  being  perpetrated  on  the  other  stockholders  of  said  com- 
pany whose  lives  were  not  similarly  insured,  by  reason  of  tht 
fact  that  the  company  was  to  pay  the  premiums  on  said  policies, 
thus  using  money  partly  belonging  to  said  other  stockholders 
who  would  reap  no  benefit  therefrom  in  case  the  company  went 
out  of  esistence  within  the  period  of  twenty  years,  and  that 
said  insurance  at  the  end  of  that  time  would  be  payable  to  the 
estate  or  estates  of  the  five  insured  stockholders  and  would  be 
of  no  benefit  to  any  of  the  others. 

I  conclude,  therefore,  that  the  directors  had  no  authority  to 
take  out  said  policies;  that  plaintiff  had  no  insurable  interest 
in  the  lives  of  the  insured;   that  the  note  given  for  premium  was 


652     HAMILTON  COUNTY  COMMON  PLEAS. 

Schott  £  Sons  Co.  v.  Insurance  Co.       [Vol.  VII,  N.  S. 

without  consideration ;  and  that  the  agent  of  the  insurance  com- 
pany knew  these  facts  and  the  law  in  relation  thereto. 

I  am  also  of  the  opinion  that  the  statements  made  by  said  in- 
surance agent  in  soliciting  said  insurance  were  misleading  and 
intended  to  deceive  the  insured,  find  did  deceive  them  as  to  the 
fund  deposited  with  the  Insurance  Department  of  New  York  for 
the  protection  of  the  policies  issued  by  said  company,  and  that 
this  deception  was  one  of  the  inducements  which  led  said  direc- 
tors to  take  out  said  insurance,  so  that  even  if  said  directors 
should  have  had  authority  to  bind  the  company  by  any  such  ac- 
tion, if  the  same  had  been  free  from  deceit  or  misrepresentation, 
said  company  would  under  ths  circumstances  of  this  case  be  en- 
titled to  demand  a  rescission  of  the  contract,  the  cancellation  of 
the  policies  and  a  refunder  of  the  amount  of  the  premium  paid 
by  it. 

As  to  the  alleged  misrepresentation  in  regard  to  the  probable 
large  increase  in  value  of  said  policies  by  the  end  of  the  term, 
there  is  some  evidence  to  the  effect  that  said  policies  might,  under 
exceptional  circumstances,  work  out  as  represented,  hut  the  pre- 
ponderance of  the  evidence  would  go  to  show  that  such  state- 
ments were  not  likely  to  be  verified  by  actual  results.  As  there 
may  be  some  question,  however,  whether  such  statements  of 
future  results  may  not  have  been  a  mere  expression  of  opinion, 
we  do  not  take  them  into  consideration. 

Nor  do  we  take  into  consideration  the  claim  that  there  was 
a  violation  of  the  law  in  the  matter  of  allowing  rebates  upon  the 
premium,  and  that  the  plaintiff  was  in  pari  delicto  with  defend- 
ant. Looking  upon  the  act  of  the  individual  directors  in  taking 
out  the  insurance  as  being  unauthorized  and  not  binding  on  the 
company,  we  can  not  say  that  the  latter  was  at  fault  by  reason 
of  any  transactions  involving  a  rebate  of  the  premium. 

Judgment  will  be  given  to  plaintiff  to  recover  the  amount  paid 
by  it  on  its  note  discounted  by  the  Brighton  German  Bank  Co. 
with  interest  and  costs,  upon  the  surrender  by  plaintiff  to  the 
defendant,  the  Security  Mutual  Life  Insurance  Co..  of  the  said 
policies  for  cancellation. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Akron  v.  East  Ohio  Gas  Co. 


MANDATORY  INJUNCTION  TO  COMPEL  THE  EXERCISE  OF  A 
CAS  FRANCHISE. 

Common  Pleas  Court  of  Summit  Count;. 

.  City  op  Akron  v.  East  Ohio  Gas  Company. 

Decided,  November,  1908. 

Corporations  of  a  Public  Nature— Duties  Of,  Can  not  be  Abandoned, 
When—Qas  Company— Nature  Of  Contract  with  State  and  Munici- 
pality—Regulation of  Price  of  Gas — Franchise — Forfeiture  of— 
Mandatory  injunction— Ultra  Tires  Acts. 

1.  Where  a  public  service  corporation,  like  a  natural  gas  company,  au- 

thorized to  supply  gas  to  a  considerable  territory,  undertakes  to 
serve  a  municipality  within  that  territory,  it  la  bound  by  the  obli- 
gations of  two  contracts — one  with  the  state  as  set  forth  in  its 
articles  of  Incorporation,  and  the  other  with  the  municipality  which 
it  has  undertaken  to  serve  and  which  la  embodied  In  the  ordi- 
nance granting  the  right  to  occupy  the  streets;  and  Its  contract 
with  the  municipality  and  with  the  state  for  the  Inhabitants  of 
such  municipality,  can  not  be  abandoned  without  violation  or 
its  contract  with  the  state. 

2.  Such  a  corporation,  so  long  as  It  continues  to  exercise  and  enjoy 

the  franchise  of  a  gas  company  bestowed  by  the  state,  can  be 
compelled  by  mandatory  Injunction  to  continue  to  furnish  gas  to 
a  municipality  with  which  it  haa  entered  into  contract  relations 
to  perform  that  service. 

3.  While  power  to  regulate  the  price  at  which  gas  sball  be  furnished 

la  vested  in  council.  It  Is  a  power  which  must  be  exercised  In  good 
faith  for  the  purpose  for  which  It  was  given;  and  bad  faith  on 
the  part  of  council  In  fixing  an  Inadequate  price  or  In  making  un- 
reasonable and  arbitrary  regulations  is  a  proper  subject  of  Inquiry, 
when  put  In  issue. 

Doyle,  J. 

The  East  Ohio  Gas  Company  was  incorporated  pursuant  to 
and  by  favor  of  the  provisions  of  the  statutes  of  Ohio,  on  Sep- 
tember 8th,  1898,  for  the  purpose  of  producing,  purchasing  and 
acquiring  natural  gas;  of  piping  and  transporting  natural  gas 
from  th"e  place  or  places  where  it  is  produced,  purchased,  or  ac- 
quired to  Saint  Clairsville  in  Belmont  county;    Uhrichsville, 


SUMMIT  COUNTY  COMMON  PLEAS, 


t  Ohio  Qas  Co.  [VoL  VII,  N.  8. 


Dennison,  New  Philadelphia,  Canal  Dover,  Bolivar  and  Zoar  in 
Tuscarawas  county;  Navarre,  Canton  and  Massillon  in  Stark 
county,  and  Akron  and  Cuyahoga  Falls  in  Summit  county,  Ohio, 
and  to  other  cities,  villages  and  places  in  the  counties  aforesaid ; 
of  selling  and  supplying  natural  gas  at  said  places  to  consumers, 
and  of  laying  and  maintaining  all  street  mains  and  pipes  neces- 
sary for  said  purpose,  with  the  right  to  acquire  and  hold  all  such 
lands,  leases,  right-of-way  and  other  real  and  personal  property 
as  may  be  necessary  or  convenient  for  the  purpose  of  producing, 
transporting,  selling  and  supplying  natural  gas  as  aforesaid. 

The  kind  of  improvement  intended  to  be  constructed  as  set 
forth  in  the  articles  of  incorporation  is  a  line  of  wrought  iron 
pipe  laid  under  ground  from  the  place  where  the  natural  gas  is 
produced,  purchased,  or  acquired,  to  the  cities  and  places  afore- 
said, to  connect  with  street  mains  and  pipes  laid  iu  the  streets, 
lanes,  alleys  and  public  grounds  of  the  cities  and  places  afore- 
said, for  the  transportation  and  supply  of  natural  gas  to  the  said 
cities  and  places  and  their  inhabitants,  to  which  shall  be  con- 
nected all  such  regulators,  valves,  curb  boxes  and  safety  ap- 
pliances as  may  be  necessary  in  the  conduct  of  said  business. 

The  said  line  shall  commence  at  a  point  on  the  Ohio  river  iu 
Belmont  county,  Ohio,  and  run  from  there  through  Belmont, 
Harrison,  Tuscarawas,  Stark  and  Summit  counties,  Ohio,  to 
Cuyahoga  Falls  in  Summit  county.  The  termini  of  said  im- 
provement shall  be  a  point  on  the  Ohio  river  in  Belmont  county, 
Ohio,  and  a  point  at  Cuyahoga  Falls  in  Summit  county,  Ohio. 

In  1902  the  company  amended  its  articles  of  incorporation  so 
as  to  specifically  include  Cleveland  and  Cuyahoga  county  in  its 
field  of  operations,  but  not  changing  its  charter  in  respect  to 
other  places  in  the  counties  aforesaid.  The  amended  charter  con- 
tains another  additional  privilege,  that  of  manufacturing  gas 
and  transporting  and  supplying  the  same  in  the  territory  em- 
braced in  the  franchise,  and  some  other  matters  incident  to  the 
manufacture  of  gas. 

The  company  on  September  26th,  1898,  by  an  ordinance  of  the 
council  of  the  city  of  Akron  acquired  the  consent  of  the  mu- 
nicipal authorities  of  that  city  to  lay  its  pipes  for  conducting 
gas  through  the  city,  to  supply  consumers  of  the  gaa  therein, 


NISI  PRIUS  REPORTS— NEW  SERIES.  565 

1908.]  Akron- v.  East  Ohio  Gaa  Co. 

The  defendant  is  now  actively  supplying  the  cities  of  Cleve- 
land, Akron,  Canton  and  Massillon  and  is  purposing  to  furnish 
Youngstown,  Warren,  Niles,  Ravenna,  Kent,  Cuyahoga  Falls 
and  Alliance  with  natural  gas.  It  has  lines  of  mains  and  supply 
pipes  extending  in  a  southerly  direction  across  the  state  of  Ohio 
from  Cleveland  to  the  state  line  in  the  middle  of  the  Ohio  river, 
one  of  which  supplies  the  cities  of  Akron  and  Canton. 

The  ordinance  giving  the  consent  of  the  municipal  authorities 
of  Akron  to  the  East  Ohio  Gas  Company  to  occupy  its  streets 
with  gas  pipes,  fixed  the  rate  to  be  charged  for  natural  gas  fur- 
nished to  the  citizens  and  public  buildings  of  said  city,  during 
the  period  of  ten  years  next  ensuing  after  its  passage,  as  fol- 
lows: during  the  first  five  years  at  twenty-five  cents  per  thou- 
sand cubic  feet  if  paid  before  the  tenth  day  of  the  month  fol- 
lowing the  selling  and  delivery  thereof,  and  twenty-seven  cents 
if  not  paid  in  that  time,  and  after  the  expiration  of  five  years 
from  the  date  of  the  passage  of  the  ordinance  at  thirty  cents  and 
thirty-two  cents  respectively,  according  to  whether  paid  before 
the  tenth  day  of  the  month  following  the  use.  The  ordinance  also 
provided  for  a  discount  of  ten  per  cent,  for  gas  furnished  cer- 
tain public  institutions.  It  was  accepted  in  writing  by  the  de- 
fendant. 

At  the  expiration  of  the  ten  years  period  provided  for  in  the 
ordinance  and  pursuant  to  Section  1536-567  (2478),  Revised 
Statutes  of  Ohio,  the  council  on  the  7th  of  October,  1906,  passed 
an  ordinance  fixing  the  rates  to  be  charged  for  natural  gas  at 
twenty  and  twenty-two  cents  respectively,  according  to  whether 
paid  on  the  tenth  of  the  month  following  its  use,  to  be  operative 
for  the  period  of  ten  years  following  the  expiration  of  the  ten 
year  period  provided  in  the  first  ordinance. 

The  defendant  notified  the  plaintiff  that  it  would  decline  to 
accept  the  terms  of  said  ordinance;  and  that  it  would  cease  to 
furnish  the  city  and  its  inhabitants  with  natural  gas.  The 
plaintiff  thereupon  filed  its  petition  in  this  court  asking  that  the 
defendant  be  enjoined  from  ceasing  to  supply  natural  gas  to  the 
public  buildings  and  the  inhabitants  of  aaid  city.  The  answer 
of  the  defendant  does  not  controvert  the  allegations  of  the  peti- 
tion but  pleads  as  follows  as  a  defense : 


6M  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  v.  East  Ohio  Gas  Co.  [Vol.  VII,  N.  S. 

"Defendant  has  notified  the  plaintiff  that  it  would  decline 
to  accept  the  terms  of  said  ordinance ;  that  it  would  cease  to 
furnish  the  said  city  and  its  inhabitants  with  natural  gas;  in- 
tending thereby  entirely  to  relinquish  and  surrender  the  privi- 
leges and  franchise  granted  to  it  by  the  ordinance  of  Septem- 
ber 26,  1898,  and  wholly  to  retire  from  said  city.  This  intention 
defendant  now  confirms. 

"Defendant  therefore  asks  that  the  temporary  injunction 
heretofore  granted  herein  may  be  dissolved,  and  that  this  defend- 
ant may  be  permitted  to  surrender  said  privilege  and  franchise, 
to  remove  its  mains  and  pipes  from  the  streets  and  other  public 
places  of  said  city,  restoring  the  same  to  their  present  condition, 
and  to  retire  from  the  business  of  furnishing  natural  gas  to  the 
said  city  of  Akron  and  its  inhabitants." 

The  issue  is  narrowed  down  to  the  question,  whether  the  de- 
fendant can  now  relinquish  and  surrender  the  privileges  ac- 
corded it  under  the  laws  of  this  state  and  ordinance  of  the 
plaintiff  consenting  to  the  laying  of  defendant's  pipes  in  the 
city,  and  wholly  retire  from  the  business  of  furnishing  natural 
gas  to  the  plaintiff  and  its  inhabitants.  Has  the  plaintiff  the 
right  to  require  the  defendant  to  remain  in  the  city  in  the  exer- 
cise of  its  franchise  to  furnish  natural  gas,  whether  the  com- 
pany is  willing  so  to  do  or  notT 

The  right  of  the  defendant  to  exist  as  a  legal  entity  to  prose- 
cute the  purposes  of  its  organization  was  derived  from  the  state 
pursuant  to  statutes  providing  for  the  incorporation  of  com- 
panies. 

Formerly,  under  the  old  Constitution,  corporations  could  be 
created  by  special  acts  of  the  Legislature.  These  were  called 
charters.  Under  the  present  Constitution  corporations  must  be 
formed  under  the  general  laws.  The  Legislature  has  provided 
in  detail  what  shall  be  done  by  an  aggregation  of  individuals 
who  desire  to  incorporate.  Having  complied  with  the  pro- 
visions of  the  law  the  Secretary  of  State  issues  the  articles  of 
incorporation. 

Where  the  Legislature  acts  directly  in  granting  the  privi- 
leges of  being  a  body  corporate  the  character  of  the  right  is  more 
apparent  than  where  the  body  is  created  under  a  general  law. 
The  special  privilege  emanates  directly  from  the  government  by 


NISI  PKIUS  REPORTS— NEW  SERIES.  557 

1908.]  Akron  v.  East  Ohio  Gae  Co. 

a  special  legislative  enactment,  and  has  none  of  the  appearance 
of  a  right  rather  than  a  privilege. 

The  fact  that  now  no  action  of  a  public  "body  like  a  Legisla- 
ture, acting  specially,  confers  a  privilege  which  it  may  with- 
.  hold  if  it  chooses,  does  not  make  the  securing  of  the  right  to  be 
a  body  corporate  by  conforming  to  the  provisions  of  a  general 
law  any  less  a  franchise.  In  the  one  case  it  may  be  said  to  have 
been  granted  and  in  the  other  obtained. 

Where  such  incorporation  is  for  purposes  of  a  public  nature, 
to  meet  a  public  necessity,  or'  of  such  a  character  that  having 
been  once  undertaken  it  can  not  be  discontinued  without  preju- 
dice to  the  public  interest,  the  franchise  takes  upon  itself  the 
character  of  a  contract  between  the  state  from  whom  the  fran- 
chise issued  and  the  body  corporate  existing  and  operating  un- 
der it. 

No  case  exactly  like  the  orle  at  bar  has  been  found,  but  the 
rules  established  by  some  of  the  courts  for  construing  franchises 
similar  to  that  of  defendant  may  apply. 

It  is  not  contested  but  what  the  defendant  could  be  compelled 
to  resume  furnishing  gas  to  some  portion  of  the  city  which  it 
might  attempt  to  abandon.  Cases  like  State  v.  H.  &  N.  H.  R.  R., 
29  Conn.,  539.  it  is  claimed  do  not  apply.  In  that  case  the 
Hartford  and  New  Haven  Railroad  Company  was  chartered  to 
construct  and  operate  a  railroad  from  Hartford  to  the  navigable 
waters  of  New  Haven  harbor.  A  steamboat  company  was  after- 
wards chartered  which  connected  with  the  harbor  terminus  and 
was  a  great  convenience  to  the  public  The  railroad  changed  its 
route  and  attempted  to  discontinue  running  to  the  harbor.  It 
was  compelled  by  mandamus  proceedings  to  continue.  That  was 
an  attempt  to  abandon  a  part  of  a  railroad.  In  this  case  there 
is  an  attempt  so  claimed  by  defendant  to  abandon  all  its  rights 
in  the  city  of  Akron  and  not  a  part.  Hence  it  is  elaimod  that 
the  doctrine  of  that  and  similar  eases  is  not  applicable. 

The  leading  cases,  where  the  character  of  the  business  of  sup- 
plying gas  or  water  to  cities  and  their  inhabitants  are  con- 
sidered, have  arisen  from  an  attempt  of  companies  operating 
under  franchises  to  carry  on  such  business  to  dispose  of  and 
abandon  their  franchises  by  contract. 


658  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  v.  But  Ohio  Gas  Co.  [Vol.  VII,  N.  a 

Chicago  Gas  Light  Co.  v.  Gas  Light  Co.,  121  III.,  530  (2  Am. 
St.  Rep.,  124),  was  a  case  where  one  gas  company  by  contract 
agreed  with  another  not  to  furnish  gas  to  any  persons  within 
a  certain  part  of  the  territory  of  the  city  where  it  had  been  au- 
thorized to  furnish  gas.  The  same  may  be  said  of  this  case  as 
of  the  Hartford  &  New  Haven  Railroad  case,  that  is,  that  there 
was  a  mere  attempt  to  abandon  a  part  of  the  field  of  operation 
and  not  the  entire  field.  The  case  is  cited  for  the  reason  that  it 
defines  the  character  of  the  business  of  furnishing  gas  and  also 
for  the  reasons  given  for  denying  the  gas  company  the  right  to 
so  abandon  a  part  of  the  field  of  its  operations. 

It  was  held  in  that  case  that  the  manufacture  and  distribution 
of  illuminating  gas,  under  legislative  authority,  in  the  streets  of 
a  town,  or  city,  is  the  exercise  of  a  franchise  belonging  to  the 
state.  Such  a  franchise  is  conferred  for  the  benefit  of  the  public 
as  well  as  of  the  company.  The  court  said  in  the  dictum  that  the 
business  was  of  a  public  nature,  and  held  that  by  such  a  con- 
tract it  bound  itself  to  avoid  the  performance  of  a  public  duty 
and  such  contract  was  against  public  policy,  ultra  vires  and  void.. 
This  doctrine  was  reaffirmed  in  People  v.  Chicago  Gas  Trust  Co., 
130  111.,  268. 

In  Peoria,  etc.,  B.  B.  Co.  t.  Coal  Volley  Mining  Co.,  68  111., 
489,  it  was  held  that  the  duties  which  railroad  companies  owed  to 
the  public,  and  which  are  the  considerations  upon  which  their 
privileges  are  conferred,  can  not  be  avoided  by  neglect,  refusal 
or  agreement  with  other  persons  or  corporations.  Therefore,  any 
contract  to  prevent  the  faithful  discharge  of  any  such  duties 
it-ill  be  against  public  policy  and  void. 

It  has  also  been  held  in  that  state  that  the  sale  of  the  powers 
of  one  company  to  another  without  authority  of  the  Legisla- 
ture is  against  public  policy,  and  courts  will  not  assist  to  pro- 
mote the  transfer.     Hays  v.  Ottawa,  etc.,  B.  B.,  61  111.,  422. 

A  case  where  an  attempt  was  made  by  a  public  service  corpo- 
ration to  disDose  of  its  entire  franchise  was  Thomas  v.  The  West 
Jersey  B.  B.  Co.,  101  U.  S.,  71  (Book  25,  L.  Ed.,  950),  where 
it  was  held : 

"  The  franchise  and  powers  granted  to  such  corporations 
are,  in  a  large  measure,  designed  to  be  exercised  for  the  public 


NISI  PRIUS  REPORTS— NEW  SERIES,  660 

1998.]  Akron  t.  Bast  Ohio  Qai  Co. 

good,  and  this  exercise  of  them  is  the  consideration  of  the  pub- 
lic grant.  Any  contract  by  which  the  corporation  disables  it- 
self to  perform  those  duties  to  the  public,  or  attempts  to  ab- 
solve it  from  their  obligation  without  the  consent  of  the  state, 
is  a  violation  of  its  contract  with  the  state  and  is  forbidden  by 
public  policy  and  is,  therefore,  void." 

Mr.  Justice  Miller  said: 

"Where  a  corporation  like  a  railroad  company  has  granted  to 
it  by  charter  a  franchise  intended  in  large  measure  to  be  exer- 
cised for  the  public  good,  the  due  performance  of  those  func- 
tions being' the  consideration  of  the  public  grant,  any  contract 
which  disables  the  corporation  from  performing  those  functions, 
which  undertakes  without  the  consent  of  the  state  to  transfer 
to  others  the  rights  and  powers  conferred  by  the  charter,  and 
to  relieve  the  grantees  of  the  burden  which  it  imposes,  is  a 
violation  of  the  contract  with  the  state  and  is  void  as  against 
public  policy." 

In  New  Orleans  Oas  Company  v.  Louisiana  Light  Company, 
115  U.  S.,  650  (29  L.  Ed.,  516,  read  520),  it  was  said: 

"The  manufacture  of  gas  and  its  distribution  for  public  and 
private  use,  by  means  of  pipes  laid,  under  legislative  authority, 
in  the  streets  and  ways  of  a  city,  is  not  an  ordinary  business  in 
which  anyone  may  engage,  but  is  a  franchise  belonging  to  the 
government,  to  be  granted,  for  the  accomplishment  of  public 
objects,  to  whomsoever  and  upon  what  terms  it  pleases.  It  is  a 
business  of  a  public  nature,  and  meets  a  public  necessity,  for 
which  the  state  may  make  provision.  It  is  one  which,  so  far 
from  affecting  the  public  injuriously,  has  become  one  of  th3 
most  important  agencies  of  civilization  for  the  promotion  of  the 
public  convenience  and  the  public  safety." 

In  New  Orleans  Water  Works  Co.  v.  Rivers,  115  U.  S-,  674 
(Book  29,  L.  Ed.,  525),  held  as  follows: 

"The  charter  of  the  New  Orleans  Water  Works  Company, 
granting  to  that  corporation  the  exclusive  privileges  of  supply- 
ing New  Orleans  and  its  inhabitants  with  pure  and  wholesome 
water  from  the  Mississippi  river,  by  moans  of  mains  and  pipe* 
placed  in  the  streets,  public  places,  and  lands  of  that  city — re- 
serving to  the  city  council  authority  to  grant  to  any  person,  con- 
tiguous to  that  stream,  the  privilege  of  laying  pipw  to  the  river, 
exclusively  for  his  use— constitutes  a  contract  within  the  mean- 


SUMMIT  COUNTY  COMMON  PLEAS. 


ing  of  the  contract  clause  of  th«  Constitution  of  the  United 
States." 

The  court,  per  Justice  Harlan  (page  527),  says: 

"The  New  Orleans  Water  Works  Company  was  in  existence 
before  the  adoption  of  the  present  Constitution  of  Louisiana, 
one  of  the  articles  of  which,  as  we  have  seen,  repeals  the  mo- 
nopoly features  in  the  charters  of  all  then  existing  corporations 
other  than  railroad  companies.  This  case  is,  therefore,  con- 
trolled by  the  decision  just  rendered  in  New  Orleans  Qas  Light 
Co.  v.  Louisiana  Light  and  Heat  Producing  and  Manufactur- 
ing Co.  The  two  are  not  to  be  distinguished  upon  principle; 
for  if  it  was  competent  for  the  state,  before  the  adoption  of  her 
present  Constitution,  as  we  have  held  it  was,  to  provide  for  sup- 
plying the  city  of  New  Orleans  and  its  people  with  illuminating 
gas  by  means  of  pipes,  mains  and  conduits  placed,  at  the  cost 
of  a  private  corporation,  in  its  public  ways,  it  was  equally  com- 
petent for  her  to  make  a  valid  contract  with  a  private  corpora- 
tion for  supplying,  by  the  same  means,  pure  and  wholesome 
water  for  like  use  in  the  same  city.  The  right  to  dig  up  and 
use  the  streets  and  alleys  of  Now  Orieaus  for  the  purpose  of 
placing  pipes  and  mains  to  supply  the  city  and  its  inhabitants 
with  water  is  a  franchise  belonging  to  the  state,  which  she  could 
grant  to  such  persons  or  corporations,  and  upon  such  terms,  as 
she  deemed  best  for  the  public  interest. 

"And  as  the  object  to  be  attained  was  a  public  one,  for  which 
the  state  could  make  provision  by  legislative  enactment,  the 
grant  of  the  franchise  could  be  accompanied  with  such  ex- 
clusive privileges  to  the  grantee,  in  respect  of  the  subject  of  the 
grant,  as  in  the  judgment  of  the  legislative  department  would 
best  promote  the  public  health  and  public  comfort  or  the  pro- 
tection of  public  and  private  property.  Such  was  the  nature 
of  the  plaintiff's  grant,  which,  not  being  at  the  time  prohibited 
by  the  Constitution  of  the  state,  was  a  contract,  the  obligation  of 
which  can  not  be  impaired  by  subsequent  legislation,  or  by  a 
change  in  her  organic  law.  It  is  as  much  a  contract  within  the 
meaning  of  the  Constitution  of  the  United  States,  as  a  grant  to 
a  private  corporation  for  a  valuable  consideration,  or  in  con- 
sideration of  public  services  to  be  rendered  by  it,  of  the  ex- 
clusive right  to  construct  and  maintain  a  railroad  within  cer- 
tain lines  and  between  given  points,  or  a  bridge  over  a  navigable 
stream  within  a  prescribed  distance  above  and  below  a  desig- 
nated point." 


NISI  PRIUS  REPORTS— NEW  SERIES.  5fll 

IMS.]  Akron  v.  East  Ohio  Gas  Co. 

An  enterprise  the  purpose  of  which  is  to  render  service  to  the 
public,  although  under  private  control,  is  a  guasi-public  busi- 
ness, and  not  one  in  which  every  one  may  engage  as  of  right, 
but  is  a  franchise;  and  when  not  forbidden  by  the  organic 
law  of  the  state,  may  be  granted  to  whomsoever  and  upon  what 
terms  the  ■  state  pleases.  New  Orleans  Water  Works  Co.  v. 
Rivers,  115  U.  S-,  674  (Book  29,  L.  Ed.,  525). 

In  Louisiana  Gas  Co.  v.  Citizens  Gas  Co.,  115  V.  S.,  683 
(Book  29,  L.  Ed.,  510,  513),  the  court  say: 

"Such  a  business  is  not  like  that  of  an  ordinary  corporation 
engaged  in  the  manufacture  of  articles  that  may  be  quite  as 
indispensable  to  some  persons  as  are  gas  lights.  The  former 
article  may  be  supplied  by  individual  effort,  and  with  their 
supply  the  government  has  no  such  concern  that  it  can  grant  an 
exclusive  right  to  engage  in  their  manufacture  and  sale.  But 
as  the  distribution  of  gas  in  thickly  populated  districts  is  a 
matter  of  which  the  public  may  assume  the  control,  service  ren- 
dered in  supplying  it  for  the  public  and  private  use  consti- 
tute su«h  public  services  as  (under  the  Constitution  of  Ken- 
tucky) authorized  the  Legislature  to  grant  to  the  defendant  the 
exclusive  privilege  in  question." 

To  the  same  effect  are  Shepard  v.  Wilwaukee  Gas  Light  Co., 
6  Wis.,  539;  City  of  St.  Louis  v.  St.  Louis  Gas  Light  Co.,  70 
Mo.,  69;  2  Dillon  on  Municipal  Corporations  (3d  Ed.),  Section 
691;  2  Morawetz  on  Private  Corporations,  Section  1129. 

A  later  case,  Gibbs  v.  Consolidated  Gas  Company  of  Baltimore 
City,  130  U.  S.,  396  (Book  32,  L.  Ed.,  979),  holds: 

"The  supplying  of  illuminating  gas  is  a  business  of  a  public 
nature,  to  meet  a  public  necessity;  and  where  such  business 
can  not  be  restrained  without  prejudice  to  the  public  interest, 
contracts  imposing  such  restraints,  however  partial,  will  not  be 
enforced  or  sustained,  because  in  contravention  of  public  policy. 

"A  corporation  can  not  disable  itself  by  contract  from  per- 
forming the  public  duties  which  it  has  undertaken;  nor,  by 
agreement,  compel  itself  to  make  public  accommodation  sub- 
servient to  its  private  interests." 

Chief  Justice  Fuller  on  page  985  says  (Book  32,  Tj.  Ed.) : 

"These  gas  companies  entered  the  streets  of  Baltimore,  under 
their  charters,  in  the  exercise  of  the  equivalent  of  the  power  of 


SC2  3PMM1T  COUNTY  COMMON  PLEA3.      

Akron  t.  East  Ohio  Ou  Co.  [Vol.  VII.  N.  8. 

eminent  domain,  and  are  to  be  held  as  having  assumed  an  obli- 
gation to  fulfill  the  public  purposes  to  subserve  which  they  were 
incorporated.  At  common  law  corporations  formed  merely  for 
the  pecuniary  benefit  of  the  shareholders  could,  by  a  vote  of 
the  majority  thereof,  part  with  their  property  and  wind  up 
their  business;  but  corporations  to  which  privileges  are  granted 
in  order  to  enable  them  to  accommodate  the  public,  and  in  the 
proper  discharge  of  whose  duties  the  public  are  interested  do 
not  come  within  the  rule." 

The  Supreme  Court  of  this  state  has  said  that  the  supplying 
of  natural  gas  to  municipal  corporations  and  their,  inhabitants 
is  a  public  use  or  service  (State  v.  Toledo,  48  0.  S.,  112-136-142). 
That  was  a  case  involving  the  right  of  the  city  to  supply  itself 
and  its  inhabitants.  Held:  That  it  could.  That  fixes  the  char- 
acter of  such  uses  in  Ohio,  and  the  state  giving  the  same  privi- 
lege to  a  corporation  will  surely  not  change  the  nature  of  that 
use. 

If  a  contract  made  by  a  gas  company,  by  which  it  divests  it- 
self of  the  privilege  of  furnishing  gas  to  a  community,  is  against 
public  policy,  is  ultra  vires  and  void,  the  logical  deduction  is 
that  any  other  effort  to  accomplish  the  same  object  would  be 
likewise  void  unless  on  account  of  the  unprofitableness  of  the 
enterprise  or  for  other  cause  it  has  been  a  failure.  The  stat- 
utory law  of  this  state  provides  for  the  incorporation  of  com- 
panies of  this  character  and  delegates  to  the  municipal  corpora- 
tions and  quasi-municipal  authorities  the  power  to  make  the 
terms  upon  which  such  corporations  shall  occupy  and  use  the 
highways  and  public  grounds,  and  pass  through  the  lands  of 
their  respective  jurisdictions,  for  the  purpose  of  exploiting  the 
public  enterprises  which  they  have  undertaken.  After  the  corpo- 
ration, in  furtherance  of  the  purposes  of  its  franchise,  has  be- 
gun the  supplying  of  a  public  need  whether  necessary  or 
created  by  the  suggestion  and  inducement  of  the  company  so 
proposing  to  minister  to  the  public  requirements  in  that  behalf, 
can  it  from  caprice  or  for  business  reasons  abandon  the  enter- 
prise t 

The  question  has  not  been  squarely  before  the  court  but  it  has 
been  suggested  that  the  only  reason  for  whieh  such  an  enter- 


NISI  PRIUS  REPORTS-NEW  SERIES.  £88 

1U08.]  Akron  v.  Bart  Ohio  Gas  Co. 

prise  could  be  abandoned  was  because  it  was  unremunerative 
and  unprofitable. 

In  Chicago  Gas  Light  Co.  v.  Gas  Light  Co.  it  was  said  (2  Am. 
St.  Rep.,  131) : 

"There  may  be  cases  where  a  corporation  may  abandon  a  pub- 
lic work  for  reasonable  cause,  but  this  is  a  very  different  thing 
from  disabling  itself,  by  contract,  from  the  performance  of  a 
duty  to  the  public." 

In  Oibbs  v.  Consolidated  Gas  Co.  of  Baltimore  the  court  said : 
"But  we  are  not  concerned  here  with  the  question  where,  if 
ever,  a  corporation  can  cease  to  operate  without  forfeiture  of 
its  franchises,  upon  the  excuse  that  it  can  not  go  forward  be- 
cause of  expense  and  want  of  remuneration. 

"There  is  no  evidence  in  this  record  of  any  such  state  of  case, 
and,  on  the  contrary,  it  appears  that  the  cost  of  the  manufacture 
of  gas  was  largely  below  the  price  to  be  charged  named  in  the 
stipulation  between  the  parties." 

The  interest  of  the  public  in  the) business  of  supplying  gas  to  it 
is  such  that  it  would  be  against  public  policy  to  allow  a  corpora- 
tion organized  for  the  purpose  of  so  supplying  gas  to  discontinue 
except  for  good  cause.  A  showing  that  the  business  is  unprofit- 
able or  for  other  good  and  sufficient  reasons  the  objects  of  the 
corporation  have  failed  might  excuse  a  fulfillment  of  its  obli- 
gations under  its  franchise  and  allow  it  to  dissolve  and  sur- 
render its  franchise,  but  even  in  such  an  event  the  public  in- 
terest may  be  such  that  the  business  should  be  kept  in  operation 
until  its  wants  are  supplied  by  other  means. 

If  the  defendant  in  this  case  were  organized  for  the  sole  pur- 
pose of  supplying  the  city  of  Akron  with  gas  and  were  attempt- 
ing to  abandon  the  enterprise  and  withdraw,  under  the  above 
holdings  of  the  court,  the  court  would  be  constrained  to  hold  that 
it  could  not.  But  this  is  not  a  case  of  an  entire  abandonment 
of  its  business.  The  East  Ohio  Gas  Company  only  seeks  to 
abandon  a  part  of  its  field  of  operation.  It  was  organized  to 
supply  gas  to  the  villages  and  cities  and  inhabitants  in  five 
counties  of  the  state,  which  were  chosen  originally  as  the  field 
of  operations,  and  one  other  county  has  been  added  by  amend- 


564  SUMMIT  COTJNTT  COMMON  PLEAS. 

Akron  v.  East  Ohio  Gas  Co.  [Vol.  VII,  N.  S. 

of  the  cities  in  the  district  composed  of  these  counties,  and  is 
now  preparing  to  supply  the  other  places  mentioned,  which  it 
has  prepared  to  do  by  laying  of  gas  mains  through  the  district. 

Both  parties  have  referred  to  the  ordinance  giving  defendant 
leave  to  use  the  streets  of  the  city  for  laying  its  pipes  as  the 
source  of  the  rights  and  obligations  of  both  parties.  This  may 
be  correct  in  part,  that  is,  as  to  all  the  matters  and  things  stipu- 
lated in  that  ordinance.  So  far  as  it  goes  it  is  a  contract  be- 
tween the  plaintiff  and  defendant,  but  neither  the  state  nor  the 
inhabitants  of  the  city  are  precluded  of  their  rights  by  the  ordi- 
nance contract. 

There  is  a  prior  and  controlling  contract  to  be  considered,  and 
that  is  the  franchise  granted  by  the  state  to  the  defendant. 
When  a  company  avails  itself  of  the  privileges  of  the  incorpora- 
tion laws  of  the  state  and  takes  advantage  of  statutory  privi- 
leges, such  as  provided  in  Section  3550,  whereby  it  is  privileged 
to  supply  gas  to  a  city,  and  for  that  purpose  to  lay  conductors 
or  pipes  therefor  in  the  streets,  it  has  acquired  a  valuable  privi- 
lege and,  it  being  of  a  public  character,  has  assumed  an  obliga- 
tion that  requires  it.  where  the  project  has  once  been  entered 
upon,  to  continue  it  until  relieved  by  the  power  which  granted 
the  privilege. 

The  Legislature  could  by  general  laws  grant  a  gas  company 
the  right  to  use  the  streets  without  municipal  control  and  pro- 
vide its  own  regulations  governing  the  supplying  of  gas.  The 
streets  and  other  public  grounds  of  a  municipality  belong  to 
the  public  and  are,  by  the  state,  put  into  the  care,  custody  and 
control  of  the  municipal  authorities  for  care  and  preservation 
for  the  uses  of  their  dedication.  Without  legislative  authority 
the  municipality  can  not  grant  rights  in  public  property  of  that 
kind  to  interfere  with  public  uses. 

It  was  therefore  natural  that  the  state  having  placed  the 
care  and  control  of  the  streets  in  the  municipality  should  also 
constitute  it  an  agency  of  the  state  to  prescribe  the  manner  in 
which  these  corporations  for  public  service  could  occupy  the 
streets  for  prosecuting  their  business.  By  Section  3550  and 
like  statutes,  the  state  grants  the  right  to  occupy  the  public 


NISI  PRIUS  REPORTS— NEW  8ERIE8.  565 

1908.]  Akron  v.  Eaot  Ohio  Gas  Co. 

ment  of  its  charter.  It  is  now  actively  supplying  gas  in  four 
grounds,  but  qualities  the  grant  by  a  provision  that  it  shall 
be  with  the  consent  of  the  municipal  authorities  and  under 
such  reasonable  regulations  they  may  prescribe. 

Before  a  publie  service  company  like  a  gas  or  water  com- 
pany can  begin  the  supplying  of  the  inhabitants  of  a  city,  it 
has  virtually  made  two  contracts  under  which  it  has  assumed 
divers  and  sundry  obligations,  one  with  the  state  by  which  it 
assumes  the  duties  devolving  upon  it  to  render  the  public  serv- 
ice which  the  purposes  of  its  organization  have  denned,  and 
the  other  with  the  municipality  by  which  it  has  assumed  to  carry 
out  the  things  on  its  part  agreed  to  be  done  as  set  forth  in  the 
ordinance  by  which  the  consent  of  the  municipal  authorities 
was  obtained. 

The  East  Ohio  Gas  Company  when  it  secured  its  charter 
proposed  .to  supply  the  cities  of  a  certain  territory  or  district 
of  the  state  with  natural  gas.  The  state  by  the  provisions  of 
the  statutes  passed  for  the  benefit  of  such  companies  gave  it 
the  right  to  occupy  the  streets  of  these  cities,  provided  it  se- 
cured the  consent  therefor  from  the  municipal  authorities,  tt 
secured  such  consent  from  the  municipal  authorities  of  Akron 
and  began  supplying  the  inhabitants  of  Akron  with  gas.  The 
grant  of  the  state  was  then  complete  and  the  contract  fully  en- 
tered into. 

It  can  not  without  the  consent  of  the  state  refuse  to  supply 
the  inhabitants  of  that  city  without  violating  the  contract.  The 
contract  with  the  state  is  entire ;  it  is  not  composed  of  separate 
grants,  but  there  has  been  one  grant  to  this  company  giving  it 
rights  in  all  the  public  grounds  of  all  the  cities  of  the  entire  dis- 
tract or  territory  selected  by  it  for  the  prosecution  of  its  busi- 
ness. 

It  may  secure  consents  in  one  or  more  cities,  as  its  officials 
desire,  but  having  once  secured  such  consent  in  any  of  these, 
and  entered  into  the  business  of  furnishing  gas,  it  can  not  cease 
from  furnishing  gas  in  such  cities  to  the  extent  therein  it  has 
begun  furnishing  the  inhabitants  thereof  without  the  consent 
of  the  state. 


666  SUMMIT  COUNTY  COMMON  PLEAS. 

Akron  v.  Bast  Ohio  Gas  Co.  [Vol.  Til,  N.  & 

It  might  as  well  claim  the  right  to  cease  furnishing  gas  on  a 
particular  street,  which  it  has  occupied  and  on  which  it  has 
begun  supplying  the  inhabitants  in  a  city,  as  to  cease  supply- 
ing any  of  the  cities  in  the  district  when  it  has  once  begun  sup- 
plying them. 

Taking  the  strict  construction  of  defendant's  counsel  put  on 
the  holding  of  the  Supreme  Court  in  the  first  syllabus  of  Gas 
Light  Co.  v.  Zanesville,  47  0.  S.,  35,  as  correct,  the  defendant 
can  be  compelled  by  a  mandatory  injunction  to  furnish  gas  so 
long  as  it  continues  to  exercise  and  enjoy  its  franchises  as  a 
gas  company. 

In  that  instance  the  franchise  covered  only  the  territory  em- 
braced within  the  limits  of  that  city,  and  the  decree  of  the  dis- 
trict court,  which  was  affirmed,  was  framed  to  cover  the  boun- 
daries of  its  franchise,  to-wit,  "within  the  city  of  Zanseville." 

Applied  to  the  case  at  bar,  the  Zanesville  case  would  require 
the  defendant  to  continue  to  supply  natural  gas  to  the  plaintiff 
and  its  inhabitants  so  long  as  "it  continues  to  exercise  its  fran- 
chises within  the"  territory  or  district  chosen  by  it  in  its 
articles  of  incorporation  within  which  to  carry  on  its  purposes 
of  supplying  consumers  with  natural  gas. 

Following  that  ease  literally  this  court  would  be  compelled  to 
hold  that  the  defendant  must  continue  to  supply  the  plaintiff 
and  its  inhabitants  with  natural  gas  so  long  as  it  continues  to 
exercise  its  franchise. 

The  regulation  of  the  price  which  defendant  may  charge  for 
natural  gas  in  the  city  of  Akron  as  established  by  the  ordinance 
of  October  7th,  1908,  was  made  pursuant  to  Section  2478,  Re- 
vised Statutes. 

In  State  v.  Gas  Light  &  Coke  Co.,  18  0.  S.,  262,  it  was  held : 

"The  intention  of  the  Legislature  in  empowering  city  councils 
to  regulate  the  price  of  gas,  was  to  limit  incorporated  gas  com- 
panies to  fair  and  reasonable  prices  for  the  gas  which  they  might 
furnish  for  public  or  private  use.  This  discretionary  power  of 
regulation  might  have  been  vested  elsewhere;  but.  wherever 
vested,  it  must  be  exercised  ia  good  faith  for  the  purpose  for 
which  it  was  given.1' 


NISI  PRIUS  BEPORTS— NEW  SEBIES.  687 

1808.]  State,  ex  rel,  v.  Solium  et  al. 

Bad  faith  of  a  council  in  passing  an  ordinance  fixing  the  price, 
inadequacy  of  price,  and  arbitrary  and  unreasonable  regulations 
are  a  proper  subject  of  inquiry  when  put  in  issue.  State  v.  Gas 
Light  &  Coke  Co.,  supra;   State  v.  Gas  Co.,  37  0.  S..  45. 

Not  being  in  issue  in  this  case,  the  decree  must  be  for  the 
plaintiff  upon  the  facts  and  pursuant  to  the  law  of  the  case. 


FORM  OF  COUNTY  COMMISSIONERS'  ANNUAL  REPORT. 

Common  Pleas  Court  of  Fayette  County. 

State,  ex  rel  Record  Publishing  Co.,  v.  Sollars  et  al.# 
Decided,  September  35,  1947. 

County  ComnUsHoners — Annual  Reports  of— Construction  of  the  Phrase 
"Itemized  as  to  Amount"— Purpose  of  the  Statute — Section  911. 

It  Is  essential,  under  Section  917  as  amended,  requiring  that  the 
county  commissioners  make  an  annual  report  in  writing  to  the 
common  pleas  court,  that  payments  made  by  them  be  "itemized" 
to  the  extent  of  giving  the  names  of  persons  to  whom  money  Is 
paid,  the  aggregate  amount  paid  for  any  single  purpose,  and  the 
purpose  for  which  payment  was  made. 

John  Logan  and  Gregg  &  Gregg,  for  relator. 
E.   L.   Bush,  Prosecuting   Attorney,   and  Humphrey   Jones, 
contra. 

Newby,  J. 

The  case  of  the  State  of  Ohio,  on  relation  of  the  Record  Pub- 
lishing Company,  against  Charles  Sollars  et  al,  as  county  com- 
missioners of  this  county,  and  others,  is  brought  to  enjoin  the 
publication  of  the  commissioners'  financial  statement.  The  court 
is  asked  to  enjoin  the  publication  because,  as  is  claimed,  the  re- 
port as  filed  does  not  conform  to  the  requirements  of  the  statute. 

The  statute  which  provides  for  the  making  of  the  report  is 
Section  917,  Revised  Statutes.    That  section  provides  that: 

*  For  a  parallel  construction  of  the  same  statute,  Bee,  News  Publish- 
ing Co.  v.  Commitiionert  of  Pike  County,  10  C.  C— N.  8.,  401. 


608  FAYETTE  COUNTY  COMMON  PLEAS. 

State,  ex  rel,  v.  Sollars  et  al.  [Vol.  VII,  N.  8. 

"The  county  commissioners,  annually,  on  or  before  the  third 
Monday  in  September,  shall  make  a  detailed  report  in  writing, 
itemized  as  to  amount,  to  whom  paid  and  for  what  purpose,  to 
the  court  of  common  pleas  of  the  county,  of  their  financial  trans- 
actions during  the  next  year  preceding  the  time  of  making  such 
report. ' ' 

The  objection  to  the  report  is  that  it  is  not  itemized  in  all  re- 
spects as  required  by  the  statute.  The  statute  has  been  amended 
(97  0.  L.,  167),  by  the  addition  of  the  words  "itemized  as  to 
amount,  to  whom  paid  and  for  what  purpose."  The  statute  as 
it  existed  prior  to  the  amendment  simply  required  "a  detailed 
statement  of  the  financial  transactions  of  the  commissioners  dur- 
ing the  preceding  year. 

While  the  statute  was  in  this  form  the  Supreme  Court,  in  the 
case  of  State  v.  Washington  County,  56  Ohio  St.,  631,  held  that 
the  statute  did  not  require  a  specific  statement  of  each  item  of  ex- 
penditure, or  the  name  of  the  person  or  persons  to  whom  paid. 
In  that  ease  the  court  said,  in  substance,  that  while  such  facts 
might  properly  appear  in  a  detailed  statement,  yet  a  much  less 
specific  and  extended  subdivision  would  satisfy  the  statute. 

This  report  is  as  specific  and  more  specific  in  fact  than  the  one 
held  sufficient  by  the  Supreme  Court  in  State  v.  Washington 
County,  supra,  but  the  authority  of  this  decision  has  been 
nullified  by  the  amendment  since  made  to  the  statute  requiring 
the  detailed  report  to  be  "itemized  as  to  amount,  to  whom  paid 
and  for  what  purpose."  The  statute  now  requires  greater  pre- 
cision and  detail  than  formerly. 

Upon  examination  of  the  report  before  me,  I  conclude  that  it 
does  not  conform  to  the  requirements  of  the  statute  in  this,  that 
in  some  instances  the  report  fails  to  show  for  what  purpose  funds 
were  expended. 

Under  the  heading  "Justices'  and  Mayors'  Courts"  will  be 
found  the  following  statements:  "C.  C.  Bateman,  Justice,  $71.- 
65;  D.  J.  Barber,  Constable,  $13.10;  C.  C.  Smith,  Marshal. 
$130.15";  and  so  on  through  a  long  list. 

The  report  fails  to  state  for  what  purpose  the  money  was  paid 
to  the  officers  named,  and  in  that  resj>eet  does  not  meet  the  re- 
quirements of  the  statute  as  to  definiteness.     It  is  not  stated 


NISI  PRIUS  REPORTS— NEW  SERIES.  56fl 

1908.]  State,  ex  rel,  v.  Sbllaro  et  al. 

whether  the  money  was  paid  to  these  officials  for  their  fees  earned 
in  criminal  cases  or  in  civil  cases  or  for  police  duty  or  for  what 
purpose. 

And  again,  further  on  in  the  report,  under  the  heading 
"Miscellaneous  Expenditures"  we  find  a  number  of  amounts 
paid  to  different  members  of  the  bar,  noted  in  the  report  as  to 
some  of  them  as  "defending,"  without  stating  whether  it  was 
for  defending  indigent  prisoners,  or  for  services  for  defending 
civil  suits  against  the  commissioners  or  other  county  officers, 
while  as  to  others  no  indication  whatever  is  given  as  to  the  pur- 
pose for  which  the  payments  were  made. 

It  is  contended  by  counsel  for  the  plaintiff  that,  to  fulfill  tho 
requirements  of  the  statute,  the  report  should  show  the  dates 
of  the  payments.  Take,  for  instance,  the  first  item  referred  to, 
"C.  C.  Bateman,  Justice,  $71.65,"  the  date  of  that  payment 
should  be  stated,  and  if  that  item  is  made  up  of  several  pay- 
ments, it  is  claimed  the  date  of  each  payment  and  the  amount  of 
each  payment  should  be  stated,  and  it  does  not  satisfy  the  stat- 
ute to  state  the  aggregate  of  the  payments  and  omit  dates. 

I  do  not  think  this  contention  well  founded,  provided  the  aggre- 
gate amount  was  paid  for  a  single  purpose,  for  the  statute  goes 
no  farther  than  to  require  that  the  name  of  the  person  receiv- 
ing the  money,  the  amount  paid  and  the  purpose  for  which  paid 
be  stated,  and  does  not  require  the  dates  and  amounts  of  several 
payments  to  one  person  for  a  single  purpose  to  be  given,  but 
permits  the  several  payments  to  be  stated  in  the  aggregate,  be- 
cause by  such  a  statement  the  public  are  advised  as  to  the 
amount  paid,  the  name  of  the  person  to  whom  paid,  and  the  pur- 
pose for  which  paid,  and  the  detail  contended  for  is  not  neces- 
sary to  serve  any  purpose  of  the  statute. 

The  commissioners'  statement,  in  respect  to  the  purposes  of 
the  payments  as  above  pointed  out,  is  not  in  accordance  with  the 
form  prescribed  by  the  Auditor  of  State,  nor  as  required  by  the 
statute  governing  the  matter.  I  do  not  hold,  however,  that  the 
Auditor  of  State  and  the  bureau  of  inspection  and  supervision 
of  public  offices  have  the  right,  as  argued  by  counsel  for  defend- 
ants, to  prescribe  a  form  for  making  out  these  reports. 


BTO  PAYETTE  COUNTY  COMMON  PLEAS. 

State,  ex  rel,  T.  Sollara  «t  *1.  [Vol.  Til,  N.  a 

The  statute  prescribes  the  form  and  what  the  report  shall  con- 
tain, what  information  it  shall  give  the  public,  and  the  purpose 
of  the  legislation  contained  in  Section  181a-2,  Revised  Statutes, 
is  that  these  officers  shall  prepare  a  form  in  accordance  with  the 
statute  and  submit  it  to  county  auditors  for  their  guidance,  to 
the  end  that  thereby  uniformity  may  be  secured  in  the  making 
of  the  reports  for  the  different  counties  of  the  state. 

The  form,  however,  which  was  submitted  to  the  auditor  in  this 
case  by  the  Auditor  of  State  is  faulty  and  indefinite  in  this :  un- 
der the  heading  "Justices'  and  Mayors'  Courts,"  we  find  the  fol- 
lowing, "Allowances  to  Justices  and  Mayors,  etc.,  R.  H.  Parker, 
$62.50."  And  then  under  "Allowances  to  Constables,  etc.," 
it  is  stated  that  a  marshal  and  a  constable  each  received  sums  of 
money. 

The  form  furnished  states  that  the  money  was  paid  to  these 
officials  for  "allowances,"  still  I  think  it  should  be  more  specific 
by  stating  what  the  allowances  were  for,  and  whether  under  the 
statutes  for  official  fees  earned,  or  for  what  other  purpose. 
The  report,  in  order  to  fully  and  properly  inform  the  public, 
ought  to  specify  the  authority  for  these  payments  by  referring 
to  the  section  of  the  statute  granting  the  authority.  I  think  that 
necessary  to  show  fully  the  purpose  of  the  payment. 

However,  it  is  immaterial  whether  the  model  sent  out  by  the 
Auditor  of  State  is  sufficient  or  not,  because  the  report  in  this 
case  does  not  come  up  to  the  model  or  the  statute.  I  conclude 
that  the  report,  by  failing  in  the  instances  pointed  out,  to  show 
for  what  purpose  the  money  was  .paid  to  certain  officers  and  at- 
torneys named,  does  not  satisfy  the  statute,  and  the  report  should 
be  either  withdrawn  or  another  filed.  At  any  rate,  it  is  not  such 
a  report  as  the  commissioners  are  authorized  to  publish  in  any 
paper,  because  it  does  not  convey  to  the  tax-payers  the  informa- 
tion which  the  statute  entitles  them  to  receive  from  the  report. 
A  temporary  injunction  will  be  allowed  accordingly. 


NISI  PRIUS  REPORTS— NEW  SERIES. 

State  v.  L.  8,  ft  H.  S.  Ry. 


PROSECUTION  UNDER.  THE  STATE  AUTOMATIC 
COUPLER.  ACT. 

Common  Pleas  Court  of  Brie  County. 

The  State  op  Ohio  v.  Lake  Shore  &  Michigan  Southern 
Railway  Company. 

Decided,  November,  1908. 

Automatic  Coupler* — Federal  and  State  Lawn  with  Reference  to,  not 
in  Conflict— Constitutionality  of  the  Btate  Statute— Proceedings 
Thereunder  of  a  Civil  nature— 98  0.  L„  75. 

1.  The  state  automatic  coupler  act  (98.0.  L.,  75)  is  not  In  conflict  with 

the  federal  act  relating  to  the  oame  subject,  and  la  not  unconsti- 
tutional because  relating  to  the  same  subject-matter. 

2.  Proceedings  under  the  state  act  are  civil  In  their  nature,  and  guilty 

knowledge  and  Intention  are  therefore  not  essential  elements  of 
the  offense. 

E.  0.  Harrison,  of  counsel  for  the  Attorney-General,  and 
E.  S.  Stephens,  Prosecuting  Attorney  of  Erie  County,  for  the 
State  of  Ohio. 

Doyle  &  Lewis,  for  defendants. 

Reed,  J. 

On  June  17,  1907,  the  plaintiff  filed  this  action  in  the  Court 
of  Common  Pleas  of  Erie  County,  Ohio,  setting  forth  that  the 
defendant,  the  Lake  Shore  &  Michigan  Southern  Railway  Com- 
pany, is  a  corporation  duly  and  legally  organized  under  the 
laws  of  the  state  of  Ohio,  and  engaged  in  the  railroad  business, 
owning,  operating  and  maintaining  a  line  of  railroad  running 
in  and  through  Erie  county,  Ohio.  That  at  the  time  men- 
tioned in  the  petition  it  was  a  common  carrier  engaged  in  trans- 
porting passengers  and  freight  by  its  railroad. 

The  plaintiff  sets  forth  as  and  for  its  cause  of  action  against 
the  defendant  that  on  February  19,  1907,  the  defendant  com- 
pany, in  violation  of  an  act  of  the  General  Assembly  of  the 
state  of  Qbio,  passed  March  19,  1906,  entitled  "An  act  to  pro- 


ERIE  COUNTY  COMMON  PLEAS. 


Slate  v.  h.  8.  ft  M.  R  Ry.  [Vol.  VII,  N.  S. 

mote  the  safety  of  employes  and  travelers  upon  railroads  by 
compelling  common  carriers  by  railroad  in  the  state  of  Ohio, 
to  equip  their  cars  with  automatic  couplers,  sill  steps,  grab 
irons,  and  continuous  brakes"  (98  0.  L.,  75),  hauled  over  its 
line  of  railroad  in  Erie  county,  from  a  point  at  the  intersection 
of  Columbus  avenue  and  Railroad  streets  to  the  Kelly  Island 
Lime  &  Transportation  Co.  's  tracks  in  the  city  of  Sandusky,  a 
distance  of  about  2700  feet,  L.  S.  &  M.  S.  car  D-38591 ;  that 
the  automatic  coupler  on  this  car  was  at  the  time  out  of  order, 
defective  and  broken ;  that  the  coupling  chain  clevis  and  lifting 
pin  on  the  A  end  of  said  car  were  broken  and  inoperative,  ne- 
cessitating, in  case  of  coupling  it  with  another  car,  a  man  going 
between  the  ears  to  make  the  coupling;  that  this  car  by  reason 
of  its  broken  coupler  would  not  couple  automatically  by  im- 
pact, and  that  when  coupled  with  another  ear  could  not  be  un- 
coupled except  by  a  man  going  between  the  ears;  and  for  this 
violation  of  the  law  the  plaintiff  seeks  to  recover  the  penalty 
of  #100  prescribed  by  the  act  for  its  violation. 

It  is  admitted  that  the  defendant  is  a  corporation  duly  or- 
ganized under  the  laws  of  the  state  of  Ohio;  that  on  or  about 
the  19th  day  of  February,  1907,  the  defendant  hauled  on  its 
line  of  railroad  from  a  point  at  the  intersection  of  Columbus 
avenue  and  Railroad  street  in  the  city  of  Sandusky,  in  an 
easterly  direction,  to  the  tracks  of  the  Kelly  Island  Lime  & 
Transportation  Co.,  in  the  city  of  Sandusky,  Ohio,  a  particular 
car  known  as  L.  S.  &  M.  S.  car  D-38591 ;  and  that  at  the  time 
the  uncoupling  chain  on  one  end  of  the  car  was  broken,  and 
the  coupler  was  inoperative. 

The  defendant  claims  that  this  car  was  loaded  with  coal  at 
the  Bradley  mines  on  the  line  of  the  Lake  Erie  &  Western  Rail- 
way Co.  and  consigned  to  the  Kelly  Island  Lime  &  Transporta- 
tion Co.  at  Sandusky,  Ohio  (but  the  admitted  facts  are  that  it 
was  consigned  to  the  Kunz-Smith  Coal  Co.  at  Sandusky,  Ohio) ; 
that  this  car  was  transferred,  to  the"Ba.ltimore  &  Ohio  railroad 
at  Newton  Falls,  Ohio,  and  by  it  transported  to  Sandusky,  Ohio. 
The  defendant  claims  that  this  ear  was  delivered  to  it  by  the  B. 
&  0.  Railroad  Co.  a  short  distance  from  the  tracks  of  the  Kelly 


NISI  PRIUS  REPORTS— NEW  SERIES.  578 

IMS.]  State  v.-L.  S.  4  M.  S.  Ry. 

Island  Lime  &  Transportation  Co.;  that  it  was  transferred  to 
these  tracks  where  it  was  unloaded  and  inspected,  and  the  de- 
fect in  said  coupling  was  then  and  for  the  first  time  discovered. 
It  claims  that  the  ear  was  in  no  manner  moved  or  transported 
except  as  was  necessary*  to  place  said  car  on  its  repair  tracks. 
It  claims  that  it  had  no  knowledge  of  the  defective  condition 
of  said  coupling  prior  to  the  inspection  made  immediately  upon 
the  unloading  of  said  car  while  on  the  tracks  of  the  Kelly  Island 
Lime  &  Transportation  Co.  That  immediately  upon  discover- 
ing said  defective  condition  the  car  was  placed  upon  the  repair 
tracks  where  the  defective  coupling  was  promptly  repaired.  It 
claims  it  has  used  all  due  care  in  inspecting  this  car  after  re- 
ceiving it;  that  at  no  time  was  the  car  moved  or  transported 
by  it  after  it  had  knowledge  of  its  defective  condition,  and 
that,  therefore,  it  has  not  violated  the  act  of  March  19,  190,6. 
and  the  State  is  not  entitled  to  recover  the  penalty  sued  for. 

A  jury  was  waived,  and  by  agreement  of  the  parties  the  case 
was  submitted  to  the  court  upon,  an  agreed  statement  of  facts, 
and  the  testimony  taken  by  agreement  in  the  absence  of  the 
court. 

In  the  stenographic  report  of  the  testimony  which  was  handed 
to  the  court  there  appears  objection  and  exceptions  to  the  in- 
troduction of  certain  testimony,  questions  calling  for  conclu- 
sions, and  answers  which  clearly  state  conclusions.  The  re- 
port shows  that  these  objections  were  overruled  and  all  testi- 
mony .allowed  to  go  in,  some  of  which  is  clearly  incompetent 
and  should  not  be  considered  by  the  court.  This  incompetent 
testimony  is  utterly  disregarded"  by  the  court,  and  is  not  con- 
sidered at  all  in  reaching  the  conclusions  which  I  have  reached 
in  this  case.  It  is  not  necessary  to  specifically  point  out  these 
questions  and  answers  which  the  court  holds  to  be  incompe- 
tent; they  are  apparent  from  an  examination  of  the  questions 
and  answers  themselves. 

The  facts  as  agreed  to  in  the  ease,  other  than  those  admitted 
by  the  pleadings,  are  as  follows: 

1.  It  is  hereby  agreed  by  the  parties  hereto  that  the  d1- 
fendant,  the  Lake  Shore  &  Michigan  Southern  Railway  Com- 


!  COUNTY  COMMON  PLEAS. 


State  v.  L.  8.  &  M.  S.  Ry.  [Vol.  XI,  N.  8. 

puny,  is  and  was  at  the  time  of  the  commencement  of  this  ac- 
tion a  corporation  organized  under  the  laws  of  the  state  of  Ohio* 
and  a  common  carrier  engaged  in  transporting  passengers  and 
freight  by  a  railroad  operated  and  conducted  by  it  in  the  state 
of  Ohio. 

2.  That  the  said  defendant  on  or  about  the  19th  day  of 
February,  1907,  hauled  on  its  line  of  railroad  from  a  point  at 
the  intersection  of  Columbus  avenue  and  Railroad  street  in  its 
house  yard,  in  the  city  of  Sandusky,  Ohio,  in  an  easterly  di- 
rection, to  the  Kelly  Island  Lime  &  Transportation  Company's 
tracks,  in  the  city  of  Sandusky,  Ohio,  Lake  Shore  &  Michigan 
Southern  Railway  car  Number  D-38591. 

3.  That  the  defendant  hauled  said  ear  said  distance  afore- 
said when  the  uncoupling  chain  clevis  and  the  lifting  pin  on  the 
A  end  of  said  car  were  broken,  out  of  repair,  inoperative,  and 
in  such  condition  that  said  ear  could  not  be  coupled  automati- 
cally by  impact,  unless  the  knuckle  was  open,  or  uncoupled 
without  some  one  going  between  the'  ends  of  the  cars  for  said 
purpose;  that  the  coupler  on  the  said  A  end  of  said  car  was  in 
such  a  condition  that  it  would  not  couple  automatically  by  im- 
pact, unless  the  knuckle  was  open;  and  that  the  said  coupler 
on  the  said  A  end  of  said  car  could  not  be  uncoupled  by  means 
of  the  mechanism  of  said  coupler  without  a  man  or  men  going 
between  the  ends  of  the  car  for  that  purpose. 

4.  That  said  ear  had  been  properly  equipped  with  automatic 
couplers  coupling  by  impact,  but  that  the  same  had  become 
broken,  inoperative  and  out  of  repair. 

5.  That  said  car  was  not  loaded  when  hauled  by  said  de- 
fendant from  the  intersection  of  Columbus  avenue  and  Rail- 
road street,  but  was  hauled  in  the  defective  condition,  described 
as  aforesaid,  to  the  said  Kelly  Island  Lime  &  Transportation 
Co. 's  tracks,  as  aforesaid,  to  be  there  loaded  with  sand  for  said 
defendant. 

6.  That  the  distance  said  ear  was  hauled  as  aforesaid  was 
about  2700  feet. 

7.  That  shortly  before  February  19,  1907,  said  ear  was 
loaded  with  coal  at  the  Bradley  mines  on  the  line  of  the  Lake 


NISI  PBIUS  REPORTS— NEW  SERIES.  676 

1908.1  State  v.  L.  8.  4  M.  9.  Ry. 

Erie,  Alliance  &  Western  Railway  Company,  in  the  state  of 
Ohio,  and  hauled  over  the  line  of  said  Lake  Erie,  Alliance  & 
Western  Railway  from  Bradley  mines  to  Newton  Palls,  Ohio, 
where  said  car  was  transferred  to  .the  Baltimore  &  Ohio  Rail- 
road Company,  and  by  the  said  Baltimore  &  Ohio  Railroad 
Company  hauled  over  its  railway  from  Newton  Falls,  Ohio,  to 
Sandusky,  Ohio,  where  said  car  was  unloaded  by  the  Smith- 
Kunz  Coal  Company,  to  which  said  company  said  car  of  eoal 
was  consigned;  that  said  car,  after  being  unloaded  by  said 
Smith-Kunz  Coal  Company  was  hauled  by  the  Baltimore  and 
Ohio  Railroad  Company,  over  its  railway,  to  a  point  at  or  near 
the  intersection  of  Columbus  avenue  and  Railroad  street,  in 
the  city  of  Sandusky,  Ohio;  and  said  ear  was  received  by  the 
dejCendant  herein  from  the  Baltimore  &  Ohio  Railroad  Com- 
pany at  the  point  last  above  described.. 

From  this  agreed  statement  of  facts  and  the  testimony  which 
is  offered,  I  conclude  that  on  February  19,  1907,  the  defendant 
received  from  the  Baltimore  &  Ohio  Railroad  Company  a  freight 
car  with  the  automatic  coupler  in  a  defective  condition  to  such 
an  extent  that  it  would  not  couple  automatically  by  impact,  nor 
could  it  be  uncoupled  without  a  man  going  between  the  cars  to 
perform  some  service  in  connection  therewith;  that  this  ear 
was  hauled  for  a  distance  of  2700  feet  to  the  tracks  of  the  Kelly 
Island  Lime  &  Transportation  Company  for  the  purpose  of  be- 
ing loaded  with  sand;  that  the  car  was  loaded  in  the  state  of 
Ohio  with  coal  and  consigned  to  Sandusky  in  the  state  of  Ohio, 
so  that  at  no  time  between  the  time  the  car  was  loaded  at  Bradley 
mines  and  the  time  it  was  in  on  the  Kelly  Island  Lime  &  Trans- 
portation Company's  tracks  to  be  loaded  with  sand  was  it  en- 
gaged in  interstate  commerce. 

The  State  asserts  that  upon  this  state  of  facts  the  defendant 
company  has  violated  the  automatic  coupler  act,  and  is  liable  to 
the  penalty  therein  prescribed. 

The  defendant  claims  that  this  being  in  its  nature  a  penal 
statute  the  court  is  not  justified  in  assessing  this  penalty  against 
the  defendant,  unless  it  find  beyond  a  reasonable  doubt  that  at 
the  time  the  defendant  company  knew  of  the  defective  condition 


ERIE  COUNTY  COMMON  PLEAS. 


State  v.  L.  S.  ft  M.  8.  Ry.  [Vol.  VII,  N.  S. 

of  this  coupler  before  it  hauled  it,  or  by  the  exercise  of  reason- 
able care  could  have  known  it.  And  it  contends  that  there  is 
nothing  in  the  admitted  facts  or  the  evidence  which  would  war- 
rant such  a  finding,  and  therefore  it  should  be  discharged  from 
liability  under  this  complaint. 

It  has  been  suggested  that  the  act  under  which  this  prosecu- 
tion is  instituted  is  unconstitutional  in  that  it  attempts  to  regu- 
late interstate  commerce;  that  Congress  has  the  exclusive  power 
to  regulate  traffic  between  the  states  and  the  instrumentalities  of 
such  traffic,  including  oars,  locomotives  and  trains,  and  that  Con- 
gress has  acted  in  this  regard  by  enacting  a  law  entitled  "An 
act  to  promote  the  safety  of  employes  and  travelers  upon  rail- 
roads by  compelling  common  carriers  engaged  in  interstate  com- 
merce to  equip  their  cars  with  automatic  couplers  and  con- 
tinuous brakes,  and  their  locomotives  with  drive  wheel  brakes," 
and  for  other  purposes,  which  act  was  approved  March  2,  1893. 
and  amended  April  1,  1896. 

It  should  be  added,  that  the  Lake  Shore  &  Michigan  South- 
ern Railway  Company  has  a  line  of  railway  extending  from 
Chicago  to  Buffalo  engaged  in  an  interstate  commerce  traffic. 

If  this  act  is  an  attempt  to  regulate  interstate  commerce,  it 
will  not  be  gainsaid  that  it  is  unconstitutional.  And  this  is 
true  whether  Congress  has  acted  or  not,  if  the  exclusive  power 
lies  with  Congress.  If  the  exclusive  power  to  regulate  inter- 
state commerce  is  vested  in  Congress,  then  a  state  may  not  act. 

A  distinction  must  be  drawn  between  an  act  which  attempts 
to  regulate  commerce  between  states  and  an  act  which  attempts 
to  regulate  the  moans  by  which  commerce  is  carried  on  within 
a  state. 

Section  2  of  the  act  of  Congress  to  which  I  have  referred 
reads  as  follows: 

"Section  2.  That  on  and  after  the  1st  day  of  January,  1908. 
it  shall  be  unlawful  for  any  such  common  carrieT  to  haul,  or 
permit  to  be  hauled,  or  used,  on  its  line  any  car  used  in  moving 
interstate  traffic  not  equipped  with  couplers  coupling  automat- 
ically by  impact,  and  which  can  be  uncoupled  without  the  neces- 
sity of  men  going  between  the  ends  of  the  cars." 


NISI  PRIUS  REPORTS— NEW  SERIES.  B7T 

190$.}  State  v.  L.  S.  4  M.  8.  Ry. 

Section  2  of  the  act  under  discussion,  that  is,  the  act  of  the 
Legislature  of  the  state  of  Ohio,  approved  March  19,  1906,  reads 
as  follows: 

"Section  2.  It  shall  be  unlawful  for  any  such  common  car- 
rier to  haul  or  permit  to  be  hauled,  or  used,  on  its  line  any 
locomotive,  car,  tender  or  similar  vehicle  used  in  moving  state 
traffic  not  equipped  with  couplers  coupling  automatically  by  im- 
pact, and  which  can  be  uncoupled  without  the  necessity  of 'men 
going  between  the  ends  of  the  cars." 

The  two  sections  are  identical,  except  that  one  provides  for 
automatic  couplers  on  cars  engaged  in  interstate  commerce,  and 
the  other  provides  for  cars  engaged  exclusively  in  intrastate  com- 
merce. Can  it  be  said  that  the  act  under  discussion  is  an  attempt 
to  interfere  with  the  right  of  Congress  to  regulate  interstate 
commerce  f  It  seems  *81ear  to  me  that  Congress  had  in  mind, 
when  it  passed  this  act,  the  fact  that  it  had  always  conceded  to 
the  states  the  right  to  regulate  the  means  by  which  commerce  is 
carried  on  within  the  state.  And  acting  at  least  upon  the  suppo- 
sition that  it  had  a  right  to  regulate  and  control  intrastate  com- 
merce, many  laws  having  been  enacted  for  the  protection  of 
life  and  property,  and  the  regulating  and  control  of  railroads, 
which  from  time  to  time  have  been  enforced  without  a  suspicion 
that  they  had  in  any  wise  conflicted  with  the  rights  of  the  gen- 
eral government.  Clearly  Congress  in  limiting  the  operations 
of  the  automatic  coupler  act  to  which  I  have  referred  to  cars  en- 
gaged in  interstate  commerce  traffic  intended  to  leave  open  to  the 
state  the  right  to  take  such  action  as  it  might  deem  advisable  for 
the  safety  and  protection  of  employes  and  travelers  upon  the 
railroads  wholly  within  the  state. 

The  act  under  discussion  does  not  attempt  to  regulate  inter- 
state commerce,  nor  does  it  conflict  with  the  act  of  Congress  re- 
quiring automatic  couplers  upon  oars  engaged  in  interstate  com- 
merce. The  federal  enactment  is  not  designed  to  nor  does  it 
apply  to  ears  engaged  in  intrastate  traffic.  The  act  of  the  Legis- 
lature under  which  this  case  is  instituted  is  not  designed  to  nor 
does  it  apply  to  cars  engaged  in  interstate  commerce.  The 
two  acts  construed  together  cover  the  whole  field  of  railroad 


ERIE  COUNTY  COMMON  PLEAS. 


State  t.  L.  S.  *  M.  a  Ry. [VoL  Til,  N.  B. 

operation  and  require  that  all  cars  either  engaged  in  interstate 
or  intrastate  commerce  be  equipped  with  automatic  couplers,  and 
suits  may  be  prosecuted  under  either  law  as  the  facts  of  the  ease 
may  be. 

In  this  particular  case  the  car  was  engaged  in  strictly  intra- 
state traffic,  and  if  there  is  any  violation  of  the  law  at  all  it  is  a 
violation  of  the  act  of  March  19,  1906.  It  can  not  be  said  that 
the  federal  law  has  been  violated ;  and  if  the  act  of  1906  is  un- 
constitutional because  it  conflicts  with  the  right  of  Congress  to 
regulate  commerce,  then  we  are  in  this  dilemma — Congress 
always  refusing  to  interfere  with  the  means  by  which  commerce 
is  carried  on  within  a  state  affords  no  relief,  and  the  State  being 
unable  to  pass  lawful  acts  requiring  these  things  to  be  done  for 
the  safety  of  employes  and  the  traveling  public,  all  traffic  within 
the  state  may  be  carried  on  with  cars  not  provided  with  these 
automatic  couplers.  It  can  not  be  said  that  such  a  paradoxical 
situation  presents  itself.  As  I  view  it  the  law  is  constitutional. 
In  support  of  this  conclusion  I  cite  M,,  K.  &  T.  v.  Harbor,  169 
U.  S.,  613;  Addyston  Pipe  Co.  v.  United  States,  175  U.  S.,  211; 
Lord  v.  Gobdall  et  al  Steamship  Co.,  102  II.  S-,  541;  Milnor  v. 
New  Jersey  Trans.  Co.  et  al,  and  David  Biglow  v.  New  Jersey 
Trans.  Co.,  65  U.  S.,  799. 

The  principal  contention  that  the  defendant  makes  in  this 
case  is  that  it  is  a  criminal  proceeding,  and  therefore  knowledge 
and  intention  are  elements  which  enter  into  it  and  must  be  found 
to  exist  in  order  to  warrant  the  court  in  assessing  the  penalty. 
That  in  this  particular  case  there  is  no  evidence  of  knowledge, 
or  that  the  company  could  by  the  exercise  of  reasonable  care 
have  discovered  the  defective  coupler,  and  therefore  the  defend- 
ant can  not  be  required  to  pay  the  penalty  prescribed  for  a  viola- 
tion of  the  law. 

If  it  is  a  criminal  proceeding,  then  the  contention  of  the  de- 
fendant is  right.  The  claim  of  the  defendant  is  based  largely 
upon  the  fact  that  the  act  itself  makes  it  unlawful  to  haul  a  car 
within  the  state  not  equipped  with  an  automatic  coupler,  so  that 
the  car  can  be  coupled  with  other  cars  and  uncoupled  without 
men  going  between  the  cars,  and  it  provides  a  penalty  of  $100 


NISI  PBIUS  REPORTS— NEW  SERIES.  670 

1308.]  State  v.  L.  S.  ft  M.  S.  Ry. 

for  each  violation  of  the  act.  If  it  is  a  penal  statute,  then  of 
course  knowledge  and  intention  are  ingredients  of  the  offense 
which  must  be  proven.  But  is  it?  The  mere  fact  that  the 
word  unlawful  appears  in  the  act  does  not  make  it  a  penal  or 
criminal  statute.    Section  6  of  the  act  provides: 

"Section  6.  That  any  such  common  carrier  using  or  per- 
mitting to  be  used  or  hauled  on  its  line  any  locomotive,  tender, 
car,  or  similar  vehicle,  or  train,  in  violation  of  any  of  the  pro- 
visions of  this  act  shall  be  liable  to  a  penalty  of  one  hundred 
dollars  for  each  and  every  such  violation,  to  be  recovered  in  a 
suit  or  suits  to  be  brought  by  the  prosecuting  attorney  in  the 
common  pleas  court  of  the  county  having  jurisdiction  in  the 
locality  where  such  violation  shall  have  occurred." 

Prior  to  the  enactment  of  the  act  of  1906  the  law  provided 
that  every  railroad  company  should  equip  or  haVe  its  ears 
equipped  with  automatic  couplers  substantially  the  same  as  the 
present  law,  and  it  further  prbvided  that  for  each  violation  of 
the  act  there  should  be  a  forfeiture  to  the  state  of  Ohio  of  the 
sum  of  $25  for  each  day  such  defective  coupler  was  used,  to  be 
collected  in  a  civil  suit  in  any  county  in  the  state  where  service 
could  be  had  on  the  road  violating  the  law,  and  it  was  made  the 
duty  of  the  Attorney-General  or  the  prosecuting  attorney  of  the 
county  wherein  the  act  was  violated  to  prosecute  the  suit. 

The  present  law  differs  from  the  original  act  in  that  the 
word  civil  is  omitted,  and  the  jurisdiction  is  limited  to  the  local- 
ity wherein  the  violation  occurs.  The  original  act  was  in  this 
respect  like  many  of  the  other  acts  upon  our  statute  books  in 
the  nature  of  police  regulations,  wherein  penalties  are  prescribed 
to  be  collected  for  the  use  and  benefit  of  the  state  by  civil  ac- 
tions. What  is  commonly  known  as  the  "Winn  law"  has  in  it 
a  provision  similar  to  this  one,  providing  that  penalties  are  to 
be  collected  by  civil  actions  brought  in  the  name  of  the  state 
of  Ohio.  This  act  has  been  sustained.  In  prosecutions  under  it 
the  rules  of  evidence  which  pertain  to  civil  procedure  have  been 
applied.    State  v.  Allen,  6  0.  D.,  43. 

In  bastardy  proceedings  under  the  law  of  this  state,  where 
the  court  has  power  to  imprison  to  enforce  its  order  and  judg- 


ERIE  COUNTY  COMMON  PLEAS. 


State  v.  L.  8.  *  M.  8.  Ry.  [Vol.  Til,  N.  8. 

ment,  the  authorities  are  to  the  effect  that  it  is  ia  fact  a  civil 
proceeding,  only  gtwgj'-criminal  and  that  in  the  trial  of  such 
cases  the  code  of  civil  procedure  is  applicable.' 

Bates  in  his  new  "Pleadings  and  Practice,"  Vol.  3,  page  2420, 
discussing  this  class  of  cases,  says,  "the  action  is  a  civil  ac- 
tion," and  in  support  of  this  cites  Wright  v.  Munger,  5  0.,  441 ; 
Mack  v.  Bonner,  3  0.  S.,  66.  A  number  of  other  authorities  are 
cited,  which  while  not  directly  in  point  bear  out  the  statement 
that  it  is  a  civil  proceeding.  In  further  support  of  this  propo- 
sition I  cite  121  Wis.,  472 ;   67  N.  Y.,  269. 

The  defendant  claims  that  wrongs  are  divided  infto  two 
classes,  private  wrongs  and  public  wrongs,  and  that  the  test  as 
to  whether  or  not  a  law  is  penal  in  the  strict  and  primary  sense 
is,  whether  the  wrong  sought  to  be  redressed  is  a  wrong  to  the 
public  or  a  wrong  to  the  individual.  That  the  former  are  in- 
fringements or  privations  of  the  private  or  civil  rights  belonging 
to  individuals,  considered  as  individuals,  and  are  civil  injuries. 
That  the  latter  are  breaches  and  violations  of  public  rights  and 
duties  which  affect  the  whole  community,  considered  as  a  com- 
munity, and  are  distinguished  by  the  harsher  appellations  of 
crimes  and  misdemeanors.  In  support  of  this  proposition  my 
attention  is  called  to  the  case  of  Clyatt  v.  United  States,  197  IT. 
S.,  222.  In  other  words,  it  is  claimed  that  if  this  penalty  was 
payable  to  an  individual  who  might  be  required  to  go  between 
the  cars  to  adjust  this  coupling,  it  would  be  a  civil  injury;  but 
inasmuch  as  it  is  a  penalty  which  is  collected  by  the  State,  it  is 
a  penal  statute;  that  is  to  say,  crime. 

In  the  case  of  Inwood  v.  the  State,  42  0.  S.,  186,  the  defend- 
ant was  being  prosecuted  under  Section  3  of  the  act  of  Feb.  17. 
1831,  "for  the  prevention  of  certain  immoral  practices"  which 
provided, ' '  that  if  any  person  or  persons  shall,  at  any  time,  inter- 
rupt or  molest  any  religious  society,  etc.,  the  person  or  persons 
so  offending  shall  be  fined  in  any  sum  not  exceeding  $25.  And 
any  judge  of  the  court  of  common  pleas,  or  justice  of  the  peace 
within  the  proper  county,  be  and  they  are  hereby  empowered, 
authorized  and  required  to  proceed  against  and  punish  every 
person  offending  against  the  provisions  of  this  act;    and  upon 


NISI  PRITJS  REPORTS— NEW  SERIES.  581 

1908.]  State  v.  L.  S.  ft  M.  S.  Ry. 

view  and  hearing  may,  if  need  be,  issue  his  warrant  to  bring 
the  body  of  the  accused  before  him,  and  shall  inquire  into  the 
truth  of  the  accusation;  and  if  guilty  shall  enforce  the  penalty 
of  this  act  annexed  to  the  offense;  and  said  offender  (if  the 
judge  or  justice  should  think  necessary)  may  be  detained  in 
custody  and  committed  until  sentence  be  performed."  A  war- 
rant was  issued,  he  was  arrested,  taken  before  the  court  and 
found  guilty.  The  question  was  raised  that  this  law  was  uncon- 
stitutional because  it  deprived  the  defendant  of  the  right  of  a 
trial  by  jury.    Reading  from  page  189 ; 

"The  question  is;  Was  the  phrase  'in  any  trial,  in  any 
court'  intended  to  apply  to  cases  like  the  present,  where  the 
penalty  is  by  fine  merely,  inflicted  on  the  violator  of  a  mere 
police  regulation,  only  quasi-criminal?  A  class  of  cases  for  the 
punishment  of  immoral  and  pernicious  practices  by  pecuniary 
penalties,  by  whieh,  by  the  common  law,  as  above  shown  the  ac- 
cused was  never  entitled  to  demand  a  trial  by  jury,  the 
provision  of  the  Constitution  is.  that  the  person  accused  shall 
have  a  speedy  public  trial  by  an  impartial  jury  of  the  county  or 
district  in  whieh  the  offense  is  alleged  to  have  been  committed: 
Accused  of  an  offense,  to-wit,  such  an  offense  as  would,  before 
the  adoption  of  the  Constitution,  have  entitled  the  accused  to  a 
jury  trial.  This  provision,  in  our  opinion,  was  not  intended  to 
extend  the  right  of  jury  trial,  but  was  intended  to  define  the 
characteristics  of  the  jury. 

'tin  Thomas  v.  Asklatid,  12  0.  S.,  124,  it  was  held  that  an 
ordinance  of  a  village  which  imposed  imprisonment  as  a  penalty 
for  an  offense,  where  no  provision  was  made  for  a  trial  by  jury, 
was  in  conflict  with  Section  10  of  the  first  article  of  the  Con- 
stitution above  quoted;  but  the  court  was  careful  to  exclude 
from  the  operation  of  the  rule  there  laid  down,  cases  where  the 
punishment  was  by  fine  only,  although  imprisonment  was 
authorized  as  a  means  of  enforcing  the  payment  of  the  fine. 
We  think  the  discrimination  between  imprisonment  as  part  of 
the  penalty,  and  as  a  means  of  enforcing  the  penalty,  is  well 
made. ' ' 

In  this  decision  the  Supreme  Court  speaks  of  this  police  regu- 
lation as  only  gtKWt-criminal  in  its  nature,  and  in  case  wherein 
to  enforce  the  collection  of  a  fine,  imprisonment  may  be  resorted 
to. 


ERIE  COUNTT  COMMON  PLEAS. 


State  v.  L.  S.  *  M.  S.  Ry. 


In  the  case  of  The  Commissioners  of  Champaign  Co.,  etc.,  v. 
Church,  etc.,  Admr.,  62  O.  S.,  318,  reading  from  the  opinion  of 
Judge  Davis  on  page  345 : 

"The  contention  is  that  the  statute  deprives  the  defendant  of 
the  right  to  have  the  amount  to  be  paid  assessed  by  a  jury  as 
damages.  A  county  or  municipality  can  no  more  complain  of  this 
statute  as  an  infringement  upon  the  right  of  trial  by  jury,  than 
the  man  who  has  been  tried  by  a  jury  and  found  guilty  of  a 
crime  can  complain  that  the  law  under  which  he  is  tried  does 
not  provide  that  the  jury  shall  assess  the  amount  of  his  fine  or 
adjudge  the  extent  of  his  imprisonment.  The  primary  purpose 
of  the  Legislature  was  punishment  and  correction.  The  ex- 
pressed object  of  the  law  is  'the  suppression  of  mob  violence.* 
That  the  Legislature  might,  in  the  exercise  of  the  police  power, 
fix  the  amount  of  a  penalty  without  the  intervention  of  a  jury 
was  long  ago  decided  by  this  court  in  Cincinnati,  Sandusky  & 
Cleveland  Railroad  Company  v.  Cook,  37  0.  S.,  265.  And  this 
being  so,  it  is  no  concern  to  the  party  paying  the  penalty,  to 
whom  the  state,  in  its  sovereignty,  may  pay  it.  It  may  well,  as 
under  this  statute,  turn  the-money  over  to  those  who  suffer  by  the 
act  of  lynching.  In  this  respect,  it  makes  no  difference  whether 
in  the  statute  it  be  called  a  penalty,  or  compensation,  or  dam- 
ages. Nor  does  it  alter  the  case  that  the  amount  is  fixed,  that  is, 
determined  by  the  statute,  as  in  this  case;  or  that  it  is  to  be 
found  by  a  jury.  Nor  yet  does  it  matter  that  it  is  declared  to 
be  'for  the  suppression  of  mob  violence,'  as  in  this  case,  or  'for 
compensating  parties  whose  property  may  be  destroyed  in  conse- 
quence of  mobs  or  riots.'  as  in  the  statute  which  was  upheld  in 
Darlington  v.  The  Mayor,  etc.,  31  N.  Y.,  187;  because  the  im- 
position of  any  amount  by  authority  of  the  state  is,  in  either 
case,  essentially  penal  and  corrective  in  its  nature.  The  party 
paying  the  money  so  recovered,  that  is,  as  a  penalty,  has  no  right 
to  complain  that  the  sovereign  pays  it  over  to  the  person  in- 
jured, or  pays  it  for  the  benefit  of  the  minor  children  of  a  per- 
son suffering  death  by  lynching,  or  to  the  next  of  kin  of  such 
person;  nor  that  the  sovereign  provides  that  'such  recovery  shall 
not  be  regarded  as  a  part  of  the  estate  of  the  person  lynched, 
nor  be  subject  to  any  of  his  liabilities.'  Nor  is  it  a  matter  which 
can  be  put  in  issue  for  trial  by  jury ;  for  the  Legislature  does 
not  authorize,  nor  attempt,  a  compensation  of  the  injury  accord- 
ing to  the  measure  of  the  injury,  to  be  settled  on.  an  inquiry  of 
damages," 


NISI  PRIUS  REPORTS— NEW  SERIES.  688 

1908.]  State  v.  L.  S.  &  M.  3.  Ry. 

It  seems  to  me  that  this  reasoning  applies  id  this  case ;  that 
is,  it  makes  no  difference  to  the  defendant  whether  the  penalty 
goes  to  the  State  or  to  the  individual.  The  Legislature  has 
enacted,  in  the  nature  of  a  police  regulation,  a  requirement  that 
railway  companies  shall  equip  their  oars  with  automatic  couplers, 
and  has  provided  a  penalty  for  a  failure  to  so  do,  and  that  the 
same  shall  be  collected  by  suit  brought  by  the  prosecuting  attor- 
ney, in  the  locality  where  the  violation  takes  place ;  and  the  fact 
that  the  amount  collected  as  a  penalty  goes  to  the  State  does  not 
make  it  a  criminal  statute,  so  that  knowledge  and  intention  are 
ingredients  of  the  offense  which  must  be  proven,  beyond  a  rea- 
sonable doubt,  to  warrant  a  finding  that  the  law  has  been  vio- 
lated and  the  assessment  of  the  penalty. 

The  object  and  purpose  of  this  law  is  to  protect  the  employes 
and  the  traveling  public,  and  it  would  be  unwise  to  give  this  law 
such  a  construction  as  to  destroy  the  object  and  purpose  of  its 
enactment. 

The  defendant  claims  that  the  law  should  be  liberally  con- 
strued because  of  its  harsh  nature.  -Rather  should  it  be  reason- 
ably construed  to  give  it  that  force  and  effect  which  will  insure 
to  the  public  the  protection  which  it  affords. 

It  is  not  necessary  in  this  decision  for  me  to  determine  what 
the  law  would  be,  in  case  it  should  develop  on  the  trial  that  this 
coupler  became  out  of  repair  while  the  car  was  being  trans- 
ported, and  that  at  the  first  opportunity  the  car  was  repaired. 
Considerations  of  justice  might  under  some  circumstances  war- 
rant a  court  in  submitting  to  a  jury  such  a  defense.  But  in 
this  case  the  coupler  was  broken  and  inoperative  at  the  time  the 
defendant  received  it.  It  moved  this  car  2700  feet  in  that  con- 
dition for  the  purpose  of  having  it  loaded,  and  no  matter  what 
view  the  court  might  take  of  the  law  upon  a  state  of  facts  differ- 
ent from  the  admitted  facts  and  evidence  in  this  case,  the  defend- 
ant is  clearly  liable  for  the  penalty  prescribed  for  a  violation 
of  this  act. 

In  determining  these  questions  the  court  should  have  in 
mind  a  due  regard  for  the  rights  of  the  employes  of  these  com-. 
panies  as  well  as  the  companies  themselves,    The  object  and  pur- 


ERIE  COUNTY  COMMON  PLEAS. 


State  v.  L.  S.  *  M.  S.  Ry.  [Vol.-VII.  N.  9. 

pose  of  all  such  regulation  is  to  protect  those  who  are  required 
to  earn  a  livelihood  by  working  in  more  or  leas  dangerous  places. 
Railroading  is  a  hazardous  business.  Many  men  are  required  to 
follow  that  business  for  a  livelihood,  and  the  Legislature  in  its 
wisdom  has  seen  fit  to  throw  around  these  men  some  safeguards 
that  they  may  not  be  unnecessarily  deprived  of  their  limbs,  and 
ofttimes  of  their  lives,  by  being  compelled  to  go  between  cars  to 
make  couplings. 

If  this  law  is  to  be  liberally  construed  so  that  a  company  may 
avoid  liability  by  simply  pleading  ignorance  of  the  condition  of 
its  ears  and  a  want  of  intention  to  violate  the  act,  then  the  very 
purpose  of  it  is  defeated.  No  injustice  ean  be  done  by  holding 
railroad  companies  to  a  strict  accountability  under  this  act,  and 
should  it  result  in  the  execution  of  a  penalty  at  some  time  when 
it  appears  to  be  harsh,  it  is  far  better  than  that  the  court  should 
give  this  law  such  a  construction  as  would  permit  companies  to 
be  derelict  in  this  respect,  endangering  the  lives  and  limbs  of  the 
employes  of  the  company  and  the  traveling  public.  Consider- 
ations of  humanity  dictated  the  enactment  of  this  law,  and  the 
same  considerations  call  upon  the  courts  to  so  construe  the  law 
and  enforce  it  as  will  bring  to  those  whom  it  was  intended  to 
safeguard  the  fullest  and  highest  degree  of  protection  which  this 
law  will  afford. 

The  finding  of  the  court  is,  that  the  defendant  has  violated 
the  law  and  the  penalty  of  $100  will  be  taxed  against  it. 


NISI  PBIUS  REPORTS— NEW  SERIES. 

Fields  v.  Ragelmeir  et  al. 


ACCUSED  PERSON  NOT  IMMUNE  FROM  SERVICE  OF 
aw.  PROCESS. 

Common  Pleas  Court  of  Lucas  County. 

Edward  H.  Fields  v.  John  J.  Raqelmeib  bt  al. 

Decided,  July  6,  1908. 

Stimmwi — Service  of  Process  in  a  Civil  Action  Upon  an  Accused  Per- 
aon, — privilege  from  Arrest — Sections  5.(57  and  5459. 

Service  ol  process  may  be  had  in  a  civil  action  upon  an  accused  per- 
son who  is  voluntarily  seeking  a  hearing  before  a  grand  jury  in 
a- county  other  than  that  of  his  residence. 

Beard  &  Beard,  for  plaintiff. 

Chittenden  &  Chittenden,  contra.  ■ 

Bassett,  J. 

Heard  on  motion  to  quash  service. 

Two  separate  motions  are  filed  in  this  case,  one  by  defendant, 
John  J.  Ragclmeir,  and  one  by  the  defendant,  George  W.  Craw- 
ford, each  motion  containing  the  same  grounds,  to-wit,  moving 
the  court  to  quash  the  service  of  summons  herein  and  dismiss  said 
action,  for  the  reason  that  said  court  has  no  jurisdiction  over 
the  person  of  the  defendants. 

By  the  agreed  statement  of  facts  it  appears  that  the  defend- 
ant Ragelmeir,  a  resident  of  Defiance  county,  was  on  February 
17,  1908,  present  at  a  preliminary  hearing  or  investigation  be- 
fore a  justice  of  the  peace  in  Lucas  county,  Ohio,  and  was  by 
such  justice  ordered  to  enter  into  a  recognizance  to  appear  be- 
fore the  Court  of  Common  Pleas  of  Lucas  County,  Ohio,  then 
in  session ;  that  thereafter  the  grand  jury  of  said  county  con- 
vened on  March  9,  1908,  and  was  in  session  on  March  11,  1908, 
when  the  defendant,  John  J.  Ragelmeir,  was  served  with  sum- 
mons in  this  case,  that  is,  in  the  case  now  under  consideration; 
that  the  defendant,  Ragelmeir,  was  never  at  any  time  summoned 
or  subpoenaed  to  appear  before  said  grand  jury  on  said  March 
11,  1908,  or  at  any  other  time  during  said  term  nor  during  the 
session  of  said  grand  jury;  nor  was  he  at  any  time  requested 
by  any  member  of  the  said  grand  jury  or  said  court,  or  any 


LUCAS  COUNTY  COMMON  PLEAS. 


Fields  v.   Ragelmeir   et   al.  [Vol.  VII,  N.  S. 

officer  of  said  court,  nor  by  the  prosecuting  attorney  of  said 
county  or  any  of  his  assistants,  nor  by  the  clerk  of  aaid  court, 
or  any  of  his  deputies,  at  any  time  on  said  March  11, 1908,  or  any 
other  time,  to  come  from  the  county  of  Defiance,  Ohio,  and  ap- 
pear before  said  grand  jury,  as  a  witness  in  his  own  defense, 
or  in  any  other  capacity.  That  said  Ragelmeir.  without  any 
petition  or  request  or  without  any  summons  or  subpoena  but  on 
hia  own  suggestion,  came  before  said  grand  jury  on  said  March 
11,  1908;  that  said  bond  given  in  said  criminal  proceeding  in 
said  justiee  court  did  not  provide,  nor  did  said  justiee  of  the 
peace  order,  that  said  John  J.  Ragelmeir  appear  from  time  to 
time  before  said  Court  of  Common  Pleas  of  Lucas  County  to 
await  the  grand  jury  of  said  county,  nor  that  said  plaintiff 
should  not  depart  therefrom  without  leave. 

Certain  authorities  have  been  cited  by  counsel  for  the  mover, 
among  which  is  the  case  of  Andrews  v.  Lembeck,  46  Ohio  St., 
38.  In  this  case  an  injunction  was  sought  in  Medina  county; 
the  judges  of  that  judicial  district  being  engaged  and  not  being 
able  to  hear  the  ease,  notice  was  served  upon  the  defendant  to 
appear  before  one  of  the  judges  in  Cuyahoga  county,  in  the 
same  judicial  district.  Upon  the  hearing  in  Cuyahoga  county, 
the  defendant,  a  party  to  the  suit,  appeared,  on  the  advice  of 
his  counsel  that  his  presence  might  be  necessary  during  the  hear- 
ing. After  the  hearing,  and  before  sufficient  time  had  elapsed 
for  Andrews  to  depart  for  his  home  by  the  first  train  leaving 
therefor,  he  was  served  with  summons  in  an  action  commenced 
against  him  by  Lembeck  in  Cuyahoga  county.  The  Supreme 
Court  held  that,  under  Section  5459,  he  was  exempt  from  service, 
and  that  the  summons  there  served  upon  him  in  another  civil 
action  was  not  good  service. 

There  is  another  case,  cited  on  page  42,  Cotnpton  v.  Wilder, 
40  Ohio  St..  130,  in  which  the  defendant  in  a  criminal  prosecu- 
tion was  extradited  from  Pennsylvania  to  Ohio,  and  while  in 
Ohio  the  complaining  witness  undertook  to  and  did  have  served 
upon  the  defendant  (prior  to  his  entering  into  bail,  or  at  least 
soon  after  entering  into  bail  and  prior  to  his  leaving  the  state 
by  the  easiest  and  earliest  means  of  leaving)  a  summons  and 
arrest.  In  that  case  the  Supreme  Court  held  that  as  a  matter 
of  good  faith  the  complaining  witness  had  not  made  good  serv- 


NISI  PRIUS  REPORTS— NEW  SERIES.  587 

1908.]  Fields   v.  Ragelmelr   et  al- 

ius ;  and  as  a  matter  of  good  faith  between  the  state  of  Ohio  and 
the  state  of  Pennsylvania  such  practice  would  not  be  tolerated ; 
therefore  the  court  held  that  the  service  was  invalid  and  that 
the  defendant,  a  non-resident,  was  not  required  by  law  to  an- 
swer to  the  summons,  that  he  was  not  in  court  in  a  lawful  man- 
ner, and  the  summons  was  set  aside.  Mayer  v.  Nelson,  54  Neb., 
434;  Letherby  v.  Shaver,  73  Mich.,  500;  Byler  v.  Jones,  22  Mo. 
App.,  623. 

Section  5457  of  the  Revised  Statutes  of  Ohio  sets  forth  cer- 
tain persons  who  are  priviledged  from  arrest.  Among  those 
privileged  from  arrest  are  officers,  suitors  and  witnesses  while 
going  to,  attending  or  returning  from  court.  The  only  qualifi- 
cation to  that  provision  is  found  in  Section  5459,  Revised  Stat- 
utes, which  says: 

"Nothing  in  this  subdivision  contained  shall  be  construed  to 
extend  to  cases  of  treason,  felony,  or  breach  of  the  peace,  or  to 
privilege  any  person  herein  specified  from  being  served  at  any 
time  with  a  summons  or  notice  to  appear." 

It  will  be  noticed  in  Compton  v.  Wilder,  supra,  that  they  not 
only  had  served  the  summons  or  notice  to  appear,  but  they  also 
had  issued  the  order  for  arrest,  and  the  court  held  that  conse- 
quently it  was  invalid. 

In  this  case  no  order  for  arrest  has  been  made.  Under  the 
common  law  a  capias  is  a  writ  commanding  the  sheriff  to  take 
charge  of  the  defendant  and  have  him  before  the  court  to  an- 
swer the  charge  therein  contained;  it  is  called  a  capias  ad 
respondendum  when  issued  before  judgment  and  a  capias  ad 
faciendum  when  issued  after  judgment.  It  directs  that  the  de- 
fendant be  compelled  to  appear,  while  the  sole  object  of  the 
summons  is  that  he  be  notified.  We  state  this  merely  as  a  means 
of  distinguishing  between  a  capias  at  common  law  and  a  sum- 
mons under  our  code. 

When  the  defendant,  Ragelmeir,  voluntarily  entered  into 
Lucas  county  and  voluntarily  appeared  before  the  grand  jury, 
he,  of  his  own  accord,  submitted  himself  to  that  jurisdiction. 
As  matter  of  right,  he  could  not  appear  before  the  grand  jury; 
he  could  not  introduce  witnesses;  he  could  not  challenge  the  ju- 
rors before  the  oath  was  administered ;  he  could  not  demur  to  the 


588  LUCAS  COUNTT  COMMON  PLEAS. 

Fields  v.  Ragelmelr  et  al.  [Vol.  VII.  N.  8. 

complaint,  nor  cross-examine  the  complaining  witness,  until  the 
indictment  was  filed  and  the  case  docketed  and  the  defendant 
arrested.  He  could  not  be  considered  as  in  court  and  com- 
pelled to  make  answer;  neither  could  the  grand  jury  punish 
him  as  for  contempt  by  exercising  the  ordinary  powers  of  a 
court  of  law.  State  v.  Hamlin,  47  Conn.,  95 ;  State  v.  Walcott, 
21  Conn.,  271;  People  v.  Qoldenson,  76  Cal.,  328. 

In  Compton  v.  Wilder,  to  which  we  have  referred,  it  was  found 
there  that  the  plaintiff  had  acted  in  bad  faith,  in  forcibly  bring- 
ing a  non-resident  of  Ohio  into  the  jurisdiction.  This  case,  how- 
ever, now  on  hearing,  is  free  of  the  charge  even  of  malice,  fraud, 
connivance  or  procurement  on  the  part  of  the  plaintiff  to  in- 
veigle the  defendant  into  this  jurisdiction ;  indeed  the  agreed 
statement  of  facts  shows  that  the  defendant  came  here  volun- 
tarily, and  without  a  subpoena  appeared  before  the  grand  jury. 
The  case  is  not  only  free  from  the  objection  that  it  is  not  in  good 
faith  or  in  fraud  of  the  law,  but  it  is  free  from  the  objection 
that  the  service  of  summons  or  notice  was  served  upon  the 
defendant  in  a  manner  which  tends  to  impede  or  embarrass  the 
administration  of  public  justice;  for,  as  the  court  has  already 
said,  he  had  no  lawful  occasion  .to  attend  upon  the  hearing  be- 
fore the  grand  jury.  The  weight  of  authority  seems  to  favor 
a  distinction  to  be  made  between  a  criminal  and  a  civil  case; 
that  is  to  say,  a  suitor  in  a  civil  ease,  while  attending  that  case 
in  his  own  interest,  either  as  a  witness  or  a  suitor  or  otherwise, 
is  privileged  from  being  served  with  a  summons  in  another  civil 
action. 

In  the  case  of  White  v.  Underwood,  46  L.  R.  A.,  706  (N.  C), 
it  is  said : 

"Confinement  in  jail  for  default  of  bail  in  a  criminal  case 
does  not  preclude  legal  service  on  the  prisoner  of  summons  in  a 
civil  action  with  an  order  of  arrest  and  bail  ancillary  thereto." 

We  do  not  think  the  decisions  in  Ohio  go  that  far.  Again  it 
is  said,  page  707: 

"A  person  in  custody  on  a  criminal  charge  may,  before  or 
after  conviction,  be  served  with  civil  process. ' '  Slade  v.  Joseph, 
5  Daly  (N.  Y.),  187,  190;  Byler  v.  Jones,  22  Mo,  App.,  623; 
Moore  v.  Oreen,  73  N.  C,  394. 


NISI  PBIUS  REPORTS— NEW  SERIES.  588 

1908.]  Fields  v.   Ragelmelr   et  al. 

Again  on  page  709,  it  is  quoted  as  follows: 

"The  absence  of  privilege  afforded  by  a  criminal  arrest  is 
illustrated  by  eases  recognizing  the  validity  of  service  im- 
mediately after  a  discharge  from  custody  while  defendant  is 
still  practically  in  the  power  of  the  court." 

"One  who  has  been  convicted  of  an  assault  in  a  court  of 
special  sessions  is  not  privileged,  while  returning  home,  from  ar- 
rest in  a  civil  action."    Lucas  v.  Albee,  1  Denio,  666. 

"A  defendant  who  has  been  brought. into  court  by  a  criminal 
process  and  discharged  from  arrest  upon  giving  bail  is  not 
exempt  from  arrest  on  a  civil  process  immediately  afterwards, 
before  he  leaves  ithe  court  room."  Moore  v.  Qreen,  73  N.  C., 
394. 

"One  under  lawful  arrest  is  not  on  that  account  exempted 
from  service  of  civil  process;  and  there  is  no  reason  why  one 
arrested  in  another  county,  and  taken  from  that  county  into  the 
county  within  which  the  plaintiff  resides — provided  that  where 
the  arrest  was  procured  by  the  plaintiff  it  was  procured  right- 
fully— may  not  be  served  with  a  summons  in  a  suit  brought  by 
the  plaintiff."    Byler  v.  Jones,  supra. 

"Service  upon  one,  induced  by  false  representations,  to  come 
into  the  jurisdiction  of  a  court,  for  the  process  upon  him,  is  to 
abusa  the  process,  and  will,  on  motion,  be  set  aside."  Byler  v. 
Jones,  supra;  Pilcher  v.  Qraham,  18  C.  C,  5. 

But  as  the  court  has  already  said,  the  question  of  bad  faith 
does  not  enter  into  this  ease.  Again  it  is  said  in  the  case  of 
Smith  v.  Nicola,  19  Pa.  Co.  Ct.  Rep.,  440* 

"A  defendant  attending  court  to  answer  a  criminal  charge 
is  not  privileged  from  service  of  civil  process." 

The  next  case  that  is  noted  in  plaintiff's  brief  is  the  case  of 
Krell  Piano  Co.  v.  Krell,  6  0.  L.  R.,  542.  We  have  not  the  ease 
here,  but  that  is  a  case  in  Hamilton  county  where  a  non-resident 
of  the  county  appeared  in  Cincinnati  at  the  time  certain  deposi- 
tions were  taken.  Instead  of  attending  to  his  legal  business  and 
returning  home  with  reasonable  promptness  after  the  depositions 
were  taken,  he  stayed  in  the  city  and  made  personal  visits;  and 
the  court  held  that  the  service  was  good  because  he  had  delayed 
or  deviated  from  the  usual  course  of  returning  home  in  the 


PAULDING  COUNTY  COMMON  PLEAS. 

McAlexander  v.  Haviland  School  District.  [Vol.  VII.  N.  & 


usual  time.  In  other  words,  he  was  voluntarily  there  for  his 
own  personal  pleasure  or  gratification  and  was  not  there  by 
reason  of  the  service  of  summons  or  in  attendance  on  a  trial, 
and  therefore  was  not  privileged  from  service  on  that  account. 

It  is  held  in  the  case  of  Moyer  v.  Place,  13  Pa.  Co.  Ct.  Rep.. 
163:  "A  party  to  a  eivil  suit  in  attendance  on  the  trial,  is 
privileged  from  service  of  a  writ.  No  such  privilege  exists 
where  the  party  served  is  a  defendant  in  a  criminal  indictment," 
and  the  case  proceeds  along  that  line.  A  great  many  other  cases 
to  the  same  effect  might  be  cited,  but  for  present  purposes  it  is 
needless  to  do  so.  One  of  the  chief  controlling  reasons  for  the 
distinction  is,  that  parties  in  civil  actions  appear  voluntarily, 
and  should  be  encouraged  to  appear  in  the  assertion  or  defense 
of  their  rights,  by  immunity  from  arrest;  whereas  defendants 
in  criminal  ^actions  appear  involuntarily,  and  need  not  be  en- 
couraged. 

So  that,  by  reason  of  the  agreed  statement  ol  facts,  and  the 
great  weight  of  decisions,  recent  and  remote,  the  court  holds  that 
the  service  of  summons  upon  each  defendant  in  this  case  was 
valid.     The  motions  are,  therefore,  overruled. 


LEGALITY  OF  CONTRACT  FOR  CONSTRUCTION  OF  SCHOOL 
BUILDING  AT  A  COST  IN  EXCESS  OF  BOND  ISSUE. 

Common  Pleae  Court  of  Paulding  County. 

McAlexander  et  al  v.  Haviland  Village  School 

District  et  al. 

Decided,  December  18,  1906. 

Schools — Contract  for  Building  School  Bouse — Cost  in  Excess  of  Bond 
Issue— Permission  to  Change  Bid  Renders  Contract  Void — Dis- 
cretion of  School  Board — Injunction  Against  Unwarranted  Exer- 
cise of — In  the  Matter  of  Submitting  Propositions  for  Bond  Issues- 
Money  Paid  on  Executed  Illegal  Contract  can  not  be  Recovered- 
Sections  28346,   3991,   39SS,  2303  and   1536-206— Bids  and   Bidding. 

1.  A  contract  for  the  building  of  a  school  house,  at  a  cost  In  excess  of 
the  amount  raised  for  that  purpose  from  an  Issue  of  bonds,  Is 
not  Illegal  and  void  for  want  of  authority  on  the  part  of  the  board 


NISI  PRIUS  REPORTS— NEW  SERIES.  691 

1MB.]  McAlexander  v.  Haviland  School  District 

of  education  to  make  such  a  contract  after  having  underestimated 
the  amount  of  money  needed. 

2.  A  contract  for  the  building  of  a.  school  house,  awarded  to  a  con- 

tractor who  has  been  permitted  to  change  his  bid  by  omitting 
various  Items  and  thus  reducing  tbe  aggregate  cost  to  the  amount 
realized  from  the  sale  of  bonds.  Is  a  contract  made  without  notice 
or  competition  and  Is  Illegal  and  void  under  Section  3988. 

3.  Failure  of  tbe  auditor  or  clerk  to  first  certify  that  the  money  neces- 

sary to  meet  the  obligations  assumed  under  such  a  contract  is  In 
the  treasury  to  tbe  credit  of  the  fund  from  which  It  Is  to  be  drawn, - 
or  has  been  levied  and  Is  In  process  of  collection  and  has  not 
been  appropriated  for  any  other  purpose,  renders  the  contract  void 
under  Section  2702    (1636-205). 

4.  When  a  proposition  for  a  bond  issue  for  the  erection  or  equipment 

of  a  school  house  has  been  submitted  by  the  board  of  education  to 
the  voters  of  the  district  three  different  times  and  each  time  It 
has  been  voted  down,  further  submission  of  the  proposition  may 
be  enjoined  as  an  abuse  of  discretion  and  authority  on  the  part 
of  the  board. 

5.  Public  funds  paid  out  on  a  contract,  completed  in  good  faith  and 

free  from  fraud  and  collusion,  can  not  he  recovered  back  at  the 
instance  of  a  tax-payer,  notwithstanding  the  contract  was  illegal 
and  void. 

Cameron,  J. 

This  is  an  action  brought  by  the  plaintiffs,  who  are  property 
owners  and  tax-payers  in  the  village  school  district  of  Haviland, 
Paulding  county,  Ohio,  to  enjoin  the  board  of  education  of 
said  school  district  from  calling  any  other  or  further  elections 
therein  for  the  purpose  of  issuing  any  more  or  other  bonds  of 
said  district,  for  the  purpose  of  either  finishing  the  school  house 
building  or  plaeing  therein  any  heating  plant  or  other  thing. 

A  mandatory  injunction  is  also  asked  for.  requiring  said 
board  to  institute  suit  to  recover  from  the  contractor  who  built 
said  school  house  the  money  paid  to  him  by  said  board  therefor, 
and  for  all  the  money  necessary  to  complete  said  building  as 
contracted  for;  for  a  finding  of  the  amount  of  money  illegally 
paid  out  by  said  board  on  account  of.  or  in  connection  with, 
said  school  building,  and  for  a  judgment  against  said  hoard, 
the  members  thereof,  and  the  contractor  for  the  amount  so 
found;  also  for  a  mandatory  injunction  requiring  said  board 
and  the  members  thereof  to  complete  the  proposed  building  ac- 


592  PAULDING  COUNTY  COMMON  PLEAS. 

McAleiander  v.  Havlland  School  District.  [Vol.  VII,  N.  8. 

cording  to  the  proposal  made  by  them  to  the  voters  of  said 
district;   and  for  general  equitable  relief. 

The  original  petition  in  the  case  was  filed  in  this  court  De- 
cember 6,  1905.  On  January  18,  1906,  a  general  demurrer  was 
filed  to  this  petition.  This  demurrer  was  sustained,  and,  on 
July  6,  1906,  the  plaintiffs  filed  an  amended  and  supplemental 
petition  herein.  On  August  13,  1906,  a  general  demurrer  was 
tiled  to  this  amended  and  supplemental  petition,  which  was  over- 
ruled. 

Afterwards  the  defendants  (except  Baltes)  answered  as  in- 
dividuals, and  as  a  board.  This  answer,  after  several  admissions, 
contains  a  general  denial.  Then  follows  an  allegation  that  the 
school  building  had  been  fully  completed,  said  contract  fully 
performed  and  executed  and  the  contract  price  paid  long  before 
the  said  amended  and  supplemental  petition  was  filed  in  this 
case.  It  is  also  averred  that  the  proposition  of  issuing  bonds 
of  said  district,  in  the  several  amounts  named  in  the  petition, 
was  made  in  good  faith  and  after  having  first  determined  by 
proper  resolution  of  the  board  that  it  was  necessary  to  issue 
the  bonds  of  the  district  for  said  purpose. 

To  this  answer  no  reply  has  been  filed.  The  case  has  been 
heard  upon  the  evidence,  ably  argued,  and  submitted  to  the  court. 

The  necessity  for  the  building  was  declared  in  a  resolution  of 
the  board,  passed  April  10,  1905,  and  fixing  the  time  for  hold- 
ing the  election  on  May  1.  1905.  The  result  of  the  election  was 
in  favor  of  issuing  the  bonds. 

On  June  14,  1905,  the  bid  for  these  bonds  of  the  New 
National  Bank,  of  Columbus.  Ohio,  in  the  sum  of  $8,150,  and 
accrued  interest,  was  accepted  by  the  board,  and  afterwards,  on 
July  21,  1905,  said  bonds  were  ordered  to  be  signed.  The 
bonds  were  signed  and  delivered  to  the  purchaser.  There  is  no 
question  but  what  the  money  was  received  for  these  bonds  by 
the  board  of  education. 

After  the  bonds  had  been  sold,  the  board  {July  21,  1905)  di- 
rected the  clerk  to  cause  notice  to  be  published  authorizing  the 
letting  of  a  contract  for  the  erection  and  completing  of  a  cer- 
tain school  house  in  said  school  district,  according  to  plans  and 
specifications  prepared  by  the  architect,  J.  I.  Hale,  which  notice 


NISI  PRIUS  REPORTS— NEW  SERIES.  698 

1908.]  McAlexander  v.  Havlland  School  District. 

was  published  in  the  Paulding  Republican  and  Paulding  Demo- 
crat, two  newspapers  of  general  circulation  in  said  school  dis- 
trict. Under  this  notice,  hida  were  to  be  received  up  to  12 
o'clock  m.,  of  Friday,  August  25,  1905. 

On  August  25,  1905,  at  12  o'clock,  the  board  met  for  the  pur- 
pose of  opening  and  considering  the  bids.  Four  sealed  bids 
had  been  received,  viz.:  Richard  Allingham,  $8,853.50;  Dut- 
weiler  &  Silders,  $9,196.31;  W.  M.  Christman,  $9,366;  Jacob 
Baltes,  $9,655. 

When  these  bids  were  opened  it  was  found  that  each  one  ex- 
ceeded the  amount  of  the  proceeds  realized  from  the  sale  of  the 
bonds,  the  lowest  being  more  than  $600  above  the  appropriation. 
Thereupon,  as  it  appears  from  the  record  of  the  board,  an  ad- 
journment was  taken  until  3:30  p.  m.  of  said  day  to  "allow 
bidders  to  refigure  their  bids." 

At  this  adjourned  session,  the  record  shows  that  Dutweiler  & 
Silders  and  Jacob  Baltes  presented  a  bid  for  the  construction  of 
the  new  school  house  for  the  sum  of  $8,797.  This  amount  still 
exceeding  the  appropriation,  certain  changes  and  deductions 
were  made,  which  are  specifically  set  out  in  the  record,  and 
which  in  the  aggregate  amount  to  $557.  No  one  was  present 
when  these  changes  and  deductions  were  made,  except  the  mem- 
bers of  the  board,  architect  Baltes,  and  Dutweiler,  the  other 
two  bidders  being  absent.  There  were  no  defects  apparent  on 
the  face  of  any  of  the  bids. 

It  will  be  seen  that,  after  deducting  the  amount  allowed  for 
these  changes  from  the  last  bid  of  Baltes  and  Dutweiler  &  Silders 
(who  seem  to  have  united  their  bids)  it  just  equaled  the  amount 
of  money  realized  from  the  sale  of  the  bonds,  including  premium 
and  accrued  interest,  viz.,  $8,240.  Thereupon  the  contract  was 
awarded  to  Baltes,  and  afterwards  on  August  31  the  contract 
was  signed. 

The  heating  plant  mentioned  in  the  resolution  of  the  board, 
and  in  the  proposition  submitted  to  electors  of  the  district,  was 
not  provided  for  or  covered  by  this  contract.  The  legality  of 
this  contract  is  challenged,  principally,  upon  these  grounds: 

First.    Want  of  authority  in  the  board  to  make  it. 


694  PAULDING  COUNTY  COMMON  PLEAS. 

McAlexander  v.  Havlland  School  District  [Vol.  VII,  N.  S. 

Second.  Illegality  of  bid  under  which  contract  was  awarded 
and  entered  into. 

Third.  Because  illegal  and  void,  under  the  provisions  of 
Section  28346,  Revised  Statutes. 

It  waa  well  said  by  counsel,  in  the  statement  of  the  ease,  that 
novel  and  interesting  questions  were  involved.  After  a  careful 
examination  of  the  case,  the  statutes  and  authorities  cited,  I  agree 
with  counsel  in  the  statement  made. 

1.    Want  of  authority  in  board  to  make  contract. 

So  far  as  applicable,  Section  3991,  Revised  Statutes,  provides: 

"When  the  board  of  education  of  any  school  district  de- 
termines that  it  is  necessary  for  the  proper  accommodation  of 
the  schools  of  such  district  *  *  *  to  erect  a  school  house 
*  *  *  or  when  it  becomes  known  to  the  board  of  education 
that  the  money  provided  for  •  *  *  the  erection  of  a 
school  house  *  #  *  is  not  sufficient  therefor,  and  such 
board  ascertains  that  *  *  *  the  erection  and  furnishing  of 
such  school  house  •  *  *  for  which  a  sufficient  sum  of 
money  has  not  been  provided,  will  require  a  greater  tax  upon 
the  property  of  such  district  than  the  board  is  authorized  by 
this  title  to  levy,  and  that  to  provide  means  therefor  it  will  be 
necessary  to  issue  bonds,  it  shall  make  an  estimate  of  the  prob- 
able amount  of  money  required  for  such  purposes,  •  •  * 
and  at  a  general  election,  or  special  election  called  for  that 
purpose,  shall  submit  to  the  electors  of  the  district  the  question 
of  levying  taxes  for  such  purposes,"  etc. 

The  section  then  provides  that  ten  days  notice  shall  be  given. 
etc.,  of  said  election.'  It  will  be  seen,  "that  board  shall  make 
an  estimate  of  the  probable  amount  of  money  needed  for  the 
purpose,"  etc. 

The  statute  does  not  require  that  the  board  must  know,  in  ad- 
vance, the  exact  amount  of  money  that  will  be  required.  This 
would,  in  many  eases,  be  impossible  to  ascertain.  I  have  .no 
doubt  that  the  members  of  this  board  of  education  honestly  be- 
lieved that  $8,000  would  build  and  finish  this  school  buiuding, 
and  equip  it  with  a  modern  heating  plant.  In  the  light  of  sub- 
sequent events,  it  is  now  apparent  they  were  mistaken.  It 
was  an  error  of  judgment  in  estimating  the  probable  costs  of 
the  proposed  improvements.    I  do  not  and  can  not  believe  that 


NISI  PEIUS  REPORTS— NEW  SERIES.  696 

1908.]  McAlexander  v.  Havlland  School  District 

this  error  or  mistake  in  estimating  the  costs  of  this  improve- 
ment (when  honestly  made),  so  misled,  or  prejudiced  the 
electors  of  this  school  district,  or  so  limited  and  circumscribed 
the  authority  of  the  board  as  to  make 'and  render  mill  and  void 
the  contract  with  the  board,  in  good  faith  subsequently  made 
and  entered  into. 

2.  Illegality  of  bid  under  which  contract  was  awarded  and 
entered  into  by  the  board. 

It  is  said  in  argument  that  the  bids  of  Allingham  and 
Christian  were  unlawful  for  that  they,  or  either  of  them,  did 
not  comply  with,  nor  conform  to,  the  requirements.  There 
is  no  evidence  before  the  court  upon  this  subject.  However  that 
may  he,  the  bids  of  Baltes  and  Dutweiler  &  Silders,  as  far  as 
appears,  were  regular  and  complied-  with  all  the  requirements  of 
the  board.  After  the  bids  were  all  opened  and  examined  and 
the  board  had  adjourned,  as  we  have  shown,  the  original  bid  of 
Baltes,  not  because  of  any  defect  or  mistake  apparent  upon  the 
face  of  the  bid,  was  scaled  down,  various  items  omitted,  parts 
of  building  left  unfinished,  so  that  his  original  bid  of  $9,655 
was  so  modified  and  changed  that  the  price  finally  arrived  at 
by  this  method,  exactly  equaled  the  amount  realized  from  the 
sale  of  the  bonds.  The  bid  which  was  accepted,  and  upon  which 
the  contract  was  awarded,  was  an  entirely  different  bid  from  the 
one  originally  made.  It  was  a  bid  made  without  notice  and 
without  compensation — a  bid  changed,  altered,  and  modified  to 
meet  the  appropriation. 

It  seems  to  me  that  this  was  and  is  in  direct  violation  of  Sec- 
tion 3988,  Revised  Statutes,  and  adjudged  eases. 

In  McOreevey  v.  Toledo,  20  C.  C,  114,  the  circuit  court  say, 
in  syllabus  and  in  the  body  of  the  opinion : 

"1.  A  contract  between  the  board  of  education  and  the  lowest 
bidder  for  an  excavation  for  a  school  house,  based  upon  a  bid 
which  the  contractor  was  allowed  to  amend  and  increase,  on  ac- 
count of  an  alleged  mistake  which  did  not  appear  on  the  face 
of  the  original  bid  is  void  under  Section  3988,  Revised  Statutes, 
providing  the  manner  in  which  such  contracts  shall  be  awarded, 
although  the  bid  as  amended  was  still  the  lowest  hid  received. 

"2.     Such   contract  being   void,  there   can   be   no   recovery 


696  PAULDING  COUNTY  COMMON  PLEAS. 

McAlexander  v.  Haviland  School  District  [Vol.  VII,  N.  S. 

thereon,  or  for  the  value  of  the  work  and  labor  performed 
thereunder. 

"After  examining  the  authorities  and  considering  the  ques- 
tion, we  are  of  the  opinion  that  the  board  did  not  have  such  au- 
thority in  this  case.  As  we  understand  the  rule,  to  permit  the 
amendment  of  a  bid  that  has  been  opened  and  after  the  bidder 
has  seen  the  other  bids,  to  permit  an  amendment  then,  or  ac- 
count of  a  mistake,  it  must  be  a  mistake  that  appears  on  the 
face  of  the  bid.  There  is  no  mistake  appearing  on  the  face  of 
this  bid;  it  is  just  a  plain  bid  to  do  work  for  $1,215,  without 
reciting  any  calculations,  but  just  the  mere  words;  'Excava- 
tion, $1,215.' 

"Being  of  the  opinion  that  this  bid  could  not  be  amended,  is 
the  plaintiff  then  entitled  to  recover  what  the  worlt  is  reasonably 
worth  f  It  is  claimed  by  the  plaintiff  in  error  that  although  the 
board  had  no  right  to  permit  him  to  amend  his  bid,  the  con- 
tract having  been  executed  and  the  work  having  been  performed, 
he  ought  to  be  paid  therefor.  To  hold  otherwise,  it  is  urged, 
would  result  in  hardship  to  this  plaintiff.  The  rule  is  well  set- 
tled that  a  municipal  corporation  or  a  board  thereof  has  such 
powers  and  such  powers  only  as  are  conferred  upon  such  corpora- 
tion or  such  board,  by  law.  If  a  board  or  corporation  is  author- 
ized to  make  a  contract  for  building,  or  for  any  other  purpose  and 
is  required  to  conform  to  certain  things  before  making  such 
a  contract,  in  order  to  make  such  a  contract  those  things  desig- 
nated by  the  law  of  the  state  must  be  complied  with,  and  such 
conditions  are  strictly  construed  in  favor  of  the  tax-payers  of 
a  municipal  corporation  and  against  the  right  of  such  corpora- 
tion or  such  board  to  make  such  a  contract.  Those  who  deal 
with  boards  and  with  municipal  corporations  are  supposed  to 
know  what  powers  they  have  in  the  way  of  making  contracts." 

The  Supreme  Court,  in  Beaver  v.  Institution  for  Blhtd,  19 
Ohio  St.,  97,  held: 

"In  such  cases,  after  the  day  limited  for  the  filing  of  such 
proposals,  and  after  the  same  have  been  opened,  the  trustees  are 
invested  with  no  discretion  to  permit  an  amendment  or  alteration 
of  any  such  proposal  on  account  of  any  alleged  mistake  therein, 
unless  the  fact  of  such  mistake  and  the  requisite  data  for  cor- 
recting the  same  are  apparent  on  the  face  of  the  proposals." 

The  same  principle  is  held  in  State  v.  Abbot,  2  C.  C— N.  S., 
281;  Akron  v.  France,  4  C.  C— N.  S.,  496. 


NISI  PBIUS  BEPOBTS— NEW  SEBIE8.  597 

1908.)  McAlexander  v.  Havllaud  School  District 

From  the  foregoing  authorities  and  others  that  might  be 
cited,  I  am  of  the  opinion,  and  so  hold,  that  this  bid  was  not 
authorized,  and  was  illegal. 

3.  Is  the  contract  illegal  and  void  under  the  provisions  of 
Section  24340,  Revised  Statutes* 

This  section  provides : 

"The  commissioners  of  any  county,  the  trustees  of  any  town- 
ship and  the  board  of  education  of  any  school  district,  except  in 
cities  of  the  first  class,  of  first,  second  and  third  grade,  shall 
enter  into  no  contract,  agreement,  or  obligation  involving  the 
expenditure  of  money,  nor  shall  any  resolution  or  order  for  the 
appropriation  or  expenditure  of  money  be  passed  by  any  board 
of  county  commissioners,  township  trustees  or  board  of  educa- 
tion, except  in  cities  of  the  first  class,  of  first,  second  and  third 
grade,  unless  the  auditor  or  the  elerk  thereof  shall  first  certify 
that  the  money  required  for  the  payment  of  such  obligation  or 
appropriation  is  in  the  treasury  to  the  credit  of  the  fund  from 
which  it  is  to  be  drawn,  or  has  been  levied  and  placed  on  the 
duplicate,  and  in  process  of  collection  and  not  appropriated 
for  any  other  purpose;  which  certificate  shall  be  filed  and  im- 
mediately recorded;  and  the  sums  so  certified  shall  not  there- 
after be  considered  unappropriated  until  the  county,  township 
or  board  of  education,  except  in  cities  of  the  first  class,  of  first, 
second  or  third  grade,  is  fully  discharged  from  the  contract, 
agreement  or  obligation,  or  so  long  as  the  order  or  resolution  is 
in  force,  and  all  contracts,  agreements  or  obligations,  and  all 
orders  or  resolutions  entered  into  or  passed  contrary  to  the  pro- 
visions of  this  section,  shall  be  void.  Provided,  that  none  of  the 
provisions  of  this  section  shall  apply  to  the  contracts  authorized 
to  be  made  by  other  provisions  of  law  for  the  employment  of 
teachers,  officers,  and  other  school  employes  of  boards  of  educa- 
tion. ' ' 

It  will  be  seen  that  this  statute,  in  express  terms,  declares  that 
"all  contracts,  agreements  or  obligations,  and  all  orders  or 
resolutions  entered  into  or  passed  contrary  to  the  provisions  of 
this  section,  shall  be  void,"  unless  the  auditor  or  clerk  shall 
first  certify  that  the  money  required  for  the  payment  of  such 
obLigation  or  appropriation  is  in  the  treasury  to  the  credit  of 
the  fund  from  which  it  is  to  be  drawn,  etc.  It  is  conceded  that 
the  certificate  was  never  made. 


598  PAULDING  COUNTY  COMMON  PLEAS. 

McAleiander  v.  Haviland  School  District  [Vol.  VII,  N.  8 

In  Lancaster  v.  MiUer,  58  Ohio  St.,  558,  the  Supreme  Court 
say: 

"Nor  will  such  contracts  impose  on  the  corporation  a  valid 
obligation,  even  if  bids  were  advertised  for  pursuant  to  Section 
2303,  unless  the  auditor,  or  clerk,  of  the  corporation,  as  the  case 
may  be,  'shall  first  certify  that  the  money  required  for'  that 
purpose  '  is  in  the  treasury  to  the  credit  of  the  fund  from  which 
it  is  to  be  drawn,'  etc.,  as  required  by  Section  2702,  Revised 
Statutes." 

Original  Section  2702  (1536-205),  Revised  Statutes,  is  almost 
identical  with  Section  28346,  and  if  the  certificate  mentioned  is 
essential  in  the  one  it  is  also  in  the  other. 

On  page  575,  Lancaster  v.  Miller,  supra,  the  court,  in  its 
opinion,  says: 

"Contracts  made  in  violation  of  these  statutes  should  be  held 
to  impose  no  corporate  liability.  Persons  who  deal  with  mu- 
nicipal bodies  for  their  own  profit  should  be  required  at  their 
peril  to  take  notioe  of  limitations  upon  the  powers  of  those 
bodies  which  these  statutes  impose." 

Id  Buchanan  Bridge  Co.  v.  Campbell,  60  Ohio  St.,  406,  the 
Supreme  Court  held : 

"A  contract  made  by  county  commissioners  for  the  purchase 
and  erection  of  a  bridge,  in  violation  or  disregard  of  the  stat- 
utes on  that  subject  is  void,  and  no  recovery  can  be  had  against 
the  county  for  the  value  of  the  bridge.  Courts  will  leave  the 
parties  to  such  unlawful  transaction  where  they  have  placed 
themselves,  and  will  refuse  to  grant  relief  to  either  party." 
Richter  v.  Building  &  Loan  Co.,  7  C.  C— N.  S.,  360. 

From  the  foregoing  authorities,  the  court  holds  that  the  eon- 
tract  made  by  the  board  of  education  of  Haviland  school  dis- 
trict and  Jacob  Baltes,  was  illegal  and  void,  because  repugnant 
to,  and  in  violation  of,  Section  28346,  Revised  Statutes. 

The  next  question  for  determination  is  the  injunction  or  re- 
straining order  allowed  by  the  probate  judge  of  Paulding  coun- 
ty, enjoining  the  defendant  board  from  resubmitting  the  ques- 
tion of  issuing  bonds  to  equip  this  school  building  with  a  modern 
heating  plant. 


NISI  PRIUS  REPORTS— NEW  SERIES.  6»9 

1908.]  McAJexander  r.  Havlland  School  District. 

The  rule  is  well  settled  that  courts  will  not  ordinarily  under- 
take, by  injunction  or  otherwise,  to  control  the  discretion  of 
boards  or  other  inferior  tribunals.  It  is  only  where  there  is  an 
abuse  of  discretion  that  courts  will  interfere. 

The  cireuit  court  of  the  first  circuit,  in  case  of  Pugh  Prig,  Co. 
v.  Yeatman,  22  C.  C,  584,  held: 

"1.  The  presumption  is  that  public  officers — in  this  case  the 
deputy  state  supervisors  of  election — have  exercised  a  sound 
discretion,  and  the  burden  of  proof  is  on  the  plaintiff  to  show, 
with  that  clearness  which  is  always  necessary  to  move  a  court  of 
equity  to  interfere,  a  state  of  facts  which  would  constitute  an 
abuse  of  discretion. 

"2.  The  courts  can  not  control  public  officers  in  the  exercise 
of  their  discretion.  It  is  only  when  the  courts  find  present  some 
of  the  equitable  grounds  of  fraud  or  mistake,  or  find  the  decision 
or  award  to  be  wrongful,  fraudulent,  collusive  or  arbitrary,  that 
they  can  set  aside  or  restrain  their  conclusions  or  determina- 
tions. ' ' 

Judge  Price,  late  of  our  circuit  court,  and  now  a  member  of 
the  Supreme  Court,  in  the  ease  of  Watkins  v.  Hall,  13  C.  C, 
253,  held: 

"It  is  very  clear  that  so  far  are  the  control  and  management 
of  the  school  interests — the  selection  of  the  site,  and  erection 
and  equipment  of  buildings — committed  to  the  judgment  and 
discretion  of  the  board  of  education,  that  a  court  can  not  inter- 
fere with  the  exercise  of  such  judgment  and  discretion,  except 
where  it  is  abused  or  overreached,  or  where  the  conduct  or  action 
of  the  board  proceeds  from  fraudulent  motives,  or  improper 
purposes,  which  would  be  the  same  thing  in  law  as  a  gross  abuse 
of  discretion." 

In  the  case  now  under  consideration,  the  board  submitted  the 
question  of  issuing  bonds  to  pay  for  the  heating  plant  for  this 
school  building  three  different  times :  Fret,  bonds  in  the  amount 
of  $1,300;  second,  in  the  sum  of  $1,500;  third,  in  the  sum' of 
$1,550,  which  propositions  were  voted  down  by  the  electors  of 
the  district,  each  time  by  an  increased  majority.  The  question 
was  about  to  be  submitted  the  fourth  time  when  the  board  was 
enjoined. 


COO  PAULDING  COUNTY  COMMON  PLEAS. 

McAlexander  v.  Havlland  School  District.  [Vol.  VII,  N.  & 

While  I  can  not  and  do  not  find  from  the  evidence  that  the 
members  of  this  board  acted  dishonestly,  corruptly,  or  fraudu- 
lently, in  any  manner  or  thing  connected  with  any  of  the  various 
transactions  growing  out  of  or  touching  these  improvements,  con- 
tract, bids,  bonds,  Or  submissions,  yet  we  hold  that  the  further 
submission  of  the  question  of  issuing  bonds  to  install  this  heat- 
ing plant,  thereby  subjecting  the  electors  of  said  district  to 
further  annoyance,  inconvenience,  loss  of  time,  and  expense, 
would  be  an  unwarranted  and  unauthorized  exercise  and  abuse 
of  the  authority  and  discretion  of  the  board. 

It  is  therefore  the  order  and  judgment  of  the  court,  that  the 
temporary  injunction  heretofore  allowed,  restraining  said  de- 
fendant, the  board  of  education  of  the  Haviland  village  school 
district,  from  calling  any  other  or  further  elections  for  the  pur- 
pose of  issuing  any  bonds  of  the  said  district  for  the  purpose 
of  placing  in  said  school  house  any  heating  plant,  be  and  the 
same  is  made  perpetual. 

While  the  court  finds  that  the  contract  for  the  building  and 
construction  of  said  school  house  was  illegal  and  void,  yet  the 
court  further  finds  that  said  contract  has  been  fully  executed, 
and  the  building  built,  completed  and  paid  for,  in  good  faith, 
free  from  fraud  or  collusion  on  the  part  of  said  board,  the  mem- 
bers thereof,  or  the  contractor. 

It  is  therefore  the  further  order  and  judgment  of  the  court 
that  the  mandatory  injunctions  prayed  for,  should  be  and  are 
refused,  as  is  also  the  prayer  for  a  finding  of  the  amount  of 
money  claimed  to  be  illegally  paid  out  by  said  board  of  educa- 
tion on  account  of  said  proposed  school  building;  and  judg- 
ment therefor. 


NISI  PRIUS  REPORTS— NEW  SERIES, 
gtemen  v.  Hlzey  et  al. 


ASSESSMENT  FOR.  TOWNSHIP  DITCH  IN  EXCESS  OF 
BENEFITS. 

Common  Pleas  Court  of  Fairfield  County. 

Stemen  v.  Hizey  et  al,  Township  Trustees.  ■ 

Decided,  May  16,  1908. 

Ditches — Assessment  for,  in  Excess  of  Benefits — Where  Ditch  was 
Made  5y  Township  Trustees — Remedy — Jurisdiction— Injunction 
—Sections  6108  and  4491. 

Where  the  assessment  for  a  township  ditch  Is  in  excess  of  the  benefits 
conferred.  Its  collection  may  be  enjoined,  notwithstanding  the 
trustees  had  jurisdiction  to  order  the  Improvement  and  all  the 
proceedings  were  Tegular. 

W.  H.  Lane  and  C.  0.  Beats,  for  plaintiff. 
C.  W.  McCleery,  for  defendants. 
Reeves,  J. 

Heard  on  demurrer  to  the  petition. 

This  is  an  action  to  enjoin  an  assessment  against  the  plaintiff, 
and  also  an  order  requiring  him  to  make  a  certain  portion  of  n 
ownship  diteh,  Known  as  the  Benoni  Stemen  ditch  described  in 
e  petition. 

To  the  petition  a  demurrer  is  interposed,  and  the  question  is 
■aised  that  this  plaintiff  is  not  entitled  to  maintain  his  action  in 
equity  for  an  injunction,  because  he  has  an  adequate  remedy  at 
It  is  claimed  that  under  the  provisions  of  Section  6708, 
Revised  Statutes,  that  the  plaintiff  has  an  adequate  remedy  at 
aw,  and  that  it  was  his  duty  and  the  law  required  of  him  when 
his  order  was  made,  that  he  enter  an  exception  on  the  journal 
of  the  township  trustees  and  prosecute  a  petition  in  error  to  this 
court  to  reverse  or  modify  the  decision  of  the  township  trus- 
tees, and  in  support  of  that  proposition  quite  a  number  of  au- 
thorities have  been  cited,  which  it  is  claimed  settles  this  propo- 
sition ;  that  it  was  the  duty  of  the  plaintiff  in  this  case  to  file 

•Affirmed  by  the  Circuit  Court,  11  C.  C— N.  S.,  347. 


«02  FAIRFIELD  COUNTY  COMMON  PLEAS. 

atemen  v.  Hixey  et  al.  [Vol.  VII,  N.  8. 

a  petition  in  error;   and  the  principal  ease  relied  upon  is  the 
case  of  Baff  v.  Fuller,  45  Ohio  St.,  495,  wherein  it  was  held : 

"The  final  orders  of  township  trustees,  establishing  ditches, 
drains,  and  water-courses,  may  be  reviewed  by  petition  in  error, 
and  reversed  for  errors  apparent  on  the  record.  Such  pro- 
cedure, and  not  injunction  restraining  the  construction  of  the 
ditch,  drain  or  water-course,  is  the  appropriate  remedy  for  the 
correction  of  such  errors;  and  the  action  for  an  injunction  to 
restrain  the  construction  of  a  ditch,  for  errors  and  defects  in 
the  proceedings  of  the  trustees  establishing  the  same,  can  not 
be  maintained,  where  the  only  evidence  to  support  the  action  is 
the  ditch  record,  on  whieh  the  errors  and  defects  complained  of 
appear. ' ' 

When  we  eome  to  look  at  this  ease,  wc  find  that  it  was  an 
action  brought  to  enjoin  the  trustees,  and  when  it  came  to  the 
trial  of  the  case  they  introduced  no  evidence  whatever.  The 
matters  complained  of  are: 

1.  The  petition  for  the  ditch  does  not  state  that  it  will  be 
conducive  to  the  public  health,  convenience  or  welfare. 

2.  The  trustees  made  no  finding  that  the  petitioners  filed  a 
bond  or  gave  notice  of  the  pendency  or  hearing  of  the  petition. 
nor  that  the  ditch  would  be  conducive  to  the  public  convenience 
or  welfare. 

3.  That  the  trustees  lost  jurisdiction  during  the  hearing. 

4.  One  of  the  trustees  was  a  brother  of  a  petitioner  for  the 
diteh. 

When  it  came  to  the  trial  of  this  case  in  the  court  of  common 
picas,  judgment  was  rendered  perpetually  enjoining  the  con- 
struction of  the  ditch,  and  the  defendants  prosecuted  error  to 
obtain  a  reversal  of  that  judgment.  The  only  thing  that  was 
introduced  was  the  record  of  the  township  trustees.  No  other 
evidence  was  offered,  and  it  appeared  that  all  those  errors  com- 
plained of  were  apparent  on  the  record.  One  of  the  trustees  was 
a  brother  of  a  petitioner  for  the  ditch.  There  is  no  way  of 
challenging  a  trustee  as  you  can  a  juror.  It  has  been  held  that 
where  an  auditor  or  county  commissioner  is  a  relative,  and  there 
is  no  provision  to  supply  his  place  on  the  board,  that  that  fact 
is  not  an  error  for  which  proceedings  will  be  enjoined. 


NISI  PRIUS  REPORTS— NEW  SERIES.  SOS 

1908.]  Stomen  v.  Hlaey  et  al. 

What  does  the  court  say  I  Reading  from  Haff  v.  Fuller,  supra, 
page  498 : 

"In  cases  of  that  kind,  if  it  be  shown,  contrary  to  what  ap- 
pears on  the  record,  that  the  board  or  tribunal  proceeded  with- 
out jurisdiction,  injunctions  may  be  granted,  for  there  is  then 
no  adequate  remedy  at  law  (Anderson  v.  Hamilton  County  Com- 
missioners, 12  Ohio  St.,  635;  Hays  v.  Jones,  27  Ohio  St.,  218). 
And  where  the  judgment  or  order  has  been  obtained  by  the  fraud 
or  misconduct  of  the  party,  or  other  circumstances  of  fraud, 
accident  or  mistake  or  the  like  are  shown,  it  has  been  held  that 
injunction  restraining  the  execution  of  the  judgment  or  order 
is  a  proper  remedy  (Oifford  v.  Morrison,  37  Ohio  St.,  502,  506; 
Frevert  v.  Finfrock,  31  Ohio  St.,  621,  627).  But  nothing  of  the 
kind  is  claimed  in  this  case. 

"We  do  not  find  it  neeessary  to  decide  here  whether  the  de- 
fects in  the  ditch  record  given  in  evidence  by  the  plaintiff  on  the 
trial  of  the  action  in  the  circuit  court,  are  such  as  to  require  or 
authorize  the  reversal  of  the  order  of  the  trustees  establishing 
the  ditch.  He  gave  no  evidence  in  support  of  his  action  but  the 
record,  and  therefore  whatever  infiirmities  there  were  in  the  pro- 
ceedings of  the  trustees,  of  which  he  sought  to  avail  himself, 
were  apparent  on  the  record.  If  they  were  not  of  that  sub- 
stantial character  which  affected  the  validity  of  the  proceedings. 
he  was  not  entitled  upon  that  proof  to  the  perpetual  injunc- 
tion granted  him.  If  they  were  of  that  character,  they  appeared 
on  the  face  of  the  record,  and  tho  remedy  by  petition  in  error 
to  reverse  was  open  to  him.  Such  a  proceeding  afforded  a  plain 
and  adequate  remedy,  and  no  ground  for  interference  by  a  court 
of  equity  by  injunction  was  shown." 

In  that  behalf  there  are  two  or  three  other  eases  of  the  same 
character.  There  is  the  ease  of  Anderson  v.  Hamilton  County 
Commissioners,  supra,  that  was  a  petition  in  error.  In  that  e.Tse 
it  was  claimed  that,  while  the  record  on  its  face  shows  that  the 
petition  for  the  ditch  was  signed  by  twenty  petitioners  and  pre- 
sented to  the  commissioners  and  that  notice  had  been  given,  it 
was  averred  that  not  twelve  of  those  twenty  were  freeholders, 
and  that  in  fact  no  notice  had  been  given.  An  attempt  was 
made  to  introduce  testimony  upon  that  claim  to  show  that  there 
were  not  twelve  of  those  petitioners  freeholders,  and  that  notice 
had  not  actually  been  given,  which  the  court  refused  to  allow 
to  be  introduced.     The  case  was  then  taken  to  the   Supreme 


804  FAIRFIELD  COUNTY  COMMON  PLEAS. 

Stemen  v.  Hlzey  et  al.  [YoL  VII,  N.  S. 

Court,  which  merely  hinted  at  the  question  as  to  whether  a  peti- 
tion in  error  was  the  proper  remedy;  but  the  Supreme  Court 
held  that  the  court  of  common  pleas  erred  in  not  allowing  the 
plaintiff  to  show  that  there  was  not  a  petition  signed  by  at 
least  twelve  freeholders,  and  no  notice  as  prescribed  by  the  stat- 
ute. There  was  no  finding  in  the  record  that  these  were  free- 
holders; there  was  no  copy  of  the  notice  in  the  record.  Yon 
must  observe  that  these  two  matters  were  jurisdictional  facts. 
If  the  petition  for  the  ditch  was  not  signed  by  twelve  freehold- 
ers and  notice  not  given  as  required  by  law,  the  commissioners 
never  obtained  jurisdiction.  The  court  held  that  question  might 
be  raised  in  a  proceeding  in  error,  and  that  therefore  the  court 
of  common  pleas  erred  in  not  allowing  the  plaintiff  to  show  that 
the  commsisioners  never  did  obtain  jurisdiction.  You  will  find 
that  when  this  ease  is  referred  to  in  subsequent  decisions,  the 
court  called  attention  to  the  facts-  that  the  errors  for  which  it 
was  reversed  went  to  'the  jurisdiction  of  the  court.  The  ques- 
tions raised  in  this  court  do  not  go  to  the  jurisdiction  of  the 
trustees  at  all.  It  is  admitted  that  the  trustees  had  jurisdiction ; 
it  is  admitted  that  a  proper  petition  was  filed,  that  notice  was 
given,  that  this  plaintiff  had  notice  and  appeared  before  the 
trustees  and  attempted  to  assert  his  rights.  Let  us  look  at  some 
other  eases. 

The  court  says  in  Greene  County  Commissioners  v.  Harbine, 
74  Ohio  St.,  318,  327 : 

"In  77a#  v.  Fuller,  45  Ohio  St.,  495,  it  is  held  that  the  final 
orders  of  the  township  trustees  establishing  ditches  may  be  re- 
versed by  petition  in  error  for  errors  apparent  on  the  record; 
and  that  such  procedure  and  not  injunction  is  the  appropriate 
remedy  for  the  correction  of  sneh.  errors,  and  in  the  opinion  it 
is  said  that  the  same  rule  applies  to  the  final  orders  of  county 
commissioners  establishing  ditches;  that  the  rule  has  been  ap- 
plied where  the  errors  so  appearing  .render  the  proceedings  void 
for  want  of  jurisdiction. 

"In  the  present  case  the  want  of  jurisdiction  does  not  arise 
from  some  error  appearing  on  the  record  of  the  proceedings,  but 
from  want  of  power  in  the  commissioners  to  act  at  all." 

I  will  now  call  attention  to  the  ease  of  Lewis  v.  Laylin,  4fi 
Ohio  St.,  663,  676: 


NISI  PRIUS  REPORTS— NEW  SERIES.  606 

1908.]  Stamen  v.  Htzey  et  al. 

"The  principle  decided  in  Haff  v.  Fuller,  supra,  applies 
equally  as  well  to  proceedings  before  county  commissioners  un- 
der the  two-mile  assessment  pike  laws,  as  to  proceedings  before 
township  trustees  under  the  ditch  laws.  In  that  case  the  aetion 
was  directly  to  enjoin  the  construction  of  the  improvement  (a 
ditch),  while  in  the  ease  before  us  it  was  to  enjoin  the  collection 
of  an  assessment  to  pay  its  cost,  which  latter  action  is  authorized 
by  chapter  13  of  the  code  of  civil  procedure ;  but,  in  either  case, 
it  was  the  jurisdiction  of  the  board  and  the  regularity  of  the 
proceeding  had  before  it,  that  were  challenged;  and  the  right 
of  the  party  to  do  this  in  equity,  can  not  depend  upon  his  lying 
by  until  the  improvement  is  substantially  completed,  and  then 
seeking  to  accomplish  by  its  aid  what  he  could  have  done  by  a 
proceeding  in  error.  The  rule  as  laid  down  in  45  Ohio  St., 
495,  at  497,  is  as  follows:  'As  a  result  of  the  rule  that  courts 
of  equity  do  not  entertain  jurisdiction  for  the  enforcement  of 
rights,  or  the  prevention  of  wrongs,  when  the  legal  tribunals  are 
capable  of  affording  redress,  it  is  always  a  sufficient  objection  to 
the  granting  of  an  injunction,  that  the  party  aggrieved  has  a 
full  and  adequate  remedy  at  law.  In  the  application  of  the  rule 
it  is  accordingly  held,  that  courts  of  equity  will  not  sit  as  courts 
of  error,  to  revise  and  correct  proceedings  at  law,  or  grant  in- 
junctions against  judgments,  because  of  errors  in  the  proceed- 
ings, where  proper  relief  can  be  had  in  the  ordinary  course  of 
appellate  procedure.'  The  omissions  and  irregularities,  held  by 
the  circuit  court  to  be  errors  invalidating  the  proceeding  had 
before  the  county  commissioners,  were  all  apparent  on  the  face, 
and  for  their  correction  there  was  provided  a  legal  remedy  by 
petition  in  error,  and  they  were  not  proper  predicates  for  equi- 
table relief." 

Now  the  difference  between  these  cases  and  the  case  at  bar  is 
that  the  errors  complained  of  are  not  jurisdictional  facts,  nor  do 
they  appear  on  the  face  of  the  record.  Let  us  look  at  the  case 
of  Hays  v.  Jones,  supra.  The  fourth  paragraph  of  the  sylla- 
bus is  as  follows : 

"In  cases  arising  under  these  road  inmprovement  statutes. 
where  no  remedy  is  named,  and  the  jurisdiction  of  the  board  of 
county  commissioners  is  made  the  question,  proceedings  in  equity 
to  inquire  into  the  jurisdictional  facts,  and  for  injunction,  is  a 
proper  remedy." 

This  matter  was  also  examined  in  Musser  v.  Adair,  55  Ohio 
St.,  466,  476: 


60«  FAIRFIELD  COUNTY  COMMON  PLEAS. 

Stemen  v.  Hlzey  et  al.  [Vol.  VII,  N.  a 

"Reliance  is  placed  upon  Haff  v.  Fuller,  45  Ohio  St.,  495,  and 
Lewis  v.  Laylin,  46  Ohio  St.,  663.  These  oases,  as  will  be  shown, 
must  be  confined  to  their  particular  facts.  The  first  was  a 
suit  to  enjoin  the  construction  of  a  ditch.  In  such  oases  records 
are  required  to  be  made  and  kept  of  their  proceedings ;  and  it 
was  there  held  that  a  proceeding  in  error  is  the  proper  remedy, 
where  the  defects  complained  of  are  apparent  on  the  face  of  the 
record,  and  that  injunction  is  only  proper  where  they  do  not, 
and  have  to  be  supplied  by  averment.  The  same  may  be  said 
of  Lewis  v.  Laylin.  It  grew  out  of  a  road  improvement  under 
the  two-mile  law;  and  the  assessments  were  questioned  on  ir- 
regularities in  the  proceedings,  and  averments  made  of  matters 
aliude  the  record.  The  only  evidence  introduced  of  the  irregu- 
larities charged,  was  the  record  itself ;  these  the  court  regarded 
as  of  no  consequence,  and  remarked  that  the  case  could  be  dis- 
posed of  for  this  reason  on  the  decision  of  the  former  case.  In 
Genin's  Excr.  v.  Belmont  County,  18  Ohio  St.,  534,  no  question 
was  made  or  considered  by  the  court  as  to  the  review  of  the  pro- 
ceedings of  the  auditor  on  error.  The  question  passed  sub 
silcnto,  and  the  case  is  therefore  not  authority  on  the  point. 

"Authority  for  a  proceeding  in  error  in  such  cases  is  based 
upon  the  clause  in  Section  6708,  Revised  Statutes,  conferring 
jurisdiction  in  error  on  the  court  of  common  pleas  to  review  the 
judgments  of  justices  of  the  peace  and  probate  courts;  and  by 
which  it  is  extended  to  '  any  other  tribunal,  board  or  officer  exer- 
cising judicial  functions,  and.  inferior  in  jurisdiction  to  the 
court  of  common  pleas.'  This  clause  of  the  section,  so  far  as  it 
relates  to  ministerial  officers,  is  open  to  the  objection  on  which 
Logan  Branch  Bank,  ex  parte,  was  decided.  This  case  is  sound 
in  principle,  and  shquld  not  be  departed  from  further  than  has 
been  done  in  the  two  preceding  cases.  The  above  clause  in  Sec- 
tion 6708  can  not  be  applied  to  cases  coming  within  the  pro- 
visions of  Section  5848,  Revised  Statutes,  affording  a  remedy  by 
injunction  against  the  collection  of  illegal  taxes  and  assessments. 
On  well  settled  principles  of  construction,  the  provisions  of  this 
section  must  be  excepted  out  of  the  generality  of  the  language' 
used  in  Section  6708.  If  not,  a  statute,  highly  remedial,  would, 
in  a  measure,  be  emasculated." 

Now,  what  are  the  facts  in  this  case,  which  is  admitted  to  be 
in  court  upon  the  question  of  assessment  of  benefits*  There  is 
no  question  that  the  proceedings  are  not  regular.  Where  and 
how  could  the  plaintiff  file  a  petition  in  error!  It  has  been  de- 
cided and  so  stated  by  the  Supreme  Court  in  nearly  all  these 
cases  (and  it  is  a  question  to  which  there  can  be  no  contest), 


NISI  PBIU8  BEPORTS— NEW  SEBIES.  607 

1908.]  Stemen  v.   Hizoy   et  al. 

that  if  an  assessment  is  improperly  and  corruptly  made,  or 
if  it  is  made  by  fraud  or  mistake,  it  may  deprive  a  man  of  his 
property  without  giving  him  any  remedy  whatever,  if  he  has 
no  remedy  by  application  to  a  court  of  equity.  The  Constitu- 
tion says  you  can  not  take  his  property  without  giving  him 
compensation.  How  is  the  compensation  fixed  in  the  first 
instance?  If  it  is  a  township  road  or  township  ditch,  it  is  fixed 
by  the  trustees;  if  a  county  road  or  county  ditch,  by  viewers 
appointed  by  the  commissioners.  He  has  an  appeal  from  this 
decision  to  the  probate  court,  where  he  may  have  a  jury.  There- 
fore that  provision  of  the  Constitution  is  complied  with.  He 
can  have  that  appeal,  but  when  it  comes  to  the  matter  of  as- 
sessment (and  that  may  be  either  in  requiring  a  party  to  pay 
a  certain  amount  of  money,  or  construct  a  certain  portion  of 
the  improvement)  there  is  no  appeal  given  him  whatever,  if 
he  is  not  satisfied  with  that.  The  only  thing  left  for  him  >s 
an  application  to  a  court  of  equity,  and  in  one  of  those  deci- 
sions it  is  said  that  right  is  given  him  outside  of  any  statute. 
It  is  a  constitutional  right  and  you  can  not  deprive  him  of  it. 
Suppose  for  instance  in  the  location  of  a  ditch  or  road,  the 
trustees  and  the  appraisers  should  conspire  together  and  would 
say,  "You  need  not  allow  him  any  compensation."  Suppose 
the  trustees  would  say,  "You  need  not  allow  him  any  compen- 
sation for  land  taken;"  he  can  take  his  appeal  in  that 
matter  and  have  a  jury  come  out  and  assess  it,  but  we 
will  fix  him  in  another  way;  we  will  allow  him  a  good  round 
compensation  and  his  damages,  but  wait  until  you  come  to  the 
construction  of  the  road  and  then  we  will  settle  with  him;  we 
will  settle  the  compensation  with  him  in  assessing  benefits." 
What  remedy  has  he!  His  only  remedy  is  by  application  to 
a  court  of  equity.  That  matter  was  fully  settled  in  Blue  v. 
Wcntz,  54  Ohio  St.,  247.  My  attention  is  called  to  the  fact 
that  the  petition  in  this  case  is  practically,  so  far  as  the  facts 
can  be  applied,  copied  from  Blue  v.  Wentz,  supra.  There  had 
been  the  same  proceedings.  The  court  in  that  case  says,  page 
255: 

"The  right  which  the  higher  tenement  has  to  require  the 
lower  one  to  receive  from  it  surface  water  that  naturally  drains 


«08  FAIRFIELD  COUNTY  COMMON  PLEAS. 

Stemen  v.  Hlzey  et  al.  [Vol.  VII.  N.  S. 

to  and  upon  it,  is  a  right  incident  to  the  higher  tenement,  and 
a  part  of  the  property  of  the  owner  in  it ;  and  for  any  invasion 
of  this  right  the  law  will  afford  him  a  remedy  (Washburn, 
Easements,  23,  211,  336;  Tootle  v.  Clifton,  22  Ohio  St.,  247; 
Butler  v.  Peck,  16  Ohio  St..  334;  Crawford  v.  Rambo,  44  Ohio 
St.,  279,  284;  Kauffman  v.  Oriesemer,  26  Pa.  St.,  407).  The 
reason  for  this  usually  given,  and  generally  accepted,  is  that 
water  is  naturally  descendible,  so  that,  in  the  course  of  nature, 
water  must  flow  from  *  higher  to  a  lower  level,  and  the  owner 
is  entitled  to  enjoy  his  property  with  such  natural  advantages 
as  are  derived  from  its  situation." 

And  again  on  page  256,  the  court  says : 

"The  petition  of  the  plaintiffs  makes  a  ease  for  relief;  and, 
if  the  facts  are  as  stated  in  the  petition,  the  assessments  should 
be  enjoined.  Or  if  some  benefits  are  conferred  on  the  lands  of 
the  plaintiffs  by  the  improvement  for  which,  within  the  princi- 
ples before  stated,  they  may  be  assessed,  power  is  conferred  on 
the  court  by  Section  4491,  Revised  Statutes,  to  set  aside  the  as- 
sessments and  cause  such  apportionment  of  the  cost  and  ex- 
penses to  be  made,  as  is  required  by  the  facts  of  the  case." 

After  carefully  examining  the  matter,  I  am  satisfied  that, 
while  jurisdictional  facts  appear  on  the  record,  yet  under  the 
allegations  of  the  petition  an'd  the  state  of  the  proceedings,  the 
proper  remedy  is  by  injunction  and  the  demurrer  will  be  over- 
ruled. 

Exceptions  noted  by  defendants. 


NISI  PRIUS  REPORTS— NEW  SERIES. 
Smith  v.  Western  Union  Telegraph  Co. 


COLLATERAL  ATTACK  ON  APPOINTMENT  OF  EXECUTOR. 

Common  Pleae  Court  or  Clark  County. 

Adolphus  H.  Smith  v.  Western  Union  Telegraph  Company.- 

Decided,  1907. 

Executors— Finding  of,  at  to  Legality  of  an  Appointment  Must  be 
Presumed — Appointment  of  a  Trust  Company  can  not  be  Collater- 
al!]/ Attacked— Jurisdiction  of  the  Probate  Court— Its  Inherent 
Power — Verity  of  its  Record — De  Facto  Executors. 

The  probate  court  has  Jurisdiction  to  hear  and  determine  the  ques- 
tion whether  or  not  a  trust  company  Is  legally  competent  to 
perform  the  duties  of  an  executor,  and  where  this  Jurisdiction  has 
been  exercised  the  determination  by  that  court  of  the  competency 
of  the  appointee  can  not  be  collaterally  attacked. 

Charles  L.  Spencer  and  Edwin  S.  South,  for  plaintiff. 
Martin  &  Martin,  for  defendant. 

KUNKLE,  J. 

The  plaintiff  seeks  to  recover  damages  for  injuries  to  certain 
of  his  shade  trees.  It  is  elaimed  they  were  marred  or  injured 
by  the  defendant  in  the  trimming  of  the  same.  The  ease  was 
brought  a  number  of  years  ago. 

Upon  the  death  of  the  plaintiff  the  Union  Savings  Bank  & 
Trust  Company  was  appointed  executor  of  the  last  will  and 
testament  of  the  said  Adolphus  H.  Smith.  The  trust  company 
accepted  such  appointment,  gave  bond,  entered  upon  the  dis- 
charge of  its  duties  as  such  executor,  and  since  said  date  has 
been  acting  in  such  capacity. 

*  The  Judgment  of  the  common  pleas  court  was  reversed  by  the  cir- 
cuit court,  and  the  Judgment  of  the  circuit"  court  was  affirmed  by 
the  Supreme  Court,  March  IT,  190S.  A  rehearing  ot  the  case  was 
had  In  the  Supreme  Court,  and  upon  such  rehearing  the  former 
Judgment  of  that  court  was  vacated,  the  judgment  of  the  circuit 
court  reversed,  and  the  Judgment  of  the  common  pleas  affirmed, 
79  Ohio  State,  p. . 


810  CLARK  COUNTY  COMMON  PLEAS. 

•  Smith  v.  Western  Union  Telegraph  Co.     [Vol.  VII,  N.  S. 

In  1904  the  trust  company  filed  a  motion  in  this  court  asking 
that  this  case  be  revived  in  its  name  as  such  executor.  A  con- 
ditional order  of  revivor  was  issued  upon  this  application,  and 
the  defendant  filed  an  answer  setting  forth  two  reasons  why 
this  case  should  not  be  revived  in  the  name  of  the  trust  company 
as  such  executor. 

The  first  reason  so  assigned  is  that  said  trust  company  is  not 
the  duly  appointed  and  qualified  executor  of  the  last  will  and 
testament  of  Adolphus  H.  Smith ;  that  said  trust  company  has 
no  authority  to  act  as  such  executor,  is  not  the  legal  representa- 
tive of  said  decedent,  and  can  not  prosecute  this  case  for  or  on 
account  of  the  said  decedent's  estate. 

The  trust  company,  for  reply,  states  that  it  is  the  duly  ap- 
pointed, qualified  and  acting  executor  of  the  last  will  and  testa- 
ment of  said  decedent. 

An  agreed  statement  of  facts  has  been  filed  which  shows  that 
the  trust  company  was  appointed  such  executor  on  the  11th  day 
of  August,  1902,  by  the  Probate  Court  of  Clark  County,  Ohio ; 
that  it  accepted  such  appointment ;  qualified ;  entered  upon  the 
discharge  of  its  duties,  and  since  said  date  has  been  acting  in 
that  capacity.  A  copy  of  the  letters  of  appointment  are  attached 
to  the  stipulation.  It  is  also  agreed  that  at  the  time  of  such  ap- 
pointment the  said  trust  company  was  and  ever  since  has  been  a 
corporation  organized  under  the  laws  of  the  state  of  Ohio. 

This  ease  is  submitted  as  to  the  first  defense  in  defendant's 
answer,  upon  the  stipulation  of  the  parties,  the  pleadings  re- 
lating to  such  first  defense,  and  the  motion  of  the  defendant  for 
judgment  in  its  favor  on  said  pleadings  and  stipulation. 

The  Legislature  of  Ohio,  prior  to  the  appointment  of  said 
trust  company  as  such  executor,  enacted  Sections  3821c,  'SS21f, 
and  other  sections  of  the  Revised  Statutes,  by  which  it  at- 
tempted to  confer  upon  such  trust  companies  the  power  to  take, 
accept  and  execute  such  trusts.  The  Supreme  Court  of  Ohio,  in 
1904  (several  years  after  the  appointment  of  said  trust  company 
as  such  executor),  held  that  trust  companies  are  without  capacity 
to  receive  and  exercise  appointments  as  administrators  of  the 
estates  of  deceased  persons,  because  the  legislation  evidencing 


NISI  PRIU8  REPORTS— NEW  SERIES.  811 

1908.]  Smith  v.  Western  Union  Telegraph  Co. 

an  intention  to  clothe  them  with  such  capacity  is  void,  being  of 
a  general  nature,  and  not  of  uniform  operation  throughout  the 
state,  as  required  by  Section  26,  Article  II  of  the  Constitution. 
69  0.  8.,  page  500. 

It  is  conceded  that  the  trust  company  does  not  now  have  the 
power  or  authority  to  receive  or  accept  an  appointment  as  an  ex- 
ecutor. 

It  is  claimed  by  the  Western  Union  Telegraph  Company,  that 
by  reason  of  the  invalidity  of  the  statutes  above  referred  to, 
that  the  trust  company  is  without  authority  to  appear  in  this 
court  and  ask  for  a  revivor  of  this  action  in  its  name. 

The  trust  company  claims  that  the  defendant  can  not  raise 
this  question  in  the  present  ease;  as  such  a  proceeding  would  be  a 
collateral  impeachment  of  the  record  of  the  probate  court  ap- 
pointing it  as  such  executor ;  that  the  record  of  the  probate 
court  as  to  this  appointment  is  final  and  conclusive,  until  it  has 
been  reversed  or  modified  by  a  direct  proceeding;  that  al- 
though the  probate  court  would  not  now  appoint  it  as  such  ex- 
ecutor, yet  having  had  jurisdiction  and  having  exercised  such 
jurisdiction,  the  appointment  can  not  be  attacked  collaterally ; 
that  if  the  defendant  is  averse  to  the  trust  company  conducting 
the  affairs  of  this  estate,  that  its  apointment  as  such  executor 
must  be  attacked  in  a  direct  proceeding  in  the  court  where  the 
original  appointment  was  made. 

The  telegraph  company  admits  that  the  findings  of  the  probate 
court  are  final  and  conclusive  in  all  matters  in  which  it  had  juris-  • 
diction  or  power  to  act,  but  claims  that  the  probate  court  had  no 
authority  in  1902,  or  at  any  other  time  to  appoint  an  exeeutor, 
except  in  eases  where  such  executor  was  nominated  in  a  will; 
that  although  Mr.  Smith  might  have  nominated  the  trust  com- 
pany as  his  executor,  that  the  probate  court  was  without  juris- 
diction to  appoint  the  trust  company  as  sueh  exeeutor,  for  the 
reason  that  the  Legislature  has  limited  the  nomination,  by  the 
testator,  and  the  appointment  by  the  probate  court  of  executors, 
to  those  who  are  legally  competent ;  that  by  virtue  of  the  deci- 
sion of  the  Supreme  Court  it  has  been  determined  that  the 
trust  company  is  not,  and  at  the  time  of  this  appointment  was 


812  CLARK  COUNTY  COMMON  PLEAS. 

Smith  v.  Western  Union  Telegraph  Co.    [Vol.  VII,  N.  S. 

not  legally  competent  to  serve  as  an  executor,  and  that  there- 
fore the  probate  court  was  without  jurisdiction  and  that  such 
appointment  was  void. 

Many  of  the  authorities  cited  consist  of  decisions  of  the  courts 
of  other  states.  An  examination  shows  that  many  of  these  deci- 
sions are  from  states  where  the  probate  court  derives  its  au- 
thority solely  from  legislative  enactments ;  some  are  from  states 
where  the  probate  court  is  not  a  court  of  record,  and  therefore 
they  are  of  little  value  in  the  determination  of  the  case  at  bar. 

Probate  courts  in  Ohio  derive  jurisdiction,  not  merely  from 
statutory  enactments,  but  also  from  the  Constitution. 

Section  8,  Article  IV,  provides  that : 

"The  probate  court  shall  have  jurisdiction  in  probate  and 
testamentary  matters,  the  appointment  of  administrators  and 
guardians,  the  settlement  of  accounts  of  executors,  administra- 
tors and  guardians.  *  "  •  and  such  other  jurisdiction  in  any 
county  or  counties  as  may  be  provided  by  law." 

The  Constitution  therefore  gives  the  probate  court  jurisdiction 
in  all  testamentary  matters. 

Section  5995,  Revised  Statutes,  provides  that; 

"When  any  will  shall  be  duly  proved  and  allowed,  the 'pro- 
bate court  shall  issue  letters  testamentary  thereon  to  the  ex- 
ecutor, if  any  be  named  therein,  if  he  is  legally  competent,  and 
if  he  shall  accept  the  trust  and  shall  give  bond  required  to  dis- 
charge the  same,"  etc. 

An  examination  of  some  of  the  cases  cited  by  counsel  show  that 
the  limited  jurisdiction  of  the  probate  court  referred  to,  has 
reference  to  the  subject-matter  over  which  such  court  has  jurisdic- 
tion, and  not  to  its  jurisdiction  over  the  matters  in  reference 
to  which  jurisdiction  has  been  conferred. 

The  Supreme  Court,  in  56  0.  S-,  page  272,  says: 

"While  the  probate  court  is  of  limited  jurisdiction,  the  limita- 
tions chiefly  relate  to  subject-matters.  In  view  of  the  constitu- 
tional and  statutory  provisions  referred  to,  its  jurisdiction  to 
correet  the  account  of  an  executor  in  sueh  a  case  as  the  rejected 
evidence  tended  to  show,  is  ample.  This  conclusion  is  in  harmony 
with  the  view  generally  taken  of  the  subject,  and  with  the  u 


NISI  PRIUS  REPORTS— NEW  SERIES.  818 

1908.)  Smith  v.  Western  Union  Telegraph  Co. 

ing  tendency  to  enlarge  the  jurisdiction  of  the  probate  court  with 
reference  to  the  subjects  which  it  embraces." 

Probate  courts  in  Ohio  aft  courts  of  record,  and  their  juris- 
diction in  testamentary  matters  seems  unquestioned. 
The  Supreme  Court,  in  the  3d  0.  S.,  page  494,  says : 

"The  power  to  hear  and  determine  a  cause  is  jurisdictional; 
and  it  is  coram  judice  whenever  a  case  is  presented,  which  brings 
this  power  into  action." 

Judge  Ranney,  in  rendering  the  opinion  in  this  case,  says: 

"A  settled  axiom  of  the  law  furnishes  the  governing  princi- 
ples by  which  these  proceedings  are  to  be  tested.  If  the  court 
ha*'  jurisdiction  of  the  subject-matter  and  the  parties,  it  is  al- 
together immaterial  how  grossly  irregular,  or  manifestly  errone- 
ous its  proceedings  may  have  been;  its  final  order  can  not  be 
regarded  as  a  nullity,  and  can  not,  therefore,  be  collaterally  im- 
peached. ' ' 

If  the  Probate  Court  of.  Clark  County  had  jurisdiction  to 
prove  the  will  of  Adolphus  II.  Smith  and  to  hear  and  determine 
the  question  as  to  whether  or  not  the  party  named  in  the  will 
was  legally  competent  to  be  appointed  as  the  executor;  and  if 
the  probate  court  did  hear  and  determine  the  question  of  the 
competency  of  the  person  nominated  as  executor,  can  its  judg- 
ment thereon  now  be  attacked  collaterally ! 

Can  the  judgment  of  the  probate  court  to  the  effect  that  the 
trust  company  was  legally  competent  to  be  appointed  as  execu- 
tor be  attacked  by  the  defendant  in  this  proceeding,  wherein  the 
trust  company,  as  such  executor,  attempts  to  recover  from  the  de- 
fendant on  a  claim  in  favor  of  the  decedent  1 

One  of  the  leading  eases  in  Ohio  on  the  subject  of  the  au- 
thority and  jurisdiction  of  probate  courts  is  that  of  Shroyer  v. 
Richmond  and  Staley,  in  the  16th  0.  S.,  page  456.  This  case 
has  never  been  overruled.  The. Supreme  Court,  in  the  35th  0.  S., 
has,  to  some  extent,  distinguished  this  ease,  but  Shroyer  v.  Rich- 
mond has  been  quoted  and  approved  by  the  Supreme  Court  in 
many  cases,  both  before  and  since  the  decision  in  the  35th  Ohio 
State,  and  especially  in  the  following  cases:    34  0.  S.,  page  )J%; 


814  CLARK  COUNTY  COMMON  PLEAS. 

Smith  v.  Western  Union  Telegraph  Co.    [Vol.  Til,  N.  S. 

36  0.  8.,  page  15;  36  0.  S.,  page  470;  39  0.  S.,  page  366;  42 
0.  S.,  page  262;  48  0.  S.,  page  291. 

The  Supreme  Court,  in  the  16tb>  0.  S.,  holds  that  jurisdiction 
attaches  whenever  the  application  is  made  for  its  exercise  in  a 
given  case  and  that  no  irregularity  in  the  proceedings,  or  mistake 
of  law  in  the  decision  of  the  questions  arising  in  the  case,  will 
render  the  order  of  appointment  void,  or  subject  it  to  impeach- 
ment collaterally. 

The  probate  court  is  a  court  of  record,  and  it  follows  that  all 
of  the  steps  necessary  to  the  rendition  of  a  final  judgment  have 
been  taken  whether  the  facts  are  set  forth  in  the  record,  or 
whether  they  are  not.  While  the  letters  of  administration  at- 
tached to  the  stipulation  in  this  case  may  not  specifically  show 
that  the  probate  court  found  that  the  trust  company  was  legally 
competent  to  exercise  the  duties  of  an  executor,  yet  it  must  have 
so  found,  and  it  being  a  court  of  record,  such  finding  will  be 
presumed  whether  it  does  or  does  not  appear  upon  the  record. 

When  the  court  found  and  determined  that  the  trust  company 
was  legally  competent — that  it  had  authority  to  accept  the  duties 
and  exercise  the  powers  of  an  executor — was  it  not  such  a  find- 
ing and  judgment  on  the  part  of  the  probate  court  as  can  be  at- 
tacked only  by  a  direet  proceeding  t 

The  finding  and  judgment  of  the  probate  court  was  a  mistake 
of  law,  but  if  judgments  can  be  attacked  collaterally  because 
judges  have  made  mistakes  in  the  construction  of  statutes,  then 
many  judgments  are  open  to  collateral  attack. 

It  may  be  well  to  note  that  the  decision  of  the  Supreme  Court. 
reported  in  the  69th  0.  S.,  above  quoted,  was  rendered  in  a  case 
in  which  error  was  prosecuted  from  the  probate  court  to  the 
Supreme  Court  in  regard  to  the  appointment  of  a  trust  company 
as  administrator.  The  decision  was  not  rendered  in  a  case 
wherein  the  judgment  of  the  probate  court  was  attacked  col- 
laterally. 

In  the  20th  Circuit  Court  Reports,  page  681,  the  first  para- 
graph of  the  syllabus  is  as  follows : 

"The  probate  court  has  exclusive  jurisdiction  in  proceedings 
to  appoint  administrators  of  the  estates  of  deceased  persons,  and 


NISI  PBIUS  REPOBTS— NEW  SERIES.  '816 

1908.]  Smith  v.  Western  Union  Telegraph  Co. 

where  the  jurisdiction  of  the  probate  court  once  attaches,  that 
court  has  full  power  to  hear  and  determine  all  questions  arising 
in  the  case,  and  such  determination  can  not  be  collaterally  at- 
tacked." 

In  this  case  the  court  aay : 

"We  think  that  the  question  as  to  the  qualification  and  appoint- 
ment of  this  administrator  was  determined  by  the  probate  court, 
and  can  not  be  collaterally  questioned  in  this  case. ' ' 

In  the  48th  0.  S.,  page  273,  the  first  paragraph  of  the  syllabus 
is  as  follows: 

"The  probate  courts  of  this  state  are  courts  of  record,  compe- 
tent to  decide  on  their  own  jurisdiction  and  exercise  it  to  final 
judgment;   and  their  records  import  absolute  verity." 

The  court,  in  its  decision  in  this  case,  quotes  at  length  and 
approves  the  principles'  announced  in  the  Kith  0.  S..  page  455. 
above  quoted. 

In  the  65th  0.  S.,  page  396,  the  Supreme  Court,  in  rendering 
the  decision  in  that  case,  uses  the  following  language: 

"It  is  further  claimed  that  there  was  no  authority  under  Sec- 
tion 6018.  R.  S„  for  the  appointment  of  an  administrator  de  bonis 
non,  as  in  his  application  he  stated  that  there  wore  no  assets,  and 
did  not  aver  that  there  were  any  debts  to  be  paid.  We  may  say 
that  from  the  record  it  seems  quite  doubtful  on  the  showing  made. 
whether  th?  court  had  authority  to  appoint  an  administrator  in 
the  first  instance,  or  to  appoint  a  successor  on  hi3  death,  but  he 
that  as  it  may,  we  think  their  appointment  can  not  be  questioned 
in  a  collateral  proceeding.  There  should  have  been  some  direct 
proceeding  for  the  purpose.  Here  it  is  collateral  to  the  proceed- 
ing, being  one  to  sell  lands;  and  it  is  contrary  to  the  policy  of 
our  law  to  permit  a  question  of  the  kind  to  be  raised  in  a  eol- 
.  lateral  proceeding." 

Counsel  for  defendant,  in  addition  to  the  authorities  cited 
from  other  states,  have  also  cited  certain  decisions  of  our  Su- 
preme Qourt,  which  it  is  claimed  should  control  in  the  determina- 
tion of  this  case.  We  have  examined  the  ease  in  the  29th  0.  S., 
so  cited,  and  think  that  the  decision  in  that  case  was  based  on  the 
fact  that  the  court  had  no  jurisdiction  of  the  subject-matter; 


616  CLARK  COUNTY  COMMON  PLEAS. 

Smith  v.  Western  Union  Telegraph  Co.    [Vol.  VII,  N.  & 

it  certainly  will  not  be  contended  that  the  probate  court  has  no 
jurisdiction  of  the  subject-matter  of  appointing  executors.  In  the 
66th  0.  S.,  143,  so  cited,  the  court,  in  answering  one  of  the  argu- 
ments of  counsel,  indulge  in  a  discussion  as  to  whether  or  not  the 
record  on  its  face  shows  that  the  decedent  was  a  resident  of  West 
Virginia.  They  answer  the  suggestions  of  counsel  upon  that  point 
by  holding  that  the  record  does  not  show  upon  its  face  that  the 
decedent  was  a  resident  of  "West  Virginia. 

What  the  decision  would  have  been  had  they  found  that  the 
word  "late"  meant  "last,"  we  do  not  know.  The  court  concludes 
its  argument  on  that  proposition  by  saying: 

"We  can  not  know  what  evidence  may  have  been  adduced  in 
the  Probate  Court  of  Franklin  County,  Ohio,  to  show  that  the 
last  residence  of  the  testatrix  was  within  the  jurisdiction  of  the 
court.  Neither  the  verity  of  the  record  nor  the  jurisdiction  of 
the  court  to  -do  what  it  did  do,  was  challenged  in  any  direct  pro-  ' 
ceeding.     Can  it  be  done  now  in  this  action?" 

We  have  also  examined  the  case,  ao  cited,  in  the  35th  0.  S., 
page  550.  The  doctrine  announced  in  that  case,  at  first  reading, 
does  seem  opposed  to  the  decision  in  the  16th  0.  S.,  above  quoted, 
and  the  many  decisions  of  the  Supreme  Court,  both  before  and 
after  the  35th  0.  S.  A  careful  examination  of  the  facts  in  that 
case,  however,  and  of  the  decision  of  the  court,  we  think  warrants 
the  conclusion  that  the  decision  was  based,  as  the  court  itself 
says,  on  the  circumstances  of  that  particular  ease. 

We  are  unable  to  discuss  the  numerous  authorities,  outside  of 
Ohio,  cited  by  counsel  for  defendant.  Some  of  these,  for  rea- 
sons heretofore  suggested,  are  not  applicable;  others  are  not 
applicable  for  the  reason  that  the  decision  was  rendered  in  a  case 
that  was  taken  up  on  appeal  or  error,  and  therefore  was  not  in 
a  case  wherein  the  judgment  of  the  lower  court  was  collaterally 
attacked.  We  call  attention,  however,  to  two  of  the  cases  ao 
cited,  viz.,  13  Wallace,  and  12  Federal  Reporter,  page  393.  If 
these  eases  are  to  be  considered  as  authority  in  Ohio,  then  they 
conclusively  determine  the  issues  involved  in  the  case  at  bar. 
against  counsel  citing  them. 

The  court  say,  in  the  syllabus  of  the  case  in  the  12  Federal  Re- 
porter, page  393 : 


NISI  PRIUS  REPORTS— NEW  SERIES.  617 

1908.]  Smith  v.  Western  Union  Telegraph  Co. 

"The  decision  of  the  surrogate  as  to  the  competency  of  a  per- 
son to  serve  and  to  whom  letters  testamentary  were  issued,  can 
not  be  collaterally  attacked." 

If  the  attention  of  the  probate  court  was  called  to  this  matter 
by  any  one  having  an  interest  in  either  the  estate  of  Adolphus 
H.  Smith,  or  in  this  suit,  we  think  there  is  no  doubt  but  that 
the  mistake  of  law  formerly  made  by  the  probate  court  would 
be  corrected. 

Judge  Roekel,  in  his  work  on  Ohio  Probate  Court  Practice, 
at  Section  211,  says: 

"It  may  be  said  to  be  an  inherent  power  residing  in  every 
court  to  eorreet  an  error  which  may  have  been  committed.  This 
the  court  might  do  of  its  own  motion,  although  it  will  not  gen- 
erally so  set  aside  an  appointment  which  has  been  wrongfully 
made. ' ' 

Judge  Gray,  in  12  Allen,  page  1,  says: 

' '  This  power  does  not  make  the  decree  of  the  court  of  probate 
less  conclusive  in  any  other  court,  or  in  any  way  impair  the 
probate  jurisdiction,  but  renders  that  jurisdiction  more  complete 
and  effectual." 

Section  6017,  Revised  Statutes,  gives  the  probate  court  the 
right  to  remove  an  executor  for  the  various  reasons  therein 
enumerated,  and  also  gives  the  probate  court  the  right  to  remove 
an  executor  for  any  other  cause  which  in  the  opinion  of  the  court 
renders  it  for  the  interest  of  the  estate  that  such  executor  or 
administrator  he  removed. 

The  Supreme  Court  of  Alabama,  in  79  Alabama,  page  505. 
says: 

"When  letters  of  administration  have  been  granted  improvi- 
dently  or  irregularly,  the  court  granting  the  same  has  the  in- 
herent power  to  revoke  them,  either  on  its  own  motion  or  on  the 
application  of  any  person  in  interest."     "     •     " 

Counsel  for  plaintiff  contend  that  the  defendant  can  in  no  way 
be  affected  by  the  present  executor  securing  this  revivor,  as  the 
executor  is  at  least  an  executor  de  facto,  and  its  acts  bind  every- 
one until  it  is  actually  removed. 


618  CLARK  COUNTY  COMMON  PLEAS. 

Smith  v.  Western  Union  Telegraph  Co.    [Vol.  VII,  N.  S. 

The  defendant  insists  that  the  appointment  is  absolutely  void. 
and  that  the  doctrine  relating  to  de  facto  officers  applies  only  to 
public  officers,  and  not  to  such  officers  as  administrators,  execu- 
tors, guardians,  etc.  If  the  trust  company  is  a  de  facto  executor, 
then  its  acts  would  be  binding  until  it  was  removed  by  direct 
proceedings  in  the  probate  court.  The  decision  of  the  circuit 
court,  as  reported  in  26  Ohio  Circuit  Court  Reports,  page  317, 
would  seem  to  indicate  that  the  court  did  not  consider  the  ap- 
pointment of  a  trust  company  as  executor  as  being  absolutely 
void.  The  court  held,  in  that  case,  that  where  a  trust  company 
which  was,  without  objection,  appointed  executor  of  an  estate 
by  the  probate  eourt  prior  to  the  recent  decision  of  the  Supreme 
Court  holding  Sections  3821c  and  3821f,  unconstitutional,  and 
which  has  since  performed  and  the  estate  received  the  benefits 
of  such  services,  is  entitled  to  reasonable  compensation  therefor. 

The  Supreme  Court  in  rendering  the  decision  reported  in  35th 
0.  S,,  554.  relied  upon  by  counsel  for  defendant,  says; 

"Amanda  being  the  administratrix  of  Horatio  S.  Kinney,  was 
ineligible  to  be  guardian  of  the  estate  of  a  minor  who  was  in- 
terested in  the  estate  of  decedent.    She  was  merely  a  guardion 

de  faclo." 

If  the  reasoning  of  the  Supreme  Court  in  the  35th  0.  S.  is 
correct,  then  the  trust  company  is  a  de  facto  executor,  and  the 
defendant  can  not  be  prejudiced  by  its  actions  in  this  case. 

We  think  the  probate  court  had  jurisdiction  to  hear  and  de- 
termine the  question  as  to  whether  or  not  the  trust  company  was 
legally  competent  to  exercise  the  powers  and  perform  the  duties 
of  executor.  If  the  probate  court  has  not  jurisdiction  to  hear 
and  determine  the  question  of  the  competency  of  an  executor 
named  in  the  will,  what  tribunal  has  jurisdiction  to  hear  and  de- 
termine such  questions  primarily?  The  common  pleas,  circuit 
and  supreme  courts  may  review  the  judgment  of  the  probate 
eourt  in  these  matters,  but  certainly  neither  of  these  courts  has 
original  jurisdiction  to  hear  and  determine  the  question  as  to 
whether  or  not  the  executor  named  in  the  will  is  competent. 

We  think  the  probate  court  not  only  has  such  jurisdiction,  but 
that  it  exercised  it  in  this  case.     Its  determination  on  the  ques- 


NISI  PRIUS  REPORTS— NEW  SERIES.  619 

1908.]  Perry  County  v.  Tracy. 

tion  of  the  competency  of  the  executor  was  wrong,  but  we  think 
its  judgment  ean  not  be  attacked  collaterally. 

The  ease  will  be  revived  in  the  name  of  the  trust  company  as 
such  executor. 


TESTING  THE  VALIDITY  OF  A  COUNTY  LOCAL 
OPTION  ELECTION. 

Common  Pleas  Court  or  Perry  County. 

Perky    County,    Ohio,    by    Tom    0.    Crossen,    Prosecuting 

Attorney,  on  Behalf  op  Perry  County,  Ohio,  v. 

Thomas  J.  Tracy. 

Decided,  December,  1908. 

Liquor  Laws — Validity  of  Election  Held  Under  the  Rose  Late — Duty 
of  County  to  Defend  Election — And  Right  of  County  to  Prosecute 
Error— Calculation  of  Time  for  Holding  Election — Section  4BS1 
Applicable. 

1.  The  responsibility  of  defending  In  the  probate  court  the  validity  of 

an  election,  held  under  tbe  Rose  county  local  option  law  (99  O.  L., 
35),  rests  upon  the  county  In  which  the  election  was  held,  and  It 
Is  the  duty  of  the  county  to  appear  by  Its  attorney  for  the  single 
purpose  of  making  a  defense,  and  without  regard  as  to  whether 
the  result  of  the  election  was  for  or  against  local  option;  but  an 
elector  may  appear  personally  or  by  counsel  at  the  same  time  and 
take  part  In  tbe  defense. 

2.  Where  such  a  course  becomes  necessary  the  defense  of  the  election 

may  be  continued  by  the  county  by  the  prosecution  of  error  to 
the  common  pleas  court  under  the  provisions  of  Section  6708. 

3.  The  provisions  of  the  county  local  option  act  that  an  election  shall 

be  held  "In  not  less"  tban  twenty  days  from  the  presentation  ot 
the  petition,  does  not  create  an  exception  to  the  provision  of  Sec- 
tion 4951.  tbat  the  time  wltbin  which  an  act  shall  be  done  is  to 
be  computed  by  excluding  the  first  and  including  tbe  last  day. 

Thomas  Crossen  and  W.  B.  Wheeler,  for  plaintiff  in  error. 
Ferguson  cfc  Cochran  and  T.  M.  Potter,  contra. 

Wood,  J. 

The  record  shows  that  on  October  2,  1908,  an  election  was  held 
in  Perry  county,  Ohio,  under  the  county  local  option  act  (99 
Ohio  Laws,  page  35). 


620  PERRY  COUNTY  COMMON  PLEAS. 

Perry  County  v.  Tracy.  (VoL  Til.  N.  a 

On  the  10th  day  of  October,  1908,  the  defendant  in  error  con- 
tested the  validity  of  the  election  by  filing  a  petition  with  the 
probate  court  of  that  county,  setting  forth  the  grounds  of  con- 
test as  follows; 

"For  the  reason  that  said  petition  was  filed  and  also  pre- 
sented to  said  judge  after  two  o'clock  in  the  afternoon  of  Sep- 
tember the  12th,  1908,  and  said  order  for  said  election  was  made 
on  the  evening  of  said  day  at  or  after  the  hour  of  seven  o'clock, 
and  twenty  days  did  not  expire  until  after  the  hour  of  two 
o'clock  in  the  afternoon  of  said  second  day  of  October,  A.  D. 
1908,  the  day  upon  which  said  election  was  ordered  as  afore- 
said, and  the  day  upon  which  it  was  held  as  aforesaid. 

"For  the  reason  that  under  said  act  said  election  should  have 
been  held  not  less  than  twenty  nor  more  than  thirty  days  from 
the  filing  and  presentation  of  said  petition  to  said  common 
pleas  judge,  and  said  twenty  days  did  not  expire  until  after 
two  o'clock  in  the  afternoon  of  the  day  upon  which  said  elec- 
tion was  commenced,  at  five  o'clock  and  thirty  minutes  in  the 
forenoon. 

"That  said  act  is  unconstitutional  and  void." 

The  probate  judge  issued  a  summons  addressed  to  the  county 
prosecutor,  notifying  him  of  the  filing  of  the  petition,  and  direct- 
ing him  to  appear  in  said  court  on  behalf  of  said  county  at  the 
time  named  in  the  summons. 

The  prosecuting  attorney,  for  said  county,  appeared  and  filed 
a  demurrer  to  the  petition  on  the  ground  that  the  facts  stated 
were  insufficient  in  law. 

This  demurrer  was  sustained  as  to  the  third  ground  of  contest 
and  overruled  as  to  the  first  and  second  grounds  of  contest, 
to  which  ruling  in  overruling  said  demurrer  the  prosecuting  at- 
torney excepted. 

Upon  the  evidence  adduced,  the  court  found  that  said  elec- 
tion was  illegal  and  void  and  adjudged  the  same  be  set  aside  and 
held  for  naught,  to  which  the  prosecuting  attorney  excepted. 

A  petition  in  error  has  been  filed  in  this  court  by  "Perry 
county,  Ohio,  by  Tom  O.  Crossen,  prosecuting  attorney,  on  be- 
half of  Perry  county,  Ohio,  plaintiff  in  error,"  against  "Thomas 
J.  Tracy,  defendant  in  error,"  to  reverse  the  findings  and  judg- 
ment of  the  probate  court. 


NISI  PRIUS  BBPOKTS— NEW  SERIES.  821 

1908.]  Perry  County  v.  Tracy. 

To  this  petition  the  following  motion  has  been  interposed : 

"Now  comes  the  said  Thomas  J.  Tracy,  defendant  in  error, 
so  named  and  characterized  in  the  paper  filed  herein,  and  called 
a.  petition  in  error,  for  the  purposes  of  this  motion  only,  and 
for  no  other,  and  hereby  specially  limits  his  appearance  to  this 
motion  and  its  purposes  and  moves  the  court  here  to  dismiss  said 
pretended  petition  in  error  for  the  following  reasons,  to-wit: 

"First.  That  said  alleged  pretended  plaintiff  in  error  has 
not  legal  capacity  to  sue. 

"Second.  That  said  alleged  pretended  plaintiff  in  error  has 
no  legal  capacity  to  commence  or  prosecute  this  alleged  proceed- 
ing in  error. 

"Third.  That  said  alleged  pretended  plaintiff  in  error  was 
not  a  party  to  the  proceeding  in  the  probate  court,  and  was  in- 
capable of  being  a  party  in  that  court,  and  is  incapable  of  being 
made  a  party  in  this  court." 

The  three  grounds  of  this  motion  are  so  dependent  upon  each 
other,  they  will  be  considered  together. 

In  Summers  v.  Hamilton  County,  7  N.  P.,  542,  and  Hunter  v. 
Commissioners  of  Mercer  County,  10  0.  S.,  515,  our  courts  have 
held  that  without  statutory  authority  a  county  as  such  has  no 
legal  capacity  to  sue  or  be  sued.  These  were  civil  actions  and 
the  law  was  correctly  stated. 

An  election  contest  under  the  county  local  option  act  is  not 
an  action  as  recognized  by  the  civil  code,  but  a  special  proceed- 
ing (56  0.  S.,  407) ;  and  the  question  is:  has  the  county  in 
this  special  proceeding  been  authorized  to  defend  the  validity 
of  its  election  1 

Section  9  of  the  act  reads: 

"Any  person  being  a  qualified  elector  of  the  county  wherein 
an  election  shall  have  been  held  as  provided  for  in  this  act,  may 
contest  the  validity  of  such  election  by  filing  a  petition  duly 
verified  with  the  probate  court  of  the  county  within  ten  days 
after  the  election,  setting  forth  the  grounds  for  contest. 

"The  probate  judge  upon,  the  filing  of  such  petition  shall 
forthwith  issue  a  summons  addressed  to  the  county  prosecutor 
notifying  him  of  the  filing  of  such  petition  and  directing  him  to 
appear  in  said  court  on  behalf  of  said  county  at  the  time  named 
in  the  summons,  which  time  shall  not  be  more  than  twenty,  days 
after  the  election  nor  less  than  five  day3  after  the  filing  of  such 


822  PERBT  COUNTY  COMMON  PLEAS. 

Perry  County  v.  Tracy.  [Vol.  VII,  N.  S. 

petition.  Any  qualified  elector  in  such  county  may  in  person 
or  by  attorney  appear  in  such  contested  election  case  in  defense 
of  the  validity  of  the  election." 

If  under  this  section  the  county  can  not  defend,  then  only  an 
elector  can,  and  if  he  does  not  appear  without  notice,  and  make 
defense,  then  any  election  might  be  set  aside  upon  the  petition 
and  evidence  of  the  contestor  alone,  and  a  new  election  called 
every  twenty  days  at  the  expense  of  the  county. 

I  think  the  evident  intent  of  the  Legislature  was  to  place  a 
responsibility  upon  the  county  to  defend  the  validity  of  its 
election,  while  permission  is  also  given  to  any  elector  who  might 
know  of  the  contest  to  appear  by  himself  or  counsel,  and  take 
part  in  the  defense.  By  necessary  implication  the  county  is  au- 
thorized to  appear  by  its  attorney  for  the  single  purpose  of  de- 
fending the  validity  of  its  election,  regardless  as  to  whether  the 
election  was  in  favor  or  against  county  local  option. 

After  being  duly  summoned  the  county  prosecutor  did  appear 
and  make  defense  and  while  the  record  does  not  disclose  in  words 
that  he  appeared  on  behalf  of  the  county,  yet  under  the  pro- 
visions of  the  act  the  county's  interest  was  the  only  interest  he 
could  defend  in  his  official  capacity.  I  conclude  that  he  de- 
fended as  an  attorney  for  and  on  behalf  of  Perry  county. 

Having  determined  that  the  county  was  authorized  to  and  did 
defend  in  this  case  in  the  probate  court,  the  remaining  question 
is:  has  the  county  a  right  to  continue  its  defense  by  filing  a 
petition  in  error  in  this  court  t  This  question  is  settled  by  Sec- 
tion 6708,  Revised  Statutes,  which  provides  that  a  judgment 
rendered  or  a  final  order  made  by  a  probate  court  may  be  re- 
versed, vacated  or  modified  by  the  court  of  common  pleas. 

So  I  find  that  Perry  county  by  its  county  prosecutor  is  au- 
thorized to  file  its  petition  in  error  in  this  case.  Therefore,  the 
motion  of  the  defendant  in  error  is  overruled. 

It  is  agreed  by  the  parties  that  .should  the  court  overrule  the 
motion  it  should  next  pass  upon  the  general  demurrer  to  the 
petition  in  error.  A  single  question  is  raised  by  the  demurrer  i 
did  the  time  required  by  law  intervene  between  the  order  made 
by  the  common  pleas  judge  and  the  day  upon  which  the  elec- 


NISI  PBIUS  REPORTS— NEW  SERIES.  623 

1908.]  Perry  County  v.  Tracy. 

tion  was  heldt  If  not,  the  election  was  void.  That  part  of 
Section  1  of  the  act  which  relates  to  the  time  of  holding  an 
election  reads  as  follows: 

"That  whenever  thirty-five  per  cent,  of  the  qualified  elec- 
tors of  any  county  shall  petition  the  commissioners  or  any  com- 
mon pleas  judge  of  such  county  for  the  privilege  to  determine 
by  ballot  whether  the  sab  of  intoxicating  liquors  as  a  beverage 
shall  be  prohibited  within  the  limits  of  such  county,  such  com- 
missioners or  common  pleas  judge  shall  order  a  special  election 
to  be  held  in  not  less  than  twenty  nor  more  than  thirty  days 
from  the  filing  of  such  petition  with  the  commissioners  or  com- 
mon pleas  judge  or  from  the  presentation  of  such  petition  to 
said  commissioners  or  common  pleas  judge." 

The  petition  was  filed  and  presented  to  the  common  pleas 
judge  on  the  12th  day  of  September,  and  the  election  was  or- 
dered and  held  on  the  2d  day  of  October,  1908. 

The  law  does  not  regard  fractions  of  a  day,  and  it  is  im- 
material whether  the  order  was  made  in  the  first  or  last  hour  of 
the  day  of  September  12th. 

The  contention  of  the  defendant  in  error  is  that  there  must 
have  been  twenty  full  or  clear  days  between  the  day  of  the  order 
and  the  day  of  the  election.  That  is,  the  day  of  the  order  and 
the  day  of  the  election  must  be  excluded  in  the  computation  of 
twenty  days,  while  plaintiff  in  error  claims  the  day  of  election 
should  be  included  in  the  computation. 

The  time  within  which  an  act  is  required  by  law  to  be  done 
has  always  been  a  question  for  legal  controversy,  and  the  deci- 
sions of  courts  of  last  resort,  both  in  this  country  and  England, 
have  been  so  various  that  no  difference  for  what  ruling  parties 
may  contend  their  positions  can  be  supported  by  a  respectable 
line  of  authorities.  Ohio  and  a  number  of  other  states  have  un- 
dertaken to  relieve  this  uncertainty  by  enacting  a  law  in  har- 
mony with  most  of  the  modern  decisions. 

Section  4951,  Revised  Statutes,  provides: 

"Unless  otherwise  specifically  provided,  the  time  within  which 
an  act  is  required  by  law  to  be  done,  shall  be  computed  by  ex- 
cluding the  first  day  and  including  the  last,  and  if  the  last  day 
shall  be  Sunday,  it  shall  be  excluded." 


624  PERRT  COUNTY  COMMON  PLEAS. 

Perry  County  v.  Tracy.  [YoLVII,N.& 

If  the  time  of  twenty  days  from  the  day  (September  12th) 
the  election  was  ordered  to  the  day  of  the  election  (October  2d) 
is  computed  by  this  rule,  then  the  election  was  legally  held. 

But  it  is  contended  that  by  the  wording  of  the  act  which  pro- 
vides that  the  election  shall  be  held  in  not  less  than  twenty  days 
from  the  presentation  of  the  petition  the  case  is  brought  within 
the  exception.  That  is,  mode  of  computing  time  here  is  "other- 
wise specifically  provided." 

In  commenting  upon  this  statute  our  Supreme  Court  in  a 
recent  case,  77  0.  S.,  489,  says: 

"In  our  opinion  this  rule  of  the  statute  should  be  followed 
and  applied  in  the  interpretation  and  construction  of  all  stat- 
utes save  those  where  the  language  of  the  provision  as  to  time 
itself  clearly  forbids  it." 

To  take  this  case  out  of  the  ordinary  rule,  the  court  must  find 
that  the  computation  of  time  is  "otherwise  specifically  pro- 
vided" by  the  act  itself,  and  that  it  clearly  forbids  that  the 
rule  of  the  statute  should  be  followed. 

If  the  act  is  clear  and  specific,  it  is  a  sad  commentary  upon 
the  many  eminent  lawyers  and  judges  who  have  so  ably  dis- 
agreed in  their  interpretation  of  similar  statutes. 

Were  this  a  new  question  and  two  elections  were  ordered  to 
be  held,  the  one  in  ten  days  and  the  other  in  not  less  than  ten 
days  from  the  day  of  a  certain  act,  my  judgment  would  be  that 
by  the  ordinary  meaning  of  language  one  could  be  held  just  as 
soon  as  the  other,  and  after  an  examination  of  many  cases  I 
feel  sure  the  current  of  modern  authority  sustains  this  view. 

In  Stebbins  v.  Anthony,  5  Col.,  348,  the  court  Bays: 

"The  general  current  of  modern  authority  is  that  where  a 
statute  requires  an  act  to  be  performed  a  certain  number  of  days 
prior  to  a  day  named  or  a  definite  period  after  a  day  specified, 
or  where  the  time  is  to  be  computed  either  prior  or  subsequent 
to  a  day  named,  the  usual  rule  is  to  exclude  one  day  of  the 
designated  period  and  to  include  the  other." 

This  is  not  direct  authority  where  the  time  designated  is 
"in  not  less  than"  so  many  days,  but  in  the  Am.  &  Eng.  Eney. 


NISI  PHIUS  REPORTS— NEW  SERIES.  626 

1908.]  Perry  County  v.  Tracy. 

of  Law,  Second  Edition,  Vol.  28,  page  220,  we  find  this  in  the 
text  of  the  author: 

"A  much  vexed  question  is  whether  the  addition  of  the  phrase 
'at  least'.or  'not  less  than'  demands  clear  or  entire  days.  For 
if  such  should  be  the  case,  as  is  seen  above,  both  the  termini 
must  be  excluded.  On  principle  it  would  seem  that  three  days 
means  the  same  as  at  least  three  days,  and  it  is  held  in  most 
jurisdictions  in  the  United  States  that  where  the  words  'at 
least'  or  'not  less  than'  is  added  the  terminus  a  quo  will  be  ex- 
eluded  and  the  terminus  ad  quern  included,  in  accordance  with 
the  usual  rule." 

About  forty  eases  are  cited  by  the  author  in  support  of  the 
text.  ■ 

In  a  recent  case  of  Brady  v.  Matteen,  61  Minn.,  185,  where 
an  act  provided  that  not  less  than  ten  days'  notice  of  the  special 
election  should  be  given  by  publishing  the  same  in  a  news- 
paper, Held; 

"That  in  the  computation  of  time  the  day  of  publication 
should  be  excluded  and  the  day  of  election  included." 

The  court  is  cited  to  the  Lord  Tenderdon's  test,  that  is,  re- 
duce the  time  to  one  day  and  construe  the  statute  as  though  it 
read  that  the  eleotion  should  not  be  held  in  less  than  one  day 
from  the  presentation  of  the  petition,  from  which  it  is  argued 
the  election  could  not  be  held  on  the  following  day,  but  the  rule 
is  not  supported  by  later  decisions  of  the  courts  of  this  country, 
unless  it  be  the  state  of  Kentucky.  When  the  rule  had  force  in 
England  there  was  no  uniform  rule  for  the  computing  of  time, 
and  it  was  not  computed  as  it  is  almost  universally  in  this  country 
today,  that  is,  by  excluding  the  first  and  including  the  last  day. 

Sutherland  on  Statutory  Construction,  Vol.  1,  See.  185,  gives 
the  modern  rule  of  computation: 

"The  rule  is  so  generally  recognized  to  exclude  the  first  or 
terminus  a  quo  and  to  include  the  last  or  terminus  ad  quern, 
that  it  requires  no  particular  words  for  its  application.  The 
terminus  a  quo,  so  far  as  it  is  a  description  of  a  period  of  time, 
is  coincident  with  the  day  of  the  act  from  which  the  computa- 
tion is  to  be  made.    That  day  ia  indivisible.    The  period  to  be 


92$  HANCOCK  COUNTY  COMMON  PLEAS. 

Gaseman  v.  Kerne  et  al.  [Vol.  VII.  N.  8. 

computed  is  another  and  subsequent  period,  which  began  when 
the  first  period  is  completed.  The  last  day  of  that  period  is  an 
indivisible  point  of  time.  When  that  point  is  reached  the  per- 
iod is  complete." 

By  this  rule  Lord  Tenderdon  's  test  would  fail  just  as  it  would 
under  the  statute,  and  the  election  would  be  legal  on  the  day 
following  the  presentation  of  the  petition.  It  is  the  extreme 
case  presented  which  gives  an  apparent  absurdity  to  the  rule, 
but  it  does  not  change  nor  affect  its  legality. 

In  my  aim  to  reach  a  correct  conclusion  in  this  case,  and  one 
which  would  be  sustained  by  the  higher  courts,  which  I  have 
presumed  would  have  an  opportunity  to  review  my  judgment, 
I  have  been  greatly  aided  by  elaborate  briefs  from  counsel  upon 
either  side,  showing  both  thorough  research  and  able  discrimina- 
tion in  their  presentation  of  cases. 

I  am  of  the  opinion  that  the  demurrer  should  also  be  over- 
ruled. An  entry  may  be  drawn  in  accord  with  the  conclusions 
reached,  saving  all  rights  to  the  defendant  in  error  to  which  he 
is  entitled. 


PROCEEDINGS  TO  TEST  THE  ROSE  COUNTY  LOCAL 
OPTION  LAW. 

Common  Pleaa  Court  of  Hancock  County. 

Jacob  Gasbman  v.  Abthub  E.  Keens  et  al, 

Decided,  December,  1908. 

Constitutional  Law — Rose  County  Local  Option  Law  Valid — Patties 
Defendant — Injunction  not  the  Proper  Proceeding — Adequate  Rem- 
edy at  Law — Constitutional  Liberties— Inviolability  of  Private  Prop- 
erty— Delegation  of  Legislative  Power- — Uniform  Operation — Appro- 
val by  Other  Authority  than  the  Oeneral  Assembly — 99  0.  L.,  35. 

1.  Private  citizens  who  are  members  of  an  organization  which  has  as 

its  object  the  enforcement  or  the  Rose  county  local  option  law  are 
not,  by  reason  of  that  fact,  rendered  proper  defendants  to  an  ac- 
tion to  test  the  constitutionality  of  that  law. 

2.  Injunction  will  not  He  to  prevent  enforcement  of  this  act,  as  an  ade- 

quate remedy  at  law  is  afforded  In  a  criminal  prosecution  under 
the  act. 


NISI  PRIUS  REPORTS— NEW  SERIES.  827 

1908.]  OaBaman  v.  Kerne  et  el. 

3.  This  act  Is  not  unconstitutional  as  a  denial  of  constitutional  liberty 
In  making  It  possible  to  prohibit  the  liquor  traffic  within  certain 
territory;  or  because  the  act  violates  the  principle  of  the  in- 
violability of  private  property;  or  because  It  is  a  general  law 
without  uniform  operation;  or  In  contravention  ot  the  principle 
that  no  act  shall  "take  effect"  upon  the  approval  of  any  other 
authority  than  the  General  Assembly. 

George  H.  Phelps,  for  plaintiff. 

W.  B.  Wheeler,  W.  L.  David,  Charles  A.  Blackford  and  A.  6. 
Fuller,  contra. 

Duncan,  J. 

Heard  on  demurrer  to  petition. 

This  suit  is  brought  by  the  plaintiff,  a  retail  dealer  of  intoxica- 
ting liquors  in  this  county,  seeking  to  test  the  constitutionality 
of  what  is  known  as  the  "Rose"  county  local  option  law  whereby, 
on  a  majority  vote  of  the  electors  of  any  county,  the  sale  of  in- 
toxicating liquors  therein  as  a  beverage  may  be  prohibited  for 
the  term  of  three  years.  The  petition  recites  that  one  Arthur 
E.  Kerns  and  one  Theodore  Baylees,  the  sole  defendants  herein, 
with  others,  styling  themselves  as  "The  Hancock  County  Local 
Option  League,"  sought  to  avail  themselves  of  the  provisions  of 
said  law,  and  circulated  petitions  in  pursuance  of  which  an  elec- 
tion was  held  in  this  county  on  the  16th  day  of  November,  1908, 
resulting  in  a  "dry"  victory,  and  that  under  the  provisions  of 
said  law,  if  it  is  constitutional,  the  plaintiff's  said  business  will  be- 
come unlawful  on  and  after  December  16,  1908.  The  petition 
further  recites  that  the  defendants  and  other  members  of  said 
organization  threaten  and  intend,  and  will  unless  restrained 
therefrom,  attempt  to  force  the  -plaintiff  into  obedience  of  said 
law,  and  cause  him  to  be  prosecuted  if  he  does  not  submit. 

The  objections  made  to  said  law  are  as  follows; 

1.  That  it  violates  the  constitutional  liberties  of  the  subject 
of  government  under  both  the  Constitution  of  Ohio  and  the  Con- 
stitution of  the  United  States. 

2.  That  it  violates  the  principle  of  the  inviolability  of  pri- 
vate property. 

3.  That  it  violates  that  provision  of  the  Constitution  of  Ohio 
which  delegates  to  the   General   Assembly  all   such   legislative 


1128  HANCOCK  COUNTT  COMMON  PLEAS. 

G&seman  v.  Kerne  et  al.  [Vol.  VII,  N.  S. 

power  as  is  not  by  the  terms  of  the  Constitution  reserved  to  the 
people. 

4.  That  it  violates  Par.  1  of  Section  26,  Article  II,  of  the 
Constitution  of  Ohio  requiring  all  laws  of  a  general  nature  to 
have  a  uniform  operation  throughout  the  state. 

5.  That  it  violates  the  concluding  paragraph  of  said  last 
named  section,  which  provides  that  no  act  shall  be  passed  or  take 
effect  upon  the  approval  of  any  other  authority  than  the  Gen- 
eral Assembly. 

The  prayer  is  that  said  law  be  declared  unconstitutional  and 
void,  and  that  defendants  and  all  others  acting  with  them  be 
enjoined  from  interfering  with  him  in  the  orderly  conduct  of  his 
said  business. 

The  defendants  file  a  demurrer  to  this  petition  which  raises 
the  question,  whether  the  defendants  Kerns  and  Bayless  are 
proper  parties  defendant  for  the  object  sought,  whether  in- 
junction is  the  proper  remedy,  and  whether  a  cause  of  action 
otherwise  is  stated  in  the  petition  f 

Are  Kerns  and  Bayless  proper  parties  defendants!  Kerns 
and  Bayless  are  private  citizens.  They  are  made  defendants 
here  in  no  official  capacity  in  which  a  duty  devolves  upon  them 
to  enforce  this  or  any  other  law.  Hence,  they  can  represent  no 
one  but  themselves,  and  any  order  made  on  them  would  bind  no 
one  else.  The  fact  that  they  belong  to  an  organization  whose 
object  is  the  enforcement  of  this  law,  means  nothing  in  a  legal 
sense.  This  organization  does  not  represent  the  public,  or  any 
considerable  part  of  it ;  so  that,  any  decision  of  this  case  could 
bind  no  one  but  the  parties  to  it.  This  being  so,  the  result 
would  fall  far  short  of  determining  plaintiff's  right  to  continue 
his  business  in  this  county.  It  follows,  therefore,  that  said  Kerns 
and  Bayless  are  not  proper  defendants  to  this  action,  and  being 
the  only  defendants,  this  action  must  fail  for  this,  if  for  no  other 
reason. 

It  is  also  to  be  observed  that  the  wrong  complained  of  is  not 
confined  to  the  plaintiff.  No  right  nor  privilege  peculiar  to  him 
is  violated.  That  wrongs  inflicted  and  rights  invaded,  if  any, 
affect  the  public  on  one  side  at  least,  and  the  question  should  be 


NISI  PBIUS  REPORTS— NEW  SERIES.  629 

1908.]  Gaimtiian  v.  Kerne  et  al. 

raised  in  such  way  as  that  the  public  is  represented  and  bound 
by  the  result. 

Is  injunction  the  proper  remedy  T 

It  has  been  decided  many  times  that  it  is  not.  The  principle 
has  long  since  become  elementary  that  a  court  of  equity  will  not 
enjoin  criminal  proceedings  (Bispham's  Equity,  4th  Ed.,  Sec- 
tion 412).  This  is  upon  the  theory  that  there  exists  an  adequate 
remedy  at  law.  Where  a  court  of  law  can  do  as  full  justice  to 
the  parties  and  to  the  matters  in  dispute  as  can  be  done  in  equity, 
a  court  of  equity  will  not  stay  proceedings  at  law.  The  princi- 
ple is  well  established,  and  is  universal  in  its  application,  that 
when  a  cause  belongs  to  the  jurisdiction  of  the  law  courts,  equity 
wi}t  never  interfere  to  restrain  the  prosecution  of  the  action 
(Pomeroy's  Equity,  Sections  1361  and  1361n).  That  is  to  say. 
it  ia  time  enough  for  plaintiff  to  t:st  the  law  when  he  is  actually 
attacked  by  the  law.  This  is  illustrated  by  a  case  decidedly 
our  own  circuit  court,  Arnold  v.  The  Village  of  Van  Wert  et  al, 
reported  in  3d  C.  C,  545,  where  it  is  held  that : 

"A  court  of  equity  will  not  interfere  to  restrain  a  municipal 
corporation,  its  mayor  or  marshal,  from  enforcing  an  ordinance 
prohibiting  the  sale  of  intoxicating  liquors  within  the  corpora- 
tion, upon  the  ground  of  the  illegality  of  such  ordinance,  nntil 
the  right  of  the  complainant  is  established  at  law." 

This  case  was  followed  by  Judge  Dissette  in  Cavenaugh  v. 
The  City  of  Cleveland  et  al,  6th  N.  P.,  423,  where  it  is  held: 

"An  injunction  will  not  be  granted  to  restrain  the  officers  from 
enforcing  the  law  on  the  mere  theory  that  some  one  questions 
the  validity  of  such  law  or  ordinance." 

See  also  Schmidt  v.  Brennon  et  al,  4th  N.  P.— N.  S.,  239. 

Such  decisions  are  not  peculiar  to  Ohio.  T)he  principle  is 
universal  and  decisions  may  be  found  in  many  of  the  states 
directly  in  line.     In  Missouri  it  is  held  that: 

"An  injunction  against  the  enforcement  of  a  statute  requir- 
ing the  inspection  of  beer  can  not  be  granted  on  the  ground 
that  the  statute  is  unconstitutional,  where  the  statute  is  enforce- 
able only  by  criminal  proceedings,  since  equity  has  no  jurisdic- 
tion to  enjoin  criminal  prosecutions. 


880  HANCOCK  COUNTY  COMMON  PLEAS. 

Gaasmac  v.  Kerna  et  al.  [Vol.  VII.  N.  S. 

"Setting  up  unconstitutionality  of  a  statute  in  defense  of  a 
criminal  information  or  indictment  gives  an  adequate  remedy 
at  law  against  the  statute,  which  will  preclude  the  equitable 
relief,  where  it  can  be  enforced  only  by  such  criminal  proceed- 
ings." State,  ex  rel  Kenamore  v.  Wood,  155  Mo.,  425,  (48  L 
R.  A.,  596). 

It  is  held  in  Georgia  that: 

"Courts  of  equity  will  not  by  injunction  prevent  the  institu- 
tion of  prosecutions  for  criminal  offenses,  whether  the  same  be 
violations  of  state  statutes  or  municipal  ordinances,  nor  will 
they,  upon  petition  for  an  injunction  of  this  nature,  inquire 
into  the  constitutionality  of  a  legislative  act,  or  the  validity  or 
reasonableness  of  an  ordinance  making  penal  the  act  or  acts  for 
the  doing  of  which  prosecutions  are  threatened."  Paulk  v. 
Mayor,  etc.,  104  Ga.,  24  (41  L.  R.  A.,  772). 

See  also  the  following  authorities  to  the  same  effect:  Btirnett 
v.  Craig,  30  Ala.,  135  {68  Am.  Dec..  115);  Crighto  v.  Dahmcr, 
70  Miss.,  602  (21  L.  R.  A.,  84) ;  C'kriskolm  v.  Adams,  71  Tex.. 
678 ;  Portis  v.  Fall,  34  Ark.,  375 ;  Suess  v.  Noble,  31  Fed.  Rep., 
855;  Wallack  v.  The  Society,  etc.,  67  K:  T.,  23. 

The  court  in  this  last  ease  say : 

"The  unconstitutionality  of  the  act  of  1872  would  be  a  per- 
fect defense  to  a  prosecution  for  the  penalties  given  by  it.  and 
the  question  as  to  the  constitutionality  of  the  act  has  not  been  de- 
termined. It  would,  doubtless,  be  convenient  for  the  plaintiff  to 
have  the  judgment  of  the  court  upon  the  constitutionality  of 
the  act  before  subjecting  himself  to  liability,  for  accumulated 
penalties.  But  this  is  not  a  ground  for  equitable  interference, 
and  to  make  it  ground  of  jurisdiction  in  such  cases  would,  in  the 
general  result,  encourage,  rather  than  restrain,  litigation." 

It  is  hardly  necessary  to  say  that  this  argument  is  strikingly 
applicable  to  the  case  at  bar.  See.  also:  I'oyer  v.  Des  Plainest, 
123  111.,  Ill ;  St.  Pe-ter'i?  Church  v.  Washington,  109  N.  C.  21 ; 
New  Home  Sewing  Machine  Co.  v.  Fletcher,  44  Ark.,  139;  State 
v.  O'Leary,  155  Ind.,  526  {52  L.  R.  A.,  299),  and  other  eases. 

Is  a'  cause  of  action  stated  in  the  petition,  otherwise  1  This 
requires  us  to  consider  the  constitutional  objections  made  in  the 
petition : 


NISI  PRIUS  REPORTS— NEW  SERIES.  881 

1808.]  Gassraan  v.  Kerne  et  al. 

1.  That  it  violates  the  constitutional  liberties  of  the  subject 
of  government.  This  objection  assumes  that  the  traffic  in  in- 
toxicating liquors  is  an  inherent  right  of  the  citizen.  The  great 
weight  of  authority  is  to  the  contrary.  In  the  ease  of  Crowley 
v.  Ckristensen,  132  U.  S.,  86,  Justice  Field,  after  dwelling  upon 
the  evils  resulting  from  the  sale  of  intoxicating  liquors,  says : 

"It  is  a  question  of  public  expediency  and  public  morality, 
and  not  of  federal  law.  The  police  power  of  the  state  is  fully 
competent  to  regulate  the  businesi — to  mitigate  its  evils  or  sup- 
press it  entirely.  There  is  no  inherent  right  in  a  citizen  to  thus 
sell  intoxicating  liquors  at  retail;  it  is  not  a  privilege  of  a 
citizen  of  the  state  or  a  citizen  of  the  United  States." 

In  the  later  cause  of  Giozza  v.  Tiernan,  Sheriff,  etc.,  148  U. 
S.,  657,  Chief  Justice  Fuller  says: 

"The  privileges  and  immunities  of  citizens  of  the  United 
States  are  privileges  and  immunities  arising  out  of  the  nature 
and  essential  character  of  the  national  government,  and  granted 
and  secured  by  the  Constitution  of  the  United  States,  and  the 
right  to  sell  intoxicating  liquors  is'  not  one  of  the  rights  grow- 
ing out  of  such  citizenship." 

See,  also,  Bartemeyers  v.  loiva,  85  U.  S.,  129. 
So,  it  is  held  by  the  Supreme  Court  of  Kansas,  State  of  Kansas 
v.  Durien,  76  Kan.,  1  (15  L.  R.  A.,  N.  S.,  908),  that: 

"The  right  to  sell  intoxicating  liquors  is  not  one  of  the  privi- 
leges or  immunities  attaching  to  citizenship  in  the  United! 
States." 

Judge  McElvaine  in  Bcnner  v.  Bauder,  39  0.  S.,  399.  having 
under  discussion  the  "Scott"  law.  says  in  his  opinion,  at  page 
408: 

"And  further,  without  stopping  to  inquire  into  the  inherent 
nature  of  legislative  power,  it  is  certainly  safe  to  say  that,  in 
the  absence  of  conventional  limitations,  the  power  would  be 
ample  for  the  making  of  laws  absolutely  prohibiting  all  traffic 
in  intoxicating  liquors.  To  maintain  this  doctrine,  it  is  not 
necessary  to  hold  that  the  right  to  traffic  generally  in  all  sub- 
jects of  trade  is  subject  to  legislative  control.  It  is  enough  to 
hold  that  a  traffic  which  tends  to  evil,  and  that  continually,  is 
under  the  absolute  power  of  the  General  Assembly." 


«82     HANCOCK  COUNTY  COMMON  PLEAS. 

Classman  v.  Kerns  et  al.  [Vol.  VII.  N.  8. 

Judge  Minshall  in  his  opinion,  in  Adler  v.  WUbeck,  44  0.  S., 
539,  at  page  574,  in  dismissing  the  "Dow"  law,  says: 

"It  is  averred  that,  from  a  long  time  prior  to  the  enactment 
of  this  law,  the  plaintiffs  have  been  engaged  in  the  traffic  in  in- 
toxicating liquors,  and  have  had  a  large  amount  of  property 
invested  in  the  business;  and  it  is  claimed  that  the  law  can 
not  be  made  applicable  to  them  without  impairing  their  vested 
rights.  The  claim  is  not  tenable.  It  would  subvert  the  power 
to  provide  against  the  evils  of  the  traffic,  and  place  it  superior 
to  Any  regulation  whatever.  "  •  "  No  prescriptive  right 
can  be  claimed  by  persons  engaged  in  the  whiskey  traffic  against 
the  exercise  of  the  functions  by  the  Legislature  of  the  state." 

Judge  Minshall  then  quotes  with  approval  from  the  opinion  of 
Chief  Justice  Taney  in  the  license  cases,  5th  How.  (46  U.  S.). 
577,  as  follows : 

"If  any  state  deems  the  retail  and  internal  traffic  in  ardent 
spirits  injurious  to  its  citizens,  and  calculated  to  produce  idle- 
ness, vice,-or  debauchery,  I  see  nothing  in  the  Constitution  of 
the  United  States  to  prevent  it  from  regulating  and  restraining 
the  traffic, or  from  prohibiting  it  altogether,  if  it  thinks  proper." 
and  so  I  hold  that  this  objection  is  not  well  taken. 

2.  That  it  violates  the  principle  of  the  inviolability  of  private 
property.  This  contention  is  disposed  of  in  terms  by  the  deci- 
sion of  our  Supreme  Court  just  referred  to.  On  this  point 
Judge  Minshall  further  says : 

"The  provision  of  Section  9,  Article  XV  (Section  18  of  the 
schedule)  of  the  Constitution  has  stood,  since  its  adoption,  as 
a  perpetual  admonition  to  all  persons  engaging  in  the  traffic 
that,  in  doing  so,  they  place  their  property,  invested  in  the  busi- 
ness, subject  to  the  power  of  the  General  Assembly  to  provide 
against  the  evils  resulting  from  the  traffic.  The  same  argument 
was  made  in  Miller  v.  State  against  the  act  of  1854  prohibiting 
among  other  things,  the  sale  of  liquor  to  be  drunk  on  the  premi- 
ses where  sold ;  but  it  met  with  no  favor  in  the  court.  The  law 
was  held  valid.  See  opinion  of  Thurman,  J.,  in  the  case  3  Ohio 
State,  484-7." 

And  it  might  be  said  that  this  same  question  was  involved  to 
a  greater  or  less  extent  in  every  act  of  the  Legislature  for  more 
than  half  a  century,  having  in  view  the  regulation  or  prohibition 


NISI  PRITTS  REPORTS— NEW  SERIES.  688 

1908.]  Gassman  v.  Kerns  et  al. 

of  the  traffic  or  the  place  where  it  was  carried  on,  and  that  the 
holding  has  always  sustained  the  exercise  of  the  power.  I  call 
attention  to  a  few  of  the  cases:  Burkholter  v.  McConTiellsville, 
20  0.  S.,  308;  Bronson  v.  Oberlin,  41  0.  S.,  476;  Theis  v.  State, 
54  0.  S.,  245 ;  Gordon  v.  State,  46  0.  S.,  607 ;  Stevens  v.  State, 
61  0.  S-,  597;  State,  ex  rel  Lloyd,  v.  DoUison,  Sheriff,  68  0.  S., 
688  (affirming  decision  of  lower  court  reported  in  3  C.  C. — N. 
8.,  328) ;  Carey  v.  State,  70  0.  S.,  121 ;  and  Jeffrey,  Mayor,  v. 
Butler,  ex  rel,  etc.,  72  0.  8.,  647  (affirming  decision  of  lower 
court  reported  in  4  C.  C.— N.iS.,  494). 

The  conclusion  is,  therefore,  that  such  legislation  does  not 
violate  the  inviolability  of  private  property. 

3.  That  it  violates  that  provision  of  the  Constitution  which 
delegates  to  the  General  (Assembly  all  such  legislative  power  as 
is  not  by  the  terms  of  that  instrument  reserved  to  the  people. 
This  objection  may  be  disposed  of  in  connection  with  the  fifth 
objection. 

4.  That  it  violates  Par.  T  of  Section  26,  Article  II,  of  the 
Constitution  requiring  all  laws  of  a  general  nature  to  have  a 
uniform  operation  throughout  the  state, 

The  act  in  question  may  be  found  in  99  0.  L.,  35.  It  provides 
that  whenever  thirty-five  per  cent,  of  the  qualified  electors  of  any 
county  shall  petition,  etc.,  for  an  election  to  determine  by  bal- 
lot whether  the  sale  of  intoxicating  liquors  as  a  beverage  shall 
be  prohibited  within  the  limits  of  such  county,  etc.,  a  special 
election  shall  be  held,  and  if  a  majority  of  the  votes  cast  at 
such  election  is  against  the  sale  of  intoxicating  liquor  as  a  bever- 
age, then  the  selling,  furnishing  or  giving  away  of  intoxicating 
liquors  as  a  beverage  in  said  county  from  and  after  the  expira- 
tion of  thirty  days  from  such  election  is  prohibited  and  un- 
lawful, punishable  by  fine  and  imprisonment.  The  act  com- 
prises eleven  sections,  the  last  one  of  which  reads  as  follows : 

"Sec.  11.  This  act  shall  take  effect  and  be  in  force  on  and 
after  September  1,  1908." 

The  act  is  general.  It  does  not  apply  to  one  or  more  counties 
of  the  state,  but  to  all.  It  is  for  the  benefit  of  any  county  whose 
electors  may  wish  to  take  advantage  of  it.     It  is  like  the  me- 


634  HANCOCK  COUNTY  COMMON  PLEAS. 

GasBman  v.  Kerns  et  al.  [Vol.  VII,  N.  8. 

chanic's  lien  law,  the  contractor  or  material-man  may  take  ad- 
vantage of  it  if  he  has  a  case  calling  for  it  and  so  desires.  The 
option  which  he  has  to  proceed  under  it  does  not  destroy  its 
uniform  operation.  The  same  principle  is  seen  in  the  provision 
of  law  which  allows  cities  and  villages  and  boards  of  education 
to  exceed  the  regular  tax  limit  by  vote  of  the  electors  in  such 
city,  village  or  school  district,  or  sets  the  law  in  motion  which 
provides  for  the  paving  of  a  street  upon  petition  of  the  abutting 
owners.  The  law  is  general,  it  is  in  effect,  it  is  operative,  but  it  is 
not  automatic  or  self-executing.  We  have  it  and  can  take  advan- 
tage of  its  provisions  if  we  so  desire,  just  like  the  other  laws  to 
which  I  have  called  attention.  It  is  a  privilege  conferred  upon 
all  under  the  same  terms  and  conditions.  That  the  act  is  of  a  gen- 
eral nature  and  did  not  have  uniform  operation  throughout  the 
state,  was  one  of  the  objections  made  to  the  "Beatty"  town- 
ship local  option  law,  passed  March  3,  1888  (85  0.  L.,  £5),  with 
provisions  similar  to  the  "Rose"  law,  with  the  exception,  that 
the  township  ig  the  unit  of  territory  in  which  the  vote  is  had 
and  sales  made  unlawful.  Judge  Dickman,  in  Gordon  v.  The 
State,  46  0.  S.,  607,  at  page  628,  disposes  of  the  objection  as 
follows : 

"The  provisions  of  the  act  are  bounded  only  by  the  limits  of 
the  state,  and  uniformity  in  its  operation  is  not  destroyed,  be- 
cause the  electors  in  one  or  more  townships  may  not  see'  fit  to 
avail  themselves  of  its  provisions.  The  act  makes  no  discrimi- 
nation between  localities  to  the  exclusion  of  any  township. 
Every  township  in  the  state  comes  within  the  purview  of  the 
law,  and  may  have  the  advantage  of  its  provisions  by  comply- 
ing with  its  terms.  The  operation  of  the  statute  is  the  same  in 
all  parts  of  the  state,  under  the  same  circumstances  and  condi- 
tions. ■  *  *  We  can  not  reach  the  conclusion  that,  because 
the  electors  of  one  township  may  decline  to  petition  the  trus- 
tees to  order  a  special  election  to  determine  by  ballot  whether 
the  sale  of  intoxicating  liquors  as  a  beverage  shall  be  prohibited, 
every  other  township  in  the  state  shall  be  deprived  of  that  privi- 
lege, on  the  ground  that  the  act  is  not  capable  of  a  uniform 
operation." 

This  law  was  again  upheld  in  Stevens  v.  State,  61  0.  S.,  597. 
and  again  by  the  United  States  Supreme  Court,  179  U.  S.,  680. 


NISI  PRIUS  REPORTS— NEW  SERIES.  «85 

1908.]  Gaaaman  v.  Kerns  et  al. 

The  Beal  local  option  law,  passed  April  3,  1902  (95  0.  L.,  87), 
was  sustained  in  State,  ex  rel  Lloyd,  v.  Dollison,  Sheriff,  3  C.  C. — 
N.  8.,  328,  affirmed  by  the  Ohio  Supreme  Court  (68  0.  S.,  688), 
and  by  the  United  States  Supreme  Court  (194  U.  S.,  121). 

5.  That  it  violates  that  provision  of  the  Constitution  which 
provides  that  no  act  shall  be  passed  or  take  effect  upon  the  ap- 
proval of  any  other  authority  than  the  General  Assembly.  The 
point  is  made  under  this,  and  the  fourth  objection,  that  the 
power  belongs  exclusively  to  the  General  Assembly,  and  that 
prescribing  an  affirmative  vote  of  the  people  as  a  condition 
precedent  to  its  active  operation,  delegates  to  the  people  the 
right  to  say  whether  the  law  shall  become  effective,  This  also 
must  be  decided  in  theiBegative.  The  vote  of  the  people  is  a 
method  by  which  it  is  ■determined  whether  they  wish  to  avail 
themselves  of  the  provisions  of  the  act.  An  individual  may  avail 
himself  of  the  provisions  of  an  act  provided  for  individual  bene- 
fit by  mere  action.  But  where  the  act  is  of  such  nature  that 
any  considerable  number  are  interested  and  must  act  in  eon- 
cert,  the  petition  or  a  vote  is  necessary  to  ascertain  the  majority 
will.  The  Legislature  made  the  lav  and  prescribed  the  con- 
tingency upon  which  it  should  operate.  In  this  behalf  Judge 
Ranney,  in  Railroad  Co.  v.  Commissioners,  1  0.  S.,  77,  at  page 
90,  says : 

"It  is  not  the  vote  that  makes,  alters  or  even  approves  the 
law,  but,  as  well  remarked  by  one  of  counsel,  it  is  the  law  that 
makes  the  vote  and  prescribes  everything  to  be  done  consequent 
upon  it.  •  •  *  These  views  lead  to  the  conclusion  that  an 
enactment  is  not  imperfect  which  makes  its  execution  depend  up- 
on the  contingent  approval  of  persons  designated  in  it,  and 
that  a  county  organization  may  be  clothed  with  this  discretion; 
and  if  the  commissioners,  the  agents  of  the  county,  may  exer- 
cise it,  it  seems  too  clear  to  be  doubted  that  it  may  be  conferred 
upon  the  body  of  those  they  represent." 

This  was  another  one  of  the  objections  made  to  the  "Beatty" 
township  local  option  law  in  Gordon  v.  The  State,  46  0.  S.,  607. 
After  citing  a  number  of  authorities  from  other  states,  Judge 
Dickman,  speaking  for  the  court  at  page  631,  disposes  of  the 
question  in  this  way: 


688  HANCOCK  COUNTY  COMkON  t»LEAS. 

Gaseman  v.  Kerns  et  al.  [Vol.  VII,  N.  8. 

"It  is  evident,  we  think,  that  the  act  whose  constitutional 
validity  is  called  in  question,  was  a  complete  law  when  it  had 
passed  through  the  several  stages  of  legislative  enactment,  and 
derived  none  of  its  validity  from  a  vote  of  the  people.  In  all 
its  parts  it  is  an  expression  of  the  will  of  the  Legislature,  and 
its  execution  is  made  dependent  upon  a  condition  prescribed  by 
the  legislative  department  of  the  state.  By  its  terms,  it  was 
made  to  take  effect  from  and  after  its  passage.  The  qualified 
electors  derive  their  authority  to  petition  the  trustees,  and  the 
trustees  obtain  their  authority  to  order  a  special  election,  di- 
rectly from  the  Legislature.  The  right  of  the  electors  to  register 
their  votes  for  or  against  the  sale  of  intoxicating  liquors,  is 
conferred  by  the  same  body,  If  a  majority  of  the  votes  cast  at 
such  election  should  be  against  the  sale,  the  traffic  in  intoxi- 
cating liquors  is  thereby  prohibited  and  made  unlawful,  by 
virtue  of  the  act  of  the  General  Assembly,  which  may  at  once, 
if  a  change  should  come  over  the  legislative  will,  repeal  the  law 
and  avoid  the  result  of  the  election.  So  far  from  the  vote  of 
the  electors  breathing  life  into  the  statute,  it  is  only  through  the 
statute  that  the  electors  are  entitled  to  vote  at  the  special  elec- 
tion. While  they  are  free  to  cast  their  votes,  the  consequence  of 
their  aggregate  vote  is  fixed  and  declared  by  the  act  of  the  Legis- 
lature. The  penal  sanction  of  the  act  is  subject  to  no  modifica- 
tion by  the  action  of  the  electors,  and  it  is  an  elementary  princi- 
ple that,  'the  main  strength  and  force  of  a  law  consists  in  the 
penalty  annexed  to  it.  Herein  is  to  be  fonnd  the  principal  obli- 
gation of  human  laws. '     1  Black.,  Com.,  57. 

''In  some  of  the  authorities  which  we  have  examined,  the  idea 
is  prominent,  that  when  the  voters  are  called  on  to  express  by 
their  ballots  their  opinion  as  to  the  subject-matter  of  the  law,  they 
declare  no  consequence,  prescribe  no  penalties,  and  exercise  no 
legislative  functions.  The  consequence,  it  is  said,  are  declared 
in  the  law,  and  are  exclusively  the  result  of  the  legislative  will." 

See,  also,  Peck  v.  Weddell,  17  0.  S.,  271,  to  the  same  effect. 

It  may  be  said  in  conclusion  that  the  "Beatty"  township 
local  option  law,  the  "BeaJ"  municipal  local  option  law,  and 
the  "Brannock"  and  "Jones"  residential  local  option  laws, 
are  all  subject  to  the  same  constitutional  attacks  as  are  made  up- 
on this  "Rose"  county  local  option  law,  and  that  they  have  all 
stood  the  constitutional  test  of  the  highest  court  in  the  state. 
If  the  "RoBe"  law  is  unconstitutional  for  any  of  the  reasons 
urged,  every  one  of  the  other  local  option  laws  is  also  unconstitu- 


NISI  PBIUS  BEPOBTS— NEW  SERIES.  087 

1908.]  Gaaaman  v.  Kens  et  al. 

tional,  bat  in  face  of  the  growing  sentiment  in  this  state  against 
the  saloon,  I  hardly  think  that  the  Supreme  Court  will  overrule 
a  long  line  of  well  considered  decisions  covering. a  period  of 
fifty  years  and  more  up  to  the  present  day,  in  order  to  afford 
the  plaintiff  the  relief  which  he  seeks. 

Holding  the  views  which  I  have  expressed,  the  demurrer  to 
the  petition  and  amendment  thereto  is  sustained,  and  the  tempo- 
rary order  of  injunction  heretofore  granted  herein  is  dissolved. 


END  OF  VOLUME  VII. 


INDEX. 


ABATEMENT— 

A  proceeding  for  recovery  of 
ixisaesKion  of  land  under  Section 
6448  la  not  abated  by  the  pen- 
dency or  an  action  to  recover  pos- 
session of  the  same  land,  with 
rente.   Issues  and   profits.     497. 

Facts  constituting  a  plea  of, 
may  be  aet  forth  in  an  answer, 
when.    24. 

An  answer  which  sets  up  a  suit 
previously  brought,  Involving  the 
same  evidence  and  measure  of 
damages,  Is  In  the  nature  of  a  plea 
In  abatement  and  affords  ground 
for  dismissing  the  petition.  24. 
ABUTTING  OWNER— 

Can  not  grant  the  right  to  use 
a  portion  of  the  sidewalk  upon 
wbich  his  property  fronts.  420. 
ACTION— 

An  action  on  an  assignment  ot 
a  claim  Is  an  action  in  equity  and 
not  at  law.     487.    ' 

An  action  under  the  state  au- 
tomatic coupler  act  is  civil  In  Its 
nature,  and  guilty  iotentlon  or 
knowledge,  are  not  necessary  ele- 
ments of  the  offense.    571. 

An  action  will  lie  fcr  recovery 
of  money  paid  out  of  the  treasury 
of  a  corporation  for  premiums  on 
policies  of  Insurance  on  the  lives 
of  members  of  its  board  who  are 
not  indebted  to  It.     548. 

Nature  of,  where  brought  by  -.% 
prosecuting  attorney  for  the  re- 
covery of  Interest  from  banks  for 
the   use   of   county   funds.     43. 

On  an  account;  statute  of  limi- 
tations not  tolled  by  mere  Ignor- 
ance of  a  debtor's  whereabouts. 
142. 


Against  county  commissioners 
for  damages  on  account  of  acci- 
dents on  public  highways  In  bad 
repair.    136. 

ADMINISTRATOR— 

Should  pay  to  the  heirs  of  a 
devisee  of  a  share  of  real  estate 
who  died  before  distribution.    97. 

Where  an  Insolvent  maker  of  a 
note,  while  acting  as  executor  of 
his  surety,  pays  the  note  as  a 
claim  against  the  estate,  he  Is 
chargeable  with  the  amount  so 
paid.    177. 

Aa  to  conversion  of  debt  into 
assets  by  appointment  of  debtor  as 
administrator.    177. 

The  right  of  surety  to  Indem- 
nity Is  a  "claim"  in  the  hands  of 
his  executor.    177. 

Whore  the  probate  court  has  de- 
termined the  question  of  the  legal 
competency  of  a  trust  company  to 
act  as  executor  and  the  Jurisdic- 
tion has  been  exercised,  the  ap- 
pointment can  not  be  collaterally 
attacked.     609. 

adverse  possession- 
No  possession  can  be  deemed  ad- 
verse to  a  party  who  has  not,  at 
the  time,  the  right  of  entry  and 
possession.     441. 

Where  original  life  tenants  un- 
der a  will — which  provided  that 
the  remainder  should  go  to  his  or 
her  Issue  for  life,  with  the  next  re- 
mainder in  tall  to  unborn  lasue — 
wore  not  made  parties  to  an  ac- 
tion for  the  appropriation  of  land 
for  street  purposes,  the  adverse 
possession  or  the  municipality  fo/ 
more  than  twenty-one  years  does 
not  deprive  such  subsequent  life 


tenants  of  title  until  the  requisite 
period  after  their  right  of  entry 
accrued.    441. 
ADVERTISEMENT— 

A  sheriff  may  advertise  a  Judi- 
cial sale  In  the  papers  of  his 
choice  subject  only  to  the  stat- 
utory requirements  that  the  paper 
be  published  In  and  of  general  cir- 
culation in  the  county.  473. 
AFFIDAVIT— 

An  affidavit  charging  the  com- 
mission of  two  or  more  offenses  in 
the  disjunctive  is  bad  for  uncer- 
tainty; the  record  of  the  dlsmis- 
sal  of  a  case,  predicated  upon 
auch  an  affidavit.  Is  not  a  bar  to  a 
subsequent  prosecution.    482. 

An  affidavit  charging  violation 
of  Section  4405  is  insufficient,  if 
there  Is  a  failure  to  state  that  the 
defendant  Is  either  proprietor  or 
manager.  338. 
AGENCY— 

A  life  insurance  agent  will  be 
presumed  to  know  that  a  corpora- 
tion has  no  insurable  Interest  in 
the  lives  of  members  of  its  board 
of  directors,  and  an  action  will  He 
for  recovery  of  money  paid  out  of 
the  treasury  of  the  company  on 
policies  so  Issued.    648. 

One  employed  to  perfect  an  In- 
vention may  be  enjoined  from  dis- 
closing the  Ideas  or  devices  devel- 
oped while  so  employed.    217. 

The  place  for  collection  of  taxes 
on  chattel  mortgages  is  the  resi- 
dence of  the.  owner,  and  not  the 
situs  of  the  property,  although  a 
local  agent  has  authority  to  col- 
lect interest  falling  due.  342. 
ALIMONY— 

See  Divorce  and  Alimony. 
AMENDMENT— 

Where  the  evidence  shows  that 
a  flawless  petition  could  be  Sled, 
a  new  trial  will  be  granted  for  the 
purpose  of  permitting  the  filing 
of  an  amendment.     143. 

Discretion  In  permitting  the  fil- 
ing of  amendments.    143. 
ANCESTRAL  PROPERTY— 

Character  of,   not  changed   by 


partition,     where     releases    were 
given  by  the  co-parceners  In  the 
form  of  warranty  deeds.    333. 
ANNEXATION— 

Of  territory  to  municipalities — 
see  Municipal  Corporations. 
ANSWER— 

See  Pleadings. 
APPEAL— 

Right  of,  from  action  by  county 
commissioners  la  limited  to  mat- 
ters in  which  the  commissioners 
are  vested  with  a  Judicial  func- 
tion.   8. 

No  appeal  lies  from  the  action 
of  county  commissioners  in  fixing 
allowances  for  clerk  hire  in  county 
offices.    8. 
APPLES— 

Packet     company     liable     for, 
where  frozen  on  wharf  boat,  when. 
14. 
ASSESSMENTS— 

Application  to  sewer  construc- 
tion, street  paving  and  abolishing 
of  grade  crossings  of  the  4  per 
cent,   bond   limitation.    249. 

Delay  in  certification  of,  because 
of  the  pendency  of  an  Injunction; 
how  the  two  years'  limitation 
should  be  coupled  in  such  a 
case.     393. 

For  a  township  ditch  may  be  en- 
Joined  If  In  excess  of  the  benefits, 
notwithstanding  toe  trustees  had 
Jurisdiction  to  order  the  Improve- 
ment and  all  the  proceedings  were 
regular.    601. 

ASSIGNMENT— 

The  assignment  of  a  claim  is 
not  rendered  InvaUd  by  reason 
of  the  fact  that  it  Includes  only 
a  part  of  the  amount  due  from  the 
debtor  to  the  assignor.     487. 

Recovery  on  a  claim  so  assigned 
Is  to  be  had  by  an  action  In  equity, 
and  not  by  an  action  at  law.     487, 

ASSOCIATIONS— 

Parties  who  may  sufficiently  rep- 
resent two  contending  classes  of  a 
nondescript  association;  action  for 
dissolution  of,  may  be  maintained 


ASSUMED  RISK— 

In  tbe  ease  of  simple  tools  and 
portable  appliances,  where  obvious 
detects  are  as  perfectly  understood 
by  the  servant  as  by  the  master, 
their  risk  of  future  use  after  a 
defect  has  been  discovered  Is  as- 
sumed; and  a  promise  to  replace 
such  defective  tool  or  appliance 
docs  not  shift  the  assumption  sf 
risk  from  the  servant  to  the  mas- 
ter.    489. 

ATTACHMENT— 

A  justice  of  tbe  peace  may  ob- 
tain Jurisdiction  over  a  foreign 
railway  corporation  in  attachment 
by  publication,  when.    265. 

A  receiver  may  be  appointed  In 
a  suit  not  for  attachment,  where 
the  defendant  company  Joins  in 
asking  for  a  receiver  because 
merous  attachment  suits  have 
been  brought  in  various  place: 
361. 

Will  lie  without  bond  against 
a  foreign  corporation  for  recovery 
of  money  lost  In  a  bucket  shop. 
384. 

Evidence  that  the  defendant 
pressed  a  willingness  to  the  con- 
stable that  sufficient  goods  should 
be  taken  to  satisfy  the  claim,  de- 
feats a  charge  In  the  affidavit  for 
an  attachment  that  the  defendants 
were  about  to  dispose  of  their 
property  In  fraud  of  creditors. 
389. 

AUTREFOIS  ACQUIT— 

An  affidavit  charging  two  or 
more  things  in  the  disjunctive  is 
bad  for  uncertainty,  and  the  rec- 
ord of  the  dismissal  of  a  case  pred- 
icated on  such  an  affidavit  is  not 
a  bar  to  a  subsequent  prosecution. 
482. 

Effect  of  a  reversal;  where  the 
verdict  reversed  was  silent  as  to 
the  first  and  second  counts  and 
found  the  defendant  guilty  under 
tbe  third  count,  a  plea  In  bar  to 
the  first  and  second  counts  can 
not  be  maintained.    208. 


AUTREFOIS  CONVICT— 

A  plea  of  guilty  of  selling  In- 
toxicating liquor  on  Sunday  In  an 
action  which  was  prosecuted  as 
a  first  offense,  but  which  might 
have  been  prosecuted  as  a  second 
offense.  Is  a  bar  to  a  subsequent 
prosecution  of  tbe  same  defend' 
ant  In  another  court  for  the  same 
sale  charged  as  a  second  offense. 
365. 

AUTOMATIC  COUPLERS— 
See  Railways. 

BANKS  AND  BANKING— 

Meaning  of  the  words  "invest" 
and  "speculate";  charging  of  false 
pretenses  against  bank  officials. 
371. 

Nature  of  an  action  for  recov- 
ery of  interest  as  damages  for  the 
unlawful  use  by  banks  of  county 
funds;  measure  of  recovery;  de- 
fenses; application  of  the  statute 
of  limitations.    43. 

The  maker  of  a  promissory  note 
held  by  the  receiver  of  an  In- 
solvent bank  has  no  right  to  set- 
off a  deposit  In  the  bank  standing 
In  his  name  as  ei  ecu  tor.    434. 

Review  of  bank  legislation  in 
Ohio.    345. 

The  penalizing  of  certain  acts 
of  officers  and  others  of  any  bank- 
ing company,  In  Section  3821-86, 
Is  limited  In  its  application  to 
officers  of  banks  organized  under 
that  act.    346. 

BAR  TO  ACTION— 

See  Abatement. 
BENEFITS— 

Where  in  excess  of,  an  assess- 
ment for  a  township  ditch  may  be 
enjoined.     601. 
BIDS   AND    BIDDING— 

A  contract  for  a  new  school 
house  Is  void,  where  the  successful 
bidder  has  been  permitted  to  re- 
duce his  bid  so  as  to  bring  It 
within  the  amount  of  the  bond  is- 
sue. 690. 
BILL  OF  EXCEPTIONS— 

Interlineation!  In  and  additions 


to,  where  from   a  Justice  of  the 
peace.    389. 

Extension  of  time  within  which 
to  file  bill  before  Justice  of  the 
peace.     389. 
BILLS,  NOTES  AND  CHECKS— 

See  Promissory  Notes. 
BONDS— 

Limitations  on  the  authority  of 
council  to  Issue  under  the  Long- 
worth  act    249. 
BUILDINGS— 

Of  public  assembly;  may  be  In- 
spected with  reference  to  safety  of 
means  of  egress,  and  where  defect- 
ive better  facilities  for  egress  may 
be  ordered   Installed.    401. 

BURDEN  OF  PROOF— 

The  burden  is  on  a  creditor  to 
show  affirmative  acts  by  a  debtor 
wnlch  prevented  a  discovery  of  his 
whereabouts.    142. 


CARRIER— 

See  Railways. 

Reasonable  time  for  removal  of 
goods  by  consignee.    14. 

Is  a  practical  insurer  of  freight, 
notwithstanding  protection  given 
by  bill  of  lading.     14. 

Packet  company  liable  to  con- 
signee for  apples  frozen  on  wharf- 
boat,  when.    14. 
CHALLENGES— 

See  Grand  Jury. 
CHARGE  OF  COURT— 

In  an  action  for  recovery  of  rent 
on  a  guaranty,  where  the  lessee 
had  attempted  to  surrender  the 
premises  and  the  fee  had  been  con- 
veyed.   272. 

In  a  will  contest,  as  to  prepon- 
derance of  evidence  and  prima 
facte  case.    435. 

It  is  not  error  to  charge  that 
"It  Is  not  negligence  in  the  driver 
of  a  vehicle  to  attempt  to  cross  a 
street  railway  track  ahead  of  an 
approaching  car,  when  the  car  is 
so  far  away  that  by  the  exercise 
of    reasonable    care    ft   might    be 


stopped  before  reaching  the  place 
of  the  crossing."     462. 

It  is  not  error  to  charge  that 
where  it  appears  that  the  driver  of 
the  cab  and  the  motorman  of  the 
car  which  collided  with  it  were 
both  negligent,  the  jury  may  take 
into  consideration  whether  the  mo- 
torman had  his  car  under  proper 
control.  462. 
CHARITIES— 

A  gift  to  a  particular  church 
for  use  by  the  church  Is  a  public 
charity;  property  thus  devised 
may  be  sold  and  proceeds  applied 
to  same  use  in  a  more  desirable 
locality.  877. 
CHURCH— 

See  Religious  Societies.  - 
COLLATERAL  ATTACK— 

Not  premlsslble  as  to  the  legal 
competency  of  a  trust  company  to 
act  as  executor;  finding  by  the 
probate  court  as  to  the  legality 
of  the  appointment  must  he  pre- 
sumed. 609. 
COLLATERAL  SECURITY— 

No  rights  of  the  holder  of  stock 


CONCEALMENT— 

Burden  of  showing  concealment 
by  a  debtor  of  his  whereabouts. 
142. 
CONFIDENTIAL    RELATIONS— 

See    Fiduciary    Relations. 
CONFLICT  OF  LAWS— 

The  federal  statute  providing 
for  automatic  couplers  on  cars 
used  in  interstate  traffic,  and  the 
state  statute  providing  for  auto- 
matic couplers  on  cars  used  in 
state  traffic,  are  not  contradictory 
or  In  conflict.    541. 

There  is  no  conflict  between  the 
state  and  federal  acts  relating  to 
automatic  couplers.  571. 
CONSENT- 
TO  the  opening  up  of  a  Judg- 
ment Is  a  waiver  of  a  formal 
finding  that  the  defense  about  to 
be  offered  Is  a  balid  defense.   313. 


CONSTITUTIONAL  LAW— 

Private  citizens  who  are  mem- 
bers of  an  organization  having 
as  Its  object  the  enforcement  of 
the  Rose  county  local  option  law 
are  not,  by  reason  of  that  fact, 
rendered  proper  defendants  to  an 
action  to  test  the  constitutionality 
'   of  that  law.     626. 

The  county  local  option  law  (99 
O.  i...  35)  is  not  unconstitutional 
because  of  a  denial  of  constitu- 
tional liberty  In  making  it  pos- 
sible to  prohibit  the  liquor  traffic 
within  certain  territory;  or  be- 
cause the  act  violates  the  princi- 
ple of  the  Inviolability  of  private 
property;  or  because  It  Is  a  gen- 
eral law  without  uniform  opera- 
tion; or  In  contravention  of  the 
principle  that  no  act  shall  "take 
effect"  upon  approval  of  any  other 
authority  than  the  General  As- 
sembly.   626. 

The  act  authorizing  the  State 
Board  of  Medical  Ex  am  in  era  to 
revoke  the  license  of  a  physician 
for  "gross  Immorality"  la  not  void 
for  want  of  deflnlteness,  or  be- 
cause the  question  of  what  con- 
stitutes gross  Immorality  Is  left 
to  caprice.    132. 

The  act  for  restoration  of 
burned  or  destroyed  records  (SI 
O.  I-.,  159)  Is  rendered  unconstitu- 
tional by  the  provision  that  there 
shall  be  no  appeal  or  prosecution 
of  error.     188. 

The  act  of  April  22,  1908  (99  0. 
L.,  232),  providing  inspection  of 
school  houses  and  other  placeH  of 
public  assembly  with  reference  to 
safe  and  speedy  egress,  and  giving 
authority  to  require  alterations 
and  the  Installation  of  proper  ap- 
pliances where  they  are  found 
wanting,  is  not  a  taking  of  prop- 
erty without  due  process  of  law, 
but  a  mere  requirement  that  such 
property  be  used  In  a  lawful  way, 
and  Is  a  constitutional  enactment. 
401. 

The  duty  of  determining  what 
appliances  are  necessary  for  the 
proper  safety  of  the  public  may 
properly  be  delegated  to  Inspectors 


and  the  details  of  the  work  left 
to  administrative  officers.     401. 

The  federal  law  providing  for 
automatic  couplers  on  ears  mov- 
ing Interstate  traffic,  and  the  state 
law  providing  for  automatic  coup- 
lers on  cars  moving  state  traffic, 
are  not  contradictory  or  In  con- 
flict, and  the  constitutionality  of 
the  state  statute  can  not  be  suc- 
cessfully attacked  on  that 
ground.    541. 

The  provision  in  Section  4446a, 
et  teq  (78  O.  L.,  55),  clothing  the 
secretary  of  the  State  Board  of 
Agriculture  with  police  power  to 
be  exercised  at  his  discretion,  la 
unconstitutional..  103. 

The  state  act,  requiring  rail- 
way companies  to  equip  cars  and 
locomotives  with  automatic  coup- 
lers, is  not  In  conflict  with  the 
federal  act  relating  to  the  same 
subject-matter,  and  Is  constitu- 
tional.    571. 

That  part  of  Section  2  of  the 
act  of  April  2,  1906,  giving  the 
circuit  court  Jurisdiction  to  de- 
termine whether  the  public  safety 
requires  the  abolition  of  a  grade 
crossing  and  as  to  the  feasibility 
of  the  plans,  is  void  but  may  be 
eliminated  without  affecting  the 
remainder  of  the  act.  81. 
CONTRACTOR— 

Notice  to,  is  notice  to  his* 
surety.    17.- 

For  a  county  ditch  Is  absolved 
from  his  contract  by  a  delay  of 
more  than  one  hundred  and  twenty 
days  by  a  lower  contractor;  time 
will  be  allowed  for  completing  a 
ditch,  notwithstanding  time  la  of 
the      essence      of      the      contract, 

Payment  of  a  Judgment  taken 
against  owner  and  contractor 
Jointly  Is  tantamount  to  payment 
to  the  contractor,  when.    198. 

The  lien  of  a  sub-contractor  Is 
subordinate  to  a  debt  due  the  own- 
er from  the  principal  contractor, 
when.     198. 

Trading  in  a  bucket  shop  treat- 
ed as  a  constructive  contract.  384. 

Where  public  funds  have  been 


paid  out  on  a  Contract,  completed 
In  good  faith  and  without  collu- 
sion, recovery  can  not  be  had  In  a 
suit  by  a  tax-payer,  notwithstand- 
ing the  contract  was  illegal  and 
void.    690. 

A  contract  for  the  building  of  a 
new  school  house  Is  not  Illegal  be- 
cause in  excess  of  the  funds  avail- 
able, when;  but  such  a  contract 
la  void,  where  the  contractor  has 
been  permitted  to  reduce  hia  bid 
ao  as  to  bring  it  within  the  amount 
of  the  bond  issue;  such  a  con- 
tract Is  rendered  void  by  failure 
of  the  clerk  or  auditor  to  certify 
that  the  necessary  funds  are  ou 
hand  or  in  process  of  collection. 
590, 

Where  the  minds  of  the  parties 
have  met  with  reference  to  a  pro- 
posed contract  and  the  conditions 
to  be  embodied  therein,  the  mere 
fact  that  the  contract  which  was 
not  ready  for  signature  at  the  time 
of  reaching  the  agreement  was 
never  signed  does  not  deprive  it 
of  its  binding  character.     217. 

One  who  enters  into  a  contract 
of  employment  for  the  develop- 
ment of  an  invention  may  be 
enjoined  from  disclosing  Ideas  or 
devices  developed  or  perfected 
while  he  was  so  employed.     217. 

The  law  raises  an  implied  con- 
.  tract  that  an  employe  who  occu- 
pies a  confidential  relation  toward 
his  employer  shall  not  disclose 
trade  secrets  Imparted  to  him  or 
discovered  by  him  while  thus  em- 
ployed. 217. 
CONTRACTS— 

An  action  in  disaffirmance  of 
an  executory  contract  may  be 
maintained  by  parties  in  pari  de- 
licto,  when.     49. 

An  action  to  enjoin  the  defend- 
ant from  violation  of  a  contract 
la  not  an  action  to  enforce  a  con' 
tract  by  mandatory  injunction, 
when.     425. 

Validity  of  a  contract  for  the 
exclusive  exchange  of  toll  business 
between  two  telephone  companies; 
such  contracts  distinguished  from 
similar   agreements    between    gas 


companies  and  street  railway  com- 
panies, which  are  void  because  of 
a  tendency  to  create  a  monopoly. 
425. 

Evidence  as  to  the  condition  of 
the  telephone  business  within  the 
field  in  which  tne  companies  were 
operating  is  admissible  in  deter- 
mining the  purpose  and  tendency 
of  an  agreement  for  an  exclusive 
Interchange   of   business.     425. 

As  to  control  of  shipping  con- 
tracts to  be  performed  within 
and  between   states.    451. 

Character  of,  embodied  in  a 
street  railway  franchise.     161. 

Nature  of  the  contract  between 
a  natural  gac  company  and  the 
state  on  the  one  hand  and  the  mu- 
nicipalities which  It  serves  on  the 
other.    5o3. 

CONTRIBUTORY  NEGLIGENCE— 

See  Negligence. 
CORPORATIONS— 

See  Municipal  Corporations. 

Attachment  will  lie  against  a 
foreign  corporation  without  bond 
In  an  action  for  recovery  of 
money  lost  in  a  bucket  shop.   384. 

A  corporate  act  can  not  be  per- 
formed by  directors  of  the  corpo- 
ration acting  separately  or  Indivi- 
dually, but  action  must  be  taken 
Jointly  as  a  board;  things  done 
by  directors  acting  separately  will 
be  treated  as  of  no  effect,  unless 
Innocent  persons  have  been  mis- 
led thereby  to  their  injury.    548. 

A  corporation  has  -no  Insurable 
interest  In  the  lives  of  members 
of  its  board  of  directors  who  are 
not  indebted  to  it;  premiums  paid 
out  of  the  treasury  of  the  com- 
pany on  policies  on  the  lives  of 
directors  may  be  recovered  back, 
when.    548. 

A  foreign  corporation,  which  l* 
a  tax-payer,  may  bring  an  action 
to  enjoin  a  municipality  from 
abuse  of  Its  corporate  powers.    420. 

A  receiver  for,  will  not  be  ap- 
pointed for  past  irregularities; 
nor  for  present  mismanagement, 
unless  accompanied  by  actual 
fraud;    nor  for  threatened  dangers 


which  call  be  prevented  by  Injunc- 
tion or  some  other  remedy.    113. 

Mechanical  secrets  learned  by 
employee  while  at  work  In  an  ex- 
perimenting room  may  not  he  dis- 
closed, and  an  Injunction  will  lie 
against  sale  or  disclosure  of  Ideas 
or  devices  so   obtained.    217. 

No  rights  ot  a  pledgee  of  stock 
violated  by  a  sale  of  the  assets  ot 
the  corporation,  when.    24. 

Public  service  corporations  can 
not  abandon  duties  they  have  un- 
dertaken without  forfeiting  the 
franchise  which  has  been  granted 
to  them  by  the  state;  can  be  com- 
pelled by  mandatory  Injunction 
to  continue  the  performance  of 
such  duties.    553. 

While  the  power  to  regulate 
the  price  at  which  a  gas  com- 
pany shall  furnlah  gas  to  a  mu- 
nicipality 1b  vested  in  council,  It 
is  a  power  that  must  be  exercised 
in  good  faith  for  the  purpose  for 
which  it  was  conferred:  bad  faith 
on  the  part  of  council  In  fixing  on 
Inadequate  price  or  In  making  un- 
reasonable or  arbitrary  regula- 
tions is  a  proper  subject  for  In- 
quiry, when  put  in  issue.    553. 

The  State  Board  of  Agriculture 
Is  not  a  public  but  private  corpo- 
ration.    103. 
CO-TENANT— 

See  Tenants  In  Common. 
COUNTY— 

it  Is  the  duty  of  the  county  in 
which  a  county  local  option  elec- 
tion Is  held  to  defend  the  validity 
of  the  election,  regardless  of  the 
result  as  between  "wet"  and 
"dry";  and  If  necessary  to  Its 
defense  error  may  be  prosecuted; 
an  elector  may  appear  and  assist 
in  the  defense  either  in  person  or 
by   counsel.     619. 

COUNTY  COMMISSIONERS— 

Appeal  from,  does  not  lie  in 
matters  In  which  the  commission- 
ers are  vested  with  discretionary 
power  or  act  In  a  governmental 
capacity;  does  not  lie  from  an 
allowance  for  clerk  hire  In  a 
county  office.    8. 


A  petition  tiled  under  Section 
845,  asking  for  dunaget  because 
of  an  accident  growing  out  of  an 
unsafe  condition  of  a  highway, 
should  clearly  allege  that  said 
highway  is  a  state  or  county  road. 
136. 

Liability  of  the  county  for  an 
accident  due  to  the  bad  condi- 
tion of  a  county  road  can  only  at- 
tach when  ft  Is  made  clear  that 
the  commissioners  had  been  negli- 
gent in  making  repairs  which  it 
was  their  duty  under  the  law  to 
make.    136. 

Exercise  of  judicial  function  in 
passing  on  an  application  for  the 
annexation  of  territory  to  a  mu- 
nicipality; where  this  function  Is 
not  exercised,  but  action  is  taken 
merely  at  the  suggestion  of  others 
and  without  intending  to  accept 
responsibility  therefor,  injunction 
will  lie.    614. 

Payments  made  by,  should  be 
"Itemized,"  In  their  annual  report 
lo  the  common  pleas  court,  to 
the  extent  of  giving  the  names  of 
the  persons  to  whom  money  Is 
paid,  the  aggregate  amount  paid 
for  any  single  purpose,  and  the 
purpose  for  which  the  payment 
was  made.  567.  . 
COUNTY  ROADS— 

See  Roads. 
COURTS— 

A  state  court  Is  without  juris- 
diction to  temporarily  enjoin  an 
Increase  in  Interstate  freight  rates, 
pending  a  decision  aa  to  the  rea- 
sonableness of  the  proposed  rate 
by  the  Interstate  Commerce  Com- 
mission.   451. 

Jurisdiction  of  the  probate 
court;  its  inherent  power;  verity 
of  Its  records;  de  facto  execu- 
tors.   609. 

Finding   of    the    probate    court 
as  to  the  legality  of  an  appoint- 
ment  of   a   trust   company   as   ex- 
ecutor must  be  presumed.    609. 
CREDITOR— 

See  Debtor  and  Creditor. 
CRIMINAL   LAW— 

A  prosecution   under  the  state 


M«  iND 

automatic  coupler  act  la  civil  and 
not  criminal  in  It*  nature.    571. 

A  warrant  of  extradition  is  a 
nullity  where  signed  by  the  Gover- 
nor In  blank.     307. 

An  affidavit  charging  two  or 
more  things  In  the  disjunctive  1b 
bad  tor  uncertainty,  and  tbe  record 
ot  the  dismissal  of  such  a  case 
predicated  on  such  an  affidavit 
la  not  a  bar  to  a  subsequent  prose- 
cution.   432. 

An  attorney  other  than  tbe 
prosecuting  attorney  may  appear 
for  the  prosecution  under  the  Beat 
law.    -182. 

Charging  of  false  pretenses 
against  bank  officials;  meaning 
of  the  words  "invest"  and  "spec- 
ulate";   office  of  the  innuendo.  371. 

Prosecutions  for  selling  intoxi- 
cating liquor  on  Sunday;  first 
and  second  offense;  plea  in  bar 
on  ground  of  being  twice  placed 
in  Jeopardy  for  the  same  offense. 
365. 

Effect  of  a  reversal  by  an  up- 
per court;  autrefois  acquit  not 
available  as  to  counts  In  the  In- 
dictment with  reference  to  which 
the  verdict  was  silent.    208. 

It  Is  the  duty  of  the  court  to 
secure  as  Jurors  men  who  do  not 
entertain  a  settled  belief  as  to 
either  the  guilt  or  innocence  of  the 
defendant.    193. 

If  the  evidence  offered  In  sup- 
port of  a  motion  for  a  change  of 
venue  makes  It  appear  Improbable 
that  the  defendant  can  secure  a 
fair  trial  or  unprejudiced  Jury  In 
the  county  of  his  residence,  the 
motion  should  be  granted.     193. 

Influence  upon  the  public  mind 
of  Inflammatory  articles  In  the 
newspapers  with  reference  to  an 
accused  about  to  be  brought  to 
trial.     193. 

prosecutions  for  the  Illegal 
compounding  or  sale  of  drugs  or 
poisons:  magistrate  can  only  bind 
over,  unless  a  jury  Is  Waived 
in  writing;  strict  proof  not  re- 
quired before  the  magistrate.    338. 

Prosecution  of  saloon  keeper 
under  the  Sunday  closing  law;    an 


unlawful  sale  can  be  charged  as  a 
second  offense,  where  the  first 
conviction  relied  upon  was  for  un- 
lawfully allowing  a  saloon  to  re- 
main open  on  Sunday.    397. 

The  enumeration  in  Section 
3821-86  of  certain  acta  of  officers 
and  others  of  any  banking  com- 
pany as  penal,  although  worded 
In  general  language,  is  limited 
In  its  operation  to  banks  organ- 
ized under  that  act.     345. 

The  number  of  persons  consti- 
tuting a  legal  grand  jury  Is  fif- 
teen.   2S1. 

Technical  objections  to  the  1m- 
pannellng  of  a  grand  jury;  in- 
quiry as  to  qualifications  of  grand 
Jurors;  members  of,  chiefly  from 
one  locality;  prejudice  or  hostil- 
ity of  grand  jurors  to  one  Indict- 
ed; instructions  by  the  court; 
absence  of  tbe  accused  from  the 
Jurisdiction — none  of  these  objec- 
tions afforded  ground  for  a  plea  In 
abatement.  281. 
CROSSINGS— 

Provision  In  the  act  for  abolish- 
ing at  grade,  giving  the  circuit 
court  Jurisdiction  for  determin- 
ing the  necessity  for,  etc.,  is 
void.     SI. 

In  avoiding,  authority  Is  con- 
ferred to  re-locate  streets.    81. 

Piers  may  be  placed  In  streets 
In  abolishing  grade  crossings, 
when.    81. 

The  expense  to  municipalities 
of  abolishing  grade  crossings  falls 
within  the  4  per  cent,  limitation 
of  Section  2S35.    249. 

A  railway  may  divert  the  course 
of  a  highway  for  the  purpose  of 
making  practical  the  crossing  of 
the  highway  by  an  overhead 
bridge,  when.  529. 
CY  PRES— 

Application  of  doctrine  of, 
where  property  devised  for  use 
as  a  parsonage  had  become  too 
valuable  and  otherwise  unsuitable 
for  such  use;  sale  authorized  and 
proceeds  ordered  applied  to  same 
purpose  in  another  locality;  pur- 
chaser not  required  to  see  to  ap- 
plication of  proceeds.  -377. 


DAMAGES-^- 
Recovery  of  Interest  as,  for  un- 


DEBTOR  AND  CREDITOR— 

Joint  tort  feafiors  are  not  Joint 
debtors  until  the  claim  has  been 
reduced  to  judgment  or  otherwise 
liquidated   by  the   parties.     368. 

Liability  of  principal  debtor  to 
the  estate  of  his  surety  of  which 
he  is  executor.    177. 

Mere  Ignorance  of  the  where- 
abouts of  a  debtor,  not  absent  from 
the  state,  does  not  toll  the  statute 
of  limitations  as  applied  to  an  ac- 
tion on  an  account.  142. 
DEED— 

In  the  ordinary  form  of  bargain, 
sale  and  release  does  not  extend 
to  an  after-acquired  interest.   333. 

"Where  executed  by  testator  may 
be  admitted  Id  evidence  in  action 
to  contest  his  will;  failure  to 
prove  execution  of  deed.     435. 

DEFENSES— 

Consent  to  the  setting  aside  of 
a  judgment  Is  a  waiver  of  a  for- 
mal finding  by  the  court  as  to  the 
validity  of  the  defense  about  to 
be  offered.  313. 
DESCENT— 

Of  ancestral  property;  co-par- 
ceners give  release  in  the  form  of 
warranty  deeds;  widow  of  one 
dying  without  issue  takes  a  life 
estate  only,  the  fee  going  to 
brothers  and  sis t era  of  the  de- 
cedent. 333. 
DEVISE— 

Of  a  life  estate  in  lands  to  a 
son  with  remainder  to  his  heirs; 
death  of  the  son  without  Issue 
causes  the  remainder  to  fail.    158. 

Of  property  to  a  church  for  use 
as  a  parsonage;  may  be  sold  and 
other  property  purchased  from  the 
proceeds,  when;  purchaser  need 
not  see  to  application  of  proceeds. 
377. 

The  words  "heirs  of  the  body  of 
T"  held  to  constitute  a  separate 
bequest  and  not  to  be  words  of 


EX  MT 

description  of  the  persons  named 
in  the  immediate  context.    297. ' 

Where  the  devisee  of  a  share  of 
real  estate  dies  before  distribution, 
the  proceeds  go  to  his  heirs  as 
personalty  and  should  be  paid  by 
the  administrator.     97. 

Application  of  Section  5945,  de- 
barring a  devisee  from  partition, 
who  withholds  a  will  from  probate 
for  more  than  three  years.     97. 

Right  of  a  devisee  to  testify  In 
will  contest.    435. 

DIRECTORS— 

Must  act  jointly  as  a  board; 
things  done  by  members  of  the 
board  acting  separately  or  indivi- 
dually will  be  treated  as  of  no 
effect,  unless  Innocent  persons 
have  been  misled  thereby  to 
their  injury.     648. 

A  corporation  has  do  Insurable 
Interest  In  the  lives  of  members 
»f  Its  board  of  directors  who  arc 
not  indebted  to  It;  money  paid 
out  of  the  treasury  of  the  company 
on  policies  on  the  lives  of  mem- 
bers of  Its  board  may  be  recovered 
back  and  the  policies  canceled. 
548. 

DISCRETION— 

In  permitting  amendments  to 
pleadings.     143. 

Injunction  will  He  against  an 
unwarranted  exercise  of  discre- 
tion by  a  school  board  In  sub- 
mitting again  to  the  voters  of  the 
district  a  proposition  for  a  bond 
Issue  to  build  a  new  school  house, 
where  the  proposition  has  already 
been  submitted  and  voted  down 
three  times.    590. 

DITCHES— 

Where  the  assessment  for  a 
township  ditch  Is  In  excess  of  the 
benefits  conferred,  Its  eotlection 
may  be  enjoined,  notwithstanding 
the  trustees  had  Jurisdiction  to  or- 
der the  improvement  and  all  the 
proceedings  were  regular.    601. 

Water  from  a  highway  ditch 
can  not  be  thrown  upon  the  land 
of  an  adjacent  owner  to  his  dam- 
age, unless.     90. 


A  contractor  for  an  u»per  ■ac- 
tion will  be  allowed  time  for  com- 
pletion of  the  work  beyond  that 
named  in  hie  contract,  notwith- 
standing time  fa  made  of  the  es- 
sence of  the  contract,  when.      17, 

A  delay  of  more  than  one  hun- 
dred and  twenty  day  a,  caused  by 
the  default  of  a  lower  contractor, 
in  law  abaolves  an  upper  con- 
tractor from  the  obligations  ot  hla 
contract.  IT. 
DIVORCE  AND  ALIMONY— 

It  the  defendant  la  a  resident 
of  the  state,  a  copy  of  the  petition 
must  be  served  upon  him  with  the 
summons,  and  If  served  by  publi- 
cation and  hla  residence  la  known 
a  copy  of  the  petition  must  be 
aent  to  him  with  the  publication. 
S74. 
DRUGGIST— 

Statutory  regulations  with  ref- 
erence to  retailing  drugs,  com- 
pounding prescriptions  and  sale  of 
polslona;  what  Section  4405  pro- 
hibits; prosecution  under;  juris- 
diction of  magistrate  and  char- 
acter of  proof  required.     338. 

EASEMENT— 

An  implied  reservation  of  an 
easement  by  a  grantor,  which  Is 
beneficial  to  him  and  Injurious  to 
hfs  grantee  and  might  have  been 
guarded  against  by  special  reser- 
vation, must  be  founded  upon  a 
real  and  reasonable  necessity.  261. 

A  side  entrance  to  a  residence 
Is  not  such  a  necessity  as  will 
imply  a  reservation  of  an  ease- 
ment, when.    261. 

Natural    Basements    with    refer- 
ence  to   the   draining   off   of   sur- 
face water.    90. 
EDUCATION— 

See  Schools. 
EJECTMENT— 

Will  not  lie  agalnet  a  munici- 
pality claiming  title  to  a  vacated 
street,  when.    205. 
ELECTIONS— 

In  computing  the  time  for 
holding  a  county  local  option  elec- 


tion the  first  day  should 'be  ax- 
eluded  and  the  last  included.  619. 

The  responsibility  ot  defending 
the  validity  of  a  county  local  op- 
tion election  ia  on  the  county,  but 
an  elector  may  appear  personally 
or  by  counsel  and  take  part  in 
the  defenae;  if  such  a  course  be- 
comes neceaaary,  the  county  may 
continue  its  defenae  by  the  prose- 
cution of  error.  6 IB. 
ELECTRIC  RAILWAYS— 

See  Street  Railways. 
EMBEZZLEMENT— 

An  indictment  charging  officers 
of   a   state    bank   with    embezzle- 
ment of  the  bank  funds  will  only 
lie,  when.    346. 
EMINENT  DOMAIN— 

Resort  must  be  had  to,  by  town- 
ship trustees  before  water  from  a 
highway  ditch  can  be  thrown  up- 
on the  land  of  an  adjacent  owner 
to  hla  damage.    90. 

Where  a  strip  of  ground  is  ap- 
propriated for  a  sidewalk,  and 
compensation  therefor  fa  fixed  but 
payment  Is  long  delayed,  and  In 
the  meantime  the  abutting  owner 
disposes  ot  a  number  ot  the  lots, 
in  the  deeds  to  which  no  reference 
Is  made  to  compensation  for  the 
strip,  title  to  such  compensation 
will  be  treated  as  having  vested 
In  the  original  owner  and  not  in 
his  grantees.  244. 
ENTRY  UPON  LAND— 

Subsequent  life  tenants  not  de- 
prived of  the  title  until  the  re- 
quisite period  after  their  right  of 
entry  accrued.    441. 
EQUITY— 

Has  jurisdiction  to  enjoin  action 
under  an  unconstitutional  statute. 
lOi. 

Recovery  on  an  assignment  of  i 
claim  can  be  had  only  by  a  ault 
In  equity.    487. 


Can  not  be  made  the  basis  tor 
a  writ  of  habeas  corpus,  where  the 
error  complained  ot  does  not  ren- 
der the  judgment  void.     276. 

Effect  of  a  judgment  of  reversal 


In  l  criminal  cue:  autrefcit  sc- 
quit.    208. 

Failure  of  the  trial  judge  to 
take  action  with  reference  to  un- 
fair comment  by  counsel  to  toe 
Jury  does  not  constitute  error, 
where  the  remark  complained  of 
was  of  a  desultory  character.    462. 

It  is  not  error  to  charge  that 
the  Jury  may  consider  whether  the 
motorman  had  proper  control  of 
his  car  at  the  time  of  the  collision, 
when.     462. 

Where  the  circumstances  of  the 
case  warrant  such  a  charge,  It  is 
not  error  to  Instruct  the  Jury  that 
"it  la  not  negligence  In  the  driver 
of  a  vehicle  to  attempt  to  cross  a 
street  car  track  ahead  of  an  ap- 
proaching car,  when  the  car  is  so 
far  away  that  by  the  exercise  of 
reasonable  care  it  could  be  stopped 
before  reaching  the  place  of  the 
crossing.     462. 

It  is  error  to  order  the  restora- 
tion of  a  record  which  it  la  claimed 
has  been  destroyed,  unless  some 
evidence  is  offered  that  such  <i 
record  was  once  In  existence.    188. 

Jurisdiction  of  the  common 
pleas  court  on.    601. 

Under  the  provisions  of  Section 
6T0S,  a  county  may  prosecute  error 
from  the  probate  to  the  common 
pleas  court,  where  such  a  course 
becomes  necessary  In  defending  a 
Rose  county  local  option  elec- 
tion.    619. 


ESTOPPEL— 

The  giving  by  a  eo-parcener  of 
a  release  in  the  form  of  a  war- 
ranty deed  does  not  estop  him 
from  subsequently  claiming  an  in- 
terest in  the  property  thus  con- 
veyed, the  parcener  receiving  it 
having  died  without  Issue.  333. 
EVIDENCE— 

See  Burden  of  Proof. 

Application  of  the  rule  permit- 
ting the  introduction  of  extrinsic 
evidence  as  an  aid  in  construing  a 
will.     297. 


In  an  action  to  determine  the 
validity  of  a  contract  for  the  ex- 
clusive exchange  of  toll  business 
between  telephone  companies,  evi- 
dence as  to  the  condition  of  the 
telephone  business  in  the  fields  in 
which  the  companies  were  oper- 
ating. Is  competent    425. 

Right  of  devisee  to  testify  in  a 
will  contest;  deeds  executed  by 
the  testator  may  be  admitted  In  a 
will  contest  for  the  purpose  of. 
435. 

Oral  statements  by  an  insured 
concerning  his  physical  condition, 
made  at  about,  the  tune  of  the 
filing  of  his  application  for  in- 
surance, are  not  competent  for  the 
purpose  of  showing  the  falsity  of 
his  written  answers.  238. 
EXCEPTIONS— 

Where  objection  la  made  to  a 
statement  by  counsel  to  the  Jury 
and  the  court  ignores  the  objec- 
tion, an  exception  must  be  noted 
notwithstanding  a  ruling  on  the 
exception  was  not  necessary.  462. 
EXECUTOR— 

See  Administrator. 
EXTRADITION— 

Where  a  warrant  of  extradition 
is  signed  by  the  Governor  In  blank 
and  Is  afterward  by  his  secretary 
filled  out  by  writing  therein  the 
name  of  some  accused  person,  the 
warrant  is  a  nullity;  but  the 
Governor  may  iseue  a  valid  war- 
rant on  the  same   paper.     307. 

FALSE  PRETENSES— 

Manner  of  charging  in  indict- 
ment against  bank  officials.  371. 
FERTILIZERS — 

Invalid  provisions  In  Section 
4446a    relating   thereto.     103. 

FIDELITY    AND    TRUST    COM- 
PANIES— 

See  Trust  Companies. 
FIDUCIARY  RELATIONS— 

One  employed  to  perfect  an  In- 
vention occupies  a  confidential  re 
lation  toward  his  employer;  not 
permitted  to  make  disclosures  con- 


cernlng  the  Work  In  hand;  can  not 
attar  the  machine  la  perfected 
claim  title  therein  as  against  his 
employer;  or  engage  In  work  for 
a  rival  concern  on  a  machine  em- 
bodying the  same  mechanical  fea- 
tures. 217. 
FIRES— 

The  act  authorizing  inspection 
of  school  houses  and  other  build- 
Inga  of  public  assembly  with  ref- 
erence to  means  lor  sate  and 
speedy  egress,  and  authorizing  the 
ordering  of  better  fac  111  ties  of 
egress,  is  constitutional.  401. 
FORCIBLE  ENTRY  AND  DE- 
TAINER— 

Jurisdiction  not  shown  by  a  re- 
turn   that     the    defendant    was 
served  "In  person.''    1. 
FORFEITURE— 

Of  a  gas   franchise   Is  worked 
by    abandonment    of    the    service 
which    It   contracted   to    perform. 
553. 
FRANCHISE— 

See  Municipal  Corporations. 

Irrevocable  character  of  a  street 
railway  franchise:  application  by 
the  municipality  of  regulations 
embodied  in  subsequent  ordi- 
nances.   161. 

So  long  as  a  gas  company  con- 
tinues to  exercise  and  enjoy  the 
franchise  bestowed  upon  It  by  the 
state.  It  can  be  compelled  by  man- 
datory Injunction  to  furnish  gas 
to  a  municipality  with  which  it 
has  entered  Into  contract  relations 
to  perform  that  service.  553. 
FRATERNAL   SOCIETIES— 

See  Mutual  Benefit  Societies. 
FRAUD— 

Aets  by  officers  of  a  corporation 
constructively  fraudulent;  but  In- 
volving no  moral  turpitude,  are 
not  ground  for  appointment  of  a 
receiver.  113. 
FUGITIVE  FROM  JUSTICE— 

See  Extradition. 

GAMBLING— 

In  a  bucket  shop;  attachment 
will  He  for  money  lost.    3S4. 


OAS  COMPANY— 

A  natural  gas  company,  author- 
lied  by  the  state  to  furnish  gas 
to  a  considerable  territory,  can  not 
abandon  Its  service  of  one  of  the 
municipalities  therein  without  vio- 
lation of  Its  contract  with  the 
state;  and  a  continuance  of  the 
service  can  be  compelled  by  man- 
datory   Injunction.    553. 

While  power  to  regulate  the 
price  at  which  gas  shall  be  fur- 
nished to  a  municipality  la  vested 
in  council.  It  is  a  power  which 
must  be  exercised  in  good  faith 
for  the  purpose  for  which  it  was 
conferred;  and  bad  faith  in  fix- 
ing an  inadequate  price  or  In 
making  unreasonable  or  arbitrary 
regulations  Is  s  proper  subject  for 
inquiry,  when  put  In  issue.  6E3. 
GIFTS— 

For  plons  uses;  charitable  char- 
acter of,  not  changed  because  to 
a  particular  denomination;  sale 
of  property  and  purchase  of  other 
property  for  the  same  use  In  a 
more  desirable  location;  purchas- 
er need  not  see  to  application  of 
the  proceeds,  when.    377. 

Inter  vivot  and  causa  mortis; 
bonds  delivered  by  an  invalid  to 
her  sister  In  expectation  of  death, 
but  on  condition  that  they  be  re- 
turned to  her  in  the  event  that 
she  needed  them,  are  a  gift  causa 
mortis,  where  the  gift  remained 
uncanceled  and  the  donor  died 
from  the  malady  from  which  she 
was  then  suffering,  although  her 
death  did  not  occur  for  six  months 
thereafter.  293. 
GOVERNOR— 

A  warrant  of  extradition  signed 
by,  In  blank  Is  a  nullity;  but  he 
may  Issue  a  valid  warrant  on  the 
same  paper.    307. 
GRADE— 

See  Streets. 
GRaND  JURY— 

Fifteen  persons  constitute  a 
legal  grand  Jury;  technical  objec- 
tions to  the  Impannellng  of,  In- 
structions to  by  the  court,  preju- 
dice of  members  of  the  jury  to 


one  Indicted  And  absence  of  the 
accused  from  the  Jurisdiction  are 
not  grounds  for  a  plea  In  abate- 
ment.   2  81. 

Service  of  process  In  a  civil  ac- 
tion may  be  bad  upon  an  accused 
person  who  is  voluntarily  seeking 
a  hearing  before  a  grand  Jury  In 
a  county  other  than  that  of  his 
residence.  585. 
GUARANTY— 

Of   payment  of   rent;    fee  • 


HABEAS  CORPUS— 

Not  available  In  a  case  where 
the  error  complained  of  does  not 
render  the  Judgment  void.    276. 

Will    Issue    for    the    release    of 
one  held  under  a  warrant  or  ex- 
tradition   which    was    signed    by 
the  Governor  In  blank.    307. 
HAMLETS— 

Organization  of.    514. 

INDICTMENT— 

Charging  bank  officials  with 
false  pretenses  In  their  represen- 
tations as  to  the  safety  of  the 
bank  and  its  methods.     371. 

Effect  of  a  judgment  of  reversal 
as  to  counts  with  reference  to 
which  the  verdict  was  silent    208. 

Technical  objections  to  grand 
Jury;  hostility  of  members  of  the 
Jury  to  the  accused;  numoer  con- 
stituting a  legal  grand  Jury;  In- 
structions by  the  court;  plea  In 
abatement  to  Indictment.    281. 

Will  not  He  against  officers  of 
a  state  bank,  charging  embezzle- 
ment of  the  bank   funds,   when. 
345. 
INHERITANCE  TAX  LAW— 

See  Taxation. 
INJUNCTION— 

Against  certification  of  a  street 
assessment;  method  of  computing 
whether  the  two  years'  limitation 
has  expired.    393. 

Mandatory    Injunction    will   lie 


HI 

to  compel  a  gas  company  to  fur- 
nish gas  to  a  municipality  under 
Its  franchise,  when.    553. 

Where  a  proposition  for  a  bond 
Issue  for  a  new  school  house  has 
been  submitted  to  the  voters  of 
the  district  three  times  and  each 
time  voted  down,  further  submis- 
sion may  be  enjoined  as  an  abuse 
of  discretion  on  the  part  of  the 
board.    590. 

Will  lie  against  an  assessment 
for  a  township  ditch,  where  In  ex- 
cess of  benefits.    601. 

Where  the  prayer  of  the  peti- 
tion is  for  an  Injunction  to  pre- 
vent the  defendant  from  violating 
a  contract,  the  action  Is  not  open 
to  the  objection  that  It  is  an  at- 
tempt to  enforce  a  contract  by 
mandatory  Injunction.    425. 

Will  lie  against  action  by  coun- 
ty commissioners  Involving  an  ex- 
ercise of  the  Judicial  function, 
but  which  was  taken  without  In- 
dependent consideration  and  at  the 
request  of  others.    514. 

Will  lie  against  the  recording  of 
proceedings  for  the  annexation  of 
territory  to  a  municipality,  when. 
514. 

Will  He  against  an  employe  re- 
straining blm  from  disclosing  me- 
chanical Ideas  or  devices,  devel- 
oped by  him  while  In  the  employ 
of  the  plaintiff.    217. 

Will  He  against  payment  of  a 
bill  for  supplies  purchased  Ille- 
gally but  in  good  faith  for  a  vil- 
lage, notwithstanding  the  morcl 
obligation  Incurred  by  the  pur- 
chaser.    174. 

Will  He  against  a  municipality 
seeking  to  interfere  with  the 
operation  of  a  street  railway, 
when.    161. 

Will  He  against  taxation  of 
chattel  mortgages  In  the  county  of 
the  situs  of  the  property  Instead  of 
the  county  of  the  owner's  resi- 
dence.   342. 

Will  He  against  the  publication 
of  a  libel,  when.    103. 

Granted  as  to  the  defendant  pri- 
vate corporations,  but  not  as  to 
state  officers.     103. 


Will  lie  at  the  suit  of  a  foreign 
corporation  appearing  as  a  tax- 
payer.   420. 

Will  lie  on  the  petition  of  a. 
board  of  education  again Bt  op- 
pressive and  arbitrary  action  In 
closing  school  houses  under  au- 
thority of  the  act  providing  for 
better  facilities  for  egress  in  case 
ot  fire.    401. 

Will  not  He  against  the  revoca- 
tion of  a  physician's  license,  who 
Is  maintaining  two  different  offices 
under  two  different  names.    132. 

Will  not  lie  to  prevent  the  en- 
forcement of  a  local  option  law; 
an  adequate  legal  remedy  is  af- 
forded In  a  criminal  prosecution 
under  the  law.    626. 

Will  not  He  upon  a  petition  to 
the  state  court  to  temporarily  re- 
strain an  increase  in  freight  rates 
on  Interstate  traffic.    451. 

INNKEEPER— 

The  proprietor  of  a  lodging 
house  who  serves  meals  and  oper- 
ates a  bar  is  an  Innkeeper;  a  pa- 
tron paying  a  stipulated  sum  for 
board  and  lodging  is  a  guest,  and 
where  he  deposits  valuables  with 
the  proprietor  for  safekeeping  and 
they  are  lost,  the  proprietor  Is  lia- 
ble therefor.    396. 

INSOLVENCY— 

See  Debtor  and  Creditor. 

As  a  ground  for  appointment  of 
a  receiver;   form  of  allegation  as 
to.    361. 
INSURANCE   (Life)  — 

See  Mutual  Benefit  Societies. 

A  corporation  has  no  Insurable 
Interest  In  the  lives  ot  members  of 
its  board  of  directors  who  are  not 
indebted  to  it;  this  a  life  Insur- 
ance agent  will  be  presumed  to 
know,  and  an  action  will  lie 
against  the  company  for  cancella- 
tion of  such  policies  and  recovery 
of  premiums  paid,  where  paid  out 
of  the  treasury  of  the  company. 
MS. 

Construction  of  Section  274,  re- 
lating to  the  winding  up  of  un- 
sound Insurance  companies.    113. 


Insolvency  of,  in  the  strict  legal 
sense  and  under  laws  relating  to 
Insurance  companies;  death  claims 
not  unconditional  promises  to  pay; 
receiver  for  Columbia  Life  Insur- 
ance Company  denied.    113. 

Constructive  service  can  not  be 
made  on  a  non-resident  defendant 
In  an  action  In  interpleader 
brought  by  the  company  to  deter- 
mine the  ownership  of  proceeds 
of  a  policy.    145. 

Oral  statements  made  by  an  In- 
sured with  reference  to  his  physi- 
cal condition  at  about  the  time  of 
the  filing  of  his  written  applica- 
tion for  Insurance  are  not  com- 
petent for  the  purpose  of  showing 
the  falsity  of  the  written  answers. 
23S. 

The  general  rule  as  to  declara- 
tions made  by  the  deceased  Is  ap- 
plicable where  the  policy  is  In  a 
mutual  benefit  society.    238. 

INTEREST— 

Recovery  of,  as  damages  for  un- 
lawful use  of  county  funds  by 
banks;  application  of  statute  of 
limitations;   measure  of  recovery. 


43. 
INTERPLEADER— 

Constructive  service  can  not  be 
made  in  an  action  In,  where 
brought  by  the  stake-holder.     145. 

INTERSTATE  COMMERCE— 

The  federal  courts  and  In- 
terstate Commerce  Commission 
alone  have  control  over  interstate 
freight  rates,  and  a  state  court 
can  not  temporarily  enjoin  the 
putting  Into  effect  of  an  Increased 
rate,  pending  a  decision  by  the  In- 
terstate Commerce  Commission  as 
to   Its  reasonableness.     451. 

INTOXICATING  LIQUORS— 

See  Liquor  Laws. 
JEOPARDY— 

A  defendant  Is  twice  placed  In 
jeopardy,  who  enters  a  plea  of 
guilty  of  selling  liquor  on  Sunday 
In  an  action  prosecuted  as  a  first 
offense,  and  Is  afterward  ar- 
raigned In  another  court  for  the 


INNUENDO— 
Office  of.  in  charging  false  pre- 


JUDGMENT— 

Payment  of,  when  against  own- 
er and  contractor  Jointly,  Is  tan- 
tamount to  payment  to  contractor, 
when.    198. 

Reversal  of,  In  a  criminal  case; 
effect  of.    208. 

Provisions  of  Section  5354,  with 
reference  to  the  vacation  or  modi- 
fication of  Judgments  after  term, 
are  cumulative  and  not  exclusive; 
effect  of  consent  to  vacation  and 
retrial  after  term  of  cause  once 
reduced  to  Judgment;  determina- 
tion of  validity  of  defense;  laches 
and  estoppel;  successive  steps  In 
a  proceeding  to  vacate  a  Judgment 
after  term.  313. 
JUDICIAL  ACTS— 

County  commissioners  exercise 
a  Judicial  function  In  acting  upon 
an  application  for  the  annexation 
of  territory  to  a  municipality; 
where  such  action  is  not  taken 
upon  independent  Judgment,  but 
at  the  request  of  others,  Injunc- 
tion will  lie.  514. 
JUDICIAL  POWER— 

Extent  of  federal  and  state  Judi- 
cial power.    461. 
JUDICIAL  SALES— 

See   Advertisement. 
JURISDICTION— 

A  state  court  has  jurisdiction  to 
protect  the  rights  of  parties 
against  the  divulging  of  trade  se- 
crets and  with  reference  to  pat- 
ents.   217. 

A  state  court  Is  without  Juris- 
diction to  temporarily  enjoin  the 
putting  Into  effect  of  an  increase 
in  freight  rates  on  Interstate  traf- 
fic, pending  a  determination  by 
the  Interstate  Commerce  Commls- 


461. 

In  partition  under  the  law  of 
Ohio;  court  not  ousted  of,  by  an- 
swer denying  title.    441. 

Can  not  be  obtained  by  construc- 
tive service  in  an  action  In  inter- 
pleader where  brought  by  the 
stake-holder.    145. 

Is  not  shown  in  a  forcible  en- 
try and  detained  suit  by  a  return 
that  the  defendant  was  served  "In 
person."    1. 

May  be  obtained  over  a  foreign 
railway  corporation  In  attach- 
ment by  a  Justice  of  the  peace  by 
publication,  when.     265. 

Provision  giving  circuit  court 
Jurisdiction  In  determining  the 
necessity  for  abolishing  a  grade 
crossing  la  void.    81. 

To  appoint  a  receiver;  necessary 
allegations.    361. 

Where  exercised  by  the  pro- 
bate court  In  the  matter  of  ap- 
pointing a  trust  company  as  ex- 
ecutor; after  determination  as  to 
the  competency  of  the  company  to 
act,  the  appointment  can  not  be 
collaterally  attacked.    60S. 

Where  representatives  of  two 
contending  classes  In  a  nonde- 
script organization  are  In  court 
on  a  petition  for  Its  dissolution 
on  the  ground  that  some  of  Its 
methods  are  illegal.    49. 


JURY— 

Qualification  of  juror  to  sit  In  a 
criminal  case  notwithstanding  the 
forming  or  ex  pr  east  on  of  an  opin- 
ion.   193. 
JUSTICE  OF  THE  PEACE— 

A  Justice  of  the  peace  may  ob- 
tain Jurisdiction  by  publication 
over  a  foreign  railway  corpora- 
tion, where  the  president  does  not 
reside  In  the  township,  and  the 
road  does  not  enter  the  township, 
and  process  can  not  be  served  un- 
der Section  6498.    265. 

Interlineations  In  bill  of  excep- 
tions will  be  presumed  by  a  re- 
viewing court  to  have  been  placed 


there  In  good  faith  at  the  time 
stated,  as  against  hints  by  coun- 
sel to  the  contrary.    389. 

Extension  of  the  time  within 
which  to  file  bill  of  exceptions.  389. 

Jurisdiction  of,  in  forcible  entry 
and  detainer  not  shown  by  a  re- 
turn which- shows  no  more  than 
that  the  defendant  was  served  "In 
person."    1. 

Where  a  misdemeanor  Is  charged 
and  the  accused  does  not  waive 
a  jury  In  writing,  the  magistrate 
can  only  bind  the  accused  over; 
strict  proof  not  required.    33S. 

KNOWLEDGE— 

Of  carrier  as  to  weather  condi- 
tions.   14. 

LABOR  UNIONS— 

When  a  labor  union  becotaes 
unlawful;  procedure  where  par- 
ties in  pari  delicto  are  plaintiffs 
seeking  a  dissolution  because  of 
purposes  and  methods  which  con- 
travene public  policy;  decree  dis- 
solving Amalgamated  Window 
Glass  Workers  of  America  and 
appointing  a  receiver  for  its  funds. 
49. 
LACHES— 

Right  to  question  the  action  of 
a  court  In  vacating  a  judgment  is 
lost,  when.    313 

LANDLORD  AND  TENANT— 

See  Rent. 

Attempt  to  surrender  lease; 
conduct  constituting  a  refusal  to 
accept  a  surrender.     272. 

A  third  ocupant  of  the  premises 
under  tbe  lease  can  not  maintain 
aa  action  against  tbe  origin  a  1 
lessee  on  an  Implied  warranty  of 
quiet  enjoyment.  1, 
LEASE— 

Guaranty  of  payment  of  rent 
passes  with  conveyance  of  the' 
fee;  attempted  to  surrender  lease; 
refusal  to  accept  surrender.  272. 
LEGISLATIVE  POWER— 

The  Rose  county  local  option 
law  is  not  unconstitutional  In  that 
It  delegates  legislative  power.  626, 


LIBEL— 

Injunction  will  lie  against  the 
publication  of  a  libel,  when.    103. 

LICENSE— 

Of  a  physician ;  revoked  for 
gross  Immorality  In  maintaining 
two  different  offices  under  two  dif- 
ferent names.    132. 

The  general  licensing  powers 
conferred  on  municipalities  do  not 
authorize  permission  to  a  peddler, 
under  the  guise  of  a  license,  to  oc- 
cupy a  portion  of  tbe  sidewalk  In 
vending  his  wares;  such  a  right 
Is  not  gained  by  use  for  many 
years.    420. 

LIEN— 

Or  a  street  assessment;  method 
of  computing  the  two  years'  limi- 
tation, where  certificate  of  the  as- 
sessment was  delayed  by  Injunc- 
tion.   393. 

The  owner  of  a  building  may 
set  off  an  antecedent  debt  due 
him  from  the  contractor  against 
the  amount  remaining  due  on  the 
contract  to  the  exclusion  of  claims 
of  sub-contractors  and  material 
men.  198. 
LIFE  ESTATE— 

Death  of  a  lite  tenant  without 
Issue  causes  the  remainder  to  fail, 
when.     158. 

Where  property  is  left  to  life 
tenants  with  the  remainder  In 
tail,  the  subsequent  life  tenants 
can  not  be  deprived  of  title  by  ad- 
verse possession  until  the  requi- 
site period  has  elapsed  after  their 
right  of  entry  accrued.    441. 

LIMITATION  OP  ACTIONS— 

An  action  by  a  prosecuting  at- 
torney for  recovery  of  Interest 
from  banks  for  the  use  of  county 
funds  Is  governed  by  Section 
4981.     43. 

A  court  Is  not  ousted  in  Ohio 
of  jurisdiction  in  a  partition  case 
by  the  filing  of  an  answer  denying 
title  and  setting  up  the  statute  of 
limitations.    441. 

Method   of  computing  the   two 
years  during  which   a  street  as- 
i  a  lien,  where  certlflca- 


tlon  of  the  assessment  was  delayed 
by  injunction.    393. 

Statute  of  limitations,  as  ap- 
plied to  an  action  on  an  account, 
not  tolled  by  mere  ignorance  of 
the  whereabouts  of  a  debtor  not 
absent  from  tbe  state.    142. 

The  statute  of  limitations  has 
no  reference  to  burned  or  de- 
stroyed records.    1S8. 

LIS  PENDENS— 

A  pending  suit  to  recover  pos- 
session of  land,  together  with 
rents,  issues  and  profits  there- 
from, 1b  not  a  bar  to  a  proceed- 
ing to  recover  compensation  for 
sucb  land  under  Section  6448.  497. 

LIQUOR  LAWS— 

An  attorney  other  that  the 
prosecuting  attorney  may  appear 
for  the  prosecution  for  a  viola- 
tion of  the  Beal  law,  and  may  file 
a  reply  to  a  plea  In  bar.    482. 

An  unlawful  sale  of  liquor  on 
Sunday  can  be  charged  as  a  second 
offense,  where  the  first  conviction 
relied  upon  was  for  unlawfully  al- 
lowing a  saloon  to  remain  open  on 
Sunday.     397. 

Prosecutions  for  selling  on  Sun- 
day; first  offense  and  second  of- 
fense;   plea  In  bar.    365. 

The  responsibility  of  defending 
the  validity  of  a  county  local  op- 
tion election  is  on  tbe  county  In 
which  the  election  Is  held,  re- 
gardless of  tbe  result  as  between 
"wet"  and  "dry";  but  an  elector 
may  appear  personally  or  by  coun- 
sel and  assist  In  the  defense;  error 
may  be  prosecuted  by  the  coun- 
ty.    619. 

The  provision  that  a  county 
option  election  shall  be  held 
"in  not  less"  than  twenty  days 
From  the  presentation  of  the  pe- 
tition does  not  create  an  exception 
to  the  provision  of  Section  4951, 
that  the  time  within  which  an 
act  shall  be  done  Is  to  be  comput- 
ed by  excluding  the  first  and  In- 
cluding the  last  day.    S19. 

The  Rose  county  option  law 
(99  O.  L.,  35)  Is  constitutional. 
626. 


EX.  «B6 

Injunction  will  not  lie  to  pre- 
vent the  enforcement  of  this  act, 
Inasmuch  as  an  adequate  remedy 
at  law  is  afforded  In  a  criminal 
prosecution  under  the  act.     626. 

Private  citizens  who  are  mem- 
bers of  an  organization  having  as 
Its  object  tbe  enforcement  of  the 
Rose  county  option  law  are  not, 
by  reason  of  that  fact,  rendered 
proper  defendants  to  an  action  to 
test  the  constitutionality  of  that 
law.    626. 

LONGWORTH  ACT— 
Application    of,    to    sewer    ■ 


MARRIAGE— 

See  Divorce  and  Alimony. 
MASTER  AND   SERVANT— 

A  promise  to  provide  a  new  In- 
strumentality Is  equivalent  to  a 
promise  to  remedy  a  defect;  but 
In  the  case  of  h  simple  tool  or 
appliance,  where  obvious  defects 
are  as  perfectly  understood  by  the 
servant  as  by  the  master,  tbe  risk 
from  further  use  Is  assumed,  and 
a  promise  to  replace  such  a  tool 
does  not  shift  the  assumption  of 
risk  from  the  servant  to  the  mas- 
ter.    489. 

An  employe  engaged  In  perfect- 
ing an  Invention  for  his  employer 
occupies  a  confldental  relation  and 
may  be  enjoined  from  disclosing 
to  a  rival  concern  Ideas  or  devices 
developed  while  he  was  so  em- 
ployed.   217. 

MAYOR— 

The  approval  by,  of  an  ordinance 
authorizing  the  annexation  to  a 
municipality  of  territory  In  which 
he  has  a  considerable  financial  In- 
terest is  clearly  against  public 
policy  and  Invalid.    511. 

MECHANIC'S  LIEN— 

See  Lien. 
MISCONDUCT— 

An  exception  Is  necessary  where 


MISDEMEANOR— 

Commitment  under  s  conviction 
for,  ma/  be  made   to   the  work 
bouse  by  a  police  court     276. 
MISJOINDER— 

Of  parties,  where  state  omceru 
and    the    house    doing    the    state 
printing  were  made  defendants  In 
an  action  for  Injunction!    103. 
MONOPOLY— 

A  contract  for  the  exclusive 
Interchange  of  toll  business  be- 
tween telephone  companies  Is  not 
Invalid  because  tending  to  monop- 
oly. 426. 
MORTGAGE— 

Chattel  mortgages  are  taxable  In 
the  county  of  the  owner's  residence 
and  not  In  the  county  In  which 
the  property  Is  situated,  notwith- 
standing the  owner  has  an  agent 
In  the  county  of  the  situs  of  the 
property  who  Is  authorized  to  re- 
ceive Interest  and  Installments  on 
the  principal  as  they  fall  due.  342. 
MUNICIPAL  CORPORATIONS— 

See  Corporations. 

Adverse  possession  by  a  munici- 
pality for  more  than  twenty-one 
years  does  not  deprive  a  subse- 
quent life  tenant  of  title  until  the 
requisite  period  after  his  right 
of  entry  accrued.    441. 

Effect  of  failure  to  make  un- 
born Issue  parties  to  an  action  to 
condemn  for  street  purposes  land 
held  by  life  tenants  with  the  re- 
mainder In  tall.    441. 

A  gas  company  can  be  compelled 
by  mandatory  Injunction  to  con- 
tinue to  furnish  gas  to  a  munici- 
pality, when;  bad  faith  on  the 
part  of  council  In  fixing  an  Inade- 
quate price  for  gas  or  In  making 
u u reasonable  or  arbitrary  regula- 
tions la  a  proper  subject  of  in- 
quiry, when  put  in  Issue.    553. 

Do  not  conduct  a  private  enter- 
prise by  putting  some  of  the  work 
house  prisoners  at  work  In  a 
quarry  and  selling  the  product 
thereof  at  a  profit.    35. 

No  liability  attaches  to  a  mu- 


nicipality from  the  Injury  of  a 
work  house  guard  from  an  acci- 
dental explosion.    35. 

Powers  of;  governmental  as  dis- 
tinguished from  corporate.    35. 

May  interfere  with  the  opera- 
tion of  a  street  railway,  where 
there  is  a  reservation  of  the  right 
so  to  do  and  the  ground  for  so 
doing  Is  legally  sufficient;  but  not 
In  accordance  with  regulations 
embodied  in  ordinances  adopted 
after  the  acceptance  of  the  fran- 
chise by  the  company,  unless  such 
regulations  have  reference  to  gov- 
ernmental matters;  Injunction 
warranted  against  interference 
with  the  operation  of  a  road  for 
failure  to  repave  a  certain  portion 
of  the  street  Including  the  "devil 
strip."    161. 

Acts  and  conduct  on  the  part  of 
a  municipality  which  amount  to 
a  recognition  of  the  rights  of  a 
street  railway  company  in  the 
streets.     181. 

The  fact  that  an  Illegal  pur- 
chase of  supplies  was  made  in  good 
faith  does  not  render  a  munici- 
pality liable  therefor  because  of 
the  moral  obligation  incurred.  174. 

May  re-locate  street  and  place 
piers  in  streets  for  the  purpose 
of  avoiding  grade  crossings,  when. 
81. 

Method  of  computing  the  two 
years'  limitation  of  a  street  assess- 
ment lien,  where  certification  of 
the  assessment  by  the  auditor  was 
delayed  by  Injunction.    393. 

Such  Improvement  as  paving, 
sewer  construction,  and  abolishing 
of  grade  crossings  within  a  mu- 
nicipality are  improvements  with- 
in the  provisions  or  Section  2835, 
limiting  the  authority  of  council 
to  issue  bonds  to  4  per  cent.    249. 

The  requirement  of  Section  1536- 
32,  with  reference  to  the  annexa- 
tion of  territory  to  a  municipality 
on  application  of  citizens,  applies 
under  Section  1636-41  to  an  an- 
nexation made  upon  application  of 
the  corporation   itself,    bit. 

The  approval  by  a  mayor  of  an 
ordinance  authorizing  the  annexa- 
tion to  the  municipality  of  terri- 
tory In  which  be  has  a  financial 


interest  Is  clearly  against  public 
policy  and  Invalid.    614. 

An  annexation  may  be  enjoined 
where  there  has  been  a  failure  on 
the  part  of  the  county  commis- 
sioners to  exercise  their  Judicial 
functions  but  the  granting  of 
sucb  an  injunction  Is  not  a  bar  to 
further  procedure  of  a  proper 
character  with  reference  thereto. 
514. 

Where  a  foreign  corporation  la 
a  tax-payer,  tt  may  bring  an  ac- 
tion to  enjoin  a  municipality  from 
abuac  of  its  corporate  powers.  420. 

The  general  licensing  powers 
conferred  on  municipalities  do 
not  authorize  permission  to  a  ped- 
dler, under  the  guise  of  a  license, 
to  occupy  a  portion  of  the  side- 
walk for  the  vending  of  his  wares; 
the  fact  that  such  a  stand  has 
been  maintained  for  aa  long  a 
period  as  seventeen  years  createa 
no  right  therein,  but  the  duty  is 
still  upon  the  city  to  clear  the 
sidewalk.     420. 

Where  the  land  on  both  sides  of 
a  street  Is  purchased  by  the  mu- 
nicipality and  the  street  is  there- 
after vacated,  a  fee  simple  to  the 
street  vesta  In  the  city.     205. 

MUTUAL  BENEFIT  SOCIETIES- 
The  general  rule  as  to  declara- 
tions by  an  Insured,  made  at  about 
the  time  of  filing  nls  application 
for  Insurance,  are  applicable  where 
the  policy    la   held    In   a   mutual 
benefit  society.    238. 
MUTUALITY— 
In  a  contract  between  telephone 
<    companies    for    an    exclusive    ex- 
change of  toll  business.    425. 


NEGLIGENCE— 

By  carrier  with  reference  to 
shipment  of  apples  which  were 
permitted  to  freeze.     14. 

It  Is  not  negligence  to  attempt 
to  drive  over  a  street  car  track 
ahead  of  an  approaching  car, 
when  the  car  Is  so  far  away  that 
by  the  exercise  of  reasonable  care 
on  the  part  of  the  motorman  It 
might  have  been   stopped   before 


reaching  the  place  of  the  crossing. 
462. 

Where  It  appears  that  the  driver 
of  a  cab  and  the  motorman  of  a 
car  which  collided  with  It  were 
both  negligent,  the- Jury  may  con- 
sider whether  the  motorman  had 
his  car  under  such  control  that 
he  could  have  avoided  the  colli- 
sion after  he  saw  or  by  the  exer- 
cise of  ordinary  care  might  have 
seen  the  vehicle  on  the  track.   462, 

Release  of  one  Joint  tort  feasor 
operates  as  a  discharge  of  all 
others  jointly  liable  for  the  same 
tort.    388. 

Resulting  In  injury  to  a  work 
house  guard  from  an  explosion; 
municipality  not  liable.    35. 

NOTICE— 

A  return  In  a  forcible  entry  and 
detainer  suit  which  shows  no  more 
than  that  the  defendant  was 
served  "in  person"  is  Insufficient 
to  show  that  the  Justice  obtained 
Jurisdiction  over  the  defendant.  1. 

Of  suit  brought  by  a  trust  com- 
pany, where  prematurely  given, 
relates  back  and  becomes  valid, 
when.    497. 

To  a  contractor  Is  notice  to  his 
surety.    17. 


OFFICE  AND  OFFICER— 

Right  of  a  public  officer  to  com- 
pensation; allowance  for  clerk 
hire  In  county  offices.    8. 

The  aecretary  of  the  State  Board 
of  Agriculture  is  not  a  public  offi- 
cer.   103. 
ORDINANCE— 

The  approval  by  a  mayor  of  an 
ordinance  authorising  the  annexa- 
tion to  a  municipality  of  territory 
in  which  he  has  a  considerable 
financial  Interest  Is  clearly  against 
public  policy  and  invalid.    614. 

PARSONAGE— 

Property  devised  to  k  church  for 
use  as  a  parsonage  may  be  sold, 
when;  purchaser  need  not  see  to 
the  application  of  the  proceeds. 
377. 


PARTIES— 

In  pari  delicto;  action  by,  may 
be  maintained  where  It  Is  in  dis- 
affirmance of  an  executory  con- 
tract, when.    49. 

Who  may  sufficiently  represent 
an  unincorporated  organization  of 
worklngmen,  which  It  Is  sought  to 
dissolve  because  of  ancillary  pur- 
poses and  methods  contravening 
public  policy.    49. 

Effect  of  failure  to  make  parties 
to  a  condemnation  proceeding  un- 
born Issue  of  tenants  for  life  with 
the  remainder  in  tall.    441. 

Private  citizens  who  are  mem- 
bers of  an  organisation  having  as 
its  object  the  enforcement  of  the 
Hose  county  option  law  are  not, 
by  reason  of  that  fact,  rendered 
proper  defendants  to  an  action  to 
test  the  constitutionality  of  that 
law.    626. 

PARTITION— 

A  partition  Is  not  a  special  pro- 
ceeding but  Is  a  part  of  the  code. 
441. 

An  answer  denying  title  and  set- 
ting up  the  plea  of  the  statute  of 
limitations  does  not,  In  Ohio, 
oust  the  court  of  Jurisdiction  and 
necessitate  a  trial  of  the  Issue  by 
a  Jury.    441. 

Extent  of  the  powers  of  courts 
hi  different  states  having  Jurisdic- 
tion in  partition.    441. 

Of  lands  bequeathed  for  life  to 
a  son  with  the  remainder  to  his 
legal  heirs;  death  of  the  son  with- 
out Issue  causes  the  property  to 
go  to  brothers  and  sisters  of  the 
blood  and  of  the  half  blood 
alike.     15S. 

The  character  of  property  as 
ancestral  Is  not  affected  by  parti- 
tion in  the  form  of  releases  given 
by  the  coparceners  In  shape  of 
warranty  deeds.    333. 

physician- 
is  guilty  of  gross  immorality 
where  he  maintains  two  different 
offices  under  two  different  names, 
and  under  circumstances  indi- 
cating an  intention  to  deceive  the 
public.     13^. 


PLEADINGS— 

See  Defenses. 

A  petition  asking  for  damages 
against  county  commissioners  be- 
cause of  an  accident  growing  out 
of  the  unsafe  condition  of  a  pub- 
lic highway  should  clearly  allege 
that  the  said  highway  Is  a  state 
or  county  road.    136. 

In  an  action  for  negligence; 
rule  as  to  negligence  specifically 
averred  will  not  be  applied,  but 
amendment  will  be  permitted, 
when.    143. 

Allegations  as  to  insolvency 
which  warrant  the  appointment 
of  a  receiver.    361. 

An  answer  which  sets  forth 
facts  which  amount  to  a  plea  in 
abatement  is  proper,  when.    24. 

Combining  several  acts  into  one 
cause  of  action.     103. 

In  an  action  for  recovery  of 
money  lost  in  a  bucket  shop.    384. 

pledge- 
no  rights  of  a  pledgee  of  stock 


POISONS— 

Sale  of;  construction  of  the  stat- 
ute governing.    338. 

POLICE  COURT— 

Has  authority  under  the  law  of 
Ohio  to  commit  to  the  work  house 
upon  conviction  of  a  misdemean- 
or.    276. 

POLICE  POWER— 

Attempt  to  clothe  the  secretary 
of  the  State  Board  of  Agriculture 
with  police  power,  renders  invalid 
Sections  4446a,  el  »eq.     103. 

The  ordering  of  school  houses 
and  other  public  buildings  closed, 
pending  the  installation  of  better 
facilities  for  egress  in  case  of  fire, 
is  not  in  excess  of  the  police  power 
of  the  state.    401. 

Arbitrary  action  In  closing 
school  houses  under  this  power 
may  be  enjoined.     401. 


POWERS— 

Governmental  as  distinguished 
from  corporate.    35. 

The  Governor  la  without  power 
to  delegate  to  his  secretary  author- 
ity to  Issue  warrants  of  extradi- 
tion.    307. 
PRESUMPTION— 

An  Insurance  agent  will  be  pre- 
sumed to  know  that  a  corporation 
has  no  Insurable  Interest  In  the 
lives  of  members  of  Its  board  of 
directors  who  are  not  Indebted  to 
It.  548. 
PRINCIPAL  AND   SURETY— 

See  Surety. 
PRIVITY— 

There  Is  no  privity  between  a 
■  third  occupant  of  leased  premises 
and  the  original  lessee,  when.  1. 
PROMISSORY  NOTE— 

May  be  collected  In  full  by  the 
receiver  of  an  Insolvent  bank,  not- 
withstanding the  maker  has  a  de- 
posit In  the  bank  standing  In  his 
name  as  executor.    424. 

Where  an  Insolvent  maker, 
while  acting  as  executor  of  his 
surety,  pays  the  note  as  a  claim 
against  the  estate,  he  Is  chargeable 
with  the  amount  so  paid.  177. 
PROPERTY— 

The  principle  of  the  Inviolability 
of  private  property  Is  not  violated 
by  the  provisions  of  the  Rose 
county  local  option  law.    G26. 

PUBLICATION— 

Service  of  summons  may  be 
made  by,  in  an  action  in  attach- 
ment before  a  Justice  of  the  peace 
against  a  foreign  railway  corpora- 
tion, when.    265. 

Where  the  residence  of  a  de- 
fendant In  an  action  for  divorce 
Is  known,  a  copy  of  the  petition 
must  be  sent  to  htm  with  the  pub- 
lication.   274. 

The  provisions  of  Section  5045 
do  not  apply  to  an  action  In  In- 
terpleader where  brought  by  the 
stakeholder.     145. 

public  policy- 
is  contravened  by  purposes  and 


methods  of  a  labor  union,  when. 
49. 

Of  the  state  with  reference  to 
preventing  the  placing  of  perma- 
nent obstructions  In  the  streets  not 
infringed  by  placing  piers  In  a 
street  lor  the  purpose  of  avoiding 
a  grade  crossing,  when.     SI. 

PUNCTUATION— 

Of  Section  S45,  relating  to  lia- 
bility of  county  commissioners  for 
failure  to  keep  roads  in  repair. 
136. 


RAILWAYS— 

See  Carriers  and  Crossings. 

A  foreign  railway  corporation 
may  be  served  by  publication  In 
an  action  In  attachment  before  a 
justice  of  the  peace,  when.    265. 

A  railway  may  divert  the  course 
of  a  highway,  when;  the  question 
of  the  necessity  of  the  diversion  is 
for  the  court.    529. 

The  state  law  providing  for 
automatic  couplers  on  cars  used 
in  state  traffic  is  not  unconstitu- 
tional because  of  the  existence  of 
a  federal  law  providing  for  auto- 
matic couplers  on  cars  used  in 
Interstate  traffic.    541. 

It  is  not  the  train,  but  the  car 
complained  of,  that  is  the  unit 
which  these  statutes  seek  to  con- 
trol; *the  fact  that  a  large  propor- 
tion of  the  cars  in  a  train  are 
loaded  with  Interstate  traffic  does 
not  prevent  the  application  of  the 
state  statute  to  a  car  In  the  same 
train  which  Is  loaded  with  state 
traffic;  an  allegation  that  the  car 
complained  of  is  commonly  used 
in  Interstate  traffic  does  not  save 
It  from  the  operation  of  the  state 
statute,  when  at  the  time  alleged 
it  Is  being  used  within  the  state 
for  state  traffic.    541. 

Action  by  a  trust  company,  act- 
ing as  trustee  under  a  will,   for  ' 
recovery  of  compensation  for  land 
wrongfully    taken    by  a   railroad 
company.    497. 


sao  mo 

The  state  and  federal  laws  re- 
lating to  automatic  couplers  are 
not  In  conflict,  and  the  state  act 
Is  not  unconstitutional  because  re- 
lating to  the  same  subject-matter 
as  the  federal  act.    671. 

Proceedings  under  the  state  au- 
tomatic coupler  act  are  civil  In 
their  nature,  and  guilty  knowl- 
edge and  intention  are  not  essen- 
tial elements  of  the  offense.    571. 

RECEIVER— 

Allegations  as  to.  Insolvency 
which  are  sufficient  to  sustain  an 
order  appointing  a  receiver.    361.  . 

May  be  appointed  for  the  pro- 
tection of  a  surety  for  rent  ac- 
crued and  to  accrue,  when.    361. 

Before  appointment  of,  is  made, 
the  equities  of  the  entire  case  will 
he  considered,  as  well  as  mere 
technical  legal  rights;  past  Irregu- 
larities not  ground  for  a  receiver, 
nor  Is  present  mismanagement  un- 
less accompanied  by  actual  fraud; 
nor  threatened  dangers  unlees 
they  can  not  be  prevented  by  in- 
junction or  Borne  other  remedy. 
113. 

Will  be  appointed  In  ancillary 
proceedings,  when.    113. 

Construction  of  Section  274,  re- 
lating to  the  winding  up  of  un- 
sound Insurance  companies.    113. 

Of  an  Insolvent  bank  may  col- 
lect In  full  a  promissory  note,  not- 
withstanding the  maker  has  a  de- 
posit In  the  bank  standing  In  his 
name  as  executor.    424.      • 

Will  be  appointed  to  take  charge 
of  the  funds  of  an  association  dis- 
solved by  order  of  court  because 
of  Illegal  purposes  and  methods. 
49. 


Burned  and  destroyed  records; 
act  for  restoration  of,  unconstitu- 
tional because  ot  denial  of  right 
of  appeal  or  proceedings  In  er- 
ror.   188. 

The  statute  of  limitations  has 
no  reference  to  burned  or  de- 
stroyed records.     188. 

It  Is  error  to  order  the  restora- 
tion   of    a    record,    which    it    Is 


claimed  has  been  destroyed,  un- 
less some  evidence  is  offered  that 
such  a  record  was  once  in  ex- 
istence.   188. 

Verity  of  the  record  of  the  pro- 
bate court.    609. 
RELIGIOUS  SOCIETIES— 

Where  a  devise  Is  made  to  a 
church  of  property  for  use  as  a 
parsonage,  and  the  encroachments 
of  business  greatly  increases  the 
value  of  the  property  but  ren- 
ders it  unsuitable  for  use  as  a 
parsonage,  a  decree  will  be 
granted  authorizing  the  sale  of 
the  property;  reinvestment  of  the 
proceeds;  purchaser  need  not  look 
to  application  of  proceeds.  7  N. 
P.— N.  S.,  377. 
REMAINDER— 

In  lands  left  to  a  son  and  his 
legal  heirs  falls  where  the  son 
dies  without  Issue.    16S. 

Purpose  of  a  testatrix  to  pro- 
vide for  an  Imbecile  son,  regard- 


RENT— 

See  Landlord  and  Tenant. 

Due  and  to  become  due  may  be- 
come ground  for  appointment  of  a 
receiver  on  the  petition  of  a  sure- 
ty.   361. 
REPORTS— 

Of  county  commissioners  to  be 
made  annually  to  the  court  of 
common  pleas;  should  be  "Item- 
ized" to  the  extent  of  showing  the 
names  of  persons  to  whom  money 
Is  paid,  the  aggregate  amount 
paid  for  any  single  purpose,  and 
the  purpose  tor  which  the  pay- 
ment was  made.  667. 
REVERSAL— 

Effect  of,    In   a  criminal   case. 
208. 
ROADS— 

As  to  liability  of  county  com- 
missioners for  accidents  due  to 
bad  condition  of  roads.    136. 

Authority  is  conferred  by  Sec- 
tion 3284  upon  a  railroad  com- 
pany  to  divert  the  course  of  a 


highway  for  the  purpose  of  mak- 
ing practical  the  crossing  of  the 
highway  by  an  overhead  bridge 
where  the  change  In  the  course 
of  the  highway  does  not  Impair 
its  usefulness.    529. 

The  question  of  the  necessity  of 
such  a  diversion  is  for  the  court 
and  In  determining  It  the  con- 
venience of  the  whole  public,  those 
using  the  railway  as  well  as  the 
highway,  must  be  considered.  529. 

Water  from  a  ditch  bordering 
a  highway  can  not  be  thrown 
upon  the  land  of  an  adjacent 
owner  to  his  damage  without  com- 
pensation.   90. 

SALARY— 

See  Office  and  Officer. 
SALARY  LAW— 

Allowance  to  sheriff  of  car  fare 
and    telephone   charges    Incurred 
In  the  performance  of  his  official 
duties.    76. 
SALOON— 

See  Liquor  Laws. 
SCHOOLS-^ 

A  contract  for  the  building  of  a 
school  house,  at  a  cost  In  excess 
of  the  amount  raised  for  that  pur- 
pose, Is  not  void  where  due  to  an 
under-estlmate  of  the  amount 
needed.    690. 

But  permission  to  a  contractor 
to  reduce  his  bid,  so  as  to  bring 
it  within  the  amount  of  the  fund 
available,  renders  the  contract 
with  him  void  because  without 
notice  or  competition.    590. 

Failure  of  the  auditor  or  clerk 
to  certify,  before  a  contract  for  a 
new  school  house  is  entered  into, 
that  the  necessary  funds  are  on 
hand  or  in  process  of  collection, 
renders  the  contract  void.    590. 

Where  the  proposition  for  a 
bond  Issue  for  the  purpose  of 
building  a  new  school  house  has 
been  submitted  to  the  voters  of 
the  district  three  different  times, 
and  each  time  has  been  voted 
down,  further  submission  may  be 
enjoined  as  an  abuse  of  discretion 
on  the  part  of  the  board.    590. 


EX.  661 

Where  public  funds  have  been 
paid  out  on  a  contract  for  a  new 
school  house,  completed  In  good 
faith  and  without  collusion,  re- 
covery can  not  be  had  In  a  suit 
by  a  tax-payer,  notwithstanding 
the  contract  was  Illegal.    590. 

The  act  authorizing  inspection 
of  school  houses  with  reference  to 
safe  and  speedy  egress,  and  giving 
authority  to  order  changes  and  the 
installation  of  better  appliances 
where  needed,  Is  constitutional. 
401. 

School  buildings  may  be  ordered 
closed  pending  the  Installation  of 
better  facilities  for  egress;  but 
where  buildings  are  closed  In  an 
oppressive  and  arbitrary  manner, 
and  children  thereby  deprived  of 
the  advantages  of  the  public 
schools.  Injunction  will  lie  on  pe- 
tition of  the  school  board.  401. 
t  a  etaolchools  etaoln  taolnuuuj 
SENTENCE— 

A  police  court  has  authority  un- 
der the  law  of  Ohio  to  commit  to 
the  work  house  upon  conviction  of 
a  misdemeanor.     276. 

But  did  such  authority  not  ex- 
ist, habeas  corpus  would  not  lie 
because  of  error  in  committing  a 
prisoner  to  the  work  house  in- 
stead of  the  county  Jail.  276. 
SET-OFF— 

Of  an  antecedent  debt  due  to 
the  owner  from  the  principal  con- 
tractor: liens  of  sub-contractors 
and  material  men  subordinate 
thereto,  when.    198. 

The  maker  of  a  promissory  note 
held  by  the  receiver  of  an  insol- 
vent bank  has  no  right  to  set  off 
a  deposit  In  the  bank  standing  in 
hfs  name  aa  executor.  424. 
SEWERS — 

Cost  of  construction  of,  falls 
under  the  provisions  of  Section 
2835,  limiting  the  authority  of 
council  In  the  Issue  of  bonds  to 
4  per  cent.  249. 
SHERIFF— 

Allowances  to,  by  county  com- 
missioners may  Include  car  fare, 
telephone  charges,  etc.,  when.    76, 


A  sheriff  may  select  any  news- 
paper be  prefers  for  publication 
of  notice  of  a  judicial  sale,  sub- 
ject only  to  the  statutory  require- 
ment that  the  paper  selected  la 
printed  In  and  of  general  circula- 
tion In  the  county.  473. 
SIDEWALKS— 

An  abutting  sidewalk  owner  has 
no  right  to  grant  authority  to  use 
the  sidewalk  for  vending  wares. 
420. 

Compensation  for  a  strip  appro- 
priated for  a  sidewalk,  payment 
for  which  is  long  delayed,  belongs 
to  the  owner  at  the  time  tbe  ap- 
portionment is  made  and  not  to 
his  grantees.  244. 
SPECIAL  MASTER— 

Where  it  Is  intended  that  prop- 
erty shall  be  sold  by  a  special 
master  commissioner,  his  appoint- 
ment together  with  the  special  rea- 
sons why  the  sale  should  not  be 
made  by  tbe  sheriff  should  be  em- 
bodied in  the  decree.    473. 

Refusal  by  a  sheriff  to  publish 
tbe  notice  of  sale  in  a  particular 
newspaper  Is  not  ground  (or  the 
appointment  of  a  special  master 
to  make  the  sale.  473. 
STATE— 

Police  powers  of.  with  reference 
to  closing  buildings  of  public  as- 
sembly on  account  of  Inadequate 
means  of  egress  In  case  of  Ore. 
401. 

STATE    BOARD    OF    AGRICUL- 
TURE— 

Is  not  a  public  corporation  or 
department  of  the  state  govern- 
ment, but  a  private  corporation; 
can  not  be  clothed  with  police  pow- 
er; injunction  against,  will  He  as 
to  publication  of  a  publication  un- 
der Section  4446a,  el  aeq.    103. 

STATE    BOARD    OF    MEDICAL 
EXAMINERS— 

Authority  of;   not  clothed  with 
administrative  functions.    132. 
STATUTES— 

Failure  to  fix  details  as  to  in- 
spection does  not  Invalidate  Are 
Inspection  act.    401. 


In  the  construction  of,  a  general 
and  superior  purpose  can  not  be 
defeated  by  a  less  general  and  in- 
ferior direction.    249. 

The  federal  statute  providing 
for  automatic  couplers  on  Inter- 
state traffic,  and  the  state  stat- 
ute providing  for  automatic  coup- 
lers on  state  traffic,  are  not  in 
conflict  or  contradictory.     541. 

The  state  and  federal  statutes 
relating  to  automatic  couplers  are 
not  In  conflict.    571. 
STATUTES  CONSIDERED— 

99  O.  L.,  232,  authorizing  inspec- 
tion of  school  houses  and  other 
places  for  public  assembly  with 
reference  to  means  of  egress  in 
case  of  fire.     401. 

99  O.  L.,  35,  known  as  the  Rose 
county  option  law.     626. 

Section  4951.  fixing  the  manner 
of  computing  the  time  within 
which  an  act  shall  be  done.     619. 

Section  670S,  relating  to  the  ju- 
risdiction of  the  common  pleas 
court  in  error  proceedings.    619. 

99  O.  L.,  35,  known  as  the  Rose 
county  local  option  bill.     619. 

Section  1536-369  and  Section 
1536-383,  having  reference  to  com- 
mitments to  the  work  house.    276. 

Section  5943,  debarring  a  dev- 
isee from  participation,  who  with-, 
holds  a  will  from  probate  for  more 
than  three  years.    97. 

Section  5986,  providing  when  a 
probate  judge  may  appoint  a  per- 
son to  execute  a  trust.    97. 

Section  4446a,  relating  to  fer- 
tilizers.   103. 

Section  2297,  fixing  the  duration 
of  the  Hen  of  a  street  a 


Section  3235  prohibiting  corpo- 
rations from  engaging  In  profes- 
sional business.    6  O.  L.  it.,  475. 

Section  4364-20,  relating  to  the 
closing  of  saloons  on  Sunday.    397. 

Section  1536-32,  having  refer- 
ence to  the  filing  of  proceedings 
of  the  county  commissioners  as  to 
the  annexation  of  territory  to  a 
municipality.     514. 

Section  1536-41,  relating  to  an- 


614. 

Section  125  of  the  code  of  1902, 
clothing  mayors  with  the  func- 
tions or  approving  or  vetoing  or- 
dinances.    514. 

Section  1536-34,  relating  to  the 
effect  of  a  rejection  of  an  applica- 
tion for  the  annexation  of  terri- 
tory.   514. 

Section  6411,  providing  that  the 
code  of  the  common  pleas  court 
shall  govern  In  the  probate  court 
so  far  as  applicable.     497. 

Section  3S2lb,  relating  to  trust 
companies.     497. 

Section  5970,  providing  when 
the  whole  estate  of  a  devisor  in 
land  shall  pass  by  the  devise,    497. 

Section  5942,  providing  that  a 
will  not  admitted  to  probate  or 
record  Is  void.    497. 

Section  5937,  relating  to  wills 
executed  in  one  state  aod  admit- 
ted to  record  In  another.    497. 

Section  5987,  providing  how  a 
trust  created  by  a  foreign  will 
may  be  executed.    497. 

Section  3823,  providing  how  the 
right  to  occupy  a  road,  street  or 
alley  may  be  acquired  by  a  rail- 
road company.     497. 

Section  3284,  providing  how  a 
railroad  company  may  divert  a 
road  or  stream  when  necessary. 
497. 

Section  6069,  providing  that  the 
naming  of  a  person  as  executor 
shall  not  discharge  debt  due  from 
him  to  the  testator.    177, 

SI  O.  L.,  159,  known  as  the  act 
for  the  restoration  of  burned  or 
destroyed  records.    188. 

Section  2835,  providing  that 
townships  and  municipalities  may 
issue  their  bonds  for  certain  pur- 
poses.   249. 

Section  2837,  providing  that  be- 
fore bonds  for  certain  purposes 
can  be  Issued  or  taxes  levied,  the 
question  of  Issue  shall  be  submit- 
ted to  the  electorate.    249. 

Section  5539,  providing  when  a. 
receiver  may  be  appointed.     361. 


Section  4364-20,  relating  to  the 
closing  of  saloons  on  Sunday.    365. 

Section  3162,  relating  to  com- 
promise by  a  partner  with  a  firm 
creditor.    368. 

Section  3166,  relating  to  provi- 
sion for  joint  debtors.    368. 

Section  5399,  providing  when  a 
special  master  may  convey  real  es- 
tate.   473. 

Section  5393,  relating  to  notice 
of  sale  of  lands.  473. 

Section  4370-1,  relating  to  publi- 
cation of  notice  of  sales.    473. 

Section  1273,  relating  to  the  gen- 
eral duties  of  a  prosecuting  at- 
torney.   482. 

98  O.  L.,  18  (Section  20),  relat- 
ing to  the  filing  of  a  petition  In 
error  to  reverse  the  judgment  In  a 
prosecution  for  sale  of  intoxica- 
ting liquors.     482. 

Section  5698.  providing  how 
serv'ce  shall  be  made  when  the  de- 
fendant Is  a  resident  of  this  state. 
274. 

Section  5593,  providing  how  no- 
tice of  the  pendency  of  an  action 
shall  be  made  when  the  defend- 
ant's residence  Is  unknown.     274. 

Section  3284,  providing  that  a 
railroad  company  may  divert  the 
course  of  a  highway  or  stream 
when  necessary.     529. 

98  O.  L„  75,  requiring  railroad 
companies  to  equip  locomotives 
and  cars  with  automatic  couplers. 
641. 

Section  917,  providing  that  the 
county  commissioners  shall  make 
annual  report  in  writing  to  the 
court  of  common  pleas.    667. 

98  O.  L.,  75,  requiring  railroad 
companies  to  equip  locomotives 
and  cars  with  power  brakes,  auto- 
matic couplers,  etc.    571. 

Section  1778  (1536-668),  provid- 
ing when  a  tax-payer  may  Insti- 
tute Bult.    420. 

Section  2669  (1536-327),  grant- 
ing general  licensing  powers  to 
council.    420. 

Section  5008,  providing  when 
one  or  more  may  sue  or  defend  for 
all.    49. 


76. 

Section  SIMS,  providing  when 
service  may  be  mode  by  publica- 
tion.    145  and  274. 

Section  6016,  relating  to  Inter- 
pleader.   145. 

Section  896,  relating  to  appeal 
from  decision  by  county  commis- 
sioners.    8. 

Section  1494,  providing  bow 
township  trustees  or  corporation 
officers  shall  be  notified.    8. 

Section  148d,  relating  to  certifi- 
cates to  foreign  stock  corpora- 
tions.    497. 

Section  6448,  relating  to  proceed- 
ings where  land  Is  held  without 
agreement  by  a  corporation.    497. 

Section  3337-17a,  relating  to 
grade  crossings.    81. 

Sections  3337-17*  et  »eg.,  relating 
to  grade  crossings.    249. 

Sections  1536-210  and  1536-213, 
relating  to  the  issue  of  bonds  by 
municipalities.    249. 

Section  274,  relating  to  proceed- 
ings against  unsound  insurance 
companies.    113. 

Section  4403c,  relating  to  re- 
quirements for  the  practice  of 
medicine,  surgery  and  midwifery. 
132. 

Section  845,  relating  To  liability 
of  county  commissioners  tor  dam- 
ages for  failure  to  keep  roads  In 
repair.    136. 

Section  4989,  known  as  the  stat- 
ute of  llmltatlona,  applying  to  per- 
sons under  disability.    142. 

Section  6478,  relating  to  process 
In  an  action  before  a  Justice  of  the 
peace  against  a  railroad  company. 
266. 

Section  6489,  relating  to  affi- 
davits in  attachment.     266. 

Section  6496,  relating  to  proceed- 
ings In  attachment  where  sum- 
mons can  not  be  served.    265. 

Section  6168,  relating  to  the 
drawing  of  grand  Jurors  for  a 
special  term  of  court,    281. 

Section  5171,  providing  when 
talesmen  may  be  summoned.    231. 


Section  7202,  providing  that  the 
court  may  appoint  a  grand  Juror 
In  case  of  the  death  of  a  member 
of  the  panel.    281. 

Section  7203,  providing  when  a 
new  grand  Jury  may  be  sum- 
moned.   281. 

Section  6242-8,  relating  to  the 
competence  of  a  party  to  testify. 
435. 

Section  3455,  relating  to  unlaw- 
ful contracts  for  exclusive  right- 
of-way  for  telegraph  company.  426. 

Section  3470,  providing  how  and 
when  telegraph  companies  may 
consolidate.     425. 

Section  3471,  making  the  chap- 
ter relating  to  telegraph  com- 
panies apply  to  telephone  com- 
panies.   426. 

Section  4427,  relating  to  the 
liability  of  tavern  keepers  for  loss 
of  property  of  guests.    395,. 

Section  6477,  relating  'to  the 
service  of  summons  by  Justices  of 
the  peace  and  mayors  on  foreign 
Corporations.     265. 

Section  95,  relating  to  the  sur- 
render by  the  Governor  of  a  fugi- 
tive from  Justice.    307. 

Section  96,  providing  that  the 
Governor  may  require  an  investi- 
gation with  reference  to  a  fugitive 
from  Justice.     367. 

Section  97,  relating  to  the  sur- 
render of  a  criminal  on  demand 
from  another  state.    307. 

Section  3373-1,  requiring  rail- 
road companies  to  furnish  equal 
facilities  to  shippers  of  the  same 
class.    451. 

Section  244-11,  relating  to  the 
Railroad  Commission  of  Ohio.  461. 

Section  5364,  providing  when 
and  how  common  pleas  or  circuit 
courts  may  vacate  or  modify  their 
Judgments  or  orders  after  term. 
313. 

Section  5359,  providing  that  a 
court  must  determine  as  to  the 
grounds  for  vacation  of  a  Judg- 
ment before  determining  the  va- 
lidity of  the  defense.     313. 

Section  5360,  providing  what 
shall  precede  a  vacation.    313, 


Section  4406,  providing  who 
may  retail  drugs  and  compound 
prescriptions.     33  8. 

Section  5457,  providing  who 
shall  be-  privileged  from  arrest, 
and  when.    586. 

Section  5459,  providing  tbat 
privileges  from  arrest  shall  not  be 
construed  to  extend  to  cases  of 
crime.     585. 

Section  1536-205,  providing  re- 
strictions as  to  municipal  con- 
tracts, aproprlations  and  expendi- 
tures.    590. 

Section  2303,  relating  to  Im- 
provements and  repairs.    590. 

Section  2834b,  providing  that  no 
contracts  shall  be  let  unless  the 
money  Is  In  the  treasury  and  set 
apart  to  meet  the  obligation  there- 
by incurred.    690. 

Section  3901,  providing  for  the 
submission  of  the  question  of  a 
bond  issue  for  the  erection  or  re- 
pair of  a  school  house.    590. 

Section  3988,  relating  to  bidding 
and  the  letting  of  public  contracts. 
590. 

Section  3988,  relating  to  bidding 
and  the  letting  of  public  con- 
tracts.    590. 

Section  6708,  relating  to  the 
Jurisdiction  of  the  common  pleas 
court  on  error.    601. 

Section  4491,  declaring  how  far 
proceedings  relating  to  a  ditch  Im- 
provement may  be  declared  void. 
601. 

Section  7336,  relating  to  change 
of  venue  in  criminal  cases.    193. 

Section  7364,  having  reference 
to  method  of  procedure  In  case 
of  a  change  of  venue.    193. 

Section  7265,  providing  for  a 
warrant  tor  transfer  of  prisoner 
after  the  granting  of  an  order  for 
change  of  venue.     193. 

Section  3193,  relating  to  Hens  of 
sub-contractors  upon  payments 
due  head  contractors.     198. 

Section  2601,  relating  to  plate  of 
subdivisions.    205. 

Section  3821-85,  relating  to  em- 
bezzlement by  bank  officers,  em- 
ployes and  agents.     346. 


Sections  4476-6-7-8,  relating  to 
the  Improvement  of  county 
ditches.    17. 

Section  4981,  known  as  the  six 
years  statute  of  limitations.    43. 

Section  5621,  specifying  the 
grounds  upon  which  an  attach- 
ment may  be  had.    384. 

Section  4269,  making  gaming 
contracts  void.    384. 

Section  4272,  providing  what 
shall  constitute  sufficient  allega- 
tions In  an  action  for  recovery  of 
money  lost  In  a  scheme  of  chance. 
384. 

Section  6494,  providing  how 
property  may  be  discharged  from 
attachment    389. 

STREETS — 

Improvement  of,  by  paving;  4 
per  cent,  limitation  upon  the  au- 
thority of  council  to  Issue  bonds 
for,  applies.     249. 

May  be  re-located  in  avoiding 
grade  crossings.    81. 

Policy  of  the  state  of  avoiding 
the  placing  of  permanent  obo trac- 
tions In  streets  not  Infringed  by 
placing  piers  In  street  for  the  pur- 
pose of  avoiding  a  grade' crossing, 
when.    81. 

Acts  and  conduct  by  a  munici- 
pality which  amount  to  a  recogni- 
tion of  the  right  of  a  street  rail- 
way com  pat  y  to  maintain  Its 
tracks  in  the  streets.    161. 

As  to  paving  of  "devil  strip." 
161. 

A  municipality  may  summarily 
Interfere  with  the  operation  of  a 
street  railway,  where  there  la  a 
reservation  of  the  right  so  to  do 
and  the  ground  for  bo  doing  la 
legally  sufficient.     161. 

But  the  Irrevocable  character  of 
a  franchise  binds  the  municipality 
to  the  agreement  then  made,  and 
forbids  the  application  of  regula- 
tions embodied  In  ordinances 
thereafter  enacted,  unless  such 
regulations  have  reference  to 
governmental  matters.    161. 

Injunction  granted  against  in- 
terference with  the  operation  of  a 
street  railway  because  of  refusal 


of  the  railway  company  to  re- 
pave  certain  parts  of  the  street, 
Including  the  "devil  strip."    161. 

Where  abutting  lot  owners  con- 
vey the  property  on  both  sides  o( 
a  street  to  the  municipality  and 
the  street  la  thereafter  vacated, 
the  municipality  takes  a  fee 
simple  title  to  the  street  as  against 
the  original  owners  who  dedicated 
the  street.    205. 

STREET  RAILWAYS— 

Where  the  driver  of  a  cab  and 
the  motorman  of  a  car  were  both 
negligent  and  a  collision  resulted; 
duty  of  motorman  to  keep  his  car 
under  control.     462. 

SUBDIVISIONS— 

Owners  of,  can  not  claim  title 
to  a  street  subsequently  vacated 
by  the  municipality,  when.    205. 
SUITS— 

See  Action. 
SUMMONS— 

Constructive  service  can  not  be 
made  on  a  non-resident  defendant 
In  an  action  In  Interpleader  where 
brought  by  the  stake-holder.    145. 

If  the  defendant  In  an  action  for 
divorce  Is  a  resident  of  the  state 
a  copy  of  the  petition  muHt  be 
served  on  him  with  the  summons, 
and  if  he  Is  served  by  publication 
and  his  residence  Is.  known  a  copy 
of  the  petition  must  be  sent  to 
him  with  the  publication.    274. 

May  be  served  on  a  foreign  rail- 
way corporation  by  a  Justice  of 
the  peace  In  attachment  by 
publication,  when.    205. 

Return  of,  la  Insufficient  to  show 
that  jurisdiction  was  obtained  by 
a  Justice  of  the  peace  in  a  forcible 
entry  and  detainer  action,  where 
no  more  appears  than  that  the 
defendant  was  served  in  person.  1. 

Service  may  be  had  In  a  civil  ac- 
tion upon  an  accused  person  who 
Is  voluntarily  seeking  a  hearing 
before  a  grand  Jury  In  a  county 
other  than  that  of  his  residence. 
5S5. 
SUNDAY— 

A  plea  of  guilty  of  selling  in- 


toxicating liquor  on  Sunday  in 
an  action  which  was  prosecuted 
aa  a  first  offense,  but  might  have 
been  prosecuted  an  a  second  of- 
fense. Is  a  bar  to  a  subsequent 
prosecution  of  the  same  defendant 
in  another  court  for  the  aame  sale 
charged  as  a  second  offense.    365. 

The  unlawful  sale  of  Intoxica- 
ting liquors  on  Sunday,  and  un- 
lawfully permitting  a  place  where 
Intoxicating  liquors  are  sold  to  re- 
main open  on  Sunday,  are  differ- 
ent forms  of  the  same  offense.  397. 

An  unlawful  sale  on  Sunday  can 
be  charged  as  a  second  offense, 
where  the  first  conviction  relied 
upon  was  for  unlawfully  allowing 
a  saloon  to  remain  open  on  Sun- 
day. 397. 
SURETY— 

Receiver  may  be  appointed  for 
the  protection  of  a  surety  for  rent 
accrued  and  yet  to  accrue,  when. 
311. 

Where  an  Insolvent  maker  of  a 
note  while  acting  as  executor  of 
his  surety,  pays  the  note  as  a 
claim  against  the  estate,  he  Is 
chargeable  with  the  amount  so 
paid.    177. 

Nature  of  contracts  between 
principal  and  surety.    177. 

Notice  to  a  contractor  Is  notice 
to  hla  surety.    17. 

TAXATION— 

Notes  and  mortgages  covering 
chattel  property  are  taxable  In  the 
county  of  the  owner's  residence, 
and  not  in  the  county  of  the  situs 
of  the  property,  notwithstanding 
the  owner  has  an  agent  in  the 
county  in  which  the  property  Is 
situated  who  is  authorized  to  col- 
lect Interest  and  Installments  of 
the  principal  as  they  fell  due.  342. 
TAX-PAYER— 

A  foreign  corporation  when  a 
tax-payer  may  bring  as  action  In 
that  capacity  to  enjoin  a  municipal 
corporation  from  abusing  Ite  cor- 
porate powers.  420. 
TAVERN— 

See  Innkeeper. 


TELEGRAPH  AND  TELEPHONE- 

Contracta  for  the  exclusive  ex- 
change of  toll  business  between 
telephone  companies  are  not  in 
restraint  of  trade;  nor  subject 
to  the  same  rule  as  similar  agree- 
ments between  gas  companies  or 
street  railway  companies.    425. 

Disregard  of  such  a  contract 
may  be  prevented  by  injunction; 
evidence  of  the  condition  of  the 
telephone  business  In  the  field  in 
which  the  companies  operated  at 
the  time  the  agreement  was  made 
Is  admissible  In  determining  its 
purpose  and  effect.  425. 
TENANTS  IN  COMMON— 

A  tenant  in  common  is  an  owner 
of  land  within  the  meaning  of  Sec- 
tion 644S,  and  If  ousted  by  a  rail- 
road company  co-tenant,  may 
maintain  an  action  for  compensa- 
tion and  damages  under  that  sec- 
tion against  such  co-tenant.  497. 
TIME— 

Computation  of,  with  reference 
to  the  date  for  holding  a  county 
option  election;  the  provision  that 
the  election  shall  be  held  "In  not 
less"  than  twenty  days  from  the 
presentation  of  the  petition  does 
not  create  an  exception  to  Section 
4951,  wherein  It  is  provided  that 
the  first  day  shall  be  excluded  and 
the  last  Included.    619. 

For    completion    or    a   contract 
will    be   allowed   notwithstanding 
time  is  made  of  the  essence  of  the 
contract,  when.    17. 
TITLE— 

An  answer  denying  title  does 
not  oust  an  Ohio  court  of  Jurisdic- 
tion In  a  partition  case.    441. 

Adverse  possession  by  a  munici- 
pality for  more  than  twenty-one 
years  does  not  deprive  a  subse- 
quent life  tenant  of  title  until  the 
requisite  period  after  bis  right  of 
entry  accrued.    441. 

The  legal  title  to  property  may 
be  devised  to  a  trust  company  un- 
der a  will  creating  a  trust  for  the 
care  and  management  of  the  prop- 
erty.   497. 

To  a  vacated  street,  where  the 


city  before  vacation  purchased  the 
property  on  both  sides.    20b. 

To  property  devised  for  use  as  a 
parsonage    quieted    In    purchaser 
from  the  church  receiving  the  gift. 
377. 
TORTS— 

Joint  tort  feasors  are  not  Joint 
debtors,  within  the  meaning  of 
Section  3166,  until  the  claim  has 
been  reduced  to  Judgment  or  other- 
wise liquidated  by  the  parties;  re- 
lease of  one  Joint  tort  feasor  oper- 
ates as  a  discharge  of  all  others 
jointly  liable  for  the  same  tort. 
368. 
TOWNSHIP— 

Injunction  against  an  assess- 
ment for  a  township  ditch  will  He 
IF  the  assessment  exceeds  the  bene- 
fits, notwithstanding  the  trustees 
had  Jurisdiction  to  order  the  Im- 
provement and  all  the  proceedings 
were  regular.    601. 

Jurisdiction  by  township  trus- 
tees to  order  a  ditch  Improvement. 
601. 

Township  trustees  are  without 
authority  to  throw  water  from  a 
highway  ditch  upon  adjoining  land 
without  resort  to  the  power  of 
eminent  domain,  when.  90. 
TRADE  SECRET— 

Confidential  relation  of  employe; 


TRADES  UNIONS— 

See  Labor  Unions. 
TRIAL— 

The  rule  which  requires  a  trial 
Judge  to  take  action  with  regard 
to  unfair  comment  on  the  evi- 
dence by  counsel  does  not  apply 
to  a  mere  desultory  remark.    462. 

What  constitutes  a  sufficient  cau- 
tion to  the  jury  to  disregard  tes- 
timony offered  and  afterward  ruled 


462. 
TRUST— 


of  court  and  use  of  the  proceeds 
for  the  same  purpose  elsewhere; 
purchaser  need  not  see  to  applica- 
tion of  the  proceeds.    377. 

The  legal  title  to  land  may  be 
devised  to  a  trust  company  where 
It  has  been  appointed  trustee  in  a 
will  "creating  a  trust  for  the  care 
and  management  of  property,"  un- 
der  the  provisions  of  Section 
38216;  compensation  for  land  un- 
lawfully taken  by  a  railroad  com- 
pany may  be  recovered  by  a  trust 
company  acting  as  such  trustee. 
W. 

Where  a  trustee  under  a  foreign 
will  serves  notice  and  brings  suit 
under  Section  6448  before  the  re- 
cording of  the  will  and  giving  of 
bond  In  the  county  In  which  the 
land  affected  Is  located,  subsequent 
compliance  with  the  statute  as  to 
the  recording  of  the  will  and  giv- 
ing of  bond  causes  the  notice  to 
relate  back  and  gives  It  valid- 
ity.   497. 

The    use    of    county    funds    by 
banks   for  which   no   Interest  was 
paid  constitutes  a  resulting  trust. 
43. 
TRUST  COMPANIES— 

Legality  of  the  appointment  of  a 
trust  company  to  act  as  elecutor 
can  not  be  collaterally  attacked. 
609. 

The  bringing  of  suit  by  a  for- 
eign trust  company,  acting  as  trus- 
tee under  a  will  admitted  to  rec- 
ord In  this  state,  is  not  "doing 
business"  within  the  meaning  of 
Section  148d,  requiring  a  certifi- 
cate from  the  Secretary  of  State. 
497. 

The  legal  title  to  land  to  be  held 
In  trust  for  the  care  and  manage- 
ment thereof  may  be  devised  to  1 
trust  company,  and  the  company 
whether  domestic  or  foreign  may 
recover  compensation  for  land  un- 
lawfully taken  by  a  railroad  com- 
pany, when.  497. 
TURNPIKE— 

See  Roads. 


ULTRA  VIRBS— 
A  natural  gas  company,  Incor- 


porated to  furnish  gas  to  a  num- 
ber of  municipalities,  Is  without 
power  to  abandon  tne  furnishing 
of  gas  to  one  of  the  municipali- 
ties while  continuing  to  serve  the. 
others.  553. 
UNIT— 

The  unit  under  the  state  auto- 
matic coupler  act  is  not  the  train, 
but  the  car  complajned  of.     571. 

Under  the  provisions  of  the  state 
automatic  coupler  law  each  car 
Is  a  unit.    541. 


VACATION— 

Of  a  street;  title  to,  where  the 
city  owns  the  property  on  both 
aides.    206. 


VENUE— 
A   change  of  ■ 


148. 


VILLAGES— 

Organization  of  villages  and 
hamlets.    514. 

The  fact  that  an  Illegal  pur- 
chase of  supplies  for  a  village, 
was  made  in  good  faith,  does  not 
render  the  village  liable  therefor 
because  of  the  moral  obligation 
incurred.     174. 

WAIVER— 
A  finding  as  to  the  validity  of  a 


WARRANT— 

Of   extradition   Is   a   nullity   If 
signed  by  the  Governor  In  blank. 
307. 
WASTE— 

Growing  out  of  the  acte  of  cor- 
porate officers  not  ground  for  ap- 
pointment of  a  receiver  for  the  cor- 
poration, when.    113. 
WATER  AND  WATER-COURSES- 

Townshlp  trustees  are  without 
authority  to  throw  water  from  a 
highway  ditch  upon  the  land  of 


an  adjacent  owner  to  his  damage 
without   resort  to   the   power  of 
eminent  domain.    90. 
WILLS— 

Application  of  the  rule  that  ex- 
trinsic evidence  Is  admissible  In 
aid  of  the  construction  of  a  will. 
297. 

The  phrase  "heirs  of  the  body  nt 
T  per  stir  pet  and  not  per  capita" 
construed  as  constituting  a  sepa- 
rate bequest  and  not  descriptive 
of  the  persons  mentioned  in  the 
immediate  context.    297. 

Where  a  devise  Is  made  to  a 
church  of  property  for  use  as  a 
parsonage,  and  the  encroachments 
of  business  greatly  Increases  the 
value  of  the  property  but  renders 
it  unsuitable  for  use  as  a  parson- 
age, a  decree  will  be  granted  au- 
thorizing the  sale  of  the  property; 
reinvestment  of  the  proceeds;  pur- 
chaser need  not  look  to  applica- 
tion of  proceeds.    377. 

Where  a  devisee  of  a  share  of 
real  estate  dies  before  distribution, 
ttie  proceeds  go  to  his  heirs  as 
personalty  and  'should  be  paid  by 
the  administrator.     97. 

A  custodian  or  two  wills,  who 
probated  the  later  will  Immedi- 
ately, and  when  more  than  three 
years  thereafter  it  was  set  aside 
be  at  once  offered  the  earlier  will 
for  probate,  Is  not  debarred  by 
Section  5943  from  taking  under 
the  earlier  will.    97. 

Authority  to  consume  corpus  of 
estate  for  support  of  Imbecile  son 
may  be  assumed,  when.    100. 

Where  lands  are  bequeathed  to 
a  son  for  life  and  the  remainder 
to  his  legal  heirs,  and  the  son  dies 
without  Issue,  the  remainder  falls 


WITNESSES— 

Service  of  process  In  a  civil  ac- 
tion may  be  had  upon  an  accused 
person  who  Is  voluntarily  seeking 
a  hearing  before  a  grand  Jury  In 
a  county  other  than*  that  of  his 
residence.    685.  ■ 

WORDS  AND  PHRASES— 

Meaning  of  the  words  "Item- 
ized as  to  amount,"  as  used  In 
Section  917,  as  amended,  having 
reference  to  the  annual  reports 
of  county  commissioners.    567. 

The  phrases  "probably  Insol- 
vent" and  "In  imminent  danger  of 
becoming  insolvent"    361. 

Meaning  of  the  words  "joint 
debtors,"  "Joint  Indebtedness," 
and  "creditors."    368. 

Meaning  of  the  words  "Invest" 
and  "speculate."    371. 

The  phrase  "gross  immorality" 
not  lacking  In  deflnltenees.    132. 

The  word  "term"  In  a  lease  com- 
prehends both  time  and  estate.     1. 

The  words  "owner"  and  "doing 
business"  defined.    497. 

Under  state  automatic  coupler 
act,  It  Is  not  the  train  but  the  car 
complained  of  that  is  the  "unit." 
541. 

WORK  HOUSE— 

A  police  court  has  authority  to 
commit  to,  under  a  conviction  for 
a  misdemeanor.    276. 

Guard  In.  Injured  in  an  explo- 
sion; municipality  not  liable.    35. 


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